Allahabad High Court
State Of Up vs Anoop And 3 Others on 10 May, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:84702-DB
Court No. - 67
Case :- GOVERNMENT APPEAL No. - 201 of 2024
Appellant :- State of U.P.
Respondent :- Anoop And 3 Others
Counsel for Appellant :- A. K. Sand
Hon'ble Rahul Chaturvedi,J.
Hon'ble Ms. Nand Prabha Shukla,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Jitendra Kumar, learned AGA-I on behalf of State of UP pursuing this Government appeal under Section 378 (3) Cr.P.C.
2. Present government appeal has been preferred against judgement and order of acquittal dated 5.2.2024 passed by the learned Additional Sessions Judge/FTC, Chitrakoot while deciding Session Trial No.84 of 2022 (State of U.P. vs. Anoop and others), arising out of Case Crime No.494 of 2017, u/s 498A, 304B I.P.C. and alternative charge u/s 302/34 I.P.C. and 3/4 of Dowry Prohibition Act, P.S.-Rajapur, District-Chitrakoot, whereby the accused-respondents namely, Anoop, Smt.Sushma, Balwant and Kamlesh have been acquitted from all the charges. The proposed accused-respondents are chargesheeted accused under Section 498-A, 304-B IPC and Section 4 of D.P. Act and the matter being cognizable by learned Sessions Judge, as such, the case was committed to the court of sessions whereby the learned Sessions Judge has inserted Section 302/34 IPC as an alternative charge.
3. Mr. Jitendra Kumar, learned A.G.A. sought a prayer to grant leave to appeal against the judgment and order dated 5.2.2024 on the ground that the learned Trial Judge has misread and misconstrued entire evidence on record and have wrongly acquitted the appellants. Besides this, learned Trial Judge have appreciated the evidence in a lopsided and partisan way and acquitted the accused-respondents causing gross injustice to the prosecution. The entire judgment is based on conjecture, surmises and unfounded hypothesis. Learned A.G.A. has tried to impress upon the Court, that there is a marked deviation in the findings recorded by the learned Trial Judge vis-a-vis the material on record. The material of the evidence recorded clearly indict the accused-respondent for the offence for which they are charged. On this score, learned A.G.A. has insisted that the trial court has wrongly decided the case acquitting the named accused persons. Therefore, submission of learned A.G.A. is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal so that accused-respondents may be convicted.
4. Long and short of the FIR allegedly lodged by Ram Prasad dated 23.11.2017 indicates that his daughter Roshni Devi aged about 25 years got married on 21.4.2014 with Anoop Nishad s/o Nankawa, District-Chitrakoot. On 22.11.2017 around 7:00 in the evening, the proposed accused-respondents committed the murder of his daughter by hanging. The said accused-respondents was maltreated her and were demanding Rs.50,000/- as an additional dowry else the daughter would be killed.
5. Thus, from the aforesaid, it is clear that the marriage of Smt.Roshni Devi was solemnized with Anoop on 21.4.2014 and she died unnaturally on 22.11.2017 within a period of three years and seven months of her marriage
6. As mentioned above, the police after investigation has submitted the charge-sheet No.494 of 2017 under Sections 498-A, 304-B IPC and Section 4 D.P. Act against Anoop, Smt.Sushma, Balwant and Kamlesh. As mentioned above, the case was committed to the court of sessions and where Section 302/34 IPC was added as an alternative charge. These charges were explaining to the accused-respondents, which they have declined and insisted to be tried.
7. The prosecution in support of their case has produced P.W.-1 Ram Prasad (informant), PW-2 Smt. Sonia, PW-3 Santosh Kumar, PW-4 Prakash Chandra as witnesses of fact whereas PW-5 Dr.Umesh Kumar Nishad, PW-6 Vineet Singh (Investigating Officer), PW-7 Beni Prasad Gupta (Nayab Tehsildar) witnesses of inquest, PW-8 Sub Inspector Devendra Singh scribe of the FIR, PW-9 C.O. Suresh Prasad Sharma (Investigating Officer), PW-10 Ishtiyak Ahmad, PW-11 Ram Singh Yadav as witnesses of recovery. In addition to above, number of documents were produced in support of prosecution case which was duly proved and exhibited. On the other hand, DW-1 Shivnath and DW-2 Babloo Prasad were produced as defence witnesses.
8. After hearing the learned AGA, admittedly, the case is dowry related harassment and unnatural demise of the girl within 7 years of marriage. Meaning thereby, this is a case of dowry death. On the aforesaid factual matrix of the case, at the outset, it is imperative to spell out the five essential ingredients of Section of 304-B IPC, which has been propounded by Hon'ble Apex Court in the case of Durga Prasad vs. State of M.P., (2010) 9 SCC 73, V.K. Mishra vs. State of Uttarakhand, (2015) 9 SCC 588 and in Shanti vs. State of Haryana, AIR 1991 SC 1226, which reads thus :
(i) The woman died unnaturally or on account of burn injury or bodily injury.
(ii) The woman died within seven years of her marriage.
(iii) The woman was subjected to harassment by her husband or relatives of husband.
(iv) Such harassment or cruelty was due to demand of dowry.
(v) Such cruelty or harassment was done with the woman soon before her death.
9. Before coming to the presumption as contemplated in Section 113-A and 113-B of the Indian Evidence Act, the prosecution has to establish all the five ingredients mentioned above beyond iota of doubt and then only this presumption would come into the play against the husband and in-laws and not other-way round.
10. Let us now examine the aforesaid ingredients and test it in crucible of the witnesses.
11. Issue Nos.1 and 2 are as to whether Ms.Roshni (deceased) died within seven years of marriage and as to whether this death of the deceased was under the unnatural circumstances? There is consistent stand by the prosecution that marriage of Ms.Roshni was performed on 21.4.2014 and there was demand of Rs.50,000/- by way of additional dowry and the informant has received a message on 22.11.2017 around 7:00 in the evening that her daughter Ms.Roshni Devi is now no more. All the prosecution witnesses of fact consistently have stated that on account of the additional dowry, this mishap has taken place and she has died on account of hanging. PW-5 Dr.Umesh Kumar Nishad has prepared the autopsy report of the deceased, which indicates that there is a ligature mark around her neck and from her angle of the left side of her mouth, the saliva was dribbling down and brain was congested and from her nostrils and mouth, the blood was oozing out. Both the lungs were congested and the doctor opined that the cause of death was Asphyxia as a result of hanging. The accused himself in the statement under Section 313 Cr.P.C. has admitted that he got married on 21.4.2014 and Roshni died in the month of November, 2017. Thus, it is clear that this unfortunate incident of the said demise of Ms.Roshni was within seven years of her marriage under the unnatural circumstance.
12. Issue No.3 is as to whether there was a demand of dowry soon before her death and she was subjected to cruelty which resulted into her death or she was done to death. In the FIR, there is allegation that his daughter was murdered by hanging and the in-laws used to demand Rs.50,000/- quite often else they would eliminate his daughter. Since, he could not arrange the amount, therefore, she was killed.
13. In paragraph 28 of the impugned judgment, the father of the informant has reiterated the version of the FIR, but PW-1 Ram Prasad in his testimony has nowhere stated that the accused-respondents have ever demanded the additional dowry. In the cross-examination of PW-1 and under Section 161 Cr.P.C., it has been surfaced that the deceased was keenly interested to join the Tilak ceremony of his brother, but her father against her wishes dropped her to her Sasural.
14. On this score, it is evident that there is no compatibility between the allegations of the FIR and the statement under Section 161 Cr.P.C. of the father. In the cross-examination, it further reveals that the financial status of Anoop was self-sufficient and has never demanded any money from her father-in-law. There was no other injury except the ligature mark over her neck. It is an admission of PW-1 that after the marriage, he virtually severed all the relationship with his daughter she has never demanded any share in her ancestral property or Anoop has ever demanded. PW-2 Ms. Sonia (mother of the deceased) though alleged that there was a demand of Rs.50,000/-, but when this demand was made, she has maintained her silence over this question. In her cross-examination, she has pleaded ignorance that she does not know, who killed her daughter. She further stated that both were happy and there was no demand of dowry. Anoop has never beaten her daughter and in her cross-examination, Ms.Sonia-PW2 has summersalted from her earlier stand.
15. PW-3 Santosh Kumar Nishad though has supported the prosecution case, but in his cross-examination, as usual wriggled out from his earlier stand standing therein that she has never been maltreated or assaulted. Similarly, PW-4, has followed the same story.
16. In paragraph-44 of the judgment, the learned trial Judge has stated that PW-1 and PW-2 are the parents of the deceased, who in their cross-examination declined that there was any demand of dowry from the deceased. The doctor (PW-5) in his cross-examination states that except the ligature mark, there was no mark of injury over the body of the deceased suggestive of the fact that there was no maar-peet or manhandling with the deceased soon before her death on account of additional dowry.
17. We have considered the submissions and have perused the record.
18. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
19. Since it is a government appeal against the acquittal, it will be relevant to note the principles of law laid down by the Apex Court with regard to the appreciation of evidence in the appeal against the acquittal. Recently in Mallappa v. State of Karnataka, 2024 SCC OnLine SC 130, the Apex Court has held as under:-
"37. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
20. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities."
21. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.
22. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.
23. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
24. Comparing these ingredients from the material culled out from the judgement impugned, we find that there is no whisper with regard to scanty dowry and its related harassment. Under these circumstances, the trial court has correctly arrived at the conclusion that no case u/s 304-B I.P.C. is made out against the appellants. Taking into account the totality of circumstances, we do not feel that any legal infirmity in the order impugned and this government appeal is devoid of merit and not worth granting any leave to appeal.
25. Thus, after searching the evidence, the learned trial Judge has rightly landed to the conclusion that assessing the entire period of circumstances and the testimonies of the witnesses, there was no element that the deceased was subjected to maltreatment on account of demand of additional dowry or they have treated shabbily with the deceased soon before her death on account of additional dowry and, therefore, the learned trial Judge has rightly observed that the prosecution has failed to establish the cruelty or harassment was done with the deceased soon before her death and in paragraph-62 of the judgment has clearly mentioned that the prosecution has failed to establish the case under Section 304-B IPC beyond the pale of doubt and recorded the acquittal order of all the accused persons.
26. After hearing learned AGA and perusal the judgment impugned, we are of the considered opinion that the reasoning adopted by the learned trial Judge and the approach of the trial court is flawless and impeccable, which deserves no interference by us in exercise of powers under Section 378 (3) Cr.P.C.
27. The finding recorded by the learned trial judge is perfectly just and valid and deserves no interference in exercise of power under Section 378 (3) Cr.P.C. The submission advanced by learned counsel for the appellant is devoid of merit and liable to be rejected.
28. Thus, after thrashing the entire evidence on record and after critically analysing the submissions advanced and the findings recorded by the learned trial Court, we are of the considered opinion that the judgment of the trial court does not suffer from any illegality or non-appreciation of evidence. The reasoning adopted by the learned trial Judge is quite sound and suitable which do not warrant any interference.
29. We, therefore, find that the trial court has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above. We also do not find that the findings recorded by the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable.
30. We have critically examined the entire judgment given by the learned trial judge and we are in the agreement with the conclusion drawn by the learned trial judge, which deserves no interference from this Court in exercise of power under Section 378 (3) Cr.P.C. The judgment and order is firm-footed and this appeal is devoid of merit and liable to be dismissed.
31. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.
Order Date :- 10.5.2024
LN Tripathi
