Allahabad High Court
State Of Up vs Deepak S/O Suresh Chandra Kashyap on 4 March, 2025
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved On: 07.01.2025
Judgment Delivered On: 04.03.2025
Neutral Citation No. - 2025:AHC:29099-DB
Court No. - 46
Case :- GOVERNMENT APPEAL No. - 1212 of 2024
Appellant :- State of U.P.
Respondent :- Deepak S/O Suresh Chandra Kashyap
Counsel for Appellant :- A. K. Sand
Counsel for Respondent :- Sushil Shukla
Hon'ble Rajiv Gupta,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Delivered by Hon'ble Rajiv Gupta, J.)
1. The present Government Appeal under Section 378(3) Cr.P.C. along with an application for leave to appeal has been filed against the impugned judgment and order dated 08.12.2023 passed by Additional Sessions Judge, Court No.9, Kanpur Nagar passed in Sessions Trial No. 492 of 2018 (State of U.P. Vs. Deepak), arising out of Case Crime No. 362 of 2018, under Sections 498-A, 304-B IPC and Section 3/4 of D.P. Act, Police Station Panki, District Kanpur Nagar, whereby the accused-opposite party has been acquitted of all the charges framed against him.
2. We have heard Shri Jitendra Kumar Jaiswal, learned AGA for the State/appellant, Shri R.P. Singh Chandel, Advocate holding brief of Shri Shushil Shukla, learned counsel for the accused-opposite party at length and perused the trial court record.
3. The prosecution case, as unfurled in the FIR, lodged on 28.07.2018, based on a written report, at the instance of one Haribabu, first informant and father of the deceased, it is alleged that accused-opposite party Deepak Kashyap was married with his daughter on 28.11.2017 and at the time of marriage, he had given sufficient dowry in the form of Rs.1,00,000/- cash, one motorcycle, double bed, sofa and other household articles. After the marriage, his daughter reached her matrimonial home, however, her in-laws including husband Deepak, father-in-law Suresh Chandra Kashyap, mother-in-law Saraswati Devi were dissatisfied with the dowry and they started making additional demand of dowry of Rs.2,00,000/- cash and one golden chain. On the non-fulfillment of their demand of additional dowry, they started torturing and maltreating his daughter. It is further alleged that when he was unable to fulfill the demand of additional dowry, the accused persons continued torturing her and maltreating her, despite repeated persuasions made by him not to torture or maltreat her.
4. It is further alleged in the FIR that on 18.07.2018 around 09:00 p.m. in the night, the victim made a complaint to him over phone that her husband and in-laws may commit some untoward incident for eliminating her on account of non-fulfillment of additional demand of dowry and on the very next day i.e. on 19.07.2018 at about 06:30 a.m. in the morning, the first informant received a phone call from his son-in-law that his daughter got electrocuted and is admitted in the Hallett Hospital. It is further alleged that when the informant reached at the Hallett Hospital, he found the dead body of his daughter lying outside the emergency room. It is further alleged that on account of his inability to fulfill the demand of additional dowry, his daughter has been done to death by electrocuting her.
5. Perusal of the record shows that after the death of the victim on 19.07.2018 in L.L.R. Hospital, where she was taken for medical treatment, an information was sent at Police Station Panki about the death of the deceased and on the basis of the said information, Naib Tehsildar, Sadar, Kanpur Nagar reached the mortuary and conducted an inquest on the person of the deceased.
6. While conducting the inquest, the first informant Haribabu and his daughter Kumari Archana were also present and were nominated as inquest witnesses. The inquest report was prepared in their presence by P.W.7 Ajeet Kumar Singh, Tehsildar, who thereafter prepared the other relevant documents namely photo-lash, challan-lash, letter to R.I. etc. and thereafter wrapped the body in a cloth, sealed and prepared the sample seal, which have been proved and marked as Exts. Ka-9, Ka-10, Ka-11 and Ka-12. After conducting the inquest, the dead body was sent for post-mortem.
7. An autopsy was conducted on the person of the deceased on 19.07.2018 by P.W.6 Dr. Kripa Shankar at 04:30 p.m. The Doctor had noted electric burn wound of entry 2.0 x 2.0 c.m. back of right arm 2.0 c.m. above to right elbow joint and electric burn exit wound 5.0 x 4.0 c.m. on anterior aspect of left forearm 4.0 c.m. below to left elbow joint. The cause of death has been noted to be shock due to electrocution. After conducting the autopsy, the dead body of the victim was handed over to the family of the deceased, who conducted her cremation in the presence of her father and other family members. Till the time of cremation, no complaint whatsoever was raised by the father or other family members of the deceased regarding the accidental death of the deceased, however, after lapse of four days, a written application was filed by the father of the deceased Haribabu complaining about the unnatural death of the deceased at the hands of her husband and in-laws.
8. Consequently, an FIR was registered at Police Station Panki, District Kanpur Nagar vide Case Crime No.362 of 2018, under Sections 498-A, 304-B IPC and Section 3/4 of D.P. Act against accused-opposite party Deepak, his father Suresh Chandra Kashyap and mother Saraswati Devi. After registration of the said FIR, corresponding G.D. entry was drawn by P.W.1 Constable Ruby Kumari vide G.D. Entry No.41. After registration of the case, its investigation was entrusted to P.W. 4 Rajesh Kumar, C.O., who visited the place of incident on 01.08.2018 and recorded the statement of the first informant Haribabu and Uma Devi, mother of the deceased and on their pointing out prepared the site plan.
9. After collecting the relevant materials, the Investigating Officer concluded the investigation and submitted the charge-sheet only against accused-opposite party Deepak, however, the other family members were exonerated. On the basis of the said charge-sheet, the learned Magistrate had taken cognizance. Since the case was exclusively triable by the court of Sessions, committed the case to the court of Sessions, where it was registered as Sessions Trial No.492 of 2018. It was transferred to Additional Sessions Judge, Court No.3 for trial, therefrom.
10. The trial court, on its turn, on 03.12.2018, framed the charges against the accused-opposite party under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act and in the alternate, a charge under Section 302 IPC was also framed against him. The said charges were read out and explained to the accused-opposite party, who abjured the said charges, pleaded not guilty and claimed to be tried.
11. The prosecution, in order to prove the guilt against the accused-opposite party, produced P.W.1 Ruby Kumari, who, on the basis of the written report, marked as Ext.Ka-3, registered the FIR and drawn the chik FIR, marked as Ext. Ka-1 and its corresponding G.D. Entry, marked as Ext. Ka-2, P.W.2, Haribabu Kashyap, first informant and father of the deceased, P.W.3 Vishal Kashyap, brother of the deceased, P.W.4 Rajesh Kumar, C.O., Investigating Officer, P.W.5 Uma Devi, mother of the deceased, P.W.6 Dr. Kripa Shankar, Medical Officer, who conducted autopsy on the person of the deceased and proved the post-mortem report, P.W.7 Ajeet Kumar Singh, Tehsildar, who conducted the inquest and prepared other relevant documents and proved the same. In addition to it, the prosecution also produced number of documents, which were duly exhibited and proved.
12. After recording the testimonies of the prosecution witnesses, the statement of accused-opposite party was recorded under Section 313 Cr.P.C, in which, the accused-opposite party categorically stated that her parents-in-law, just to blackmail him has falsely lodged the instant case and accidental death of the victim has been given the colour of dowry death and he is innocent. He further stated that he had not demanded any additional dowry nor maltreated or tortured his wife for the non-fulfillment of the same and both husband and wife had sweet relations. The accused-opposite party himself, in his defence, has entered in the witness box and examined himself as a defence witness to show his innocence in the matter.
13. Learned Additional Sessions Judge, Kanpur Nagar after thrashing the evidence and critically analysing it, acquitted the accused-opposite party from all the charges framed against him and he was set at liberty.
14. Aggrieved by the said judgment and order, the instant Government Appeal under Section 378 (3) Cr.P.C. on behalf of the State/appellant has been preferred along with an application for leave to appeal.
15. Learned State Counsel relying upon the prosecution witnesses has submitted that the trial court has failed to appreciate the evidence in its true perspective and acquitted the accused-opposite party by wrong appreciation of the evidence available on record. Findings recorded by the trial court in the impugned judgment and order are perverse and against the record warranting interference by this Court.
16. The said submissions have vehemently been countered by the counsel for the accused-opposite party. He has submitted that against the same impugned judgment and order acquitting the accused-opposite party, a Criminal Appeal u/s 372 Cr.P.C. No.184 of 2024 (Haribabu Vs. State of U.P. and Another) was preferred before this Court and this Court after hearing the counsel for the first informant as well as learned AGA had dismissed the said appeal vide its judgment and order dated 23.04.2024. The said order has become final as the said order has not been challenged before any superior court either by the first informant Haribabu or by the State. He has further submitted that since the appeal by the Co-ordinate Bench has already been dismissed, which order has also become final, therefore, based on the said facts and circumstances, the present Government Appeal is also liable to be dismissed outrightly.
17. Since this appeal is 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 and approach to be adopted while dealing with an appeal against acquittal.
18. In Jafarudheen and others vs. State of Kerala, 2022 SCC Online SC 495, reiterating the principle on the subject the Hon'ble Apex Court reminded to the Courts as extracted below:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
19. In Mohan alias Srinivas alias Seena alias Tailor Seena vs. State of Karnataka, (2022) 12 SCC 619, the Hon'ble Apex Court held as hereunder:
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
20. In Atley v. State of U.P., 1955 Cri. LJ 1653, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same.
21. The Hon'ble Apex Court in the case of Bannareddy v. State of Karnataka, (2018) 5 SCC 790, has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and held as under:
"26. The High Court should not have re-appreciated 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".
22. In Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, the Hon'ble Apex Court observed vis-a-vis the powers of an appellate court while dealing with a judgment of acquittal and held as under:
"7. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
23. In Rajendra Prasad v. State of Bihar, (1977) 2 SCC 205, a 3-Judge Bench of the Hon'ble Apex Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice.
24. In the light of the submissions made by learned counsel for both the sides, we have carefully gone through the evidence available on record, analysis and appreciation thereof and conclusion arrived at by the trial court in the impugned judgment and order dated 08.12.2023.
25. In the case of Kashmir Kaur Vs. State of Punjab reported in AIR 2013 SC 1039, the Hon'ble Apex Court has succinctly summarised the provisions relating to Section 304-B IPC and 113-B of Indian Evidence Act, which reads as under:-
"i) To attract the provisions of Section 304B IPC, the main ingredient of the offence to be established is that soon before the death of the deceased, she was subjected to cruelty and harassment in connection with the demand of dowry.
ii) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.
iii) Such death occurs within seven years from the date of her marriage.
iv) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.
v) Such cruelty or harassment should be for or in connection with demand of dowry.
vi) It should be established that such cruelty and harassment was made soon before her death.
vii) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.
viii) Therefore, the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.
ix) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B.
x) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied.
xi) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied, it will be called dowry death and by deemed fiction of law, the husband or the relatives will be deemed to have committed that offence."
26. To prove the alternative charge of Section 302 I.P.C., the prosecution has to prove that accused-opposite party intentionally caused the murder of the deceased.
27. To establish the offence under Section 3 of Dowry Prohibition Act, the prosecution has to prove that demand of dowry was made by the accused-opposite party and they received dowry as a result of demand or that the accused persons made abetment for demand of dowry.
28. To establish the offence under Section 4 of Dowry Prohibition Act, the prosecution has to establish that demand for dowry was made by the accused-opposite party.
29. In order to appreciate the controversy in question and determine the correctness of the conclusions recorded by the trial Court, when we go through the evidence in the instant case, we find that the incident in the present case had occurred on 19.07.2018, the information in respect of which was immediately given to P.W.2 Haribabu, who on getting the said information reached the hospital and found her daughter lying dead there. After her death, a telephonic information was sent to the Police Station Panki regarding the incident and on the basis of the said incident, the Naib Tehsildar, P.W.7 reached the mortuary and in presence of the first informant Haribabu and her daughter Kumari Archana, the inquest was conducted on the person of the deceased.
30. After the inquest, the dead body was sent for post-mortem, which was conducted by P.W.6 Dr. Kripa Shankar, Medical Officer, who, in his testimony, has pointed out two ante mortem injuries found on the person of the deceased and in his opinion has stated that the victim died on account of shock, as a result of electrocution. After the post-mortem, the dead body was handed over to the family members of the deceased and it was cremated in presence of the first informant and other family members.
31. Till this stage, no grievance was raised by the first informant or his other family members, however subsequently, after about nine days of the incident on 28.07.2018, an FIR was lodged alleging therein that on account of non-fulfillment of demand of additional dowry by the accused-opposite party and his other family members, the victim was done to death. The said FIR has seen light of the day after a delay of nine days for which there is no plausible explanation has been set forth by the first informant or his family members.
32. Moreover, in the FIR general, vague and omnibus allegations of additional demand of dowry and torture has been alleged and for the non-fulfillment of the same, the victim is said to have been done to death. The Police after thoroughly investigating the matter had submitted the charge-sheet only against Deepak Kashyap, however, all other family members of the husband were exonerated.
33. During the course of trial, the testimony of P.W.2 Haribabu, father of the deceased, P.W.3 Vishal Kashyap, brother of the deceased and P.W.5 Uma Devi, mother of the deceased was recorded as witnesses of fact, who in their testimony have stated that on account of non-fulfillment of additional demand of dowry, the victim has been done to death by electrocuting her, however, when we go through the testimony of P.W.6 Dr. Kripa Shankar, we find that he in his testimony has clearly stated that the deceased sustained two injuries on her person on right elbow 2 c.m. above on the rear side is wound of entry of the burn of electrocution and its corresponding burn injuries over the left forearm in the front side of left elbow, wound of exit. Except this, there is no other injury found on her person.
34. When we go through the entire evidence recorded during the course of trial, we find that the instant case has been cooked up and concocted with much deliberations and consultations after ten days of the incident though even at the time of inquest, the family members of the deceased were very well present and participated in the inquest proceedings and the post-mortem, the vital delay in filing the FIR has not at all been explained.
35. Further, when we go through the entire evidence, we find that the entire prosecution story is nothing but figment of imagination. The wife of the accused-opposite party, in fact, got electrocuted while mopping the floor and touching the cooler, consequent to which, this unfortunate incident took place, however, by giving colour to the whole incident, the family members of the deceased after ten days of the incident with oblique motive got the instant case cooked up and concocted.
36. It is well settled principle of law, as laid down by the Hon'ble Apex Court in Hira Lal and Others Vs. State (Govt. of NCT) Delhi, (2003) 8 SCC 80, wherein it has been held that the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of 'death occurring otherwise than in normal circumstances'.
37. In the instant case, the prosecution has miserably failed to rule out the possibility of an accidental death of electrocution and as such, in view of the settled principle of law, the view taken by the trial court cannot be said to be perverse or illegal and therefore, warrant no interference by this Court.
38. The trial Court after thoroughly scrutinising the evidence and critically examining the evidence and material on record had acquitted the accused-opposite party from all the charges framed against him vide impugned judgment and order dated 08.12.2023, which has even been upheld by the Co-ordinate Bench of this Court vide order dated 23.04.2024 in Criminal Appeal u/s 372 Cr.P.C. No. 184 of 2024 (Haribabu Vs. State of U.P. and Another) and the said order has become final as no further appeal has been preferred before any higher Court.
39. It is settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasoning, when the reasons assigned by the trial Court are found to be just and proper.
40. In the case of State of Karnataka vs. Hemareddy, AIR 1981, SC 1417, it has been held by the Hon'ble Apex Court as under :
" ... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
41. The Hon'ble Apex Court in Shivasharanappa and others vs. State of Karnataka, JT 2013 (7) SC 66 has held as under:
"That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."
42. The Apex Court in Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SC 750, has held that if the appellate court is reversing the trial court's order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of accused, and to the principle that such a presumption stands reinforced, reaffirmed and strengthened by the trial court and in Samsul Haque v. State of Assam, (2019) 18 SCC 161 held that the judgment of acquittal, where two views are possible, should not be set aside, even if view formed by appellate court may be a more probable one, interference with acquittal can only be justified when it is based on a perverse view.
43. In view of the aforesaid discussions, we are of the view that the learned trial Court has given logical and plausible findings in the impugned judgment and has rightly concluded that the prosecution has miserably failed to prove its case beyond reasonable doubt. The judgment and order of the trial court under judicious scrutiny is just and proper and carries no perversity therein, hence, it does not warrant any interference by this Court. The reasoning adopted by the learned Trial Judge is based upon proper application of judicial mind. No illegality or infirmity is found in the impugned judgment and order and it needs no interference by this Court.
44. In view of the foregoing discussions, we are of the opinion that the application for leave to appeal filed by the State has no force and it is, accordingly, dismissed. Consequent thereto, the instant Government Appeal also stands dismissed.
45. Let a copy of this judgment and order be forwarded to the court concerned alongwith trial court record for information and necessary compliance.
Order Date :- 04.03.2025
Subham
