State Of Up vs Smt.Nirmala Devi W/O Pooranmal And 02 … on 16 January, 2025

Allahabad High Court

State Of Up vs Smt.Nirmala Devi W/O Pooranmal And 02 … on 16 January, 2025

Author: Rajiv Gupta

Bench: Rajiv Gupta

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:6802-DB
 
Reserved on 19.12.2024
 
Delivered on 16.01.2025
 
Court No. - 46
 
Case :- GOVERNMENT APPEAL No. - 764 of 2024
 
Appellant :- State of U.P.
 
Respondent :- Smt.Nirmala Devi W/O Pooranmal And 02 Others
 
Counsel for Appellant :- Shiv Kumar Pal
 

 
Hon'ble Rajiv Gupta,J.
 

Hon’ble Nalin Kumar Srivastava,J.

(Per : Nalin Kumar Srivastava, J.)

Ref : Criminal Misc. Application (Leave to Appeal)

1. The present government appeal under Section 378 (3) CrPC has been filed against the impugned judgement and order dated 24.3.2022 passed by the Additional Sessions Judge, Court No.7, Kanpur Nagar in S.T. No. 153 of 2018, arising out of Case Crime No.15 of 2018 under Sections 498-A, 304-B IPC and Section ¾ Dowry Prohibition Act, Police Station Panki, District Kanpur Nagar, whereby accused-respondents Smt. Nirmala Devi, Pooranmal and Gaurav Arya were acquitted.

2. We have heard Shri Jitendra Kumar Jaiswal, learned AGA appearing for the State – appellant at length.

3. The prosecution story, in nutshell, as narrated in the F.I.R. lodged by Sushil Baswal, is that the marriage of his sister Anita Khatik was solemnized with Gaurav Arya on 7.09.2014 but her in-laws started causing harassment and cruelty to her for demand of additional dowry and on 14.1.2018 after killing her the accused persons set her ablaze. F.I.R. was lodged for the offences under Sections 498-A, 304-B IPC and ¾ Dowry Prohibition Act and investigation started. After completing necessary formalities, the Investigating Officer submitted charge sheet against accused respondents. After submission of charge sheet, the case was committed to the Court of Sessions. Charges under Sections 498-A, 304-B IPC and ¾ Dowry Prohibition Act and alternate charge under Section 302 IPC against the accused persons were framed by the Court of Sessions to which they denied and insisted to be tried. Trial started and during trial, the prosecution produced as many as eight prosecution witnesses. In addition to this, the prosecution also produced a number of documents, which were duly exhibited and proved.

4. After conclusion of the prosecution evidence, incriminating evidence and circumstances were put to the accused in their statements under Section 313 CrPC. They claimed the entire prosecution evidence as false and fabricated and stated that the deceased’s family members used to put pressure upon her for giving money to them, she was an obstinate lady and very much perturbed with their demands. She was not subjected to cruelty and harassment by any of her in-laws. It was also stated that deceased and her husband were living separately from other family members at Bhopal.

5. In defence evidence, D.W.1 Arvind Kumar was examined to show the innocence of the accused respondents. The learned Additional Sessions Judge, Kanpur Nagar after thrashing the evidence and critically analysing it acquitted the accused respondents from all the charges levelled against them and they were set at liberty.

6. Aggrieved with the said judgement and order, the instant Government Appeal under Section 378 (3) Cr.P.C. on behalf of the Sate / appellant has been preferred.

7. Learned State Counsel relying upon the prosecution evidence submitted that the trial court has failed to appreciate the evidence in right perspective and acquitted the accused respondents by misappreciating and misreading 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.

8. Since this is an appeal against 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.

9. 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.”

10. 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.

11. 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.

12. 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”.

13. 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 like this :

“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.”

14. In the light of the submissions made by learned counsel for the State/appellant, 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 24.3.2022.

15. To bring home the charges levelled against the accused persons, the prosecution relied upon oral testimony of as many as eight witnesses. PW-1 Sushil Banswal, the informant / brother of the deceased, PW-2 Smt. Kamla Devi, the mother of the deceased, PW-3 Dr. Jai Prakash Gupta, PW-4 lady constable Rubi Kumari, PW-5 Suresh Narain Mishra, PW-6 Rajesh Kumar, second I.O., PW-7 Dr. Pravin Kumar Srivastava and PW-8 Navin Kumar Singh, first I.O., have been tested as witnesses.

16. The learned trial court at the outset mentioned the essential ingredients to constitute an offence under Section 304-B IPC and found that the issue involved in this matter is as to whether the deceased was tortured physically and mentally by her in-laws on account of demand of additional dowry and further her dowry death was caused by them.

17. The essential ingredients to take a matter within the purview of Section 304-B IPC have been explained by the Hon’ble Apex Court in umpteen of cases viz. Satveer Singh Vs. State of Punjab, (2001) 8 SCC 633, Shanti Vs. State of Haryana, (1991) 5 SCC 371 and Kansraj Vs. State of Punjab, (2000) 5 SCC 207 and so on, which are as follows :

(i) death of woman occurring otherwise than under normal circumstances,

(ii) such death should be occurred within 7 years of her marriage and

(iii) soon before her death she should have been subjected to cruelty and harassment and

(iv) such cruelty and harassment should be in connection with any demand of dowry.

When the above pre-requisitions are established only then the husband or his relatives who caused the deceased such cruelty and harassment shall be presumed to be guilty of offence under Section 304-B I.P.C.

18. It is apparent on the face of record and is an admitted fact as well that the marriage of the deceased was solemnized on 7.9.2014 with the respondent no.3 and she died on 14.1.2018, hence, there was no controversy on the point that the death of the deceased was caused within seven years of her marriage.

19. So far as the allegations regarding cruelty and harassment on account of demand of dowry and death of the deceased occurring otherwise than under normal circumstances are concerned, the trial court laid down emphasis upon the testimony of PW-1 & PW-2 but a careful scrutiny of their testimony shows that they failed to corroborate the prosecution version at all.

20. PW-1, the informant / brother and PW-2, mother of the deceased, in their examination-in-chief try to support the prosecution version and also state that after marriage of Anita, her in-laws started demanding one gold chain and a motorcycle as additional dowry and she was subjected to cruelty and harassment in connection with the said demand. Anita had told them about the said demands several times. They also state that she was set at fire due to non-fulfillment of the alleged demands. However, in her cross-examination PW-2, the mother of the deceased, made some twisted statements and stated that she was unable to disclose the date and time as to when her daughter disclosed the factum of cruelty and harassment caused by her in-laws and further she had also been unable to tell as to when she had met lastly with her daughter. PW-1, the informant, in the same fashion does not support the prosecution case in his cross-examination. He explains the fact that his sister was living with her husband at Bhopal and both were living happily with each other. He also states that both the parties are poor and belong to labour class. He never moved any application anywhere with regard to cruelty and harassment of her sister. He also clarifies that small disputes in a family are very common and there is nothing serious in this. He further admits that the allegation for demand of motorcycle as dowry was not mentioned by him in the written report and he did not even disclose it before the Investigating Officer and for the first time in the Court he was disclosing the fact of demand of motorcycle and cruelty and harassment and further he states that he is not in a position to tell that her sister was regularly harassed in her matrimonial house or not.

21. PW-3, Dr. Jai Prakash Gupta, who performed the post mortem of the deceased, states that the cause of death of the deceased was ante mortem burn injuries.

22. PW-4 Constable Rubi Kumari is the scribe, who proves the chik F.I.R. and registration G.D. as Ext. ka-3 and Ext. ka-4 respectively.

23. PW-5 Suresh Narain Mishra performed the inquest proceeding and proves the inquest report as Ext. ka-5 and other papers relating to post mortem as Ext. ka-6 to ka-9.

24. PW-6 C.O. Rajesh Kumar proves the proceeding of investigation and charge sheet as Ext. ka-10.

25. PW-7 Dr. Praveen Kumar Srivastava, Technical Officer, inspected the spot and proves the certificate under Section 65-B of Evidence Act as Ext. ka-11. He also collected some photographs and clothing related to the deceased which were proved as material exhibits.

26. PW-8 Navin Kumar Singh is the first I.O. He prepared and proved the site plan as Ext. ka-12 and also performed some investigation proceeding.

27. The Investigating Officer, PW-8, in his cross-examination fairly admits that the deceased was taken to the hospital by her in-laws and the informant in his statement under Section 161 CrPC never told him for demand of motorcycle and golden chain as additional dowry by the accused respondents and no such mention for demand of motorcycle and golden chain has been made in Ext. ka-1.

28. Hence, the prosecution evidence is very shaky and inconsistent on the point of demand of motorcycle and golden chain as additional dowry and harassment caused to the deceased in connection with the said demand.

29. The learned trial court in a legal manner also scrutinized the oral evidence of DW-1 Arvind Kumar adduced by the defence side. DW-1 is the neighbourer of the accused respondents who states that the family members of the deceased after her death demanded about Rupees Ten Lakhs from the accused respondents and when they were offered to take back the ‘stridhan’ only they falsely implicated all the accused respondents in the dowry death case.

30. The evidence on record reveals that the husband of the deceased was already having a motorcycle, hence, there was no justification for demand of another motorcycle as dowry by the accused respondents. The evidence on record also shows that the deceased was living happily with her husband at Bhopal, hence, there was also no justification for her other in-laws to make any demand of additional dowry from her and also to cause harassment and cruelty to her in connection with the said demand. No date, time, month or year was disclosed by PW-1 and PW-2 in their deposition before the Court as to when the deceased told them about the demand of additional dowry and cruelty caused to her and this fact also hits the ingredient of ‘soon before’ which is essential to prove in a case relating to dowry death. The learned trial court has rightly concluded that the deceased was a stubborn lady and and had been very much perturbed and under stress with her own family members on account of their demand of money from her and in anguish she herself committed suicide by burning or her death might be a result of accidental burning. The conclusions arrived at by the learned trial court in the impugned judgment and order are based upon the evidence on record.

31. The learned trial court also discussed the provisions of Section 113-B of the Evidence Act, which is extracted herein below :

“113-B. Presumption as to dowry death. — When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.

Explanation – For the purposes of this section, “dowry death” shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).”

32. Referring the decisions of Hon’ble Apex Court in State of Rajasthan vs. Tej Bahadur, 2005 SCC 218 and Sher Singh @ Partapa vs. State of Haryana, 2015 (1) JIC 352 (SC) the trial court proceeded to hold that this is the bounden duty of the prosecution to prove its case at least prima facie against the accused respondents in respect of the essential ingredients to constitute the offence under Section 304-B IPC and only then the presumption under Section 113B of the Evidence Act arises against the defence side. Since the prosecution failed to prove the aforesaid ingredients even prima facie no legal presumption arose against the accused respondents. Since the evidence adduced by the prosecution with regard to demand of dowry and cruelty and harassment by the in-laws of the deceased is very shaky and inconsistent, no presumption of dowry death arises against the accused respondents as a result of which the burden to prove does not shift upon the defence and it remains upon the shoulders of the prosecution. Since the demand of dowry, the crucial fact in this matter, has not properly been proved by the prosecution, the unnatural death of the deceased by burning also negates the theory of dowry death and leans towards the possibility of accidental or suicidal death by burning. The statement of PW-2 also denotes that the family members of the deceased were anguished and angry for the death of the deceased by burning which led them to lodge the false case against the accused respondents. The learned trial court on the basis of evidence on record and in the facts and circumstances of the case rightly concluded that there is no convincing evidence on record regarding the demand of dowry and cruelty and harassment caused to the deceased for the said demand by her in-laws and further soon before her death she was subjected to such cruelty, rather her death was a result of accident or suicide but not a dowry death at all. The evidence on record in respect of dowry death rendered by the prosecution falls short of proving the primary and essential elements of the offence.

33. Hence, on the basis of the evidence on record it is explicitly clear that the prosecution miserably failed to prove the essential ingredients to establish the offence under Section 304-B IPC against the accused respondents. The death of the deceased was an accidental / suicidal death by burning. The evidence on record further reveals that there was no cogent evidence for demand of additional dowry and cruelty and harassment caused to the deceased. It is true that the death of the deceased occurred within seven years of her marriage but the other ingredients to establish the offences, as alleged against the accused respondents, are not established on the basis of evidence on record and since the basic ingredients are not proved, no presumption under Sections 106 or 113-B of the Evidence Act may be drawn against the accused respondents. At the same time the prosecution failed to adduce clinching evidence against the accused respondents to prove additional charge under Section 302 IPC. The said charge was based on circumstantial evidence and no relevant circumstance was proved by the prosecution nor the chain of circumstances was established.

34. 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 judgement 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 and no illegality, infirmity or perversity is found in the impugned judgment and order.

35. Thus, the application moved by the appellant – State to grant leave to appeal for the reasons discussed here-in-above is not liable to be allowed and the said prayer is refused.

Re : Government Appeal

36. Since the application for grant of leave to appeal has been disallowed, the government appeal is dismissed at this stage.

Order Date :- 16.01.2025

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