Allahabad High Court
State Of U.P. vs Durgesh Trivedi And Another on 3 August, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- GOVERNMENT APPEAL No. - 8531 of 2009 Appellant :- State of U.P. Respondent :- Durgesh Trivedi And Another Counsel for Appellant :- Govt. Advocate Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Ms. Nand Prabha Shukla, learned AGA appearing for the appellant-State of UP and perused the record.
2. Present government appeal has been preferred against the judgement and order dated 03.08.2009 passed by the Additional District and Sessions Judge, Court No.8, District Kanpur Dehat in Session Trial No. 322 of 2008 (State vs. Durgesh and Another) arising out of Case Crime No. 168 of 2007, under Section 304/34 IPC, P.S. Gajner, District Kanpur Dehat, whereby the accused, who are two in number, have been acquitted from the charges under Sections 304/34 IPC.
3. Prosecution story, in brief, is that the son of the complainant being Shambhu Trivedi alias Vinit Trivedi was residing in front of the house of Durgesh Trivedi at Kamla Tower, Kanpur. The said Durgesh Trivedi and his wife Renu were grabbing all the earnings of the complainant's son. Complainant's son used to alleged that Durgesh and his wife can commit some untoward incident. Complainant-Urmila Trivedi came to know that wife of Durgesh made illicit relationship with her son Shambhu Trivedi, due to which Durgesh and his wife were taking away all the earnings of her son. On 28.04.2006 at about 4.00 pm Durgesh and his wife Renu left complainant's son near crossing of Village Raipur after administering him some poisonous substance. Her son was brought back to village by Chhunuwa Mishra and Devendra Sain from Raipur Crossing. At the residence, her son told in front of other villagers that Durgesh Trivedi and his wife forcibly gave him some poison and left him at Raipur Crossing. On 28.04.2006 villagers admitted the son of the complainant in Hallet Hospital, Kanpur Nagar where he died. Complainant gave an application to the Senior Superintendent of Police, Kanpur Nagar to lodge an FIR but no no heed was paid by the Senior Superintendent of Police then she send an application to Director General of Police, U.P. and on the basis of aforesaid application a First Information Report was lodged and after lodging of the First Information Report Investigating Officer was nominated, who completed all the formalities and submitted a charge sheet against the accused persons and thereafter the case was committed for trial.
4. In support of prosecution case, PW-1- Ram Krishna Trivedi, PW-2-Chhunuwa Mishra, PW-3 Constable 433 Vishram Singh, PW-4-Rajesh Kumar Bajpai, PW-5-Dr. R.L. Maheep, PW-6, Sub Inspector Harinath Singh, PW-7-Sub Inspector Netrapal Singh, PW-8-Sub Inspector Om Prakash Yadav, PW-9-Sub Inspector Basudev Singh, PW-10 Sub Inspector Ramesh Chandra Gautam and PW-11 Radhey Shyam Gautam were produced and examined before the Court below.
5. The judgement of acquittal has been passed on the ground that the prosecution has failed to prove his case beyond reasonable doubt that any offence under Section 304/34 IPC has been made out. It was found that the story as given by the PW-1-Ram Krisha Trivedi, who is the father of the deceased that the accused Durgesh and his wife co-accused Renu administered poison was not proved inasmuch as the prosecution has failed to connect the accused persons with the offence under Section 304/34 IPC. The Trial Court also found that no doubt as per Viscera Report Aluminium Sulfide was found in the body of the deceased, however, there was no allegation that the accused persons have abeted the deceased to commit suicide and even no evidence in this regard was given. The Trial Court also found that there was a delay in lodging of the FIR, therefore, the benefit of doubt has been given to the accused respondents. The Trial Court has also observed that the story of illicit relationship between the deceased and the co-accused Renu was also not proved.
6. Challenging the impugned judgment, Ms. Nand Prabha Shukla, learned AGA submits that there was cogent evidence to convict the accused persons herein. She submits that judgment of acquittal has been passed merely on the ground of delay in lodging of the FIR whereas the same has been properly explained. She further submitted that the Viscera Report clearly reflected that poison was administered to the deceased and therefore, judgment passed by the Trial Court is perverse in nature and is liable to be reversed.
7. We have considered the submissions and have perused the record.
8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
9. 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"
10. 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.
11. 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.
12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
13. On perusal of record we find that PW-1-Ram Krishna Trivedi, who is the father of the deceased in his statement stated that on 28.04.2006 at about 4.00 pm the accused- Durgesh and his wife co-accused- Renu left his son near the crossing of Raipur Village after administering poison and the villagers admitted his son in the Hallet Hospital, Kanpur Nagar where he died. It is noticed that the alleged incident is dated 28.04.2006 and the post mortem report was conducted on 29.04.2006 whereas on 11.05.2006 the informant has written a letter to the Director General of Police for lodging of the FIR, which was ultimately registered on 04.08.2006, therefore, we find that at least up till 11.05.2006 there was no allegation against the accused person that they have administered poison to the deceased. The story of illicit relationship between the deceased and the co-accused Renu is also not proved from the record, therefore, merely because poison was found in the Viscera cannot be a ground to hold that the accused persons were involved in administering poison. That apart, we further find that PW-2-Chhunuwa Mishra had turned hostile and nothing adverse came out in his cross examination. The First Information Report was registered under Section 304/34 IPC, however, after investigation a charge sheet was submitted under Section 306 IPC. On perusal of records we also find that PW-6-Harinath Singh, Investigating Officer has recorded statements of witnesses namely Urmila Trivedi (mother of the deceased), Ram Krishna Trivedi (PW-1-father of the deceased), Chhunuwa Mishra (PW-2) and Devendra Saini. PW-6 in his statement has categorically stated that the PW-1 in his cross examination has categorically deposed that his wife-Urmila Trivedi has never informed him that earlier she has approached the police but no FIR was registered and she was also not informed him that she has also given any letter to the Senior Superintendent of Police for registering the First Information Report. PW.7-Sub Inspector Netrapal Singh in his cross examination had stated that he did not find any witness to allege that the accused persons herein were involved in the incident or they administered poison to the deceased. On the contrary he stated that during the investigation he was informed that the deceased himself had consumed poison and for this reason the chargesheet under Section 306 IPC was submitted. The Investigating Officer has further stated that he had taken the statements of landlord-Pyarelal Jaiswal, tenant-Annpurna, witness-Shushila, witness-Ramesh Mishra, witness-Baratilal, witness-Babloo and witness-Dileep Kumar and found that there was no allegation that any poison was administered at the residence of the accused persons and in the cross-examination he had stated that PW-1-Ram Krishna Trivedi- informant in his statement has stated that he was not aware that his son Shambhu Trivedi was living in the house of accused as he has never visited his house. It was further found that PW-4-Rajesh Kumar Vajpayee was a driver and a resident of a different place and has also not proved anything to support the prosecution story. Even so far as the offence under Section 306 IPC (Abetment) is concerned, there was no evidence whatsoever to prove the any such offence is committed. Moteso, suspicion however grave it may be, cannot take the place of proof.
14. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below 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.
15. 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) has been rejected by order of this date, the present government appeal is also dismissed.
Order Date :- 3.8.2022 Nitendra