Allahabad High Court
State Of U.P. vs Smt. Suman Mishra And 2 Others on 28 February, 2017
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 52 Criminal Misc. (Leave to Appeal) Application No. Nil of 2017 IN Case :- GOVERNMENT APPEAL No. - 1002 of 2017 Appellant :- State Of U.P. Respondent :- Smt. Suman Mishra And 2 Others Counsel for Appellant :- G.A. Hon'ble Harsh Kumar,J.
Heard learned A.G.A. and perused the record.
The application for leave to appeal has been moved for permission to file the appeal against the judgment and order dated 28.10.2016 passed by Additional Sessions Judge, Court No.17, Kanpur Nagar in Criminal Appeal No.42 of 2011, acquitting the respondents from the charges under Sections 323, 498-A I.P.C.
The prosecution case in brief is that the F.I.R. was lodged by Om Prakash Shukla with the allegation that her daughter Neena was married to Ajay Mishra on 15.2.2002 and Ajay Mishra committed suicide on 4.10.2002 whereafter the accused persons being in-laws committed mar-pit with his daughter and threatened her of ousting from the house. On 5.4.2003 his daughter telephonically informed him upon which on 6.4.2003 he went to fetch his daughter, who was beaten on that day also by all the accused persons and was threatened of life keeping all Stridhan of his daughter. It is also alleged that on 4.4.2005 when his daughter visited her plot no.9, all the accused persons abused her and applied electric current in the house with an intention to cause her death.
The charges under Sections 498A, 323, 504, 506, 406 I.P.C. were framed against all the accused persons. The trial was decided on 19.4.2011 and by the impugned order dated 19.4.2011 the Additional Chief Metropolitan Magistrate, Kanpur Nagar acquitted the accused persons from the charges under Sections 504, 506 and 406 I.P.C. but convicted them under Sections 498A and 323 I.P.C. Feeling aggrieved with the conviction order, the accused persons filed Criminal Appeal No.42 of 2011 before the Sessions Judge, Kanpur Nagar. Due to death of appellant Mool Shanker Mishra pending appeal, the appeal in his respect was abated and thereafter has been disposed of by the impugned judgment and order dated 28.10.2016 by Additional Sessions Judge, Court No.17, Kanpur Nagar allowing the appeal and setting aside the conviction order, acquitting all accused persons from the charges under Sections 323, 498A I.P.C. Feeling aggrieved, the State has preferred this appeal against acquittal order with an application under Section 378(3) Cr.P.C. for leave to appeal.
Upon hearing learned A.G.A. and perusal of two judgments passed by A.C.M.M. and Additional Sessions Judge, Kanpur Nagar, I find that there is no whisper in the F.I.R. that there was any demand of dowry and any cruelty for non-fufilment of alleged demand of dowry. The only case is that after death of Ajay Mishra, the son-in-law of first informant, the daughter of first informant was not permitted to live in her matrimonial house. There is no injury report on record to support the prosecution version that she was beaten considerably also on 6.4.2003 when the first informant had gone to fetch his daughter. In absence of any medical report, the above contention does not get any corroboration. It has been admitted by the first informant in his statement on oath that plot no.10 was purchased by his son-in-law Ajay Mishra from his own income within 2-4 months of marriage and after death of Ajay Mishra, the sale deed of above property was executed in the name of his daughter on 27.2.2003. He has further admitted that motorcycle which was in the name of his son-in-law was also transferred in the name of his daughter, after death of his son-in-law and regarding plot no.9 the relatives of Ajay Mishra did not want that the plot may be transferred in the name of daughter of fist informant. The trial court has analysed the prosecution evidence in detail and has come to the conclusion that in view of material contradictions, the prosecution evidence is not trustworthy and the prosecution has failed to prove the charges under Section 498A and 323 I.P.C. against the accused persons. Due to death of Mool Shanker Mishra during the appeal, the appeal in his respect was dismissed as abated.
It is settled principle of law that if on one point there can be two views and the trial court by taking one view passes an order of acquittal, the appellate court need not to interfere with order of acquittal merely for the reason that other view may also have been taken unless there is any manifest error of law or perversity in the impugned judgment and the court below has either ignored any evidence or misappropriated any evidence.
It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified".
In view of above material contradictions, I find that the findings given by the appellate court in favour of acquittal are correct. Learned A.G.A. has failed to show that any evidence was ignored or was not considered by the appellate court or there was any material evidence on record which, if would have been taken into consideration, would have resulted in conviction of accused-respondent. The application u/s 378 (3) Cr.P.C. has no force and is liable to be dismissed.
The application u/s 378 (3) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.
Order Date :- 28.2.2017 Kpy