Pintoo Kumar vs State Of U.P. And Anr. on 28 July, 2022

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Allahabad High Court

Pintoo Kumar vs State Of U.P. And Anr. on 28 July, 2022

1. Challenge in this appeal purported to be under Section 372 of the Criminal Procedure Code, 1973 (in brevity 'CrPC') is to the judgement and order dated 18.7.2019 passed by the Additional Sessions Judge/Fast Track Court No. 1, Ghazipur in Sessions Trial No. 183 of 2017 (State vs. Ajay Kumar) in Case Crime No. 1057 of 2017, under Sections 498A, 304B and alternate Section 302 IPC read with Section 3/4 Dowry Prohibition Act, Police Station Sadiyabad, District Ghazipur whereby the accused herein has been acquitted.

2. This appeal was presented before this Court on 20.8.2019 and this Court by virtue of the order dated 22.8.2019 entertained the appeal by calling for the record and issuing notices to the accused herein. Thereafter, the matter was listed on 26.4.2022 wherein following order was passed:

"Matter taken up. None present for the appellant. Learned A.G.A. is present for the State. List this matter on 20th May, 2022 for hearing on admission. If on the next date fixed in the matter none will appear on behalf of the appellant, the Court will proceed to decide the issue involved in this matter at this stage with the help of learned A.G.A."

3. Eventually on 6.7.2022 this Court noticing the non-cooperation of of the appellant in disposal of the present appeal, proceeded to pass the order on 6.7.2022, which is quoted as under:

"Re: Application for Leave to Appeal As already held by this Court in number of cases that leave application filed under Section 378(3) Cr.P.C. is not required in the appeal filed by the victim under Section 372 Cr.P.C. like the present appeal. A reference may be made to the order dated 4.8.2021 passed in Criminal Appeal U/S 372 Cr.P.C. No. 123 of 2021 (Rita Devi vs. State of U.P. and another). As such, the application for leave to appeal stands rejected as not maintainable and/or not required. Re: Appeal List revised. No one is present to press the present appeal. Sri Sadhu Saran, learned counsel for the accused-respondent is present. Since the learned counsel for the appellant was not present on the last date, this Court had already observed that in case non-appears on behalf of appellant, the Court will proceed to decide the issue involved in the matter at this stage with the help of learned AGA. In such view of the matter, it is made clear that in case no one is present to press this appeal, this Court will proceed to consider the appeal for admission with the help of learned AGA as well as learned counsel appearing for the accused respondent. Office is directed to allot regular number to this appeal. List this case in the next cause list."

4. Today when the matter itself has been taken up, learned counsel for the appellant is not present even in the revised call and thus, with the assistance of learned AGA, present appeal is being proceeded to be given its logical end.

5. Essentially, the prosecution case as reflected herein is that one Pintoo Kumar, s/o Sri Nand Lal Ram, r/o Akbarpur (Kabirpur), Police Station Bahariyabad, District Ghazipur is the brother of the deceased Lalta Devi who got married to the accused herein when she was 24 years of age i.e. four years from the date of the occurrence of the incident. On 4.7.2017 the appellant claimed to have received information through telephonic call that the his sister (deceased) was unwell and he immediately proceeded to the house of in-laws of his sister wherein he found his sister lying dead on a cot. According to the appellant, he suspected that his sister was disposed of while being murdered. It was further alleged that the brother-in-law (bahnoi) of the deceased's husband as well as the younger brother of the accused Vijay Kumar jointly committed the said offence while strangulating the deceased with the help of a rope. A written complaint to the said incident was also lodged by the appellant herein, which in fact transformed into lodging of a first information report against the accused herein and Vijay Kumar under Sections 304-B IPC. The first information report was claimed to have been lodged on 4.7.2017 at 9:30 hours. The Investigating Officer was nominated who conducted the investigation and thereafter submitted a charge-sheet purported to be under Sections 498A, 304B IPC read with Section 3/4 Dowry Prohibition Act.

6. The matter was committed to the Sessions. Charges were read over to the accused. The accused herein pleaded not guilty and innocence.

7. The prosecution, in order to substantiate his case, produced the following witnesses:

(a) PW 1 Pintoo Kumar

(b) PW 2 Nand Lal

(c) PW 3 Basanti

(d) PW 4 Head Constable Lalta Yadav

(e) PW 5 Dr. Mahesh Kumar Yadav

(f) PW 6 Dinesh Kumar, Tehsildar

(g) PW 7 Alok Prasad, Circle Officer

8. The learned trial Court by virtue of the judgement and order dated 18.7.2019 acquitted the accused herein in respect of the aforesaid charges, which emanated from the above noted penal sections. Challenging the judgement and order of acquittal, now the appellant informant is before this Court.

9. This Court at the present juncture is occasioned to deal with the judgement of acquittal in the proceedings purported to be under Section 372 CrPC, meaning thereby that while exercising jurisdiction under Section 372 CrPC this Court is to remember the fact that presumption of double innocence is tagged with the accused and thus, this Court cannot interfere in a routine and cursory manner. To put it otherwise, this Court can only exercise its jurisdiction when the judgement is actuated with the vice of perversity and it proceeds towards wrong direction and there are substantive and compelling circumstances so as to exercise the jurisdiction as held by Hon'ble Supreme Court in catena of decisions, all of which need not be referred to as the same would burden in the present judgement. However, a reference may be given to a judgement in the case of Guru Dutt Pathak vs. State of Uttar Pradesh, (2021) 6 SCC 116, paragraphs 14, 15, 16 whereof are quoted as under:

"14. We are conscious of the fact that this is a case of reversal of acquittal by the High Court. Therefore, the first and foremost thing which is required to be considered is, whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Court?

15. In Babu v. State of Kerala (2010) 9 SCC 189, this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paragraphs 12 to 19, it is observed and held as under:

"12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. Stae of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P. (2003) 1 SCC 761, Narendra Singh v. State of M.P. (2004) 10 SCC 699, Budh Singh v. State of U.P. (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P. (2009) 16 SCC 98 and Ram Singh v. State of H.P. (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC

755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "42........(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ''substantial and compelling reasons', ''good and sufficient grounds', ''very strong circumstances', ''distorted conclusions', ''glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P. (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "28.......(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal."

A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." (emphasis supplied)

16. When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: (Babu v. State of Kerala (2010) 9 SCC 199) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v.State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P.(2009) 10 SCC 636)." (emphasis supplied) 7.2.2 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."

10. To begin with the testimony of the prosecution witnesses need to be examined.

11. The appellant informant being Pintoo Kumar who claims to be the brother of the deceased appeared as PW-1 and he has stated that his sister got married to accused Ajay Kumar four years ago. His brother Ashok received a telephonic call that his sister (deceased) was unwell. He accordingly proceeded to the house of in-laws of his sister whereat he found the deceased lying down in a dead condition on a cot. According to PW-1, at that point of time, the accused herein along with his younger brother Vijay Kumar and one Ravindra Kumar were present, however, they did not disclose despite being asked as to how his sister (deceased) went into deep slumber. An apprehension was also gathered by the appellant informant that the accused herein had disposed of his sister as a demand of motorcycle was being made, however, the same was not being acceded to and it became instrumental in strangulating the deceased. He further deposed that he thereafter lodged the first information report.

12. One Nand Lal (PW-2) also stepped into the witness box who is father of the deceased. According to him, marriage of the deceased was solemnized with the accused four years ago and at the time of marriage he had offered various gifts, however, the accused herein demanded motorcycle. He further deposed that when his son Ashok got married and he was gifted a motorcycle, then the accused became stiff while demanding motorcycle, which was given to his son and when the same was refused, then the accused became angry with them and also made comments and it became the sole basis for committing the crime. He further deposed that after the death of his daughter he had gone to the house of in-law of the deceased and the panchayatnama was not prepared in his presence and according to him, the deceased was entangled with a rope, which was surrounded on her stomach and the body of the deceased was not sealed in his presence.

13. As PW-3 the mother of the deceased being Basanti deposed that her daughter got married in the month of June, 2013 and they had given gifts commensurate to their status to the in-laws. She further deposed that in the year 2017 her son got married and he was gifted a motorcycle and the accused herein demanded motorcycle, which was gifted to her son but when the same was refused, then all sorts of harassment regarding dowry was being sought to be made.

14. One Lalta Yadav PW-4 also deposed that he was posted as Head Constable and he being a formal witness proved the first information report.

15. Dr. Mahesh Kumar Yadav appeared as PW-5 and he proved the post-mortem report and according to him, the post-mortem of the deceased was conducted on 5.7.2017, according to which there were ligature marks in the neck of the deceased and the deceased had died approximately 1 ½ a day prior to the conduction of the post-mortem and the death was occasioned on account of hanging.

16. Sri Dinesh Kumar, Tehsildar also appeared as PW-6 and he proved panchayatnama and according to him in the neck of the deceased there were certain injuries, however, the same was not explicit.

17. Sri Alok Prasad, Circle Officer who appeared as PW-7, claimed himself to be the Investigating Officer and according to him, he conducted the investigation.

18. Undisputedly, the event, which became the basis of lodging the FIR culminating into submission of the charge-sheet is dated 4.7.2017 wherein the appellant-informant's brother received telephonic information regarding death of his sister and PW-1 Pintoo Kumar immediately proceeded to the house of in-laws and made an allegation that the accused herein along with his younger brother Vijay Kumar had strangulated with the aid of a rope, which became the basis of the death. In the first information report no. 1057 of 2007, there is no allegation with regard to demand of dowry. Even in fact the statements of the prosecution witness itself go to show that the deceased got married to the accused herein in the month of June, 2013 as stated by PW-3 Basanti who happens to be the mother of the deceased and the entire allegation revolves around the fact that when Ashok (brother of the first informant and the son being PWs 2 and 3) got married, then he was tendered with the gift in the shape of a motorcycle. Further allegation is that the accused demanded the said motorcycle. Thus, the demand of the dowry so sought to be alleged is not relatable to the marriage of the deceased with the accused herein, but the same is referable to a gift, which was even in fact given to the brother of the deceased at a subsequent point of time.

19. It needs to be further noticed that the allegation is with regard to strangulation of the deceased by the accused and his brother. It has come on record that when the marriage of Ashok being the brother of the first informant and of the deceased was fixed, then at that point of time, the accused herein was in Dubai and the deceased used to stay with the accused herein at Bairampur in the house of the accused's maternal uncle (Mama) being Uma Ram. So far as Uma Ram being the maternal uncle of the accused herein is concerned, he is handicapped and that is why the accused along with his wife being the deceased used to stay in Bairampur with the maternal uncle (Mama) in order to take care of him as his mobility was paralyzed.

20. It has further come on record, as per deposition of the prosecution witnesses, that the accused herein was not invited in the marriage of the brother of the first informant Ashok, however, he according to his own wish attended the marriage. Records further reveal that the accused along with his brother, father Ravindra, sister Gudiya had attended the marriage of Ashok and after they had proceeded back to their native place happily. Records further reveal that prior to the marriage of Ashok, there had been no dispute interse between the deceased and husband on one hand, in-laws on other hand. Meaning thereby that the event which is being sought to be shown to be the basis for commission of the crime did not generate from the date of the marriage of the accused with the deceased but at subsequent point of time in the year 2017 when Ashok got married.

21. So much so, PW-3 Basanti who happens to be the real mother of the deceased had further deposed that no dowry whatsoever was being sought to be demanded from her by the accused fraction, though it has further been alleged that after marriage of her son demand of the motorcycle was being sought to be made.

22. It has also come on record that though ligature marks were found in the neck of the deceased, however, the learned Trial Court has analyzed the said aspect of the matter while recording a finding that the deceased was quite angry and furious with the conduct of the accused herein as the accused used to heavily tilt towards his maternal uncle while taking extra care and sacrificing his career while not proceeding to Dubai. The learned Trial Court has further opined, while appreciating the evidence available on record, that after the marriage of Ashok being brother of the deceased he showed his inability to go back to Dubai and the possibility of fight with the husband and wife on the said issue cannot be ruled out. Even in fact it has also come on record that though the accused used to stay with his maternal uncle at Bairampur and look after him leaving his parents' house being the in-laws of the deceased, further, the maternal uncle being Uma Ram had executed a Will of movable and immovable property in favour of Vijay Kumar who happens to be younger brother of the accused, which also created anguish to the deceased as on one hand the accused being the husband of the deceased did not proceed to Dubai and rather sacrificed his career without any return whatsoever as though he stayed with his maternal uncle (Mama), but he was deprived of the fruits emanating from movable and immovable property.

23. So much so, the appellant informant who happens to be the real brother of the deceased was to go to Dubai and these factors became a catalyst in commission of an act of suicide. Even in fact from the record, it transpires that on 3/4.7.2017 in the night the accused herein brought fish and it was cooked by the deceased and the maternal uncle (Mama) was also fed with same and the accused along with his Mama thereafter went on to sleep and at 12:01 hours in the night the daughter of the accused Akansha started crying and when they woke up, they did not find the deceased and when whereabouts was sought to be traced, then near the marahi the deceased was found to be hanging. Witnessing the same, not only the maternal uncle of the deceased but accused herein also stood over there and information to the said extent was given to the complainant fraction. The aforesaid facts itself go to show that in normal circumstances whenever an offence is being committed that too strangulating the wife by the husband, then the husband or the accused, as the case may be, would not stay on the place of occurrence and would run away, however, here in the present case the entire event shows that the deceased was occasioning not only tension but also family problems relating to her future wherein the husband himself was sacrificing his future for his maternal uncle (Mama) particularly when no benefit relatable to the assets either immovable or movable property were not to be extended.

24. Notably, so far as the PW-4 being Head Constable Lalta Yadav who has proved the FIR, is concerned, in his cross-examination he could not give detail as to who had signed the same and he showed his inability to recognize them. PW-5 Dr. Mahesh Kumar Yadav, who conducted the post-mortem, had himself stated in his deposition that the ligature marks could only be on account of suicide as there was neither any injury nor scratch on the body of the deceased. As a matter of fact, in case of strangulation by any other person being the accused would have been there, then obviously besides ligature marks there would have been injuries and scratches as obviously an adult lady on being forcibly hanged would create obstructions which would result in some of the injuries. In absence of any injury, scratch or dent on the body of the deceased as rightly observed by PW-5 Dr. Mahesh Kumar Yadav who conducted the post-mortem, it becomes clear that it is a case of suicide and not of hanging at the instance of the accused.

25. Cumulatively analyzing the present case from the four corners of law, an inescapable conclusion stands drawn that the entire basis of lodging the criminal proceeding making the allegations so discussed hereinabove proceeds on false premises. Even not only the elements so contained under Sections 498A and 304B IPC do not stand attracted but also the prosecution has completely failed to show that it was a dowry death. Nonetheless, the medical evidence also does not support the prosecution theory and the finding so recorded by the Court below after appreciating the evidence also suggests that the deceased was not having comfortable living with the accused, as she was suffering depression and her future itself stood sacrificed and compromised on account of the fact that the accused had tilted his career and bent of mind towards his maternal uncle (Mama) without caring for the future of the wife (deceased).

26. We, therefore, after giving anxious considerations to the facts of the case and after appreciating the ocular testimony as well as the evidence so adduced by the prosecution, find that the learned Trial Court has meticulously analyzed the case on all the points of angle and has rightly acquitted the accused herein. The view so taken by the Trial Court is a plausible and possible view and this Court has no hesitation to hold that no other view was possible. Thus, we have no option but to concur with the judgement of the learned Trial Court.

27. Accordingly, present appeal stands dismissed.

Order Date :- 28.7.2022 Abhishek

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