Allahabad High Court
State Of Up vs Smt. Nageena Bano W/O Late Abdul Waheed ... on 17 November, 2022
Bench: Vivek Kumar Birla, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- GOVERNMENT APPEAL No. - 719 of 2022 Appellant :- State of U.P. Respondent :- Smt. Nageena Bano W/O Late Abdul Waheed And Another Counsel for Appellant :- Shiv Kumar Pal Hon'ble Vivek Kumar Birla,J.
Hon'ble Rahul Chaturvedi,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Ratan Singh, learned A.G.A. and perused the record in support of aforementioned government appeal.
2. This is a government appeal under Section 378(3) Cr.P.C. through e-mode assailing the validity of the judgment and order dated 11.8.2022 passed by Additional District and Sessions Judge, Court No. 3, Fatehpur while deciding S.T. No. 189 of 2012 (State of U.P. vs. Masooq Alam and others) arising out of Case Crime No. 530 of 2012, under Sections 498-A, 304-B, 302, 307 IPC and Section ¾ of D.P. Act, Police Kotwali, District Fatehpur. is now before us for its judicial scrutiny.
3. There are three appellants Masooq Alam s/o Late Abdul Waheed, Smt. Nageena Bano w/o Late Abdul Waheed and Smt. Seema Bano w/o Irshad. Masooq Alam being the husband of the deceased is the main culprit, who died during trial and as such the trial against him stands abated. Practically speaking this appeal only against Smt. Nageena Bano and Smt. Seema Bano being the mother-in-law and sister-in-law of the deceased respectively.
4. As per prosecution case, the informant Mahtab Alam has lodged a first information report that his sister Shahnazbano was married with Masooq Alam on 5.10.2009 as per Muslim rites and customs, whereby Masooq Alam has demanded four wheeler vehicle as additional dowry and for this purpose he has granted three years time to meet the demand by in-laws and when in-laws failed to provide four wheeler then on 29.10.2012 (on the day of Bakrid) Masooq Alam and Shahnazbano was called for dinner, where he has again demanded same four wheeler. His sister and her husband stayed in the night and when the informant and his father were outside Masooq Alam (the husband) assaulted upon his wife by knife and when mother and sister tried to save her he has also given brutal assault upon them. The dead body was found in the house and Naseem Bano (mother) was in injured condition. On 30.10.2012 the first information report was lodged.
5. After holding thorough investigation the police has submitted a charge-sheet against the accused persons on 14.12.2012 under Sections 498-A, 304-B, 302 and 307 IPC and Section ¾ of D.P. Act and being the cognizable offence the case was committed to sessions trial and the learned Judge has framed charges under the aforesaid sections of IPC and D.P. Act on 14.10.2013. All the accused persons denied for charges and insisted for trial. During trial Masooq Alam (the husband) died on 9.9.2018 and as such on 12.5.2022 the trial was abated qua him.
6. To bring home the charges the prosecution produced following witnesses, namely:-
(i) Mahtab Ahmad (informant) as P.W.-1, (ii) Nasim Bano as P.W.-2, Jitendra Gautam (Naib Tehsildar) as P.W. 3, (iv) Dr. K.V. Chaudhary as P.W.-4, (v) Cons. Phoolchandra Kushwaha as P.W.-5 (vi) Dr. Anil Kumar as P.W.-6, (vii) S.P. Gaurav Singh as P.W.-7, (viii) S.P. Ajeet Kumar Sinha as P.W.-8 and (ix) C.O. Yashvir Singh as P.W.-9.
7. From the side of the prosecution, the prosecution has relied upon the documents, which were exhibited during the trial as under:-
(i) Tehrir as Ext. Ka-1, (ii) Panchayatnama as Ex. Ka-2, (iii) C.M.O. Report as Ext. Ka-3, (iv) Namuna Seal as Ext. Ka-4, (v) Photonash as Ext. Ka-5, (vi) Letter R.I. as Ext. Ka-6, (vii) Postmortem Report as Ext. Ka-7, (viii) First Information Report as Ext. Ka-8, (ix) Carbon G.D. as Ext. Ka-9, (x) Isri Report of Naseem Bano as Ext. Ka-10, (xi) Charge-sheet as Ext. Ka-11 (xii) Site Plan of the Spot as Ext. Ka-12 (xiii) Site Plan of Recovery of Knife used in murder as Ext. Ka-13 (xiv) Fard Recovery of murder as Ext. Ka-14 (xv) Tuti Chudiya as Ext. Ka-15 (xvi) Blood stained soil as Ext. Ka-16.
8. Learned A.G.A. has assailed the judgment and order of the court below on the grounds that the trial court has not properly appreciated the evidence on record and has decided the case only on the basis of conjunctures and surmises; trial court has failed to apply its judicial mind properly while appreciating the evidence of the witnesses; prosecution witnesses in their statements fully proved the cruelty and harassment regarding demand of dowry and the deceased was killed at the hands of the accused respondents within seven years of her marriage but the trial court has held otherwise; trial court has totally overlooked the testimonies of the witnesses while acquitting the accused respondents; trial court has committed gross error in disbelieving the testimonies of the witnesses; judgment and order of acquittal passed by the trial court is based on extraneous consideration of the evidence; judgment and order of acquittal of the accused respondents is against the facts and evidence on record and the same is liable to be set aside.
9. We have carefully heard Sri Ratan Singh, learned A.G.A. and perused the judgment and other relevant documents as well as the testimonies of the witnesses in support of the prosecution.
10. From the discussions, it is clear that Masooq Alam is the main culprit, who has given brutal assault on his own wife and causes serious injuries which has been resulted into her death. The mother Naseema Bano also sustained injuries, which are four in number, and she stated that these injuries were caused by her son-in-law. All injuries are of sharp weapon like knife.
11. We have carefully gone through the judgment and we have to peruse the role attributed to Smt. Nageena Bano (mother-in-law) and Smt. Seema Bano (sister-in-law).
12. Hon'ble Apex Court in Satvir vs. State (2001) 8 SCC 633 has underlined need and idea ''soon before death' and therefore, the prosecution has unable to bring under the four corners of the essential requirements and this Section 304-B cannot be prosecuted.
13. Now coming to another aspect of the matter under Sections 302, 306 IPC and Section 106 of Evidence Act. Section 106 of Evidence Act was explained by Hon'ble Apex Court in the case of Nagendra Kumar Shah vs. State of Bihar in Criminal Appeal No. 1903 of 2019 (LL 2021 SC page 457). Relevant extract of the aforesaid judgment is quoted as under:-
"Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always drawn an appropriate inference."
14. In such view of the matter, learned A.G.A. has unable to bring prosecution against the accused persons within four corners of Sections 302/34 IPC.
15. The Court has got occasion to lay its hands on the latest judgements relating to scope and ambit of Sections 378 and 386 of the Code of Criminal Procedure, which speak about appeal against acquittal.
16. In the case of Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471, while thrashing the earlier judgements, the Hon'ble Apex Court has held as under :
"24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:
"6. ..... In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
25. This Court in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:
"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."
The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.
29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa vs. State of Karnataka (2007) 4 SCC 415) :
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(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."
17. Similarly in Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, the Hon'ble Supreme Court has been pleased to discuss the scope of the High Court to interfere in an appeal against an order of acquittal passed by a Trial Court, and in paragraph-10 it has been held that :
"10. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that:
"13......The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt."
18. In the same chain the Hon'ble Apex Court in Jayamma and another vs. State of Karnataka, (2021) 6 SCC 213, has considered the law on the issue involved and observed thus :
"23. The other important reason to depart from the High Court's view re. conviction of the appellants is that the power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."
19. From the entire material on record, it is clear that P.W-8 Sri Ajeet Kumar Singh has stated in his statement that except Masooq Alam there was no other person, who was involved in this incident and not only this Shahnazbano has also initiated proceedings of maintenance against her husband.
20. From the material on record kept by the police it is evident that neither Smt. Nageen Bano or Smt. Seema Bano has ever demanded any additional dowry soon before death of the deceased and it is further pointed out that when son-in-law started assault upon his daughter the mother of the deceased tried to save her and also sustained injuries incidentally. Investigating Officer has not found any connection with Smt. Seema Bano, who was aged about 60 years and there was no occasion to demand any additional dowry in the shape of four wheeler. Sri Ajeet Kumar Singh, the I.O. of the case, was deposed as P.W.-8, who have collected the weapon used in the incident in question on pointing out of Masooq Alam.
21. In such view of the matter, we are unable to connect any material on record so as to involve the respondents in this heinous offence.
22. Under such circumstances, we are of the considered opinion that the learned trial court has rightly assessed the testimonies and material on record in correct perspective. Taking into account the totality of circumstances, we do not feel that there is any legal infirmity in the impugned judgment. The judgment is based on sound reasoning and proper application of law. Accordingly, we restrain ourselves in dislodging the finding of learned court below. This government appeal is devoid of merit and not worth granting any leave to appeal.
23. 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) is rejected by order of date, the present government appeal is also dismissed.
Order Date :- 17.11.2022 Lalit Shukla