Allahabad High Court
State Of U.P vs Vijay Kumar Shukla on 3 March, 2020
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- U/S 378 CR.P.C. No. - 242 of 2018 Applicant :- State Of U.P Opposite Party :- Vijay Kumar Shukla Counsel for Applicant :- G.A. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned A.G.A. for the State and perused the record of the trial Court.
By moving instant application moved under Section 378 (3) of the Cr.P.C., the State has prayed for grant of leave to file appeal against the judgment and order dated 03.07.2018 passed by learned Additional District and Sessions Judge (F.T.C.), Court No.36, Barabanki in Sessions Trial No. 225 of 2009, "State of U.P. Vs. Smt. Prabhavati (deceased) and Vijay Kumar Shukla", arising out of Case Crime No. 140 of 2003, under Sections 498-A, 304-B of I.P.C. and Section ¾ Dowry Prohibition Act, Police Station Ram Sanehighat, District Barabanki, whereby the respondent/accused person has been acquitted of all the charges framed against him.
Brief facts necessary for the purpose of disposal of this application are that a First Information Report was lodged by Suresh Tiwari by submitting a written application (Exhibit-ka-2) to S.H.O., P.S. Ram Sanehighat at 15:05 hours on 19.06.2003 stating therein that about two years ago his sister Smt. Sanju @ Babli was married with Vijay Kumar Shukla son of Nand Kishore Shukla, resident of Mahmadpur Upadhyaya, Police Station Ram Sanehighat, Barabanki. Accused persons namely Prabhavati (mother-in-law), Brhamdutt (Jeth), Vijay Kumar Shukla (Husband), Sushmesh (Jethani), Meenu (Niece), Madhuri (Sister-in-law of Brahmdutt) used to treat his daughter with cruelty in lieu of demand of dowry and they killed his sister by burning. On a question asked by the scribe of the FIR, it has been stated by the informant that the incident had happened in the intervening night of 15/16.06.2003 and also that the accused persons were demanding T.V. in dowry.
On the basis of the aforesaid written application, FIR was lodged at Case Crime No. 140 of 2003 against all accused persons, under Sections 498-A, 304-B of I.P.C. and Section ¾ Dowry Prohibition Act at P.S. Ram Sanehi Ghat, substance of which was entered in the G.D. (Exhibit-ka-4) of the Police Station.
The Investigation of the case was entrusted to the Circle Officer of the Police, who inspected the spot and prepared the Site Plan (Exhibit-ka-8) and also recorded the statement of the witnesses and on the basis of the statement of the witnesses and postmortem report submitted charge-sheet (Exhibit-ka-9) against respondent Vijay Kumar Shukla and Smt. Prabhavati under Sections 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act.
The inquest (Exhibit-ka-1) of the dead body of the deceased was prepared by ''Tehsildar' Shri Ram Milan Singh on 18.06.2003 under the direction of the S.D.M. at the Medical College, Lucknow and he also prepared the necessary papers for the purpose of postmortem and transmitted the body of the deceased to the Mortuary of the Medical College for postmortem.
The postmortem on the dead body of the deceased was performed on 18.06.2003 by Dr. Yogesh Chandra Sharma at Medical College, Mortuary at 5:15 pm. As per the report death of the deceased had occurred on 16.06.2003 at 3:30 pm. She was average built ''rigor mortis' had passed from all over the body. Hospital dressing was found present all over the body over burnt areas.
Following injuries were found on her body:-
Injury No.1/Superficial to deep burn present on all over the body except part of face, both soles and part of dorsum of both feet.
Skin is blackened, peeled off at places, burn area is reddish in colour where skin has peeled off, there is clear red line of demarcation seen at the junction of burnt and unburnt areas. Singeing of scalp hair, axillary hair and pubic hair present.
On internal examination pleuss, lungs were found congested. The left chamber of the heart was empty, while right was full. 60 ml. fluid was found in the stomach. Digested food and gases were found in small intestine while faecal matter and gases were found in large intestine. Liver, pancreas, spleen and kidneys were found congested. Uterus was empty and the death of the deceased was found due to shock as a result of extensive ante-mortem burn injuries.
The case being exclusively triable by the Sessions Court was committed and charges under Sections 498-A, 304-B of I.P.C. and Section 4 of Dowry Prohibition Act was framed against respondent/accused, who denied the charges and claimed trial.
Apart from the documentary evidence, the prosecution in order to prove its case against respondent/accused testified following witness:-
P.W.-1/Suresh Tiwari (Informant), P.W.-2/Ram Krishna, P.W.-3/Bindeshwari, P.W.-4/Constable K.D. Singh, P.W.-5/Ram Milan Singh (Retired ''Tehsildar'), P.W.-6/Dr. Yogesh Chandra Sharma (Doctor, who conducted postmortem), P.W.-7/Deenanath Dubey, Retired Circle Officer (Investigating Officer).
The trial Court after appreciating the evidence available on record came to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubts against the respondent and, therefore, acquitted the respondent/accused person of all the charges.
Aggrieved by the impugned judgment and order, the State has challenged the same by filing instant appeal and has also moved an application for grant of leave to file the appeal.
Learned A.G.A. in support of application for grant of leave to appeal submits that the trial Court has committed grave error in appreciating the evidence available on record and has wrongly acquitted the respondent/accused person, while it was proved beyond reasonable doubt by reliable evidence of the prosecution that respondent/accused is guilty of committing the dowry death of deceased.
It is further submitted by him that the delay in lodging the FIR has been adequately explained by the prosecution and the fact that the father of the appellant namely Nand Kishore died himself in an attempt to save the deceased (Sanju @ Babli) would not have any adverse impact on the otherwise proved case of the prosecution and the trial Court has committed illegality in ignoring this material peace of evidence. It is also submitted that minor contradictions in the testimony of the prosecution witnesses are natural and, therefore, on the basis of these minor contradictions the testimony of otherwise reliable and trustworthy prosecution witnesses should not have been discarded by the trial Court and, therefore, the State be granted leave to file the criminal appeal in order to challenge the impugned judgment and order of the trial Court.
Having heard learned A.G.A. for the State and having perused the record of the trial Court in the background of the submissions made by learned A.G.A., it is revealed that the trial Court has recorded the finding of acquittal of the accused/respondent on the ground that the FIR has been lodged with considerable delay and no reasonable explanation of the same has been given. No complaint pertaining to the demand of dowry has been made anywhere by the informant or deceased and there are material contradictions in the testimony of the witnesses. Father-in-law of the deceased namely Nand Kishore himself died in order to save the deceased and he was also treated in the hospital along with the deceased and was ultimately died. The deceased was immediately taken to the hospital by the respondent/accused person and every attempt has been done by them to save the deceased.
We have very carefully perused the evidence of the prosecution placed before the trial court and and found that conclusions drawn by the trial court may not be termed as not based on the evidence available on record and also that the view adopted by the trial court is a possible and a logical view. P.W.1- Suresh Tewari who is the informant has stated to have got the information that her sister had been burnt in the intervening night of 15/16.6.2003 and he went to her sister's home and when he did not find her there he went to the District Hospital and found dead body of the deceased. This witness is also a witness of Panch Nama. Perusal of evidence of this witness as well as of P.W.2- Ram Krishna who is the father of the deceased would reveal that there are inherent contradictions in the testimony of these witnesses. Despite mentioning the existence of an application dated 17.6.2003, whereby an information was given to the Police Station they have denied that any such application was given and also has not produced the same before the trial court. There is also contradictions with regard to the fact, as to whether that information was given on 16.6.2003 or 17.6.2003. It is also apparent that despite informant was present during the inquest proceeding, the first information report was lodged on 19.6.2003 and no explanation pertaining tot his delay has been put forth. It is also evident that there is material contradictions in the testimony of P.W.1- Suresh Tewari and P.W.2- Ram Krishna pertaining to demand of dowry allegedly made by the respondent as P.W.1- Suresh Tewari has stated that demand was pertaining to the television while P.W.2 and P.W.3 who are the parents of the deceased have stated that demand was pertaining to the motorcycle and television.
It is also evident from the evidence available on record that P.W.1- Suresh Tewari who is the brother of the deceased in his cross examination has stated that marriage of his sister was solemnized about ten years ago and he did not inform his sister that she is being married to a lunatic. He further stated to have arranged this marriage for the reason that the respondent was having agricultural land and other properties and he was aware of this fact, at the time of the marriage, that the respondent is a lunatic. The trial court has come to a conclusion that since it has been admitted by the prosecution witness that the respondent was a rich person and was having sufficient agricultural land there was no occasion for him to demand dowry, much so when as he was also a lunatic. It is also evident that no complaint has ever been made prior to the incident by the parents and brother of the deceased with regard to demand of dowry made by the respondent. It is also come in the evidence of prosecution witness no.2- Ram Krishna that after marriage , his daughter had come to his house many times but she did not made any complaint.
It is also an admitted fact to the prosecution that Nand Kishore was the father-in-law of the deceased and he died of burn injuries while attempting to save the deceased, which suggests that the deceased has not been burned by her in-laws. The opinion of ''Punchans' recorded in the inquest report to which P.W. 1-Suresh Tewari is also a signatory is to the tune that the deceased was taken to the Medical College, Lucknow for treatment where she had died during the course of treatment, which suggests that the respondent and other family members took the deceased for best medical treatment and have also informed the parents and brother of the deceased and they were also present at the time of inquest in the hospital.
Having regard to the evidence of prosecution witnesses mentioned herein-above what we find is that it was evident that the deceased has not been burned by her in-laws and in fact when she was on fire, her father-in-law Shri Nand Kishroe tried hard to save her and to put off the fire and in the process got himself so severely burnt that despite being admitted in the hospital he died and this shows that perhaps the deceased has got fire accidentally, otherwise there was no occasion for her father in-law Nand Kishroe to save her and got himself severely burnt in the process.
We are of the considered view that every accused persons of a criminal case is having an initial presumption of innocence with him and this presumption fortifies when a judgment of acquittal has been passed in his / her favour. There is another golden rule of criminal jurisprudence that it is the duty of the prosecution to prove the guilt of accused persons beyond reasonable doubt and also that if on a reasonable appreciation of evidence two logical view arise than the view favourable to the accused person (s) should be adopted. Keeping in view the above propositions of law in an appeal from acquittal, very strong and cogent reasons are required for interfering in the judgment of acquittal, and if, the findings of the trial court are based on the evidence available on record and there is nothing which may brand the appreciation of evidence done by the trial Court as perverse, the finding of acquittal should not be easily disturbed.
Keeping in view the inherent weaknesses appearing in the prosecution evidence, we are of the considered opinion that the view taken by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be not based on material on record or either illegal, illogical or improbable. Therefore, we are satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.
Since application for grant of leave to appeal has been rejected, the appeal also does not survive. Consequently, the appeal is also dismissed.
(Mohd. Faiz Alam Khan, J.) (Devendra Kumar Upadhyaya, J.) Order Date:- 03.03.2020/Praveen