Allahabad High Court
Chhattarpal Singh vs State Of U.P. And 6 Others on 29 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 9 of 2022 Appellant :- Chhattarpal Singh Respondent :- State Of U.P. And 6 Others Counsel for Appellant :- Sanjay Kumar Dubey,Sunil Kumar Dubey Counsel for Respondent :- G.A.,Ishan Deo Giri,Sarvesh Pandey Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
Sri Ashwani Kumar Mishra, holding brief of Sri Sunil Kumar Dubey is praying for adjournment on behalf of Sri Sunil Kumar Dubey. The two counsels Sri Sunil Kumar Dubey and Sri Sanjay Kumar Dubey have filed the present appeal.
Sri Ishan Deo Giri and Sri Sarvesh Pandey are present for accused-respondent no.2.
On the last date also, a prayer for adjournment was made, which was granted.
Today, Sri Giri has produced a copy of the judgment and order passed by a coordinate Bench of this Court in Government Appeal No. 116 of 2022, State of U.P. Vs. Deshpal Singh and 5 others, who are also accused-respondents in the present appeal, filed under Section 372 CrPC by the informant. The aforesaid appeal was dismissed on merits by a detailed judgment dated 24.3.2022, which is quoted as under: -
"Heard learned counsel for the State and perused the record as brought before this Court.
This Government Appeal has been preferred against judgment and order of the Sessions Judge, District Amroha vide its order dated 18.10.2021 pertaining to case crime no. 1515 of 2010 u/s 498-A, 304-B IPC and in the alternative under section 302 IPC along with charge u/s 4 of Dowry Prohibition Act, Police Station- Dedauli, District Amroha, whereby the trial court has after consideration of the case on its merits acquitted the accused respondents Deshpal Singh, Ram Gopal, Smt. Chandro, Dharamveer, Narottam and Smt. Rameshwari of the aforesaid charges.
Briefly stated facts of this appeal as discernible from copy of the judgement impugned dated 18.10.2021 the prosecution case is that a written report was lodged at the aforesaid police station Dedauli on 06.10.2010 which is Exh. Ka-1 by the father of the deceased that his daughter Pooja was got married in the year 2010 in Village Hatawava, Police Station Dedauli with one Deshpal Singh, but subsequently to the marriage, the behavior of her in-laws became bitter and they started maltreating the daughter of the informant. The FIR proceeded on to describe that in the night intervening 5/6 October, 2010 the aforesaid accused respondents killed informant's daughter by setting her on fire and the informant came to know about fact that the dead body of the victim is in the Safdarjang Hospital, Delhi. Upon this information report, investigation ensued and the Investigating Officer after collecting evidence, submitted final report on the basis of the dying declaration made by the deceased herself. The statement of the deceased dwells upon fact that the deceased caught fire on account of fire caused by burning lamp in the room and this statement was recorded by the then City Magistrate of District Amroha which was taken into consideration by the investigating officer while filing final report. However, it so happened that notice was issued to the informant whereupon he protested the final report thereafter, the case was directed to be registered as complaint case. Pursuant thereto the statement u/s 200 and 202 Cr.P.C. of the complainant/informant and his witnesses were recorded and after considering the statements along with complaint vide order of the Chief Judicial Magistrate, Amroha dated 19.10.2011, the aforesaid accused respondents were summoned. Thereafter, the case was committed to the court of session where the accused respondents were heard on point of charge under the aforesaid sections of IPC and Dowry Prohibition Act respectively.
The prosecution has produced seven eye witnesses Chhatrapal Singh PW-1, Smt. Vinod Devi PW-2, Dr. Mohit Gupta PW-3, Constable Vikram Singh PW-4, the Former Deputy S.P. Amroha Dev Karan Ken PW-5, Kusum PW-6 and Ashwani Kumar as PW-7. Thereafter, statement of the accused was recorded under section-313 Cr.P.C., wherein they denied the charges. After considering the merits, the aforesaid judgement and order of acquittal was passed by the trial court consequently, this appeal by the State.
Contention in brief is that so far as the meritorious aspect of the case is concerned, claim is that it is a case where the consideration should be based primarily upon scrutiny of blended question of fact and law. No doubt, there is dying declaration but that dying declaration has been procured and obtained after playing mischief subsequently to death of the deceased and a concocted case has been set up by the defence and that stands exposed in view of the fact that as per evidence on record, the deceased herself used to tell about the maltreatment and cruelty being perpetrated upon her by her in-laws to the informant and other family members and that aspect perhaps was not considered by the trial court in right perspective.
Considered the submissions.
We have gone through the entire judgment and order impugned and also considered the various grounds raised in this appeal. Now, pivotal aspects of this case and the centre challenge to the judgment and order of acquittal appear to be based upon fact of acceptance of dying declaration of the deceased, while claim is that possibility of dying declaration being procured and articulated by the defence subsequent to the occurrence must be considered in right perspective, need be scrutinized by us. That way, upon perusal of the dying declaration made by the deceased as has been described in the body of the judgment of the trial court dated 18.10.2021, it entails fact that as per statement of the deceased, it was about 08:00 to 08:30 p.m., a lamp was illuminating in the room and the deceased caught her legs entangled in the sofa, due to which she fell down and her clothes caught fire. The dying declaration further contains fact that the deceased was asked question by the magistrate regarding dying declaration to the import as to who saved her, thereupon she stated that her husband and her mother-in-law saved her, besides she also stated that she was wedded a year ago.
When she was asked by the magistrate whether she is interested in lodging first information report, she replied in negative. This dying declaration was recorded after certification for fitness of the deceased had been issued by the doctor.
The then City Magistrate, Ram Gopal appeared before the trial court as D.W.-2., who has been cross examined, wherein he has categorically stated that the dying declaration was recorded by him after ensuring fit condition of the deceased. The deceased was able to speak at that point of time. This dying declaration has been proved by the aforesaid witness D.W.-2 as Exhibit Kha-1.
In so far as above testimony is concerned, it being pivotal and central testimony of the entire case need be evaluated in its true aspect. Upon cross examination of D.W.-2 Ram Gopal, City Magistrate, nothing adverse of sort has come to fore, which may indicate even in the least fact that dying declaration has been procured or obtained or articulated subsequently. It appear to be fair, consistent, voluntarily and inspires confidence.
Next point is that, this witness who was vital though not summoned by the trial court in exercise of power under Section - 311 Cr.P.C., but was produced by the defence itself and defence in turn proved the dying declaration. The prosecution could not give answer as to under what circumstances the magistrate was not produced by it. It appears that the prosecution did not feel it proper to examine City Magistrate, Ram Gopal but the important evidence has been brought by none other than the defense itself. In regard to the dying declaration, law is explicit that in case of dying declaration if it appears to be truthful version inspiring confidence and is voluntarily then it shall be believed and it can be acted upon both ways for recording conviction as well as acquittal, as the case may be.
Here, the spirit of the dying declaration of the deceased evinces truth to the ambit that it is not a case that the accused set the deceased on fire but the fire was accidental and it is established fact. It being so, the trial court has rightly believed the dying declaration to be truthful version of the deceased and has rightly recorded finding of acquittal against the accused respondent, which requires no interference by us.
The learned trial Judge has taken just and consistent view of the material on record and has scrutinized the same in right perspective and it cannot be said that the finding of acquittal is not based on material on record. It is cardinal jurisprudence of law that in case where finding of acquittal is found to be based on material on record and in the eventuality of possibility of two views, the view which favours the accused is to be preferred then the higher Court or the appellate Court would not disturb the finding of acquittal.
Presumption of innocence runs in favour of the accused right from stage of commencement of trial and the same continues upto Appellate stage. In case finding of acquittal is recorded by the trial court and acquittal is found to be based on material on record then presumption of innocence is fortified and strengthened in favour of the accused as has been held by Hon'ble Apex Court in Kanhaiya Lal & Ors. v. State of Rajasthan; AIR 2013 SC 1940.
Even in cases where two views regarding the same incident are possible then the view adhered to and adopted by the trial court will not be disturbed if material on record justifies the finding so recorded as has been held by Hon'ble Apex Court in Bhadragiri Venkata Ravi v. Public Prosecutor High Court of A.P., Hyderabad; 2013 (4) Supreme 450.
Thus, leave to appeal is refused.
Consequently, the instant appeal is dismissed.
Let a copy of this order be certified to the trial court concerned."
Hence the prayer for adjournment is refused.
From perusal of record, we find that the grounds taken in the present appeal are similar in nature and no additional ground has been taken, therefore, we do not find any good ground to take a different view of the matter.
Accordingly, the present appeal also stands dismissed at the admission stage itself.
Order Date :- 29.7.2022 N.S.Rathour