Allahabad High Court
State Of U.P. vs Mohseen And 3 Ors. on 13 December, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Government Appeal No.223 of 2019 State of U.P. ---- Appellant Vs. 1. Mohseen 2. Smt. Ulfat 3. Shaukeen 4. Khushnaseeb ---- Respondents For Appellant : Sri Om Prakash Mishra For Respondents : None Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per: Pritinker Diwaker, J.
(13.12.2019)
1. Heard on Admission.
2. Challenge in the present government appeal is to the judgment and order dated 16.02.2019 passed by Sessions Judge, Saharanpur in Sessions Trial No. 68 of 2015 (State Vs. Mohseen and others), and Sessions Trial No. 611 of 2015 (State vs. Khushnaseeb), acquitting respondent nos. 2 to 4 of the offence under Sections 498A, 304B of IPC alternatively under Section 302/34 of I.P.C read with Section 4 of Dowry Prohibition Act and also acquitting respondent no.1-Mohseen under Sections 498A, 304B of IPC read with Section 4 of Dowry Prohibition Act and convicting him under Section 302 of IPC.
3. In the present case, name of deceased is Shahjadi, wife of respondent no. 1-Mohseen. Their marriage was solemnized on 27.03.2011 and she died on 29.08.2011 by strangulation. On the basis of written report, Ex.Ka.1, lodged by Shamshad (PW-1), father of the deceased, FIR Ex.Ka.11 was registered against all the accused persons under Sections 498A, 304B of IPC read with Section 3/4 of Dowry Prohibition Act.
4. After conducting inquest on dead of the deceased, postmortem was conducted and while framing charge, trial court has framed charge against all the accused persons under Sections 498A, 304B read with Section 34 of I.P.C. and Section 3/4 of Dowry Prohibition Act, alternatively under Section 302 read with Section 34 of IPC against them.
5. So as to hold accused persons guilty, prosecution has examined 10 witnesses, whereas two defence witnesses have also been examined. Statements of accused persons were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication. A specific plea has also been raised by the defence that deceased was residing separately in one room with accused Mohseen, whereas other accused persons were residing separately.
6. During the pendency of the trial, accused-Rasheed, father-in-law of the deceased, has expired.
7. By the impugned judgment and order, the trial judge convicted accused Mohseen under Section 302 of IPC but has acquitted the other accused persons of all the charges, while the trial judge has convicted accused no.1-Mohseen under Section 302 of IPC but has acquitted him under Sections 498A, 304B of IPC read with Section 3/4 of Dowry Prohibition Act. Hence this appeal.
8. Learned counsel for the appellant-State submits that trial judge has erred in law in acquitting the respondent nos. 2 to 4 of the offence under Sections 498A, 304B of IPC and Section 4 of Dowry Prohibition Act alternatively under Section 302/34 of I.P.C., and respondent no.1 of the offence under Sections 498A, 304B of IPC and Section 4 of the Dowry Prohibition Act.
9. We have heard Sri Om Prakash Misra, learned counsel for the appellant-State and perused the record. None for the respondents.
10. In 313 Cr.P.C. statement, a specific defence has been taken by accused Smt. Ulfat that her son was living separately in one room, whereas she was residing separately along with her husband and another son Shaukeen. In respect of accused Khushnaseeb, evidence has come that two days prior to the incident, she had delivered a baby and that she was also residing separately. The trial judge has also recorded a finding that there is no sufficient evidence on record to prove that deceased was subjected to cruelty soon before her death. It has also recorded a finding that there is no evidence on record that other accused persons were seen in the company of the deceased just before her death. The court has further recorded a finding that deceased has three other sisters and marriage of all the four sisters were performed on the same day without there being any settlement of dowry. The important witness of the prosecution Furkan has not been examined before the trial judge and this lacuna has also been noted by the trial judge.
11. Considering all the aspects of the case, trial judge has come to the conclusion that the evidence is not sufficient and conclusive, on which basis, respondent nos. 2 to 4 can be convicted for any offence. The view taken by the trial court is one of the possible view and it cannot be said to be perverse. Once respondent no.1-Mohseen has already been convicted under Section 302 of IPC, we do not feel it appropriate to entertain this appeal against him.
12. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views of the evidence are reasonable possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna reported in (2005) 9 SCC 291, the Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under:
"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evnidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."
13. In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666 the Hon'ble Supreme Court observed thus;-
"31.It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under: -
"37. In Chandrappa v. State of Karnataka, this Court held: ( SCC p. 432 para 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."
32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:
"39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re- appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
14. In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under :
"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.
36. In Chandrappa v. State of Karnataka, the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: (SCC p.432 para 42) "42....(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."
Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram."
15. Considering the above legal position and the factual aspect of the case, we are of the view that the trial Judge was justified in acquitting the respondent nos. 2 to 4.
16. Taking all the circumstances as it is, leave as prayed for by the State, is refused. Hence, the appeal is dismissed at the admission stage itself.
Date: 13.12.2019
RK/AKS
(Dinesh Pathak, J) (Pritinker Diwaker, J)