Madhya Pradesh High Court
The State Of Madhya Pradesh vs Mukesh Kevat on 14 December, 2018
Equivalent citations: AIRONLINE 2018 MP 1381
AFR -( 1 )- MCRC No. 50540/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DB: MR. SANJAY YADAV & MR. RAJEEV KUMAR
SHRIVASTAVA,JJ.
Misc. Cri.Case No. 50540/2018
State of Madhya Pradesh
Versus
Mukesh Kewat and another
-------------------------------------------------------------------------------------
Smt. Sangeeta Pachauri, Learned Public Prosecutor for
the applicant/State.
Whether approved for reporting : Yes
Law laid down Relevant paras
If the trial Court after due
appreciation of the evidence
comes to the conclusion about Para 10
the finding of acquittal then
normally if the finding is not
perverse, this should not be
interfered with by the
Appellate Court. See, 2007
AIR SCW 1850 (Chandrappa
vs. State of Karnataka).
When two views are possible
appellate Court should not
reverse the judgment of
acquittal merely because the Para 12
other view was possible. When
judgment of trial Court was
neither perverse, nor suffered
from any legal infirmity or
non-consideration/ misappro-
priation of evidence on record,
reversal thereof by High Court
was not justified. See, (2008) 1
SCC 258 (K. Prakashan v.
P.K.Surenderan).
In the present case, the
prosecution has failed to prove Para 14
the essential ingredient of
Section 304-B or 498-A of IPC,
hence no presumption can be
drawn against the respondents
AFR -( 2 )- MCRC No. 50540/2018
under Section 113-B of Indian
Evidence Act.
ORDER
(14.12.2018) Per Rajeev Kumar Shrivastava,J.:
Applicant/State has preferred this petition under Section 378 (3) of CrPC for grant of leave to appeal against the judgment dated 10.9.2018 passed by First Additional Sessions Judge, Guna in Sessions Trial No.27/2017, whereby the respondents/accused have been acquitted from the charges under Section 304-B, in alternative, Sections 302 and 498-A of the IPC, as the charges were not found proved against the respondents beyond reasonable doubt.
2. Brief facts of the case are that on 13.9.2016 complainant Shardabai lodged a Dehati Nalishi at Police Chowki Madhusudangadh that in the previous night she along with her daughter-in-law Arti (deceased) and her son Arun took the meals together, thereafter her son had gone to Suthaliya to see the exhibition and each of them (she and her daughter-in-law) went in her separate rooms for sleeping. Her son returned back in the night at 12.01 o'clock and the door of Arti's room was closed from inside, therefore, it was got opened and then Arti was found to be hanged and the room was stinking like raticide, thereafter they got her down assuming her to be live but she had died. On this information, merg was recorded and after investigation and recording of statements of the relatives of the deceased, on the basis of merg enquiry and circumstantial evidence a case was registered against the respondents by the Police Station AFR -( 3 )- MCRC No. 50540/2018 Jamner at Crime No.292/2016 for the offences punishable under Sections 304-B, 302, 498-B of IPC. After completing the due investigation, charge-sheet was filed against the respondents for the aforesaid offences.
3. Before the trial Court, Balveer Singh Mawai (PW-1), Shivraj Singh (PW-2), Sanjay Kumar Raikwar (PW-3), Bhaiyalal Sharma (PW-4), Prakash Narvariya (PW-5), Surendra Raikwar (PW-6), Vinod Raikwar (PW-7), Dr. Mukesh Sharma (PW-8), Shatrudhan Singh Bhadoriya (PW-9), Manish Dabar (PW-10), Vallabh Prasad (PW-11), Rajesh Raghuvanshi (PW-12), S.N.Mukharjee (PW-13) and Kamal Singh Mandeliya (PW-14) were examined as prosecution witnesses. However, the defence has produced Shambhu Singh (DW-1) and Pahalwan Singh (DW-2) were examined as defence witnesses.
4. Trial Court, after due appreciation of the entire evidence on record, by the impugned judgment acquitted the respondents/accused from the above-mentioned charges. Aggrieved by which, the applicant/complainant has filed this petition for grant of leave to appeal against the impugned judgment of acquittal.
5. Learned Public Prosecutor for the applicant/State stated that the prosecution witnesses, who have been examined by the trial Court, have made direct and specific allegation against the respondents regarding cruelty, which they have committed with the deceased for fulfillment of their demand of dowry. It is further submitted that in para 22 of the impugned judgment it has been mentioned that the marriage of deceased Arti with Arun took place on 27.4.2016 and Arti died on 13.9.2016, thereby it is clear that the death has taken AFR -( 4 )- MCRC No. 50540/2018 place within seven years of the marriage. It is also stated that on the date, place and time of incident respondents Mukesh Kewat along with Sharda Bai @ Guddi Bai demanded dowry from the deceased and as demand was not fulfilled, they started cruelty with the deceased and they intentionally administered poison to Arti and thereafter strangulated her.
6. Learned Public Prosecutor further stated that Dr. Mukesh Sharma (PW-12), who had conducted post- mortem of the deceased Arti, has specifically mentioned in his report that deceased Arti died due to asphyxia, which occurred because of cardiac and respiratory failure.
7. Heard learned counsel for the parties and perused the impugned judgment.
8. It has been proved by the prosecution that as per FSL report (Ex.P/16) it is found that deceased died due to intake of poison - 'Organophosphorus insecticide Claropiriphom' and the trial Court has given finding that it is proved that the deceased died due to consumption of poison and thereafter hanged herself but it is not found proved that the poison was given by somebody else and she was put to hang by someone else.
9. From the statement of the independent witness Bhaiyalal (PW-4) (para 4), who is neighbour of the respondents, it is clear that this witness has admitted that no dowry was demanded by the respondents at the time of marriage and thereafter also. He further admitted that the room wherein the deceased was found hanged was closed from inside and there is no other way to go to the said room. He also admitted that when the deceased got down, there was no injury on the person of the AFR -( 5 )- MCRC No. 50540/2018 deceased. This witness has admitted the suggestion put forth by the defence that the complainant side has registered the false case in order to fetch the money from the accused persons. He has further admitted that the complainant side was demanding Rs.2.00 lacs for withdrawal of the case registered against the accused persons. The witnesses have made only general and omnibus allegation against the respondents with respect to demand of dowry and ill-treatment. It is further noteworthy to mention here that the mother of the deceased was not examined. Therefore, the trial Court has rightly disbelieved the testimony of the prosecution witnesses.
10. It is settled principle of law that if the trial Court after due appreciation of the evidence comes to the conclusion about the finding of acquittal then normally if the finding is not perverse, this should not be interfered with by the Appellate Court. For this, reliance can be placed on the decision of the Hon'ble Apex Court in the case of Chandrappa vs. State of Karnataka [2007 AIR SCW 1850], wherein the Hon'ble Apex Court laid down the legal principles for to entertain the appeal against acquittal and held as under:-
"39. From the above decisions, in our considered view, the following general principles regarding powers of 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, AFR -( 6 )- MCRC No. 50540/2018 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 question 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 emphasize 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 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".AFR -( 7 )- MCRC No. 50540/2018
11. In the case of Gamini Bala Koteswara Rao v. State of Andhra Pradesh [AIR 2010 SC 589], wherein it is observed as under:-
"It is open to the High Court to re- appreciate the evidence and conclusions drawn by the trial Court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse"
to mean "against the weight of evidence".
12. It is also observed in the cases of K. Prakashan v P.K.Surenderan [(2008) 1 SCC 258] and T. Subramanian v. State of Tamil Nadu [(2006) 1 SCC 401] as under :-
"When two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non- consideration/ misappropriation of evidence on record, reversal thereof by High Court was not justified."
"When two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt."
13. Similarly, in State of Maharashtra v. Joseph Mingel Koli [(1997) 2 Crimes 228 (Bom.)] it has been held as under:-
"In an appeal against acquittal the appellate Court has the undoubted power to review the entire evidence and to come to its own conclusion, but, in doing so, it should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal but also should express the reasons in its judgment AFR -( 8 )- MCRC No. 50540/2018 which let it to hold that the acquittal was not justified."
14. In the present case, the prosecution has also failed to prove the essential ingredient of Section 304-B or 498-A of IPC. Hence, no presumption can be drawn against the respondents under Section 113-B of Indian Evidence Act.
15. In view of re-appreciation of the entire evidence and on the basis of legal principles laid down by the Hon'ble Apex Court in the aforesaid cases, we are of the considered view that the finding of acquittal recorded by the trial Court does not appear to be perverse.
16. Resultantly, no grounds are available for grant of leave to appeal against the impugned judgment. Hence, the petition filed on behalf of the applicant/State is dismissed accordingly.
(Sanjay Yadav) (Rajeev Kumar Shrivastava)
(yog) Judge Judge
YOGESH VERMA
2018.12.18
15:12:50 +05'30'