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State Of U.P. vs Jaleel Ahmad & 3 Others on 20 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 10

Case :- U/S 378 Cr.P.C. No. – 180 of 2019

Applicant:- State of U.P.

Respondents:- Jaleel Ahmad 3 Others

Counsel for the Applicant:- Govt. Advocate

Hon’ble Devendra Kumar Upadhyaya,J.

Hon’ble Mohd. Faiz Alam Khan,J.

1. Heard learned A.G.A. for the State and perused the record as well as the judgment of the trial court.

2. By moving this application under Section 378 (3) of the Cr.P.C., the State has prayed to grant leave to appeal against the judgment and order dated 01.07.2019 passed by Additional District and Sessions Judge/F.T.C. Court No.2, Gonda in Sessions Trial No. 194 of 2015, “State Vs. Jaleel and 2 Others” and Sessions Trial No. 231 of 2015, “State Vs. Aslam” arising out of Case Crime No.119 of 2015, under Sections 498A, 304B, 201 I.P.C. and 3/4 Dowry Prohibition Act, whereby the respondent nos.1 to 4 have been acquitted of the charges under section 498A, 304B, 201 and 302 I.P.C. and Section 3/4 Dowry Prohibition Act.

3. The prosecution story as is evident from the record of the subordinate court is that a written application was submitted by the informant- Nazeer Ahmad, S/o Abdul Hafiz, R/o Chhitauni Bhuliyapur, P.S.- Kotwali Colonelganj, District- Gonda to the Superintendent of Police, District- Gonda stating therein that his daughter, namely, Firdaus had solemnized love marriage with respondent no.4- Aslam and was living with him as his wife. It was further stated that a baby boy was also born from their wedlock, who at the time of incident was of aged about only four months. Aslam used to live at Mumbai in connection with earning his livelihood, while Firdaus was living in the village with respondent nos.1, 2, 3 and 4, who are parents and brothers of respondent no.4- Aslam, respectively. It was further stated that the respondents and one neighbour- Molhe used to treat his daughter with cruelty and ultimately on non-fulfillment of demand of dowry, they killed his daughter Firdaus and threw her body on the railway track.

4. On the basis of above written information, an F.I.R. at Case Crime No.119 of 2015 on 07.04.2015 at 17:40 hours was registered against the respondents under Sections 498A, 304B, 201 I.P.C. and 3/4 Dowry Prohibition Act at P.S.- Colonelganj, District- Gonda.

5. The investigating officer after conducting the investigation of the case and having found sufficient material submitted charge sheet against the respondent nos.1, 2 and 4 under Sections 498A, 304B, 201 I.P.C. and 3/4 Dowry Prohibition Act.

6. Charges under Sections 498A, 304B, 201 I.P.C. and 3/4 Dowry Prohibition Act as well as the alternate charge under Section 302 I.P.C. was framed against respondent nos.1, 2 and 4.

7. On an application moved under Section 319 of the Cr.P.C. by informant, respondent no.3, namely, Akhtar was summoned to face trial and consequently charges in the above-mentioned penal sections were also framed against him. All respondents, however, denied the charges and claimed trial.

8. The prosecution, in order to prove its case has produced P.W.1- father of the deceased Nazeer Ahmad, P.W.2- mother of the deceased Smt. Hashmi, P.W.3- Dr. Mukesh Kumar, who conducted the post-morterm on the body of the deceased, P.W.4- Investigating Officer Shabihul Hamd and P.W.5- Constable Rana Rupendra Singh scribe of the Chik F.I.R. and G.D.

9. In addition to the above-mentioned witnesses, the prosecution has also relied on (i) Inquest Report. (Exhibit Ka-1), (ii) Written Application. (Exhibit Ka-2), (iii) Post-morterm Report. (Exhibit Ka-3), (iv) Site plan of the house of respondents. (Exhibit Ka-4), (v) Site plan of the place where the dead body was found. (Exhibit Ka-5), (vi) Charge-sheet. (Exhibit Ka-6), (vii) Chik F.I.R. (Exhibit Ka-7) and (viii) G.D. Qayami (Exhibit Ka-8).

10. The trial court after completion of the evidence of the prosecution recorded statement of the respondents under Section 313 of the Cr.P.C. wherein all the accused persons/respondents have stated that the witnesses have given false evidence against them and they have been falsely implicated on the basis of enmity and that they are innocent. However, neither any oral nor any documentary evidence was produced by the respondents in their defence.

11. The trial court after appreciating the evidence available on record acquitted the accused persons/respondents from all the charges leveled against them.

12. Aggrieved by the impugned judgment and order of the trial court, State has challenged the impugned judgment and order by filing instant appeal and has also moved an application for grant of leave to file appeal.

13. Learned A.G.A. while pressing the application for grant of leave to appeal submits that the trial court has committed manifest error in appreciating the evidence available on record and has wrongly acquitted the accused persons/respondents on the basis of ”surmises and conjunctures’, while it was proved beyond reasonable doubt before the trial court that the respondents are guilty of committing the murder of Smt. Firdaus and, therefore, the trial court has recorded the finding of acquittal only on the basis of minor discrepancies.

14. It is further submitted that the trial court has erred in rejecting the testimony of prosecution witnesses in utter disregard to the settled law that minor discrepancies occurring in the testimony of witnesses shall not be given much significance unless such discrepancies go to the root of the case. Minor contradictions are bound to occur in the testimony of the witnesses, especially when the evidence of the witnesses is being recorded after a long gap of time. It is overwhelmingly submitted that the view adopted by the trial court could not be sustained in view of the reliable evidence of the prosecution witnesses and thus, the State be granted leave to file instant criminal appeal in order to challenge the judgment and order passed by the trial court.

15. Having heard learned A.G.A. for the State and having perused the record of the trial court as well as the judgment 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 persons/respondents giving following reasons:-

(I) The deceased- Firdaus solemnized her marriage with respondent no.4- Aslam against the wish of her family and she had severed all her relations with her parents. Therefore the evidence of prosecution witnesses with regard to the complaint made by Firdaus to them about demand of dowry by respondents, few days before the incident, could not be believed.

(II) The husband of the deceased, namely, Aslam, at the time of the incident, was at Mumbai.

(III) The prosecution witnesses have admitted that none of the respondents had demanded any dowry directly from them.

(IV) The evidence of P.W.1- Nazeer Ahmad pertaining to the fact of going to Police Station- Jarval to lodge the F.I.R. could not be believed.

(V) The phone number from which a call was allegedly made by deceased- Firdaus to her parents has not been mentioned nor any call details of the same has been produced, belying the fact that any call was actually made by deceased- Firdaus to her parents.

(VI) The evidence of prosecution witnesses pertaining to the fact that a phone call was made by deceased- Firdaus to her parents is also not believable on the ground that despite living in the same locality the prosecution witnesses did not go to see whether the deceased had actually been beaten up by the respondents or not.

(VII) The relationship of the deceased- Firdaus with her parents was highly inimical as she married with respondent no.4- Aslam against the wishes of her family, therefore it is highly improbable for her to communicate with her family.

(VIII) The conduct of P.W.1- Nazeer Ahmad in directing the deceased- Firdaus to approach the police, when the deceased allegedly told him few days before the incident about the cruelty committed by the respondents, is highly improbable.

(IX) Specific allegation of demand of dowry has not been alleged against repondents.

(X) The circumstances relied on by the prosecution has not been proved independently and the chain of circumstances is not complete and on the basis of incomplete chain of circumstances, conviction could not be done.

(XI) The death of the deceased was accidental.

16. Hon’ble Apex Court in the case of Ajmer Singh Vs. State of Punjab, 1953 SCR 418, has held that “in an appeal against acquittal, the High Court has full power to review the evidence upon which the order of acquittal has been founded and the presumption of innocence which is available to all the accused of a crime, is further reinforced by the order of acquittal and the decision of the trial court could be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons.”

17. In the case of Sanwat Singh and Others Vs. State of Rajasthan, AIR 1961 SC, 715 after placing the reliance on the judgment given by Privy Council in Sheo Swarup and Others Vs. The King Emperor AIR 1934 PC 227 (2) and many other authorities Hon’ble Apex Court on the point in issue held as under:-

“The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup’s case(1) afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as,

(i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons” are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal 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 questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.”

18. In the case of Sadhu Sharan Singh Vs. State of Uttar Pradesh and Others reported in 2016 Cr.L.J. 1908 has considered this difference and has observed as under:-

“18. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, in the case of Sambasivan and Others V. State of Kerala, (1998) 5 SCC 412, has held :

“The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal”.

19. This Court, in several cases, has taken the consistent view that the appellate Court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate Court, on scrutiny, finds that the decision of the Court below is based on erroneous views and against settled position of law, then the interference of the appellate Court with such an order is imperative.”

19. We have carefully perused the evidence of the prosecution available on record. This is an admitted fact that the deceased- Firdaus had solemnized her marriage with respondent no.4- Aslam against the will and wish of her family and therefore, there was neither any communication nor any relation of the deceased with her family. It is also evident from the record that the relations of the deceased- Firdaus with her family, i.e., P.W.1- Nazeer Ahmad and P.W.2- Smt. Hashmi,were so bad that she did not even invite her parents at the time of birth of her son. It is also proved on record that the matrimonial and parental home of the deceased were situated close to each other and there was a distance of only two-three houses in between. A minute scanning of the evidence of prosecution available on record would further reveal that it was highly improbable for the deceased to have communicated the cruelty, which was alleged to have been committed by the respondents, to her parents. The conduct of P.W.1- Nazeer Ahmad asking the deceased to make a complaint herself about the alleged atrocities allegedly being committed to her by respondents is also not believable in the facts and circumstances of the case. The testimony of P.W.1- Nazeer Ahmad also appears to be not reliable in the background of the established fact that despite having got the knowledge that deceased is being allegedly beaten up, he did not do any effort either to approach her or to inform the police. We are also in agreement with this finding of the trial court that the allegations of demand of dowry are general in nature and keeping in view the factual scenario wherein the marriage of the deceased was solemnized, it could not be believed that she had informed informant about any alleged mal-treatment extended by the respondents. Our view pertaining to this finding of the trail court is fortified by the fact that the parents of the deceased could not even recall the name of the son of deceased. Admittedly, no call details of the phone of the deceased has been produced, which may prove that any call was made by the deceased to her parents on the fateful day.

20. We have also perused the evidence of P.W.3- Dr. Mukesh Kumar, who conducted the post-morterm on the body of the deceased- Firdaus. Perusal of his evidence would reveal that at the time of post-morterm, he noticed crushed injuries on the head, on right and left elbow and also on both thighs of the deceased and the bones beneath all these injuries were found broken and the death of the deceased had occurred on account of anti-morterm injuries. This witness has also stated in his cross-examination that the immediate cause of death of the deceased was anti-morterm injures, which may be the result of accident also. Having gone through the post-morterm report and the testimony of P.W.3- Dr. Mukesh Kumar as well as the inquest report (Exhibit ka-1), we do not have any hesitation to concur with the finding of the trial court that the injuries sustained by the deceased were accidental in nature and therefore, the possibility of injured having met with an accident could not be ruled out as the body of the deceased was found on the railway track.

21. The law with regard to the appreciation of evidence pertaining to Section 304B of the I.P.C. in the background of the presumption provided under Section 113B of the Indian Evidence Act is no more res-integra.The Apex Court in the case of Kaliyaperumal Vs. State of Tamil Nadu,MANU/SC/0624/2003 has held that presumption under section 113-B of the Indian Evidence Act shall be raised only on proving of the following essential ingredients :-

(I) The question before the court must be whether the accused has committed the dowry death of a woman.

(II) The woman was subjected to cruelty or harassment by her husband or his relatives.

(III) Such cruelty or harassment was for, or in connection with, any demand for dowry.

(IV) Such cruelty or harassment was soon before her death.

22. A conjoint reading of Section 304-B IPC and Section 113-B of the Evidence Act indicates that if the prosecution has proved that the death of the wife was not natural or accidental death then it brings the case within the purview of ‘death occurring otherwise than in normal circumstances and once the prosecution had succeeded in proving that the deceased had died an unnatural death in her matrimonial home within seven years of her marriage and soon before her death she was subjected to cruelty or harassment by husband or her relatives, the presumption under Section 113-B of Indian Evidence Act shall be attracted.

23. The word “soon before death” fell for consideration in a large number of cases before the Supreme Court and this Court. The Supreme Court in the case of Hira Lal and others v. State (Government of NCT), Delhi, MANU/SC/0495/2003 : (2003) 8 SCC 80, has considered the scope of Section 113-B of the Evidence Act and Section 304-B IPC in the following terms:

“9. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to expression “soon before” used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods “soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession”. The determination of the period which can come within the term “soon before” is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibriu45m of the woman concerned, it would be of no consequence.”

24. The principle laid down in this case has been uniformly followed by the Supreme Court in a large number of cases. Reference may be made to the judgments in the case of Rajinder Kumar v. State of Haryana, MANU/SC/0046/2015 : (2015) 4 SCC 215; Baljinder Kaur v. State of Punjab, MANU/SC/1047/2014 : (2015) 2 SCC 629; and, Vijay Pal Singh and others v. State of Uttarakhand, MANU/SC/1172/2014 : (2014) 15 SCC 163.

25. In order to attract the presumption as provided under Section 113-B of the Evidence Act, it is incumbent on the prosecution to prove those facts on the basis of which a presumption under Section 113-B of the Cr.P.C. could be drawn and, thereafter, the onus is shifted on the accused to rebut the same. Having gone through the entire judgment of the trial court, we are in agreement with the findings of the trial court that the prosecution has failed to prove those facts on the basis of which a presumption under Section 113B could be made of the commission of ”Dowry death’.

26. Coming to the finding of the trial court pertaining to the failure of the prosecution to prove the charge under Section 302 I.P.C., we also concur with the finding of the trial court that the prosecution has failed to prove the requisite circumstances on the basis of which an inference could be drawn that the circumstances proved by the prosecution are so strong that the only hypothesis which could be drawn is that the crime in all probability has been committed by respondents and respondents only and the chain of circumstances are complete. We do not have any hesitation to record that the prosecution has also failed to prove the charge under Section 302 I.P.C. We also do not find any perversity or illegality in the appreciation of the evidence made by the trial court. It is to be recalled that the quest in a criminal trial could be nothing short of the proof beyond reasonable doubt. The prosecution has to prove the guilt of the accused persons beyond all reasonable doubt and it is also the rule of justice, so far as the criminal trial is concerned, that if on reasonable appreciation of evidence, two views are possible on the evidence available on record, then the view which is favorable to the accused person(s) should be adopted. However, it is also to be kept in mind that benefit of each and every doubt could not be extended to the accused persons. It is only reasonable doubts which could be termed as fatal to the prosecution.The law does not favour anything but the truth and a criminal trial is nothing but a voyage or a journey to unearth the truth. The quest of a criminal court must always be to know as to what had actually happened on a given day or time.

27. We are also of the considered view that there is initial presumption of innocence in favour of accused of a crime and the same stands fortified by the acquittal of the accused person(s) by the trial Court. So, 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.

28. 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 :- 20.1.2020

Saif

 

 

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