Court No. - 51
Case :- GOVERNMENT APPEAL No. - 439 of 2018 Appellant :- State Of U.P.
Respondent :- Mahendra Kumar And 2 Ors.
Counsel for Appellant :- G.A.
Counsel for Respondent :- Krishna Dutt Mishra
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Arun Kumar Singh, learned AGA appearing for the State and Sri J.N. Mishra appearing for accused-respondent nos. 1 to 3 namely Mahendra Kumar, Ram Prakash and Manorama.
The present government appeal has been filed along with an application for seeking leave to appeal against the judgment and order dated 17.11.2017 passed by Sessions Judge, Mahoba in ST No. 109 of 2015 (State of UP Vs. Mahendra Kumar and otehrs from the offense under section 498-A/34, 304B/34 IPC and 4 Dowry Prohibition Act/ in alternative Sections 302/34 IPC by which the accused-respondents have been acqitted.
At the very outset it has been mentioned that accused-respondent no. 1 is the husband, respondent no., 2 is father-in-law and respondent no. 3 is mother-in- law. Sri Arun Kumar Singh has pressed the application and the appeal by placing reliance upon ground nos. 4, 5 and 6. Thus keeping in view the contention as has been raised by the AGA and keeping in view the contention as has been made by counsel for complainant, the court proceeds to examine the finding recorded by the court concerned.
The court concerned has referred the Panchayatnama of the deceased and observed as under:
iapk;rukek esa iapks dh jk; ds vuqlkj ftlesa eftLVsªV Hkh Fks] ;g rF; vk;k gS fd e`rdk dh e`R;q xys esa Qkalh dk Qank dl tkus ds dkj.k gqa;h gSA iksLVekVZe fjiksVZ izn'kZ d&2 esa xys esa fyaxspj ekdZ ds vykok e`rdk ds 'kjhj ij vU; dksbZ pksV ugha ik;j x;hA bl rjg tSlk fd oknh }kjk crk;k x;k fd ekjihV dj Qkalh ij yVdk fn;k x;k ekjus ihVus lEcfU/kr dksbZ lk{; miyC/k ugha gSA vfHk;qDr dh rjQ ls ;g rF; crk;k x;k gS fd e`rdk ekufld :i ls detksj Fkh ftldk bykt gksrk jgk gSA chekjh ls rax vkdj mlus vkRegR;k dj yhA chekjh ls lEcU/k vfHk;kstu ds xokgksa dk lk{; Hkh miyC/k gSA i`"B 11 ij oknh ih0 MCyw0&1 dqynhi us ;g rF; Lohdj fd;k gS fd vkjrh dh 'kknh ds ckn dksbZ vucu ugh gqvk dksbZ iapk;r ugha gq;hA blh i`"B ij dqynhi us ;g Hkh Lohdkj fd;k fd cfgu vkjrh lisjs dh chu dh vkokt ls izHkkfor ugh gq;h FkhA gekjs lkeus vkjrh dh >kaMQwd Hkj gq;h FkhA bl c;ku ls ;g izrhr gksrk gS fd vkjrh ds ekufld jksxh gksus ds dkj.k >kaMQwd Hkj gq;h FkhA In view of the testimony of PW-2, who happens to be the mother of the deceased, the relevant portion of the court's observation is as under:
e`rdk dh eka ih0 MCyw0& 2 Jherh ds'kdyh us ist 5 ij ;g Lohdkj fd;k gS fd 'kknh ds pkj&ikap eghus rd esjh yM+dh chekj ugha gq;h FkhA bl c;ku ls ;g izrhr gksrk gS fd 'kknh ds pkj&ikap eghus ckn gh mldh yM+dh chekj gks x;hA cpko i{k ds xokgku Mh0 Mcyw0&1 xzku flag rFkk Mh0 MCyw0&2 lquhy dk ;g c;ku gS fd egsUnz dh iRuh vkjrh chekj jgrh FkhA vfHk;qDr dh rjQ ls viuh lQkbZ es MkDVj vfuy nksgjs dh esfMdy fjiksVZ 42[k] 43[k] 44[k nkf[ky fd;k gSA MkDVj vfuy nksgjs ekufld jksx ds MkDVj gS rFkk Xokfy;j esa jgrs gSA ftudks fofHkUu rkjh[kksa ij vkjrh dks fn[kk;k x;k gSA bu leLr lk{; ls ;g Li"V gksrk gS fd vkjrh chekj jgrh Fkh vkSj ekufld jksxh FkhA In regard to delay in lodging the FIR, the court has clearly observed that there is delay of two days in lodging the FIR, which is quoted below:
ml le; rd rFkk ogka mifLFkr gksus ds ckn rd Hkh oknh dqynhi vFkok e`rdk dh eka vFkok lhrkjke us dksbZ vkifRr ugha dhA iqfyl esa dksbZ fjiksVZ ugha fy[kk;hA tcfd oknh dqynhi dk ;g c;ku gS fd Qksu djds vKkr O;fDr us ;g lwpuk fn;k Fkk fd gekjh cfgu dks ekjihV dj xyk nckdj ekj fn;k x;k gSA blds ckn Hkh ml fnu dksbZ fjiksVZ oknh ;k mlds ?kj ds yksxksa us iqfyl ds le{k ugh fy[kk;h tcfd ogka ij iqfyl vkSj eftLVsªV Hkh ekStwn FksA fjiksVZ nks fnu ckn fnukad 08-05-2015 dks fy[kk;h x;h gSA bl rjg izFke lwpuk fjiksVZ es nks fnu dk vuko';d foyEc gqvk gS ftldk dksbZ i;kZIr vk/kkj oknh ;k vfHk;kstu ds ikl miyC/k ugh gSA ge yksx nkg laLdkj esa igqap gh ugh ik;s FksA llqjkyhtu us nkg&laLdkj dj fn;k FkkA bl c;ku ls ;g izrhr gksrk gS fd dqynhi >waB jgk gSA ist 14 ij dqynhi us ;g Lohdkj fd;k gS fd 06-05-2015 dks lqcg 9 cts vkjrh dh llqjky igqap x;k FkkA mlh fnu iapk;rukek gqvk vkSj mlh fnu iksLVekVZe Hkh gqvkA iksLVekVZe ds ckn yk'k dks llqjky okyksa dk lkSi fn;k x;k vkSj oknh dks tkudkjh ugha gks ik;h nkg&laLdkj Hkh gks x;k ;s lkjs rF; vfo'oluh; izrhr gksrs gSA e`rdk ds HkkbZ ] pkpk vkSj eka ogka ij ekStwn gS rks iksLVekVZe ds le; Hkh ekStwn gksxs rFkk nkg& laLdkj ds le; Hkh ekStwn gksxsA blls ;g Li"V gS fd ml le; rd e`rdk dh gR;k djus dh ckr oknh dqynhi ds fnekx esa ugha vk;h FkhA ckn esa vkSj yksxksa ls jk; ysdj nks fnu ckn gR;k lEcfU/kr >waBh fjiksVZ fy[kk;k x;kA iksLVekVZe fjiksVZ izn'kZ d&2 esa Hkh xys esa fyxspj ekdZ ik;k x;kA 'kjhj ij dksbZ vU; pksV ugha ik;h x;hA ekjihV dj xyk nckdj Qkalh ij yVdk;k tkrk rks xyk nckus ds ckn e`R;q gks tkrh rFkk fyxspj ekdZ ds vfrfjDr 'kjhj ij vkSj Hkh pksV ds fu'kku vkrs ijUrq bu ifjfLFkfr;ksa es ekjihVdj xyk nckdj gR;k djus dh ckr Li"V ugha gksrh gS vkSj ;g izrhr gksrk gS fd e`rdk }kjk vkRegR;k dh x;h gS vkSj ;g e`rdk dh vLokHkkfod e`R;q gSA Examination report itself also clears that the deceased has no other external injury and the cause of death is hanging. The observation of the court is - e`rdk vkjrh ds 'ko dks HkyhHkkWfr ns[kk FkkA mlds xys esa fyxspj ekdZ ds vykok vkSj dksbZ pksV dk fu'kku ugha FkkA eq[; c;ku esa Hkh eftLVsªV us ;g dgk gS fd 'ko ds fujh{k.k djus ij dksbZ pksV ugha FkhA dsoy xys esa Qkalh ds Qans dk fu'kku FkkA The court has further observed that - mijksDr rF;ksa ls ;g Li"V gS fd e`rdk dh e`R;q 'kknh ds 07 lky ds vUnj ugh gq;h gSA e`rdk dks ngst ds fy, llqjky okyksa }kjk izrkfMr ugh fd;k x;k gS rFkk e`R;q ds Bhd iwoZ izrkM+uk ;k ekjihV dk dksbZ lk{; ugha gSA ek= e`rdk }kjk vkRegR;k djus dh vLokHkkfod e`R;q ds lk{;
izrhr gksrs gSA bl rjg bl okn esa ngst gR;k lEcfU/kr mi/kkj.kk fd;s tkus dk dksbZ i;kZIr vk/kkj ugha gSA In view of the aforesaid finding and the evidence on record the court has recorded this conclusion, which is hereunder:
vr% ngst izrkM+uk vkSj ngst gR;k lEcfU/kr dksbZ Hkh rF; lkfcr ugha gks ldsA ist 4 ij foospukf/kdkjh dk ;g c;ku gS fd 'kknh dk dkMZ miyC/k ugha FkkA ist 7 ij foospukf/kdkjh dk c;ku gS fd jkeizdk'k us fyf[kr :i ls fnukad 06-05-12 dks Fkkuk/;{k [kjsyk tuin egksck dks lwpuk nh Fkh ftldk bUnzkt Fkkuk [kjsyk dh th0 Mh0 la[;k 12 le; 10-20 ij fd;k x;k Fkk bl lwpuk esa mYys[; gS fd yM+dk egsUnz jkr Hkj [ksr dh e<kbZ dj jgk Fkk lqcg ?kj vk;k rks tkudkjh gq;h fd mlh iRuh vkjrh us /kksrh dk Qank Mkydj vkRegR;k dj yh gSA mldh cgw fnekx dh detksj gSA mldk bykt Xokfy;j vLirky esa gksrk jgk gSA bldh lwpuk ij iapk;rukek vkfn dh dk;Zokgh dh x;h FkhA bl rjg gR;k djus dh ckr foospukf/kdkjh dks foospuk esa ugha izkIr gq;hA gR;k djrs gq;s fdlh xokg us Hkh ugha ns[kk gSA vkRegR;k dh lwpuk llqjky okyksa us Fkkus ij nh gS rFkk rgjhj nks fnu ckn fy[kk;h x;h gSA iapk;rukek djus okys xokgksa dh jk; ds vuqlkj vkRegR;k gh dh x;h gSA bu lHkh rF;ksa ls gR;k lEcfU/kr yxk;s x;s vkjksi lansg ls ijs lkfcr ugha gksrs gS rFkk /kkjk 302 lifBr /kkjk 34 Hkk0 n0 la0 dk oSdfYid vkjksi Hkh vfHk;kstu i{ lkfcr ugh dj ldk gSA mijksDr rF;ksa ls ;g Li"V gS fd vfHk;kstu }kjk nh x;h lk{; ls ;g Li"V gksrk gS fd e`rdk vkSj vfHk;qDr egsUnz dh 'kknh ds 8 o"kZ chr x;s gSA ngst lEcfU/kr ekax djus dh ;k ngst lEcfU/kr izrkM+uk nsus lEcfU/kr dksbZ Hkh rF; vfHk;kstu i{k lkfcr ugha dj ldk gSA ekjihV djus dk rF; Hkh lkfcr ugh gSA e`R;q ds Bhd iwoZ e`rdk ds 'kjhj ij ekjihV ;k izrkM+uk lEcfU/kr dksbZ pksV dk fu'kku Hkh MkDVj }kjk ugha ik;k x;k gSA vfHk;kstu lk{; ls ;g Li"V gqvk fd e`rdk fnekxh :i ls detksj Fkh ftldk bykt py jgk Fkk vkSj mlus viuh gh /kksrh ls Qkalh dk Qank cukdj vkRegR;k dj yhA oknh }kjk >awBs vkSj xyr rF;ksa ds vk/kkj ij fjiksVZ izLrqr fd;k x;k vkSj >awBk c;ku U;k;ky; esa fn;k x;kA ngst gR;k vFkok gR;k lEcfU/kr dksbZ Hkh rF; lkfcr ugha gks ldk gSA vfHk;qDrx.k ij yxk;s x;s vkjksi lansg ls ijs lkfcr u gksus ds dkj.k vfHk;qDrx.k lansg dk ykHk ikdj nks"keqDr fd;s tkus ;ksX; gSA In view of the facts and circumstances of the case and also the fact that the State has not been able to point out any illegality or perversity with the findings as have been recorded by the court concerned and also looking into testimony of the prosecution witness in which admittedly there are lots of contradiction, the court has returned his verdict of acquittal to which no illegality or perversity has been attributed.
As regards the exercise of the powers of the Appellate court the Supreme Court in Sanmwat Singh vs. State of Rajasthan 1961 SC 715 has laid down three broad principles.
(i) Appellate Court has full powers to review the evidence upon which the order of acquittal is found it.
(ii) The Principles laid down by the judicial committee of the privy counsel in Sheo Swaroop vs. King Emperor (AIR 1934 PC) page 227. Afford a correct guide for the appellate court approach to a case in disposing of such an appeal.
These principles require that the appellate court should give proper weight and consideration to such matters as, the view of the trial Judge as to credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses. These matters and guidelines are the “Rules and Principles” in the administration of justice.
(iii) The appellate court in coming to its conclusion 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 should also express those reasons to hold that the acquittal was not justified Damodar Prasad Chandrika Prasad vs. State of Maharashtra 1972 (1) SCC 107.
It follows as a corollary from as regards the exercise of the powers of the Appellate court the Supreme Court in Sanmwat Singh vs. State of Rajasthan 1961 SC 715 has laid down three broad principles.
(i) Appellate Court has full powers to review the evidence upon which the order of acquittal is found it.
(ii) The Principles laid down by the judicial committee of the privy counsel in Sheo Swaroop vs. King Emperor (AIR 1934 PC) page 227. Afford a correct guide for the appellate court approach to a case in disposing of such an appeal. These principles require that the appellate court should give proper weight and consideration to such matters as, the view of the trial Judge as to credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses. These matters and guidelines are the “Rules and Principles” in the administration of justice.
(iii) The appellate court in coming to its conclusion 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 should also express those reasons to hold that the acquittal was not justified Damodar Prasad Chandrika Prasad vs. State of Maharashtra 1972 (1) SCC 107.
It follows as a corollary from the above, that if two views of the evidence are reasonably possible, one supporting an acquittal and the other indicating conviction, the appellate court should not interfere merely because it feels, that it would, sitting as a trial court have taken the other view. Two views and conclusions cannot be right and one in favour of the acquittal of the accused must be preferred over the other because our criminal jurisprudence demands that the benefit of doubt must prevail. If, two reasonably, probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of reasonable doubt. Even otherwise we find that the consistent legal position as laid down by the Apex Court with regard to the scope of interference in an appeal against acquittal is to the effect that until or unless it can be pointed out that there is some illegality or perversity with the findings as have been recorded by the court concerned or until or unless it can be shown that the view taken by the court concerned while writing a verdict of acquittal is perverse or not possible, the appellate court ought not to interfere.
“Suffice it to say that the Apex Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re- evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
In view of the above, that if two views of the evidence are reasonably possible, one supporting an acquittal and the other indicating conviction, the appellate court should not interfere merely because it feels, that it would, sitting as a trial court have taken the other view. Two views and conclusions cannot be right and one in favour of the acquittal of the accused must be preferred over the other because our criminal jurisprudence demands that the benefit of doubt must prevail. If, two reasonably, probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of reasonable doubt. Even otherwise we find that the consistent legal position as laid down by the Apex Court with regard to the scope of interference in an appeal against acquittal is to the effect that until or unless it can be pointed out that there is some illegality or perversity with the findings as have been recorded by the court concerned or until or unless it can be shown that the view taken by the court concerned while writing a verdict of acquittal is perverse or not possible, the appellate court ought not to interfere.
“Suffice it to say that the Apex Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re- evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
Regard may also be had to the consistent legal position with regard to the scope and interference by the High Court in the judgement and order of acquittal. The Apex Court in the case of Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011.
Reference, may also be made to the judgment of the Apex Court rendered in the cases of Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors, Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990, Murugesan vs. State through Inspector of Police reported in 2012 AIR SCW 5627.
In view of the aforesaid facts and circumstances of the case, it cannot be said that the view taken by the Court below is not possible and plausible thus the judgment of the court below cannot be interfered with by this Court only on account of the fact that another view is possible.
Learned A.G.A. has not been able to point out any illegality or perversity with the findings as recorded by the court below and thus it cannot be said that the view taken by trial court is a perverse view.
Thus in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out. No interference with the impugned judgment and order of acquittal is warranted. Accordingly the application seeking leave to appeal is rejected. Consequently, appeal is also dismissed.
Let a copy of this order be certified to the court concerned for necessary compliance.
Record of the lower court has been received. Let it be sent back to the court concerned.
Order Date :- 26.7.2018 SKS