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Judgment
This criminal appeal under Section 378(III) of the Code of Criminal Procedure, 1973 has been filed by the appellant/State being aggrieved by the judgment dated 29.05.2014 passed by the learned Second Upper Sessions Judge, Katni, District Katni, in ST No.125/2010, whereby the respondent (hereinafter referred to as the 'accused persons') have been acquitted from the charges under Sections 306 and 294 of IPC.
The prosecution case, in brief, is that on 26.11.2009, the Station House Officer, Sleemanabad, registered a marg case No.73/2009 in connection with the death of Vimla Bai and conducted an inquiry. According to the report, it was around 3 O'clock on that date. Kanta Bai was sitting in the courtyard outside her house, basking in the sun, when Kiran Gupta and Vimala Patel approached from the Kharadi side of the village, fighting with each other, Kiran Gupta caste aspersions upon Vimala and hurled filthy abuses at her. When they approached Kiran's house, Kiran's mother, Radha, came out from her house. Seeing Vimala fighting, she also began abusing Vimala. Radha and Kiran continued to hurl profanities at Vimala. Just then, Radha's son, Dilip, arrived, grabbed Vimala from her house, and took her inside. She sat in the sunshine in her courtyard. After 10-15 minutes, there was a commotion that Vimala had set herself on fire. Vimala's husband, Rajesh, arrived shortly afterward, and he and her father-in-law took her to Katni for treatment, from where she was flown to Jabalpur. Vimala remained there and died during treatment in Jabalpur.
On the basis of the above mentioned marg case Ex.P/19, the FIR Ex.P/20 got registered vide Crime No.42/2010 for the offence under Sections 294 and 306 IPC at Sleemanabad Police Station. During investigation, spot map Ex.P/5 was prepared and after informing the witnesses of Ex.P/1, a naksha panchayatnama Ex.P/2 was prepared. During investigation, the statements of witnesses were recorded. Saree, blouse and petticoat were seized from the scene of incident by Ex.P/4. Post-mortem of the dead body of the deceased was conducted by Ex.P/16 and the accused were arrested by arrest memos Ex.P/22 and Ex.P/24.
After completing the investigation, the charge sheet was filed against the accused persons before the Court. Statement of the witnesses got recorded. Charges were framed; read out and explained to the accused prsons. They denied to committing the crime and sought a trial. During their examination under Section 313 of the Code of Criminal Procedure, the accused persons stated that they are innocent and have been falsely implicated in the case.
In order to bring home the charges, the prosecution has examined as many as 17 witnesses, namely, Rajesh Patel (PW-1), Jawahar Patel (PW-2), Sheikh Sharif (PW-3), Virendra (PW-4), Gulab Bai (PW-5), Raghav Prasad Patel (PW-6), Kantabai (PW-7), Suniyabai (PW-8), Pramod Kumar (PW-9), Durgabai (PW-10), Radhabai (PW-11), Dr. S.K. Shukla (PW-12), Dr. Mukesh Agrawal (PW-13), Dr. Alok Kumar Verma (PW-14), Ramnaresh Tripathi (PW-15), M.P. Pauranik (PW-16) and Sushil Kumar Tiwari (PW-17) and placed Ex.P/1 to P/17, the documents on record.
The learned trial Court after recording of evidence of both the parties acquitted the accused persons from the charges levelled against them. Hence, this appeal.
It is submitted by learned counsel appearing on behalf of the appellant/State that despite ample evidence on record in the forma of eye witnesses to the incident and the persons to whom the deceased has communicated the cause of death are on record but by overlooking this evidence, the learned trial Court acquitted the accused persons from the charges levelled against them. It is also submitted that it is categorically established by the prosecution that the accused persons have uttered filthy languages; communicated obscene messages and told the deceased to go and die. Therefore, the deceased has committed suicide. The act of the accused persons squarely falls under Section 306 of IPC. Therefore, he prayed that the appeal be allowed and the respondents/accused persons be convicted and sentenced appropriately.
I have heard the rival contentions of learned counsel for the parties and perused the record meticulously.
At the outset, it is notable that the FIR in this case as Ex.P/20 has been registered on 03.02.2010 while the incidence took place on 20.11.2009. The Investigating Officer M.P. Pauranik (PW-16) has admitted that he has not mentioned any reason for such delay. Further, he stated that from Medical College Jabalpur, post-mortem report has been received with delay but he has not mentioned any date when the post-mortem has been received while as per the story of prosecution, the deceased died on 10.12.2009. There is no reason that why post-mortem report has been prepared with delay.
The important witness of the prosecution are the husband of the deceased, Rajesh (PW-1), the father-in-law of the deceased Jawahar (PW-2), mother of the deceased Gulabbai (PW-5), father of the deceased Raghav Prasad (PW-6) and they have supported the story of prosecution in their chief-examinations but admittedly, these witnesses are the relatives of the deceased. As far as the independent witnesses in this case are concerned, they are Sheikh Salim (PW-3), Virendra (PW-4), Suniya Bai (PW-8), Pramod Kumar (PW-9), Durgabai (PW-10) and Radha Bai (PW-11) but they have not supported the story of prosecution. They turned hostile but nothing revealed from their statements to support the story of prosecution and the statements of related witnesses of the deceased.
Since the witnesses, namely, Rajesh (PW-1), Jwahar (PW-2), Gulabbai (PW-5) and Raghav (PW-6) are the close relatives of the deceased and their statements are not supported with the independent witnesses, therefore, they are required to be scrutinized with care and circumspection.
From this angle, when I travell through the statements of these witnesses, it is revealed that the incident took place on 26.11.2009 and the deceased died on 10.12.2009, but during this 14 days as well as thereafter, these witnesses have not lodged any FIR in the police station. The police has registered the crime as Ex.P/20 on 03.02.2010. No sufficient explanation in this regard has been furnished by these witnesses that why they have not contacted to the police after getting information from the deceased about the actus reus of the accused persons.
Rajesh (PW-1) has stated that when the deceased was admitted in the Government Hospital then she has intimated about the incidence. He in pragraphs-6 to 10 of his chief-examination has narrated whatever communicated to him by the deceased but such version has not been exactly verified by the statement of the other witnesses, namely, Jawahar (PW-2), Gulabbai (PW-5) and Raghav (PW-6). What is intimated by the deceased to the witnesses are not similar. Rajesh (PW-1) has stated that the deceased has intimated about the incidence in front of him, his father and the mother of the deceased while Jawahar (PW-2) has not stated that at the time of narration of the story by the deceased, these persons were present there. He simply stated in paragraph-4 that when he asked the deceased that why she has set fire on her then she stated that accused persons, namely, Kiran and Radha have hurled filthy language and accused-Dileep took her inside the room and locked it, therefore, she feeling humiliated and insulted set fire to herself.
Gulabbai (PW-5) in paragraph-2 of her chief-examination has stated that the accused persons, Kiran, Radha and Dileep have intimated her that there occurs a quarrel between them and the deceased and they have scolded the deceased and told her to go and die. She further stated that her daughter has also intimated that Kiran, Radha and Dileep used to abuse the deceased and when Dileep took her in the room and said that she may die then she set fire on her person. The version stated by this witness is entirely different and at the first instance she stated that the said incidence has been narrated by accused persons themselves which is not a part of prosecution story.
It is revealed from perusal of statements of the witnesses that at the time of preparing naksha panchayatnama Ex.P/2, they have not intimated the Police about the incident while they had an opportunity at that time to inform the police about the incident. This fact revealed from the statements of the witnesses creates a doubt about the genuineness of prosecution story. If the deceased was died due to the aforesaid incidence, she must have communicated the same to the doctor concerned before whom she has been taken first after the incidence in burning condition but the doctor concerned, S.K. Shukla (PW-12) has stated that the deceased has not intimated him about the reason for burn. Nor the police has taken any dying declaration of the deceased during the period of 14 days from 26.11.2009 to 10.12.2009 till death of the deceased in the hospital. No sufficient reason is seen from the evidence for such lapse committed on the part of the prosecution.
Admittedly, Rajesh (PW-1) and Jawahar (PW-2) were not at home when the incidence took place but they have reached after getting the information and then they have taken the deceased to the hospital.
Virendra (PW-4) in his cross-examination has admitted that Rajesh (PW-1), Jawahar (PW-2) and Geetabai have not communicated him why and how Vimlabai has been died by burning. He further stated that after two or three days of the death of deceased when he visited the house of Rajesh and Jawahar, they have not intimated at that time too about the incidence. Nor such fact has been communicated to him by Kantabai (PW-7).
Sheikh Sharif (PW-3) has admitted in cross-examination that when the deceased was taken to the hospital along with her husband-Rajesh (PW-1), accused-Dileep also helped in boarding deceased in the vehicle and accompanied them while taking her to the hospital. If accused-Dileep has committed wrong with the deceased by taking her in a room and locked her from outside, in ordinary course, he might not have helped the deceased in boarding her on the vehicle and to accompany her towards hospital.
Gulab Bai (PW-5) has admitted that she has not complained any one about the incidence. She has not seen any cruelty committed with the deceased. She has not informed to police about the fact revealed by her in her chief-examination. She stated in paragraph-10 that she along with Advocate Surendra Pathak met with T.I., M.P. Pauranik (PW-16) who happened to be Investigating Officer of this case in relation to this case.
Raghav (PW-6), who happens to be the father of the deceased, in chief-examination has stated that the deceased has communicated him on phone that his father-in-law and husband Rajesh used to commit marpeet with her, meted out cruelty and they threat to set her ablaze. This witness has not been declared hostile by prosecution, therefore, this fact is binding upon the prosecution. He also reiterated that in the hospital along with Rajesh (PW-1) and Jawahar (PW-2), accused-Dileep was also present. The statement of this witness corroborates the fact earlier disclosed by Sheikh Sharif (PW-3), to the effect that the accused, Dilip, helped the husband and father-in-law of the deceased in placing the body of the deceased into a vehicle and further accompanied them to the hospital. This witness in paragraph-3 has again reiterated that his daughter has communicated to him that her husband, sister-in-law (Nanand) and other used to harass her. Thereupon, he on phone has given advise to the in-laws of the deceased. These all facts are binding upon the prosecution. He in paragraphs-8 and 9 of his cross-examination has admitted that he cannot say whether the deceased was died due to the cruelty meted out by the in-laws or not. He further stated that the reasons for committing suicide by the deceased might be explained by the neighbours. He also admitted that after the death of the deceased on 07.01.2010, he has given a application to Superintendent of Police about the cause of death of the deceased as in-laws have harassed her.
Suniyabai (PW-8) has deposed a different story in her statement which is found place in her police statement. She denied the story as put by the prosecution before this Court. Therefore, she declared hostile by the prosecution.
Keeping in view the aforesaid lacuna on the part of the prosecution as well as delay in lodging the FIR or submitting any complaint with regard to the incidence instantly to the police and the variation, contradiction in the statement of the witnesses being related witnesses, who are Rajesh (PW-1), Jawahar (PW-2), Gulab Bai (Pw-5) and Raghav (PW-6), are not found to be believable beyond reasonable doubt. The judgment of acquittal passed by the learned trial Court is not found to be faulty in these circumstances. There is no ground to interfere with the finding of the learned trial Court.
The learned trial Court on proper appreciation of the evidence on record has rightly given finding of acquittal of the respondent/accused persons. The prosecution has failed to establish its case with cogent and reliable evidence beyond reasonable doubt. The accused persons in light of aforesaid discussions are certainly entitled to get the benefit of doubt in this case.
In case of H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8 . 3 . The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
(Emphasis Supplied)
In case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, the Hon’ble Supreme Court, after referring to relevant precedents, has observed as follows:-
“39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.”
(Emphasis Supplied)
In case of Sadhu Saran Singh vs. State of U.P., (2016) 4 SCC 397 , the Hon'ble Supreme Court has held that:-
"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. Appellate Curt, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has not absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
Similar, in case of Harijan Bhala Teja vs. State of Gujarat , (2016) 12 SCC 665, the Hon'ble Supreme Court has held that:-
"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."
In the light of the aforesaid discussions and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the respondent/accused from the charges levelled against him. There is no ground to interfere with the findings of the trial Court.
Ex consequenti, while affirming the findings of acquittal of the respondent/accused by learned trial Court, the appeal being sans merit, is hereby dismissed.