State of Madhya Pradesh vs Kanti Bai

This application has been filed by the State under Section 378 (3) of the Code of Criminal Procedure for grant of leave to appeal against acquittal.

It is a matter of record that respondents/accused persons Kantibai, Neeraj, Moolchand and Bhagwatibai were tried for the offences punishable under Sections 304-B and 498-A of the I.P.C. in the Court of Additional Sessions Judge, Raisen. In addition thereto, accused respondent Kantibai was tried under Section 302 of the I.P.C. and respondents Moolchand and Bhagwatibai were tried for the offence punishable under Sections 302 read with section 34 of the I.P.C. After trial, learned Additional Sessions Judge acquitted the respondents of all charges by judgment dated 18.7.2014. Aggrieved by the same, this application for leave to appeal has been filed by the State.

The case of the prosecution may briefly be stated thus:- deceased Umabai was married to respondent Neeraj within 7 years next before the date of the incident. Kantibai is sister, Bhagwatibai is mother and Moochand is father of respondent Neeraj. Since her marriage, Umabai was harassed and prosecuted by Moolchand, Bhagwatibai, Kantibai in connection with demand for dowry. At around 09.30 a.m. on 15.09.2009, when accused Neeraj was not at home, Moolchand and Bhagwatibai caught hold of Umabai and Kantibai poured kerosene on her and set her ablaze. Umabai ran out shouting "Bachao Bachao". Thereafter, Kantibai poured water on her. After sometime, Neeraj returned to his home and took deceased Umabai to the hospital at Deori; wherefrom, she was taken to Hamidia Hospital, Bhopal and therefrom, to Peoples Hospital, Bhopal, where she breathed her last on.

On 15.09.2009, at the instance of respondent Neeraj, it was entered into Roznamcha Sanha at police station Deori that on the fateful morning, he had gone to a private school to teach. He was informed on telephone that his wife Umabai had caught fire and had sustained injuries. On reaching home, his wife told him that when she was preparing tea on stove it flared up and her clothes caught fire. On the same date, Head Constable Surat Singh Rajput recorded the statement of deceased Umabai under section 161 of the Cr.P.C. in the hospital; wherein, she repeated aforesaid story. However, on 18.09.2009, when a Executive Magistrate recorded her dying declaration, she stated that her father in law Moolchand, mother in law Bhagwatibai and sister in law Kantibai used to harass her for demand of dowry and since, she was unable to meet the demand; her sister in law Kantibai poured kerosene on her and set her afire. Archana, mother of the deceased, Sandeep, brother of the deceased and Ashok Kumar, father of the deceased have also stated that deceased Umabai informed them that Moolchand, and Bhagwatibai, caught hold of her hands and Kantibai poured kerosene on her and set her afire. After investigation, a charge sheet under Sections 302, 304-B and 498-A read with section 34 of the I.P.C. was filed and the charges as aforesaid, were framed.

Learned Dy. Government Advocate has submitted that learned additional Sessions Judge failed to properly appreciate the testimony of the witnesses and the documents produced on behalf of the prosecution. He further submits that the accused persons have been acquitted on unsubstantial grounds disbelieving dying declaration recorded by the Executive Magistrate, wherein she had categorically stated that her sister in law Kantibai had poured kerosene on her and set her afire. Therefore, it has been prayed that leave to appeal against acquittal be granted.

From study of recent judgments of Supreme Court on the question of scope of powers of the Court in an appeal against acquittal, in the cases of Chandrappa and Others Vs. State of Karnataka, (2007) CriLJ 2136 : (2007) 3 JT 316 : (2007) 3 SCALE 90 : (2007) 4 SCC 415 : (2007) 2 SCR 630 , Murugesan and Others Vs. State through Inspector of Police, AIR 2013 SC 274 : (2013) 1 JCC 118 : (2013) 1 RCR(Criminal) 791 : (2012) 10 SCALE 378 : (2012) 10 SCC 383 : (2012) AIRSCW 5627 , Mookkiah and Another Vs. State rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 : (2013) 1 Crimes 8 : (2013) 1 JT 626 : (2013) 1 SCALE 95 : (2013) 2 SCC 89 : (2013) AIRSCW 339 : (2013) 1 Supreme 88 , Habib Vs. State of Uttar Pradesh, (2013) 6 AD 152 : AIR 2013 SC 1764 : (2013) 6 SCALE 551 : (2013) 12 SCC 568 , State of Madhya Pradesh Vs. Dal Singh and Others, (2013) 6 AD 475 : AIR 2013 SC 2059 : (2013) CriLJ 2983 : (2013) 3 JCC 2010 : (2013) 8 JT 625 : (2013) 3 RCR(Criminal) 1 : (2013) 7 SCALE 513 : (2013) 14 SCC 159 and State of U.P. Vs. Gobardhan and Others, (2013) 7 AD 308 : AIR 2013 SC 3033 : (2013) 13 JT 605 : (2013) 8 SCALE 109 : (2013) 14 SCC 751 : (2013) AIRSCW 4507 : (2013) 4 Supreme 681 , following broad principles may be culled out.

(1) The appellate Court has full power to review, re- appreciate and reconsider the evidence etc.

(2) The code of Criminal Procedure 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate Court on the evidence before it may reach its own conclusion both on the questions of fact or of law.

(3) The reversal of the acquittal can be made only if the conclusions recorded by the learned trial Court do not reflect a possible view. "Possible view" denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher Court.

(4) The court should interfere only where it finds an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view.

(5) In exceptional circumstances and for compelling reasons the appellate Court should not hesitate to reverse a judgment of acquittal passed by the lower Court, if the findings so recorded by lower Court are found to be perverse, i.e. if the conclusions arrived at by the Court are contrary to the evidence on record, or if the Courts entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case.

(6) Subject to aforesaid, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.

(7) The appellate Court must bear in mind that the presumption of innocence in favour of the accused has been bolstered by an acquittal by the lower Court.

In the backdrop of aforesaid legal position, an examination of fact situation in the instant case reveals that it has not been disputed that Umabai died in unnatural circumstances within 7 years of her marriage to accused Neeraj. Prosecution case is based mainly upon the statements of Archana (PW/1), Ashok Kumar (PW/10), and Sandeep (PW/11) and the dying declaration (Ex.P/12) recorded by the Executive Magistrate, Narendra Singh Thakur (PW/13). Learned trial Court has discussed and analyzed the statements of each and everyone of the aforesaid witnesses as also the dying declaration (Ex.P/12) recorded by the Executive Magistrate. Extensive reasons have been assigned for disbelieving the testimony of the aforesaid witnesses. Cogent reasons have also been given for disbelieving the dying declaration recorded by the Executive Magistrate.

Learned trial Court is of the view that the statements of the witnesses under section 161 have been recorded after a long delay. In the opinion of the trial Court, the factum of delay is significant because the witnesses introduced a new element in the prosecution story and stated that while accused Kantibai poured kerosene on the deceased, accused persons Moolchand and Bhagwatibai caught hold of her. It has also been observed that in her statement before the Court Archana (PW/1) has given a vastly execrated account of the incident but with regard to demand for dowry, she has made a bald statement that the accused persons used to demand dowry. She did not specify as to what articles were actually demanded in dowry. She has also stated that the deceased had complained that accused persons used to beat her up but this fact was missing from her statement under Section 161. Jyoti (PW/4), who is sister of Archana, has stated that deceased Umabai never complained against her in laws and in fact she used to tell that her in-laws kept her well. Even father of the deceased, Ashok Kumar (PW/10), was declared hostile by the prosecution and after being declared hostile, he supported the prosecution case. Likewise, learned trial Court disbelieved Sandeep because he kept shifting his stance during his examination and never stuck to one position.

Learned trial Court has further observed that Jalamsingh (PW/6) has supported the defence and has stated that he is neighbour of the accused persons. On the date of the incident, he saw the deceased Umabai running out of their house with her clothes on fire. Deceased informed him that she caught fire because stove had flared up. This witness was not declared hostile by the prosecution. The trial Court has also disbelieved the version of Investigating Officer that the deceased the incident occurred in the court-yard and not inside the room.

So far as dying declaration is concerned, learned trial Court has observed that there are multiple dying declarations. The statement of the deceased recorded under Section 161 by (PW/7) Head Constable Surat Singh Rajput was first in point of time, wherein deceased had stated that her clothes caught fire because the stove flared up while she was preparing tea. This statement of the deceased contradicted dying declaration recorded three days later by the Executive Magistrate. The trial Court held on the basis of the evidence available that there are reasons to believe that deceased Umabai was tutored by her mother Archana and brother Sandeep because they were with her between 15th and 18th of September, 2009. Learned trial Court was also of the view that even at the time of recording of the subsequent dying declaration, Archana tried to interfere with the recording and was telling certain things to the deceased.

In the facts and circumstances of the case, learned trial Court believed the statement given by Kapil (DW/1) Gauribai (DW/2), and Shivprasad (DW/3), who were all neighbours of the accused persons and were present on the spot.

In aforesaid circumstances, learned trial Court concluded that the family of the deceased was demanding return of articles given to Umabai in dowry at the time of her marriage, after her death and in order to pressurize the accused persons, they were implicated in the case.

On aforesaid grounds, learned trial Court acquitted the accused persons extending benefit of doubt.

As already observed in forgoing paragraphs that though, in an appeal against acquittal appellate Court has full power to review, re-appreciate and reconsider the evidence and there are no limitations, restrictions or conditions on the exercise of such powers the reversal of acquittal can be made only if the conclusion recorded by the trial Court do not reflect a possible view. The apex Court has further clarified that the term "possible view" denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher Court. The apex Court has further cautioned that the appellate Court should interfere with the acquittal only where it finds an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view. The Supreme Court has also observed that only in exceptional circumstances and for compelling reasons should the appellate Court reverse the judgment of acquittal passed by the lower Court. Such a course should be adopted where findings recorded by the trial Court are found to be perverse that is to say, if the conclusions are contrary to the evidence on record or entire approach of the trial Court with regard to dealing with the evidence, is patently illegal leading to miscarriage of justice. Interference can also be made if the judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. Moreover, appellate Court has also to keep in mind that the presumption of innocence in the favour of the accused has also fortified by acquittal by the trial Court.

In the opinion of this Court, learned trial Court had considered all available evidence on record in its entirety and on proper appreciation of evidence, after assigning detailed and cogent reasons, has acquitted the accused persons/respondents and this Court should not interfere with the acquittal simply because it is possible to take a different view of the evidence on record.

Accordingly, this application for leave to appeal against acquittal deserves to be and is hereby dismissed.

Certified copy as per rules.