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2016 DIGILAW 825 (MP)

State Of M. P. v. Latif Kha

2016-09-16

C.V.SIRPURKAR, RAVI SHANKAR JHA

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ORDER : C. V. SIRPURKAR, J. This miscellaneous criminal case has been instituted on an application under section 378(3) of the Criminal Procedure Code for special leave to appeal against acquittal. It is directed against judgment dated 7-8-2015 passed by the Court of First Additional Sessions Judge, Damoh in Sessions Trial No.249/2012, whereby the accused persons/respondents Latif Khan, Peer Khan, Munna Khan, Haseena Begum and Ajjobai were acquitted of the charge under sections 304-B, in the alternative 302 and 498-A of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act. 2. As per the prosecution case, deceased Zarina died of burns under unnatural circumstances within seven years of her marriage and she was subjected to cruelty in connection with demand for a motorcycle in dowry by the respondents who were her husband and his relatives, soon before her death; therefore, the respondents are responsible for causing her dowry death. In the alternative, it was alleged that the respondents poured kerosene on Zarina and set her afire; therefore, they were guilty of committing murder. 3. 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 vs. State of Karnataka, (2007) 4 SCC 415 , Murugesan vs. State through Inspector of Police, AIR 2013 SC 274 , Mookkiah vs. State, Rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , Habib vs. State of Uttar Pradesh, AIR 2013 SC 1764 , State of Madhya Pradesh vs. Dal Singh, AIR 2013 SC 2059 and State of U. P. vs. Gobardhan, AIR 2013 SC 3033 , following broad principles may be culled out : (1) The appellate Court has full power to review, reappreciate 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. (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. 4. In the case at hand, after due appreciation of evidence, the trial Court held that there were no eye witnesses to the incident and the case of the prosecution was based mainly upon dying declaration (Ex.P/28) recorded by Dr. A. K. Verma (PW/15) in the Medical College, Jabalpur during her treatment as also the alleged oral dying declaration made by deceased Zarina to her mother Mariam (PW/4). It transpired during the trial that the prosecution had filed two separate written dying declarations made by deceased Zarina. The first one was made on 2-4-2012, i.e. on the day next to the incident (Ex.D/2) recorded by Nayab Tehsildar H. D. Shrivastava, (DW/1). The second one was recorded by Dr. It transpired during the trial that the prosecution had filed two separate written dying declarations made by deceased Zarina. The first one was made on 2-4-2012, i.e. on the day next to the incident (Ex.D/2) recorded by Nayab Tehsildar H. D. Shrivastava, (DW/1). The second one was recorded by Dr. A. K. Verma (PW/15) in the Medical College, Jabalpur on 4-4-2012, i.e. three days after the incident. Both of the dying declarations are contradictory. In the first dying declaration recorded on 2-4-2012, deceased Zarina has stated that at about 8.00 p.m. on 1-4-2012, she was alone on the first floor of the house. Her mother-in-law was at the ground floor. Her husband had gone to his field. Since, there was a power failure, she lit a kerosene lamp, which was placed at a height. Accidentally, the lamp fell down and her clothes caught fire; therefore, she suffered burns. In the second dying declaration made to Dr. A. K. Verma, she has stated that at around 8.00 p.m. on the date of the incident, her husband had returned home after consuming liquor and started to beat her up. He poured kerosene upon her and set her ablaze. When she screamed, her father-in-law, mother-in-law, brother-in-law (Jeth), sister-in-law (Jethani), sister-in-law (Nanad) and her husband doused the fire and took her to the hospital. In the first dying declaration, she has stated that 8 years had elapsed since her marriage whereas in the second one, she has stated that her marriage was solemnized 6 or 7 years ago. Thus, it may be seen that both the dying declarations are irreconcilable. In the first one, the incident has been shown to be accidental in nature and in the second one, it has been shown to be homicidal; however, in neither of them, has an incriminating role been ascribed to accused persons Peer Khan (Father-in-law), Munna Khan (Jeth), Haseena Begum (Jethani) and Ajjobai (Nanad). 5. The trial Court has considered both the dying declarations from all angles and after assigning detailed and cogent reasons has held that the first dying declaration recorded by Naib Tahsildar H. D. Shrivastava, was reliable. Some of the reasons that have been assigned for disbelieving the dying declaration made to Dr.A. K. Verma are as follows : (1) Dr. 5. The trial Court has considered both the dying declarations from all angles and after assigning detailed and cogent reasons has held that the first dying declaration recorded by Naib Tahsildar H. D. Shrivastava, was reliable. Some of the reasons that have been assigned for disbelieving the dying declaration made to Dr.A. K. Verma are as follows : (1) Dr. A. K. Verma (PW/15) seem to have recorded dying declaration on his own initiative and without being asked by any of the authorities to do so. (2) Before recording dying declaration, he did not inform either the police or the Executive Magistrate. (3) No note to the effect that deceased Zarina was physically and mentally fit to give the dying declaration and continued to be so in the entire duration of recording of the statement; has been affixed to the dying declaration. (4) though the dying declaration is said to have been recorded in the Medical College, Jabalpur, it has been recorded in the case-sheet of Mohanlal Hargovinddas Hospital; (5) Dr. A. K. Verma did not remember as to whether he had ensured that the relatives of the deceased were not present at the time of recording of dying declaration; (6) Dr. A. K. Verma could not remember as to whether the dying declaration was given to Lordganj Police in a sealed condition. 6. So far as the oral dying declaration made to Mariam (PW/4), mother of deceased Zarina is concerned, learned trial Court has found the witnesses unreliable in view of numerous discrepancies in her statements and also in view of the fact that her statements were not supported by the statements of her brother and nephew, Hazrat and Yusuf Khan respectively. The trial Court further held that Zarina had not returned to her maternal home for about a year next before her death. The mother and the daughter had no telephonic communication either; therefore, it was held that the statement of Mariam that the deceased was subjected to cruelty in connection with demand for a motorcycle in dowry, was also not reliable. 7. In aforesaid circumstances, in the opinion of this Court, learned trial Court has considered the entire material against accused on record in its entirety and on proper appreciation of evidence, after assigning detailed and cogent reasons, has acquitted the accused/respondent. 7. In aforesaid circumstances, in the opinion of this Court, learned trial Court has considered the entire material against accused on record in its entirety and on proper appreciation of evidence, after assigning detailed and cogent reasons, has acquitted the accused/respondent. Thus, there is no ground even to take a different view of the evidence on record. 8. Accordingly, this application for leave to appeal against acquittal deserves to be and is hereby dismissed.