Dismissed

State of U.P. v. Master Shakoor and Another

Allahabad HC18 Jul 2018GOVA/652/2018

Case brief

AI extract

What is this about?

Division Bench refused leave to appeal and dismissed the appeal by the State against the Sessions Judge's acquittal of two accused persons charged with murder by dowry death and cruelty. The court held that the trial court's findings were based on evidence regarding poisoning and were not perverse, citingestablished principles that acquittals should not be disturbed unless they are based on an err

What did the court decide?

Leave to appeal was rejected and the appeal was dismissed; the order of acquittal remained unchanged.

State of U.P. Vs Master Shakoor and Another — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 51

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Case :- GOVERNMENT APPEAL No. - 652 of 2018

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Appellant :- State Of U.P. Respondent :- Master Shakoor And Another Counsel for Appellant :- G.A.

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Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.

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Heard Shri Rajesh Mishra, learned Additional Government Advocate appearing for the State on the application seeking leave to appeal against the judgment and order dated 13.4.2018 passed by learned Sessions Judge, Moradabad in Sessions Trial No. 1435 of 2016 (State of Uttar Pradesh vs. Mashkoor and others), whereby the learned Sessions Judge has acquitted the present accusedrespondents for the offence under Sections 498-A, 304-B IPC and 3/4 Dowry prohibition Act.

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Shri Rajesh Mishra, learned Additional Government Advocate contends that as far as the other coaccused is concerned, he is the husband of the deceased and only convicted by the trial court. Accused-respondent No. 1 is the father-in-law and accused-respondent No. 2 is the brother-in-law of the deceased. This relationship is not being disputed and stands admitted on record.

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Keeping in view the contention of the counsel for the State and keeping in view the grounds that have been taken in the appeal, the Court has perused the findings as have been recorded by the court concerned. The relevant findings are being extracted hereinbelow:-

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"(a) the death was not unnatural and accused took the deceased to Hospital for her saving. For this, DW-1 Mobeen has been examined, who has said in his examination in chief that deceased Hina Kaushar was the wife of his elder brother Mashkoor and she was residing with her husband Mashkoor in a separate house, situated at Mohalla Rehmatnagar Karula, PS Katghar, and this accused witness along with his parents, was residing at Mohalla katar Shaheed, PS Gal Shahid. There is no contradiction, over this point of separate living, in his cross-examination, and this fact has been proved by PW7, Mahesh Kumar by documentary evidence, Ext Ka-12, and oral evidence. Hence, for this portion, this witness is believable. He has further said that Hina Kaushar was a patient of respiratory

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ailment, including heart, for which she was being treated and on the date of occurrence, she was taken to Hospital and when, this witness rushed at Hospital, she was alive, where doctor informed that she was a case of heart disease, and she was taken to another Hospital and while being taken to Sai Hospital, she succumbed. But, in crossexamination, this has been admitted by this witness that nowhere, this fact has been said by this witness prior to this statement, and it is an exaggeration. No documentary evidence about the alleged ailment and treatment, has been filed by defence and upon this point, this DW-1 Mobeen has categorically said at page no.3 that, "MAINE APNI BHABHI MRATKA KI SAANS KI BIMARI VA DIL KE DARD KA KOI KAGAJ AAJ YA AAJ SE PAHLE DAAKHIL NAHI KIYE." Hence, this lame defence taken by this witness is of no substance, because the death was owing to ingestion of sodium cyanide poison, found in the vital parts in viscera examination by F.S.L. and if, Hina Kaushar was suffering with ailment and was under treatment, then how this cyanide poison was found in her vital organs? More so, if this accused was not residing with her, how was he able to narrate so? More so, no document of treatment has been filed and this defence further adds towards the criminality.

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DW-2 Mashkoor has said on oath that he was residing with his wife in separate house since last three years, where he along with his wife was practising the E-garbage business, and she fell ill on 17.9.2016. The information was given to in-laws and she was taken to Hospital by E-rickshaw. She was taken to Help Line Hospital, Dr. Asad, Lajpatnagar and Sai Hospital. Prior to it, she was under ailment and treatment and she died owing to her illness. But, in crossexamination, it has been categorically admitted that no such appraisal was ever made, either to police officer, or to C.O., in any of the statement, recorded prior to it, nor any document of ailment and treatment has been filed on record. She was never admitted, or treated by any Medical College, or Government Hospital. Hence, the burden of proof against the presumption and proof of the charge, made by prosecution, could not be mitigated, even in the iota by the accused Mashkoor, Rather, Hina Kaushar had been proved to be died, owing to poison found in her viscera report, and this Mashkoor tried to prove the death, owing to her ailment of heart and respiratory tract, that too without any document of her treatment. This further adds towards the guilt of accused and strengthens the case of prosecution."

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Thus, with the aforesaid findings, a verdict of acquittal has been returned.

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It may also be appreciated that the Investigating Officer of the case, who has been examined as PW-7 has clearly stated that the father-in-law and brother-in-law were living separately and the case

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of separate living stands established inasmuch as the accused-respondent Nos. 1 and 2 are concerned. The cause of death is poisoning ( Sodium cyanide ). There is nothing on record, which may show that the view taken by the court concerned is a perverse view or is not a plausible view. We also find that the court has given cogent reasons for arriving at the verdict.

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"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.

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(I) Appellate Court has full powers to review the evidence upon which the order of acquittal is found it.

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(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.

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(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.

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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

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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.

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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:

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"(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,

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(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

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(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 demeanour 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

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(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."

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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 has made the observations to this effect.

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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.

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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.

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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.

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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.

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Accordingly the application seeking leave to appeal is rejected.

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Consequently, appeal is also dismissed.

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Let a copy of this order be certified to the court concerned for necessary compliance.

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Order Date :- 18.7.2018

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Sumaira

State of U.P. v. Master Shakoor and Another

Case brief

What is this about?

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State of U.P. v. Master Shakoor and Another

Case brief

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