Dismissed

State of U.P. v. Sri Ram Nishad and 2 Ors.

Allahabad HC23 Dec 2021GOVA/1000165/2007

Case brief

AI extract

What is this about?

The High Court rejected the State's application for leave to appeal under Section 378 Cr.P.C. against the acquittal of three accused persons in a dowry-related death case, holding that the trial court correctly appreciated the evidence and found no illegality in acquitting them due to lack of specific prosecution evidence against them.

What did the court decide?

Application for leave to appeal rejected; memorandum of appeal dismissed.

State of U.P. Vs Sri Ram Nishad and 2 Ors. — Domestic Violence | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No.2

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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U/s 378 Cr.P.C. No. - 165 of 2007

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State of U.P.

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....Applicant

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Through:- Smt. Smiti Sahay, Additional Government Advocate

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v/s

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Sriram Nishad and others ...Opposite parties

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CORAM : HON’BLE RAJESH BINDAL, CHIEF JUSTICE HON’BLE NARENDRA KUMAR JOHARI, JUDGE

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ORDER

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NARENDRA KUMAR JOHARI,J.

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Criminal Misc. Delay Condonation Application No.7834 of 2007:

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The present application under Section 5 of the Limitation Act has been filed for condoning the delay of 3 months 27 days in filing the application for leave to appeal.

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Heard.

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For the reasons stated in the affidavit filed in support thereof, the delay of 3 months 27 days in filing the application for leave to appeal is condoned.

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The application is allowed.

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On Main Application :

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The present Criminal Misc. Application under Section 378 (3) Cr.P.C. has been filed by the State seeking leave to appeal against

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2 U/s 378 Cr.P.C. No. - 165 of 2007

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judgment and order dated September 11, 2006 passed by Additional Sessions Judge, Fast Track Court No.1 Ambedkar Nagar in Session Trial No. 134 of 2003 (State vs. Sriram Nishad & others) arising out of Case Crime No. 32 of 2003, under Sections 498-A, 304-B I.P.C. & 3/4 Dowry Prohibition Act, Police Station Bevana, District Ambedkar Nagar, by which learned trial court had convicted accused Mahabeer Kewat under Sections 498-A & 306 I.P.C., whereas, other accused persons Sriram Nishad, Ram Awadh Nishad and Smt. Suman @ Sumati Devi were acquitted from the charges under Sections 306, 498-A, 302 I.P.C. and 3/4 D.P. Act.

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According to factual matrix of the case, the informant- Sita Ram had given a written application to police station concerned that his sister Vimla Devi was married with Mahabeer Kewat. At the time of marriage, she was approximately 5 years old. After solemnization of marriage, she went for the first time to her matrimonial home in Gauna on March 10, 1999. In the marriage and vidai (Gauna), the parents of Vimla Devi had given sufficient dowry as per their capacity but the in-laws of her sister were not satisfied and happy by the said dowry and they were demanding a motorcycle, buffalo and cash money as additional dowry. The parents of Vimla Devi could not fulfill the aforesaid demand, hence they started torturing her. Apart from that, since she was having a dark complexion, the members of her in-laws were also rebuking her for skin colour. Even, on June 5, 2003, a panchayat took place regarding torture and ill behaviour with Vimla Devi; in which the members of her in-laws had assured that they will not torture her any further and will not make any demand of additional dowry. Despite aforesaid assurance, they were continuously torturing her. On July 27, 2003, husband of another sister of informant (brother-in-law) named Indal, informed him that in-laws of Vimla Devi had killed her by burning. On succeeding day i.e. on July 28, 2003, the informant lodged an FIR in police station concerned against Mahabeer Kewat, Sriram Nishad, Ram Awadh Nishad and

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U/s 378 Cr.P.C. No. - 165 of 2007

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Suman @ Sumati Devi under Sections 498-A, 304-B I.P.C. and 3/4 D.P. Act vide Crime No.32 of 2003.

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After completion of investigation, Investigating Officer submitted chargesheet against accused persons. The case was committed to Sessions Court where charges under Section 306, 498-A, 302 I.P.C. & 3/4 D.P. Act were framed against accused persons, who denied the charges, pleaded not guilty and claimed trial.

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On behalf of prosecution, PW-1 Sita Ram, PW-2 Smt. Prabhauta, PW-3 Gulab Chandra Agrahari, PW-4 Dr. R.S. Baranwal, PW-5 Shyamdhar Bhatt, PW-6 Rajesh Kumar Srivastava, PW-7 Constable Ram Bahadur Singh deposed as prosecution witnesses.

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After conclusion of prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C. in which they stated that they had been falsely implicated in the case. Accused- Ram Awadh Nishad had stated that he was cousin of Mahabeer Kewat and was residing with his wife Suman @ Sumati Devi, separately. On behalf of accused, DW-1 Smt. Sursati and DW-2 Smt. Phoola got their evidence recorded as defence witnesses.

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Learned trial court after considering the evidence of rival parties had convicted the accused Mahabeer Kewat (husband of the deceased Vimla Devi) under Sections 306 & 498-A I.P.C. but acquitted other accused persons namely Sriram Nishad (father of Mahabeer Kewat) Ram Awadh Nishad (cousin of Mahabeer Kewat) and Smt. Suman @ Sumati Devi (wife of Ram Awadh Nishad) from the charges. Against acquittal of accused persons, present application for leave to appeal has been filed by the State Government.

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Learned Additional Government Advocate, while pressing the application for leave to appeal, argued that learned trial court by placing reliance on the evidence of prosecution had convicted one of the accused Mahabeer Kewat but acquitted other accused persons, who were also named in the F.I.R., thus the learned trial court failed to appreciate the

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4 U/s 378 Cr.P.C. No. - 165 of 2007

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material evidence and committed illegality by acquitting accused persons, hence impugned judgment is perverse and liable to be set-aside.

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Heard Smt. Smiti Sahay, learned Additional Government Advocate on application under Section 378(3) Cr.P.C. for leave to appeal and perused the record. 9. It reveals from the records that although, accused persons Sriram Nishad, Ram Awadh Nishad and Smt. Suman @ Sumati Devi are named in the F.I.R., yet neither in FIR nor in statements of any witnesses any specific role of above accused persons had been assigned by prosecution. Learned trial court held that the deceased, for the first time, went to her matrimonial home after ten years of her marriage, hence the provisions of Section 304-B I.P.C. are not applicable and there is no case of presumption under Section 113B of Evidence Act. Learned trial court had relied on the statement of witness PW-1 who had stated in his oral statement that the demand of additional dowry was made by accused persons from her sister Vimla Devi only. They had not demanded any dowry from other family members. No demand of any dowry was raised by accused persons at the time of marriage and Gauna (vidai). Witness PW-2 also on above point had given the same statement as of witness PW-1. Witness PW-2 further stated that many times her daughter had happily visited her parental home from matrimonial home happily. The fact was also brought on record by the witnesses that deceased Vimla Devi had not conceived. Witness PW-2 had further stated that since her daughter was dark in complexion, hence accused Mahabeer Kewat was rebuking and asking for divorce. The Panchayaat which took place in June, 2003, was on the subject concerned with threat of desertion/divorce to her daughter. Witness PW-1 & PW-2 had also admitted in their statements that accused Ram Awadh Nishad was residing separately from accused Sriram, who was the father-in-law of deceased. Witness PW-2 had further stated that even after three years of marriage, her son-in-law told her that since his wife was of dark in

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U/s 378 Cr.P.C. No. - 165 of 2007

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colour, therefore, he would not like to accept her as wife and will take divorce.

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During trial, witnesses DW-1 Sursati and DW-2 Phoola had stated in their evidence that deceased Vimla Devi committed suicide by closing main door of house from inside, when villagers saw fumes oozing out from her residence, they informed accused persons Mahabeer Kewat and Sriram Nishad, who, at that time, were present in their field. After getting information, accused persons, with the help of villagers, broke the lock of door and found Vimla Devi in burnt condition. No other injury except burn injury was found in postmortem report of deceased. It has been shown that two containers, one of kerosene oil and other of diesel, were recovered by the police from the place of occurrence.

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Learned trial court after taking into consideration the nature of the injury as mentioned in Post Mortem Report and placing reliance on the statement of defence witnesses, concluded that deceased was of dark complexion. She could not conceive after approximately four years of her vidai, hence her husband was rebuking and threatening her to take divorce. Fed up with the mental torture and misbehaviour of her husband, deceased committed suicide by pouring kerosene oil on her. No evidence is on record regarding any active role of other accused persons, except the role of Mahabeer Kewat, therefore, learned trial court convicted the husband of deceased for the charges under Sections 498-A & 306 I.P.C., which could not be proved against other accused persons, hence, they were acquitted from the charges.

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In a case where prosecution has failed to prove its case against accused persons beyond any doubt, the High Court has to consider the grounds on which the order of acquittal is based. The appellate court can interfere with the finding of acquittal only when there are compelling and substantial reasons for doing so. If impugned judgment is clearly unreasonable and it is found that a relevant and convincing material has been unjustifiably eliminated, certainly the appellate court can interfere with the finding of trial court. In other words, where the evidence on

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6 U/s 378 Cr.P.C. No. - 165 of 2007

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record has not been properly analyzed or the court has acted on surmises and conjectures, it is duty of the court of appeal to set right the wrong.

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Findings of acquittal based on proper appreciation of evidence, should not be interfered with on flimsy ground. The presumption of innocence is always attached with accused, which is strengthened by their acquittal.

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Having considered the facts, circumstances and evidence available on record, in our view, the judgment under appeal is elaborate and based on proper appreciation of evidence. No illegality or perversity is found. There is no hope of success in appeal, hence the application for leave to appeal is liable to be rejected.

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In view of above, the application u/s 378 (3) Cr.P.C. for leave to appeal is hereby rejected. Consequently, the memorandum of appeal also stands dismissed.

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(Narendra Kumar Johari, J.) (Rajesh Bindal, C.J.)

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Lucknow December 23, 2021

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Reena/AHA

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Whether the order is speaking:Yes/No Whether the order is reportable:Yes/No

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Digitally signed by REENA KANNAUJIYA Date: 2022.03.14 15:00:17 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Sri Ram Nishad and 2 Ors.

Case brief

What is this about?

What did the court decide?

State of U.P. v. Sri Ram Nishad and 2 Ors.

Case brief

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What did the court decide?

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