ARVIND KUMAR MISHRA J. - (1.) APPELLANT State of U.P. has challenged judgment and order of acquittal dated 4.7.2001 passed by VIIIth Additional Sessions Judge, Varanasi in Sessions Trial No.36 of 1998 arising out of Case Crime No.209 of 1994, under Sections 498 -A, 304 -B, 201 IPC and ¾ D.P. Act, Police Station Baragaon, district Varanasi. At the very outset, it is relevant to mention that this Government Appeal against acquittal was filed against three accused persons, namely, Kamlesh Maurya @ Kamlesh Kumar Maurya, Lochan @ Ram Lochan Maurya and Smt. Phool Kumari. During pendency of this appeal, it transpired that respondent accused no.2 Lochan @ Ram Lochan Maurya expired way back in 2005. In this context, a report was obtained from Chief Judicial Magistrate, Varanasi, who after conducting inquiry into death of aforesaid accused submitted report vide his letter dated 28.3.2004 that accused Lochan @ Ram Lochan Maurya has died. Therfore, case of aforesaid accused Lochan @ Ram Lochan Maurya stands abated. Now, this appeal is filed against the two surviving accused persons, namely, respondent no.1 and respondent no.3, namely, Kamlesh Maurya @ Kamlesh Kumar Maurya and Smt. Phool Kumari. Now, this appeal is directed against the two surviving accused - respondent no.1 and respondent no.3, namely, Kamlesh Maurya @ Kamlesh Kumar Maurya and Smt. Phool Kumari, respectively. We have heard learned AGA for State and learned counsel for the accused -respondents and perused entire record of this appeal.
(2.) AS per prosecution case, first information report was lodged at police station Baragaon, district Varanasi by complainant Ram Chandra Maurya (father of the deceased) to the fact that her daughter Gayatri Devi was wedded to one Kamlesh Maurya @ Kamlesh Kumar Maurya son of Ram Lochan Maurya wherein complainant gave articles as per his capacity. In the MARRIAGE ceremony, during the occasion of 'khichari', Ram Lochan Maurya (father -in -law of the deceased) became angry and adamant and he demanded Rajdoot Motorcycle and Colour T.V. The complainant side somehow reconciled Ram Lochan Maurya then 'khichari' ceremony was duly performed. After three years of the marriage, in the 'gauna' ceremony, her daughter Gayatri Devi went to her in -laws where she was accompanied by complainant's brother Prem Chandra Maurya where Gayatri Devi told him that dowry is being demanded from her by Kamlesh Maurya @ Kamlesh Kumar Maurya (husband of the deceased), Ram Lochan Maurya (father -in -law of the deceased), Smt. Phool Kumari Devi (mother -in -law of the deceased), Rajesh ('dever' of the deceased) and her two 'nanads'. When Ram Chandra the complainant went for 'vidai' of her daughter after 'gauna' the demand of dowry and cruelty being perpetrated was repeated. When Gayatri Devi came to her parental house, she told about above demand of dowry and cruelty being perpetrated to her to one and all. Some reconciliatory process took place between both the complainant and the accused side. Thereafter Gayatri Devi left for her in -laws. Thereafter on the intervening night of 16/17.12.94 accused persons Kamlesh Maurya @ Kamlesh Kumar Maurya (husband of the deceased), Ram Lochan Maurya (father -in -law of the deceased), Smt. Phool Kumari Devi (mother -in -law of the deceased), Rajesh (dever), Tejan and Guddi (both nanad of the deceased) caused dowry death of Gayatri Devi and her half burnt body was flown into Varuna river. Therafter the matter was investigated into by the police. This report is Exhibit Ka -1 on record. Thereafter the matter was investigated by the police. Who after completing necessary formalities prepared inquest report, postmortem report, site plan and recording statement of witnesses etc. and filed chargesheet whereupon the matter was committed to the court of sessions. Only three accused persons were charged under Section 498 -A, 304 -B, 201 IPC and ¾ D.P. Act. The charges were read over and explained to them, who denied the charges and opted for trial. Prosecution produced in all six witnesses thereafter evidence for the prosecution was closed and statement of accused PERSONS were recorded under Section 313 Cr.P.C. The defence led both the ocular as well as documentary evidence on their count defence produced in all witnesses and filed three papers, which defence proved as Exhibit Kha -1, Kha -2 and Kha -3. Trial court after hearing both the sides found charges under the aforesaid sections of Indian Penal Code and Dowry Prohibition Act respectively not proved and acquitted accused persons. Hence, this appeal. The basic point for determination in this appeal is whether the trial court was not justified in recording finding of acquittal as the material available on the file did not justify the same? In this context, we have carefully perused the record and the judgment and also considered the various aspects of the case. The fact of marriage is admitted to both the sides. Similarly, death of victim Gayatri Devi is also admitted to both the prosecution and the defence. It is also admitted that she died within seven years of her marriage. In this context, trial court has considered the matter on various counts, whether the death in question was natural or unnatural, whether the victim/deceased was maltreated or harassed by her husband or any relative of her husband for, or in connection with any demand for dowry? In this context, lower court has exhaustively dealt with the circumstances vis -a -vis the testimony on record and recorded finding that the death in question was natural in the sense that the victim Gayatri Devi was suffering from Ascites (Jalodar) and she was given TREATMENT for this decease, which fact has been cogently proved by the defence. Next, the trial court also recorded finding that the very demand of dowry as alleged by the prosecution, does not find support either from the testimony of prosecution witnesses or from the circumstances of the case. Reason being that it is customary and it is normal in marriages that during 'Khichari' ceremony the groom side usually raises some demand and the bride groom side usually satisfies that demand. Here in this case in hand motorcycle and colour T.V. was demanded at the time of 'Khichari' ceremony and the matter ended there. Prosecution version that demand of dowry existed and continued after marriage can not be accepted for the reason that no specific demand was either made in that regard prior to marriage or subsequent to the marriage. As per prosecution evidence dowry demand subsequent to the marriage has not been substantiated. Conversely, the defence has been able to rebut the presumption so raised against them under Section 113 -B Indian Evidence Act. In this regard, record reveals that the complainant was very much present on the occasion of funeral of his daughter and he endorsed document to the effect that he has no objection to the funeral of his daughter. In this context reference may be made of Exhibit Kha -3. The defence witnesses are independent witnesses and they can not be termed interested witnesses as they have no enmity with the complainant side. There is no reason to brush aside their testimony, which carry substantial force and prove fact, that the accused persons in fact gave long treatment to the deceased. In this context, Exhibit Ka -1 is quite relevant, which is register of treatment and this register bears name of Gayatri Devi at serial/number allotted to the patient, which is 2534. Thus, the finding recorded in so far as it relates to natural death of Gayatri Devi need not be interfered with at our end. Further, paper Exhibit Ka -7 looses its efficacy in view of the fact that the same was a manufactured document as per the testimony and the circumstances available on record. Further, original paper of Exhibit Ka -7 has also not been brought before the trial court. Site plan of the incident was prepared at the instance of the complainant and the site plan mentions the place where the dead body was lying, therefore, claim of prosecution to the extent that complainant was not present at funeral of his daughter and the accused persons tried to make disappear evidence of crime is negated by the evidence and circumstances of the case and the trial court has reasonably recorded finding to that effect which we find based on material on record. Investigating Officer has left two sisters of husband and dever of deceased out of the charge -sheet and did not find any linking evidence against them for submitting charge -sheet. In view of above, facts and circumstances of the case, the trial court was justified in recording finding of acquittal against the aforesaid accused persons.
(3.) IT is cardinal principle of criminal jurisprudence that presumption of innocence runs with an accused right from the stage of commencement of trial and it CONTINUES upto the appellate stage and in case of acquittal, this presumption of innocence is further strengthened in favour of accused. Before parting with our judgment, we would observe that in cases where two views regarding the same matter are possible then the view taken by the trial court, is to be adopted if the view is based on material on record and there is no perversity discovered then the view of trial court is to be adhered to even at appellate stage. The view of the trial court is not to be upheld by the Appellate Court only when Appellate Court finds that the view so taken is perverse and not based on material on record. This law has been laid down by the Hon'ble Apex Court in the case of Bhadragiri Venkata Ravi v. PUBLIC Prosecutor High Court of A.P., Hyderabad ; 2013 (4) Supremet 450) We may positively conclude that the grounds urged in support of this appeal sans merit and judgment of acquittal delivered by the trial court is accordingly affirmed by us. Consequently, appeal is dismissed. Leave to appeal is refused. Let copy of this order be certified to the court concerned. Dt. 28th July, 2014 Rk;