STATE OF U.P. Vs. AVANISH KUMAR

JUDGEMENT

(1.) THE instant appeal has been preferred against the judgment and order of acquittal dated 12.02.2007 passed by learned Additional District & Sessions Judge, Court No.4, Bijnor, in Sessions Trial No.396 of 2004 arising out of Case Crime No.490 of 2002 under Sections 304 -B, 498 -A, 201 I.P.C. and 3/4 Dowry Prohibition Act, Police Station Mandawali, District Bijnor. Before proceeding further with the merits of the case, it would be relevant to consider the delay condonation application moved on behalf of the State. We have taken note of reasons explaining two days' delay. We also perused carefully affidavit filed in support of the delay condonation application. The reasons given in support of delay are explained satisfactorily. Delay is condoned. Briefly stated facts of this case are that a complaint dated 30.08.2002 (Ext. Ka -1) was lodged by complainant Sagar Singh at Police Station Mandawali, Bijnor wherein it was stated, inter -alia, that he got wedded his daughter Babita with Avnish Kumar @ Babloo one and half year ago. After marriage, his daughter was harassed MENTALLY and physically for the sake of dowry demand. She used to tell about demand of dowry as and when she used to come to her parental home. The accused persons also demanded dowry when the complainant's brother Narpal Singh went for Bidai of Babita at the occasion of Teej festival. On 28.08.2002 someone telephonically informed former Pradhan of his Village, Chandra Pal Singh that Babita has been killed by the accused persons by hanging. The complainant was also informed about death of Babita by Sanjeev Kumar who told that he himself saw the accused persons kill Babita by using rope. It was also averred in the first information report that the accused persons have caused death to Babita by hanging and have clandestinely disposed of her dead body. Thereafter the matter was investigated into by the Deputy Superintendent of Police, Nazibabad and charge sheet was filed against the accused persons in the matter. Thereafter the case was committed to the court of Sessions from where it was made over for trial to the trial court whereupon the accused persons were heard on the point of framing of charge and prima facie ground was found existing for framing charge under Sections 304 -B, 498 -A, 201 I.P.C. and 3/4 Dowry Prohibition Act. Charges were read over and explained to the accused who denied the charges and opted for trial. In order to prove its case, the prosecution in all produced Sagar Singh PW -1; Narpal Singh PW -2; Sanjeev Kumar PW -3; Head Constable Mukhram Singh PW -4 and Investigating Officer, Satyapal Singh, Deputy Superintendent of Police PW -5. Thereafter the prosecution evidence was closed.

(2.) THE statement of accused persons were recorded under Section 313 Cr.P.C. wherein accused persons denied their complicity in the offence stating that the deceased Babita died from SEVERE DEPRESSION she suffered on account of death of her male child soon after his birth. It was further stated that marriage between Babita and Avnish Kumar @ Babloo was love marriage. The death in question was natural one due to severe depression as a result of the death of her newly born male child. In turn the defence produced in all five witnesses namely Smt. Vimlesh Sati DW -1; Naresh Kumar DW -2; Natthu Singh DW -3; Dr. Reeta Tyagi DW -4 and Dr. Nirupma Choudhary DW -5. The trial court after hearing both the sides found the prosecution story improbable and witnesses contradicting each other in material particulars and improving their version, therefore, acquitted all the accused persons of charges. Hence this appeal. The point involved for adjudication in this appeal requires consideration - whether the impugned judgment is perverse and finding of acquittal recorded by the trial court is not based on material on record ? In this context, it is relevant to mention that the trial court took note of essential ingredients of dowry death as enumerated under Section 304 -B I.P.C. and considered each ingredient vis a vis evidence on record and found that the death in question was not caused by the accused persons but it was due to DEPRESSION which made great impact upon the deceased Babita because of death of her male child a few days after his birth. As per testimony on record, she was deeply shocked and depressed over death of her newly born son. In this context, the trial court has also considered the evidence and the attending circumstances in which Sanjeev Kumar claims himself to have witnessed killing of Babita by the accused persons; but his entire conduct and reaction subsequent to his witnessing the killing of Babita is highly unnatural and improbable.

(3.) AT the cost of repetition we may summarize, that the trial court was justified in terming Sanjeev Kumar PW -3 as highly unnatural and improbable prosecution witness. Though the complainant got information well in time in the night that in -laws of Babita had killed her and they were planning clandestinely to dispose of the dead body (of Babita), but the complainant who is father of Babita remained inactive for the whole night and the first information report was lodged after two days of the occurrence which generates lot of doubt in the prosecution version. In the backdrop of above discussion, we find it appropriate to affirm the finding of acquittal as recorded by the trial court. We do not see any infirmity in the finding of acquittal recorded by the trial court. Moreover it is cardinal principle of criminal jurisprudence that presumption of innocence runs in favour of the accused when the trial commences and the same presumption of innocence continues even at the appellate stage and it gets strengthened by verdict of acquittal which verdict should not be disturbed by the appellate Court if the conclusion drawn is based on material on record. Further we may observe that in cases where two views are possible then the view taken and adopted by the trial court, if found to be based on material on record, the same need not be substituted by another view by the appellate Court. The aforesaid view has been categorically mandated by Hon'ble Apex Court in the case of Bhadragiri Venketa Ravi Vs. Pubic Prosecutor High Court of A.P., Hyderabad reported in 2013 (4) Supreme 450. Thus, the instant appeal preferred against the impugned judgment and order of acquittal needs no interference by this Court. The instant appeal is, accordingly, dismissed. Leave to appeal is refused. Let a copy of this order be certified to the trial court concerned.