Allahabad High Court
State Of U.P. vs Harveer Yadav S/O Prem Singh @Mooseram on 3 April, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:46109-DB Reserved On:18.03.2025 Delivered On:-03.04.2025 Case :- GOVERNMENT APPEAL No. - 473 of 2022 Appellant :- State of U.P. Respondent :- Harveer Yadav S/O Prem Singh @Mooseram Counsel for Appellant :- Shiv Kumar Pal Counsel for Respondent :- Syed Ali Imam Hon'ble Siddharth,J.
Hon’ble Mohd. Azhar Husain Idrisi,J.
Order on (Leave to Appeal)Application No…./2022
1. Heard Sri Gyan Narayan Kanaujiya, learned AGA-Ist for State-appellant and perused the record.
2. The above noted leave to appeal application has been filed praying for grant of leave to the appellant to prefer appeal against the judgement and order dated 19.04.2022 passed by Additional Sessions Judge, /F.T.C-1, District- Gautam Buddha Nagar, in Sessions Trial No. 557 of 2015 (State of U.P Vs. Harveer Yadav).
3. By the aforesaid judgement and order, the accused-respondents have been acquitted of all charges under Sections- 498-A, 304-B of IPC and other sections 302 read with section 34 IPC and section 4 of D.P. Act, which was registered as Case Crime No. 605 of 2015 at Police Station – Phase-3, District-Gautam Buddha Nagar.
4. The Criminal AppealU/S 372 Cr.P.C., No. 949/2022 preferred by the informant is being dismissed by the following order of date which is quoted hereinbelow:-
“1. Heard Sri Sachin Kanaujiya, learned counsel for the appellant, Sri Rajesh Kumar Sharma and Sri Ravindra Sharma, learned counsel for respondent no.2, Sri G. N. Kanaujiya, learned AGA-1st, for the State-respondent no.1 and perused the material on record.
2. The above noted Criminal Appeal U/S 372 Cr.P.C. has been filed against the judgment and order of acquittal dated 19.04.2022 passed by Addl. Sessions (FTC), Court No. 1, Gautam Buddh Nagar, in Sessions Trial No. 557/2015 (State of U.P. Harveer Yadav) arising out of case crime no. 608/2015, under sections 498-A, 304-B and alternative charges under section 302 read with section- 34 IPC and Section 3/4 of D.P. Act, Police Station-Phase-3, District- Gautam Budh Nagar.
3. The prosecution case is that daughter of the informant, Sundar Singh, got married with respondent’s elder brother, Pintu, in the year 2008, but Pintu died in a road accident in the year 2008. The daughter of informant was then married to respondent, Harveer, as per wishes of the family. Later on, the informant was informed by his daughter that cruelty is being committed against her by the respondent’s, brother-in-law, Mintu, and the respondent. On inquiry it was found that Harveer was having illicit relationship with some other girls and family members have got him married to the daughter of informant against his wishes. Since no dowry was given in the marriage of respondent with the daughter of informant, she was subjected to cruelty. Number of panchayats were held in this regard, but in vain. The deceased was subjected to strangulation on 19.06.2015. F.I.R., whereof was lodged at 09:05 hours on 20.06.2015 by the informant as case crime no. 608 of 2015, registered under sections 304-B and 498-A IPC at Police Station- Phase-3, District- Gautam Buddh Nagar.
4. To bring home the charges framed against respondent, Harveer Yadav, the prosecution got examined following eight witnesses-
Sunder Singh, the complainant as PW-1; Raje as PW-2; Nanda as PW-3; Dr. Anil Kumar, the medical expert, as PW- 4; Rishipal Singh, the scribe of FIR as PW-5; Dr. Anoop Singh, the Investigating Officer as PW-6; Phool Singh as PW-7 and Prakash Singh as PW-8.
5. After the process of recording of all evidence, the Court examined accused, Harveer Yadav, under section 313 of Code of Criminal Procedure. In his defence, he got examined DW-1 Jagdish Chandra, but no documentary evidence in defence was filed.
6. Learned counsel for the appellant has submitted that it is a case of harassment of the deceased for dowry and her consequential dowry death. There was a mark of abrasion on the neck of the deceased which proved that she was subjected to cruelty prior to her death. He has further submitted that the deceased died in the house of the respondent and, therefore, as per section 106 of the Evidence Act, the burden of proof was on the respondent to prove that the deceased was not subjected to any cruelty in connection with demand of dowry soon before her death. It has been further submitted that the trial court has committed gross legal error in acquitting the respondent of all the charges. Hence, the above noted appeal has been preferred by the informant and it deserves to be allowed.
7. Learned counsel for the respondent has submitted that the prosecution has miserably failed to prove its case regarding demand of dowry. Prosecution witnesses, P.W.-1, P.W.-2 and P.W.-3 have categorically stated in their cross examinations that there was no demand of any dowry from the side of accused. Similarly the prosecution has failed to prove alleged illicit relation of respondent with other woman, in as much as name of the woman, her parentage, address nothing has been brought on record, therefore, there is no evidence at all to prove this fact. The prosecution case right from First Information Report upto the deposition of the PWs was that husband and in-laws murdered the deceased by strangulation and there were injury marks over her body but the postmortem report (Ex K7) and the evidence of P.W.4, Dr. Amit Kumar, disproved death of deceased by way of strangulation. Even cause of death of deceased could not be ascertained by postmortem examination. Regarding single minor abrasion on neck of deceased PW4 Dr. Amit Kumar has stated that it was not fresh injury and said simple abrasion could not be the cause of death. The prosecution has not only failed to prove death of deceased being homicidal but has also failed to prove the death being suicidal and it is important that the viscera report was not produced before the trial court and that was not put to the applicant in his examination under section 313 Cr.P.C.
8. According to the prosecution case a Panchayat was called to settle the dispute regarding the demand of dowry but the prosecution did not examined any witnesses to prove this fact P.W.-3, Nanda, who is real sister of the deceased, said in her deposition that no Panchayat was ever called.
9. The prosecution could not prove the charges under section 304B, 498A IPC and 3/4 D.P. Act and alternative charges under section 302 IPC hence the learned trial court rightly acquitted the respondent.
10. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.
11. The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:
“Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then – and then only – reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not.”
12. The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.
13. The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be “not guilty”. When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.
14. The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under:
“25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence.”
15. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted.
16. The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.
17. In the background of the law discussed herein above, we will examine the trial court’s findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.
18. After hearing the rival submissions, we find that as per the prosecution case, the deceased was earlier married to the brother of the informant, Pintu, who died in the year 2001, thereafter, she was married to the younger brother of Pintu, Harveer, the sole respondent. It was alleged that the respondent and his brother-in-law, Mintu, used to harass the deceased and the respondent was having affair with some other girl. The marriage of respondent was solemnized with the deceased against his wishes and his father did not received any dowry. They used to harass the deceased. Despite number of panchayats, the situation did not improved and the deceased was murdered by way of strangulation
19. This Court finds that P.W.-1, P.W.-2 and P.W.-3 have tried to prove the prosecution case. However, it has come in the statement of P.W.-3, Nanda, sister of the deceased ,that after four years of marriage of the deceased, she gave birth to a child on 11.03.2015. It was premature delivery by cesarean operation. The deceased died on 20.06.2015 due to attack. None of the witnesses of facts have alleged that there was any demand of dowry at the time of marriage of the deceased with the respondent.
20. PW-4, Dr. Amit Kumar, has deposed in his cross-examination that “When I conducted postmortem then there was no injury mark on the dead body of the deceased. There was a mark of abrasion. This witness further deposed that the mark or neck of deceased was not fresh. This witness has deposed it is true that the abrasion which was on the neck, death can not be caused by that. This witness has deposed that if anyone consumes aluminum phosphide then there is effect on kidney, liver, lungs and heart. I do not know that if anyone consumes aluminum phosphide then after how much time there will be smell. But it is true that there is smell. It is true that there was no smell from the body of deceased at the time of postmortem. This witness further deposed that if any person is done to death by strangulation then it is not necessary that there will be bleeding from ear. There was neither any finger marks on the neck of deceased nor there was any mark of circle.
21. This witness as deposed in his examination-in-chief that according to FSL Report and in his poisoning opinion deceased died due to poisoning while PW-1, Sunder Singh, deposed in his examination-in-chief that his daughter was done to death by strangulation by accused, Harveer,. While PW-3, Nanda, has deposed in her cross-examination that his sister died due to attack. PW-4 Dr. Amit Kumar has deposed in his cross-examination that the mark on the neck of deceased Reeta was not fresh and this mark can not be cause of her death. This witness PW-4 Dr. Amit Kumar has also deposed that there was no finger mark or circle mark on the neck of deceased Reeta. Therefore, on the basis of evidence of PW-4 Dr. Amit Kumar, the statement of PW-1, Sunder Singh, is not supported that deceased, Reeta, was done to death by strangulation.
22. It is also notable that PW-1, Sunder Singh, has deposed that when Harveer was asked how the deceased died then he informed that died due to attack. It seems unusual that if Harveer murdered deceased, Reeta, then why he was present at the place of occurrence. Although PW-1 Sunder Singh and PW-3, Nanda, have deposed that accused, Harveer, had illicit relationship with some other women but prosecution has not given any evidence that with whom Harveer had relation.
23. Trial court has held that in the case of Jose @ Pippachan Vs. Sub Inspector of Police Koyayalandi and another AIR 2016 SC 4581 Hon’ble Supreme Court observed that at relevant time if accused was present in the house, it would not be permissible to cast the burden on him as contemplated under section 106 of Evidence Act. In the case of Vijay Singh Vs. State of U.P. 2019 (108) ACC 250, Hon’ble Allahabad High Court observed that only fact witnesses examined by the prosecution, did not supported prosecution version of the incident. Trial Court wrongly evoked section 106 of Evidence Act in absence of any evidence against the accused. Section 106 is applied to prove facts especially within the knowledge of accused which is impossible for the prosecution to prove but it does not shifts essential burden of proving guilt which always lies on prosecution. Evidence Act does not relieve prosecution from the responsibility to prove its case beyond all reasonable doubts. In the case of Smt. Maroona and others Vs. State of U.P. 2017 (100) ACC 161, it was held by Hon’ble High Court that where witnesses are family members of the matrimonial home of deceased; there was no reliable evidence to show that the deceased was subjected to cruelty soon before her death then the essential ingredients of section 304B of Indian Penal Code was not proved. In the case Baij Nath and others Vs, State of MP, AIR 2016 SC 5313 Hon’ble Supreme Court observed that when it is not clear as to whether the death is suicidal or homicidal, it is also not proved beyond doubt, the origin and cause of the external injuries, the benefit of deficiency in proof, logically would be available to the persons charged. In the case of Jagdishraj Khatta Vs. State of U.P. 2020 (III) ACC 602, Hon’ble Supreme Court observed that allegation of cruelty meted out by the accused against deceased appears to be for the first time at the time of filing FIR. No neighbour of the accused and deceased who examined to substantiate the allegations that the accused ill- treated the deceased then conviction under sections 498A, 306 of Indian Penal Code can not be sustained. In the case of State of Haryana Vs. Angoori Devi and another 2020 (110) ACC 953 (supra), Hon’ble Supreme Court observed that to attract section 304-B of the Indian Penal Code. The prosecution has to establish that soon before the death, the deceased was subjected to cruelty and harassment in connection with demand of dowry. Under section 304-B of the Indian Penal Code, prosecution can not escape from discharging its burden of proving that the harassment or cruelty was related to demand of dowry soon before death. In the case of Najar Singh and another Vs. State of Punjab AIR 2015 SC 2081 Hon’ble Supreme Court observed that to secure conviction of accused under section 304R 1PC, the prosecution should adduce evidence to show that soon before her death the deceased was subjected to cruelty or harassment. There must always be proximate and live link between the effects of cruelty based on dowry demand and the concerned death. Therefore, on the basis of discussion and analysis of prosecution witnesses and in the light of observations of Hon’ble Supreme Court in abovementioned cases, it can not be ruled out that some poison was taken by the deceased, Reeta, herself. She was not happy with her marriage with respondent. Thus, trial court did not found involvement of respondent, Harveer, in the death of deceased Reeta.
24. On the basis of analysis of evidence of both sides, prosecution has failed to establish the essential ingredients of Sections 498A, 304B and alternative charge under section 302 readwith 34 of the Indian Penal Code and section 3/4 Dowry Prohibition Act against respondent, Harveer Yadav, beyond all reasonable doubts.
25. In view of the above consideration, we are of the view that the prosecution failed to establish the charges against the respondent before the trial court. Hence, the trial court has rightly acquitted the respondent of all charges. We do not find any infirmity in the finding recorded by the trial court.
26. Accordingly, this Criminal Appeal U/s-372 Cr.P.C., is devoid of merit and is hereby dismissed.
27. Office is directed to return the trial court record within two weeks and notify this judgment too to the trial court.”
5. Consequently, this leave to appeal application is rejected.
Order on Government Appeal
1. Since leave to appeal application is rejected, therefore, the above noted government appeal is, hereby, dismissed.
2. Let the record of the trial court be returned and this judgement to be notified to the trial court, within two weeks.
Order Date :- 3.4.2025
Abhishek
(Mohd. Azhar Husain Idrisi,J.) (Siddharth,J.)
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