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Court No. - 44 A.F.R.

Case :- GOVERNMENT APPEAL No. - 2008 of 1987

Appellant :- State of U.P.

Respondent :- Krishna Kumar Kulshreshtha And Others

Counsel for Appellant :- A.G.A.,S.K.Kulshreshtha

Counsel for Respondents :- D.K.Kulshreshth,P.K.Singh

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Justice Nalin Kumar Srivastava)

1.Accused persons Krishna Kumar Kulshreshtha, Sudhir

Kumar Kulshreshtha and Akhilesh Kumar Kulshreshtha and Smt.

Gayatri Devi Kulshreshtha were acquitted of the charges under

Section 302/34 and 201 I.P.C. in Sessions Trial No. 488 of 1984

arising out of case crime no. 495 of 1985, P.S- Loha Mandi,

District- Agra by the Court of Special Judge (Economic Offences),

Agra by judgement and order dated 29.4.1987, feeling aggrieved

of which this State appeal has been filed.

2.The prosecution story unfolded by the FIR in brief is that

Smt. Beena Kumari Kulshreshtha @ Beena Kulshreshtha, daughter

of the informant-Guru Dayal Prasad was married with accused

Akhilesh Kumar Kulshreshtha on 9.5.1982 and as per his capacity

the informant offered dowry to the in-laws of her daughter,

however, the accused persons Akhilesh Kumar Kulshreshtha-

husband, Krishna Kumar Kulshreshtha-father-in-law, Smt. Gayatri

Devi-mother-in-law were dissatisfied with the dowry and Smt.

Bina was subjected to cruelty and harassment for demand of

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dowry by the aforesaid accused persons and also by her brother-in-

law Sudhir Kumar Kulshreshtha. The deceased used to make

complaint of these incidents to her mother and brother. On

13.11.1982 Girish Chand Kulshreshtha, the nephew of the informant

went to the house of the deceased on the occasion of Dipawali and

he found her normal and healthy, however, she appeared to be upset.

On 15.11.1982 at about 5.15 pm. the informant got the information

of the death of his daughter and after reaching the accused persons'

house he found her dead. The wife of the informant was shocked

and became unconscious. The informant took away his wife to his

house and next day morning gave a written report to S.O. Loha

Mandi, Agra alleging therein that the in-laws of his daughter have

killed her by poisoning.

3.On the basis of the written report Ex.Ka-7, the FIR Ex.Ka-8

was lodged and G.D. Ex.Ka-9 was also prepared.

4.The investigation was handed over to S.I. Rama Shankar

Sharma, who performed the proceedings of the investigation,

recorded the statement of the witnesses and prepared site plan

Ex.Ka-10 and subsequently the investigation was conducted by

Inspector Shiv Bahadur Singh and then by Deputy S.P. Raj Pal

Singh Rana, who recorded the statement of the witnesses and

submitted charge sheet Ex.Ka-11 to the Court.

5.The accused persons appeared before the Court. After the

case being committed to the Court of Sessions they were charged

under Section 302/34 and 201 I.P.C. They denied of the charges and

claimed to be tried.

6.In order to prove its case, the prosecution relied upon the oral

testimony of P.W.1 Guru Dayal Prasad-the informant, P.W2- Girish

Chand Kulshreshtha, cousin of the deceased, P.W.3 Rakesh

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Kulshreshtha brother of the deceased, P.W.4- Bhagwan Das, Head

Moharir, scribe of the FIR, P.W.5-Inspector Shiv Bahadur Singh

second I.O of the case and P.W.6 Retired Deputy S.P. Raj Pal Singh

Rana subsequent I.O.

7.To support the oral evidence, documentary evidence was also

relied upon by the prosecution and in documentary evidence list Ex.

Ka-1, letters Ex.Ka-2, Ex.Ka-3, Ex.Ka-4, Ex.Ka-5 and Ex.Ka-6,

written report Ex.Ka-7, Chik FIR Ex.Ka-8, G.D. Ex.Ka-9 have been

filed.

8.Learned trial Court after perusing the entire evidence on

record and after hearing the oral submissions of the parties found

that no case was made out against the accused persons and the

prosecution has utterly failed to connect the accused with the guilt,

and accordingly acquitted them of the charges under Section 302/34

and 201 I.P.C.

9.Learned A.G.A. has submitted that the learned trial Judge has

not appreciated the evidence on record in proper and legal manner.

The judgement has been passed in haste. The circumstances of the

case were going against the accused persons and the entire

allegations of demand of dowry and cruelty and harassment of the

deceased were proved by the witnesses of fact. Learned trial Judge

ignoring it passed the acquittal order. It has been prayed that the

impugned judgement of acquittal be set aside and the appeal be

allowed.

10.Per-contra, learned counsel for the respondents/accused has

contended that there is no legal or factual error in the impugned

judgement. There was no evidence at all against any of the accused

on record and since the deceased was died in the presence of the

informant and his wife there was no question for the death being

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unnatural or homicidal death. The trial Court has made no error in

acquitting the respondents/ accused persons and hence the appeal is

liable to be dismissed.

11.Before we embark on testimony and the judgment of the

Court below, the contours for interfering in Criminal Appeals where

accused has been held to be non-guilty, would require to be

discussed.

12.The principles which would govern and regulate the hearing

of an appeal by this Court, against an order of acquittal passed by

the trial Court, have been very succinctly explained by the Apex

Court in catena of decisions. In the case of "M.S. NARAYANA

MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6

S.C.C. 39, the Apex Court has narrated the powers of the High

Court in appeal against the order of acquittal. In para 54 of the

decision, the Apex Court has observed as under:

"54. In any event the High Court entertained

an appeal treating to be an appeal against

acquittal, it was in fact exercising the

revisional jurisdiction. Even while

exercising an appellate power against a

judgment of acquittal, the High Court

should have borne in mind the well settled

principles of law that where two view are

possible, the appellate Court should not

interfere with the finding of acquittal

recorded by the Court below."

13.Further, in the case of "CHANDRAPPA Vs. STATE OF

KARNATAKA", reported in (2007) 4 SCC 415, the Apex Court

laid down the following principles;

"42. From the above decisions, in our considered view,

the following general principles regarding powers of the

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appellate Court while dealing with an appeal against an

order of acquittal emerge:

[1] An appellate Court has full power to

review, re-appreciate and reconsider the

evidence upon which the order of acquittal

is founded.

[2] The Code of Criminal Procedure, 1973

puts no limitation, restriction or condition

on exercise of such power and an

appellate Court on the evidence before it

may reach its own conclusion, both on

questions of fact and of law.

[3] Various expressions, such

as,"substantial and compelling reasons",

"good and sufficient grounds", "very

strong circumstances", "distorted

conclusions", "glaring mistakes", etc. are

not intended to curtain extensive powers

of an appellate Court in an appeal against

acquittal. Such phraseologies are more in

the nature of "flourishes of language" to

emphasis the reluctance of an appellate

Court to interfere with acquittal than to

curtail the power of the Court to review

the evidence and to come to its own

conclusion.

[4] An appellate Court, however, must

bear in mind that in case of acquittal there

is double presumption in favour of the

accused. Firstly, the presumption of

innocence is available to him under the

fundamental principle of criminal

jurisprudence that every person shall be

presumed to be innocent unless he is

proved guilty by a competent Court of

law. Secondly, the accused having secured

his acquittal, the presumption of his

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innocence is further reinforced, reaffirmed

and strengthened by the trial Court.

[5] If two reasonable conclusions are

possible on the basis of the evidence on

record, the appellate Court should not

disturb the finding of acquittal recorded

by the trial Court."

14.Thus, it is a settled principle that while exercising appellate

powers, even if two reasonable views/conclusions are possible on

the basis of the evidence on record, the appellate Court should not

disturb the finding of acquittal recorded by the trial Court.

15.Even in the case of "STATE OF GOA Vs. SANJAY

THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex

Court has reiterated the powers of the High Court in such cases. In

para 16 of the said decision, the Court has observed as under:

"16. From the aforesaid decisions, it is

apparent that while exercising the powers

in appeal against the order of acquittal the

Court of appeal would not ordinarily

interfere with the order of acquittal unless

the approach of the lower Court is vitiated

by some manifest illegality and the

conclusion arrived at would not be arrived

at by any reasonable person and, therefore,

the decision is to be characterized as

perverse. Merely because two views are

possible, the Court of appeal would not

take the view which would upset the

judgment delivered by the Court below.

However, the appellate Court has a power

to review the evidence if it is of the view

that the conclusion arrived at by the Court

below is perverse and the Court has

committed a manifest error of law and

ignored the material evidence on record. A

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duty is cast upon the appellate Court, in

such circumstances, to re-appreciate the

evidence to arrive to a just decision on the

basis of material placed on record to find

out whether any of the accused is

connected with the commission of the

crime he is charged with."

16.Similar principle has been laid down by the Apex Court in

cases of "STATE OF UTTAR PRADESH VS. RAM VEER

SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA

PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R.

S.C.W. 5589. Thus, the powers, which this Court may exercise

against an order of acquittal, are well settled.

17.In the case of "LUNA RAM VS. BHUPAT SINGH AND

ORS.", reported in (2009) SCC 749, the Apex Court in para 10

and 11 has held as under:

"10. The High Court has noted that the

prosecution version was not clearly believable.

Some of the so called eye witnesses stated that

the deceased died because his ankle was

twisted by an accused. Others said that he was

strangulated. It was the case of the prosecution

that the injured witnesses were thrown out of

the bus. The doctor who conducted the

postmortem and examined the witnesses had

categorically stated that it was not possible that

somebody would throw a person out of the bus

when it was in running condition.

11. Considering the parameters of appeal

against the judgment of acquittal, we are not

inclined to interfere in this appeal. The view of

the High Court cannot be termed to be perverse

and is a possible view on the evidence."

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18.It was also held by the Apex Court in the case of

"MOOKKIAH AND ANR. VS. STATE, REP. BY THE

INSPECTOR OF POLICE, TAMIL NADU", reported in AIR

2013 SC 321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial Court, on

appreciation of oral and documentary evidence

led in by the prosecution and defence,

acquitted the accused in respect of the charges

leveled against them. On appeal by the State,

the High Court, by impugned order, reversed

the said decision and convicted the accused

under Section 302 read with Section 34 of IPC

and awarded RI for life. Since counsel for the

appellants very much emphasized that the High

Court has exceeded its jurisdiction in upsetting

the order of acquittal into conviction, let us

analyze the scope and power of the High Court

in an appeal filed against the order of acquittal.

This Court in a series of decisions has

repeatedly laid down that as the first appellate

court the High Court, even while dealing with

an appeal against acquittal, was also entitled,

and obliged as well, to scan through and if

need be reappreciate the entire evidence,

though while hoosing to interfere only the

court should find an absolute assurance of the

guilt on the basis of the evidence on record and

not merely because the High Court could take

one more possible or a different view only.

Except the above, where the matter of the

extent and depth of consideration of the appeal

is concerned, no distinctions or differences in

approach are envisaged in dealing with an

appeal as such merely because one was against

conviction or the other against an acquittal.

[Vide State of Rajasthan vs. Sohan Lal and

Others, (2004) 5 SCC 573]"

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19.It is also a settled legal position that in acquittal appeals, the

appellate Court is not required to rewrite the judgment or to give

fresh reasonings, when the reasons assigned by the Court below are

found to be just and proper. Such principle is laid down by the Apex

Court in the case of "STATE OF KARNATAKA VS.

HEMAREDDY", AIR 1981, SC 1417, wherein it is held as under:

"...This Court has observed in Girija Nandini Devi

V. Bigendra Nandini Choudhary (1967) 1 SCR 93:

(AIR 1967 SC 1124) that it is not the duty of the

Appellate Court on the evidence to repeat the

narration of the evidence or to reiterate the reasons

given by the trial Court expression of general

agreement with the reasons given by the Court the

decision of which is under appeal, will ordinarily

suffice."

20.The Hon'ble Apex Court in "SHIVASHARANAPPA &

ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has

held as under:

"That appellate Court is empowered to reappreciate

the entire evidence, though, certain other principles

are also to be adhered to and it has to be kept in

mind that acquittal results into double presumption

of innocence."

21.Further, in the case of "STATE OF PUNJAB VS. MADAN

MOHAN LAL VERMA", (2013) 14 SCC 153, the Apex Court has

held as under:

"The law on the issue is well settled that demand of

illegal gratification is sine qua non for constituting

an offence under the 1988 Act. Mere recovery of

tainted money is not sufficient to convict the

accused when substantive evidence in the case is

not reliable, unless there is evidence to prove

payment of bribe or to show that the money was

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taken voluntarily as a bribe. Mere receipt of the

amount by the accused is not sufficient to fasten

guilt, in the absence of any evidence with regard to

demand and acceptance of the amount as illegal

gratification. Hence, the burden rests on the

accused to displace the statutory presumption

raised under Section 20 of the 1988 Act, by

bringing on record evidence, either direct or

circumstantial, to establish with reasonable

probability, that the money was accepted by him,

other than as a motive or reward as referred to in

Section 7 of the 1988 Act. While invoking the

provisions of Section 20 of the Act, the court is

required to consider the explanation offered by the

accused, if any, only on the touchstone of

preponderance of probability and not on the

touchstone of proof beyond all reasonable doubt.

However, before the accused is called upon to

explain how the amount in question was found in

his possession, the foundational facts must be

established by the prosecution. The complainant is

an interested and partisan witness concerned with

the success of the trap and his evidence must be

tested in the same way as that of any other

interested witness. In a proper case, the court may

look for independent corroboration before

convincing the accused person."

22.The Apex Court recently in Jayaswamy vs. State of

Karnataka, (2018) 7 SCC 219, has laid down the principles for

laying down the powers of appellate court in re-appreciating the

evidence in a case where the State has preferred an appeal against

acquittal, which read as follows:

"10.It is by now well settled that the Appellate

Court hearing the appeal filed against the judgment

and order of acquittal will not overrule or otherwise

disturb the Trial Court's acquittal if the Appellate

Court does not find substantial and compelling

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reasons for doing so. If the Trial Court's conclusion

with regard to the facts is palpably wrong; if the

Trial Court's decision was based on erroneous view

of law; if the Trial Court's judgment is likely to

result in grave miscarriage of justice; if the entire

approach of the Trial Court in dealing with the

evidence was patently illegal; if the Trial Court

judgment was manifestly unjust and unreasonable;

and if the Trial Court has ignored the evidence or

misread the material evidence or has ignored

material documents like dying declaration/report of

the ballistic expert etc. the same may be construed

as substantial and compelling reasons and the first

appellate court may interfere in the order of acquittl.

However, if the view taken by the Trial Court while

acquitting the accused is one of the possible views

under the facts and circumstances of the case, the

Appellate Court generally will not interfere with the

order of acquittal particularly in the absence of the

aforementioned factors.

.........................It is relevant to note the

observations of this Court in the case of Ramanand

Yadav vs. Prabhu Nath Jha & Ors., (2003) 12

SCC 606, which reads thus:

"21.There is no embargo on the appellate court

reviewing the evidence upon which an order of

acquittal is based. Generally, the order of acquittal

shall not be interfered with because the

presumption of innocence of the accused is further

strengthened by acquittal. The golden thread

which runs through the web of 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 the other

to his innocence, the view which is favourable to

the accused should be adopted. The paramount

consideration of the court is to ensure that

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miscarriage of justice is prevented. A miscarriage

of justice which may arise from acquittal of the

guilty is no less than from the conviction of an

innocent. In a case where admissible evidence is

ignored, a duty is cast upon the appellate court to

re-appreciate the evidence in a case where the

accused has been acquitted, for the purpose of

ascertaining as to whether any of the accused

committed any offence or not."

23.The Apex Court recently in Shailendra Rajdev Pasvan v.

State of Gujarat, (2020) 14 SC 750, has held that the appellate

court is reversing the trial court's order of acquittal, it should give

proper weight and consideration to the presumption of innocence in

favour of accused, and to the principle that such a presumption

sands reinforced, reaffirmed and strengthened by the trial court and

in Samsul Haque v. State of Assam, (2019) 18 SCC 161 held that

judgment of acquittal, where two views are possible, should not be

set aside, even if view formed by appellate court may be a more

probable one, interference with acquittal can only be justified when

it is based on a perverse view.

24.However, in our view it is desirable to have a glance upon the

oral evidence adduced by the prosecution before appreciating the

submissions of both the sides.

25.P.W.1 Gurudayal Prasad, who is the father of the deceased

has proved the factum of marriage between the deceased and the

accused Akhilesh Kumar Kulshreshtha, and also narrated that the in-

laws/ accused persons were not satisfied with the dowry given by

him and his daughter was subjected to cruelty for demand of dowry.

He has also proved some letters written by accused persons and the

deceased herself and also list of demand given by in-laws of his

daughter at the time of gauna. He has further stated that when he

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was informed about death of his daughter, he went to the house of

accused persons along with his wife. Her in-laws never informed

about any sickness of his daughter and even his nephew Girish

Chand Kulshreshtha, who met the deceased at her house found her

in a healthy condition. His wife started weeping looking at the dead

body of her daughter and said that the death has not natural and she

has been murdered. The in-laws of the deceased killed his daughter

for demand of dowry and did not even perform the autopsy of her

dead body. Written report has been proved as Ex.Ka-7 by P.W.1 and

he has also explained that due to treatment and care of his wife he

could not move to the police station on the same day.

26.P.W.2- Girish Chand Kulshreshtha, who is the nephew of the

informant has stated that on 13.11.1982 in the evening he had gone

to meet Beena at her matrimonial house on the occasion of

Dipawali. The accused persons met there and on his request the

deceased was also called, who was looking mentally upset but not

sick. Her mother-in-law told that she will never visit to her parental

house, now.

27.P.W.3-Rakesh Kulshreshtha, the real brother of the deceased,

has stated that his sister had complained to him regarding demand

of scooter and fridge made by her in-laws. He had gone to the place

of the accused persons on 27.10.1982 and 11.11.1982 and on the

later occasion the mother-in-law of his sister scolded him and also

complained of not giving anything on the occasion of Karwachauth.

When he met Beena there she told him not to come over there and

also said that if they chose to kill her, they will do so in one day. He

found Beena in a sound state of health at that time.

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28.P.W.4-Head Moharir Bhagwan Das has proved the Chik FIR

and G.D. Of the case as Ex.Ka-8 and Ex.Ka-9 respectively prepared

on the basis of the written report of the informant.

29.P.W.5-Shiv Bahadur Singh the second I.O. of the case has

proved the functioning of the investigation conducted by him and

also by the first I.O. Ram Shankar Sharma and has also proved site

plan Ex.Ka-10 prepared by the first I.O. Ram Shankar Sharma.

30.P.W.6-retired Deputy S.P. Raj Pal Singh Rana has been the

last I.O. Of the case, who has also proved the remaining formalities

of the investigation and the charge sheet as Ex.Ka-11.

31.After the closing of the prosecution evidence the statement of

the accused persons were recorded under Section 313 Cr.P.C. and all

the incriminating circumstances and evidences were put to them.

They denied the alleged occurrence and also denied the genuineness

of so called letters proved in the evidence and they expressly stated

that the deceased died in the presence of the informant and his wife

and at that time she was sick and due to illness was unable to move

even. They have also stated that the whole story is false and

fabricated only to grab money from the accused persons.

32.D.W.1 Amar Nath Lavania, D.W.2 M.L. Bansal have also

been examined in defence.

33.The accused persons have also relied upon the documentary

evidence, letter written by the informant Ex.Kha-1, letter by the

accused Krishna Kumar Ex.Kha-2, medical prescription Ex.Kha-3

and Ex.Kha-4.

34.Heard learned counsels for the parties and perused the record.

35.Submissions of the learned A.G.A. takes us through the

deposition of the witnesses of fact i.e. P.W.1, P.W.2 and P.W.3. The

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statement made by P.W.1 reveals that on the fateful day the

informant along with his wife had visited the house of the accused

persons where he met her daughter who appeared in the state of

sickness, however, not serious. He has admitted this fact that at that

time accused Sudhir Kumar Kulshreshtha had told him that she was

suffering from lose motion and fever and treatment of some

Hakeem was going on. It is pertinent to mention here that in the

written report the informant did not mention this fact that on the

fateful day that is to say on 15.11.1982 the informant had visited the

house of the accused persons before the death of her daughter. This

fact was admitted by him in his cross-examination. Learned counsel

for the respondents has impressed upon this statement where also

finds that the informant is trying to hide the correct facts of the case

deliberately. A genuine question arises that when on the fateful day

the informant himself found her daughter in a state of unsound

health why this fact was not disclosed by him in the written report

prepared by him. Thus it makes us to opine that the prosecution is

trying to hide the genesis of the incident. In Pankaj Vs. State of

Rajasthan (2016) 16 Supreme Court Cases 192, it has been held

that “it is a well settled principle of law that when the genesis and

the manner of incident is doubtful, the accused cannot be

convicted.” No doubt this principle of law applies to this case.

36.P.W.2 has also given contradictory statement in respect of the

physical health of the deceased in the light of his statement under

Section 161 Cr.P.C.

37.P.W.3 had visited the matrimonial house of the deceased four

days before the occurrence and he had found her fit and healthy. He

has also stated that it appeared that the accused persons wanted to

kill her and this fact was narrated by him to his father. It is pertinent

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to mention here that in the deposition of P.W.1 nothing is found to

this effect that he was informed by his son that the accused persons

wanted to kill the deceased. It is also a material contradiction which

falsify the oral evidence adduced by the prosecution.

38.The trial Court has pointed out the material contradictions

found in the depositions of the prosecution witness of fact.

39.In Neel Kumar @ Anil Kumar Vs. State of Haryana

(2012) 5 SCC 766 (at page 774), the Apex Court held “It is the duty

of the accused to explain the incriminating circumstance proved

against him while making a statement under Section 313 CrPC.

Keeping silent and not furnishing any explanation for such

circumstance is an additional link in the chain of circumstances to

sustain the charges against him. Recovery of incriminating material

at his disclosure statement duly proved is a very positive

circumstance against him”. The argument put forth by the learned

counsel for the respondents is that the accused persons in their

statement under Section 313 Cr.p.C. not only explained the

incriminating circumstances but also adduced oral and documentary

evidence to prove the same. It has also been submitted by the

learned counsel for the respondents that specific defence has been

taken by the accused persons that the death of the deceased was

natural and she died due to sickness. They provided medical help to

her and she had been under treatment of doctor. They have relied

upon the statement of D.W.1 and D.W.2 and also the documentary

evidence i.e. medical papers in this regard, which the trial Court has

found to be trustworthy and genuine. D.W. 2 Dr. M.L. Bansal has

treated the deceased for lose motion and vomiting and advised to

consult any senior physician as she was in a state of serious

dehydration and the accused persons also called a senior physician.

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D.W.2 has proved the aforesaid facts. The factum of illness of the

deceased has also been proved by D.W.1, who is a tenant in the

same house, where the respondents live. In Munshi Prasad and

Ors. Vs. State of Bihar (2002) 1 SCC 351, the Hon’ble Apex Court

held that “the evidence tendered by the defence witnesses cannot

always be termed to be a tainted one by reason of the factum of the

witnesses being examined by the defence. The defence witnesses

are entitled to equal respect and treatment as that of the prosecution.

The issue of credibility and trustworthiness ought also to be

attributed to the defence witnesses on a par with that of the

prosecution — a lapse on the part of the defence witnesses cannot

be differentiated and be treated differently than that of the

prosecutors' witnesses”.

40.Learned A.G.A. has submitted that the fact of demand of

dowry and cruelty and harassment towards the deceased by the

accused persons is proved by the documentary evidence adduced by

the prosecution and in this respect some letters have also been filed

along with the list which are marked as Ex. Ka-1 to Ex.Ka-6.

41.The trial Court after appreciating the oral and documentary

evidence on record has not found the aforesaid documents filed by

the prosecution as reliable and genuine and in view of the trial

Court the weight given to the oral and documentary evidence of the

prosecution was not sufficient to prove the guilt of the accused in

this case.

42.Reliance has been placed on Rishikesh Singh Vs. State of

U.P. AIR 1970 ALLD 51 (Full Bench), a leading case on the

subject, by the learned counsel for the respondents wherein it has

been held that “If upon the evidence adduced in the case whether by

the prosecution or by the accused a reasonable doubt is created in

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the mind of the Court as regards one or more of the ingredients of

the offence including mens rea of the accused he would be entitled

to be acquitted."

43.In V.D.Jhangan vs State Of Uttar Pradesh AIR 1966 SC

1762, it was observed like this. “It is sufficient if the accused person

succeeds in proving a preponderance of probability in favour of his

case. It is not necessary for the accused person to prove his case

beyond a reasonable doubt or in default to incur a verdict of guilty.

The onus of proof lying upon the accused person is to prove his case

by a preponderance of probability.”

44.Learned counsel for the respondents has vehemently argued

that the burden/ onus in this case is not upon the accused persons/

respondents but whatsoever has been stated by them in their

statement under Section 313 Cr.P.C., oral and documentary

evidence to support that version has been produced by them which

has been supposed to be cogent and reliable by the trial Court, thus

there is a preponderance of probability in favour of the innocence of

the accused persons/ respondents.

45.Learned counsel for the respondents takes us to the factum of

the genuineness of the FIR. It has been argued that the FIR is a

result of consultation and after thought. According to the version of

the FIR, on 15.11.1982 when the informant visited the place of the

accused persons, he was shocked to see the dead body of his

daughter and his wife fell down and became unconscious. She got

her home and as he remained busy in the treatment and care of his

wife, he could not inform the police about the incident. The learned

counsel for the respondents has vehemently argued that P.W.3 is the

real son of the informant. The suspicious death of the daughter of

the informant was a very serious matter for him but surprisingly he

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even did not sent his son P.W.3 Rakesh Kulshreshtha to inform the

police about the suspicious death of the deceased.

46.In the facts and circumstances of the case, we find force in

the contention of the learned counsel for the respondents and it

appears that there was a deliberate delay in lodging of the FIR

which seems to be result of due consultation and after thought.

47.We find ourselves in agreement with what has been

submitted by the learned counsel for the respondents.

48.On the basis of the aforesaid discussion and relying upon the

case laws cited above, we find that the learned trial Judge has

committed no error in passing an acquittal order in favour of the

accused persons/ respondents. As a matter of fact, no person has

seen the occurrence and on the basis of the analysis of oral and

documentary evidence on record, we find that no incriminating

circumstances to connect the respondents with the alleged offence is

proved. Hence, we concur with the finding given by the learned trial

Court. Hence, the non-conviction of the respondents under Section

302/34 and 201 I.P.C. is upheld.

49.Hence, in view of the matter & on the contours of the

judgment of the Apex Court, we concur with the learned trial Judge.

The appeal sans merits and is dismissed. The record and

proceedings be sent back to the Court below. The bail and bail

bonds are cancelled.

50.We are thankful to learned A.G.A. and the learned counsel

for the respondents for ably assisting the Court.

Order Date :- 30.9.2022

Fhd

(Nalin Kumar Srivastava,J.) (Dr. Kaushal Jayendra Thaker, J.)