# Smt. Alka v. State of U.P

- **Citation:** (2022) 10 ILRA 995
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-26
- **Case number:** Criminal Appeal No. 2275 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-alka-v-state-of-u-p-47922
- **Pages:** 14

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32- Dying declaration could have
been acted upon as there is no material
contradictions in the dying declaration.
The dying declaration when taken in its
totality goes to show that her sister-inlaw had poured kerosene on the deceased
and set her ablaze, her husband has saved
her and she died after several days out of
septicemic death.

Where the dying declaration is recorded by the
magistrate and there is nothing to doubt the
same then conviction of the accused can be
secured solely upon the dying declaration.

Indian Penal Code, 1860- Section 302-
Section
304
(Part-1)-
On
overall
scrutiny of the facts and circumstances
of the present case coupled with the
opinion of the Medical Officer we are
of the considered opinion that it was a
case of homicidal death not amounting
to murder-It appears that the death
caused
by
the
accused
was
not
premeditated,
accused
though
had
knowledge and intention that her act
would
cause
bodily
harm
to
the
deceased but did not want to do away
with the deceased. Hence the instant
case falls under the Exceptions 1 and 4
to Section 300 of IPC-The offence is
not punishable under Section 302 of
I.P.C. but is culpable homicide not
amounting to murder, punishable U/s
304 (Part I) of I.P.C.
996 INDIAN LAW REPORTS ALLAHABAD SERIES
As the deceased had died several days after the
occurrence due to septicaemia, the offence was
not premeditated and it cannot be said that the
appellant had the intention that such action on
her part would cause the death or such bodily
injury to the deceased, which was sufficient in
the ordinary course of nature to cause the death
of the deceased, hence the offence would fall
within the ambit of Section 304 (Part-1) IPC.
(Para 18, 19, 24, 25, 26, 27)

Criminal Appeal partly allowed. (E-3)

Code of Criminal Procedure 1973- Section
378 (1)- Appeal against acquittal-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- 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-
While going through the finding of facts
and even dying declaration which we have
held is accepted under Section 32 of the
Indian Evidence Act, name of only Alka
was given by the deceased. There is no
overt act perpetrated on any of the other
accused and, therefore, we cannot agree
with the submission of learned A.G.A. for
the St. that the judgment is perverse and
requires to be upturned.

Settled law that the presumption of innocence in
favour of the accused stands fortified by his
acquittal in the trial and therefore the appellate
court will not interfere with the findings of the
trial court unless they are wholly perverse and
illegal. (Para 44, 46)

Government Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,710 of 45,615. This is a partial read: ask again with offset=39710 for what follows._

10 All. Smt. Alka Vs. State of U.P.
995

37. Even the enmity between the first
informant and the accused-appellant as has
been stated by the accused in his statement
recorded under Section 313 Cr.P.C. is
corroborated by the statement of Anil
Singh, D.W.1 and Sumeru, D.W.2. The
same would go to show that the parties
were enmical to each other. There was even
a panchayat held for resolving their dispute
but the same could not be resolved, as such
it cannot be said that there was no enmity
between the parties.

38. In view of the discussions as
stated above, the present appeal deserves to
be allowed. The appellant deserves to be
acquitted of the charges levelled against
him.

39. The appeal stands allowed. The
judgment and order of the trial court is
hereby set-aside. The appellant is acquitted
of the charges levelled against him.

40. The accused-appellant is stated to
be in jail since 30.11.2015. He is directed
to be released from jail forthwith if not
wanted in any other case.

41. The office is directed to send the
certified copy of this judgment along with
the trial court records to the trial court
concerned
forthwith
for
necessary
information and follow-up action.
----------
(2022) 10 ILRA 995
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 2275 of 2017
&
Government Appeal No. 230 of 2021

Smt. Alka ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Nirvikar Gupta, Sri Akhilesh Srivastava,
Sri Bhanu Pratap Pal, Sri Mohammad, Sri
Saksham Srivastava, Sri Kamlesh Kumar
Dubey

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32- Dying declaration could have
been acted upon as there is no material
contradictions in the dying declaration.
The dying declaration when taken in its
totality goes to show that her sister-inlaw had poured kerosene on the deceased
and set her ablaze, her husband has saved
her and she died after several days out of
septicemic death.

Where the dying declaration is recorded by the
magistrate and there is nothing to doubt the
same then conviction of the accused can be
secured solely upon the dying declaration.

Indian Penal Code, 1860- Section 302-
Section
304
(Part-1)-
On
overall
scrutiny of the facts and circumstances
of the present case coupled with the
opinion of the Medical Officer we are
of the considered opinion that it was a
case of homicidal death not amounting
to murder-It appears that the death
caused
by
the
accused
was
not
premeditated,
accused
though
had
knowledge and intention that her act
would
cause
bodily
harm
to
the
deceased but did not want to do away
with the deceased. Hence the instant
case falls under the Exceptions 1 and 4
to Section 300 of IPC-The offence is
not punishable under Section 302 of
I.P.C. but is culpable homicide not
amounting to murder, punishable U/s
304 (Part I) of I.P.C.
996 INDIAN LAW REPORTS ALLAHABAD SERIES
As the deceased had died several days after the
occurrence due to septicaemia, the offence was
not premeditated and it cannot be said that the
appellant had the intention that such action on
her part would cause the death or such bodily
injury to the deceased, which was sufficient in
the ordinary course of nature to cause the death
of the deceased, hence the offence would fall
within the ambit of Section 304 (Part-1) IPC.
(Para 18, 19, 24, 25, 26, 27)

Criminal Appeal partly allowed. (E-3)

Code of Criminal Procedure 1973- Section
378 (1)- Appeal against acquittal-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- 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-
While going through the finding of facts
and even dying declaration which we have
held is accepted under Section 32 of the
Indian Evidence Act, name of only Alka
was given by the deceased. There is no
overt act perpetrated on any of the other
accused and, therefore, we cannot agree
with the submission of learned A.G.A. for
the St. that the judgment is perverse and
requires to be upturned.

Settled law that the presumption of innocence in
favour of the accused stands fortified by his
acquittal in the trial and therefore the appellate
court will not interfere with the findings of the
trial court unless they are wholly perverse and
illegal. (Para 44, 46)

Government Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Lella Srinivasa Rao Vs St. of A.P, AIR 2004 SC
1720

2. Govindappa & ors. Vs St. of Kar., (2010) 6
SCC 533
3. Crl. Appeal No.83 of 2008 (Gautam Manubhai
Makwana Vs St. of Guj.) dec. on 11.9.2013

4. Anversinh Vs St. of Guj., (2021) 3 SCC 12

5. Pravat Chandra Mohanty Vs St. of Odisha,
(2021) 3 SCC 529

6. Pardeshiram Vs St. of M.P., (2021) 3 SCC 238

7. Tukaram & ors.Vs St. of Mah., (2011) 4 SCC
250

8. B.N. Kavatakar & anr. Vs St. of Kar., 1994
SUPP (1) SCC 304

9. Veeran & ors. Vs St. of M.P. (2011) 5 SCR
300

10. M.S Narayana Menon @ ManiVs St.of Ker. &
anr., ( 2006) 6 SCC 39

11. Chandrappa Vs St. of Kar.,( 2007) 4 SCC
415

12. St. of Goa Vs Sanjay Thakran & anr., ( 2007)
3 SCC 75

13. St. of U.P. Vs Ram Veer Singh & ors., 2007
AIR SCW 5553

14. Girja Prasad ( dead) by l.r.s Vs St. of M.P,
2007 AIR SCW 5589

15. Luna Ram Vs Bhupat Singh & ors., ( 2009)
SCC 749

16. Mookkiah & anr.Vs St. Rep. By the insptr. Of
Police, AIR 2013 SC 321

17. St. of Kar. Vs Hema Reddy, AIR 1981 SC
1417

18. Shivasharananappa & ors. Vs St. of Kar., JT
2013 ( 7) SC 66

19. St. of Punj. Vs Madn Mohan Lal Verma

20. Jayaswamy Vs St. of Karn., (2018) 7 SCC
219

21. Shailendra Rajdev Pasvan Vs St. of Guj.,
(2020) 14 SC 750
10 All. Smt. Alka Vs. State of U.P.
997
22. Samsul Haque Vs St. of Assam, (2019) 18
SCC 161

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Both these appeals arise out of
common impugned order dated 28.3.2017
passed
by
the
Additional
Sessions
Judge/Fast Track Court No.1, Aligarh in
Sessions Trial No.67 of 2011 whereby the
learned Additional Sessions Judge has
convicted the accused-appellant, Alka, for
commission of offence under Section 302
of Indian Penal Code, 1860 (for short 'IPC')
and sentenced her to undergo imprisonment
for life with fine of Rs.10,000/-.

2. Criminal Appeal No. 2275 of 2017
has been preferred by accused-appellant,
Alka against her conviction whereas the
Government Appeal No. 230 of 2021 has
been preferred by the State against the
acquittal of respondents, Sanjiv Kumar,
Rajiv Kumar & Rajendra Prasad under
Section 498A, 304B, 302/34 of IPC and
Section 3/4 of Dowry Prohibition Act, 1961
(for short 'Act, 1961').

3. Heard Sri Noor Mohammad, learned
counsel for accused-appellant, Alka and
acquitted respondents in Government Appeal.
Heard Sri Vikas Goswami, learned A.G.A.
for respondent-State in Criminal Appeal and
Sri Patanjali Mishra, learned A.G.A. in
Government Appeal.

4. Brief facts of the case are that the
informant Gopal Varshney, uncle of the
deceased made a complaint before the police
authority stating therein that marriage of his
niece was solemnized with Sanjeev s/o
Rajendra Prasad one and half years ago and
the informant had given money and
households as dowry as per his capacity. It
was further alleged that the in-laws of the
deceased
were
persistently
demanding
amount of Rs.20,000/- and one motorcycle as
additional dowry. Many time settlements
were taken place but the things were not
pacified and on the fateful day of 13.4.2010
at 11.00 p.m., the in-laws of the deceased
namely Sanjeev (husband), Manoj (brotherin-law/Jeth), Rajeev (brother-in-law/Devar),
Anita
(mother-in-law),
Alka
(Sister-inlaw/Jethani) and Rajendra (father-in-law)
poured kerosene on Julie and set her ablaze.
It was further alleged by the informant that on
being informed by his nephew, he reached at
Medical College, Aligarh on 14.4.2010 where
he found his niece, Julie unconscious and she
was being treated there.

5. On the basis of above, complaint,
Case Crime No.221 of 2010 under Sections
498A, 307 of IPC and Section 3/4 of the Act,
1961 was registered against the above
accused.

6. On investigation being put into
motion, the investigating officer recorded the
statements of all the witnesses and submitted
the charge-sheet to the learned Magistrate.

7. The learned Magistrate summoned
the accused and committed the case to the
Sessions Court as the offences alleged to
have been committed were triable by the
Sessions Court as prima facie offences were
alleged to be falling under Sections 498A,
304 B of the Indian Penal Code and Section
3/4 of Dowry Prohibition Act. Section 304B
of IPC was included as the deceased died.

8. On being summoned, the accusedpersons pleaded not guilty and wanted to be
tried.

9. On 1.9.2011, the charges were
framed under Sections 498A, 304B & 302
read with Section 34 of IPC.
998 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The Trial started and the
prosecution examined 11 witnesses who are
as follows:

1
Gopal Varshney
PW1
2
Radha Raman
PW2
3
Kailash Chandra
PW3
4
K.K. Gupta
PW4
5
Ramendra Singh
PW5
6
K.L. Verma
PW6
7
Mohd. Gaffar
PW7
8
Atul Kumar Gautam PW8
9
Sunil Kumar Singh
PW9
10 Dr. P. Kumar
PW10
11 Dr. Ahastan Ahmad
PW11

11. In support of ocular version
following documents were filed and
proved:

1
F.I.R. & G.D.
Ex.Ka.4 & Ex.
Ka.5
2
Written Report
Ex.Ka.1
3
Dying Declaration Ex. Ka.10
4
Postmortem Report Ex.Ka.3 &19
5
Papers relating to
Postmortem
Ex.Ka.6,
Ka.7,
Ka.8 & Ka.9
6
Panchayatnama
Ex.Ka.2
7
Charge-sheet
Ex. Ka.18
8
Site Plan
Ex.Ka.11 & 12

12. At the end of the trial and after
recording the statements of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the accused-appellant, Alka and
acquitted the other accused as mentioned
above.

13. It is submitted by learned counsel
for the appellant that the incident occurred
at the spur of moment as is clear from the
dying declaration. The accused had not
premeditated to do away with the deceased.
Learned counsel for the appellant has
vehemently
submitted
that
dying
declaration is not worth believing and it is
an admitted position of fact that deceased
died due to septicemia.

14. It is further submitted that
conviction under Section 302 IPC is not
made out as no overt act as per Section 300
IPC is made out. In alternative, it is
submitted that at the most, the death can be
homicidal death not amounting to murder
and punishable under Section 304 II or
Section 304 I of I.P.C. If the Court decides
that the accused is guilty, then the accused
may be granted fixed term punishment of
incarceration.

15. Learned counsel for the State has
submitted that though it is septicemic
death, the dying declaration and evidence
of other prosecution witnesses will not
permit this Court to show any leniency in
the matter. It is further submitted by
learned A.G.A. that ingredients of Section
300 of IPC are rightly held to be made out
by the learned Sessions Judge who has
applied the law to the facts in case.

16. While considering evidence of
P.W.1, who is the uncle of the deceased, we
find that he has proved the complaint
lodged by him which has been exhibited
and has opined that in his ocular version
that the marriage took place before 1 & 1/2
10 All. Smt. Alka Vs. State of U.P.
999
years. About Rs.2,50,000/- was spent but
her in-laws were not happy with the same.
The husband and other family members
started demanding additional dowry. The
family members of the deceased tried to
request the in-laws not to demand more
dowry but the in-laws were not accepting
the request and on 13.4.2010 the deceased
was set ablaze. On 14.4.2010 when they
went to Medical College Hospital they
found
her
unconscious.
The
First
Information Report was lodged after three
days. P.W. 2 & 3 who are family members
have also corroborated the evidence of
P.W.1. As far as independent witness
namely P.W.4, Doctor K.K. Gupta is
concerned, he had performed postmortem
of the deceased. P.W.5 & 8 are police
officials and P.W.6, 7 & 9 are government
officials who had jotted down the dying
declaration. P.W.7, Mohd. Gaffar, Retd.
District Magistrate has deposed before the
Trial Court that he had recorded the dying
declaration of the deceased. He has
deposed that while giving her statement she
was conscious and she told that uncle of
her husband had admitted her in the
hospital and that her husband had saved
her. P.W.7 has further deposed that nothing
else was stated by her in her dying
declaration.

17. The learned Sessions Judge has not
accepted the statement recorded by I.O. ten
days after the recording of the dying
declaration of the deceased by the Magistrate.
The learned Sessions Judge has taken
recourse of Lella Srinivasa Rao Versus
State of Andhra Pradesh, AIR 2004 SC
1720 and on the basis of this judgment, he
has opined that the statement recorded by the
I.O. after recording of the dying declaration
by the Magistrate was not reliable and has
found that the dying declaration recorded by
the Magistrate cannot be found fault with.

18. In the light of the decision in
Govindappa and others Versus State of
Karnataka, (2010) 6 SCC 533, there is no
reason for us not to accept the dying
declaration recorded by the Magistrate and its
evidentiary value under Section 32 of
Evidence Act, 1872.

19. Principle for accepting dying
declaration will permit us to concur with the
finding of the learned Sessions Judge that
dying declaration could have been acted upon
as there is no material contradictions in the
dying declaration. The dying declaration
when taken in its totality goes to show that
her sister-in-law had poured kerosene on the
deceased and set her ablaze, her husband has
saved her and she died after several days out
of septicemic death and, therefore, we are
convinced that it is homicidal death but, it
would be seen whether it is homicidal death
punishable under Section 302 or Section 304
Part I or Part II of IPC?

20. It would be relevant to refer to
Section 299 of the Indian Penal Code,
which read as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

21. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
loose sight of the true scope and meaning
of the terms used by the legislature in these
sections, and allow themselves to be drawn
into minute abstractions. The safest way of
approach
to
the
interpretation
and
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
application of these provisions seems to be
is to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A
person
commits
culpable homicide if the
act by which the death is
caused is done-
Subject to certain exceptions
culpable homicide is murder is
the act by which the death is
caused is done.

INTENTION

(a) with the intention of
causing death; or

(1) with the intention of
causing death; or
(b) with the intention of
causing such bodily injury
as is likely to cause death;
or
(2) with the intention of
causing such bodily injury as
the offender knows to be likely
to
cause the death of the person
to whom the harm is caused;
KNOWLEDGE
KNOWLEDGE
(c) with the knowledge
that the act is likely to
cause death.
(4) with the knowledge that the
act
is
so
immediately
dangerous that it must in all
probability cause death or such
bodily injury as is likely to
cause death, and without any
excuse for incurring the risk of
causing death or such injury as
is mentioned above.

22. We can safely rely upon the
decision of the Gujarat High court in
Criminal Appeal No.83 of 2008 (Gautam
Manubhai
Makwana
Vs.
State
of
Gujarat) decided on 11.9.2013 wherein the
Court held as under:

"12. In fact, in the case of Krishan
vs. State of Haryana reported in (2013) 3
SCC 280, the Apex Court has held that it is
not an absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the attendant
circumstances show it to be reliable and it
has been recorded in accordance with law,
the deceased made the dying declaration of
her own accord and upon due certification by
the doctor with regard to the state of mind
and body, then it may not be necessary for the
court to look for corroboration. In such
cases, the dying declaration alone can form
the basis for the conviction of the accused.
But where the dying declaration itself is
attended by suspicious circumstances, has not
been recorded in accordance with law and
settled procedures and practices, then, it may
be necessary for the court to look for
corroboration of the same.

13. However, the complaint given
by the deceased and the dying declaration
recorded by the Executive Magistrate and the
history before the doctor is consistent and
seems to be trustworthy. The same is also
duly corroborated with the evidence of
witnesses and the medical reports as well as
panchnama and it is clear that the deceased
died a homicidal death due to the act of the
appellants in pouring kerosene and setting
him ablaze. We do find that the dying
declaration is trust worthy.

14. However, we have also not lost
sight of the fact that the deceased had died
after a month of treatment. From the medical
reports, it is clear that the deceased suffered
from Septicemia which happened due to
extensive burns.

15. In the case of the B.N.
Kavatakar and another (supra), the Apex
Court in a similar case of septicemia where
the deceased therein had died in the hospital
after five days of the occurrence of the
incident in question, converted the conviction
under section 302 to under section 326 and
modified the sentence accordingly.

15.1 Similarly, in the case of
Maniben (supra), the Apex Court has
observed as under:
10 All. Smt. Alka Vs. State of U.P.
1001

"18. The deceased was admitted in
the hospital with about 60% burn injuries
and during the course of treatment developed
septicemia, which was the main cause of
death of the deceased. It is, therefore,
established that during the aforesaid period
of 8 days the injuries aggravated and
worsened to the extent that it led to ripening
of the injuries and the deceased died due to
poisonous effect of the injuries.

19. It is established from the dying
declaration of the deceased that she was
living separately from her mother-in-law, the
appellant herein, for many years and that on
the day in question she had a quarrel with the
appellant at her house. It is also clear from
the evidence on record that immediately after
the quarrel she along with her daughter came
to fetch water and when she was returning,
the appellant came and threw a burning
tonsil on the clothes of the deceased. Since
the deceased was wearing a terylene cloth at
that relevant point of time, it aggravated the
fire which caused the burn injuries.

20. There is also evidence on
record to prove and establish that the action
of the appellant to throw the burning tonsil
was preceded by a quarrel between the
deceased and the appellant. From the
aforesaid evidence on record it cannot be
said that the appellant had the intention that
such action on her part would cause the
death or such bodily injury to the deceased,
which was sufficient in the ordinary course of
nature to cause the death of the deceased.
Therefore, in our considered opinion, the
case cannot be said to be covered under
clause (4) of Section 300 of IPC. We are,
however, of the considered opinion that the
case of the appellant is covered under Section
304 Part II of IPC."

16. In the present case, we have
come to the irresistible conclusion that the
role of the appellants is clear from the
dying declaration and other records.
However, the point which has also weighed
with this court are that the deceased had
survived for around 30 days in the hospital
and that his condition worsened after
around 5 days and ultimately died of
septicemia. In fact he had sustained about
35% burns. In that view of the matter, we
are of the opinion that the conviction of the
appellants under section 302 of Indian
Penal Code is required to be converted to
that under section 304(I) of Indian Penal
Code and in view of the same appeal is
partly allowed.

17.
The
conviction
of
the
appellants - original accused under Section
302 of Indian Penal Code vide judgment
and order dated 19.12.2007 arising from
Sessions Case No. 149 of 2007 passed by
the Additional Sessions Judge, Fast Track
Court No. 6, Ahmedabad is converted to
conviction under Section 304 (Part I) of
Indian
Penal
Code.
However,
the
conviction of the appellants - original
accused under section 452 of Indian Penal
Code is upheld. The appellants - original
accused are ordered to undergo rigorous
imprisonment for a period of ten years and
fine of Rs. 5000/- each in default rigorous
imprisonment for six months under section
304 (Part I) of Indian Penal Code instead
of life imprisonment and sentence in default
of fine as awarded by the trial court under
section 302 IPC. The sentence imposed in
default of fine under section 452 IPC is
also reduced to two months. Accordingly,
the appellants are ordered to undergo
rigorous imprisonment for a period of ten
years and fine of Rs. 5000/-, in default,
rigorous imprisonment for six months for
offence punishable under section 304(I) of
Indian
Penal
Code
and
rigorous
imprisonment for a period of five years and
fine of Rs. 2,000/-, in default, rigorous
imprisonment for two months for offence
punishable under section 452 of Indian
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
Penal Code. Both sentences shall run
concurrently. The judgement and order
dated 19.12.2007 is modified accordingly.
The period of sentence already undergone
shall be considered for remission of
sentence qua appellants - original accused.
R & P to be sent back to the trial court
forthwith."

23. In latest decision in Khokhan @
Khokhan Supra where the facts were
similar to this case, the Apex Court has
allowed the appeal of the accused appellant
and altered the sentence. The decision of
the Apex Court in the case of Anversinh v.
State of Gujarat, (2021) 3 SCC 12 which
was related to kidnapping from legal
guardian, wherein it was established that
the Court while respecting the concerns of
both society and victim, propounded that
the twin principle of deterrence and
correction would be served by reducing the
period of incarceration already undergone
by the accused. In our case, this is not that
gruesome matter where the accused cannot
be dealt with in light of all these judgments.
Decisions in Pravat Chandra Mohanty v.
State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of
the accused.

24. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
Maharashtra, reported in (2011) 4 SCC
250 and in the case of B.N. Kavatakar and
Another Vs. State of Karnataka, reported
in 1994 SUPP (1) SCC 304, we are of the
considered opinion that it was a case of
homicidal death not amounting to murder.

25. From the upshot of the aforesaid
discussions, it appears that the death
caused
by
the
accused
was
not
premeditated,
accused
though
had
knowledge and intention that her act
would cause bodily harm to the deceased
but did not want to do away with the
deceased. Hence the instant case falls
under the Exceptions 1 and 4 to Section
300 of IPC. While considering Section
299 as reproduced herein above offence
committed will fall under Section 304
Part-I as per the observations of the Apex
Court in Veeran and others Vs. State of
M.P. Decided, (2011) 5 SCR 300 which
have to be also kept in mind.

26. We come to the definite
conclusion that the death was due to
septicemia. The precedents discussed by
us would permit us to uphold our finding
which we conclusively hold that the
offence is not punishable under Section
302 of I.P.C. but is culpable homicide not
amounting to murder, punishable U/s 304
(Part I) of I.P.C.

27. Therefore, accused-appellant,
Alka, is punished under Section 304 (Part
I) of IPC and sentenced to the period
undergone. The fine is reduced to
Rs.5,000/-. The fine if she has yet not
deposited, will deposit the same within
four weeks from the date of release from
jail. The jail authority shall see that the
accused-appellant is lodged in the jail to
re-incarcerate for the default period if
fine is not paid after she is released.

28. In view of the above, the
criminal appeal is partly allowed.

Government Appeal No.2275 of
2017
10 All. Smt. Alka Vs. State of U.P.
1003

29.
 As
discussed
above,
this
Government
Appeal
challenges
the
acquittal of Sanjiv Kumar, Rajiv Kumar &
Rajendra Prasad.

30. In order the challenge the
judgment of acquittal, learned A.G.A. for
the state has submitted that the learned
Sessions Judge has mistakenly disbelieved
statements of the prosecution witnesses and
without assigning any cogent reasons has
disbelieved prosecution story. It is further
submitted that the evidence on record and
surrounding circumstances have not been
properly appreciated by the Trial Court as
far as acquittal of accused-respondents are
concerned.

31. As against this, learned counsel
for the respondents have submitted that
judgment of the learned Sessions Judge is
just and proper as no infirmity can be found
in the finding given by the learned Sessions
Judge. It is further submitted that this Court
should go by the well settled principles
concerning
criminal
appeal
against
acquittal and that the finding of the learned
Sessions Judge are not so perverse as even
in the dying declaration, nothing has been
assigned against the present three acquitted
respondents.

32. 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.

33. 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."

34.

Further,
in
the
case
of
"CHANDRAPPA
Vs.
STATE
OF
KARNATAKA", reported in (2007) 4
S.C.C. 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
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
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

35. 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.

36. In the case titled "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 appeals against acquital. 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
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."

37. Similar principle has been laid
down by the Apex Court in cases titled
"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.

38. 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 All. Smt. Alka Vs. State of U.P.
1005

"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."

39. In a recent decision of the Apex
Court in the case titled "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]"

40. 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."

41.

The
Apex
Court
in
"SHIVASHARANAPPA & ORS. VS.
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

42. 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 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."

43. The Apex Court recently in
Jayaswamy vs. State of Karnataka, (2018)
7 SCC 219, has laid 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 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
10 All. Smt. Alka Vs. State of U.P.
1007
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.