# The State of U.P v. Krishna Kumar Kulshreshtha & Ors

- **Citation:** (2022) 10 ILRA 1138
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Government Appeal No. 2008 of 1987
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-krishna-kumar-kulshreshtha-ors-47675
- **Pages:** 13

## Headnote

A. Criminal Law - Dowry Death - Indian
Penal Code: Sections 302/34 & 201 - It is
a settled principle that while exercising
appellate
powers,
even
if
two
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. Interference with acquittal can only
be justified when it is based on a perverse
view. (Para 12, 13, 14, 23)

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.
(Para 19)

B. Consideration to the presumption of
innocence - If 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
stands reinforced, reaffirmed and strengthened
by the trial Court. (Para 23)

C. It is a well settled principle of law that
when the genesis and the manner of
incident are doubtful, the accused cannot
be convicted. (Para 35)

In the written report the informant did not
mention that on the fateful day i.e. to say on
15.11.1982 the informant had visited the house
of the accused persons before the death of his
daughter. This fact was admitted by him the
cross-examination. A genuine question arises
that when on the fateful day the informant
himself found his daughter in a St. of unsound
health then why this fact was not disclosed by
10 All. The State of U.P. Vs. Krishna Kumar Kulshreshtha & Ors.
1139
him in the written report prepared by him. This
indicates that the prosecution is trying to hide
the genesis of the incident. (Para 35)

D. It is the duty of the accused to explain
the incriminating circumstance proved
against him while making a St.ment u/s
313
CrPC.
Keeping
silent
and
not
furnishing
any
explanation
for
such
circumstance in an additional link in the
chain of circumstances to sustain the
charges
against
him.
Recovery
of
incriminating material at his disclosure
St.ment duly proved is a very positive
circumstance against him. (Para 39)

The accused persons in their St.ment u/s 313
CrPC
not
only
not
only
explained
the
incriminating circumstances but also adduced
oral and documentary evidence to prove the
same. 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. (Para 39)

E. The defence witnesses are entitled to
equal respect and treatment as that of the
prosecution - 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
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. (Para 39)

The trial Court after appreciating the oral and
documentary evidence on record has not found
the 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. (Para 41)

F. Preponderance of probability - 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 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.

If upon the evidence adduced in the case
whether by the prosecution or by the accused a
reasonable doubt is created

## Text

_Characters 0–39,922 of 43,168. This is a partial read: ask again with offset=39922 for what follows._

1138 INDIAN LAW REPORTS ALLAHABAD SERIES
even the forensic laboratory report does not
support the prosecution version, fourthly,
extra judicial confession so made looses its
efficacy as P.W. 5 Iqbal turned hostile
before whom the extra judicial confession
stated to be made and last but not the least
the fact that circumstantial evidences do
not support the prosecution case as the
complete chain to link the accused to
commit crime stands missing. This Court
further finds that the learned trial court has
meticulously scanned the depositions of the
prosecution witnesses and the evidences so
adduced and has come to a correct
conclusion
that
the
prosecution
has
miserably failed to link the accused with
respect to commission of crime. The view
taken by the learned trial court is a possible
and a plausible view as not other view is
possible. Hence, this Court has no option
but to concur the judgment of the learned
trial court acquitting the accused herein.

42. Resultantly, no ground is made as
to accord leave to appeal and accordingly,
the same is rejected.

43. As the leave to file the present
appeal stands rejected thus, the present
appeal so instituted at the behest of the
State-appellant u/s 378 (3) of the Cr.P.C.
stands dismissed.
----------
(2022) 10 ILRA 1138
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

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

Government Appeal No. 2008 of 1987

The State of U.P. ...Appellant
Versus
Krishna Kumar Kulshreshtha & Ors.
 ...Respondents

Counsel for the Appellant:
A.G.A., Sri S.K. Kulshreshtha

Counsel for the Respondents:
Dr.D.K. Kulshreshtha, Sri P.K. Singh, Sri
M.K.S. Chauhan

A. Criminal Law - Dowry Death - Indian
Penal Code: Sections 302/34 & 201 - It is
a settled principle that while exercising
appellate
powers,
even
if
two
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. Interference with acquittal can only
be justified when it is based on a perverse
view. (Para 12, 13, 14, 23)

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.
(Para 19)

B. Consideration to the presumption of
innocence - If 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
stands reinforced, reaffirmed and strengthened
by the trial Court. (Para 23)

C. It is a well settled principle of law that
when the genesis and the manner of
incident are doubtful, the accused cannot
be convicted. (Para 35)

In the written report the informant did not
mention that on the fateful day i.e. to say on
15.11.1982 the informant had visited the house
of the accused persons before the death of his
daughter. This fact was admitted by him the
cross-examination. A genuine question arises
that when on the fateful day the informant
himself found his daughter in a St. of unsound
health then why this fact was not disclosed by
10 All. The State of U.P. Vs. Krishna Kumar Kulshreshtha & Ors.
1139
him in the written report prepared by him. This
indicates that the prosecution is trying to hide
the genesis of the incident. (Para 35)

D. It is the duty of the accused to explain
the incriminating circumstance proved
against him while making a St.ment u/s
313
CrPC.
Keeping
silent
and
not
furnishing
any
explanation
for
such
circumstance in an additional link in the
chain of circumstances to sustain the
charges
against
him.
Recovery
of
incriminating material at his disclosure
St.ment duly proved is a very positive
circumstance against him. (Para 39)

The accused persons in their St.ment u/s 313
CrPC
not
only
not
only
explained
the
incriminating circumstances but also adduced
oral and documentary evidence to prove the
same. 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. (Para 39)

E. The defence witnesses are entitled to
equal respect and treatment as that of the
prosecution - 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
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. (Para 39)

The trial Court after appreciating the oral and
documentary evidence on record has not found
the 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. (Para 41)

F. Preponderance of probability - 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 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.

If upon the evidence adduced in the case
whether by the prosecution or by the accused a
reasonable doubt is created in 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.
(Para 42)

The burden/onus in this case is not upon the
accused persons/respondents but whatsoever
has been St.d by them in their St.ment u/s 313
CrPC, 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 preponderance of
probability in favour of the innocence of the
accused persons/respondents. (Para 44)

G. It appears that there was a deliberate
delay in lodging of the FIR which seems to
be result of due consultation and after
thought - The suspicious death of the
daughter of the informant was a very serious
matter for him but surprisingly neither he
informed nor did he send his son to inform the
police about it. (Para 45)

As a matter of fact, no person has seen the
occurrence and on the basis of analysis of oral
and documentary evidence on record, no
incriminating circumstances to connect the
respondents with the alleged offence is proved.
Hence, the non-conviction of the respondents
u/s 302/34 and 201 IPC is upheld. (Para 48)

Appeal dismissed. (E-4)

Precedent followed:

1. M.S. Narayana Menon @ Mani Vs St. of Ker. &
anr., (2006) 6 SCC 39 (Para 12)

2. Chandrappa Vs St. of Karn., (2007) 4 SCC 415
(Para 13)

3. St. of Goa Vs Sanjay Thakran & anr., (2007) 3
CC 75 (Para 15)
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
4. St. of U. P. Vs Ram Veer Singh & ors., 2007
A.I.R. S.C.W. 5553 (Para 16)

5. Girja Prasad (Dead) by L.R.s Vs St. of M.P.,
2007 A.I.R. S.C.W. 5589 (Para 16)

6. Luna Ram Vs Bhupat Singh & ors., (2009)
SCC 749 (Para 17)

7. Mookkiah & anr. Vs St., Rep. by the Inspector of
Police, Tamil Nadu, AIR 2013 SC 321 (Para 18)

8. St. of Karn. Vs Hemareddy, AIR 1981, SC
1417 (Para 19)

9. Shivasharanappa & ors. Vs St. of Karn., JT
2013 (7) SC 66 (Para 20)

10. St. of Pun. Vs Madan Mohan Lal Verma,
(2013) 14 SCC 153 (Para 21)

11. Jayaswamy Vs St. of Karn., (2018) 7 SCC
219 (Para 22)

12. Shailendra Rajdev Pasvan Vs St. of Gujarat,
(2020) 14 SCC 750 (Para 23)

13. Pankaj Vs St. of Raj., (2016) 16 Supreme
Court Cases 192 (Para 35)

14. Neel Kumar @ Anil Kumar Vs St. of Har.,
(2012) 5 CC 766 (Para 39)

15. Munshi Prasad & ors. Vs St. of Bihar, (2002)
1 SCC 351 (Para 39)

16. Rishikesh Singh Vs St. of U.P., AIR 1970 Alld
51 (Full Bench) (Para 42)

17. V.D. Jhangan Vs St. of U. P., AIR 1966 SC
1762 (Para 43)

Present
Government
Appeal
assails
judgment and order dated 29.04.1987,
passed by the Court of Special Judge
(Economic Offences), Agra.

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

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
Kulshreshthahusband, Krishna Kumar Kulshreshthafather-in-law, Smt. Gayatri Devi-mother-inlaw were dissatisfied with the dowry and
Smt. Bina was subjected to cruelty and
harassment for demand of 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 inlaws of his daughter have killed her by
poisoning.
10 All. The State of U.P. Vs. Krishna Kumar Kulshreshtha & Ors.
1141

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
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 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
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 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.
10 All. The State of U.P. Vs. Krishna Kumar Kulshreshtha & Ors.
1143

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
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."

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
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
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]"

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 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
10 All. The State of U.P. Vs. Krishna Kumar Kulshreshtha & Ors.
1145
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 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 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 reappreciate 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."
1146 INDIAN LAW REPORTS ALLAHABAD SERIES

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 inlaws/ 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 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 inlaws. 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.

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
10 All. The State of U.P. Vs. Krishna Kumar Kulshreshtha & Ors.
1147
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 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 crossexamination. 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
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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. 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
10 All. The State of U.P. Vs. Krishna Kumar Kulshreshtha & Ors.
1149
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
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
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.