Shakti Singh vs State Of U.P. And Others
2022 Latest Caselaw 8177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42					  
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 221 of 2011
 

 
Appellant :- Shakti Singh
 
Respondent :- State of U.P. and Others
 
Counsel for Appellant :- Birendra Singh Khokher,Daya Ram Yadav,Shyam Lal
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

(Oral Judgment by Hon'ble Vikas Budhwar, J.)

1. Witnessing exasperation the appellant/complainant is before this Court in the proceedings purported to be under Section 372 of the Criminal Procedure Code, 1973 (Cr.P.C.) challenging the judgment and order of acquittal passed in favour of the accused herein by Additional Sessions Judge, Court No.6 Meerut on 16.12.2010 in Sessions Trial No.1572 of 2008, State Vs. Sonu and two others, under Section 498A/304B IPC read with Section 3/4 of the Dowry Prohibition Act, Police Station Hastinapur, District Meerut.

2. The present appeal was presented before this Court on 13.1.2011 and on 18.1.2011 this Court passed the following orders:

"Summon the record and list thereafter."

3. Thereafter, the present case was listed on various dates. However, for the sake of brevity the order passed on 2.1.2017, 8.11.2017, 13.1.2021, 8.11.2021 and 19.11.2021 are being quoted as under:-

On 2.1.2017

List has been revised. None appears on behalf of the appellant.

Two week's time is granted for filing an application seeking leave to appeal.

List thereafter.

On 8.11.2017

"This case has been taken up in the revised call, no one has appeared on behalf of the appellant to argue the case. On the last occasion also, the case was adjourned on account of non-appearance of the learned counsel for the appellant.

Office is directed to issue notices to the appellant, Shakti Singh at his address returnable within six weeks who shall engage another counsel by the next date of listing.

Let the matter be listed in the week commencing 18th December, 2017."

On 13.1.2021

"None for the appellant even when the case is called in the revised list.

The case is adjourned."

On 8.11.2021

"As prayed, list on 09.11.2021, to enable the learned counsel for the appellant to prepare the case."

On 9.11.2021

Case called out, none appears for the appellant.

List this matter again on 16.11.2021.

However, it is made clear that, in case, on the next date, learned counsel for the appellant does not appear, we shall proceed with the appeal on hearing the State counsel.

4. Despite existence of the above mentioned orders in the order sheet of this case, nobody appears today also to press the appeal and thus in the light of the observations so made in the previous order dated 9.11.2021, the present appeal is being decided with the aid and assistance of learned AGA.

5. Noticing the prosecution version it transpires that the complainant being Shakti Singh son of Ram Bhajan, resident of Village Pali, Police Station Hastinapur, District Meerut, who claims himself to be real brother of the deceased Seema had submitted a written complaint on 6.8.2008 at 10.10 am with an allegation that his sister since deceased got married with the accused Sonu son of Ramesh. Various gifts and offerings were tendered to the in-laws of her sister however the same was not commensurate to their expectation and even in fact prior to the lodging of the FIR in question for a dowry demand was made referable to rupees one lakh and a four wheeler and as the same was not provided to them, the same became instrumental in commission of crime while disposing of his sister.

6. As per the written complaint the deceased was in the house of her brother being the complainant and she had at 2.00 in the noon on the fateful day 4.8.2008 proceeded from the village in question to Hastinapur, however, she did not reach the destination and in between the husband being one of the accused took her while allowing her to sit in the motorcycle and thereafter, she went missing and subsequently the dead body of the deceased was found in an agricultural field which belong to Deepak. On the basis of the written complaint so sought to be lodged appellant complainant FIR got registered under Sections 498A/304B read with Section 3/4 of the Dowry Prohibition Act in Police Station Hastinapur against the accused herein.

7. One S.I. Prabhakar Dixit was nominated as the Investigating Officer, who happens to be PW10. He as per the prosecution version conducted the investigation prepared the site plan took statement of the witnesses and even in fact also assisted in the preparation of Panchnama. Body of the deceased was also sent for postmortem and eventually submitted charge sheet against the accused herein in the above noted sections.

8. The case was committed to sessions. Charges were read over to the accused herein, who happend to be the husband Sonu son of Ramesh, Smt. Munni mother-in-law and one Pradeep son of Chandrapal. The accused, who are three in number pleaded innocence.

9. Ultimately charge sheet was submitted in Case Crime No.211 of 2008, under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act.

10. The prosecution in order to substantiate their version produced following ocular testimony namely (a) PW1 Shakti Singh (b) PW2 Shravan Kumar (c) PW3 Mekchand (d) PW4 Sudhir Kumar, (e) PW5 Vijai Pal (f) PW6 Constable Ram Pal Singh (g) PW7 C.O. Digambar Kushwaha (h) PW8 Dr. N.K. Gupta (I) PW9 Manju Gupta (j) PW10 S.I. Prabhakar Canbura (k) PW11 S.I. Sushil Kumar Sharma (l) PW12 S.I. Chandra Pal (j) PW13 Anil Kumar.

11. Besides the ocular testimony various documentary evidence were also produced by the prosecution which would be discussed in the latter part of the judgment.

12. Notably the present proceedings emanates under the appellate jurisdiction so encompasses under Section 372 of the Cr.P.C. at the instance of the complainant against the judgment of acquittal.

13. The appellate court as mandated by the Hon'ble Apex Court have to bear in mind that interference in the judgment of the acquittal is not to be resorted is not routine and cyclostyle manner as this Court can only interfere while granting its indulgence when the judgment of the acquittal is palpable erroneous, proceeds on misreading of evidence, perverse and takes into its ambit, the vice of miscarriage of justice.

14. To put it otherwise, there should be compelling and substantive reasons for interference. In a recent judgment of the Hon'ble Apex Court in the case of Guru Dutt Pathak Vs. State of U.P. (2021) 6 Supreme Court Cases 116, the Hon'ble Apex Court in paragraphs 14, 15, 16 have observed as under:-

14. We are conscious of the fact that this is a case of reversal of acquittal by the High Court. Therefore, the first and foremost thing which is required to be considered is, whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned C trial court?

15. In Babu v. State of Kerala³, this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under: (SCC pp. 196-199)

"12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/ or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court.

13. In Sheo Swarup v. King Emperor¹4, the Privy Council observed as under: (SCC OnLine PC : IA p. 404)

".... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State ¹5, Balbir Singh v. State of Punjab¹6, M.G. Agarwal v. State of Maharashtra¹7, Khedu Mohton v. State of Bihar¹8, Sambasivan v. State of Kerala ¹9, Bhagwan Singh v. State of M.P.20 and State of Goa v. Sanjay Thakran²1.) C

15. In Chandrappa v. State of Karnataka22, this Court reiterated the legal position as under: (SCC p. 432, para 42)

'42.... (1) An appellate court has full power to review, reappreciate 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 e 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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise 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.'

16. In Ghurey Lal v. State of U.P.23, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh24, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20)

'20. ... An order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne25, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with judgment of acquittal by the High Court. The circumstances include: Banne case 25, SCC p. 286, para 28)

i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; a

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.'

A similar view has been reiterated by this Court in Dhanapal v. State26. 19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." (emphasis supplied) C

16. When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in para 20 of the aforesaid decision, which reads as under: (Babu case³, SCC p. 199) d

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. 27, Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 28, Triveni Rubber & Plastics v. CCE2⁹, Gaya Din v. Hanuman Prasad³0, Arulvelu v. Statell and Gamini Bala Koteswara Rao v. State of A.P.31)"

It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police32, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."

15. Heard the present case is to be viewed in the light of the proposition of law so mandated by the Hon'ble Apex Court as reproduced herein above.

16. We have heard Ms. Nand Prabha Shukla, learned AGA, who appears for the State of U.P. and with her able assistance, the present appeal is being proceeded to be decided.

17. First and foremost this Court finds it proper to analyse the ocular testimony of the prosecution witness in brief.

18. As per PW1, who happens to be Shakti Singh, the real brother of the deceased, the first information report was lodged by him consequent to filing of written complaint wherein allegations under Section 498A read with Section 304B IPC and 3/4 of the Dowry Prohibition Act were sought to be inflicted upon the accused herein while alleging that marriage of her sister along with the accused respondent no.2 was solemenised three years ago, though enough gifts and offerings were extended but demand of a four wheeler and one lakh rupees were made and even in fact more than couple of times harassment was meted to his his sister and she had come back to his place and with the help and the aid of well wisher, she was deported to her in-laws place. He has further stated that his sister had lastly come on 28.6.2008 and she was residing with him in her maternal place. However, on 4.8.2008, she from her maternal house at 2.00 in the noon had proceeded to village Hastinapur in connection with some work but she did not return. PW3 being Mekchand and PW5 being Vaiji Pal saw the deceased on the motorcycle of her accused husband and along with him on the second motorcycle, the accused opposite party no.3 was also present and traveling while riding his bike. According to PW1 the deceased was lastly seen with the accused opposite party nos.2 and 3.

19. It has been further deposed by the PW1 that due to non-payment of monetary amount and gift of four wheeler, the same became instrumental in disposing of the deceased and rather the deceased was also found in the field of one Deepak wherein whereat recovery of incriminating articles were made which belonged to the accused husband.

20. As PW2 one Shravan Kumar got himself examined who claims himself to be one of the close relative (Sadhu) and he in his cross-examination has stated that he was the mediator in the marriage of the sister of the complainant with the accused husband. He has further stated that a demand of rupees one lakh and a four-wheeler was made by the accused. In his deposition, he has further stated that on 5.8.2008, he received a call from the complainant regarding missing status of the deceased. He has further stated that he saw the accused opposite party no.3 being Mekchand son of Chandra Pal along with 2-4 persons.

21. As PW3 Mekchand appeared as a prosecution witness, according to him the accused used to demand dowry and he along with PW5 Vijai Pal on 4.8.2008 had gone to purchase buffalo from a place at Khatauli and he on 4.8.2008 at about 1-1.30 at noon while proceedings from Saidpur village Ganeshpur on the road found the accused husband along with the deceased and the said bike was being ridden by the accused husband and in the another motorcycle Ravindra and Pradeep were sitting and he came back at 8 in the night to his house then he was informed that the deceased went missing. PW3 Pradeep claims himself to be a family uncle of the informant.

22. As PW4 one Sudhir Kumar appeared as a prosecution witness who proved Panchnama and so far as PW6 being Rampal is concerned, he proved lodging of the chik FIR.

23. As PW5 Vijaipal appeared as a prosecution witness and he also supported the prosecution case while coming with a stand that he along with PW3 Meghchand had gone to purchase buffalo and he saw the deceased with the accused husband in one motorcycle and Pradeep and Ravindra in another motorcycle at 1.30 in the noon.

24. So far as PW7 is concerned he entered the witness box while identifying him as Digamber Kushwaha, who had conducted investigation while taking evidences and submission of the charge sheet.

25. PW8 as one Dr. K.N. Gupta got himself examined as PW8 and according to him he conducted postmortem of the deceased on 6.8.2008 wherein as many as five injuries were sought to be sustained by the deceased being on stomach and upper portion of the left side of the head. According to PW8 the body of the deceased was in decomposed situation and it was witnessing worms. He has further stated that the death of the deceased occasioned one and half to two days and there can be variation of 12-14 hours. He has further admitted that the time of the death of the deceased though written in the FIR is 2-3 days however, the same can be four days also and so far as injury nos. 1 to 3 are concerned, the same has been sustained by a pointed weapon and so far as 4-5 are concerned, the same is through hard and blunt object.

26. As PW9 Smt. Manju, who happens to be the wife of the complainant entered the witness box and according to her statement the deceased proceeded from her house at 9.00 in the morning.

27. As PW10 S.I. Prabhakar Dixit appeared and he proved the recovery of mobile and motorcycle which is being stated to be owned by the accused husband.

28. As PW11 one S.I. Sushil Kumar got himself examined, who proved the recovery of knife.

29. PW12 happens to be the witness who is the scriber of the Chik Fir, who proved the recovery of knife and incriminating articles.

30. PW13 happens to be Anil Kumar who is the owner of the mobile phone number 997527279 and the said mobile phone is being used to link the accused while committing crime.

31. We have carefully gone through the memo of appeal and the lower court records so summoned by the court.

32. Undisputedly the entire genesis revolves around the commission of crime by the accused with relation to demand of dowry and murder of the deceased while seeking to attract the provisions contained under Sections 498A read with Section 304B as well as Section 3/4 of the Dowry Prohibition Act of the IPC.

33. Section 498A of the IPC itself provides that who ever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extent to three years and also liable to find and further cruelty itself has been defined according to which there should be a conduct of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to live or health whether mental or physical and harassment in that regard.

34. Similarly, so far as 304 IPC is concerned the same relates to the contingency where the death of a woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances within 7 years of the marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband then the same shall be termed to be dowry death exposing attraction of penal consequences.

35. Though Section 113B of the Indian Evidence Act creates a presumption of the dowry death but the prosecution herein has to prove that the death occurred due to dowry demand.

36. Record reveals that the deceased was living in a maternal place since 26.8.2008 and the entire allegations centers around the events which occurred on 4.8.2008 meaning thereby that for approximately 35 days, the deceased was living in a maternal place and not in-laws place. It has further come on record in the cross-examination of PW1 Shakti Singh that the father-in-law of the deceased had come to the complainant's house in connection with death ceremony of Rohtash and he had assured that after the Teej (religious ceremony), he was taken away daughter.

37. The word soon before so employment in Section 304B of the IPC has been a matter of interpretation by the Hon'ble Supreme Court in various decisions wherein it has been mandated that the cruelty or harassment regarding dowry demand and death of the wife should not be strictly be soon before the death. However, it should be interpreted in such a manner that there should be consistent demand for dowry entailing even before the death of the wife.

38. The Hon'ble Apex Court in the case of Kans Raj Vs. State of Punjab and others (2000) 5 SCC 207 the Hon'ble Apex Court in paragraph 15 has observed as under:-

15. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific g circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance b showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.

and in the case of Rajinder Singh Vs. State of Punjab (2015) 6 SCC 477 the Hon'ble Apex Court in paragraphs 24 and 25 have observed as under:-

24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the a word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B.

b 25. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana²7, in which the law was stated thus: (SCC p. 537, para 15)

"15. The expression 'soon before' is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straitjacket formula can be laid down by fixing any time of allotment. It can be said that the term 'soon before' is synonymous with the term 'immediately before'. The determination of the period which can come within term 'soon before' is left to be determined by the courts depending upon the facts and circumstances of each case."

We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before".

and yet in the case of Satbir Singh and another Vs. State of Haryana (2021) 6 SCC 1 in paragraph 38.3 has observed as under:-

"The phrase "soon before" as appearing in Section 304-B IPC cannot be construed to mean "immediately before". The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives."

39. Here in the present case the trial court has analysed the entire aspect of the matter while coming to the conclusion that the father-in-law of the deceased being Bhanvar Singh even in fact had visited the house of the complainant whereat the deceased was residing since 28.6.2006 till her death 4.8.2008 and he had assured to take the deceased to his own house after religious ceremony of Teej. The said circumstances even in fact coupled with the admitted fact that the deceased was staying in her maternal place since 28.6.2008 itself makes it clear that the present case is not a dowry death case. The position might have been different when the deceased was in her in-laws place from where she would have died.

40. Barring making bald allegations of demand of dowry of rupees one lakh and a four wheeler, no details have been given by the prosecution as to when and on which day the same was being sought to be demanded and further there is nothing on record to suggest that any complaint or proceedings drawn under any provision of law. The said aspect assumes significance and importance when the death occurred in a maternal place and there are surrounding factors which do not support the case of the prosecution while linking the accused herein beyond doubt.

41. Now another question arises which is with relation to the lase seen theory. As per the deposition of the PW1 being the informant brother of the deceased, the deceased had departed from the house in question on 4.8.2008 at 2.00 in the noon.

42. PW9 being Smt. Manju, who happens to be the wife of PW1 first informant has deposed that the deceased proceeded from the house at 9.00 in the morning. It has further come on record that even in fact if the deceased had gone walking then to the distance was 3 kms. then she would have reached by 10/10.30 at Hastinapur.

43. So much so according to the statement of PW3 being Mekchand and PW5 Vijai Pal, who supported the prosecution version of last seen theory as according to them the deceased was in the motorcycle of her husband and the second motorcycle Pradeep son of Chandrapal was there and further according to them in the cross-examination they had seen the deceased along with the accused husband at 1 or 1/30 at noon. It is highly improbable and that in case the deceased had gone walking and she started a journey at 2.00 in the noon than how PW3 and PW5 could have seen along with the accused.

44. To put the nail on the coffin of the prosecution theory the PW9 being Smt. Manju, who happens to be the wife of the first informant has come up with a stand that the deceased proceeded at 9.00 in the morning and in case the distance is calculated from the point last seen theory then the deceased could have easily reached by 11 and thus the entire prosecution theory stands demolished.

45. More so, so far as connecting the commission of crime by the accused through last seen theory also stands exploded from the fact that though PW13 Anil Kumar is supposed to have been made a witness in order to collect call details linking the accused with respect to commission of crime but it has come on record from the statement of the Investigating Officer as well as PW13 Anil Kumar that the mobile phone in question bearing number 9719724650 did not belong to the accused husband but it was in the name of Suresh Pal resident of Haridwar.

46. The learned trial court had taken pains of scrutinizing the said aspect of the matter while recording a categorical finding that the place from where the mobile was being used is also different from one place to other as it did not even link the presence of the accused at the sight of occurrence.

47. More so it has also come on record that though it is being stated by the prosecution that the recovery of a motorcycle and mobile phone has been recovered on the pointing out of the accused but there is no independent witness so as to connect the accused with respect to commission of crime.

48. Even otherwise though PW8 Dr. N.K. Gupta proved the postmortem report however according to him the death might have taken place 2-3 days and even 4 days prior to date of postmortem dated 6.8.2008.

49. Analysing the present case from the four corners of law, this Court finds that the prosecution has miserably failed to connect the applicant with respect to commission of crime particularly in view of the fact that the prosecution could not prove the ingredients so contained under Sections 498A, 304B read with Section 113B of the Indian Evidence Act and 3/4 of the Dowry Prohibition Act as firstly the death took place in the house of the informant being maternal house and the deceased from 28.6.2008 to 4.8.2008 was staying in her maternal house and further the fact that as per the deposition of PW1 the father-in-law Bhanwar Singh himself had come to informant place and assured to take the deceased after religious ceremony of Teej and so far as the timing of departing from the house by the deceased is concerned, there is a enormous variation vis-a-vis the testimony of PW9 Smt. Manju, who happens to be wife. Secondly, the fact that the last seen theory also stands exploded as it is highly improbable that the deceased would have been found in the company of the husband as there are inconsistency and variation and vast contradiction in the testimony of PW1 and PW9 and lastly the recovery which is being sought to be shown on the pointing of the accused is not supported by the independent witnesses.

50. Cumulatively marshaling the entire facts of the case including the ocular testimony and documents so adduced by the prosecution, this Court finds that the view so taken by the learned trial court while acquitting the accused is a possible view and judgment and order of acquittal is neither perverse nor there is any error committed by the learned trial court while arriving to the conclusion that the accused herein is entitled for acquittal.

51. Nonetheless presumption of double innocence is already attached to the accused herein and thus this Court finds the order of acquittal is liable to be affirmed.

52. In view of foregoing discussion, the present appeal is liable to be dismissed and is accordingly dismissed.

53 The records be sent back to the court-below.

(Vikas Budhwar, J.)      (Vivek Kumar Birla,J.)
 

 

 
Order Date :- 27.7.2022
 
piyush