Back
2022 Supreme(All) 619
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW)
VIVEK KUMAR BIRLA, VIKAS BUDHWAR, JJ.
Shakti Singh – Appellant
Versus
State of U.P. and Others – Respondents
Criminal Appeal U/S 372 Cr.P.C. No.221 of 2011
Decided on : 27-07-2022
Advocate Appeared:
For the Appellant : Birendra Singh Khokher, Daya Ram Yadav,Shyam Lal
Headnote:
Criminal Procedure Code, 1973 - Section 372, 378 - Dowry Prohibition Act,1961 - Section 3/4 – Indian Penal Code, 1860 - Section 498A/ 304B - Evidence Act,1872 - Section 114, (a), 113B - Dowry Death - Order of Acquittal - Deceased was in house of her brother being complainant and she had proceeded from the village, however, she did not reach destination and in between husband being one of accused took her while allowing her to sit in motorcycle and thereafter, she went missing and subsequently dead body of deceased was found in an agricultural field – Held, Death took place in house of informant being maternal house and deceased was staying in her maternal house and further fact that as per deposition of PW1 father-in-law himself had come to informant place and assured to take deceased after religious ceremony so far as timing of departing from house by deceased is concerned, there is a enormous variation vis-a-vis testimony of PW9 Smt - Secondly, fact that last seen theory also stands exploded as it is highly improbable that deceased would have been found in company of husband as there are inconsistency and variation and vast contradiction in testimony of PW1 and PW9 and lastly recovery which is being sought to be shown on pointing of accused is not supported by independent witnesses - Cumulatively marshaling entire facts of case including ocular testimony and documents so adduced by prosecution, this Court finds that view so taken by learned trial court while acquitting accused is a possible view and judgment and order of acquittal is neither perverse nor there is any error committed by learned trial court while arriving to conclusion that accused herein is entitled for acquittal – Appeal dismissed.
JUDGMENT :
Vikas Budhwra, 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 cond
