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IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, VIKAS BUDHWAR, JJ.
Kaju Singh - Appellant
Versus
State of U.P. and Anr. - Respondents
Criminal Appeal U/s 372 CR.P.C. No. 3507 of 2012
Decided On : 04-07-2022
Criminal Procedure Code, 1973 - Section 372, 378 – Indian Penal Code, 1860 - Sections 302, 201 - Arms Act, 1959 - Section 25/4 – Criminal Appeal – Offence of Murder - State to prefer an appeal against an order of acquittal - powers that can be exercised by the Appellate Court – Held, Court has given anxious consideration to the pleadings so set forth in the appeal as well as the documents available on record, and after marshaling the factual and legal aspect, the Court finds its inability to subscribe to the prosecution case as for the purposes of discarding the view taken by the learned Trial Court. The prosecution case, if taken into face does not cumulatively complete the chain of linking the accused to have committed the crime, as neither any motive is attributed nor there is any ingredient of eye witness testimony, nor the theory of last seen stands attracted. Even otherwise, there is no recovery so made from the accused. This Court further finds that the prosecution case proceeds on weak evidence and and in any view of the matter, this is not a case wherein the appellant/ complainant can insist the Court to take a different view from the view taken by the Trial Court while acquitting the accused, while reversing the judgment in question – Criminal Appeal dismissed.
JUDGMENT :
Vikas Budhwar, J.
1. This appeal under Section 372 of Criminal Procedure Code, 1973 (in short 'Cr.P.C.'), has been instituted by the informant being Kaju Singh son of Balram Singh against the judgment and order dated 15.7.2011 passed by Addl. Sessions Judge, Court No. 5, District Banda, passed in S.T. No. 70 of 2008, under Sections 302, 201 IPC arising out of Case Crime No. 281 of 2007, and S.T. No. 71 of 2008, under Section 25/4 Arms Act (State Vs. Munna Singh alias Karan) arising out of Case Crime No. 15 of 2008, Police Station. Bisanda, District Banda, whereby learned trial court has acquitted the accused, who is respondent-opposite party no. 2.
2. This appeal was presented before this Court accompanied with a delay condonation application on 26.9.2011, and on 23.8.2012, this Court proceeded to pass the following order: -
Heard learned counsel for the appellant, learned AGA and Sri V.B. Rao, counsel appearing on behalf of the accused respondent.
This application has been filed with a prayer to condone the delay in filing the appeal.
The grounds taken for condoning the delay had not been controverted by the accused respondent because no counter affidavit has been filed.
This appeal has been filed beyond the period of limitation by 9 days.
Sufficient cause has been shown to condone the delay in filing the appeal. Therefore, the delay in filing the appeal is hereby condoned. The appeal shall be deemed to be filed within the period of limitation.
Office is directed to allot regular number to this appeal.
Accordingly, this application is allowed."
"Heard learned counsel for the appellant, learned AGA and Sri V.B. Rao, counsel appearing on behalf of the accused respondent.
Learned counsel for the appellant prays for and is granted three weeks' time to file an application for granting leave to appeal.
Summon the lower court record within a period of six weeks from today.
List on 18.10.2012 for admission. "
3. Thereafter on 30.10.2012, 10.12.2012, 16.1.2013, 25.8.2021, and lastly on 9.5.2022, the following orders were passed:-
Learned counsel for the appellant is not present.
In this case lower court record has been summoned on 23.8.2012 but the same has not been received.
List on 10.12.2012."
"10.12.2012
The learned counsel for the appellant is not present. In this case lower court record has been summoned, the same has not been received.
The office is directed to send reminder to the District Judge, Banda for sending the lower court reocrd within a month.
List on 16.1.2013."
"16.1.2013
Heard learned counsel for the appellant, learned A.G.A. for the State of U.P. and Sri V.B. Rao appearing on behalf of the accused respondents.
In this case lower court has not been received whereas the reminder has been sent to learned Sessions Judge, Banda on 10.12.2012.
List on 25.2.2013."
"25.8.2021
Put up on 15.9.2021 in the additional cause list before the appropriate Bench."
"9.5.2022
Matter is taken up.
None appeared on behalf of the appellant.
Learned A.G.A. on behalf of the State is present.
Today accused respondent is also not represented by any counsel nor he appeared in person before the Court.
Appeal is yet to be admitted.
In the circumstances, list this matter in the week commencing 4th July, 2022 for hearing on admission.
If on the next date fixed none will appear on behalf of the appellant Court will proceed to decide the matter appointing Amicus Curiae/with the help of the learned A.G.A."
4. Orders so passed from time to time in the present appeal show that the counsel for the appellant is avoiding to participate in the proceedings in order to facilitate in the disposal of the matter and thus, this Court was constrained to pass an order dated 9.5.2022 while directing and observing that in case on the next date so fixed, none appears on behalf of the appellant before this Court, the Court will have no option but to appoint Amicus Cur
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