# Shakti Singh v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1498
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-27
- **Case number:** Criminal Appeal No. 221 of 2011
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shakti-singh-v-state-of-u-p-ors-49035
- **Pages:** 13

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 372 - Appeal
against acquittal in case u/s 498A, 304B
IPC r/w s 113B of the Evidence Act and
3/4 of the Dowry Prohibition Act - An
appellate court has the full power to
review, re-appreciate, and reconsider the
evidence upon which an order of acquittal
is founded - However, an appellate court
should not ordinarily set aside a judgment
of
acquittal,
as
there
is
a
double
presumption in favor of the accused in
case of acquittal - appellate court may
interfere if the views of the trial court
9 All. Shakti Singh Vs. State of U.P. & Ors.
1499
were perverse or otherwise unsustainable,
if in arriving at a finding of fact, the trial
court failed to take into consideration
relevant admissible evidence and/or had
taken into consideration the evidence
brought on record contrary to law - If the
finding so outrageously defies logic as to
suffer from the vice of irrationality, it may
interfere - wrong placing of burden of
proof may also be a subject matter of
scrutiny by the appellate court (Para 14)

B. Criminal law - Indian Penal Code, 1860
- Section 304 - Dowry death - Section 304
IPC - where the death of a woman is
caused by any burn or bodily injury or
occurs
otherwise
than
under
normal
circumstances within seven 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 - "soon
before" - Meaning - term "soon before" is
a relative term and does not mean
"immediately before" - interval between
the time of the cruelty or harassment and
the death should not be too long - It
contemplates
a
reasonable
time
-
Prosecution must show that there was a
"proximate and live link" between the
cruelty or harassment suffered by the
woman and her subsequent death in order
to prove that the death was a dowry death
-
This
means
that
the
cruelty
or
harassment must have been a significant
contributing factor to her death - demand
for dowry, cruelty, or harassment should
not be stale but should be the continuing
cause for the death of the married woman
under Section 304-B (Para 38)

As per complain, deceased was staying at her
brother's
house
since
28.06.2008
-
On
04.08.2008 she left for village Hastinapur for
some work at 2pm, but did not reach her
destination - PW3 & PW5 lastly saw her with her
husband on a motorcycle - thereafter she went
missing, later her body was found in an
agricultural field - prosecution alleged that the
accused had demanded a dowry of one lakh
rupees and a four-wheeler, and that the
deceased was killed because the demand was
not met - Held - Prosecution made bald
allegations of a demand for dowry of one lakh
rupees and a four-wheeler but not provided any
details about when or where the demand was
made - prosecution did not provide any details
about when or where the demand was made,
and there is no record of any complaint or legal
proceedings being filed - death occurred at the
deceased's maternal home, and the father-inlaw had assured that he would take the
deceased after the Teej ceremony - There were
also inconsistencies in the testimony of the
witnesses
regarding
the
timing
of
the
deceased's departure from the house, and the
last seen theory was not supported by the
evidence - recovery of the body was not
supported
by
independent
witnesses
-
Prosecution could not prove the ingredients u/s
498A, 304B r/w s 113B of the Indian Evidence
Act and 3/4 of the Dowry Prohibition Act - view
taken by the trial court in acquitting the accused
was a possible view - judgment and order of
acquittal is not perverse, and there is no error in
the trial court's conclusion that the accused is
entitled to acquittal (Para 49, 50, 52)

Dismissed. (E-5)

List of Cases cited:

## Text

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1498 INDIAN LAW REPORTS ALLAHABAD SERIES
a whole, and relevant parts thereof which
are admissible in law, can be used by the
prosecution or the defence."

35. Considering the overall facts and
circumstances of the case, statement of the
witnesses, relevant case laws and the fact
that the offence committed by the appellant
by mutilating the private part of the minor
girl cannot be termed as an act of a person
of normal virtues. The said offence has
been committed out of severe sexual lust
and sadistic approach. The appellant does
not deserve any kind of leniency as the said
case stands proved beyond any reasonable
doubt by the statement of the prosecution
witnesses
and
the
medical
evidence
adduced.

36. It is a very sorry state of affairs
that the State has not preferred any appeal
against the leniency observed by the
learned Trial Court in sentencing the
appellant to such a short term. The lethargy
of
the
public
prosecutor
is
highly
deplorable.

37. From the evidence available on
record, it is proved beyond reasonable
doubt that the accused-appellant Ishrat had
committed grave offence and the learned
lower court had rightly convicted and
sentenced him as mentioned above.

38. In above circumstance, I do not
find any merit in the appeal. The appeal is
dismissed, accordingly. The judgement and
order dated 20.10.1992 passed by Sri S.C.
Nigam, Seventh Additional District and
Sessions Judge, Kanpur Nagar in Sessions
Trial No.175 of 1990 (State Vs. Ishrat),
Police
Station-
Chamanganj,
District-
Kanpur Nagar, is hereby affirmed. Bail
bonds of accused-appellant are hereby
cancelled and sureties are discharged from
their liability. He is directed to surrender
before the court below forthwith to serve
out remaining sentence and if he fails to do
so, concerned Chief Judicial Magistrate
shall take appropriate action in this regard.

39. Let a copy of this judgement
along with Lower Court Record be returned
to the court concerned forthwith for
compliance. A compliance report be also
sent to this Court.
----------
(2022) 9 ILRA 1498
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 221 of 2011
(U/S 372 Cr.P. C.)

Shakti Singh ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Birandra Singh Khokher, Sri Daya Ram
Yadav, Sri Shyam Lal
Counsel for the Opposite Parties:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 372 - Appeal
against acquittal in case u/s 498A, 304B
IPC r/w s 113B of the Evidence Act and
3/4 of the Dowry Prohibition Act - An
appellate court has the full power to
review, re-appreciate, and reconsider the
evidence upon which an order of acquittal
is founded - However, an appellate court
should not ordinarily set aside a judgment
of
acquittal,
as
there
is
a
double
presumption in favor of the accused in
case of acquittal - appellate court may
interfere if the views of the trial court
9 All. Shakti Singh Vs. State of U.P. & Ors.
1499
were perverse or otherwise unsustainable,
if in arriving at a finding of fact, the trial
court failed to take into consideration
relevant admissible evidence and/or had
taken into consideration the evidence
brought on record contrary to law - If the
finding so outrageously defies logic as to
suffer from the vice of irrationality, it may
interfere - wrong placing of burden of
proof may also be a subject matter of
scrutiny by the appellate court (Para 14)

B. Criminal law - Indian Penal Code, 1860
- Section 304 - Dowry death - Section 304
IPC - where the death of a woman is
caused by any burn or bodily injury or
occurs
otherwise
than
under
normal
circumstances within seven 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 - "soon
before" - Meaning - term "soon before" is
a relative term and does not mean
"immediately before" - interval between
the time of the cruelty or harassment and
the death should not be too long - It
contemplates
a
reasonable
time
-
Prosecution must show that there was a
"proximate and live link" between the
cruelty or harassment suffered by the
woman and her subsequent death in order
to prove that the death was a dowry death
-
This
means
that
the
cruelty
or
harassment must have been a significant
contributing factor to her death - demand
for dowry, cruelty, or harassment should
not be stale but should be the continuing
cause for the death of the married woman
under Section 304-B (Para 38)

As per complain, deceased was staying at her
brother's
house
since
28.06.2008
-
On
04.08.2008 she left for village Hastinapur for
some work at 2pm, but did not reach her
destination - PW3 & PW5 lastly saw her with her
husband on a motorcycle - thereafter she went
missing, later her body was found in an
agricultural field - prosecution alleged that the
accused had demanded a dowry of one lakh
rupees and a four-wheeler, and that the
deceased was killed because the demand was
not met - Held - Prosecution made bald
allegations of a demand for dowry of one lakh
rupees and a four-wheeler but not provided any
details about when or where the demand was
made - prosecution did not provide any details
about when or where the demand was made,
and there is no record of any complaint or legal
proceedings being filed - death occurred at the
deceased's maternal home, and the father-inlaw had assured that he would take the
deceased after the Teej ceremony - There were
also inconsistencies in the testimony of the
witnesses
regarding
the
timing
of
the
deceased's departure from the house, and the
last seen theory was not supported by the
evidence - recovery of the body was not
supported
by
independent
witnesses
-
Prosecution could not prove the ingredients u/s
498A, 304B r/w s 113B of the Indian Evidence
Act and 3/4 of the Dowry Prohibition Act - view
taken by the trial court in acquitting the accused
was a possible view - judgment and order of
acquittal is not perverse, and there is no error in
the trial court's conclusion that the accused is
entitled to acquittal (Para 49, 50, 52)

Dismissed. (E-5)

List of Cases cited:

1. Guru Dutt Pathak Vs St. of U.P. (2021) 6
Supreme Court Cases 116

2. Kans Raj Vs St. of Punj. & ors. (2000) 5 SCC
207
3. Rajinder Singh Vs St. of Pun. (2015) 6 SCC
477

4. Satbir Singh & anr. Vs St. of Har. (2021) 6
SCC 1

(Delivered 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
1500 INDIAN LAW REPORTS ALLAHABAD SERIES
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
nonappearance 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
9 All. Shakti Singh Vs. State of U.P. & Ors.
1501
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
1502 INDIAN LAW REPORTS ALLAHABAD SERIES
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
9 All. Shakti Singh Vs. State of U.P. & Ors.
1503
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;
1504 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 Prasad3
0Arulvelu 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
9 All. Shakti Singh Vs. State of U.P. & Ors.
1505
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 fourwheeler 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 11.30 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
1506 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
9 All. Shakti Singh Vs. State of U.P. & Ors.
1507

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
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
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
9 All. Shakti Singh Vs. State of U.P. & Ors.
1509
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
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
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.