# Achche Lal & Anr v. State of U.P. & Anr

- **Citation:** (2023) 3 ILRA 927
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-03
- **Case number:** Criminal Appeal No. 2675 of 2021
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/achche-lal-anr-v-state-of-u-p-anr-47620
- **Pages:** 14

## Headnote

Criminal Law- Indian Penal Code-1860Sections 304B, 498-A- Dowry Prohibition
Act-1961-Sections 3 & 4 - The Indian
Evidence Act, 1872-Sections 106, 113BAccused appellants burnt the victim after
pouring kerosene oil on her upon nonfulfillment
of
the
dowry
demandConviction
of
accused
appellants
(Husband & Mother-in-law) U/s 498-A,
304B IPC & Section 4 of D.P Act and
acquittal of other co-accused personsDowry demand initiated by the husband-
Victim subjected to torture and crueltyDeath occurred within seven years of
marriage
by
physical
burns
and
in
unnatural circumstances at matrimonial
place- Accused failed to divulge any
plausible explanation of the death which
occurred due to extensive burn injuries
received
by
the
deceased
at
her
matrimonial
home-Accused
failed
to
discharge reverse burden imposed under
law by virtue of Section 106 as well as
Section 113-B of the Evidence Act-No
specific allegation levelled against Prema
Devi
(Mother-in-law)-Co-accused
who
were assigned similar role to that of
appellant Prema Devi, have already been
acquitted by learned Trial Court, accused
Prema Devi deserves to be extended
benefit of doubt-Conviction and sentence
imposed on appellant Prema Devi is set
aside. Appeal in respect of appellant
Achchhey Lal (husband) is dismissed.

Appeal partly allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,955 of 46,557. This is a partial read: ask again with offset=39955 for what follows._

3 All. Achche Lal & Anr. Vs. State of U.P. & Anr.
927
not to be true, motive was not proved,
recovery of firearm was doubtful, material
contradictions found in the evidence
rendered and no sufficient link to come to
the irresistible conclusion pointing guilt
only to appellant, it was reiterated that
mere suspicion, howsoever strong it may
be, cannot be a substitute for acceptable
evidence. In the peculiar circumstances of
the present case, the aforesaid theory also
applies to this case.

97. Hence, the impugned judgment and
order of conviction and sentence, which has been
sought to be assailed, calls for and deserves
interference. The criminal appeals are liable to be
allowed and the same are, accordingly, allowed.

98. The impugned judgement and order
dated 26.02.2020 is, accordingly, set aside. The
convicts-appellants are accordingly found not
guilty for the offence punishable under Sections
302/34, 120-B, 201, 404 IPC and 4/25 Arms Act.
They are acquitted from all the charges.
Convicts-appellants are in jail. They shall be
released forthwith, if not wanted in any other
case.

99. Let a copy of this judgment along with
trial court record be sent to the Court concerned
for necessary compliance. A copy of this
judgement be also placed in the connected
appeal.
----------
(2023) 3 ILRA 927
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2021

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 2675 of 2021

Achche Lal & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Sri Vijay Prakash Yadav, Sri Mohd. Raghib Ali, Sri
Mohd. Raghib Ali, Sri Saghir Ahmad(Sr. Adv.)

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code-1860Sections 304B, 498-A- Dowry Prohibition
Act-1961-Sections 3 & 4 - The Indian
Evidence Act, 1872-Sections 106, 113BAccused appellants burnt the victim after
pouring kerosene oil on her upon nonfulfillment
of
the
dowry
demandConviction
of
accused
appellants
(Husband & Mother-in-law) U/s 498-A,
304B IPC & Section 4 of D.P Act and
acquittal of other co-accused personsDowry demand initiated by the husband-
Victim subjected to torture and crueltyDeath occurred within seven years of
marriage
by
physical
burns
and
in
unnatural circumstances at matrimonial
place- Accused failed to divulge any
plausible explanation of the death which
occurred due to extensive burn injuries
received
by
the
deceased
at
her
matrimonial
home-Accused
failed
to
discharge reverse burden imposed under
law by virtue of Section 106 as well as
Section 113-B of the Evidence Act-No
specific allegation levelled against Prema
Devi
(Mother-in-law)-Co-accused
who
were assigned similar role to that of
appellant Prema Devi, have already been
acquitted by learned Trial Court, accused
Prema Devi deserves to be extended
benefit of doubt-Conviction and sentence
imposed on appellant Prema Devi is set
aside. Appeal in respect of appellant
Achchhey Lal (husband) is dismissed.

Appeal partly allowed. (E-15)

List of Cases cited:

1. Sandeep Vs St. of U.P., (2012) 6 SCC 107
928 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Prithipal Singh Vs St. of Pun. 2012(76) ACC
680 (SC)

3. Trimukh Maroti Kiran Vs St. of Mah., (2006)
10 SCC 681

4. Laxman Vs St. of Mah., (2002) 6 SCC 710

5. Koli Chunilal Savji Vs St. of Gu.t, 1999 (9)
SCC 562

6. VSK. Mishra & anr. Vs St. of Uttarakhand,
(2015) 9 SCC 588

7. Surinder Singh Vs St. of Har., (2014) 4 SCC
129

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J)

1. Heard learned counsel for the
appellants and learned A.G.A. for the State
and perused the lower court record.

2. Instant Crl. Appeal has been
preferred by convict appellants Achchhe
Lal and Prema Devi against judgment and
order dated 19.2.2021 passed by learned
Additional Sessions Judge/ FTC (offence
against women), Jaunpur passed in S.T. No.
263 of 2017 arising out of Case Crime 292
of 2017, under Section 498-A, 304-B IPC
and Section 3/4 D.P. Act, P.S. Sujanganj,
District
Jaunpur.
By
the
impugned
judgment and order, learned Trial Court has
convicted the appellants for charge under
Sections 498-A, 304B IPC and Section 4 of
D.P. Act. One year imprisonment and Rs.
2,000/- fine for charge under Section 498-A
IPC, 10 years imprisonment for charge
under Section 304B IPC and six months
imprisonment and Rs. 1,000/- fine for
charge under Section 4 D.P. Act and all the
sentences were directed to run concurrently.

3. Factual matrix of the case relevant
for present appeal is that informant Udayraj
Bind,
who
is
r/o
Umrikhurd,
P.S.
Maharajganj, District Jaunpur, lodged an
F.I.R. on the basis of written report Ext. Ka-1
at P.S. concerned with averment that his niece
Roshni Bind was married with Achchhey Lal
Bind S/o Prahland Bindh, R/o village
Sujahniya, P.S. Sujanganj, District Jaunpur,
on 24.4.2014. Husband and in-laws of his
niece were not satisfied with the gifts and
dowry given which were given to them in
marriage
and
they
started
demanding
additional dowry to the tune of Rs. 5,00,000/-
from Roshni and on non-fulfillment of their
demand of dowry, they used to beat and
torture her. On 24.5.2017 she was badly
tortured by accused persons Achchhey Lal
(husband), Rati Lal (husband's brother),
Aneeta (sister-in-law) and Prema Devi
(mother-in-law). He got apprised of this fact
on 24.5.2017 in the evening telephonically.
He visited the matrimonial home of his niece
by taking a hired vehicle but the accused
persons refused to send her off to her parental
place. They snatched the child of 18 months
from her lap and for that reason she could not
accompany the informant to visit her parental
home. The informant and his companions
returned home thereafter. However, on
26.5.2017 at 12:00 noon he was informed
that his daughter (niece) has been burnt.
When the informant and his family members
reached on the spot, they were apprised of
the fact that she was burnt and she has been
admitted to P.H.C. Sujanganj and thereafter
she was referred to District Hospital for
Jaunpur. Informant side visited the victim
at P.H.C. Sujangaj where she stated that
her husband Achchhey Lal Bind, father-inlaw Prahlad, brother-in-law Rati Lal,
sister-in-law Aneeta and mother-in-law
Prema had burnt her after pouring
kerosene oil on her body. Victim died on
way to District Hospital. The informant
lodged an F.I.R. at P.S. concerned on
26.5.2017 at 16:45 hours.
3 All. Achche Lal & Anr. Vs. State of U.P. & Anr.
929

4. The inquest on dead body of the
deceased was conducted on 27.5.2017
between 10:00 am to 12:00 hours. Post
mortem of the deceased was conducted by
Dr. R.P. Vishwakarma (PW-5) on 27.5.2017
at 3:35 PM. Doctor has stated in his postmortem examination report that in his
opinion, cause of death is due to shock as a
result
of
severe
flame
burn
injury,
approximately 98% (ante-mortem).

5. Investigating Officer recorded
statements of witnesses of fact Naib
Tehsildar Sri Ram Narain as PW-8, Dr.
Rajendra Prasad Vishwakarma as PW-5,
other
witnesses
of
fact
and
formal
witnesses
and
finding
complicity
of
accused persons submitted two charge
sheet, one against Achchhey Lal, Prahlad
and Rati Lal and other against Aneeta and
Prema Devi under Sections 498-A, 304B
IPC and 3/4 D.P. Act on 20.8.2017 and
13.11.2018 respectively.

Learned magistrate took cognizance of
the offence on the basis of charge sheet and
summoned accused persons to face trial.
Charge sheeted accused persons were
enlarged on bail except accused Achchhey
Lal and Prema Devi. Learned Magistrate
committed the case for trial to Court of
Sessions
finding
the
offence
being
exclusively trial by the Court of Sessions.
On commencement of Session Trial,
learned Court concerned framed charges
under Sections 498-A, 304B and 3/4 D.P.
Act against Achchhey Lal, Prahlad and also
alternative charge under Section 302/149
IPC against five accused persons. Case of
co-accused Rati Lal (brother-in-law of the
victim) was referred for trial to J.J.B as he
was found juvenile in conflict of law.

6. Trial Court examined PW-1 Uday
Raj Bind (informant), PW-2 Pappu @ Hari
Shankar (father of the deceased), PW-3
Heerawati @ Kalawati (mother of the
deceased), PW-4 Arjun (other uncle of the
deceased),
PW-5
Dr. Rajendra
Prasad
Vishwakarma, who conducted post-mortem
on the body of the deceased, PW-6 Mandhata
Pratap Singh (then Naib Tehsildar) who
conducted inquest on the dead body of the
deceased on 27.5.2015 at mortuary of District
Hospital, Jaunpur, PW-7 Santosh Kumar
Shukla (Naib Tehsildar), who recorded dying
declaration of the deceased on 26.5.2017 at
C.H.C., Sujanganj, PW-8 Ram Narayan
Srivastava( then Head Mohrrir) who is author
of Chick F.I.R. and extracts of G.D. of
registration of case on the date of lodging of
F.I.R., PW-9 Vinay Kumar Dwivedi (C.O.),
who investigated the case and filed charge
sheet against accused Achchhey Lal, Prahlad
and Rati Lal dated 20.8.2017 before the
Court, PW-10 Uma Shankar Singh C.O.),
who carried out initial investigation in the
case and PW-11 Digvijay Singh (then C.O.),
is last investigating officer of the case who
carried out remaining investigation after
transfer of Sri Vimay Kumar Dwivedi (PW-9)
and filed charge sheet against Prema Devi,
Roshni and Aneeta under Section 498-A and
304B IPC and 3/4 D.P. Act.

7. After conclusion of prosecution
evidence, statement of accused persons
Achchhey Lal, Rati Lal, Prema Devi,
Prahlad, Roshni and Aneeta was recorded by
the Trial Court under Section 313 Cr.P.C. in
which they stated that witnesses have falsely
deposed against them. PW-7 Naib Tehsildar
recorded
dying
declaration
of
the
victim/deceased in conspiracy with informant
and police. The case was proceeded against
them to extract the money after death of the
deceased Roshni.

8. In defence evidence accused
persons examined DW-1 Sita Devi, mother-
930 INDIAN LAW REPORTS ALLAHABAD SERIES
in-law of accused-Roshni and DW-2 Ram
Bali, who is father-in-law of accused
Aneeta,
DW-3
Rama
Pati,
who
is
neighbour of accused Prahlad where he
stalls a tea shop.

9. Trial Court heard the arguments of
learned counsel for the State as well as
defence counsel and after appreciation of
evidence on record, gave verdict against
accused Achchhey Lal, Prema Devi for
charge under Section 498-A, 304B IPC and
Section 3/4 D.P. Act and held that
prosecution has exclusively proved charges
against these two accused persons beyond
reasonable doubt, however, learned Trial
Court concluded that charge levelled
against accused Prahlad, father-in-law of
the deceased, Roshni and Aneeta (married
sister-in-law of the deceased) have not been
proved beyond reasonable doubt and
acquitted them of all charges levelled
against them during trial. Present appeal
has been preferred by convict accused
persons feeling aggrieved by the judgment
and order passed by learned Trial Court.

10. Learned counsel for the appellants
submitted that in F.I.R. general and
omnibus allegations are made by the
informant against all accused persons.
There is no specific allegation against
accused-appellants. In dying declaration of
the victim, main allegation is made against
co-accused
Rati
Lal
(dewar
of
the
deceased) regarding whom it is stated that
he ignited a match box and burnt the
deceased, however, learned Trial Court in
impugned judgment has not placed reliance
on said dying declaration recorded by PW7. There is no allegation or evidence
regarding demand of dowry prior to or
during marriage against accused-persons.
Allegations of demand of dowry after
marriage are afterthought and concocted.
Learned Trial Court has acquitted the coaccused Prahlad (father-in-law of the
deceased) on the ground that on the basis of
evidence adduced it is found that he runs a
tea shop in some other village and it is
natural that he would be living outside
home through out the day and in these
circumstances the allegation of demand of
dowry and subjecting the victim to cruelty
is not found reliable qua him. Learned Trial
Court has also observed that statement of
PW-4 is not in consonance of other
witnesses of fact who are his family
members. There is no document in support
of the theory that deceased was referred to
District Hospital, Jaunpur. Learned Trial
Court has relied upon defence version that
married sister-in-law of the deceased
Aneeta and Roshni were not present on the
date of incident, inasmuch as, Roshni was
married shortly of the fateful incident in
present case. Appellants are held in jail
custody from the stage of investigation.
Learned Trial Court has miserably failed to
appreciate the evidence on record while
convicting and sentencing the present
appellants
and
mis-appreciated
the
evidence adduced during trial. There is no
cogent and reliable evidence against the
appellants to support their conviction for
charges allegedly proved against them. He
further submitted that deceased's side
witnesses never made any complaint after
marriage of the deceased with accused
Achchhey Lal till her unfortunate death, to
any person or Authority regarding demand
of dowry or torture against accused
persons. In fact, deceased has committed
suicide by pouring kerosene oil over her
body and burnt herself. Accused Achchhey
Lal was outside home as he used to work as
labourer at some other place. The other
family members were also not present at
the time of incident, therefore, they could
not see her when she burnt herself but as
3 All. Achche Lal & Anr. Vs. State of U.P. & Anr.
931
soon as they noticed the said incident, they
attempted to save her and brought her to
C.H.C., Sujanganj from where she was sent
to District Hospital, Jaunpur but died on
way to District Hospital. They informed
parental side of the deceased at the earliest
and members of her parental side also
reached at C.H.C. Sujanganj where she was
lying in critical condition and she was not
in a position to speak any person because
of having 98% burn injury and she was
unconscious. In alleged dying declaration
also no specific role has been assigned to
present appellants.

11. Per contra, learned A.G.A.
appearing for the State opposed and
contended that the grounds taken in present
appeal are not sustainable. The case of
prosecution has been proved by cogent
evidence of witnesses of fact as well as the
statements of doctor who conducted postmortem
of
the
deceased.
Executive
Magistrate conducted inquest on the dead
body and recorded statements of I.O.s who
investigated the case and submitted charge
sheet against accused persons. The acquittal
of co-accused persons cannot be a ground for
acquittal of present appellants as learned Trial
Court distinguished the case of acquitted and
convicted the accused persons. The judgment
of learned Trial Court is based on evidence
on record and it requires no interference at
appellate stage. Allegations against accused
persons are of very serious nature and there is
cogent evidence regarding their complicity in
the offence of demand of dowry, practising
matrimonial cruelty against the deceased and
causing dowry death of the deceased on the
date and time of the incident who admittedly
died in her matrimonial home i.e. home of
accused persons.

12. During trial of the case following
documents were proved by evidence of
witnesses who appeared before the Trial
Court.

Ext. Ka-1
Written
report
By PW-1
Ext. Ka-2
P.M. report
of
the
Roshni
By PW-5
Ext. Ka-3
Inquest
report
By PW-6
Ext. Ka-4 and
Ka-8
Police
papers
related
to
P.M. of the
deceased
By PW-6
Ext. Ka-9
Dying
declaration
of
the
deceased
By PW-7
Ext. Ka-10
Chick
F.I.R. dated
26.5.2017
By PW-8
Ext. Ka-11
Extracts of
G.D. dated
26.5.2017
By PW-8
Material Ext.-
1
Marriage
invitation
card
By PW-9
Ext. Ka-12
Charge
Sheet
against
Achhey
Lal
and
others
By PW-9
Ext. Ka-13
Site plan
By PW-10
Ext. Ka-14
Charge
Sheet
against
accused
Aneeta and
By PW-11
932 INDIAN LAW REPORTS ALLAHABAD SERIES
others

13. In present case appellants are
convicted for charge under Section 498-A,
304-B IPC and Section 4 D.P. Act and
sentenced to various terms of imprisonment
and fine awarded in impugned judgment.

14. Section 498-A IPC provides as
under:-

"Whoever, 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 extend to three years and shall
also be liable to fine."

15. Present case is based on
circumstantial evidence as it is admitted
that there is no eye-witness of the incident.
The main and major charge framed against
the appellants and other accused persons in
present case by trial court is that of Section
304-B IPC. The motive of commission of
offence by the accused persons is suggested
by prosecution is that of demand of dowry
and non-fulfillment thereof. Learned trial
Court has not placed reliance on dying
declaration of the deceased recorded by
Santosh Kumar Shukla, Naib Tehsildar,
which is marked as Ext. Ka-9, wherein she
has stated that on 26.5.2017, the date of
incident, she was brought to C.H.C.,
Sujanganj in burnt condition by her fatherin-law Prahlad and husband of named
accused Aneeta at around 1:25 pm. In this
dying declaration she has stated that on that
date her father-in-law Prahlad, mother-inlaw Prema Devi, sisters-in-law Roshni and
Aneeta and brother-in-law Rati Lal picked
quarrel with her, which continued up to
afternoon. Her husband poured kerosene oil
upon her and her devar caught hold of her
and ignited matchstick and set her ablaze
due to which her body started burning. It is
further stated that she did not know as to
who brought her to hospital. This dying
declaration is signed by PW-7 Satnosh
Kumar Shukla, Naib Tehsildar, who has
proved this document by her sworn
testimony in which he has stated that he
had recorded her dying declaration on
being informed by S.D.M., Machhlishahar,
Jaunpur. For recording of statements of the
victim, he visited C.H.C., Sujanganj,
District Jaunpur, where injured was lying in
burnt condition and her treatment was
being carried out in supervision of doctor.
She was in a position of hearing, speaking
and understanding. He read over the
statement after recording the same to
victim as her whole body was burnt and she
was unable to affix her signature or thumb
impression on her statement.

16. In cross-examination, this witness
has stated that he had taken a certificate
from doctor who was attending on victim,
regarding her ability to speak, but said
certificate is not placed on record. He
recorded
statement
at
3:10
pm
on
26.5.2017.
He
admitted
in
crossexamination that there is overwriting in
timing of recording of statement.

17. PW-5, Dr. R.P. Vishwakarma, has
stated in his evidence that he was posted as
Sr. Medical Officer at Machhlishahar on
27.5.2017.
He
started
post-mortem
examination on the dead body of the
deceased Roshni, wife of Achchhey Lal on
27.5.2017 at 3:35 pm onwards. The dead
body was identified by a Constable of P.S.
Machhlishahar, District Jaunpur, who had
also brought papers relating to inquest of
the deceased. In post-mortem examination
superficial and deep flame burn injuries
were found present throughout body except
3 All. Achche Lal & Anr. Vs. State of U.P. & Anr.
933
both sole of feet. Dust particles were
present on upper respiratory track. Line of
redness was found. The approximate time
of death was one day before. In stomach,
pale and semi digested food particles were
present. In large intestine faecal matter was
present. In his opinion cause of death was
due to shock as a result of sever flame burn
injury, approximately 98% (ante-mortem).
Dr. has stated that burn injuries found on
the person of the deceased were sufficient
to cause death.

18. Prosecution has produced four
witnesses of fact to prove its case out of
whom PW-1 Udairaj Bind is informant and
uncle of the deceased, who is author of the
written report which found basis of lodging
of F.I.R. against accused persons with
regard to present incident. He has proved
written report as Ext. Ka-1 during his
examination before the Court. This written
report is scribed by one Swaminath Pandey,
who is his co-villager. PW-1 has stated that
Swaminath Pandey also accompanied him
when he visited hospital after coming to
know that his niece was burnt. The report
was scribed by Swaminath Pandey on his
dictation. He is in total three brothers. The
elder brother Harishankar is father of the
deceased who was having four issues, two
sons namely Arun and Ajit and two
daughters namely Roshni (deceased) and
Archna. Roshni was married to Achchhey
Lal (accused) on 24.4.2014. They had
given Rs. 1,00,000/- cash and valuable in
marriage of Roshni. Roshni gave birth to a
son namely Himanshu who was around 18
months of age at the time of incident.
Accused persons Achchhey Lal, Rati Lal,
Prema Devi, Aneeta and Roshni started
demanding dowry through Roshni after
birth of Himanshu and began to torture her
for dowry. On 24.5.2017 Roshni called his
elder brother Arjun (PW-4) and told that
accused persons were beating her and
called him to come and take her along with
him then he visited the house of accused
persons with his brother Arjun. When
Roshni got prepared to go with them at her
parental
place,
accused
persons
had
snatched the child from her lap and for that
reason she declined to go with them
without her child and the witnesses came
back to their home empty handed. After
two days on 26.5.2017 at 12:00 hours they
received a phone call from accused persons
that their daughter got burn. The witnesses
and his family members reached the place
of victim, but while reaching there they
found that none was present there. The
people of the neighbourhood told them that
family members of Roshni had taken her to
hospital, then they visited hospital and
found that Roshni was lying there. She was
alive and able to speak. When they spoke to
her, she stated that Achchhey Lal had
poured kerosene oil on her persons and
devar Rati Lal had ignited a matchstick on
her person. Her mother-in-law Prema Devi,
sister-in-law Aneeta and Roshni had caught
hold of her. Her statement was recorded by
magistrate in the hospital. She was treated
in the hospital but observing her condition,
doctor of C.H.C. referred her to District
Hospital, Jaunpur but she breathed her last
in District Hospital, Jaunpur on same date.

19. In cross-examination this witness
has stated that C.H.C. and P.S. both are
lying in nearby at town Sujanganj. He
stated that all the three brothers Udairaj,
Harishankar and Arjun resided together. At
the time of marriage Roshni was 19 years
of age. His brother Arjun visited place of
accused
persons
in
connection
with
marriage of Roshni. Prahlad has a shop of
tea and betel at Belwar market. His home
lies 2 km. away from Belwar market.
Prahlad sits in his shop in day hours and
934 INDIAN LAW REPORTS ALLAHABAD SERIES
visits her home in the evening after closing
the shop. His brother Harishankar (father of
the deceased) works for gain in Mumbai.
The marriage of Roshni was settled by his
brother Arjun. At the time of marriage
accused persons had not made any demand
of dowry. The witness and his family
members visited the place of accused
persons after four days of marriage and
thereto no demand of dowry was made and
they brought back Roshni with them. She
used to come to her parental place and go
back to her matrimonial home in routine
manner after marriage. When the deceased
last time left his home for her matrimonial
home having her 18 months old child with
her, it was her last visit of her parental
place.
Thereafter
she
died
at
her
matrimonial home after three months. He
also visited her matrimonial home to
participate in marriage of Roshni (sister-inlaw of the deceased) where he met family
members of Prahlad and husband of the
deceased. He also met his niece Roshni
there. He visited the hospital on fateful day
at around 2:00 pm but he did not found
Prahlad and Achchhey Lal there. His
brother Arjun was taking Roshni to District
Hospital from C.H.C. at around 4:00 pm.
He was not accompanying them at that
time. It would be wrong to say that Roshni
had committed suicide by setting herself
ablaze. It would be wrong to say that she
has not given any statement to magistrate
or Tehsildar. He has not found any other
injury on the person of the deceased except
burn injuries.

20. PW-2 Pappu @ Harishankar, who is
father of the deceased, his statement is
consistent with the statement of PW-1 on
factual aspects. He stated that on 24.5.2017
his daughter Roshni was beaten by accused
persons in connection with demand of
dowry. She was also subjected to torture
prior to 24.5.2017. She failed to visit his
place as the accused persons had snatched
her child from her lap. When he met his
daughter in hospital, she told that accused
persons had set her ablaze by pouring
kerosene oil on her body. He also stated
that no demand of dowry was made at the
time of marriage or just thereafter. Prior to
the incident his daughter Roshni had visited
his place in the marriage of his brother
Arjun and resided with them for two to
three months at his home. In said marriage
Rati Lal, brother-in-law, of the deceased
and Roshni (sister-in-law of the deceased)
had visited his home to take Roshni with
them. Some dispute occurred at the time of
Bidai (send off) of Roshni from his place.
When Roshni visited his home in the
marriage of his niece, accused Achchhey
Lal abused her on telephone. No dispute
occurred at the time when Roshni was send
off to her matrimonial home along with
Rati Lal and Roshni, however she did not
proceed happily and she was not willing to
go to her matrimonial home. He was
present in his home at that time. This was
her last Bidai (send off) from her home to
the place of her in-laws. Roshni died after
seven months of last send off from his
home. When his daughter died he was in
Bombay. His daughter would speak to his
wife and his wife told him that her in-laws
are demanding dowry after marriage of his
niece (daughter of Arjun). He came back to
his home after three days of death his
daughter. This is true that quarrel used to
take place between Roshni and Achchhey
Lal with regard to dowry, however, his
daughter did not inform him regarding this
dispute. Whatever he was apprised of the
dispute between his daughter and her
husband through his wife.

21. PW-3 Heerawati @ Kalawati, who
is mother of the deceased, has stated in her
3 All. Achche Lal & Anr. Vs. State of U.P. & Anr.
935
evidence that her daughter had told her that
accused persons were demanding Rs.
5,00,000/- in dowry. She was beaten by the
accused persons, six months before her
death and Roshni herself informed her
about the incident. Her husband had visited
the place of her daughter and persuaded the
accused persons and thereafter the peace
prevailed for sometime, however, in the
marriage of daughter of her brother-in-law
Roshni visited her home to participate in
the
marriage.
Her
Devar
had
also
participated in invitation in said marriage
and after returning to his home, he told him
that much gift and dowry was given in said
marriage by parental side of deceased
Roshni. Achchhey Lal (her husband) got
infuriated after knowing this and he abused
the deceased on telephone. She also
reached in the middle of telephonic talk of
Roshni and Achchhey Lal and then Roshni
gave telephone to her and when she spoke
to Achchhey Lal, he abused her also and
thereafter demand of dowry of Rs.
5,00,000/- aggravated and Roshni was
beaten and subjected to torture by accused
persons. She was ultimately done to death
by them by setting her ablaze. She also
stated that Achchhey Lal holds a tea shop at
his home.

22. PW-4, Arjun, who is uncle of the
deceased, has stated that when he visited
his niece after four days of Bidai
(departure) to matrimonial home, she told
that his brother and sister-in-law used to
tease her for bringing less dowry. On
11.5.2016
marriage
of
her
daughter
scheduled and he had brought the deceased
ten days back to his home for her
participation in the marriage. In marriage of
his daughter his in-laws had given much
gifts which was noticed by accused Rati
Lal (brother-in-law of Roshni) and he told
this fact to Achchhey Lal after returning to
his home and Achchhey Lal abused the
deceased on mobile phone and was
demanding Rs. 5,00,000/- as dowry and
also stated that he will not permit her to
enter in his home without said dowry. He
also abused the mother of deceased on
telephone in same sequence. When the
witness and others had visited the hospital
on fateful day Tehsildar was recording the
statements of the deceased. Thereafter
doctor referred her to District Hospital.
They were taking her to District Hospital in
ambulance but she died on way. Prahlad
holds tea and betel shop at Belwar market
where he has also constructed four rooms
on road. Marriage of Roshni and Achchhey
Lal was solemnized on 24.4.2014 and he
visited her parental place eight to ten times
after marriage before her death. He also
stated that demand of dowry began after
marriage of Roshni and not prior to that.
The
investigating
officer
had
not
interrogated him. Rati Lal had not made
any demand of dowry when he participated
in marriage of his daughter. Roshni went to
his matrimonial home after marriage of his
daughter unwillingly and thereafter never
came back to her parental place. The
Tehsildar had taken statement of victim on
26.5.2017 at around 2:00 pm and she was
referred to District Hospital at 1:40 hours.
He bellied the defence suggestion that no
statement of deceased was recorded by
Naib Tehsildar. He also denied the defence
suggestion that Roshni committed suicide
due to non-fulfillment of her aspirations on
account of lack of money.

23. PW-7, Santosh Kumar Shukla,
Naib
Tehsildar
admitted
in
crossexamination that there is overwriting in
timing of recording of dying declaration. It
was taken at 3:30 pm. He cannot explain as
to how this overwriting occurred. He
denied the defense suggestion that he had
936 INDIAN LAW REPORTS ALLAHABAD SERIES
not recorded any dying declaration and
there was no instruction to him for
recording the same.

24. PW-9 Vinay Kumar Dwivedi is
second Investigating Officer of the case. He
has proved charge sheet filed in the case
against accused persons which is marked as
Ext. Ka-12. He admitted that he did not
take into account of the fact from author of
dying declaration as to her ability to speak
at the time of recording of her dying
declaration.

25. PW-10 Uma Shankar Singh (first
investigating
officer)
has
stated
that
accused Achchhey Lal had surrendered in
the Court on 23.6.2017. He has proved site
plan of the place of incident as Ext. Ka-13.

26. This is admitted fact that the
marriage
of
deceased
and
accused
Achchhey
Lal
was
solemnized
on
24.4.2014 and she died on 26.5.2017 within
seven years of her marriage at her
matrimonial
home
in
unnatural
circumstances due to extensive burn
injuries received.

27. The defense case is that due to
want of money and dis-satisfaction on
account
of
non-fulfillment
of
her
aspirations, she committed suicide by
pouring kerosene oil on her person,
whereas the prosecution case is that
deceased was burnt to death by accused
persons including her husband and in-laws
on account of non-fulfillment of demand of
dowry and she was subjected to cruelty
soon before her death on 26.5.2017 as well
as prior to that.

28. The accused side had failed to specify
exact time and manner in which deceased
allegedly committed suicide. They have
taken a case that none of the family
members were present in the house when
incident occurred and her in-laws had
rushed to C.H.C., Sujanganj as soon as they
got apprised of the incident and did
whatever they could to save her. None from
the side of informant was present at the
time of incident and they came to the place
of accused persons and thereafter to
hospital where victim was admitted after
coming to know about the incident. The
law does not enjoin a duty on the
prosecution to lead evidence of such
character which is almost impossible to be
led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead
such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is
necessary to keep in mindSection 106of the
Evidence Act which says that when any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Where an offence like murder
or dowry death is committed in secrecy
inside a house, the initial burden to
establish the case would undoubtedly be
upon the prosecution, but the nature and
amount of evidence to be led by it to
establish the charge cannot be of the same
degree as is required in other cases of
circumstantial evidence.

29. Hon'ble Apex Court in the case of
Sandeep Vs. State of U.P., (2012) 6 SCC
107, Prithipal Singh Vs. State of Punjab
2012(76) ACC 680 (SC) and Trimukh
Maroti
Kiran
versus
State
of
Maharashtra,
(2006)
10
SCC
681,
observed
that
burden
would
be
comparatively of alike character. In view of
Section 106 of the Evidence Act, there will
be a corresponding burden on the inmates
of the house to give cogent explanation as
to how the crime was committed. The
3 All. Achche Lal & Anr. Vs. State of U.P. & Anr.
937
inmates of the house cannot get away by
simply keeping quiet and offering no
explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on an accused to offer any explanation.

30. Learned trial court has assigned
one reason in disbelieving the dying
declaration of the deceased that Magistrate
failed to produce a certificate from the
doctor regarding mental fitness of the
declarant and her capacity to speak in the
impugned judgment i spite of the presence
of doctor at that time as stated by PW-7,
author of dying declaration, however,
judgment of Hon'ble Apex Court in
Laxman Vs. State of Maharashtra, (2002)
6 SCC 710 is relevant here wherein a
Constitution Bench placed reliance in Koli
Chunilal Savji vs. State of Gujarat, 1999
(9) SCC 562, wherein it is stated that when
it was held that ultimate test is whether the
dying declaration can be held to be a
truthful one and voluntarily given. It is no
doubt true that before recording the
declaration, the concerned officer must find
that the declarant was in a fit condition to
make the statement in question. The
Constitution Bench held that where it is
proved by the testimony of the Magistrate
that declarant was fit to make statement
even without examination by the doctor, the
declaration cannot be acted upon, provided
the Court ultimately holds the same to be
voluntary and truthful. The certification by
the doctor is essentially a rule of caution
and, therefore, the voluntary and truthful
nature of the declaration can be established
otherwise.

31. In V.K. Mishra and Anr. Vs. State
of Uttarakhand, (2015) 9 SCC 588 Hon'ble
Apex Court held that before recording
conviction of an accused under Section 304
B IPC, following conditions must be
proved:-

"1. The death of a woman should be
caused by burns or bodily injury or
otherwise
than
under
a
normal
circumstance.

2. Such a death should have occurred
within seven years of her marriage.

3. She must have been subjected to
cruelty or harassment by her husband or
any relative of her husband.

4. Such cruelty or harassment should
be for or in connection with demand of
dowry.

5. Such cruelty or harassment is
shown to have been meted out to the
woman soon before her death."

32. In Surinder Singh Vs. State of
Haryana, (2014) 4 SCC 129, Hon'ble Apex
Court held that for presumption contemplated
under Section 304-B IPC and Section 113-B
of the Evidence Act to spring into action, it is
necessary to show that the cruelty or
harassment was caused soon before victim's
death. The question as to how "soon before".
This would obviously depend on facts and
circumstances of each case. Section 113-B of
Evidence Act provides regarding presumption
as to dowry death. In Suresh Kumar Vs. State
of Haryana, 2014 Cri.L.J. 551 (SC), it is held
that Section 113-B of the Evidence Act
introduces a reverse onus, it is to say that
though it is ordinarily for prosecution to prove
its case beyond reasonable doubt but when a
reverse onus is introduced, it is for the accused
to refute the case of the prosecution and prove
his innocence.

33. Section 113-B of the Indian
Evidence Act provides as under:-

"113B. Presumption as to dowry
death.-- When the question is whether a
938 INDIAN LAW REPORTS ALLAHABAD SERIES
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman had been subjected by
such person to cruelty or harassment for, or
in connection with, any demand for dowry,
the court shall presume that such person
had caused the dowry death.

Explanation. For the purposes of this
section, dowry death shall have the same
meaning as in section 304B of the Indian
Penal Code (45 of 1860)."

34. In present case, this fact has been
proved that on the basis of evidence of
witnesses of fact specifically that demand
of
dowry
was
initiated
by
accused
Achchhey Lal, husband of the deceased
when he was apprised by his younger
brother Rati Lal that his in-laws had given
much gift and dowry in the marriage of
daughter of Arjun, cousin of the deceased
as Rati Lal had visited said marriage on
invitation from in-laws of his brother
Achchhey
Lal.
Achchhey
Lal
had
telephoned the deceased even when she
was at her parental place in connection with
marriage of her niece, few months before
her unfortunate death, and demanded
dowry and abused her as well as her mother
PW-3 on telephone and when the deceased
came back to her matrimonial home, she
was subjected to torture and cruelty which
continued till her death, therefore, this fact
has been proved beyond reasonable doubt
that death of the deceased occurred within
seven years of marriage by physical burns
and in unnatural circumstances at her
matrimonial place. She was subjected to
cruelty by her husband Achchhey Lal, soon
before her death. Accused failed to divulge
any plausible explanation of her death
which occurred due to extensive burn
injuries received by the deceased at her
matrimonial home. Accused Achchhey Lal
is husband of the deceased and in view of
relations with the deceased, he bears
responsibility for upkeep welfare, nurturing
and good health of deceased who was his
wife but even in his statement under
Section 313 Cr.P.C., he has not given any
explanation of unfortunate death of his wife
within seven years of her marriage. He is
simply denied the allegations made against
him regarding causing dowry death of the
deceased, therefore, he failed to discharge
reverse burden imposed under law by
virtue of Section 106 of the Evidence Act
as well as Section 113-B of the Act. He has
also not taken specific plea of alibi in his
statement under Section 313 Cr.P.C.

35. DW-1 Seeta Devi is mother-inlaw of co-accused Roshni who stated to the
effect that on fateful day Roshni was
present in her home as her marriage had
taken place on 11.5.2017 with her son
namely Dinesh. On 25.5.2017 marriage of
daughter of her Jeth was scheduled and that
time, Roshni was in her matrimonial home.
She has also proved marriage invitation
card of Pinki, daughter of her brother-inlaw which was scheduled on 25.5.2017, a
day before fateful incident in this case. She
has proved invitation card as Ext. Kha-2.

36. DW-2 Rambali has stated that his
younger brother Udal was married to
Aneeta (daughter of Prahlad).