# Ajai @ Nehne & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 377
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-08
- **Case number:** Criminal Appeal No. 380 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajai-nehne-ors-in-jail-v-state-of-u-p-46801
- **Pages:** 6

## Headnote

Law-Code
of
Criminal
Procedure,
1973-Section
374(2)
&
Indian Penal Code, 1860-Sections 498-A,
304B -Dowry of Prohibition Act,1961Section 3⁄4- deceased was died during
her treatment in the nursing home of
Doctor-He was produced as defense
witness before the court and stated that
the deceased was suffered since long
from the Mirgi and tuber closes but the
court below disbelieved the statement of
the Doctor without any reasons- the
death occurred not at parental home but
the matrimonial home of the deceasedno overt act has been attributed to
mother-in-law even in the evidence-
there is no evidence on record which
shows that after the deceased had come
to the matrimonial home, the mother-inlaw
had
soon
before
her
death,
demanded
any
money
or
she
had
perpetrated cruelty on the deceased-
evidence of PW-1 and PW-2 that even in
the earlier days, she was the root cause
of asking for dowry-sentence of motherin-law commuted to the period she had
already undergone, while the husband
shall be released only after completion
of sentence.(Para 1 to 29)

The Appeal is partly allowed. (E-5)

List of Cases cited: -

## Text

2 All. Ajai @ Nehne & Ors. Vs. State of U.P.
377
Rs. 10,000/- is imposed as fine. The
appellant shall deposit the fine within three
months and, if not, he shall undergo
imprisonment for a period of three months.
On payment of fine, his bail bond will
stand cancelled.

21. Let a copy of this judgment and
order be transmitted to the learned District
Judge, Meerut for compliance.

22. The record of the lower court be
transmitted immediately to the lower court.
----------
(2021)02ILR A377
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 380 of 2011

Ajai @ Nehne & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Rajiv Lochan Shukla, Sri V.S. Kushwaha,
Sri A.K. Awasthi, Sri Mahesh Kuntal, Sri
Manish Tiwary, Sri Prashant, Sri Rajesh
Kumar Dubey, Sri R.C. Shukla

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure,
1973-Section
374(2)
&
Indian Penal Code, 1860-Sections 498-A,
304B -Dowry of Prohibition Act,1961Section 3⁄4- deceased was died during
her treatment in the nursing home of
Doctor-He was produced as defense
witness before the court and stated that
the deceased was suffered since long
from the Mirgi and tuber closes but the
court below disbelieved the statement of
the Doctor without any reasons- the
death occurred not at parental home but
the matrimonial home of the deceasedno overt act has been attributed to
mother-in-law even in the evidence-
there is no evidence on record which
shows that after the deceased had come
to the matrimonial home, the mother-inlaw
had
soon
before
her
death,
demanded
any
money
or
she
had
perpetrated cruelty on the deceased-
evidence of PW-1 and PW-2 that even in
the earlier days, she was the root cause
of asking for dowry-sentence of motherin-law commuted to the period she had
already undergone, while the husband
shall be released only after completion
of sentence.(Para 1 to 29)

The Appeal is partly allowed. (E-5)

List of Cases cited: -

1. Hem Chand Vs St. of Har., CRLA No.690 of
1994

2. Sunil Dutt Sharma Vs St. (Govt of NCT of
Delhi), CRLA No.1333 of 2013

3. G.V. Siddaramesh Vs St. of Karnataka,
CRLA No.160 of 2006

4. Hari Om Vs St. of Har. & anr. CRLA No.1167
of 2011

5. St. of Karnataka Vs M.V. Manjunathegowda
& anr., CRLA No.1530-31 of 1995

6. Ankush Shivaji Gaikwad Vs St. of Mah.,
(2013) 6 SCC 770
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
& Hon'ble Gautam Chowdhary, J.)

1.

Heard
learned
counsel
for
appellants and and learned A.G.A. for
State.
378 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This appeal has arisen from the
judgement and order dated 19.1.2011
passed by Additional Sessions Judge, Court
No.3, Mathura in Session Trial No. 497 of
2007, under Sections 498-A, 304-B I.P.C.
and 3/4 Dowry of Prohibition Act, Police
Station
-
Raya,
District
-
Mathura
convicting and sentencing the appellants to
under go life imprisonment and Rs.20,000/-
fine for committing offence under Section
304-B I.P.C. and further convicted the
appellants
to
under
go
three
years
imprisonment and Rs.5,000/- fine for
commission of offence under Section 498A, I.P.C. and also convicted the appellants
to under go for the period of one year
imprisonment
in
Section
3/4
Dowry
Prohibition Act.

3. This appeal arises out of conviction
recorded of both mother-in-law and son
who are alleged to have done to death wife
of appellant no.1 and daughter-in-law of
appellant Nos. 2 and 3 within the period of
seven years of marriage.

4. The prosecution was moved by
lodgement of First Information Report
dated 17.4.2007, the accused were charged
of the offences. The accused no.1 was in
jail when the case was committed to court
of session. However, Savitri Devi and
Shivcharan were enlarged on bail. The
accused Ajay is in jail past conviction, pre
convition he was enlarged on bail by the
court below.

5. The matter was triable by the court
of session and, therefore, the learned
Magistrate committed the case to the court
of session.

6. On 5.3.2008 charge was framed
against
all
the
three
accused
for
commission of offences under Section 304B of the Indian Penal Code read with
Section 498-A of the Indian Penal Code
and also Section 3/4 of Dowry Prohibition
Act.

7. The prosecution examined about
seven witnesses so as to bring home the
charge framed against the accused as
enumerated:

1
Deposition of
Banwari Lal
24/7/08
PW1
2
Deposition of
Munish
Kumar
20/10/08 PW2
3
Deposition of
Balvir Singh
10/3/10
PW3
4
Deposition of
Dr.
A.S.
Vashisth
15/7/10
PW4
5
Deposition of
Nisad Ahmad
22/7/10
PW5
6
Deposition of
Manoj
Kkumar
10/8/10
PW6
7
Deposition of
Veer Singh
21/9/10
PW7

8. In support of ocular version
following documents were filed:

1
First
Information
Report
17/4/07
Ex.Ka.13
2
Written
Report
17/4/07
Ex.Ka.5
3
Recovery
Memo
of
MarriageCard
and
Photo
12/5/07
Ex. Ka.1
2 All. Ajai @ Nehne & Ors. Vs. State of U.P.
379
4
Postmortem
Report
9/4/07
Ex. Ka.6
5
Site
Plan
with Index
17/4/07
Ex.Ka.15

9. The accused also led evidence that
of the Doctor so as to prove their case that
the deceased was mentally not of sound
mind as examined on which they examined
D.W.-1, Dr. Ved Prakash Verma.

10. The accused were put to questions
under Section 313 of the Cr.P.C. also. The
arguments of both side were heard
thereafter.

11. At the outset before we begin to pen
down our reasons for modifying the
judgment of the court below but concurring
with it on the finding as to commission of
offence by the husband, one aspect is
required to be noted that the accused No.1,
Ajay is in jail since 19.1.2011 which would
be 9 years and more than 11 months without
remission till the date we hear this appeal. He
has a child who by now has grown up.

12. Learned counsel for the appellants
Sri Rajiv Lochan Shukla has firstly relied on
the following grounds raised in the memo of
appeal to contend that the accused are not
guilty namely:

"(i) Because the judgment and
order passed by the Court below is not only
illegal but is also against the weight of
evidence on records.

(ii) Because the sentence awarded
to the appellant is too severe.

(iii) Because conviction awarded to
the appellant is not sustainable in the eye of
law.

(iv)
Because
the
medical
evidence
is
not
supported
to
the
prosecution case and the court below has
also not applied his judicial minds in
convicting the appellants.

(v) Because the deceased was
died during her treatment in the nursing
home of Dr. Ved Prakash and Dr. Ved
Prakash produced as defense witness before
the court and stated that the deceased was
suffered from the since long from the Mirgi
and tuber closes but the court below
disbelieved the statement of the Dr. Ved
Prakash without any reasons as such the
judgment and order passed by the court
below is not justified with the appellant as
such the judgment and order of the court
below is liable to be set aside by this
Hon'ble Court.

(vi) Because the appellants have
filed the document of treatment paper
which is indicates that the deceased was
under treatment of the difference hospitals
for her treatment this facts cannot be denied
but
the
court
below
wrongly
been
disbelieved
the
same
by
his
own
expressions which is not correct and on that
basis conviction of appellants can not be
passed but the court below exercised his
jurisdiction which is not vested in him and
passed the order without his jurisdiction.

(vii) Because the statements of
witnesses are found contradiction and the
court below has failed to go the same and
passed illegal and perverse conviction order
and convicted the appellants."

13. Learned counsel for the State has
contended that the judgment of the trial
court does not deserve any modification or
any leniency or no case is made out for
reversing the judgment of the trial court.
Learned counsel for the State has also
focused and taken us to evidence on record
so as to convince us that this was the case
where the incident of all the three accused,
namely, the deceased accused also were
380 INDIAN LAW REPORTS ALLAHABAD SERIES
such which brought to hilt the offence
alleged and for which charges were framed.
The death was within seven years of the
marriage, learned counsel for the State has
persuaded us to peruse the the provisions of
Section 304-B of I.P.C., and has contended
that the death occurred not at parental home
but the matrimonial home of the deceased,
namely, immediately after she was taken
from the parental home. He has taken us to
the oral testimony of the Doctor, D.W.-1
and has also taken us through the reasoning
given by the learned trial court Judge.

14. Shri Shukla in the alternative has
submitted that no role is assigned to the
appellant no.3, mother-in-law.

15. It is submitted that from the
evidence led it emerges that no role was
played by her in causing the death of the
deceased.
Section
304-B
has
been
extensively read by both the counsel and
has contended that the mother could not
have been convicted on the basis of the
evidence, no overt act has been attributed
to her even in the evidence. She has not
been alleged to have caused tranquility. It
is submitted that her conviction cannot be
sustained as the deceased should have been
subjected to cruelty by soon before her
death by her, there is no evidence on record
which shows that after the deceased had
come to the matrimonial home, the motherin-law
had
soon
before
her
death,
demanded
any
money
or
she
had
perpetrated cruelty on the deceased. It is
further submitted that neither the husband
perpetrated in cruelty on the deceased. It is
also submitted that the deceased was
suffering from disease and it was because
of that the dispute had a reason.

16. The alternative prayer is made by
Shri Shukla to show mercy on appellant
no.1 though vehemently objected by the
counsel for the State who has contended
that leniency should not be shown in this
matter where a pregnant lady died within
seven years of her marriage.

17. As far as the first aspect is
concerned, the evidence of PW-1 and PW-2
go to show that there were disputes for
which litigation was going on. The child
and the mother were brought to the
matrimonial home, but it appears that on
the very next day there again some cause
arose as it is not proved as to how the
deceased died as the viscera report only
shows that it is no bodies case that it was
administered by the appellant No.1 or 3.

18. We have to fall back on the
antecedents as they were litigations, there
were disputed about asking dowry which
was demanded in the past and, therefore we
concur with the learned Judge that between
the husband and the wife, husband played
the major role. Hence we are unable to
persuade ourselves to take the view
propounded by Sri Shukla that it was not a
dowry death qua Ajay Kumar or no case
under Section 304-B I.P.C. is made out.

19. As far as the mother is concerned,
we do not find even in the evidence of PW1 and PW-2 that even in the earlier days,
she was the root cause of asking for dowry.
The allegations even in evidence are
against the father-in-law and the husband.

20. In that view of the matter, it
cannot be said that the dowry death was
caused due to the harassment given by the
mother-in-law.
There
may
be
stray
incidences where she might have caused
some
harassment
but
that
was
not
immediately preceding incident which
occurred, hence her conviction is set aside.
2 All. Ajai @ Nehne & Ors. Vs. State of U.P.
381

21. To bring home the alternative
submission that life till the last breath is not
necessary in this case, as it is not a gross
case of such magnitude which requires life
imprisonment to a person who has lost his
wife. The appellant has a minor daughter.
The learned counsel for appellants has
relied on the following judgments of the
Supreme Court:-

(i) Criminal Appeal No.690 of
1994, Hem Chand v. State of Haryana,
decided on 6.10.1994;

(ii) Criminal Appeal No.1333 of
2013, Sunil Dutt Sharma v. State (Govt of
NCT of Delhi), decided on 8.10.2013;

(iii) Criminal Appeal No.160 of
2006, G.V. Siddaramesh v. State of
Karnataka, decided on 5.2.2010;

(iv) Criminal Appeal No.1167 of
2011, Hari Om v. State of Haryana &
Another, decided on 31.10.2014;

(v) Criminal Appeal No.1530-31
of 1995, State of Karnataka v. M.V.
Manjunathegowda & Another, decided on
4.1.2003.

22.

Learned
counsel
for
the
respondent-State has contended that these
decisions would not be applicable to the
facts of the case where there are past
antecedents of litigation under personal
laws.

23. While considering the punishment
to be inflicted on the appellant no.1, we
have convinced ourselves that we cannot
punish the accused for a period less than
seven years, but ten years of jail period in
this case, would be sufficient. Hence jail
term of ten years with remissions would be
sufficient under Section 304-B I.P.C. As
there is no provision for fine under Section
304-B but learned counsel Shri Shukla
states that while entertaining the appeal,
this Court had directed payment of 50% of
the fine. The initial order of bail qua Nos. 2
and 3, and the amount which was already
deposited will not be refunded.

24. As far as the fine under Section
304-B is concerned, there is no provision
for fine in the newly added Section inserted
in 1986. The same is recalled, we hold that
the fine deposited would be considered to
be period under Section 357 Cr.P.C. for the
benefit of the daughter and it will be kept in
a fix deposit for three years for benefit of
the daughter of the accused which amount
shall be deposited within four weeks from
today failing which the accused shall suffer
three months simple imprisonment under
Section 498-A of the I.P.C though there is
no default clause.

25. As we are showing leniency in
this matter, we have also invoked Section
357 Cr.P.C. as placing relieve on the
judgment of Ankush Shivaji Gaikwad v.
State of Maharashtra, 2013 6 SCC 770 for
the betterment of the child. The sentence
under Section 498-A is reduced to that
undergone
by
appellant
No.3
and
maintained for appellant No.1.

26. As far as the appellant No.3 is
concerned the punishment is reduced to
period already undergone for holding her
duty under Section 498-A. She is acquitted
of offence charges under Section 304-A,
the fine of Rs.5000/- on her is maintained.
The 80% of the amount will be kept in fix
deposit. The fine is enhanced to Rs.3,000/-
which shall be paid within four weeks, if
the fine is not paid, she shall undergo two
months of imprisonment instead of three
years. This leniency is shown so that the
future of daughter can be protected. As far
as punishment under Section 3/4 of D.P.
Act, the punishment is reduced to already
382 INDIAN LAW REPORTS ALLAHABAD SERIES
undergone by the lady. The learned Judge
has also directed 80% of the amount to be
invested in fix deposit we now make it
100%.

27. The accused Ajay Singh if he has
completed his term of ten years along with
remission
he
shall
be
released
on
completion of his sentence if not required
in any other offence.

28. The appellant No.3 being already
on bail need not surrender as we have
commuted her sentence to that already
undergone, but if the fines are not
deposited, the procedure as prescribed be
carried out by the Chief Judicial Magistrate
against her.

29. The appeal is partly allowed.

30. This Court is thankful to the
arguing counsels for ably assisting this
Court and getting the appeal disposed of
expeditiously.

31. The record and proceedings be
sent back to the court below.
----------
(2021)02ILR A382
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 441 of 2003

Guddu & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
R.N.S. Chauhan
Counsel for the Respondent:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code, 1860-Sections 376,366- first
information report was lodged by delay of
8 days without any plausible explanation-
victim
was
major,
at
the
time
of
occurrence, no injury, either internal or
external, was found on the person of
victim -she was consenting party-ocular
evidence is not supported with medical
evidence. (P.W.-1) informant is not an eye
witness-the statement of sole eye witness
(victim) is not reliable and trustworthy-
victim resided
and
moved
with
the
appellants for more than 20 days and even
travelled in Government Bus and did not
make any complaint to any person -
eyewitnesses, who saw the appellants
taking away the victim, were also not
examined
by
the
prosecution,
the
prosecution case, based on sole testimony
of the victim, is neither reliable and trust
worthy nor is of sterling quality and the
prosecution has failed to prove its case
beyond reasonable doubt against the
appellants- appellants are entitled for
acquittal.(Para 1 to 35)

B. The "sterling witness" should be of a
very high quality and calibre whose
version should, therefore, be unassailable.
The court considering the version of such
witness should be in a position to accept it
for its face value without any hesitation.
To test the quality of such a witness, the
status of the witness would be immaterial
and what would be relevant is the
truthfulness of the statement made by
such a witness. What would be more
relevant would be the consistency of the
statement right from the starting point till
the end, namely, at the time when the
witness makes the initial statement and
ultimately before the court. It should be
natural and consistent with the case of the
prosecution qua the accused. There should
not be any prevarication in the version of
such a witness. The witness should be in a
position
to
withstand
the
cross-