# Ajay Kumar (In Jail) v. State of U.P

- **Citation:** (2020) 2 ILRA 687
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-12
- **Case number:** Criminal Appeal No. 456 of 2017
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-in-jail-v-state-of-u-p-45721
- **Pages:** 12

## Headnote

A. Criminal Law-Indian Penal Code -
Section 304-B & 4 of D.P. Act,- Appeal
against conviction.

Larynx and trachea are congested. Lungs are
also congested. Clotted blood was present in
the mouth and nose tray. These are the signs
which is clearly shows that in the present case,
death of the deceased was homicidal. (Para 34)

In the present case, at the time of incident
when the parent and relative were arrived at
the matrimonial house of the deceased then
they saw that all of the family members of inlaw had run away from the scene of
occurrence. Neither of any family member was
present at the time of preparation of the
inquest report. These are the circumstances
are clearly shows the indulgence of the
appellant. (Para 38)

The deceased was beaten just before her
death, she was strangulated. This fact is
admitted that the deceased is died inside the
house and in place of occurrence broken
bangles, rings, ear rings, hair clips, plastic rope
(fastened with wood) were recovered at the
place of occurrence which shows that the
deceased
was
murdered
by
committing
strangulation and by pressing neck of the
deceased. (Para 39)

Autopsy of dead body was conducted by PW-5
Dr. S.K. Varshney noted several ante mortem
injuries besides ligature mark measuring 28 cm
X 2 cm around the neck and bones underneath
were found fractured cause of death was
strangulation. (Para 42)

In these circumstances, this Court is not
inclined to interfere the judgement and order
of the trial court. (Para 43)

It is not a case of suicidal death but a case of
homicidal death. There is no mitigating
circumstance against the applicant. It shall not
be justified to interfere or reduce the sentence
awarded to appellant. Accordingly, the appeal
is liable to be dismissed. (Para 44)

Criminal Appeal rejected. (E-2)

List of cases cited:-

## Text

2 All. Ajay Kumar Vs. State of U.P.
687
Ocular version is supported by medical
evidence. Learned Additional Session
Judge 4th Allahabad has rightly convicted
and sentenced the appellants. There is no
merit in the appeal, hence appeal fails and
is liable to be rejected. Accordingly appeal
is rejected.

52. The appellants Jagannath, Nanka
@ Ram Swarup and Jagatpal respectively
are on bail. The C.J.M., Allahabad is
directed to take the appellants in the above
case into custody forthwith and send them
to jail to serve out the sentence, as
awarded by the trial court and affirmed by
us.

Office is directed to send a copy of
this order to the court concerned within a
week for compliance.
----------
(2020)02ILR A687

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 456 of 2017

Ajay Kumar ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Tripurari Pal, Sri Noor Mohammad, Sri
Ronak Chaturvedi

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

A. Criminal Law-Indian Penal Code -
Section 304-B & 4 of D.P. Act,- Appeal
against conviction.

Larynx and trachea are congested. Lungs are
also congested. Clotted blood was present in
the mouth and nose tray. These are the signs
which is clearly shows that in the present case,
death of the deceased was homicidal. (Para 34)

In the present case, at the time of incident
when the parent and relative were arrived at
the matrimonial house of the deceased then
they saw that all of the family members of inlaw had run away from the scene of
occurrence. Neither of any family member was
present at the time of preparation of the
inquest report. These are the circumstances
are clearly shows the indulgence of the
appellant. (Para 38)

The deceased was beaten just before her
death, she was strangulated. This fact is
admitted that the deceased is died inside the
house and in place of occurrence broken
bangles, rings, ear rings, hair clips, plastic rope
(fastened with wood) were recovered at the
place of occurrence which shows that the
deceased
was
murdered
by
committing
strangulation and by pressing neck of the
deceased. (Para 39)

Autopsy of dead body was conducted by PW-5
Dr. S.K. Varshney noted several ante mortem
injuries besides ligature mark measuring 28 cm
X 2 cm around the neck and bones underneath
were found fractured cause of death was
strangulation. (Para 42)

In these circumstances, this Court is not
inclined to interfere the judgement and order
of the trial court. (Para 43)

It is not a case of suicidal death but a case of
homicidal death. There is no mitigating
circumstance against the applicant. It shall not
be justified to interfere or reduce the sentence
awarded to appellant. Accordingly, the appeal
is liable to be dismissed. (Para 44)

Criminal Appeal rejected. (E-2)

List of cases cited:-

1. Gajanan Dashrath Kharate v. St. of Maha.,
[2016 (4) SCC Page 604],

2. Sher Singh @ Pratapa v. St. of Har. 2015
(89) ACC 288 (SC).
688 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Suresh Kumar
Gupta, J).)

1. This appeal has been preferred
against the judgement and order dated
13.1.2017 passed by Additional Sessions
Judge, Fast Track Court No. 1 Aligarh in
S.T. No. 529 of 2013 (State Vs. Ajay
Kumar and others) arising out of case
crime No. 120 of 2013, under Sections
304-B IPC & 4 of D.P. Act, Police
Station-Jawan,
District
Aligarh
and
convicted and sentencing the appellant u/s
304-B
IPC
10
years
rigorous
imprisonment and fine of Rs. 5,000/- in
default of payment of fine three months
further imprisonment and sentencing the
appellant u/s 4 D.P. Act and two years
simple imprisonment and fine of Rs.
5,000/- in default of payment of fine two
months further imprisonment.

2. Brief facts of the case are that the
FIR Exhibit Ka-6 lodged by PW 1 on the
basis of written report Exh Ka-1 on
11.4.2013 with allegation that the marriage
of daughter of PW 1, namely, Maya Devi
was
solemnized
with
appellant
on
17.5.2011 with Hindu Reties and Customs,
in this marriage informant given sufficient
dowry according to his status and spent
about 3-4 lacs Rupees, but the appellant
and his family members were not happy
and they started harassment to his daughter
about further demand of dowry as Rs. One
Lakh cash and they committed murder to
his daughter. It is further alleged that on
9.4.2013
i.e.
before
two
days
of
unfortunate death of the deceased the
appellant had brought the deceased at her
matrimonial home on that fateful day i.e.
11.4.013. The first informant had received
a telephonic information that his daughter
has
been
done
to
death,
on
this
information, the informant as well as his
family
members
reached
to
the
matrimonial house of deceased, they saw
that the dead body was lying at her
matrimonial house inside the floor of room
with wounds and contusions on her body.
This incident had happened about 8:00
o'clock in the morning and on the basis of
above allegations, FIR lodged by PW-1 in
P.S., Java, District Aligarh on 11.4.2013 at
about
15:40
pm.
against
the
appellant/accused Ajay Kumar (husband
of the deceased) and also against Bhagwan
Singh (Father in law), Meena Devi
(Mother in law), Nirmala Devi (Jethani),
Km. Neetu (Nanad).

3. Investigation of this case handed
over
to
the
C.O.
Sansar
Singh
Investigating
Officer,
recorded
the
statement of informant and other witnesses
and also prepared the site plan Exhibit Ka3 and he also collected the post mortem
report and inquest report after conducting
the
formality
of
investigation.
Investigating Officer submitted the charge
sheet (Exhibit-Ka-4) against the appellant
Ajay Kumar as well as Bhagwan Singh
and Meena Devi under Sections 498A /
304B IPC and section 3/4 D.P. Act
exonerated other named accused, namely,
Smt. Nirmala Devi and Km. Neetu.

4. Charge sheet submitted before the
CJM concerned on 25.6.2013 and trial
committed before the court of sessions
Judge where it is registered as sessions
trial No. 529 of 2013 from where this case
was transferred for trial to the Additional
Distirct
Judge,
Fast
Track
Court-1,
Aligarh.

5. On 6.9.2013 appellant as well as
other accused charged under Sections
498A/149, 304/149 and under section 4 of
the D.P. Act in alternative the appellant
2 All. Ajay Kumar Vs. State of U.P.
689
was charged under Sections 302/149 IPC.
After framing of the charges, they denied
all the charges against them and claimed
trial.

6. To bring home to the accused
prosecution has examined 7 witnesses
PW-1 Ramakishan, (complainant) father
of the deceased; PW-2 Lokman, uncle of
the deceased; PW-3 Saroj, Baua of the
deceased; PW-4 Sansar Singh, Circle
Officer, Aligarh; PW-5 Dr. S.K. Varshney,
C.M.O. Mahoba; PW-6 Rajbahadur Singh,
Constable
and
PW-7
O.P.
Rana,
Investigating Officer.

7. After conclusion of the evidence
of prosecution, statement of the accused
recorded under Section 313 Cr.P.C. in
which all the accused stated that at the
time of incident they were not present on
spot and they are falsely implicated in this
case.

8. In defence, DW 1 Rajpal Singh
examined, he deposed that at the time of
incident all the accused were present in
their field and busy in doing agricultural
work in their field. Nobody was present
inside the house at the time of alleged
incident.

9. After conclusion of the trial, learned
trial court exonerated the co-accused Bhagwan
Singh and Smt. Meera Devi against charge
levelled upon them and after appreciating the
evidence on record the prosecution has been
able to prove his case against the appellant
beyond reasonable doubt and, therefore, the
appellant convicted under Sections 304-B IPC
and 4 D.P. Act.

10. Being aggrieved by the judgement
and order of conviction dated 13.1.2017, this
appeal has been filed by the appellant.

11. I have heard learned counsel for the
appellant-Sri Noor Mohammad, learned AGA
and perused the material available on record.

12. The Exhibit Ka-2-inquest report of
the dead body of the deceased-Smt. Maya
Devi was done by Virendra Singh, Tehsildar,
Tehsil-Kol, District Aligarh in the presence of
Sub Inspector-O.P. Rana and police papers
were also prepared by Sub Inspector-O.P.
Rana. Recovery memo of broken bengles,
rings, ear rings, hair clips, khadia, plastic rope
was prepared which is Exhibit Ka-8 and a
recovery memo of plain soil & vomit mixed
soil was also prepared which is Exhibit Ka-9.

13. The post mortem of the death
body of Smt. Maya Devi was performed
by Dr. S.K. Varshney (P.W. 5) on 12th
April, 2013 at about 1:00 pm at District
Hospital, Aligarh which is Exhibit Ka-5, in
which, doctor found the age of the
deceased as about 20 years and the
deceased was found to be of average built.
Her eyes and bones were protruded.
Rigormorties was passed over from the
upper part of the body which was present
in the lower part of the body. Face and
eyes were congested. Clotted blood was
present in the left ear and nose.

14. Following ante mortem injuries
were found on the body of the deceased:-

1. Contusion at left upper eye
lid, measuring 2 cm X 1 cm.

2. Abrasion at left ankle lateral
side measuring 1 cm X 1 cm.

3. Abrasion/contusion right side
of forehead 2 cm above right eyebrow
measuring 1.5 cm X 1 cm.

4. Ligature Marks of 28 cm X 2
cm of around neck upper part present.

5. The mark was hard groomed,
leathery
on
dissection
subcutaneous
690 INDIAN LAW REPORTS ALLAHABAD SERIES
membrane tissue found congested and
hemorrhage present.

6. Hyoid bone found fractured.

7. On
internal
examination,
membrane of brain larynx hard; lever,
pancreas spleen and other parts of the
body were congested.

15. This post mortem report Exhibit
Ka-5 was done on the concurrence of Dr.
S.K. Verma who has also put his signature
on the post mortem report.

16. Dr. S.K. Varshney (PW-5)
opined that the cause of death is
strangulation asphyxia due to strangulation
and death was done one day before.

17. According to Modi's Medical
Jurisprudence
and
Toxicology,
23rd
Edition, followings are the symptoms of
death caused of strangulation:-

"If
the
windpipe
is
compressed so suddenly as to occlude
the passage of air altogether, the
individual is rendered powerless to call
for assistance, becomes insensible, and
may die instantly. If the windpipe is
not
completely
closed,
the
face
becomes cyanosed, bleeding occurs
from the mouth, nostrils and ears, the
hands are clenched and convulsions
precede delayed death. As in hanging,
insensibility is very rapid, and death is
quite painless."

a. The death is usually due to
asphyxia, but it may be due to other
causes, namely, cerebral ischemia or
venous
congestion,
asphyxia
and
venous congestion combined, or shock
due to reflex cardiac arrest.

b. In the case, where the death
is caused due to asphyxia, eyes are
prominent and open. The pupils are
dilated. The tongue is often swollen,
bruised, protruding and dark in colour.

c. According to postmortem
report, the membranes were congested,
brain was congested, spinal cord was
congested,
larynx
and
trachea
were
crushed. Both the lungs were congested,
pericardium was congested.

d. According to Modi's Medical
Jurisprudence
and
Toxicology,
23rd
Edition, the larynx and trachea are
congested in the case of strangulation. The
lungs are usually markedly congested,
showing
haemorrhagic
patches
and
petechiae and exuding dark fluid blood on
section. Brain is also congested and
abdominal organs are darkly congested.

18. Prosecution, in order to prove its
case before the trial court, has produced
seven witnesses complainant PW-1 (father
of the deceased-Maya Devi) Ram Kishan
has stated that her daughter was married to
the appellant-Ajay Kumar and during
marriage he spent about Rs. Three-Four
Lakhs but the family members of in-laws
were not happy and started demanding Rs.
One Lakh in cash as additional dowry but
he could not fulfill the demand of the
appellant and his family members. They
started treating her with physical cruelty.
He console her daughter that by passage of
time everything shall be sort out. On
9.4.2013 all the members of in-laws family
came to his house for the purpose of 'vidai'
and assured that in future they will not
harass his daughter. On that fateful day, he
received telephonic call from the police
then he alongwith his wife, brotherLokman and Ram Kishore rushed to the
village-Pala, Aligarh when they reached
there, all the family members of in-law's
had run away from the place of occurrence
and dead body was lying inside the room
near the bed, he lodged the first
2 All. Ajay Kumar Vs. State of U.P.
691
information report, Exhibit Ka 1 at P.S.
Java, Aligarh.

19. PW-2 Lokman is the witness who
is the brother of the PW-1, he also
supported the evidence of PW-1 Ram
Kishan.

20. PW-3 Saroj who is the wife of
PW-2 (Real Aunty of the deceased) also
deposed that the appellant as well as in law
of the victim were harassed and victimized
the deceased on demand of additional
dowry of Rs. One Lakh. This fact came
into light when Maya Devi came in her
maternal home then she told her mother
that her inlaws are harassing her on
demand of dowry. PW-3 Saroj clearly
stated in her statement that all the family
members of inlaws committed murder of
Maya Devi.

21. PW-4 Sansar Singh who was
Circle Officer-III, Aligarh on 11.4.2013
and investigated the case, in that capacity,
he collected the copy of application, Chik
FIR, general case diary and recorded the
statement of FIR Writer Rajbahadur Singh,
statement of informant Ram Krishan and
prepared the site plan in his handwriting
and signature and proved the same as
Exhibit Ka-3 and after recording the
evidence of witness under Section 161
Cr.P.C. submitted the chargesheet-Exhibit
Ka-4 against the accused persons under his
signature and in his handwriting.

22. PW-5 is Dr. S.K. Varshney
whose statement has already discussed in
aforesaid paragraph.

23.

PW-6
is
constable-clerk
Rajbahadur Singh of police station, Java,
Aligarh who registered the FIR and
prepared the Chik FIR on the basis of the
Tehriri-Exhibit Ka-1 and proved the same
as Exhibit Ka-6 and he also prepared the
G.D. Srl. No. 35, 1540 dated 11.4.2013 in
his handwriting and proved as Exhibit Ka7.

24. PW-7 Inspector O.P. Rana who
assisted the Investigating Officer PW-4
Sansar Singh and on the instruction of
PW-4 Sansar Singh he prepared the
recovery memo of Bangles, Hairclips, ear
rings and plastic rope measuring about
three hands in which wood is tied in both
ends, which are proved as Exhibit Ka-8
and a recovery memo of plain soil as well
as vomiting mixed soil Exhibit Ka-9.

25. The appellant also produced one
defence witness DW-1-Rajpal Singh who
deposed his statement that he know the
appellant and he resided in the same
village and the appellant's house is too
close to this house. At the time of incident,
crop was cutting and appellant as well as
other family members were present in
wheat field. Information of the death of
Maya Devi was given by the children of
the village then the appellant as well as he
was rushed to the house of the appellant at
that time except deceased nobody was
present there.

26. Learned counsel for the appellant
submitted that the trial court has convicted
the appellant purely on the basis of
surmises and conjectures and has failed to
appreciate the evidence available on
record. He further submitted that the trial
court has ignored the major contradictions
present in the testimony of the prosecution
witnesses and it is next submitted that
informant has failed to produce any
independent witness either of the village of
the appellant or village of informant to
support the prosecution case.
692 INDIAN LAW REPORTS ALLAHABAD SERIES

27. Learned counsel for the appellant
contended that the death of the deceasedMaya Devi was suicidal and is not
homicidal and it is further argued that the
appellant in his statement recorded under
Section 313 Cr.P.C. has stated that due to
his disability his wife herself committed
suicide due to stress and has also
submitted that at the time of incident, he
was not present in his house but he was
present in the field with all the family
members. It is also submitted that no
grievous injury is seen in the inquest
report and also submitted that from the
prosecution evidence, demand of dowry is
not made. The prosecution has utterly
failed to prove that just before her death
deceased-Maya Devi was subjected to
cruelty and harassment by her husband or
any relative of the husband, in connection
with, demand of dowry. Learned trial court
has passed the impugned order without
properly appreciating the evidence. The
prosecution has failed to prove guilty of
the appellant beyond reasonable doubt.
Lastly, learned counsel for the appellant
has mainly argued to consider the appeal
on the quantum of sentence. He submits
that the appellant is languishing in jail
since 17.4.2013 which is near about 7
years. The appellant who is a very poor
person, is a daily wage worker and
disabled person. He has to face a lot of
difficulty to do the daily tasks of the life.
The period of 10 years imprisonment is
too excessive, hence, he prays for leniency
and submitted that since the appellant's
sentence prescribed under Section 304 B
IPC that is to say 7 years, should be
reduced.

28. Per contra, learned AGA
contended that victim was died inside the
house in her matrimonial home by means
of strangulation. PW-5 Dr. Varsaney
opined that the cause of death is asphyxia
as a result of ante mortem strangulation
and further submitted that this is the clear
cut case of murder and also submitted that
there is no any document submitted by the
appellant with regard to his physical
disability. It is proved by clinching
evidence that deceased died within seven
years of marriage due to physical and
mental torture and is also proved that soon
before her death the victim was harassed
and tortured by making demand of
additional dowry. Hence, learned AGA
lastly contended that there is no infirmity
or illegality in the impugned order passed
by the trial court and as such the appeals
are liable to be dismissed.

29. To appreciate the arguments of
the parties and also the evidence, it is
necessary to look into the statutory
provisions of Section 304 B IPC and
Section 113 B of the Evidence Act
(hereinafter referred to as 'the Act').
Provisions of Section 304 B IPC reads as
follows:

[304B. Dowry death.--(1) Where
the death of a woman is caused by any
burns or bodily injury or occurs otherwise
than under normal circumstances within
seven years of her 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 for,
or in connection with, any demand for
dowry, such death shall be called "dowry
death", and such husband or relative shall
be deemed to have caused her death.

Explanation.--For the purpose of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
2 All. Ajay Kumar Vs. State of U.P.
693
for a term which shall not be less than
seven years but which may extend to
imprisonment for life.]

30. Section 113 B of the Act reads as
follows:

[113B.
Presumption
as
to
dowry death.--When the question is
whether a person has committed the dowry
death of a woman and it is shown that
soon before her death such woman has
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 304 B
of the Indian Penal Code, (45 of 1860).]

31. As per definition of dowry death
under Section 304 B IPC and the wording
in the presumptive Section 113 B of the
Act, if it is proved that death of woman is
caused by any burn or bodily injury or
occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before
her death (i) She was subjected to cruelty
or harassment by her husband or his
relatives,
or
(ii)
Such
cruelty
or
harassment was for, or in connection with,
demand of dowry, or (iii) Such cruelty or
harassment was soon before her death;
then it becomes obligatory on the court to
raise a presumption that accused caused
dowry death.

32. As per post mortem report
Exhibit Ka-9 and statement of Dr.
Varsaney PW-5 is that cause of death of
deceased-Maya Devi asphyxia as result of
strangulation, this shows that the death of
the deceased was homicidal and not
suicidal. The contention of the learned
counsel for the appellant that the deceased
committed suicide by hanging herself is
not acceptable. PW-5 Dr. S.K. Varsaney in
his statement clearly stated that the death
of
the
deceased
was
caused
by
strangulation. In the present case, dead
body of the deceased was lying on bed,
inside, bedroom of appellant. It was for
him to explain under Section 106 of
Evidence
Act
that
under
what
circumstances his wife died.

33. In [2016 (4) SCC Page 604], in
the case of Gajanan Dashrath Kharate v.
State of Maharashtra, their Lordships of
Hon. Supreme Court have held that the
initial burden to establish the case would
undoubtedly be upon the prosecution. 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 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
the accused to offer explanation. In
paragraph no.13, their Lordships have held
as under: -

"13. As seen from the evidence,
appellant Gajanan and his father Dashrath
and mother Mankarnabai were living
together. On 7-4-2002, mother of the
appellant-accused had gone to another
Village Dahigaon. The prosecution has
proved presence of the appellant at his
home on the night of 7-4- 2002. Therefore,
the appellant is duty-bound to explain as to
how the death of his father was caused.
When an offence like murder is committed
in secrecy inside a house, the initial burden
694 INDIAN LAW REPORTS ALLAHABAD SERIES
to establish the case would undoubtedly be
upon the prosecution. 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
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 the accused to offer. On the date
of the occurrence, when the accused and
his father Dashrath were in the house and
when the father of the accused was found
dead, it was for the accused to offer an
explanation as to how his father sustained
injuries. When the accused could not offer
any explanation as to the homicidal death
of his father, it is a strong circumstance
against the accused that he is responsible
for the commission of the crime."

34. As per post mortem report,
Exhibit ka-5, 8 injuries was found on the
person of the deceased were contusions
and contused swelling. In this case, larynx
and trachea are congested. Lungs are also
congested. Clotted blood was present in
the mouth and nose tray. These are the
signs which is clearly shows that in the
present case, death of the deceased was
homicidal.

35. Prosecution witness PW-1
Ramkishan, PW-2 Lokman, PW-3 Saroj
proved this fact that the marriage of Smt.
Maya Devi was solemnized with the
accused-appellant on 17.5.2011. This fact
was also been admitted by accused in their
statement under Section 313 Cr.P.C. The
deceased died on 11.4.2013 about 8:00
hours in the morning, therefore, it is
proved beyond doubt that the death of
deceased-Maya Devi was done within 7
years of her marriage and her death was
caused
otherwise
than
in
normal
circumstances.

36. Now, it has to be seen that just
before her death, deceased Smt. Maya
Devi
was
subjected
to
cruelty
or
harassment by her husband and any
relative of husband in connection with
demand of dowry. This element and
burden of prove in case of dowry deaths
have been dealt with in detail by Hon'ble
The Apex Court in Sher Singh @ Pratapa
v. State of Haryana 2015 (89) ACC 288
(SC). The Apex Court held as under:

12. In our opinion, it is beyond
cavil that where the same word is used in
a section and/or in sundry segments of a
statute, it should be attributed the same
meaning, unless there are compelling
reasons to do otherwise. The obverse is
where different words are employed in
close proximity, or in the same section,
or in the same enactment, the assumption
must be that the legislature intended
them to depict disparate situations, and
delineate
dissimilar
and
diverse
ramifications.
Ergo,
ordinarily
Parliament could not have proposed to
ordain that the prosecution should
"prove" the existence of a vital sequence
of facts, despite having employed the
word "shown" in Section 304 B. The
question is whether these two words can
be construed as synonymous. It seems to
us that if the prosecution is required to
prove, which always means beyond
reasonable doubt, that a dowry death has
been committed, there is a risk that the
purpose postulated in the provision may
be reduced to a cipher. This method of
statutory interpretation has consistently
been disapproved and deprecated except
in exceptional instances where the
2 All. Ajay Kumar Vs. State of U.P.
695
syntax permits reading down or reading up
of some words of the subject provisions.

13. In Section 113A of the
Evidence Act Parliament has, in the case
of a wife's suicide, "presumed" the guilt of
the husband and the members of his
family. Significantly, in section 113 B
which pointedly refers to dowry deaths,
Parliament has again employed the word
"presume". However, in substantially
similar circumstances, in the event of a
wife's unnatural death, Parliament has in
Section 304 B "deemed" the guilt of the
husband and the members of his family.
The Concise Oxford Dictionary defines
the word "presume" as: supposed to be
true, take for granted; whereas "deem" as:
regard, consider; and whereas "show" as:
point out and prove. The Black's Law
Dictionary (5th Edition) defines the word
"show" as- to make apparent or clear by
the evidence, to prove; "deemed" as- to
hold, consider, adjudge, believe, condemn,
determine, construed as if true; "presume"
as- to believe or accept on probable
evidence; and "Presumption", in Black's,
"is a rule of law, statutory or judicial, by
which finding of a basic fact gives rise to
existence
of
presumed
fact,
until
presumption is rebutted." The Concise
Dictionary of Law, Oxford Paperbacks has
this comprehensive yet succinct definition
of burden of proof which is worthy of
reproduction:

"Burden of Proof: The duty of a
party to litigation to prove a fact or facts in
issue. Generally the burden of proof falls
upon the party who substantially asserts
the truth of a particular fact (the
prosecution or the plaintiff). A distinction
is drawn between the persuasive (or legal)
burden, which is carried by the party who
as a matter of law will lose the case if he
fails to prove the fact in issue; and the
evidential burden (burden of adducing
evidence or burden of going forward),
which is the duty of showing that there is
sufficient evidence to raise an issue fit for
the consideration of the trier of fact as to
the existence or non-existence of a fact in
issue.

The normal rule is that a
defendant is presumed to be innocent until
he is proved guilty; it is therefore the duty
of the prosecution to prove its case by
establishing both the actus reus of the
crime and the mens rea. It must first
satisfy the evidential burden to show that
its allegations have something to support
them. If it cannot satisfy this burden, the
defence may submit or the judge may
direct that there is no case to answer, and
the judge must direct the jury to acquit.
The prosecution may sometimes rely on
presumptions of fact to satisfy the
evidential burden of proof (e.g. the fact
that a woman was subjected to violence
during sexual intercourse will normally
raise a presumption to support a charge of
rape and prove that she did not consent).
If,
however,
the
prosecution
has
established a basis for its case, it must then
continue to satisfy the persuasive burden
by proving its case beyond reasonable
doubt (see proof beyond reasonable
doubt). It is the duty of the judge to tell the
jury clearly that the prosecution must
prove its case and that it must prove it
beyond reasonable doubt; if he does not
give this clear direction, the defendant is
entitled to be acquitted.

There are some exceptions to the
normal rule that the burden of proof is
upon the prosecution. The main exceptions
are as follows. (1) When the defendant
admits the elements of the crime (the actus
reus and mens rea) but pleads a special
defence, the evidential burden is upon him
to prove his defence. This may occur, the
example, in a prosecution for murder in
696 INDIAN LAW REPORTS ALLAHABAD SERIES
which the defendant raises a defence of
self-defence. (2) When the defendant
pleads automatism, the evidential burden
is upon him. (3) When the defendant
pleads insanity, both the evidential and
persuasive burden rest upon him. In this
case, however, it is sufficient if he proves
his case on a balance of probabilities (i.e.
he must persuade the jury that it is more
likely that he is telling the truth than not).
(4) In some cases statute expressly places
a persuasive burden on the defendant; for
example, a person who carries
an
offensive weapon in public is guilty of an
offence unless he proves that he had
lawful authority or a reasonable excuse for
carrying it".

14. As is already noted above,
Section 113 B of the Evidence Act and
Section 304B of the IPC were introduced
into
their
respective
statutes
simultaneously and, therefore, it must
ordinarily be assumed that Parliament
intentionally used the word 'deemed' in
Section 304B to distinguish this provision
from the others. In actuality, however, it is
well nigh impossible to give a sensible and
legally acceptable meaning to these
provisions, unless the word 'shown' is used
as synonymous to 'prove' and the word
'presume' as freely interchangeable with
the word 'deemed'. In the realm of civil
and fiscal law, it is not difficult to import
the ordinary meaning of the word 'deem' to
denote a set of circumstances which call to
be construed contrary to what they actually
are. In criminal legislation, however, it is
unpalatable to adopt this approach by rote.
We have the high authority of the
Constitution Bench of this Court both in
State of Travancore-Cochin v. Shanmugha
Vilas Cashewnut Factory, AIR 1953 SC
333 and State of Tamil Nadu v. Arooran
Sugars Limited (1997) 1 SCC 326,
requiring the Court to ascertain the
purpose behind the statutory fiction
brought about by the use of the word
'deemed' so as to give full effect to the
legislation and carry it to its logical
conclusion. We may add that it is
generally posited that there are rebuttable
as well as irrebuttable presumptions, the
latter oftentimes assuming an artificiality
as actuality by means of a deeming
provision. It is abhorrent to criminal
jurisprudence to adjudicate a person guilty
of an offence even though he had neither
intention
to
commit
it
nor
active
participation in its commission. It is after
deep cogitation that we consider it
imperative to construe the word 'shown' in
Section 304B of the IPC as to, in fact,
connote 'prove'. In other words, it is for the
prosecution to prove that a 'dowry death'
has occurred, namely, (i) that the death of
a woman has been caused in abnormal
circumstances by her having been burned
or having been bodily injured, (ii) within
seven years of a marriage, (iii) and that she
was subjected to cruelty or harassment by
her husband or any relative of her
husband, (iv) in connection with any
demand for dowry and (v) that the cruelty
or harassment meted out to her continued
to have a causal connection or a live link
with the demand of dowry. We are aware
that the word 'soon' finds place in Section
304B; but we would prefer to interpret its
use not in terms of days or months or
years, but as necessarily indicating that the
demand for dowry should not be stale or
an aberration of the past, but should be the
continuing cause for the death under
Section 304B or the suicide under Section
304B of the IPC. Once the presence of
these concomitants are established or
shown or proved by the prosecution, even
by preponderance of possibility, the initial
presumption of innocence is replaced by
an assumption of guilt of the accused,
2 All. Ajay Kumar Vs. State of U.P.
697
thereupon transferring the heavy burden of
proof upon him and requiring him to
produce evidence dislodging his guilt,
beyond reasonable doubt. It seems to us
that what Parliament intended by using the
word
'deemed'
was
that
only
preponderance of evidence would be
insufficient to discharge the husband or his
family members of their guilt. This
interpretation provides the accused a
chance of proving their innocence. This is
also the postulation of Section 101 of the
Evidence Act. The purpose of Section
113B of the Evidence Act and Section
304B of the IPC, in our opinion, is to
counter what is commonly encountered -
the lack or the absence of evidence in the
case of suicide or death of a woman within
seven years of marriage. If the word
"shown" has to be given its ordinary
meaning then it would only require the
prosecution to merely present its evidence
in Court, not necessarily through oral
deposition, and thereupon make the
accused lead detailed evidence to be
followed by that of the prosecution. This
procedure is unknown to Common Law
systems, and beyond the contemplation of
the Cr.P.C.

37. It is well settled principle of law that
once prosecution proved that where the death
of the woman which was occurred otherwise
under normal circumstances within 7 years of
her marriage and she was subjected to cruelty
and harassment by her husband and relatives
of her husband soon before her death in
connection with the demand of dowry, then
heavy burden of proof lies upon accused to
adduce evidence dislodging his guilt, beyond
reasonable doubt. In the present case accused
appellant-Ajay Kumar had failed to prove
reason of doubt that his wife Smt. Maya Devi
committed suicide due to depression.

38. In the present case, at the time of
incident when the parent and relative were
arrived at the matrimonial house of the
deceased then they saw that all of the family
members of in-law had run away from the
scene of occurrence. Neither of any family
member was present at the time of preparation
of the inquest report. These are the
circumstances
are
clearly
shows
the
indulgence of the appellant.

39. From the post mortem report and
statement of the doctor, it is evident that the
deceased was beaten just before her death, she
was strangulated. This fact is admitted that the
deceased is died inside the house and in place
of occurrence broken bangles, rings, ear rings,
hair clips, plastic rope (fastened with wood)
were recovered at the place of occurrence
which shows that the deceased was murdered
by committing strangulation and by pressing
neck of the deceased.

40. Contention of the learned counsel
for the appellant is that the prosecution has
failed to prove that soon before death of
deceased-Maya Devi there was demand of
dowry by the accused. To convict the
accused under Section 304 B IPC, it is not
necessary for prosecution to prove that
soon before her death there was no
demand of dowry. It will be sufficient for
prosecution to prove that soon before the
death of the deceased, she was subjected to
cruelty or harassment for any demand of
dowry or in connection with any demand
of dowry.

41. Last argument of learned counsel
for the appellant is that the appellant is
languishing jail since 17.4.2013 about 7
years. Appellant is disable and very poor
person and daily wager so considering the
peculiar facts and circumstances, prayer
698 INDIAN LAW REPORTS ALLAHABAD SERIES
for reduction of sentence from 10 years to
7 years.

42. In this particular case, deceased
was beaten and she resisted before her
death. On place of occurrence, broken
bangles, one plastic rope tied with both
ends with wood measuring three hands and
autopsy of dead body was conducted by
PW-5 Dr. S.K. Varshney noted several
ante mortem injuries besides ligature mark
measuring 28 cm X 2 cm around the neck
and
bones
underneath
were
found
fractured cause of death was strangulation.

43. The appellant was charged for
offence under Section 498A, 304 B and
Section 3⁄4 D.P. Act with alternative charge
of under section 302 IPC although learned
sessions court after appreciating the
evidence arrived at a finding that the
deceased died about two years of her
marriage and held that offence under
Section 304 B and Section 4 D.P. Act is
proved beyond shadow of doubt but
learned trial court acquitted the appellant
on alternative charge under Section 302
IPC while holding that since the offence
under section 304 B had been fully
established by prosecution therefore, the
appellant could not be convicted under
Section 302 IPC. Thus, finding of the
court below is totally whimsical and
against the evidence on record acquittal of
the appellant under Section 302 IPC is
against the evidence on record but as no
appeal on behalf of the State for
enhancement
of
sentence.
In
these
circumstances, this Court is not inclined to
interfere the judgement and order of the
trial court.

44. So far as contention of learned
counsel for leniency and reduction of
sentence of accused-appellant-Ajay Kumar
is concerned, it is not a case of suicidal
death but a case of homicidal death. There
is no mitigating circumstance against the
applicant. It shall not be justified to
interfere or reduce the sentence awarded to
appellant. Accordingly, the appeal is liable
to be dismissed.

45. The conviction and sentence of
appellant-Ajay
Kumar
passed
by
Additional Sessions Judge, Fast Track
Court No. 1 Aligarh, under Sections 304B
and 4 D.P. Act are hereby upheld. The
appellant-Ajay Kumar is in jail and he
shall serve out the sentence awarded to
him.

46. In view of the above, the appeal
is dismissed.

47. Office is directed to transmit the
certified copy of this order to the court
below alongwith the lower court record,
for necessary compliance.
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(2020)02ILR A698

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I,
J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 589 of 1986

Girraj Singh & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri G.C. Saxena, Sri S.P. Giri

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