# Ajeet Kumar v. State of U.P

- **Citation:** (2022) 8 ILRA 629
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-27
- **Case number:** Criminal Appeal No. 608 of 2014
- **Bench:** Siddhartha Varma, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajeet-kumar-v-state-of-u-p-48927
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section
302
&
498-A
-

Dowry
Prohibition Act; 1961 - Section 3/4 -
Indian Evidence Act, 1872 - Section 113B- No direct evidence except chargesheet -
not
proved
beyond
reasonable
doubtspresumption u/s 113-B of Indian Evidence Act
does not arise. Criminal Appeal No.608 of
2014- allowed and Criminal Appeal No.34 of

## Text

8 All. Ajeet Kumar Vs. State of U.P.
629
and sentence awarded by the trial court is
in accordance with law and needs no
interference.

25 . As a result, the present appeal
lacks merit and is dismissed.

26. Registrar General of this Court is
directed to pay an honorarium of Rs.
20,000/- to Sri Pankaj Kumar Asthana,
learned Amicus Curiae for rendering
effective assistance in the appeal.

27. The bail bond of the Appellant
stands cancelled and the Appellant is
directed to surrender before the court below
for serving the sentence as per trial court
judgment.

28. Let the lower court record be
transmitted back to court below along with
a copy of this order.
----------
(2022) 8 ILRA 629
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 608 of 2014
WITH
Criminal Appeal No. 34 of 2019
(U/S 372 Cr.P. C.)

Ajeet Kumar ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
Satyaveer
Singh,
Sri
Ram
Singh
Kushwaha, Sri Ratan Singh

Counsel for the Opposite Party:
Govt. Advocate, Sri Satya Dheer Singh
Jadaun

Criminal Law - Indian Penal Code,1860 -
Section
302
&
498-A
-

Dowry
Prohibition Act; 1961 - Section 3/4 -
Indian Evidence Act, 1872 - Section 113B- No direct evidence except chargesheet -
not
proved
beyond
reasonable
doubtspresumption u/s 113-B of Indian Evidence Act
does not arise. Criminal Appeal No.608 of
2014- allowed and Criminal Appeal No.34 of
2019.

Appeal dismissed. (E-9)

List of Cases cited:

1.Sharad Birdichand Sarda Vs St. of Mah., AIR
1984 SC 1622,

2.Sakatar Singh & ors. Vs St. of Har. : AIR 2004
SC 2570

3.Kalyan Kumar Gogoi Vs Ashutosh Agnihotri &
anr. : AIR 2011 SC 760

4.Mukul Rani Varshhei Vs D.D.A. : (1995) 6 SCC
120

5.Standard Chartered Bank Vs Andhra Bank
Finance Services Ltd. : (2006) 6 SCC 94 (Full
Bench)

6.Madhu Vs St. of Kar., 2014 (84) ACC 329
(SC);

7.Prithipal Singh Vs St. of Pun., 2012 (76) ACC
680 (SC);

8.Mani Kumar Thapa Vs St. of Sikkim, AIR 2002
SC 2920

9.Lal Bahadur & ors. Vs St. of (NCT of Delhi) :
(2013) 4 SCC 557;

10.Ram Gulam Chaudhary Vs St. of Bih. : 2001
(2) JIC 986 (SC)

11.Satvir Singh Vs St. of Pun. : 2001 Cr.L.J.
4625,
630 INDIAN LAW REPORTS ALLAHABAD SERIES
12.Major Singh & anr. Vs St. of Pun. : AIR 2015
SC 2081

13.Baijnath & ors. Vs St. of M.P., (2017) 1 SCC
734

14.Arvind Singh Vs St. of Bih., AIR 2001 SC
2124

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Criminal Appeal No.608 of 2014 has
been filed against the judgment and order of
the Additional District & Sessions Judge,
Court No.2, Firozabad by which the appellant
Ajeet Kumar has been found guilty and
punished under section 302 I.P.C. with life
imprisonment
along
with
a
fine
of
Rs.10,000/-; under section 304-B I.P.C. with
10 years rigorous imprisonment; under
section 201 I.P.C. with three years rigorous
imprisonment along with a fine of Rs.5000/-;
under section 498-A of I.P.C. with one year
simple imprisonment along with fine of
Rs.1000/- and under section 4 of Dowry
Prohibition
Act
with
six
months'
imprisonment along with Rs.2000/- as fine. It
was further directed that all the punishments
of imprisonment were to run concurrently.
By the very same judgment the accused Yad
Pal and Veda Devi were acquitted.

2. Against the acquittal of accused Yad
Pal and Veda Devi, Criminal Appeal No.34
of 2019 had been filed by the appellant
Jiledar Singh Verma with a prayer that the
opposite party nos.2 and 3 in Criminal
Appeal No.34 of 2019 be convicted for
offences under sections 498-A, 304-B, 201,
302/34 of I.P.C. read with section 3/4 of
Dowry Prohibition Act.

3. Heard Sri Ram Singh Kushwaha,
learned counsel for the appellant, learned
AGA Sri Vikas Goswami and Sri Satya
Dheer Singh Jadaun, learned counsel for
the first informant, in Criminal Appeal
No.608 of 2014. Sri Satya Dheer Singh
Jadaun,
Advocate
has
made
his
submissions on behalf of the appellant in
Criminal Appeal No.34 of 2019 whereas
Sri Ram Singh Kushwaha appeared for
opposite parties nos.2 and 3.

4. In brief, the facts of the case are as
follows :-

5. Jiledar Singh Verma, PW-1 lodged
a First Information Report on 31.7.2010 to
the effect that his sister, under mysterious
circumstances, had been made to disappear
and thereafter killed. It has been stated that
he had got his sister married to one Ajeet
Kumar, son of Yad Pal, resident of Kadipur
(Padham), Police Station Jasrana, District
Firozabad on 9.2.2010 as per Hindu rituals.
He has stated in the First Information
Report that he had, at the time of marriage,
given Rs.1,00,000/- in cash and had also
given various other commodities worth
Rs.1,00,000/-. These commodities were a
Motorcycle, gold chain, gold ring, colour
television,
almirah,
palang,
sofa
set,
dressing table and a refrigerator etc. In the
First Information Report, it has further been
stated that eversince the marriage, the inlaws and the husband of his sister-Asha
were
demanding
Rs.50,000/-for
the
purchase of a buffalo and a gas-stove. For
this purpose, they had on various occasions
beaten his sister and on one occasion his
sister was also turned-out of the in-laws'
house. On 19.6.2010, in the presence of
various respected individuals and relatives,
the first informant had taken his sister and
had also left her there in the in-laws' house.
However, despite the intervention of the
respected villagers and the relatives, there
was no improvement in the manner in
which his sister was being treated. In the
8 All. Ajeet Kumar Vs. State of U.P.
631
month of July, 2010 when the daughter of
his uncle was to get married, his brother-inlaw Ajeet Kumar i.e. the husband of his
sister along with his sister had come to the
house of the first informant. After the
marriage, the couple had gone back to their
village. It has also been stated that during
the marriage, when Ajeet Kumar and his
sister had come to the village of the first
informant, Ajeet Kumar had disclosed his
evil intentions to various relatives and they
had also told the first informant that Ajeet
Kumar had told them about his evil
intentions of actually murdering his sister
after they went back home after the
marriage. When the relatives had told the
first informant about the evil intentions of
Ajeet Kumar, he got worried and when on
20.7.2010 he tried to call Ajeet Kumar, his
phone was switched off and when he tried
to call his father Yad Pal, he also did not
give a satisfactory reply and thereafter he
also switched off his phone. The first
informant tried to find out as to what had
happened and had got information that his
sister was taken out by Ajeet from her
marital home and had been killed and,
therefore, there was a suspicion that Ajeet
Kumar had killed his sister. It was stated
that prior to the lodging of the First
Information Report, along with all the
members of the family, Ajeet Kumar had
killed his sister and had also made the dead
body disappear. Upon realising that the
sister of the informant had been killed on
20.7.2010, the father of the first informant
had written to the Thana Prabhari, Police
Station Jasrana on 24.7.2010. In the First
Information Report, the first informant had
stated that for killing his sister and for
making the dead body disappear, Ajeet
Kumar son of Yad Pal, Yad Pal son of Man
Singh, Veda wife of Yad Pal, Bharat Singh
son of Man Singh, Geetam Singh son of
Rajaram, Mitthu Lal son of Tejpal, Jai
Prakash son of Vishun Lal, Ram Babu son
of Vishun Lal and Sher Singh Advocate
son of Ram Chandra were all equally
responsible and, therefore, he had prayed
that his First Information Report be lodged
and the guilty be punished.

6. After the lodging of the First
Information Report, the police conducted
its investigation and thereafter submitted a
charge sheet against only three persons.
The Court, therefore, charged Ajeet Kumar,
Yad Ram and Veda Devi under sections
498-A, 304-B, 201 and 302/34 I.P.C. and
section 3/4 of Dowry Prohibition Act on
4.5.2012. The charges were read over to the
accused and they were made to understand
the charges. However, the accused denied
the charges and prayed for a trial.

7. From the side of the prosecution,
Jiledar Singh Verma, the first informant
was produced as PW-1, Kishan Lal, the
father of the first informant was produced
as PW-2, Ramesh Chandra, the uncle (Tau)
of the deceased was produced as PW-3,
Anand Kumar (stated to be the brother-inlaw of the first informant) was produced as
PW-4. Ramesh Bhardwaj, V.P. Singh,
Purnendra Singh and Har Prasad Gautam
who were Investigating Officers in the case
were produced as PWs-5, 7, 8 and 9. PW-6
Shiv Raj Singh is the Constable writer who
prepared the chik FIR Ex.-Ka-4 and
Kayami G.D. as Ex.-Ka-5.

8. The accused Ajeet Kumar, Yad
Ram and Veda Devi answered to the
various questions under section 313 I.P.C.
and denied having committed the offence
as was alleged against them. One Kashmir
Singh was produced as Defence Witness.
By way of documentary evidence, the site
plan with regard to the place where the
accused lived was brought into evidence as
632 INDIAN LAW REPORTS ALLAHABAD SERIES
Exhibit-Ka-2 and the site plan as to where
it was presumed that the dead body was
thrown was produced in evidence as
Exhibit-Ka-3.

9. From the perusal of the entire
evidence on record, the following facts can
be gleaned out :-

i. the alleged deceased was married
to one Ajeet Kumar on 9.2.2010;

ii. Ajeet Kumar and deceased Asha
apparently were not having a very good
matrimonial relationship and as per the first
informant, Ajeet Kumar with his father,
mother and other relatives were constantly
demanding dowry from the deceased;

iii. on many an occasion, there
were conflicts between the husband Ajeet
Kumar and the wife Asha and the first
informant
had
tried
to
get
the
misunderstanding between the two resolved
by the intervention of respected individuals of
the village and various relatives;

iv. on 19.6.2010, it was the last
time before the alleged deceased Asha
disappeared that an intervention was tried by
the first informant to get the relationship
between the deceased and her husband
amicable. Thus, the event is said to have
occurred within 7 years from the marriage in
respect of which there is a presumption about
the commission of dowry death under section
113-B of Indian Evidence Act and section 8A of the Dowry Prohibition Act and the
burden of proof, therefore, falls on the
accused that he had not committed the crime;

v.
on
10.7.2010
when
the
daughter of Ramesh Chandra, the uncle of
the first informant, was getting married,
Ajeet Kumar and the alleged deceased
Asha had come to the first informant's
house to attend the marriage. Thereafter,
Ajeet Kumar along with his parents had
gone back to his own village at Kadipur
(Padham), Police Station Jasrana, District
Firozabad.

vi. when the "chauthi" ceremony
of the girl who had got married was to be
held on 16.7.2010, then Ajeet Kumar again
came back to the house of the first
informant.

vii.
according
to
the
first
informant, thereafter his sister (deceased)
along with Ajeet Kumar had gone back to
the village of Ajeet Kumar on 19.7.2010.

viii. on 20.7.2010, when an
information was received by one Gajendra,
who was husband of another sister (Smt.
Mithilesh) of the first informant, then the
first informant along with his father tried to
make efforts to contact Ajeet Kumar and
his family but as per their assertion, Ajeet
Kumar and his father disappeared and
therefore, a suspicion was raised in their
minds that the sister of the first informant
had been murdered.

ix. the First Information Report
was thereafter lodged; investigation was
done by the police; charge sheet was
submitted and thereafter the trial had
commenced.

10. Upon the completion of the trial,
when the accused were found guilty,
Criminal Appeal No.608 of 2014 was filed
assailing the judgment and order of
conviction
dated
25.1.2014.
Learned
counsel for the appellant has made the
following submissions :-
8 All. Ajeet Kumar Vs. State of U.P.
633

a. The case is of circumstantial
evidence and there is no direct evidence to
come to a conclusion that the appellantAjeet Kumar had in fact killed the
deceased-Asha.

b. When conviction is to be done
as per the circumstantial evidence, then the
chain of evidence should be such that leads
to only conclusion that the accused and no
one else had committed the crime. If there
is any missing link, then the conviction
cannot take place.

c. As per the judgment of the
Supreme Court in Sharad Birdichand
Sarda vs. State of Maharashtra reported
in AIR 1984 SC 1622, there are five salient
points which are to be seen for the
conviction of the accused which are as
follows :-

1. The circumstances from which
the conclusion of guilt is to be drawn
should be fully established;

2. The fact so established should
be consistent only with the hypothesis of
the guilt of the accused;

3. The circumstances should be of
conclusive nature and tendency;

4. They should exclude every
possible hypothesis except the one to be
proved; and

5. There must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

11. These ingredients have to be
necessarily there for the Court to come to a
conclusion that the accused was guilty.

d. If the testimony of PW-1, who
is the brother of the deceased, is seen, it is
apparent that he only concludes that the
accused had killed his sister when she was
not to be found. Learned counsel for the
appellant has made the Court go through
the testimony of PW-1 which includes his
examination-in-chief
and
crossexamination and stated that after the
accused had gone back to his village upon
having attended the marriage of his
(informant's) cousin, he had again come
back to the village of the informant to
attend the 'chauthi' ceremony of the cousin
(sister). He further states that the accused
had gone back after attending the marriage
on 19.7.2010. In his cross-examination, he
has stated that while the accused was
coming back on 16.7.2010, he had met with
an accident at Padham which is around 2530 kilometers away from the village of the
first informant. Learned counsel for the
appellant has stated that as per the
statement of PW-1, upon hearing about the
accident, even the parents of Ajeet Kumar
had come to the village of the first
informant. Learned counsel states that
thereafter as per the cross-examination of
PW-1, the appellant-accused had gone to
the house of the uncle of the first
informant. Learned counsel states that if the
testimony of PW-1, the first informant, is
perused, it becomes clear that there is
absolutely no direct evidence which can
lead to the conclusion that his sister was
killed by Ajeet Kumar. In his testimony
PW-1 had stated that after the ceremony of
'chauthi', the accused had taken away his
sister in his presence on 19.7.2010 and
thereafter because one Gajendra Singh,
brother-in-law
(Bahnoi)
received
an
634 INDIAN LAW REPORTS ALLAHABAD SERIES
information that Ajeet Kumar had killed his
sister, he had presumed that his sister had
been killed. Learned counsel for the
appellant states that to Gajendra Singh,
during the marriage ceremony, Ajeet
Kumar had stated that he had an intention
to kill his wife Asha. Learned counsel
argued that if that was the case, then why
this fact was not told by Gajendra to the
informant and the parents of Asha. Learned
counsel for the appellant states that
Gajendra Singh was never examined in the
Court and he was not produced as a
witness.

e. To come to the conclusion that
dowry was being demanded, the first
informant as also the PW-2 i.e. the father of
the deceased, had relied upon the statement
of one Mithilesh who again was the sister
of the first informant and Asha. As per the
PW-1 and PW-2, Mithilesh had all through
stated that in her presence, dowry was
demanded from Asha. Learned counsel for
the appellant states that even Mithilesh was
never produced as a witness.

f. There is absolutely no direct
evidence with regard to the fact that anyone
had seen the commission of the crime. He
also submits that there is no evidence
which would make a Court to conclude that
the deceased was in fact killed by Ajeet
Kumar.

g. PW-3 Ramesh Chandra had
also corroborated the story as was told by
PW-1 that Ajeet Kumar had come back
once again on 16.7.2010 to the village of
the first informant to attend the 'chauthi'
ceremony. Learned counsel states that the
story which PW-3 gives is slightly different
as he submits that after Ajeet Kumar had
come from his village and he had met with
the accident, he had never come to his
house i.e. the uncle's house while PW-1 had
stated that after coming from his village,
Ajeet Kumar had lied down in the house of
the uncle. To show the variance in the
statements of PW-1 and PW-3, learned
counsel for the appellant relied upon
certain portions of their testimony which
are reproduced as under :-

Statement of PW-1

"अजीत िे माता दपता िे बताने पर
हमिो अजीत िे साथ एक्सीडेंट होने िी
जानिारी हुई थी। उससे पहले अजीत अपने घर
पर नहीं आये थे मेरे ताऊ िे घर पर लेटे थे।
अजीत िे माता दपता िे बताने िे बाि ही मैंने
अजीत िी तलाश दिया था तो िह मेरे ताऊ िे
घर लेटे दमले थे और उस समय मेरी बहन आशा
भी मेरे घर पर ही थी।"

Statement of PW-3

"मुझे नहीं मालूम दि अजीत मेरे भाई
िे घर दितने दिन रुिे थे। अजीत दिस तारीि
िो मेरे घर पर गए थे यह भी मुझिो नहीं
मालूम।"

h. For the proving of the case of
the prosecution, it appears that PW-3 and
PW-4 had also sworn affidavits on
11.10.2010.
Those
affidavits,
learned
counsel states, were absolutely unreliable
because the witnesses had not stated
anything with regard to the fact as to when
they were sworn, before whom they were
sworn and where they were sworn.

i. Learned counsel had also drawn
the attention of the Court to the testimony of
Anand Kumar-PW-4 in which the PW-4 states
that he had attended the marriage on 10.7.2010
of the cousin of the first informant Pushpa and
had remained in the marriage only for 5-6
8 All. Ajeet Kumar Vs. State of U.P.
635
hours and in those 5-6 hours he did not
remember as to when exactly in Dhatari (the
village of the first informant), Ajeet Kumar
had met him, yet before the PW-4 Anand
Kumar, Ajeet Kumar had made an extra
judicial confession that he would take his wife
to his village and there he would kill her.
Learned counsel for the appellant states that if
such a grave confession was being made
before PW-4, Anand Kumar and if he was a
friend of the first informant and also a brotherin-law (husband of a cousin), then he would
have definitely told the informant about the
evil intention of Ajeet Kumar then and there.
The very fact that Anand Kumar had kept
mum and had not spoken about the intentions
which Ajeet Kumar had told him, shows that
Anand Kumar was a witness who had been
tutored and had been brought only to give a
false evidence.

j. Learned counsel further states that
PW-2 had stated that Ajeet Kumar had on
19.7.2010 taken his daughter to his village in
his presence. The exact words of PW-2 in his
testimony are being reproduced hereasunder :-

"19 जुलाई 2010 िो मेरा िामाि
अजीत मेरी पुत्री आशा िो दििा िरािर ले गया
था।"

12. However, in direct contravention of
the statement of PW-2, PW-3 had stated that
on 19.7.2010 Asha in the evening at around
4.00 PM had gone with him to Jasrana on a
tempo. Then, he had also stated that from
Shikohabad to Jasrana they were on a tempo at
around 4.30 PM. He does not say that the
accused Ajeet Kumar was also with him and
was accompanying the alleged deceased Asha.

k. Learned counsel further states
that if the testimony of the Investigating
Officer PW-5 Ramesh Bhardwaj is taken
into account then it would be evident that
he had stated in his Case Diary that the
whole incident appeared to be doubtful. He
has stated in his testimony that witness
Mohan Singh and Veere had also stated
during investigation that they were aware
of the fact that Ajeet Kumar had killed his
wife. He has also stated that Veere had
stated that Asha along with Ajeet Kumar
had gone to her Maika to attend a marriage
but had never come back. PW-5 is the
witness who had arrested the appellant but
he could not, despite best efforts, recover
the dead body of the deceased. He also
presumed that the appellant had killed the
deceased and had thrown it in Hazara
Nahar. Learned counsel for the appellant
states that if Mohan Singh and Veere were
such important witnesses of fact then their
non-production as witnesses in the case
would make the whole prosecution story
doubtful.

l.
Learned
counsel
for
the
appellant has also urged that from the
statement of PW-6, 7 and 8 it is clear that
the whole case was based upon hearsay
evidence.

13.

Statements
of
Prosecution
Witnesses regarding fact of the incident is
also relevant. PW-1 deposed at page 7 that "it
is fair to say that I did not see Ajeet Kumar
killing my sister and throwing the corpse
while taking her. I don't know that after arrest
of Ajeet Kumar, dead body of my sister,
jewelry and clothes were recovered or not. I
did not find any such person who told me that
he had seen anyone killing my sister and
throwing the dead body. I am saying
according to the police that my sister has
been murdered because she has not come to
us till date. It is correct to say that before
lodging this case, I did not make any
complaint against the accused. It is also true
636 INDIAN LAW REPORTS ALLAHABAD SERIES
to say that Ajit Kumar left my sister and
returned back to his village.

14. PW-2, in cross-examination, when
was asked, "do you know that your daughter
was murdered", the witness was unable to
answer and remained silent.

15. Learned counsel for the appellant
relied upon a decision of the Supreme Court
in Sakatar Singh & Ors. vs. State of
Haryana : AIR 2004 SC 2570 and stated
that the Supreme Court made it clear that
where the evidence of husband's cruelty or
harassment leading to dowry death is not
based on the personal knowledge of the
witness, it cannot be made foundation for
basing of conviction under section 304-B of
the Penal Code.

m.
Learned
counsel
for
the
appellant relying upon the evidence of PW-9
has also stated that Rakesh Kumar Pathak
was a witness who had given his statement
but Rakesh Kumar Pathak was also not
produced as a witness.

n.
Learned
counsel
for
the
appellant states that if there was a
presumption that the appellant had thrown the
dead body from a bridge into Hazara Nahar
then the police ought to have made at least
some effort to locate the dead body by
putting nets etc. He further stated that all such
canals are linked to various mini canals for
the purposes of irrigation and if the dead
body had been thrown from a bridge into that
canal then there was every possibility that the
dead body would have been recovered at one
place or the other if proper nets etc. for
searching out the dead body had been
installed

16. Learned AGA, however, in reply
has submitted that minor discrepancies in the
statements of witnesses could not be made a
ground for the acquittal of the accused. The
first informant had tried his level best to
prove the case and just because there were
certain variations in the statements of PW-1
and PW-3 and thereafter in the statements of
PW-2, such variations would not make the
whole prosecution case doubtful. He submits
that it made little difference if the PW-1 had
stated that upon coming back to the
informant's house, the accused had stayed in
the house of the uncle (Tau) of the first
informant on 19.7.2010 and on the contrary
PW-3 had stated that the appellant had not
stayed in his house. Learned AGA further
submitted that the statement of PW-2 that the
accused and the deceased had gone from his
house was at variance with the statement of
PW-3 (Tau of the first informant) that the
deceased had in fact gone to Jasrana with him
at around 4.30 PM in the evening would also
not make any difference. Learned AGA
further stated that if Gajendra, Mithilesh,
Mohan and Veere who had given various
statements on various occasions had not
given their evidence would also not make any
difference as the evidence of the family
members was sufficient for convicting the
accused persons.

17. Sri Satya Dheer Singh Jadaun also
supported the judgment so far as the
conviction of Ajeet Kumar was concerned
and assailed the same so far as the
judgment had acquitted Yad Pal and Veda
Devi. For defending the judgment, so far as
it convicted Ajeet Kumar, he submitted that
there was evidence enough to come to the
conclusion that Ajeet Kumar had killed his
wife. He also adopted the arguments which
the learned AGA had made.

18. To assail the judgment which
acquitted Yad Pal and Veda Devi, Sri Satya
Dheer Singh Jadaun, learned counsel
8 All. Ajeet Kumar Vs. State of U.P.
637
appearing for the appellant in Criminal
Appeal No.34 of 2019 submitted that even
if the Court relied upon the statements of
PWs.-1, 2 and 3, it would become evident
that the accused Yad Pal and Veda Devi
were hands-in-glove with the accused Ajeet
Kumar and they had all planned the murder
of the deceased Asha and were, therefore,
definitely to be punished with the help of
the provisions of section 34 of the Indian
Penal Code.

19. Having heard learned counsel for
the appellant in Criminal Appeal No.608 of
2013, learned AGA for State and Sri Satya
Dheer Singh Jadaun who has appeared for
the first informant as well as the appellant
in Criminal Appeal No.34 of 2019, the
Court is of the view that the Court below
erred in convicting the appellant-Ajeet
Kumar in Criminal Appeal No.608 of 2014.
However, the Court is convinced that the
Court below rightly acquitted Yad Pal and
Veda Devi. If the evidence in its totality as
had come on record is seen, it would be
evident that there is absolutely no direct
evidence to come to the conclusion that
Ajeet Kumar or his father Yad Pal or his
mother Veda Devi had killed the deceased.
The dead body was never found. The
evidence is only circumstantial evidence.
There is no direct evidence to prove that
the appellant-Ajeet Kumar in Criminal
Appeal No.608 of 2014 or his father Yad
Pal or his mother Veda Devi had killed the
deceased.
There
are
number
of
contradictions in the statements of PW-1
and PW-3 and in the statements of PW-2
and PW-3 which makes their testimonies
doubtful. Also the non-production of
Mithilesh, the sister of the deceased;
Gajendra, the brother-in-law of the first
informant; Mohan and Veere, the residents
of village Kadipur in the witness box
makes everything doubtful. PWs-1, 2 and 3
are such witnesses who only stated about
the murder, on the basis of presumption as
they were unable to find their daughter.
They are in no manner witnesses of fact.
They have no direct knowledge as to who
had killed the deceased and whether the
deceased was actually killed or not. They
only presumed that Ajeet Kumar and his
family members had killed the deceased on
the basis of the statements made by
Gajendra. Under such circumstances, their
statements can only lead to a suspicion and
cannot in any manner lead to the
conclusion that Ajeet Kumar had actually
killed the deceased. Their statements also
cannot be treated as statements of fact that
in fact the deceased had died. Suspicion
cannot take the place of proof. Suspicion is
definitely not a proof and, therefore, when
it is not proven that the accused were
responsible for the death of the deceased,
then on the basis of suspicion, no
conviction can take place.

20. It is clear from the evidence of the
witnesses of fact that they have deposed
hearsay evidence which is not admissible in
evidence. Under section 60 of the Indian
Evidence Act, oral evidence must be direct
as has also been observed by the Supreme
Court in Kalyan Kumar Gogoi vs.
Ashutosh Agnihotri & Anr. : AIR 2011
SC 760 and Mukul Rani Varshhei vs.
D.D.A. : (1995) 6 SCC 120.

21. Some important discrepancies in
oral evidence of witnesses of fact which
demolishes the prosecution case are noted
below :-

i)
Regarding
Demand
of
Dowry:

PWs-1, 3 and 4, brother, uncle
and brother-in-law (husband of a cousin)
638 INDIAN LAW REPORTS ALLAHABAD SERIES
respectively state about the demand of
Rs.50,000/-, a buffalo and a gas-stove;

PW-2 father of Asha states that
there was a demand of gas and gas-stove
only.

ii) Regarding Panchayat:

22. PW-1 on page 1 - "On June 19,
2010 I took many respectable persons and
relatives to their home and talked about
this".

23. But his presence on 19.6.2010 at
home is doubtful as he is an army
personnel. At page 3 of his evidence he
says that "the wedding of my uncle's
daughter was on 10th July 2010". He could
not say with certainty as to for how many
days and at which time, he had come on
leave.

24. Again he says, "I do not
remember that how many days before the
wedding of my uncle's daughter, I had
come home."

25. Thus, it is established that the
informant PW-1 had not participated in any
such panchayat.

26. PW-2 Kishan Lal (father) has not
mentioned at all that with regard to demand of
dowry, any panchayat ever took place but he
says, "मैंने आशा िी ससुराल में यह मालूम नहीं
दिया दि मृत्यु िैसे हुई। मुझे दिसी ने बताया भी
नहीं। मैंने अपनी लड़िी आशा िी हत्या िरते हुए
उसिी लाश िो दिपाते हुए या िाह संस्कार िरते
हुए नहीं िेिा न मेरे घरिालो ने िेिा स्वयं िहा दि
मैं तो अपने घर पर था। यह िहना सही है दि मुझे
आज ति ऐसा िोई व्यखि नहीं दमला दजसने मेरी
लड़िी आशा िी हत्या िरते हुए उसिी लाश िो
फेंिते हुए या िाह संस्कार िरते हुए िेिा हो। यह
िहना भी सही है दि मेरी लड़िी िी आज ति न
तो लाश दमली न हड्डी दमली और न िपड़े दमले।
...... शािी से लेिर मेरी भतीजी िी शािी होने ति
मेरी पुत्री ने इस सम्बन्ध में िोई पत्र नहीं डाला दि
उसिी ससुराल िाले िहेज़ िी बात िरते हैं। और
िहेज़ िे दलए प्रतादड़त िरते हैं और ऩ फोन दिया
था घर आने पर दशिायत िरती थी।"

27. Contrary to the underlined deposition,
further he says, " मैंने लड़िी िी शािी से लेिर
मेरी भतीजी िी शािी होने ति दिसी प्रिार िी
िोई दशिायत ससुराल िालोोँ िे खिलाफ नहीं िी
थी और न मेरी लड़िी ने िी थी। मुझे नहीं मालूम
दि मेरी लड़िी िी हत्या दिस ताररि, दितने बजे
और िहाोँ पर हुई थी। .... अजीत ने ता० 20-072010 बताई थी। मैं ररश्तेिारो िे बताये अनुसार
िह रहा होँ दि मेरी लड़िी िी हत्या हो गई है। ......
यह िहना सही है दि मैं लड़िी िी हत्या होने िी
बात िूसरोोँ िे िहने पर बता रहा होँ।"

28. PW-3 Ramesh Chandra (Uncle)
says at page 5, "I cannot tell the date,
month or year of the panchayat. I did not
attend the panchayat. ...... The panchayat
was held on 19th June. The panchayat
included Kishan Lal, Amrit Lal, Sanjay,
Rajesh Pathak". Further he said that Asha
complained to him when she came in his
daughter's marriage but he admits that
there is no such deposition in his affidavit
and examination-in-chief. Such omission
falsifies his claim regarding complaint by
Asha Devi to him. No alleged member of
the panchayat was examined.

PW-4
has
not
deposed
about
panchayat. Thus, this Court concludes that
there was no demand of dowry and that no
panchayat was held in regard to dowry.

29. In the instant case, except charge
sheet, there is no other reliable, convincing
8 All. Ajeet Kumar Vs. State of U.P.
639
and acceptable evidence that Asha is not
alive and has been murdered for dowry or
for any other reason. Charge sheet itself is
no evidence to prove the guilt. The
Supreme Court in Standard Chartered
Bank vs. Andhra Bank Finance Services
Limited : (2006) 6 SCC 94 (Full Bench)
held that a charge sheet submitted by an
Investigating Officer under section 173(2)
Cr.P.C. is a public document within the
meaning of section 35 of the Evidence Act
but it does not imply that all that is stated in
the charge sheet is proved. All that can be
said is that it is proved that the police had
prepared a charge sheet in which some
allegations had been made against the
accused.

30. In this case, even the police was
not relying upon the allegations of PW-1
and PW-2. In this context, statement of
PW-6 - Constable Moharrir Shivraj Singh,
at page 2, is relevant where he deposed
that, "it is correct to say that the 'Special
Report' in this case was not sent to the
higher authorities as the incident of
abduction of Asha was suspicious. .........
Inspector had recorded my statement. I had
told the Inspector that due to the incident
being suspicious, 'Special Report' was not
sent".

31. It is also relevant that when the
accused were produced for remand under
sections 302 and 201 I.P.C., the remand
was
refused
by
the
Chief
Judicial
Magistrate and a case was registered
against the Investigating Officer which was
rejected by the Revisional Court and order
was sent to the superior authorities for
perusal and compliance.

32. Thus, it could be anyone's
conclusion
that
the
officers
who
investigated, only made a false charge and
that too because pretentiously they had to
submit the charge sheet.

33. Further when the death of Asha
itself was not certain on account of the fact
that the dead body was not found, then it
cannot again with certainty be said that the
deceased was actually killed.

34. This Court is aware of the fact
that recovery of the corpus is not necessary
for conviction as has been held in several
cases by the Supreme Court i.e. in Madhu
vs. State of Karnataka : 2014 (84) ACC
329 (SC); Prithipal Singh vs. State of
Punjab : 2012 (76) ACC 680 (SC); Mani
Kumar Thapa vs. State of Sikkim : AIR
2002 SC 2920; Lal Bahadur & Ors. vs.
State of (NCT of Delhi) : (2013) 4 SCC
557; Ram Gulam Chaudhary vs. State of
Bihar : 2001 (2) JIC 986 (SC) etc. but in
this case demand of dowry, torture,
planning to kill Asha, taking away the
alleged deceased by the accused from her
parental house and killing and throwing her
in canal, all have not been proved by direct
or circumstantial evidence.

35. In Satvir Singh vs. State of
Punjab : 2001 Cr.L.J. 4625, the Supreme
Court held that in order to prosecute the
accused under Section 304-B, there should
be perceptible nexus between death of the
deceased and torture or harassment caused
to her. In the case cited, there was no
evidence to show that the wife was
subjected to cruelty soon before she
attempted
to
commit
suicide.
The
conviction of the accused under Section
304-B/306 read with section 113-B of
Evidence Act, was therefore, set aside but
conviction under Section 498-A was
confirmed. The fine under Section 498-A
was enhanced to rupees one lac for all the
three accused.
640 INDIAN LAW REPORTS ALLAHABAD SERIES

36. The Supreme Court in Major
Singh & Anr. vs. State of Punjab : AIR
2015 SC 2081 held that in order to attract
conviction under Section 304-B of IPC the
prosecution should adduce evidence to
show that "soon before her death" the
deceased was subjected to cruelty or
harassment.
There
must
always
be
proximity and nexus between the effects of
cruelty based on dowry demand and the
resultant death.

37. In this case, the prosecution has
not also been able to prove the case beyond
reasonable doubt and to discharge its initial
burden. Therefore, a presumption under
section 113-B of the Indian Evidence Act
does not arise.

38. In Baijnath & Ors. vs. State of
Madhya Pradesh : (2017) 1 SCC 734, the
Supreme Court reiterated that mere factum
of unnatural death in matrimonial home
within seven years of marriage is not
sufficient to convict the accused under
Sections 304B/498A. It is only when
prosecution proves beyond doubt that the
deceased (wife of the accused) was
subjected
to
cruelty/harassment
in
connection with dowry demand soon before
her death, the presumption under Section
113-B of the Evidence Act, 1872 can be
invoked.

39. The Supreme Court in Arvind
Singh vs. State of Bihar : AIR 2001 SC
2124 observed that bride-burning and
dowry deaths are no doubt a menace to
society and need to be sternly dealt with
but at the same time it does not mean that
while dealing with such cases the Courts
should ignore the fundamental principles of
fair trial and hold the accused guilty on
mere probability or possibility of their
involvement in the offence.

40. Under such circumstances, the
judgment and order dated 25.1.2014 so far
as it convicts the appellant-Ajeet Kumar in
Criminal Appeal No.608 of 2014 cannot be
sustained in law and, therefore, is quashed
and set-aside. Also, we find that there is no
ground for reversing the judgment dated
25.1.2014 insofar as it had acquitted Yad
Pal and Veda Devi.

41. Criminal Appeal No.608 of 2014,
accordingly, stands allowed and Criminal
Appeal No.34 of 2019 stands dismissed.
The appellant of Criminal Appeal No.608
of 2014, who is in jail, may be released
forthwith, if he is not required in any other
criminal case.
----------
(2022) 8 ILRA 640
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.08.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 967 of 2008
with
Criminal Appeal No. 1078 of 2008
with
Criminal Appeal No. 1202 of 2008

Ram Sajeevan Yadav & Anr. ....Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
S.B. Singh, Sri Mohd. Mustafa Khan, Sri
Prabhakar Singh, Sri Shiv Shankar Singh

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Penal Code, 1860-
Sections 34, 302 & 304 - Part II- The
appellant, Kicchi @ Ram Surat, who was