# Ajit Kushwaha v. State of U.P

- **Citation:** (2024) 5 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** Criminal Appeal No. 3532 of 2019
- **Bench:** Ashwani Kumar Mishra, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajit-kushwaha-v-state-of-u-p-52040
- **Pages:** 11

## Headnote

Criminal Law-Indian Penal Code-1860Section s498-A, 304-B-Dowry Prohibition
Act-1961-Sections
3
&
4-The
Indian
Evidence Act, 1872- 113B-)- Criminal appeal
has been preferred against the Judgment and
Order of conviction whereby appellant sentenced
to undergo imprisonment for life-Deceased was
found lying on the bed, killed in a brutal manner
at
her
matrimonial
home
in
suspicious
circumstances-Essential ingredients which need
to be proved in order to attract the offence of
dowry death are proved-Incident of dowry death
proved relying on the presumption as to dowry
death against the appellant-Appellant in his
St.ment u/s 313 Cr.P.C. St.d that he was not
present in the house at the relevant point of time
and a benefit of plea of alibi should be given to
him but the appellant could not produce any
evidence or photograph of birthday celebration
nor the bus tickets round the trip-No credible
evidence is lead by the defence to prove that
accused had gone to attend the birthday party of
his sister's son-no reason disclosed as to why the
deceased had not joined the appellant-Sentence
of the appellant modified from life imprisonment
to 14 years imprisonment.

Appeal allowed. (E-15)

List of Cases cited:

## Text

5 All. Ajit Kushwaha Vs. State of U.P.
141
or petition is filed against this order and the
Hon'ble Supreme Court issues notice to
him. The appellant Pradeep Kumar
Verma is in jail and he shall be released
from custody forthwith unless he is
wanted in any other case, subject to the
condition that he shall file a fresh
personal bond and two sureties within a
period of three weeks from the date of
his
release
from
custody,
to
the
satisfaction of the trial Court under
Section 437-A Cr.P.C.

106. Let a copy of this
order/judgment and the original record
of the lower court be transmitted to the
trial court concerned forthwith for
necessary information and compliance.
The office is further directed to enter the
judgment
in
compliance
register
maintained for the purpose of the Court.
----------
(2024) 5 ILRA 141
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 3532 of 2019

Ajit Kushwaha ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:

Counsel for the Respondent:
G.A.

Criminal Law-Indian Penal Code-1860Section s498-A, 304-B-Dowry Prohibition
Act-1961-Sections
3
&
4-The
Indian
Evidence Act, 1872- 113B-)- Criminal appeal
has been preferred against the Judgment and
Order of conviction whereby appellant sentenced
to undergo imprisonment for life-Deceased was
found lying on the bed, killed in a brutal manner
at
her
matrimonial
home
in
suspicious
circumstances-Essential ingredients which need
to be proved in order to attract the offence of
dowry death are proved-Incident of dowry death
proved relying on the presumption as to dowry
death against the appellant-Appellant in his
St.ment u/s 313 Cr.P.C. St.d that he was not
present in the house at the relevant point of time
and a benefit of plea of alibi should be given to
him but the appellant could not produce any
evidence or photograph of birthday celebration
nor the bus tickets round the trip-No credible
evidence is lead by the defence to prove that
accused had gone to attend the birthday party of
his sister's son-no reason disclosed as to why the
deceased had not joined the appellant-Sentence
of the appellant modified from life imprisonment
to 14 years imprisonment.

Appeal allowed. (E-15)

List of Cases cited:

1. Bachani Devi & anr. Vs St. of Ha. (2011) 4
SCC 427

2. Binay Kumar Vs St. of Bihar (1997) 1 SCC 283
: JT (1996) 10 SC 79

3. Hem Chand Vs St. of Har. (1994) 6 SCC 727

4. G.VS Siddaramesh VS St. of Karn. (2010) 3
SCC 152

5. Kashmira Devi Vs The St. of Uttarakhand, AIR
2020 SC 652

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard learned counsel for the
appellant and learned A.G.A. for the State
and perused the record.

Narendra
Kumar,
Atharva
Dixit,
Dharmendra
Singh,
Kamlesh
Kumar
Tripathi ,Nitinjay Pandey, Raghuvansh
Misra
142 INDIAN LAW REPORTS ALLAHABAD SERIES
2. The present criminal appeal has
been preferred against the Judgement and
Order of conviction dated 13.03.2019
passed by Additional Sessions Judge, Court
No.15, Kanpur Nagar in Sessions Trial
No.361 of 2016 (State vs. Ajit Kushwaha)
arising out of Case Crime No.0023 of 2016,
Police Station Govind Nagar District
Kanpur whereby the appellant has been
convicted under Section 304B IPC and
sentenced to undergo imprisonment for life
and under Section 498-A IPC two years
simple imprisonment and a fine of Rs.5000/-
and in case of default in payment of fine a
further simple imprisonment of one month.
The appellant has further been convicted
under Section 3/4 of Dowry Prohibition Act
for two years simple imprisonment and fine
of Rs.2000/- and in case of default a further
simple imprisonment of 15 days. All the
sentences shall run concurrently. However,
the accused-appellant has been acquitted of
the charge under Section 302 IPC.

3. Shorn of unnecessary details, the
brief facts are as follows:

 On 18.01.2016 at 08:50 pm, the
first informant Kamal Sen Mehta lodged a
First Information Report bearing Case
Crime No. 23 of 2016, under Sections 498A,
304B IPC and Section 3/4 of Dowry
Prohibition Act at Police Station Govind
Nagar, District Kanpur Nagar against the
appellant Ajit Kushwaha and 11 others
alleging that the marriage of his youngest
daughter Pooja Kushwaha was solemnized
with Ajit Kushwaha on 31.05.2015. At the
time of marriage, sufficient dowry was
given but later on there was further demand
of dowry of cash Rs.5 lacs to run the
business and a car, which she often
disclosed to her family. She was kept under
starvation and was harassed. On 18.01.2016,
the first informant called his daughter on
telephone but there was no response. He
immediately went to her in-laws' place and
found the door to be locked. The concerned
police Station was informed, the Police
reached and opened the door and found his
daughter killed in a brutal manner. People in
the vicinity disclosed that they saw the inlaws fleeing from the spot. Hence, the First
Information Report was lodged.

4.

During
the
course
of
investigation, the inquest proceedings were
conducted in the presence of Naib Tehsildar
on 18.01.2016 at 10.00 P.M. and the body
was sent for autopsy. The post-mortem of
the deceased Pooja was conducted on
19.1.2016 at 1.55 P.M.

5. The investigation was conducted
and a Charge Sheet No. 85/2016 dated
17.04.2016 was submitted against accused
Ajit Kushwaha, Ram Lakhan Kushwaha,
Premwati Kushwaha and Sameer under
Sections 498-A, 304-B and 302 IPC and
Section 3/4 Dowry Prohibition Act. Rest
other co-accused were exonerated.

6. On 04.05.2016, the matter was
committed
by
the
learned
Chief
Metropolitan Magistrate, Kanpur Nagar to
the Court of Sessions for trial. On
18.05.2016, learned Trial Court framed the
charges against the accused Ajit Kushwaha,
Ram
Lakhan
Kushwaha,
Premwati
Kushwaha and Sameer under Sections 498A, 304-B IPC and Section 3⁄4 of the Dowry
Prohibition Act and alternatively under
Section 302 IPC.

7. The accused denied the charges
and claimed to be tried.

8. To establish the prosecution case,
total seven prosecution witnesses were
examined.
5 All. Ajit Kushwaha Vs. State of U.P.
143
9. P.W.1 Kamal Sen Mehta, the
father of the deceased in his examination-inchief deposed that Pooja Kushwaha was his
third daughter. Her traditional marriage
ceremony took place at Kashmir, Govind
Nagar at Kanpur Nagar on 31.05.2015 with
Ajit Kushwaha after giving sufficient
dowry. Just after the marriage, there was a
demand of dowry of cash Rs. 5 lacs and a
car. They even tortured and gave beatings to
his daughter and kept her under starvation.
Whenever she visited her parental house,
she used to disclose to her family members
about the harassment caused by her in-laws.
Before the traditional marriage ceremony,
his daughter and Ajit Kushwaha performed
the love marriage on 15.1.2015 at Arya
Samaj Temple. Subsequently, on being
pressurized by the close relatives, the
traditional
marriage
ceremony
was
organised on 31.05.2015. On 18.01.2016,
when he called his daughter Pooja
Kushwaha on her telephone, she did not
attend the call. Then he went to her in-laws
place where he found the door to be looked.
He informed the police, the police reached
the spot and got the door opened and saw
Pooja lying on bed and brutally killed.
Severe blows were found on the head and
face of the deceased. There was swelling on
the neck and blood was oozing out from the
face and nose. It seemed that she was
assaulted with heavy object and neck was
pressed in order to kill her. The local
residents informed that they saw the accused
running from the place of occurrence. The
said witness proved the written Tehrir and
inquest
report.
During
the
crossexamination he deposed that he used to run
a tailoring shop. His other daughter Monica
was a widow. He had three daughters, the
eldest one was Monica, then Sucheta Mehta
and the youngest was Pooja. The in-laws of
Sucheta lived nearby his house. Pooja used
to take tuition of 25-30 children and earned
Rs.35,000/-40,000/-. At the time of incident,
Ajit used to work at Reliance Company. He
further added that he was not happy with
Arya Samaj marriage of his daughter. After
the marriage, her in-laws demanded of cash
Rs. 5 lacks to run the business or a car.

10. P.W.2 Monica, the elder sister
of the deceased in her examination-in-chief
supported the version of the first informant.
Just before a week of the incident, her
parents and in-laws of the deceased went to
the Police Station Govind Nagar to settle the
matrimonial
dispute.
Thereafter
on
18.01.2016, her father received a call that
due to non-fulfilment of dowry demand,
Pooja had been killed by her in-laws. When
she reached at her in-laws place, she saw
Pooja lying dead on her bed and the blood
was oozing out from her nose and mouth.
There were injuries on her neck, cheek, lips
and other parts of the body. No family
members of her in-laws were present at the
spot. In her cross-examination, she asserted
the prosecution version.

11. P.W.3 Sarvjeet Mehta, the
elder brother of the deceased in his
examination-in-chief asserted the version of
his father and sister.

12. P.W.4 Rakesh Kumar, Nayab
Tehsildar who posted at Kanpur Nagar
proved the inquest proceedings of the
deceased Pooja. According to the opinion of
the Panchas, the deceased appeared to have
died due to throttling. The blood was oozing
out from the nose and mouth, there were
injuries on the left side of the neck and
contusion on the face.

13. P.W.5 Dr. Sangam Singh
Sachan, who was posted as Medical Officer,
at Community Health Centre, Kanpur
deposed that on the alleged date, he was on
144 INDIAN LAW REPORTS ALLAHABAD SERIES
duty at the post mortem house and had
conducted the autopsy According to the
post-mortem report, following ante-mortem
injuries were found on the body of the
deceased:

1. Contusion 12 x 4 cm left side
head above left ear.
2. Contusion 3 x 2 cm., back of head
over occipital region.

3. Laceration and contusions on
inner side of upper and lower lips inner side
4. Contusion 3 x 2 cm. left side of
cheek.

5. Contusion 4 x 2 cm. right side
face, 4 cm below angle of mouth right side.
6. Abraded contusion 13 x 4 cm.
front of neck.
 On dissection echymosis present
in subcutaneous area. Blood and blood clot
in neck tissues. Hyoid bone was fractured.
The cause of death was Asphyxia due antemortem throttling.

14. He deposed that the injury nos.
1 to 5 would have been caused with kicks
and fists and injury no. 6 must have been
caused due to throttling.

15. P.W.6 Constable Milan
Kumar in the examination-in-chief stated
that he was posted as CCTNS on 18.01.2016
at Police Station Govind Nagar. He proved
the Chik FIR (Exhibit Ka-9) which was
entered on the same day and Rapat No. 43 at
20:50 hours and also proved the GD Entry.

16. P.W.7 Vishal Pandey, the
Circle Officer/Investigating Officer stated in
his examination-in-chief that after lodging
of the FIR, he took over the investigation,
made a spot inspection, prepared the site
plan, recorded the statements of the
witnesses under Section 161 Cr.P.C.,
collected the inquest and the post mortem
report, recorded the statement of the accused
and arrested them on 22.01.2016. On
26.03.2016, he recorded the statement of
Monica, the sister of the deceased and
Sarvjeet Mehta, the brother of the deceased
and Udai Kumar, the witness of the inquest.
On 31.03.2016, he recorded the statement of
the other witnesses and on the basis of
incriminating material, he submitted the
charge sheet against the accused Ajit
Kushwaha,
Ram
Lakhan
Kushwaha,
Premwati
Kushwaha
and
Sameer
Kushwaha. He proved the site plan as
Exhibit Ka-1 and the charge sheet as Exhibit
Ka-12, which was in his hand writing and
signed by him.

17. After the prosecution evidence,
the statement of the accused were recorded
under Section 313 Cr.P.C. and three defence
witnesses were also examined, namely,
Manju Maurya, Parasu Ram and Vikram
Singh as DW-1, 2 and 3 respectively.

18. The accused in their statement
recorded under Section 313 Cr.P.C. stated
that the charge sheet was submitted on
incorrect facts. He stated that he solemnized
love marriage with the deceased and there
was no demand of dowry of cash Rs. 5 lacs
or a car nor she was harassed. It was an
intercaste love marriage against their
parent's will at Arya Samaj. His parents
used to live in the village while he and his
wife Pooja lived at Labour Colony, Dada
Nagar, Kanpur. Her friends visited to meet
her even after the marriage. On 17.01.2016,
he had to go to Lucknow to attend the
birthday celebration of his sister's son but
Pooja did not agree to accompany him, so he
went alone and returned back on the next
day and found her dead.

19. D.W.1 Manju Maurya was the
real sister of the accused Ajit Kushwaha
5 All. Ajit Kushwaha Vs. State of U.P.
145
who on oath stated that the birthday of her
son was celebrated on 17.1.2016 at
Lucknow
and
Ajit
also
joined
the
celebration and returned on the next date.
On 19.01.2016, she came to know that when
Ajit came to Lucknow to attend the function
on the same night, some unknown persons
killed Pooja by throttling her neck.

20. D.W.2 Parasu Ram who was
the Gram Pradhan of Village Damraas stated
that the co-accused Ram Lakhan used to live
in his village and looked after his agriculture
land. His younger son aided him in his work.
His wife too remained at the village while
Ajit Kushwaha his elder son used to live at
Dada Nagar Colony at Kanpur.

21. D.W.3 Vikram Singh in his
defence stated that he was an auto driver and
on 17.01.2016 at around 1:00 pm he went to
drop Ajit Kushwaha at the Bus Station,
while on the way Ajit disclosed that he was
going to Lucknow at his sister's house.

22. Having heard the learned counsel
for the appellant, learned A.G.A. for the
State and after perusal of the record, we find
that the prosecution witnesses have asserted
in their testimonies that the marriage of
Pooja was solemnised with Ajit Kushwaha
on 31.05.2015. The alleged incident took
place on 18.01.2016, which occurred within
seven years of the marriage. There was
demand of dowry of cash Rs.5 lacs to run the
business and a car.

23. As far as unnatural death of the
deceased
Pooja
Kushwaha
at
her
matrimonial home is concerned, it has been
stated by the prosecution witnesses that
when they reached her in-laws house, they
found the door to be locked. On information,
the local police reached the spot and opened
the door and found the dead body of Pooja
Kushwaha lying killed in a brutal manner. In
such circumstances, the deceased died an
unnatural death in suspicious circumstances
at her matrimonial home. The appellant in
his statement under Section 313 Cr.P.C.
stated on oath that on 17.01.2016, he went to
Lucknow to attend the birthday party of his
sister's son and returned back on 18.01.2016
and then came to know about the death of
his wife Pooja. P.W.-2 Monica, the sister of
the deceased in her examination-in-chief
deposed that a week before the incident, her
parents and the in-laws of Pooja went to the
police station for the settlement of the
matrimonial dispute which indicates that
there were estranged relationship between
them. According to the post mortem report,
six ante-mortem injuries were found on the
body of the deceased. The cause of death
was Asphyxia due to ante mortem throttling.
The hyoid bone was also found fractured.

24. While discussing about the
demand of dowry for business purpose etc.,
the Hon'ble Supreme Court in Bachani
Devi and another vs. State of Haryana
(2011) 4 SCC 427 has held that :

"If a demand for property or
valuable security directly or indirectly has
nexus with marriage such demand would
constitute demand for dowry. Cause or
reason for such demand is immaterial."

25. Dowry Demand as referred in
Section 304-B IPC which reads as under:

 " 304-B. 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
146 INDIAN LAW REPORTS ALLAHABAD SERIES
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 purposes 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
for a term which shall not be less than seven
years
but
which
may
extend
to
imprisonment for life."

26. The essential ingredients which
need to be proved in order to attract the
offence of dowry death is as follows:

 (i) Death is caused in unnatural
circumstances.

(ii) Death must have occurred
within seven years of the marriage of the
deceased.

(iii) It needs to be shown that soon
before her death, the deceased was
subjected to cruelty or harassment by her
husband or any relative of her husband for,
or in connection with, any demand for
dowry.

27. Coming to the first ingredient, the
post mortem report suggests that the
deceased died due to Asphyxia as a result of
ante-mortem throttling. There were six antemortem injures around the head and face.
The door was found locked and it could be
opened after the intervention of the Police
and the dead body of deceased was found
lying on the bed, killed in a brutal manner.
Therefore, it is proved beyond doubt that the
deceased died an unnatural death at her
matrimonial house.

28. The second ingredient is also
proved as the marriage between the
deceased and the appellant took place on
31.05.2015 and death of the deceased took
place on 18.01.2016 which is within seven
years of time frame.

29. The third ingredient was also
proved. From the perusal of record, it
transpires that P.W.1, P.W.2 and P.W.3 in
their testimony asserted that accused
appellant demanded cash Rs.5 lacs to run the
business and a car. Soon after the marriage,
she was subjected to harassment and was
kept under starvation. Whenever, she visited
her parental house she used to disclose the
atrocities caused to her at the matrimonial
house. A week before the incident, the
parties went to the police station for
settlement of the matrimonial dispute. Thus,
the deceased was subjected to harassment,
soon before her death in connection with the
dowry.

30. Section 113-B of the Evidence Act
raises a presumption against the accused
which reads as under:

"113-B. 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 had been subjected by
such person to cruelty or harassment for, or
in conn3ection with, any demand for dowry,
the court shall presume that such person had
caused the dowry death.
Explanation- For the purposes of
this section, 'dowry death' shall have the
same meaning as in Section 304-B of the
Indian Penal Code (45 of 1860)."

31. A reading of Section 113-B of
the Evidence Act shows that there must be
material to show that soon before the death
of woman, such woman was subjected to
cruelty or harassment for or in connection
5 All. Ajit Kushwaha Vs. State of U.P.
147
with demand of dowry, then only a
presumption can be drawn that a person has
committed the dowry death of a woman. It
is then up to the appellant to discharge this
presumption.

32. From the evidence as discussed
about the incident of dowry death has been
proved safely relying on the presumption as
to dowry death against the appellant.

33. An overall appreciation of the
evidence adduced, it is apparent that the
appellant in his statement under Section 313
Cr.P.C. stated that he was not present in the
house at the relevant point of time and a
benefit of plea of alibi should be given to
him. He claimed that he went to his sister's
house at Lucknow to celebrate the birthday
of his sister's son on 17.01.2016 and
returned back on 18.01.2016 and found his
wife killed in a brutal manner. But the
appellant could not produce any evidence or
photograph of birthday celebration nor the
bus tickets round the trip.

34. It is well settled law, when a
plea of alibi is taken by an accused, the
burden of proof is upon him to establish
the same by positive evidence after the
onus as regards the presence on the spot is
established by the prosecution. In this
context, it may be usefully reproduce a
few paragraph from the case of Binay
Kumar v. State of Bihar (1997) 1 SCC
283 : JT (1996) 10 SC 79 :

 "22. We must bear in mind that
an alibi is not an exception (special or
general) envisaged in the Penal Code,
1860 or any other law. It is only a rule of
evidence recognised in Section 11 of the
Evidence Act that facts which are
inconsistent with the fact in issue are
relevant. Illustration (a) given under the
provision is worth reproducing in this
context:

"The question is whether A
committed a crime at Calcutta on a certain
date; the fact that on that date, A was at
Lahore is relevant.

23. The Latin word alibi means
"elsewhere" and that word is used for
convenience when an accused takes
recourse to a defence line that when the
occurrence took place he was so far away
from the place of occurrence that it is
extremely improbable that he would have
participated in the crime. It is a basic law
that in a criminal case, in which the
accused is alleged to have inflicted
physical injury to another person, the
burden is on the prosecution to prove that
the accused was present at the scene and
has participated in the crime. The burden
would not be lessened by the mere fact that
the accused has adopted the defence of
alibi. The plea of the accused in such cases
need be considered only when the burden
has been discharged by the prosecution
satisfactorily. But once the prosecution
succeeds in discharging the burden it is
incumbent on the accused, who adopts
plea of alibi, to prove it with absolute
certainty so as to exclude the possibility of
his presence at the place of occurrence.
When the presence of the accused at the
scene of occurrence has been established
satisfactorily by the prosecution through
reliable evidence, normally the court would
be slow to believe any counter-evidence to
the effect that he was elsewhere when the
occurrence happened. But if the evidence
adduced by the accused is of such a quality
and of such a standard that the court may
entertain some reasonable doubt regarding
his presence at the scene when the
occurrence took place, the accused would,
no doubt, be entitled to the benefit of that
reasonable doubt. For that purpose, it
148 INDIAN LAW REPORTS ALLAHABAD SERIES
would be a sound proposition to be laid
down that, in such circumstances, the
burden on the accused is rather heavy. It
follows, therefore, that strict proof is
required for establishing the plea of alibi."

35. Applying the above principles
in the facts of this case, we find that no
credible evidence is lead by the defence to
prove that accused had gone to attend the
birthday party of his sister's son. No school
records are produced to show that the date of
birth of his sister's son was the day prior to
the incident. No independent witness was
produced to prove the appellant's presence
at Lucknow. There is no reason disclosed as
to why the deceased had not joined the
appellant. Taken cumulatively, we do not
consider the plea of alibi to be established by
the defence.

36. From the discussion above, it is
evident that all the three ingredients of
dowry death have been proved. The
marriage of the deceased took place on
31.05.2015 and the death of the deceased
took place on 18.01.2016, which is within
seven years of time frame. From the perusal
of the testimony of the prosecution
witnesses P.W.1, P.W.2 and P.W.3 who
have asserted that there was demand of
dowry of cash Rs. 5 lacs to run business and
a car which the deceased disclosed to her
family members whenever she visited her
parental
house.
Matrimonial
discord
between the deceased and her husband was
existing regarding which both the families
approached the police station for the
settlement of dispute. The deceased died an
unnatural death in suspicious circumstances
at her matrimonial home. Six ante-mortem
injuries were found on her face and neck.
The cause of death was Asphyxia due to
ante-mortem throttling. After the incident,
the house was found locked and after the
intervention of the police, the house was
opened where Pooja was found lying killed
in a brutal manner. Therefore, all the
ingredients of Section 304-B IPC have been
satisfied pointing towards the guilt of the
appellant.

37. Finally, coming to the question
of sentence, we find that the trial court had
awarded the life imprisonment to the
accused appellant Ajit Kushwaha under
Section 304-B IPC. Punishment under
Section 304-B IPC varies from seven years
to life imprisonment. When the court
proceeds to award maximum permissible
sentence for an offence, it is the cardinal
principle of law that reasons have to be
given
for
awarding
such
maximum
punishment. We do not find any such reason
given by the trial court. We otherwise find
that there are no circumstances which may
justify awarding of extreme punishment to
the accused appellant Ajit Kushwaha in the
facts of the present case. Considering the
evidence in his entirety, we are of the
considered view that punishment of life
under Section 304-B IPC to the accused
appellant Ajit Kushwaha is not warranted.

38. In Hem Chand Vs. State of
Haryana (1994) 6 SCC 727, the Supreme
Court has observed that though punishment
under Section 304-B varies from 7 years to
life but award of extreme punishment should
not be as a matter of course and must be
awarded in rare cases. In paras 7 and 8, the
Hon'ble the Supreme Court observed as
under:

"7. Now coming to the question of
sentence, it can be seen that Section 304-B
I.P.C. lays down that:
 "Whoever commits dowry death
shall be punished with imprisonment for a
term which shall not be less than seven years
5 All. Ajit Kushwaha Vs. State of U.P.
149
but which may extend to imprisonment for
life."

The point for consideration is
whether
the
extreme
punishment
of
imprisonment for life is warranted in the
instant case, A reading of Section 304-B
I.P.C., would show that when a question
arises whether a person has committed the
offence of dowry death of a woman that all
that is necessary is it should be shown that
soon before her unnatural death, which took
place within seven years of the marriage, the
deceased had been subjected, by such
person, to cruelty or harassment for or in
connection with demand for dowry. If that is
shown then the court shall presume that
such a person has caused the dowry death.
It can therefore be seen that irrespective of
the fact whether such person is directly
responsible for the death of the deceased or
not by virtue of the presumption, he is
deemed to have committed the dowry death
if there were such cruelty or harassment and
that if the unnatural death has occurred
within seven years from the date of
marriage. Likewise there is a presumption
under Section 113-B of the Evidence Act as
to the dowry death. It lays down that the
court shall presume that the person who has
subjected the deceased wife to cruelty before
her death shall presume to have caused the
dowry death if it is shown that before her
death, such woman had been subjected, by
the accused, to cruelty or harassment in
connection with any demand for dowry.
Practically this is the presumption that has
been incorporated in Section 304-B I.P.C.
also. It can therefore be seen that
irrespective of the fact whether the accused
has any direct connection With the death or
not, he shall be presumed to have committed
the dowry death provided the other
requirements mentioned above are satisfied.
In the instant case no doubt the prosecution
has proved that the deceased died an
unnatural
death
namely
due
to
strangulation, but there is no direct evidence
connecting the accused. It is also important
to note in this context that there is no charge
under Section 302 I.P.C. The trial court also
noted that there were two sets of medical
evidence on the file in respect of the death of
the deceased. Dr. Usha Rani, P.W. 6 and Dr.
Indu Latit, P.W. 7 gave one opinion.
According to them no injury was found on
the dead body and that the same was highly
decomposed. On the other hand, Dr. Dalbir
Singh, P.W. 13 who also examined the dead
body and gave his opinion, deposed that he
noticed some injuries at the time of re-post
mortem examination. Therefore at the most
it can be said that the prosecution proved
that it was an unnatural death in which case
also Section 304-B I.P.C. would be
attracted. But this aspect has certainly to be
taken into consideration in balancing the
sentence to be awarded to the accused. As a
matter of fact, the trial court only found that
the death was unnatural and the aspect of
cruelty has been established and therefore
the offences punishable under Sections 304B and 201 I.P.C. have been established. The
High Court in a very short judgment
concluded that it was fully proved that the
death of the deceased in her matrimonial
home was a dowry death otherwise than in
normal circumstances as a result of cruelty
meted out to her and therefore an offence
under Section 304-B I.P.C. was made out.
Coming to the sentence the High Court
pointed out that the accused-appellant was
a police employee and instead of checking
the crime he himself indulged therein and
precipitated in it and that bride killing cases
are on the increase and therefore a serious
view has to be taken. As mentioned above
Section
304-B
I.P.C.
only
raises
presumption and lays down that minimum
sentence should be seven years but it may
extend to imprisonment for life. Therefore
150 INDIAN LAW REPORTS ALLAHABAD SERIES
awarding
extreme
punishment
of
imprisonment for life should be in rare cases
and not in every case.

8. Hence, we are of the view that a
sentence of 10 years' R.I. would meet the
ends of justice. We, accordingly while
confirming the conviction of the appellant
under Section 304-B I.P.C. reduce the
sentence of imprisonment for life to 10
years' R.I. The other conviction and
sentence passed against the appellant are,
however, confirmed. In the result, the appeal
is
dismissed
subject
to
the
above
modification of sentence."

39. Recently in G.V. Siddaramesh
V. State of Karnataka (2010) 3 SCC 152,
Hon'ble Apex Court while allowing the
appeal filed by the accused only on the
question of sentence altered the sentence
from life term to 10 years on more or less
similar facts. Hon'ble H.L. Dattu, J. (as His
Lordship then was) speaking for the Bench
held as under: (SCC p. 160, para 31)

 "31. In conclusion, we are
satisfied that in the facts and circumstances
of the case, the appellant was rightly
convicted
under
Section 304-B
IPC.
However, his sentence of life imprisonment
imposed by the courts below appears to us
to be excessive. The appellant is a young
man and has already undergone 6 years of
imprisonment after being convicted by the
Additional Sessions Judge and the High
Court. We are of the view, in the facts and
circumstances of the case, that a sentence of
10 years' rigorous imprisonment would
meet the ends of justice. We, accordingly
while confirming the conviction of the
appellant under Section 304-B IPC, reduce
the sentence of imprisonment for life to 10
years' rigorous imprisonment. The other
conviction and sentence passed against the
appellant are confirmed."
40. In Kashmira Devi Vs. The
State of Uttarakhand, AIR 2020 SC 652,
the principle laid down in Hem Chand
(supra) has been reiterated and the court
observed in para 24:-

 "24. Having arrived at the above
conclusion the quantum of sentence requires
consideration. The High Court has awarded
life imprisonment to the appellant on being
convicted under Section 304-B IPC. The
minimum sentence provided is seven years
but it may extend to imprisonment for life. In
fact, this Court in the case of Hem Chand Vs.
State of Haryana (1994) 6 SCC 727 has held
that while imposing the sentence, awarding
extreme punishment of imprisonment for life
under Section 304-B IPC should be in rare
cases and not in every case. Though the
mitigating factor noticed in the said case
was different, in the instant case keeping in
view the age of the appellant and also the
contribution that would be required by her
to the family, while husband is also aged and
further taking into consideration all other
circumstances, the sentence as awarded by
the High Court to the appellant herein is
liable to be modified."

41. Applying the principle of law as
laid down in the aforementioned cases and
having regard to the totality of facts and
circumstances of this case, we are of the
considered opinion that the deceased has
been done to death on account of several
injuries caused to her. The homicidal death
has occurred just within an year of marriage.
Once the plea of alibi is discarded and the
presumption of Section 113-B is not
discharged, the appellant will have to be
awarded commensurate punishment in the
case. We therefore hold that the appellant is
liable
to
punishment
of
14
years
imprisonment, which shall meet the ends of
justice. Accordingly, we modify the
5 All. Matgulla @ Ajay Vs. State of U.P.
151
sentence of the appellant from life
imprisonment
to
that
of
14
years
imprisonment. In our view, this case does
not fall in the category of a 'rare case' so as
to award to the appellant life imprisonment
especially when the Trial Court has not
recorded any specific finding for acquittal
under Section 302 IPC.

42. In the light of the foregoing
discussion, the impugned judgment and
order of conviction dated 13.03.2019 passed
by Additional Sessions Judge, Court No.15,
Kanpur Nagar in Sessions Trial No. 361 of
2016 (State vs. Ajit Kushwaha), stands
modified.

43. The accused appellant Ajit
Kushwaha is in custody since 22.01.2016
and has remained in jail ever since then. The
actual period of incarceration undergone by
him is about more than eight years. We are
of the considered view that the sentence
awarded
to
accused
appellant
Ajit
Kushwaha under Section 304-B IPC be
modified to the sentence of 14 years
imprisonment. The fine and the default
sentence shall remain maintained. The
appellant Ajit Kushwaha shall serve out the
remaining sentence if not already served
provided he is not wanted in any other case.

44. In view of the above, the present
criminal appeal consequently succeeds and
is allowed in part to that extent.

45. The Trial Court records be
returned back and consigned to record.
----------
(2024) 5 ILRA 151
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3850 of 2019
Connected with
Criminal Appeal No. 3872 of 2019

Matgulla @ Ajay ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Kumar Ashutosh Srivastava

Counsel for the Respondent:
G.A.

Criminal Law-Indian Penal Code-1860Sections 302 r/w 34, 504-The Arms Act1959- Sections 4/25- Indian Evidence Act,
1872-Section 27- Criminal appeals against
judgment and order of conviction whereby the
accused appellants convicted and sentenced to
life imprisonment- The incident occurred at about
6.30 in the evening on 13.2.2016, it is alleged
that when the deceased objected to hurling of
abuses by the accused persons both the accused
stabbed the deceased-No specific role assigned
to any of the two accused-The injury report as
well as postmortem it is apparent that there was
a solitary stab wound caused to the deceased-
PW-1 has admitted that he has not seen the
incident- Presence of P.W-2 appears to be
doubtful, particularly as he neither tried to save
the injured nor took him to the hospital and was
also not the person, who lodged the report- The
absence of panchnama also shows that there
were no independent witnesses who had witness
the disclosure allegedly made by the accused-
The manner in which the knife (murder weapon)
is said to have been recovered on the pointing
out of the accused raises more questions than it
answers- Orders of conviction and sentence set
aside.

Appeal allowed. (E-15)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)