# Akhalesh Pal v. State of U.P

- **Citation:** (2021) 11 ILRA 949
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Criminal Appeal No. 1988 of 2019
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhalesh-pal-v-state-of-u-p-46684
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 498A & 304 B - Dowry Death-Prosecution
proved death within 7 years of marriage-Postmortemhanging-no conclusion -no evidence-for subjected to
cruelty soon before death-no presumption u/s 113-B
of Evidence Act could be raised-death cannot be
considered as dowry death-perverse finding by court
below-offence u/s 498-A IPC proved-Offence u/s 304B IPC not proved.

Appeal partly allowed. (E-9)
950 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

11 All. Akhalesh Pal Vs. State of U.P.
949
serious threats of crime and disharmony. It is
therefore, necessary to avoid undue leniency in
imposition of sentence. Thus, the criminal
justice jurisprudence adopted in the country is
not retributive but reformative and corrective. At
the same time, undue harshness should also be
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

24. Keeping in view the facts and
circumstances of the case and also keeping in view
criminal jurisprudence in our country which is
reformative and corrective and not retributive, this
Court considers that no accused person is
incapable of being reformed and therefore, all
measures should be applied to give them an
opportunity of reformation in order to bring them
in the social stream.

25. Since the learned counsel for the
appellant has not pressed the appeal on its merit,
however, after perusal of entire evidence on record
and judgment of the trial court, we consider that
the appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the appellant is
upheld.

26. As discussed above, 'reformative theory
of punishment' is to be adopted and for that reason,
it is necessary to impose punishment keeping in
view the 'doctrine of proportionality'. It appears
from perusal of impugned judgment that sentence
awarded by learned trial court for life term is very
harsh keeping in view the entirety of facts and
circumstances of the case and gravity of offence.
Hon'ble Apex Court, as discussed above, has held
that undue harshness should be avoided taking into
account the reformative approach underlying in
criminal justice system.

27. Learned AGA also admitted the fact that
appellant is languishing in jail for the last more
than 9 years and 9 months. Since, the appellant has
already served about 9 years and 9 months in jail,
ends of justice will be met if sentence is reduced to
the period already undergone.

28. Hence, the sentence awarded to the
appellant by the learned trial-court is modified as
period already undergone and the fine of
Rs.5,000/- and Rs.10,000/- imposed upon the
appellant is reduced to Rs.500/- and Rs.1000/-
respectively. In case of default of fine, the
appellant
shall
undergo
additional
simple
imprisonment of one month.

29. Accordingly, the appeal is partly
allowed with the modification of the sentence, as
above.
----------
(2021)12ILR A949
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1988 of 2019

Akhalesh Pal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Yogesh Kumar Srivastava, Sri Jai Singh
Parihar, Sri Noor Muhammad

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 498A & 304 B - Dowry Death-Prosecution
proved death within 7 years of marriage-Postmortemhanging-no conclusion -no evidence-for subjected to
cruelty soon before death-no presumption u/s 113-B
of Evidence Act could be raised-death cannot be
considered as dowry death-perverse finding by court
below-offence u/s 498-A IPC proved-Offence u/s 304B IPC not proved.

Appeal partly allowed. (E-9)
950 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Baljinder Kaur Vs St. of Pun., [2015 (1) JIC 71
(SC)]

2. Kamesh Panjiyar @ Kamlesh Panjiyar Vs St. of
Bihar [(2015) 2 SCC 388]

3. Baldev Singh Vs St. of Pun. [2009 (1) JIC 120 (SC)]
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by the
appellant-Akhalesh Pal against the judgment and
order passed by Additional Sessions Judge,
Court No. 6, Jhansi, dated 30.10.2018 in S.T.
No. 65 of 2016 (State v. Akhilesh Pal and
others) arising out of Case Crime No.272/2015
under Section 498-A, 304-B, 302 IPC and under
Section 3/4 Dowry Prohibition Act, 1961 (herein
after referred to as 'DP Act, 1961') Police
Station-Garotha, District-Jhansi, by which the
appellant was convicted under Section 498-A,
304-B IPC and Section 4 of DP Act, 1961, and
sentenced only under Section 304-B IPC for 7
years and under Section 4 of DP Act, 1961, for 6
months along with fine of Rs.1,000/-

2. Brief facts of the case are that the
complainant-Thakur Das Pal submitted a report
in Kotwali Garotha on 11.12.2015 with the
averments that his daughter-Kaushal was
married to Akhilesh Pal S/o Kallu Pal R/o
Village-Khadaura, PS-Garotha, before 4 years.
He had given dowry worth Rs.2 lakhs in the
marriage, but his daughter's husband, namely,
Akhilesh Pal (appellant), Father-in-law-Kallu
Pal, Mother-in-law - Smt Valku and Nanad -Smt
Urmila
were
not
satisfied.
They
started
demanding Rs.1,00,000/- as additional dowry
and started torturing and beating her for nonfulfillment of above demand. In the morning of
11.12.2015, complainant came to know that all
above mentioned persons have killed his
daughter for non-fulfillment of demand of
additional dowry.

3. On this report the Case Crime No. 272
of 2015 was registered against the aforesaid
persons and after investigation, charge-sheet was
submitted against Akhilesh Pal, Kallu and Smt.
Balku under Section 498-A, 304-B and Section
3⁄4 DP Act, 1961. After completion of trial,
learned trial court acquitted Kallu and Smt.
Balku of all charges levelled against them and
convicted Akhilesh Pal and sentenced him as
aforesaid. Hence, this Appeal.

4. Heard Sri Jai Singh Parihar, learned
counsel for the appellant and learned AGA for
the State.

5. Learned counsel for the appellant, first
of all, submitted that prosecution could not
prove when the marriage of deceased took place
because no date of marriage is given in First
Information Report and prosecution witnesses
also did not tell the date of marriage. It is written
in the FIR that marriage was solemnized before
4 years but no date is given. It is also submitted
that no marriage invitation card is produced by
complainant rather a 'letter of thanks' was
submitted which is only a photostat copy and not
the original. Hence, photostat copy is not
permissible in evidence. It is next submitted by
learned counsel that as per the FIR, one Pappu
had informed the first informant regarding the
death of his daughter-Kaushal. The complainant
(PW1) has said that Pappu, resident of his
village, told him that his daughter has been
hanged. PW 3 is mother of the deceased. She has
also stated in his statement that Pappu Mishra
has informed them regarding the death of the
deceased, but this Pappu is not at all produced
by the prosecution in evidence.

6. Learned counsel for the appellant argued
emphatically that prosecution has not produced
any evidence regarding the fact that 'soon before
her death' she was subjected to cruelty or
harassment in connection with demand of
dowry. PW1 is the father of the deceased and
11 All. Akhalesh Pal Vs. State of U.P.
951
PW3 is the mother of the deceased. Only these
two witnesses of fact are produced, but none of
them has uttered even a single word regarding
the fact that soon before her death, the deceased
was subjected to cruelty.

7. Learned counsel for the appellant
argued that it was a case of hanging. The
deceased committed suicide by hanging herself.
The reason behind the suicide was that
deceased
was
having
ailment
regarding
'periods', and she was 'issue-less'. Appellant,
the husband of the deceased, undertook the
treatment of deceased. She was treated by
Dr.Manju and Dr.Manju has been produced by
defence as DW1. She has stated in her
statement that deceased was issue-less and she
had treated her. Deceased used to come with
her husband-Akhalesh Pal for her treatment.
The doctor in her statement has proved the
medical papers of treatment. Hence, the
appellant has proved the fact that deceased was
issue-less and appellant kept her under
treatment. Learned counsel also submitted that
Beni (DW2) is produced by defence. She has
stated in her statement that at the time of
occurrence, the door of the room in which the
deceased committed suicide, was locked from
inside and people, gathered there, had broken
the door. Dr.Udal Srivas conducted the
postmortem of the deceased. He has also stated
in his statement that there was no antemortem
injury on the body of the deceased and it was
possible that she had hanged herself. Learned
counsel argued that there is ample evidence on
record that the deceased committed suicide for
being issue-less and appellant is not at all
responsible for her death. It is also submitted
that first information report of this case was
registered by the police on mounting pressure
created by Smt.Uma Bharti (the then Member
of Parliament). This fact is admitted by
complainant (PW1) in his statement before
learned trial court. Hence, appellant is wrongly
convicted and appeal be allowed.

8. Learned AGA, per contra, argued that
this fact is not disputed that deceased died
within seven years of her marriage. In the FIR
itself, the complainant, who is father of the
deceased has clearly stated that the marriage of
his daughter-Kaushal was solemnized before
four years. Learned AGA submitted that it is not
necessary to show the exact date of marriage. It
is sufficient if the complainant is stating that
marriage was solemnized before four years
because complainant is the father of the
deceased and he is the best person to tell this
fact. Apart from it, letter of thanks, which is
given after marriage, is produced before trial
court and is proved as Ex.ka2. Date of marriage
is written in that letter as 30.4.2012.

9. Learned AGA also aruged that there was
consistent demand of Rs.1 lakh as additional
dowry from deceased and her parents and
prosecution witnesses (PW1 and PW3), both
have stated in their statements that appellant and
his family members used to demand Rs.1 lakh as
additional dowry and for not meeting out the
demand, the deceased was tortured and harassed
by them. Learned AGA also submitted that in
postmortem report, there is antemortem injury
on the 'index-finger' of the deceased. Therefore,
learned trial court has rightly convicted and
sentenced the appellant. Hence, appeal be
dismissed.

10. First of all, appellant has disputed the
fact that the death of the deceased took place
within or beyond seven years of her marriage.
In this regard, appellant has submitted that no
date of marriage is mentioned in the FIR nor
any 'invitation-card' of marriage is produced.
Yet, I am not convinced with this argument of
counsel for the appellant because in FIR itself,
the complainant, who is the father of the
deceased has specifically stated that the
marriage of his daughter was solemnized with
appellant before four years from the date of
lodging the FIR. Complainant is produced as
952 INDIAN LAW REPORTS ALLAHABAD SERIES
PW1 before trial court approximately after one
and half years of lodging the FIR and in his
statement, he has stated that marriage was
solemnized before five years. It also coincides
with the fact that the marriage took place
before four years of lodging the FIR. It is
pertinent to mention that the appellant was the
husband of the deceased and if he is disputing
the fact of date of marriage, he could tell some
date of marriage in rebuttal, but no date or
year of the marriage is told by appellant
because the factum of marriage was also in the
knowledge of the appellant and if marriage
was not solemnized within seven years of
death of the deceased, it was incumbent upon
the appellant to show any other date of
marriage, but nothing is done, therefore,
considering the evidence on this point in its
entirety, prosecution has proved that deceased
died within seven years of her marriage. As
far as the question of non-production of
Pappu, who informed the complainant about
the death of his daughter is concerned, it does
not make any difference because it is not
important, who informed the complainant and
informer is not produced in evidence because
charge-sheet
was
submitted
by
the
Investigating Officer after investigation and
trial court after considering the evidence on
record, convicted him. It is the case of demand
of dowry and harassment in pursuance thereof.
Pappu was not the person to prove the demand
of additional dowry and harassment, so if he is
not produced in evidence, it does not affect the
prosecution case adversely.

11. Learned AGA has submitted that in
postmortem report, there was antemortem injury
on the 'index-finger' of the deceased, but this
injury is only an abrasion for which the doctor,
while conducting the postmortem, has opined
that this injury could not inflicted in taking the
body on the floor. From postmortem report and
the statement of the doctor (PW5), it is proved
that it was a case of hanging.

12. Learned counsel for the appellant
pressed the argument that there is no evidence
on the point that soon before her death, the
deceased was subjected to cruelty or harassment
in connection with demand of dowry and in
absence of this evidence, the death of the
deceased cannot be deemed as dowry-death and
no presumption in this regard can be raised by
the court. This argument of appellant is legally
correct. It is relevant to quote the provisions of
Section 304-B IPC, which reads as under:

"Section 304B in The Indian Penal
Code -(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 for a term
which shall not be less than seven years but
which may extend to imprisonment for life."

13. Section 113-B of the Indian Evidence
Act is also relevant for the case in hand, which
reads as under:

"Section
113B
in
The
Indian
Evidence Act, 1872-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
11 All. Akhalesh Pal Vs. State of U.P.
953
that such person had caused the dowry death.
Explanation.--For the purposes of this section,
"dowry death" shall have the same meaning as
in section 304B, of the Indian Penal Code, (45 of
1860)."

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

i) death is caused in unnatural
circumstances

ii) death must have been 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.

Coming to the first ingredient, the
postmortem report suggests that the body of the
deceased was bearing the mark of hanging.
There was ligature mark on the neck of the
deceased measuring 25 cm. x 1.2 cm. Hence,
there is no doubt that the death was an unnatural
death. The second ingredient is also proved as
discussed above that the death of the deceased
took place within seven years of her marriage.
To prove the third ingredient, this Court needs to
peruse the testimony of the witnesses. In this
regard, the prosecution has produced father and
mother of the deceased as PW1 and PW3
respectively. There is not even a single word in
the testimony of PW1 and PW3 as to when soon
before her death, the deceased was subjected to
cruelty or harassment for or in connection with
demand of dowry. There is no iota of evidence
on this point in the statements of PW1 and PW3.
Rather PW3, the mother of the deceased, has
stated in her examination-in-chief that her
daughter remained in her parental home for
about one year. After that she had gone to her
matrimonial home with her husband-Akhalesh
Pal and Raju and after that she remained in her
matrimonial home for nine months, but PW1 has
not stated at all that during that period of nine
months, deceased was ever subjected to cruelty
or harassment regarding demand of dowry. So,
both the relevant witnesses, namely, PW1 and
PW3 have not uttered even a single word
regarding third ingredient of harassment or
cruelty soon before her death in connection with
demand of dowry.

15. Section 113-B of the Indian Evidence
Act raises a presumption against accused
regarding the death. A perusal of Section 113-B
of the Act shows that there must be material to
show that soon before her death of a woman, she
was subjected to cruelty or harassment for or in
connection with demand of dowry, then only a
presumption can be drawn that a person has
committed the dowry-death of a women. It is
then up to the appellant to discharge this
presumption.

16. Learned trial court has not considered
the ingredient regarding cruelty or harassment of
the deceased soon before her death. Learned trial
court has observed that on the basis of evidence
on record, it is told by witnesses that it was
marriage in the year 2012 and Rs.1 lakh as
additional dowry was demanded. If evidence is
considered believable to this extent then the
offence is proved only against the appellanthusband and the appellant held guilty by the trial
court. Trial court has reached to the conclusion
of committing dowry-death of the deceased by
her husband-Akhalesh Pal without having any
evidence on record as to when she was soon
before her death subjected to cruelty or
harassment in connection with demand of
dowry. The evidence on this point is absolutely
silent. Hence, no presumption of Section 113-B
of the Indian Evidence Act could be raised nor
the death of the deceased could be considered as
dowry-death as provided under Section 304-B
IPC. Learned trial court wrongly appreciated the
evidence in this regard.
954 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Hon'ble Apex Court in Baljinder Kaur
vs. State of Punjab, [2015 (1) JIC 71 (SC)] has
held that there must be proximate and live link
between the effect of cruelty based on demand
of dowry and the death of the victim. It is also
said by the Hon'ble Apex Court that "soon
before death" is a relative term and no straight
jacket formula can be laid down fixing any time
limit. The determination of the period, which
can come within the term "soon before death" is
left to be determined by the courts depending
upon the facts and circumstances of each case.

18. The same view was expressed by
Hon'ble Supreme Court in Kamesh Panjiyar @
Kamlesh Panjiyar vs. State of Bihar [(2015) 2
SCC 388] and Baldev Singh vs. State of Punjab
[2009 (1) JIC 120 (SC)].

19. In the present case, it is most relevant
to highlight that the trial court did not give any
finding on the point of "soon before death" as
discussed above. Not even a single word is
found in evidence of PW1 and PW3 in this
regard and not even a single word is written by
the trial court on above point yet trial court
reached to the conclusion that appellant has
committed dowry-death. No reason is disclosed
by trial court as to how it framed its opinion
regarding dowry-death more especially when the
factum of cruelty or harassment to the deceased
soon before her death is not established at all
and evidence in this regard is absolutely
missing.

20. Hence, trial court has not appreciated
the evidence on right perspective and has given
perverse finding.

21. With above discussion, I am of the
considered view that offence under Section 304B IPC is not proved against the appellant, but on
the basis of evidence on record, the offences
under Section 498-A IPC and Section 4 of the
DP Act, 1961, are proved. Learned trial court
has not passed any sentence under Section 498A IPC due to the reason given by the trial court
that no separate sentence will be passed under
Section 498-A IPC when sentence is being
passed under Section 304-B IPC. But, now since
appellant is not found guilty for the offence
under Section 304-B IPC, it is necessary to pass
sentence for the offence under Section 498-A
IPC. Consequently, the appellant is awarded
sentence under Section 498-A IPC for three
years and Rs.5,000/- as fine. The appellant shall
undergo three months imprisonment in default
of fine. The sentence passed by trial court under
Section 4 of DP Act, 1961, needs no
interference.

22. The conviction and sentence of
appellant under Section 304-B IPC is hereby set
aside and appeal is liable to be partly allowed.

23. The appeal is partly allowed in
aforesaid terms.

24. The copy of this judgment and lower
court record be transmitted to trial court for
ensuring compliance. If the appellant has already
undergone the modified sentence and is not
wanted in any other case, he shall be released,
forthwith.
----------
(2021)12ILR A954
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.12.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MANISH KUMAR, J.

Criminal Appeal No. 2104 of 2007
And
Criminal Appeal No. 2078 of 2007

Ashwani Kumar ...Appellant
Versus
State of U.P. ...Respondent