# Akhilesh Kumar Mishra v. State of U.P

- **Citation:** (2024) 3 ILRA 1572
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-04
- **Case number:** Criminal Appeal No. 472 of 2001
- **Bench:** Siddharth, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-mishra-v-state-of-u-p-51547
- **Pages:** 9

## Headnote

(A) Criminal Law - Dowry Death - Indian
Penal Code, 1860 - Sections 304-B, 498-A
- Indian Evidence Act, 1872 - Section 106,
113-B - Presumption of dowry death -
Cruelty and harassment for dowry -
Negative viscera report - Benefit of doubt
- Once cruelty or harassment related to
dowry is established prior to the death of
a woman within 7 years of marriage, the
presumption
of
dowry
death
under
Section 304-B IPC read with Section 113B Evidence Act is attracted - Benefit of
negative
viscera
report
cannot
be
extended to the accused persons. (Para -
15, 16, 20, 22)

Deceased was married to appellant - accused
demanded dowry from deceased's family -
cruelty and harassment - died under suspicious
circumstances within seven years of marriage -
deceased and her husband residing separately
from accused at the time of death - viscera
report did not conclusively determine cause of
death - Whether the accused can be convicted
of dowry death under Section 304-B IPC, even if
the
exact
cause
of
death
is
not
ascertained.(Para 3-10 ,22)

HELD: - Deceased constituted a dowry death
under Section 304-B IPC, thereby invoking the
presumption under Section 113-B of the
Evidence Act against the accused persons. (Para
-15,16,22)

 Criminal
Appeal
No.
472
of
2001:
Conviction of appellant upheld with a reduction
in sentence from life imprisonment to 10 years
rigorous imprisonment, taking into account
mitigating factors.

Criminal Appeal No. 118 of 2001: Coaccused's were acquitted due to insufficient
evidence of harassment or dowry demands after
the couple's separation. Apellant extended
benefit of doubt and acquitted of all charges.
(Para - 23,26)
 Criminal Appeal No. 472 of 2001 partly
allowed.

Criminal Appeal No. 118 of 2001 allowed.
(E-7)

LIST OF CASES CITED: -

## Text

1572 INDIAN LAW REPORTS ALLAHABAD SERIES
statement recorded under Section 313
Cr.P.C. Apparently, the accused was not
given opportunity to explain this vital
circumstance.
Recording
of
statement
under Section 313 of the Cr.P.C. is not an
empty formality during trial.

73. We may note that considering the
importance of statement under Section 313
of Cr.P.C., Sub-clause (5) has been added in
Section 313 by amendment which permits
the court to take help of prosecution and
defence in preparing relevant questions
which are put to the accused. One of the
reasons for such amendment was to see that
Court
should
not miss
putting any
incriminating circumstance to the accused
while recording his statement.

74. In the result, the finding of guilt
based on the written dying declaration for
this reason alone would not sustain apart
from the other reasons which we have
recorded above. In the result, we hold that
the dying declaration was not trustworthy
and reliable.
75. To summarise we hold that, the
evidence on the point of dying declaration
does not inspire confidence and it cannot be
relied upon. There is no reliable evidence to
satisfy the judicial mind that the deceased
was conscious and mentally fit at the time
of giving her statement. Rather, the genesis
of the case i.e. recording the statement of
deceased itself becomes doubtful. From the
material on record, we are absolutely not
satisfied about the truthfulness of the
voluntary nature of the dying declaration
and the fitness of the mind of the deceased.
In the aforesaid facts and circumstances,
we find and hold that the prosecution failed
to substantiate the charges levelled against
the appellants beyond all reasonable doubt
by adducing consistent, cogent and reliable
evidence. If dying declaration is excluded,
nothing remains in the prosecution case,
therefore the appellants are legitimately
entitled to avail the benefit of doubt.
Hence, the impugned judgment and order
of conviction passed by learned Additional
Sessions Judge, Court No.4, Maharajganj
could not withstand the legal position and
requires to be reversed by acquitting the
appellants from charges levelled against
them. Consequently, the appeal deserves to
be allowed by setting aside the impugned
judgment and order of conviction.

In view of the above:-

(I) The appeal stands allowed.

(II) The judgment and order of
conviction dated 31.07.2014 passed by
Additional Sessions Judge, Court No.4,
Maharajganj stands quashed and is set
aside consequently, the sentence awarded
on 25.08.2014 is also set aside.

(III)
The
accused-appellants,
Radhey Jaiswal, Munna Jaiswal and Sita
Devi
are
acquitted
of
the
offence
punishable under Section 302 of IPC.

(IV) The appellants be released
from jail forthwith, if not required in any
other offence.

(V) The amount of fine, if
deposited, be refunded to the appellants.
----------
(2024) 3 ILRA 1572
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2024

BEFORE

THE HON'BLE SIDDHARTH , J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 472 of 2001
with
Criminal Appeal No. 118 of 2001

Akhilesh Kumar Mishra ...Appellant
Versus
State of U.P. ...Respondent
3 All. Akhilesh Kumar Mishra Vs. State of U.P.
1573
Counsel for the Appellant:
Sri Sarvesh, Sri Ram Singh Kushwaha, Sri Ankit
Shukla, Sri Anoop Trivedi (Sr. Advocate)

Counsel for the Respondent:
G.A.

(A) Criminal Law - Dowry Death - Indian
Penal Code, 1860 - Sections 304-B, 498-A
- Indian Evidence Act, 1872 - Section 106,
113-B - Presumption of dowry death -
Cruelty and harassment for dowry -
Negative viscera report - Benefit of doubt
- Once cruelty or harassment related to
dowry is established prior to the death of
a woman within 7 years of marriage, the
presumption
of
dowry
death
under
Section 304-B IPC read with Section 113B Evidence Act is attracted - Benefit of
negative
viscera
report
cannot
be
extended to the accused persons. (Para -
15, 16, 20, 22)

Deceased was married to appellant - accused
demanded dowry from deceased's family -
cruelty and harassment - died under suspicious
circumstances within seven years of marriage -
deceased and her husband residing separately
from accused at the time of death - viscera
report did not conclusively determine cause of
death - Whether the accused can be convicted
of dowry death under Section 304-B IPC, even if
the
exact
cause
of
death
is
not
ascertained.(Para 3-10 ,22)

HELD: - Deceased constituted a dowry death
under Section 304-B IPC, thereby invoking the
presumption under Section 113-B of the
Evidence Act against the accused persons. (Para
-15,16,22)

 Criminal
Appeal
No.
472
of
2001:
Conviction of appellant upheld with a reduction
in sentence from life imprisonment to 10 years
rigorous imprisonment, taking into account
mitigating factors.

Criminal Appeal No. 118 of 2001: Coaccused's were acquitted due to insufficient
evidence of harassment or dowry demands after
the couple's separation. Apellant extended
benefit of doubt and acquitted of all charges.
(Para - 23,26)
 Criminal Appeal No. 472 of 2001 partly
allowed.

Criminal Appeal No. 118 of 2001 allowed.
(E-7)

LIST OF CASES CITED: -

1. Sandeep Kumar Vs St. of Uttrakhand, AIR
2021 SC 491

2. Buddhadeb Saha & Ors. Vs St. of Bengal,
2023 SCC Online SC 1457

3. Devendra Singh & Ors. Vs St. of Uttrakhand,
2022(2) Crimes 277 (SC.

4. Bhupendra Vs St. of M.P., (2013) 4 Crimes
480 (Supreme Court)

(Delivered by Hon'ble Siddharth, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Counsel assisted by Sri Ram Singh
Kushwaha and Sri Ankit Shukla, learned
counsels for the appellant and learned
A.G.A for the State.

2. Above criminal appeals have been
preferred against the judgment and order
dated
12.01.2001
passed
by
VIIth
Additional Sessions Judge, Kanpur Nagar,
in Session Trial No. 960 of 1995 by which
the appellant, Akhilesh Kumar Mishra, has
been convicted and sentenced for life under
Section 304-B IPC, while appellants, Smt.
Meera Jha and Jagdanand Jha, have been
convicted and sentenced to 8 years rigorous
imprisonment. All the appellants have been
convicted and sentenced under Section
498-A
IPC
for
2
years
rigorous
imprisonment and under Section 4 of D.P.
Act to undergo rigorous imprisonment for
one year. The appellants are acquitted of
alternative charge under Section 302 IPC.

3. Prosecution case is that informant,
Shyam Shanker Mishra, married his
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
daughter, Sudha, three years ago to the
accused, Akhilesh Kumar Mishra. Rs.
51,000/- was given in cash and other goods
were given in dowry but accused, Akhilesh
Kumar
Mishra,
was
demanding
a
motorcycle and a plot and was threatening
to kill his daughter. Akhilesh Kumar
Mishra and his Fufa, Jagdanand Jha, also
used to come and threaten him. On
19.07.1994 at 6:00 p.m informant came to
know that the accused, Akhilesh Kumar
Mishra, his Fufa, Jagdanand Jha and Bua,
Meera Jha, have murdered his daughter,
Sudha and have ran away leaving her dead
body behind. FIR dated 19.07.1994 was
lodged on 20:55 registered at Police
Station- Kakadev.

4. After committal, charges were
framed under Sections 498-A/304-B IPC
and alternative charges under Section 302
IPC and Section 4 of Dowry Prohibition
Act were framed against accused persons.

5. Before the trial court, informant
was examined as P.W.-1. His wife, Smt.
Gambhira Devi, was examined as P.W.-2.
Abdul Haq, was examined as P.W-3. Dr.
D.K. Vaish, who conducted the postmortem of dead body of the deceased was
examined as P.W.-4. Milap Singh, Deputy
Superintendent of Police, was examined as
P.W.-5.

6. P.W.-1 stated in his statement
before the trial court that he is resident of
Bihar and is residing at Kanpur for last 14
years. He had one daughter, Sudha, the
deceased, another daughter, Vinita and two
sons, Ashutosh and Nyaytosh, and is wife is
P.W.-2. Accused, Akhilesh Kumar Mishra,
was residing with his Fufa, Jagdanand Jha
and Bua, Meera Jha. They also belong to
Bihar. He saw accused, Akhilesh Kumar
Mishra, in the house of Jagdanand Jha and
in the presence of accused, Jagdanand Jha
and Smt. Meera Jha, demand of Rs.
51,000/- as dowry was made and they
agreed to the marriage of accused, Akhilesh
Kumar Mishra, with his daughter, Sudha.
He paid Rs. 8,000/- for making jewellery to
the accused, Akhilesh Kumar Mishra and
Rs. 25,000/- for expenses of marriage.
After marriage the accused persons started
demanding a motorcycle and also a plot of
land. They started abusing the daughter of
P.W.-1 and took away her clothes and
jewellery. He went to meet his daughter but
he was not allowed to meet her. Therefore,
he lodged a complaint at Police Station-
Kakadev, District- Kanpur Nagar. Accused,
Jagdanand Jha, is working in UPSIDC and
was
quite
influenced.
Police
got
a
compromise entered between the parties
recorded at Police Station. Both the parties
put their signatures thereon. Whenever,
accused, Akhilesh Kumar Mishra, came to
his house he demanded money. One and a
half months prior to death of Sudha,
Akhilesh Kumar Mishra, started living
separately from her Bua and Fufa with the
deceased. 10-12 days thereafter one bengali
lady informed him that Sudha is ill. He
went their to see her. Akhilesh Kumar
Mishra
again
started
talking
about
motorcycle and after reprimanding him he
took Sudha to Dr. Devendra Kaur who
informed that Sudha is pregnant and not ill.
She is not getting sufficient food to eat.
After 7-8 days one vegetable vendor
informed that Sudha is ill. The informant,
P.W.-1m reached the house of accused,
Akhilesh Kumar Mishra and found his
daughter lying dead. Her entire body had
turned blue. He lodged the FIR before the
police station in Bihari language and its
translation has been filed before this court.
He cremated his daughter but none of the
accused joined the last rites of the
deceased. Accused persons threatened him
3 All. Akhilesh Kumar Mishra Vs. State of U.P.
1575
of withdrawing the case. P.W.-1 lodged a
case against younger brother of Akhilesh
Kumar Mishra, Kailash. Thereafter he
lodged a complaint against accused,
Jagdanand Jha, since he got his younger
son, Nyaytosh abducted. Both the reports
have been filed before the Court in
evidence.

7. P.W.-2, Smt. Gambhira Devi,
mother of deceased, proved that amount of
Rs. 51,000/- was demanded by the accused
person as dowry. They came to see her
daughter and she welcomed them and gave
them clothes, Rs. 1100/- was given in
engagement and Rs. 51/- was given to
accused, Jagdanand Jha. After 20 days,
father of accused, Akhilesh Kumar Mishra,
came and gave saaree and blouse to Sudha
and Rs. 101/- in cash. Accused, Jagdanad
Jha, demanded Rs. 8000/- for jewellery
which she gave him in the presence of his
wife. Again Jagdanand and Akhilesh
Kumar demanded money. After sometime
she gave them Rs. 5,000/-. After the
marriage, accused persons, Jagdanand Jha
and Akhilesh Kumar Mishra, came to her
house and demanded motorcycle and a plot
of land as precondition for taking Sudha to
their house. When she refused to give
motorcycle and plot, they abused her and
Akhilesh Kumar Mishra also beated her.
Accused persons used to beat her daughter
and did not gave her food. When her
daughter was 10 months pregnant, accused,
Akhilesh Kumar Mishra, dropped her in her
house where she gave birth to a female
child. Akhilesh Kumar Mishra, refused to
keep the female child and asked Sudha to
kill her. After one month and 22 days he
came and took her daughter and granddaughter back. After killing her granddaughter, he threw her on her door while
her daughter was weeping outside. The
doctor saw her grand-daughter and opined
that she has been administered poison,
hence she has died. Thereafter she used to
go to meet her daughter and the deceased.
She was ill and taken to Guru Nanak
Hospital. The doctor informed that she is
pregnant and not getting sufficient food.
Accused, Akhilesh Kumar Mishra, used to
fight with her daughter. After coming to
know of her death when she went to her
matrimonial home and asked the accused
person how she has died, they pleaded
ignorance.

8. P.W.-3, Abdul Haq, was although
declared hostile but he proved the fact that
there was dispute between the parties
regarding demand of dowry.

9. P.W.-4, Dr. K.K. Vaish, who
performed post-mortem of the body of
deceased, was examined before the trial
court. He stated before the court that cause
of death of deceased was not ascertained
and therefore her viscera was preserved. He
admitted that in the medical examination of
viscera poison was not detected. He proved
the post-mortem report before the court.
The aforesaid witness was recalled but he
only stated that he could not ascertain the
cause of death of the deceased and
therefore viscera was preserved.

10. P.W.-5, Investigating Officer,
proved the investigation record and the
statements of witnesses recorded by him.
Statement of P.W.-6, Sub-Inspector was
also recorded. Statements of accused
persons were recorded under Section 313
Cr.P.C., wherein they denied allegations
made against them.

11. Counsel for the appellant has
submitted that the demand of dowry by the
accused
is
not
established
by
the
prosecution in proximity to the time of
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
death of deceased. There is inconsistency in
the statement of P.W.-1 and P.W.-2 with
regard to the amount of dowry demanded.
The letter of deceased has not been
corroborated by report of handwriting
expert. Statement of P.W.-1 regarding
alleged compromise entered between the
parties at police station is contradictory.
Before the death of deceased accused,
Akhilesh Kumar Mishra and co-accused,
Jagdanand Jha, and wife were living
separately as accepted by P.W.-1. P.W.-3
has not supported the case set up by P.W-1
and P.W-2 and was declared hostile. Postmortem report and viscera report do not
suggests any poisoning of deceased. Death
of deceased was not homicidal and she did
not died unnatural death.

12. Counsel for the appellant has
relied upon the judgment of the Apex Court
in the case of Sandeep Kumar vs. State of
Uttrakhand, AIR 2021 SC 491, in support
of his contention.

13. Learned A.G.A has vehemently
opposed the submission and has submitted
that from the evidence of P.W-1 it is clear
that within two months of the marriage of
appellant demand of motorcycle and one
plot was made by the accused persons from
P.W.-1. When P.W.-1 was not permitted to
meet his daughter, he had lodged a report at
police station - Kakadev, District- Kanpur
Nagar, against the accused persons but he
was compelled to make compromise with
the accused persons at police station. He
has further submitted that P.W.-2 has also
proved the allegation of demand of dowry
against the accused persons. He has
submitted that the conduct of accused
persons is relevant since they never
informed the father and mother of deceased
after she died. P.W.-1 came to know from
vegetable vendor about the death of
daughter and went there. As per Section
106 of Indian Evidence Act the burden of
proof was on the accused person to explain
how the deceased died while living in their
house.

14. Learned A.G.A has relied upon
the judgment of the Apex Court in the case
of Buddhadeb Saha and Others vs. State
of Bengal, 2023 SCC Online SC 1457 and
Devendra Singh and Others vs. State of
Uttrakhand, 2022(2) Crimes 277 (SC).

15.

After
hearing
the
rival
contentions, this court finds that as per
Section 304-B IPC 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
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 of dowry, such death shall be
called dowry death and such husband or
relative shall be deemed to have caused her
death. As per Section 113-B of Evidence
Act, there is presumption against the
accused of causing dowry death where it is
shown that soon before her death such
woman was subjected by such person to
cruelty or harassment for, or in connection
with, any demand of dowry. Section 304-B
IPC read with Section 113-B of Evidence
Act makes it clear that once prosecution
has succeed in demonstrating that a woman
has been subjected to cruelty or harassment
for, or in connection with, any demand of
dowry
soon
before
her
death,
a
presumption shall be drawn against the
accused person however the accused can
demonstrate before the trial court that the
ingredients for constituting offence under
Section 304-B IPC are not made out.
3 All. Akhilesh Kumar Mishra Vs. State of U.P.
1577

16. In the present case, it is clearly
discernible that the deceased was being
subjected to harassment for fulfilling the
demand of one motorcycle and a plot of
land soon after her marriage with the
accused-appellant, Akhilesh Kumar Mishra.
Initially, the accused persons refused to
take her along to their house after marriage
unless their demand of dowry is met as
proved by P.W.-2 before the trial court.
However, they took the deceased to her
house and subjected her to cruelty. She
gave birth to a female child who was
allegedly done to death by the accused,
Akhilesh Kumar Mishra or the child died
for some other reason. The deceased prior
to her death was taken to the doctor by
P.W.-2, where the doctor opined that she
was not ill but not getting sufficient food.
The deceased has clearly died within 7
years of her marriage with the accused,
Akhilesh Kumar Mishra and she was living
with accused, Akhilesh Kumar Mishra only
at the time of her death, separately from coaccused, Jagdanand Jha and Smt. Meera
Jha. The cause of death was not ascertained
but it will not make any difference since as
per Section 304-B IPC where the death of a
woman is caused by any burns or bodily
injury or occurs otherwise than under
normal circumstances within 7 years of her
marriage and it is proved that she was
subjected to cruelty or harassment soon
before her death, her death shall be called
dowry death and her husband or relative of
her husband shall be deemed to have
caused her death. In the present case the
death may have been caused by poisoning
or any other reason but keeping in view the
fact that the deceased was subjected to
cruelty and harassment soon after her
marriage and prior to her death, the
presumption of causing dowry death is
against the accused persons. The accused
have
not
been
able
to
rebutt
the
presumption under Section 113-B of Indian
Evidence Act against them.

17. The argument of learned A.G.A
that as per Section 106 of Indian Evidence
Act, the burden of proving that death of
deceased was caused by accused person
with whom she last resided, would be
attracted
only
against
the
accusedappellant, Akhilesh Kumar Mishra, with
whom the deceased was living separately at
the time of her death. The prosecution
witnesses have admitted that the couple had
separated from the co-accused, Jagdanand
Jha and Smt. Meera Devi, one and one and
a half months prior to her death. Therefore,
at the time of her death the deceased was
clearly residing with the accused-appellant,
Akhilesh Kumar Mishra.

18. The argument of counsel for the
appellant is that no sign of poisoning was
found in the viscera of the deceased also
deserves consideration. He has submitted
that in the case of Buddhadeb Saha and
Others (Supra), the Apex Court has held in
paragraph 24 that in the case of poisoning
white froth may come out from the mouth
and nose of the deceased. In case of opium
or its alkaloid the internal organs like
stomach or lungs may be congested. On
opening of stomach detectable smell may
be found in cases of poison like organo
phosphorus
compound,
opium,
formaldehyde, etc. However, this court
finds that in the same judgment of Apex
Court in paragraph 25 it has been held that
even if in the viscera report there is no
poison found such death shall be covered
under the phrase "otherwise that under
normal circumstances" which means death
not being in the usual course but apparently
under suspicious circumstances. In the case
of Bhupendra v. State of Madhya Pradesh
reported in (2013) 4 Crimes 480 (Supreme
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
Court)
it
was
held
that
chemical
examination of viscera is not mandatory in
every case of dowry death. For the purpose
of Section 304-B IPC mere fact of an
unnatural death is sufficient to invite a
presumption under Section 113-B of the
Evidence Act.

19. The Apex Court has considered
the effect to negative viscera report in the
case of dowry death in the aforesaid
judgment in paragraph nos. 28 to 35 :-

" 28. In a research article titled,
"Negative viscera report and its medicolegal aspects", it has been mentioned that
in many cases, the viscera report is
negative on three major basis, namely it
can be procedure based, sample based or
lab based. The said research paper reveals
that there are circumstances in which
viscera test may not reveal the presence of
compounds
from
the
following
circumstances:-

1. Sample quantities received by
FSL much less than those prescribed for
optimal analysis;

2. Required quantity and quality
of preservative not used during sampling;

4. Difficulty in detection of poison
due to vomiting, purging or elimination
from the system by the kidneys or due to
prolonged stay in the hospital immediately
prior to the death;

5. Not sending stomach wash
(gastric lavage) and vomit along with
viscera for examination;

6.
Some
organic
poison
decompose due to improper preservation or
temperature control;

7. Site of sample collection on the
body also play an important role;

8. In postmortem decomposition,
many poisons present in the tissue undergo
chemical changes which cannot be detected
in routine toxicological analysis;

29. This Court in Mahabir
Mandal v. State of Bihar, (1972) 1 SCC
748, looked into the observations found at
page
477
of
the
Modi's
Medical
Jurisprudence and Toxicology (Seventeenth
edition)
and
held
that
under
some
circumstances, if the whole of the poison
has disappeared from the lungs by
evaporation, or has been removed from the
stomach and intestines by vomiting and
purging, and after absorption has been
detoxified, conjugated and eliminated from
the system by the kidneys and other
channels, it is possible that there may not
be traces of poison.

30. Thus, the absence of detection
of poison in the viscera report alone need
not be treated as a conclusive proof of the
fact that the victim has not died of poison.

31. In Mahabir Mandal (supra),
this Court has ob- served as under:-

"Empty reference has been made
by Mr.Chari to report dated December 23,
1963 of the Chemical Examiner, according
to whom no poison could be detected in the
viscera
of
Indira
deceased.
This
circumstance would not, in our opinion,
militate against the conclusion that the
death of the deceased was due to
poisoning. There are several poisons
particularly of the synthetic hyp- notics and
vegetable alkaloids groups, which do not
leave any characteristic signs as can be
noticed on post mortem examina- tion."

(Emphasis supplied)

32. The above observation of this
Court was based on the reference made in
the Modi's Medical Jurisprudence and
Toxicology. Those references were also
referred to by this Court, which are as
follows:-

"It is quite possible that a person
may die from the effects of a poison, and
3 All. Akhilesh Kumar Mishra Vs. State of U.P.
1579
yet none may be found in the body after
death, if the whole of the poison has
disappeared from the lungs by evaporation,
or has been removed from the stomach and
intestines by vomiting and purging, and
after absorption has been detoxified,
conjugated and elimi- nated from the
system by the kidneys and other channels.
Certain vegetable poisons may not be
detected in the viscera, as they have no
reliable tests, while some organic poisons,
especially the alkaloids and glu- cosides,
may be oxidation during life or by
putrefaction after death, be split up into
other
substances
which
have
no
characteris- tic reactions sufficient for their
identi- fication." (Emphasis supplied)

33. As pointed out by this Court
in a number of cases, where the deceased
dies as a result of poi- soning, it is difficult
to successfully isolate the poison and
recognise it. Lack of positive evi- dence in
this respect would not result in throwing
out the entire prosecution case, if the other
cir- cumstances clearly point out the guilt
of the ac- cused.

34. According to Modi's Medical
Jurisprudence
and
Toxicology,
23rd
Edition, Editors : K. Mathoharan and
Amrit K Patnaik, the preserved materials
should be sent to the concerned Forensic
Science Laboratory, through the concerned
police station as quickly as possible.
Otherwise, the poison may not be detected
during the analysis of the vis- cera, even
though they may contain some poison.

35. Ken Kulig MD, in Critical
Care Secrets (Fourth Edition), 2007 states
that the gastric lavage must be performed
soon after ingestion to be at all effective in
removing the drugs from the stomach. For
this reason, many clinicians do not lavage
patients who have overdosed if more than 1
hour has elapsed since ingestion. "

20. Therefore, it is crystal clear that
benefit of negative viscera report cannot be
extended to the accused persons.

21. The facts of the case of Sandeep
Kumar (Supra) relied upon by learned
counsel for the appellant are different. In
this case, no poison was found in the
viscera but the doctor opined that the
deceased was patient of Tuberculosis and
the congestion in internal organs could be
due to Tuberculosis. The deceased was also
having below normal weight and therefore
the court did not found to be established
case of unnatural death.

22. However, this court finds that in
the statements of P.W.-1 and P.W.-2
allegations of demand of dowry have been
generally made against accused, Jagdanand
Jha and specifically against accused,
Akhilesh Kumar Mishra. At the time of
death the deceased and her husband were
residing separately from the accused,
Jagdanand Jha and Smt. Meera Jha. There
is no allegation that even after moving to
separate accommodation the co-accused,
Jagdanand Jha and Smt. Meera Jha, went to
the house of deceased and co-accused,
Akhilesh Kumar Mishra and harassed her
on demanded any dowry from her. P.W.-1
and P.W.-2 have also not stated that after
the
couple
separated
the
accused,
Jagdanand Jha and Smt. Meera Jha, ever
visited their place. It appears that their
relations had deteriorated and it cannot be
expected that the accused, Jagdanand Jha
and Smt. Meera Jha, had any motive for
demanding dowry and harassing the
deceased since they may not have been
beneficiary of any dowry once the couple
had separated from them. Co-accused,
Jagdanand Jha, was aged about 46 years in
the year 2000 and now must be about 70
years of age. His wife was aged about 35
1580 INDIAN LAW REPORTS ALLAHABAD SERIES
years at that time and is now aged about 59
years. They are not the father and mother of
accused, Akhilesh Kumar Mishra and are
his Fufa and Bua. Even if the land
demanded as dowry and motorcycle was
given in dowry by P.W.-1, only accused,
Akhilesh Kumar Mishra, would have been
beneficiary of the same and not the other
co-accused.

23.

In
view
of
the
above
consideration, the conviction of appellant,
Akhilesh Kumar Mishra, who has preferred
Criminal Appeal No. 472 of 2001 is
confirmed.

24. However, we are of considered
opinion that the trial court has awarded
maximum sentence prescribed for offence
under Section 304-B IPC to appellant,
Akhilesh Kumar Mishra, without taking
mitigating circumstances in the case into
consideration like cause of death of the
victim neither could be ascertained in postmortem report nor in viscera examination
report. No mark of violence was found on
person of the deceased. Thus, the sentence
is reduced from imprisonment to life to
rigorous imprisonment of 10 years. The
sentence awarded to the appellant, Akhilesh
Kumar
Mishra,
stands
modified
accordingly.

25. He is on bail. His bail bond is
cancelled and sureties are discharged. He is
directed to surrender and complete the
remaining sentence. However, the accused,
Jagdanand Jha and Smt. Meera Jha, are
extended benefit of doubt and acquitted of
all charges. They are on bail and need not
surrender. Their bail bonds are cancelled
and sureties are discharged. The period of
custody already undergone by the appellant
will be set off against this modified
sentence
for
10
years
rigorous
imprisonment.

26. Criminal Appeal No. 472 of 2001
is partly allowed and Criminal Appeal No.
118 of 2001 is allowed.
----------
(2024) 3 ILRA 1580
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 523 of 1986

Khemi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri G.S. Hajela, Sri Gavendra Kumar Mishra,
Neelam Pandey, Sri Devendra Kumar Mishra

Counsel for the Respondent:
D.G.A.

(A)
Criminal
Law
-
Appeal
against
conviction and sentence for murder -
Indian Penal Code, 1860 - Section 302,
148, 149 - Murder - Fire arm injury -
Eyewitness testimony - Motive - Motive
not essential in cases of direct evidence -
In a case where there is an eye witness
account, motive takes a back seat and is
not
of
any
consequence
where
the
deposition of the eye witnesses is found
trustworthy
-
Minor
discrepancies
in
witness statements do not necessarily
undermine the prosecution's case.(Para -
12,14,21)

Appellant convicted of murder - Incident
occurred on 1/2.4.1984 at 12:30 AM - Appellant
allegedly fired gun at deceased, causing fatal
injury - motive was there - deceased was killed
because he had deposed against the accused in