# Amit Kumar v. State of U.P

- **Citation:** (2021) 11 ILRA 927
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Criminal Appeal No. 1943 of 2016
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-v-state-of-u-p-46682
- **Pages:** 10

## Headnote

Indian Evidence Act, 1872 - Section 113 - mandatory
for prosecution to show-decease subjected to cruelty
soon before death-prosecution could not prove the
928 INDIAN LAW REPORTS ALLAHABAD SERIES
death of deceased to be otherwise than normal
circumstances-conviction wrong.

Appeal allowed. (E-9)

List of Cases cited:

## Text

11 All. Amit Kumar Vs. State of U.P.
927
prior to the lodging of the report, the entire
incident was narrated to the police at the police
station itself and then only the report was
dictated to be written at the police station itself,
whereas this aspect has been tried to be twisted
and avoided by Servesh Kumar Mishra P.W.2
the scribe of Exhibit Ka-1 that he wrote this
report at the police station itself.

Therefore, the argument to the ambit
that possibility of FIR being ante-timed cannot
be ruled out carries weight and the same is
sustained.

(44) These are the specific aspects of this
case and these specific aspects ought to have
been
appreciated
properly,
vis-a-vis,
the
evidence and circumstances of this case by the
trial court which has not been done by it.
Obviously, enmity was existing between both
the sides and some altercation is stated to have
taken place which has been trid to be coloured
differently by the prosecution witnesses. Here
the specific corroboration of testimony of the
two prosecution witnesses of fact is woefully
lacking, therefore, the contention raised by the
learned counsel for the appellants appear to be
substantial and carry weight and there is every
reason to accept the same and to record
conclusion that in so far as the charge under
Section 307 IPC against the accused- appellant-
Ram Bali is concerned, it is not sustainable in
the eye of law.

Likewise, participation of the other
two co- accused- the two sons of Ram Bali-
Prakash Chandra and Subhash Chandra- also
becomes highly improbable in the occurrence.
Consequently, the charges framed against them
u/s 307/34 IPC is also not proved.

(45) In view of aforesaid foregoing
reasons and discussion, obviously, the finding
of conviction recorded by the trial court
becomes erroneous and
illegal and the
judgement and order of conviction dated
25.03.2004 passed by Additional Sessions
Judge/FTC No.-3, Mirzapur in Sessions Trial
No. 224 of 1998 (State Vs. Ram Bali and
others), under Sections 307, 504, 506 IPC and
Sessions Trial No.396 of 1999 (State vs. Ram
Bali), under Section 25 Arms Act, Police
Station- Kotwali Dehat, District- Mirzapur is
hereby set aside.

Appeal is allowed.

Appellants are on bail, they need not
surrender. Their bail bonds are cancelled and
their sureties are discharged subject to their
complying with Section 437-A Cr.P.C.

Let a copy of this order be certified to the
concerned trial court for its intimation and
follow up action.
----------
(2021)12ILR A927
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1943 of 2016

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

Counsel for the Appellant:
Sri Dharmendra Singhal, Sri Apul Misra, Sri
Dinesh Kumar Yadav, Sri Gulab Chandra, Sri
Raghuvansh Misra, Sri Manish Tripathi, Sri Rajiv
Lochan Shukla

Counsel for the Respondent:
A.G.A.

Indian Evidence Act, 1872 - Section 113 - mandatory
for prosecution to show-decease subjected to cruelty
soon before death-prosecution could not prove the
928 INDIAN LAW REPORTS ALLAHABAD SERIES
death of deceased to be otherwise than normal
circumstances-conviction wrong.

Appeal allowed. (E-9)

List of Cases cited:

1. G.Vs Siddaramesh Vs St. of Karn. (2010) 3 SCC 152

2. Devendra Vs St. of Har. (2010) 10 SCC 763
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred against
the judgement and order dated 06.04.2016 (State
Vs. Amit Kumar and others) arising out of Case
Crime No.655A of 2012, under Sections 498A,
304 B of IPC and Section 4 Dowry Prohibition
Act, 1961, Police Station- Khurja Nagar,
District- Bulandshahar, by which learned trial
court convicted only appellant- Amit and
sentenced him for two years under Section 498A
IPC with fine of Rs.5,000/-, ten years under
Section 304 B and one year imprisonment under
Section 4 Dowry Prohibition Act with fine of
Rs.2,000/-.

2. Brief facts of this case are that Ravi, the
informant, is the brother of the deceased. He
moved an application under Section 156(3)
Cr.P.C. in the Court of Magistrate with the
averment that her sister Pooja was married to
Amit s/o Bharat Singh on 24.04.2012, who is
resident of village Akbarpur, Police Station-
Sasani, District- Hathras and gave the dowry
according to their financial capacity. A Pulsar
motorcycle was also given in the marriage but
her in-laws including Amit, his father Bharat
Singh, his mother Sharada, his uncle Charan
Singh, his brother Manoj and one Pinki were not
happy with the dowry given in the marriage and
they also started demand of a car as additional
dowry. They used to torture Pooja for not
fulfilment of the demand of additional dowry.
Pooja used to tell the fact regarding the demand
of additional dowry and torture for not fulfilling
the demand. Parental family members of Pooja
tried to make them understand but of no avail.
On 13.08.2012 at about 6:00 pm Pooja made a
phone call to her brother Ajay and said that Amit
and her in-laws were demanding a car and they
took her by force to village Akbarpur from Delhi
and any untoward incident might take place. The
above mentioned persons in connivance with
unknown driver of vehicle No. UP-78 BT 0879
have murdered Pooja at about 10:00 pm on
13.08.2012 and have lodged a fake first
information report of accident in PS- Khurja
Nagar. On coming to know about this incident,
the informant went to PS- Khurja, District-
Bulandshahr and tried to give a written report
but the police refused to receive the report. It has
come to the knowledge of the informant that in
the above accident neither Amit has sustained
any injury nor his motorcycle was damaged.
Therefore, they have all killed Pooja by hatching
a conspiracy with unknown truck driver.

3. Peculiar facts of this case are that before
lodging the aforesaid FIR through application
156(3) Cr.P.C., initially first information report
was lodged by Charan Singh, who is uncle of
appellant-Amit, having Case Crime No.655 of
2012, under Section 279, 304A and 427 IPC at
Police Station Khurja, District- Bulandshahar
against the truck driver of truck No.UP-78 BT
0879 and after investigation, charge sheet was
prepared against the aforesaid truck driver
Somnath Vishwakarma, under Section 279,
304A and 427 IPC but this charge sheet was
cancelled by Senior Superintendent of Police,
before submission in court and further another
charge sheet was prepared and submitted in the
concerned court against Amit, Bharat Singh,
Smt. Sharada, Charan Singh, Manoj and Pinki,
under Section 498A, 304B IPC and 3/4 Dowry
Prohibition Act, 1961. The above charge sheets
were merged and taken together by the learned
Magistrate.

4. Charges were framed against the
aforesaid accused persons, under Sections 498A
11 All. Amit Kumar Vs. State of U.P.
929
and 304B IPC and under Section 3 of Dowry
Prohibtion Act, 1961. After completion of trial,
learned trial court convicted and sentenced only
appellant Amit under Section 498A, 304B IPC
and Section 4 of Dowry Prohibition Act and
acquitted rest of the accused persons and hence
this appeal.

5. Heard Shri Rajiv Lochan Shukla,
learned counsel for the appellant and Shri Arun
Singh, learned AGA for the State.

6. Learned counsel for the appellant
submitted that first information report was
lodged by Charan Singh regarding the accident
of appellant with truck No.UP 78 BT 0879. It is
submitted
that
after
completion
of
the
investigation it was found by the investigating
officer that it was a case of accident simpliciter
and charge sheet under Section 304A IPC was
prepared, which was cancelled by the Senior
Supreintendent of Police. Learned counsel for
the appellant argued that it was accidental death
and it had nothing to do with any demand of
dowry and torture for non-fulfillment of demand
of additional dowry.

7. Learned counsel for the appellant next
submitted that it was a case of prosecution that
appellant hatched a conspiracy with the truck
driver and got his wife Pooja murdered in
connivance thereof. But, truck driver was not
prosecuted and no charge sheet was submitted
containing offence under Section 120B of IPC.
No trial of any accused persons was conducted
for the offence of conspiracy. It is also submitted
that it is intertesting that learned trial court
acquitted all the accused persons except
appellant and no cross appeal against acquittal is
filed by prosecution, it means that acquittal of
accused persons has become final. In such a
situation, when there was no trial regarding the
offence of conspiracy and except appellant all
other accused persons have been acquitted by
the trial court then, the prosecution story of
conspiracy in connivance with truck driver itself
becomes false.

8. Learned counsel for the appellant argued
that
Dr.
Preetam
Singh
conducted
the
postmortem of deceased Pooja and prepared
postmortem report. He was examined as PW-4.
Learned counsel for the appellant submitted that
in fact at the place of occurrence, Amit was
driving the motorcycle and Pooja was sitting on
back seat and a truck coming from opposite side
crossed the motorcycle from very thin distance
and due to air pressure Pooja fell down and
sustained injury on her head. Learned counsel
for the appellant argued that this suggestion was
put forth before Dr. Preetam Singh (PW4) in his
cross-examination and he agreed to this
suggestion. Learned counsel submitted that
doctor, who is an expert in medical science, has
opined that such type of fatal injury can be
sustained by a lady if she is sitting on the back
seat of the motorcycle while a truck crosses the
motorcycle. Since, the doctor has agreed to this
suggestion, the appellant has discharged its
burden of rebutting the presumption raised
against appellant under Section 113B of Indian
Evidence Act. Learned counsel for the appellant
also submitted that Senior Superintendent of
Police, who cancelled the charge sheet of the
accident, namely, Gulab Singh is produced by
appellant in his defence as DW2. His statement
also shows that charge sheet of accident was
cancelled by him on the report of investigating
officer of Case Crime No.655A of 2012. But, on
the fact it is proved that investigating officer of
Case Crime No.655 of 2012 found no case of
murder or conspiracy in this case.

9. It is also next submitted that cremation
of the deceased took place with the consent of
her family members and dead body was given in
Surpurdagi of her family members.

10. It is argued by learned counsel for the
appellant that PW1- Ravi and PW2- Ajay both
930 INDIAN LAW REPORTS ALLAHABAD SERIES
are brothers of the deceased. PW1 is informant.
It is said by both the witnesses that Pooja made a
phone call at 6:00 pm to her brother Ajay from
Delhi that so-called accused persons were
demanding car and beating her and taking her
from Delhi to Village Akbarpur with the
intention of killing her. But, in crossexamination witnesses have not supported their
version of examination-in-chief. It is said by
theses witnesses that Pooja told that five other
accused
persons
were
coming
on
two
motorcycle behind them. But they also have
stated that Pooja made this phone call from her
house in Delhi. PW1 and PW2 have made
contrary statements. PW1-informant Ravi has
said that phone call was made by Pooja on
phone of Ajay who had left his phone at home
and he informed him in night when he returned
to the home. In the meantime, he did nothing. It
is also evident that four brothers of Pooja used to
reside in Delhi. They were also not informed by
PW1-Ravi regarding phone call who could be
the nearest persons to Pooja. This conduct of
witnesses is quite unnatural.

11. Learned counsel for the appellant next
argued that there was no question of demanding
car as additional dowry because it is admitted by
PW1 and PW2 that the father of the appellant
was hawker on a gas agency and appellant-Amit
himself used to work on a gas agency for
booking and supplying the gas cylinders. It is
also in the evidence that appellant used to get
Rs.5,000/- per month as salary from the gas
agency. Therefore, appellant and his family were
not of such a good financial condition that they
could even think of demanding the car in
additional dowry.

12. Learned counsel for the appellant also
submitted that there is no evidence on record
that soon before death of the deceased she was
subjected to any cruelty or harassment in
connection with demand of additional dowry.
No call-detail is produced by the prosecution to
substantiate the factum of phone call made by
Pooja at 6:00 pm on 13.08.2012. It is also
pointed out that PW2- Ajay has stated in his
statement that he was making statement in court
for the very first time, therefore, he has denied
his statement under Section 161 Cr.P.C. also
PW1 and 2 are wholly unreliable witnesses.
Appellant is languishing in jail for the past five
years without any evidence on record. Learned
trial court has wrongly convicted and sentenced
the appellant. Hence, appeal may be allowed.

13. Learned AGA opposed the arguments
made on behalf of the appellant and submitted
that ante mortem injury in postmortem indicates
that such type of injury cannot be sustained by
falling from motorcycle only and as far as the
first FIR is concerned, it was lodged by coaccused Charan Singh but he was not the eyewitness of so-called accident as alleged by the
defence. It is also submitted by learned AGA
that it is mentioned in inquest report that inquest
proceedings took place in district hospital
Khurja. Learned AGA submitted that the death
of deceased Pooja cannot be accidental death.
PW1 and PW2 have fully supported the
prosecution case. When this case was not found
of accident, only then the investigating officer of
Case Crime No.655A of 2012 sent a report to
SSP, Bulandshahr, and after being satisfied with
the report of I.O., the S.S.P. cancelled the charge
sheet of Case Crime No.655 of 2012. Demand of
additional dowry, harassment and torture of
Pooja for non-fulfillment of above said demand
are fully proved by statements of PW1 and PW2
and since Pooja made a phone call on the same
day of her death at about 6:00 pm, therefore, it is
also proved that soon before her death, she was
subjected to cruelty in connection with demand
of additional dowry. Therefore, learned trial
court rightly convicted the appellant and
sentenced him. Hence, appeal may be dismissed.

14. In this case, two FIRs were lodged.
One by Charan Singh, Case Crime No.655 of
11 All. Amit Kumar Vs. State of U.P.
931
2012 pertaining to the fact of accident and
second is Case Crime No.655A of 2012 by Ravi,
brother of deceased pertaining to accidental
murder of Pooja. But, prosecution has finally set
up a case as per the first information report
lodged by Ravi through application under
Section 156(3) Cr.P.C. On the basis this FIR,
charge sheet was submitted under Section 498A,
304B IPC and Section 3/4 Dowry Prohibition
Act and appellant was put on trial. Trial court
convicted and sentenced the appellant as
aforesaid under Section 304B IPC, trial court
drew the presumption of Section 113B of Indian
Evidence Act which is quoted here-in-below for
ready reference:-

"Section
113B
in
The
Indian
Evidence Act, 1872

113B. Presumption as to dowry death.-
-When the question is whether a person has
committed the dowry death of a woman and it is
shown that soon before her death such woman
has been subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the Court shall presume that
such person had caused the dowry death.
Explanation.--For the purposes of this section,
"dowry death" shall have the same meaning as
in section 304B, of the Indian Penal Code, (45 of
1860)."

15. Hence to draw the legal presumption as
envisaged by Section 113 of Indian Evidence
Act, it is mandatory for prosecution to show that
"soon before death," deceased was subjected to
cruelty or harassment for or in connection with
demand of dowry.

16. In G.V. Siddaramesh Vs. State of
Karnataka (2010) 3 SCC 152, it is held by the
Hon'ble Apex Court 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 with demand of
dowry, then only a presumption can be drawn
that a person has committed the dowry death of
a woman.

17. In Devendra Vs. State of Haryana
(2010) 10 SCC 763 also, the Hon'ble Apex
Court has held that Section 113B read with the
Act (Indian Evidence Act) would mean that
unless and until proved otherwise, the court shall
hold that a person has caused dowry death of a
woman if it is established before the court that
soon before her death such woman has been by
such person subjected to cruelty or harassment
for or in connection with any demand of dowry.

18. To show that soon before her death,
deceased Pooja was subjected to cruelty or
harassment for or in connection with demand of
dowry, the prosecution has produced PW1- Ravi
and PW2- Ajay. Both are brothers of the
deceased and it is said by them that on the
fateful day, i.e., 13.08.2012 at 6:00 pm, a phone
call was made by Pooja on the phone of PW2-
Ajay, who had left the phone at home and this
phone call was received by informant PW1-
Ravi in which Pooja told him that appellant and
other co-accused persons were demanding car
and beating her and taking her to village
Akbarpur from Delhi with intention to kill her.
PW1 Ravi has stated in his examination-in-chief
that accused persons have killed his sister Pooja
with the conspiracy for not meeting out the
demand of car as additional dowry and for
hiding their crime the murder of Pooja has been
shown as an accident. But it is not stated by
PW1 how Pooja was killed if it was not an
accident. It was burden on prosecution witnesses
to show how otherwise the death was caused if
accident did not take place because prosecution
witnesses PW1 and PW2 have categorically said
in their statements that neither the appellant got
any injury in accident nor the motorcycle had
got any scratch in the accident.

19. In his application under Section 156(3)
Cr.P.C. informant Ravi has stated that:-
932 INDIAN LAW REPORTS ALLAHABAD SERIES

"प्राथी द्वारा उपरोि घटना के बारे में
जानकारी करने पर पता चला धक उपरोि एक्सीडेंट
में अधभयुि को कोई चोट धकसी प्रकार की नहीां है
और न ही मोटरसाईधकल कहीां से क्षधतग्रस्त हुई है।
केवल अधमत के पीछे बैठी पूजा की एक्सीडेंट में मृत्यु
हुई है। उपरोि घटना एक सोची समझी योजना के
तहत उपरोि मुक्तिमानोां ने अज्ञात टरक डराईवर के
साथ धमलकर काररत की है।"

20. In this way at one hand, the
prosecution has tried to establish the case that
death of Pooja was result of the accident in
connivance and conspiracy of appellant with
truck driver, but on the other hand, prosecution
has also taken the version that in so-called
accident neither appellant got sustained any
injury nor motorcycle was damaged even a bit.
On this basis, prosecution says that it was a
murder. In this way, it looks that prosecution
caused shadow on the factum of accident how it
took place and from which source it has come to
know the factum of conspiracy.

21. Prosecution is not firmly standing on
its feet. It was a burden on the shoulder of the
prosecution witnesses to show how actually
otherwise the death of Pooja took place if it was
not a case of an accident. The Court can hardly
believe on the fact that such type of accident can
be caused out of conspiracy in which the person
driving the motorcycle did not get any injury
and even motorcycle is not damaged even a bit
and the lady sitting behind the motorcycle
sustained fatal injuries and died on the spot. If
prosecution wants to establish that accident was
the result of conspiracy with truck driver, then
prosecution witnesses were also to show the
element of conspiracy.

22. PW1-Ravi has stated in his statement
that Pooja made a phone call and said that Amit
was taking her on Pulsar motorcycle to the
village. Apart from this, two other motorcycles
were also there on which other accused persons
were coming from behind. It is also specifically
stated by this witness that except the phone call
of his sister, he found no other evidence by
which he could come to know that except Amit,
five other persons were also coming on
motorcycles, but PW1- Ravi has not stated this
fact to the investigating officer in his statement
under Section 161 Cr.P.C. Thus, it is proved that
this statement by PW1 is made for the very first
time in the trial court. PW2- Ajay has also stated
in his statement that on 13.08.2012, at about
6:00 pm, deceased Pooja made a phone call on
his phone stating that all the accused persons,
out of conspiracy, were taking her to village
Akbarpur with intention to kill her and soon
thereafter the appellant along with other accused
persons started journey on motorcycle by taking
his sister on motorcycle and killed her at
Nehrupur Chungi.

23. Therefore, the above statements of both
the witnesses PW1 and PW2 show that they
have categorically said that appellant and
deceased Pooja were on one motorcycle and
other co-accused persons were on two other
motorcycles. PW1 and PW2 could only get this
information if phone would have been made by
the deceased Pooja while she was on the way on
the motorcycle driven by the appellant, but PW1
Ravi has specifically stated in his crossexamination that Pooja had made a phone call
before departure from Delhi. PW2 also has
stated in his cross-examination that:-

"पूजा ने अपने ससुराल के घर से फोन
धकया था। पूजा ने बताया था धक सब लोग नीचे हैं। मैं
ऊपर कमरे से बोल रही हूां। मैंने अपने बड़े भाई रधव
को रात के 11-11.30 बजे जब घर आए तब मैंने
उनको यह बात बतायी थी धक पूजा का िाम 6 बजे
टेलीफोन आया।"

24. Hence, both the PW1 and PW2 have
established that phone call was made by the
deceased from the house in Delhi before her
11 All. Amit Kumar Vs. State of U.P.
933
departure, then how could Pooja tell them that
other co-accused were also coming behind on
two other motorcycles. Although, the co-accused
persons were acquitted by the trial court but
there is question of credibility of evidence of
PW1 and PW2. Such type of above statements
of these witnesses put a big question mark on
their credibility. Moreover, no call-detail report
was produced by the prosecution regarding
phone call of deceased Pooja at 6:00 pm to her
brother Ajay. In his statement Ajay has given his
mobile number and also of the deceased Pooja
mobile number, but the prosecution has not
produced any call-details of these two mobile
numbers. It is also very strange and unnatural on
behalf of PW1- Ravi, that he did not disclose
regarding the version of phone call made by
Pooja to her four brothers, who were residing in
Delhi. These brothers were very near to Pooja
and the witnesses have very lightly stated that
they could not think of it.

25. With the above discussion, this Court
reaches to the conclusions that statements of
PW1 and PW2, the only witnesses of fact, have
not at all any reliability regarding the phone call
made by Pooja. It is not at all proved by their
statements that any such phone call was made by
Pooja to her brother at 6:00 pm on 13.08.2012 as
said by the prosecution because in this regard
the prosecution evidence is wholly unreliable
and when the above said phone call is not
proved, then it is also not proved that appellant
was taking Pooja from Delhi to village Akbarpur
in District Bulandshahr in order to kill her
because the above said alleged phone call, which
is not proved as discussed above, was the only
source of information to PW1 and PW2.

26. Learned trial court has drawn
presumption under Section 113B of Indian
Evidence Act only against the appellant and not
against all other accused persons on the same
evidence of alleged phone call. Trial court has
not mentioned how it reached to the conclusion
of drawing presumption of Section 113B of
Evidence Act only against the appellant and not
against other co-accused persons. It means that
the trial court has relied on a portion of the
phone call and disbelieved the remaining portion
of the same phone call. Trial court has only said
that PW1 Ravi and PW2 Ajay have not stated
regarding any specific role of other co-accused
persons except appellant Amit and on the basis
of which it is opined by trial court that
presumption
under
Section
113B
Indian
Evidence Act is drawn against accused Amit and
it is not drawn against other co-accused persons.
Trial court has not mentioned even a single word
what other evidence was found against the
husband which was not found against other coaccused persons.

27. Application under Section 156(3)
Cr.P.C. was moved by informant Ravi after a
long delay of 14 days of the occurrence. If
phone call was there, the fact as to why the
application was not moved forthwith by the
informant, is not explained any where.

28. Hence, in the opinion of this Court
evidence of PW1 and PW2 is not at all reliable
regarding the phone call made by Pooja at 6:00
pm on 13.08.2012 to her brother. And as except
this alleged phone call, there was no other
source of information to informant Ravi or his
brother Ajay and hence, PW1 and PW2 were not
in a position to state that Pooja was subjected to
cruelty or harassment soon before her death in
connection with demand of additional dowry. It
is very interesting to note that as per the
prosecution case in application under Section
156(3) Cr.P.C., on the basis of which FIR was
lodged, prosecution itself states that accident
took place in conspiracy with truck driver. Truck
number is also mentioned in the first information
report. Inquest report also states that Pooja died
due to sustaining injuries in accident and trial
court confused on this issue because at one place
trial court opined that if it would have been an
934 INDIAN LAW REPORTS ALLAHABAD SERIES
accident then accused Amit also should have
sustained injuries and motorcycle would have
been damaged and on the other hand, trial court
has drawn presumption against the appellant
under Section 113B of Indian Evidence Act on
believing the evidence of PW1 and PW2
regarding the alleged killing of Pooja by
accident in connivance with the truck driver.

29. Further for the sake of argument, for a
while, if it is presumed that presumption of
Section 113B of Indian Evidence Act is rightly
drawn by the trial court then also the appellant
has rebutted this presumption. Accused has three
stages during trial to rebut the presumption of
Section 113B Indian Evidence Act. First stage is
to give suggestion to prosecution witness and
put his case before him; second stage is that
accused will take his defence when evidence
against him will be put under provision of
Section 313 Cr.P.C., although, statement under
Section 313 Cr.P.C. is not substantive piece of
evidence and third stage is to produce defence
witnesses. In the case in hand, suggestion was
given to PW4 Dr. Preetam Singh, who
conducted the postmortem of the deceased, that
if a lady is sitting on the motorcycle and truck
passes by due to which motorcycle falls then in
such type of accident the lady can sustain such
injuries, which were sustained by the deceased.
Dr. Pretaam Singh PW4 answered in affirmative
and opined that in such a situation, the deceased
could sustain ante mortem injuries. Suggestions
were also given to PW1 Ravi and PW2 Ajay
regarding death of deceased in accident. It was
stated before PW1 that one Rakesh s/o Raj Pal,
who was cousin of appellant Amit Kumar, he
was seriously ill on 13.08.2012 and died on
14.08.2012. It is specifically suggested to PW1
that appellant and his wife were going to see
Rakesh on 13.08.2012. To this suggestion PW1
showed ignorance but it is said by him that later
on he got to know that Rakesh, cousin brother of
appellant, was seriously ill on 13.08.2012 and
died on 14.08.2012. This factum also co-relates
with the situation where accident could happen
and in which deceased sustained fatal injuries. It
is very much relevant that it is also the
prosecution case that deceased Pooja died at
near Nehrupur Chungi within the jurisdiction of
Police Station Khurja District Bulandshahr. This
fact gives strength to the defence taken by the
appellant that Pooja died due to simpliciter road
accident. Apart from this, it is important that
prosecution itself has set up a case of the
accident as stated by the complainant Ravi in
application under Section 156(3) Cr.P.C. in
which even truck No. UP78 BT 0879 is given.
The version of FIR is that appellant hatched
conspiracy with above truck driver and got
Pooja murdered but the truck driver was not
prosecuted. No charge sheet was filed against
truck driver for the offence of criminal
conspiracy. Charge sheet against truck driver
under Section 279, 304A and 427 IPC in Case
Crime No.655 of 2012 was cancelled by Senior
Superintendent of Police. Even the appellant or
any other accused persons were not charged with
the offence of criminal conspiracy. Therefore,
prosecution story of murder itself gets falsified
and the trial court did not give any finding as to
how the deceased was died. Learned trial court
has opined that appellant in his statement under
Section 313 Cr.P.C. has stated that he was
bringing his wife from Delhi to village Akbarpur
and all of a sudden he met with an accident with
the truck due to which Pooja fell down and died,
but no evidence is produced regarding this fact.
Learned trial court failed to consider the fact that
charge sheet was prepared against the said truck
driver pursuant to the FIR of the accident.
Nothing more could be shown by the appellant
to rebut the presumption when investigating
officer of Case Crime No.655 of 2012 reached to
the conclusion of accidental death and prepared
the charge sheet. DW2 Gulab Singh, who is
retired DIG, who had cancelled the charge sheet
prepared by the investigating officer in Case
Crime No.655 of 2012, has stated in his
statement that C.O. was investigating the Case
11 All. Amit Kumar Vs. State of U.P.
935
Crime No.655 of 2012 which was registered
under Section 304B, 498A IPC. On the basis of
his case diary charge sheet was cancelled.
Learned trial court has opined regarding the
evidence of DW2 that he has only given the
evidence regarding cancellation of charge sheet
of Case Crime No.655 of 2012. This fact was
overlooked by trial court that firstly charge sheet
was prepared under Section 304A, 279 and 427
IPC after completion of investigation, although
it was cancelled before submission in concerned
court.

30. On the basis of above discussion, this
Court has reached to the conclusion that
prosecution has miserably failed to prove the
phone call made by the deceased Pooja at 6:00
pm on 13.08.2012 to her brother as discussed
above and in the absence of that phone call there
remains no evidence on record to show that the
deceased was subjected to cruelty or harassment
soon before her death for or in connection with
demand of dowry, meaning thereby prosecution
has not brought forward any evidence to show
that soon before her death deceased was
subjected to cruelty. Therefore, trial court erred
in drawing the presumption of Section 113B of
Indian Evidence Act and in the absence of above
presumption, no onus can be shifted on the
shoulders of appellant/accused to rebut the
presumption. Therefore, the death of deceased
Pooja does not fall within the purview of
"Dowry Death". Section 304B IPC 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."

31. It is provided under Section 304B of
IPC that the death of a woman should occur
otherwise than under normal circumstances.
Prosecution could not prove the death of
deceased
Pooja
"otherwise
than
normal
circumstances".
Moreover,
as
discussed
above, prosecution could not prove that soon
before
her
death,
deceased
Pooja
was
subjected to cruelty or harassment for or in
connection with demand of dowry.

32. With the aforesaid discussion, this
Court is of considered opinion that learned
trial court has not appreciated the evidence on
record in right perspective and wrongly drew
the presumption under Section 113B of Indian
Evidence
Act
against
the
appellant.
Prosecution has also failed to prove the death
of deceased Pooja as dowry death. Learned
trial court has wrongly convicted the appellant
for the offences under Section 498A, 304B of
IPC and under Section 4 Dowry Prohibition
Act, 1961. Hence, appeal is liable to be
allowed.

33. This appeal is accordingly, allowed.

34. Conviction of appellant under Sections
498A, 304B IPC and under Section 4 Dowry
Prohibition Act, 1961 is hereby set aside and he
is acquitted of all charges framed against him.
The appellant be released forthwith if not
wanted in any other case.
936 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Let a copy of this order be sent to
concerned court and jail authorities for ensuring
necessary compliance.
----------
(2021)12ILR A936
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 1944 of 2014

Ram Prakash @ Pappu Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Shyam Lal, Ms. Abhilasha Singh, Sri Lav
Srivastava, Sri Ashutosh Yadav, Sri Chandra
Shekhar Garg, Sri V.P. Srivastava

Counsel for the Respondent:
A.G.A.

Appellant languishing in jail-last more than 9 yearscriminal jurisprudence is reformative and correctiveno accused incapable of being reformed-all measure
to give opportunity to reform-conviction upheldpunishment modified.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Mohd. Giasuddin Vs St. of A.P., reported in AIR
1977 SC 1926

2. Deo Narain Mandal Vs St. of U.P. reported in (2004)
7 SCC 257

3. Jameel Vs St. of U.P. [(2010) 12 SCC 532

4. Guru Basavraj Vs St. of Karn. [(2012) 8 SCC 734

5. Sumer Singh Vs Surajbhan Singh, [(2014) 7 SCC 323,

6. St. of Pun.Vs Bawa Singh, (2015) 3 SCC 441

7. Raj Bala Vs St. of Har., [(2016) 1 SCC 463

8. Ravada Sasikala Vs St. of A.P. AIR 2017 SC 1166

9. Manoj Mishra @ Chhotkau Vs St. of U.P., Criminal
Appeal No. 1167 of 2021, decided on 8.10.2021
(Delivered by Hon'ble Vikas Budhwar, J.)

1. This appeal has been preferred against
the judgment and order dated 26.3.2013 passed
by the court of Special Judge (D.A.A), Banda in
Session Trial No.63 of 2012, State Vs. Ram
Prakash @ Pappu Yadav arising out of Case
Crime no. 73 of 2012, under Sections 452 read
with Section 376 IPC, P.S. Bisanda, District
Banda, whereby the accused-appellant was
convicted under Section 452 IPC and sentenced
to five years rigorous imprisonment with a fine
of Rs.5000/- and on a default, sentence of three
months further imprisonment and under Section
376 IPC and sentenced to imprisonment for life
with fine of Rs.10,000/- and in case of default of
payment of fine, to undergo six months further
imprisonment for one year. Both the sentences
to be run concurrently.

2. Brief facts of the case are that the FIR
was registered on 22.02.2012 on the basis of the
application moved by the complainant on the
same date, in which it has been alleged that the
complainant's daughter, namely, Chunbadi on
the date of the occurrence of the offence, i.e,
21.12.2012 was alone in her house, as the
complainant as well as his wife being the mother
of the victim had gone to the field for doing
agricultural activity. In the absence of the
complainant and his wife, being the mother of
the victim, the victim was all alone in the house
and at 4:00 P.M, the unlucky day, being
21.2.2012, one Sri Ram Prakash @ Pappu @
Baura Aheer (Yadav) came to the house of the
complainant and when he found that the
daughter of the complainant being Ms. Chunbadi