# Anil v. State of U.P

- **Citation:** (2023) 1 ILRA 922
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-08
- **Case number:** Criminal Appeal No. 703 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-v-state-of-u-p-49171
- **Pages:** 6

## Headnote

Law-
Indian
Evidence
Act-
Sections
101
&
106
-Dowry
death-
Demand of additional dowry could not be
proved by the prosecution- The witnesses
of fact turned hostile- learned trial court
has also reached to the conclusion that
death of the deceased was not within the
four corners of dowry death- The learned
trial court had held that it is the statement
of appellant in his statement u/s 313 of
Cr.P.C. that he and deceased used to
reside in separate house from his parents.
Hence, learned trial court shifted the
burden on the shoulders of the appellant
to prove the factum of death of deceased
as to how she died- When the offence like
murder is committed in secrecy inside the
house, the initial burden to establish the
case would undoubtedly be upon the
prosecution-
There
will
be
a
corresponding burden on the inmates of
the house to give cogent explanation as to
how the crime was committed- The initial
burden of proving that, as on the date of
the alleged incident, the accused was
present in the house of lastly seen with
the deceased or that he was lastly in the
company of the deceased at the time of
the incident would be primarily upon the
prosecution- The prosecution has not
brought forward any evidence which could
at least establish the fact that at the time
of occurrence, the appellant was inside
the house. Hence, there is no applicability
of Section 106 of Indian Evidence Act in
this case- Prosecution has not discharged
its burden to prove the case beyond
reasonable doubt and no reverse burden
could be placed on the accused with the
aid of Section 106 of Indian Evidence Act
when the prosecution has not discharged
its burden first.
1 All. Anil Vs. State of U.P.
923
Where the prosecution has not discharged its
initial burden of proof by leading evidence that
the deceased was last seen in the company of
the accused then the reverse burden under
section 106 of the Evidence Act cannot be
placed on the accused. (Para 16, 18, 19)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

Santosh Vs St. of U.P. 2021 0 Supreme (All) 173

## Text

922 INDIAN LAW REPORTS ALLAHABAD SERIES
Dhanpal Singh be released under Section 4
(1) of the Act on probation for a period of
one year on furnishing a personal bond of
Rs.20,000/- (Rupees twenty thousand) and
two sureties each in the like amount.
During this period, they shall maintain
good conduct and keep peace and on
breach of this condition, they shall appear
before the Court to receive punishment. It
also appears justified that under Section 5
(1) (a) of the Act, each appellant is directed
to deposit Rs. 5000/- within a period of one
month from the date of receipt of certified
copy of this order as compensation which
shall be paid to injured Lakhan singh and
Mukut Singh equally. In case of death of
these injured, their legal representatives
shall be entitled to receive their shares of
compensation.

27. The criminal appeal is disposed of
accordingly.

28. Let a certified copy of this order
along with record be sent to the court
concerned
for
compliance.
In
case,
probation
bonds
is
not
filed
and
compensation amount is not deposited by
the appellants accused, they will have to
undergo the sentence awarded by the trial
court.
----------
(2023) 1 ILRA 922
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 703 of 2017

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

Counsel for the Appellant:
Sri Apul Misra, Sri Ramendra Pal Singh, Sri
Veerendra Kumar Shukla, Sri Tripurari Pal

Counsel for the Respondent:
G.A.

Criminal
Law-
Indian
Evidence
Act-
Sections
101
&
106
-Dowry
death-
Demand of additional dowry could not be
proved by the prosecution- The witnesses
of fact turned hostile- learned trial court
has also reached to the conclusion that
death of the deceased was not within the
four corners of dowry death- The learned
trial court had held that it is the statement
of appellant in his statement u/s 313 of
Cr.P.C. that he and deceased used to
reside in separate house from his parents.
Hence, learned trial court shifted the
burden on the shoulders of the appellant
to prove the factum of death of deceased
as to how she died- When the offence like
murder is committed in secrecy inside the
house, the initial burden to establish the
case would undoubtedly be upon the
prosecution-
There
will
be
a
corresponding burden on the inmates of
the house to give cogent explanation as to
how the crime was committed- The initial
burden of proving that, as on the date of
the alleged incident, the accused was
present in the house of lastly seen with
the deceased or that he was lastly in the
company of the deceased at the time of
the incident would be primarily upon the
prosecution- The prosecution has not
brought forward any evidence which could
at least establish the fact that at the time
of occurrence, the appellant was inside
the house. Hence, there is no applicability
of Section 106 of Indian Evidence Act in
this case- Prosecution has not discharged
its burden to prove the case beyond
reasonable doubt and no reverse burden
could be placed on the accused with the
aid of Section 106 of Indian Evidence Act
when the prosecution has not discharged
its burden first.
1 All. Anil Vs. State of U.P.
923
Where the prosecution has not discharged its
initial burden of proof by leading evidence that
the deceased was last seen in the company of
the accused then the reverse burden under
section 106 of the Evidence Act cannot be
placed on the accused. (Para 16, 18, 19)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

Santosh Vs St. of U.P. 2021 0 Supreme (All) 173
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgement and order dated
08.11.2016 passed by Additional Sessions
Judge/Special Judge, E.C. Act, Budaun in
Session Trial No.826 of 2013, arising out of
Case Crime No.100 of 2013, Police Station-
Ughaiti, District- Budaun, whereby the
appellant was convicted and sentenced under
Section 302 IPC for life imprisonment along
with fine of Rs.20,000/-, in default of the
payment of fine to further undergo one year
simple imprisonment.

2. The brief facts of the case as culled
out from the record are that a written report is
filed at Police Station- Ughaiti, District-
Budaun with the averment that the marriage
of sister of the informant was solemnised
with appellant Anil, in which dowry was
given as per his financial condition but the inlaws of his sister started demanding
Rs.50,000/-
as
additional
dowry.
On
24.06.2013 at about 4:00 pm he received, a
call phone from the neighbour of his sister
that his sister has been done to death by her
in-laws for want of dowry. On hearing the
news, he reached to the matrimonial home of
his sister along with other family members
and saw that his sister was done to death by
her in-laws by way of administering the
poison.

3. On the basis of aforesaid written
report, a first information report was
registered as Case Crime No.100 of 2013
u/s 498A, 304B of IPC and under Section
3/4 Dowry Prohibition Act. Investigation
was taken up by the I.O. He visited the spot
and prepared the site-plan. The statements
of witnesses were recorded u/s 161 Cr.P.C.
by
the
investigating
officer.
Inquest
proceedings had taken place and inquest
report was prepared. The post mortem of
dead body was conducted and post mortem
report was prepared. The cause of death
was not ascertained in post mortem and,
hence, Viscera was preserved and sent to
Forensic Science Laboratory for chemical
examination. From where the report was
received,
in
which
organophosphorus
insecticides poison was found in Viscera.
After completion of investigation, the FIR
was culminated into charge sheet against
accused Anil, Lalu Prasad and Jaleshwari.
The Magistrate took the cognizance and
committed it to the Court of Sessions
because the case was triable exclusively by
Court of Sessions.

4. Learned trial court framed charges
against all the accused persons u/s 304B
IPC with alternative charge u/s 302 IPC
and u/s 498A IPC and 3/4 Dowry
Prohibition Act. Accused persons denied
the charges and claimed to be tried.

5. The prosecution so as to bring
home the charges, framed against the
accused, examined the following witnesses:

1
Nirottam
PW1
2
Chatra Pal
PW2
3
Om Shankar
PW3
4
Smt.
Santoshi
Kumari
PW4
5
Netrapal
PW5
6
Shaukuntala
PW6
924 INDIAN LAW REPORTS ALLAHABAD SERIES
Devi
7
Bhikam Singh
PW7
8
Dr.
Ashok
Prasad
PW8
9
Mahesh
Chandra
PW9
10
Narendra
Pal
Singh
PW10
11
Radhey Shyam
Sharma
PW11

6. Following documentary evidence
was filed by prosecution, which was proved
by leading evidence:

1
FIR
Ex.ka3
2
Written Report
Ex.ka1
3
P.M. Report
Ex.ka2
4
Report of Vidhi
Vigyan
Pryogshala
Ex.ka12
5
Panchayatnama
Ex.ka7
6
Charge
sheet
(Mool)
Ex.ka6
7
Site
Plan
with
Index
Ex.ka5

7. After completion of prosecution
evidence, statements of accused persons were
recorded u/s 313 of Cr.P.C., in which they
have stated that false evidence has been led
against them and specifically stated that coaccused Anil and deceased used to reside in
separate house from other co-accused, namely,
Lalu Prasad and Smt. Jaleshwari. No witness
is examined by accused persons in defence.

8. After hearing both the parties,
learned trial court convicted the accused
appellant Anil for the offence u/s 302 IPC
and sentenced life imprisonment and fine.
Other co-accused Lalu Prasad and Smt.
Jaleshwari were acquitted from all the
charges. Hence, this appeal.

9. Heard Shri Tripurari Pal, learned
counsel for the appellant and Shri Patanjali
Mishra along with Shri N.K. Srivastava,
learned AGA appearing on behalf of the
State.

10. Learned counsel for the appellant
submitted that appellant has been falsely
implicated in this case. This is a case of no
evidence. Prosecution has examined seven
witnesses of fact in this case, but nobody
has supported the prosecution case and they
have been declared hostile, even after
cross-examining by the State, no evidence
is emerged, which could go against the
appellant. All the witnesses of fact have
stated that there was no demand of dowry
on the part of the appellant. It is submitted
by learned counsel for the appellant that in
fact the deceased consumed insecticide,
which was taken by her mistakenly in the
place of medicine. This stand is taken by
the appellant in his statement u/s 313
Cr.P.C. also.

11. It is next submitted by the learned
counsel for the appellant that learned trial
court has also opined that no case of dowry
death is made out against the appellant, but
he was convicted with the aid of Section
106
of
Indian
Evidence
Act
and
circumstantial evidence, which is not
applicable in this case. Learned counsel
further submitted that prosecution has not
proved that at the time when the deceased
consumed insecticide, he was in the house.
It is not sufficient to establish that accused
and deceased used to reside in the same
house. Moreover, when the learned trial
court has opined that this is not the case of
dowry death and no demand of additional
dowry is proved, then the motive is also not
proved, which is essential circumstance in
the case of circumstantial evidence. There
is no eye-witness in this case and
1 All. Anil Vs. State of U.P.
925
prosecution has not brought any evidence
with regard to the fact that poison was
administered to the deceased by the
appellant. Hence, trial court has committed
a grave error in convicting the appellant for
the offence u/s 302 IPC and appeal is liable
to be allowed.

12. Learned AGA opposed the
submissions made by the learned counsel
for the appellant and contended that it is
not denied by the appellant that he was not
living with the deceased. Hence, learned
trial court has not committed any error in
convicting the accused by way of provision
of Section 106 of Indian Evidence Act
because, in case when the deceased and
appellant were residing together, the
burden was on the appellant to explain and
prove that he did not administer the poison,
which he could not prove. With regard to
the fact of demand of additional dowry, the
learned AGA submitted that the witnesses
of fact were won over by the accused.
Hence, they did not support the prosecution
case. Hence, there is no illegality or
infirmity in the impugned judgement,
which may call for any interference by this
Court.

13. Prosecution has set up this case as
a case of dowry death. Informant lodged
first information report with the averments
that appellant along with his family
members used to torture the deceased in
connection with demand of additional
dowry. But this fact could not be proved by
the prosecution. The witnesses of fact
examined by the prosecution have turned
hostile. PW1 Nirottam is informant and
brother of the deceased. PW2, PW3 and
PW5 are also her brothers, PW4 is Bhabhi
of deceased. PW6 and PW7 are mother and
father of the deceased respectively. They
all have deposed that there was no demand
of dowry from the side of the appellant and
the poison was consumed by the deceased
mistakenly. On the basis of aforesaid
evidence, learned trial court has also
reached to the conclusion that death of the
deceased was not within the four corners of
dowry death.

14. Learned trial court went further
and took the recourse of provision
envisaged in Section 106 of Indian
Evidence Act, where the learned trial court
had held that it is the statement of appellant
in his statement u/s 313 of Cr.P.C. that he
and deceased used to reside in separate
house from his parents. Hence, learned trial
court shifted the burden on the shoulders of
the appellant to prove the factum of death
of deceased as to how she died.

15. In our opinion, learned trial court
has misread the provision of Section 106 of
Indian Evidence Act, which reads as under:

106. Burden of proving fact
especially within knowledge--When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustrations

(a) When a person does an act
with some intention other than that which
the character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling
on a railway without a ticket. The burden of
proving that he had a ticket is on him.

16. As far as the concept of Section
106 of Indian Evidence Act is concerned,
that is misread by the learned trial Judge
because when the offence like murder is
committed in secrecy inside the house, the
initial burden to establish the case would
undoubtedly be upon the prosecution. In
926 INDIAN LAW REPORTS ALLAHABAD SERIES
view of Section 106 Indian Evidence Act,
there will be a corresponding burden on the
inmates of the house to give cogent
explanation as to how the crime was
committed. The inmates of the house
cannot get away by simply keeping quite
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty challenge
on the accused to offer. Then the initial
burden of proving that, as on the date of the
alleged incident, the accused was present in
the house of lastly seen with the deceased
or that he was lastly in the company of the
deceased at the time of the incident would
be primarily upon the prosecution.

17. This High Court in the case of
Santosh Vs. State of U.P. 2021 0
Supreme (All) 173, in which one of us
(Justice Dr. Kaushal Jayendra Thaker,) is
signatory, has also discussed the law
relating to Section 106 of Indian Evidence
Act, which is quoted herein below:

"35. Recently, this Court in
Dharmendra Rajbhar Vs. State of U.P.
(Supra) in similar situation has considered
legal position as far as Section 106 of the
Act, 1872 is concerned. We do not want to
burden our judgment with reproduction of
the said findings and analysis except para
40 of the said judgment wherein the Court
has held as under:

"40. Section 101 to Section 114A
of Chapter-VII of the Indian Evidence Act,
1872 deal with subject "OF THE BURDEN
OF PROOF." Section 106 of the Indian
Evidence Act provides that when any fact is
especially within the knowledge of any
person, the burden of proof to prove that
fact is upon him. Section 106 is an
exception to Section 101 of the Evidence
Act which stipulates that whoever desires
any Court to give judgment as to any legal
right or liability dependent on the existence
of facts which he asserts must prove that
those facts exist. Section 106 of the
evidence act has to be read in conjunction
with and not in derogation of Section 101
Evidence Act. Section 106 of the Indian
Evidence Act does not relieve prosecution
of it's primary and foremost duty to
establish the guilt of the accused beyond all
reasonable
doubts
independent
of
weaknesses of the defence. It is only when
prosecution, for well perceptible and
acceptable reasons, is unable to lead
evidence because of circumstances beyond
it's control including the reason that the
fact required to be proved was "within the
special knowledge of an accused alone"
and prosecution could not have known it by
due care and diligence, that Section 106
can be resorted to by shifting burden on the
accused to disclose that fact which is "in
his special knowledge" and if accused fails
to offer any reasonable explanation to
satiate judicial inquisitive scrutiny, he is
liable to be punished. Section 106 is not
meant to be utilized to make up for the
prosecution's inability to establish its case
by leading, cogent and reliable evidence."

18. In our case, it is established fact
that the appellant and his deceased wife
used to reside in same house. Hence, the
burden to prove factum of the death of the
deceased cannot be shifted on the shoulders
of the appellant unless the prosecution first
of all discharges its burden by proving the
fact that at the time of alleged occurrence
or at the time when the deceased consumed
the poison, the appellant was also inside the
house. Learned AGA, in this regard, has
contended that appellant has not taken the
plea that he was not in the house when the
poison was consumed by the deceased or
administered to her forcibly but this was
1 All. Peer Mohammad Vs. State of U.P. & Ors.
927
the negative burden on the appellant
accused. The prosecution has not brought
forward any evidence which could at least
establish the fact that at the time of
occurrence, the appellant was inside the
house. Hence, there is no applicability of
Section 106 of Indian Evidence Act in this
case.

19. In view of aforesaid discussion,
we are of the considered view that
prosecution has not discharged its burden
to prove the case beyond reasonable doubt
and no reverse burden could be placed on
the accused with the aid of Section 106 of
Indian Evidence Act when the prosecution
has not discharged its burden first.

20. Hence, learned trial Judge has not
appreciated
the
evidence
in
right
perspective and wrongly convicted and
sentenced the appellant. We are unable to
concur with the findings recorded in
impugned judgement and benefit of doubt
is given to the appellant. Consequently, the
appeal is liable to be allowed.

21. Accordingly, the appeal is
allowed.

22. Conviction and sentence of
appellant u/s 302 of IPC is hereby set aside.
The appellant be set free forthwith, if not
wanted in any other case. Fine be refunded
if already deposited.

23. Record and proceedings be sent
back to the court below.
----------
(2023) 1 ILRA 927
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Criminal Appeal No. 770 of 2022

Peer Mohammad ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Dharmendra Kumar

Counsel for the Opposite Parties:
G.A., Mohd. Aslam Azhar Khan, Sri Rajeev
Ratan Shukla

Criminal Law- Code of Criminal Procedure,
1973- Sections 87 & 482- Non- Bailable
Warrants issued immediately after taking
cognizance- After submission of charge
sheet, Court below has taken cognizance
vide order dated 19.08.2020 and by the
same order, non-bailable warrant has also
been issued against the appellant without
assigning any reason- In Section 87 of
Cr.P.C., it is clearly provided that while
issuing summons for arrest, reasons are
required to be given in writing, but
without
going
through
the
same,
immediate after taking cognizance, nonbailable warrant has also been issued-
Therefore, it is required on the part of
Judicial Officers to follow the provisions of
section 87 Cr.P.C. as well as law laid down
by the Courts while issuing summoning
order, bailable or non-bailable warrants as
the case may be. If the facts of the case
require immediate issuance of bailable or
non-bailable
warrants
while
taking
cognizance, it is required on the part of
Magistrate to record his satisfaction.

Warrants for arrest can only be issued by the
Magistrate, while summoning the accused, after
recording reasons in writing and not otherwise.
(Para 8, 9)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-