# Anil Yadav & Ors v. State Of U.P

- **Citation:** (2016) 6 ILRA 262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-14
- **Bench:** Sudhir Kumar Saxena, Alok Kumar Mukherjee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-yadav-ors-v-state-of-u-p-44063
- **Pages:** 7

## Text

262 INDIAN LAW REPORTS ALLAHABAD SERIES

seems from the record that immediately after placing the petitioner under suspension, the
authorities of the Corporation asked the petitioner to deposit the penalty-money for carrying
passengers without ticket, on which an application dated 15.12.96 was moved by the petitioner
mentioning therein that he is unable to pay the penalty and the amount of penalty be recovered
from his salary. In these circumstances the alleged loss to the Corporation was recovered prior to
the outcome of the result of th inquiry and it appears that the said amount was recovered from the
salary of the petitioner.

20. For the reasons aforesaid the impugned order of removal dated 28.5.1998 passed by the
Assistant Regional Manager/opposite party no.2 as well as the appellate order dated 12.3.1999 are
hereby quashed. As the petitioner is litigating since last 18 years, the ends of justice would be
served by reinstating the petitioner in service forthwith. The Appointing Authority is granted
liberty to conduct the inquiry afresh from the date of issuance of charge-sheet within six months of
receipt of the certified copy of this order and the arrears of salary from the date of removal to the
date of reinstatement shall be subject to the final outcome of the inquiry. The petitioner will cooperate with the enquiry proceedings. However, for any reason, if the Appointing Authority
decides not to proceed with the inquiry, in that eventuality, the petitioner would be entitled for 50%
of back wages from the date of removal to the date of reinstatement, which shall be paid to the
petitioner within six months failing which he would be entitled for interest @9% on the delayed
payment after completion of six months. It is clarified that the period from the date of removal to
the date of reinstatement shall be counted as period rendered in service for the purposes of retiral
benefits.

21. The writ petition stands allowed in above terms.
-----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.06.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 2115 Of 2007

Anil Yadav & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants:
I.S. Singh Vatsa, R.C. Yadav, Yogesh Srivastava

Counsel for Respondent:
Government Advocate
6 All. Anil Yadav & Ors. Vs State Of U.P.

263
Head Notes:
Indian Penal Code, 1860-Sections 304-B, 498-A-Dowry death-Presumption under Section
113-B Evidence Act-Specific allegations-Role of relatives-Mother-in-law-Absence of evidence
of cruelty "soon before death"-Acquittal-Husband-Demand of dowry and cruelty provedConviction sustained-Sentence-Life imprisonment-Whether justified-"Rare case" doctrineReduction of sentence.
Where deceased wife died within seven years of marriage and cause of death was asphyxia,
prosecution evidence established demand of motorcycle as additional dowry and cruelty by
husband-Ingredients of Section 304-B I.P.C. fully satisfied against husband-Statutory
presumption under Section 113-B Evidence Act attracted and not rebutted-Conviction of
husband under Sections 304-B and 498-A I.P.C. upheld.
However, allegations against mother-in-law were general in nature-No specific evidence of
cruelty or harassment "soon before death"-On same evidence, sister-in-law already acquittedConviction of mother-in-law unsustainable-Benefit of doubt-Acquittal granted.
Life imprisonment under Section 304-B I.P.C. not mandatory-Extreme penalty to be awarded
only in "rare cases"-Trial court assigned no special reasons for awarding maximum
punishment-No external injuries on body-Death occurred after four years of marriageAccused young in age and had already undergone long incarceration-Case not falling within
category of "rare cases"-Sentence of life imprisonment reduced to ten years' rigorous
imprisonment.
Appeal partly allowed.

Facts:
Deceased Meera was married to appellant Anil Yadav in the year 1994.
Prosecution alleged harassment and cruelty for demand of motorcycle as additional dowry.
Deceased died on 09.09.1998 within seven years of marriage.
Medical evidence showed death due to asphyxia caused by fracture of tracheal rings.
Trial court convicted husband and mother-in-law under Sections 304-B and 498-A I.P.C.;
husband sentenced to life imprisonment.
Sister-in-law was acquitted.
Criminal appeal filed challenging conviction and sentence.

Issues:
Whether conviction of mother-in-law under Sections 304-B and 498-A I.P.C. was sustainable in
absence of specific evidence of cruelty.
Whether prosecution proved ingredients of Section 304-B I.P.C. against husband.
Whether award of life imprisonment under Section 304-B I.P.C. was justified.
Whether sentence required modification in light of settled Supreme Court precedents.

Held:
Mother-in-law acquitted: Evidence against mother-in-law consisted of vague and general
allegations-No proof of cruelty or harassment "soon before death"-No distinct role assignedConviction set aside.
Conviction of husband upheld: Death occurred within seven years of marriage-Evidence of
dowry demand and cruelty by husband established-Presumption under Section 113-B Evidence
Act attracted-Failure to rebut presumption-Conviction under Sections 304-B and 498-A I.P.C.
affirmed.
Sentence modified: Life imprisonment under Section 304-B I.P.C. not compulsory-Award of
maximum sentence requires special reasons-Trial court failed to record reasons-Case not a
264 INDIAN LAW REPORTS ALLAHABAD SERIES

"rare case"-Sentence reduced to ten years' rigorous imprisonment following principles laid
down by Supreme Court in Hari Om v. State of Haryana and other cases.

RESULT:
Appeal partly allowed.
Conviction of mother-in-law Prabhawati under Sections 304-B and 498-A I.P.C. set aside-She is
acquitted.
Conviction of Anil Yadav (husband) under Sections 304-B and 498-A I.P.C. maintained.
Sentence of life imprisonment reduced to 10 years' rigorous imprisonment under Section 304-B
I.P.C.
Sentence under Section 498-A I.P.C. affirmed.
Sentences to run concurrently.
Period already undergone to be set off.
Record to be remitted forthwith.
JUDGEMENT
Hon'ble Sudhir Kumar Saxena, J.
Hon'ble Alok Kumar Mukherjee, J.

(Delivered by Hon'ble Sudhir Kumar Saxena, J.
&
Hon'ble Alok Kumar Mukherjee, J.)

1. This criminal appeal is directed against the judgment and order dated 14.03.2007 passed
by Additional Sessions Judge, court no. 16, Deoria in S.T. No. 66 of 1999 convicting appellants i.e
husband, mother-in-law, under Sections 498-A, 304-B I.P.C. Under Section 304-B I.P.C. husbandappellant has been sentenced to life imprisonment, mother-in-law Smt. Prabhawati has been
sentenced to rigorous imprisonment of seven years. Both have been sentenced to 2 years and one
year R.I. respectively under Section 498-A I.P.C. in addition to fine of Rs. 5000/- upon both the
convicts. Sister-in-law Meena has been acquitted.

2. Briefly stated prosecution case is that Meera was married to appellant Anil Yadav in the
year, 1994. Mother-in-law, two sisters-in-law and husband were harassing her for demand of
Motorcycle as additional dowry. Since father of the victim was not in a position to fulfill the
additional demand, she was not sent after 'Gauna'. They came to know that Meera has been
murdered on 09.09.1998. A report was lodged by Lallan Yadav, whereupon after investigation
chargesheet had been submitted against Anil Yadav, Smt Prabhawati Devi (mother-in-law) and
Meena (sister-in-law). Second sister-in-law Sheela was not chargesheeted.

3. Accused persons denied charge and claimed trial.

4. Prosecution examined 12 witnesses. Lallan Yadav (PW-1), maternal uncle of deceased,
Vashisht Yadav (PW-3), father of deceased, Ram Pravesh Yadav (PW-4), mediator of marriage.
W-9 Shiv Prasad Chaudhary, first cousin of Vasistha states that during marriage, at the time of
'Khir Khawai' a customary ceremony, motorcycle was demanded by Anil. Ram Narayan Yadav
(PW-12) who was present in all the ceremonies, had specifically stated that no demand of dowry
6 All. Anil Yadav & Ors. Vs State Of U.P.

265
was made. Dr. N.B. Gupta (PW-5) has found that death occurred on account of asphyxia due to
three broken rings of trachea. No external injury was found by the doctor. Sukhdev and Ram
Awadh did not support prosecution. Trial Judge relying upon the entire evidence convicted and
sentenced the appellants as above.

5. We have heard Sri R.K. Singh, learned counsel for the appellants and learned A.G.A.
appearing for the State.

6. Submission of Sri R.K. Singh, learned counsel for appellants is that there is no evidence
of cruelty caused by mother-in-law and she could not be benefited by any additional demand of
Motorcycle. Further submission is that there is no evidence that husband had caused dowry death.

7. From the evidence of maternal uncle, father and mediator, we find that general
allegations have been made against mother-in-law, husband and sister-in-law for fulfilling the
additional demand of Motorcycle. No specific allegation of harassment and torture has been made
against mother-in-law. Lallan Yadav merely says that Anil's mother reminded them of promise to
give motorcycle. Allegation of abusing and beating has been made against husband. On the same
evidence, sister-in-law has been acquitted. Vasistha Yadav (PW-3) does not say anything about
cruelty caused by Prabhawati soon before death. Ram Pravesh Yadav (PW-4) is father-in-law of
informant Lallan Yadav. In examination-in-chief, he does not say anything regarding cruelty
caused by Prabhawati. Ram Naresh Yadav (PW-12) negates the demand of motorcycle or cruelty.
Since no specific evidence of cruelty for additional demand of dowry by mother-in-law has been
found, conviction of mother-in-law cannot be sustained, as such, she deserves to be acquitted. Even
trial court has not found any specific role attributable to Prabhawati.

8. So far as case of husband Anil Yadav is concerned, we find that death has taken place
within seven years of marriage. There is specific case of demand of Motorcycle and cruelty caused
therefor. Cause of death has been found to be asphyxia due to three broken rings of trachea. In
these circumstances, presumption may be drawn that dowry death has been caused. Refusal to send
the wife to her relatives after 'Gauna' may also amount to cruelty.

9. In these circumstances, all the ingredients, attracting Section 304-B I.P.C., are available
and prosecution has successfully proved the above ingredients. Anil Yadav (husband) has failed to
lead any cogent evidence to rebut the presumption. The allegation that he was not present on the
spot, is not established from the record. Vivek Gupta, DW-1 does not say that Anil was present at
Kota on the day of occurrence.

10. In these circumstances, we are inclined to agree with the view taken by the trial court
that prosecution has successfully proved its case against the husband. As such, conviction of
husband under Sections 304-B and 498-A I.P.C. is liable to be maintained.

11. Lastly, it was urged by Sri R.K. Singh, learned counsel for the appellants that
maximum punishment awarded is excessive. Marriage has taken place four years ago. No external
266 INDIAN LAW REPORTS ALLAHABAD SERIES

injury has been found on the body of deceased and there is no evidence of cruelty. In 2006 age of
Anil Yadav was 28 years (see statement under Section 313 Cr.P.C.), as such, in 1998 he must be
nearly 20 years. He is lying in jail for last 9 years. He must have been in jail for some time during
trial. Prosecution has failed to establish this case as 'rare' case. Punishment of life imprisonment can
be awarded under Section 304-B I.P.C. but specific reasons have to be given. In support of his
submission, appellants' counsel has placed reliance upon the decision of Hon'ble Apex Court
rendered in the case of Hari Om Vs. State of Haryana & Another [2014 Law Suit (SC) 894].
Paragraphs 21 to 25 of the judgment are being reproduced below:

"21. This issue has been the subject matter of debate before this Court in several
cases, which arose out of Section 304-B read with Section 498-B and wherein this Court while
interpreting the expression "may" occurring in Section 304-B IPC held that it is not mandatory for
the Court in every case to award life imprisonment to the accused once he is found guilty of
offence under Section 304-B. It was held that the Court could award sentence in exercise of its
discretion between seven years to life imprisonment depending upon the facts of each case. It was
held that in no case it could be less than seven years and that extreme punishment of life term
should be awarded in "rare cases" but not in every case.

22. In the case of Hem Chand Vs. State of Haryana, (1994) 6 SCC 727, the courts
below had awarded life term to the accused under Section 304-B read with Section 498-A but this
Court reduced it to 10 years. This was also a case where the accused was a police officer who had
suffered life imprisonment. This Court held as under:

"7........ the accused-appellant was a police employee and instead of checking the
crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the
increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only
raises presumption and lays down that minimum sentence should be seven years but it may extend
to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should
be in rare cases and not in every case. 8. Hence, we are of the view that a sentence of 10 years' RI
would meet the ends of justice. We, accordingly while confirming the conviction of the appellant
under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' RI. ...."

23. Similarly this Court in State of Karnataka Vs. M.V. Manjunathegowda and
Anr., (2003) 2 SCC 188, while convicting the accused under Section 304-B awarded 10 years
imprisonment in somewhat similar facts.

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

"31. In conclusion, we are satisfied that in the facts and circumstances of the case,
the appellant was rightly convicted under Section 304-B IPC. However, his sentence of life
6 All. Anil Yadav & Ors. Vs State Of U.P.

267
imprisonment imposed by the courts below appears to us to be excessive. The appellant is a young
man and has already undergone 6 years of imprisonment after being convicted by the Additional
Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case,
that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We, accordingly
while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of
imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed
against the appellant are confirmed."

25. Applying the principle of law laid down in the aforementioned cases and having
regard to the totality of facts and circumstances of this case, we are of the considered opinion that
the ends of justice would meet, if we reduce the sentence of the appellant from life imprisonment to
that of 10 years. In our view, this case does not fall in the category of a "rare case" as envisaged by
this Court so as to award to the appellant the life imprisonment. That apart, we also notice that
while awarding life imprisonment, the courts below did not assign any reasons."
(emphasis supplied)

12. Any conviction recorded on the basis of presumption has to be treated differently. For
giving maximum sentence of life imprisonment under Section 304-B I.P.C., there must exist special
reasons on record so as to make it a rare case. A brutal killing within short span of marriage, pre
and post conduct of accused and some aggravating factors could furnish some indication. In the
absence of special reasons justifying it to be a rare case, maximum sentence of life imprisonment
should be avoided.

13. In the case at hand, we find that appellant is a young man lying in jail for last nine
years. Death had taken place after four years of marriage. There are no external injuries. There are
other circumstances apparent from record which persuade us to reduce the sentence.

14. Perusal of impugned order shows that trial Judge has not given any reason for awarding
the maximum sentence. Moreover, after going through the record, we are unable to hold that it is a
rare case attracting maximum penalty. In our opinion, sentence needs alteration.

15. Consequently, appeal is partly allowed.

16. Judgment and order dated 14.03.2007 is modified to the extent that:

(a) Conviction of Prabhawati mother-in-law under Section 498-A, 304-B I.P.C. is
set aside. She stands acquitted of the charges framed against her.

(b) Conviction of Anil Yadav under Sections 304-B, 498-A I.P.C. is maintained

(c) Anil Yadav is sentenced for a period of 10 years R.I. under Section 304-B I.P.C.

(d) Sentence awarded to Anil Yadav under Section 498-A I.P.C. is maintained.
268 INDIAN LAW REPORTS ALLAHABAD SERIES

(e) Sentences will run concurrently. Period already spent in jail will be adjusted.

17. Record be remitted forthwith.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.06.2016

BEFORE

THE HON'BLE B. AMIT STHALEKAR, J.

Jail Appeal No.- 2513 Of 2011

Zakir Husain @ Mikal ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
From Jail

Counsel for Respondent:
A. G. A.

This jail appeal has been filed against the judgment of the trial Court dated 03.02.2011 passed in S.T. No. 95
of 2010 case crime no.1396 of 2009 under sections 376 (2)(f), 504 and 506 IPC.
The F.I.R. was lodged by the mother of the victim on 2.11.2009 at 10 a.m., is that on 31.10.2009 at about 4
o' clock afternoon, she went for searching her daughter Km. Sahama and found her near Ramghat in the
bushes. The allegation is that the accused Zakir Husain @ Mikal has committed rape upon the girl. It is also
alleged by the informant that there are injuries on the private part of her daughter.
Court observed that As per the medical report and also the deposition of the doctor during the course of trial,
there was absolutely no injury upon the body of the girl. Hymen was intact. There was no blood discharge
and there was no presence of spermatozoa. Therefore, the definite case of rape beyond all reasonable doubt
under section 376 (2) (f) IPC is not made out.
The appeal is therefore allowed.

List of Cases Cited
1. State of Karnataka Vs F.Nataraj reported in 2015 AIR (SCW) 6241

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. Heard Sri Kandarb Srivastava, learned amicus curiae appointed by the High Court on
behalf of the applicant and Sri Brijesh Yadav, learned A.G.A. for the State.

2. This jail appeal has been filed by the appellant-Zakir Husain alias Mikal against the
judgment of the trial Court dated 03.02.2011 passed in S.T. No. 95 of 2010 case crime no.1396 of
2009 under sections 376 (2)(f), 504 and 506 IPC.