# Arun Kumar & Ors v. State of U.P. 790 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 3 ILRA 789
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-19
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-ors-v-state-of-u-p-790-indian-law-reports-allahabad-series-43604
- **Pages:** 11

## Headnote

CRIMINAL LAW - Dowry Death - Sections 498-A, 304-B IPC - Section 113-B Evidence
Act - Role of Husband and Relatives - Appreciation of Evidence - Partial Acquittal

Dowry death - Essential ingredients
Where the death of a married woman occurs within seven years of marriage in unnatural
circumstances and evidence establishes cruelty or harassment for dowry "soon before death", the
statutory presumption under Section 113-B of the Evidence Act is attracted

Husband - Primary responsibility
Leaving a pregnant wife in an advanced stage of pregnancy unattended, coupled with evidence of
repeated dowry demand, constitutes cruelty sufficient to sustain conviction of the husband under
Sections 498-A and 304-B IPC, even where death is by consumption of poison.

Relatives - Vague and omnibus allegations
Conviction of mother-in-law, father-in-law, jeth and devar cannot be sustained where allegations
against them are general, vague, exaggerated and unsupported by specific evidence, particularly
when they were not present at the place of occurrence.

Medical and circumstantial evidence
Presence of poison in viscera does not by itself negate dowry death; suicide under circumstances of
persistent dowry harassment attracts Section 304-B IPC when other statutory conditions are fulfilled.

Appellate interference - Scope
While conviction of the husband was rightly upheld, conviction of other relatives was liable to be set
aside due to lack of cogent evidence, warranting partial allowance of the appeal.

Held:
Conviction and sentence of husband upheld; conviction of mother-in-law, father-in-law, jeth and devar
set aside.

Appeal partly allowed.

Case Listed

Harish Kumar Vs. State of Haryana, 2015(2) SCC 601
Vipin Jaiswal (A-I) Vs. State of Andhra Pradesh 2013 (3) SCC 684
M. Mohan Vs. State Represented by the Deputy Superintendent of Police, 2011 (3) SCC
626
Govind Hari Swamy & Others Vs. State of U.P., 2011(6) ADJ 563
Ravendra Singh Vs. State of U.P., 2010(70) ACC 903
Akhilesh Rai and Another Vs. State of U.P. 2010 (9) ADJ 10
State of Haryana Vs. Ashok Kumar alias Billu, 2002 (9) SCC 658
Smt. Shanti Vs. State of Haryana and Others, reported in 1991(1) SCC 191
Rajalal Singh Vs. State of Jharkhand reported in 2007(2) CCSC 901 (SC)

## Text

3 All. Arun Kumar & Ors. Vs State Of U.P.
789
as Naveen Parli are eminently justified and for the same reason, I do not find any ground for
interference.

25. Although, against the impugned order, the petitioner had an alternative remedy by
means of an appeal before the Settlement Officer Consolidation and thereafter a revision
before the Deputy Director of Consolidation, yet these alternative remedies were not availed
on the ground that existence of such alternative remedy is not a complete bar as regards an
order which has been passed without affording opportunity of hearing. The submission of
learned counsel for the petitioner in this regard is in consonance with the law well settled in
this regard. However, once this court finds that despite opportunity, learned counsel for the
petitioner has not been able to even prima facie established an allotment in his favour by the
Gaon Sabha. I also do not see any justification for remanding the matter for orders being
passed after affording the petitioner opportunity of hearing and evidence.

26. The only other contention which requires consideration is as to whether a recall
application, filed after the close of consolidation operations by issuance of notification under
Section 52 of the U.P. Consolidation of Holdings Act, could be entertained. In this regard it
may be noted that the restoration application, filed after the issuance of notification under
Section 52, was accompanied by an application under Section 5 of the Limitation Act, for
condonation of delay. Once, the Consolidation Officer condoned the delay, it would
necessarily mean that the restoration application was filed within time and during the
currency of consolidation operations. The submission of learned counsel for the petitioner in
this regard is therefore without any merits.

27. Besides as already held herein above, the order dated 04.05.1983 passed by the
Consolidation Officer was a patently illegal order granting bhumidhari rights to the
petitioner when in fact he called only have been ordered to be recorded as a bhumidhar with
non transferable rights, if the case setup by him was accepted. However, the case setup by
the petitioner has been discarded for the reasons given above.

28. Accordingly and for the reasons given above, the writ petition is found to be wholly
devoid of merits. It is therefore, dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.

Criminal Appeal No. - 143 of 2012

Arun Kumar & Ors. ...Appellants
Versus
State of U.P. ...Respondent
790 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Aalok Kumar Srivastava, Chandra Dutt, Jitendra Singh Lodhi

Counsel for the Respondent:
Govt. Advocate

CRIMINAL LAW - Dowry Death - Sections 498-A, 304-B IPC - Section 113-B Evidence
Act - Role of Husband and Relatives - Appreciation of Evidence - Partial Acquittal

Dowry death - Essential ingredients
Where the death of a married woman occurs within seven years of marriage in unnatural
circumstances and evidence establishes cruelty or harassment for dowry "soon before death", the
statutory presumption under Section 113-B of the Evidence Act is attracted

Husband - Primary responsibility
Leaving a pregnant wife in an advanced stage of pregnancy unattended, coupled with evidence of
repeated dowry demand, constitutes cruelty sufficient to sustain conviction of the husband under
Sections 498-A and 304-B IPC, even where death is by consumption of poison.

Relatives - Vague and omnibus allegations
Conviction of mother-in-law, father-in-law, jeth and devar cannot be sustained where allegations
against them are general, vague, exaggerated and unsupported by specific evidence, particularly
when they were not present at the place of occurrence.

Medical and circumstantial evidence
Presence of poison in viscera does not by itself negate dowry death; suicide under circumstances of
persistent dowry harassment attracts Section 304-B IPC when other statutory conditions are fulfilled.

Appellate interference - Scope
While conviction of the husband was rightly upheld, conviction of other relatives was liable to be set
aside due to lack of cogent evidence, warranting partial allowance of the appeal.

Held:
Conviction and sentence of husband upheld; conviction of mother-in-law, father-in-law, jeth and devar
set aside.

Appeal partly allowed.

Case Listed

Harish Kumar Vs. State of Haryana, 2015(2) SCC 601
Vipin Jaiswal (A-I) Vs. State of Andhra Pradesh 2013 (3) SCC 684
M. Mohan Vs. State Represented by the Deputy Superintendent of Police, 2011 (3) SCC
626
Govind Hari Swamy & Others Vs. State of U.P., 2011(6) ADJ 563
Ravendra Singh Vs. State of U.P., 2010(70) ACC 903
Akhilesh Rai and Another Vs. State of U.P. 2010 (9) ADJ 10
State of Haryana Vs. Ashok Kumar alias Billu, 2002 (9) SCC 658
Smt. Shanti Vs. State of Haryana and Others, reported in 1991(1) SCC 191
Rajalal Singh Vs. State of Jharkhand reported in 2007(2) CCSC 901 (SC)

(Delivered by Hon'ble Ramesh Sinha, J.)
3 All. Arun Kumar & Ors. Vs State Of U.P.
791

1. The present criminal has been preferred against the judgment and order of conviction
dated 23.12.2011 passed by Sessions Judge, Hamirpur in Case Crime No. 362 of 2007, S.T.
No.224 of 2007, State Vs. Arun Kumar and others, police station Kurara, District Hamirpur,
by which appellants are convicted under Sections 498A, 304-B I.P.C. and Â3⁄4 D.P. Act and
awarded 10 years rigorous imprisonment for the offence under Section 304-B and also
coupled fine of Rs.2000/- each under Section 304-B I.P.C. and also awarded one year
rigorous imprisonment for the offence under Section 498A coupled with fine of Rs.1,000/-
each and also awarded one year rigorous imprisonment for the offence under Section Â3⁄4
D.P. Act coupled with fine of Rs.1,000/- each and in case of default of payment of fine,
appellants to undergo one year additional rigorous imprisonment.

2. The prosecution case in brief is that the informant, namely, Munni Lal, son of Bhura,
resident of village Kapil, police station Jahanabad, District Fatehpur lodged an FIR on
3.6.2007 at police station Kurara, District Hamirpur stating therein that he has solemnized
the marriage of his daughter, namely, Arti on 17.5.2006 according to Hindu rites and
tradition with Arun Kumar, son of Daya Ram, resident of Shankarpur, police station Kurara,
District Hamirpur. After four days of the marriage, an additional demand of Rs.50,000/- and
one motorcycle was being from his daughter by her husband, father-in-law, mother-in-law,
jeth and devar, for which they started her treating cruelly and tortured her continuously.
When the daughter of the informant had come to his house, she informed about her
harassment and torture by her in-laws and asking her to bring Rs.50,000/- and a motorcycle
to them, otherwise she would be done to death. When the said fact was told by the daughter
of the informant to him, then he went to her husband, father-in-law, mother-in-law, jeth and
devar at village Shankarpur and tried to pacify them along with one Manoj Kumar, son of
Murli Prasad, resident of Mohalla Chandagali Jahanabad, police station Jahanabad, District
Fatehpur and Rajesh, son of Heera Lal, resident of village and post Gujela, police station
Sajeti, District Kanpur Nagar also went on 20.5.2007 and met his daughter in her in-laws
house at village Shankarpur, where her daughter in the presence of Manoj Kumar and
Rajesh reiterated the harassment made by her in-laws for a demand of Rs.50,000/- and a
motorcycle from her parents, failing which she was threatened for dire consequences of her
life. On the said date also, the informant tried to pacify the husband-Arun Kumar, motherin-law Ramkali, father-in-law Dayaram, jeth Arvind Kumar and devar Ajay Kumar and their
other relatives at their house, but they did not pay any heed on his request. When the
informant returned to his house and failed to fulfill the additional demand of Rs.50,000/- and
one mothrcycle, then the in-laws of her daughter in a pre-planned manner on 21.5.2007 had
done the deceased to death for want of dowry.

3. The FIR was registered on the written report given by the informant on 3.6.2007 at
10.45 a.m., which was registered as Case Crime No.362 of 2007, under Sections 498A,
304B I.P.C. and Section Â3⁄4 D.P. Act against the accused persons, i.e., husband-Arun
Kumar, mother-in-law Ramkali, father-in-law Dayaram, jeth Arvind Kumar and Devar Ajay
Kumar. Reference of the registration of the FIR was also endorsed in the G.D. No.15 at
10.45 a.m. The written report was also marked as Ex.Ka.-1.
792 INDIAN LAW REPORTS ALLAHABAD SERIES

4. After registration of the case, investigation of the case was carried out by the Circle
Officer,Sadar who was entrusted with the investigation.

5. The Emergency Medical Officer Hamirpur sent an information through a letter dated
21.5.2007 to the Inspector, Kotwali, Hamirpur regarding death of Smt. Arti wife of Arun
Kuamr at 6.50 p.m. in the evening, which was marked as Ex. Ka.-3. On receiving the said
information, police of the concerned police station conducted the inquest of the deceased on
22.5.2007 in the presence of Naib Tehsildar, namely, Salik Ram.The inquest report is
marked as Ex. Ka.-4. After the inquest, the dead body was sealed and sent for post mortem
along with a letter of R.I. to C.M.O., Hamirpur, which was marked as Ex. Ka.-7 & 8
respectively along with the other police documents, i.e., Ex. Ka.-5 & 6.

6. The dead body of the deceased was handed over to the Constable Chandrapal Singh
and Home Guard Virendra Kumar for taking it to the mortuary for post mortem. The post
mortem of the deceased was conducted by Dr. G.Sahai along with Dr. V.C. Pal on 22.5.2007
at 4.30 p.m. in the evening, which was marked as Ex. Ka-2.

7. The cause of death of the deceased could not be ascertained, hence,viscera of the
deceased was preserved.

8. The Investigating Officer, namely, Jogenndra Lal, Circle Officer Sadar on 21.6.2007
made a spot inspection of the place of occurrence and prepared the site plan, which was
marked as Ex. Ka.-9 and further recorded statement of witnesses under Section 161 Cr.P.C.
and thereafter submitted charge sheet against the accused persons on 21.6.2007 which was
marked as Ex. Ka.-10 for the offence udner Sections 498A, 304-B I.P.C and Â3⁄4 D.P. Act.
The report of the Chemical Analyst, Vidhi Vigyan Prayogshala which is on record, has been
marked as Ex.Ka.-13.

9. The case was committed to the Court of Sessions by the learned Magistrate and the
trial Court framed charges against the accused persons, namely, Arun Kumar (husband),
Ramkali (mother-in-law), Dayaram (father-in-law), Arvind (jeth) & Ajay Kumar (devar) on
3.10.2007. The accused denied the charges and claimed their trial.

10. PW1-Munni Lal, the informant of the case is the father of the deceased. He has reaffirmed the version given in the FIR before the trial Court and has submitted that his
daughter was done to death for want of dowry by the accused persons by administering her
dye, due to which she died. He further stated that when he reached the hospital, he found his
daughter in a dead condition. He further stated that on receiving an information on
21.5.2007 from a villager Chhotey Lal who was running a PCO where a call was made
informing about the death of his daughter which was conveyed to him by the son of Chhotey
Lal, namely, Awadhesh as his house, who informed that his daughter is lying in a dead
condition at the gate of District Hospital, Hamirpur. On the information, he along with his
wife-Manorama, brother-Chunni Lal and other persons of the village went to Hamirpur by
Bolero vehicle and found that his daughter was lying in a dead condition outside the District
Hospital, Hamirpur and there was none present from the side of her in-laws. The
3 All. Arun Kumar & Ors. Vs State Of U.P.
793
panchayatnama of her dead body was conducted on the next day i.e., 22.7.2005 and he along
with her other family members were made as witnesses of panchayatnama. The post mortem
of the deceased was conducted and thereafter the dead body was handed over to him and last
rites were performed by him in river Yamuna. He further stated that his daughter was
administered dye by the accused persons who was done to death. He went to lodge the FIR
of the incident on the first day but his report was not lodged and it was informed that after
the post mortem was conducted, the same would be registered. He went to lodge the FIR 2
to 3 times on the day but it was not lodged. On 3.6.2007, when he had gone to police station
Kurara along with his family members and other relatives then on written report submitted
by him to the concerned police station, i.e., Ex. Ka.-1 which was proved by him, the same
was lodged.

11. PW3-Manoj Kumar who is a friend of PW1-Munni Lal had accompanied him to the
in-laws' house of his daughter at Shankarpur on 21.5.2007 and previously also and he
reiterated the version given by PW1 and also stated that deceased in his presence had made
complaint about the torture and harassment for additional demand of Rs.50,000/- and one
motorcycle from her parents. He also stated that the in-laws of the deceased had
administered dye to her, on account of which she died. Her in-laws due to greed of dowry
had done to her death. The Circle Officer who was investigating Officer of the case has
recorded his statement under Section 161 Cr.P.C.

12. PW2- Dr. G. Sahai,, Senior Medico Legal Expert has stated that on 22.5.2007, he
was posted in the District Hospital, Hamirpur, on which date on a written information dated
21.5.2007 received from the C.M.O., Hamirpur, he had conducted the post mortem of the
deceased namely, Arti wife of Arun Kumar on 22.5.2007 at 4.30 p.m., of deceased, which
was brought by Constable Chandrapal Singh and Homeguard Virendra Kumar of police
station Kotwali, District Hamirpur. He stated that the deceased was having a child of 7
months in her womb. The cause of death could not be ascertained , hence, viscera was
preserved. The duration of death was one day old. He further stated that Dr. V.C. Pal was
along with him at the time of post mortem. He proved the post mortem report of the
deceased as Ex. Ka.-2 under his seal and signature. And the information of the C.M.O.,
dated 21.5.2007 as Ex. Ka.-3.

13. PW4-Salig Ram who was posted as Naib Tehsildarl Sadar, District Hamirpur has
stated that under the orders of the District Magistrate, Magistrate, Hamirpur on 22.5.2007,
he went to District Hospital, Hamirpur and prepared the inquest of the deceased in the
presence of the police and family members of the deceased. He proved the panchayatnama
as Ex.Ka..4. He also proved the photolash, chalan Lash, R.I.'s letter , letter of C.M.O.,
Hamirpur as Ex. Ka.-5 to Ka-8.

14. PW5-Jogendra Lal Singh has stated that he was posted as C.O.,Sadar, Hamirpur
and he is Investigating Officer of the present case. He has made an endorsement of Chick
FIR and G.D. in the case diary and recorded the statement of the informant Munni Lal,
Manoj, Rajesh, Kanda Prasad, Chunni Lal, also made endorsement of panchayatnama and
post mortem in the C.D. The accused were not found at their house. On 4.6.2007 he has
794 INDIAN LAW REPORTS ALLAHABAD SERIES
summoned the other witnesses and recorded their statements. He tried to arrest the accused
by visiting the house but he could arrest them as they were absconding. On 14.6.2007, he
got NBW issued from the Court of C.J.M., Hamirpur and obtained the same for arresting of
the accused. On 18.6.2007, all the accused surrendered before the Court in the Court of
C.J.M. and on 20.6.2007 after seeking permission from the Court they were sent to District
Jail, Hamirpur. He went to the place of occurrence and made spot inspection at the pointing
out of the neighbour Mukesh Kumar, which was marked as Ex. Ka-9. After investigation, he
submitted charge sheet against the accused persons for the offence under Sections 498A,
304-B I.P.C. and Â3⁄4 D.P. Act and proved the same as Ex. Ka.10.

15. PW6-Constable 61 Rajaram was examined by the trial Court and he stated that on
3.6.2007 he was posted as Constable Moharrir at police station Kurara, on which the date on
the written report given by Munni Lal he registered FIR as Case Crime no. 362 of 2007,
under Sections 498A, 304-B I.P.C. and Â3⁄4 D.P. Act against the accused persons. He
prepared Chik FIR under his signature and he proved the same as Ex. Ka.-11. He also made
a reference of the FIR in the G.D. Of the said police station and carbon copy is marked as
Ex. Ka.12 and proved the same.

16. The statements of the accused persons were recorded under Section 313 Cr.P.C.
who have denied the prosecution case and submitted that a wrong FIR has been registered
against them. All the accused have stated that they had gone to attend the marriage of their
Bhanja at village Bairol and were present there on the date and time of the incident.

17. Accused Arun Kumar has further stated that in the night of 20/21.5.2007, he was
also present at Bairol in the marriage of son of his brother-in-law and he received a
information about the deceased being not feeling well and he rushed to his house and took
his wife to the District Hospital Hamirpur and his parents and two brothers because of
marriage stayed back. He further stated that his wife was having a pregnancy of 6-7 months,
hence, she was not taken by him in marriage of his Bhanja, on account of which she was
unhappy. He submitted that village Bairol was 40 Kms. away from his village.

18. In defence, the accused examined DW1- Harish Chandra, DW-2 Ram Chandra,
DW-3 Smt. Santosh Kumar and in the documentary evidence filed by the accused was the
marriage card of their Bhanja which has taken place on 21.5.2007 which was proved by
them as Ex. Kha.-1 along with Ex. Kha.-2.

19. DW1-Harish Chandra who is relative of accused Dayaram where he along with his
other family members had gone to attend the marriage of his Bhanja on 21.5.2007. He stated
that all the accused were present on 21.5.2007 and they received an information from their
village at 11-12 P.M. that the wife of the accused Arun Kumar was unwell and on receiving
the said information accused Arun Kumar had immediately left for Shankarpur and other
accused, namely, Dayaram, Ram Kali, Ajay Kumar, and Arvind Kumar were stayed back in
his house for marriage. The Barat of his son Manoj after Vidai had returned on 22.5.2007
and thereafter the other accused persons went to Shankarpur on 23.5.2007. On 22.5.2007,
3 All. Arun Kumar & Ors. Vs State Of U.P.
795
there was no transport due to which they could not returned and they further performed the
all rituals which are to be performed by the maternal uncle.

20. DW2-Ram Chandra is also Samdhi of DW1 with whose son his daughter was
married and he also reiterated the version given by DW1-Harish Chandra.

21. DW3- Smt. Santosh Kumar has stated that she knew the accused Daya Ram who is
resident of her village and further she knew the deceased Arti who was the wife of Arun
Kumar. On the date of the incident at about 10 a.m., the deceased Arti had come to her
house and informed that she was suffering severe colic pain, on account of which she came
to her house and laid down on the ground and informed that her husband had gone to village
Baihrol to attend the marriage ceremony of son of accused Dayaram. The in-laws of the
deceased had also gone in the said marriage. The deceased was having a child in her womb.
As the deceased was having severe pain in her abdomen and she was unable to treat her, she
got a phone call made through a neighbour, namely, Guru Prasad to the accused Arvind and
on receiving the information, accused Arun Kumar had arrived the village at 4 a.m. in the
morning. At that time, the deceased was in her sense and she was weeping. The accused
Arun Kumar had taken her to the hospital and her in-laws had returned two days thereafter.

22. Heard Sri Nikhil Kumar, learned counsel for the appellants, Sri Nikhil Chaturvedi,
learned A.G.A. for the State and perused the record.

23. It has been argued by the learned counsel for the appellants that the marriage
between the appellant no.1-Arun Kumar and deceased was solemnized on 7.5.2006, whereas
the incident had taken place on 21.6.2007. He further submits that there was no cogent
evidence against the appellants that the deceased was being tortured for demand of dowry,
i.e., Rs. 50,000/- and one motorcycle, as has been alleged by the prosecution and she was
done to death by the appellants. He further argued that the appellant no.1 along with other
family members who are father-in-law, mother-in-law, jeth and devar of the deceased, who
are accused in the present case, had gone to attend the marriage ceremony of Bhanja of
appellant No.1 at village Baihrol. The deceased was having pregnancy of 6-7 months and
because of which she was not taken in the marriage ceremony by her husband and in-laws,
on account of which she was unhappy and committed suicide by consuming some poisonous
substance.

24. He next argued that as soon as the appellant no.1-Arun Kumar received the
information about the deceased being unwell at village Bairol where he had gone to attend
the marriage along with his family members, he immediately rushed to his house and
admitted the deceased to the District Hospital, Hamirpur where she died.

25. He further contended that a day prior to the incident, i.e., 20.5.2006, father of the
deceased PW1 along with Manoj Kumar had come to the house of the accused to meet his
daughter and it has been alleged that a demand of Rs.50,000/.- and one motorcycle was
made on the said date and without waiting the fulfillment of the said demand it is highly
improbable that the deceased would be done to death on the very next day i.e., 21.5.2006 by
796 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused persons, hence, the allegation for demand of dowry appears to be an
afterthought.

26. He urged that the FIR of the incident was lodged after a great delay i.e. after 12
days of the incident, for which no explanation has been by the prosecution and in order to
harass the accused persons, the present FIR has been lodged against the appellants levelling
false allegation against them.

27. He submitted that in the FIR and in statement under Section 161 Cr.P.C., there was
no mention by the informant or any of the witnesses that the deceased was done to death by
administering dye and the same has come up in their evidence before the trial Court for the
first time, which shows that the witnesses have falsely deposed about the said fact against
the appellants to give serious colour to the incident, whereas in the viscera report the
deceased is said to have consumed insecticide which has been found in her viscera as per the
chemical report dated 8.1.2008.

28. Learned counsel for the appellants in support of his contention has placed reliance
upon the judgment in the case of Harish Kumar Vs. State of Haryana, 2015(2) SCC 601,
Vipin Jaiswal (A-I) Vs.State of Andhra Pradesh represented by Public Prosecutor, 2013
(3) SCC 684, M. Mohan Vs. State Represented by the Deputy Superintendent of Police,
2011 (3) SCC 626, Govind Hari Swamy & Others Vs. State of U.P., 2011(6) ADJ 563,
Ravendra Singh Vs. State of U.P., 2010(70) ACC 903, Akhilesh Rai and Another Vs. State
of U.P. 2010 (9) ADJ 10, & State of Haryana Vs. Ashok Kumar alias Billu, 2002 (9) SCC
658.

29. Learned AGA on the other hand, has opposed the arguments of learned counsel for
the appellants and has submitted that the deceased was left by her husband and in-laws in a
condition when she was pregnant and having a child of 6-7 months in her womb and further
she was being harassed by them for an additional demand of Rs.50,000/- and a motorcycle
from her parents, for which her father PW1 had visited the house of the accused to pacify
them and requesting not to harass the deceased for fulfillment of the said demand, but no
heed was paid to his request. The deceased was done to death within one year in her
matrimonial home.

30. He argued that there is a presumption under Section 113B of the Evidence Act
against the appellants which has not been discharged by them. Hence, their conviction and
sentence by the trial Court is correct. The appeal is devoid of merit and be dismissed. The
case law which have been relied upon by the learned counsel for the appellants are
distinguishable from the facts of the present case.

31. Considered the submissions advanced by the learned counsel for the parties and
perused the material brought on record.

32. The marriage between the deceased and appellant no.1, Arun Kumar was
solemnized on 17.5.2006 and in the incident had taken place on 21.5.2007, i.e., within one
3 All. Arun Kumar & Ors. Vs State Of U.P.
797
year of marriage. The deceased died unnatural death in her matrimonial home. It appears
from the evidence on record that soon after the marriage the deceased being tortured for
additional demand of dowry i.e., Rs.50,000/- and one motorcycle by the accused persons,
for which she also made complaint when she went to her parents' house informing them that
if the said demand would not be fulfilled, she would be done to death. Father of the
deceased along with his friend PW3 also visited the house of the in-laws of the deceased and
tried to console and pacify the in-laws for not harassing the deceased for the demand for
Rs.50,000/- and one motorcycle, but his request was also turned down.

33. The deceased at the time of incident was pregnant and was carrying pregnancy of
seven months, as is evident from the evidennce of PW3-Dr. G. Sahai, who found a seven
months child in her worm at the time of post mortem examination.

34. The accused in their statements under Section 313 Cr.P.C. have categorically
pleaded that they had gone to attend the marriage of their relative on the date and time of the
incident in village Bairol which was 40 Kms. away from their village and they were present
in the marriage. They received an information about the deceased being unwel from one
Chhotey Lal who is running a PCO who sent an information through his son, namely,
Awadhesh Kumar. On receiving the said information, the husband of the deceased Arun
Kumar, appellant no.1 rushed to his village and took the deceased to the District Hospital
where she died.

35. As per the post mortem report of the deceased, the cause of death could not be
ascertained and viscera was preserved. In the viscera report, which is available on record,
Organo Calro Insecticide poison was found.

36. The contention of the learned counsel for the appellants that the deceased was
unhappy as she was not taken in the marriage ceremony by her husband and in-laws and left
alone in the house in a condition when she was carrying pregnancy of seven months and
account of which the deceased committed suicide by consuming some poisonous substances
which was found in her viscera, which shows that the deceased was not tortured for demand
of dowry and she felt bad that she was left alone in the house by her husband and in-laws
who had gone to attend the marriage, if taken to be true, then too the conduct of the husband
of the deceased, namely, Arun Kumar, appellant no.1, cannot be ignored as it was the
responsibility of the husband to take care of her wife who was in an advance stage of
pregnancy.

37. Further, the repeated demand of additional dowry i.e., Rs.50,000/- and one
motorcycle, which has been made from the deceased and her parents by the appellant no.1
further shows that there was continuous harassment to her by her husband.

38. So far as allegations against the Ramkali (mother-in-law), Dayaram (father-in-law),
Arvind (jeth) & Ajay Kumar (devar) are concerned, no doubt there appears to be allegation
against them for torturing the deceased for fulfillment of the said demand, but it appears
from the evidence that the allegation against them are only general and vague in nature.
798 INDIAN LAW REPORTS ALLAHABAD SERIES
Moreover, admittedly they were not present on the date and time of the incident and had
gone to the attend the marriage ceremony of their relative. Hence, it appears that the
allegations which have been levelled against them has been exaggerated by the prosecution
in order to implicate them along with the husband.

39. The finding recorded by the trial Court regarding conviction and sentence of
appellant nos. 2 to 5, namely, Smt. Ramkali, Daya Ram, Arvind Kumar and Ajay Kumar
who are mother-in-law, father-in-law, jeth and devar of the deceased for the offence in
question, is against the evidence on record, hence, they cannot be held liable for the death of
the deceased as it was the sole responsibility of the husband Arun Kumar, appellant no.1
who has left his wife in such a condition when she was at an advance stage of pregnancy, on
account of which she committed suicide by consuming some poisonous substance as she
was unhappy with the conduct of her husband Arun Kumar, appellant no.1 who had also left
her along which prompted her to take such a drastic step to end her life along with her child
in her womb.

40. The trial Court was right in convicting and sentencing the appellant no.1-Arun
Kumar for the offence in question taking into account the judgment of the Apex Court in the
case of Smt. Shanti Vs. State of Haryana and Others, reported in 1991(1) SCC 191 and
Rajalal Singh Vs. State of Jharkhand reported in 2007(2) CCSC 901 (SC).

41. The presumption under Section 113B of the Evidence Act has also not been
discharged by appellant no.1-Arun Kumar who is husband of the deceased. Thus, the finding
of conviction and sentence recorded by the trial Court against him is hereby upheld.

42. So far as appellants no.2 to 5, namely, Smt. Ramkali, Daya Ram, Arvind Kumar
and Ajay Kumar who are mother-in-law, father-in-law, jeth and devar of the deceased are
concerned, their conviction and sentence for the offence under Sections 498A, 304B I.P.C.
and Section Â3⁄4 D.P. Act is not sustainable considering the evidence on record.

43. Thus, the judgment and order dated 23.12.2011 passed by the trial Court with
respect to appellant nos. 2 to 4, namely, Smt. Ramkali (mother-in-law), Daya Ram (fatherin-law), Arvind Kumar(jeth) & Ajay Kumar (devar) is hereby set aside. The appellant nos.2
to 4, Smt. Ramkali (mother-in-law), Daya Ram (father-in-law), Arvind Kumar (jeth) & Ajay
Kumar (devar) are hereby acquitted and their appeal stands allowed. They are stated to be on
bail. They need not surrender. Their bail bonds and sureties are discharged.

44. So far as appellant no.1, namely, Arun Kumar (husband of the deceased) is
concerned, his conviction and sentence passed by the trial Court is hereby upheld and his
appeal is dismissed. He is stated to be in jail. He shall serve out the sentence as awarded by
the trial Court.

45. In view of the above, the appeal is partly allowed.
3 All. Kullu @ Deepak Vs State Of U.P.
799

46. Office is directed to send a certified copy of this order to the C.J.M. concerned for
necessary information.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No. - 1221 of 2015

Kullu @ Deepak ...Appellant
Versus
State of U.P. ...Respondent

Counsel for Appellant
Rama Shankar Mishra

Counsel for Respondent
Govt. Advocate

Criminal Appeal - Conviction under Section 376 IPC - Rape of minor child - Appreciation
of child witness - Medical and circumstantial evidence - Sentence - No interference.

Child Witness - Competency:
 Evidence of a child witness is admissible under Section 118 of the Evidence Act if the Court is satisfied
that the child is capable of understanding questions and giving rational answers. Mere inability to
answer all questions or absence of oath does not render such evidence inadmissible. (Ref.: Dattu
Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341)

Non-effective Examination of Victim - Not Fatal:
In cases of rape of a child of tender age, ineffective or non-effective examination of the victim is not
fatal to the prosecution case when identity of the accused is otherwise clearly established through
reliable oral, medical and circumstantial evidence. Corroboration from independent sources is not a
rule of law in such cases.

Conduct of Victim - Relevant Circumstance:
The conduct of the victim, particularly her reaction upon seeing the accused during trial, is a relevant
circumstance under the Evidence Act and can be taken into consideration while appreciating evidence.

Prompt FIR - Credibility:
Lodging of FIR promptly, without undue delay, lends assurance to the prosecution version and rules
out the possibility of false implication.

Hostile Witness - Evidentiary Value:
Testimony of a hostile witness is not to be discarded in toto. The portion of evidence which supports
the prosecution case and is found reliable upon scrutiny can be safely relied upon. (Ref.: Koli
Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624)