# Deepak Sharma v. State of U.P. Opp. Party

- **Citation:** (2023) 1 ILRA 1019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-23
- **Case number:** Criminal Appeal No. 1717 of 2019
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-sharma-v-state-of-u-p-opp-party-49296
- **Pages:** 9

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Sections 114(e) & 114(e) - provides that
the court may presume that judicial and
official
acts
have
been
regularly
performed. There is nothing on these
letters (two inland and one barong) to
raise any suspicion on their authenticity-
If any laxity has been made regarding
non-verification of these letters during
investigation, for that investigating officer
is accountable and not the de-facto
complainant. He did whatever he could,
with regard to these letters. He had
supplied it's photocopies to investigating
officer as affidavit during investigation. He
filed the originals during trial before the
court and proved the writing of deceased
on these letters as her father, who is
supposed to be acquainted with her
writing and signature, therefore, there is
nothing contrary to law on the part of the
learned trial court to have placed reliance
on these letters.

Where the complainant has made all possible
efforts to prove the authenticity of the letters,
then the genuineness of the same cannot be
disbelieved merely because of lapses by the
investigating
officer,
since
there
is
a
presumption in law that judicial and official acts
have been regularly performed.

Indian Penal Code, 1860- Sections 306 &
107- Section 498-A- Indian Evidence Act,
1872- Section 8- Conduct of accusedappellant was such that it amounts to
abetment of commission of suicide by the
deceased, who happened to be wife of the
accused-appellant, although, there is no
direct evidence of abetment against the
appellant but on the basis of evidence of
father and brother of the deceased as well
as contents of letters sent by the deceased
to her mother, this fact is proved beyond
reasonable that she was subjected to
cruelty for non-fulfillment of demand of
Rs. 1,00,000/- by her husband and inlaws.

Even if direct evidence of abetment of suicide
may not be available but the conduct of the
accused would be a relevant fact, which would
establish their abetment for committing suicide.
(Para 27, 29, 30)

Criminal Appeal disposed off. (E-3)

## Text

1 All. Deepak Sharma Vs. State of U.P.
1019
Mr. Vindeshwari Prasad, learned Amicus
Curiae, who would be entitled to his fee
from the High Court Legal Service
Authority quantified at Rs. 15,000/-.

47. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Jaunpur,
henceforth,
for
necessary
compliance.
----------
(2023) 1 ILRA 1019
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 1717 of 2019

Deepak Sharma ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Mohit Singh

Counsel for the Opp. Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Sections 114(e) & 114(e) - provides that
the court may presume that judicial and
official
acts
have
been
regularly
performed. There is nothing on these
letters (two inland and one barong) to
raise any suspicion on their authenticity-
If any laxity has been made regarding
non-verification of these letters during
investigation, for that investigating officer
is accountable and not the de-facto
complainant. He did whatever he could,
with regard to these letters. He had
supplied it's photocopies to investigating
officer as affidavit during investigation. He
filed the originals during trial before the
court and proved the writing of deceased
on these letters as her father, who is
supposed to be acquainted with her
writing and signature, therefore, there is
nothing contrary to law on the part of the
learned trial court to have placed reliance
on these letters.

Where the complainant has made all possible
efforts to prove the authenticity of the letters,
then the genuineness of the same cannot be
disbelieved merely because of lapses by the
investigating
officer,
since
there
is
a
presumption in law that judicial and official acts
have been regularly performed.

Indian Penal Code, 1860- Sections 306 &
107- Section 498-A- Indian Evidence Act,
1872- Section 8- Conduct of accusedappellant was such that it amounts to
abetment of commission of suicide by the
deceased, who happened to be wife of the
accused-appellant, although, there is no
direct evidence of abetment against the
appellant but on the basis of evidence of
father and brother of the deceased as well
as contents of letters sent by the deceased
to her mother, this fact is proved beyond
reasonable that she was subjected to
cruelty for non-fulfillment of demand of
Rs. 1,00,000/- by her husband and inlaws.

Even if direct evidence of abetment of suicide
may not be available but the conduct of the
accused would be a relevant fact, which would
establish their abetment for committing suicide.
(Para 27, 29, 30)

Criminal Appeal disposed off. (E-3)

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri Mohit Singh, learned
counsel for the appellant and learned
A.G.A. for the State and perused the lower
court record as well as written submissions
filed by learned counsel for the appellant.

2. Present appeal is directed against
the judgment and order dated 17.1.2019
passed by Additional Session Judge, Court
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 13, Moradabad in S.T. No. 1226 of
2015, arising out of Case Crime No. 191-C
of 2015, P.S. Chandauli, District Sambhal,
whereby appellant Deepak Sharma has
been convicted for the offence under
Section 498-A rigorous imprisonment for
two years with fine of Rs. 5,000/- with
default
stipulation,
for
charge
under
Section 306 IPC seven years rigorous
imprisonment and Rs. 20,000/- fine with
default
stipulation,
for
charge
under
Section 4 of D.P. Act one year rigorous
imprisonment and Rs. 5,000/- fine with
default stipulation. All the sentences were
directed to run concurrently. It is also
provided that total fine recovered from the
accused, half of the amount of fine shall be
payable to the informant (father of the
deceased), as compensation in terms of
Section 357 Cr.P.C..

3. Briefly, relevant facts as noted by
the trial court for the disposal of the present
appeal are reproduced as under.

4. Informant Sudhir Sharma S/o
Girish
Chandra
Sharma
moved
an
application under Section 156(3) Cr.P.C.
before learned magistrate for registration of
a case and investigation, whereupon by
order of court, an F.I.R. was lodged on
24.4.2015 at 11:30 hours against accusedappellant Deepak Sharma and others at P.S.
Chandauli. According to F.I.R. version,
informant had married his daughter to
accused-appellant
Deepak
Sharma
on
16.1.2005 according to Hindu rituals and
spent
Rs.
2,50,000/-
cash
and
Rs.
3,00,000/- in kind in the marriage. The
husband and in-laws of her daughter began
demanding further dowry through his
daughter Kanchan Sharma and on nonfulfillment of their demand, they used to
torture her and engaged in mar-peet with
her. She informed these things to her
parents through letters. On 3.12.2013 at
around 9:36 hours (night) informant tried to
communicate his daughter but her phone
was reporting switched off. On 4.12.2013
at around 12:10 hours in noon, father-inlaw of his daughter informed the informant
and his son Gaurav Sutriya that Kanchan
was suffering from headache and thereupon
informant and his son rushed to the place of
her in-laws and found that she was lying
dead there. Her in-laws were in hurry to
cremate her. Accused-persons Deepak
Sharma (husband), Shivom Sharma (fatherin-law), Nisha Rani (mother-in-law) and
Sanchit Sharma @ Bittu (brother-in-law)
killed his daughter conjointly due to nonfulfillment of demand of Rs. 1,00,000/- as
dowry. F.I.R. was lodged under Section
498-A, 302 IPC and G.D. entry was made
there of which carbon copy is filed as Ext.
Ka-11
on
record,
however
after
investigation charge sheets were filed for
offence under Section 306/498-A IPC and
3⁄4 D.P. Act against accused persons.

5. Investigating officer carried out
investigation in the offencee, prepared site
plan as Ext. Ka-22, recorded statements of
witnesses. Inquest of dead body of
deceased was conducted by S.I. Ashok
Kumar which was proved by PW-6 Smt.
Santosh Bishnoi (S.I. Mahila Cell) due to
his retirement which is marked as Ext. Ka12. PW-3 Dr. Vijay Singh conducted postmortem examination of the dead body of
deceased and prepared post-mortem report,
which is proved in evidence during trial
and marked as Ext. Ka-9. Co-accused Smt.
Nisha Rani (mother-in-law) died during
investigation and therefore she was not
charge sheeted.

6. Investigating Officer submitted
charge sheet after investigation against
accused Deepak Sharma (husband of the
1 All. Deepak Sharma Vs. State of U.P.
1021
deceased), Sanchit Sharma (brother-in-law
of the deceased), under Sections 498-A,
306 IPC and Section 3/4 D.P. Act.

7. Learned trial court framed charge
under Section 498-A IPC and 306 IPC and
Section 4 of D.P. Act against accused
Deepak Sharma and Sanchit Sharma and
alternative charge under Section 302 IPC
was also framed against both accused
persons in the case in their respective
sessions trial i.e. S.T. No. 1226 of 2015 and
793 of 2016. Accused Sanchit Sharma
acquitted of all charges and accused
Deepak Sharma has been acquitted of
alternative charge under Section 302 IPC
and convicted for remaining charges.

8. In session trial, prosecution
examined
PW-1
Sudhir
Sharma
(informant), PW-2 Gaurav Sutriya as
witnesses of fact, PW-3 Dr. Vijay Singh,
who
conducted
post-mortem
of
the
deceased, PW-4 Jhajhan Lal, HCP who has
proved
the
chick
F.I.R.
lodged
on
directions of learned C.J.M. under Section
156(3) Cr.P.C. as Ext. Ka-10 and also
proved G.D. entries of registration of case
at P.S. concerned as Ext. Ka-11, PW-5
Shriom Sharma is witness of fact, who is
neighbour of accused persons. PW-7 Dr.
Manish Malhotra has stated fact that
deceased was produced before him for
treatment on the date of incident on
4.12.2013 at 12:30 hours; she was referred
by him for CT Scan as her condition was
poor; she was again produced before him at
around 2:00 pm after CT scan but her blood
pressure and pulse were not realised and he
referred her to higher centre but in the
process of shifting her in ambulance, she
was found to have died. In his opinion, she
died due to cardiac arrest and obstruction in
breathing. He proved medical certificate of
the deceased as Ext. Ka-19 and her blood
test and C.T. Scan report as Ext. Ka-20 and
21. PW-8 S.I. Shamshad Ali (Investigating
Officer)
has
proved
proceedings
of
investigation, site plan as Ext. Ka-22,
charge sheet as Ext. Ka-24 and Ka-24. He
has also proved viscera examination report
of deceased submitted by FSL, Agra as Et.
Ka-23 in which it is stated that in viscera of
deceased, carbamate insecticide poison was
found.

9. Statements of accused was recorded
under Section 313 Cr.P.C. after conclusion
of prosecution evidence in which it is stated
that witnesses have testified against him
due to enmity, however, he has not taken
any specific defense case therein. At the
stage of defense evidence, accused Deepak
Sharma himself appeared as DW-1 and
stated that his wife was suffering from
depression. He never practised cruelty
against his wife nor ever made any demand
of dowry. He was living with his wife and
children happily as out of the wedlock, two
children were born namely Roshni and
Chirag, who were taken by father-in-law
after death of his wife with mutual
understanding. On the date of incident,
birthday of his daughter Roshni fell and for
that reason he came to his home Chandausi
at 7:00 AM after obtaining leave from his
job and celebrations of birthday were on,
however, his wife Kanchan felt headache
and her conditions deteriorated. He took
her to Dr. Manish Malhotra at Chandausi,
however, she was conscious. Her pathology
examination and CT Scan was conducted
on directions of Dr. Manish Malhotra but
thereafter her condition further deteriorated
and when she was being kept on ambulance
for moving her to higher centre, she died at
around 2:30 PM.

10.

Learned
trial
court
after
appreciation
of
evidence
on
record
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
acquitted Sanchit Sharma (father-in-law) of
charges and convicted and sentenced the
appellant as aforesaid.

11.
 Feeling
aggrieved
by
the
impugned judgment and order, appellant
preferred present appeal under Section 374
Cr.P.C.

12. Learned counsel for the appellant
submits that F.I.R. in the present case
lodged belatedly after filing an application
under Section 156(3) Cr.P.C. bearing date
19.2.2015
which
implies
that
even
application under Section 156(3) Cr.P.C.
was filed by the informant after more than
one month of the incident which is an
afterthought and gives ample scope in
deliberations,
embellishment
and
concoction. Co-accused against whom
similar allegations have been made in
F.I.R. as well as in statements of witnesses
of fact, who is brother of the appellant, has
been acquitted by learned trial court on the
basis of same evidence. No complaint
regarding demand of dowry or ill treatment
of deceased lodged for eight years of
marriage. Accused-appellant is held in jail
custody from the stage of investigation
since
2.8.2015
and
from
report
of
Superintendent of Jail concerned, which is
filed on record, he has suffered five years
five months seven days actual punishment
till 5.10.2022, thus he has suffered more
than five years seven months actual
imprisonment
out
of
seven
years
imprisonment awarded to him in main
offence under Section 306 IPC. According
to the judgment under appeal, he has to
suffer maximum period of imprisonment up
to
seven
years
imprisonment
which
includes period of remission also. Learned
trial court did not appreciate the evidence
available on record and wrongly convicted
the appellant. Learned trial court did not
pay heed to the fact that there was no
motive on the part of the appellant to abet
the deceased for committing suicide. The
prosecution witnesses have deposed against
the appellant under the influence of the
informant. The sentence awarded to the
appellant is excessive and stringent in the
eye of law. Appellant has not committed
any offence whatsoever and has been
falsely implicated in the case at the behest
of the informant. Informant has filed a case
with ulterior motive through application
under Section 156(3) Cr.P.C. Learned trial
court has placed reliance on inland letters
allegedly sent by the deceased to her
mother
from her
matrimonial
home,
without the same being duly proved by
expert. Marriage of the deceased and
appellant took place eight years back of the
date of incident and this inconceivable that
demand of dowry of Rs. 1,00,000/- will be
made and persist for so long period by the
appellant and his family members. The
deceased was possessed of mobile phone,
therefore, there was no occasion for her to
communicate with her parents by letters.
No date has been mentioned on inland
letters propounded by the letters which is
used against the appellant. There is no
direct or circumstantial evidence against
appellant in support of the charge of
abatement to commit suicide by the
deceased. PW-5 Shriom Sharma who has
been
examined
by
prosecution
as
independent witness has not supported the
allegations against appellant in his crossexamination.

13. Per contra, learned A.G.A.
countered the statements of learned counsel
for the appellant and submitted that there is
no legal or factual error in impugned
judgment passed by learned trial court
which is based on evidence on record and
all the evidence and material on record has
1 All. Deepak Sharma Vs. State of U.P.
1023
been duly discussed and the arguments of
learned counsel for the parties are duly
addressed therein. There is no infirmity in
the judgment under appeal and thus, it
requires no interference in present appal
and same is liable to be affirmed in totality.

14. I have gone through the case of
prosecution
and
evidence
on
record
thoroughly and examined the judgment under
appeal in the light of grounds taken in appeal
memo as well as statements made by learned
counsel for the appellant.

15. PW-1 Sudhir Sharma (father of the
deceased) has stated in his sworn testimony
that marriage of his deceased daughter
Kanchan and accused Deepak Sharma was
solemnized on 16.1.2005 and stated same
fact, as mentioned in application under
Section 156(3) Cr.P.C. moved by him for
registration of case and investigation which
found basis for lodging of F.I.R. Even PW-5,
who is neighbour of the accused persons, has
stated that Deepak Sharma was married with
deceased Kanchan in the year 2005.

16. Section 498-A IPC provides as
under:-

"Whoever, being the husband or the
relative of the husband of a woman,
subjects such woman to cruelty shall be
punished with imprisonment for a term
which may extend to three years and shall
also be liable to fine.

Explanation.--For the purposes of this
section, "cruelty means"--

(a) any wilful conduct which is of such
a nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health (whether
mental or physical) of the woman; or

(b) harassment of the woman where
such harassment is with a view to coercing
her or any person related to her to meet
any unlawful demand for any property or
valuable security or is on account of failure
by her or any person related to her to meet
such demand."

17. Similarly Section 306 IPC
provides as under:-

"Abetment of suicide.--If any person
commits
suicide,
whoever
abets
the
commission of such suicide, shall be
punished with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine."

18. Section 4 of D.P. Act provides
that if any person demands, directly or
indirectly from the parents or other
relatives or guardian of a bride or bride
groom, as the case may be, any dowry, he
shall be punishable with imprisonment for
a term which shall not be less than six
months, but it may extend to two years and
with fine which may extend to ten
thousand. Provided that the court may, for
adequate and special reasons to mention in
the judgment, impose a sentence of
imprisonment for a term of less than six
months.

19. In present case from statement of
PW-5 Shriom Sharma, PW-7 Dr. Manish
Malhotra and DW-1 Deepak Sharma
(accused), this fact stands proved that on
4.12.2013 deceased Kanchan Sharma got
suddenly ill and she was produced before
PW-7 Dr. Manish Malhotra at around 12:30
hours in noon by her in-laws. She was
suffering convulsions. Her blood pressure
was low and Dr. has referred her for her CT
Scan
and
pathological
examination.
Deceased was brought back to doctor after
CT Scan at around 2:00 PM but doctor
found that her blood pressure and pulse
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
were missing. She was referred to higher
centre but when he was shifting to
ambulance, it was found that she died. Dr.
who treated the deceased has stated that she
died
due
to
respiratory
arrest
and
impediment in breathing. Dr. has also
stated that if a person is under influence of
poison, he/she may suffer respiratory
problems and he or she may die due to
respiratory arrest. In the blood test report,
TLC was found abnormal and such TLC
reflects any infection in the body which is
marked as Ext. Ka-20. Dr. has also stated
that in CT Scan report of deceased
Kanchan, swelling was found in membrane
of her brain for which MRI was suggested.
CT Scan report is marked as Ext. Ka-21.
Dr. has further stated that when the patient
was brought before him, she was in some
what position to speak but she had not told
him that she had been administered poison
by anyone. She had also not told that she
had herself consumed poison. She only told
that she was suffering from acute headache
and vomiting. No smell of poison was
emerging from her clothes. Dr. has
admitted on defense suggestion that as TLC
of the patient was increased, it shows a
general infection and TLC increases due to
long illness. He has also stated that
husband and in-laws of patient of the
deceased were present there throughout.
They had told him that she remained ill,
often and was weak. He cannot confirm
any symptom of poison in the body of
deceased. He had referred her to higher
centre. In case of cardiac arrest or any other
infection, swelling occurs on membrane of
brain.

20. PW-6 S.I. Smt. Santosh Bishnoi
had deposed that she was present along
with S.I. Ashok Kumar who conducted an
inquest of the deceased at the time of
inquest proceeding on 5.12.2013. She was
at that time HCP and she had inspected
dead body of the deceased. No external
injury or symptoms of poison appeared on
dead body. No froth or saliva appeared to
have came out from her mouth.

21. PW-3 Dr. Vijay Singh had
conduced post-mortem examination of
dead body of deceased and has stated that
frothy secretion was present in windpipe.
Post-mortem examination was conducted
on 5.10.2013 and time of death was found
to be one day back in post-mortem. In
internal examination, 50 ml concentrated
liquid was found. As cause of death could
not be ascertained, viscera was preserved.

22. In cross-examination, this witness
has stated that in stomach of the deceased,
50 ml concentrated liquid was present
which was not meal. The carbamate
insecticide poison was found in viscera of
the deceased which used in crops and
vegetables to save it from insects. He
cannot tell what is vital dose of this poison.
No internal or external injury was found on
person of the deceased.

23. PW-1 and PW-2, who are
witnesses of fact, have stated that husband
and
in-laws
of
the
deceased
were
demanding Rs. 1,00,000/- for managing a
job for accused Deepak Sharma in health
department where his mother Smt. Nisha
Rani (then co-accused) was employed.
Witnesses had feigned ignorance on
defense suggestion that deceased was
operating a beauty parlor in a room at her
matrimonial home in the name of Roshni
Beauty Parlour.

24. PW-5 has also stated that
appellant Deepak Sharma was engaged in
some private job and whenever he would
come back to home, there was altercation
1 All. Deepak Sharma Vs. State of U.P.
1025
with his wife Kanchan. The deceased used
to tell him that these people would disturb
her and did not provide money for expenses
and would ask her to bring money from her
parental home. In night of 3.12.2013, her
condition became bad and froth was
emanating from her mouth. There was
panic in the home of accused. Next day, he
came to know that she was produced before
Dr. Manish Malhotra at Chandausi and
subsequently
died.
People
from
her
parental home reached in the evening,
however, in cross-examination, he stated
that deceased was operating a beauty
parlour in some portion of home and was
suffering from depression as she often
remained sick. Her parents were present in
her cremation. Her in-laws never demanded
any dowry in his presence. The deceased
was living in upper portion of the house
which consisted of a kitchen and a
bathroom.

25. The defense side has taken a case
that deceased was suffering from some
sickness and her condition became serious
on the date of incident suddenly after
headache and giddiness and died on the
same day, whereas in viscera examination
of the deceased Kanchan, a clear cut
finding has been given by FSL Agra, which
is admissible in evidence under Section 293
Cr.P.C. being report of a chemical
examiner to Government, which clearly
states that carbamate insecticide poison was
found and there is no reason to disbelieve
this report. No medical papers prior to the
incident have been filed in support of the
contention that she was suffering from
some illness or lying in depression due to
illness.

26. PW-1 has filed two inland letters
and one barong letter posted by the
deceased in the name of address of her
mother through paper no. 15/3 and he had
identified the writing of his daughter, the
deceased which is marked as Ext. Ka-3,
Ka-4 and Ka-5, although dates have not
been mentioned by the writer of the letter
but in one letter the endorsement of postal
department is made on 2.2.2009. All the
three letters were addressed to her mother
Smt. Vimlesh Sharma on address of dairy
shop of her father. In these letters, she had
stated that her in-laws were demanding Rs.
1,00,000/- for managing a job in the
department of her mother-in-law from her
father and on one occasion, she was pushed
by her mother-in-law from staircase and
even thereafter she was hit by kicks on her
stomach by her mother-in-law. She was not
permitted by her father-in-law to use
washing machine. She was warned by four
accused persons to refrain from making any
complaint to her parents otherwise she will
be killed during treatment. She has also
stated that her husband was also forcing her
to bring Rs. 1,00,000/- from her father so
that a job could be managed for him. Her
mobile phone was not recharged by
accused-persons and for that reason, she
was unable to speak to her parents by
mobile phone. No expert opinion had been
obtained about the writing of the deceased
on these letters but letters have been sent
through
postal
agency
which
is
a
Government machinery.

27. Section 114(e) of Evidence Act
provides that the court may presume that
judicial and official acts have been
regularly performed. There is nothing on
these letters (two inland and one barong) to
raise any suspicion on their authenticity.
No date has been mentioned in these letters
is
not
a
ground
to
disbelieve
it's
genuineness.
The
letters
have
been
produced from proper custody and this fact
has come in evidence that he had supplied
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
the
photocopies
of
these
papers
to
investigating agency and subsequently filed
the original before the court.

28. PW-8 Investigating Officer has
also
stated
in
his
evidence
that
photocopies
of
these
letters
were
provided by the informant along with
his affidavit during investigation and
the affidavit was verified by him,
however, he did not get these letters
examined by finger print expert. He had
also not verified as to place from which
these letters were posted.

29. If any laxity has been made
regarding
non-verification
of
these
letters during investigation, for that
investigating officer is accountable and
not the de-facto complainant. He did
whatever he could, with regard to these
letters. He had supplied it's photocopies
to investigating officer as affidavit
during
investigation.
He
filed
the
originals during trial before the court
and proved the writing of deceased on
these letters as her father, who is
supposed to be acquainted with her
writing and signature, therefore, there is
nothing contrary to law on the part of
the learned trial court to have placed
reliance on these letters.

30. From perusal and analysis of
evidence on record, it appears that
conduct of accused-appellant was such
that
it
amounts
to
abetment
of
commission of suicide by the deceased,
who happened to be wife of the
accused-appellant, although, there is no
direct evidence of abetment against the
appellant but on the basis of evidence
of father and brother of the deceased as
well as contents of letters sent by the
deceased to her mother, this fact is
proved beyond reasonable that she was
subjected to cruelty for non-fulfillment
of demand of Rs. 1,00,000/- by her
husband and in-laws and for that
reason, conduct of appellant amounted
to abatement of suicide which was
committed by the deceased, thus, I do
not find any factual or legal error in
appreciation of evidence in recording
conviction of appellant for charges
under Section 306 and 498-A IPC and
Section 4 of D.P. Act. However,
keeping in view the fact that appellant
is in jail since the stage of investigation
and he has suffered around five years
seven months actual imprisonment so
far (without remission), the period of
sentence of imprisonment is liable to be
reduced to period undergone in the light
of totality and facts and circumstances
of the case, therefore, the verdict of
conviction of appellant for charge under
Section 306, 498-A I.P.C. and Section 4
of D.P. Act is affirmed in the light of
above
discussion.
The
substantive
sentence awarded in judgment under
appeal is reduced to period already
undergone. Appellant will be released
from custody on payment of fine
awarded in the judgment or sufferance
of punishment awarded as default
stipulation, as the case may be.

31.

Criminal
appeal
stands
disposed of in the manner.

32. Let a copy of this order be sent
to the jail concerned for compliance
through the court concerned. Court
concerned shall ensure compliance of
this order in accordance with law.

33. Let lower court record be sent
back to the court concerned for further
action.
1 All. Ram Briksha Yadav Vs. State of U.P.
1027
----------
(2023) 1 ILRA 1027
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 4062 of 2008
connected with
Crl. Appeals No. 3081 of 2008, 3082 of 2008,
3083 of 2008 & 3274 of 2008

Ram Briksha Yadav ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri R.P. Srivastava, Sri Amit Kumar Singh, Sri
Anubhav Trivedi, Sri Dilip Kumar, Sri G.S. Hajela,
Sri H.K. Shukla, Sri Nitin Sharma, Sri R.P. Dubey,
Sri Rajiv Lochan Shukla, Sri Ravindra Sharma,
Sri S.K. Dubey, Sri Satish Trivedi, Sri U.S. Shah,
Sri V.S. Mishra, Sri Vikrant Pandey

Counsel for the Opp. Party:
Govt. Advocate, Sri Jitendra Kumar Yadav, Sri
P.C. Srivastava

Criminal Law- Indian Penal Code- Sections
302 & 149- It was from the Carbine of
Prem Singh that the gunshot injury was
caused to the deceased by the accused
Ram Briksha Yadav after snatching the
Carbine from his gunner-So far as the
injuries caused to PW-1 Rakesh Kumar
Yadav, Jai Prakash, Janardan Yadav are
concerned the evidence of prosecution is
not specific as to who assaulted them and
what was the weapon of assault used by
the accused. None of the accused have
been assigned any specific weapon of
assault. Existence of nearly 400 persons at
the polling booth is otherwise admitted to
the prosecution. Since no specific weapon
of assault is assigned to any of the
accused (other than Ram Briksha Yadav)
we find it difficult to hold any specific
individual guilty of assaulting Rakesh
Kumar Yadav, Janardan Yadav and Jai
Prakash Yadav. For arriving at such
conclusion we also rely upon the fact that
injuries were caused not only to informant
side but also to the members of accused
party.

Where a very large number of persons were
present at the spot and neither any specific
weapon has been assigned to the accused, nor
any specific role of assault has been attributed
to them and the accused side has also sustained
injuries, then it cannot be said that the accused
formed an unlawful assembly with a common
object.

Indian Penal Code, 1860- Section 300-
Sections 302 & 304 Part I- The incident
occurred during the panchayat poll, at the
spur of moment - A fight had erupted
between supporters of two contestant
leading to assault and it was in this heat
of passion that the accused Ram Briksha
Yadav snatched the Carbine of his gunner
and fired upon the deceased. No evidence
exists on record to show that there was a
common object or intent on part of
accused persons to commit the murder of
the deceased Mahatam Yadav. The action
of
Ram
Briksha
Yadav
in
suddenly
snatching the Carbine and firing at the
deceased appears to be his individual act-
at the spur of moment without any premeditation
in
which
the
deceased
sustained gunshot injury at the hands of
accused Ram Briksha Yadav. The act of
firing with an intent to commit the murder
of
the
deceased
appears
unlikely.
Necessary
ingredients
to
attract
4th
Exception to section 300 IPC are clearly
present in the facts of the present case
inasmuch as death is caused; there
existed no pre-meditation; it was a
sudden fight; the offender has not taken
undue advantage or acted in a cruel or
unusual manner, therefore, the case in
hand clearly falls under fourth exception
to section 300 IPC.

As the accused had acted on the spur of the
moment, without pre-meditation and in sudden
heat of passion resulting in a solitary fire arm