# Deepak v. State

- **Citation:** (2021) 10 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-03
- **Case number:** Jail Appeal No. 18 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-v-state-46346
- **Pages:** 24

## Headnote

(A) Criminal Law - Appeal from jail -
Indian Penal Code, 1860 - Section 304-B
- Dowry death, Section 498-A - Husband
or relative of husband of a woman
subjecting her to cruelty - The Code of
criminal procedure, 1973 - Section 161 ,
313 - Dowry Prohibition Act, 1961 -
Section 3/4 - circumstantial evidence -
"dowry" -"dowry death" - "soon before
her death" - There must be existence of a
proximate live link between the effect of
cruelty based on dowry demand and the
death concerned - plea of alibi - minor
discrepancies or contradictions.(Para -
45)

(B) Indian Evidence Act, 1872 - Section
113-A - Presumption as to abetment of
sucide by a married woman , Section 113B - Presumption as to dowry death ,
Section
114
-
Court
may
presume
existence of certain facts - nexus between
the
demand
of
dowry,
cruelty
or
harassment, based upon such demand and
the date of death - where a wife is driven
to the extreme step of suicide, it would be
reasonable to assume active role of her
husband rather than leaving it to the
discretion of the Court.(Para - 32)

Dowry death of victim - hanged by her in-laws -
victim subjected to cruelty and harassment -
continious demand of dowry by her in-laws -
conclusion of trial court - demand of dowry was
the root cause - drew the victim (wife) to take
an extreme step of suicide - convicted the
accused/appellant - parents acquited.
46 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-Victim
subjected
to
cruelty
and
harassment for demand of dowry and the chain
of incidents constitute proximate live link with
the death of deceased . Prosecution has
successfully discharges its duty and it is
obligatory on the Court to raise a presumption
that accused caused the dowry death. There is
no illegality, infirmity or perversity in the
impugned judgment and order passed by the
Court below . Court below has rightly held the
present appellant guilty under Section 304-B
and 498-A IPC and under Section 4 of Dowry
Prohibition Act. (Para - 62,63,64,65)

Jail appeal dismissed. (E-7)

List of Cases cited:-

## Text

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10 All. Deepak Vs. State
45
applicant is accepted, the stipulation in the
trust deed that any dispute be referred to
the Panch will not override statutory
provision since Section 92 has been
incorporated in C.P.C. with an object that
the trust which is charitable or public
religious trust should be managed as per the
wish of the Founder of the trust and in
accordance with the provisions of the trust
deed. Accordingly, this Court is not
inclined to accept the aforesaid contention
of learned counsel for the applicant.

38. So far as the last contention of
learned counsel for the applicant that the
respondent has no locus to file a suit, it is
relevant to point out that the respondent in
the application under Section 92 CPC
specifically averred that they belong to the
family of Founder of the trust and used to
visit the temple for darshan and pooja of
the deity. Thus, the last contention of
learned counsel for the applicant on the
point of locus is also not sustainable
keeping in view the fact that the applicant
has ample opportunity to lead evidence to
disprove the statement of the respondent
that they belong to the family of the
Founder of the trust.

39. For the reasons given above, this
Court finds that no illegality or a
jurisdictional error has been committed by
the trial court in granting leave to suit to the
respondents.

40. Thus, for the reasons given above,
the revision lacks merit and is dismissed
without any order as to cost.
----------
(2021)10ILR A45
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2021

BEFORE
THE HON'BLE DINESH PATHAK, .J.

Jail Appeal No. 18 of 2019

Deepak ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Ashok Kumar Yadav, Sri
Rakesh Dube

Counsel for the Opposite Party:
A.G.A.

(A) Criminal Law - Appeal from jail -
Indian Penal Code, 1860 - Section 304-B
- Dowry death, Section 498-A - Husband
or relative of husband of a woman
subjecting her to cruelty - The Code of
criminal procedure, 1973 - Section 161 ,
313 - Dowry Prohibition Act, 1961 -
Section 3/4 - circumstantial evidence -
"dowry" -"dowry death" - "soon before
her death" - There must be existence of a
proximate live link between the effect of
cruelty based on dowry demand and the
death concerned - plea of alibi - minor
discrepancies or contradictions.(Para -
45)

(B) Indian Evidence Act, 1872 - Section
113-A - Presumption as to abetment of
sucide by a married woman , Section 113B - Presumption as to dowry death ,
Section
114
-
Court
may
presume
existence of certain facts - nexus between
the
demand
of
dowry,
cruelty
or
harassment, based upon such demand and
the date of death - where a wife is driven
to the extreme step of suicide, it would be
reasonable to assume active role of her
husband rather than leaving it to the
discretion of the Court.(Para - 32)

Dowry death of victim - hanged by her in-laws -
victim subjected to cruelty and harassment -
continious demand of dowry by her in-laws -
conclusion of trial court - demand of dowry was
the root cause - drew the victim (wife) to take
an extreme step of suicide - convicted the
accused/appellant - parents acquited.
46 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-Victim
subjected
to
cruelty
and
harassment for demand of dowry and the chain
of incidents constitute proximate live link with
the death of deceased . Prosecution has
successfully discharges its duty and it is
obligatory on the Court to raise a presumption
that accused caused the dowry death. There is
no illegality, infirmity or perversity in the
impugned judgment and order passed by the
Court below . Court below has rightly held the
present appellant guilty under Section 304-B
and 498-A IPC and under Section 4 of Dowry
Prohibition Act. (Para - 62,63,64,65)

Jail appeal dismissed. (E-7)

List of Cases cited:-

1. Rajendra Singh Vs St. of Pun., (2015) 6 SCC
477

2. Sher Singh @ Partapa Vs St. of Har., (2015)
3 SCC 724

3. St. of Travancore-Cochin Vs Shanmugha
Vilas Cashewnut Factory, AIR 1953 SC 333

4. St. of T.N. Vs Arooran Sugars Ltd. ,(1997) 1
SCC 326

5. Mithu Vs St. of Pun., AIR 1983 SC 473

6. P.N. Krishna Lal Vs Govt. of Kerala, 1995
Supp (2) SCC 187

7. Surinder Singh Vs St. of Har., (2014) 4 SCC
129

8. Bharwada Ghoginbhai Hirjibhai Vs St. of
Guj., AIR 1983 SC 753

9. Vinod Kumar Vs St. of Har., (2015) 3 SCC
138

10. Baljinder Kaur Vs St. of Pun., (2015) 2 SCC
629

11. Dinesh Vs St. of Har., 2014(12) SC 532

12. Hira Lal & ors. Vs St. of St. (Govt. of NCT)
Delhi, (2003) 8 SCC 80

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
appellant and Shri O.P. Mishra, learned
A.G.A. for the State.

2. The instant jail appeal has been
preferred
by
the
accused-appellant
challenging the judgment and order dated
30.11.2018 passed by the Additional
District Judge/Fast Track Court (created by
XIVth
Finance
Commission),
Kanpur
Nagar in Sessions Trial No.529 of 2015
(State
vs.
Deepak
and
two
others)
convicting the present appellant under
Section 498-A IPC sentencing him to
undergo three years imprisonment along
with fine to the tune of Rs.5000/- and, in
case of default thereof, he was further to
undergo
three
months
additional
imprisonment and under Section 304-B IPC
sentencing him to undergo eight years
imprisonment. He was also convicted under
Section 4 of Dowry Prohibition Act, 1961
(hereinafter referred to as "D.P. Act") and
sentenced
to
undergo
one
year
imprisonment along with fine to the tune of
Rs.5000/- and in case of default thereof, he
was further to undergo three months
additional imprisonment. All the sentences
were directed to run concurrently.

3. An First Information Report
(hereinafter referred to as "FIR") had been
lodged by the informant namely Deena
Nath (PW-1) with respect to dowry death
of his daughter, who was allegedly killed
by her in-laws. As per F.I.R. version,
marriage of informant's daughter was
solemnized with Deepak (accused/appellant
herein). At the time of marriage, he had
given Rs.1 lakh cash as well as goods
worth Rs.1 lakh. That apart, he had given
one golden chain and golden ring to the
groom, but in-laws of his daughter were not
satisfied
with
the
dowry.
Husband
(Deepak), father-in-law (Dinesh alias Tota
10 All. Deepak Vs. State
47
Ram), mother-in-law (Sunita), brother-inlaw (Anshu) and sister-in-law (Rekha w/o
Anshu) of his daughter used to physically
and mentally torture her for want of
motorcycle
and
cash
amounting
Rs.50,000/-. Due to non-fulfillment of their
demand of dowry, they used to beat her up.
In-laws of his daughter had attempted
several times to kill her, who used to tell
her ordeal to her parents. On 22.11.2014,
her in-laws kicked her out from their house,
later on, when relatives intervened in the
matter, they permitted her to enter the
house
on
20.05.2015,
but
she
was
throughout
subjected
to
cruelty.
On
12.06.2015 at about 12:30 hours, police
informed him about his daughter's death.
After reaching there, he came to know the
entire facts. The informant believed that
five accused, as mentioned above, had
hanged his daughter to death due to nonfulfillment of their demand of dowry.

4. In this backdrop, PW-1 had filed a
written report dated 12.06.2015 (Exhibit Ka
1) with respect to the death of his daughter.
Aforesaid written report was endorsed in
General Diary (Exhibit Ka 10) and on the
basis thereof, an F.I.R. Dated 12.06.2015
(Exhibit Ka 9) was registered, at about
19:00 hours, as Case Crime No.0449 under
Sections 304-B, 498-A IPC and 3/4 of the
D.P. Act, accusing five persons namely,
Deepak (husband of the deceased/victim),
Dinesh alias Tota Ram (father-in-law),
Sunita (mother-in-law), Anshu (Jeth) and
Rekha (sister-in-law) respectively.

5. As per Inquest Report dated
12.06.2015 (Exhibit Ka 2), there was no
sign of injury on the dead body of the
deceased except a ligature mark on the
right side of the neck. Aforesaid report was
prepared
and
signed
by
Pramesh
Srivastava, Tehsildar (PW-4). Forensic
Field Unit, Cantt. Kanpur Nagar had
inspected the site of occurrence and
submitted a report dated 12.06.2015
(Exhibit Ka 11). Aforesaid report was
proved by Vinod Kumar (PW-9), Chief
Scientist, Forensic Science Laboratory.

6. Dr. Anil Nigam (PW-5) has proved
Post Mortem Report dated 13.06.2015
(Exhibit Ka 7). In the Post Mortem Report,
cause of death has been shown asphyxia
due to ante mortem injury. Two external
injuries had been shown on the body,
which are as under :-

(i) Ligature mark 30 cm x 2 cm
around the neck, with 7 cm gap right side
back of neck. Distance 5 cm below chin,
6.5 cm below left ear, 1 cm below right ear.
On dissection of ligature mark-dry and
parchment like glistening present under the
ligature mark. Ligature mark obliquely
placed, high up in the neck between chin
and thyroid cartilage.

(ii) Contusion 8 cm x 3 cm on
front of forehead, just above both eyebrow.

Hanging and use of hard and
blunt object had been shown under the head
of manner of causation of injuries.

7. After completion of investigation,
the Investigating Officer had submitted a
charge-sheet dated 10.08.2015 (Exhibit Ka
10) arraigning only three persons as
accused namely Deepak (husband), Dinesh
(father-in-law) and Sunita (mother-in-law)
under Sections 498-A, 304-B IPC and 3/4
of the D.P. Act.

8. By the order dated 18.09.2015,
Chief Metropolitan Magistrate, Kanpur
Nagar has committed the case to the
Sessions Court for trial. By the order dated
25.02.2016, the case was transferred to the
Court concerned. Learned Trial Court, vide
48 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 11.01.2016 had framed charges
under Section 498A/34, 304-B/34 IPC and
3/4 of the D. P. Act. Subsequently, vide
order dated 25.10.2018, learned Trial Court
had framed an alternative charge under
Section 302/34 IPC.

9.

To
prove
the
accusation,
prosecution had produced as many as nine
witnesses, out of them three witnesses are
of the fact and the remaining are formal
witnesses.

10.

PW-1
Deena
Nath
(first
informant/father
of
the
victim)
had
supported the version of FIR qua allegation
of dowry death against the accused persons
(in-laws of his daughter). He had reiterated
that
marriage
of
his
daughter
was
solemnized on 10.12.2012 with Deepak
(appellant herein), wherein Rs.1 lakh cash
and goods worth Rs.1 lakh were given by
him. Apart from that, he had also given one
golden ring and one golden chain. After
marriage, everything was quite normal for
some time, but when his daughter came for
the second time to her parental house, she
had narrated her ordeal to the informant
(PW-1), his wife Chandrmukhi, son Anil
Kumar and daughter Pooja. As per
informant/PW-1, his daughter had made an
allegation against her husband (Deepak),
father-in-law (Dinesh alias Tota Ram),
mother-in-law (Sunita), Jeth/brother-in-law
(Anshul) and Jethani/sister-in-law (Rekha)
that they used to torture her physically and
mentally for want of one motorcycle and
cash Rs.50,000/-. Informant had tried to
persuade the in-laws of his daughter and
sent her back with them, but they used to
torture her for demand of dowry. On
22.11.2014, when his daughter was kicked
out from her matrimonial home, she stayed
at her parental house for six months under
the belief that one day everything would be
normal. On 20.05.2015, she had been sent
to her in-laws' house due to intervention of
the relatives. On 12.06.2015 at about 1212.30 hours, he had received telephonic
information from the police about death of
his daughter. Thereafter, he along with his
son Sanjay, wife Chandramukhi and elder
son-in-law
reached
at
his
daughter's
matrimonial house on the same day i.e.
12.06.2015 at about 5.00 P.M., where he
saw his daughter lying dead on the floor.
Thereafter, he went to police station and
moved a complaint. He had proved the
Written Report as Exhibit Ka 1. On the
next date i.e. 13.06.2015, he was called
upon by the Circle Officer before whom he
had stated all the facts. At that time, his
wife and son Sanjay had stayed at the
house of his daughter. He had made
emphasis that his daughter had been killed
by her in-laws due to non fulfillment of
dowry demand. In his cross-examination,
PW-1 had stated that his son-in-law was
educated upto 8th Standard and was
serving in Air Force. He has further stated
that in-laws of his daughter had never
demanded any dowry from him, rather they
demanded dowry from his daughter. It is
further stated that in his presence in-laws
have never demanded any dowry or
tortured his daughter. His daughter was
intelligent and was a Graduate.

11. PW-2 Anil alias Sanjay, brother of
victim,
has
supported
the
case
of
prosecution and stated that victim was his
third sister, who was married with present
appellant. First time, after 8 days, he
brought his sister back to home. Second
time, after 1 and 1⁄2 months when she
returned back to her parental home, she had
narrated her ordeal before her mother and
sister.
PW-2
has
stated
that
his
sister(victim) disclosed that her in-laws
were not satisfied with the dowry and they
10 All. Deepak Vs. State
49
were demanding cash Rs.50,000/- and one
motorcycle. His sister had made allegation
against all the five accused persons, who
are named in the FIR, that they used to
torture her mentally and physically. His
sister was kicked out from her in-laws'
house and after intervention of the
relatives, she returned to her matrimonial
home. His father received a telephonic
information from the police qua death of
his sister. After getting information, he, his
father, mother and 1-2 persons of the area
reached at the house of victim, where he
found his sister lying dead on the floor. As
per statement of PW-2, he and his family
members had bonafide belief that victim
had been killed by her in-laws for want of
dowry. His father moved a written report to
the police and thereafter dead body of the
victim
was
sent
for
post
mortem
examination. Funeral was conducted by
younger brother of appellant in which PW2 and his family members had participated.
He has verified his signature on the Inquest
Report. In his cross-examination, PW-2 has
stated that neither any of the accused had
demanded dowry from him nor his sister
was tortured in his presence. He had given
divergent statement with respect to the
position of dead body of victim as to what
he had seen on the spot and what he had
already stated before the I.O. under Section
161 Cr.P.C. In his cross-examination, he
has further stated that at the time of inquest
there was no Magistrate available on the
spot.

12. PW-3 Chandramukhi (mother of
the
victim)
had
also
supported
the
prosecution case and made accusation
against all the accused persons for dowry
death of her daughter. In her examinationin-chief she had stated that when, after four
days, his son brought her daughter back to
parental home, she had told that her
mother-in-law, sister-in-law and husband
are demanding cash Rs.50,000/- and one
motorcycle. She had sent her daughter back
to her in-laws' house after persuading her.
Thereafter, several times, she went to her
parental house and all times she narrated
her ordeal qua dowry demand by the
accused persons/her in-laws. Last time, she
sent her daughter back to her in-laws' house
on their assurance that they will keep her
happily. In the meantime, she used to
narrate
her
ordeal
on
telephonic
conversation.
After
16-17
days,
her
husband received telephonic information
from the police qua death of her daughter.
When she, along with family members,
reached at the matrimonial house of her
daughter (victim), found dead body of her
daughter lying on the floor. At that time, no
one was present from the in-laws side. In
her cross-examination, she had stated that
before the incident, accused persons had
demanded cash Rs.50,000/- and one
motorcycle from them, which included she
herself, her husband and son.

13.

PW-4
Pramesh
Srivastava
(Tehsildar) has stated that he had prepared
and signed the Inquest Report (Exhibit Ka
2). Inquest Report was singed by the
witnesses and Constable Bachcha Singh,
Constable Pushpa Tomar and Inspector. He
has made a report for post mortem
examination of the dead body and referred
to the Chief Medical Officer.

14. PW-5 Dr. Anil Nigam, Senior
Consultant,
U.H.M.
Police
Hospital,
Kanpur has deposed in his examination-inchief that on 13.06.2015 he was posted as
Senior Consultant at Kanpur Post Mortem
Hospital. At the time of post mortem
examination rigor mortis had passed from
upper extremity and present in lower
extremity. Lips, face, nails cyanosed, mark
50 INDIAN LAW REPORTS ALLAHABAD SERIES
of saliva and saliva dribbling on left angle
of mouth. Eyes closed, mouth half open,
tongue protruding out. He has further
deposed that there was two marks of
injuries on the body, first is a ligature mark
on the neck which was sign of hanging,
second injury was contusion. Cause of
death was asphyxia due to ante mortem
injury (hanging). He has proved post
mortem examination report as Exhibit Ka 7
and said that injury no.2 was caused due to
hard and blunt object.

15. PW-6 Om Prakash Singh, the first
Investigating Officer (hereinafter referred
to as "I.O."), has reiterated all the facts to
which he has investigated and has proved
Site Plan as Exhibit Ka 8.

16. PW-7 Manju Yadav (Constable
No.904) has deposed that computerized
copy was prepared on the basis of written
report submitted by first informant Deena
Nath. According to him, G.D. entry No.46
at about 19.00 hours on 12.06.2015 was
made by then Station House Officer,
Rajdev Rai. She has proved FIR as Exhibit
Ka 9 and photocopy of G.D. entry as
Exhibit Ka 10.

17. PW-8 Vishal Pandey, second I.O.,
has taken over the charge of investigation
from the earlier I.O. and has stated all the
facts chronologically with regard to the
investigation. He has proved the Charge
Sheet as Exhibit Ka 11.

18. PW-9 Vinod Kumar, Senior
Scientist, Forensic Science Laboratory,
Lucknow, (the then In-charge of Forensic
Field Unit, Cantt. Kanpur) deposed that he
has investigated the crime scene and
submitted a detailed report with respect to
the condition of the dead body of the victim
and crime scene. He had also taken
photographs thereof. He had prepared the
report on spot and signed the same which
has been proved as Exhibit Ka 11. He has
further
deposed
that
after
enquiry/investigation of dead body, it was
found to be a case of suicidal death, which
is not natural.

19. In his reply to the query, as put to
the accused-appellant under Section 313
Cr.P.C., he has admitted his marriage with
the victim but denied all the allegations
made by the prosecution. He has taken plea
of alibi that at the time of incident he was
at the factory, from where he was sent to
jail. Another accused Dinesh alias Tota
Ram (father of the appellant) had stated
that victim had hanged herself out of anger,
as she was annoyed because she wanted to
go to her parental home, but his son (i.e.
husband of victim/appellant) had refused to
let her go to parental home and he had gone
at work place after scolding his wife
(victim). According to him, this incident of
scolding was witnessed by other residents
in the vicinity. He has been implicated in
false prosecution. Third accused Sunita
(mother of the appellant) had stated that on
the date of occurrence, victim was adamant
to go to her parental home, but appellant
refused to let her go there. Thereafter the
victim closed the door of the room and
hanged herself with the fan and committed
suicide. She had also pleaded her innocence
and prayed for trial.

20. In defence, accused persons had
got examined three witnesses namely Vijay
Kumar Dubey (DW-1), Ram Dulari (DW2) and Poonam Rathore (DW-3). All the
defence witnesses have supported the case
of the accused persons and deposed that on
the date of occurrence, victim (appellant's
wife) was adamant to go to her parental
home, which was repressed by her husband
10 All. Deepak Vs. State
51
and thereafter, he went to his work. That
refusal made by her husband resulted into
suicidal death of the victim. They further
deposed that case of the prosecution qua
demand of dowry is false and fictitious.
Accused-appellant and the victim were
living separately from their other family
members.
The
accused
had
never
demanded
Rs.50,000/-
cash
and
a
motorcycle, as has been mentioned in the
F.I.R.

21. The trial court, after considering
the facts and circumstances of the case and
the evidence available on the record, had
convicted the present appellant under
Section 498-A & 304-B IPC and Section 4
of the D.P. Act, but acquitted Dinesh alias
Tota Ram (father of the appellant) and
Sunita (mother of the appellant) on the
ground that they were living separately
from
their
son
and
daughter-in-law
(victim), therefore, no case was made out
against them beyond all reasonable doubts.

22. Assailing the impugned judgment,
learned counsel for the appellant has
submitted as under :-

(a) PW-1 Dina Nath and PW-2
Anil had deposed that neither demand of
dowry was made, nor the victim was
harassed and tortured in their presence.

(b) Deposition of PW-3 was
contrary to the deposition of PW-1 and
PW-2 with respect to the demand of dowry,
who has stated that accused-appellant has
demanded dowry of cash Rs.50,000/- and a
motorcycle from the parents and brother of
the deceased.

(c)
There
is
a
glaring
discrepancy/contradiction
between
the
statements of PWs-2 and 3 recorded under
Section 161 Cr.P.C. and their deposition
before the Court with respect to the
condition and position of the dead body at
the time when they reached at the crime
scene.

(d) There is no evidence of
persistent demand of dowry from the
victim or her parents. There is no
independent witness to corroborate the
prosecution's case qua demand of dowry.
Disclosure made by the victim before her
parents is the only evidence available
regarding demand of dowry made by
accused persons, which is not sufficient to
prove the accusation, that too in light of the
fact that PWs-1 and 2 have specifically
deposed that no demand of dowry had been
made from them.

(e) In the facts and circumstances
of
the
present
case,
there
is
no
corroborating evidence to prove that soon
before the death of the victim she was
subjected to cruelty or harassment in
connection
with
demand
of
dowry,
therefore, presumption qua dowry death of
the victim cannot be drawn under Section
113-B
of
the
Evidence
Act,
1872
(hereinafter referred to as "Evidence Act").

(f) Except one stray incident i.e.
dated 22.11.2014 wherein the victim had
allegedly
been
kicked
out
of
her
matrimonial home by her in-laws', there is
no
other
corroborating
evidence
to
constitute a proximate live link with death
of the deceased.

(g) Learned counsel for the
appellant has emphasized that no complaint
was made with regard to the alleged
incident dated 22.11.2014 and even after
20.05.2015, on which date the victim was
accepted/returned in her in-laws family.
There is no evidence of demand of dowry
from 20.05.2015 till the date of her death
i.e. 12.06.2015.

(h) Learned counsel for the
appellant has drawn attention of the Court
towards deposition of Forensic Expert
52 INDIAN LAW REPORTS ALLAHABAD SERIES
(PW-9) and Tehsildar (PW-4), who have
treated the death as suicidal death. Even Dr.
Anil Nigam (PW-5), who had conducted
the post mortem examination, has also
pointed out possibility of suicidal death.

(i) Learned counsel has also
drawn the attention of the Court towards
paragraph 33 of the impugned judgment
wherein learned Court below has observed
that even assuming that she had committed
suicide because of refusal made by her
husband, while she was adamant to go to
her parental house, it cannot be ruled out
that she had committed suicide due to
subjecting her to harassment and cruelty for
demand of dowry. He further submits that
in the aforesaid situation it cannot be said
that the present case is a case where crime
of dowry death has been commissioned by
the accused-appellant.

(j) Learned Court below was not
just and fair in relying upon the accusation
made by the prosecution only on the basis
of conjuncture and surmises.

(k) No corroborating evidence
was adduced on behalf of prosecution to
prove the accusation against the accusedappellant beyond all reasonable doubts,
even after considering all the facts and
circumstances, culpability of the present
accused-appellant cannot be inferred in
commission of crime as alleged in the
F.I.R.

(l) The Trial Court has failed to
weigh the evidence available on the record
in its right perspective and has illegally
convicted the appellant without proper
consideration of the deposition made by the
defence witnesses as well as the statement
of accused under Section 313 Cr.P.C.

(m)
In
the
facts
and
circumstances of the present case, no case
is made out against the accused-appellant
under Sections 498-A & 304-B of I.P.C.
and Section 4 of Dowry Prohibition Act for
which he has been convicted.

23. Per contra, learned A.G.A. has
submitted as under :-

(a) victim was subjected to
harassment and cruelty for want of
additional dowry of cash Rs.50,000/- and
one motorcycle.

(b) Due to bad behaviour of inlaws, victim came to her parental house on
22.11.2014 and, thereafter, it took six
months to negotiate the matter with the inlaws of victim, who had ultimately agreed
to accept the victim in their family on
20.05.2015
but
unfortunately
on
12.06.2015 she had been reported dead.

(c) PWs-1, 2 and 3 are consistent
in their statements showing cause of death
due to non-fulfillment of demand of dowry.
Minor discrepancies, if any, occurred in
their statements, will not affect the merits
of the case.

(d) Much emphasis cannot be
given to the statement of witnesses
recorded under Section 161 Cr.P.C. in the
light of the fact that all the prosecution
witnesses have successfully supported the
case of dowry death of the victim as
mentioned in the FIR.

(e) It is further submitted that
under Section 313-A of Evidence Act,
burden lies upon the accused to explain the
circumstances wherein victim had allegedly
committed suicide.

(f) Learned A.G.A. has drawn the
attention of the Court towards injury no.(2)
as mentioned in the post mortem report
wherein one contusion has been shown on
the front of forehead just above both
eyebrows and manner of injury has been
shown by (i) hanging and (ii) use of hard
and blunt object.
10 All. Deepak Vs. State
53

(g) In the light of post mortem
report, learned A.G.A. has submitted that
soon before death, victim was subjected to
cruelty and harassment. Accused had failed
to explain the ante mortem forehead injury
caused to victim.

(h) Even three defence witnesses
have admitted that there was some quarrel
between the parties on the date of incident
due to refusal by husband regarding
victim's visit to her parental home.

(i)
Injury
report
and
the
statements of witnesses supports the case of
dowry death and the accused should be
convicted for imprisonment for life.

(j) Present jail appeal filed on
behalf of accused/appellant is devoid of
merits and liable to be dismissed. There is
no illegality, perversity or infirmity in the
impugned judgment and order passed by
the
Court
below
in
convicting
and
sentencing the appellant under Section 304
B/34, 498 A/34 IPC and Section 4 of D.P.
Act and case is fully made out in the
aforesaid sections against the accusedappellant.

24. I have carefully considered the
submission made by learned counsel for the
parties and perused the record on board.

25. Matter in hand pertains to dowry
death of the lady who had been allegedly
hanged by her in-laws. As per FIR version
and deposition of prosecution witnesses i.e.
PWs-1, 2 and 3, who are witnesses of fact,
victim was throughout subjected to cruelty
and harassment for want of dowry, inasmuch
as, after sometime of marriage while she
came to her parental home, she told her
ordeal that her in-laws are demanding
Rs.50,000/- cash and one motorcycle.

26. It is a case of circumstantial
evidence wherein wife of appellant no.1 has
been found dead due to hanging (otherwise
than under normal circumstances) and her
death has been treated as dowry death under
Section 304-B IPC. On the basis of statement
made by prosecution witnesses, learned Trial
Court came to the conclusion that demand of
dowry was the root cause and drew the victim
to take a drastic step of ending her life.
Before examining the facts of the instant
case, definition of "dowry" and "dowry
death" has to be explained. The word
"dowry" is defined under Section 2 of the
D.P. Act, which reads as follows :-

"2. Definition of 'dowry'. --In
this Act, "dowry" means any property or
valuable security given or agreed to be
given either directly or indirectly--

(a) by one party to a marriage to
the other party to the marriage; or

(b) by the parent of either party
to a marriage or by any other person, to
either party to the marriage or to any other
person,

at or before [or any time after the
marriage] [in connection with the marriage
of the said parties, but does not include]
dower or mahr in the case of persons to
whom the Muslim Personal Law (Shariat)
applies.

Explanation II.-- The expression
"valuable security" has the same meaning
as in section 30 of the Indian Penal Code
(45 of 1860)."

27. Dealing with the definition of
dowry as mentioned in Section 2 of the
D.P.Act,
Hon'ble
Supreme
Court
in
Rajendra Singh vs. State of Punjab,
(2015) 6 SCC 477 (Three Judges' Bench)
has pointed out six ingredients in paragraph
8 of the judgment, which reads as follows :-

"(1) Dowry must first consist of
any property or valuable security - the word
54 INDIAN LAW REPORTS ALLAHABAD SERIES
"any" is a word of width and would,
therefore, include within it property and
valuable security of any kind whatsoever.

(2) Such property or security can
be given or even agreed to be given. The
actual giving of such property or security
is, therefore, not necessary.

(3) Such property or security can
be given or agreed to be given either
directly or indirectly.

(4) Such giving or agreeing to
give can again be not only by one party to a
marriage to the other but also by the
parents of either party or by any other
person to either party to the marriage or to
any other person. It will be noticed that this
clause again widens the reach of the Act
insofar as those guilty of committing the
offence of giving or receiving dowry is
concerned.

(5) Such giving or agreeing to
give can be at any time. It can be at, before,
or at any time after the marriage. Thus, it
can be many years after a marriage is
solemnized.

(6) Such giving or receiving must
be in connection with the marriage of the
parties.
Obviously,
the
expression
"in
connection with" would in the context of the
social evil sought to be tackled by the Dowry
Prohibition Act mean "in relation with" or
"relating to".

28. With a view to curb the growing
menace of dowry death, Section 304-B has
been inserted in the Indian Penal Code and as
a supporting deal, presumptive provision in
Section 113-B has been inserted in the
Evidence Act. Section 304-B of IPC and
Section 113-B of Evidence Act, which are
decisive provision to ascertain the ununatural
death as a dowry death, read as follows :-

"304-B.
Dowry
death.--(1)
Where the death of a woman is caused by
any burns or bodily injury or occurs
otherwise
than
under
normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative
of her husband for, or in connection with,
any demand for dowry, such death shall be
called "dowry death", and such husband or
relative shall be deemed to have caused her
death.

Explanation.--For the purpose of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life."

"113-B.
Presumption
as
to
dowry
death.--When
the
question
is
whether a person has committed the dowry
death of a woman and it is shown that soon
before her death such woman has been
subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the Court shall presume
that such person had caused the dowry
death.

Explanation.--For the purposes of
this section, "dowry death" shall have the
same meaning as in section 304B, of the
Indian Penal Code, (45 of 1860)."

29. Section 304-B IPC clearly
enunciates the following ingredients of
dowry death :-

(a) the death of woman must have
been caused due to burns or bodily injury
or due to unnatural circumstances;

(b) such death must have been
occurred within seven years of her
marriage;
10 All. Deepak Vs. State
55

(c) soon before her death, she
must have been subjected to cruelty or
harassment by her husband or any relative
of her husband;

(d) such cruelty or harassment
must be in connection with demand of
dowry.

30. Aforesaid ingredients have been
expounded by the Supreme Court in several
judgments and held that Section 304-B IPC is
a stringent penal provision which has been
implemented for dealing with and punishing
offences against married women. Conjoint
reading
of
Section
304-B
IPC
and
presumptive provision of Section 113-B of
the Evidence Act, one of the essential
ingredients, amongst others, is that the
woman must have been soon before her death
subjected to cruelty and harassment for or in
connection with demand of dowry. On the
proof of essentials as mentioned in the
aforesaid sections, it becomes obligatory on
the Court to raise a presumption that the
accused caused the dowry death.

31. Legal presumption qua dowry
death has been expounded by the Hon'ble
Supreme court in Sher Singh alias
Partapa Vs. State of Haryana, (2015) 3
SCC 724, in paragraphs 9, 10, 14, 16 and
19, which are quoted below :-

"9.The legal regime pertaining to
the death of a woman within seven years of
her marriage thus has numerous features,
inter alia:

(i) The meaning of "dowry" is as
placed in Section 2 of the Dowry
Prohibition Act.

(ii) Dowry death stands defined
for all purposes in Section 304B of the IPC.
It
does
exclude
death
in
normal
circumstances.

(iii) If death is a result of burns
or bodily injury, or otherwise than under
normal circumstances, and it occurs within
seven years of the marriage and, it is
'shown' in contradistinction to 'proved' that
soon before her death she was subjected to
cruelty or harassment by her husband or
his relatives, and the cruelty or harassment
is connected with a demand of dowry, it
shall be a dowry death, and the husband or
relative shall be deemed to have caused her
death.

(iv) To borrow from Preventive
Detention jurisprudence - there must be a
live link between the cruelty emanating
from a dowry demand and the death of a
young married woman, as is sought to be
indicated by the words "soon before her
death", to bring Section 304B into
operation; the live link will obviously be
broken if the said cruelty does not persist in
proximity to the untimely and abnormal
death. It cannot be confined in terms of
time; the query of this Court in the context
of condonation of delay in filing an appeal
- why not minutes and second - remains
apposite.

(v) The deceased woman's body
has to be forwarded for examination by the
nearest Civil Surgeon.

(vi) Once the elements itemized in
(iii) above are shown to exist the husband
or relative shall be deemed to have caused
her death.

(vii)
The
consequences
and
ramifications of this 'deeming' will be that
the prosecution does not have to prove
anything more, and it is on the husband or
his concerned relative that the burden of
proof shifts as adumbrated in Section 113B,
which finds place in Chapter VII of the
Evidence Act. This Chapter first covers
'burden of proof' and then "presumption",
both being constant bed-fellows. In the
56 INDIAN LAW REPORTS ALLAHABAD SERIES
present context the deeming or presumption
of responsibility of death are synonymous."

"10. Death can be accidental,
suicidal or homicidal. The first type is a
tragedy and no criminal complexion is
conjured up, unless statutorily so devised,
as in Section 304A; but even there the
culpable act is that of the person actually
causing the death. It seems to us that
Section 304B of the IPC, inasmuch as it
also takes within its contemplation "the
death of a woman ..... otherwise than under
normal circumstances", endeavours to
cover murders masquerading as accidents.
Justifiably, the suicidal death of a married
woman who was meted out with cruelty by
her husband, where her demise occurred
within
seven
years
of
marriage
in
connection with a dowry demand should
lead to prosecution and punishment under
Sections 304B and/or 306 of the IPC.
However, if the perfidious harassment and
cruelty by the husband is conclusively
proved by him to have had no causal
connection with his cruel behaviour based
on a dowry demand, these provisions are
not attracted as held in Bhagwan Das v.
Kartar Singh (2007) 11 SCC 205, although
some reservation may remain regarding the
reach of Section 306."

"14. In Section 113-A of the
Evidence Act Parliament has, in the case of
a wife's suicide, "presumed" the guilt of the
husband and the members of his family.
Significantly, in Section 113-B which
pointedly
refers
to
dowry
deaths,
Parliament has again employed the word
"presume".
However,
in
substantially
similar circumstances, in the event of a
wife's unnatural death, Parliament has in
Section 304-B "deemed" the guilt of the
husband and the members of his family.
The Concise Oxford Dictionary defines the
word "presume" as: supposed to be true,
take for granted; whereas "deem" as:
regard, consider; and whereas "show" as:
point out and prove. The Black's Law
Dictionary (5th Edition) defines the word
"show" as- to make apparent or clear by
the evidence, to prove; "deemed" as- to
hold, consider, adjudge, believe, condemn,
determine, construed as if true; "presume"
as- to believe or accept on probable
evidence; and "Presumption", in Black's,
"is a rule of law, statutory or judicial, by
which finding of a basic fact gives rise to
existence
of
presumed
fact,
until
presumption is rebutted.""

"16. As is already noted above,
Section 113-B of the Evidence Act and
Section 304-B of the IPC were introduced
into their respective statutes simultaneously
and, therefore, it must ordinarily be
assumed that Parliament intentionally used
the word 'deemed' in Section 304-B to
distinguish this provision from the others.
In actuality, however, it is well nigh
impossible to give a sensible and legally
acceptable meaning to these provisions,
unless the word 'shown' is used as
synonymous to 'prove' and the word
'presume' as freely interchangeable with
the word 'deemed'. In the realm of civil and
fiscal law, it is not difficult to import the
ordinary meaning of the word 'deem' to
denote a set of circumstances which call to
be construed contrary to what they actually
are. In criminal legislation, however, it is
unpalatable to adopt this approach by rote.
We have the high authority of the
Constitution Bench of this Court both in
State
of
Travancore-Cochin
v.
Shanmugha Vilas Cashewnut Factory
AIR 1953 SC 333 and State of Tamil
Nadu v.