# Dharmendra Kumar (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** Criminal Appeal No. 4855 of 2015
- **Bench:** Harsh Kumar, Umesh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-in-jail-v-state-of-u-p-45061
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code -
Sections 498A, 304-B & 302 -Dowry
Protection,1961 - Section 4 - Appeal
against conviction.

Section 106 of Evidence Act discussed.

Section 106 of the Evidence Act and Burden of
proving facts especially within knowledge of
such person, - In a case of unnatural death of
wife of accused in a room occupied only by
both of them and in absence of evidence of
anybody else entering the room and facts
180 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant to the cause of death being only
known to accused who was not explaining
them. (para 24)

Accused-appellant has failed to prove facts
especially within his knowledge and discharge
his burden, rather tried to deny homicidal
death of his wife by pretending it to be suicidal
death
and
setting
up
an
alibi,
unsuccessful.(para 37)

The prosecution has successfully proved its
case beyond reasonable doubt. The attendant
circumstances lead to irresistible conclusion of
guilt of accused. (para 37)

Appeal is rejected. (E-2)

List of cases cited: -

## Text

1 All. Dharmendra Kumar Vs. State of U.P.
179
the date of commission of the alleged crime
are, as on today, middle aged persons. The
accused appellant - Mahesh in Criminal
Appeal arising out of Special Leave Petition
(Criminal) No.2934 of 2015 had undergone
the custody for a period of nearly one year
whereas the accused appellant - Arjun in
Criminal Appeal arising out of Special Leave
Petition (Criminal) No.5370 of 2015 had
suffered custody for about eight (08) months.
The maximum sentence, as already noted, is
three years. Having regard to the long efflux
of time we are of the view that it will not be
necessary, in the facts of the present cases, to
cause a remand of the matter to the Juvenile
Justice Board for a decision on the quantum
of sentence for the reason even if such a
remand is made and the Juvenile Justice
Board comes to a decision that in addition to
the period of custody suffered by the accused
appellants they need to suffer a further period
of custody, such custody can only be in a
remand home or a protection home to which
places the accused appellants, because of
their age as on today, cannot be sent.

10. On the contrary, having
regard to the period of custody suffered;
the age of the accused appellants as on
date; the efflux of time since the date of
occurrence and all other relevant facts
and circumstances we are of the view that
while maintaining the conviction of the
accused appellants the sentence imposed
should be modified to one of the period
undergone. We order accordingly."

16. In light of the above legal position
and having regard to the facts and
circumstances of the case, period of
imprisonment, the age of the accused
appellant as on date, the efflux of time since
the date of occurrence, we are of the view that
the while maintaining the conviction of the
accused appellant the sentence imposed is
modified to the period already undergone.

18. Accordingly, the appeal is
allowed in part. The accused appellant is
availing the benefit of bail by furnishing
adequate sureties and bonds, the same
stands discharged.

19. Lower Court record along with a
copy of this judgement be sent back
immediately to District Court concerned
for compliance and further necessary
action.
----------
(2020)1ILR A179

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE HARSH KUMAR, J.
THE HON'BLE UMESH KUMAR, J.

Criminal Appeal No. 4855 of 2015

Dharmendra Kumar ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajeev Kumar Saxena, Sri Rajesh
Kumar Singh, A.C., Sri Satya Dheer Singh
Jadaun

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

Criminal Law - Indian Penal Code -
Sections 498A, 304-B & 302 -Dowry
Protection,1961 - Section 4 - Appeal
against conviction.

Section 106 of Evidence Act discussed.

Section 106 of the Evidence Act and Burden of
proving facts especially within knowledge of
such person, - In a case of unnatural death of
wife of accused in a room occupied only by
both of them and in absence of evidence of
anybody else entering the room and facts
180 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant to the cause of death being only
known to accused who was not explaining
them. (para 24)

Accused-appellant has failed to prove facts
especially within his knowledge and discharge
his burden, rather tried to deny homicidal
death of his wife by pretending it to be suicidal
death
and
setting
up
an
alibi,
unsuccessful.(para 37)

The prosecution has successfully proved its
case beyond reasonable doubt. The attendant
circumstances lead to irresistible conclusion of
guilt of accused. (para 37)

Appeal is rejected. (E-2)

List of cases cited: -

1. Prithipal Singh Vs. St. of Punj. (2012) 1 SCC 10(L)

2. Joshinder Yadav Vs. St. of Bihar (2014) 4
SCC 42

3. Trimukh Maroti Kirkan Vs. St. of Mah. (2006)
10 SCC 681

4. Ganeshlal Vs. St. of Mah. (1992) 3 SCC 106

5. Dnyaneshwar Vs. St. of Mah. (2007) 10 SCC
445

6. St. of Raj. Vs. Thakur Singh (2014) 12 SCC
211

7. Lal Singh Vs. St. of Guj. (2001) 3 SCC 221

(Delivered by Hon'ble Harsh Kumar, J.)

1. The instant Criminal Appeal has
been filed against judgment and order of
conviction passed by Sessions Judge,
Auraiya in Sessions Trial No.52 of 2015
(State Vs. Dharmendra Kumar), Case
Crime No.16 of 2015 under Sections
498A, 304-B & 302 I.P.C. and Section 4
D.P. Act P.S. Phaphund District Auraiya
whereby the Sessions Judge acquitted the
appellant of the charges under Sections
498-A, 304-B I.P.C. and Section 4 D.P.
Act and convicted him for the offence
under Section 302 I.P.C. and sentenced
with life imprisonment and fine of
Rs.20,000/- and in case of default in
payment
of
fine
with
rigorous
imprisonment for an additional period of
one year.

2. The brief facts relating to the case
are that Vikram Singh lodged F.I.R. at P.S.
Phaphund on 9.1.2015 at 8.3.0 a.m. against
appellant and 5 members of his family
with
the
averment,
that
"he
had
solemnized marriage of his sister Laxmi
hereinafter referred as "deceased" with
appellant
Dharmendra
Kumar
on
21.4.2008 with all dowry according to his
capacity but thereafter she was being
harassed and treated with cruelty for nonfulfillment of demand of a motorcycle &
gold chain and on 8.1.2015 her husband
Dharmendra Kumar, Sasur Ram Dayal,
two Jeths Sunil and Anil, Sas Shanti Devi
and Nanad Rani harassed her and after
committing marpeet at about 4.00 p.m.
strangulated her to death". On the F.I.R.
Case Crime No.16 of 2015 was registered
at police station Phaphund and during
investigation,
after
preparing
inquest
report, getting the postmortem of body of
deceased conducted, preparing site plan
and collecting evidence, the Investigating
Officer submitted charge sheet only
against appellant Dharmendra Kumar,
husband of deceased. The C.J.M. after
taking
cognizance
of
the
offence
committed the case to sessions and the
Sessions Judge on 11.4.2015 framed
charges against appellant under Section
498-A, 304-B I.P.C. and Section 4 D.P.
Act and on 14.5.2015 framed alternate
charge against him on 14.5.2015 under
Section 302 I.P.C. for causing death of his
wife Smt. Laxmi by strangulation. The
1 All. Dharmendra Kumar Vs. State of U.P.
181
accused appellant denied the charges and
demanded trial.

3. The prosecution in order to prove
its case produced Vikram Singh, first
informant the brother of deceased as P.W.-
1, Santosh Kumar relative of deceased as
P.W.-2, Sarvesh, brother of deceased as
P.W.-3, Shiv Kumar Chacha of accused as
P.W.-4
and
Panchilal
neighbour
of
deceased as P.W.-5, all of whom did not
support
prosecution
case
and
were
declared hostile. After completion of
prosecution evidence Dr. Sushil Yadav
who conducted postmortem examination
of body of deceased, was summoned and
examined as C.W.-1. Thereafter statement
of accused was recorded under Section
313 Cr.P.C. wherein he stated that
"deceased, his wife Laxmi was suffering
from fits of epilepsy due to which she was
mentally disturbed and on the day of
incident she committed suicide in his
absence". The accused appellant produced
Harish Chand and Subhash Chand as
D.W.-1 and D.W.-2 in his defence. The
trial court after hearing parties counsel,
perusal of record and analization of
evidence on record passed impugned
judgment and order of conviction, hence
this appeal.

4. We have heard Shri S.D.Singh
Jadaun, Advocate for appellant and Sri
Anil Kumar Kushwaha, learned A.G.A.
for State and perused the record, paper
book as well as trial court record
summoned in appeal.

5. Learned counsel for appellant
contends that appellant has been falsely
implicated; that appellant had no motive to
cause death of his wife; that the allegations
of demand of a motorcycle and gold chain
as dowry from deceased as well as her
harassment for non-fulfillment of above
demand are absolutely false and incorrect;
that prosecution utterly failed to prove
above charges of demand of dowry or
harassment of deceased for non-fulfillment
of demand of dowry as all the prosecution
witnesses have denied from any such
demand or harassment; that in absence of
any evidence regarding alleged demand of
dowry or harassment there may be no
motive to appellant for causing dowry
death of his wife; that deceased, the wife
of appellant was suffering from fits of
epilepsy since before marriage (as has also
been stated by prosecution witnesses) due
to which she was mentally disturbed and
committed suicide in absence of appellant;
that at the time of incident appellant was
not at home and he may not be considered
to be the author of strangulation resulting
in her death; that appellant is an innocent
person and has been acquitted of the
charges under Section 498A, 304B I.P.C.
and Section 4 of Dowry Prohibition Act
and is also entitled for acquittal from the
charges of offence under Section 302
I.P.C; that the impugned judgment and
order of conviction is liable to be set aside
and appellant is liable to be acquitted.

6. Per contra, learned A.G.A.
supported the impugned judgment and
order of conviction and contended that it is
fully proved from the evidence on record
that appellant is the main culprit; that it is
absolutely wrong to say that deceased was
suffering from fits of epilepsy since before
marriage or after marriage or was living
under mental tension due to alleged
ailment or committed suicide after 6 years
and 9 months of marriage in absence of
appellant; that there is no evidence on
record to suggest that deceased was ever
treated for alleged ailment of fits of
epilepsy in her maika or Sasural, before or
182 INDIAN LAW REPORTS ALLAHABAD SERIES
after
marriage;
that
the
prosecution
witnesses of fact including the first
informant were won over by accusedappellant and consequently resiled from
the allegations of demand of dowry and
harassment of deceased for non-fulfillment
of demand of dowry due to which trial
court very rightly acquitted the appellant
of the charges of offences under Section
498-A, 304-B I.P.C. and Section 4 D.P.
Act; that it is clear from the evidence on
record that prosecution witnesses having
been won over by appellant did not dare to
depose truth before Court and went saying
falsely that deceased was suffering from
fits of epilepsy since before marriage and
committed suicide due to tension on
account
of
alleged
ailment;
that
postmortem report of deceased duly
proved by C.W.-1 clearly states that there
was continuous ligature mark of 29 cm x 2
cm over neck of deceased with an abrasion
over her chin and death of Laxmi deceased
did take place due to asphyxia as a result
of strangulation; that it is absolutely wrong
to say that she committed suicide rather it
is a clear case of homicide; that the
appellant has failed to prove facts specially
within his knowledge, that the appellant
also failed or to take or prove any specific
plea of alibi; that it is also not the case of
appellant that some unknown persons or
miscreants entered in his house in his
absence and during loot, strangulated his
wife;
that
learned
trial
court
has
categorically discussed entire evidence on
record; that appellant has failed to prove
the facts especially within his knowledge
as death of his wife Laxmi did take place
within his dwelling house and he has
failed to show that he was not at home;
that there are material contradictions in the
statement of defence witnesses; that from
the evidence on record the charges under
Section 302 I.P.C. stands fully proved
against appellant beyond any shadow of
reasonable doubt; that the trial court has
rightly convicted appellant for the offence
under Section 302 I.P.C; that appeal has
been filed with wrong and baseless
allegations and is liable to be dismissed.

7. Upon hearing parties counsel and
perusal of lower court record as well as
paper book and before proceeding further,
we find that in view of arguments
advanced by both side, following points
for determination arises in this appeal :-

(1) Whether despite turning
hostile of prosecution witnesses of fact and
acquitting appellant from the charges of
offences under Section 498A & 304B
I.P.C. and Section 4 D.P. Act, trial Court
was justified in convicting him for offence
under Section 302 I.P.C.?

(2)
Whether
prosecution
succeeded in establishing charges of
offence under Section 302 I.P.C. against
appellant ?

(3)
Whether
provisions
of
Section 106 of Indian Evidence Act, were
attracted in this case and appellant was
required to prove facts especially within
his knowledge, but failed to discharge his
burden?

8. It will not be unnecessary to
mention that it is settled principle of law
that in criminal cases until by any express
provision
of
law
with
regard
to
presumption of guilt of an offence, such as
under Section 113 B of Evidence Act for
the offence under Section 304B I.P.C.,
there is presumption of innocence of
accused, unless his guilt is proved beyond
reasonable doubts. In cases based on
circumstantial evidence it is required that
circumstances from which inference of
guilt of accused is sought to be drawn
1 All. Dharmendra Kumar Vs. State of U.P.
183
must be cogently and firmly established,
unerringly pointing towards guilt of
accused and chain of circumstances should
be so complete that there can be no escape
from the conclusion that within all human
probability crime was committed by
accused and none else and circumstances
must also be incapable of explanation to
any other hypothesis than that of guilt of
accused and such evidence should not only
be consistent with the guilt of accused but
should also be inconsistent with his
innocence.

9. Undisputedly, the instant case is
not based on ocular/ direct evidence.
According to F.I.R., lodged under Sections
498-A, 304-B, I.P.C. and 3/4 D.P. Act
deceased Smt. Laxmi, the sister of first
informant was married to appellant in
April, 2008 and her dowry death was
committed within 7 years of marriage on
08.01.2015 in her matrimonial house by
strangulation. During trial, all prosecution
witnesses of fact turned hostile, so charges
under Section 498-A I.P.C. were found to
be
not
proved
and
consequently
presumption of dowry death under Section
113-B of Indian Evidence Act was not
available
to
prosecution
for
the
presumptive
guilt
of
accused
under
Section 304-B I.P.C. In absence of any
such presumption the burden to prove
charges under Section 302 I.P.C. against
appellant was on prosecution. Since the
case is not based on ocular evidence and
there is no eye witness account of the
incident of murder of Smt. Laxmi, the
prosecution case is to be treated as one
based on circumstantial evidence.

10. Now it is to be seen as to whether
in view of the evidence on record,
prosecution has succeeded in proving the
chain
of
circumstances
completely,
leaving no possibility of any other
hypothesis except guilt of appellant.

11. Though the burden of proving the
guilt of an accused always lies on
prosecution, but there may be certain facts
and circumstances pertaining to a crime
that can be especially known only to the
accused, or are virtually impossible for the
prosecution to prove. The law does not
enjoin a duty on prosecution to lead
evidence of such character which is almost
impossible to be led or at any rate
extremely difficult to be led. The duty on
prosecution is to lead such evidence which
is capable of being lead, having regard to
the facts and circumstances of each case.
Certain facts and circumstances which are
especially within knowledge of accused,
are required to be explained by him and if
he does not do so, then it may be a strong
circumstance for drawing inference of his
guilt.

12. The first informant P.W.-1 has
not supported the allegations of dowry
death and has turned hostile but in his
examination in chief he has proved F.I.R.
Ext. A-1 having been lodged by him. It is
settled principle of law that if the F.I.R.
registered under Section 154 Cr.P.C. is
proved, it will not be proper for the Court
to ignore its evidentiary value. In the case
of Bafle vs. State of Chattisgarh AIR 2012
SC 2621 the Apex Court has held that

"merely for the reason that first
informant turned hostile, it cannot be said
that F.I.R. would lose all of its relevancy
and cannot be looked into."

13. From postmortem report Ex. A-9
of deceased duly proved by statement of
C.W.-1 Dr. Sushil Yadav, it is very much
clear that cause of death of Smt. Laxmi
184 INDIAN LAW REPORTS ALLAHABAD SERIES
was asphyxia as a result of strangulation
which is a definite case of homicidal
death. A death by strangulation may only
be homicidal death and may not be
suicidal death under any imagination. The
postmortem report of deceased states that
there was ligature mark 29 cms x 2 cms
below thyroid all around the neck of
deceased
which was
horizontal
and
continuous while her thyroid bone was
fractured and trakia was congested.

14. As per medical jurisprudence
fracture of thyroid bone is very strong
indication of violent asphyxia death by
compression of neck by use of external
force.

15. In lengthy cross examination
with autopsy surgeon, Dr. Sushil Yadav,
nothing
material
has
come
out
to
disbelieve prosecution case and even no
suggestion was put to him about death of
deceased being suicidal as a result of
hanging, rather to the contrary it was
suggested that there was no ligature mark
at all around her neck.

16. It is clearly and fully established
from above discussed evidence on record
that death of Smt. Laxmi was caused due
to asphyxia as a result of ante mortem
strangulation, undisputedly inside dwelling
house of appellant. It is also proved from
the evidence on record that death of
Smt.Laxmi is a case of homicidal death
and may not be a case of suicidal death (as
claimed by hostile prosecution witnesses
of fact as well as accused and his defence
witnesses). The appellant has not denied to
be residing alone with deceased in the
same house where she died and his
defence witnesses have stated on oath that
only appellant and deceased were living
together in the house. Hence it is also fully
proved from the evidence on record that
deceased
was
living
with
accused
appellant in the same house (in which
homicidal death of his wife Smt. Laxmi
did take place as a result of asphyxia due
to strangulation), since before the incident.
In view of circumstantial evidence on
record, appellant must be having especial
knowledge of the facts relating to incident
and manner in which and by whom she
was
strangulated
to
death,
while
circumstances indicates that her death
could have been caused only by appellant
and none other than appellant. In these
circumstances, the provisions of Section
106 of Evidence Act are attracted in
instant case.

17. Section 106 of Indian Evidence
Act provides that when any fact is
especially within the knowledge of any
person, the burden of proving such fact is
upon him. When an offence like murder is
committed inside a room of dwelling
house, no doubt , the initial burden to
establish charges would be on prosecution,
but in such type of cases, the nature and
amount of evidence to be led to establish
the charges, can not be expected of same
degree
as
in
any
other
case
of
circumstantial evidence. In instant case
since the prosecution has succeeded in
proving that death of Smt.Laxmi was
homicidal
one
under
unnatural
and
suspicious
circumstances
inside
the
dwelling house of accused, it will be
deemed that prosecution has discharged its
burden which now shifts on inmates of
house to give a cogent explanation as to
how her homicidal death did take place.

18. Before proceeding further the law
relating to Section 106 of Indian Evidence
Act, in cases of death within dwelling
house, as laid down in number of
1 All. Dharmendra Kumar Vs. State of U.P.
185
judgments by Apex Court is being
reproduced as under.

19. In the case of (2012) 1 SCC
10(L) - Prithipal Singh Vs. State of
Punjab the Apex Court held that

"Section 106 is designed to
meet certain exceptional cases in which
it would be impossible for prosecution to
establish
certain
facts
which
are
particularly
within
knowledge
of
accused. It does not relieve prosecution
of its burden to prove guilt of accused
beyond reasonable doubt and applies to
cases where prosecution has succeeded
in proving facts from which a reasonable
inference can be
drawn regarding
existence of certain other facts, unless
accused
by
virtue
of
his
special
knowledge regarding such facts offer
any explanation which might drive court
to draw a different inference."

20. In the case of (2014) 4 SCC 42 -
Joshinder Yadav Vs. State of Bihar where
by circumstantial evidence murder was
established by poisoning, even though
viscera report from F.S.L. was not brought
on record - but considering corroborative
evidence of father and brother of deceased
to be credible, the 3 Judges Bench of Apex
Court confirming conviction of husband
and 5 of his relatives under Section
302/149, 498-A and 201 I.P.C. held that

"the
attendant
circumstances
lead to irresistible conclusion of guilt of
accused - How the body of deceased was
found in the river, was within the special
and personal knowledge of husband and
his relatives - burden under Section 106
Evidence Act not discharged by accused -
rather false explanation given. - Adverse
inference was warranted."

21. In the case of (2006) 10 SCC 681
Trimukh Maroti Kirkan vs. State of
Maharashtra Apex Court has held that,

"Where an accused is alleged to
have committed the murder of his wife and
the prosecution succeeds in leading
evidence to show that shortly before the
commission of crime they were seen
together or the offence takes place in the
dwelling home where the husband also
normally resided, it has been consistently
held that if the accused does not offer any
explanation how the wife received injuries
or offers an explanation which is found to
be false, it is strong circumstance which
indicates that he is responsible for
commission of the crime."

22. In the case of (1992) 3 SCC 106
Ganeshlal vs. State of Maharashtra
where the husband was prosecuted for
murder of his wife inside his house, the
Apex Court held that,

"since death had occurred in his
custody, he was under obligation to give
an explanation for the cause of death in
his statement under Section 313 Cr.P.C. A
denial of prosecution case coupled with
absence of any explanation was held to be
inconsistent with the innocence of accused,
but consistent with the hypothesis that the
appellant was prime accused in the
commission of murder of his wife."

23. In the case of (2007) 10 SCC 445
Dnyaneshwar vs. State of Maharashtra
the Apex Court held that

"since deceased was murdered
in her matrimonial home and the appellant
had not set up a case that the offence was
committed by somebody else or that there
was a possibility of an outsider committing
186 INDIAN LAW REPORTS ALLAHABAD SERIES
the offence, it was for the husband to
explain the grounds for the unnatural
death of his wife."

24. In the case of (2014) 12 SCC 211
State of Rajasthan vs. Thakur Singh
considering scope of Section 106 of the
Evidence Act and Burden of proving facts
especially within knowledge of such
person, - In a case of unnatural death of
wife of accused in a room occupied only
by both of them and in absence of
evidence of anybody else entering the
room and facts relevant to the cause of
death being only known to accused who
was not explaining them, - the Apex Court
held that

"Principles under Section 106
are clearly applicable - to the case with
strong presumption that accused murdered
his wife - holding that High Court erred in
not applying Section 106, reversing
conviction of accused and allowing appeal
- at restored the Conviction under Section
302 I.P.C. passed by trial court."

25. The mere fact that all the
prosecution
witnesses
turned
hostile
clearly gives room for suspicion and
creates an impression that there is much
more to the case than meets the eyes. Even
the complainant Vikram Singh brother of
deceased,
who
squarely
blamed
Dharmendra in F.I.R. for the murder of his
wife, not only turned hostile denying
demand of dowry and harassment but also
falsely charged his sister Laxmi deceased
for committing suicide due to long ailment
of epilepsy since before marriage.

26. It is pertinent to mention that the
prosecution witnesses of fact have not only
resiled from the allegations of demand of
dowry and cruelty for non-fulfillment of
such demand as well as of dowry death,
rather by way of improvement falsely
stated that deceased was suffering from
epilepsy since before marriage and due to
mental tension committed suicide. It
indicates that prosecution witnesses have
made an attempt to show that (i) deceased
was suffering from long ailment of fits of
epilepsy and (ii) she committed suicide.

27. The accused-appellant in his
statement under Section 313 Cr.P.C. in
answer to question no.7 has stated that
^^esjh iRuh y{eh dks fexhZ ds nkSjk vkrs Fks
blfy, oks ekufld :i ls ijs'kku jgrh Fkh]
?kVuk okys fnu eSa ?kj is ekStwn ugha FkkA iRuh
us Lo;a vkRe gR;k dj yhA**.

28. The contention of prosecution
witnesses and explanation of appellant
about suicidal death of Smt. Laxmi due to
tension on account of long ailment of
epilepsy is absolutely wrong and incorrect
and
appears
to
have
been
falsely
developed in furtherance of winning over
of prosecution witnesses by accusedappellant, because Istly, there is nothing
on record in the shape of any medical
evidence to show that at any point of time
deceased was suffering from or was
treated for epilepsy before or after
marriage and IIndly, it is fully proved
from evidence on record that it is a case of
homicidal death and death of Smt. Laxmi
may not be considered to be suicidal death
of any imagination. Hence the improvised
version of hostile witnesses is found to be
false and concocted and may not be relied.

29. In order to support above version
as well as to discharge his burden under
Section 106 of Evidence Act, accusedappellant has also produced two witnesses
Harish Chandra and Subhash Chandra as
D.W.-1 and D.W.-2 who are neighbours of
1 All. Dharmendra Kumar Vs. State of U.P.
187
appellant and have stated on oath that
appellant Dharmendra was living together
with his wife Smt. Laxmi while other
brothers were living separately, and at
about 5.00 p.m. on 08.01.2015 when they
were working in fields and appellant
Dharmendra was grazing cattle in nearby
fields, villagers informed about suicide by
his wife but they do not know about
manner or reason of suicide as to whether
she committed suicide by immolating
herself or by consuming poison or by
hanging herself. It is also noteworthy that
neither the name of such villager, who
allegedly informed death of wife of
appellant to appellant, D.W.-1 and D.W.-2
in fields has been disclosed, nor such
villager has been produced to corroborate.

30. It is pertinent to mention that
there is nothing on record to show that
deceased was having any cattle. Moreover
he could not dare to say that he was
grazing his cattle in fields with or near
D.W.-1 and D.W.-2 and got information
from villagers about suicidal death of his
wife (as has been contended by his
partisan witnesses D.W.-1 & D.W.-2). The
statements of D.W.-1 and D.W.-2 are not
in consonance with contention of appellant
and are also contradictory to each other as
D.W.-1 says that appellant was walking at
a distance from him in his field, while
D.W.-2 says that he was grazing cattle in
another field.

31. It is not the case of accused
appellant that some miscreants had entered
his house and strangulated his wife to
death or he had informed the police about
unnatural death of his wife by someone
else.

32. The accused appellant was the
only person residing in the same house
with deceased and was having especial
knowledge of facts relating to and manner
of homicidal death of his wife taken place
inside his house and was required to prove
such especial facts within his knowledge.
The bald statement of accused appellant
that he was not at home at the time of
incident is not sufficient to prove his plea
of alibi as he could not dare to state that (i)
where and when he came back home (ii)
where and from whom he got knowledge
of death of his wife (iii) how he came to
know that his wife has committed suicide
(iv)
upon
finding
his
wife
fully
unconscious whether he contacted any
doctor to confirm as if she is alive and if
not, how he was sure that she has died (v)
whether he informed family members of
mayaka of deceased (vi) whether he
informed police of unnatural death of his
wife.

33. In absence of any such
explanation and not proving of the facts
especially
within
the
knowledge
of
appellant, (who alone was living with
deceased), there can be no reason to
disbelieve the prosecution case and hold
appellant to be an innocent.

34. In the instant case in view of
evidence on record, under any imagination
no inference can be drawn that at the time
of homicidal death of deceased, her
husband, the accused appellant would have
been roaming outside, and someone else
would have entered and strangulated his
wife to death, inside his house, for
absolutely no reason. It is not the case of
accused appellant that some miscreants
entered his house and committed loot
during which upon protest his wife was
strangulated by them. Even in such a case
he would have reported the matter to
police in ordinary course and his conduct
188 INDIAN LAW REPORTS ALLAHABAD SERIES
in not reporting the matter to police and
opting to abscond, speaks much that how
he managed to win over the prosecution
witnesses and pressurized them to tell a lie
regarding alleged suicidal death of his
wife.

35. As far as benefit of doubt is
concerned the prosecution has proved its
case beyond all reasonable doubts. In
ordinary prudence when husband and wife
were living together there is presumption
of accused being inside home, unless
proved otherwise and no inference of his
being outside home may be drawn in order
to give him unreasonable benefit of doubt.

36. In the case of Lal Singh Vs. State
of Gujarat (2001) 3 SCC 221 the Apex
Court held that

"concept of benefit of doubt is
vague. The doubt must be reasonable one
which occurs to a prudent men and not to
a weak or duly vacillating or confused
mind.
In
spite
of
presumption
of
innocence, it is to be judged on the basis of
a reasonable prudent men. Smelling
doubts for the sake of giving benefit of
doubt is not the law of land."

37. In view of the discussions made
above the points mentioned in para 7
above, are required to be answered as
under :-

(1) The prosecution has proved
chain of circumstances from the evidence
on record which is so complete as
incapable of explanation of any other
hypothesis than the guilt of accused and is
not only consistent with the guilt of
accused but is also inconsistent with his
innocence.
The
prosecution
has
successfully proved its case beyond
reasonable
doubt.
The
attendant
circumstances
lead
to
irresistible
conclusion of guilt of accused.

(2) Provisions of Section 106 of
Indian Evidence Act are attracted to the
facts and circumstances of instant case.
Accused-appellant has failed to prove facts
especially within his knowledge and
discharge his burden, rather tried to deny
homicidal death of his wife by pretending
it to be suicidal death and setting up an
alibi, unsuccessfully.

(3) The trial Court rightly
analyzed the evidence on record and was
not incorrect in convicting appellant for
the change of offence under Section 302
I.P.C.

38. In view of the discussions made
above, we are of the considered view that
there is no illegality, incorrectness or
perversity in the impugned judgment and
order of conviction. The learned counsel
for appellant has failed to prove any
incorrectness, perversity or illegality in
impugned conviction order and there is no
sufficient ground for interfering with or
setting it aside the impugned judgment and
order of conviction of appellant as well as
for reversing it to an order of his acquittal
under Section 302 I.P.C.

39. The appeal is devoid of merits
and is liable to be dismissed.

40. The appeal is dismissed. The
impugned
judgment
and
order
of
conviction is affirmed.

41. Office is directed to send back
the lower court record alongwith copy of
judgment for necessary action, if any.
----------
1 All. Shyam Bihari & Ors. Vs. State of U.P.
189
(2020)1ILR A189

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 5969 of 2011

Shyam Bihari & Ors.
 ...Appellants(On Interim Bail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri I.B. Yadav

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

Criminal Law - Indian Penal Code - Sections
323/34, 504 - Appeal against conviction.

In present case the place, time and date of
occurrence was undisputed. Injured and their
injuries were not disputed. The cause and
motive
of
this
quarrel
was
undisputed.
Construction of chak road on the place of
occurrence. (para8)

The pelting of stones from both sides has been
admitted by this witness, but it has been said
that it was used in right of self defence for
saving themselves. (para 8)

Medical evidence was against oral testimony,
which
was
with
all
inconsistencies
and
contradictions. No specific motive was assigned
for commission of alleged offence. Impugned
judgment
was
based
on
surmises
and
conjectures. (para 2)

Accused persons were not aggressor. Rather,
they were victim of that aggression, wherein
they had exercised their right of self defence by
pelting stones and bricks. Under above facts,
who was aggressor and who suffered that
aggression is to be seen and in present case
aggression was by present complainant side.
Hence, certainly trial court failed to appreciate
facts and evidence placed on record. (para 8)

Appeal is allowed. (E-2)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This appeal under Section 374(2)
of
Code
of
Criminal
Procedure
(hereinafter referred to as 'Cr.P.C.') has
been filed by Shyam Bihari, Ram
Shiroman, Dharm Nath and Madan against
judgment of conviction and sentence made
therein in Sessions Trial No. 98 of 2005,
State of U.P. Versus Shyam Bihari and
others, arising out of N.C.R. No. 14 of
2004, under Sections 323/34, 504 I.P.C.,
Police Station Durgaganj, District Sant
Ravidas Nagar, Bhadohi, passed by court
of Additional Sessions Judge, Court No. 3,
Bhadohi-Gyanpur,
wherein
convictsappellants have been sentenced with six
months' simple imprisonment and fine of
Rs.500/- and in case of default one
month's additional simple imprisonment
for offense punishable under Section
323/34 I.P.C. and one year simple
imprisonment with fine of Rs.1,000/- each
and in default one month's additional
simple imprisonment under Section 504
I.P.C. with a direction for concurrent
running of sentences.

2. The memo of appeal contends that
trial court failed to appreciate facts and
law placed before it. Prosecution story was
fabricated. According to evidence on
record, no case was made out against
appellants. Even then, they have been
convicted
and
sentenced,
as
above.
Medical
evidence
was
against
oral
testimony,
which
was
with
all
inconsistencies and contradictions. No
specific
motive
was
assigned
for