# Dilip Kumar Tiwari @ Pappu v. State of U.P

- **Citation:** (2023) 8 ILRA 1291
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-27
- **Case number:** Criminal Appeal No. 627 of 2004
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-kumar-tiwari-pappu-v-state-of-u-p-50531
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 498-A & 304-B - Dowry death -
Code of Criminal Procedure, 1973
-
Sections
107
&
313
-
Rigorous
Imprisonment with fine - Informant,
moved written complaint against husband
and other family members and alleged
that they demanded dowry, when not
fulfilled, they killed his daughter - Held, no
mark of previous torture soon before
death found on person of deceased by
Doctor - No letter by deceased that she
was subjected to cruelty - Two letters sent
by informant proved in defence, do not
contain Statementregarding demand of
dowry - No evidence that deceased was
not provided necessary food and cloths
etc, no evidence that sons of deceased
were tortured by accused - No evidence
that problem created during bidai of
deceased
from
her
in-laws
house
-
Evidence of P.W. 1 and P.W. 2 proved
deceased used to visit her parental house
as per her own wish - Never forced to live
in her parental house for an indefinite
period. (Para 2, 6, 7, 35)

Not proved that accused persons present
on place of occurrence and they did not
try to prevent deceased from committing
suicide - Prosecution failed to prove
abatement for committing suicide - Mere
not
permitting
deceased
to
go
for
watching cinema along is not ground to
conclude that accused abated deceased to
commit suicide. (Para 37, 38, 43)

Appeal allowed. (E-14)

List of Cases cited:

## Text

8 All. Dilip Kumar Tiwari @ Pappu Vs. State of U.P.
1291
Lucknow is quashed. Record is returned to
the concerned office.

68. Needless to say that notice is
issued against Police Officers who have not
submitted report before this Court as
directed vide order dated 10.5.2013 to
show cause as to why proceeding under
Contempt of Courts Act be not initiated
against them.
----------
(2023) 8 ILRA 1291
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 627 of 2004

Dilip Kumar Tiwari @ Pappu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashok Kumar Srivastava

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 498-A & 304-B - Dowry death -
Code of Criminal Procedure, 1973
-
Sections
107
&
313
-
Rigorous
Imprisonment with fine - Informant,
moved written complaint against husband
and other family members and alleged
that they demanded dowry, when not
fulfilled, they killed his daughter - Held, no
mark of previous torture soon before
death found on person of deceased by
Doctor - No letter by deceased that she
was subjected to cruelty - Two letters sent
by informant proved in defence, do not
contain Statementregarding demand of
dowry - No evidence that deceased was
not provided necessary food and cloths
etc, no evidence that sons of deceased
were tortured by accused - No evidence
that problem created during bidai of
deceased
from
her
in-laws
house
-
Evidence of P.W. 1 and P.W. 2 proved
deceased used to visit her parental house
as per her own wish - Never forced to live
in her parental house for an indefinite
period. (Para 2, 6, 7, 35)

Not proved that accused persons present
on place of occurrence and they did not
try to prevent deceased from committing
suicide - Prosecution failed to prove
abatement for committing suicide - Mere
not
permitting
deceased
to
go
for
watching cinema along is not ground to
conclude that accused abated deceased to
commit suicide. (Para 37, 38, 43)

Appeal allowed. (E-14)

List of Cases cited:

1. Kishori Lal Vs St. of M.P., AIR 2007 Supreme
Court 2457

2. Rang Naike Vs St., (2004) 12 S.C.C 521

3. Sanju @ Sanjai Singh Sengar Vs St. of M.P.,
AIR 2002 Supreme Court 1998

4. Cyriac Vs S.I Police Kaduthuruthy, 2005 Cr.L.J.
4322 (Keral)

5. Sharda Bhai Jeevan Lal Vaniya Vs St. of Guj.,
AIR 2012 Supreme Court 925

6. Gurucharan Vs St. of Punj., (2017) 1 SCC 433
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1.

Heard
Sri
Ashok
Kumar
Srivastava,
learned
counsel
for
the
appellant, Sri Anurag Singh Chauhan,
learned A.G.A for the State and perused the
material available on record.

2. The instant criminal appeal under
Section 374 (2) Cr.P.C has been filed by
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant against the judgement and
order dated 03.03.3004 passed by learned
Sessions Judge (FTC - IV), Pratapgarh, in
Sessions Trial No. 162/96, Case Crime No.
77/94, under Sections 498-A, 304-B I.P.C,
Police
Station
Nawabganj,
District
Pratapgarh State of U.P. Versus Shyam
Bihari and others, for convicting the
appellant and awarding the sentence under
Section 306 I.P.C for seven years Rigorous
Imprisonment and 10,000/- fine and further
to
undergo
for
two
years
rigorous
imprisonment and Rs. 2000/- fine under
sections 498-A I.P.C. The sentences were
to run concurrently.

3. The applicant has taken ground that
the impugned judgment and order of the
Court below is unjust, illegal and improper
and also perverse. The prosecution has
failed to prove its case beyond reasonable
doubt, there is no independent witness in
support of the prosecution case. The
finding of the learned trial court does not
find support with the oral and medical
evidence on the record. The trial was
proceeded
against
the
three
accused
persons under Section 498-A and 304-B
and the learned Trial Court has found that
no case was made out against the appellant
under Section 304-B I.P.C. On the same
evidence the learned Trial Court has
acquitted the accused - Shyam Bihari
Tiwari (father-in-law), Smt. Ambo alias
Chandra Kali (mother-in-law). No case is
made out under Sections 498-A, 306 I.P.C
against the appellant. The trial court has
committed manifest error of law while
integrating the provisions of law.

4. On the above grounds the appellant
has prayed for quashing the order of
conviction and sentenced passed as above.

5. In brief, facts of the case are that
the informant - Mangala Dutt Mishra,
moved
a
written
complaint
to
the
Superintendent of Police, Pratapgarh, that
marriage of his daughter Radha Devi was
solemnized with Dilip Kumar six years
ago.

6. Sri Shyam Behari Tiwari, father-inlaw and his son Dilip Kumar Tiwari were
demanding scooter and fridge. He was
unable to fulfil the said demand. Being
angry,
his
daughter
was
killed
on
20.09.1994 by the accused persons. After
receipt of the said application dated
21.09.1994, an F.I.R under Section 498-A
& 304-B I.P.C (Ex.K-13) was lodged in
P.S. Nawabganj, District Pratapgarh, which
was also entered into G.D (Ex.K-4) and
investigation started.

7. Before registration of this F.I.R, the
accused - Shyam Behari Tiwari (father-inlaw) of the deceased had also moved an
application in Police Station Nawabganj,
stating therein that his daughter in law
Radha Devi wife of Dilip Kumar Tiwari
has burnt herself to death by setting her
fire. This information was recorded on
20.09.1994 at 16:00 - 17:00 p.m. in G.D
and a request was made to S.D.M. Kunda,
Pratapgarh for inquest. Thereafter, the
S.H.O. with his other police companions
alongwith
Additional
Tehsildar
Nizamuddin, P.S Kunda, reached on the
spot.

8. On the direction of Tehsildar
Nizamuddin, inquest report (Ex. Ka-4) was
prepared by Sri R. N. Singh, (S.O) before
Panchan, Roop Narain Mishra, Mangala
Dutt Mishra, Vijai Bahadur, Anand Vijay
Pandey and Shyam Bihari.
8 All. Dilip Kumar Tiwari @ Pappu Vs. State of U.P.
1293

9. Inquest related papers i.e. Ex. Ka-5,
and Ex. Ka-6 were also prepared. The dead
body was sealed in a markin cloth and was
sent to the Post-Mortem House, District
Pratapgarh for post-mortem report. Infront
of the Upper Tehsildar, Kunda, the dead
body, burnt cloth, ashes, handle rod were
sealed and recovery memo was prepared.

10. Dr. Dig Vijay Singh P.W. 4
conducted the Post Mortem on 21.09.1994
at 3:15 p.m. and found following facts in -

External Examination of the dead
body.

11. The deceased was a lady of
whitish complexion, average height, eyes
were closed, mouth of the deceased was
half opened, blood was also coming from
the mouth and nose, stomach and chest
were speared. The hand's fingers were bent
and the rigour mortis was in passing stage,
the upper part of the body was burnt above
the stomach and the hair were scorched. At
the some parts of the body blisters were
present with liquid and some blisters were
bursted. The bottom of the blisters were
red. Line of the redness was also present.

12. There was burnt on the front side
of both the thighs up to both the legs. There
was burn injury on the head and neck,
membranes, head, brain, chestwall and
other parts were congested, the pharynex,
larynx and trachea were also congested and
carbon particles were present. Lungs were
congested. The chambers of heart were
filled with blood and dark red colour was
coming out. Stomach, peritoneum were
congested. There were 14/14 teeth in the
mount. The stomach was empty. The
kidneys were empty, uterus was normal.
The cause of death was suffocation due to
burn injuries sustained before the death.

The Dy. S.P. Har Bajan Singh started
investigation and submitted charge-sheet. Ex.
Ka-2, under Sections 498-A, 304-B of the I.P.C
against the father-in-law and mother-in-law and
husband of the deceased.

13. The case was committed to the
Court of Sessions, where the Sessions
Judge framed the charges against the
accused persons under Sections 498-A,
304-B of I.P.C from which they denied and
sought trial.

14. During the trial following
witnesses have been examined by the
prosecution :-

1. P.W. 1. Sri Mangal Dutt
Mishra,

2. P.W. 2. Sri Sada Shiv Dubey.

3. P.W. 3. Sri K. K. Srivastava,
the then Dy. S.P.

4. P.W. 4. Dr. Dig Vijay Singh.

5. P.W. 5. Sri Nizamuddin,
S.D.M.

6. P.W. 6. Sri Har Bhajan Singh,
Retired Dy. S.P.

15. After closure of the prosecution
evidence the statement of accused persons
were recorded under Section 313 Cr.P.C, in
which they denied the allegations and
stated that the marriage between the
accused Dilip Kumar Tiwari and deceased -
Radha Devi was solemnized on 09th May,
1987 and on 11th May, 1987 the bride had
gone to her marital house.

15.(a).
An
information
had
already been given to the concerned police
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
station regarding death of the deceased.
The
charge-sheet
has
wrongly
been
submitted. P.W - 1 and P.W - 2 have given
false evidence regarding demand of dowry
and rest of the witnesses have also given
false
evidence.
After
marriage,
the
deceased used to live separately. The
informant has no son except two daughters,
the deceased was elder daughter, due to
paralysis, her face had been crooked, but
the deceased got married in the hope of
getting the property. On the date of
incident, Syam Behari had gone for
teaching as usual to Antamau, PreSecondary School, which is about two
kilometers away from his village. Veeru,
Son of Dilip Kumar was ill, he was going
to Unchahar to get some medicines for
him. The deceased also wanted to go with
him and had planned to watch cinema. On
this Dilip rebuked him. In a fit of anger,
the deceased locked her in the room and
set her on fire. Pramod and Santosh
Mishra informed Shyam Behari about the
incident at his School at Antamau. He
moved casual leave application and
returned to home. His wife Amboz
Kumari @ Chandra Kali had gone to field
for cutting sugar-cane, on information,
she returned to home.

16. In brief, statement of the
witnesses are reproduced here in below:-

P.W. 1 - Mangala Dutt Mishra,
informant, has deposed that the marriage
between his daughter Radha Devi with
Dilip Kumar Mishra @ Pappu had been
solemnized on 28th April, 1990. Shyam
Behari
Tiwari
is
the
father
and
Chandrawati is mother of the Dilip Kumar
Mishra, he has given dowry in marriage as
per his capacity. His daughter's farewell
had been conducted in marriage.

17. On 29th April, 1990 she was
bidden farewell, after 2 - 2 1⁄2 months when
his daughter came to the parental house,
she informed that her husband, father-inlaw and mother-in-law were demanding
fridge and scooter. He stated that at present
he was unable to meet the demand. After
being capable he will meet the demand.
Further, his daughter went to her in-laws
house and lived five - six months where
from she used to complain. He explained
the matter to her mother-in-law. His
daughter informed that for not providing
fridge and scooter, her husband and father
and mother in-law used to beat and torture
her. She had came to her parental house 2 -
3 times before her death and whenever she
came she repeated the same complaint.
Whenever Shyam Behari came with the
deceased, he repeated the same demand of
scooter and fridge. His daughter was burnt
to death by the accused persons. Two to
two and a half years ago P.W 2 Sada Shiv
of his village had also gone with him to the
house of Shyam Behari, where he had said
that keep calm he will provide the scooter
and fridge very soon, on which Shyam
Behari got angry and said that even after
being able, he is not providing the same.
He had also threatened in his inland letter,
which had been provided to the I.O. his
son-in-law has also sent a letter without
stamp, which had also been provided to the
I.O. In both the letters they had threatened
him and have scolded for not providing
anything in marriage. He had been
informed about the incident on 20.09.1994,
through the Police Station Kokhraj, on
which he, Sada Shiv, Vijai Bahadur, Ram
Pal and others had gone to the in-laws
house of the deceased. It was apparent that
she was burnt to death. When his complaint
was not entertained by the Police Station,
Nawabganj, he had given a letter (Ex.Ka-
8 All. Dilip Kumar Tiwari @ Pappu Vs. State of U.P.
1295
1), to the Superintendent of Police,
Pratapgarh, on which F.I.R was lodged.

During
the
course
of
examination, the witnesses admitted letters
(Ex.Kha-1 and Ex. Kha-2) written and
posted by him. He admitted that he had no
son except two daughters. He had 4 - 4 1⁄2
Bighas agricultural land and was a Teacher
in a Primary School. He further deposed
that Shyam Behari is also a Primary
Teacher, he had only 2 1⁄2 Bighas land. He
denied to promise that he shall provide half
of the property to elder daughter (deceased)
and half to his younger daughter, he denied
that deceased had fallen from the roof and
her mouth had been crooked. According to
him he had provided Rs.5,100/- at the time
of marriage engagement and not only
Rs.501/-. He had provided Rs.11,000/- cash
and not only Rs.4,001/-in tilak ceremony.
He had given Rs. 200/- at the time of
Kheechadi meal and his son-in-law had
taken gold ring from him. He denied the
marriage of deceased had been solemnized
on 11th May, 1987. He admitted that he has
written in his statement that the marriage
had been solemnized six years before.

18. When for the first time Radha
Devi came to her parental house, she
informed about the demand of scooter and
fridge. He has neither written that scooter
and fridge had been demanded at the time
of marriage nor has stated it before the I.O.
as it was not asked. He further deposed that
it is true that when her daughter used to live
in her in-laws house, her parents used to go
to pick her up and when she used to stay at
her parental house, her in-laws used to go
to pick her up. There was no quarrel
between her-in-laws and him about the
farewell of the deceased. She has two sons
Dheeru and Beeru. she had gone from her
parental house ten days before her death
after staying about one month there, when
she went to her in-laws house he said to
keep calm, he will provide scooter and
fridge, when he reached at the in-laws
house of the deceased, Chaukidaar was
gaurding the dead-body, the inquest was
not conducted before him. He and his
neighbour Vijai Bahadur had signed it. He
had not given any written complaint to the
Magistrate or Police Officer there. After
seeing the dead body he knew that her inlaws must have killed her. He did not know
how the incident happened. He does not
know whether accused had gone to Dr.
Amar Nath at Unchahar for the treatment of
his younger son, he does not know as to
whether at the time of incident Shyam
Behari was in his school or not. He does
not know that when Dilip was going to
Unchahar, a quarrel took place between
him and the deceased. He does not know
that due to the same quarrel, the deceased
had committed suicide or not.

P.W 2 - Sada Shiv has given
similar testimony as informant P.W 1.

P.W 3 - K. K. Srivastava Dy.
S.P. has reported that he had conducted the
investigation after the transfer of I.O. Dy.
S.P. Har Bhajan Singh. He prepared Paper
No. 8, recorded the statement of Upper
Tehsildar Nizamuddin and submitted the
charge-sheet (Ex.Ka-2). The witness has
proved
this
charge-sheet.
In
crossexamination, this witness has deposed that
he had relied on the evidence collected by
the Ex. I.O. and has submitted the chargesheet on the basis of collected evidences.
He had not interrogated any person of the
village.

P.W. 4 - Dr. Dig Vijay Singh had
conducted
the
post-mortem
of
the
deceased,
which
has
already
been
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned above. This witness has proved
the post mortem report (Ex. Ka-3). During
the
cross
examination,
this
witness
admitted that he did not find any sign of
beating, tying up or any injury inflicted by
any sharp edged weapon over the dead
body. He has not found smell of kerosene
oil there, he could not say in what
circumstanced the deceased had burnt.

P.W. 5 - Nizamuddin, S.D.M.
has deposed that on 21.09.1994 he was
working as Additional Tehsildar, Kunda
and had conducted the inquest after
appointing Panchan and on his direction
related papers were prepared. The dead
body was sealed before him, letter to R.I
and C.M.O were prepared on his directions.
This witness has proved these papers as Ex.
Ka-4 to Ex. Ka-9. This witness admitted
that during the course of inquest, the
informant had not given any written
complaint to him regarding torturing his
daughter for dowry even he had not
complained orally.

The witness deposed that if the
informant would have made an oral
complaint, he would have directed the S.O.
He had inquired about the incident before
writing his opinion. If the demand of dowry
or torturing would have come to his
knowledge, he would had mentioned his
opinion in this regard or would not have
mentioned. It is true he had not mentioned
his opinion regarding the demand of dowry
and torture. He admitted that the inquest
was not in his writing but had been written
on his direction.

P.W. 6 - Har Bachan Sigh, I.O. /
Retired Dy. S.P. has deposed that he had
initiated the investigation and had copied
the complaint, recorded the statement of
H.M. Rajendra Singh, accused Shyam
Behari, and Dilip. He had taken the
materials in possession and had mentioned
in C.D. Parcha 1-A. He searched the house
of the accused, inspected and prepared the
map/site plan, copied the inquest, postmortem report, recorded the statement of
the informant, attached the copies of the
marriage card and inland letter and attached
with C.D, recorded the statement of Shyam
Behari Mishra, Sada Shiv (uncle of the
deceased), Vijay Bahadur Dwivedi, Ram
Pal Shukla, Dinesh Chandra Mishra, Roop
Narain Mishra, Anand Bhan Pandey,
Constable Jitendra Kumar Singh and
Chaukidar Kandhai Lal. On 10.09.1995,
C.O.
K.K.
Srivastava
started
the
investigation. During his investigation an
offence under Sections 498-A, 304-B, I.P.C
had been proved against the accused -
Shyam Behari, Dilip Kumar and Smt.
Amboz Kumari @ Chandrakali. This
witness has proved the marriage card and
inland letter and unstamped letter Ex. Ka11. Site plan (Ex.Ka-12) and Chik F.I.R
(Ex.Ka-13), Kaimi J.D. and G.D, Rapat No.
10 as Ex. Ka-14 as Ex. Ka-15. During the
course of cross examination, this witness
has admitted that the original letter of the
Photostat letters were not before him. The
Photocopies are not certified by him. He
further deposed that he had recorded the
statements of Ram Dular Yadav, Balram
and others, none of the witnesses of the
village had confirmed torturing for dowry
or that the deceased was set ablazed by the
accused persons. They had not given any
specific mode of harassment and any
incidence except general torturing and
demand of dowry.

19. From the side of defense,

D.W 1 - Santosh Kumar @
Pappu
deposed
that
he
had
given
information to Sri Shyam Behari Mishra at
8 All. Dilip Kumar Tiwari @ Pappu Vs. State of U.P.
1297
Pre-Secondary School, Antamau, at about
2:00 p.m. thereafter he had gone to the
clinic of Dr. Amarnath Singh, at Unchahar
to inform Dilip Kumar at about 03:00 p.m.
During the course of examination, this
witness had admitted that Shyam Behari is
his maternal uncle, he used to go to his
house. Dilip Kumar had gone to Dr.
Amarnath Singh Clinic for the treatment
dysentery of his son. Shyam Behari used to
go to school by cycle.

D.W. 2 - Makkoo barber, had
assisted in the marriage ceremony of the
accused and the deceased. According to
him no quarrel had taken place regarding
transaction in the marriage. The deceased
was never tortured about the demand of
dowry. The occurrence had occurred at
about 11:30 a.m. and after hearing the
commotion he had gone to the house of
Shyam Behari, where he saw that people
were extinguishing the fire, but she died
and could not survive. At the time of
incident Shyam Behari had gone to the
school and Dilip Kumar had gone to
Unchahar for the treatment of his son, wife
of Shyam Behari had gone to the field.
After the incident these persons came on
calls.

Smt. Radha Devi wanted to go to
Unchahar with her husband but he did not
allow her, being angry she committed
suicide.

This witness had given the intact
evidence during the course of examination
in favour of the accused persons.

D.W 3 - Jai Prakash, Peon of the
College
had
proved
the
Attendance
Register (Ex.Kha 1/1), and the fact that on
the day of occurrence accused Shyam
Behari was present in the concerned school.

In the cross - examination, this
witness had given similar statement.

Smt. Amboz Kumari, accused
wife of accused Shyam Behari has denied
the allegations in her statement under
Section 313 Cr.P.C and has stated that at
the time of incident her husband Shyam
Behari has gone to the school for teaching
as usual, which is about five kilometer
away from his house. Dilip Kumar was
going to Unchahar for treatment of his son,
the deceased also insisted to go with him
for watching cinema and when Dilip
Kumar scolded, in a fit of anger she closed
the door and set ablaze herself. She had
gone to the field for cutting the crops and
had come after getting information about
the incident.

20. Shyam Behari Dwivedi has given
similar statement to the statement of his
wife Smt. Amboz Kumar @ Chandrakali.

21. It is noteworthy that accused
accused Amobz Kumari and Shyam Behari
had acquitted from the charges and no any
appeal or revision has been preferred
against the judgement and order of
acquittal either by the informant or by the
State. Hence, the case of these two accused
persons are not in question before this
Court.

22. Accused Dilip Kumar has stated
under Section 313 Cr.P.C that his marriage
was solemnized with Smt. Radha Devi on
09.05.1987 and the farewell (Bidai) had
taken place on 29.04.1990. After four and
five months of the farewell he started living
separately
with
the
deceased.
The
informant
had
no
son,
except
two
daughters. Deceased's mouth was crooked
due to paralysis, but in the hope of property
this marriage had been solemnized. At the
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
time of the incident his father had gone to
school for teaching as usual and he had
gone to Unchahar for the treatment of his
son. His wife also wished to go with him
for watching cinema, upon which he had
scolded him. In a fit of anger she had
closed the door and had set ablaze, his
brothers Pramod and Santosh had informed
his father at his School, Antamau. After
endorsement his father had come back, her
mother had gone to the field for cutting the
crops and had come after getting the
information.

23. In this case, the learned trial court
has concluded that since there was no
demand of dowry at the time of marriage,
therefore Sections 3 and 4 of the D.P. Act
would not attract. He has also concluded
that since there was no evidence of
torturing and cruelty soon before the death
of the deceased by the accused persons,
therefore no case or charge under Sections
3 and 4 of the D.P. Act is made out against
the accused persons. It was also concluded
that that the father and mother-in-law of the
deceased had gone to the school and field
respectively and they were living separately
soon after their son's marriage.

24. On the basis of aforesaid
conclusion, the learned trial court acquitted
the accused Shyam Behari Dwivedi and
Smt. Amboz Kumari @ Chandrakali. From
the charges under Sections 498-A, 304-B
I.P.C. The learned trial court has also not
found that it was a commission of crime
under Section 304-B I.P.C, but has
concluded that Dilip Kumar, husband of the
deceased is the accused of commission of
crime under Section 306 I.P.C. It is
noteworthy that neither the informant
Mangla Dutta Mishra nor the State have
preferred any revision against the order of
acquittal of these two accused persons.
Hence, this Court is confined to decide the
case of accused Dilip Kumar, husband of
the deceased as to whether he committed
any offence under Section 306 of the I.P.C
or not. In this regard the findings of the
learned trial court is to be scrutinised as to
whether the conclusion of the learned trial
court regarding commission of crime by the
accused Dilip Kumar under Section 306
I.P.C is factually and legally correct or not?

25. The learned trial court has
recorded the findings in this regard, which
is mentioned at page nos. 13 and 14 of the
judgement. For this the learned trial court
has also relied on the statement of the
accused, in which the accused Dilip Kumar
has stated that the mouth/face of the
deceased Radha Devi was crooked due to
paralysis, but in the hope of property, the
marriage had been solemnized. About this
fact suggestions have been given to the
informant P.W - 1, who has denied this
fact.

26. The learned trial court has
stressed on the facts that in the statement
under Section 313 Cr.P.C, accused Dilip
Kumar has stated that the deceased has also
wished to go and watch cinema there with
them on which accused Dilip had scolded
her, thereafter in a fit of anger she closed
the door and set herself ablaze.

27. The learned trial court has
concluded that such act of accused Dilip
would be treated to be an instigation to the
deceased for abetment for committing
suicide. The learned trial court has also
accepted this fact on the basis of site plan
that accused Dilip Kumar was living with
his wife separately in the same house from
the portion of his parents. The learned trial
court has also accepted the facts to be
proved that at the time of incident all the
8 All. Dilip Kumar Tiwari @ Pappu Vs. State of U.P.
1299
accused persons were out of the house as
alleged above, but the learned trial court
has concluded that after solemnization of
marriage, accused Dilip Kumar demanded
scooter and fridge and beaten her and also
scolded and prevented her while she
wanted to go with her. Thus, the accused
created such atmosphere, which forced the
deceased for committing suicide.

28. The learned counsel argued that
the learned trial court has wrongly
concluded that any demand of dowry had
been made by the accused Dilip Kumar and
he had beaten the deceased for dowry. He
further argued that only scolding for not
allowing the deceased for going to
Unchahar along would not be an abetment
to commit suicide on the part of accused
Dilip Kumar Tiwari and on such a petty
matter, if the deceased has committed
suicide, it would not be attracted under
Section 306 of the I.P.C.

29. At the outset it is necessary to
look into the relevant provisions of law in
this regard.

Section 107 in The Code Of
Criminal Procedure, 1973 is as under: -

"107. Abetment of a thing.-A
person abets the doing of a thing, who-
(First) - Instigates any person to do that
thing; or

(Secondly) -Engages with one
or more other person or persons in any
conspiracy for the doing of that thing, if
an act or illegal omission takes place in
pursuance of that conspiracy, and in order
to the doing of that thing; or

(Thirdly) - Intentionally aids,
by any act or illegal omission, the doing of
that thing. Explanation 1.-A person who,
by wilful misrepresentation, or by wilful
concealment of a material fact which he is
bound to disclose, voluntarily causes or
procures, or attempts to cause or procure,
a thing to be done, is said to instigate the
doing of that thing. Illustration A, a public
officer, is authorized by a warrant from a
Court of Justice to apprehend Z. B, knowing
that fact and also that C is not Z, wilfully
represents to A that C is Z, and thereby
intentionally causes A to apprehend C. Here
B abets by instigation the apprehension of
C. Explanation 2.-Whoever, either prior to
or at the time of the commission of an act,
does anything in order to facilitate the
commission of that act, and thereby
facilitate the commission thereof, is said to
aid the doing of that act."

Section 306 of Indian Penal
Code, 1860 is as under : -

"306. 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."

30. In view of the provision of
Section 107 I.P.C. it can not be said that an
accused had abetted an offence, unless the
accused instigates another by way of
provocation,
incitement,
urging
or
encouraging for doing an act. Abetment
involves mental process of instigating or
intentionally, aiding person to do certain
thing. Some positive act by the accused is
essential to constitute abatement. Thus, it
has to be seen as to whether accused Dilip
Kumar had instigated or made any
conspiracy or intentionally added so that
the deceased could commit suicide.
1300 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In Kishori Lal Vs. State of M.P.
AIR 2007 Supreme Court 2457, the
accused was convicted under Section 306
I.P.C for the offence of abetting his wife to
commit suicide and was sentenced to five
years imprisonment. The facts of the case
were that the accused was married ten years
before the incident. On the fateful day
when he returned from work, he found that
the door of his house was closed from
inside. He called his wife, but there was no
response
from
inside,
he,
therefore
apprehended some mishap and immediately
informed the Police. When the Police opened
the door, the body of the wife of the accused
was found hanging from the ceiling as she
had committed suicide. On investigation, the
accused was found guilty of abetting his wife
to commit suicide by the trial court and was
sentenced accordingly. It was also upheld by
the High Court of M.P. On appeal, before the
Supreme Court, it was held that there was
evidence to show that the main cause of
suicide was that the deceased was under
heavy mental strain craving for a child. The
court also noted that prosecution had failed to
prove the charges against the accused as there
were no injury or signs of violence found on
her body. According to post-mortem report.
The accused was therefore, acquitted by the
Court.

The first element of abetment by
instigation is that a person is said to
instigate another to act, when he actually
suggest or stimulates him to act directly or
indirectly. The word "instigate" means to
provoke, incite, urge or encourage someone
to do an act. Mere "advice" does not
necessarily amount to instigation unless it
cannot some active support or stimulation
to the commission of the act itself.

32. In Rang Naike Vs. State, (2004)
12 S.C.C 521, it has been held that in the
order to hold a person guilty of abetment
by instigation it is necessary to prove that
such instigation was with reference to the
offence that was committed and the offence
that was likely to be committed by the
person, who was so instigated.

33. In Sanju @ Sanjai Singh Sengar
Vs. State of M.P. AIR 2002 Supreme
Court 1998, the accused (appellant) and
deceased had a quarrel on July 25, 1998
during which the accused used abusive
language against the deceased and in a fit
of excitement told him "go and die" . The
prosecution alleged that because of these
in-sighting words, the deceased committed
suicide on July, 27 and therefore those
abusive words were proximate cause of the
suicide. It was held that the words uttered
in anger for incitement cannot be said to
have been intended with malice and there
being no mens rea, the provisions of
Section 107 are not attracted, more so when
the suicide was committed by the deceased
two days after the incident.

34. In Cyriac Vs. S.I Police
Kaduthuruthy 2005 Cr.L.J. 4322 (Keral),
the deceased owed a debt of Rs. 200/- to
the accused. While asking on payment of
his money, the accused addressed these
words to the deceased in public "Why you
are remaining a burden to earth, and why
don't you go and die", where upon the
deceased committed suicide. The accused
was charged of abetment by instigation
under Section 107 I.P.C. The court
acquitted the accused of the charges and
observed that the words uttered by the
accused person may be insulting or abusive
but certainly not instigative to stimulate the
deceased to commit suicide.

35. In this case, it has to be noted that
no mark of injury or previous torture or
8 All. Dilip Kumar Tiwari @ Pappu Vs. State of U.P.
1301
cruelty soon before death has been found
on the person of the deceased by the Dr.,
who has conducted the post-mortem. There
was no letter by the deceased that she was
subjected to cruelty for demand of dowry
or for any other reason. Two letters sent by
the informant have been proved in defence,
which do not contain any statement
regarding demand of dowry from the side
of accused persons, though two photocopy
of the letters are attached with the file sent
by the accused Dilip Kumar, which contain
some matters regarding money transaction
or wish to get some money from the
informant, but there is no threatening that if
it is not done, the deceased would be killed
or would be forced to commit suicide.
During these six years after the marriage
two sons had been born out of the wedlock
of the deceased and the accused Dilip
Kumar. There is no evidence that the
deceased was not provided necessary food
and cloths etc. There is no evidence that
sons of the deceased were tortured ever by
the accused Dilip Kumar. There is no
evidence that any problem had been created
during the farewell (bidai) of the deceased
from her in-laws house to her parental
house or from her parental house to her inlaws house. It has been proved from the
evidence of P.W. 1 and P.W. 2 that in usual
course the deceased used to visit her
parental house and come as per her own
wish. She was never forced to live in her
parental house for an indefinite period.

36. P.W No. 1 Mangla Dutt Mishra, has
deposed in cross examination that as soon as he
went for marriage, it was settled same day and
the dowry was not fixed in marriage. He had
not stated to the I.O that scooter and fridge was
demanded in the marriage. He has admitted that
there was no dispute or quarrel regarding Bidai
of the deceased either from the paternal house
or from the in-laws house. The witness has
expressed ignorance about the absence of all the
accused persons at the time and place of
occurrence. He has not deposed that accused
persons were present on the spot at the time of
commission of crime. Even he has also
expressed ignorance regarding quarrel between
the accused Dilip and deceased when the
accused was going to Unchahar with his son.
This witness has also not denied the suggestions
that the deceased had committed suicide due to
the said quarrel with the accused Dilip Kumar
Tiwari.
37. So far as the second ingredient regarding
abatement by conspiracy is concerned, it is very
much clear that there is no iota of evidence
regarding conspiracy for committing suicide by
the deceased on the part of the accused persons.
There is third ingredient of abatement as to
whether the abatement had been done by aiding
in this regard. From the perusal of the record, it
is very much clear that the accused had not
intentionally aided to the deceased for
committing suicide neither they provided
match-box nor closed the door, nor facilitated
the commission of suicide in any other mode.
There is no illegal omission on the part of the
accused persons.

38. It has not been proved that at the time
of occurrence, the accused persons were present
on the place of occurrence and they did not try
to prevent the deceased from committing
suicide. It has also not been proved that accused
persons attempted to abatement, which is
punishable under Sections 109 and 110 of the
I.P.C.

39. In Sharda Bhai Jeevan Lal Vaniya
Vs. State of Gujarat A.I.R 2012 Supreme
Court 925, the appellant was tried for the
offence under Sections 498-A and 304-B read
with Section 114 of the I.P.C, where his wife
had committed suicide by setting herself to fire
only two years after her marriage with the
appellant. The learned A.S.J Rajkot acquitted
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant as there was no evidence of
cruelty or harassment in connection with
demand of dowry. The appeal preferred by the
State was allowed by the High Court and the
appellant was convicted and sentenced for five
years rigorous imprisonment.

40. On appeal the Apex Court found that
the letters written by the deceased to her sisterin-law regarding beating her and for forcing her
to take a divorce had not been proved. Hence,
the benefit of doubt was given to the accused
and order of acquittal was passed.

41. In Gurucharan Vs. State of Punjab
(2017) 1 SCC 433, the Apex Court held that
essential ingredients for constituting the offence
of abatement of suicidal death under Section
306 of the I.P.C are intention and involvement
of accused to aid and instigate commission of
suicide.

42. Any severance or absence of any of
these constituents would mitigate against the
said indictment remoteness of culpable life or
omissions rooted in intention of accused or
actualizing the suicide would fall short of
offence of abatement of suicide essential to
attract Section 306 of the I.P.C. Contiguity,
continuity, culpability and complicity of
indictable acts or omissions or concomitant
indices of abatement under Section 306 I.P.C.
In the instant case, the family members of the
husband were convicted for the offence under
Section 306 I.P.C in commission of suicide by
wife together with two daughters, but these
ingredient remained unproved. Therefore the
appellants were acquitted.

43. On the basis of above discussions, this
Court is of the considered view that the
prosecution has not been able in proving the
essential
ingredients
of
abatement
for
committing suicide by the deceased on the part
of the appellant accused Dilip Kumar Tiwari.
Mere not permitting the deceased to go to
Unchahar for watching the cinema along is not
a ground to conclude that the accused had
abated the deceased to commit suicide.

44. On the basis of above discussions, this
Court is of the considered view that the
judgement and order of conviction, sentencing
passed by the learned trial court is bad in the
eyes law and is not liable to sustained.

O R D E R

45. The appeal is allowed. The
judgement and order of conviction and
sentencing of the appellant dated 03.03.3004
passed by learned Sessions Judge (FTC - IV),
Pratapgarh, in Sessions Trial No. 162/96, Case
Crime No. 77/94, under Sections 498-A, 304-B
I.P.C, Police Station Nawabganj, District
Pratapgarh, State of U.P. Versus Shyam Bihari
and others, is set aside.

46. The accused is set free, bail bonds and
personal bond are cancelled. Sureties are
discharged.

47. A certified copy of this judgement and
order be sent to the trial court alongwith original
lower courts record for consignment.
----------
(2023) 8 ILRA 1302
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.08.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 1129 of 2023

Okansh Kumar Singh ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant: