# Guddu @ Gokaran v. State of U.P

- **Citation:** (2021) 8 ILRA 479
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Criminal Appeal No 650 of 2003
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guddu-gokaran-v-state-of-u-p-47235
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
374(2)
-
Indian
Penal
Code,
1860
-
Dowry
Prohibition Act,1961 - Sections 498A,
304B, 201 & Section 3/4 - challenge toconviction-set
aside-

From
the
statement of PW3, it appears that the
deceased died due to cholera. According
to the statement of PW2 and DW1, the
deceased was cremated in the presence
of informant and other family members
of the deceased. The informant in filing
application under Section 156(3) Cr.P.C
has not come with clean hand. He has
suppressed this fact also. There is no
evidence
that
the
deceased
was
subjected to cruelty or harassment soon
before her death although PW2, in her
examination-in-chief, has stated that
the informant has given Rs.10,000/-
cash and goods worth Rs.2000 at the
480 INDIAN LAW REPORTS ALLAHABAD SERIES
time of marriage. However in the later
part of her statement rather in her
entire statement, it has nowhere been
stated by PW2 who was residing with
the deceased for the last one month that
soon before her death the deceased was
subjected
to
cruelty.
There
is
no
allegation leveled by her that any of the
family members of the appellant or the
appellant himself has demanded dowry.
Likewise DW1 out rightly has rejected
such case of cruelty or dowry. He has
not supported the prosecution story. The
witnesses i.e. DW1 and PW2 remained
intact even after the prolonged cross
examination. In this case, prosecution
has failed to prove that the deceased
died within seven years of her marriage.
It has also failed to prove that the death
was under abnormal circumstances as
the PW3 has clearly opined that the
deceased was suffering from dyscentry
and vomiting. She was treated at his
clinic for three hours and thereafter
referred to District Hospital, where she
died. As per the statement of PW1
deceased was subjected to cruelty and
harassment by the appellant. However,
there is no such evidence by the PW2 or
DW1 or any other prosecution witness
except
PW1
that
such
cruelty
or
harassment had any connection with the
demand of dowry. The evidence of PW1
is wholly unreliable and cannot be
believed. The evidence of cruelty and
harassment alone is not sufficient to
bring application under Section 304 B
Indian Penal Code.There is no evidence
given by PW2 or DW1 that there was any
demand of dowry soon before her death
and
the
allegation
of
cruelty
and
harassment by the PW2 is not with
respect to the dowry demand and the
same have not been proved by cogent
evidence by the prosecution hence the
accused
appellant
is
also
acquitted
under
Section
3/4
of
the
Dowry
Prohibition Act. (Para 1 to 30)

B. If Section 304-B IPC is read together
with Section 113-B of the Evidence Act,
a comprehensive picture emerges that if
a married woman dies under unnatural
circumstances at her matrimonial home
within 7 years from her marriage and
there are allegations of cruelty or
harassment upon such married woman
for or in connection with demand of
dowry by the husband or relatives of the
husband, the case would squarely come
under "dowry death" and there shall be
a presumption against the husband and
the relatives.(Para 20)

The appeal is allowed. (E-5)

List of Cases cited:

## Text

8 All. Guddu @ Gokaran Vs. State of U.P.
479
any basis for assuming that the statement of
such a witness is always correct or without
any embellishment or exaggeration."

Similar view has been taken by
Hon'ble Supreme Court in Tameezuddin
versus State (NCT of Delhi (2009)15
SCC 566.

10. There is of course circumstance
like
recovery
of
clothing
apparel
belonging to the victim. However, such
recovery of peticot by itself, in the
absence of any other material evidence on
record pointing towards the guilt of the
accused, cannot be termed sufficient to
hold that the case was proved beyond
reasonable doubt, more so in view of the
fact that albeit the investigating officer
found stain of sperm on the peticot,
however, he did not send it for chemical
examination. The medical report does not
corroborate the prosecution case. The
prosecutrix has changed the place of
occurrence and the statement of the
prosecutrux is not corroborative by any
evidence. Thus in view of the above,
since the testimony of the prosecutrix is
self contradictory, it does not inspire
confidence. Some corroborative material
is needed which is absent in this case.

11. In view of the aforesaid
discussion, considering the totality of
facts and circumstances as well as the law
laid down by the Apex Court, it will not
be safe to convict the appellant and to
uphold the impugned conviction and
sentence of the accused on this kind of
evidence.

12. I, therefore, allow this appeal
and set aside the order of conviction and
sentence recorded against the appellant.
The appellant be set at liberty forthwith,
unless
his
custody
is
required
in
connection with any other crime. The
appellant is on bail, his bail bonds stand
discharged.

Let lower court's record be sent
back.
----------
(2021)08ILR A479
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.08.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No 650 of 2003

Guddu @ Gokaran ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Farhan Alam Osmany, Rama Pati Shukla

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
374(2)
-
Indian
Penal
Code,
1860
-
Dowry
Prohibition Act,1961 - Sections 498A,
304B, 201 & Section 3/4 - challenge toconviction-set
aside-

From
the
statement of PW3, it appears that the
deceased died due to cholera. According
to the statement of PW2 and DW1, the
deceased was cremated in the presence
of informant and other family members
of the deceased. The informant in filing
application under Section 156(3) Cr.P.C
has not come with clean hand. He has
suppressed this fact also. There is no
evidence
that
the
deceased
was
subjected to cruelty or harassment soon
before her death although PW2, in her
examination-in-chief, has stated that
the informant has given Rs.10,000/-
cash and goods worth Rs.2000 at the
480 INDIAN LAW REPORTS ALLAHABAD SERIES
time of marriage. However in the later
part of her statement rather in her
entire statement, it has nowhere been
stated by PW2 who was residing with
the deceased for the last one month that
soon before her death the deceased was
subjected
to
cruelty.
There
is
no
allegation leveled by her that any of the
family members of the appellant or the
appellant himself has demanded dowry.
Likewise DW1 out rightly has rejected
such case of cruelty or dowry. He has
not supported the prosecution story. The
witnesses i.e. DW1 and PW2 remained
intact even after the prolonged cross
examination. In this case, prosecution
has failed to prove that the deceased
died within seven years of her marriage.
It has also failed to prove that the death
was under abnormal circumstances as
the PW3 has clearly opined that the
deceased was suffering from dyscentry
and vomiting. She was treated at his
clinic for three hours and thereafter
referred to District Hospital, where she
died. As per the statement of PW1
deceased was subjected to cruelty and
harassment by the appellant. However,
there is no such evidence by the PW2 or
DW1 or any other prosecution witness
except
PW1
that
such
cruelty
or
harassment had any connection with the
demand of dowry. The evidence of PW1
is wholly unreliable and cannot be
believed. The evidence of cruelty and
harassment alone is not sufficient to
bring application under Section 304 B
Indian Penal Code.There is no evidence
given by PW2 or DW1 that there was any
demand of dowry soon before her death
and
the
allegation
of
cruelty
and
harassment by the PW2 is not with
respect to the dowry demand and the
same have not been proved by cogent
evidence by the prosecution hence the
accused
appellant
is
also
acquitted
under
Section
3/4
of
the
Dowry
Prohibition Act. (Para 1 to 30)

B. If Section 304-B IPC is read together
with Section 113-B of the Evidence Act,
a comprehensive picture emerges that if
a married woman dies under unnatural
circumstances at her matrimonial home
within 7 years from her marriage and
there are allegations of cruelty or
harassment upon such married woman
for or in connection with demand of
dowry by the husband or relatives of the
husband, the case would squarely come
under "dowry death" and there shall be
a presumption against the husband and
the relatives.(Para 20)

The appeal is allowed. (E-5)

List of Cases cited:

1. Baljeet Singh & anr. Vs St. of Har. (2004) 3
SCC 122

2. Appasaheb & anr. Vs St. of Mah. (2007) 9
SCC 721

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Shri R.P.Shukla, learned
counsel for the appellant and Shri Jayant
Singh Tomar, learned A.G.A. for the State
and perused the record.

2. The present appeal under Section
374 (2) of the Code of Criminal Procedure,
1973
has
been
preferred
by
the
accused/appellant Guddu alias Gokaran
against the judgment and order dated
10.04.2003 passed by the Special Sessions
Judge, Sitapur in Sessions Trial No. 487 of
1997 arising out of Case Crime No. 196 of
1996, under Sections 498A, 304B, 201 of
the Indian Penal Code and Section 3/4 of
the Dowry Prohibition Act, Police Station
Ramkot, District Sitapur, whereby the
appellant was convicted under Section 3/4
of
the
Dowry
Prohibition
Act
and
sentenced to undergo one year rigorous
imprisonment and a fine of Rs.1000/- and
in default of fine to undergo two months'
additional
imprisonment;
and
also
convicted under Section 304-B I.P.C. and
8 All. Guddu @ Gokaran Vs. State of U.P.
481
sentenced to undergo ten years' rigorous
imprisonment and a fine of Rs.2000/- and
in default of fine to undergo three months'
additional imprisonment. It was further
directed that both the sentences will run
concurrently.

3. The prosecution story, in brief, as
per First Information Report (Exhibit Ka
4), is that prior to about six years ago from
19.08.1996,
the
informant
Baburam
(P.W.1)
married
her
daughter
Smt.
Saraswati
(deceased)
with
accused/appellant Guddu alias Gokran,
wherein he gave Rs.10,000/- cash as well
as goods worth Rs.10,000/- as per his
status. The accused/appellant and his
family members were not happy with the
given cash and goods and, after marriage,
repeatedly demanded one buffalo and cash
worth Rs.10,000/- towards dowry. On
account of non-fulfillment of aforesaid
demand of dowry, his daughter (Smt.
Saraswati) was not allowed to use the
goods given by the informant; accused was
used to give trouble to her to eat and drink;
was used to torture her for dowry in various
ways; and also accused Guddu had beaten
her. Prior to one month from 19.08.1996,
accused persons had exerted pressure to
give buffalo and 10,000/- rupees as dowry
and
his
daughter
was
tortured
and
threatened her for life. On 8.8.1996,
Jagdish, son of Jagat Narain, resident of
Rahmatpur informed him that due to
dowry, after killing his daughter, the
accused had burnt the dead body of his
daughter. Upon receiving this information,
he went to the house of in-laws of his
daughter, where his grand daughter Reeta,
aged about 11 years, told him that the
accused/appellant,
after
killing
his
daughter, burnt her dead body in Nimsar.
Thereafter, the informant- Baburam went to
police station Ramkot and submitted an
application for lodging First Information
Report but his report was not written.
Therefore, informant- Baburam had filed
the aforesaid application for lodging First
Information Report under Section 156 (3)
Cr.P.C. (Exhibit Ka 2) before C.J.M.,
Sitapur, upon which an order was passed
for lodging First Information Report. On
the basis of this typed report, First
Information Report was lodged at Police
Station Ramkot on 23.08.1996 at 21:50
hours, which was registered as Case Crime
No. 197 of 1996, under Sections 498A, 304
B, 201 I.P.C. and Section 3/4 of the Dowry
Prohibition Act.

4. The investigation of the case was
conducted by Circle Officer, City Sitapur
Sri S.N. Bhardwaj (P.W.4), who, in his
deposition, has stated that on 24.08.1996,
he was posted as Circle Officer, City
Sitapur.
The
information
regarding
investigation of the case was received from
the office of Police Station Ramkot on
24.08.1996. After obtaining copy of the
chik F.I.R. and G.D., he had started
investigation of the case w.e.f. 24.08.1996.
Firstly, he obtained chik report from case
diary and G.D. and thereafter recorded the
statement of Head Moharrir Tej Bhan
Singh. Thereafter, he reached at the house
of the deceased Saraswati Devi situated at
Village Itaunja from police station Ramkot
with police personnel and recorded the
statement of witnesses Bechelal and Chedu
etc. Thereafter, he inspected the place of
occurrence and prepared site plan (Ext.
Ka.1).
After
conclusion
of
the
investigation, he has filed the charge-sheet
(Ext. Ka. 3) before the competent Court.

5. Initially, an application under
Section 156(3) Cr.P.C. was given by the
informant. Thereafter by the order of Court,
the First Information Report was lodged
482 INDIAN LAW REPORTS ALLAHABAD SERIES
and after completing the investigation,
charge sheet was filed. The committal order
was passed on 17.3.1997 and the case was
committed to the court of Sessions' Judge,
where the learned Sessions' Judge has
framed charges under Sections 498A,
304B, 201 Indian Penal Code and Section
3/4 Dowry Prohibition Act against the
accused/appellant, who denied the charges
and claimed to be tried.

6. Learned Sessions Judge, vide
impugned order, while convicting the
accused appellant under Section 3/4 Dowry
Prohibition Act and sentencing him for one
years rigorous imprisonment with fine of
Rs.1000/- and for ten years rigorous
imprisonment under Section 304-B Indian
Penal Code with fine of Rs.2000/-,
acquitted him under Sections 201 and 498A
of the Indian Penal Code.

7. In order to prove its case, the
prosecution has produced the application
under Section 156(3) Cr.P.C. as exhibit
Ka2, site plan as exhibit Ka1, First
Information Report as exhibit Ka4, chargesheet as exhibit Ka3 and copy of the
general diary as Ka5. The prosecution has
produced P.W.1-Baburam (informant), who
is the father of the deceased Saraswati
Devi, P.W.2 Reeta, who is grand daughter
of informant, P.W.3 Dr. Ramchandra
Mishra, who is the private practitioner,
P.W.4 S.N. Bhardwaj, who conducted the
investigation of the case. In defence, the
accused has produced D.W.1 Khusiram,
who is the cousin brother of the informant
Baburam.

8. In his statement recorded under
Section 313 Cr.P.C., the accused has
admitted the fact that marriage of the
deceased Saraswati took place with Guddu
alias Gokaran in the year 1985 but denied
the other allegation of the prosecution and
stated that deceased Saraswati died on
account of disease and he has been falsely
implicated due to enmity.

9. P.W.1 Baburam, who is the father
of
the
deceased
Saraswati,
in
his
deposition, has stated that the marriage of
Saraswati took place with Guddu alias
Gokaran ten and a half years ago. In the
marriage, he gave Rs.10,000 cash and
goods worth Rs.10,000/-., for which, his
son-in-law Guddu, the father-in-law of his
daughter Tejram, his wife Rampa, Surendra
and his wife and Mahendra were not happy.
After marriage, the aforesaid persons have
repeatedly demanded Rs.10,000/- cash and
one buffalo. One and a half months before
the death of his daughter, again Rs.10,000/-
and buffalo were demanded by the
appellant and his family members, which
he could not fulfill. Thereafter, they, after
killing his daughter, burnt her dead body.
The information regarding the death of his
daughter was given by one Jagdish s/o
Jairam. Upon receiving this informatioin,
he went to the house of the appellant,
where his grand daughter Reeta, who was
there with the deceased for the last one
month before her death, informed that they
have killed his daughter and burnt her in
Nimsar. He further stated in the crossexamination that at the time of death of his
daughter, Reeta was living with his
daughter, who was about 10 to 11 years
old. He further stated that he lodged the
information regarding death of his daughter
one day after cremation. He also said that
he does not know Jagat Narain, father of
Jagdish. He stated that he cannot identify
Jagdish. He also stated that his daughter
was killed by burning her as per the
information given by Jagdish and thereafter
he says that Reeta told him that deceased
was poisoned. He also stated that he did not
8 All. Guddu @ Gokaran Vs. State of U.P.
483
mention the fact of poison having been
given to her daughter in the application
filed under Section 156(3) Cr.P.C. as he
was not aware about this at that time. He
denied the suggestion that the deceased was
married on 26.2.1985.

10. P.W.2 Reeta, who is the grand
daughter of the informant, on 20.7.2001, in
her examination in chief, has stated that the
deceased was married 10 to 11 years ago.
In the marriage Rs.10,000/- cash and goods
worth Rs.2,000/- was given and buffalo
was demanded by appellant and others as
dowry, which could not be given by the
informant. Then she states that the
deceased was administered poison. In the
cross examination, she stated that upon
receiving the information of death, her
mother, grand daughter Shiv Ratan and his
father came and after seeing the dead body
of Saraswati (deceased), all of them said
that she has been killed by giving poison.
In the cremation, her father Shiv Ratan
went to Nimsar; at the time of the death of
the deceased, she was 15-16 years old; and
she was not born at the time of the marriage
of the deceased, therefore, she cannot say
what was given in the marriage. Then, she
said that the informant, her grandfather also
went to the matrimonial home of the
deceased and, thereafter, she told them that
Saraswati ate pakodas on saying of her
mother-in-law in her room and after eating,
she went in front of the house, she vomitted
there, then, she was taken by neighbours to
Dr. Virendra. The dead body of the
deceased Saraswati came at 3.30p.m. to her
home and on the next date, information was
sent to her village Niyazpur. From there
tractor trolley came and from that tractor
trolley, the dead body of the deceased
Saraswati was taken to Nimsar. She further
said that she went to live with the deceased
15 days before her death. One day prior to
the death, the deceased was looking
lethargic, then, her grand mother wanted to
take Bablu (the son of the deceased) along
with her which was refused by the
appellants
and
his
family
members,
therefore, her family members were angry
with them. She again says that poison was
not given in front of her. One month before
death, the deceased told that she was not
given proper meal. People told her about
poison. The deceased was taken to the
Doctor, who opined that she was suffering
from Cholera. She again said that grand
mother wanted to take Bablu, which was
refused by the appellant and her family
members.

11. P.W.3-Dr. Ramchandra Mishra,
who is the private practitioner, was
examined and in the examination-in-chief,
he stated that one Tejram (father-in-law of
the deceased) took the deceased to him for
treatment and along with them, appellant
and two other ladies were there. He was
told that she was suffering from vomiting
and dysentery, then, he gave initial
treatment by administering glucose and
injection "gentamicin". When her position
did not became stable, then, he referred her
to District Hospital, Sitapur. Later on, he
came to know that she died. In the crossexamination, he stated that he treated her
for three hours and while she was treated,
she was having symptoms of cholera. Apart
from cholera, there was no possibility of
poisoning appeared to him.

12. D.W.1- Khusi Ram was examined
on 20.2.2003 and he stated that the
marriage with the appellant and the
deceased was solemnized by his mediation.
The marriage took place on 28.2.1985. No
dowry was agreed upon nor any party
demanded dowry. He was in touch with the
deceased but she never complained and she
484 INDIAN LAW REPORTS ALLAHABAD SERIES
told him that she was living happily. He
went to the cremation of the deceased.
After hearing the death of the deceased,
Baburam (PW1), his wife, his sons Shiv
Ratan, Virendra and their wives went to the
house of the deceased through tractor
trolley and he met with them there. After
they reached, the cremation of the deceased
was done. He also went in the dasvi and
terahvi ceremony of the deceased, then,
again Baburm (PW1) met him and returned
along with him. While returning, he was
saying that since his grand son has not been
sent along with him, he will falsely
implicate these peoples in the dowry case.
He denied the suggestion that he is telling
the date of marriage on his own and
without any evidence.

13. Learned counsel for the appellant
submits that no offence under Section 304B of the Indian Penal Code is made out nor
any offence under Section 3/4 Dowry
Prohibition Act has been made out. Death
has not taken place within seven years from
the date of the marriage, hence the
provisions of Sections 113-A and 113-B of
the Evidence Act, 1872 are not attracted.
Except the charge under Section 304 B of
the Indian Penal Code and Section 3/4
Dowry Prohibition Act, no alternative
charge have been framed. There is no
evidence of cruelty soon before the death
for demand of dowry. He relied on the
judgement of Hon'ble Supreme Court of
India reported in 2004(3) SCC 122, Baljeet
Singh and another vs. State of Haryana
and emphasis has been laid on paras 8, 9,
10 and 17 of the judgement.

14.

On
due
consideration
to
arguments advanced by the parties' counsel
and perusal of record it appears that the
statement of P.W.1 is contrary to what has
been said in the application under Section
156(3) Cr.P.C. In his statement, he has
alleged that the deceased was poisoned,
whereas in the application under Section
156 (3) Cr.P.C., his case was that she was
burnt. His statement that the deceased was
married 10 and a half years ago, has been
falsified by Reeta, who has stated that at
the time of the death of the deceased, she
was 15-16 years old and she was not born
at the time of her marriage, which means
that the deceased was married way back
and ultimately beyond 7 years from her
death as the statement was given on
20.7.2001. This statement of Reeta has
been corroborated by DW1, who has stated
that
the
deceased
was
married
on
28.2.1985, and both DW1 and PW2 have
contradicted the testimony of PW1 that the
deceased died within 7 years of her
marriage. Further the other story of PW1
that he received the information regarding
death of deceased daughter one day after
the cremation, has again been contradicted
by PW2 who has stated that the informant
and his family members went to the house
of the appellant upon the death of the
deceased and on the next day, the dead
body was taken to Nimsar on her tractor
which came from Niyazpur. In the
cremation, her father and Shiv Ratan went
to Nimsar. This testimony of PW2 has been
corroborated by DW1, who has stated that
the informant and his family members as
well as their wives all participated in the
cremation of the deceased Saraswati. Not
only this, DW1 himself as well as the
informant had participated in dasvi and
terhvi of the deceased, where informant
met him and returned with him and while
returning he was saying that since his grand
son (bablu) has not been sent/has not been
given to him therefore he will falsely
implicate them. From these testimonies of
the DW1 and PW2, the story of PW1 is
falsified. The entire story crafted by him
8 All. Guddu @ Gokaran Vs. State of U.P.
485
under Section 156(3) Cr.P.C. as well as the
statement of PW1 is false and not
corroborated with the testimony of PW2
and DW1. He knew about the death of his
daughter and not only knew but he went
there and took part in the cremation. The
participation of the informant in dasvi and
terhvi after ten days of the incident as per
statement of DW1 and also took part in
cremation are also evident from statement
of the PW2, therefore, this part of evidence
of PW1 is not trustworthy, hence discarded.

15. The statement of DW1 that while
returning Baburam PW1 said since his
grand son was not sent with him by
accused persons therefore he will falsely
implicate
them,
found
support
and
corroborate from the statement of PW2
Reeta, who also has said that since Bablu
(grand son of the PW1) has not been sent
with her grand mother, therefore, his family
members got annoyed. This may be cause
of lodging First Information Report.
According to statement of DW1, there was
no allegation of dowry nor anybody
demanded dowry nor the same was fixed in
the marriage nor even the deceased did
complaint regarding dowry with him. PW2,
in her cross examination, has stated that
regarding dowry, no one has talked to her
although in examination-in-chief, she has
stated that Rs.10,000/- and a buffalo was
being demanded by the appellant and his
family members, thus, again regarding the
demand of dowry, the statement of PW1 is
not corroborated with the statement of
other witnesses PW2 and DW1, hence this
also cannot be relied on.

16. PW1, in his cross examination,
has stated that at the time of the death of
deceased, Reeta PW2 was 10 to 11 years
old. PW2 has stated that she was not born
at the time of marriage of the deceased.
Thus conjoint reading of statement of DW1
and PW2, it appears that the deceased was
married at least more than 11 years ago
before date of her death. This fact is further
corroborated by the statement of DW1,
who says that the deceased was married on
26.2.1985. The entire testimony of the PW1
either it is regarding the manner of death of
the deceased, time of marriage of the
deceased, information of death of the
deceased, is not corroborated with the
statement of DW1 and PW2, rather has
been contradicted. The testimony of the
PW1 is also not trustworthy because as per
his own statement, Jagdish son of Jairam,
informed him about the incident, then, he
says grand daughter Reeta, who informed
him, then, in the cross-examination, he says
that he does not know Jagat Narain, father
of Jagdish. He also says that he cannot
identify Jagdish, who has informed him
regarding the incident, although he happens
to be the relative. False and contradictory
testimony of PW1 does not inspire
confidence. The same is not corroborated
by the testimony of PW2 and DW1.

PW4 is investigating officer who
has proved exhibit ka 1, Ka 2, Ka3, Ka4
and Ka5.

17. In this case considering the
testimony of PW1 which is nothing but a
lie in every piece of the testimony. The
testimony of PW1 has been contradicted
from the testimony of PW2 and DW1. It is
evident that marriage took place beyond
seven years of her death and as such she
was married at least for more than 11 years
ago. From the statement of PW3, it appears
that the deceased died due to cholera.
According to the statement of PW2 and
DW1, the deceased was cremated in the
presence of informant and other family
members of the deceased. The informant in
486 INDIAN LAW REPORTS ALLAHABAD SERIES
filing application under Section 156(3)
Cr.P.C has not come with clean hand. He
has suppressed this fact also. There is no
evidence that the deceased was subjected to
cruelty or harassment soon before her death
although PW2, in her examination-in-chief,
has stated that the informant has given
Rs.10,000/- cash and goods worth Rs.2000
at the time of marriage. However in the
later part of her statement rather in her
entire statement, it has nowhere been stated
by PW2 who was residing with the
deceased for the last one month that soon
before
her
death
the deceased
was
subjected to cruelty. There is no allegation
leveled by her that any of the family
members of the appellant or the appellant
himself has demanded dowry. Although the
allegation of cruelty has been leveled by
PW2,
however,
the
said
cruelty
or
harassment was not in connection with the
demand of dowry as per the statement of
PW2. Likewise DW1 out rightly has
rejected such case of cruelty or dowry. He
has not supported the prosecution story.
The witnesses i.e. DW1 and PW2 remained
intact even after the prolonged cross
examination. In this case, prosecution has
failed to prove that the deceased died
within seven years of her marriage. It has
also failed to prove that the death was
under abnormal circumstances as the PW3
has clearly opined that the deceased was
suffering from dyscentry and vomiting. She
was treated at his clinic for three hours and
thereafter referred to District Hospital
Sitapur, where she died. As per the
statement of PW1 deceased was subjected
to cruelty and harassment by the appellant.
However, there is no such evidence by the
PW2 or DW1 or any other prosecution
witness except PW1 that such cruelty or
harassment had any connection with the
demand of dowry. The evidence of PW1 is
wholly unreliable and cannot be believed.
The evidence of cruelty and harassment
alone is not sufficient to bring application
under Section 304 B Indian Penal Code, the
basic ingredients to attract the provisions of
Section 304-B I.P.C., are as under:-

"(1) The death of a woman should
be caused by burns or fatal injury or
otherwise
than
under
normal
circumstances;

(2) Such death should have
occurred within seven years of her
marriage;

(3) She must have been subjected
to cruelty or harassment by her husband or
any relative of her husband; and

(4) Such cruelty or harassment
should be for or in connection with demand
for dowry."

18. Alongside insertion of Section
304B in IPC, legislature also introduced
Section 113B of Evidence Act, which lays
down the question as to whether a person
has committed the dowry death of a woman
and it is shown that soon before her death
such woman had 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.

19. Explanation appended to Section
113-B of the Indian Evidence Act lays
down that "for the purpose of this section
'dowry death' shall have the same meaning
as in Section 304 B of Indian Penal Code".

20 . If Section 304-B IPC is read
together with Section 113-B of the
Evidence Act, a comprehensive picture
emerges that if a married woman dies under
8 All. Guddu @ Gokaran Vs. State of U.P.
487
unnatural circumstances at her matrimonial
home within 7 years from her marriage and
there
are
allegations
of
cruelty
or
harassment upon such married woman for
or in connection with demand of dowry by
the husband or relatives of the husband, the
case would squarely come under "dowry
death" and there shall be a presumption
against the husband and the relatives.

21. In this case I find that there is
practically no evidence to show that there
was any cruelty or harassment for or in
connection with the demand of dowry. This
deficiency in evidence is fatal for the
prosecution case. Even otherwise mere
evidence of cruelty and harassment is not
sufficient to bring in application of Section
304B IPC. It has to be shown in addition
that such cruelty or harassment was for or
in connection with the demand for dowry.
(See: Kanchy Ramchander v. State of A.P.
(1996
SCC
(Crl.)
31).
Since
the
prosecution failed to prove that aspect, the
conviction
as
recorded
cannot
be
maintained.

22.
 Since
the
aforesaid
basic
ingredients to attract the provision under
Section 304-B could not be proved by the
prosecution therefore there is no occasion
for this court to presume that the accused
has caused the dowry death and for this
reason Section 113 of the Evidence Act
cannot be invoked in this case. Therefore,
the accused is acquitted of the charge under
Section 304-B Indian Penal Code so far as
the conviction under Section 3/4 Dowry
Prohibition Act is concerned the same is
also not proved as per testimony of PW1
and DW1. PW2 only has stated that at the
time of marriage goods worth Rs.2000/-
and Rs.10,000/- were given by her
grandfather. However, she has not given
any evidence to attract the definition of
dowry under Dowry Prohibition Act.

23. Section 2 of Dowry Prohibition
Act,1961 reads as under :-

"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 parents 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."

24. This demand of Rs.2,000/- cannot
be said to be in connection with the
marriage of the party to the marriage. From
the evidence on the record it is clear that
even
if
it
is
believed
that
the
accused/appellant demanded Rs.10,000,
this demand was made in the third year of
the marriage after the baby boy was born
out of the wedlock. This demand of
Rs.10,000/- was not in connection with the
marriage and, therefore, does not come
within the definition of dowry demand
under Section 2 of the Dowry Prohibition
Act 1961.

25. The Supreme Court of India in the
case of Appasaheb and Anr versus State
of Maharastra (2007) 9 SCC 721, in para
11 has held as under:-
488 INDIAN LAW REPORTS ALLAHABAD SERIES

"11. In view of the aforesaid
definition of the word "dowry" any
property or valuable security should be
given or agreed to be given either directly
or indirectly at or before or any time after
the marriage and in connection with the
marriage of the said Aparties. Therefore,
the giving or taking of property or valuable
security must have some connection with
the marriage of the parties and a
correlation between the giving or taking of
property or valuable security with the
marriage of the parties is essential. Being a
penal provision it has to be strictly
construed. Dowry is a fairly well known
social custom or practice in India. It is well
settled principle of interpretation of Statute
that if the Act is passed with reference to a
particular trade, business or transaction
and words are used which everybody
conversant with that trade, business or
transaction knows or understands to have a
particular meaning in it, then the words are
to be construed as having that particular
meaning. (See Union of India v. Garware
Nylons Ltd., AIR (1996) SC 3509 and
Chemicals and Fibres of India v. Union of
India, AIR (1997) SC 558). A demand for
money on account of some financial
stringency or for meeting some urgent
domestic expenses of for purchasing
manure cannot be termed as a demand for
dowry as the said word is normally
understood. The evidence adduced by the
prosecution does not, therefore, show that
any demand for "dowry" as defined in
Section 2 of the Dowry Prohibition Act was
made by the appellants as what was
allegedly asked for was some money for
meeting
domestic
expenses
and
for
purchasing manure. Since an essential
ingredient of Section 304-B IPC viz.
demand for dowry is not established, the
conviction of the appellants cannot be
sustained. "

26. A sum of Rs.10,000/- at the time
of marriage and goods worth Rs.2,000/-
that was given at the time of marriage was
long back. There is no evidence given by
PW2 or DW1 that there was any demand of
dowry soon before her death and the
allegation of cruelty and harassment by the
PW2 is not with respect to the dowry
demand and the same have not been proved
by cogent evidence by the prosecution
hence the accused appellant is also
acquitted under Section 3/4 of the Dowry
Prohibition Act.

27. On due consideration to the
submission advanced and evidence on
record it is clear that prosecution has not
been able to prove beyond reasonable
doubt the ingredients of Section 304B
I.P.C. for holding the accused appellant
guilty for the offense of dowry death.

28. For the reasons mentioned hereinabove, the appellant is acquitted of the
charges under Section 304-B Indian Penal
Code and Section 3/4 Dowry Prohibition
Act.

The impugned judgment and
order dated 10.04.2003 passed by the
Special Sessions Judge, Sitapur in Sessions
Trial No. 487 of 1997 arising out of Case
Crime No. 196 of 1996, under Sections
498A, 304B, 201 of the Indian Penal Code
and Section 3/4 of the Dowry Prohibition
Act, Police Station Ramkot, District
Sitapur, is set aside.

The appellant is acquitted of all
the charges. The bail bonds are canceled.
Sureties are discharged.

29. The appellant is directed to be
released if he is not wanted in any other
case.
8 All. Nanhey Lal Yadav Vs. The State of U.P.
489

30. The instant appeal is, accordingly,
Allowed.

31. Let a copy of this judgment along
with the lower court record be sent to the
learned trial court concerned by the
Registry.
----------
(2021)08ILR A489
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.08.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No 1148 of 2001

Nanhey Lal Yadav ...Appellant
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
J.S.Tomar, Ajay Kumar

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal Code, 1860- Sections 376, 506(2) -
challenge
to-conviction-The
medical
evidence contradicts oral evidence as
according to the first information report,
the prosecutrix was 14 years of age
whereas in the medical examination her
age has been found to be 18 years. No
mark of injury has been found on the body
and also on the private part of the
prosecutrix whereas in her testimony
P.W.1 has stated that she had received
scratches over her body and mouth. Thus,
this
part
of
the
evidence
of
the
prosecution is falsified by the medical
report. The prosecutrix has been found to
be used to sexual intercourse. The Doctor
has not given any opinion about rape.
Even the investigating officer has not
corroborated the prosecution story as he
has not found any broken Jwar plants as
stated by the prosecutrix. He has also
contradicted the statement of P.W.2 to the
extent that it is P.W.2 who showed the
place of occurrence to him and then he
prepared the site plan, whereas P.W.2
says that he never returned to the place of
occurrence again. Every part of evidence
of P.W.1 is contradictory, improbable and
not corroborated by any other piece of
evidence. The accused appellant cannot be
convicted on this kind of contradictory,
shaky and improbable evidence of the
prosecutrix. the prosecution has failed to
prove its case beyond reasonable doubt.
Every part of the testimony of the
prosecutrix
is
infirm,
doubtful
and
contradictory as well as improbable which
does not pose confidence. There is no
corroborative evidence in support of the
testimony
of
the
prosecutrix.
Five
important and available witnesses have
been withheld by the prosecution from the
Court, therefore, it is hard to convict the
appellant on this quality of evidence and it
is a fit case to draw adverse inference
against the prosecution for withholding
five important eye-witnesses from the
Court. (Para 1 to 13)

B. It is true that if a material witness,
which would unfold the genesis of the
incident or an essential part of the
prosecution
case,
not
convincingly
brought to fore otherwise, or where there
is gap or infirmity in the prosecution case
which could have been supplied or made
good by examining a witness which
though available is not examined, the
prosecution
case
can
be
termed
as
suffering
from
a
deficiency
and
withholding of such a material witness
would oblige the Court to draw an adverse
inference against the prosecution by
holding that if the witness would have
been
examined
it
would
not
have
supported the prosecution case. On the
other
hand
if
already
overwhelming
evidence is available and examination of
other witnesses would only be a repetition
or duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such a