# Jai Shankar Shukla v. State of U.P

- **Citation:** (2025) 7 ILRA 971
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-25
- **Case number:** Criminal Appeal No. 479 of 1994
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-shankar-shukla-v-state-of-u-p-53685
- **Pages:** 21

## Headnote

offences under Sections 304-B and 498-A of the
Indian Penal Code, 1860 was sustainable where
(i) key witnesses turned hostile during crossexamination recorded after a lapse of two years,
(ii) the Investigating Officer and Doctor were
not examined, and (iii) the prosecution relied
primarily on circumstantial and corroborative
evidence to prove dowry demand and cruelty
preceding the death of the deceased.

Headnotes
Indian Penal Code, 1860 - ss. 304-B, 498A - Dowry death - Presumption under
s.113-B Evidence Act - Hostile witnesses
- Delay in cross-examination - Nonexamination of Investigating Officer -
Chance witness - Evidentiary value - Fair
trial - Conviction sustained.

Held:
For constituting an offence under Section 304-B
IPC-four ingredients must coexist- (i) death of a
woman
otherwise
than
under
normal
circumstances; (ii) within seven years of her
marriage; (iii) cruelty or harassment by husband
or relatives soon before her death; and (iv) such
cruelty or harassment being in connection with
demand of dowry-Once these ingredients are
established-presumption under Section 113-B of
the Evidence Act, 1872 is attracted. [Paras 1416]

Long adjournments between examination-inchief and cross-examination- compromise the
integrity of testimony-allow witnesses to be won
over-such later contradictions do not erase
reliable parts of their earlier statements. [Paras
34-35]

Evidence of hostile witnesses-can be relied
upon-to the extent it supports the prosecution
case-the
court
must
sift
truth
from
embellishment and rely on dependable portions.
[Paras 20, 34-36].

Presumption of dowry death-once establishedwas not rebutted by the appellant through any
cogent
evidence-trial
court
had
correctly
appreciated the evidence and applied the law-
Conviction
and
sentence
upheld-Appeal
dismissed. [Paras 45-46] (E-14)

Case Law Cited
Bhupal
Singh
&
Another
Vs.
State
of
Uttrakhand; 2025 All SCR (CRL) 341;
Judgment and Order dated 07.10.2021 passed
in Criminal Appeal No.7380 of 2019; Mohit
972 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar Vs. State of U.P. by a co-ordinate
bench of this court; judgment and order dated
29.08.2024 passed in Chabi Karmakar and
Others Vs. The State of West Bengal,
Criminal Appeal No.1556 of 2013 by the
Hon'ble Supreme Court; judgment and order
dated 31.01.2025 passed in Karan Singh Vs.
State of Haryana in Criminal Appeal No.1076
of 2014 by the Hon'ble Supreme Court; The
State of Uttrakhand Vs. Sanjay Ram Tamta
@ Sanju @ Prem Prakash, 2025 (2) RCR
(Criminal) 61: (Law Finder Doc ID #
2693666); Jarnail Singh And Others Vs.
State of Panjab, 2010 AIR SC 3699;
judgment and Order dated 20.01.2025
passed in Binesh Kumar Vs. State of U.P.;
Criminal Appeal No.1627 of 2019 by a
Division Bench of this Court; judgment and
order dated 22.12.2023 passed
in Smt.
Gangotri and Another Vs. State of U.P.,
Criminal Appeal No.2109 of 2016 by Division
Bench of this Court; Ashok Vs. State of Uttar
Pradesh; 2024 12 SCR 335; Sovaran Singh
Prajapati Vs. The State of U.P., 2025 (2)
RCR (Criminal) 98; Madan Singh and
Another Vs. The State Jharkand; Criminal
Appeal No.768 of 2003 passed by a
Division Bench of High Court of Jharkhand
at
Ranchi;
judgment
and
order
dated
15.03.2024 passed in Ram Ujer & Others Vs.
State of U.P.; Criminal Appeal No.103 of
1997 by a co-ordinate bench of this Court;
judgment and order dated 20.09.2024 passed in
Shoor Singh and Another Vs. State of
Uttrakhand; Criminal Appeal No.249 of
2013 by Hon'ble Supreme Court; Judgment
and
Order
dated
09.01.2025
passed
in
Sadashiv Dhondiram Patil Vs. The State of
Maharashtra in Criminal Appeal No.1718
of 2017 by the Hon'ble Supreme Court;
Guna Mahto Vs. State of Jharkhand, 2023
(123) ACC 934; Selvamani Vs. The State
represented by the Inspector of Police,
MANU/SC/0403/2024; The State of U.P.
Vs. Ramesh Prasad Mishra and Another,
1996 (10) SCC 360; State of U.P. Vs. Vijay
Kumar
Kori
and
Others,
MANU/UP/1218/2016;
Rohtash
Kumar
Vs.
State
of
Haryana,MANU/SC/0573

## Text

_Characters 0–39,941 of 71,966. This is a partial read: ask again with offset=39941 for what follows._

7 All. Jai Shankar Shukla Vs. State of U.P.
971
RC
No.
0062008A0016/2008
under
Sections 7 and Section 13 (1) (d) read with
Section 13 (2) of the Prevention of
Corruption Act, 1988, Police Station
C.B.I./A.C.B., Lucknow, whereby the trial
Court has convicted the appellant for the
offence under Section 7 of the Prevention
of Corruption Act, 1988 and has sentenced
him to undergo rigorous imprisonment for
a period of three years and to pay
Rs.15,000/- as fine, is set aside. The
amount of fine paid by the appellant shall
be refunded to him within a period of 30
days from the date of this judgment.

69. The parties shall bear their own
costs of litigation.
----------
(2025) 7 ILRA 971
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No. 479 of 1994

Jai Shankar Shukla ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Nalini Jain, Ashish Mishra Atal, Brijesh
Kumar, Manjusha Kapil, Ramakar Shukla,
Surendra Pratap Srivastava

Counsel for the Respondent:
Govt. Advocate

Issue for Consideration
Whether the conviction of the appellant for
offences under Sections 304-B and 498-A of the
Indian Penal Code, 1860 was sustainable where
(i) key witnesses turned hostile during crossexamination recorded after a lapse of two years,
(ii) the Investigating Officer and Doctor were
not examined, and (iii) the prosecution relied
primarily on circumstantial and corroborative
evidence to prove dowry demand and cruelty
preceding the death of the deceased.

Headnotes
Indian Penal Code, 1860 - ss. 304-B, 498A - Dowry death - Presumption under
s.113-B Evidence Act - Hostile witnesses
- Delay in cross-examination - Nonexamination of Investigating Officer -
Chance witness - Evidentiary value - Fair
trial - Conviction sustained.

Held:
For constituting an offence under Section 304-B
IPC-four ingredients must coexist- (i) death of a
woman
otherwise
than
under
normal
circumstances; (ii) within seven years of her
marriage; (iii) cruelty or harassment by husband
or relatives soon before her death; and (iv) such
cruelty or harassment being in connection with
demand of dowry-Once these ingredients are
established-presumption under Section 113-B of
the Evidence Act, 1872 is attracted. [Paras 1416]

Long adjournments between examination-inchief and cross-examination- compromise the
integrity of testimony-allow witnesses to be won
over-such later contradictions do not erase
reliable parts of their earlier statements. [Paras
34-35]

Evidence of hostile witnesses-can be relied
upon-to the extent it supports the prosecution
case-the
court
must
sift
truth
from
embellishment and rely on dependable portions.
[Paras 20, 34-36].

Presumption of dowry death-once establishedwas not rebutted by the appellant through any
cogent
evidence-trial
court
had
correctly
appreciated the evidence and applied the law-
Conviction
and
sentence
upheld-Appeal
dismissed. [Paras 45-46] (E-14)

Case Law Cited
Bhupal
Singh
&
Another
Vs.
State
of
Uttrakhand; 2025 All SCR (CRL) 341;
Judgment and Order dated 07.10.2021 passed
in Criminal Appeal No.7380 of 2019; Mohit
972 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar Vs. State of U.P. by a co-ordinate
bench of this court; judgment and order dated
29.08.2024 passed in Chabi Karmakar and
Others Vs. The State of West Bengal,
Criminal Appeal No.1556 of 2013 by the
Hon'ble Supreme Court; judgment and order
dated 31.01.2025 passed in Karan Singh Vs.
State of Haryana in Criminal Appeal No.1076
of 2014 by the Hon'ble Supreme Court; The
State of Uttrakhand Vs. Sanjay Ram Tamta
@ Sanju @ Prem Prakash, 2025 (2) RCR
(Criminal) 61: (Law Finder Doc ID #
2693666); Jarnail Singh And Others Vs.
State of Panjab, 2010 AIR SC 3699;
judgment and Order dated 20.01.2025
passed in Binesh Kumar Vs. State of U.P.;
Criminal Appeal No.1627 of 2019 by a
Division Bench of this Court; judgment and
order dated 22.12.2023 passed
in Smt.
Gangotri and Another Vs. State of U.P.,
Criminal Appeal No.2109 of 2016 by Division
Bench of this Court; Ashok Vs. State of Uttar
Pradesh; 2024 12 SCR 335; Sovaran Singh
Prajapati Vs. The State of U.P., 2025 (2)
RCR (Criminal) 98; Madan Singh and
Another Vs. The State Jharkand; Criminal
Appeal No.768 of 2003 passed by a
Division Bench of High Court of Jharkhand
at
Ranchi;
judgment
and
order
dated
15.03.2024 passed in Ram Ujer & Others Vs.
State of U.P.; Criminal Appeal No.103 of
1997 by a co-ordinate bench of this Court;
judgment and order dated 20.09.2024 passed in
Shoor Singh and Another Vs. State of
Uttrakhand; Criminal Appeal No.249 of
2013 by Hon'ble Supreme Court; Judgment
and
Order
dated
09.01.2025
passed
in
Sadashiv Dhondiram Patil Vs. The State of
Maharashtra in Criminal Appeal No.1718
of 2017 by the Hon'ble Supreme Court;
Guna Mahto Vs. State of Jharkhand, 2023
(123) ACC 934; Selvamani Vs. The State
represented by the Inspector of Police,
MANU/SC/0403/2024; The State of U.P.
Vs. Ramesh Prasad Mishra and Another,
1996 (10) SCC 360; State of U.P. Vs. Vijay
Kumar
Kori
and
Others,
MANU/UP/1218/2016;
Rohtash
Kumar
Vs.
State
of
Haryana,MANU/SC/0573/2013;
Ram
Badan
Sharma
Vs.
State
of
Bihar,
MANU/SC/8427/2006; Mano Dutt And
Another Vs. State of Uttar Pradesh, (2012)
4
SCC
79;
Bassu
Vs.
State
of
M.P.,MANU/MP/0670/2023
(MANU/SC/0403/2024).

List of Acts / Statutes
Indian Penal Code, 1860; Indian Evidence Act,
1872; Code of Criminal Procedure, 1973; Dowry
Prohibition Act, 1961.
List of Keywords
Dowry death; Presumption under Section 113-B
Evidence Act; Hostile witnesses; Delay in crossexamination; Fair trial; Chance witness; Nonexamination of Investigating Officer; Dowry
demand; Circumstantial evidence; Presumption
of guilt; Judicial scrutiny; Conviction.
Case Arising From
Judgment and order dated 17 October 1994
passed by the Special Judge, Unnao, in Sessions
Trial No. 19 of 1992 (State v. Jai Shankar Shukla
and Another)

Appearance for Parties
For the Appellant : Shri Ramakar Shukla, Shri
Nalini Jain, Shri Ashish Mishra Atal, Shri Brijesh
Kumar, Smt. Manjusha Kapil, Shri Surendra
Pratap Srivastav.
For the State : Shri Rajesh Kumar Shukla,
Additional Government Advocate

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

1. Heard Shri Ramakar Shukla,
learned counsel for the appellant and Shri
Rajesh Kumar Shukla, learned A.G.A. for
the State.

2. The instant criminal appeal has been
filed by Jai Shakar Shukla against the
judgment and order dated 17.10.1994,
passed in Sessions Trial No.19 of 1992
(State Vs. Jai Shanker Shukla and Another)
by the Special Judge, Unnao convicting the
appellant under Section 498-A I.P.C and
sentencing him to rigorous imprisonment
for one year and to pay a fine of Rs.1000
and in case of failure of payment of fine,
further rigorous imprisonment for one year
and further convicting the appellant under
Section 304-B I.P.C. and sentencing him to
undergo rigorous imprisonment for ten
7 All. Jai Shankar Shukla Vs. State of U.P.
973
years. It has further been provided that all
the sentences would run concurrently.

3. Learned counsel for the appellant
submitted that the appellant has been
wrongly
and
illegally
convicted
and
sentenced. He submitted that the offences
under Section 498-A and 304-B of the
Indian Penal Code (hereinafter referred as
IPC) could not be proved against the
appellant and there was no charge under
Section 3/4 of the Dowry Prohibition Act
because
no
witness
supported
the
prosecution case. He further submitted that
five witnesses were produced in support of
the charge, out of which PW-4 and PW-5
are chance witnesses and the conviction has
been made solely on the evidence of PW-4,
whose testimony is also hearsay evidence.
He also submitted that PW-4 and PW-5 did
not tell the date and time of the incident.
PW-4 was not shown in the site plan and he
did not identify the victim, therefore, his
presence itself is doubtful. It has further
been submitted that the deceased suffered
100% burn injuries as per the postmortem
report, therefore, she could not have been
in a position to speak anything. However,
PW-4 on the basis of a statement allegedly
made by the deceased to some person,
stated that she was burnt by her husband
and in-laws due to the non-fulfillment of
demand of dowry, conversely, her father
and mother have not supported the factom
of demand of dowry. Thus, it has been
submitted that the prosecution failed to
prove the offences levelled against the
appellant.

4. It has also been submitted that the
Doctor, Head Muharrir and Investigating
Officer were not produced to prove the
post-mortem,
FIR
and
charge
sheet
respectively. Thus, the statement under
Section
161
CrPC
recorded
by
Investigating Officer could not have been
relied upon. It was also submitted that
although two site plans were produced but
they have not been proved and since PW-4
was not shown in the site plan, his presence
itself at the spot is doubtful, and his
presence on the spot could have been
proved only by the Investigating Officer,
who was not examined.

5. On the basis of the aforesaid
submissions, learned counsel for the
appellant submitted that the impugned
judgment and order passed by the trial
court is not sustainable in the eyes of law
and liable to be set-aside by this Court. He
relied on Bhupal Singh & Another Vs.
State of Uttrakhand; 2025 All SCR
(CRL) 341, Judgment and Order dated
07.10.2021 passed in Criminal Appeal
No.7380 of 2019; Mohit Kumar Vs. State
of U.P. by a co-ordinate bench of this
court,
judgment
and
order
dated
29.08.2024 passed in Chabi Karmakar
and Others Vs. The State of West
Bengal; Criminal Appeal No.1556 of
2013 by the Hon'ble Supreme Court,
judgment and order dated 31.01.2025
passed in Karan Singh Vs. State of
Haryana in Criminal Appeal No.1076 of
2014 by the Hon'ble Supreme Court, The
State of Uttrakhand Vs. Sanjay Ram
Tamta @ Sanju @ Prem Prakash; 2025
(2) RCR (Criminal) 61: (Law Finder Doc
ID # 2693666), Jarnail Singh And Others
Vs. State of Panjab; 2010 AIR SC 3699
(Law Finder Doc ID # 202527), judgment
and Order dated 20.01.2025 passed in
Binesh Kumar Vs. State of U.P.;
Criminal Appeal No.1627 of 2019 by a
Division Bench of this Court, judgment
and order dated 22.12.2023 passed in
Smt. Gangotri and Another Vs. State of
U.P.; Criminal Appeal No.2109 of 2016
by Division Bench of this Court, Ashok
974 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs. State of Uttar Pradesh; 2024 12 SCR
335, Sovaran Singh Prajapati Vs. The
State of U.P.; 2025 (2) RCR (Criminal)
98 (Law Finder Doc ID # 2695295,),
Madan Singh and Another Vs. The State
Jharkand; Criminal Appeal No.768 of
2003 passed by a Division Bench of High
Court
of
Jharkhand
at
Ranchi,
judgment and order dated 15.03.2024
passed in Ram Ujer & Others Vs. State
of U.P.; Criminal Appeal No.103 of 1997
by a co-ordinate bench of this Court,
judgment and order dated 20.09.2024
passed in Shoor Singh and Another Vs.
State of Uttrakhand; Criminal Appeal
No.249 of 2013 by Hon'ble Supreme
Court, Judgment and Order dated
09.01.2025
passed
in
Sadashiv
Dhondiram Patil Vs. The State of
Maharashtra
in
Criminal
Appeal
No.1718 of 2017 by the Hon'ble Supreme
Court & Guna Mahto Vs. State of
Jharkhand; 2023 (123) ACC 934.

6. Per contra, learned Additional
Government Advocate submitted that the
appellant
has
been
rightly
and
in
accordance
with
law
convicted
and
sentenced by the learned trial court because
the case is proved by the prosecution. He
further submitted that the evidence of
chance witnesses cannot be discarded, as
they are independent witnesses. The
accused stated in his statement under
Section 313 CrPC that the burning was due
to sprinkling of seasoning (Chauk lagane
se), but there is no evidence to support this
claim. The case is proved by Fard recovery
itself. He also submitted that since 100%
burn injuries were found and if it would
have been due to the burning of thatch, the
deceased must have tried to save herself on
start of fire,, but there is no such evidence.
The smell of kerosene oil was found from
the body of the deceased and the accused
stated in his statement under Section 313
CrPC that he does not know about it. It was
also submitted that the information of the
incident was not given by any family
member of the accused to the parents of the
deceased but by a third person. It was
further submitted that the non-examination
of the Investigating Officer etc., cannot be
a ground for exoneration of the accused
when the charge has been proved against
the appellant.

7. On the basis of above, learned
Additional
Government
Advocate
submitted that the learned trial court has
rightly and in accordance with law
convicted and sentenced the appellant. The
impugned order does not suffer from any
illegality or error, which may call for any
interference by this Court. The appeal has
been filed on misconceived and baseless
grounds, which is liable to be dismissed.
He relied on Selvamani Vs. The State
represented by the Inspector of Police;
MANU/SC/0403/2024, The State of U.P.
Vs.
Ramesh
Prasad
Mishra
and
Another; 1996 (10) SCC 360, State of
U.P. Vs. Vijay Kumar Kori and Others;
MANU/UP/1218/2016, Rohtash Kumar
Vs.
State
of
Haryana;MANU/SC/0573/2013,
Ram
Badan Sharma Vs. State of Bihar;
MANU/SC/8427/2006, Mano Dutt And
Another Vs. State of Uttar Pradesh;
(2012) 4 SCC 79 & Bassu Vs. State of
M.P.;MANU/MP/0670/2023
(MANU/SC/0403/2024).

8. I have considered the submissions
of learned counsel for the parties and
perused the records.

9. As per prosecution the daughter of
Raj Kishore @ Rajju was married to the
appellant, Jai Shankar Shukla son of Ram
7 All. Jai Shankar Shukla Vs. State of U.P.
975
Autar Shukla, about a year prior to the date
of incident i.e.11.06.1991. In the marriage,
the dowry was given as per his capacity.
The appellant i.e. the husband of the
deceased and her mother-in-law had been
demanding Rs.5000/- since two months
prior to the date of the incident. This came
to the knowledge when the daughter of the
complainant visited his house. When
second time the daughter went to his inlaws house, then after some days the
complainant himself went to the house of
his daughter to bring her and he told to the
appellant and the mother-in-law of the
daughter that he is not in a position to give
Rs.5000/-, upon which he was threatened
that if he would not give the money, he
himself would be responsible for any
consequences and he was not allowed even
to meet her. On 11.06.1991, a Pasi from the
village Taura informed him that his
daughter, who was married in Bhadin, has
been burnt. She has been taken to Purva
Hospital and if he wants to see her, he
should reach there. Upon coming to know
about it, he went to the Purva Hospital but
he could not find anybody there, therefore,
he went to the Police Station, where he was
informed that his daughter's dead body is
kept at Fatehganj and he may go there. He
went to Fatehganj, where he found the dead
body of his daughter, which was badly
burnt. He is confident that his daughter has
been burnt by the in-laws and husband due
to the non-fulfillment of demand of money.
The FIR of the incident was lodged at
Police Station- Purva, District- Unnao, on
11.06.1991, at 21:30. The FIR was lodged
based on the written information given by
the complainant.

10. A written information of the
incident was also given by Ram Autar on
June 11, 1991, at 16:40. In this information,
it was stated that his daughter-in-law, Smt.
Suman, wife of Jai Shankar, has died due to
burning from a fire in thatch. It was stated
in the said information that Smt. Suman
was preparing food at about 10:00 AM on
11.06.1991 and as soon as she sprinkled
seasoning for vegetables (Chaunk Lagana)
in the wok (karahi), the thatch was burnt
and since Smt. Suman was wearing Nylon
Saree, she was badly burnt. She was taken
to the hospital by bullock cart (Bailgadi),
but she died only when he could reach
Fatehganj.

11. The matter was investigated by
Investigating Officer, who prepared the site
plan of the place of incident and where she
had died, the recovery memo of the cloths
of the deceased and the recovery memo
from the place of incident. The deceased's
body
was
sent
for
post-mortem
examination after preparation of inquest, in
which the father-in-law is also a member.
The
post-mortem
was
conducted
on
12.06.1991, at 3:15 PM. As per report, the
death was caused by asphyxia and shock
resulting from ante-mortem injuries. These
ante-mortem injuries consisted of I to IV
degree burns covering approximately 10%
of the body. However, all the parties are at
consensus that such burns are considered
equivalent to 100% severe burns. After
investigation, the charge sheet was filed, on
which the cognizance was taken by the
judicial magistrate and since the case was
triable by the sessions court, it was
committed to session on 04.09.1992.

12. The sessions court framed charges
against the accused-appellant under Section
498-A read with Section 34 IPC and 304-B
read with Section 34 IPC. The accused
pleaded non guilty and prayed for a trial. In
oral
evidence,
five
witnesses
were
examined; Raj Kishore as PW-1, Smt. Shiv
Devi as PW-2, Arjun Singh as PW-3,
976 INDIAN LAW REPORTS ALLAHABAD SERIES
Susheel Kumar as PW-4 and Babu Lal as
PW-5. The genuineness of the documents
placed on record by the prosecution has
been admitted by the appellant and it is
recorded in the judgment of trial court also
and it has not been disputed.

13. Before proceeding further, this
Court deems it appropriate to reproduce the
relevant
provisions
under
which
the
appellant
has
been
convicted
and
sentenced,
as
well
as
the
relevant
provisions of the Evidence Act applicable
to the facts and circumstances of the case
because the main thrust of the arguments of
learned counsel for the appellant is that the
ingredients of the offences under Section
498-A and 304-B IPC have not been
proved against the appellant, therefore, no
presumption could have been drawn against
him. Section 498-A, 304-B IPC & 113-B of
Evidence Act are extracted here-in-below:-

498A. Husband or relative of
husband of a woman subjecting her to
cruelty.-Whoever, being the husband or
the relative of the husband of a woman,
subjects such woman to cruelty shall be
punished with imprisonment for a term
which may extend to three years and shall
also be liable to fine.

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

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

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

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

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

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

113B. Presumption as to dowry
death. ---When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman 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.

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

14. On a conjoint reading of the
aforesaid provisions, it is apparent that for
7 All. Jai Shankar Shukla Vs. State of U.P.
977
presumption that the death is dowry death
punishable under Section 304-B IPC, the
death of a married woman should be due to
any burn or bodily injury or occurred
otherwise than under normal circumstances
within seven years of her marriage and it is
shown that soon before her death, she was
subjected to cruelty or harassment by her
husband or any relative of her husband for,
or in connection with, any demand of
dowry. If all the said ingredients are
proved, the presumption of dowry death
under Section 113-B of the Evidence Act
can be drawn. This presumption can be
drawn when all the initial ingredients of
dowry death are proved beyond reasonable
doubt. The explanation to Section 304-B of
the Indian Penal Code, 1860, clarifies that
the term "dowry" shall have the same
meaning as provided in Section 2 of the
Dowry Prohibition Act, 1961. The "dowry"
has been defined under Section 2 of the
Dowry Prohibition Act, 1961, which, on
reproduction, reads as under:-

"2. Defmition of "dowry"- ln
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 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 Laws (Shariat) applies.

Explanation II- The expression
"valuable security" has the same meaning
as in section 30 of the Indian Penal Code
(45of1860)."

15. The Hon'ble Supreme Court, in the
case of Shoor Singh & Another Vs. State
Uttra Khand (Supra), has considered it.
The relevant paragraphs 12 and 13 are
extracted here-in-below:-

"12. To constitute a 'dowry
death', punishable under Section 304- B7
IPC,
following
ingredients
must
be
satisfied:

i. death of a woman must have
been caused by any burns or bodily injury
or it must have occurred otherwise than
under normal circumstances; ii. such death
must have occurred within seven years of
her marriage;

iii. soon before such death, she
must have been subjected to cruelty or
harassment by her husband or any relative
of her husband; and iv. such cruelty or
harassment must be in connection with any
demand for dowry.

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

Explanation. -- For the purpose
of this sub-section, 'dowry' shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 [28 of 1961]. (2)
Whoever commits dowry death shall be
punished with imprisonment for a term
978 INDIAN LAW REPORTS ALLAHABAD SERIES
which shall not be less than seven years but
which may extend to imprisonment for life
The phrase 'otherwise than under normal
circumstances'
is
wide
enough
to
encompass a suicidal death.

13.
When
all
the
above
ingredients of 'dowry death' are proved,
the presumption under Section 113-B8 of
the Evidence Act is to be raised against the
accused that he has committed the offence
of 'dowry death'. What is important is that
the presumption under Section 113-B is not
in respect of commission of an act of
cruelty, or harassment, in connection with
any demand for dowry, which is one of the
essential ingredients of the offence of
'dowry death'. The presumption, however,
is in respect of commission of the offence of
'dowry death' by the accused when all the
essential ingredients of 'dowry death' are
proved
beyond
reasonable
doubt
by
ordinary rule of evidence, which means
that to prove the essential ingredients of an
offence of 'dowry death' the burden is on
the prosecution."

16. A similar view has been taken by
the Hon'ble Supreme Court, in the cases of
Bhupal Singh & Another Vs. State of
Uttrakhand (Supra), Chabi Karmakar
and Others Vs. The State of West Bengal
(Supra), Karan Singh Vs. State of
Haryana (Supra) & Ram Badan Sharma
Vs. State of Bihar (Supra).

17. Adverting to the facts of the
present case, the deceased was a married
woman. She died due to burn injuries
within seven years of her marriage. Thus, it
is to be seen in this case, as to whether it
has been proved that deceased was
subjected to cruelty or harassment by her
husband or any relative of her husband
soon before her death for demand of any
dowry or not.

18. The incident had occurred at about
10:00 AM in the morning on 11.06.1991,
the information of which was given to the
father of the deceased on the same date at
about 3:00 PM by a third person of the
village,
where
the
daughter
of
the
complainant was married and she with her
in-laws resided. On coming to know about
the incident, the complainant went to the
hospital and thereafter to the police station
and on the information given by police
station, he reached the place where the
dead body of his daughter was kept and
found it badly burnt. Thereafter, he got a
written information prepared and submitted
it at the Police Station on the same date, on
which the first information report was
lodged at 21:30.

19. It is not in dispute between the
parties that the deceased was married to the
appellant about one year prior to the date of
incident i.e. 11.06.1991. It is also not in
dispute
that
the
deceased
died
on
11.06.1991 due to burn injuries sustained
by her. The dispute is in regard to demand
of dowry by the appellant and the motherin-law of the deceased and cruelty or
harassment with the deceased by them due
to such demand, before her death due to
burn injuries and the manner in which she
sustained burn injuries, which ultimately
caused her death from the burn injuries and
since the death occurred within seven years
of marriage, whether the presumption of
dowry death under Section 113-B of the
Indian Evidence Act, 1872, could have
been drawn.

20. The allegation in the FIR indicates
that there was a demand of dowry of
Rs.5000/- since two months after the
marriage of the deceased by the appellant
and his mother i.e. the mother-in-law of the
deceased, on account of which the
7 All. Jai Shankar Shukla Vs. State of U.P.
979
complainant was also threatened and he
was not allowed to meet to his daughter,
when he went to her in-laws' house to bring
her. According to the FIR, the information
about the burning of the deceased was
given by a third person and not by the
appellant or any of his family members.
The complainant appeared as PW-1, whose
chief-examination
was
recorded
on
12.11.1992,
in
which
he
completely
supported the version of the FIR. He also
disclosed the demand of dowry made by
the appellant and his mother, as told to him
by the deceased and also made to him. He
also stated that he was even not allowed to
meet his daughter and he had assured the
appellant and his mother that as soon as he
would be able to arrange the money, he
would give it and his daughter should not
be harassed but the mother of the appellant
stated that no purpose would be served by
saying so and he would have to give the
money. He also stated that Mastana Mishra,
a resident of his village, is married in the
village where the complainant's daughter
was married. Five to six days after he had
gone to meet her, Mastana Mishra's wife
had come and informed him that his
daughter's in-laws were harassing her, and
he should bring her after giving the money.
On 11.06.1991, Jai Kisan Pasi of his village
informed him that his daughter has been
burnt, therefore, he went to the Purva
Hospital, but nobody was found there.
Then he went to the Police Station, where
he was informed that his daughter has died
and her dead body is kept at Fatehganj. He
went to Fatehganj, where her father-in-law
was present. Therefore, he got the FIR
written by some person at bus stop in Purva
and after reading and signing it, lodged the
FIR. He proved the FIR lodged by him. He
also stated that the appellant Jai Shankar
and his family members had not given any
information.

21. The cross-examination of PW-1
was done on 08.08.1994 i.e. after about two
years of chief examination. In the crossexamination,
he
reversed
his
earlier
testimony, giving evidence against what he
stated in the chief-examination. In the
cross-examination, he stated that the FIR
was lodged after being got written by a
person by the Inspector at the Police
Station, which was not told to him and his
signature
was
taken.
In
the
crossexamination, he admitted that the appellant
is a rich person and he is a poor person and
he had given dowry as per his capacity and
there was no demand of dowry. The
appellant, etc., had not beaten his daughter.
The information about the dowry was given
by his sister-in-law. Jai Kisan Pasi had
informed that his daughter has been burnt
during preparation of food and the
appellant Jai Shankar had informed Jai
Kisan Pasi after coming to his village. It
was also informed by him that they were
taking her daughter to the hospital and he
may reach there. He also informed that no
other witness would give any evidence and
his son Om Prakash has died.

22. PW-1 was declared hostile and
was cross-examined by ADGC, when he
stated that there was no pressure of giving
dowry on him. His daughter had never told
him about the demand of Rs.5000/-. He had
not sent his daughter due to Navratra and
the reason for not sending was not
harassment. He stated that he had given the
statement on the last date due to fear of
police. He had sent his daughter happily to
her in-laws' house. He further stated that
Mastana Mishra is resident of Taura and he
had an old enmity with Jai Shankar, on
account of which he had informed that his
daughter is being harassed in her in-laws'
house and on his instigation, he had written
that his daughter had been burnt. He further
980 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that when he reached the Police
Station, Mastana Mishra was present there
and on his saying, the Inspector got written
the report written by another person,
whereas in his chief and cross-examination
before being declared hostile, he had not
told this.

23. The learned trial court, after
considering the examination-in-chief of
PW-1 and his cross-examination recorded
after two years, came to the conclusion that
he had given the statement in his crossexamination under some pressure. The
learned trial court also recorded that it is
also clear from the evidence of PW-1 that
the information of death of his daughter
was not given by the accused but by one Jai
Kisan Pasi and if the deceased would have
died during preparation of food, then they
would have given the information of
burning to the complainant. As stated in the
cross-examination
by
PW-1
that
the
appellant had come to his village to give
information and after giving information to
Jai Kisan Pasi went back and if he had
come to give information to village, he
could have given information to the
complainant also, therefore, this conduct of
the appellant itself creates doubt. It is not in
dispute that PW-1 was not present at the
spot, therefore, he could not have proved as
to how the deceased died on account of
burning and it is to be seen on the basis of
circumstances because PW-1 has also given
a completely converse evidence in crossexamination, which was done after about
two years of the examination-in-chief.
However, even in cross-examination, he
admitted that Mastana Mishra had informed
about harassment and cruelty with his
daughter by appellant and his mother and
he also told about difference of financial
states between him and family of appellant.
Thus, this Court is of the view that the
finding recorded by the learned trial court
that in cross-examination, he was under
some pressure from the accused can not be
said to be wrong and perverse.

24. Same evidence, as in crossexamination of PW-1, has been given by
PW-2 Smt. Shiv Devi, who is mother-inlaw of the appellant and the mother of the
deceased. Her statement was recorded after
recording of cross-examination of PW-1
Raj Kishore on 08.08.1994. She was also
declared hostile. Both PW-1 and PW-2
have stated that they do not know as to how
their statements under Section 161 CrPC
were recorded. The learned learned trial
court recorded a finding that similar to PW1, PW-2 has also given evidence under
some pressure from the accused.

25. PW-3 was also declared hostile
and his evidence does not support the
prosecution case. PW-4 Sushil Kumar has
stated that about three years ago, when he
was going to sell ice in Purva, he found a
burnt lady near Mangat Kheda, who was
saying that she has been burnt by her
mother-in-law and husband, who were
demanding Rs.5000/-, on account of which
she has been burnt. She was being taken to
Purva Hospital by bullock cart. The
presence of PW-4 on the spot has been
doubted by learned counsel for the
appellant on the ground that he has not
been shown in the site plan and he could
not tell as to who was the deceased and
since the deceased was 100% burnt, she
could not have been in a position to speak,
therefore, his statement cannot be relied
upon. However, the learned trial court was
of the view that on account of excessive
burning, the deceased might have been in
great distress, therefore, she could have
said such things. Thus, his evidence can be
relied upon and the deceased was burnt on
account of non-receipt of dowry.
7 All. Jai Shankar Shukla Vs. State of U.P.
981

26. The evidence of PW-5 Babu Lal
was found strange by the trial court on the
ground that on the date of his examinationin-chief
i.e.
30.08.1994,
his
crossexamination was not done by the witnesses
and time was sought for cross-examination
and on the next date i.e. 07.09.1994, he
stated in his cross-examination that on the
last date, he had given the statement tutored
by the police. Bhagat Kheda is not on his
way from the village Purva and he himself
had not heard as to what the deceased was
saying.

27. The appellant, in his statement
under section 313CrPC, stated that he has
been implicated on account of factionalism
(Party Bandi). His mother stated that she
has been implicated due to enmity. In
regard to the smell of kerosene oil on the
deceased's body found in the post-mortem
conducted by Dr. H.K. Tandon, the
appellant stated that he does not know,
whereas the post-mortem report has been
admitted by the appellant. Thus, there is
contradiction in regard to the reasons for
implication of the accuseds in the case and
no proof for the reasons given for
implication in the case has been given. So
far as statement by PW-1 in his crossexamination, after being declared hostile,
that Mastana Mishra, had an old enmity
with Jai Shankar, therefore, on his telling
he had levelled allegations against the
appellant and his mother is concerned, no
proof for the same has also been given,
whereas it has been admitted that he had
told about cruelty and harassment of his
daughter in Chief as well as Crossexamination.
PW-1
in
his
crossexamination stated that Jai Shankar, etc.,
are rich persons and he is a poor man and
thereafter gave a contradictory evidence
than in examination-in-chief, which was
recorded about one year and nine months
ago, therefore, contradictory statement due
to pressure or for some other reason can not
be denied.

28. The Hon'ble Supreme Court, in the
case of Jarnail Singh And Others Vs.
State of Panjab (Supra), has held that
evidence of a chance witness requires a
very cautious and close scrutiny and a
chance witness must adequately explain his
presence at the place of occurrence.
Deposition of a chance witness whose
presence at the place of incident remains
doubtful should be discarded. Conduct of
the chance witness, subsequent to the
incident
may
also
be
taken
into
consideration particularly as to whether he
has informed anyone else in the village
about the incident.

29. A Division Bench of this Court, in
the case of Binesh Kumar Vs. State of
U.P. (Supra), has also dealt with the
testimony of a chance witness and held that
the Court must tread carefully before
relying on that solitary piece of evidence to
convict the appellants and absence of . any
corroboration to the testimony of a chance
witness by any other fact proven by the
prosecution, if it may not have been relied.

30. A Division Bench of this Court, in
the case of State of U.P. Vs. Vijay Kumar
Kori
and
Others
(Supra),
after
considering the issue of testimony of a
chance witness after considering certain
reports of Hon'ble Supreme Court, has held
that it is now well-settled position of law
that the evidence of a chance witness
requires a very cautious and close scrutiny
and a chance witness must adequately
narrate his presence at the place of
occurrence. The Hon'ble Supreme Court, in
the case of Rana Partap and Others V.
State of Haryana; MANU/SC/0137/1983
982 INDIAN LAW REPORTS ALLAHABAD SERIES
/ 1983 (3) SCC 327, has held that to
discard the evidence of street hawkers and
street vendors on the ground that they are
'chance witnesses' even where murder is
committed in a street is to abandon good
sense and take too shallow a view of the
evidence. The relevant paragraphs 26, 27
and 29 are extracted here-in-below:-

"26. Learned counsel for both the
parties have cited various authorities as
regards the chance witness from which
reference
may
be
made
to
the
pronouncement of Hon'ble Apex Court in
the case of Rana Partap and Others V.
State of Haryana reported in 1983 (3) SCC
327 which reads as under:-

"-----------------
We
do
not
understand
the
expression
'chance
witnesses'. Murders are not committed with
previous notice to witnesses; soliciting
their presence. If murder is committed in a
dwelling house, the inmates of the house
are natural witnesses. If murder is
committed in a brothel, prostitutes and
paramours are natural witnesses. If murder
is committed in a street, only passersby will
be witnesses. Their evidence cannot be
brushed aside or viewed with suspicion on
the ground that that they are mere chance
witnesses'.
The
expression
'chance
witnesses' is borrowed from countries
where every man's home is considered his
castle and every one must have an
explanation for his presence elsewhere or
in another man's castle. It is a most
unsuitable expression in a country whose
people are less formal and more casual. To
discard the evidence of street hawkers and
street vendors on the ground that they are
'chance witnesses' even where murder is
committed in a street is to abandon good
sense and take too shallow a view of the
evidence." (Emphasis given by us)

27. The above view taken by
Hon'ble Apex Court was also followed in
Vikram Singh and others V. State of Punjab
(2010) 3 SCC 56 and till today it still holds
good and settled law on the point that even
if a witness is a chance witness or a related
witness, even then his evidence cannot be
discarded solely on the ground that he was
a chance or a related witness.

29.