# Jawahar v. State of U.P

- **Citation:** (2013) 3 ILRA 1460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-27
- **Case number:** Criminal Appeal (D) No. 2024 of 2011
- **Bench:** Arvind Kumar Tripathi(Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jawahar-v-state-of-u-p-42725
- **Pages:** 4

## Headnote

section 498-A 304-B, 506 IPC read with 3/4
D.P.
Act-in
dying
declaration
nothing
whisper about demand of dowry-even in
FIR no such allegation found-demand of
money for consuming liquor-on denial
pouring kerosin oil and put fire on body of
deceased-offence under section 302 mad
out-according by conviction set-a-side-with
direction to frame additional charges under
section 302 IPC-conclude trail within 6
months-appeal allowed.

Held: Para-10 & 11

## Text

1460 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Accordingly, writ petition is
allowed and the impugned order of dismissal
dated
27.01.2010,
passed
by
the
Commandant, 30th Bn. P.A.C., Gonda as
contained in Annexure No.1 to the writ
petition is hereby quashed with a further
direction to the respondents to reinstate the
petitioner in service forthwith, say within a
period of six weeks from the date certified
copy of this judgement is served up on the
competent authority.

29. Regarding the back wages to be
paid to the petitioner from the date of order
of dismissal i.e. w.e.f. 27.01.2010 till his
reinstatement, the Court feels that interest of
justice would be served if the petitioner is
paid half of the total amount which would
have accrued to him had he continued in
service during this period. The said wages to
the petitioner shall be paid within a period of
three months from the date of production of a
certified copy of this judgment.

30. There will be no order as to cost.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.11.2013

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI(II),J.

Criminal Appeal (D) No. 2024 of 2011

Jawahar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri M.P. Yadav, Sri Brijesh Yadav 'Vijay'
Sri Satish Kumar Srivastava
Counsel for the Respondents:
G.A.

Criminal Appeal-against conviction under
section 498-A 304-B, 506 IPC read with 3/4
D.P.
Act-in
dying
declaration
nothing
whisper about demand of dowry-even in
FIR no such allegation found-demand of
money for consuming liquor-on denial
pouring kerosin oil and put fire on body of
deceased-offence under section 302 mad
out-according by conviction set-a-side-with
direction to frame additional charges under
section 302 IPC-conclude trail within 6
months-appeal allowed.

Held: Para-10 & 11
10. A perusal of dying declaration, which
has been proved by PW-6 clearly reveals
that it is a case in which death occurred due
to simple reason of some dispute between
husband and wife, and husband poured
kerosene oil and set her on fire and
prosecution has implicated four more
persons under Sections 498-A, 304-B, 506
IPC and Section 3⁄4 of the Dowry Prohibition
while the FIR and dying declaration does
not support the theory of demand of dowry
and cruelty for payment of dowry.

11. It is a case in which trial court should
have framed an additional charge of Section
302 IPC against Jawahar, but the trial court
has failed to do so even after dying
declaration of the deceased. Since Section
302 IPC is graver offence than Section 304-B
IPC, hence conviction of accused Jawahar
under Section 304-B IPC cannot be converted
in convicted of Section 302 IPC without
framing charge under Section 302 IPC.

Case Law discussed:
Crl. M.P. No. 23051 of 2010

(Delivered by Hon'ble Arvind Kumar Tripathi
(II), J.)

1. Instant criminal appeal has been
filed by the appellant Jawahar challenging
the order dated 25.7.2011 passed by the
Additional Sessions Judge/Special Judge,
E.C. Act, Court No.9, Sultanpur in Sessions
Trial No.7 of 2007 (Crime No.1001 of 2006,
under Sections 498-A, 304-B, 506 IPC and
Section 3/4 of the Dowry Prohibition Act,
Police
Station
Gosainganj,
District
3 All] Jawahar Vs. State of U.P.
1461
Sultanpur) by which the appellant was
convicted under Sections 498-A, 304-B IPC
and Section 4 of the Dowry Prohibition Act,
and was directed to undergo 3 years RI and
fine of Rs.500/-, 10 years RI and six months
RI and fine of Rs.500/- respectively. In
default of payment of fine, two months
further imprisonment.

2. The facts, in short, are that Videshi
brother of the deceased moved an application
before
the
Superintendent
of
Police,
Sultanpur that his sister Kewla Devi was
married with Jawahar son of Bihari, resident
of
village
Sonvatara,
police
station
Gosainganj, District Sultanpur, who is
addicted to alcohol. His elder brother Hira
Lal is also addicted to alcohol and Kewla
Devi, when forbade them from consuming
alcohol, was beaten by those persons. On
31.8.2005 at about 8 A.M. he received
information that Kewla Devi has been burnt,
then he along with other relatives went to the
matrimonial house of Kewla Devi and saw
her in badly burnt condition. She told him
that on 30.8.2005 at about 4/5 P.M. Hira Lal
and Jawahar had demanded money for
consumption of alcohol, when she resisted
Hira Lal exhorted Jawahar to kill her, as she
is a spoil sport. On this Jawahar poured
kerosene oil upon Kewla Devi. When she
tried to run away Hira Lal caught hold of her
and Jawahar lit fire in her clothes due to which
she started burning. On alarm being raised, the
villagers tried to save her, then Ram Lal and
Moti Lal threatened them that, whoever will
come to rescue, will be killed. Kewla was
admitted in hospital, and is in precarious
condition. The Magistrate has recorded her
statement.
On
this
application,
the
Superintendent of Police directed the Station
Officer, Police Station Gosainganj, Sultanpur
to lodge FIR. On his direction, case crime
no.1001 of 2006, under Section Sections 498A, 307, 506 IPC, was registered at police
station Gosainganj against Jawahar, Hira Lal,
Ram Lal and Moti Lal. During investigation
Kewla Devi died on 17.9.2006, so inquest
report was prepared and dead body was sent
for post mortem, and case was converted
under Sections 498-A, 304-B, 506 IPC and
Section 3⁄4 of the Dowry Prohibition. After
investigation charge sheet was submitted.
Case was committed and charge was
framed against all the accused persons. The
accused persons pleaded innocence and
claimed to be tired. The prosecution
examined Videshi as PW-1, Ramkesh as
PW-2, Mangaroo as PW-3, Dr. C.B.N.
Singh Tripathi as PW-4, Dr. K.V. Singh as
PW-5, Rajendra Chandra, Naib Tehsildar as
PW-6, Martand Prakash Singh, Circle
Officer as PW-7, Dwarika Prasad Yadav,
C.P. No.916 as PW-8, and Tulsiram, C.P.
51 as PW-9. The statement of the accused
person was recorded under Section 313
Cr.P.C. Marriage was admitted, but all other
facts were denied.

3. The court below has, after going
through the evidence on record, convicted
the accused Jawahar Sections 498-A, 304B, 506 IPC and Section 3⁄4 of the Dowry
Prohibition Act and Section 4 of the
Dowry Prohibition Act and acquitted Ram
Lal, Hira Lal and, Moti Lal from all the
charged offences. Feeling aggrieved, this
appeal has been filed by Jawahar.

4. Learned counsel for the appellant
argued that no case is made out, as in the FIR
there is no mention of demand of dowry. The
demand of Rs.10,000/- is not in connection
with the marriage, so the ingredients of the
evidence are not proved, and conviction under
Sections 498-A, 304-B, 506 IPC is not
justified. It was further argued that there is no
evidence that the deceased was tortured or
was subjected to cruelty soon before her
death.
1462 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned AGA argued that as
demand of dowry, and killing of wife for
non-fulfillment of demand of dowry is
heinous offence and a crime against the
woman and children, hence conviction
awarded by the trial court is justified and
no interference is warranted.

6. A perusal of FIR dated 13.9.2006,
which is Ex.Ka.1, reveals that no date of
marriage has been mentioned. Simply, it has
been stated that Jawahar is addicted to
alcohol, and his brother Hira Lal persuaded
him to drink alcohol and Kewla Devi always
tried that Jawahar leave the habit, but they
used to assault Kewla Devi. It has been
mentioned that after Kewla Devi was burnt,
he was informed by Kewla Devi herself that
on that day Hira Lal and Jawahar had come
to demand money for taking alcohol and
when she refused Jawahar poured kerosene
oil on her. Hira Lal caught hold of her and
Jawahar put her to fire. A perusal of FIR
clearly reveals that not a single word of
demand of dowry has been mentioned.

7. There is dying declaration of the
deceased also, which was recorded by
Rajendra Chandra, Naib Tehsildar PW-6.
This dying declaration is on record, and
has been marked as Ex.Ka.21. There is
categorical statement of Kewla Devi - the
deceased, in it, which is as follows: -

"eSa dsoyk nsoh] iRuh tokfgj mez yxHkx 25
o"kZ fuoklh xzke lksuwrkjk] Fkkuk xkslkbZxat] ftyk
lqyrkuiqj c;ku djrh gWw+ fd fnukad 30&8&2006
dks fnu esa yxHkx 3 cts esjs ifr Jh tokfgj] lqr
fcgkjh ls ?kj esa fookn gksus ij mUgksaus esjs Åij
feV~Vh dk rsy Mkydj vkx yxk fn;k ftlls eSa
cqjh rjg ls ty x;hA"

8. This also goes to show that even
in her dying declaration nothing has been
mentioned about the demand of dowry
and torture or harassment for nonfulfillment of demand of dowry. Videshi
PW-1, when appeared before the court for
evidence, he developed the story, and has
stated that whenever his sister came to her
parental house, she used to tell them that
the accused persons are demanding
Rs.10,000/- as dowry. When controverted
from the facts, mentioned in the FIR, he
has stated that whatever has been
mentioned in the FIR is correct. He has
further stated that the fact, which he has
narrated in the statement that the accused
persons
harassed
her
for
bringing
Rs.10,000/- from her parental house, is
also correct. He has further stated that he
is unable to tell that whether demand of
Rs.10,000/- has been mentioned in the
FIR or not.

9. One more thing is very important.
It has no where been stated when the
marriage ceremony was performed. It has
simply been stated by Videshi PW-1 that
Gauna ceremony was performed six years
prior to the incident. PW-2 is also the
brother of the deceased, and he has also
stated same thing, but he has not stated
the date of marriage. PW-3 is the father of
the deceased, but he has also not stated
that when and in which year or how much
prior to the incident, marriage of Kewla
Devi took place. He has simply stated that
Gauna was performed about six years
earlier.

10. A perusal of dying declaration,
which has been proved by PW-6 clearly
reveals that it is a case in which death
occurred due to simple reason of some
dispute between husband and wife, and
husband poured kerosene oil and set her on
fire and prosecution has implicated four
more persons under Sections 498-A, 304-B,
506 IPC and Section 3⁄4 of the Dowry
3 All] Bindhyachal Kumar Singh Vs. Union of India & Ors.
1463
Prohibition while the FIR and dying
declaration does not support the theory of
demand of dowry and cruelty for payment of
dowry.

11. It is a case in which trial court
should have framed an additional charge of
Section 302 IPC against Jawahar, but the
trial court has failed to do so even after
dying declaration of the deceased. Since
Section 302 IPC is graver offence than
Section 304-B IPC, hence conviction of
accused Jawahar under Section 304-B IPC
cannot be converted in convicted of Section
302 IPC without framing charge under
Section 302 IPC.

12. The Apex Court in Rajbir @
Raju v. State of Haryana, Crl.M.P.
No.23051 of 2010 dated 22.11.2010 has
directed the trial courts in India to
ordinarily add Section 302 to the charge
of Section 304-B, but the trial court has
not complied with the directions of the
Apex Court The decision of the Apex
Court is most appropriate for the instant
case in the prevailing circumstances, as
there is an evidence under Section 32 of
the Indian Evidence Act, in form of dying
declaration, which, at present does not
reveals demand of dowry and harassment
or cruelty due to non-fulfillment of
demand of dowry.

13. In view of the above, I deem it
fit to quash the judgment and conviction
of Jawahar, and remand the matter with
the direction to the trial court to frame
additional charge of Section 302 IPC, and
proceed with the trial in accordance with
law within a specific period.

14. In view of the above, without
making any comments on the offence under
Sections 304-B and 498-A IPC, and without
any comments on their conviction and
without commenting on the judgment and
conviction under Section 4 of the Dowry
Prohibition Act, the judgment is liable to be
quashed and the sentence of the appellant
Jawahar is liable to be set aside, and the
appeal is liable to be allowed.

15. In the result, the criminal appeal
is allowed. The conviction and sentence
of the appellant Jawahar is quashed. The
matter is remanded back to the trial court
to frame additional charge under Section
302 IPC, and to proceed with the trial in
accordance with law. The trial court is
directed to decide the sessions trial
expeditiously, preferably within a period
of
six
months
from
the
date
of
communication of this order. It is also
directed that the trial court shall not be
prejudiced by any observations made in
this judgment.

16. The Registrar, High Court
Lucknow
Bench
is
directed
to
communicate the order immediately to the
Sessions Judge of the trial court. Record
be
also
transmitted
along
with
communication so that trial may start
earlier.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.3283 of 2012

Bindhyachal Kumar Singh ...Petitioner
Versus
Union of India & Ors. ....Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar

Counsel for the Respondents: