# K.K. Sharma Revisionist v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-11
- **Case number:** J. Criminal Revision No. 1062 of 1998
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/k-k-sharma-revisionist-v-state-of-u-p-ors-49495
- **Pages:** 11

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Revision
against
acquittal - Indian Penal Code, 1860 -
Sections 498A & 304B - The Dowry
prohibition Act, 1961 - Section 3 - Indian
Evidence Act, 1872 - Section 32(1) - Cases
in which statement of relevant fact by
person who is dead or cannot be found,
etc., is relevant - When it relates to cause
of
death
,
Section
113A,113B
-
Presumption as to dowry death , Section
106 - Burden of proving fact especially
within knowledge - defense must explain
the fact that is within the accused's
knowledge, but the prosecution must first
fulfill its initial burden.(Para -22 )

Deceased died an unnatural death within seven
years of her marriage - case converted from
Section 302 to Section 304B I.P.C. - To attract
Section 304B I.P.C. - essential to establish -
woman died an unnatural death, burn or bodily
injury - Informant-revisionist filed a complaint -
six-month tussle between her husband and her
mother - killed by injecting any intoxicating
substance to her - prosecution successfully
established all ingredients of Section 304B I.P.C.
and fulfilled its initial burden - leaving defense
to explain cause of death. (Para - 3, 20)

HELD:- Prosecution failed to prove the case
beyond reasonable doubt, as only one injection
spot was found on the deceased's left wrist.
Suicide note revealed the deceased committed
suicide for unknown reasons, indicating that the
accused cannot be held guilty. Therefore, the
prosecution cannot discharge its initial burden.
Court deems the acquittal order as factually and
legally correct.(Para -24,25)

Criminal Revision dismissed. (E-7)

LIST OF CASES CITED:-

## Text

10 All. K.K. Sharma Vs. State of U.P. & Ors.
637
months after receiving the copy of this
judgment
alongwith
the
original
records of the case.
----------
(2023) 10 ILRA 637
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Revision No. 1062 of 1998

K.K. Sharma ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Sri Ravindra Rai

Counsel for the Respondents:
Govt. Advocate, Sri A.K. Awasthy, Sri M. Tiwary,
Sri V.C. Tewary

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Revision
against
acquittal - Indian Penal Code, 1860 -
Sections 498A & 304B - The Dowry
prohibition Act, 1961 - Section 3 - Indian
Evidence Act, 1872 - Section 32(1) - Cases
in which statement of relevant fact by
person who is dead or cannot be found,
etc., is relevant - When it relates to cause
of
death
,
Section
113A,113B
-
Presumption as to dowry death , Section
106 - Burden of proving fact especially
within knowledge - defense must explain
the fact that is within the accused's
knowledge, but the prosecution must first
fulfill its initial burden.(Para -22 )

Deceased died an unnatural death within seven
years of her marriage - case converted from
Section 302 to Section 304B I.P.C. - To attract
Section 304B I.P.C. - essential to establish -
woman died an unnatural death, burn or bodily
injury - Informant-revisionist filed a complaint -
six-month tussle between her husband and her
mother - killed by injecting any intoxicating
substance to her - prosecution successfully
established all ingredients of Section 304B I.P.C.
and fulfilled its initial burden - leaving defense
to explain cause of death. (Para - 3, 20)

HELD:- Prosecution failed to prove the case
beyond reasonable doubt, as only one injection
spot was found on the deceased's left wrist.
Suicide note revealed the deceased committed
suicide for unknown reasons, indicating that the
accused cannot be held guilty. Therefore, the
prosecution cannot discharge its initial burden.
Court deems the acquittal order as factually and
legally correct.(Para -24,25)

Criminal Revision dismissed. (E-7)

LIST OF CASES CITED:-

1. Kusa Vs St. of Orissa, AIR 1980 SC 559

2. Kushal Rao Vs St. of Bobay, AIR 1958 SC 22

3. St. of Assam Vs Ramen Dowarah, (2016) 3
SCC 19

4. Kailash Chand Vs St. of Raj., (2017) 11 SCC
268

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. None responds for the revisionist
even in the revised call and also none has
appeared for the private opposite parties.
Heard Sri Mithilesh Kumar, learned AGA
for the State and perused the record.

2. This revision has been preferred by
the
informant-revisionist
against
the
judgment and order of acquittal dated
26.05.1998 recorded by learned 6thAdditional Sessions Judge, Meerut, in S.T.
No.988 of 1996 (State Vs. Pankaj and
others), under Sections 498A, 304B I.P.C.
and Section 3 of the Dowry Prohibition
Act, Police Station Nauchandi, District
Meerut.
638 INDIAN LAW REPORTS ALLAHABAD SERIES

3. In brief, facts of the case are that
the informant namely K.K. Sharma moved
a written complaint Ex.Ka-1 to lodged an
F.I.R, reduced in writing on his dictation by
P.W.-2, Sudhakar Aashawadi. Later on
another written complaint Ex.Ka-2, was
also moved by the informant K.K. Sharma
to S.S.P, Meerut on 16.01.1996 stating
therein that his daughter Dr. Rachna
Sharma had died in Lokpriya Hospital.
There was tussle between his daughter and
her husband for six months. She has been
killed
by
injecting
any
intoxicating
substance to her. The information regarding
torture was also given by his daughter in
the night of 14.01.1996 at 09:00 P.M. and
had informed that accused Pankaj Sharma
may kill her any time.

4. On the basis of F.I.R, a case under
Section 302 I.P.C. was lodged and chik
F.I.R. Ex.Ka-3 was prepared. In the second
F.I.R, the informant has stated that
Rs.2,00,000/-was spent by him in the
marriage of his daughter but neither the
husband nor his parents were happy with
the dowry. They all used to torture Smt.
Rachana. In 1991, Pankaj Sharma had
asked
Rachna
Sharma
to
bring
Rs.1,00,000/- on which the informant had
given fifty thousand rupees to them. In
September, 1994, again the deceased was
asked for money and when the informant
expressed his inability to provide the same,
his daughter was beaten and tortured. On
18.07.1995, accused Pankaj Sharma and his
daughter had come to his house. They had
bought a Maruti Car and had taken loan
from City Bank, instalment of which was
asked to be paid by the informant. When on
14.01.1996, the informant met to the
parents of his daughter's husband, he was
asked to pay the loan otherwise to take his
daughter back from there and that they
would remarry Pankaj Sharma with another
lady. The informant had come back after
giving assurance but in the night several
phone calls were made between him and
the deceased. During the conversation the
deceased had informed that after his
departure, parents of her husband had
beaten her badly and they wanted to make
way for remarriage. On 15.01.1996 one Dr.
P.K. Shukla had informed on phone that Dr.
Rachna Sharma has been killed. At the time
of death the deceased was pregnant for
eight months.

5. On the basis of second application,
the case was converted into Section 304B
I.P.C. According to the prosecution, the
deceased had died due to pavulon injection.
The inquest was conducted same day by
S.I. Prem Narayan Bohrey. It was signed by
the informant, his wife Smt. Shakuntala
Sharma and all the three accused persons.
At that time no complaint was made and no
F.I.R. had been lodged.

6. From the examination of viscera,
pavulon was found. Three empty syringes,
one empty injection and two needles were
also taken into possession from the place of
occurrence.
After
conclusion
of
the
investigation,
the
charge-sheet
was
submitted under the aforesaid sections.

7.

Following
witnesses
were
examined by the prosecution to prove the
guilt of the accused persons.

1
K.K.
Sharma,
informant
,
PW-1
2
Sudhakar
Aashawa
di
PW-2
3
Constable
Clerk
PW-3
10 All. K.K. Sharma Vs. State of U.P. & Ors.
639
Shiv Raj
Singh
4
Smt.
Reena
Sharma
PW-4
5
S.I. Prem
Narayan
Bohrey
PW-5
6
Dr.
Ramesh
Chandra
Awasthi
PW-6
7
Brij
Bhushan
Singh
PW-7
8
S.I.
R.P.
Yadav
PW-8
9
B.S. Gill,
C.O
Police
PW-9

8. In support of ocular version
following documents were filed:

1
Written Complaint Ex.Ka-1
2
Written Complaint Ex.Ka-2
3
Chik F.I.R.
Ex. Ka-3
4
Carbon
Copy
Kaymi G.D.
Ex.Ka-4
5
Carbon
Copy
Kaymi G.D.
Ex.Ka-5
6
Memo
Ex.Ka-6
7
Inquest
Ex.Ka-7
8
Photo copy Nash
Ex.Ka-8
9
Challan Nash
Ex.Ka-9
10 Letter to R.I.
Ex.Ka-10
11 Letter to C.M.O.
Ex.Ka-11
12 Post
Mortem
Report
Ex.Ka-12
13 Reports F.S.L.
Ex.Ka-13 & 14
14 Site Plan
Ex.Ka-15
15 Recovery
Memo
Syringe, injection
etc.
Ex.Ka-16
16 Charge-sheet
Ex.Ka-17

9.

Following
witnesses
were
examined from the side of the defence:

1 Smt.
Poonam
Sharma,
sister of the deceased-wife
 D.W.-1
2 Dr.
M.L.
Chauradia,
Bokaro, Hospital, Bokaro,
Steel Plant
D.W-2
3 Prakash Chandra Pathak,
Handwriting Expert, F.S.L,
Agra
D.W.-3
4 Dr. P.K. Shukla
D.W.-4

10.

Documentary
evidence
-
Ex.Kha-1 to Ex.Kha-12.

11. In brief, the evidence of the
prosecution witnesses is reproduced herein
below:-

(i) During the course of trial, P.W.-1,
K.K. Sharma, informant has supported the
version of the prosecution. This witness has
proved written complaint Ex.Ka-1 and
Ex.Ka-2.

(ii) P.W.-2, Sudhakar Aashawadi has
also deposed in favour of the prosecution
that on the dictation of the informant, K.K.
Sharma, he had written the complaint,
Ex.Ka-1.

(iii) P.W.-3, Constable Clerk, Shiv Raj
Singh has proved chik F.I.R., Ex.Ka-3,
carbon copy kaymi G.D, Ex.Ka-4, carbon
copy G.D. and Ex.Ka-5 to be in his own
handwriting and signature. He has proved
640 INDIAN LAW REPORTS ALLAHABAD SERIES
Ex.Ka-6 and report dated 15.01.1996
written by Constable Sakht Singh.

(iv) P.W.-4, Smt. Reena Sharma, elder
sister of the deceased has deposed in favour
of the prosecution.

(v) C.W.-1, Dr. T.N. Singh has
deposed that the informant K.K. Sharma
was the head of Chemistry Department, he
had given Rs.50,000/- to the accused J.C.
Sharma for opening of a clinic before him.
This witness was subordinate to the
informant.

(vi) P.W.-5, S.I, Prem Narayan Bohrey
had conducted the inquest. This witness has
proved the inquest report Ex.Ka-6 and
letters regarding post-mortem Ex.Ka-8 to
Ex.Ka-11.

(vii) P.W.-6, Dr. Ramesh Chandra
Awasthi had conducted post-mortem of the
deceased and had found three injuries.
According to this witness, injury nos.1 and
3 were not the injuries but these were the
marks occurred during the course of
treatment and injury no.2 which was 0.5
m.m. with ecchymosis on the left wrist,
was the mark of pavulon injunction. This
witness has also proved the post-mortem
report Ex.Ka-12.

(viii). P.W.-7, Brij Bhan Singh, the
then Senior Scientist, F.S.L, Agra, has
proved F.S.L. reports Ex.Ka-13 and Ex.Ka14.

(ix) P.W.-8, R.P. Yadav, S.S.I. was the
first I.O. who has proved site plan Ex.Ka15, recovery memo of stethoscope, needle
and syringe.

(x) P.W.-9, B.S. Gill, C.O. City, the
then I.O, has proved that on the basis of
second complaint made by the informant,
the case was converted into Section 304B
I.P.C. from Section 302 I.P.C. through G.D.
No.25 and he was deputed I.O. on
18.01.1996. This witness had recorded the
statements of the witnesses and the accused
persons. He had also received suicide note
and the answer sheet of the deceased from
Meerut University which were later on sent
for expert opinion. This witness has proved
the charge-sheet Ex.Ka-7 to be in his own
handwriting and signature.

12. After closure of the prosecution
evidence, statement of the accused persons
under 313 Cr.P.C. was recorded in which
they denied the allegations and have said
that no demand of dowry was made, the
informant used to visit his daughter in
drunken state and used to take money form
her even after the death of the deceased
when her belongings were checked, neither
any cash nor any ornament was found
which establishes that the same had been
taken away by the informant and due to his
immoral activities the deceased committed
suicide. It has been averred by the accused
persons that due to closure of the college
when Jai Rani Sharma, mother-in-law of
the deceased reached home, the home was
closed from inside and when no response
was made on the knocking, neighbourers
were informed, they all entered thorough
bathroom as it was open from the outside
and from there they pushed the door of the
room due to which the doorknob was
broken and when they reached into room,
they found that Rachana Sharma was lying
unconsicous. Dr. P.K. Shukla was called.
The deceased was taken to Lokpriya
hospital where she was treated but could
not be saved. Dr. Pankaj had informed the
informant on phone regarding critical
condition of the deceased.

13. After recording the statement
under Section 313 Cr.P.C, following
witnesses were examined from the side of
the defence:

(i) D.W.-1, Poonam Sharma, sister of
the accused Pankaj Sharam (nanad of the
10 All. K.K. Sharma Vs. State of U.P. & Ors.
641
deceased) has deposed in favour of the
defence that the deceased was never
tortured for bringing more dowry, no
money was demanded from her and her
family members. Her in-laws were rich and
were earning sufficient money, therefore,
there was no need to make such demand.
The deceased did not like her father as he
used to come in drunken state and used to
grab money from the deceased. This
witness has proved Ex.Kha-3, the suicide
note written by the deceased and also that
the deceased had issued cheque of
Rs.10,000/- in the name of her father. This
witness has also proved answer sheet
Ex.Kha-4 written by the deceased. This
witness has also proved writing of paper
nos.31Kha/1
to
31Kha/3
and
letter
no.33Kha to be in the handwriting of the
deceased. This witness further deposed that
she has been married in Aligarh with a C.A.
and she used to visit her matrimonial home
from time to time. This witness has also
proved that after receiving the information
of death of her Bhabhi, she had come to
Meerut immediately.

(ii) D.W.-2, Dr. M.L. Chauradia has
proved that accused Pankaj Sharma served
in Bokaro Steel Plant Hospital as Senior
Surgeon from 14.03.1989 to 10.01.1991.
This witness has proved certificate Ex.Kha5.

(iii) D.W.-3, Prakash Chandra Pathak,
Handwriting Expert in F.S.L, Agra, has
proved Ex.Kha-3 and Ex.Kha-4 and viscera
report Ex.Kha-6 and Ex.Kha-7. This
witness has also proved M.Ex.1 to M.Ex.37
which are the negative and photographs
prepared by the handwriting expert. This
witness has lastly concluded that the
suicide note, Ex.Kha-3 had been written by
the deceased. This witness was cross
examined by the prosecution but he had
supported the statement of the examination
in chief and the report produced by him and
has not deviated from the version of
examination in chief.

(iv) D.W.-4, Dr. P.K. Shukla was
called by accused Dr. Pankaj Sharma, when
the deceased was found to be unconscious
in his house. This witness has deposed that
at about 11:30, Dr. Pankaj had phoned him,
he went to his house with his compounder
where the deceased was in unconscious
state and Dr. Pankaj was giving artificial
breathing to her. She was taken to Lokpriya
Hospital. Dr. Pankaj Sharma phoned to his
relatives. When he had inspected the
deceased first time, he found a mark of
injection on her left wrist and had also seen
one empty injection of pavulon. No other
mark was found on the person of the
deceased.
In
Lokpriya
Hospital
the
deceased was treated by five more doctors
in addition to him and was injected at her
breast and right hand. Glucose was
intrafused. There was bleeding from the
mark of injection of the left hand of the
deceased upon which cotton was kept. This
witness has proved treatment papers
Ex.Kha-8 to Ex.Kha-12.

14. After closure of the defence
evidence, arguments were heard and the
impugned judgment and order of acquittal
was passed.

15. Being aggrieved by the judgment
and order of the acquittal, the informant
preferred this revision. During the course of
hearing, none appeared from either side.
On 30.02.2022, a notice was issued to the
revisionist through C.J.M, Muzaffarnagar,
who reported that the informant, K.K.
Sharma, had died 10 years ago and his son
had left Muzaffarnagar after selling his
parental house. Similarly, none appeared
from the side of opposite party nos.2 to 4,
therefore, the arguments of learned A.G.A.
was heard and the judgment was reserved.
642 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The revisionist has taken ground
that the deceased died unnaturally within
seven years of her marriage even then the
trial court has acquitted the accused
persons ignoring the liability imposed
under Sections 113A and 113B of the
Evidence Act. The prosecution witnesses
have deposed that the deceased was killed
due to non-fulfilment of demand of dowry
by her in-laws. There is also evidence of
cruelty by the accused persons towards the
deceased. The trial Court has illegally
considered the statement under Section 161
Cr.P.C. and has dismissed the oral evidence
adduced by the prosecution. Since the death
occurred within seven years of the
marriage, therefore, the liability is of the
accused to prove that the death was natural.
The accused persons have failed in proving
the same even then the trial Court has
illegally acquitted the accused persons. The
trial Court has considered the letters which
were written by the deceased just few days
after her marriage but has ignored the
subsequent letters which prove the cruelty
and demand of dowry and the same have
not been considered, therefore, the revision be
allowed and the order of judgment of acquittal
be set aside and appropriate order be passed in
the fact and circumstances of the case.

17. Generally, two FIRs are not
permissible in the eyes of law and if the
contents of both the FIRs are contrary to each
other, it may be presumed that the second FIR is
nothing but it is a result of afterthought.

18. From the deep scrutiny of the facts,
circumstances and evidence available on
record, following factors emerge before this
Court which are dealt with simultaneously;

(i) Initially no F.I.R. was lodged regarding
demand of dowry or torture for non-fulfilment
of the said demand. On 15.01.1996 an F.I.R.
under Section 302 I.P.C. had been lodged by the
informant
against
the
accused
persons.
Thereafter on 16.01.1996 another application
was moved by the informant containing the
details of the dowry that the husband of the
deceased was torturing her for six months but
there is no iota of evidence to prove that the
deceased was being tortured for six month prior
to her death. If it was so, the deceased would
have certainly informed the informant and her
family members regarding the ill treatment by
her in-laws. It is matter of concern that why
allegation regarding information about the
torture and demand of dowry is being taken one
day before the incident.

(i.i) According to this Court, if for the sake
of argument it is accepted that the accused were
insisting to pay the car loan and were
demanding Rs.1,00,000/- for opening clinic, it
would not attract Section 3 of the Dowry
Prohibition Act as such demand can not be said
to be a demand of dowry. It is also noteworthy
that the deceased was a renowned Anaesthetic,
her husband accused Pankaj Sharma was a
Senior Surgeon, her father-in-law, Jagdeesh
Sharma was the Deputy Registrar in Meerut
University and her mother-in-law, Smt. Jag
Rani Sharma was a Lecturer. Thus the family
was well to do by all means and there was no
need to make such demand from the informant.
It has also been proved from the letters sent by
the deceased in early days of her marriage
that she was very much happy with her
husband and in-laws. It is also noteworthy
that no letter or recording to prove the
maltreatment could be produced by the
prosecution.

(ii) It also appears an absurd allegation
that the accused persons had given threat to
the informant that if the demand is not
fulfilled, the accused Pankaj would be
remarried. According to this Court, the
deceased was so intelligent and capable
enough that no one would think of breaking
such marriage tie. It has also not been
10 All. K.K. Sharma Vs. State of U.P. & Ors.
643
proved that the deceased was of very
simple physical appearance or had cruel
behaviour towards the in-laws. Therefore,
there was no occasion to leave such lady.

(iii) Photocopy of the phone call
details
made
by
the
deceased
till
14.07.1996 has been produced but the same
has not been proved, therefore, the same is
not admissible in evidence and in absence
of such call records, it can not be said that
the deceased had informed to her family
members that she was being confined or
maltreated by the accused persons. If the
prosecution version is correct and the
deceased was badly beaten on 14.07.1996
by the accused persons, some marks of
injuries should have been found on the
deceased in her inquest report or postmortem report but in absence of any such
injury, it can not be said that prior to the
incident, the deceased was maltreated or
beaten by the accused persons for demand
of dowry. It is also noteworthy that the call
details show regular calls from both the
sides and there was no call all of sudden to
the informant regarding
beating
and
maltreatment by the deceased. Though
there is sorrow part of the incident that the
deceased died having a foetus of 8 months.

(iv) From the F.S.L. report it has been
established that the Pancuronium drug was
found in the viscera report in the stomach,
intestine, liver, spleen and kidney of the
deceased but no poison was found in three
distil bottle, in broken pavulon injection
ampule and also on the stethoscope. It is
proved that the deceased was admitted in
Lokpriya Hospital, Meerut at 12:05 P.M.
and died at about 12:50 P.M due to the
impact of the pavulon injection.

(v) The letters produced from the side
of defence destroy the prosecution version
that any complaint letter was written by the
deceased to the informant about the
maltreatment by her in-laws, however, at
the same time the letter Ex.Kha-2 written
by the deceased to her elder sister Rani
Sharma shows that she was happy in her inlaws house and her in-laws were looking
after her well. At the same time she had
also complained in writing about her
father's behaviour. She has written that
what is the manner for a daughter with her
father as such view point about her. Thus,
the deceased had accused her father for the
ill treatment and absurd behaviour and not
to the accused persons.

(vi) Ex.Kha-3 is a suicide note which
has been proved by D.W.-3, P.C. Pathak,
expert of the F.S.L, Agra, that the alleged
suicide note was reduced in writing by the
deceased. The suicide note reads as
follows:

"I AM RESPONSIBLE FOR MY OWN
DEATH."

(vi.i) The learned trial Court has
heavily relied on this letter and has
concluded that since the deceased was
Anaesthetic and was capable to take
intravenous injection from her right hand
on her left wrist, therefore, it was a case of
suicide by free will and not a murder or
dowry death committed by the accused
persons.

(vi.ii) It is expedient to quote Section
32(1) and illustration no.(a) of the India
Evidence Act, 1872:-

"32. Cases in which statement of
relevant fact by person who is dead or
cannot be found, etc., is relevant.-
Statements, written or verbal, of relevant
facts made by a person who is dead, or who
cannot be found, or who has become
incapable of giving evidence, or whose
attendance cannot be procured without an
amount of delay or expense which, under
the circumstances of the case, appears to
644 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court unreasonable, are themselves
relevant facts in the following cases:-

(1) when it relates to cause of death.
-When the statement is made by a person
as to the cause of his death, or as to any of
the circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person's death comes into
question. Such statements are relevant
whether the person who made them was or
was not, at the time when they were made,
under expectation of death, and whatever
may be the nature of the proceeding in
which the cause of his death comes into
question.

Illustration

(a) The question is, whether A was
murdered by B; or A dies of injuries
received in a transaction in the course of
which she was ravished. The question is,
whether she was ravished by B; or The
question is, whether A was killed by B
under such circumstances that a suit would
lie against B by A's widow. Statements
made by A as to the cause of his or her
death, referring respectively to the murder,
the rape, and the actionable wrong under
consideration, are relevant facts."

(vi.iii) In Kusa Vs. State of Orissa,
AIR 1980 SC 559, it has been held by the
Apex Court that if the court is satisfied that
the dying declaration is true and is free
from any effort to prompt the deceased to
make a statement and is coherent and
consistent, there is no legal impediment in
founding the conviction on such a dying
declaration
even
if
there
is
no
corroboration.

(vi.iv) In Kushal Rao Vs. State of
Bobay, AIR 1958 SC 22, it has been held
that once the court has come to the
conclusion that the dying declaration was
the truthful version as to the circumstances
of the death and the assailants of the victim,
there
is
no
question
of
further
corroboration.

(vi.v) In this case the dying declaration
is not in the oral form but it is in the written
form as suicide note and by experts
evidence it has been proved that the suicide
note had been written by the deceased
before her death. Hence, the alleged suicide
note is relevant and is admissible in
evidence and in absence of any contrary
evidence, the same would be liable to be
accepted. Thus, this Court is of the view
that the trial court has not committed any
error in accepting the suicide note written
by the deceased.

(vi.vi) In State of Assam Vs. Ramen
Dowarah, (2016) 3 SCC 19 (para-12), it
has been held that men may lie but the
circumstances do not, is the cardinal
principle
of
evaluation
of
evidence.
Immediate conduct of victim is also
important in evaluating the evidence of the
witness.

(vi.vii) In this case when the inquest
was going on, the informant and her family
members did not make any allegation
against the accused persons and did not
claim that it is a murder committed due to
dowry. First of all, on 15.01.1996, the
informant lodged an FIR under Section 302
IPC but later on changed the version and
lodged
another
FIR
next
day
i.e.
16.01.1996 under Section 304B IPC. At the
same time the suicide note written by the
deceased is also relevant in which she had
written that she was responsible for her
own death. Thus, from the above, it comes
out that the conduct of the prosecution
witness and the victim are not in
connivance with each other both are
contrary. The trial court has also considered
this aspect and has recorded the acquittal
thereafter.
10 All. K.K. Sharma Vs. State of U.P. & Ors.
645

(vii)
Though
the
letter
papers
nos.31Kha/1 to 31Kha/3 have not been
proved being photocopies as its original
was with P.W.-4 Smt. Rani Sharma but the
same has also not been denied by the
prosecution or Rani Sharma thus it has
been proved that the same had been written
by the deceased to her elder sister in which
she had praised her husband-accused
Pankaj Sharma when she spent few days
with him at Bokharo. Paper no.33Kha is
also a letter by the deceased to her elder
sister in which she has not written about
any ill treatment, cruelty or demand of
dowry by the accused persons. Thus, it
could not be proved beyond reasonable
doubt that any demand of dowry was made
by the accused persons or any offence has
been committed by the accused persons
with the deceased.

(viii) It has already been mentioned in
the first written complaint/F.I.R. that the
informant had not blamed the accused
persons for making demand of dowry and
causing mental or physical cruelty to the
deceased. From the scrutiny of evidence it
transpires that the witnesses had made
several imaginary allegations in their
statements under Section 161 Cr.P.C.

(viii.i) P.W.-8, I.O., R.P. Yadav was
contradicted under Section 145 of the
Evidence Act in which he accepted that
he had recorded the statement of the
informant on 15.01.1996 in which he
had not made any statement regarding
demand of dowry, he had also not stated
that he had provided Rs.50,000/- to the
accused persons. He had also not stated
that the accused persons had demanded
money for paying instalments of the
Car. He had not stated that the accused
persons had tortured the deceased for
demand of dowry. The informant had
not stated regarding any call by the
deceased to him or anyone else of his
family. The informant had also not
stated that first of all O.P. Shukla had
informed
about
the
death
of
the
deceased. He had not stated that he had
given
Rs.50,000/-
to
the
accused
persons before T.N. Singh, M.P. Singh
and Mahesh Chandra Sharma. Mahesh
has been examined as witness to the
delivery of the aforesaid money at
Meerut . Though this witness admits
that he had not taken finger prints from
the syringe etc. which could have
proved the impression of the accused
persons or the deceased on it.

(viii.ii) Thus, from the above
evidence of the I.O, P.W.-8, it has been
established that later on, the informant
and the witnesses created and concocted
a story of demand of dowry and torture
by the accused persons which could not
be substantiated by their previous
statements to the I.O. under Section 161
Cr.P.C.

(ix) There is allegations from the
side of the accused persons that the
informant is a habitual drinker and he
used
to
extract
money
from
the
deceased and when after the death of
his daughter, her belongings were
checked,
an
old
cheque
folio
of
Rs.10,000/-
in
the
name
of
the
informant by the deceased was found.
P.W.-3, P.C. Pathak, had proved that the
suicide
note
was
written
by
the
deceased in which the deceased has not
blamed the accused persons for demand
of dowry or any kind of torture by
them. D.W.-1, Poonam Sharma, sister of
accused Pankaj Sharma, has proved the
defence version.

(x) The informant P.W.-1 admits
that he had received Rs.10,000/ from the
deceased but he explained it in the way that
it was in lieu of the loan amount already
paid by him to the accused persons. When
646 INDIAN LAW REPORTS ALLAHABAD SERIES
demand of Rs.50,000/- could not be proved
beyond reasonable doubt, it can not be said
that the amount of Rs.10,000/- was paid by
the deceased as a payment against the
alleged money lending.

(xi) It has already been discussed that
P.W.-6,
Dr.
R.C.
Pathak,
who
had
conducted post-mortem of the deceased did
not find any internal on external injury
except three injuries out of which two were
mark of injection and the injury no.1 was
the mark of Pavuline Injection due to which
the deceased died later on. It has been
proved by D.W.-4 that the aforesaid two
injuries had occurred during the course of
treatment.

(xii) From the perusal of the evidence
on record, it has been established that the
in-laws of the deceased were rich and
prosperous. They had their personal home
and they were highly qualified and had
status in the society. In such a situation it is
unthinkable that they will make such
demand of dowry or will torture such a
brilliant and earning wife/daughter-in-law.
She was a jwell to the in-laws family and
no family would think to loose such a
member.

19. In case of a dowry death within
seven year of the marriage, the case falls
under Section 304B I.P.C. which is as
under:-

"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 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
which shall not be less than seven years but
which may extend to imprisonment for
life."

20. Certainly, in this case the
deceased had died an unnatural death
within seven years of her marriage. It is
also correct that the case had been
converted from Section 302 to Section
304B I.P.C. To attract Section 304B I.P.C. it
is essential to establish that the woman had
died an unnatural death, burn or bodily
injury. She must have been subjected to
cruelty or harassment by her husband or his
relatives; such cruelty or harassment should
be for, or in connection with dowry
demand; and she should have been
subjected
to
cruelty
or
harassment
immediately before her death. Here the
case of the prosecution is that the deceased
had been badly beaten and tortured on the
previous evening of the incident which has
not been proved in view of the post-mortem
report. If all the ingredients of Section
304B
I.P.C.
has
been
successfully
established by the prosecution and the
prosecution has discharged its initial
burden, the burden to explain the cause of
death would be upon the defence.

21. In case of such dowry death
within the premises of in-laws of the
deceased, Section 106 of the Evidence Act,
1872 would also attract which is as under:-

"106.
Burden
of
proving
fact
especially within knowledge.-When any
10 All. Shiv Sagar @ Shiv Sagar Giri Vs. State of U.P. & Anr.
647
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him.

Illustrations

(a) When a person does an act with
some intention other than that which the
character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling on a
railway without a ticket. The burden of
proving that he had a ticket is on him."

22. Though the burden comes to the
shoulder of the defence to explain the fact
which is specially within the knowledge of
the accused but before that it would be duty
of the prosecution to discharge its initial
burden.

23. In Kailash Chand Vs. State of
Rajasthan, (2017) 11 SCC 268, it has been
held that it is trite that prosecution has to
stand on its own legs and sufficient
evidence should be produced to prove the
allegation, no aid of Section 106 can be
taken by the trial court. It was a case of
custodial torture and death in which it has
been held that when prosecution's own
case, as set up in charge-sheet, in support of
which evidence is given, does not prove the
allegation of killing, no aid of Section 106
can be taken by the trial court.

24. So far as the presumption under
Section 113B is concerned which arises in
case of unnatural death of a married lady
within seven year of her marriage, such
presumption would not occur automatically
if the prosecution has not discharge its
initial duty. In this case it has been prove
that except one injection spot on the left
wrist of the deceased, no any other mark of
injury was found. In this case the
prosecution could not discharge its initial
burden to prove the case beyond reasonable
doubt and contrary to that on the basis of
suicide note it has been proved that the
deceased had herself committed suicide for
unknown reasons, therefore, the accused
persons cannot be held guilty.

25. On the basis of above discussion,
this Court is of the considered view that the
impugned judgement and order of acquittal
dated 26.05.1998 passed by the learned
6th-Additional Sessions Judge, Meerut is
factually and legally correct and the same
needs no interference by this Court in
exercise of its revisional jurisdiction. The
revision is devoid of merit and is liable to
be dismissed.

26. Accordingly, this revision is
dismissed.
The
aforesaid
impugned
judgment and order of acquittal is affirmed.

27. Let the original records alongwith
a copy of this judgment be sent back to the
learned 6th-Additional Sessions Judge,
Meerut, for consignment.
----------
(2023) 10 ILRA 647
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.09.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 294 of 2022

Shiv Sagar @ Shiv Sagar Giri ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Pradeep Kumar Shukla