# Kamlendra Dwivedi v. State of U.P

- **Citation:** (2020) 1 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Case number:** Criminal Appeal No. 941 of 2010
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlendra-dwivedi-v-state-of-u-p-45292
- **Pages:** 27

## Headnote

Criminal Law - Indian Penal Code - Sections
498-A, 304-B - Dowry Prohibition Act, 1961
- Section 3⁄4 - Appeal against conviction.

Therefore, what actually had happened in that
room could only be in the specific knowledge of
appellant and, therefore, by virtue of Section
1 All. Kamlendra Dwivedi Vs. State of U.P.
89
106 of the Indian Evidence Act, appellant was
required to explain as to how and in what
circumstances deceased had died and if no
reasonable and acceptable explanation is given
by the appellant or a false explanation is
coming from his side, adverse inference will be
drawn against him. On the basis of evidence on
record a presumption as provided under
Section 113-B of the Indian Evidence Act could
be drawn against appellant that he has caused
the dowry death of deceased. He has also
failed to rebut this statutory presumption and,
therefore, his conviction under Sections 304-B,
498-A and 201 of I.P.C. is liable to be
sustained. (para 22)

Keeping into mind, the aforesaid proposition of
law
laid
down
by
the
Court
in
the
aforementioned cases and having regard to the
totality of facts and circumstances of this case,
we are of the considered opinion that justice
would be served, if we alter the sentence of
the appellant from life imprisonment to that of
12 years. (para 30)

Criminal appeal Nos. 254 of 2010, 886 of
2010 and 941 of 2010 are allowed. (E-2)

List of cases cited: -

## Text

_Characters 0–39,450 of 90,360. This is a partial read: ask again with offset=39450 for what follows._

88 INDIAN LAW REPORTS ALLAHABAD SERIES
to execute a bond of one year for good
behaviour."

11. Similarly, in Jagat Pal Singh &
others Vs. State of Haryana, AIR 2000
SC 3622, the Hon'ble Apex Court has
given the benefit of probation while
upholding the conviction of accused
persons under Sections 323, 452, 506 IPC
and has released the accused persons on
executing a bond before the Magistrate for
maintaining good behaviour and peace for
the period of six months.

12. Considering the fact that the
accused has been convicted only under
Section 323 IPC and for remaining offence
he has been acquitted by the learned trial
court. I find it to be a fit case in which the
benefit of probation may be given. The
reason being that there is no criminal
history alleged against the appellant, he is
a farmer and belongs to a very humble and
village background, the probation of
Offender Act and Sections 360 and 361
Cr.P.C. makes it mandatory. On the part of
the trial Court to state reason for not
according to benefit of probation in a case
relating to an offence which is punishable
for less than 7 years imprisonment.
Accordingly, the impugned judgment of
conviction and sentence recorded by the
court below under Section 323 I.P.C. is
upheld.

13. However, instead of sending the
appellant namely Rajjan to jail, he shall
get the benefit of Section 4 of the
Probation of Offenders Act. Consequently,
the appellant shall file two sureties with
personal bonds to the effect that he shall
not commit any offence and shall observe
good behaviour and shall maintain peace
during the period of one year. If there is
breach of any of the conditions, he will
subject himself to undergo sentence before
the Magistrate. The bonds and sureties
aforesaid be filed by the accused person
within two months from the date of the
Judgment as per law and Rules.

14. With the above modification, the
appeal is accordingly disposed of finally.

15. Office is directed to send the
certified copy of this judgment along with
lower court record to the court concerned
for information and necessary action.
----------
(2020)1ILR A88

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.12.2019

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 941 of 2010
connected with
Criminal Appeal No. 254 of 2010 & 886 of 2010

Kamlendra Dwivedi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Saurabh
Srivastava,
Maneesh
Kumar
Singh, Navita Sharma

Counsel for the Respondent:
Govt. Advocate, Firoz Ahmad Khan, Mohd.
Usman Gani Khan, S.H. Ibrahim

Criminal Law - Indian Penal Code - Sections
498-A, 304-B - Dowry Prohibition Act, 1961
- Section 3⁄4 - Appeal against conviction.

Therefore, what actually had happened in that
room could only be in the specific knowledge of
appellant and, therefore, by virtue of Section
1 All. Kamlendra Dwivedi Vs. State of U.P.
89
106 of the Indian Evidence Act, appellant was
required to explain as to how and in what
circumstances deceased had died and if no
reasonable and acceptable explanation is given
by the appellant or a false explanation is
coming from his side, adverse inference will be
drawn against him. On the basis of evidence on
record a presumption as provided under
Section 113-B of the Indian Evidence Act could
be drawn against appellant that he has caused
the dowry death of deceased. He has also
failed to rebut this statutory presumption and,
therefore, his conviction under Sections 304-B,
498-A and 201 of I.P.C. is liable to be
sustained. (para 22)

Keeping into mind, the aforesaid proposition of
law
laid
down
by
the
Court
in
the
aforementioned cases and having regard to the
totality of facts and circumstances of this case,
we are of the considered opinion that justice
would be served, if we alter the sentence of
the appellant from life imprisonment to that of
12 years. (para 30)

Criminal appeal Nos. 254 of 2010, 886 of
2010 and 941 of 2010 are allowed. (E-2)

List of cases cited: -

1. Anil Kumar Vs. St. of U.P [2018 JIC (Supp.)
657 (All)]

2. Mohammad & ors. Vs. St. of U.P. [2018 (1)
JIC 693 (All)]

3. Chandra Prakash Rathur Vs. St. of U.P.
[2018 (3) JIC 560 (All)]

4. Ahsan & anr. Vs. St. of U.P. [2019 (1) JIC
660 (All)]

5. Hari Om Vs. St. of Har. & anr. (2015) 1 SCC
(Cri) 141

6. Baijnath & anr. Vs. St. of M.P. (2017) 1 SCC
(Cri) 225

7. Shailendra Vs. St. of U.P. [2018 JIC (Supp.)
54(All)]

8. Badam Singh Vs. St. of U.P. [2018 JIC
(Supp.) 861 (All)]
9. Balram & anr. Vs. St. of U.P. [2018 JIC
(Supp.) 1015 (All)]

10.
Baijnath
&
ors.
Vs.
St.
of
M.P.
MANU/SC/1501/2016

11.
Kaliyaperumal
Vs.
St.
of
T.N.,
MANU/SC/0624/2003

12. Hira Lal & ors. Vs. St. (Government of NCT),
Delhi, MANU/SC/0495/2003 (2003) 8 SCC 80

13.
Rajinder
Kumar
Vs.
St.
of
Har.,
MANU/SC/0046/2015 (2015) 4 SCC 215

14.
Baljinder
Kaur
Vs.
St.
of
Punj.,
MANU/SC/1047/2014 (2015) 2 SCC 629

15. Vijay Pal Singh & ors. Vs. St. of
Uttarakhand, MANU/SC/1172/2014 (2014) 15
SCC 163

16. Trimukh Maroti Kirkan Vs St. of Mah.
MANU/SC/8543/2006

17.
St.
of
U.P.
Vs.
Virendra
Prasad,
MANU/SC/0079/2004

18.
St.
of
Karnataka
Vs.
M.V.
Manjunathegowda & ors., MANU/SC/0005/2003
19. Hari Om Vs. St. of Har. (31.10.2014 - SC)
MANU/SC/0987/2014

20.
Hem
Chand
Vs.
St.
of
Har.
MANU/SC/0026/1995 (1994) 6 SCC 727

21. St. of Karn. Vs. M.V. Manjunathegowda &
anr. MANU/SC/0005/2003 (2003) 2 SCC 188

22. G.V. Siddaramesh Vs. St. of Karn.
MANU/SC/0088/2010 (2010) 3 SCC 152

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard learned counsel for the
appellants and learned A.G.A. for the State
and perused the record.

2. Criminal Appeal No. 941 of 2010
has been filed by appellant-Kamlendra
90 INDIAN LAW REPORTS ALLAHABAD SERIES
Dwivedi, Appeal No. 254 of 2010 has
been filed by the appellants-Raghvendra
Dwivedi @ Raghvendra Prasad Dwivedi
& Smt. Usha Devi and Criminal Appeal
No. 886 of 2010 has been filed by
appellants-Krishnanand Dwivedi & Smt.
Poonam against the judgment and order
dated 01.02.2010 passed by learned
Additional District & Sessions Judge,
Court No.7, Raebareli in Sessions Trial
No. 279 of 2005, arising out of Case
Crime No. 60 of 2005, under Sections
498-A, 304-B, 201 of I.P.C. & Section 3⁄4
of Dowry Prohibition Act, Police Station
Maharajganj, District Raebareli, whereby
all the appellants have been convicted
under Sections 498-A, 304-B, 201 of
I.P.C. & Section 4 of Dowry Prohibition
Act, while other co-accused Atulendra
was acquitted of the charges under Section
304-B, 498-A of I.P.C.

Appellant Kamlendra Dwivedi
being the husband of the deceased was
sentenced under Section 304-B for life
imprisonment and under Section 498-A for
02 years' rigorous imprisonment and fine
of Rs. 1500/- and also under Section 201
I.P.C. for 02 years rigorous imprisonment
and fine of Rs. 1500/-, while for the
offence under Section 4 of the Dowry
Prohibition Act he is sentenced for 03
months rigorous imprisonment and fine of
Rs. 500 and in default to undergo further
imprisonment for 09 months.

Appellants
Raghvendra
Dwivedi, Krishnanand Dwivedi, Smt.
Usha Devi and Smt. Poonam were
sentenced
under
Section
498-A
for
rigorous imprisonment of 02 years and
fine of Rs. 1500/-, under Section 304-B for
10 years' rigorous imprisonment and under
Section
201
I.P.C.
for
rigorous
imprisonment of 02 years and fine of Rs.
1500/- and under Section 4 of the Dowry
Prohibition Act for 03 months rigorous
imprisonment and fine of Rs. 500/- with
default imprisonment of 09 months.

Above Criminal Appeals No.
941 of 2010, 254 of 2010 and 886 of 2010,
for the purpose of convenience and to
avoid the repetition in appreciation of the
evidence available on record are being
decided by this common Judgment.

Earlier criminal appeal No. 887
of 2010 was filed by mother-in-law Meena
Kumari, which has been abated on account
of her death vide order dated 10.11.2010
passed in that appeal.

3. The prosecution case in nutshell is
that an FIR was lodged by informant
Chandra Bhal Dwivedi against appellants
and co-accused Atulendra on 22.06.2005
at 22:10 hours at Police Station Kotwali
Maharajganj, Sub District Maharajganj,
District Raebareli stating therein that her
daughter
Poornima
was
married
to
appellant Kamlednra Dwivedi son of late
Anjani Kumar Dwivedi, resident of
Village
Salethu,
Police
Station
Maharajganj,
District
Raebareli
and
adequate dowry was given in her marriage.
When Poonam, first time came back from
her matrimonial home she informed that
her husband Kamlendra and his above
mentioned family members are demanding
a motorcycle and Rs. 20,000/- in cash for
the purpose of establishing a shop for her
husband and also treating her with cruelty.
They consoled her that by the passage of
time everything shall be allright. When she
went to her matrimonial home for the
second time appellants again started
demanding dowry and also started beating
her and treating her with cruelty on nonfulfillment of demand of dowry. Informant
1 All. Kamlendra Dwivedi Vs. State of U.P.
91
along with his brother-in-law Ram Kumar
Mishra and Sanjay Kumar went to the
matrimonial home of his daughter for the
purpose of ''Vidai', where all appellants
demanded dowry and threatened them that
if their demand is not fulfilled in the next 4
to 5 months, they will have to bear the
consequences. They tried hard to make
them understand and also requested not to
treat Poonam with cruelty and they will do
everything to meet their demand, but they
did not sent Poonam with them. On
21.06.2005 at about 9:00 pm., Raghvendra
informed him to come immediately as the
daughter of the informant is in miserable
condition. He immediately rushed to the
matrimonial home of her daughter and
found that her daughter had been burnt
alive after being assaulted and her body
had been hanged from the ledge, but her
feets were resting on the ground.

On the basis of the above
application,
(Exhibit-ka-1),
the
First
Information Report (Exhibit-ka-10) was
lodged against all above mentioned
appellants and Atulendra under Sections
498-A, 304-B of I.P.C. and Section 3⁄4
Dowry Prohibition Act at Case Crime No.
60 of 2005 at Police Station Kotwali
Maharajganj,
District
Raebareli.
The
substance of this information was entered
in the General Diary (Exhibit-ka-11) at
Serial
No.-41
at
22:10
hours
on
22.06.2005 and the investigation of the
case was entrusted to Circle Officer of
Police Maharajganj.

4. The inquest (Exhibit-ka-8) of the
dead body of the deceased Poonam was
done by Shri Ved Prakash Tripathi, the
then ''Tehsildar', Maharajganj in the
presence of S.H.O. Kotwali Maharajganj.
He also prepared a recovery memo of
''rope' as well as of blood stained and
simple soil (Exhibit-ka-4 & 5). He also
prepared
necessary
papers
for
the
postmortem of the dead body of Poonam
i.e. Photo Lash, Challan Lash, Chitthi
C.M.O., Chitthi R.I. (Exhibit-ka-6 to Ka9) and after properly sealing the dead
body, sent the same for postmortem.

5. The postmortem on the dead body
of Poornima @ Poonam was performed by
Dr.
Rajendra
Sharma
(P.W.-4)
on
22.06.2005 at 4:15 pm. at District
Hospital, Raebareli, who also prepared the
postmortem report (Exhibit-ka-2). He
found the age of the deceased to be about
23 years and the deceased was found to be
of average built. Her eyes and tongue were
protruded, whole face, fore-arms, hands,
chest, abdomen and both lower limbs were
found burnt showing first to second
degrees of burn. Fluid vesicles were found
present on the body of the deceased in
burnt areas and line of redness was also
found present. A ligature mark was also
found present below the thyroid cartilage
interrupted at the back of neck. Rigor
mortis was found passed in upper limbs
and was present in lower limbs. One
lacerated wound was also found in lower
part of vagina in between vagina and anus.

On internal examination, brain
and its membrances were found congested,
sooth particles were found present in
larynx, trachea. Right chamber of the heart
was found full and left was found empty.
Skin of the abdomen was found burnt and
70 ml. of semi-digested food was found in
the stomach. Gases were found in small
intestine while in large intestine, gases and
faecal matter was found. Liver was found
congested weighing about 1200 grams and
the gall bladder was found half full. Spleen
92 INDIAN LAW REPORTS ALLAHABAD SERIES
and kidneys were congested and in the
opinion of the Doctor, the cause of death
was shock due to ante-mortem burn
injuries.

6. The Investigating Officer of the
case namely Shri Charan Pal Singh, Circle
Officer of the Police recorded the
statement of informant Shri Chandra Bhal
Dwivedi, Smt. Kusum Trivedi, Shri Sanjay
Kumar Mishra, Shri Subhash Trivedi and
also prepared the Site Plan (Exhibit-ka-12)
and also collected the postmortem report
and inquest report. He also recorded the
statement of witness Ram Naresh Tiwari,
Rajeev, Shailendra Kumar Tiwari, Vishnu
Kant Dwivedi, Smt. Saira Bano and Dr.
Rajendra Sharma and also the statement of
appellant
Kamlendra
Dwivedi
@
Vidyanand Dwivedi, Head Constable
Suresh Kumar Shukla. He also recorded
the
statements
of
accused
persons
Krishnanand Dwivedi and Smt. Poonam as
well as of appellant Raghvendra, Smt.
Meena Kumari, Smt. Usha Devi and
Atulendra Kumar. On 14.07.2005, the
statement under Section 164 Cr.P.C. of
Smt. Poonam and Krishnanand was
recorded, a copy of which was made by
him in the case diary and after finding
sufficient evidence against all accused
persons, he submitted the Charge-Sheet
(Exhibit-ka-13)
against
them
under
Sections 498-A, 304-B of I.P.C. and
Section 4 of the Dowry Prohibition Act.

7. The case being triable by the Court
of Sessions was committed to it and the
trial Court after hearing the prosecution
and appellants framed charges against all
accused persons under Sections 498-A,
304-B of I.P.C. and Section 4 of the
Dowry Prohibition Act. All appellants
denied the charges and claimed trial.

Prosecution in order to prove its
case beyond all reasonable doubt against
the appellants and other accused person
Atulendra Dwivedi placed reliance on
following documentary evidence:-

Written
Application
(Tehrir
F.I.R.), Exhibit-ka-1, Postmortem Report
of
deceased
Poornima
@
Poonam,
Exhibit-ka-2, Inquest Report, Exhibit-ka-3,
Seizure memo of Rope and blood stained
and simple soil, Exhibit-ka-4 and Exhibitka-5, Photo Lash, Exhibit-ka-6, Challan
Lash,
Exhibit-ka-7,
Chitthi
C.M.O.,
Exhibit-ka-8, Chitthi R.I., Exhibit-ka-9,
Chick F.I.R., Exhibit-ka-10, G.D. Qayami,
Exhibit-ka-11, Site Plan, Exhibit-ka-12,
Charge-Sheet, Exhibit-ka-13.

Prosecution in addition to the
above
documentary
evidence
also
produced following witnesses:- P.W.-
1/Chandra Bhal Trivedi (Informant), P.W.-
2/Kusum
Trivedi
(Mother
of
the
informant/deceased), P.W.-3/Ram Naresh
Tiwari (Witness), P.W.-4/Dr. Rajendra
Sharma
(Doctor,
who
performed
postmortem),
P.W.-5/Ved
Prakash
Tripathi,
(Tehsildar,
who
conducted
inquest), P.W.-6/Constable Ram Prasad
Saroj (Scribe of the Chick FIR and G.D.),
P.W.-7/A.P. Singh (First Investigating
Officer), P.W.-8/Shri Charan Pal Singh
(Second Investigating Officer).

8. After the completion of the
prosecution evidence, statement of all
appellants was recorded by the trial Court.
In their statement, recorded under Section
313 of the Cr.P.C., all accused persons
have admitted the fact of solemnization of
marriage
of
deceased
Poonam
@
Poornima with appellant Kamlendra
Dwivedi one year before the incident.
They denied the other evidence produced
by the prosecution and stated that fake
1 All. Kamlendra Dwivedi Vs. State of U.P.
93
documentary evidence has been prepared
to falsely implicate them. Appellant
Kamlendra Dwivedi has stated that in the
morning of the fateful day, there was some
verbal altercation between him and his
wife Poornima and thereafter he left his
home without eating anything in order to
meet his nephew Atulendra and returned
late in the night at about 8:00 pm. and
found that her wife had committed suicide.
He informed the police as well as his
father-in-law. He further stated that after
postmortem
his
father-in-law
started
demanding Rs.1 lac to which he denied
and in consequence thereof he has been
falsely implicated.

Appellant Raghvendra in his
statement, recorded under Section 313 of
the Cr.P.C., has stated that he after
constructing his own house, is residing at
Village Atrehta, Maharajganj since 1997.
He is working at Gramin Bank and at the
time of incident he was on duty at
Chandapur Branch of the Bank and he has
been falsely implicated.

Appellant
Krishnanand
has
stated that he is residing separately from
Kamlendra since 1998 and all properties
between them have been partitioned in the
year 2003. At the time of the incident, he
had gone to Maharajganj to collect
''Tahbazari' and he has been falsely
implicated.

Smt.
Meena
Devi
in
her
statement under Section 313 of the Cr.P.C.
has stated that in the year 2003, the
ancestral house and the agricultural land of
her husband was partitioned between
herself and her sons and she got 1⁄4th share
in agricultural land, Since then, she had
been living separately from Kamlendra
and at the time of incident she had gone to
the house of a co-villager to participate in
''Akhand Ramayan' and she had been
falsely implicated.

Appellant Usha Devi in her
statement recorded under Section 313 of
the Cr.P.C, has stated that since 1997, she
had been living separately at Village
Atrehta, Maharajganj along with her
husband and children and she had been
falsely implicated. Similarly, appellant
Poonam Devi stated in her statement
recorded under Section 313 of the Cr.P.C.
that she had been living separately from
Kamlendra for the last 12-13 years and at
the time of incident she was in other
Village to participate in ''Akhand Ramayan
Path'.

9. In addition to their statement
under Section
313
of
the
Cr.P.C.,
appellants have also produced witnesses
D.W.-1/Mohd.
Israr,
D.W.-2/Vinod
Kumar
(Lekhpal),
D.W.-3/Bhoopendra
Bahadur Singh, Manager, Chandapur
Branch of Gramin Bank, D.W.-4/Smt.
Sharda Singh Village Pradhan, Atrehta and
in documentary evidence, has produced 09
documents in list 14-ka and also recalled
prosecution witness No.6/Constable Ram
Prasad Saroj, who proved Exhibit-kha-1,
G.D. No.-5.

10. The trial Court after appreciating
the evidence on record found that the
prosecution has been able to prove its case
against
above
mentioned
appellants
beyond
all
reasonable
doubt
and,
therefore, convicted the appellants for the
offences under Sections 498-A, 304-B,
201 of I.P.C. & Section 4 of Dowry
Prohibition Act, in the manner described
in the second paragraph of this judgment,
however, the trial Court came to the
conclusion that the prosecution has not
been able to prove its case beyond
94 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonable
doubt
against
accused
Atulendra and, therefore, acquitted him of
all the charges levelled against him.

11. Aggrieved by the judgment and
order of conviction and sentence dated
01.02.2010, the appellants have challenged
the same in this appeal.

12.

Learned
counsel
for
the
appellants submits that the trial Court has
convicted the appellants purely on the
basis of ''surmises and conjectures' and
has also failed to appreciate the evidence
available on record in right perspective.

He further submits that the trial
Court has ignored the major contradictions
present in the testimony of prosecution
witnesses and has also not taken note of
the fact that P.W.-2/Smt. Kusum Trivedi
has contended in her statement that
deceased did not tell her about any
demand of dowry made by the appellants
and, therefore, the trial Court appreciated
the evidence in a mechanical manner. He
pointed
out
that
appellant
No.1Raghvendra
Dwivedi
was
a
Bank
employee and was posted in Baroda
Gramin
Bank,
Branch
Chandapur,
Raebareli at the time of incident and was
also on duty at the time of incident. The
Bank Manager of the relevant branch has
been produced as D.W.-3, who has
testified that the appellant Raghvendra
Dwivedi
was
present
in
Bank
on
21.06.2009 from 9:30 am. till 5:00 pm. He
has also proved the Attendance Register of
the Bank, but the trial Court has misread
his evidence.

It is next submitted that the trial
Court, despite there being sufficient
evidence, ignored the fact that Raghvendra
Dwivedi had also purchased a plot at Village
Atrehta. He had constructed a house there and
was residing there with her wife Smt. Usha
Devi since 1997. Contrary to this, findings of
the trial Court in respect of separate living of
appellant Raghvendra Dwivedi is contrary to
the evidence on record.

It is further submitted that it was
apparent and established on record that the
appellants Raghvendra, Krishnanad, Smt.
Poonam, Smt. Usha and Smt. Meena Kumari
were living separately from Kamlendra
Dwivedi, therefore, there was no occasion for
the trial Court to convict all the appellants for
the offence under Section 304-B and 498A of
I.P.C. and Section 4 of the Dowry Prohibition
Act, as other appellants except Kamlendera
could not be the beneficiary of any dowry and
were not in a position to treat the deceased
with cruelty.

It is next submitted that the
evidence of the prosecution is not so
strong that on the basis of which,
conviction of appellants could be sustained
and, therefore, keeping in view the
evidence
available
on
record,
the
appellants are liable to be acquitted of all
the charges framed against them.

It is also submitted that appellant
Kamlendera has been sentenced for life
imprisonment for the offence under
Section 304-B and the reasons given by
the trial Court for inflicting the maximum
penalty are not cogent and trial Court
failed to understand the fact that instant
case is not of a rare specie and therefore
the sentence of the appellant Kamlendera
under Section 304-B I.P.C. be altered from
life imprisonment to the sentence already
undergone as the appellant has already
undergone sentence of more than 10 years.

Learned
counsel
for
the
appellants has relied on following case
laws:-
1 All. Kamlendra Dwivedi Vs. State of U.P.
95

1. Anil Kumar Vs. State of U.P
[2018 JIC (Supp.) 657 (All)].

2. Mohammad & Ors. Vs. State
of U.P. [2018 (1) JIC 693 (All)].

3. Chandra Prakash Rathur Vs.
State of U.P. [2018 (3) JIC 560 (All)].

4. Ahsan & Anr. Vs. State of
U.P. [2019 (1) JIC 660 (All)].

5. Hari Om Vs. State of Haryana
and another (2015) 1 Supreme Court
Cases (Cri) 141.

6. Baijnath and others Vs. State
of Madhya Pradesh (2017) 1 Supreme
Court Cases (Cri) 225.

7. Shailendra Vs. State of U.P.
[2018 JIC (Supp.) 54(All)].

8. Badam Singh Vs. State of U.P.
[2018 JIC (Supp.) 861 (All)].

9. Balram & Anr. Vs. State of
U.P. [2018 JIC (Supp.) 1015 (All)].

13. Per contra, learned A.G.A. submits
that the trial Court after taking into
consideration and appreciating the evidence
available on record in its totality has
convicted the appellants for the offence
committed by them. Therefore, there is no
illegality or irregularity either in the
marshalling of facts or in appreciation of
evidence by the Court below.

It is next submitted that to prove
offence under Section 304-B of I.P.C.
ingredients mentioned therein are required
to be proved by the prosecution and if the
prosecution has succeeded in establishing
the ingredients of Section 304-B I.P.C.
then by virtue of application of Section
113-B of the Indian Evidence Act, a
presumption shall be drawn against
appellants that they have committed the
dowry death. Therefore, no illegality has
been committed by the trial Court in
convicting the appellants and the appeal of
the appellants is liable to be dismissed.

14. Prosecution in order to prove its
case before the trial Court has produced 8
witnesses.
P.W.-1/Chandra
Bhal
Dwivedi who is the father of the deceased
has stated that her daughter Poornima @
Poonam was married to Kamlendra
Dwivedi on 23.04.2004. They gave
adequate dowry in her marriage but from
the beginning of her marriage, her motherin-law, Jeth Raghvendra, Jethani Usha,
Atulendra and another Jeth Krishnanand
and Jethani Poonam started demanding Rs.
20,000/- in cash and a motorcycle and
started treating her daughter with cruelty
on non-fulfillment of such demand. When
they brought Poornima to their house, she
told them that the above mentioned
accused persons are demanding Rs.
20,000/- and a motorcycle and also
treating her with physical cruelty. He
consoled her daughter that by the passage
of time everything shall be allright.
Raghvendra Dwivedi also came to his
house for the purpose of ''Vidai', but after
''Vidai' she was again ill-treated for
demand of dowry and was also physically
assaulted. It is further stated by him that in
the month of May, 2005, he along with his
brother-in-law Rajkumar Mishra and a
close relwqative Sanjay Kumar Bajpayee
went to perform the ''vidai' of Poornima at
Village Salethu, where accused persons
demanded dowry and asked him to part
with the dowry and ''Vidai Ceremony'
could only be performed then. They
threatened that if in the next 4-5 months, a
motorcycle and Rs. 20,000/- are not
arranged then they will have to face the
consequences. They asked them not to
treat Poornima with cruelty and that they
96 INDIAN LAW REPORTS ALLAHABAD SERIES
will arrange whatever they could. On
21.06.2005 at about 9:00 pm., Raghvendra
Dwivedi made a call at the shop, where he
is working and asked him to come to the
Village as the condition of the Poornima
was bad. He along with his wife and son
and brother-in-law Suresh rushed to
Village Salethu and arrived there at 7:00
am. and saw that after burning her
daughter they had placed her in hanging
condition on a ''Ledge' (Chajja). No
person from her in-law's house was
present there. He lodged the First
Information Report, (Exhibit-ka-1) at P.S.
Maharajganj.

P.W.-2/ Kusum Trivedi is the
mother of the deceased Poornima @
Poonam, has corroborated the statement of
P.W.-1/ Chandra Bhal Trivedi, pertaining
to the solemnization of marriage of her
daughter with Kamlendra Dwivedi on
23.04.2004 and the cruelty committed by
the appellants on her for demand of
Rs.20,000/- and motorcycle. She also
stated that on 21.06.2005, Raghvendra
telephonically informed them about the
bad condition of their daughter and they
reached the matrimonial home of her
daughter in the morning at about 6:00 pm.
and saw that her daughter was hanging
from the ''Ledge' (Chajja).

P.W.-3/Ram Naresh Tiwari is
the witness who arranged this marriage
who stated that he was instrumental in
solemnization of this marriage, which was
solemnized in the year 2004. No demand
of dowry was made by the appellants
before marriage and even after the
solemnization
of
marriage,
no
such
demand has also been made in his
presence. This witness has proved his
signatures on ''Panchnama'.

P.W.-4/Dr. Rajendra Sharma
has
stated
to
have
conducted
the
postmortem on the dead body of deceased
Poornima @ Poonam on 22.06.2005 at
4:15 pm. which was brought by Constable
Sarvdev Trivedi and Constable Rajesh
Pandey of Police Station Maharajganj,
Raebareli. He has proved the postmortem
report in his handwriting and signature as
Exhibit-ka-2.
The
details
of
the
postmortem report including the injuries
found on the person of the deceased has
been elaborately discussed and reproduced
at Para 5 of this judgment, herein-before.

P.W.-5/Ved Prakash Tripathi
was
Tehsildar
Maharajganj,
District
Raebareli at relevant point of time. He
stated to have prepared the ''Panchnama'
and proved the same as Exhibit-ka-3 in his
hand writing and signatures. He has also
proved the seizure memo of a ''rope' and
also the seizure memo pertaining to simple
and blood stained soil from the spot as
Exhibit-ka-4 & 5. He has also proved
preparation of Photo Lash, Challan Lash,
Chitthi C.M.O., Chitthi R.I. and proved
the same in his hand writing and
signatures as Exhibit-ka-6 to Exhibit-ka-9.

P.W.-6/Constable Ram Prasad
Saroj of Police Station Maharajganj is the
witness who registered the FIR and
prepared the chick. He has stated that on
22.06.2005, he was posted as Constable
Clerk
at
P.S.
Maharajganj,
District
Raebareli and prepared Chick on the basis
of the application, Exhibit-ka-1 and proved
the same as Exhibit-ka-10 under his hand
writing and signatures. He also prepared
the G.D. Serial No. 41 time 22:10 hours
dated 22.06.2005 in his hand writing as
Exhibit-ka-11.

P.W.-7/Shri A.P. Singh was the
Circle Officer Police Tiloi on 23.06.2005.
He stated that as the then Circle Officer,
1 All. Kamlendra Dwivedi Vs. State of U.P.
97
Police Maharajganj was on leave, he was
his
link
officer
and
he
took
the
investigation of the case in that capacity
and collected the copy of application,
Chick FIR and also the copy of General
Diary and has written the first ''parcha' of
the C.D.

P.W.-8/Shri Charan Pal Singh
is the second Investigating Officer of the
crime, who stated in his evidence that on
25.06.2005, he recorded the statement of
witness Chandra Bhal Dwivedi, Smt.
Kusum Trivedi, Shri Sanjay Kumar
Mishra, Shri Shubhash Trivedi and also
inspected the spot and prepared the Site
Plan in his hand writing and signatures and
proved the same as Exhibit-ka-12. He
further stated to have arrested the accused
Kamlendra Kumar @ Vidyanand Dwivedi
and recorded his statement and after
recording the statement of the witnesses
and recording of the statement of Poonam
and Krishnanand under Section 161 of the
Cr.P.C., submitted the charge-sheet against
accused persons under his signatures and
his hand writitng.

15. The appellants also produced 04
defence witnesses namely D.W.-1/Mohd.
Israr,
D.W.-2/Vinod
Kumar,
D.W.-
3/Bhoopendra Bahadur Singh and D.W.-
4/Smt. Sharda Singh.

D.W.-1/Mohd. Israr in his
statement has stated that he was the
''Pradhan' of Village Salethu for the last
five years and knew Krishnanand very
well.
He
further
submitted
that
Krishnanand was residing separately from
his brother Kamlendra for the last 10-11
years, while Raghvendra was residing at
Village Atrehta, Maharajganj for last 12
years
of
the
incident
and
hadalso
constructed a house there. He also stated
that Krishnanand was residing in Village
Atrehta with his family and all three
brothers have got all the assets of their
father partitioned in between them and
Krishnanand was not having any concern
with either Kamlendra or his family.

D.W.-2/Vinod
Kumar
is
''Lekhpal' of Tehsil Maharajganj, District
Raebareli, who has proved that the
agricultural land of Raghvendra Dwivedi,
Krishnanand, Kamlendra Kumar had been
partitioned in between them in the revenue
records. He also filed an extract of
''Khatauni' as Paper No. 153-Kha, which
had been issued on 06.08.2009.

D.W.-3/Shri
Bhoopendra
Bahadur Singh is Branch Manager,
Chandpur Branch, Uttar Pradesh Gramin
Bank, Raebareli, who has stated that on
21.06.2005, he was Branch Manager of the
aforesaid branch and accused/appellant
Raghvendra Prasad was working there as
Process Server. He also stated to have
brought the Attendance Register with him
and also stated that the said register was
maintained in due course. He stated that on
21.06.2005, Raghvendra Prasad was at his
duty in the Bank from 9:30 in the morning
till 5:00 in the evening. He has also
produced
an
attested
copy
of
the
Attendance Register and also proved the
same as Exhibit-kha-3.

D.W.-4/Smt. Sharda Singh is
the Pradhan of Village Atrehta. She stated
that appellant Raghvendra Prasad was
known to her and he had been living at
Village Atrehta along with his family since
1997 by constructing a house there.

We have perused the evidence
available on record. A perusal of definition
of dowry death as provided under Section
304-B of I.P.C. would reveal that if it is
proved that death of a women is caused by
any burn or bodily injury or occurs
otherwise
than
under
normal
98 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances within 07 years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or his relatives
and such cruelty or harassment was for or
in connection with demand of dowry and
such cruelty or harassment was soon
before her death, then it shall be obligatory
on the Court to raise a presumption that
the accused person(s) have caused the
dowry death.

In Baijnath and Ors. vs. State
of
Madhya
Pradesh
reported
in
MANU/SC/1501/2016 Honble Suprme
Court while considering the requirement
of section 304B I.P.C. opined as under :

"27. The evidence on record and
the competing arguments have received
our required attention. As the prosecution
is on the charge of the offences envisaged
in Sections 304B and 498A of the Code,
the provisions for reference are extracted
hereunder:

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.

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 purpose of
this section, "cruelty" means--

(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.

28. Whereas in the offence of
dowry death defined by Section 304B of
the Code, the ingredients thereof are:

(i)
death
of
the
woman
concerned is by any burns or bodily injury
or by any cause other than in normal
circumstances and

(ii) is within seven years of her
marriage and

(iii) that soon before her death,
she was subjected to cruelty or harassment
by her husband or any relative of the
husband for, or in connection with, any
demand for dowry.

the offence Under Section 498A
of the Code is attracted qua the husband
or his relative if she is subjected to cruelty.
1 All. Kamlendra Dwivedi Vs. State of U.P.
99
The explanation to this Section exposits
"cruelty" as:

(i) 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) or
''Tahbazari' ''Tahbazari' ''Tahbazari'

(ii) 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.

29. Patently thus, cruelty or
harassment of the lady by her husband or
his relative for or in connection with any
demand for any property or valuable
security as a demand for dowry or in
connection therewith is the common
constituent of both the offences.

30. The expression "dowry" is
ordained to have the same meaning as in
Section 2 of the Dowry Prohibition Act,
1961.
The
expression
"cruelty",
as
explained, contains in its expanse, apart
from the conduct of the tormentor, the
consequences precipitated thereby qua the
lady subjected thereto. Be that as it may,
cruelty or harassment by the husband or
any relative of his for or in connection
with any demand of dowry to reiterate is
the gravamen of the two offences.

31. Section 113B of the Act
enjoins a statutory presumption as to
dowry death in the following terms:

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 has 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 purpose of
this section, "dowry death" shall have the
same meaning as in Section 304B of the
Indian Penal Code (45 of 1860)

32. Noticeably this presumption
as well is founded on the proof of cruelty
or harassment of the woman dead for or in
connection with any demand for dowry by
the person charged with the offence. The
presumption as to dowry death thus would
get activated only upon the proof of the
fact that the deceased lady had been
subjected to cruelty or harassment for or
in connection with any demand for dowry
by the accused and that too in the
reasonable contiguity of death.

Such a proof is thus the
legislatively mandated prerequisite to
invoke the otherwise statutorily ordained
presumption of commission of the offence
of dowry death by the person charged
therewith.

33. A conjoint reading of these
three provisions, thus predicate the burden
of
the
prosecution
to
unassailably
substantiate the ingredients of the two
offences by direct and convincing evidence
so as to avail the presumption engrafted in
Section 113B of the Act against the
accused. Proof of cruelty or harassment by
the husband or her relative or the person
charged is thus the sine qua non to inspirit
the statutory presumption, to draw the
person charged within the coils thereof. If
the prosecution fails to demonstrate by
cogent coherent and persuasive evidence
to prove such fact, the person accused of
either of the above referred offences
cannot be held guilty by taking refuge only
of the presumption to cover up the
shortfall in proof.
100 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The legislative primature of
relieving the prosecution of the rigour of the
proof of the often practically inaccessible
recesses of life within the guarded confines of
a matrimonial home and of replenishing the
consequential
void,
by
according
a
presumption against the person charged,
cannot be overeased to gloss-over and
condone its failure to prove credibly, the
basic facts enumerated in the Sections
involved, lest justice is the casualty.

35. This Court while often dwelling
on the scope and purport of Section 304B of
the Code and Section 113B of the Act have
propounded that the presumption is contingent
on the fact that the prosecution first spell out
the ingredients of the offence of Section 304B
as in Shindo Alias Sawinder Kaur and Anr.