# Mahesh (In Jail) v. State of U.P

- **Citation:** (2021) 3 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-23
- **Case number:** Criminal Appeal No. 438 of 2013
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-in-jail-v-state-of-u-p-46991
- **Pages:** 11

## Headnote

matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal
Code,
1860-Sections
498-A,
304B,302 -Dowry of Prohibition Act,1961Section
3⁄4-challenge
to-convictiondeceased was the wife of the appellant
and she was found dead in an unnatural
circumstances in her matrimonial home
where the appellant was also living with
her-
deceased
was
cruelly
treated,
harassed and tortured by the appellant for
additional dowry and for non-fulfilment of
the said demand, she was mercilessly
beaten to death by the appellant-The
argument he had informed about the
incident to the PW 2 and remained
present
throughout
the
inquest
proceedings and also accompanied the
dead body to hospital, goes to show that
he is innocent, is also of no consequences
as the appellant is not being able to
discharge his burden in view of Section
106 of the Evidence Act, 1872 as it was his
duty to explain the death of his wife, who
died an unnatural death in his house and
his presence there is also proved from the
statement of P.W. 2-From the perusal of
the ante-mortem injuries found on the
person of the deceased, it is apparent that
the deceased has received as many as
seven injuries on her person on different
parts of her body which includes head,
chest and abdomen and it cannot be said
to be self -inflicted injuries and the said
injuries could be caused by some hard
blunt object- The cause of death in the
opinion of PW 4- Doctor, who conducted
the Post Mortem is that the injuries which
were
caused
to
the
deceased
were
sufficient in the ordinary course of nature
to cause death.(Para 1 to 48)

B. The provisions of Section 106 of the
Evidence
Act
are
unambiguous
and
categoric in laying down that when any
fact is especially within the knowledge of
a person, the burden of proving that fact
is upon him. Thus, if a person is last seen
with the deceased, he must offer an
explanation which appears to the Court to
be probable and satisfactory. If he does so
he must be held to have discharged his
burden. Section 106 does not shift the
burden of proof in a criminal trial, which is
always upon the prosecution. (Para 39,40)

The appeal is dismissed. (E-5)

List of Cases cited:

## Text

910 INDIAN LAW REPORTS ALLAHABAD SERIES
Habibullah and Mohammad Ansar have
surrendered before the Court on 9.11.2020
and have been released on bail on the same
day on their furnishing personal bonds of
Rs. 25,000/- each and two sureties of the
like amount. It is directed that the said
personal bonds and sureties of the said
accused-respondent nos. 3 and 4 shall not
be cancelled/discharged till the period of
limitation for filing the appeal against the
present judgment and order as provided
under the law, is expired.

50. Let the lower court record along
with the present order be transmitted to the
trial
court
concerned
for
necessary
information and compliance.
----------
(2021)03ILR A910
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.

Criminal Appeal No. 438 of 2013

Mahesh ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sajid Raza Rizvi, Manish Bajpai, Siddharth
Lal Vaish

Counsel for the Opposite Party:
Government Advocate

A.
Criminal
matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal
Code,
1860-Sections
498-A,
304B,302 -Dowry of Prohibition Act,1961Section
3⁄4-challenge
to-convictiondeceased was the wife of the appellant
and she was found dead in an unnatural
circumstances in her matrimonial home
where the appellant was also living with
her-
deceased
was
cruelly
treated,
harassed and tortured by the appellant for
additional dowry and for non-fulfilment of
the said demand, she was mercilessly
beaten to death by the appellant-The
argument he had informed about the
incident to the PW 2 and remained
present
throughout
the
inquest
proceedings and also accompanied the
dead body to hospital, goes to show that
he is innocent, is also of no consequences
as the appellant is not being able to
discharge his burden in view of Section
106 of the Evidence Act, 1872 as it was his
duty to explain the death of his wife, who
died an unnatural death in his house and
his presence there is also proved from the
statement of P.W. 2-From the perusal of
the ante-mortem injuries found on the
person of the deceased, it is apparent that
the deceased has received as many as
seven injuries on her person on different
parts of her body which includes head,
chest and abdomen and it cannot be said
to be self -inflicted injuries and the said
injuries could be caused by some hard
blunt object- The cause of death in the
opinion of PW 4- Doctor, who conducted
the Post Mortem is that the injuries which
were
caused
to
the
deceased
were
sufficient in the ordinary course of nature
to cause death.(Para 1 to 48)

B. The provisions of Section 106 of the
Evidence
Act
are
unambiguous
and
categoric in laying down that when any
fact is especially within the knowledge of
a person, the burden of proving that fact
is upon him. Thus, if a person is last seen
with the deceased, he must offer an
explanation which appears to the Court to
be probable and satisfactory. If he does so
he must be held to have discharged his
burden. Section 106 does not shift the
burden of proof in a criminal trial, which is
always upon the prosecution. (Para 39,40)

The appeal is dismissed. (E-5)

List of Cases cited:

1. Harbans Lal Vs St. of Punj. (1996) 2 SCC 350
3 All. Mahesh Vs. State of U.P.
911
2. Shambhu Nath Mehra Vs St. of Ajmer (1956)
SCR 199

3. St. of Raj. Vs Kanshi Ram JT (2006) 12 SCC
254.

4. P. Mani Vs St. of T.N. (2006) 3 SCC 161

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) The present Criminal Appeal has
been preferred by the appellant against the
judgment and order dated 04.02.2013 in
S.T. no.670 of 2009, arising out of Case
Crime no.680 of 2009, Police Station Phool
Behar, District Lakhimpur Kheri, passed by
Additional Sessions Judge, Court no.1,
Lakhimpur Kheri, whereby the appellant
has been convicted for offence under
Section 498-A I.P.C. and sentenced for
rigorous imprisonment for a period of three
years with a fine of Rs.5,000/- and in
default of payment of fine to further
undergo
three
years
of
simple
imprisonment, convicted for offence under
Section 302 I.P.C. and sentenced for life
imprisonment with a fine of Rs.10,000/-
and in default of payment of fine to further
undergo one year of simple imprisonment
and convicted for offence under Section 3⁄4
of
the
Dowry
Prohibition
Act
and
sentenced
to
two
years
rigorous
imprisonment with a fine of Rs.5,000/- and
in default of payment of fine to undergo
simple imprisonment for a period of three
months and all the above mentioned
sentences were to run concurrently.

(2) The prosecution case in nutshell
is that an FIR was lodged by informant-
Awdhesh Kumar- PW 2 at the concerned
Police Station alleging that his sister,
namely, Gudda aged about 25 years at
that time, was married to the appellant
Mahesh s/o Gobardhan, resident of
village- Khostawa, Police Station Phool
Behar, District Lakhimpur Kheri six
years ago, i.e., in the year 2003 in
accordance
with
Hindu
rites
and
traditions. After one and a half years of
marriage Mahesh frequently harassed her
and demanded an additional dowry of
Rs.50,000/-. She had informed about this
demand to her family members twice or
thrice but on the conciliation by the
relatives Mahesh kept quiet. After few
days his sister had called him on phone
and told that Mahesh was demanding
Rs.10,000/- out of remaining dowry
amount from her immediately and was
also threatening for her life and had
beaten her with kicks and fists, on which
the informant called Mahesh on phone
and tried to pacify him by saying that he
will come in three to four days and settle
the matter himself. On 31.05.2009 he was
informed that his sister Gudda has been
done to death by Mahesh by mercilessly
beating her on account of non-fulfillment
of additional amount of dowry as
demanded by Mahesh. The informant
went to Khostawa and found dead body
of her sister lying in her room.

(3) On the basis of the said written
complaint (Ex- Ka 1) being made by PW
2, Awdhesh Kumar at the Police Station
Phool Behar, District Lakhimpur Kheri
about the incident dated 31.05.2009,
investigation was carried out and an FIR
(Ex- Ka 9) was lodged against the
accused/appellant- Mahesh as Case Crime
no.680 of 2009 under Sections 498-A,
304-B I.P.C. and 3⁄4 Dowry Prohibition
Act, Police Station Phool Behar, District
Lakhimpur Kheri.

(4) After investigation charge sheet
(Ex- Ka 12) was submitted against
accused/appellant-
Mahesh
before
the
Competent Court and the case was
912 INDIAN LAW REPORTS ALLAHABAD SERIES
committed to the Court of Sessions on
10.08.2009 by the learned Magistrate.

(5) On 14.05.2010 the learned
Sessions Judge, Lakhimpur Kheri framed
charges against the appellant- Mahesh for
offences under Sections 498-A, 304-B
(alternate charge under Section 302 I.P.C)
I.P.C. and Section 3⁄4 Dowry Prohibition
Act respectively.

(6) The accused denied the charges
and claimed his trial.

(7) The prosecution in support of its
case has examined PW 1- Rajkaran, PW 2-
Awdhesh, PW 3- Rakesh Kumar Maurya,
PW 4- Dr. H.B. Singh, PW 5-Chhotelal
Mishra and PW 6- Basantlal.

(8) The statement of the accused was
recorded under Section 313 Cr.P.C.,
wherein
he
denied
the
prosecution
evidence. The accused-appellant Mahesh
has taken a plea that the witnesses have
falsely deposed against him and the charge
sheet which was submitted against him is a
wrong one and the case which has been
alleged against him is on account of enmity
and that he is innocent.

(9) PW 1- Rajkaran in his deposition
before the trial Court has submitted that
Gudda Devi is his sister. He got her
married in 2003 to accused- Mahesh
according to Hindu rites and traditions and
dowry was also given. She died in her
matrimonial home.

(10) After two-three years of marriage
Mahesh started demanding Rs.50,000/- as
an additional amount of dowry for which
he used to harass and beat her and troubled
her for food and clothing. Mahesh also
demanded Rs.50,000/- from her and her
family members. He along with his family
members even tried to pacify Mahesh but
he did not pay any heed to their request.
One month prior to incident, Mahesh
immediately demanded Rs.10,000/- from
her sister about which she told him but he
refused her because his younger brother
was about to get married. Ten days prior to
the incident she came to her parental house
for the last time when his younger brother's
marriage was being solemnized and told
her family about how Mahesh was
harassing and beating her for not fulfilling
his demand of additional dowry of
Rs.50,000/- and he has also demanded
Rs.10,000/- immediately. It was her last
visit there and thereafter she never met
them. Whenever she used to come to his
house she used to complain about the
torture and harassment done by Mahesh on
her to meet the demand of Rs.50,000/-. He
further stated that the information about the
death of his sister was given by a person
from Mahesh's village on phone. He along
with his brother, mother and other people
went to her sister's in-laws' house and saw
her dead body in her room. On her body
there were marks of injuries. His brother
Awdhesh Kumar- PW 2 had gone to police
station and reported this incident and
thereafter, police arrived and sealed the
dead body of her sister and sent it for Post
Mortem.

(11) He further stated that Mahesh
had murdered his sister for non-fulfillment
of
additional
demand
of
dowry
of
Rs.50,000/-. The witness supported the
prosecution
case
and
held
appellant/accused Mahesh responsible for
the death of his sister.

(12) On cross examination PW 1
deposed that seeing the prosperity of
Mahesh he married his sister to him on
3 All. Mahesh Vs. State of U.P.
913
05.05.2002 and ''Bidai' took place on
06.05.2002. After her marriage she used to
complain about Mahesh but he took no
action. On the date of incident at around 3
p.m. he was informed through phone that
his sister has died. He along with his
brother, mother and other people went to
his sister's house and found her dead body
in her room. There was blood where she
was found. He remained the whole night at
the place of occurrence. The police arrived
at 10 p.m. and had conducted the
Panchayatnama on the body of the
deceased at night and had sent the same to
Lakhimpur Kheri for its Post Mortem and
all of them went in the night to Lakhimpur
Kheri along with the dead body. The Police
arrested Mahesh on that night only. He
stated that he was unaware of the fact that
Mahesh's grandmother's home was in
Parehara
where
there
was
''Mundan'
ceremony. He in his cross examination had
admitted that Mahesh did not demand any
dowry from him but he used to demand the
same from his sister. He further submitted
that the last rites of the deceased was
performed in his presence by him and not
by her family members (in-laws).

(13) PW 2- Awdhesh Kumar, who is
the informant in the case, is the elder
brother of PW 1 and deceased. He was
examined by the trial Court and he has
supported the prosecution case as averred
in the FIR as well as statement given by
PW 1 and for the sake of brevity the same
is not reiterated. He in his deposition has
stated that he has received the phone call
from his sister and she told him that
Mahesh
is
demanding
Rs.10,000/-
immediately and had also assaulted her
with kicks and fists and threatening for dire
consequences of her life, but on receiving
the said information he could not go to
meet his sister and thereafter he received
the information about her death. His sister
had lastly come to her house 10 days before
the marriage of his younger brother and
there she told her family members about
the demand of Rs.50,000/- as additional
dowry being made by Mahesh and how he
harassed her for non-fulfillment of the
same. He has further stated in his evidence
that the information about the death of her
sister was given by one Om Prakash
Awasthi, on which he had gone to her inlaws' house. Her sister was lying dead in
the room and he saw the marks and injuries
on her body. He has informed the police
station Phool Behar about the incident and
the report was written by Om Prakash
Awasthi. He dictated the incident to him
and he wrote what was dictated to him and
thereafter, he put his signature on the
written report (Ex- Ka 1). He had submitted
the said report to the Police Station and he
was given a copy of the FIR by the
Constable Clerk of the said Police Station.
The Panchayatnama, which was conducted
on the dead body of the deceased, was
performed in the presence of Naib
Tehsildar and Police personnel. The dead
body was sealed in his presence and he has
signed the inquest report and has proved
the same as Ex- Ka 2.

(14) In his cross examination PW 2
stated that Mahesh had started harassing his
sister after one and a half years of marriage.
The name of his sister is Gudda Devi alias
Shanti Devi. Her marriage was solemnized
on 05.05.2002, which was Sunday and the
''Bidai' ceremony was on 06.05.2002,
which was Monday. His sister died on
30.05.2009 and he received the information
on 31.05.2009 at 3 p.m. in afternoon on his
mobile. He further admitted the fact that
the information was given by Mahesh on
his phone on which he reached the house of
in-law's house of his sister. Mahesh reached
914 INDIAN LAW REPORTS ALLAHABAD SERIES
the place of occurrence at 6.45 p.m. He
stated that after the inquest the dead body
of his sister was sent for Post Mortem to
Lakhimpur Kheri. Mahesh along with his
mother had accompanied the dead body to
police station, after this where Mahesh
went away he had no idea. He further
deposed that last rites were performed in
Lakhimpur Kheri by him. The place where
the dead body was found blood was also
there.
He
further
deposed
that
the
Investigating Officer had not taken his
statement at any point of time and when the
Investigating Officer visited the place of
occurrence he showed him where the dead
body was and blood near it. The
Investigating Officer took out the dead
body to the courtyard and after last rites
were performed, neither did he return to the
place of occurrence nor any police officials
met or interrogated him.

(15) PW 3, Rakesh Kumar Maurya,
Naib Tehsildar, Tehsil Palia, District
Lakhimpur Kheri deposed that he was
posted as Naib Tehsildar in District
Lakhimpur Kheri since June, 2009. On
01.06.2009
he
conducted
the
Panchayatnama of the deceased and he
visited the house of the deceased, i.e., place
of occurrence, under the orders of the
District Magistrate, Sadar, Lakhimpur
Kheri. When he reached the house of
Mahesh to conduct Panchayatnama, SI
Ram Nath Singh, SO Pramod Kumar
Singh, Constable Shivdeen Verma along
with other villagers including in laws of the
deceased were already present there.
Panchayatnama and related papers were
prepared by SI Ram Nath Singh on his
dictation. The dead body of the deceased
was examined and several injuries were
found on it and thereafter the dead body
was sealed and sent for Post Mortem. He
has proved the inquest report of the
deceased as Ex- Ka 2, which was prepared
by SI Ram Nath Singh and it bears
signature of PW 3. PW 3 also proved the
Photo Lash, Sample Seal, letter to CMO,
letter to R.I., Chalan Lash, which were
prepared by SI Ram Nath Singh and it
bears the signature of PW 3 as Ex- Ka 3
and Ka 7.

(16) PW 4- Dr. H.B. Singh in his
deposition before the trial Court has stated
that on 01.06.2009 he was posted as
Consultant Chest Physician, Balrampur
Hospital, Lakhimpur Kheri and at 3.30 p.m.
he performed autopsy of the dead body of
Smt. Gudda, which was sent in by Naib
Tehsildar in a sealed condition and
identified by Constable Shivdeen Verma.
The dead body was sealed and was opened
in his presence. During the time of autopsy
Dr. S.P. Singh was present along with him.
The following Ante Mortem injuries were
found on the body of the deceased which
are enumerated as follows:-

1. Contusion 6 cm X 3 cm over
right side head 2 cm above right ear on
dissection tissues brain ecchymosed and
extracted
and
subdural
haematoma
present over brain.

2. Contusion 10 cm X 6 cm over
right shoulder and upper arm.

3. Constusion 15 cm X 6 cm
over left forearm.

4. L.W. 5 cm X 1 cm X bone
deep over front of right index, middle
and ring fingers just above base of
fingers.

5. Contusion (Multiple) in an
area of 60 cm X 20 cm over front of
right thigh and leg.
3 All. Mahesh Vs. State of U.P.
915

6. Contusions in an area of 50 cm
X 20 cm over front of left thigh.

7. Contusions in an area of 40 cm
X 30 cm over back of chest and abdomen.

(17) In the opinion of Dr. H.B. Singh,
the cause of death is due to coma as a result
of ante mortem head injuries. He further
stated that the injuries received by the
deceased were sufficient in the ordinary
course of nature to cause death and the death
of the deceased occurred on 31.05.2009 at
about 10 a.m. and the injuries which have
been caused to the deceased was possible by
a hard blunt object. The witness stated in his
cross examination that the death of the
deceased could have occurred 36 hours prior
to Post Mortem. He has proved the Post
Mortem report as Ex- Ka 8.

(18) PW 5- Constable Chhotelal Mishra
has deposed before the trial Court that on
31.05.2009 he was posted as Constable Clerk,
Police Station Mahrajpur, District Kanpur
Nagar and on that day informant- Awdhesh
Kumar came to the police station and gave
written complaint on the basis of which he had
prepared Chik FIR no.121 of 2009 (Case
Crime no.680 of 2009) and registered the
same for offences under sections 498-A, 304B I.P.C. and 3⁄4 Dowry Prohibition Act in his
handwriting and signature and proved the
same as Ex- Ka 9 and stated that the said FIR
was lodged in pursuance of the written report
submitted by the Awdhesh Kumar- PW 2,
which is Ex- Ka 1.

(19) He has further deposed that he
endorsed the fact of lodging of FIR in GD
on 31.05.2009 at 20.10 hours in GD no.33
in his handwriting and further also prepared
the carbon copy of the GD and proved the
same as Ex-9 and Ex-10.

(20) PW 6- Basantlal in his
examination before the trial Court has
stated that he was posted as the Circle
Officer in June, 2009 in Dhaurehra and he
was entrusted with the investigation of the
case on 01.06.2009 and he had started the
investigation on the very same day. He
prepared the site plan of the place of
occurrence and proved the same as Ex- Ka
11 and recorded the statement of the
Panchayatnama witnesses, namely, Om
Prakash, Rampal, Ram Kishore and also
recorded statement of Constable Shivdeen
Verma, Naib Tehsildar Rakesh Kumar
Maurya and Dr. H.B. Singh. On 02.06.2009
Station House Officer, Pramod Kumar
Singh arrested Mahesh on his directions
and recorded his statement.

(21) On 03.06.2009 he submitted the
charge sheet bearing Charge Sheet no. 124
against accused- Mahesh in Case Crime
no.680 of 2009 under sections 498-A, 304B I.P.C. and 3⁄4 Dowry Prohibition Act,
Police
Station
Phool
Behar,
District
Lakhimpur Kheri and he signed and proved
the same as Ex- Ka 12. He in his cross
examination has stated that at the place of
occurrence he recorded statement of
accused- Mahesh, the informant of the
case, witnesses- Subhash, Rajkaran, Smt.
Jaydevi, witnesses of Panchayatnama,
namely, Omprakash, Rampal, Ram Kishor,
neighbours of Mahesh, namely, Sehej Ram,
Ramavtar, Ramakant and Alijan.

(22) He further deposed that family
members of accused- Mahesh, were not
present at his house and he did not know
whether the in-laws of the deceased
accompanied her to Lakhimpur Kheri
Hospital or not. He further deposed that on
02.06.2009 accused- Mahesh was arrested
by Station House Officer but was not aware
916 INDIAN LAW REPORTS ALLAHABAD SERIES
of the fact that the deceased was done to
death in an incident of dacoity or not.

(23) The defense has given a
suggestion to the witnesses that the murder
of the deceased was committed in the
incident of dacoity but there was no
evidence produced by the defense in this
regard.

(24) The trial Court after examining
the prosecution and defense evidence
acquitted the appellant- Mahesh for offence
under Section 304-B I.P.C., but convicted
and sentenced him under Section 498-A,
302 I.P.C. and 3⁄4 Dowry Prohibition Act by
the
impugned
judgment
and
order.
Aggrieved by the same the appellant has
preferred the instant Appeal.

(25) Heard Shri Manish Bajpai,
learned counsel for the appellant and Shri
Dhananjay Kumar Singh, learned AGA
appearing for the State of U.P. and perused
the impugned judgment and order of the
trial Court along-with lower Court record.

(26) It has been argued by learned
counsel for the appellant that the deceased,
who was the wife of the appellant, was
done to death in a dacoity which took place
in his absence as he had gone with his
mother to his maternal grandmother's
house. He further argued that as soon as he
came to know about the incident he
informed the concerned Police Station
which
arrived
and
conducted
the
Panchayatnama /inquest proceedings on the
dead body of the deceased. He argued that
if the appellant had been responsible for the
offence in question for the murder of his
wife, then he would not have been present
at his house and would have fled away. He
further argued that so far as the demand of
dowry for which it is alleged that the
deceased was murdered, is absolutely a
false one as is evident from the statement
of PW 1, who is the brother of the
deceased,
namely,
Raj
Karan,
who
admitted the fact that the financial position
of the appellant was good as he had landed
property and in the said circumstances to
demand dowry from the deceased and her
family
members
is
absolutely
false,
frivolous and baseless and further on the
other hand, the financial position of the
family members of the deceased was not
such that any demand made by the
appellant could be met by PW 2. The
appellant informed about the death of his
wife to PW 2 which has been admitted by
him in his statement.

(27) The appellant along with his
mother accompanied the dead body of the
deceased to Lakhimpur Kheri where the
Post
Mortem
of
the
deceased
was
conducted. Thus, he submitted that the trial
Court committed error in convicting the
appellant under Section 302 I.P.C. for life
imprisonment while acquitting him under
Section 304-B I.P.C. as it did not find a
case of dowry death.

(28) Learned counsel for the appellant
further argued that statement of PW 1 and
PW 2 cannot be relied upon as they are
interested and partisan witnesses, being the
real brothers of the deceased.

(29) Learned counsel for the appellant
in support of his argument has further
relied upon judgment of Apex Court in
Harbans Lal vs. State of Punjab; (1996) 2
SCC 350 and argued that merely the
recovery of the dead body from the house
of the appellant is not sufficient to hold the
appellant guilty. It is not conclusive in
nature and is not compatible only with the
guilt
of
the
appellant
and
wholly
3 All. Mahesh Vs. State of U.P.
917
incompatible with his innocence. This
circumstance can only create suspicion
about the complicity of the appellant but
suspicion cannot be allowed to take the
place of proof.

(30) Learned AGA on the other hand
has opposed the argument of learned
counsel for the appellant and submitted that
he deceased was found dead in her
matrimonial home where the appellant was
also residing and she died an unnatural
death and from the Post Mortem report of
the deceased it is apparent that she received
as many as seven injuries on her person
which included contusion and lacerated
wounds and the cause of death as per Post
Mortem Report was coma as result of antemortem head injuries. It was further
submitted that the argument of learned
counsel for the appellant that the deceased
was done to death in a dacoity which was
committed in his house, has no legs to
stand as the appellant has not taken any
defense in his statement recorded under
Section 313 Cr.P.C. in the trial Court.
Moreover, no evidence has been adduced
by the appellant to show that any articles,
etc. were looted by the dacoits while
committing the murder of the deceased.

(31) So far as the conduct shown by
the
appellant
that
he
informed
the
informant about the incident on his phone
and further he remained present throughout
at the time of conducting the inquest
proceedings of the deceased on the dead
body of the deceased and accompanied
with his mother for Lakhimpur Kheri
where the post mortem of the deceased was
conducted, cannot be a ground for acquittal
as the appellant has failed to explain the
death of his wife who died in an unnatural
circumstances in his house and at the time
of incident the appellant was also found to
be at the place of occurrence.

(32) We have given a thoughtful
consideration to the submissions advanced
by learned counsel for the parties and
perused the impugned judgment and order
passed by the trial Court as well as lower
Court record.

(33) It is an admitted fact that the
deceased was the wife of the appellant and
she was found dead in an unnatural
circumstances in her matrimonial home
where the appellant was also living with
her.

(34) There has been a consistent
demand of dowry from the deceased by the
appellant of Rs.50,000/- as additional
dowry and for which she was being cruelly
tortured and harassed by the appellant. On
being assaulted by Mahesh she made a
complaint about this to her family members
time and again and also when she visited
her parental home in her younger brother's
marriage she told her family members
about the harassment being caused to her
by her husband for non-fulfillment of the
demand of additional dowry.

(35) The information about the death
of the deceased was received by PW 2 on
his mobile phone from a person residing in
Mahesh's village and also by Mahesh, on
which he went to the appellant's house and
found the deceased in a dead condition in
her room. PW 2 along with his family
members and other persons of the village
saw several injuries on the dead body of the
deceased which was also detected by
witnesses
when
the
inquest
report/
Panchayatnama of the dead body of
deceased was conducted in the presence of
918 INDIAN LAW REPORTS ALLAHABAD SERIES
PW 3, Rakesh Kumar Maurya, Naib
Tehsildar by the police.

(36) Learned counsel for the appellant
contended that the accused- Mahesh is not
at all responsible for the death of his wife
as the injuries which were found on the
dead body of the deceased, the same were
received by her in a dacoity in his house
when the appellant was not even present
there, i.e., at the time and place of
occurrence, as he had gone to his maternal
grandmother's house along with his mother.

(37) The aforesaid argument of
learned counsel for the accused-appellant is
not acceptable at all as the appellant has not
taken any such defense in his statement
recorded under Section 313 Cr.P.C. nor has
he produced any oral or documentary
evidence recording the same to prove that
the deceased was murdered in a dacoity
committed in his house. Moreover, no
articles, etc. were found looted by the
dacoits/ murderers from the house of the
appellant.

(38) So far as the second argument of
learned counsel for the appellant that he
had informed about the incident to the PW
2 and remained present throughout the
inquest proceedings and also accompanied
the dead body to Lakhimpur Kheri goes to
show that he is innocent, is also of no
consequences as the appellant is not being
able to discharge his burden in view of
Section 106 of the Evidence Act, 1872 as it
was his duty to explain the death of his
wife, who died an unnatural death in his
house and his presence there is also proved
from the statement of P.W. 2. From the
perusal of the ante-mortem injuries found
on the person of the deceased, it is apparent
that the deceased has received as many as
seven injuries on her person on different
parts of her body which includes head,
chest and abdomen and it cannot be said to
be self inflicted injuries and the said
injuries could be caused by some hard blunt
object.

(39) In Shambhu Nath Mehra v.
State of Ajmer; 1956 SCR 199, Hon'ble
Apex Court dealt with the interpretation of
Section 106 of the Evidence Act, 1872 and
held that the section is not intended to shift
the burden of proof (in respect of a crime)
on the accused but to take care of a
situation where a fact is known only to the
accused and it is well nigh impossible or
extremely difficult for the prosecution to
prove that fact. It was said:

"This [Section 101] lays down the
general rule that in a criminal case the
burden of proof is on the prosecution and
Section 106 is certainly not intended to
relieve it of that duty. On the contrary, it is
designed to meet certain exceptional cases
in which it would be impossible, or at any
rate disproportionately difficult, for the
prosecution to establish facts which are
"especially" within the knowledge of the
accused and which he could prove without
difficulty or inconvenience. The word
"especially" stresses that. It means facts
that are pre-eminently or exceptionally
within his knowledge. If the section were to
be interpreted otherwise, it would lead to
the very startling conclusion that in a
murder case the burden lies on the accused
to prove that he did not commit the murder
because who could know better than he
whether he did or did not."

(40) The applicability of Section 106
of the Evidence Act has been lucidly
explained by the Hon'ble Apex Court in
case of State of Rajasthan v. Kanshi Ram,
JT; 2006 (12) SCC 254.
3 All. Mahesh Vs. State of U.P.
919

"The provisions of Section 106 of
the Evidence Act are unambiguous and
categoric in laying down that when any fact
is especially within the knowledge of a
person, the burden of proving that fact is
upon him. Thus, if a person is last seen with
the deceased, he must offer an explanation
which appears to the Court to be probable
and satisfactory. If he does so he must be
held to have discharged his burden. Section
106 does not shift the burden of proof in a
criminal trial, which is always upon the
prosecution."

(41) Similarly in case of P. Mani vs.
State of Tamil Nadu; 2006 (3) SCC 161
Hon'ble Apex Court held thus:-

"We do not agree with the High
Court. In a criminal case, it was for the
prosecution to prove the involvement of an
accused beyond all reasonable doubt. It was
not a case where both, husband and wife,
were seen together inside a room but the
prosecution itself has brought out evidences
to the effect that the children who had been
witnessing television were asked to go out
by the deceased and then she bolted the
room from inside. As they saw smoke
coming out from the room, they rushed
towards the same and broke open the door.
Section 106 of the Evidence Act, to which
reference was made by the High Court in
the aforementioned situation, cannot be
said to have any application whatsoever."

(42) The cause of death in the opinion
of PW 4- Dr. H.B. Singh, who conducted
the Post Mortem is that the injuries which
were caused to the deceased were sufficient
in the ordinary course of nature to cause
death. From the evidence of PW 2 it is also
clear that the last rites of the deceased were
performed by PW 2 and his family
members and not by the appellant. The trial
Court has acquitted the appellant under
Section 304-B I.P.C. as it found during the
course of evidence that the marriage of the
appellant
with
the
deceased
was
solemnized beyond seven years ago and it
was not a case of dowry death but on the
alternate charge framed by the trial Court it
came to the conclusion from the evidence
on record that the deceased was cruelly
treated, harassed and tortured by the
appellant for additional dowry and for nonfulfillment of the said demand, she was
mercilessly
beaten
to
death
by
the
appellant. Hence, the trial Court convicted
the appellant under Section 302 I.P.C. for
life imprisonment along with offence under
section 498-A I.P.C. and 3⁄4 Dowry
Prohibition Act.

(43) The case law which has been
cited by learned counsel for the appellant in
Harbans Lal (supra) is support of his
argument is different from the facts and
circumstances of the case, as in the said
case the accused has categorically taken a
defense in his statement under Section 313
Cr.P.C. that on account of strained relations
with his wife, he used to sleep at the shop
and not in the house and that after he learnt
about the death of his wife at about 10/11
a.m. on 17.10.1981, he sent information to
the relations of his wife.

(44) In the present case the appellant
has not taken any such defense in his
statement under Section 313 Cr.P.C. and he
has only stated that the charge sheet which
has been submitted against him was wrong
one and the witnesses have falsely deposed
against him and implicated him on account
of enmity and he is innocent. Thus,
argument which has been taken by the
learned counsel for the appellant, that the
deceased was done to death in the house of
the appellant when the dacoity was
920 INDIAN LAW REPORTS ALLAHABAD SERIES
committed, there appears to be no basis and
has no legs to stand.

(45) Moreover, a casual suggestion
about the said fact has been given to PW 2
by the defense regarding the presence of
the appellant at the place of occurrence and
that some unknown miscreants have
entered in the house of the appellant and
the deceased has identified them and she
was
killed
which
has
also
been
categorically denied by PW 2- Awdhesh
Kumar, who is the informant of the case
and brother of the deceased.

(46) Thus, the case law relied upon by
learned counsel for the appellant referred
above is of no help to him as it is
distinguishable
from
the
facts
and
circumstances of the present case.

(47) In view of the foregoing
discussions we do not find any illegality or
infirmity in recording the finding of the
conviction and sentence recorded by the
trial Court against the accused- Mahesh for
the offences under section 498-A, 302 and
3⁄4 Dowry Prohibition Act, hence the
impugned judgment and order passed by
the trial court is hereby upheld.

(48) The Appeal lacks merit and is
accordingly dismissed.

(49) The appellant is stated to be in
jail. He shall serve out the sentence as
awarded by the trial court.

(50) Office is directed to transmit the
lower Court Record along with certified
copy of this order to the Court concerned
forthwith for necessary information and
follow up action, if any required.
----------
(2021)03ILR A920
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.03.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.
Criminal Appeal No. 507 of 2010
with
Criminal Appeal No. 859 of 2010

Rajan Yadav ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Subodh Kumar Shukla, Amrit Kumar Tiwari,
Maya
Ram
Yadav,
Santosh
Kumar
Srivastava

Counsel for the Opposite Party:
Government Advocate

(A) Criminal Law - Appeal against
conviction - Indian Penal Code, 1860 -
Section 323/34 , 364 , 302/34 , 201 - U.P.
Gangster
and
Anti
Social
Activities
(Prevention) Act, 1986 - Section 3(1) -
Arms Act, 1959 - Section 3/25 - The Code
of criminal procedure, 1973 - Section 161,
313 - motive - circumstantial evidence -
Confessional statement - last seen theory
- evidence of last seen of PW1 - victim
abducted and taken away by the two
appellants - dead body found after 9 days
of the incident by PW1 - his belief that
victim
was
done
to
death
by
the
appellants - same cannot be a reliable
piece of evidence as there is no proximity
between the point when the accused
appellants
and
deceased
were
seen
together and when the deceased was
found dead. (Para -106)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 27 - How much of
information recieved from accused may
be proved - recovery made at the pointing
out of the appellant cannot be admissible
under Section 27 of the Evidence Act -