# Mohit Kumar (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-07
- **Case number:** Criminal Appeal No. 7380 of 2019
- **Bench:** Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-kumar-in-jail-v-state-of-u-p-46195
- **Pages:** 17

## Headnote

A. Criminal Law - Dowry Death - Indian
Penal Code, 1860 - Section 304B
-
Conviction - conviction u/s 304-B I.P.C.
cannot be made unless all of the ingredients
of Section 304-B I.P.C are satisfied even
though some of the ingredients are fulfilled
- Ingredients - death of woman by burns or
bodily injury or otherwise than under
normal circumstances; within 7 years of her
marriage; cruelty or harassment by husband
or his relatives; for or in connection with,
the demand of dowry soon before her death
(Para 28)

B. Criminal Law - Dowry Death - Indian
Penal Code, 1860 - Section 304B - 'death
occurring
otherwise
than
in
normal
circumstances' - Prosecution has to rule out
the possibility of a natural or accidental
death so as to bring it within the purview of
the 'death occurring otherwise than in
normal circumstances' (Para 36)

C. Criminal Law - Dowry Prohibition Act,
1961 - Section 2 - Dowry - 'dowry' means
any property or valuable security given or
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
agreed to be given either directly or
indirectly - court did not accepted the
argument that there has to be an
agreement for dowry at the time of the
marriage in view of the words "agreed to
be given" occurring - Section 304B I.P.C.
makes "demand of dowry" i.e. demand of
property
or
valuable
security
itself
punishable - Demand neither conceives
nor would conceive of any agreement - If
for convicting any offender, agreement for
dowry is to be proved; hardly any
offenders would come under the clutches
of law - interpretation that conviction can
only be, if there is agreement for dowry, is
misconceived - It is not always necessary
that there be any agreement for dowry
(Para 33)

D. Criminal Law - Dowry Death - Indian
Penal Code,1860 - Section 304B -
Evidence Act,1872 - Section 113B -
"soon before her death" - Prosecution is
obliged to show that soon before the
death there was cruelty or harassment -
proximity test - expression 'soon before'
normally imply that the interval should
not be much between the concerned
cruelty or harassment and the death in
question- there must be existence of a
proximate and live-link between the
effects
of
cruelty
based
on
dowry
demand and the concerned death - If
alleged incident of cruelty is remote in
time and has become stale enough not
be disturb mental equilibrium of the
woman concerned, it would be of no
consequence (Para 36)

E. Criminal Law - Evidence Act, 1872 -
Section 154 - Testimony of Hostile
witness - Hostile witness testimony of
the hostile witness cannot be rejected
totally as his evidence is not washed off
from the record and the parties can take
support of such evidence to the extent it
is favourable to them - however it does
not mean that a conviction can be
recorded on solitary statement of a
witness who has disowned his testimony
of examination-in-chief and has turned
hostile during the beginning of the
cross-examination
-
though
the
credibility of a hostile witness cannot be

## Text

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10 All. Mohit Kumar Vs. State of U.P.
1043

27. Even if the victim Shivaji is not
recovered but in view of the strong
circumstantial evidence of which chain
in itself complete the conviction of
appellant under Section 364 of I.P.C is
proper.

28. Hon'ble Apex Court in Ramji Rai
and others Vs. State of Bihar, 2007 (57)
ACC pg. 385 SC, held:

"Now it is the trite law that the
corpus
delicti
need
not be
proved.
Discovery of the dead body is a rule of
caution and not of law. In event there exists
strong
circumstantial
evidence,
the
judgment of conviction can be recorded
even in absence of dead body under Section
364 and 302 of I.P.C".

29. Therefore, in view of the over all
assessment and re-appreciation of the
evidence on record, it is found that the
prosecution had proved its case beyond
reasonable doubt. The impugned judgment
of conviction and sentence passed by the
court below does not bear any infirmity and
needs
no
interference.
Accordingly,
criminal appeal deserves to be dismissed.

30. Accordingly, Criminal Appeal is
dismissed. Judgment and order dated
20.07.2019 passed by the Additional
Sessions Judge/Fast Track Court, Sambhal
at Chandausi in Sessions Trial No. 395 of
2017 (State of U.P Vs. Raju) is hereby
affirmed. The appellant is in jail. He is
directed to serve the remaining sentence as
has been awarded by the trial court.

31. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2021)10ILR A1043
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2021

BEFORE

THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 7380 of 2019
with
Criminal Appeal No. 6840 of 2019

Mohit Kumar ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Jagmohan Singh, Sri Lavkush Kumar
Bhatt

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Dowry Death - Indian
Penal Code, 1860 - Section 304B
-
Conviction - conviction u/s 304-B I.P.C.
cannot be made unless all of the ingredients
of Section 304-B I.P.C are satisfied even
though some of the ingredients are fulfilled
- Ingredients - death of woman by burns or
bodily injury or otherwise than under
normal circumstances; within 7 years of her
marriage; cruelty or harassment by husband
or his relatives; for or in connection with,
the demand of dowry soon before her death
(Para 28)

B. Criminal Law - Dowry Death - Indian
Penal Code, 1860 - Section 304B - 'death
occurring
otherwise
than
in
normal
circumstances' - Prosecution has to rule out
the possibility of a natural or accidental
death so as to bring it within the purview of
the 'death occurring otherwise than in
normal circumstances' (Para 36)

C. Criminal Law - Dowry Prohibition Act,
1961 - Section 2 - Dowry - 'dowry' means
any property or valuable security given or
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
agreed to be given either directly or
indirectly - court did not accepted the
argument that there has to be an
agreement for dowry at the time of the
marriage in view of the words "agreed to
be given" occurring - Section 304B I.P.C.
makes "demand of dowry" i.e. demand of
property
or
valuable
security
itself
punishable - Demand neither conceives
nor would conceive of any agreement - If
for convicting any offender, agreement for
dowry is to be proved; hardly any
offenders would come under the clutches
of law - interpretation that conviction can
only be, if there is agreement for dowry, is
misconceived - It is not always necessary
that there be any agreement for dowry
(Para 33)

D. Criminal Law - Dowry Death - Indian
Penal Code,1860 - Section 304B -
Evidence Act,1872 - Section 113B -
"soon before her death" - Prosecution is
obliged to show that soon before the
death there was cruelty or harassment -
proximity test - expression 'soon before'
normally imply that the interval should
not be much between the concerned
cruelty or harassment and the death in
question- there must be existence of a
proximate and live-link between the
effects
of
cruelty
based
on
dowry
demand and the concerned death - If
alleged incident of cruelty is remote in
time and has become stale enough not
be disturb mental equilibrium of the
woman concerned, it would be of no
consequence (Para 36)

E. Criminal Law - Evidence Act, 1872 -
Section 154 - Testimony of Hostile
witness - Hostile witness testimony of
the hostile witness cannot be rejected
totally as his evidence is not washed off
from the record and the parties can take
support of such evidence to the extent it
is favourable to them - however it does
not mean that a conviction can be
recorded on solitary statement of a
witness who has disowned his testimony
of examination-in-chief and has turned
hostile during the beginning of the
cross-examination
-
though
the
credibility of a hostile witness cannot be
discarded altogether, but this puts the
court on guard and cautions the court
against acceptance of such evidence
without
satisfactory
corroboration
-
where other reliable and trustworthy
evidence is available on record, the
same can be used in support thereof
(Para 44, 46, 47)

Informant daughter set her ablaze by pouring
kerosene oil, being aggrieved with daily
torture for chain and other items not being
given in the marriage, in the presence of all
family members - Father/informant supported
the prosecution version in his examination-inchief but afterwards he turned hostile and
retracted from his testimony already deposed
before the trial court - Held - evidence of
father/informant as made during examinationin-chief is shaky, unreliable and not worthy of
credence - Other witnesses do not supported
the
prosecution
version
-
prosecution
miserably failed to prove the charges against
the appellants under Section 304B, 498A
I.P.C. and 3⁄4 Dowry Prohibition Act -
conviction by trial court set aside. (Para 51)

Allowed. (E-5)

Cases Relied on :

1. Pawan Kumar & ors. Vs St. of Har., 1998 (3)
SCC 309

2. Prithi Vs St. of Har. 2011 ACC (72) 398

3. Ramesh Vs St.of Har. (2017) 1 SCC 529

4. Mahender Chawla Vs U.O.I. 2018 SCC Online 2679

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

1. These appeals have been preferred
against the judgment and order dated
28.09.2019 passed in S.T. No.27 of 2016
(State of U.P. vs. Jai Jai Ram and 2 others)
arising out of Crime No.255 of 2015, under
Sections 498-A, 304-B I.P.C. & 3⁄4 D.P.
Act, Police Station Jahanganj, District
10 All. Mohit Kumar Vs. State of U.P.
1045
Farrukhabad by which appellants Jai Jai
Ram and Smt. Bhagyawati have been
convicted and sentenced under Section
304-B for a period of 7 years rigorous
imprisonment and appellant Mohit Kumar
for a period of 10 years rigorous
imprisonment, under Section 498-A I.P.C.
for
a
period
of
1
year
rigorous
imprisonment with fine of Rs.5000/- for
each and under Section 4 D.P. Act for a
period of 6 months rigorous imprisonment
with fine of Rs.1000 for each.

2. Facts in brief are that informant
Ramprasad is resident of village Nagariya
Jawahar, Police Station Rajepur, District
Farrukhabad and his daughter Rinky @
Neelam was married to Mohit Kumar in
May, 2013 who is resident of Jahanganj.
After some days of marriage, the in-laws
began to torture her daughter for chain and
other items not being given in the marriage.
They took off the jewelry from her which
was given by her parents. On 24th July,
Mohit Kumar sent S.M.S. which meant that
he did not need her. Her father Ramprasad
came and took her daughter. On 17.08.2015
her mother-in-law levelled the charge of
theft of Rs.2500/- on her and said, give the
money otherwise result will be bad.
Thereafter, his daughter being aggrieved
with daily torture poured kerosene oil on
herself and set her ablaze in the presence of
all family members but no one tried to save
his daughter. If her mother-in-law, fatherin-law, sister-in-law and husband had tried
to save her, she would have survived. On
21.08.2015 tehrir as aforesaid was given by
informant at the Police Station Jahanganj
where case was registered as Crime No.255
of 2015, under Sections 498-A, 304-B
I.P.C. and 3⁄4 D.P. Act. The detail of which
was entered into G.D. as Report No.24.

3. On the date of incident i.e.
17.08.2015 at about 17:30 Rinky @
Neelam
died
in
the
hospital
and
information thereof was given to police on
the basis of which H.C.P. Rajendra Prasad
proceeded to the hospital at Farrukhabad
for conducting inquest of deceased where
Rajendra
Prasad
Chaudhari,
Tehsildar
Sadar, Farrukhabad, constable Satyapal and
home guard Pawanesh Pratap were present.
Inquest of deceased Smt. Rinky @ Neelam
was
conducted
by
Tehsildar,
R.P.
Chaudhari in presence of the witnesses.
Thereafter, dead body was got sealed,
necessary papers were prepared with the
inquest report and dead body was sent for
post-morem
to
District
Hospital,
Farrukhabad by constable Satyapal Singh
and home guard Pawnesh Pratap Singh.

4. On 18.08.2015 at about 3:00 P.M.
Dr. Brajesh Singh and B.S. Verma,
Medical Officer, Fatehgarh conducted
autopsy of the dead body of the deceased
Smt. Rinky @ Neelam and prepared postmortem report Ex Ka- 6. Details of which
are as under :-

External Examination

(I) age 23 years.

(ii) Average built body, eyes
closed, mouth partly open

(iii) Dressing ointment all over
the body at places, rigor mortis present
both exremities, body kept in ice, cut open
mark on medial side left ankle.

Antemortem Injuries

(I) Superficial to deep burn all
over the body except head, lower part of
both legs, head and sole skin black and
peeled off at places, subcutaneous tissue
present.

Internal Examination
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Head, Skull and Membrane -
NAD

(ii) Brain - congested

(iii) Oribal, Nasal and Aural
Cavities Findings - NAD

(iv)
Neck,
Mouth,
Tongue
Pharynx, Thyroid, Larynx and Vocal Cords
-

NAD

(v)Chest, Ribs and Chest Wall -
NAD

(vi)Oesophagus,
Trachea
and
Bronchial Tree- NAD (vii) Pleaura,

Pleaural Cavities and Lung Findings -
Congested

(viii) Pericardium and Pericardial
Sac. - NAD

(ix) Heart findings and weight -
Both Chambers Full

(x) Large Blood Vessels - NAD

(xi) Abdomen and Abdominal
Wall - Opened

(xii) Peritoneum and Peritonial
cavity - NAD

(xiii) Stomach - liquid material

(xiv) Small and large intestine,
Liver - NAD

(xv) Spleen - Congested

(xvi) Pancreas - NAD

(xvii) Kidney - Congested

(xviii) Pelvic Cavity and Pelvic
Bones - NAD

(xix) Uterus - Non Gravid

(xx) Spinal Cord - Not opened

In the opinion of the doctor cause
of death is shock as a result of

antemortem burn.

5. Investigation of the case was
handed over to Circle Officer, Lekhraj
Singh who recorded the statements of
witnesses, made spot inspection, prepared
site-plan
and
collected
the
relevant
evidence. On the basis of material collected
during investigation prima facie case was
found to be made out against the appellants
Jai Jai Ram, Smt. Bhagyawati and Mohit
Kumar so charge-sheet was submitted
under Sections 498-A, 304-B and 3⁄4 D.P.
Act to the court concerned. The court
concerned took cognizance of the offences
and after providing copies of prosecution
papers to the appellants in compliance of
Section 207 Cr.P.C., case was committed to
the court of session for trial.

6. The court of session framed
charges
against the appellants under
Section 498-A, 304-B I.P.C. & Section 3⁄4
D.P. Act and in alternate under Section 302
read with Section 34 I.P.C. on the basis of
material on record. Charge was read over
and explained to the appellants from which
they denied and did not plead guilty but
claimed for trial.

7. The prosecution adduced evidence
in support of its case, PW-1 Ram Prasad
informant (father of the deceased), PW-2
Smt. Rekha Saxena (mother of the
deceased), PW-3 Mukesh Singh @ Umesh
Singh neighbour of informant and witness
of inquest, PW-4 Rajeev Kumar neighbour
of informant, PW-5 Motiram witness of
inquest, PW-6 Nem Singh neighbour of
informant,
PW-7
Rajendra
Prasad
Chaudhary,
Tehsildar
who
conducted
inquest of the deceased, PW-8 Rajat Kumar
borther of the deceased, PW-9 Dr. Brajesh
Singh, medical officer who conducted
autopsy of the deceased, PW-10 constable
Smt. Meena Singh who prepared check
F.I.R. and PW-11 Lekhraj Singh, Circle
Officer who investigated the case, have
been examined.

8. After prosecution closed its
evidence, statements of appellants under
Section 313 were recorded by the trial court
in which they admitted the marriage of
deceased on 07.05.2013 with appellant
10 All. Mohit Kumar Vs. State of U.P.
1047
Mohit Kumar and her death on 17.08.2015.
They stated the story of demand of dowry,
torture relating thereto and setting her
ablaze by pouring kerosene oil in their
house, to be false. The deposition of PW-2
Smt. Rekha Saxena, PW-3 Mukesh Singh,
PW-4 Rajeev Kumar, PW-5 Motiram, PW6 Nem Singh neighbour of informant, PW8 Rajat Kumar have been said to be correct.
They stated about the statement of PW-7
Rajendra Prasad Chaudhari and PW-9 Dr.
Brajesh Singh that they did not prepare the
papers in the right way. They also stated
about the PW-10 constable Smt. Meena
Singh that she prepared wrong F.I.R. About
PW-13 Investigating Officer, they said that
wrong site plan and charge-sheet was
prepared and submitted, thereafter, case
was instituted falsely. Appellant Smt.
Bhagyawati said that her daughter-in-law
and son Mohit Kumar used to live in
separate room of the same house. Neither
she made any additional demand of dowry
from her daughter-in-law nor subjected her
to torture and further stated that she was
innocent. Appellant Mohit Kumar also
made similar statements and stated that he
never made demand of additional dowry
from
her
wife
and
kept
her
very
affectionately but his wife was ill-tempered
and in his absence she committed suicide
by setting her ablaze. At the time of the
occurrence he was working in a private
company at Shahjahanpur. Appellant Jai Jai
Ram has also made similar statement to
that
of
appellant
Smt.
Bhagyawati.
Opportunity of defense was given to the
appellants and they examined DW-1
Umakant and DW-2 Amar Singh.

9. After conclusion of evidence on
both the sides, learned trial court heard the
arguments made on behalf of the parties,
considered the evidence on record and
passed the judgment in question by which it
held appellants guilty and sentenced them
as aforesaid. Being aggrieved with this
judgment and order they preferred this
appeal.

10. Heard Sri Lavkush Kumar Bhatt,
learned counsel for the appellants as well as
learned A.G.A. and perused the record.

11. Learned counsel for the appellants
submitted that in this case no additional
demand of dowry was made by the
appellants from the deceased or from her
parents. She was ill-tempered lady. On
account of being prevented from studying
further, she committed suicide by setting
her ablaze. Appellants never made any kind
of harassment or torture to her in relation to
the demand of dowry or otherwise. They
kept her happily. After she set her ablaze,
they took her to the District Hospital for
treatment and informed about it to her
parents who came there but unfortunately
she could not be saved and succumbed to
burn injuries on the same day. Information
was given to the appellants by the hospital
and inquest was conducted in presence of
her father and cremation was also done in
his presence. After three days of incident
this F.I.R. was lodged by the father of the
deceased under misconception which he
has admitted during his cross-examination
before the trial court. He has categorically
stated that there was no additional demand
of dowry made by her in-laws and husband
of the deceased but she committed suicide
when he himself prevented her from higher
studies. Other witnesses adduced on behalf
of the prosecution have also not supported
the
prosecution
version.
They
have
categorically denied the fact of demand of
dowry and harassment by the in-laws of the
deceased and said that deceased herself
committed suicide by setting her ablaze
under the impression of her own ill-
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
temperament.
No
any
injury
except
superficial burn was found on the person of
the
deceased
which
infers
that
no
harassment or injury was caused to the
deceased prior to her death. Learned trial
court has not considered all these facts but
convicted and sentenced the appellants
illegally
without
making
proper
appreciation
of
evidence
on
record
especially
making
reliance
on
the
statements made during examination-inchief by PW-1/informant turning hostile
later on and also considering the fact that
deceased died in her sasural within 7 years
of her marriage, therefore, inmates of her in
sasural are responsible for that. So far as
conviction of the appellants under Section
304-B I.P.C. is concerned, it cannot be
made unless all of the ingredients of
Section 304-B I.P.C are satisfied even
though some of the ingredients are fulfilled.
In this particular case, it is true that
deceased died of burn injuries which is
otherwise than under normal circumstances
and within 7 years of her marriage but
other two ingredients required to be proved
for conviction under Section 304-B I.P.C.
i.e. harassment by husband or his relatives
for, or in connection with, the demand of
dowry soon before her death are absent. In
this way, conviction under Section 304-B
I.P.C. cannot be said to be legal. Likewise,
in absence of proof of demand of dowry
and harassment, conviction under Section
498-A I.P.C. and Section 3⁄4 D.P. Act can
also not be held. The judgment and order
passed by learned trial court being illegal
and perverse requires to be set aside and
appeal is liable to be allowed.

12.

Learned
A.G.A.
opposed
vehemently the submissions advanced by
learned counsel for the appellants and
urged that in this case informant/PW-1 is
father of deceased who lodged the F.I.R.
stating
the
circumstances
in
which
deceased died. All the ingredients required
for constitution of offence under Section
304-B, 498-A I.P.C. and Section 3⁄4 D.P.
Act are fulfilled. The deceased died of burn
injuries within 7 years of her marriage.
Demand
of
additional
dowry
and
harassment was also made by the husband
and his relatives soon before her death and
this fact stands proved with the testimony
of PW-1 who is father of the deceased.
Though other witnesses i.e. mother and
brother of deceased turned hostile and they
did not support the prosecution case but
they were owned by the appellants either
owing to their pressure, threat or any kind
of allurement on their part. PW-1 supported
the prosecution version in his examinationin-chief but afterwards he turned hostile
and retracted from his testimony already
deposed before the learned trial court. It
was the result of undue influence of the
appellants on him. After considering all
these facts, learned trial court has passed
the judgment in question and convicted the
appellants which is just, proper and lawful.
There is no perversity in the judgment but
appeal is forceless and liable to be
dismissed.

13. Before proceeding to deal with the
contentions raised by learned counsel for
the appellant, it will be convenient to take
note of the evidence as adduced by the
prosecution.

14. PW-1 Ram Prasad is father of the
deceased who has stated that marriage of
her daughter took place on 13.05.2013 with
Mohit Kumar resident of village Nagariya
Police
Station
Jahanganj,
District
Farrukhabad. Jai Jai Ram, Smt. Bhagyawati
and Mohini are father, mother and sister of
Mohit Kumar. He gave sufficient dowry
but the in-laws of her daughter were not
10 All. Mohit Kumar Vs. State of U.P.
1049
satisfied with it. They were insisting on
demand of golden chain from the time of
marriage for which he promised to arrange
later on but he could not give them golden
chain. They kept on insisting the demand of
golden chain with his daughter (the
deceased) whenever she came to her
parents house, she narrated it all to them
and also about the ill-treatment by the
inmates. On 17.08.2015 he was informed
that his daughter has died of burning.
Accused persons Jai Jai Ram, Smt.
Bhagyawati, Mohit Kumar and Mohini
used to make harassment to her for dowry.
He has also proved the tehrir given by him
in his hand writing and signature as Exibit
Ka-1. He has also proved the invitation
card as material Exibit Ka-1. He has further
stated that he was witness in inquest
proceedings and in his cross-examination
he has stated that he has not seen the
incident that took place with his daughter.
He has not made any complaint or
proceeding against the husband or in-laws
of the deceased. He was in relation with the
father of the Mohit Kumar prior to his
marriage and known to them very well. His
sarhu Ram Naresh and his brother-in-law
Ram Niwas were mediator in the marriage.
Before marriage they told him that family
of Mohit Kumar was good and I should
marry and as a result marriage was
performed in good manner. His daughter
lived in her in-laws house near about three
and a half month and she died on
17.08.2015. He was not present there at the
time of her death. Ram Niwas was at
Panipat and he (informant) was at Aligarh.
The information about the incident was
given to him by Ram Niwas by mobile at
about 10:00 A.M. on 17.08.2015. At the
time of marriage age of the deceased was
about 21 years and after 2 years of
marriage she died. Marriage was performed
in cheerful atmosphere. After marriage his
daughter came to his house 3-4 times. He
has further stated that in the marriage his
son-in-law Mohit Kumar, his father Jai Jai
Ram or any other person did not make any
demand of dowry. No demand was made
from his wife Smt. Rekha. His daughter
died of burning. Unfortunately the fire
broke in the kitchen at the time of cooking
food. She was taken to R.M.L. Hospital,
Farrukhabad for treatment by his son-inlaw Mohit Kumar and his father Jai Jai
Ram but she could not be saved. His sonin-law Mohit Kumar informed him on
telephone that Rinky @ Neelam has burnt
and they are to reach there at once. When
they reached R.M.L. Hospital, Farrukhabad
they saw the dead body of Rinky @
Neelam. Police sealed the dead body in his
presence and sent it for post-mortem. His
daughter
committed
suicide
or
unfortunately she was burnt but he told it to
be true that in Tehrir Exibit Ka-1 he has
mentioned that being aggrieved by torture
his daughter set her ablaze by pouring
kerosene oil. He got it written on the paper
that no one set her at fire. Rinky @ Neelam
was ill-tempered and used to become angry
on trivial matters. She used to give up
eating and also strike with hands and fists
on the wall and on the floor. She passed
B.A. And was insisting to complete M.A.
He and his wife Rekha prevented her from
further study thereafter prior to 2 days of
this incident, Rinky @ Neelam threatened
them if she had been prevented from
further study she would die. When they
went to her sasural to participate in a birth
day programme he and his wife convinced
her that it would not be good to study
further on account of this she committed
suicide.

15. PW-2 is Smt. Rekha Saxena
mother of the deceased who has stated that
Rinky @ Neelam was her daughter. She
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
was married to Mohit Kumar. They gave
sufficient dowry in the marriage and it was
performed
cheerfully.
Her
son-in-law
Mohit Kumar, his father Jai Jai Ram and
mother Smt. Bhagyawati did not make any
demand of dowry. They never ill-treated
her daughter. Her daughter Rinky @
Neelam was happy in her sasural. She
committed suicide by setting her at fire.
Mohit Kumar and his parents were not
responsible for her death. This witness was
declared hostile and cross-examination was
made by learned A.D.G.C. in which she
stated that death of Rinky @ Neelam took
place in her sasural. She went there on the
information of her death, she was informed
that Rinky @ Neelam was taken to R.M.L.
Hopsital, Farrukhabad for treatment by her
husband. Hence, she reached to the hospital
where Rinky @ Neelam was unconscious.
Rinky @ Neelam was admitted into
hospital in the morning and afterwards she
died. Information was given to her by sonin-law Mohit Kumar on mobile phone.
Son-in-law Mohit Kumar did not make
demand of golden chain. Police did not
make query with her. She has also denied
the statement as recorded by Investigating
Officer u/s 161 Cr.P.C. and said that she
did not make such statement before any
police personnel, how this was written she
could not explain. She has denied the
suggestion that in relation to the demand of
dowry accused persons used to torture
deceased physically and mentally as a
result she committed suicide by setting her
at fire. She has also denied the suggestion
about compromise after taking money from
the
accused
persons.
During
crossexamination made on behalf of accused
persons, she has stated that when she
reached R.M.L. Hospital, Farrukhabad,
Mohit Kumar, his father Jai Jai Ram and
mother Bhagyawati met her. They were
making arrangements of treatment of the
deceased. At the time of last rites of
deceased they were present at Ghatiya Ghat
on the bank of river Ganges. Her daughter
committed suicide on account of being illtempered, having no issue she was tensed
and also remained disturbed. Owing to
these factors she committed suicide. Mohit
Kumar, Jai Jai Ram and Bhagyawati are
not responsible for death of her daughter
and they are innocent.

16. PW-3 Mukesh Singh @ Umesh
Singh is neighbour of informant. He has
stated that Rinky @ Neelam daughter of his
neighbour Ram Prasad was married to
Mohit Kumar. On receiving information of
her death he also reached to R.M.L.
Hospital, Farrukhabad. In his presence
Tehsildar examined the dead body and he
made his signature on the inquest report.
Dead body was sealed and sent for postmortem. Rinky @ Neelam used to go his
house but she never told him that her inlaws made ill-treatment with her in relation
to demand of dowry. This witness was also
declared hostile and cross-examination was
made by learned prosecutor. During crossexamination he has denied the statement
recorded by Investigating Officer during
investigation under Section 161 Cr.P.C. He
also denied the suggestion that informant
entered into compromise with accused Jai
Jai Ram by taking money. During crossexamination by defence he has stated that
Rinky @ Neelam went to his house and
told his wife Suman that her in-laws were
very good they keep her affectionately.
Whenever he went to her sasural with her
father Ram Prasad the in-laws always
respected them and appreciated Rinky @
Neelam.

17. PW-4 Rajiv Kumar is also
neighbour of informant Ram Prasad. He
has stated that Rinky @ Neelam died of
10 All. Mohit Kumar Vs. State of U.P.
1051
burning two and a half years ago.
Unfortunately at the time of cooking in the
kitchen, it caught fire. He heard this fact
from the villagers and Ram Prasad has also
told him. He does not know the cause of
death. Deceased never told him about the
ill-treatment in relation to demand of
dowry by her in-laws. This witness was
also declared hostile and cross-examination
was made by learned prosecutor in which
he denied the statement recorded u/s 161
Cr.P.C. by Investigating Officer during
investigation.
He
also
denied
the
suggestion about compromise between
accused and the informant. During crossexamination by defense he has stated that
Rinky @ Neelam was happy in her sasural,
they kept her with love and affection.

18. PW-5 Motiram is also resident of
village of the informant. He has stated that
on receiving information of death of Rinky
@ Neelam he went to R.M.L. Hospital,
Farrukhabad where police sealed her dead
body and sent it for post-mortem. In his
presence proceedings of inquest were
conducted. Rinky @ Neelam never told
him about ill-treatment made by her inlaws in relation to demand of dowry.
During cross-examination made by learned
A.D.G.C. he has denied the statement as
recorded u/s 161 Cr.P.C. by Investigating
Officer.

19. PW-6 Nem Singh has also stated
that deceased Rinky @ Neelam never told
him or members of his family about the illtreatment made by her in-laws in relation to
demand
of
dowry.
During
crossexamination made by learned prosecutor he
has admitted the marriage of Rinky @
Neelam in year 2013 and also told that her
death was caused due to burning but he
could not tell whether she committed
suicide or her death was caused. He has
denied the statement made by him before
the Investigating Officer. During crossexamination by defense he has told that
Rinky @ Neelam was died of accidental
burn injuries. Her in-laws kept her happily.

20.

PW-7
Rajendra
Prasad
Chaudhary, Tehsildar has said that at the
information of S.H.O., Police Station
Jahanganj,
he
conducted
inquest
of
deceased Rinky @ Neelam w/o Mohit
Kumar at 5:30 P.M. on 17.08.2015. He
proved the inquest report as Exibit Ka-2 in
his writing and signature. He has also
proved other papers prepared at the time of
inquest in his writing and signature as
Exibit Ka-3, 4 & 5. During crossexamination by defence he has stated that
nobody showed him any paper in relation
to the cause of death of deceased. The
cause of death of deceased appeared to be
by burn as per information of panchan.

21. PW-8 Rajat Kumar is brother of
deceased Rinky @ Neelam. He has stated
that she was married to Mohit Kumar on
13.05.2013 by his parents. They gave
sufficient dowry according to their status.
Mohit Kumar and his parents were satisfied
with his sister. They did not torture her for
such
demand.
On
17.08.2015
when
incident took place he was not at his home.
Later on his father told him that Rinky @
Neelam committed suicide by setting her at
fire. This witness was also declared hostile
and
was
cross-examined
by
learned
prosecutor in which he has stated that
accused persons never demanded additional
dowry, golden chain and other domestic
items. His sister never told him anything in
this regard. Mohit Kumar did not send
s.m.s. to him that he would not keep his
sister Rinky @ Neelam unless his demand
would be fulfilled. At the time of incident
he was out at Gola Gokaran Nath after
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
return he came to know that Rinky @
Neelam has committed suicide by setting
her at fire. This witness has denied the
statement recorded u/s 161 Cr.P.C. by
Investigating
Officer.
During
crossexamination made by learned prosecutor he
has stated that his sister deceased Rinky @
Neelam never made complaint against her
in-laws in relation to demand of dowry and
ill-treatment before the incident took place.
His inmates also did not tell him anything
in this regard.

22.

PW-9
Dr.
Brajesh
Singh
conducted post-mortem of the deceased
Rinky @ Neelam on 17.08.2015 and
opined that cause of death was shock as a
result of antemortem burn. He has also
proved the post-mortem report in his hand
writing and signature as Exibit Ka-6.
During cross-examination by defence he
has stated that except burn injuries there
was no any other antemortem injury on the
dead body of the deceased. There was no
any mark of external or internal injury on
her body.

23. PW-10 Constable Smt. Meena
Singh has stated that on 21.08.2015 she
lodged F.I.R. as Crime No.255/15, under
Section 498-A, 304-B & under Section 3⁄4
Dowry Prohibition Act, against Jai Jai
Ram, Smt. Bhagyawati, Mohini and Mohit
Kumar on the basis of written tehrir given
by informant Ram Prasad, the detail of
F.I.R. was entered into G.D. as report
no.24. She has proved G.D. as Exibit Ka-7
and F.I.R. as Exibit Ka-8.

24. PW-11 Lekhraj Singh, Circle
Officer who investigated the case has
proved the investigation and the papers
prepared by him. He proved site plan as
Exibit Ka-9 and charge-sheet as Exibit Ka10.

25. DW-1 Umakant has stated that on
17th, August daughter-in-law of Jai Jai
Ram set her at fire. Appellants Jai Jai Ram
and Smt. Bhagyawati both were in the
village school. Jai Jai Ram cooks food and
Smt.
Bhagyawati
is
sahayika
in
Anganwadi. Before one hour of the
incident they were going towards the
school and about one hour later incident
took place. He also went there. Other
residents of mohalla were also present there
who set off the fire. Thereafter, Jai Jai Ram
and his wife came on the spot and took the
deceased to the hospital by ambulance.

26. DW-2 Amar Singh has also made
similar statements.

27. Now the court is to deal with the
submissions made by learned counsel for
the appellants i.e. that the ingredients of
Section 498A, 304B I.P.C. and Section 3⁄4
D.P. Act have not been fulfilled; and the
learned trial court has convicted on the
uncorroborated testimony of PW-1 who
turned hostile and did not support the
prosecution case, hence the conviction by
learned trial court is bad in the eyes of law.

28. Before I proceed to evaluate the
evidence on record led by the prosecution
in support of charges framed against the
accused, it is necessary to examine the law
relating to 'dowry death'. The Hon'ble
Supreme Court has highlighted all the
aspects of law relating to 'dowry demand'
and 'dowry death' in recent case of Prem
Kanwar vs. State of Rajasthan, 2009(1) JT
197, para 6 of the report is as under:-

"6. In order to attract Section
304B I.P.C., the following ingredients are
to be satisfied:

(i) The death of a woman must
have been caused by burns or bodily injury
10 All. Mohit Kumar Vs. State of U.P.
1053
or
otherwise
that
under
normal
circumstances;

(ii) Such death must have been
occurred within 7 years of the marriage;

(iii) Soon before her death, the
woman must have been subjected to cruelty
or harassment by her husband or any
relative of her husband; and

(iv) Such cruelty or harassment
must be in connection with the demand of
dowry.

29. Section 304B and Section 498A
I.P.C. Reads as follows:-

"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."

30. "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 willful 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."

31. The term "dowry" has been
defined in Section 2 of the Dowry
Prohibition Act, 1961 (in short 'Dowry
Act') as under :-

"Section
2.
Definition
of
'dowry'- In this Act, 'dowry' means any
property or valuable security given or
agreed to be given either directly or
indirectly."

(a) by one party to a marriage
to the other party of the marriage; or

(b) by the parents of either party
to a marriage or by any other person, to
either party to the marriage or to any
other person, at or before or any time
after the marriage in connection with the
marriage of the said parties, but does not
include dowry or mehr in the case of
person whom the Muslim Personal Law
(Shariat) applies.

Explanation I- For the removal of
doubts, it is hereby declared that any
presents made at the time of a marriage to
either party to the marriage in the form of
cash, ornaments, clothes or other articles,
shall not be deemed to be dowry within the
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
meaning of this Section unless they are
made as consideration of the marriage of
the said parties.

Explanation II- The expression
'valuable security' has the same meaning in
Section 30 of the Indian Penal Code (45 of
1861)."

32. Explanation to Section 304B
refers to dowry" as having the same
meaning as in Section 2 of the Act', the
question "what is the periphery of the
dowry as defined therein? The argument is,
there has to be an agreement at the time of
the marriage in view of the words "agreed
to be given" occurring herein, and in the
absence of any such evidence it would not
constitute to be dowry. It is noticeable, as
this definition by amendment includes not
only the period before and at the marriage
but also the period subsequent to the
marriage. This position was highlighted in
Pawan Kumar and others vs. State of
Haryana, 1998 (3) SCC 309.

33. The offence alleged against the
accused is under Section 304B I.P.C. Which
makes "demand of dowry" itself punishable.
Demand
neither
conceives
nor
would
conceive of any agreement. If for convicting
any offender, agreement for dowry is to be
proved; hardly any offenders would come
under the clutches of law. When Section
304B refers to "demand of dowry", it refers
to the demand of property or valuable
security as referred to in the definition of
"dowry" under the Act. The argument that
there is no demand of dowry, in the present
case, has no force. In cases of dowry deaths
and suicides, circumstantial evidence plays
an important role and inferences can be
drawn on the basis of such evidence that
could be either direct on indirect. It is
significant that Section 4 of the Act, was also
amended by means of Act 63 of 1984, under
which it is an offence to demand dowry
directly or indirectly from the parents or other
relatives or guardian of a bride. The word
"agreement" referred to in Section 2 has to be
inferred on the facts and circumstances of
each case. The interpretation that the accused
seeks, that conviction can only be if there is
agreement for dowry, is misconceived. This
would be contrary to the mandate and object
of the Act. "Dowry" definition is to be
interpreted with the other provisions of the
Act including Section 3, which refers to
giving or taking dowry and Section 4, which
deals with a penalty for demanding dowry
under the Act and the I.P.C. makes it clear
that even demand of dowry on other
ingredients being satisfied is punishable. It is
not always necessary that there be any
agreement for dowry.

34. Section 113B of the Evidence Act is
also relevant for the case at hand. Both
Sections 304B I.P.C. And Section 113B of
the Evidence Act were inserted as noted
earlier
by
the
dowry
Prohibition
(Amendment) Act 43 of 1986 with a view to
combat the increasing menace of dowry
deaths. Section 113B reads as follows:-

"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
persons has caused the dowry death.