# Mukesh @ Mukesh Kumar Gupta (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 240
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-13
- **Case number:** Criminal Appeal No. 3987 of 2018
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-mukesh-kumar-gupta-in-jail-v-state-of-u-p-47566
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 498-A, 304-B,
304(2) - Dowry Prohibition Act, 1961Section
4-challenge
to-conviction-
appellant gave information of hanging of
the deceased while it was found in Postmortem that she died due to asphyxia by
giving pressure on her neck-it was given
the color of suicide-Provision of Section
106,
Indian
Evidence
Act,
1872
is
attracted- informant turned hostile in
cross-examination-Rest witnesses turned
hostile
since the beginning of their
examination-in-chief- conviction upheld
however quantum of sentence is reduced
up to seven years.(Para 1 to 22)

B. Factum of death of deceased was
"especially" within the knowledge of
appellant-husband,
but
he
failed
to
explain-appellant admitted his presence
at the place of occurrence-A denial of
prosecution case coupled with absence of
any explanation inconsistent with the
innocence of the accused, but consistent
with the hypothesis that the appellant is
a prime accused in the commission of
offence-the burden of proof would be on
the husband to explain grounds for the
unnatural death of his wife-conviction
upheld however quantum of sentence is
reduced up to seven years.(Para 18 to 19)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

240 INDIAN LAW REPORTS ALLAHABAD SERIES
inside the house in the form of an open
room. Learned trial court has further
observed
that;
"the
open
chabutara
adjacent to the road belongs to the portion
of the house of the accused Jagarnath and
it is commonly seen that in densely
populated areas, houses are having open
chabutaras or an open room type structure
adjacent to the houses and the people uses
these places for keeping the domestic
articles." The reasoning given by the trial
court is proper and argument of the learned
counsel for the appellant has no force

8. Another argument raised by the
learned counsel for the applicant is that no
other instrument or material has been
recovered which can show that kerosene oil
was kept for sale. This argument has also
no force. At the relevant time, the license
order was in force, so keeping two hundred
litres of kerosene oil without any valid
license is itself sufficient to prove the guilt.
Such a large quantity of kerosene oil cannot
be presumed to be kept for personal use.

9. The remaining two witnesses P.W.-
3 - S.I. Harday Nand Mishra and P.W.- 4 -
S.I. Rajnath Pandey are formal witnesses
who have proved the other prosecution
papers, like FIR, copy of the G.D., site plan
and charge sheet.

10. From the evidence on record, it
stands proved that two hundred litres of
kerosene oil kept in a drum has been
recovered from the outer portion of the
house inside an open room of the accused -
Jagarnath and he was in possession of it, so
the findings of conviction recorded by the
learned trial court is just and proper. There
is no infirmity or illegality in the finding of
conviction recorded by the learned trial
court.

11. Learned trial court has sentenced
the accused for two years rigorous
imprisonment and fine of Rs. 2,000 and in
default of payment of fine further six
months
rigorous
imprisonment.
The
incident is of the year 1982 near about 39
years have passed since. The age of the
accused
according
to
the
statement
recorded under Section 313 Cr.P.C. was 40
years in October, 1993, so at present his
age is about 68 years. Considering the
aforesaid facts and the quantity and nature
of Essential Commodity i.e. kerosene oil, it
will be too harsh to send him to prison and
in the opinion of this Court imposition of
fine will serve the purpose of justice. So
sentence
is
liable
to
be
modified
accordingly.

12. Appeal is partly allowed.
Conviction of the accused under Section
3/7 Essential Commodities Act is upheld
but sentence is modified and accused is
punished with a fine of Rs. 10,000/- which
he will deposit within one month from
today. He will produce computer generated
copy of the judgment attested by the
counsel before the trial court enabling him
to deposit the fine. In default of payment of
fine accused will undergo four months
simple imprisonment.

13. Lower court record along copy of
the judgment be transmitted to the trial
court immediately.
----------

(2021)09ILR A240
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.
9 All. Mukesh @ Mukesh Kumar Gupta Vs. State of U.P.
241
Criminal Appeal No. 3987 of 2018

Mukesh @ Mukesh Kumar Gupta
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Umesh Chandra Tiwari, Sri Bed Kant
Mishra,
Sri
Devendra
Dahma,
Sri
Ragvendra Singh Rathour

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 498-A, 304-B,
304(2) - Dowry Prohibition Act, 1961Section
4-challenge
to-conviction-
appellant gave information of hanging of
the deceased while it was found in Postmortem that she died due to asphyxia by
giving pressure on her neck-it was given
the color of suicide-Provision of Section
106,
Indian
Evidence
Act,
1872
is
attracted- informant turned hostile in
cross-examination-Rest witnesses turned
hostile
since the beginning of their
examination-in-chief- conviction upheld
however quantum of sentence is reduced
up to seven years.(Para 1 to 22)

B. Factum of death of deceased was
"especially" within the knowledge of
appellant-husband,
but
he
failed
to
explain-appellant admitted his presence
at the place of occurrence-A denial of
prosecution case coupled with absence of
any explanation inconsistent with the
innocence of the accused, but consistent
with the hypothesis that the appellant is
a prime accused in the commission of
offence-the burden of proof would be on
the husband to explain grounds for the
unnatural death of his wife-conviction
upheld however quantum of sentence is
reduced up to seven years.(Para 18 to 19)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Shambhu Nath Mehra Vs St. of Ajmer(1956)
AIR 404

2. Ganesh Lal Vs St. of Mah. (1992) SCC 3 106

3. Dnyaneshwar Vs St. of Mah. (2007) 10 SCC
445

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by
the appellant-Mukesh @ Mukesh Kumar
Gupta against the judgment and order dated
11.7.2018, passed by Sessions Judge,
Sonbhadra, in S.T. No.45 of 2016 (State vs.
Mukesh @ Mukesh Kumar Gupta) arising
out of Case Crime No.26 of 2016, under
Sections 498-A, 304-B IPC and under
Section 4 Dowry Prohibition Act, 1961
(herein after referred to as 'Act, 1961'),
Police Station-Beejpur, District-Sonbhadra,
by which learned trial court convicted
appellant under Section 304 (2) IPC and
sentenced
for
eight
years'
rigorous
imprisonment and Rs.10,000/- fine and in
default
of
fine,
one
year's
simple
imprisonment.

2. The brief facts of the case are that
informant-Rajendra Prasad Shah submitted
a written report at P.S.-Beejpur on 1.2.2016
stating that his sister Kusum Shah married
on 7.6.2010 with Mukesh Gupta. Enough
dowry was given in the marriage according
to the financial condition. After some
months of marriage, his sister came to
parental house and told that her husband
used to take alcohol and beat her also. Her
father Sudarshan Gupta and mother Shiv
Kumari
Gupta
used
to
demand
Rs.1,00,000/- (one lakh) as additional
dowry and constantly torture her. The
husband and her-in-laws used to torture and
even after his intervention, position was not
improved. On 1.2.2016 at 1:46 a.m.,
Mukesh told him on mobile phone that his
242 INDIAN LAW REPORTS ALLAHABAD SERIES
sister has hanged herself. On hearing it,
people from her parental home went to her
in-laws house and saw that a rope
(gamchha) was hanging with the fan in her
room. It is alleged that his sister's husbandMukesh, father-in-law-Sudarshan Gupta,
mother-in-law-Shiv Kumari have killed her
for not meet out the demand of Rs.1 lakh as
additional dowry.

3. On the basis of above written report,
an FIR was lodged at P.S.-Beejpur under
Section 498-A, 304-B IPC and 3/4 of Act,
1961,
against
Mukesh
Kumar
Gupta,
Sudarshan Gupta and Shiv Kumari.

4. Nayab Tehsildar-Dudhi prepared
inquest report and investigation took place.
After investigation, the Investigating Officer
submitted
charge-sheet
against
Mukesh
Kumar Gupta, Sudarshan Gupta and Shiv
Kumari Gupta under Section 498-A, 304-B
IPC and Section 3/4 of Act, 1961. Case was
committed to the court of sessions and
learned trial court framed charges against all
the said persons under the aforesaid Section
498-A, 304-B IPC and Section 4 of Act,
1961. After completion of trial, learned trial
court found no sufficient evidence against
Sudarshan Gupta and Shiv Kumari Gupta and
they were acquitted. Appellant-Mukesh @
Mukesh Kumar Gupta was not convicted for
the offence under Section 302 IPC, but for
the offence committed under Section 304(2)
IPC and he was sentenced for eight years'
rigorous imprisonment with Rs.10,000/- fine.
Hence, this appeal.

5. Heard Shri Bed Kant Mishra,
learned counsel for the appellant, Mr.B.A.
Khan, learned AGA appearing for the State
and perused the record.

6. Learned counsel for the appellant
submitted that appellant has been falsely
implicated in this case. On the basis of
evidence on record, learned trial court came
to the conclusion that there was no
sufficient evidence on record for demand of
dowry, torturing the deceased and killing
the deceased for want of additional dowry
and due to this reason learned trial court
has acquitted all the three accused persons
for above charges, hence in such a
situation, it was not proper to convict the
appellant-Mukesh Kumar Gupta under
Section 304 (2) IPC because there is no
evidence on record that anybody has seen
the occurrence and there is no eye-witness
in this case, who could depose that
appellant has murdered the deceased. All
the
witnesses
of
fact
produced
by
prosecution have turned hostile and nobody
has
supported
the
prosecution
case.
Learned counsel for the appellant submits
that it is the appellant, who first of all,
informed the brother of deceased regarding
her death. It shows his bona fide.

7. Learned counsel for the appellant
has argued that real fact is that on the
fateful
day,
there
was
function
of
Annprashan of appellant's nephew in which
the guests were invited from the family of
deceased also, but no one came from her
family in the function. On account of this
fact, deceased was puzzled and probably
due to that reason, she committed suicide
and appellant being the husband of the
deceased was implicated. Hence, this
appeal be allowed.

8. Learned AGA argued that although
the witnesses of fact have turned hostile
and case of dowry death could not be
proved, but there is enough evidence on
record to prove that appellant murdered the
deceased because he was present at the
place of occurrence and occurrence took
place inside the room. Learned counsel for
9 All. Mukesh @ Mukesh Kumar Gupta Vs. State of U.P.
243
the trial court has mentioned in the
judgement that there was no access of any
other person in the above said room.
Learned AGA also submitted that as per
provisions of Section 106 of Indian
Evidence Act, 1872, it was the burden on
the shoulder of appellant to prove as to why
the deceased committed suicide if it was so.
What was happened before the occurrence,
it was the fact which was in the special
knowledge of the appellant, but appellant
has not discharged his burden and learned
trial court rightly convicted the appellant.
Learned AGA also argued that defence is
taken appellant before trial court that the
deceased committed suicide, but the
antemortem injury in postmortem report
suggests otherwise. There was no ligature
mark on the neck of the deceased,
therefore, it was not the case of the suicide
and appellant killed his wife. There is no
error in judgment of trial court, hence
appeal be dismissed.

9. In this case, prosecution has
produced Rajendra Prasad Shah (PW1),
Choteylal Shah (PW2), Jagmati (PW3),
Ramcharitra Sahu (PW7) and Shiv Prasad
(PW8) as the witnesses of fact to prove its
case, but all the above witnesses have
turned hostile. Rajendra Prasad Shah
(PW1), who is informant and brother of the
deceased, has supported prosecution case in
his examination-in-chief, but has turned
hostile during cross-examination. Rest of
the above witnesses turned hostile since
beginning of their examination-in-chief.
Hence, trial court acquitted all the accused
persons for the charges under Section
498A, 304B IPC and Section 4 of Act,
1961, because these charges were not
proved, but learned trial court held that
provision of Section 106 of Indian
Evidence Act, 1872, is attracted in the facts
and circumstances of the case. It was
burden on the shoulders of appellant to
explain the surrounding circumstances due
to which the deceased committed suicide, if
it was his defence. Hence, on the basis of
alternative remedy under Section 302 IPC,
trial court found that the case of Section
304 (2) IPC is well proved against the
appellant-husband.

10. Dr.Manoj Kumar Ekka (PW4) has
conducted the postmortem of the deceased.
In his statement, he has proved the
postmortem report as Ex.ka2. PW4 in his
evidence has deposed that there was
antemortem injury on the neck of the
deceased,
which
was
swelling
and
contusion measuring 3.0cm x 2.5cm and
6.5cm away from the chin. The doctor has
stated the cause of death as asphyxia due to
the pressure over neck. If it would have
been a case of hanging, there must have
been a ligature mark on the neck of the
deceased, but it was not so in this case and
doctor has suggested in his statement that
pressure was given on the neck of the
deceased, which was the cause of death.
Hence, by medical evidence available on
record, it is proved that it was not the case
of hanging, but it was a case of asphyxia
due to pressure given on the neck of the
deceased.

11. Some important aspects of this
case are that deceased died in her
matrimonial home, rather in the room in
which she used to live with her husband.
Appellant made telephonic call to the
brother of the deceased, who is informant
and produced before trial court as PW1 and
informed him about the death of the
deceased. Appellant has also stated that in
his statement under Section 313 Cr.P.C.
that he got to know about the hanging of
the deceased when he went in his room to
sleep. Hence, the appellant has admitted his
244 INDIAN LAW REPORTS ALLAHABAD SERIES
presence at the place of occurrence. It is
very important to note that appellant
informed the brother of the deceased about
hanging while according to postmortem
report (Ex.ka2), it was not the case of
hanging, but asphyxia due to pressure on
neck.

12. Now situation is whether in view
of the circumstances of this case, provision
of Section 106 of Indian Evidence Act,
1872, is attracted. For ready reference
Section 106 of the Act, 1872, is provided as
under:

"Section 106 in The Indian
Evidence Act, 1872

Burden of proving fact especially
within knowledge--

When any fact is especially within
the knowledge of any person, the burden of
proving that fact is upon him."

13. It is admitted fact that (i) death
was in matrimonial home of the deceased
and more particularly in her room
because PW7 has stated in his crossexamination that "नजस कमरे में मेरी भािंजी
रहती थी उसी कमरे में र्ािंसी लगाई थी". (ii)
appellant gave information to PW1
regarding the death of the deceased and
in his statement under Section 313
Cr.P.C. also, he admitted his presence at
the
place
of
occurrence.
Hence
appellant's presence at the place of
occurrence is well-proved. (iii) The cause
of death told by appellant to PW1 was
hanging and the explanation of hanging
was given by appellant in his statement
under Section 313 Cr.P.C. is that "मैं
ननदोर् हूँ. मेरे चचेरे भाई के लडके के
अन्नप्राशन में मेरी बीवी के मायके का कोई नहीिं
आया नजससे वह कार्ी परेशान थी. जब कमरे
में सोने गया तब घटना की जानकारी नमली".

This explanation is not at all plausible
and does not appeal to the reasonable mind.
(iv) Most importantly, appellant gave
information of hanging of the deceased
while it was found in postmortem that she
died due to asphyxia by giving pressure of
her neck.

14. In these circumstances, it is clear
that the factum of death of the deceased
was only within the special knowledge of
the appellant. Hence, in the surrounding
circumstances of the case, provision of
Section 106 of Indian Evidence Act, 1872
is attracted.

15. In Shambhu Nath Mehra vs.
State of Azmer [1956 AIR 404], it was 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 extremely difficult for the
prosecution to prove that fact. It is further
said that 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 all that duty. On the contrary, it is
defined 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.

16. In Ganesh Lal vs. State of
Maharashtra [1992 SCC (3) 106], the
accused was prosecuted for the murder of
his wife inside his house. Since the death
had occurred in his custody, it was held that
the appellant was under an obligation to
give an explanation for the cause of death
in his statement under Section 313 Cr.P.C.
9 All. Pratap Singh & Ors. Vs. State of U.P.
245
A denial of the prosecution case coupled
with absence of any explanation was held
to be inconsistent with the innocence of the
accused, but consistent with the hypothesis
that the appellant was a prime accused in
the commission of murder of his wife.

17. In Dnyaneshwar vs. State of
Maharashtra [(2007) 10 SCC 445], the
Hon'ble Court observed that since the deceased
was murdered in her matrimonial home and the
appellant had not set up a case that the offence
was committed by somebody else or that there
was a possibility of an outsider committing the
offence, it was for the husband to explain the
grounds for the unnatural death of his wife.

18. The law, therefore, is quite wellsettled that the burden of proving the guilt of an
accused is on the prosecution, but there may be
certain facts pertaining to a crime that can be
known only to the accused or are virtually
impossible for the prosecution to prove. These
facts need to be explained by the accused and if
he does not do so, it is a strong circumstance
pointing out to his guilt based on those facts.

19. In the present case in hand, it was
duty of appellant-husband to offer plausible and
cogent explanation regarding the circumstances
under which the occurrence took place because
factum of death of the deceased was 'especially'
within the knowledge of the appellant-husband.
But, he failed to do so and on account of this
reason, the trial court came to the conclusion
that on the basis of evidence available on record
it is undisputedly proved that deceased died in
her matrimonial home, rather in the room of
accused and it was unnatural death. Learned
trial court observed that Dr.Manoj Kumar Ekka
(PW4) is independent witness and his evidence
is most relevant. It is clear from medical
evidence that deceased died by creating the
pressure on her neck and it was given the colour
of suicide by hanging.

20. Learned trial court also opined that the
injury found on the neck of the deceased was
not the result of abrasion by cloth, but it was the
result by giving pressure on her neck, resulting
her death. Learned trial court found the offence
of the appellant under Section 304 (2) IPC,
which needs no interference because this Court
is also of definite opinion that on the basis of
evidence available on record and surrounding
circumstances of this case, the trial court rightly
reached to the conclusion of the guilt of the
appellant under Section 304(2) IPC and rightly
convicted him, accordingly. But so far as the
quantum of sentence is concerned, keeping in
view the totality of circumstances, this Court
finds it proper to reduce the sentence up to
seven years, which will be sufficient to meet the
ends of justice.

21. Hence, this appeal is liable to be
dismissed with the modification of sentence, as
above.

22. The appeal is dismissed, accordingly,
with the modification of sentence.

23. Let a copy of this judgment be sent to
court-below for necessary information to jail
authorities.
----------

(2021)09ILR A245
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.09.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE J.J. MUNIR, J.

Criminal Appeal No. 5013 of 2012

Pratap Singh & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent