# Neeraj v. State of U.P

- **Citation:** Jail Appeal No. 501 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** Jail Appeal No. 501 of 2018
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neeraj-v-state-of-u-p-46397
- **Pages:** 13

## Headnote

A. Criminal Law-Dowry Prohibition ActSections 498A, 304-B, 302 IPC & 3/4 -
The death of the deceased was done
within 7 years of the marriage due to
strangulation and death was occurred
homicidal and not suicidal. Clearly
established that the death of the
deceased
occurred
within
under
normal circumstances.

If a married woman dies otherwise under
normal circumstances within seven years of
her marriage and it is shown that she was
subjected to cruelty or harassment soon
before her death by her husband or
relative, such death will be called as dowry
death.

B. Evidence Law-Indian Evidence Act,
1872- Section 8 -Conduct of any party
is also relevant and the conduct of
family members of the appellant all of
them are fled away from the place of
occurrence is also indicate the guilt of
the appellant.

The subsequent conduct of a person in
reference to the unnatural death of the
deceased would be a relevant fact in
determining his guilt.

C. Evidence law-Indian Evidence Act,
1872- Section 106 of the Evidence Act
-
Burden
is
on
the
appellant
to
establish those fact which disprove his
guilt. If he fails to establish or explain
these facts, an adverse inference of
fact may arise against him.

Failure of a person to explain the facts
specially within his knowledge will lead to
an adverse influence being drawn against
him.

D. The learned trial court although
frame alternative charge against the
appellant under section 302 IPC, but
the
learned
trial
court
without
assigning any cogent reason acquitted
the
appellant
against
the
charge
levelled under section 302/34 IPC.
(Para 30,32,36,37)

Criminal Appeal rejected. (E-3)

List of case cited:-

## Text

_Characters 0–39,945 of 42,167. This is a partial read: ask again with offset=39945 for what follows._

220 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Considering the entire facts and
circumstances of the case, entire evidence
led by prosecution, injuries found on the
person of victim and legal preposition
discussed herein before,I do not find any
legallity or irregularity committed by Trial
Court in the impugned order. Trial Court
rightly found him guilty. Conviction of
accused-appellant Jhinguri deserves to be
and is maintained and confirmed.

36. So far as sentence is concerned, it
is
always
a
difficult
task
requiring
balancing of various considerations. The
question of awarding sentence is a matter
of
discretion
to
be
exercised
on
consideration of circumstances aggravating
and mitigating in the individual cases.

37. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation of
court to constantly remind itself that right
of victim, and be it said, on certain
occasions person aggrieved as well as
society at large can be victims, never be
marginalized. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further, it
is expected that courts would operate the
sentencing system so as to impose such
sentence which reflects conscience of
society and sentencing process has to be
stern where it should be. The court will be
failing in its duty if appropriate punishment
is not awarded for a crime which has been
committed not only against individual
victim but also against society to which
criminal and victim belong. Punishment to
be awarded for a crime must not be
irrelevant but it should conform to and be
consistent with the atrocity and brutality
which the crime has been perpetrated,
enormity of crime warranting public
abhorrence and it should 'respond to the
society's cry for justice against the
criminal'. [Vide : (Sumer Singh vs.
Surajbhan Singh and others, (2014) 7 SCC
323, Sham Sunder vs. Puran, (1990) 4 SCC
731, M.P. v. Saleem, (2005) 5 SCC 554,
Ravji v. State of Rajasthan, (1996) 2 SCC
175].

38. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence and manner in which it was
executed or committed, weapon used by
him in the commission of offence,
compromise between the parties, I partly
allow this appeal and confirm appellant's
conviction under Section 307/34 I.P.C. but
modify sentence to already undergone with
fine imposed by trial court.

39. Lower Court record along with a
copy of this judgment be sent back
immediately to Trial Court through District
Court concerned for compliance and further
necessary action.
----------
(2020)03-05ILR A220
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Jail Appeal No. 501 of 2018

Neeraj ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel
for
the
Appellant:
3-5 All. Neeraj Vs. State of U.P.
221
From Jail, Sri Deepak Kumar, Sri Satyendra
Narayan Singh, Sri Subash Chandra Pandey

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

A. Criminal Law-Dowry Prohibition ActSections 498A, 304-B, 302 IPC & 3/4 -
The death of the deceased was done
within 7 years of the marriage due to
strangulation and death was occurred
homicidal and not suicidal. Clearly
established that the death of the
deceased
occurred
within
under
normal circumstances.

If a married woman dies otherwise under
normal circumstances within seven years of
her marriage and it is shown that she was
subjected to cruelty or harassment soon
before her death by her husband or
relative, such death will be called as dowry
death.

B. Evidence Law-Indian Evidence Act,
1872- Section 8 -Conduct of any party
is also relevant and the conduct of
family members of the appellant all of
them are fled away from the place of
occurrence is also indicate the guilt of
the appellant.

The subsequent conduct of a person in
reference to the unnatural death of the
deceased would be a relevant fact in
determining his guilt.

C. Evidence law-Indian Evidence Act,
1872- Section 106 of the Evidence Act
-
Burden
is
on
the
appellant
to
establish those fact which disprove his
guilt. If he fails to establish or explain
these facts, an adverse inference of
fact may arise against him.

Failure of a person to explain the facts
specially within his knowledge will lead to
an adverse influence being drawn against
him.

D. The learned trial court although
frame alternative charge against the
appellant under section 302 IPC, but
the
learned
trial
court
without
assigning any cogent reason acquitted
the
appellant
against
the
charge
levelled under section 302/34 IPC.
(Para 30,32,36,37)

Criminal Appeal rejected. (E-3)

List of case cited:-

1. Kashmir Kaur Vs. St. of Punj, AIR 2013
(SC 1039)

2. Sher Singh @ Pratapa Vs. St. of Har.
2015 (89) ACC 288 (SC)

3. Trimukh Maroti Kirkan Vs. St. of Maha.,
2006(10) SCC681

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This jail appeal has been preferred
against the judgement and order dated
17.07.2018 passed by Additional Sessions
Judge, Court No. 4, Moradabad, in S.T. No.
70 of 2013 (State Vs. Neeraj), arising out of
case crime No. 481 of 2012, under Sections
498A, 304-B, 302 IPC & 3/4 of D.P. Act,
Police Station-Bilari, District Moradabad
convicting and sentencing the appellant u/s
498A for 2 years rigorous imprisonment
and fine of Rs. 5,000/-, in default of
payment of fine 2 months additional
rigorous imprisonment, under section 304B IPC, 10 years rigorous imprisonment and
u/s 4 D.P. Act 1 year rigorous imprisonment
and fine of Rs. 5,000/- in default of
payment of fine two months rigorous
imprisonment. Further order that out of
recovery of fine 50% money shall be given
to the brother of deceased Om Prakash @
Sonu and all the sentence shall run
concurrently.

2. Brief facts of the case are that the
complainant Om Prakash @ Sonu lodged
222 INDIAN LAW REPORTS ALLAHABAD SERIES
the FIR by giving written report with the
allegation that his sister Lokesh aged about
24 years was married with appellant Neeraj
five years back of the incident as per Hindu
rites and rutuals. During marriage, he has
given sufficient dowry according to his
financial capacity, but appellant's family
was not satisfied with dowry. Thereafter
appellant
Neeraj,
his
elder
brother
Mahendra, his wife Usha, mother-in-law
Radha and father-in-law Dungar Singh
used to harassment and torture to his sister
by demanding motorcycle as additional
dowry. Due to poor financial condition of
the complainant's family they, were unable
to fulfill their demand of motorcycle. Due
to this appellant's family used to harass and
assaulted her on two occasion due to
nonfulmilment of demand of motorcycle
they ompel his sister to leave the
matrimonial home. Appellant had taken her
back to his house after persuasion, but they
continued to stick with their demand of
motorcycle and often beat to his sister. On
the fateful night of 20/21.09.2012 some
unknown
time
her
husband
Neeraj,
Mahendra, Usha, Radha and Dungar Singh
had committed murder to his sister by
hanging. The dead body was lying at the
house of his brother-in-law in village
Gataura and all family members including
husband of the deceased fled away. On this
allegation FIR Ext Ka-4 was lodged at
police station Bilari by the complainant on
21.09.2012 at 04.30 p.m., as a case crime
no. 481 of 2012, under sections 498A,
304B IPC and 3⁄4 D.P. Act. The distance of
the police station is 15 Kms.

3. Before the investigation of the case
inquest was done by P.W. 7 Abhay Kumar
Singh in presence of inquest witness.
Inquest report was prepared by P.W. 7
Abhay Kumar Singh, Tehsildar, and cause
of death could not be ascertained so as per
opinion of Panch, the dead body was sent
to the district hospital for autopsy of
deceased Smt. Lokesh.

4. P.W. 3 Dr. S.K. Chaudhary has
conducted the postmortem of dead body of
the deceased on 22.09.2012 at 12.30 p.m. at
District Hospital Moradabad, and prepared
postmortem report Ext Ka-3, in which
doctor found the age of the deceased was
about 24 years and the eye and mouth of
the decease was closed, bleed from both
intestine.
Face
congested.
Following
antemortem injury were found on the
person of deceased:-

1. Abraded contusion 15cm x
3cm front of neck extending to left side of
neck 4cm below chin, 5cm below left year
and 9cm below right ear of lobule
subcutaneous tissue under injury mark
ecchymosed.

2. Abraded contusion 7cm x 3 cm
back of middle of left side of chest.

3. Abraded contusion 6cm x 3cm
back of abdomen on left side, 16cm away
from injury no. 2.

5. Hyoid Bone fractured. Larynx and
Vocal
Cords
congested.
Both
lungs
congested.
Stomach
(wall
condition,
Contents & smell) 200 grms pasty food
material . Small intestine chyme & gasses
was presemt.

Cause of death due to Asphyxia as a
result of antimortem strangulation. Time of
death about 1 and 1⁄2 day old.

The post-mortem report is on record
and marked as Ext. Ka-3

6. Investigating officer, Pankaj Kumar
Pandey, P.W. 4, after obtaining necessary
3-5 All. Neeraj Vs. State of U.P.
223
papers conducted investigation in this case
and prepare site plan on behest of
complaint-informant Ext. Ka-6. Primary
investigation of this case was conducted by
Pankaj Kumar Pandey. He also recorded
the statement of complainant Om Prakash.
Second investigating officer is P.W. 6 R.S.
Gautam. During investigation he recorded
the statement of other witnesses and after
completing
all
formalities
of
the
investigation submitted the charge sheet
against the appellant Neeraj under section
498A, 304B IPC and Section 3⁄4 D.P. Act.,
who proved the charge sheet Ext. Ka-7 and
exonerated the other accused namely;
Mahendra, Dungar Singh, Radha and Usha.

7. After completion of investigation
charge-sheet submitted by him before the
Chief Judicial Magistrate, Moradabad and
Chief Judicial Magistrate, Moradabad, had
taken cognizance on the charge sheet on
17.01.2013 and the case was committed
before the court of session where it is
registered as S.T. No. 75 of 2013 and the
case was transferred for trial to the court of
Additional District Judged Moradabad.

8. On 29.06.2013 the charge against
the appellant was framed under section
498A, 304B IPC and Section 3⁄4 D.P. Act
and alternative charge under section 302
IPC was also framed and charge read over
and explained to the appellant, and claimed
to be tried.

9. To substantiate the charge levelled
against the appellant, prosecution has
examined 9 witnesses in all.

10. P.W 1 complainant Om Prakash
@ Sonu, who is real brother of the
deceased, who proved the written report as
Ext. Ka-1 and Inquest report as Ext. Ka-2,
P.W. 2 Smt. Sonam @ Renu, sister in-law
of the deceased, P.W. 3 Dr. S.K. Chaudhary,
who proved the post mortem report as Ext.
Ka-3 and P.W. 4 HCP Jai Singh, who
proved the chick FIR Ext. Ka-4 and GD
entry Sl. No. 33/4.30 p.m. Ext. Ka-5 and
P.W.5
Pankaj
Kumar
Pandey
(first
investigating officer), who proved site plan
Ext. Ka-6 and P.W. 6 R.S. Gautam (second
investigating officer), who proved chargesheet as Ext. Ka-7.

11. After conclusion of the evidence
of prosecution, statement of appellant was
recorded under section 313 Cr.P.C. in
which accused denied all the charges and
stated that the witnesses wrongly stated
before the court and also stated that he is
innocent and has been falsely implicated in
this
case
and
the
deceased
Lokesh
committed
suicide
on
account
of
depression. In defence, no evidence was
recorded on behalf of appellant.

12. After conclusion of the trial
learned trial court acquitted the appellant
under section 302 IPC and convicted him
under sections 498A, 304B and Section 3⁄4
D.P. Act as aforesaid.

13. Being aggrieved by the judgement
and order of conviction dated 17.07.2018,
this appeal has been filed by the appellant.

14. I have heard learned counsel for
the appellant and learned AGA and perused
the material available on record.

15. Learned counsel for the appellant
submitted that the trial court has convicted
the appellant admittedly on the basis of
surmises and conjectures and has failed to
appriciate the evidence available on record.
He has further submitted that there are
material contradictions in the testimony of
prosecution witnesses and also submitted
224 INDIAN LAW REPORTS ALLAHABAD SERIES
that
no
independent
witnesses
was
produced by the prosecution. One of the
main contention of the learned counsel for
the appellant is that the death of the
deceased Lokesh Devi was suicidal and
appellant has clearly stated in his statement
that the deceased had committed suicide
herself due to stress. Next submitted that
the information of this incident has given
by him to the parent of the deceased and
thereafter the family member of parental
house of the deceased arrived at his house
and he was also present at the time of last
rutuals of the deceased. It is also submitted
that during autopsy no grievious injury was
found on the person of deceased and also
stated that the prosecution has clearly failed
to establish that the death of deceased-
Lokesh
was
subject
to
cruelty
and
harassment
by
the
appellant.
The
prosecution failed to prove the charge
levelled against the appellant beyond
shadow of doubt. Lastly, learned counsel
for the appellant submitted that the
appellant
is
very
poor
person
and
languishing in jail at the commencement of
trial.

16. Apart from arguing on the merits
of the case, learned counsel for the
appellant further contended although there
is no evidence against appellant if court
comes to the conclusion about guilt of
appellant then a lenient view should be
taken in sentencing him and his sentence
should be reduced to minimum prescribed
under section 304B IPC that is to say, seven
years.

17.

Per
contra
learned
AGA
contended that victim was died inside her
matrimonial home. P.W. 3 Dr. S.K.
Chaudhary clearly opined that the cause of
death is asphyxia as a result of antemortem
strangulation. In this case hyoid bone was
fractured so medical report clearly shows
that this is the clear case of homicidal
death. Prosecution clearly established by
cogent and credible evidence that deceased
was died within seven years of her
marriage and soon before her death she was
subjected
to
mental
and
physical
harassment and tortured by making demand
of additional dowry. Prosecution is able to
prove his case beyond shadow of doubt and
appeal of appellant is liable to be
dismissed.

18. A report was obtained from the
District Jail Superintendent, Moradabad
dated 11.02.2019 which shows that during
trial the appellant was in jail from
25.11.2012 to 16.07.2018 (5 years 7
months and 22 days) and from 17.07.2018
to till date the appellant is detained in
district Jail Moradabad. So presently
appellant languishing in jail for a period of
more than 7 years.

19. To appreciate the argument of the
party and also the evidence it is necessary
to look into the statutory provision of
Section 304 B, 498A IPC and 13B of the
Evidence Act.

20. Their Lordship of Hon'ble
Supreme Court in AIR 2013 (SC 1039) in
case of Kashmir Kaur vs. State of
Punjab has explained the ingredients of
offence under section 304B of IPC which
reads as under:-

From the above decisions the
following principles can be culled out:

a) To attract the provisions of
Section 304B IPC the main ingredient of
the offence to be established is that soon
before the death of the deceased she was
3-5 All. Neeraj Vs. State of U.P.
225
subjected to cruelty and harassment in
connection with the demand of dowry.

b) The death of the deceased
woman was caused by any burn or
bodily
injury
or
some
other
circumstance which was not normal.

c) Such death occurs within
seven years from the date of her
marriage.

d)
That
the
victim
was
subjected to cruelty or harassment by
her husband or any relative of her
husband.

e) Such cruelty or harassment
should be for or in connection with
demand of dowry.

f) It should be established that
such cruelty and harassment was made
soon before her death.

g)
The
expression
(soon
before) is a relative term and it would
depend upon circumstances of each case
and no straightjacket formula can be
laid down as to what would constitute a
period of soon before the occurrence.

h) It would be hazardous to
indicate any fixed period and that
brings in the importance of a proximity
test both for the proof of an offence of
dowry death as well as for raising a
presumption under Section 113B of the
Evidence Act.

i) Therefore, the expression
"soon before" would 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
or life link between the effect of cruelty
based on dowry demand and the
concerned death. In other words, it
should not be remote in point of time
and thereby make it a stale one.

j) However, the expression
"soon before" should not be given a
narrow meaning which would otherwise
defeat
the
very
purpose
of
the
provisions of the Act and should not
lead to absurd results.

k)
Section
304B
is
an
exception to the cardinal principles of
criminal jurisprudence that a suspect in
the Indian Law is entitled to the
protection
of
Article
20
of
the
Constitution, as well as, a presumption
of innocence in his favour. The concept
of deeming fiction is hardly applicable
to
criminal
jurisprudence
but
in
contradistinction
to
this
aspect
of
criminal law, the legislature applied the
concept of deeming fiction to the
provisions of Section 304B.

l)
Such
deeming
fiction
resulting in a presumption is, however,
a
rebuttable
presumption
and
the
husband and his relatives, can, by
leading their defence prove that the
ingredients of Section 304B were not
satisfied.

m) The specific significance to be
attached is to the time of the alleged cruelty
and harassment to which the victim was
subjected to, the time of her death and
whether the alleged demand of dowry was
in connection with the marriage. Once the
said ingredients were satisfied it will be
called dowry death and by deemed fiction
226 INDIAN LAW REPORTS ALLAHABAD SERIES
of law the husband or the relatives will be
deemed to have committed that offence.

21. In this case prosecution examined
P.W. 1 Om Prakash, as in his deposition he
has stated that her sister Lokesh was
married with appellant Neeraj about 5 years
ago before the incident. His parent gave
sufficient dowry in marriage as according
to his status, but sometime after marriage
her in-laws were not happy with the dowry
given in the marriage. Family members of
the appellant always taunted to the
deceased Lokesh for being less dowry and
started demand of motorcycle. He further
stated that due to poor condition of his
family he could not fulfill the demand of
her in-laws. His sister was previously
ousted from her matrimonial home for not
giving motorcycle, thereafter, on being
convinced in punchayat she was taken back
to her matrimonial house, still they
continued their demand of motorcycle. All
her family members (in-laws) tortured her,
but family members of the complainant
kept patience. On intervening night of
20/21.09.2012 a call came from village
Gataura and it was informed that his sister
was killed by members of his matrimonial
house.
On
telephonic
information,
complainant and other family members
reached at the matrimonial house of his
sister. The dead body of his sister was lying
on the floor of the barandah and all the
members in-laws family was absconded
after the occurrence.

22. All these allegations a written
report was submitted in police station and
the case was lodged and the written report
was proved by P.W. 1 as Ext. Ka 1. He
further stated that he is one of the member
of the inquest report and he also put the
signature in inquest report as panch witness
and proved the inquest report as Ext. Ka 2.
It is also submitted that in-laws family
captivated him. His father and his family
members
put
thumb
impression
and
signature of some papers and after that they
absconded.

23. P.W. 2 Sonam @ Renu wife of
P.W. 1 and bhabhi of the deceased.
Statement of P.W. 1 is also corroborated
with her. In her statement she has clearly
stated that in-laws of the deceased tortured
and harassed her on demand of motorcycle,
when she reached on the spot along with
her family members then no body was
present at the time in laws house. She also
stated in her statement that the deceased
has resides with mother of the appellant.
Only these two witnesses of facts were
examined except P.W. 1 and P.W. 2. P.W. 3
is the doctor S.K. Chaudhary, who has
clearly stated that this ante-mortem injury
has been caused to the deceased before 1 to
1 1⁄2 days of the postmortem. He has clearly
stated that the death of the deceased Lokesh
as a result of ante-mortem strangulation.
This shows that the death of the deceased
was homicidal and not suicidal.

24. P.W. 8 Rajaram, father of the
deceased
is
also
corroborated
the
statements of P.W. 1 and P.W.2.

25. Although, learned counsel for the
appellant contended that the deceased
committed suicide by hanging herself on
account of depression, but no such any
evidence is produced by the defence side
that the deceased had committed suicide
due to depression. The death of the
deceased was not possible by hanging and
strangulation, so as per the doctor, the case
was homicidal not suicidal. Beside the
injury on the neck two other injuries have
also found antemortem injury on the body
of the deceased. Dr. S.K. Chaudhary has
3-5 All. Neeraj Vs. State of U.P.
227
clearly stated in the cross-examination that
the death of the deceased was done by
pressing neck of the deceased and due to
this asphyxia occurred. So the death of the
deceased was not possible by hanging.
There will be whole pattern issue in the
mark which will not be given in the case of
strangulation as per the Modi Medico
Jurisprudence .

26. The prosecution also examined
P.W. 4 Pankaj Kumar Pandey, First
Investigating Officer, who has clearly
stated that he prepared site plan and
recorded the statements of witnesses
present at the spot. Particularly he has
clearly denied that the family members of
the appellant was present at that time. In
the statement he has also stated that he also
recorded the statement of neighbours of the
appellant. Nothing incriminate of hanging
was also recovered by the police.

27. P.W. 6, Second Investigating
Officer R.S. Gautam has stated that nothing
any other important found in the statements
of the witnesses and this witness only
proved
the
charge-sheet
against
the
appellant under section 498A, 304B IPC
and Section 3⁄4 Dowry Prohibition Act only
against the appellant.

28. P.W. 7, Abhay Kumar Sigh, Nayab
Tehsildar, who conducted the inquest report
and panchayatnama, who proved as Ext.
Ka-2.

29. P.W. 9 Satish Kumar, Inspector,
who prepared the police papers, proved
Ext. Ka-9 to 12.

30. On perusal of the entire record, it
is reveals that the death of the deceased
was done within 7 years of the marriage . It
is also established by the evidence of the
doctor that the death of the deceased was
occurred due to strangulation and death
was occurred homicidal and not suicidal. It
is clearly established that the death of the
deceased occurred within under normal
circumstances.

31. Now, other point it has to be seen
just before her death, deceased Smt.
Lokesh was subjected to cruelty or
harassment by her husband and other
relatives of husband in connection with
demand of dowry. This element and burden
of prove in case of dowry deaths have been
dealt with in detail by Hon'ble The Apex
Court in Sher Singh @ Pratapa v. State of
Haryana 2015 (89) ACC 288 (SC). The
Apex Court held as under:

12. In our opinion, it is beyond
cavil that where the same word is used in a
section and/or in sundry segments of a
statute, it should be attributed the same
meaning, unless there are compelling
reasons to do otherwise. The obverse is
where different words are employed in
close proximity, or in the same section, or
in the same enactment, the assumption must
be that the legislature intended them to
depict disparate situations, and delineate
dissimilar and diverse ramifications. Ergo,
ordinarily Parliament could not have
proposed to ordain that the prosecution
should "prove" the existence of a vital
sequence of facts, despite having employed
the word "shown" in Section 304 B. The
question is whether these two words can be
construed as synonymous. It seems to us
that if the prosecution is required to prove,
which always means beyond reasonable
doubt, that a dowry death has been
committed, there is a risk that the purpose
postulated in the provision may be reduced
to a cipher. This method of statutory
interpretation
has
consistently
been
228 INDIAN LAW REPORTS ALLAHABAD SERIES
disapproved and deprecated except in
exceptional instances where the syntax
permits reading down or reading up of
some words of the subject provisions.

13. In Section 113A of the
Evidence Act Parliament has, in the case of
a wife's suicide, "presumed" the guilt of the
husband and the members of his family.
Significantly, in section 113 B which
pointedly
refers
to
dowry
deaths,
Parliament has again employed the word
"presume".
However,
in
substantially
similar circumstances, in the event of a
wife's unnatural death, Parliament has in
Section 304 B "deemed" the guilt of the
husband and the members of his family.
The Concise Oxford Dictionary defines the
word "presume" as: supposed to be true,
take for granted; whereas "deem" as:
regard, consider; and whereas "show" as:
point out and prove. The Black's Law
Dictionary (5th Edition) defines the word
"show" as- to make apparent or clear by
the evidence, to prove; "deemed" as- to
hold, consider, adjudge, believe, condemn,
determine, construed as if true; "presume"
as- to believe or accept on probable
evidence; and "Presumption", in Black's,
"is a rule of law, statutory or judicial, by
which finding of a basic fact gives rise to
existence
of
presumed
fact,
until
presumption is rebutted." The Concise
Dictionary of Law, Oxford Paperbacks has
this comprehensive yet succinct definition
of burden of proof which is worthy of
reproduction:

"Burden of Proof: The duty of a
party to litigation to prove a fact or facts in
issue. Generally the burden of proof falls
upon the party who substantially asserts
the truth of a particular fact (the
prosecution or the plaintiff). A distinction is
drawn between the persuasive (or legal)
burden, which is carried by the party who
as a matter of law will lose the case if he
fails to prove the fact in issue; and the
evidential burden (burden of adducing
evidence or burden of going forward),
which is the duty of showing that there is
sufficient evidence to raise an issue fit for
the consideration of the trier of fact as to
the existence or non-existence of a fact in
issue.

The normal rule is that a
defendant is presumed to be innocent until
he is proved guilty; it is therefore the duty
of the prosecution to prove its case by
establishing both the actus reus of the
crime and the mens rea. It must first satisfy
the evidential burden to show that its
allegations have something to support
them. If it cannot satisfy this burden, the
defence may submit or the judge may direct
that there is no case to answer, and the
judge must direct the jury to acquit. The
prosecution
may
sometimes
rely
on
presumptions
of
fact
to
satisfy
the
evidential burden of proof (e.g. the fact that
a woman was subjected to violence during
sexual intercourse will normally raise a
presumption to support a charge of rape
and prove that she did not consent). If,
however, the prosecution has established a
basis for its case, it must then continue to
satisfy the persuasive burden by proving its
case beyond reasonable doubt (see proof
beyond reasonable doubt). It is the duty of
the judge to tell the jury clearly that the
prosecution must prove its case and that it
must prove it beyond reasonable doubt; if
he does not give this clear direction, the
defendant is entitled to be acquitted.

There are some exceptions to the
normal rule that the burden of proof is
upon the prosecution. The main exceptions
are as follows. (1) When the defendant
3-5 All. Neeraj Vs. State of U.P.
229
admits the elements of the crime (the actus
reus and mens rea) but pleads a special
defence, the evidential burden is upon him
to prove his defence. This may occur, the
example, in a prosecution for murder in
which the defendant raises a defence of
self-defence. (2) When the defendant pleads
automatism, the evidential burden is upon
him. (3) When the defendant pleads
insanity, both the evidential and persuasive
burden rest upon him. In this case, however,
it is sufficient if he proves his case on a
balance of probabilities (i.e. he must
persuade the jury that it is more likely that
he is telling the truth than not). (4) In some
cases statute expressly places a persuasive
burden on the defendant; for example, a
person who carries an offensive weapon in
public is guilty of an offence unless he
proves that he had lawful authority or a
reasonable excuse for carrying it".

14. As is already noted above,
Section 113 B of the Evidence Act and
Section 304B of the IPC were introduced
into their respective statutes simultaneously
and, therefore, it must ordinarily be
assumed that Parliament intentionally used
the word 'deemed' in Section 304B to
distinguish this provision from the others.
In actuality, however, it is well nigh
impossible to give a sensible and legally
acceptable meaning to these provisions,
unless the word 'shown' is used as
synonymous to 'prove' and the word
'presume' as freely interchangeable with the
word 'deemed'. In the realm of civil and
fiscal law, it is not difficult to import the
ordinary meaning of the word 'deem' to
denote a set of circumstances which call to
be construed contrary to what they actually
are. In criminal legislation, however, it is
unpalatable to adopt this approach by rote.
We have the high authority of the
Constitution Bench of this Court both in
State of Travancore-Cochin v. Shanmugha
Vilas Cashewnut Factory, AIR 1953 SC 333
and State of Tamil Nadu v. Arooran Sugars
Limited (1997) 1 SCC 326, requiring the
Court to ascertain the purpose behind the
statutory fiction brought about by the use of
the word 'deemed' so as to give full effect to
the legislation and carry it to its logical
conclusion. We may add that it is generally
posited that there are rebuttable as well as
irrebuttable
presumptions,
the
latter
oftentimes assuming an artificiality as
actuality by means of a deeming provision.
It is abhorrent to criminal jurisprudence to
adjudicate a person guilty of an offence
even though he had neither intention to
commit it nor active participation in its
commission. It is after deep cogitation that
we consider it imperative to construe the
word 'shown' in Section 304B of the IPC as
to, in fact, connote 'prove'. In other words,
it is for the prosecution to prove that a
'dowry death' has occurred, namely, (i) that
the death of a woman has been caused in
abnormal circumstances by her having
been burned or having been bodily injured,
(ii) within seven years of a marriage, (iii)
and that she was subjected to cruelty or
harassment by her husband or any relative
of her husband, (iv) in connection with any
demand for dowry and (v) that the cruelty
or harassment meted out to her continued
to have a causal connection or a live link
with the demand of dowry. We are aware
that the word 'soon' finds place in Section
304B; but we would prefer to interpret its
use not in terms of days or months or years,
but as necessarily indicating that the
demand for dowry should not be stale or an
aberration of the past, but should be the
continuing cause for the death under
Section 304B or the suicide under Section
304B of the IPC. Once the presence of
these concomitants are established or
shown or proved by the prosecution, even
230 INDIAN LAW REPORTS ALLAHABAD SERIES
by preponderance of possibility, the initial
presumption of innocence is replaced by an
assumption of guilt of the accused,
thereupon transferring the heavy burden of
proof upon him and requiring him to
produce evidence dislodging his guilt,
beyond reasonable doubt. It seems to us
that what Parliament intended by using the
word
'deemed'
was
that
only
preponderance of evidence would be
insufficient to discharge the husband or his
family members of their guilt. This
interpretation provides the accused a
chance of proving their innocence. This is
also the postulation of Section 101 of the
Evidence Act. The purpose of Section 113B
of the Evidence Act and Section 304B of the
IPC, in our opinion, is to counter what is
commonly encountered - the lack or the
absence of evidence in the case of suicide
or death of a woman within seven years of
marriage. If the word "shown" has to be
given its ordinary meaning then it would
only require the prosecution to merely
present
its
evidence
in
Court,
not
necessarily through oral deposition, and
thereupon make the accused lead detailed
evidence to be followed by that of the
prosecution. This procedure is unknown to
Common Law systems, and beyond the
contemplation of the Cr.P.C."

32. It is well settled principle of law
that once prosecution proved that where the
death of the woman which was occurred
otherwise under normal circumstances
within 7 years of her marriage and she was
subjected to cruelty and harassment by her
husband and relatives of her husband soon
before her death in connection with the
demand of dowry, then heavy burden of
proof lies upon accused to adduce evidence
disbelieving his guilt, beyond reasonable
doubt.

33. In the present case accused
appellant-Neeraj has failed to prove beyond
reasonable doubt that his wife Smt. Lokesh
committed suicide due to depression.

34. In the present case in hand, when
the family members and relative were
arrived at the matrimonial house of the
deceased then they saw that all of the
family members of in-law had fled away
from the scene of occurrence.

35. Section 8 of the Evidence Act is
as under:-

Section 8 in The Indian Evidence
Act, 1872

8.
Motive,
preparation
and
previous or subsequent conduct.--Any fact
is relevant which shows or constitutes a
motive or preparation for any fact in issue
or relevant fact. The conduct of any party,
or of any agent to any party, to any suit or
proceeding, in reference to such suit or
proceeding, or in reference to any fact in
issue therein or relevant thereto, and the
conduct of any person an offence against
whom is the subject of any proceeding, is
relevant, if such conduct influences or is
influenced by any fact in issue or relevant
fact, and whether it was previous or
subsequent thereto. Explanation 1.--The
word "conduct" in this section does not
include statements, unless those statements
accompany and explain acts other than
statements; but this explanation is not to
affect the relevancy of statements under any
other section of this Act. Explanation 2.--
When the conduct of any person is relevant,
any statement made to him or in his
presence and hearing, which affects such
conduct, is relevant. Illustrations (I) of the
evidence Act is relevant.
3-5 All. Neeraj Vs. State of U.P.
231

(i) A is accused of a crime. The
facts that, after the commission of the
alleged crime, he absconded, or was in
possession of property or the proceeds of
property acquired by the crime, or
attempted to conceal things which were or
might have been used in committing it, are
relevant.

36. Section 8 of Evidence Act is that
any fact is relevant which shows or
constitutes a motive or preparation for any
fact in issue or relevant fact. The conduct
of any party, is also relevant and the
conduct of family members of the appellant
all of them are fled away from the place of
occurrence is also indicate the guilt of the
appellant.

37. It is also submitted by prosecution
is that the death of the deceased Lokesh is
within 5 years in the house of the appellant
in view of Section 106 of the Evidence Act.
This burden on the appellant to establish
those fact which disprove his guilt. In other
words, if he fail to establish or explain
these facts, an adverse inference of fact
may arise against him. In this case the
appellant simply show that the deceased
had committed suicide only due to
depression, except this no defence witness
is examined on behalf of the appellant to
establish this fact that the deceased had
committed suicide due to depression.
Hon'ble Apex Court in the case of
Trimukh Maroti Kirkan vs. State of
Maharashtra, in para 17 of the judgement
has held that:-

"Where an accused is alleged to
have committed the murder of his wife and
the
prosecution
succeeds
in
leading
evidence to show that shortly before the
commission of crime they were seen
together or the offence takes placed in the
dwelling home where the husband also
normally resided, it has been consistently
held that if the accused does not offer any
explanation how the wife received injuries
or offers an explanation which is found to
be false, it is a strong circumstance which
indicates that he is responsible for
commission of the crime."

38. For the reasons aforesaid the
prosecution is able to prove his case against
the appellant. The appellant accused Neeraj
for the offence punishable under section
498A, 304B and 4 of D.P. Act beyond
shadow of doubt, so far as with regard to
the prayer of the appellant for reduction of
the
sentence
of
appellant-accused
is
concerned it is not a case of suicidal death
but the case is of homicidal death.

39.

The
learned
trial
court
although
frame
alternative
charge
against the appellant under section 302
IPC, but the learned trial court without
assigning any cogent reason acquitted
the appellant against the charge levelled
under section 302/34 IPC.

40. Thus, finding of the court
below is totally whimsical and against
the evidence on record, but as no appeal
on behalf of the State for enhancement
of sentence. In these circumstances, this
Court is not inclined to interfere the
judgement and order of the trial court.

41. Since there is no instigating
circumstances in favour of appellant, so
in these circumstances, it shall not be
justified to interfere or reduce the
sentence awarded to the appellant by
the court below.

42. The appeal is liable to be
dismissed and is accordingly dismissed.
232 INDIAN LAW REPORTS ALLAHABAD SERIES

43. The conviction and sentence of
appellant Neeraj passed by Additional
Sessions Judge, Court No. 4, under section
498A, 304B IPC and Section 4 D.P. Act are
upheld. The appellant Neeraj is in jail and
he served out the sentence awarded to him.

44. Office is directed to transmit the
certified copy of this order to the court
below along with the lower court record,
for necessary compliance.
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(2020)03-05ILR A232
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Jail Appeal No. 521 of 2018

Ramesh ...Appellant
Versus
State of U.P. ...Opposite Party