# Noor Mohammad (In Jail) v. State of U.P

- **Citation:** (2020) 2 ILRA 740
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-20
- **Case number:** Criminal Appeal No. 1445 of 2015
- **Bench:** Naheed Ara Moonis, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/noor-mohammad-in-jail-v-state-of-u-p-45727
- **Pages:** 18

## Headnote

Sri
Santosh
Tripathi,
Sri
Ajay
Kr.
Srivastava, Sri Rajiv Lochan Shukla, Sri
Sanjay
Kumar
Srivastava,
Sri
Syed
Shahnawaz Shah

Counsel
for
the
Opposite
Party:
2 All. Noor Mohammad Vs. State of U.P.
741
Sri Ashwani Prakash Tripathi, A.G.A.

A. Criminal Law-Indian Penal CodeSections 304B, 498A, 302/34 and 3/4 of
Dowry Prohibition Act- Appeal against
conviction.

In view of evidence on record, it cannot be
held that deceased suffered death due to
strangulation or that the death of the deceased
was homicidal in nature. If medical evidence
suggests that death of deceased took place
due to suicide, the accused cannot be held
guilty for murder punishable under section 302
IPC. Learned trial Court has not made any
discussion as to on what basis death of
deceased has been found homicidal in nature
and without making any such discussion and
without rendering any such conclusion. (Para
27)

It is not possible to convert conviction of
accused-appellant from section 302 IPC to
section 304-B , 498-A IPC and section 3/4 DP
Act, particularly when no appeal has been filed
against acquittal of accused-appellant under
section 304-B , 498-A IPC and section 3/4 DP
Act. (Para 28)

The
substance
of
evidence
conclusively
establishes
that
accused-appellant
was
persistently harassing and ill-treating the
deceased as he was dissatisfied with the
dowry. (Para 29)

In view of aforesaid, conviction and sentence
of accused-appellant under section 302 IPC is
set
aside
and
the
accused-appellant
is
convicted under Section 306 IPC. (Para 34)

Criminal Appeal partly allowed. (E-2)

List of cases cited:-

## Text

_Characters 0–39,878 of 56,191. This is a partial read: ask again with offset=39878 for what follows._

740 INDIAN LAW REPORTS ALLAHABAD SERIES
right eye had been totally destroyed by this
assault.

21. In view of the statement of
these two witnesses i.e. PW-2 and PW6 have proved beyond doubt that it was
the injuries caused by Jabbar, Peeru
and Shabban but these injuries were
caused by throwing acid upon them,
which has resulted in serious injuries
so-much-so that vision of Shahabuddin
@ Sabu has absolutely gone, therefore,
prosecution has succeeded in proving
the case against the main accused
Jabbar and Shabban.

22. Investigating Officer, S.I.
Mulayam Singh PW-4 has proved the
site plan as well as charge sheet,
clothes and other things of the injured
which were taken in possession in
pursuance
to
the
occurrence.
His
testimony does not cast any doubt on
the truthfulness of his statement. His
evidence is absolutely believable with
regard to three accused namely, Jabbar,
Peeru and Shabban.

23. PW-7 Constable Mahipal is
formal
witness
who
has
simply
prepared chik and G.D. and has proved
them, therefore, no detailed analysis is
required of his statement.

24. After having scanned entire
fact of the case as well as evidence on
record, I am of the opinion that the
prosecution has been able to prove the
case against the accused Jabbar, Peeru
and Shabban only who were directly
responsible for causing acid burn
injuries to Shahabuddin @ Sabu PW-1,
Abdul Waheed, PW3 and one Munshi
of an Advocate Yunus but so far as the
appellant Gaffar, co-accused Nanva are
concerned, it appears that they have
been falsely implicated because of
enmity as there is no role assigned to
them except that of instigating the
main accused named-above to throw
acid upon the injured.

25. In view of analysis, I find that
the
co-accused
Gaffar,
appellant,
whose case is being considered by this
Court as he is the only accused alive,
whereas all of them have already died,
is not found guilty of charges under
sections 147 and 326 IPC read with
section 149 IPC, P.S. Hapur, District
Hapur, accordingly, he stands acquitted
of the said charges.

26. Appeal stands allowed.

27. Let a copy of this judgment be
transmitted to the trial court along with lower
court
record
promptly
for
immediate
compliance.
----------
(2020)02ILR A740

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 1445 of 2015

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

Counsel for the Appellant:
Sri
Santosh
Tripathi,
Sri
Ajay
Kr.
Srivastava, Sri Rajiv Lochan Shukla, Sri
Sanjay
Kumar
Srivastava,
Sri
Syed
Shahnawaz Shah

Counsel
for
the
Opposite
Party:
2 All. Noor Mohammad Vs. State of U.P.
741
Sri Ashwani Prakash Tripathi, A.G.A.

A. Criminal Law-Indian Penal CodeSections 304B, 498A, 302/34 and 3/4 of
Dowry Prohibition Act- Appeal against
conviction.

In view of evidence on record, it cannot be
held that deceased suffered death due to
strangulation or that the death of the deceased
was homicidal in nature. If medical evidence
suggests that death of deceased took place
due to suicide, the accused cannot be held
guilty for murder punishable under section 302
IPC. Learned trial Court has not made any
discussion as to on what basis death of
deceased has been found homicidal in nature
and without making any such discussion and
without rendering any such conclusion. (Para
27)

It is not possible to convert conviction of
accused-appellant from section 302 IPC to
section 304-B , 498-A IPC and section 3/4 DP
Act, particularly when no appeal has been filed
against acquittal of accused-appellant under
section 304-B , 498-A IPC and section 3/4 DP
Act. (Para 28)

The
substance
of
evidence
conclusively
establishes
that
accused-appellant
was
persistently harassing and ill-treating the
deceased as he was dissatisfied with the
dowry. (Para 29)

In view of aforesaid, conviction and sentence
of accused-appellant under section 302 IPC is
set
aside
and
the
accused-appellant
is
convicted under Section 306 IPC. (Para 34)

Criminal Appeal partly allowed. (E-2)

List of cases cited:-

1. Javed Abdul Rajjaq Shaikh vs. St. of Mah.,
Criminal Appeal No.1181 of 2011,

2. Shamnsaheb M. Multtani Vs. St. of Kar.
(2001)2 SCC 577,

3. Girish Singh V St. of Uttrakhand 2019 AIR
(SC) 4529,
4. Hira Lal V State AIR 2003 SC 2865,

5. Dalbir Singh vs St. of U.P 2004 (5) SCC 334,

6. K. Prema S. Rao and another vs. Yadla
Srinivasa Rao and others (2003)1 SCC 217,

7. Lakhjit Singh vs. St. of Punj. [1994 Supp. (1)
SCC 173],

9. Ramesh Vithal Patil vs. St. of Karnataka and
others 2014 (11) SCC 516,

10. St. of Punj. Vs. Gurmit Singh, (2014) 9 SCC
632,

11. Pinakin Mahipatray Rawal Vs St. of Guj.,
2014 (84) ACC 348 (SC),

12. Ghulam Mustafa vs St. of Uttarakhand, AIR
2015 SC 3101,

13. Gurjit Singh V St. of Punj. 2019 Supreme
(SC) 1298

(Delivered by Hon'ble Raj Beer Singh,
J.)

1. This appeal has been preferred
against judgment and order dated
03.03.2015 passed by the learned
Additional Sessions Judgment, Court
No.5, Ghaziabad in Session Trial No.
675
of
2013
(State
vs.
Noor
Mohammad and three others) under
Sections 304B, 498A, 302/34 IPC and
3/4 of Dowry Prohibition Act, Case
Crime No. 318 of 2013, Police Station
Loni, District Ghaziabad, whereby the
accused-appellant
Noor
Mohammad
has been convicted under Section 302
of IPC and sentenced to imprisonment
for life along with fine of Rs. 20,000/-.
In default of payment of fine he has to
undergo one year simple imprisonment.
However, he was acquitted of charge
under Sections 304B, 498A IPC and
3/4 of Dowry Prohibition Act. Co-
742 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Akbar Ali, Sarvari and Imran
were acquitted of charge under Sections
304B, 498-A, 302/ 34 IPC and 3/4 of
Dowry Prohibition Act.

2. As per prosecution version,
marriage of complainant's sister Abida
(deceased) was solemnized with accusedappellant Noor Mohammad, two years
prior to incident but after marriage
accused-appellant and his family members
including father Akbar Ali, mother Sarvari
and brother Imran used to demand
motorcycle, golden chain and cash of Rs. 1
lakh as additional dowry and on that
account they used to beat and harass the
deceased. On 11.02.2013, complainant
Mausam Ali (PW-1) got information that
his sister has died and when he reached
there he found that dead body of his sister
was lying on bed and her husband and inlaws have already fled away from there.

3. Complainant Mausam Ali (PW-1)
reported the matter to police by submitting
written complaint Ex. Ka-1 and on that
basis FIR was registered on 11.02.2013 at
19:20 hours vide FIR Ex. Ka-5, under
Sections 498A, 304B IPC and 3/4 of
Dowry Prohibition Act against accusedappellant Noor Mohammad and other
accused persons, namely, Akbar Ali,
Sarvari and Imran.

4. Police reached at the spot and
inquest proceedings were conducted by
PW-6 Yaduvir Singh (Naib Tehsildar)
vide inquest report Ex. Ka- 2 and dead
body of the deceased was sent for
postmortem.

5. Postmortem on the dead body of
deceased was conducted on 12.02.2013 by
PW-8 Dr. Sunil Katiyar vide postmortem
report Ex. Ka-6 and following injuries
were found on the person of deceased:

(i) ligature mark 6 cm x 1 cm on
anterior aspect of neck above thyroid
cartilage and 3 cm below chin. On
dissection white glistening membrane
parchment like present under the ligature
mark.

As per Autopsy Surgeon, cause of
death of the deceased was due to asphyxia
as a result of ante-mortem hanging.

6. Investigation of the case was
conducted by PW-9 Circle Officer Arvind
Kumar Yadav. One scarf (dupatta) of the
deceased was seized from the spot vide
seizure memo Ex. Ka- 3. Statements of
witnesses
were
recorded
and
after
investigation all the four accused persons
were charge-sheeted for the offences under
Sections 304B, 498A IPC and 3/4 of
Dowry Prohibition Act.

7. Learned trial Court framed charges
304B, 498A IPC and 3/4 of Dowry
Prohibition Act against all the four
accused persons and alternative charge
under Sections 302/34 IPC was also
framed against all the four accused
persons,
namely,
Noor
Mohammad,
Sarvari, Akbar Ali and Imran. Accused
persons pleaded not guilty and claimed
trial.

8. In order to bring home the guilt of
accused-appellants,
prosecution
has
examined
nine
witnesses.
After
prosecution evidence, accused persons
were examined under Section 313 of
Cr.P.C., wherein, they have denied the
prosecution evidence and claimed false
implication.
2 All. Noor Mohammad Vs. State of U.P.
743

9. In defence one Islam was
examined as DW-1.

10. After hearing and analyzing the
evidence on record, trial Court acquitted
accused persons, namely, Akbar Ali,
Sarvari, Imran of charges under Sections
304B, 498A, 302/34 IPC and 3/4 of
Dowry Prohibition Act whereas accusedappellant Noor Mohammad was convicted
under Section 302 IPC and was sentenced
as stated in paragraph no.1 of this
judgment.

11. Being aggrieved by the impugned
judgment, accused-appellant has preferred
the present appeal.

12. Heard Sri Syed Shahnawaz Shah,
learned counsel for the appellant and Sri
Ashwani Prakash Tripathi, learned A.G.A
for the State and perused the record.

13. Learned counsel for the appellant
has submitted:

(i) that there is no evidence that
accused-appellant has committed murder of his
own wife. It was submitted that there is
consistent
evidence
that
deceased
has
committed suicide. As per postmortem report,
cause of death was shown asphyxia as a result
of anti-mortem hanging and in view of
statement of PW-8 Dr. Sunil Katyal, who has
conducted postmortem of the deceased, it is
clear that deceased has committed suicide and
thus, no case under Section 302 IPC is made
out. It was stated that for conviction under
Section 302 IPC some positive evidence is
required against accused whereas in instant
case there was no such evidence and in
matrimonial home of accused-appellant, other
inmates of house were also residing

(ii) that there is no evidence that
deceased was harassed by accused-appellant
on account of dowry or that she was subjected
to cruelty soon before her death. It was pointed
out that as per prosecution version, deceased
has come at her matrimonial home only one
week before the incident and before that she
has resided at her parental home for about
seven months and thus, during that period of
seven months, there is no question of any
harassment or dowry demand by the accusedappellant. It was stated that only within period
of one week it is not possible that accused
persons might have harassed the deceased to
this extent that she would commit suicide.

(iii) that as there is no evidence of
dowry demand and cruelty soon before death
and thus, no offence under Section 304-B IPC
is made out.

(iv) that as the deceased has resided
for seven months at her parental home and she
has come at her matrimonial home only one
week before the incident and thus, it cannot be
believed that during such period of one week
deceased was abated to commit suicide. It was
further submitted that at the most offence
under Section 306 IPC may be made out
against appellant, whereas accused-appellant
has already undergone sentence of about seven
years.

14. Per contra, it has been submitted
by learned State counsel that there is clear
and cogent evidence that the deceased was
harassed
for
dowry
as
demand
of
motorcycle, golden chain and cash of Rs.1
lakhs was made from her as well as from
the complainant. It was due to harassment
meted out by accused-appellant that
deceased has to resided at her parental
home
for
seven
months
and
after
intervention of some persons she was
brought back to her matrimonial home by
accused-appellant by promising that he
would not harass her. Deceased has
suffered unnatural death within two years
of her marriage at her matrimonial home.
744 INDIAN LAW REPORTS ALLAHABAD SERIES
It was further submitted that as alleged
incident took place inside the matrimonial
home, burden shifts to accused-appellant
to explain under what circumstances
deceased has suffered death, but the
accused-appellant has not offered any such
explanation and even in his statement
recorded under Section 313 Cr.P.C. he has
simply denied prosecution evidence. It was
further pointed out that conduct of
accused-appellant is highly inculpatory as
after incident, he neither informed the
police nor the family members of deceased
were informed, rather he as well as his
other family members have fled away
from their home leaving dead body of the
deceased there. It was argued that all the
facts and circumstances of case and
evidence on record clearly indicate that it
was accused-appellant who has caused
death of deceased.

15. We have considered the rival
submissions and perused the record.

16. In evidence, PW-1 Mausam Ali,
who is complainant and brother of
deceased, stated that marriage of his
younger sister Abida was solemnized with
accused-appellant on 17.04.2011. At that
time accused and his family members were
residing at Shiv Vihar in Delhi but later on
they have shifted to Loni, Ghaziabad and
all family members were residing jointly.
Accused persons were not satisfied with
the dowry given in marriage and they used
to demand golden chain, motorcycle and
cash of Rs. 1 lakh and on that account,
they used to beat and harass the deceased.
Whenever deceased used to visit at her
parental home, she used to tell about these
things. PW-1 and his other family
members have tried to make the appellant
and his family members understand and
requested them not to harass the deceased
but they still persisted for demand of Rs.
one lakh cash, motorcycle and golden
chain and as complainant could not fulfill
their demand, deceased remained at her
parental home for about seven months.
After that on intervention of some persons
of society, accused-appellant and his
family members have promised that they
would not harass the deceased and would
not make any demand and they have taken
deceased to her matrimonial home only
nine days before incident. But they again
harassed her there. PW-1 further stated
that on 11.02.2013 his cousin, who was
residing at Loni, informed him that
husband and in-laws of Abida have killed
her by hanging. PW-1 and his family
members went there and found that
deceased was lying dead on bed and
thereafter complainant has reported the
matter to police by submitting written
complaint Ex. Ka-1. He has also stated
that during investigation one stole was
seized by police vide memo Ex. Ka- 2.

17. PW-2 Rozudeen, who is father of
the deceased, deposed that marriage of his
daughter Abida was solemnized with
accused-appellant Noor Mohammad on
17.4.2011 but the accused persons were
not satisfied with dowry given at the time
of marriage and they used to demand
golden chain, motorcycle and cash of Rs.
one lakh. Abida has told these things to
him and due to this reason, deceased has
resided at his home for about 8-10 months.
Keeping in view the future of deceased,
they have not made any complaint.
However, thereafter accused persons have
admitted their fault and promised that they
would not give rise any occasion of
making complaint and deceased was again
sent
with
accused-appellant
Noor
Mohammad.
After
one
week,
on
11.02.2013 at around 6:00 p.m., his
2 All. Noor Mohammad Vs. State of U.P.
745
nephew Nawab Ali has informed that inlaws of Abida have killed her by hanging.
PW-2 stated that he and his family
members went there and found that dead
body of deceased was lying on bed and all
the accused-persons have fled away from
there.

18. PW-3 Mohammad Yunus stated that
marriage of daughter of Rozudeen, namely
Abida was solemnized with Noor Mohammad
on 17.11.2014 but after 5-6 months of
marriage, Abida stayed at her parental home
for many days as her in-laws used to demand
motorcycle, golden chain and cash of Rs. 5
lakh.
However,
after
sometime
Noor
Mohammad and his father were called and by
intervention of some public person, accused
persons have sought pardon and thereafter
deceased was sent with accused-appellant but
on 11.02.2013 they received information that
accused have killed deceased by hanging on
account of non-fulfillment of demand of
dowry.

19. PW-4 Nawab Ali is cousin of
deceased and he was residing at Loni
and he has stated that marriage of
Abida was solemnized with Noor
Mohammad on 17.11.2014. After some
days of marriage she was harassed by
her husband and his family members
for dowry and they used to demand
motorcycle, cash of Rs. one lakh and
golden chain. Abida has told him about
these things. PW-4 further stated that
after 2-3 months of marriage, when he
has gone to meet Abida at her
matrimonial home, she was quite sad
and she has told that her husband and
her
in-laws
were
demanding
motorcycle, golden chain and cash of
Rs. one lakhs and on that account, they
used to harass her. Efforts were made
to make them understand but they did
not agree. Abida came back to her
father's home and after sometime due
to intervention of some persons of
society,
on
promise
of
accusedappellant and his family members that
they would not make any demand and
would not harass her, deceased was
sent
with
accused-appellant
Noor
Mohammad to her matrimonial home.
After one week, when he was passing
through
near
house
of
Noor
Mohammad, he came to know that
deceased has died and all family
members of Noor Mohammad have
fled away from there and thereafter he
has
informed
family
members
of
deceased.

20. PW-5 Qaiyum is also brother
of deceased and he stated that marriage
of Abida was solemnized with Noor
Mohammad on 17.04.2011 but her
husband and his family members were
not satisfied with given dowry and they
used to demand motorcycle, golden
chain and cash of Rs. one lakh in
dowry and on that account they used to
beat her. Abida has told about these
things to him and his father and
brother. They have tried to make her
husband and his family members
understand about their inability to
fulfill
demand,
but
in
vain
and
resultantly for about seven months,
deceased has resided at her parental
house. Later on due to intervention of
some relatives, accused-appellant Noor
Mohammad
and
his
father
have
admitted their mistake and assured that
now
they
would
not
harass
the
deceased
and
on
such
assurance,
deceased
was
sent
with
Noor
Mohammad. But after about one week
of the same, on 11.02.2013 his cousin
Nawab Ali informed that accused
746 INDIAN LAW REPORTS ALLAHABAD SERIES
persons have killed Abida by hanging,
due to non fulfillment of demand of
dowry.

21. PW-6 Yaduvir Singh Naib
Tehsildar
has
conducted
inquest
proceedings marked as Ex. Ka.2.

22. PW-7 constable Manoj Kumar
has recorded FIR who proved the chick
FIR exhibited as Ex. Ka.4.

23. PW-8 Dr. Sunil Katyal has
conducted postmortem on dead body of
deceased and proved the postmortem
report exhibited as Ex. Ka.6.

24. PW-9 Circle Officer, Arvind
Kumar Yadav has investigated the case.
He has prepared site plan of spot vide Ex.
Ka-7 and after completion of investigation
charge-sheet was filed.

25. DW-1 Islam has stated that
accused persons were known to him since
15-20 years. Akabar was residing at Shiv
Vihar in Delhi and Akbar and Noor
Mohammad used to run a shop from 6:00
AM to 9:00 PM. wife of Noor Mohammad
has died in February 2013 and on the day
of incident Noor Mohammad and Akbar
were at their shop. He stated that Noor
Mohammad and Akbar were residing with
him since last 3-4 months prior to incident
as Akbar has sold his house and he has
purchased a house at Loni, Mustafabad but
Akbar has not shifted there.

26. In this case, it is not in dispute
that deceased has suffered unnatural death
at her matrimonial home within two years
of her marriage and accused-appellant has
been convicted under Section 302 IPC.
The
first
question
that
arises
for
consideration is that whether the death of
deceased was homicidal or suicidal in
nature.
As
per
postmortem
report,
deceased has died due to asphyxia as a
result of anti-mortem hanging. In the case
of Javed Abdul Rajjaq Shaikh vs. State
of
Maharashtra,
Criminal
Appeal
No.1181 of 2011, Hon'ble Apex Court has
dealt with the issue of determination
whether death is caused by hanging or
strangulation and held as under:

''The
differences
between
hanging and strangulation have been
highlighted
by
Modi
on
Medical
Jurisprudence
and
Toxicology,
25th
Edition, as follows:

Hanging
Strangulation
1.
Most
suicidal
1. Mostly homicidal
2. FaceUsual
pale and
petechiae
rare.
2. Face-Congested, livid and
marked with petechiae
3. SalivaDribbling
out
of
mouth
down on
the
chin
and chest.
3. Saliva-No such dribbling
4. NeckStretched
and
elongated
in
fresh
bodies.
4. Neck-Not so.
5.
External
signs
of
asphyxia
5. External signs of asphyxia,
very well marked (minimal if
death due to vasovagal and
carotid sinus effect.
2 All. Noor Mohammad Vs. State of U.P.
747
usually
not well
marked.
6.
Ligature
markOblique,
Noncontinuou
s placed
high Up
in
the
neck
between
the Chin
and
the
larynx,
the Base
of
the
groove or
furrow
Being
hard,
yellow
and
Parachme
nt-like.
6. Ligature mark-Horizontal or
transverse continuous, round
the neck, low down in the
neck below the thyroid, the
base of groove or furrow
being soft and raddish.
7.
Abrasion
s
and
ecchymos
es round
about the
edges of
the
ligature
Mark,
rare.
7. Abrasions and ecchymoses
round about the edges of the
ligature mark, common.
8.
Subcutan
eous
tissues
Under the
8. Subcutaneous tissues under
the mark-Ecchymosed.
markWhite,
Hard and
glistening
.
9. Injury
to
the
muscles
of NeckRare.
9. Injury to the muscles of the
neck-Common.
10.
Carotid
arteries,
Internal
coats
ruptured
in
10. Carotid arteries, internal
coats
ordinarily ruptured.
11.
Fracture
of
the
larynx
and
tracheaVery rare
and may
be found
that
too
in
judicial
hanging.
11. Fracture of the larynx,
trachea and hyoid bone.
12.
Fracturedislocatio
n of the
cervical
vertebrae
-
Common
in
judicial
hanging.
12. Fracture-dislocation of the
cervical vertebrae-Rare.
13.
13.
Scratches,
abrasions
748 INDIAN LAW REPORTS ALLAHABAD SERIES
Scratches
,
abrasions
and
bruises
on
the
face,
neck and
other
parts
of
the bodyUsually
not
present.
fingernail marks and bruises
on the face, neck and other
parts of the body Usually
present.
14.
No
evidence
of sexual
assault.
14. No evidence of sexual
assault.
15.
Emphyse
matous
bullae on
Surface
of
the
lungs-Not
present.
15. Emphysematous bullae on
the surface of the lungs- May
be

As to what is the distinction between
strangulation and throttling is also dealt
within the self-same work:

"Definition-Strangulation
is
defined as the compression of the neck by
a force other than hanging. Weight of the
body has nothing to do with strangulation.

Ligature
strangulation
is
a
violent form of death, which results from
constricting the neck by means of a
ligature or by any other means without
suspending the body.

When constriction is produced
by the pressure of the fingers and palms
upon the throat, it is called as throttling.
When strangulation is brought about by
compressing the throat with a foot, knee,
bend of elbow, or some other solid
substances, it is known as mugging
(strangle hold).

A form of strangulation, known
as Bansdola, is sometimes practised in
northern India. In the form, a strong
bamboo or lathi (wooden club) is placed
across the throat and another across the
back of the neck. These are strongly
fastened t one end. A rope is passed round
the other end, which is bound together,
and the unfortunate victim is squeezed to
death. The throat is also pressed by
placing a lathi or bamboo across the front
of the neck and standing with a foot on
each of lathi or bamboo.

Garrotting is another method
that was used by thugs around 1862 in
India. A rope or a loincloth is suddenly
thrown over the head and quickly
tightened around neck. Due to sudden loss
of consciousness, there is no struggle. The
assailant is then able to tie the ligature."

27. In the instant case perusal of
postmortem report of deceased Abida
shows that there was ligature mark 6 cm x
1 cm on anterior aspect of neck above
thyroid cartilage and 3 cm below chin. In
view of treatise of Modi as stated above,
ligature
mark-oblique
Non-continuous
placed high up in the neck between the
Chin and the larynx is a characteristic of
hanging. There is nothing to indicate that
there was any fracture of larynx or trachea
and hyoid bone and thus, it also supports
the view that death of deceased was due to
hanging. Further, as per postmortem
report, on dissection at ligature mark,
white glistening membrane parchment like
were present, which is also a characteristic
of hanging. Further postmortem report of
deceased does not show any other
characteristic
of
strangulation
like
2 All. Noor Mohammad Vs. State of U.P.
749
congestion of face non dribbling of saliva,
abrasions or ecchymoses round about the
edges of the ligature mark subcutaneous
tissues under the mark- Ecchymosed or
ruptured carotid arteries, internal coats or
scratches, abrasions fingernail marks and
bruises on the face neck or another part of
body. Absence of these traits further
support the view that death of deceased
was suicidal in nature. Here it would be
pertinent to mention that PW-8 Dr. Sunil
Katyal, who has conducted postmortem on
the dead body of deceased, categorically
stated that deceased has died due to
asphyxia as a result of ante-mortem
hanging and that postmortem of deceased
was conducted by a panel of doctors. He
has also stated that weight of body might
have lied on neck, which resulted into
death of deceased but there was no
fracture in backbone or any bone of neck.
He has also ruled out the possibility that
deceased might have hanged after causing
her death. Considering medical evidence
in its entirety, it is apparent that it was a
case of hanging and thus the possibility
that deceased committed suicide can not
be ruled out. Here it may also be
mentioned that complainant as well as
other witnesses have also deposed that
death of deceased has taken place due to
hanging. In view of evidence on record, it
can not be held that deceased suffered
death due to strangulation or that the death
of the deceased was homicidal in nature. It
is one of the fundamental principle that to
hold a person guilty under Section 302 of
IPC, the death of such deceased person has
to be homicidal in nature. If medical
evidence suggests that death of deceased
took place due to suicide, the accused can
not be held guilty for murder punishable
under section 302 IPC. Learned trial Court
has not made any discussion as to on what
basis death of deceased has been found
homicidal in nature and without making
any such discussion and without rendering
any such conclusion, learned trial Court
committed
error
by
convicting
the
accused-appellant under Section 302 IPC.
Thus, conviction of accused-appellant
under Section 302 IPC is not in
accordance with law, hence unsustainable.

28. Evidence on record reveals that
deceased
has
committed
suicide
by
hanging at her matrimonial home within a
period of two years of her marriage. It is
well as settled that death due to suicide
also falls within the category of death
''otherwise
than
under
normal
circumstances'' as mentioned in Section
304-B IPC. All the witnesses of fact have
categorically deposed that deceased was
continuously harassed for dowry and she
was brought to he matrimonial only one
week before of incident. There is also
cogent and categorical evidence that
accused and his family members used to
demand golden chain, motorcycle and cash
of Rs. one lakh from deceased and on that
account she was harassed by the accused
persons but learned trial Court has
acquitted accused-appellant as well as coaccused persons of charge under Sections
498A, 304B IPC and 3/4 of Dowry
Prohibition Act. As no appeal has been
preferred against acquittal of accusedappellant under Sections 498A, 304B IPC
and 3/4 of Dowry Prohibition Act and
thus, this Court can not alter conviction
from under section 302 IPC to under
Section 304-B, 498A and 3/4 of D.P. Act.
Here it would be relevant to mention that
in case reported as (2001)2 SCC 577
Shamnsaheb M. Multtani Vs. State of
Karnataka, a three judge bench noted that
where main ingredients of two cognate
offences are common, the one punishable
with lesser sentence can be said to be
750 INDIAN LAW REPORTS ALLAHABAD SERIES
minor offence. Noting that the ingredients
of Section 304-B IPC were different from
those of section 302 IPC, the former could
not be regarded as minor offence of the
latter and it was held as under:

''In such a situation, if the trial
court finds that the prosecution has failed
to make out the case under Section 302
IPC, but the offence under Section 304-B
IPC has been made out, the court has to
call upon the accused to enter on his
defence in respect of the said offence.
Without affording such an opportunity to
the accused, a conviction under Section
304-B IPC would lead to real and serious
miscarriage of justice. Even if no such
count was included in the charge, when
the court affords him an opportunity to
discharge his burden by putting him to
notice regarding the prima facie view of
the court that he is liable to be convicted
under Section 304-B IPC, unless he
succeeds in disproving the presumption, it
is possible for the court to enter upon a
conviction of the said offence in the event
of his failure to disprove the presumption''.

In view of above discussed position
of law, it is not possible to convert
conviction of accused-appellant
from
section 302 IPC to section 304-B , 498-A
IPC and section 3/4 DP Act, particularly
when no appeal has been filed against
acquittal
of
accused-appellant
under
section 304-B , 498-A IPC and section 3/4
DP Act. The case of Girish Singh V State
of Uttrakhand 2019 AIR (SC) 4529 and
Hira Lal V State AIR 2003 Supreme Court
2865, referred by learned counsel for
appellant pertains about applicability of
section 304-B IPC, however, in the instant
case as it has been found that due acquittal
of accused-appellant under section 304-B
IPC by trial court, it is not permissible to
convert conviction of accused-appellant
from section 302 to 304-B IPC, and thus
no detail examination of said case laws is
required.

29. However, close scrutiny of
evidence reveals that deceased was being
harassed for dowry continuously since
after her marriage till date of incident.
PW-1 Mausam Ali, who is complainant of
the case has consistently deposed that
accused-appellant and his family members
used to demand golden chain, motorcycle
and cash of Rs. 1 lakh in dowry and when
this demand could not be fulfilled,
deceased has to remain for about seven
months at her parental home. After
intervention of some persons, deceased
was taken to her matrimonial home by
accused-appellant only about 8-9 days
prior to incident by promising that they
would not make any such demand and
would not harass the deceased, but due to
non-fulfillment of demand of dowry,
accused-appellant and his family members
caused her death by way of hanging. PW-1
has been subjected to cross-examination
but no such fact could emerge so as to
affect his testimony adversely. Version of
PW-1 has been amply corroborated by
PW-2 Rozudeen, PW-3 Mohd. Yunus,
PW-4 Nawab Ali and PW-5 Qaiyum. All
these witnesses have consistently and
cogently stated that deceased committed
suicide due to persistent demand of dowry
and harassment by accused-appellant. In
this regard no major contradiction or
inconsistency could be shown. The fact
that due to demand of dowry and
harassment
meted
out
by
accusedappellant
and
his
family
members,
deceased to stay for about seven months at
her
parental
home,
further
supports
prosecution case. The cumulative effect of
entire evidence clearly indicate that
2 All. Noor Mohammad Vs. State of U.P.
751
deceased was continuously harassed and
ill-treated on account of non-fulfillment of
demand of dowry and due to intervention
of some persons, she was brought back to
her
matrimonial
home
by
accusedappellant by promising that he would not
make any demand and would not harass
the deceased but it appears that demand of
dowry
and
harassment
of
deceased
remained continued and due to which
deceased
committed
suicide.
The
substance
of
evidence
conclusively
establishes that accused-appellant was
persistently harassing and ill-treating the
deceased as he was dissatisfied with the
dowry given and the demand of golden
chain, motorcycle and cash of Rs. one lakh
was not fulfilled.

30. At this stage, question which
requires consideration is whether in view
of such facts and evidence, is it possible to
convict accused-appellant under Section
306 of IPC in the absence of any charge
under Section 306 IPC. Dealing with
similar issue in the case of Dalbir Singh
vs State Of U.P 2004 (5) SCC 334,
Hon'ble Apex Court has held as under:

''Here the Court proceeded to
examine the question that if the accused
has been charged under Section 302 IPC
and the said charge is not established by
evidence, would it be possible to convict
him under Section 306 IPC having regard
to Section 222 Cr.P.C. Sub-section(1) of
Section 222 lays down that when a person
is charged with an offence consisting of
several particulars, a combination of some
only of which constitutes a complete minor
offence, and such combination is proved,
but the remaining particulars are not
proved, he may be convicted of the minor
offence, though he was not charged with it.
Sub-section (2) of the same Section lays
down that when a person is charged with
an offence and facts are proved which
reduce it to a minor offence, he may be
convicted of the minor offence, although
he is not charged with it. Section 222
Cr.P.C. is in the nature of a general
provision which empowers the Court to
convict for a minor offence even though
charge has been framed for a major
offence. Illustrations (a) and (b) to the said
Section also make the position clear.
However, there is a separate chapter in
the Code of Criminal Procedure, namely
Chapter XXXV which deals with Irregular
Proceedings and their effect. This chapter
enumerates various kinds of irregularities
which have the effect of either vitiating or
not vitiating the proceedings. Section 464
of the Code deals with the effect of
omission to frame, or absence of, or error
in, charge. Sub- section (1) of this Section
provides that no finding, sentence or order
by a Court of competent jurisdiction shall
be deemed invalid merely on the ground
that no charge was framed or on the
ground
of
any
error,
omission
or
irregularity in the charge including any
misjoinder of charges, unless, in the
opinion
of
the
Court
of
appeal,
confirmation or revision, a failure of
justice has in fact been occasioned
thereby. This clearly shows that any error,
omission or irregularity in the charge
including any misjoinder of charges shall
not result in invalidating the conviction or
order of a competent Court unless the
appellate or revisional Court comes to the
conclusion that a failure of justice has in
fact been occasioned thereby. In Lakhjit
Singh (supra) though Section 464 Cr.P.C.
has not been specifically referred to but
the Court altered the conviction from 302
to 306 IPC having regard to the principles
underlying
in
the
said
Section.
In
Sangaraboina Sreenu (supra) the Court
752 INDIAN LAW REPORTS ALLAHABAD SERIES
completely
ignored
to
consider
the
provisions of Section 464 Cr.P.C. and
keeping in view Section 222 Cr.P.C. alone,
the conviction of the appellant therein
under Section 306 IPC was set aside.

After examining several provisions
and earlier decisions, it was further held as
under:.

''There are a catena of decisions
of this Court on the same lines and it is not
necessary to burden this judgment by
making reference to each one of them.
Therefore, in view of Section 464 Cr.P.C.,
it is possible for the appellate or revisional
Court to convict an accused for an offence
for which no charge was framed unless the
Court is of the opinion that a failure of
justice would in fact occasion. In order to
judge whether a failure of justice has been
occasioned, it will be relevant to examine
whether the accused was aware of the
basic ingredients of the offence for which
he is being convicted and whether the
main facts sought to be established against
him were explained to him clearly and
whether he got a fair chance to defend
himself. We are, therefore, of the opinion
that Sangarabonia Sreenu (supra) was not
correctly decided as it purports to lay
down as a principle of law that where the
accused is charged under Section 302
IPC, he cannot be convicted for the
offence under Section 306 IPC''.

In K. Prema S. Rao and another vs.
Yadla
Srinivasa
Rao
and
others
reported in (2003)1 SCC 217, it has been
held:-

"Mere omission or defect in
framing charge does not disable the
Criminal Court from convicting the
accused for the offence which is found to
have been proved on the evidence on
record. The Code of Criminal procedure
has ample provisions to meet a situation
like the one before us. From the Statement
of Charge framed under Section 304B and
in the alternative Section 498A, IPC (as
quoted above) it is clear that all facts and
ingredients for framing charge for offence
under Section 306, IPC existed in the case.
The mere omission on the part of the trial
Judge to mention of Section 306, IPC with
498A, IPC does not preclude the Court
from convicting the accused for the said
offence when found proved. In the
alternate charge framed under Section
498A of IPC, it has been clearly mentioned
that the accused subjected the deceased to
such cruelty and harassment as to drive
her to commit suicide. The provisions of
Section 221 of Cr.P.C. take care of such a
situation and safeguard the powers of the
criminal court to convict an accused for
an offence with which he is not charged
although on facts found in evidence, he
could have been charged for such offence.

Discussing provisions of section
221 CrPC, it was further held as under;

''As provided in Section 215 of
Cr.P.C. ommission to frame charge under
Section 306 IPC has not resulted in any
failure of justice. We find no necessity to
remit the matter to the trial court for
framing charge under Section 306 IPC
and direct a retrial for that charge. The
accused cannot legitimately complain of
any want of opportunity to defend the
charge under Section 306, IPC and a
consequent failure of justice. The same
facts found in evidence, which justify
conviction of the appellant under Section
498A for cruel treatment of his wife, make
out a case against him under Section 306
IPC of having abetted commission of
suicide by the wife. The appellant was
charged for an offence of higher degree
2 All. Noor Mohammad Vs. State of U.P.
753
causing "dowry death" under Section
304B which is punishable with minimum
sentence
of
seven
years
rigorous
imprisonment and maximum for life.
Presumption under Section 113A of the
Evidence Act could also be raised against
him on same facts constituting offence of
cruelty under Section 498A, IPC. No
further opportunity of defence is required
to be granted to the appellant when he had
ample opportunity to meet the charge
under Section 498A, IPC."

In Lakhjit Singh vs. State of Punjab
[1994 Supp. (1) SCC 173], the accused
were charged and convicted of offence
under Section 302 IPC. The High Court
upheld their conviction.