# Om Prakash @ Guddu & Ors v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 413
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Application U/S 482. No. 37952 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-guddu-ors-v-state-of-u-p-anr-50215
- **Pages:** 16

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
482
-
Inherent power - Indian Penal Code,
1860 - Sections 498-A & 304-B , Dowry
prohibition Act,1961 - Section 3/4 ,
Indian Evidence Act, 1872 - Section
32(1) - dying declaration ,Section 65B -
Admissibility of electronic records ,
Section 113B - Presumption of dowry
death

-
at
the
time
of
taking
cognizance or framing charge there
would be no requirement of certificate
under
Section
65B(4)
even
if
the
document so produced is a secondary
evidence - when prima facie case of
murder is made out, the discharge of
the
accused
merely
because
the
accused had no intention to kill the
deceased is not proper - At the stage of
charge, the standard of tests regarding
guilt
or otherwise
of
the
accused
cannot be applied - If two views are
equally possible and the evidence gives
rise to a grave suspicion, charge may be
framed - It is the trial in which the guilt
or the innocence of the accused will be
d etermined and not at the time of
taking cognizance or framing of charge.
(Para - 42,52,54)

Unnatural death within seven years of
marriage - Demand of dowry - accused
persons and deceased beaten -mental and
physical cruelty - caused in her matrimonial
house - ante mortem injury - mysterious
circumstances - difference of opinion of the
doctors
-
manual
strangulation
-
maltreatment and cruelty - unethical relation
between the applicant no.1 and the applicant
no.5. (Para - 29,50)

HELD:- Charge sheet and the rejection of
the discharge application of the applicants
under Section 227 CrPC not liable to be
interfered with. Court need not undertake an
elaborate inquiry in sifting and weighing the
materials nor is it necessary to delve deep
into various aspects. Defence of accused not
seen. No case made out in favour of
applicants. Charge sheet submission lacks
proper
ground.
Rejection
of
discharge
application bad in view of the facts and
law.(Para - 52,54,55)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:

## Text

_Characters 0–39,872 of 55,448. This is a partial read: ask again with offset=39872 for what follows._

5 All. Om Prakash @ Guddu & Ors. Vs. State of U.P. & Anr.
413
----------
(2023) 5 ILRA 413
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 37952 of 2022

Om Prakash @ Guddu & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Pranav Tiwary, Sri Atharva Dixit, Sri
Aushim Luthra, Sri Manish Tiwari, (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri Udai Chandani

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
482
-
Inherent power - Indian Penal Code,
1860 - Sections 498-A & 304-B , Dowry
prohibition Act,1961 - Section 3/4 ,
Indian Evidence Act, 1872 - Section
32(1) - dying declaration ,Section 65B -
Admissibility of electronic records ,
Section 113B - Presumption of dowry
death

-
at
the
time
of
taking
cognizance or framing charge there
would be no requirement of certificate
under
Section
65B(4)
even
if
the
document so produced is a secondary
evidence - when prima facie case of
murder is made out, the discharge of
the
accused
merely
because
the
accused had no intention to kill the
deceased is not proper - At the stage of
charge, the standard of tests regarding
guilt
or otherwise
of
the
accused
cannot be applied - If two views are
equally possible and the evidence gives
rise to a grave suspicion, charge may be
framed - It is the trial in which the guilt
or the innocence of the accused will be
d etermined and not at the time of
taking cognizance or framing of charge.
(Para - 42,52,54)

Unnatural death within seven years of
marriage - Demand of dowry - accused
persons and deceased beaten -mental and
physical cruelty - caused in her matrimonial
house - ante mortem injury - mysterious
circumstances - difference of opinion of the
doctors
-
manual
strangulation
-
maltreatment and cruelty - unethical relation
between the applicant no.1 and the applicant
no.5. (Para - 29,50)

HELD:- Charge sheet and the rejection of
the discharge application of the applicants
under Section 227 CrPC not liable to be
interfered with. Court need not undertake an
elaborate inquiry in sifting and weighing the
materials nor is it necessary to delve deep
into various aspects. Defence of accused not
seen. No case made out in favour of
applicants. Charge sheet submission lacks
proper
ground.
Rejection
of
discharge
application bad in view of the facts and
law.(Para - 52,54,55)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:

1. Anwar P.V. Vs P.K. Basheer & ors., (2014) 10
SCC 473

2.
Arjun
PanditraoKhotkar
Vs
Kailash
KushanraoGorantyal, (2020) 7 SCC 1

3. Ravinder Singh @ Kuku Vs St. of Punj., 2022
Live Law (SC) 461

4. Anvar P.V. Vs P.K. Basheer, (2014) 10 SCC
473 (three-Judge Bench)

5. St. of U.P. Vs Ajai Kumar Sharma, 2016 (92)
ACC 981 (SC)

6. Mukesh Vs St. (NCT) of Delhi & ors., AIR
2017 SC 2161

7.R.M. Malkani Vs St. of Maha., AIR 1973 SC
157
414 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Ram Singh & ors. Vs Col. Ram Singh, 1985
(Supp) SCC 616

9. Harpal Singh Vs St. of Punj., (2017) 1 SCC
734

10. Vikram Singh Vs St. of Punj., (2017) 8 SCC
518

11. St. by Karn. Lokayukt P.S. Bengaluru Vs
M.R. Hiremath, 2019 0 Supreme 590 (SC)

12.
Arjun
PanditraoKholkar
Vs
Kailash
KushanraoGorantyal & ors., AIR 2020 SC
4908

13. Mohammad Arif @ Ashfaq Vs St. (NCT) of
Delhi, 2022 0 Supreme (SC) 1113

14. Kewal Krishan Vs Suraj Bhan, AIR 1980 SC
1780

15. R.S. Nayak Vs A.R. Antulay & anr., AIR 1986
SC 2045

16. St. of Bihar Vs Ramesh Singh, AIR 1977 SC
2018

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

1. Heard Sri Manish Tiwari, learned
Senior Advocate assisted by Sri Aushim
Luthra, learned counsel for the applicants,
Sri Pankaj Kumar Tripathi, learned AGA
for the State, Sri Udai Chandani, learned
counsel for opposite party no.2 and perused
the record.

2. This application has been moved to
quash the charge sheet dated 20.01.2021
and the order dated 19.10.2022 passed by
Additional Sessions Judge in ST No.298 of
2022 (State Vs. Umashankar and others) in
Crime No.163 of 2020, under Sections 498A, 304-B IPC and Section 3/4 DP Act,
Police
Station
Manduadih,
District
Varanasi pending in the Court of CJM,
Varanasi.

3. In the application it has wrongly
been mentioned that the case was pending
in the Court of CJM, Varanasi virtually the
case has been committed to the Court of
Sessions Judge and at present the case is
pending in the Court of Additional Sessions
Judge-IX, Varanasi as ST No.298 of 2022.

4. In brief, facts of the case are that
the deceased was the daughter of opposite
party no.2, Om Prakash and was the wife of
applicant no.1, Om Prakash @ Guddu and
daughter-in-law of applicant nos.3 and 4.
Applicant no.2 is the real brother of
applicant no.1 and applicant no.5, Radha
Devi is the wife of applicant no.2.

5. As per this application marriage
between the deceased, Nidhi Prakash and
applicant no.1, Om Prakash @ Guddu was
solemnized on 25.06.2018 without any
dowry and charge of additional demand of
dowry of a car and Rs.5,00,000/- has been
denied by the applicant. It is wrong to say
that the deceased was kept hungry due to
which
her
health
was
significantly
deteriorated. It is also wrong that during
her pregnancy proper treatment was not
provided to her but she was in the treatment
and care of Dr. Sarojni Singh. The facts of
the FIR are false and frivolous. There is an
unexplained, inordinate delay of four days
in lodging the FIR. Applicant no.1 belongs
to a very well respectable family and is a
Grade-II Officer in Indian Railway since
2005. Neither any demand of dowry was
made at the time of marriage nor
subsequent to it. The deceased was
accorded full love and affection at her
matrimonial house by the applicants. The
relationship between the applicants and the
deceased was extremely loving and cordial.
Applicant no.1 had also encouraged and
supported her in pursuing her B.Ed. degree
and had furnished the requisite fees and
5 All. Om Prakash @ Guddu & Ors. Vs. State of U.P. & Anr.
415
also helped in obtaining the admit card for
the B.Ed. examination. From the text
messages annexed as annexure-3 to the
affidavit it would reflect that the informant
was a man of limited financial means and a
man of ordinary prudence would not
believe that any demand of dowry was
being made by the applicants from such
informant. Some text messages between the
applicant no.1 and the deceased which
being sensitive and personal in nature have
not been brought on record but they show
that the deceased was leading a happily
married life on very good terms with her
husband. No FIR or complaint or any
proceedings were initiated by the deceased
or the informant prior to the lodging of the
present FIR. Since the deceased became
pregnant, she was receiving thorough and
proficient
medical
attention
and
supervision on the clinic of Dr. Sarojni
Singh,
a
renowned
gynecologist
in
Varanasi where applicant no.5 Radh Devi,
sister-in-law of applicant no.1 and the
deceased was also supervised and treated
and had delivered her child successfully.
Hence, the deceased had been taken there.
Allegation of opposite party no.2 that his
daughter did not receive adequate treatment
and was taken to an inferior clinic is
completely baseless and unwarranted.

6. Earlier in the month of March,
2019, the deceased had become pregnant
and
had
promptly
received
medical
treatment at the New Life Hospital,
Varanasi where she was being treated by
Dr. Neelam Ohari. Knowing the news of
pregnancy, her mother came to the house of
the applicants and insisted that the first
child be born at her parental house and had
taken the deceased to the house of the first
informant but when certain complications
arose, opposite party no.2 took her to Dr.
Akanksha Singh but seeing no positive
result, applicant no.1 immediately got his
wife back home and took her back to Dr.
Neelam Ohari. However, it was too late to
handle the situation and the deceased had a
miscarriage. Hence, when second time the
deceased became pregnant, the applicants
took no risk and immediately took her to
Dr. Sarojni Singh where the deceased was
regularly checked up and she was in a good
medical condition during the entire course
of her pregnancy. The estimated date of
delivery was stated to be 04.05.2020.

7. In the night of 02.05.2020 the
deceased claimed pain in her abdominal
region, hence she was immediately rushed
to the hospital of Dr. Sarojni Singh but at
that time she was not present . Hence, her
daughter Dr. Monisha Singh, gynecologist
attended the deceased and opined that she
was suffering from gastritis and had given
an injection of asiloc after which she felt
relief and was taken back to the home of
the
applicants.
The
doctor
neither
suggested nor indicated that the deceased
was not in a good physical health and it
was not safe for her to have a natural child
birth on 04.05.2020, the estimated date of
her delivery. The deceased was given
regular medical check up during the entire
period of her pregnancy and there was no
abnormality suggested by the treating
doctor regarding the health and condition
of either the mother or the fetus and no
special investigation was recommended by
the treating doctors. The deceased was
examined two days prior to the expected
date of delivery by Dr. Monisha Singh and
no alarms were raised regarding health of
the mother or the fetus. It is evident that the
septicaemia emanated from an infection
post her operation conducted by Dr.
Monisha Singh due to her negligent and
careless handling of the case. Hence, no
fault can be attributed to the applicants
416 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding the unfortunate demise of his
wife. As there was no need for admission
of the deceased in the hospital two days
prior to her estimated date of delivery,
merely in an attempt to generate revenue,
the hospital authorities were insisting for
admission for no valid reason.

8. Accordingly, applicant no.1 took
his wife to the hospital of Dr. Sarojni Singh
on 04.05.2020 and as the deceased and the
fetus were found to be in a good and
healthy condition, no need arose for a
cesarean delivery. Neither there was any
such urgency nor need insisted upon by the
treating doctor. Hence, the deceased
underwent a natural birth. It is improper
allegation that applicants were against the
cesarean delivery and were adamant and
insistent upon the natural birth, since
applicant no.5 had undergone a cesarean
delivery by Dr. Sarojni singh on account of
certain complications during her pregnancy
four year prior to the present incident. On
04.05.2020 the deceased was treated by Dr.
Monisha Singh who had completed her MS
in the year 2019 and was an inexperienced
doctor, a doctor on call supervising the
delivery of the deceased. When the
deceased went in for her delivery she was
in good physical health. It appears that
owing to the inexperience of Dr. Monisha
Singh who operated the deceased without
proper preparation and investigation whose
negligent in performing her duties, it led to
certain complications. The health of the
deceased started deteriorating immediately
after the delivery procedure. On account of
the negligence of the operating doctor, Dr.
Monisha Singh, the internal organs (chest,
kidney and liver of the deceased) had
infection and started deteriorating in a rapid
manner and hence the applicants got her
admitted at Apex Hospital for better
treatment as she was in immediate need of
dialysis. However, during treatment the
deceased passed away on 07.05.2020 in
spite of best efforts of the applicants.

9. The unfortunate demise of the
deceased was due to post pregnancy
complications owing to the inexperience
and negligence of the treating doctor for
which applicants cannot be held liable. In
the
treatment
of
the
deceased
approximately Rs.7,00,000/- were remitted
by the applicant nos.1 and 3 and under such
circumstances no man of ordinary prudence
would be tempted to believe that any
demand of dowry was being made by either
of the accused persons. Hence, it is evident
that the FIR is the outcome of malice to
harass the applicants and browbeating them
into succumbing to his onerous and
arbitrary demand for financial gratification
under the threat of frivolous criminal
litigation.

10. As per post mortem report the
deceased died on account of septicaemic
shock due to infection of lungs and uterus.
Since the death of the deceased took place
on account of natural causes ingredients of
Section 304-B IPC are absolutely absent.

11. In parcha no.1 of the case diary
dated 12.05.2020 the informant has tried to
support the prosecution version and has
made major development that his daughter
was assaulted by the applicants and has
also tried to support the contents of the FIR
and
upon
being
questioned
by
the
investigating officer (I.O.) he has stated
that he was informed by the treating doctor,
Dr. S.S. Bohra that abrasion mark on the
neck of the deceased was not on account of
physical assault but the same was caused
by installing the catheter for conducting
dialysis on the deceased at the Apex
Hospital. In parcha no.2 Smt. Kalawati
5 All. Om Prakash @ Guddu & Ors. Vs. State of U.P. & Anr.
417
Devi has also tried to support the
prosecution version in her statement. In
parcha no.3 Dr. S.S. Bohra of Apex
Hospital stated that at the time of admission
of the deceased in the Apex Hospital there
were no marks of injury on her body. The
urine out put was nil, she was put in
dialysis and a catheter was inserted and the
abrasion mark on her neck would have
been likely caused in the course of removal
of dianaplast and in inquest report dated
07.05.2020, cause of death was informed to
be sudden cardiac arrest and in which no
bodily injury was observed.

12. It is a case of the prosecution that
on 30.04.2020 the deceased made a phone
call and narrated the physical violence
caused by the applicants and also that a
recording of said phone conversation was
also made though the incident having
occurred on 30.04.2020 and recording of
such statement is denied and it is also
evident that neither such mobile phone was
submitted to the police nor alleged call
recording has been certified in accordance
with Section 65-B of the Indian Evidence
Act, 1872 (in short 'the Act, 1872'). As
enshrined by the Apex Court in the Case of
Anwar P.V. Vs. P.K. Basheer and others,
(2014) 10 SCC 473 and Arjun Panditrao
Khotkar
Vs.
Kailash
Kushanrao
Gorantyal, (2020) 7 SCC 1 it cannot be
considered as evidence.

13. In parcha no.5 statements of Niti
Prakash, Dipika and Pintoo were recorded
by the I.O. As per parcha no.6 Apoorva
Kumar, brother of the deceased provided a
pen drive containing a phone call recording
of a conversation between the deceased and
her mother on 30.04.2020, the pen drive
would be secondary evidence and without
receiving a certification under Section 65-B
of the Act, 1872, the same cannot be
considered as evidence.

14. A transcript of telephonic
conversation is being attached as annexure
no.4 to the affidavit filed in support of the
instant application.

15. In parcha no.7, statement of Dr.
Monisha Singh has been recorded in which
she has tried to cover up her negligence due
to which the deceased contacted an
infection which spread to her vital organs
and
the
applicants
are
being
made
escapegoat in the present case. Dr. Monisha
Singh has stated that there were no injury
marks on the body of the deceased at the
time of her admission. A report was also
sought from the Apex Hospital. On keeping
the reports of Dr. Monisha Singh and those
of Apex Hospital in juxtaposition would lead
to severe contradiction. The report of Dr.
Manoj Kumar Pathak in the capacity of
forensic expert transcribed in parcha no.14 is
merely based on insinuations and assumptions
which cannot be relied upon on the basis of the
photographs of the ante mortem injuries, the
post mortem report and the treatment history
shown to him and he had not attended the
body of the deceased himself.

16. In cases of dialysis, first a vein is
chosen for insertion of a dialysis catheter in
a right jugular vein which can be
ascertained from perusal of point 5.4.2 of
the KDIOG (Clinical Practice Guideline for
Acute Kidney Injury) which is annexed as
annexure-20 to the affidavit.

17. Dr. Prakash Kumar Bharti and
S.S. Bohra have given contrary opinion to
that offered by Dr. Manoj Kumar Pathak.
On the basis of above, it is evident that no
criminal offence is made out.
418 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The deceased died on account of
complications arose during child birth and
negligence by the treating doctor. Prior to
the present charge sheet a charge sheet
dated
07.10.2021
was
filed
against
applicant nos.1, 2 and 3 under Sections
498-A, 304-B IPC and Section 3/4 DP Act.
Applicant no.1 had been released on bail
vide order dated 01.11.2021 in which the
Hon'ble Court observed that the opinion
sought from Dr. Pathak was unethical when
two professional doctors have two different
opinions and it cannot be said with
certainty that whose opinion is wrong. The
deceased had died as a result of post
cesarean operation at Apex Hospital,
Varanasi and the death of the deceased has
no connection with any dowry being
demanded by the applicants. Applicant
nos.2 and 3 have also been granted bail on
20.08.2020 and 07.09.2020 respectively.
Applicant nos.4 and 5 have also been
released on bail by the court below.

19. The applicants preferred a discharge
application (annexure-26 to this application)
before the Additional Sessions Judge,
Varanasi which was rejected on 09.10.2022.
The trial court has passed the impugned order
in a very mechanical manner and has
completely ignored the fact that the said
death was due to natural causes and the so
called injuries on the body of the deceased
had been duly explained during the course of
investigation. The applicants are innocent and
have been falsely implicated in this case. This
case is a gross abuse and misuse of process of
law. Applicants are peace loving and law
abiding citizens. They have only criminal
antecedents owing to the dispute between the
family members which has already been
explained. Hence, the application be allowed
and the charge sheet and the impugned order
regarding rejection of discharge application
be quashed.

20. All the papers referred in the
application have been annexed with the
affidavit.

21. Opposite party no.2 has filed
counter affidavit to the application and has
alleged that the deceased chatted with her
family on 30.04.2020 stating that the
accused persons will murder her and there
is serious threat to her life and requested
her family members to protect her from the
applicants and other accused persons. This
conversation has been attached with the
affidavit as annexure-CA-1. On 20.10.2019
also there was a chat between Neetu, Om
Prakash (father of the deceased) and Nidhi
Prakash in which she disclosed that there is
serious threat to her life and liberty from
the applicants. It is attached as annexureCA-2. The police authorities were hand in
gloves with the accused and were not
registering the FIR and, therefore, several
complaints were made to the superior
police officer for registration of the FIR by
the informant and brother of the deceased
which have been annexed as annexure-CA3. The photographs of the deceased clearly
established that abrasions wound is present
alongwith a punctured wound which
demonstrates
strangulation.
An
expert
opinion (annexure-CA-4) was obtained
from the professor and head of department
of forensic medicine (BHU) which reveals
serious ante mortem injuries caused to the
deceased by the accused persons. The
doctor who conducted the operation has
also filed her affidavit on 19.05.2020
whereby it is established beyond doubt that
there were ante mortem injuries and there
was serious problem faced by the deceased
due to the illegal act committed by the
accused persons which is annexed as
annexure-CA-5. During the inquest serious
injuries have been found and that the death
is not only due to medical reasons which is
5 All. Om Prakash @ Guddu & Ors. Vs. State of U.P. & Anr.
419
annexed
as
annexure-CA-6.
All
the
aforementioned documents are the part of
the case diary and were supplied to the I.O.
but the I.O. in connivance with the accused
persons, was not investigating properly.

22. The informant, Smt. Kalawati
Devi (mother of the deceased) and Apoorva
Kumar (brother of the deceased) have
disclosed in their statements that the
deceased was murdered due to demand of
dowry by the applicants. The statement of
Ravi
Prakash
and
Rajneesh
Kumar,
witnesses of inquest has also been annexed
as annexure-CA-9. The mobile recording
was provided to the I.O. by the brother of
the deceased which was made part of the
case diary vide paper no.CD-6. The CMO,
Varanasi had also requested the Deputy
Director, SSPG, Varanasi to constitute a
medical board so that the truth about
injuries found during the post mortem can
be
examined
which
is
annexed
as
annexure-CA-13.

23. It has been further stated that the
entire incident comes under the cloud of
suspicion but from bare perusal of the
expert opinion alongwith post mortem
report and the affidavit of Dr. Sarojni
Singh, it is evident beyond doubt that the
act of the accused persons is clearly
establishing the offence under Sections
498-A, 304-B IPC and Section 3/4 DP Act
and the presumption under Section 113-B
of the Act, 1872 is also established. Serious
injuries were caused to the deceased by the
accused which is evident and established
from the post mortem report. Prior to the
death, the deceased had informed her
family members that there is likelihood of
her murder and the baby which is not yet
born. Only by mentioning that applicants
belonged to a respectable family does not
in any way take away the serious, heinous
offence committed by them and when from
the very beginning there was demand of
dowry and cruelty on the deceased and the
relationship of the applicants with the
deceased was not at all cordial and loving
but the same was cruel just to fulfil the
demand as raised time to time by them. The
entire fees and expenditure regarding B.Ed.
examination was borne by the informant,
father of the deceased and no financial help
had been accorded by the applicants by any
means and a completely concocted and
manufactured story has been cropped up in
this regard. It is evident from the statement
of Dr. Sarojni Singh that the deceased had
sustained ante mortem injuries and her
condition was very critical when she was
brought to the hospital and even though on
the insistence of Dr. Sarojni Singh
deliberately the applicants avoided her to
be taken to intensive care unit of
specialized hospital due to which she
expired. It was not the act of negligence but
sheer deliberation of committing the
offence under Section 304-B IPC.

24. It is further stated that the
deceased was never taken for medical
treatment by the applicants but father of the
deceased and her family members were
taking care and she was living with them
but the applicants forcefully took the
deceased back to their house where the
deceased sustained miscarriage and the
deceased was taken for regular medical
check up during pregnancy by her father or
her family members and not by the
applicants. The said version in this regard
is completely unacceptable. The deceased
was not suffering from any disease. The
applicants never informed the family
members of the deceased that they are
taking her to the hospital for delivery. After
death of the deceased the family members
came to know about the same and when
420 INDIAN LAW REPORTS ALLAHABAD SERIES
they verified the facts from the medical
expert and Dr. Sarojni Singh, the entire
picture relating to the misdeed of the
applicants came to the knowledge of the
deponent and his family members. There
were serious injuries caused to the
deceased by the accused persons which is
evident from the post mortem report. From
the photographs of the deceased it is clearly
established that the abrasion wound was
present alongwith a punctured wound
which
in
the
opinion
demonstrates
strangulation which has been confirmed by
the professor and head of forensic medicine
department of BHU. The doctor who had
conducted the operation has filed her affidavit
dated 19.05.2020 which established beyond
doubt that the ante mortem injuries were in
existence and there was serious problem
faced by the deceased due to illegal act
committed by the accused persons and the
expert also specifically stated that it is a case
of manual strangulation and serious act of
throttling as potential cause of death and there
were ante mortem injuries consisting of
abrasion
and
punctured
wound.
The
informant has not manipulated the facts and it
has been misinterpreted and manipulated by
the applicants. The medical evidence and the
expert opinion as well as the last recording of
the deceased with her family members and
the statements of the witnesses established
the case beyond doubt against the applicants.
Dr. S.S. Bohra is hand in gloves with the
applicants and his testimony is unreliable as
the same refuted from the expert opinion.
There is no reply by the applicants regarding
bodily injuries sustained by the deceased as
under what circumstances she sustained
injuries and the burden lies upon them under
Section 113-B of the Act, 1872.

25. The recording dated 30.04.2020 is
an electronic evidence and the same
established doubt that the physical violence
and threats to the life of the deceased was
being done time and again by the applicants
and
the
recording
dated
30.04.2020
obtained from the mobile phone of
Apoorva Kumar is an electronic evidence
in the eyes of law and cannot be
overlooked by the Court as the mobile
phone of the deceased was tampered and
was in the custody of the applicants and the
I.O. was hands in gloves with the
applicants and till today the mobile of the
deceased has not been recovered by the I.O.
and the charge sheet has been submitted
though the same was the most credential
evidence. Dr. Monisha Singh has stated
that there was no negligence on her part but
the applicants deliberately delayed the
process and not even considered the
opinions made by the doctors and there
were serious injuries caused to the
deceased by the accused persons which is
quite evident from the post mortem report
and the photographs established abrasion
alongwith a punctured wound which
demonstrates
strangulation.
The
Apex
Hospital is a private hospital. On the basis
of reports of this hospital it cannot be
presumed that the deceased died a natural
death while the concerned doctor was a
close friend of the applicants and is hand in
gloves with them. The report of forensic
department of BHU is a substantive,
corroborative piece of evidence which
clearly established that the deceased was
assaulted and had received ante mortem
injuries due to which she expired. Since the
report and statement of Dr. Prakash Kumar
Bharti and Dr. S.S. Bohra were not in
consonance with, therefore, expert opinion
was obtained from Forensic Science
Department of BHU. The doctor who
conducted the operation in her affidavit
dated 19.05.2020 stated that the deceased
was facing serious problems due to the
illegal act of the accused persons. She has
5 All. Om Prakash @ Guddu & Ors. Vs. State of U.P. & Anr.
421
specifically stated that it is a case of
manual strangulation and serious act of
throttling as potential cause of death. On
the basis of above, a prayer has been made
to dismiss this application filed by the
applicants.

26. The applicants have filed
rejoinder affidavit and have denied the
contents of the counter affidavit and have
alleged that the alleged conversation dated
30.04.2020 does not find any mention in
the FIR, it has been added through
statement under Section 161 CrPC as an
afterthought more so the same has not been
certified in accordance with Section 65-B
of the Act, 1872. Hence, the same cannot
be considered as evidence. The whatsapp
chats have again not been certified in
accordance
with
Section
65-B.
The
deceased had died due to post pregnancy
complications and the charge sheet has
been submitted which shows that the police
was actually hand in gloves with the
informant. The ante mortem injuries were
caused due to cesarean operation and
abrasion on the neck was due to the use of
catheter which was inserted for the purpose
of dialysis. There was no punctured wound
on the body of the deceased. From the
perusal of the photograph, nature of injuey
cannot be definitively determined. Hence,
the report of forensic expert cannot be
relied on.

27. Dr. Sarojni Singh had not
conducted the operation. She has stated just
to cover up the medical negligence on the
part of her hospital. The injury report has
no evidentiary value in the eyes of law. It is
the post mortem report which is to be relied
upon and the injuries found in the post
mortem report have been duly explained.
Apoorva Kumar brother of the deceased
has clearly admitted that the abrasion on
the neck was caused due to use of catheter.
Electronic evidence cannot be considered
due to non-compliance of the direction of
Section 65-B of the Act, 1872. There is no
dying declaration of the deceased and the
statement made by the deceased to her
family members would be hearsay and
extra judicial in nature.

28. Heard and perused the record.

29. On the basis of above submission
these facts come out that there is allegation
of unnatural death within seven years of
marriage. There is allegation of demand of
dowry. According to the I.O. on the basis
of oral, documentary and medical evidence
it is not a case of medical negligence.
According to the applicants if it is a case of
medical negligence caused by Dr. Monisha
Singh why no FIR had been lodged by the
applicants against her is a point of
consideration and it goes against the
applicants.

30.

The
conversation
dated
30.04.2020 disclosed that the deceased was
in fear to her life with the applicants. On
30.04.2020 the deceased had told to her
sister Deepa that "whether she will remain
alive or not. Now it is high time beyond the
limit of tolerance. Yesterday both the
brothers beaten her together with kicks and
punches. Tell me, let us eat poison, die or
run away. Now the bier will go from the
house. You guy make arrangement for this.
You will not get any news. Hands and legs
will be raised. There will be no news about
it. The mother of the deceased is telling
why did you not talk after asking from the
phone. The deceased replied that phone is
not available here, if asked for phone, it is
said that there are many things in the
phone how phone can be given. After
telling a lot the phone is being received.
422 INDIAN LAW REPORTS ALLAHABAD SERIES
Mother spoke your condition is not good,
speak quietly. The deceased said that all
the respect is gone. They are sitting her all
around. They are listening what we are
talking about. Again being questioned by
mother, the deceased replied that her
position was finished. The deceased further
states, now you come with police but they
refused. She has further stated that
something is happening, we are not getting
relief. She further stated that she was
beaten with kicks and punches. Her mother
spoke, in such situation who beaten you, is
it not a matter of shame. The deceased
replied, your son-in-law has beaten. The
deceased has further said that the accused
persons are saying to leave his son. They
will give her more and more money. She
cannot move anywhere, they are not letting
her to go out. The deceased has clearly
stated that these people are saying that you
leave their son, they will pay her money
multiple to twice-thrice. Now there is no
peace, whole plan has been made to
remove the thorn. Every one is saying to
leave our son (husband), they will give her
money multiplied three-four times. They
are considering her as home farming. The
mother-in-law is saying to take three times
money from them to spare the life of her
child (husband of the deceased). Nothing
can happen. Now you will see my dead
face, just you take away me. Mother of the
deceased had replied that keep calm and
give the phone to bauji".

31. In the meantime a person reached
to the deceased and said that your wish has
come true and now go from here.
Thereafter mother of the deceased is trying
to talk again with the deceased but the
phone was disconnected.

32. The statement recorded on
20.10.2020 is between the deceased, her
sister - Niti, father Om Prakash and it has
also been made basis for submission of
charge sheet. The relevant part of this
conversation is also noted herein below in
which the deceased was saying that "she
has heard so much in the night. There is no
here to keep calm. Now everyone here is
going to hit the tone "your father is a shoe
polisher". I am hearing that my father has
polished the shoe. Did you tell that you
have polished their shoes...... Here I am
hearing a lot of tone that I am the girl of
shoe polisher. I will not stay here at all, no
one is here to take guarantee". In this
conversation opposite party no.2 also made
allegation that applicant no.1, husband of
the deceased had illicit relation with his
brother's wife. Opposite party no.2 angrily
said that if his son-in-law, applicant no.1
was cohabiting his sister-in-law by keeping
her as mistress, then why he solemnized
marriage with his daughter. He said to call
mausa of the deceased to take her back.

33. From the above discussion it is
clear that all was not well within the
matrimonial family of the deceased and
between the deceased and applicant no.1. It
has also been argued that if accused
applicant no.1 was in service in Class-II of
Railway Department since 2005 why he
solemnized
marriage
after
such
unreasonable time.

34. Learned counsel for the applicants
has raised objection that such conversation
cannot be read in evidence in view of
Section 65-B of the Act, 1872. In this
regard several decisions are available
which are as under:-

(I) In Ravinder Singh @ Kuku
Vs. State of Punjab, 2022 Live Law (SC)
461 it was held that the certificate under
Section
65-B(4)
is
a
mandatory
5 All. Om Prakash @ Guddu & Ors. Vs. State of U.P. & Anr.
423
requirement for production of electronic
evidence. It was also held that oral
evidence in place of such certificate cannot
be possibly suffixed. It was also held that in
cases based on circumstantial evidence
from the circumstances and inference as to
the guilt of the accused have to be proved
beyond reasonable doubt and have to be
shown to be closely related with the
principal facts sought to be inferred from
those circumstances. In the present case the
electronic evidence is the primary evidence
not the secondary evidence and sufficient
material is available on the record to prove
the chain of the circumstantial evidence
against the accused applicants beyond all
reasonable doubts. For convenience Section
65-B(4) of the Indian Evidence Act reads
as under:-

"65B. Admissibility of electronic
records.--(4) In any proceedings where it is
desired to give a statement in evidence by
virtue of this section, a certificate doing
any of the following things, that is to say--

(a) identifying the electronic
record containing the statement and
describing the manner in which it was
produced;

(b) giving such particulars of any
device involved in the production of that
electronic record as may be appropriate
for the purpose of showing that the
electronic record was produced by a
computer;

(c) dealing with any of the
matters to which the conditions mentioned
in sub-section (2) relate, and purporting to
be signed by a person occupying a
responsible official position in relation to
the operation of the relevant device or the
management of the relevant activities
(whichever
is
appropriate)
shall
be
evidence of any matter stated in the
certificate; and for the purposes of this subsection it shall be sufficient for a matter to
be stated to the best of the knowledge and
belief of the person stating it."

(II) In Anvar P.V. Vs. P.K.
Basheer, (2014) 10 SCC 473 (three-Judge
Bench) it has been ruled that under Section
65B(4)
certificate
is
necessary
for
admissibility of the secondary evidence.

(III) In State of UP Vs. Ajai
Kumar Sharma, 2016 (92) ACC 981 (SC)
(para 14) it is laid down that a "Compact
Disk" is a "document" on which admission
and denial may be made by both the parties
or their advocates.

(IV) In Mukesh Vs. State (NCT)
of Delhi and others, AIR 2017 SC 2161
(three-Judge Bench) Computer Cell Expert
revealed no tampering or editing of the
CCTV footage. It was held to be admissible
under Section 65B of the Evidence Act.

35. Under Section 3(2) of the Act,
1872, electronic records are the documents
and they are relevant and admissible under
Sections 17, 22A, 34, 35, 39, 45A, 47-A,
59, 65-A, 65-B, 67-A, 73-A, 81-A, 85-A,
85-B, 85-C, 88, 88-A, 90-A and 131 of the
Evidence Act.

36. In R.M. Malkani Vs. State of
Maharashtra, AIR 1973 SC 157 and in
Ram Singh and others Vs. Col. Ram
Singh, 1985 (Supp) SCC 616 and the
State (NCT) of Delhi (supra) it is held that
the relevant conversation recorded in the
tape recorder is admissible in evidence.

37. In Anvar P.V. (supra) and
Harpal Singh Vs. State of Punjab, (2017)
1 SCC 734 the Apex Court held that proof
of electronic record is a special proviso
introduced under the Evidence Act. The
very caption of Section 65A of the
Evidence Act, read with Sections 59 and
65B is sufficient to hold that the special
provisions
on
evidence
relating
to
424 INDIAN LAW REPORTS ALLAHABAD SERIES
electronic record shall be governed by the
procedure prescribed under Section 65B of
the Evidence Act. That is a complete Code
in itself. Being a special law, the general
law on secondary evidence under Sections
63 and 65 has to yield. An electronic record
by way of secondary evidence therefore
shall not be admitted in evidence unless the
requirements
under
Section
65B
are
satisfied. Thus, in the case of CD, VCD,
chip, etc. the same shall be accompanied by
the certificate in terms of Section 65B
obtained at the time of taking the
document, without which the secondary
evidence pertaining to that electronic
record, is inadmissible.

38. In Vikram Singh Vs. State of
Punjab, (2017) 8 SCC 518, the original
tape recorded conversation of ransom calls
was handed over to the police, it has been
held that the original tape record was
primary evidence, therefore certificate
under Section 65B of the Evidence Act was
not required for its admissibility. Such
certificate is mandatory only for secondary
evidence and not for the primary evidence.

39.

In
State
by
Karnataka
Lokayukt P.S. Bengaluru Vs. M.R.
Hiremath, 2019 0 Supreme 590 (SC) it is
held that the certificate under Section 65B
is sought to be produced in evidence at the
trial, not at the stage of framing of charge.

40. In Arjun Panditrao Kholkar Vs.
Kailash
Kushanrao
Gorantyal
and
others, AIR 2020 SC 4908 (three-Judge
Bench) it has been held that certificate
required under Section 65B(4) is a
condition precedent to the admissibility of
evidence by way of electronic record. Oral
evidence in the place of such certificate
cannot possibly suffice as Section 65B(4) is
a mandatory requirement of the law.
Section 65B(4) clearly states that secondary
evidence is admissible only if lead in the
manner stated and not otherwise. To hold
otherwise would render Section 65B(4)
otiose.