# Puneet Tripathi v. State of U.P

- **Citation:** (2023) 8 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-04
- **Case number:** Criminal Appeal No. 1045 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puneet-tripathi-v-state-of-u-p-50686
- **Pages:** 18

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections
498-A
&
304-B
-
Dowry
Prohibition Act, 1961 - Section 3⁄4 - Appeal
against conviction - Quashing of - Code of
Criminal Procedure, 1973 - Section 357 -
Indian Evidence Act, 1872 - Sections 73,
106, 113-A, 113-B & 114(g) - Allegation of
abusing, torturing for non-fulfilment of
demand of dowry and killing of deceased
within seven years of marriage against
accused - Held, relation between deceased
and accused not cordial, institution of suit
for restitution of conjugal rights shows
that accused wanted to keep relation
intact - When accused was medical
representative,
promoted
as
area
manager, no such meagre amount and
ordinary articles demanded as dowry -
None of independent witnesses examined
by trial Court, trial concluded without
summoning actual witnesses present on
8 All. Puneet Tripathi Vs. State of U.P.
111
spot who carried deceased to Hospital -
Not consider whether divorce petition was
result of impersonation or not and not
attempt to send alleged suicide note for
expert opinion when admitted signature
of deceased available - Except evidence of
P.W.2 and P.W. 4, no iota of evidence to
convict accused persons - On date, time
and place of occurrence, accused was
there, admitted quarrelling with deceased,
admitted
deceased
in
hospital
but
presence of rest of accused persons not
proved beyond reasonable doubt. (Para
21 to 25)

Appeal partly allowed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,943 of 59,644. This is a partial read: ask again with offset=39943 for what follows._

110 INDIAN LAW REPORTS ALLAHABAD SERIES
is not merely required to take note of the
fact that the name of a person who has not
been named as an accused in the FIR has
surfaced during the trial, but the Court is
also required to consider whether such
evidence would be sufficient to convict the
person being summoned. The Apex Court
further observed that the fulcrum on which
the invocation of section 319 Cr.P.C. rests
is whether the summoning of persons other
than the named accused would make such a
difference to the prosecution as would
enable it not only to prove its case but to
also secure the conviction of the persons
summoned.

20. Thus, in view of the law laid
down by the Hon'ble Apex Court and the
facts and circumstances, as narrated above
and from the perusal of the record, the
impugned
summoning
order
dated
04.03.2020
passed
by
the
learned
Additional Sessions Judge, Court No.3,
Sitapur, summoning the appellants under
Section 319 Cr.P.C., is against the spirit and
directions issued by the Hon'ble Apex
Court and is liable to be set aside.

21. Accordingly, the order dated
04.03.2020
passed
by
the
learned
Additional Sessions Judge, Court No.3,
Sitapur, whereby the appellants have been
summoned under Section 319 Cr.P.C. in
Special Trial No.181/2017 (State Vs.
Shivpal Singh & Others), under Sections
452, 323, 427, 504, 506 I.P.C. and Section
3(1)(Gha) of The Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, Police Station Kotwali, District
Sitapur is hereby set aside and reversed.

22. For the reasons discussed above,
the appeal is allowed in respect of
appellant no.2, Adarsh Singh and appellant
no.3, Vipin Singh.

23. No order as to the costs.
----------
(2023) 8 ILRA 110
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 1045 of 2016
With
Criminal Appeal No. 1044 of 2016

Puneet Tripathi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Radhey Shyam Shukla, Sri Rajesh
Kumar Mishra, Sri Noor Mohammad, Sri
Rudra Pratap Pandey, Sri Vidhu Bhushan
Singh, Sri Kamal Krishna (Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Prashant Kumar Singh

Criminal Law - Indian Penal Code, 1860 -
Sections
498-A
&
304-B
-
Dowry
Prohibition Act, 1961 - Section 3⁄4 - Appeal
against conviction - Quashing of - Code of
Criminal Procedure, 1973 - Section 357 -
Indian Evidence Act, 1872 - Sections 73,
106, 113-A, 113-B & 114(g) - Allegation of
abusing, torturing for non-fulfilment of
demand of dowry and killing of deceased
within seven years of marriage against
accused - Held, relation between deceased
and accused not cordial, institution of suit
for restitution of conjugal rights shows
that accused wanted to keep relation
intact - When accused was medical
representative,
promoted
as
area
manager, no such meagre amount and
ordinary articles demanded as dowry -
None of independent witnesses examined
by trial Court, trial concluded without
summoning actual witnesses present on
8 All. Puneet Tripathi Vs. State of U.P.
111
spot who carried deceased to Hospital -
Not consider whether divorce petition was
result of impersonation or not and not
attempt to send alleged suicide note for
expert opinion when admitted signature
of deceased available - Except evidence of
P.W.2 and P.W. 4, no iota of evidence to
convict accused persons - On date, time
and place of occurrence, accused was
there, admitted quarrelling with deceased,
admitted
deceased
in
hospital
but
presence of rest of accused persons not
proved beyond reasonable doubt. (Para
21 to 25)

Appeal partly allowed. (E-14)

List of Cases cited:

1. Bable Vs St. of Chhatishgarh, AIR 2012 SC
2621

2. Bhagwan Jagannath Markad Vs St. of Mah.,
(2016) 10 SCC 537

3. Jarnail Singh Vs St. of Punj., (2009) 9 SCC
719

4. Nagraj Vs St., (2015) 4 SCC 739, (Para 13)

5. Babu Vs St. of Kerala (2010) 9 SCC 189

6. Nathuni Yadav Vs St. of Bihar (1998) 9 SCC
238

7. G.Parshwanath Vs St. of Karn., AIR 2010 SC
2914

8. Jagdish Vs St. of M.P., 2009 (9) SCC 495

9. Sanjeev Vs St. of Har., (2015) 4 SCC 387,
(Para 16)

10. Radha Mohan Singh @ Lal Saheb Vs St. of
U.P., 2006 (2) SCC 450

11. Brahm Swaroop Vs St. of U.P., AIR 2011 SC
280

12. George Vs St. of Kerala, AIR 1998 SC 1376

13. St. of U.P. Vs Mohd. Iqram, (2011) 3 SCC
(Cri.) 354
14. V.K. Mishra Vs St. of Uttrakhand, (2015) 9
SCC 588 (Three Judge Bench)

15. Panchanand Mandal Vs St. of Jharkhand,
(2013) 9 SCC 800

16. Sanjay Kumar Jain Vs St. of Delhi, (2011) 11
SCC 733

17. Harish Kumar Vs St. of Har., 2015 (88) ACC
640 SC

18. Surinder Singh Vs St. of Har., (2014) 4 SCC
129

19. Manohar Lal Vs St. of Har., (2014) 9 SCC
645

20. Satbir Singh Vs St. of Har., AIR 2005 SC
3546

21. Eshwaraiah Vs St. of Karn., (1994) 2 SCC
677

22. St. of H.P.Vs Raj Kumar, (2018) 2 SCC 69

23. Balram Prasad Agrawal Vs St. of Bihar,
(1997) 9 SCC 338

24. Kailash Chand Vs St. of Raj., (2017) 11 SCC
268

25. Dhari & ors. Vs St. of U.P., AIR 2013 SC 308

26. Shyamal Ghosh Vs St. of West Bengal, AIR
2013 SC 3539

27. Prithi Vs St. of Har., (2010) 8 SCC 536

28. Suchha Singh Vs St. of Punj., (2003) 7 SCC
643

29. Mukesh Vs St. of N.C.T of Delhi & ors., AIR
2017 SC 2161 (Three Judges Bench)

30. Ashok Kumar Chaudhary Vs St. of Bihar,
2008 (61) ACC 972 SC

31. Dharnidhar Vs St. of U.P., (2010) 7 SCC
759

32. Dalbir Kaur Vs St. of Punj., (1976) 4 SCC
158
112 INDIAN LAW REPORTS ALLAHABAD SERIES
33. Nand Kumar Vs St. of Chhatisgarh, (2015) 1
SCC 776

34. Union of India Vs Mahadeolal Prabhudayal,
AIR 1965 SC 1755

35. Moinuddin Vs St. of U.P., 2004 (50) ACC 244

36. Geeta Mehrotra & anr. Vs St. of U.P. & anr.
reported in AIR 2013 Supreme Court 181

37. Kahkashan Kausar @ Sonam & ors. Vs. St.
of Bihar & ors. reported in 2022 0 Supreme (SC)
117, (Para 18)
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard learned counsel for the
appellants, learned A.G.A. for the State and
perused the record.

2. The present appeals have been
preferred by the appellants against the
judgment and order of conviction and
sentencing dated 3.2.2016 in S.T. No. 34 of
2012, Crime No. 440 of 2011 under Section
498-A, 304 B I.P.C. and Section 3⁄4 of D.P.
Act, Police Station- Banda, District-
Shahjahanpur and S.T. No. 216 of 2013
(State Vs. Shivkumar Tripathi and Others).
The learned Additional Sessions Judge,
Court No.VII, Shahjahanpur, has convicted
the accused-husband for commission of
offence under Section 304-B I.P.C. for life
imprisonment, under Section 498-A for
three
years
imprisonment
and
under
Section 4 of the Dowry Prohibition Act, for
two years imprisonment with fine of Rs.
10,000/-
with
default
stipulation.
In
connected S.T. the accused Sujeet Tripathi,
Shivkumar Tripathi, Smt. Bineshwari and
Asha Tripathi have been convicted under
Section 304- B for seven years each, under
Section 498-A I.P.C. for two years with fine
of Rs. 5,000/- each and under Section 4 of
the Dowry Prohibition Act, for six months
with fine of Rs. 5,000/ each, with default
stipulation. It was also directed that out of
the aforesaid amount Rs. 75,000/- shall be
paid as compensation to the father of the
informant and deceased under Section 357
Cr.P.C.

3. Grounds of appeal :

The appellants in both the appeals
have taken grounds that the conviction of
the appellants is against the weight of
evidence on record and is bad in law; on
the facts and circumstance, no offence is
proved against the appellant; the order
passed by the trial Court dated 3.2.2016 is
wholly illegal, arbitrary and not sustainable
in the eye of law and is liable to be quashed
by this Court; the trial Court has erred in
law in convicting the appellants without
considering the facts and circumstances of
the case, and the evidence adduced by the
prosecution are contrary to each other; the
impugned judgment and order has been
passed without application of mind in a
mechanical
manner;
the
impugned
judgment and order has been passed
without
application
of
mind
in
a
mechanical manner; that in any case on the
basis of the record of the case, the
appellants are liable to be acquitted and the
appeal is liable to be allowed as the
prosecution has failed to prove their case
beyond reasonable doubt; and that the
sentence and fine awarded is too excessive
and severe.

4. In brief, facts of the case are that
informant Km. Pooja Vajpayee moved a
written complaint Ex. Ka-1 on 23.8.2022
that her sister Smt. Vandana Vajpayee
(deceased) was married to Puneet Tripathi
about two years ago. Her parents had given
dowry as per their capacity in the marriage
but accused persons were not satisfied and
8 All. Puneet Tripathi Vs. State of U.P.
113
were demanding a Wagon R Car. When the
aforesaid demand could not be fulfilled,
they started beating and torturing her sister.
Her sister was posted as a Primary Teacher
in Banda District Shahjahanpur and used to
live in a rented house of one Anil Jaiswal
with her son namely Achintya aged about
one and half year. Her mother Smt. Shashi
Vajpayee was also living with Vandana. On
22.08.2011 at about 10:30 AM, accused
Puneet and his family members came to the
house of Vandana and at about 4:00 P.M.
ousted her mother from the house saying
that they did not provide the Car, today,
you taste the fun. Her mother remained at
the house of landlord and at about 7:00 PM
on hearing her daughter's screaming, she
went there and saw that Puneet and his
family members had caught the deceased
and administered some material from a
bottle to her. After drinking, Vandana
started vomiting, all the accused persons
after administering poison, fled away. Her
father was keeping ill much before the
incident. Puneet and his family members
used to threaten that if Car was not
provided, they would kill Vandana and also
that Puneet shall marry someone else.

5. On the aforesaid application, the
F.I.R. was registered and chick F.I.R., Ex.
Ka-10 and G.D., Ex. Ka-11, were prepared.
The I.O. prepared site plan, Ex. Ka-3, and
recorded the statement of witnesses and
arrested the accused and submitted chargesheet No. 32 of 2011, Ex. Ka-4, against
Puneet under Section 498A, 304 B I.P.C.
and 3⁄4 D.P. Act. The investigation was kept
pending against rest of the accused persons.
Thereafter the investigation was entrusted
to Sri Vikas Kumar Vaidhya, C.O., who
after recording the statements of the
witnesses
submitted
charge-sheet
No.
32A/2011 dated 01.08.2012, Ex. Ka-5,
against rest of the accused persons.

6. The C.J.M. Shahjahanpur took
cognizance and committed the case to the
Court of Sessions. Learned Addl. Sessions
Judge, Court No. 6, Shahjahanpur, framed
charges on 14.5.2012 against accused
Puneet Tripathi under Section 498-A, 304B I.P.C. and Section 3⁄4 of the Dowry
Prohibition Act. The accused denied the
charges and sought trial.

7. So as to bring home the charge, the
prosecution has examined 9 witnesses who
are as under :

1
Km. Pooja Vajpayee
PW1
2
Smt. Shahsi Vajpayee
PW2
3
Raj Narain
PW3
4
Pinki Srivastava
PW4
5
Dr. Manoj Kumar Srivastava
PW5
6
I.O/C.O. Rajesh Kumar Sonkar
PW6
7
I.O./C.O. Vikas Kumar Vaidhya
PW7
8
Nayab Tehsildar Gajendra Singh PW8
9
Constable Virendra Singh
PW9

8. So as to give credence to these oral
testimonies following documents were also
filed by the prosecution to bring home:

1
Written complaint
Ex.Ka.1
2
Post-mortem report of deceased
Vandana
Ex.Ka.2
3
Site Plan
Ex. Ka. 3
4
Charge-sheet No. 32 of 2011
Ex. Ka. 4
5
Charge-sheet No. 32A/11
Ex. Ka. 5
6
Panchnama
Ex. Ka. 6
7
Photo Lash
Ex. Ka.7
8
Post-mortem Form
Ex. Ka. 8
9
Post-mortem letter
Ex. Ka.9
10
Chick F.I.R.
Ex. Ka.10
11
Kayami G.D.
Ex. Ka.11
12
Marriage Card
M. Ex-1
114 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In brief, evidence of the witnesses
are reproduced hereinbelow:

(a) P.W.-1, Km. Pooja, informant
deposed that, her sister Smt. Vandana
Vajpayee (deceased) was married to Puneet
Tripathi about two years ago. Her parents
had given dowry as per their capacity in the
marriage but accused persons were not
satisfied and were demanding a Wagon R
Car. When the aforesaid demand could not
be fulfilled, they started beating and
torturing her sister. On 22.8.2011, Puneet
and other family members came to the
house of Vandana and at about 4:00 PM,
they ousted her mother from the house of
Vandana saying that she could not provide
a wagon R car now enjoy the taste. Her
mother came down from the room and
stayed in the house of landlord. At about
7:00 PM, screams were heard upon which
her mother ran out and saw that the family
members of Puneet had caught her sister
and Puneet having some substance in a
vial, gave it to Vandana. All the accused
persons ran away after pushing her mother.
Her sister started vomiting. Her mother
took Vandana to the Banda, hospital,
Puneet also reached there wherefrom she
was
referred
to
District
Hospital,
Shahjahanpur
where
she
died.
Panchayatnama was filled in the afternoon.
She told the whole incident to the S.O. in
police station, then she got it typed by
narrating to a typist. C.O. had not not
investigated the case properly, he had not
recorded the statement of her mother, father
and maid Pinki. She complained to D.G. &
I.G. Police. Witness Anil Jaiswal, Geeta
Jaiswal and Apoorva Mishra were in
connivance with the accused persons.
Before this incident, accused persons used
to tender threats to kill her sister and get
Puneet remarried. Her sister had filed a
divorce petition no. 544 of 2011 in Kanpur
Nagar. The marriage was solemnized on
01.12.2008. This witness is not an
eyewitness of the main incident.

(b) P.W.2, Smt. Shashi Vajpayee,
has also given similar statement to that of
P.W.-1. In addition to that she has deposed
that her son-in-law was M.R. in Cipla
Company. She saw that accused persons
were putting something in the mouth of her
daughter, when accused persons pushed
her, she fell down and they ran away. As
she started crying. Anil Kumar came up
and took her daughter to hospital and from
there to District Hospital, Shahjahanpur
where she died in the morning. She had
informed her daughter Pooja and her
husband who reached in the morning and
after seeing the dead body, Pooja lodged
the F.I.R.

(c) P.W.-3, Raj Narain, father of
the deceased has also given similar
statement to that P.W.1. He is not an eye
witness.

(d) P.W.-4, Pinki Srivastava, has
deposed that she was working at the house
of the deceased since a year before the
incident. She used to take care of son of the
deceased on payment of Rs. 1500/- per
month. Accused Puneet used to come there
at 8-10 days and stay there for 2-4 day.
They often used to quarrel. Puneet used to
demand Wagon R Car and money from her.
Both of them quarrel about this matter. She
has seen and heard them quarreling with
her eyes. When Puneet used to come and
stay there, she used to go to her house.
Puneet also used to quarrel with his
mother-in-law for not fulfilling the demand
of Car. On the day of incident at about
10:30 AM, Puneet, his mother, father,
brother and sister-in-law had come to the
house of Vandana. She did not know the
name of the rest of the accused persons.
The above persons had beaten the deceased
and drove her mother away at about 4:30
8 All. Puneet Tripathi Vs. State of U.P.
115
PM, she went down to the part of landlord
and sat down there till 5:30. The deceased
told her to go to market with her son
Achchu and gave her Rs.20 that is why she
went to the market and returned at 5:30
PM. When she came back, mother of the
deceased met there and took Achchu from
her. At about 8:00 PM she came to know
that Vandana was in the Government
Hospital Banda, she went there. She was
not permitted to meet Vandana by Neelu,
Anil and Minku.

(e) P.W.-5, Dr. Manoj Kumar
Srivastava, proved post-mortem report,
Ex. Ka-2, and stated that he had
conducted post-mortem on the body of
the deceased. No injury was found before
the death of the deceased. The cause of
the death could not be ascertained and
Viscera was preserved

(f) P.W.-6, Rajesh Kumar Sonkar,
C.O., has proved the site plan and chargesheet, Ex. Ka3 and Ex. Ka-4 and deposed
that he had investigated the case and
entered the viscera report in paper no. 7 of
the charge-sheet and after recording the
statement of the witnesses, he submitted
charge-sheet against the accused Puneet.

(g) P.W. -7, I.O, Vikas Kumar
Vaidhya, proved the material exhibit-1 and
charge-sheet Ex. Ka-5 and has deposed that
he had written statements of the witnesses.
He had exonerated accused Neelam.

(h) P.W.-8, S.I. Gajendra Singh,
has proved the inquest report Ex. Ka-6,
photolash, Ex. Ka-7, challan lash, Ex.Ka-8,
letter to C.M.O. Ex. Ka-9.

(i) P.W.-9, Constable, Virendra
Singh, proved F.I.R., Ex. Ka-10 and
Kayami G.D., Ex. Ka-11, to be in his
handwriting and signature.

10. From the defence side D.W.-1,
Smt. Kalpna Singh, Assistant Teacher,
Primary School, Dharmapur, Block- Banda,
Shahjahanpur has been examined. She has
proved Ex. Kha-1 and Kha-2.

11. This case is decided as under:

F.I.R.: As per prosecution version
the incident occurred at about 7: 00 P.M. on
22.8.2011, the deceased was taken to Banda
Hospital just after the incident wherefrom
she was admitted to the District Hospital
Shahjahanpur and in the morning on
23.8.2011 she died. The informant Km.
Pooja Vajpayee, sister of the deceased,
Vandana, moved the written complaint, Ex.
Ka-1, for lodging the F.I.R. which was
registered at 3:45 P.M. and chick F.I.R., Ex.
Ka-10 was prepared.

According to this Court there is
no delay in lodging the F.I.R. In the F.I.R.
all
the
necessary
facts
have
been
incorporated. It is settled principle of law
that F.I.R. is not an encyclopedia, it is not a
substantive piece of evidence, it can be
used
only
for
contradiction
of
the
informant. It has been proved from the
evidence that at the time of evidence only
mother, P.W.-2. Smt. Shashi Vajpayee and
P.W.-4, Pinki Srivastava, were there. When
Smt.
Shashi
Vajpayee
informed
her
daughter and husband at Kanpur, they
reached to Shahjahanpur and saw the dead
body of the deceased, thereafter the
informant
wrote
the
complaint
and
produced in the concerned police station
for lodging the F.I.R. and taking action.

In
Bable
Vs.
State
of
Chhatishgarh, AIR, 2012 SC 2621;
Bhagwan Jagannath Markad Vs. State of
Maharashtra, (2016) 10 SCC 537; Jarnail
Singh Vs. State of Punjab, (2009) 9 SCC
719, it has been held that F.I.R. registered
under Section 154 Cr.P.C. is not a
substantive piece of evidence, it is not the
encyclopedia of all the facts relating to
crime. The only requirement is that at the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
time of lodging the F.I.R., the informant
should state all those facts which normally
strike to mind and help in assessing the
gravity of the crime or identity of the
culprit briefly.

On the basis of the above
discussion it is concluded that there is no
delay or discrepancy in lodging the
impugned FIR.

12. Motive:

As per F.I.R. and prosecution, the
marriage between the deceased and the
accused was solemnized about two and half
year ago, her parents had given dowry as
per their capacity but the accused persons
were not satisfied with the dowry given in
the marriage and after the first farewell of
the marriage, all the accused persons
started demanding Maruti Wagon R Car in
dowry. Due to non-fulfillment of demand,
Vandana's husband Puneet and his family
members started beating and torturing her
in various ways. The deceased was
employed as a teacher in Banda Basic
Primary School Shahjahanpur and lived
with her son Achintya, aged about one and
a half year, in the rented house of Anil
Jaiswal, near cooperative Bank Banda
Shahjahanpur. For about a month, Smt.
Shashi Vajpai, mother of the deceased was
living with her. The accused Puneet
husband of the deceased works in Kanpur
Nagar and keeps coming to district
Shahjahanpur to her wife. The informant
P.W.1 has deposed about the demand of
dowry, abuse and torturing with regard to
the demand. She has also deposed that in
Chauth farewell, Puneet asked for a Wagon
R Car and one lakh cash from the deceased
which
she
conveyed
to
the
family
members. It is admitted to the accused
persons that the deceased had instituted a
divorce petition no. 544 of 2011 in the
Family Court Kanpur Nagar and accused
Puneet had also filed a suit for restitution of
conjugal rights in Lucknow.

According to the accused Puneet
Tripathi, the divorce petition was instituted
by making overwriting of the deceased's
signature as on the date of institution i.e.
25.04.2011,
she
was
on
duty
at
Shahjahanpur. The trial Court did not
consider overwriting on the divorce petition
such as 2010 has been corrected as 2011,
age of Puneet Tripathi has been corrected
from 35 to 32, there is cutting in para 3 and
also overwriting on the date, month and the
year. It has been corrected by making
overwriting as 25.4.2011 on which date she
was teaching in her school at Shahjahanpur.
From these facts, it is proved that someone
else appeared as Vandana and had filed the
divorce petition through impersonation.

It has been admitted to the
accused persons that the suit for restitution
of conjugal rights had been dismissed.
According to the accused, it had been got
dismissed on the assurance of the deceased
as she was also frustrated due to
intervention of her family members.
Though it has not been proved that the case
of restitution of conjugal rights had been
not pressed by the accused on the assurance
of the deceased. However, there is no
evidence or writing left by the deceased to
show that she was not aware about the
pendency of aforesaid divorce petition. It is
common and mandatory practice in Family
Courts that after institution of any petition,
notices are sent to the opposite parties and
in view of judgment of the Apex Court and
also according to Section 89 C.P.C. first of
all parties are sent to Reconciliation Centre
and if the matter is not reconciled only then
the family Court proceeds to decide the
case on merit. In this case no evidence has
been adduced by either side to prove that
after institution of the alleged divorce
8 All. Puneet Tripathi Vs. State of U.P.
117
petition any notice was served upon
accused Puneet and he was called by the
Reconciliation Centre of the Family Court,
Kanpur Nagar, on any particular date.
However, when it is admitted to both the
parties that a suit under Section 9 of the
Hindu Marriage Act, had been filed by the
accused Puneet, it goes to show that
certainly
there
were
some
fractions
between both of them and the deceased was
not
living
with
her
husband
either
voluntarily or due to her service conditions.
But if compromise as alleged by the
accused would have taken place between
both the parties, the divorce petition would
have also been dismissed on the application
of the deceased. Thus this Court is of the
view that the marital dispute between the
accused persons and the deceased was still
existing.

In Nagraj Vs. State, (2015) 4
SCC 739 (para 13); Babu Vs. State of
Kerala (2010) 9 SCC 189; Nathuni Yadav
Vs. State of Bihar (1998) 9SCC 238, it has
been held that prosecution should prove
motive of the accused if the case is based
on circumstantial evidence and not in the
cases which are based on direct evidence.

In G.Parshwanath Vs. State of
Karnataka, AIR 2010 SC 2914; Jagdish
Vs. State of M.P., 2009 (9) SCC 495, it has
been held that if chain of circumstances
are complete, absence of motive is not of
much consequence.

In Sanjeev Vs. State of Haryana,
(2015) 4 SCC 387 (para 16), it is held that
it is settled principle of law that to establish
an offence of murder by an accused, motive
is not required to be proved, motive is
something which prompts a man to form an
intention. The intention can be formed even
at the place of incident at the time of
commission of crime. It is only either
intention or knowledge on the part of the
accused which is required to be seen in
respect of the offence of culpable homicide.
In order to read either intention or
knowledge, the Courts have to examine the
circumstances, as there can not be any
direct evidence as to the state of mind of the
accused.

In this case it has been proved
that the deceased was living separately in
Shahjahapur because of her service and she
had also filed a suit for a decree of divorce
against the accused Puneet Tripathi in
Kanpur Nagar and probably no monetary
gain was tendered to the accused persons
and the demand of providing a Wagon R
Car was not fulfilled. The accused Puneet
Tripathi has admitted in his bail application
that on the day of occurrence, he had
visited the house of the deceased where a
quarrel had taken place. Thus it can not be
said that there was no motive behind the
commission of the alleged crime.

On the basis of the above
discussion, this Court is of the view that
there was a motive behind the commission
of crime and it has also been proved from
the oral and documentary evidence as well.
Though it is a case of direct evidence based
on the evidence of P.W.2 and P.W.4,
therefore, the prosecution is not duty bound
to prove any motive behind the commission
of crime.

13. Inquest:

From the inquest exhibit Ka-6, it
transpires that the report about commission
of crime and death of the deceased was
communicated to police station Banda on
23.8.2011 at 7:30 a.m. The dead body was
transmitted to District Hospital Mortuary at
11:30 A.M. And the I.O. started the inquest
proceeding at 1:00 PM, he annexed copy of
the F.I.R. but as per chick F.I.R., the F.I.R.
was reduced in writing at 3:45 PM. If it is
true either only a copy of the information
118 INDIAN LAW REPORTS ALLAHABAD SERIES
would have been provided to the concerned
S.I. Or the concerned constable Moharrir
had wrongly mentioned 3:45 PM as time of
preparation of chick F.I.R. However, it is
immaterial for the purposes of this case as
it is not affecting the merit of the case. It is
settled law that the inquest is not a
substantive piece of evidence and it has
only corroborative piece of evidence.
However, in the opinion of punchas, and
the I.O. and Nayab Tehsildar Sadar, the
deceased would have been died due to
poison.

In Radha Mohan Singh @ Lal
Saheb Vs. State of U.P., 2006 (2) SCC 450
, three Judges Bench, it has been held that
argument advanced regarding omissions,
discrepancies, overwriting, contradiction in
inquest report should not be entertained
unless attention of the author thereof is
drawn to the said fact and opportunity is
given to him to explain when he is
examined as a witness. There is no
requirement in law to mention details of
F.I.R., names of accused or the names of
eyewitnesses or the gist of the their
statements in inquest report, nor is the said
report is required to be signed by any
eyewitness.

In Brahm Swaroop Vs. State of
U.P., AIR 2011 SC 280, it has been held
that the basic purpose of holding inquest is
to report regarding the apparent cause of
death namely whether it is suicidal,
homicidal,
accidental
or
by
some
mechanary etc. It is therefore not necessary
to enter all the details of the overt acts in
the inquest report.

In George Vs. State of Kerala,
AIR 1998 SC 1376, it has been held that
the details that how the deceased was
assaulted or who assaulted him or under
what circumstances he was assaulted is
foreign to the ambit and scope of such
proceedings.

In view of the above judgments,
this court does not find any illegality or
substantive irregularity in the inquest
report.

14. Post-mortem :-

In this case after the inquest, the
dead body was given to the concerned
doctor for post-mortem who conducted the
post-mortem and could not ascertain the
cause of death, hence, preserved the viscera
which was sent for chemical examination.
As per chemical examination report, there
was pesticides in the internal organs of the
deceased which caused her death. Thus, the
opinion of punchan, Nayab Tehsildar, I.O.
finds support from the FSL report. The
post-mortem was conducted at 4:00 P.M.,
the post mortem doctor opined that the
deceased would have died about half a day
prior to the post-mortem. The witness also
opined that there could be variation of
about six hours. In this case the time of
death of the deceased is not in question,
hence, any variation in the time of the death
of the deceased is immaterial. It is settled
principle of law that the opinion of doctor
and doctor's report is mere an opinion and
subject to the scrutiny of the court.

In State of U.P. Vs. Mohd.
Iqram, (2011) 3 SCC (Cri.) 354, it is held
that post mortem report is not a substantive
piece of evidence, if it is proved it does not
mean that its each and every content
thereof is also proved or can be held
admissible.

15. Burden of proof :-

It is admitted and has also been
proved that the deceased had died unnatural
death within three years of the marriage,
hence, in this respect Section 113-A and
8 All. Puneet Tripathi Vs. State of U.P.
119
Section 113-B of The Indian Evidence
Act become relevant which are as follow :

"Section 113-A. Presumption as
to abetment of suicide by a married
woman. --When the question is whether
the commission of suicide by a woman had
been abetted by her husband or any relative
of her husband and it is shown that she had
committed suicide within a period of seven
years from the date of

her
marriage
and
that
her
husband or such relative of her husband
had subjected her to cruelty, the court may
presume, having regard to all the other
circumstances of the case, that such suicide
had been abetted by her husband or by
such relative of her husband.

Explanation.
--
For
the
purposes of this section, "cruelty" shall
have the same meaning as in section 498-A
of the Indian Penal Code (45 of 1860).

Section 113-B. Presumption as to
dowry death. ---When the question is
whether a person has committed the dowry
death of a woman and it is shown that soon
before her death such woman had been
subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the court shall

presume that such person had
caused the dowry death.

Explanation.
--
For
the
purposes of this section, "dowry death"
shall have the same meaning as in section
304B of the Indian Penal Code (45 of
1860)."

In this case there is allegation of
abusing, torturing for non fulfillment of
demand of dowry and killing of the
deceased within seven years of marriage
hence, Section 113-B would be attracted
and burden would be upon the accused
persons that how the deceased died of
unnatural death as it has been established
that on the date and time of occurrence
accused and deceased were together and
the deceased was under the custody of the
accused.

In V.K. Mishra Vs. State of
Uttrakhand, (2015) 9 SCC 588 (Three
Judge Bench), Panchanand Mandal Vs.
State of Jharkhand, (2013) 9 SCC 800,
Sanjay Kumar Jain Vs. State of Delhi,
2011, (11) SCC 733, the Apex Court has
held that before recording conviction of an
accused under Section 304-B, I.P.C. The
following conditions must be proved;

(i) That the death of woman was
caused by burns or bodily injury or
otherwise
than
under
the
normal
circumstances;

(ii) That such a death should have
occurred within seven years of a marriage;

(iii) that the woman must have
been subjected to cruelty or harassment by
her husband or any relative of her husband.

(iv)
That
such
cruelty
or
harassment should be for or in connection
with demand of dowry.

(v)
That
such
cruelty
or
harassment is shown to have been meeted
out to the woman soon before her death.

In Harish Kumar Vs. State of
Haryana, 2015 (88) ACC 640 SC, it has
been held that in the event of presumption
under Section 113-B of the Evidence Act,
burden shifts on the accused to rebut it.

In Surinder Singh Vs. State of
Haryana, (2014) 4 SCC 129; Manohar Lal
Vs. State of Haryana, (2014) 9 SCC 645, it
has been held that for presumptions
contemplated under Section 304-B I.P.C.
And 113-B of the Evidence Act, to spring
into action, it is necessary to show that the
cruelty was caused soon before victim's
death. The question is how much 'soon
before' would obviously depend on facts
and circumstances of each case.

In Satbir Singh Vs. State of
Haryana, AIR 2005 SC 3546, it is held that
120 INDIAN LAW REPORTS ALLAHABAD SERIES
where the prosecution established the
ingredients of dowry death under Section
304-B I.P.C. It was held that onus was on
the accused to rebut the presumption under
Section 113-B.

Since, it has been proved from
the evidence of P.W.2 and P.W.4 that at the
time of commission of crime the accused
persons were in the house of deceased with
her, hence, actually what happened and in
what circumstances and in which manner, a
hale and hearty lady died would have to be
explained
by
the
accused
persons,
therefore, according to this Court the
accused persons are also under the
obligation and burden to explain the cause
of death of the deceased under Section 106
of the Evidence Act.

Section 106 Indian Evidence Act
is as under:

"Section
106
:
Burden
of
proving fact especially within knowledge.

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

According to this Section where a
fact is specially within the knowledge of a
party, the burden of proving that fact lies
upon him.

In Eshwaraiah Vs. State of
Karnataka, (1994) 2 SCC 677, the facts
were that a man and a woman were found
hiding under a bed in the bedroom of the
person who was laying dead of injuries, it
was held that the burden lay upon them to
explain their presence and, also the
circumstances in which the deceased met
his death.

In State of Himachal Pradesh
Vs. Raj Kumar, (2018) 2 SCC 69, it has
been held that if an accused does not throw
light on a fact which is within his
knowledge, his failure to offer any
explanation
would
become
a
strong
militating circumstance against him.

In Balram Prasad Agrawal Vs.
State of Bihar, (1997) 9 SCC 338, a house
wife was drown to death in the well in the
court-yard of the house of her in-laws who
were the only people present in the house at
that time. Cruelty by the in-laws for over
years was also an established fact.
Accordingly the Supreme Court held that
the burden lay upon the accused in-laws to
show as to what happened during the night
which brought about her death.

Though this Court is well aware
that the initial burden for proving a case
against the accused persons rests upon the
prosecution and if the initial burden is
discharged only then the liabilities under
Section 106 or Section 113-B commence.

Though it is settled principle of
law that it is trite that the prosecution has to
stand on its own legs and sufficient
evidence should be produced to prove the
allegation, no aid of Section 106 can be
taken by the trial Court. Kailash Chand Vs.
State of Rajasthan, (2017) 11 SCC 268.

16. Place of occurrence:

In this case it is not denied by the
accused-appellants
that
the
place
of
occurrence is not the same as described by
the prosecution. There is no objection from
the side of accused persons regarding this
aspect of the case.

17. Non-examination of the alleged
independent
eyewitnesses
and
examination of interested and related
witnesses:

In this case P.W.-1 to P.W.-3 are
the sister, mother and father of the deceased
and P.W.-4 is the maid of the deceased. It
has been argued that the independent
eyewitnesses such as Anil Jaiswal, Geeta
Jaiswal, Rinku, Manisha and Mamta,
8 All. Puneet Tripathi Vs. State of U.P.
121
teachers, living near the deaceased and
Apoorva Mishra @ Neelu who took the
deceased to the hosptial are not examined.
According to P.W.2 they had become
hostile and were not ready to depose in
favour of the prosecution. It has also been
blamed that Neelu did not permit her to go
inside the Banda Hospital when her
daughter was admitted before her death.

In Bhagwan Jagannath Markad
(supra), in Dhari and Others Vs. State of
U.P. AIR 2013 SC 308, Shyamal Ghosh
Vs. State of West Bengal, AIR 2013 SC
3539, Prithi Vs. State of Haryana, (2010)
8 SCC 536, Suchha Singh Vs. State of
Punjab, (2003) 7 SCC 643, it has been held
that the testimony of a witness in a criminal
trial can not be discarded merely because
the witness is a relative or family member
of the victim of the offence, in such a case
Court has to adopt a careful approach in
analysing the evidence of such witness and
if the testimony of the related witness is
otherwise found credible, accused can be
convicted on the basis of testimony of such
related witness. Similar principles have
been laid down in respect of the inimical
witness.

In Bhagwan Jagannat Markad
(supra), Mukesh Vs. State of N.C.T of
Delhi and Ohters, AIR 2017 SC 2161
(Three Judges Bench), Ashok Kumar
Chaudhary Vs. State of Bihar, 2008 (61)
ACC 972 SC, it has been held that nonexamination of independent witness is not a
mathematical formula for discarding the
weight of the testimony available on
record, however, natural, trustworthy and
convincing it may be. It is settled law that
non examination of eyewitness can not be
pressed into service like a ritualistic
formula for discarding the prosecution case
with a stroke of pen. Court can convict an
accused on the statement of a sole witness
even if he is relative of the deceased and
non-examination of independent witness
would not be fatal to the case of
prosecution.

In Dharnidhar Vs. State of U.P.,
(2010) 7 SCC 759; Dalbir Kaur Vs. State
of Punjab, (1976) 4 SCC 158, it has been
held that non-examination of independent
eyewitnesses is inconsequential if the
witness was won over or terrorised by the
accused.

In Bhagwan Jagnnath (Supra)
and in Nand Kumar Vs. State of
Chhatisgarh, (2015) 1 SCC 776, it has
been held that prosecution is not bound to
examine its all witness. Discretion lies with
the prosecution whether to tender or not
witness to prove its case. Adverse inference
against prosecution can be drawn only if
withholding of witness was with oblique
motive.

In this case it has been accepted
by the accused during the trial that P.W.-2,
mother of the deceased, was there. It is an
undisputed fact that in connection of
service the deceased was living on the
place of occurrence near service place with
her infant. It has also been proved that her
mother P.W.-2 sparing sometime used to
visit her daughter and stay there. As the
deceased was in service, a maid servant
P.W.-4 Pinki was kept in service by the
deceased to look after her household affairs
and
the
infant.
In
the
aforesaid
circumstances it can not be said that on the
date and time of occurrence, P.W.-4, Pinki,
was not there. It has come in evidence of
P.W.1 that after death of the deceased, Pinki
was serving to the family members of the
deceased at Kanpur.

Learned
counsel
for
the
appellants submitted that since the above
mentioned independent witnesses have not
been examined and it has not been proved
that they were connected in any way with
the accused persons therefore in this case
122 INDIAN LAW REPORTS ALLAHABAD SERIES
no fair and impartial trial has been
conducted by the trial Court. The trial
Court has considered the statements of the
interested and partial witnesses who have
not adduced truthful evidence. P.W.4, Pinki,
was won over by the informant and her
family members and when she deposed in
the Court, she was working in their house
in Kanpur Nagar. Learned counsel heavily
pressed Section 114 (g) of the Indian
Evidence Act, which is as under: