# Raj Kumar @ Raju v. State of U.P

- **Citation:** (2022) 11 ILRA 32
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-23
- **Case number:** Criminal Appeal No. 5702 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-raju-v-state-of-u-p-47819
- **Pages:** 12

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299, 300,
302, 304 Part -I, 304 Part - II, 304(1),
304B & 498 - The Dowry Prohibition Act,
1961 - Sections 2 & 4 - Indian Evidence
Act, 1872 -Section 106 - Criminal Appeal -
Conviction & Sentence - Life imprisonment with
fine - Evaluation of Evidences - offence of
murder & dowry demand - FIR lodged by father
of deceased with allegations that his son-in-law
(accused- appellant) committed offence of
strangulating
the
deceased
for
want
of
demanded of additional dowry - distinction
between 'murder' and 'culpable homicide' - held,
all the ingredients of dowry death u/s 304B IPC
viz.
unnatural
death
of
deceased
by
strangulation
within
seven
years
of
her
marriage, cruelty for demand of dowry by her
husband, the theory of soon before, are proved
beyond reasonable doubt - conviction sustained.
(Para - 17, 30)
(B) Criminal Law - Criminal Procedure
Code, - Sections 161, 313 - Indian Penal
Code, 1860 - Sections 34, 299, 300, 302,
304 Part -I, 304 Part - II, 304(1), 304B &
498, - The Dowry Prohibition Act, 1961 -
Sections - 2 & 4, - Indian Evidence Act, -
Section 106 - Criminal Appeal - Conviction &
Sentence - Life imprisonment with fine -
quantum of punishment - offence of murder &
dowry demand - Awarding sentence cannot be
exercised by arbitrary or whimsically - in the
light of certain judicial pronouncement and
precedents applicable in such matters and
keeping in mind the Principle of proportionality,
gravity of offence, manner of commission of
crime, age and sex of accused - court
considered that, no accused person is incapable
of
being
reformed
in
view
of
criminal
11 All. Raj Kumar @ Raju Vs. State of U.P.
33
jurisprudence in our country - the appeal is
partly with modification of the sentence - order
accordingly. (Para - 31, 32, 34, 38)

Appeal partly allowed. (E-11)

List of Cases cited:

## Text

32 INDIAN LAW REPORTS ALLAHABAD SERIES
our view by subsequent judgment of the
Apex Court in Lav Parasher @ Chinu v.
State of U.P. in Special Leave to Appeal
(Crl.) No.1891 of 2022 decided on
17.05.2022 decided by larger bench, where
this practice of learned Advocates only
insisting for getting the bail application
heard has been deprecated as follows:-

"In the normal course, we would
have granted the relief of bail, especially,
after the petitioner has undergone a
sentence of 12 years. In the facts and
circumstances of the case, where the
petitioner has not shown interest in arguing
the appeal, we are not inclined to interfere
with the order passed by the High Court.
However, taking into account the fact that
the petitioner has undergone incarceration
for more than 12 years, the High Court is
requested
to
dispose
of
the
appeal
expeditiously not later than a period of 3
months from today. In case, the appeal is
not disposed of within the said period,
liberty is granted to the petitioner to renew
his application for bail."

17. The application for enlargement
of the accused on being dismissed bail, this
appeal requires to be listed on 17th of
August, 2022 for final hearing before the
Court taking up such matters.
----------
(2022) 11 ILRA 32
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 5702 of 2016

Raj Kumar @ Raju ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Krishna Murari Tripathi, Sri Anil Kumar,
Sri Arvind Srivastava, Sri Dinesh Mishra, Sri
Rajrshi Gupta, Sri Rateesh Singh, Sri
Subhash Chandra Yadav, Sri Vimlesh Kumar

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299, 300,
302, 304 Part -I, 304 Part - II, 304(1),
304B & 498 - The Dowry Prohibition Act,
1961 - Sections 2 & 4 - Indian Evidence
Act, 1872 -Section 106 - Criminal Appeal -
Conviction & Sentence - Life imprisonment with
fine - Evaluation of Evidences - offence of
murder & dowry demand - FIR lodged by father
of deceased with allegations that his son-in-law
(accused- appellant) committed offence of
strangulating
the
deceased
for
want
of
demanded of additional dowry - distinction
between 'murder' and 'culpable homicide' - held,
all the ingredients of dowry death u/s 304B IPC
viz.
unnatural
death
of
deceased
by
strangulation
within
seven
years
of
her
marriage, cruelty for demand of dowry by her
husband, the theory of soon before, are proved
beyond reasonable doubt - conviction sustained.
(Para - 17, 30)
(B) Criminal Law - Criminal Procedure
Code, - Sections 161, 313 - Indian Penal
Code, 1860 - Sections 34, 299, 300, 302,
304 Part -I, 304 Part - II, 304(1), 304B &
498, - The Dowry Prohibition Act, 1961 -
Sections - 2 & 4, - Indian Evidence Act, -
Section 106 - Criminal Appeal - Conviction &
Sentence - Life imprisonment with fine -
quantum of punishment - offence of murder &
dowry demand - Awarding sentence cannot be
exercised by arbitrary or whimsically - in the
light of certain judicial pronouncement and
precedents applicable in such matters and
keeping in mind the Principle of proportionality,
gravity of offence, manner of commission of
crime, age and sex of accused - court
considered that, no accused person is incapable
of
being
reformed
in
view
of
criminal
11 All. Raj Kumar @ Raju Vs. State of U.P.
33
jurisprudence in our country - the appeal is
partly with modification of the sentence - order
accordingly. (Para - 31, 32, 34, 38)

Appeal partly allowed. (E-11)

List of Cases cited:

1. Tukaram & ors. Vs St. of Mah., (2011) 4 SCC
250,

2. B.N. Kavatakar & anr. Vs St. of Karn., 1994
Supp1 SCC 304,

3. St. of U.P. Vs Dr. Ravindra Prakash Mittal,
(1992) 3 SCC 300,

4. Raja Vs St. of Har., (2015) 11 SCC 43,

5. Devendra Singh Vs St. of Uttrakhand, AIR
2022 SC 2965,

6. Satvir Singh & ors. Vs St. of Pun., (2001) 8
SCC 633

7. Satbir Singh Vs St. of Har. (201 vol. 6 SCC 1),

8. Mohd. Giasuddin Vs St. of A.P. AIR 1977 SC
1926,

9. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

10. Jameel Vs St. of U.P. (2010) 12 SCC 532

11. Guru Basavraj Vs St. of Karn., (2012) 8 SCC
734

12. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

13. St. of Punjab Vs Bawa Singh, (2015) 3 SCC 441

14. Raj Bala Vs St. of Har., (2016) 1 SCC 463

15. St. of M.P Vs Jogendra, (2022) 5 SCC 401

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard Sri Rajrshi Gupta, learned
counsel for the appellant and Sri Nagendra
Kumar Srivastava, learned A.G.A. for the
state.

2. This appeal challenges the
judgment and order dated 4.10.2016 passed
by learned Additional Sessions Judge,
Court No.1, Hathras in Sessions Trial
No.357 of 2014 (State vs. Raj Kumar @
Raju) arising out of Case Crime No.280 of
2014 convicting accused-appellant under
Section 302 of Indian Penal Code, 1860
(hereinafter referred to as 'IPC') and
sentenced the accused-appellant to undergo
imprisonment
for
life
with
fine
of
Rs.30,000/- and in case of default of
payment of fine, further to undergo
imprisonment for a period of six months.

3. The genesis of the case is that the
deceased was married with the accused
appellant Raj Kumar three years before the
occurrence. It is alleged in the FIR that the
appellant/ accused and his family members
were demanding Rs.2 lacs as additional
dowry and when the deceased showed her
inability to get the same from her parents,
they harassed and subjected her to cruelty.
On 20.04.2014, Rs.50,000/- as additional
dowry were given to the accused persons
but on 21.04.2014 the sad news of her
death came. The FIR was lodged on the
very same day by Satyaveer, the father of
the deceased. The police moved to the
scene
of
occurrence
and
prepared
panchayatnama, autopsy of the dead body
was performed and the post mortem
revealed that the death was due to
strangulation.

4. The police after recording the
statements of several witnesses filed
charge-sheet against the three accused
persons. Being summoned the accused
were committed to the court of Sessions as
the offences for which the accused were
34 INDIAN LAW REPORTS ALLAHABAD SERIES
charged were exclusively triable by the
court of Sessions.

5. The charges were framed for
commission of the offence under Section
304 B, 498 I.P.C. Read with Section 4 of
D.P. Act and an alternative charge 302/34
I.P.C. was also framed against all the three
accused persons, which was denied by
them. They pleaded not guilty and claimed
to be tried.

6.
 The
trial
started
and
the
prosecution examined a total of 10
witnesses, who are as follows:

1.
Satyavir Singh, informant/ father of the
deceased
P.W.1
2.
Premwati, mother of the deceased
P.W.2
3.
Anil Kumar, cousin of the deceased
P.W.3
4.
Rajwati, aunt of the deceased
P.W.4
5.
Sukhveer, uncle of the deceased
P.W.5
6.
Dharmendra, cousin of the deceased
P.W.6
7.
Dr. R.K. Dayal, who performed the
autopsy
P.W.7
8.
Satyaveer Vyaas,witness of the inquest
P.W.8
9.
Ram Veer, witness of the inquest
P.W.9
10.
C.O. Narendra Dev, second I.O.
P.W.10

7. In support of the oral evidence
following documents were filed:

1.
Written Report
Ex.Ka.1
2.
Inquest Report
Ex.Ka.2
3.
Autopsy Report
Ex.Ka.3
4.
Charge Sheet
Ex.Ka.4
5.
FIR
Ex.Ka.5
6.
Site Plan
Ex.Ka.6
7.
FIR
Ex.Ka.7
8.
Recovery Memo of Bangles
Ex.Ka.8
9.
Photo Nash
Ex.Ka.9
10.
Letter to R.I.
Ex.Ka.10
11.
Letter to C.M.O.
Ex.Ka.11

8. After the evidence was over,
statement of the accused persons under
Section 313 Cr.P.C. was recorded and the
incriminating
circumstances
and
the
evidence against them were put to them.
They have taken a defence of false
implication and present accused/ appellant
Raj Kumar stated that the deceased
committed
suicide,
at
the
time
of
occurrence he was not present at home and
had gone for his job. When he got informed
that the door has been closed by the
deceased from inside, he came back, the
door lock was broken by the neighbours
and they saw the deceased hanging.

9. D.W.1 Prem Singh has been
produced for the defence side

10. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the appellant as mentioned
above.

11. Learned counsel for the appellant
has relied on the decision in Sanjay
Maurya Vs. State of U.P., (2021) 02 ILR
A473 and has contended that it is not
proved that the offence under Section 302
is committed or any offence under Section
304B is proved against the accused. The
case cannot be said to be proved under
Section 302 of Indian Penal Code as the
conviction by Trial Court with the aid of
Section 106 of the Indian Evidence Act,
1872 is bad. It is further submitted that the
decisions on which the trial court has
placed reliance have been misread by the
learned trial Judge so as to hold that
accused is guilty of commission of offence
11 All. Raj Kumar @ Raju Vs. State of U.P.
35
under Section 302 IPC. It is further
submitted that the incident even if it is
believed to have occurred and culpability
of accused is proved, occurred on the spur
of the moment, therefore, the accused if has
to be held guilty, be convicted under
Section 304(1) of the I.P.C.

12. As against this Sri N.K.
Srivastava, learned counsel for the State
has contended that

(i) the death occurred in the
matrimonial home of the deceased;

(ii) the incident occurred within 7
years of married life. The proof of death
being homicidal is proved. Despite the fact
that in the statement under Section 313
Cr.P.C the accused has pleaded that he is
not guilty, he has not discharged the burden
cast on him to rebut the proved facts
against him.

13. While considering the facts we
have to consider the provisions of Section
304B IPC read with Section 302 of the
Indian Penal Code. Trial Court has based
the conviction with the aid of Section 106
of Indian Evidence Act, 1872. The
provisions of Section 106 of Indian
Evidence Act, 1872 lay as follows :-

"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. Illustrations

(a) When a person does an act
with some intention other than that which
the character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling
on a railway without a ticket. The burden of
proving that he had a ticket is on him."

14. We are of the considered opinion
that Section 106 of the Indian Evidence
Act, 1872 would come into play once the
prosecution has discharged its duty of
proving facts as per the charge to some
extent on the basis of evidence. In this case,
it is desirable to look into the ingredients of
Section 300 of I.P.C which read as
follows:-

"300. Murder.--Except in the
cases
hereinafter
excepted,
culpable
homicide is murder, if the act by which the
death is caused is done with the intention of
causing death, or--

(Secondly) --If it is done with the
intention of causing such bodily injury as
the offender knows to be likely to cause the
death of the person to whom the harm is
caused, or--

(Thirdly) --If it is done with the
intention of causing bodily injury to any
person and the bodily injury intended to be
inflicted is sufficient in the ordinary course
of nature to cause death, or--

(Fourthly)
--If
the
person
committing the act knows that it is so
imminently dangerous that it must, in all
probability, cause death or such bodily
injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid. Illustrations

(a) A shoots Z with the intention
of killing him. Z dies in consequence. A
commits murder.

(b) A,
knowing
that
Z
is
labouring under such a disease that a blow
is likely to cause his death, strikes him with
the intention of causing bodily injury. Z
dies in consequence of the blow. A is guilty
of murder, although the blow might not
have been sufficient in the ordinary course
of nature to cause the death of a person in a
sound state of health. But if A, not knowing
36 INDIAN LAW REPORTS ALLAHABAD SERIES
that Z is labouring under any disease, gives
him such a blow as would not in the
ordinary course of nature kill a person in a
sound state of health, here A, although he
may intend to cause bodily injury, is not
guilty of murder, if he did not intend to
cause death, or such bodily injury as in the
ordinary course of nature would cause
death.

(c) A intentionally gives Z a
sword-cut or club-wound sufficient to
cause the death of a man in the ordinary
course of nature. Z dies in consequence.
Here, A is guilty of murder, although he
may not have intended to cause Z's death.

(d) A without any excuse fires a
loaded cannon into a crowd of persons
and kills one of them. A is guilty of
murder, although he may not have had a
premeditated design to kill any particular
individual. Exception 1.--When culpable
homicide
is
not
murder.--Culpable
homicide is not murder if the offender,
whilst deprived of the power of selfcontrol by grave and sudden provocation,
causes the death of the person who gave
the provocation or causes the death of
any other person by mistake or accident.
The above exception is subject to the
following provisos:--

(First) --That the provocation is
not sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

(Secondly)
--That
the
provocation is not given by anything
done in obedience to the law, or by a
public servant in the lawful exercise of
the powers of such public servant.

(Thirdly) --That the provocation
is not given by anything done in the
lawful exercise of the right of private
defence.
Explanation.--Whether
the
provocation
was
grave
and
sudden
enough to prevent the offence from
amounting to murder is a question of fact.
Illustrations

(a) A, under the influence of
passion excited by a provocation given by
Z, intentionally kills. Y, Z's child. This is
murder, in as much as the provocation
was not given by the child, and the death
of the child was not caused by accident or
misfortune in doing an act caused by the
provocation.

(b) Y gives grave and sudden
provocation to A. A, on this provocation,
fires a pistol at Y, neither intending nor
knowing himself to be likely to kill Z,
who is near him, but out of sight. A kills
Z. Here A has not committed murder, but
merely culpable homicide.

(c) A is lawfully arrested by Z, a
bailiff. A is excited to sudden and violent
passion by the arrest, and kills Z. This is
murder, in as much as the provocation was
given by a thing done by a public servant in
the exercise of his powers.

(d) A appears as witness before Z,
a Magistrate, Z says that he does not
believe a word of A's deposition, and that A
has perjured himself. A is moved to sudden
passion by these words, and kills Z. This is
murder.

(e) A attempts to pull Z's nose, Z,
in the exercise of the right of private
defence, lays hold of A to prevent him from
doing so. A is moved to sudden and violent
passion in consequence, and kills Z. This is
murder, in as much as the provocation was
given by a thing done in the exercise of the
right of private defence.

(f) Z strikes B. B is by this
provocation excited to violent rage. A, a
bystander, intending to take advantage of B's
rage, and to cause him to kill Z, puts a knife
into B's hand for that purpose. B kills Z with
the knife. Here B may have committed only
culpable homicide, but A is guilty of murder.
Exception 2.--Culpable homicide is not
11 All. Raj Kumar @ Raju Vs. State of U.P.
37
murder if the offender, in the exercise in good
faith of the right of private defence of person
or property, exceeds the power given to him by
law and causes the death of the person against
whom he is exercising such right of defence
without premeditation, and without any
intention of doing more harm than is necessary
for the purpose of such defence. Illustration Z
attempts to horsewhip A, not in such a manner
as to cause grievous hurt to A. A draws out a
pistol. Z persists in the assault. A believing in
good faith that he can by no other means
prevent himself from being horsewhipped,
shoots Z dead. A has not committed murder,
but only culpable homicide. Exception 3.--
Culpable homicide is not murder if the
offender, being a public servant or aiding a
public servant acting for the advancement of
public justice, exceeds the powers given to
him by law, and causes death by doing an act
which he, in good faith, believes to be lawful
and necessary for the due discharge of his duty
as such public servant and without ill-will
towards the person whose death is caused.
Exception 4.--Culpable homicide is not
murder
if
it
is
committed
without
premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without
the offender having taken undue advantage or
acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases
which party offers the provocation or
commits the first assault. Exception 5.--
Culpable homicide is not murder when the
person whose death is caused, being above
the age of eighteen years, suffers death or
takes the risk of death with his own consent.
Illustration A, by instigation, voluntarily
causes, Z, a person under eighteen years of
age to commit suicide. Here, on account of
Z's youth, he was incapable of giving consent
to his own death; A has therefore abetted
murder."

15. Section 304B of IPC reads as under :

[304B. Dowry death. -- (1) Where
the death of a woman is caused by any
burns or bodily injury or occurs otherwise
than under normal circumstances within
seven years of her marriage and it is shown
that soon before her death she was
subjected to cruelty or harassment by her
husband or any relative of her husband for,
or in connection with, any demand for
dowry, such death shall be called "dowry
death", and such husband or relative shall
be deemed to have caused her death.

Explanation. For the purposes of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life.]"

16. The question which falls for our
consideration is whether, on reappraisal of
the peculiar facts and circumstances of the
case, the conviction of the appellant under
Section 302 of I.P.C. of the Indian Penal
Code should be upheld or the conviction
deserves to be converted under Section 304
Part-I or Part-II of the Indian Penal Code or
under Section 304B of IPC. It would be
relevant to refer to Section 299 of the
Indian Penal Code, which reads as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the
knowledge that he is likely by such act to
cause death, commits the offence of
culpable homicide."

17. The academic distinction between
''murder' and ''culpable homicide not
38 INDIAN LAW REPORTS ALLAHABAD SERIES
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A person commits culpable
homicide if the act by
which the death is caused is
done-
Subject to certain exceptions
culpable homicide is murder
is the act by which the death
is caused is done.
INTENTION
(a) with the intention of
causing death; or
(1) with the intention of
causing death; or
(b) with the intention of
causing such bodily injury
as is likely to cause death;
or
(2) with the intention of
causing such bodily injury as
the offender knows to be
likely to cause the death of
the person to whom the harm
is caused;
KNOWLEDGE

KNOWLEDGE
(c) with the knowledge that
the act is likely to cause
death.
(4) with the knowledge that
the act is so immediately
dangerous
that it must in all probability
cause death or such bodily
injury as is likely to cause
death,
and
without
any
excuse for incurring the risk
of causing death or such
injury
as
is
mentioned
above.

18. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
Maharashtra, reported in (2011) 4 SCC
250 and in the case of B.N. Kavatakar and
Another Vs. State of Karnataka, reported
in 1994 SUPP (1) SCC 304, we are of the
considered opinion that the offence would
not be one punishable under Section 304 of
the IPC.

19. It would be relevant for us to
discuss the evidence of P.W.1, P.W.2,
P.W.3, P.W.4, P.W.5 and P.W.6, who are
family members of the deceased coupled
with the fact that P.W.2, P.W.3,P.W.4, P.W.5
and P.W.6 did not support the prosecution
and were declared hostile. However, in
examination-in-chief,
they
have
categorically mentioned that they got the
deceased married to Raj Kumar three years
before she died and in the marriage they
gave dowry as per their financial condition,
however denied the fact that the appellant
and his family members were demanding
any kind of dowry. P.W.1, the father of the
deceased, has supported the prosecution
version but his deposition is contradicted
by the testimonies of P.W.2, P.W.3,P.W.4,
P.W.5 and P.W.6, who are real mother and
other family members of the deceased.

20. In cross-examination witnesses
P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 have
feigned ignorance as to how the I.O. had
mentioned the fact of demand of Rs.2 lac in
their statement under Section 161 Cr.P.C.

21. The trial Court has convicted the
accused appellant under Section 302 I.P.C.
with the aid of Section 106 of the Evidence
Act. In such a case, which may be said to
be rest on circumstantial evidence to prove
the offence under Section 300 I.P.C.
culpable homicide amounting to murder,
there must be clinching evidence that it was
the appellant alone, who was last seen with
the deceased. The evidence on record
shows that nobody has seen the accused
11 All. Raj Kumar @ Raju Vs. State of U.P.
39
committing the offence of strangulating the
deceased.
The
circumstances
and
ingredients to be proved to bring home
charge under Section 302 I.P.C. in a case
based on circumstantial evidence have been
reiterated in a case of State of U.P. v.
Ravindra Prakash Mittal (Dr), (1992) 3
SCC 300, the Hon'ble Apex Court has held:

"20. .........There is a series of
decisions of this Court so eloquently and
ardently propounding the cardinal principle to
be followed in cases in which the evidence is
purely of circumstantial nature. We think, it is
not necessary to recapitulate all those
decisions except stating that the essential
ingredients to prove guilt of an accused
person by circumstantial evidence are:

(1)
The
circumstances
from
which the conclusion is drawn should be
fully proved;

(2) the circumstances should be
conclusive in nature;

(3) all the facts so established
should
be
consistent
only with
the
hypothesis of guilt and inconsistent with
innocence;

(4) the circumstances should, to a
moral certainty, exclude the possibility of
guilt of any person other than the accused."

22. It was also held in Raja v. State
of Haryana, (2015) 11 SCC 43 that the
Court is required to evaluate circumstantial
evidence to see that chain of events has
been established clearly and completely to
rule out any reasonable likelihood of
innocence of accused; whether chain is
complete or not, would depend on facts of
each case emanating from evidence and no
universal
yardstick
should
above
be
attempted.

23. In the light of the aforesaid legal
proposition, it has to be examined whether
the chain of circumstances in this case is
complete and all the circumstances lead to
a certain conclusion that it was the accused
only who was the author of the crime and
whether there was sufficient evidence on
record or only on the basis of the last seen
this conclusion was drawn. The death has
occurred in the matrimonial home of the
deceased and that is only the circumstance
which was proved by the prosecution.
Considering the evidence of the witnesses
and also considering the medical evidence
including post mortem report, there is no
doubt left in our mind that it is a homicidal
death. If the decision over, which the trial
Court has placed reliance to have coming to
the conclusion that offence under Section
302 I.P.C. is made out, whether can be
made applicable to the facts of this case as
examined, the answer is in negative.
However, a rebuttal evidence under Section
106 of the Evidence Act is clear the facts
and offence under Section 304 B could be
presumed to have been made out but not an
offence under Section 302 I.P.C.

24. This takes us to the question of
applicability of Section 304B of I.P.C to the
facts of this case.

25. To bring home charge under
Section 304 B I.P.C., the ingredients to be
proved are very well settled in the catena of
decisions by the Apex Court and also by
this Court. Section 304B I.P.C. reads as
follows:

304B. Dowry death.--

(1) Where the death of a woman
is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative
40 INDIAN LAW REPORTS ALLAHABAD SERIES
of her husband for, or in connection with,
any demand for dowry, such death shall be
called "dowry death", and such husband or
relative shall be deemed to have caused her
death. Explanation.--For the purpose of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life.]

26. From the above definition the
following ingredients to establish the
offence under Section 304B I.P.C. are as
follows:

(i) the death of a woman must
have been caused by burns or bodily injury
or
otherwise
than
under
normal
circumstances;

(ii)
such
death
must
have
occurred within seven years of her
marriage;

(iii) soon before her death, the
woman must have been subjected to cruelty
or harassment by her husband or any
relatives of her husband;

(iv) such cruelty or harassment
must be for, or in connection with, demand
for dowry".

27. The aforesaid ingredients have
been reiterated in a catena of decisions of
the Hon'ble Apex Court and of this High
Court also and very recently in Devendra
Singh Vs. State of Uttrakhand AIR 2022
SC 2965 also.

28. However we examine the
evidence of P.W.1 in totality, we find that
the ingredients of offence under Section
304B I.P.C. are clearly established from his
deposition. He is the unfortunate father of
the
young
deceased
lady.
He
has
categorically stated in his statement that
after the marriage of her daughter several
time additional dowry was demanded from
her daughter by her in-laws, who were not
happy with the dowry already given to
them. When his daughter informed him, he
went
to
the
accused
persons
and
Rs.50,000/-
were
paid
to
them
on
20.04.2014 and 21.04.2014 was the fateful
day where the incident happened. This
witness has also proved the written tehrir
given to the police by him as Ex.Ka-1. In
his cross examination he has also affirmed
this fact that whenever he visited the
matrimonial home of his daughter, he found
her not happy. No material contradictions,
exaggerated or inconsistent statement are
found in the whole testimony of P.W.1. The
theory of 'soon before' is also proved by his
deposition as only one day before the
fateful day the additional dowry was paid
to the accused persons by him, which was
demanded on 15.4.2014 as deceased herself
told him on phone. In Satvir Singh And
Ors. Vs. State of Punjab (2001) 8 SCC
633, it has been clarified that the
expression 'soon before', here it was
indicates that there must be a perceptible
nexus between the infliction of dowryrelated harassment and cruelty on the
women and death. In Satbir Singh Vs.
State of Haryana (2021) 6 SCC 1, it was
held that the phrase "soon before" as
appearing in Section 304-B IPC cannot be
construed to mean "immediately before".
The prosecution must establish existence of
"proximate and live link" between the
dowry death and cruelty or harassment for
dowry demand by the husband or his
relatives. Needless to say that all the
ingredients to establish the guilt under
Section 304B I.P.C. have been clearly
proved by the testimony of P.W.1.
11 All. Raj Kumar @ Raju Vs. State of U.P.
41

29. D.W.1 produced to prove the plea
of alibi taken by the accused/appellant has
been disbelieved by the learned trial Court.
He has stated that it was a case of suicide
but he could not make it clear as to what
was the reason of suicide committed by the
deceased.

30. We come to the definite
conclusion that the death was homicidal
death. The judgments cited by the learned
counsel for the appellant namely Sanjay
Maurya ( supra) would permit us to uphold
our finding which we conclusively hold
that the offence is not under Section 302 of
I.P.C. but it is culpable homicide and was
dowry death. All the ingredients of dowry
death viz. unnatural death of deceased by
strangulation within seven years of her
marriage, cruelty for demand of dowry by
her husband, the theory of soon before, are
proved beyond reasonable doubt on the
basis of deposition of P.W.1 and also by the
medical evidence. Moreover, no material
lacuna in investigation appears to be
committed by the I.O.

31. While coming to the conclusion
that the accused is the perpetrator of the
offence,
whether
sentence
of
life
imprisonment and fine is adequate or the
sentence requires to be modified in the
facts and circumstances of this case and in
the light of certain judicial pronouncements
and precedents applicable in such matters.
This Court would refer to the following
precedents, namely, Mohd. Giasuddin Vs.
State of AP, [AIR 1977 SC 1926],
explaining
rehabilitary
&
reformative
aspects in sentencing it has been observed
by the Supreme Court:

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The
infliction of
harsh
and
savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

32. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP
[(2004) 7 SCC 257] by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

33. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Hon'ble
Supreme Court referred the judgments in
Jameel vs State of UP [(2010) 12 SCC
532],
Guru
Basavraj
vs
State
of
Karnatak, [(2012) 8 SCC 734], Sumer
Singh vs Surajbhan Singh, [(2014) 7 SCC
42 INDIAN LAW REPORTS ALLAHABAD SERIES
323], State of Punjab vs Bawa Singh,
[(2015) 3 SCC 441], and Raj Bala vs
State of Haryana, [(2016) 1 SCC 463] and
has reiterated that, in operating the
sentencing system, law should adopt
corrective machinery or deterrence based
on
factual
matrix.
Facts
and
given
circumstances in each case, nature of
crime, manner in which it was planned and
committed, motive for commission of
crime, conduct of accused, nature of
weapons used and all other attending
circumstances are relevant facts which
would enter into area of consideration.
Further, undue sympathy in sentencing
would
do
more
harm
to
justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The Hon'ble
Supreme Court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

34. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

35. Recent judgment of State of M.P
Vs. Jogendra, (2022) 5 SCC 401 and ratio
laid in the said judgment can be followed,
however, instead of seven years period
undergone of imprisonment for at least 10
years would be more than relevant in the
facts and circumstances of this case.

36. Having discussed the judgment
threadbare and having been considered the
factual data, we have come to the
conclusion that the offence committed by
the accused with an aid of Section 106 of
Indian Evidence Act, can be said to have
been under Section 304B I.P.C. for the
finding mentioned herein above.

37. By going through the evidence on
record it is very clear that the act of the
accused-appellant was not such which
cannot be substituted by giving a lessor
sentence than life imprisonment. It is
submitted that the accused appellant has
spent
about
8
and
1/2
years
of
incarceration,
which
is
the
enough
punishment in the facts of this case.
However, we are of the considered view
that the punishment in this case should be
10 years of incarceration against which a
period of 8 and 1/2 years is already
11 All. Rukan Singh Vs. Mahendra Singh & Ors.
43
undergone. Accordingly, the appellant is
held guilty under Section 304B I.P.C. and is
sentenced to rigorous imprisonment for a
period of 10 years but the fine and default
sentence are maintained.

38. Accordingly, the appeal is partly
allowed with the modification of the
sentence and punishing section as above.
Record and proceedings be sent back to the
Court below forthwith.

39. A copy of this order be sent to the
jail authorities for following this order and
doing the needful.

40. We are thankful to Rajrshi Gupta,
learned counsel for the appellant, Sri
Nagendra
Kumar
Srivastava,
learned
A.G.A. and Mr. Mohd. Furkan Khan, Law
Clerk (Trainee), for ably assisting the
Court.
----------
(2022) 11 ILRA 43
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Matters U/A 227 No. 324 of 2007

Rukan Singh ...Petitioner
Versus
Mahendra Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri K.M. Garg

Counsel for the Respondents:
SC, Sri Raj Mohan Saggi, Sri Anil Sharma

A. Civil Law - Constitution of India-Article
227-Cutting of trees from the land of
plaintiff-Plaintiff claimed for compensationdefendants admitted that they had cut away
the trees but denied the ownership of
plaintiff-Inevitable conclusion drawn by
Trial court was that the trees of defendants
were existing in their land-Appellate Court
has erred in interfering with the findings of
the Trial court which was in favour of
plaintiff-trial court rightly observed that plot
no. 1136 and 1139 had been converted to
plot no. 159 which was clear from the C.H.
Form 41-the finding was absolutely correct
that the trees of the plaintiff alone had been
cut away- If there was in any manner a slip
in the drafting of the plaint and plot no. 159
was not mentioned in the pleading it did not
mean
that
the
Trial
court
erred
in
considering the evidence which was
produced with regard to plot no. 159-Thus,
The appellate court judgment and decree is
set aside.(Para 1 to 29)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Satyadhyan Ghosal & ors. Vs Smt. Deorjin
Debi & anr. (1960) AIR SC 941

2. Md. Inam Vs Sanjay Kumar Singhal & ors.
(2020) 7 SCC 327

3. Sumesh Singh Vs Phoolan Devi & ors. (2009)
12 SCC 689

4. Shreepat Vs Rajendra Prasad & ors. (2000) 7
JT 379

5. Gajraj & ors. Vs Ramadhar & ors. (1975) AIR
Alld 406

6. Ram Sarup Gupta(dead) by L.Rs. Vs Bishun
Narain Inter College & ors. (1987) AIR SC 1242

7. Nagubai Ammal & ors. Vs B. Shama Rao &
ors. (1956) SC 593

8. Katikara Chintamani Dora & ors. Vs Guatreddi
Annamanaidu & ors. (1974) AIR SC 1069

9. Smt. Manjushri Raha & ors. etc Vs B.L Gupta
& ors. etc (1977) AIR SC 1158

10. Joseph Peter Sandy Vs Veronica Thomas
Rajkumar & anr. (2013) 3 SCC 801