# Raj Kumar v. State of U.P

- **Citation:** (2022) 9 ILRA 120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-01
- **Case number:** Criminal Appeal No. 6335 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-state-of-u-p-48975
- **Pages:** 7

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 498 A, 304 B , Section
302 r/w Section 149 - Dowry prohibition
Act,1961 - Section 3 & 4 - The Code of
criminal procedure, 1973 - Section 313
-
opportunity
to
defend
anything
adverse to the accused should be given
to the accused - dowry death - In case of
offence under Section 304B of IPC -
there is reverse burden of proof on the
accused - which is not in the case of
Section 302 of IPC.(Para -17, 21)

Death
of
deceased
occurred
in
her
matrimonial home - before seven years of
marriage - occurrence took place after three
months of marriage of deceased - before two
days of occurrence - deceased told her
parents for demand of plot and harassment
for that - all ingredients of offence under
Section 304B of IPC present - trial court
framed alternative charge under Section 302
r/w 149 of IPC. (Para - 18 )

(B) Evidence Law - Indian Evidence Act,
1872 - Section 113B - Presumption as to
dowry death - Section 106 - Burden of
proving fact especially within knowledge
- "soon before death" - depends upon
facts of each case - proximity live link
between harassment or cruelty and the
death of deceased - when presumption
under Section 113B is drawn - matter
falls within the purview of offence under
Section
304B
of
IPC
because
the
marriage
of
the
deceased
was
solemnized just before three months.
(Para - 19)

HELD:- Judgement and order upturned to the
extent of conviction and sentence of accusedappellant with regard to the offence under
Section 302 r/w Section of 149 IPC . Accusedappellant convicted for the offence under
Section 304B of IPC. Conviction and sentence
under Section 3 and 4 of Dowry Prohibition
Act maintained. (Para -22)

Criminal appeal partly allowed. (E-7)

List of Cases cited:-

## Text

120 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence in toto to determine whether it
has, on the whole a ring of truth. While
evaluating the evidence, it cannot be held
to be unworthy of credit just because the
witnesses were closely related.

22. This appeal lacks merits and is
liable to be dismissed and is hereby
dismissed. The judgment of the trial court
is hereby affirmed. The appellant is in jail.
He shall serve out the sentence as awarded
by the trial court.

23. Office is directed to certify this
order to the court concerned forthwith to
ensure compliance and also to send back
the lower court record.
----------
(2022) 9 ILRA 120
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6335 of 2011

Raj Kumar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Arun Kumar Srivastava, Sri K.K. Mishra,
Sri Mahesh Kumar Kuntal, Sri Mohd.
Samiuzzaman Khan, Sri Shailendra Singh

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 498 A, 304 B , Section
302 r/w Section 149 - Dowry prohibition
Act,1961 - Section 3 & 4 - The Code of
criminal procedure, 1973 - Section 313
-
opportunity
to
defend
anything
adverse to the accused should be given
to the accused - dowry death - In case of
offence under Section 304B of IPC -
there is reverse burden of proof on the
accused - which is not in the case of
Section 302 of IPC.(Para -17, 21)

Death
of
deceased
occurred
in
her
matrimonial home - before seven years of
marriage - occurrence took place after three
months of marriage of deceased - before two
days of occurrence - deceased told her
parents for demand of plot and harassment
for that - all ingredients of offence under
Section 304B of IPC present - trial court
framed alternative charge under Section 302
r/w 149 of IPC. (Para - 18 )

(B) Evidence Law - Indian Evidence Act,
1872 - Section 113B - Presumption as to
dowry death - Section 106 - Burden of
proving fact especially within knowledge
- "soon before death" - depends upon
facts of each case - proximity live link
between harassment or cruelty and the
death of deceased - when presumption
under Section 113B is drawn - matter
falls within the purview of offence under
Section
304B
of
IPC
because
the
marriage
of
the
deceased
was
solemnized just before three months.
(Para - 19)

HELD:- Judgement and order upturned to the
extent of conviction and sentence of accusedappellant with regard to the offence under
Section 302 r/w Section of 149 IPC . Accusedappellant convicted for the offence under
Section 304B of IPC. Conviction and sentence
under Section 3 and 4 of Dowry Prohibition
Act maintained. (Para -22)

Criminal appeal partly allowed. (E-7)

List of Cases cited:-

1. Santosh Vs St. of U.P., 2021 0 Supreme (All)
173

2. Nallapareddi Sridhar Reddy Vs St. of A.P.,
(2020) 12 SCC 467
9 All. Raj Kumar Vs. State of U.P.
121
3. R. Rachaiah Vs Home Secy., 2016 0 Supreme
(SC) 383

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This criminal appeal is preferred by
appellant-Raj Kumar against the order and
judgement dated 17.09.2011 passed by
Additional Sessions Judge, Court No.17,
Bulandshahr in Session Trial No.1398 of 2007
(State Vs. Raj Kumar) and Session Trial No.86
of 2008 (State Vs. Smt. Geeta and others)
arising out of Case Crime No.301 of 2007,
under Section 498A, 304B of IPC alternatively
under Section 302 r/w Section 149 of IPC and
Section 3 and 4 of Dowry Prohibition Act,
Police Station- Pahasu, District- Bulandshahr,
by which the accused persons Smt. Geeta, Tej
Pal and Ram Pratap were acquitted of all the
charges. During the course of trial, accused
Dharmwati has passed away and trial was
abated against her and appellant-Raj Kumar
was convicted for the offence under Section
302 r/w Section 149 of IPC and sentenced for
life imprisonment with fine of Rs.10,000/- and
one year S.I. in case of default of fine.
Appellant-Raj Kumar was also convicted
under Section 3 of Dowry Prohibition Act,
1961 and sentenced to five years R.I. and fine
of Rs.15,000/- and one year S.I. in case of
default of fine. Appellant-Raj Kumar was
further convicted under Section 4 of Dowry
Prohibition Act, 1961 and sentenced to two
years R.I. with fine of Rs.5,000/- and six
months additional S.I. in case of default of
fine. All the sentences were directed to run
concurrently.

2. Heard Shri Mohd. Samiuzzaman
Khan, learned counsel for the appelllant,
Shri N.K. Srivastava, learned AGA for the
State and perused the record.

3. The brief facts as culled out from
record are that informant Ompal Singh
gave a written report in police station-
Pahasu,
District-
Bulandshahr
on
13.08.2007 alleging that he is resident of
Bank Colony, Bhiwani, Haryana. He had
solemnized the marriage of his daughter
Pooja on 06.05.2007 with Raj Kumar son
of Heera Singh resident of District-
Bulandshahr. He had given dowry more
than his capacity but in-laws of his
daughter were not happy with the dowry
given and demanded more amount. He had
incurred more than Rs.3 lacs as expenditure
in the aforesaid marriage. There was also a
plot in the name of his daughter Pooja. It is
further stated that in-laws of his daughter
Pooja used to pressurize him and his
relatives to sell the aforesaid plot and
purchase a plot in Khurja for them. It is
also stated that before two days of the
occurrence, he and his wife went to the
matrimonial home of Pooja, where she told
them that pressure was being mounted on
her for selling the plot, and, she was being
threatened for her life. Informant has
further stated that he had refused to sell the
plot, hence, due to this reason, husband of
his daughter Raj Kumar, mother-in-law,
sister-in-law Geeta, husband of Geeta, Tej
Pal and younger brother of husband Ram
Pratap had murdered his daughter Pooja by
burning her. On receiving a phone call, he
and his wife went to the matrimonial home
of Pooja, where they found her burnt body
and they came to know that Raj Kumar had
also committed similar act with his first
wife by burning her.

4. On the basis of the aforesaid
written report, a Case Crime No.301 of
2007 was registered at Police Station-
Pahasu, under Section 498A, 304B IPC and
Section
3/4
Dowry
Prohibition
Act.
Investigation
was
taken
up
by
the
investigating officer, who visited the spot
and recovered kerosene oil can, match box
122 INDIAN LAW REPORTS ALLAHABAD SERIES
and plastic rope from the spot and half
burnt leaves of guava tree of which
recovery memos were prepared separately.
Inquest report was prepared and the post
mortem of deceased Pooja was conducted
by the panel of two doctors and post
mortem report was prepared. During the
course of investigation, I.O. recorded the
statements of witnesses and site plan was
prepared. After completion of investigation,
I.O. submitted charge sheet against Raj
Kumar and Dharmwati under Section
498A, 304B, 201 and 120B IPC and under
Section 3/4 Dowry Prohibition Act. Second
charge sheet was submitted to the court
against the accused Smt. Geeta, Tej Pal and
Ram Pratap under the aforesaid offences.

5. The case, being triable exclusively
by the court of Sessions, was committed to
the court of the Sessions for trial by the
concerned Magistrate.

6. The trial court framed charges
against all the accused persons under
Sections 304B, 498A of IPC and under
Section 3/4 of Dowry Prohibition Act. The
accused persons denied the charges and
claimed to be tried. After the examination
of all the prosecution witnesses, learned
trial court framed alternative charge on
25.08.2011 under Section 302 r/w Section
149 of IPC.

7. Prosecution produced following
witnesses before learned trial court in oral
testimony:

1.
Asha
PW1
2.
Yogendra
PW
3.
Dr. Rajkumar
PW
4.
R.K. Singh
PW
5.
Vijendra Singh Tomar
PW
6.
Padam Singh
PW
7.
Ompal
PW
8.
Rajpal Singh
PW

 Court witness No.1 Bangali Rai
Gautam was also examined by the court.

8. In support of its case, the
prosecution filed following documentary
evidence before the trial court, which was
proved by leading the evidence:

1.
FIR
Ex.ka.13
2.
Written report
Ex.ka.1
3.
Recovery memo of kerosene oil can,
match box and plastic rope
Ex.ka.4
4.
Recovery memo of half burnt leaves of
guava tree
Ex.ka.5
5.
Post mortem report
Ex.ka.2
6.
Panchayatnama
Ex.ka.7
7.
Site plan
Ex.ka.3

9. After conclusion of evidence,
statements
of
accused
persons
were
recorded under Section 313 of Cr.P.C., in
which they contended that false evidence
was led against them and they were falsely
implicated. Accused persons examined no
witness in their defence.

10. All the accused except accusedappellant Raj Kumar were acquitted of all
the charges and Raj Kumar was convicted
and sentenced under Section 302 r/w
section 149 of IPC along with Sections 3
and 4 of Dowry Prohibition Act.

11. Learned counsel for the appellant
submitted that all the accused persons
except the appellant were acquitted by the
learned trial court on the same set of the
evidence.
Hence,
the
conviction
of
appellant is bad in the eyes of law. Learned
counsel for appellant has raised a legal
question namely that initially the charge
9 All. Raj Kumar Vs. State of U.P.
123
was framed under Section 304B of IPC
along with other offences but after
recording of the entire oral evidence by the
prosecution, learned trial court framed
alternative charge under Section 302 r/w
Section 149 of IPC and no opportunity was
given to the appellant to defend himself
against the aforesaid alternative charge.
Learned counsel for appellant submitted
that prosecution had examined 8 witnesses,
namely PW1 to PW8 and the last witness
was examined on 24.08.2009. After about
two years, on 25.08.2011 after change of
presiding Judge alternative charge under
Section 302 r/w Section 149 of IPC was
framed by learned trial court, the accusedappellant was not given opportunity to
cross-examine
any
of
the
witnesses
examined i.e. PW1 to PW8 with regard to
the charge under Section 302 of IPC.,
hence, accused had no get opportunity to
defend himself against alternative charge
for higher offence framed by learned trial
court. By this way, the accused was
prejudiced. It is submitted that on this
ground alone, the trial was vitiated and
appellant could not have been convicted
under Section 302 of IPC.

12. Learned counsel heavily relied on
the judgement of this Court in the case of
Santosh Vs. State of U.P. reported in
2021 0 Supreme (All) 173, where one of
us (Dr. Kaushal Jayendra Thakar, J.) was
signatory to the said judgement. The only
defence in the said matter was that in the
aforesaid case, the witnesses had turned
hostile. In our case, witnesses have not
turned hostile, but the fact remains that the
accused-appellant
was
never
put
to
questions
even
while
examining
the
accused under Section 313 Cr.P.C. with
regard to the offence under Section 302 of
IPC. Learned counsel for the appellant also
submitted that no additional demand of
dowry was proved by the prosecution. The
appellant
had
never
pressurized
his
deceased wife for selling the plot in
question and purchasing another plot in
Khurja. Rather the informant, father of the
deceased, himself entered into agreement to
sell the aforesaid plot with someone and
received Rs.1 lac. For this reason, the
deceased was upset and she accidentally
died and appellant along with his family
members were roped in.

13. Learned counsel has further
submitted that learned trial court placed
reliance on the evidence of Dr. Rajkumar
PW3 who had deposed in connection with
the post mortem of the deceased. PW3 had
opined that the cause of death of the
deceased was asphyxia as a result of
smothering. On the basis of this statement
alone, the learned trial court convicted the
appellant under Section 302 of IPC. It is
submitted that it was not proved that the act
of smothering was committed by the
appellant. Learned trial court convicted the
accused on the basis of surmises and
conjectures and in preconceived notions on
basis of altered charge only.

14. Learned AGA for the State
opposed the submissions made on behalf of
the appellant and submitted that the
deceased died in her matrimonial home
after only three months of her marriage and
her body was found in burnt condition in
matrimonial home. Learned AGA also
submitted that all the witnesses of fact have
supported the prosecution case and have
categorically stated that the deceased was
being pressurized for selling the plot of
land, which was in her name and she was
killed by smothering, which could not be
accidental. Hence, the learned trial court
has rightly convicted the appellant under
Section 302 of IPC. There is no illegality in
124 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned judgement which calls for any
interference by this Court.

15. The legal question, raised by the
learned counsel for the appellant is
answered by this Court, with regard to the
conviction of accused-appellant under
Section 302 of IPC. It is evident from the
record that in this case PW1 Smt. Asha was
examined on 07.04.2008 and the last
prosecution witness PW8 Rajpal Singh
C.O., Anoopshahr was
examined
on
24.08.2009.
Alternative
charge
under
Section 302 r/w Section 149 of IPC was
framed
by
learned
trial
Judge
on
25.08.2011. First charge was framed under
Section 304B of IPC along with other
offences and after framing the alternative
charge
under
Section
302
IPC
on
25.08.2011,
none
of
the
prosecution
witness, namely PW1 to PW8 was reexamined nor recalled nor any opportunity
was given to appellant-accused to crossexamine any of the aforesaid witnesses on
the fresh charge framed. It is also very
relevant to note that no evidence with
regard to the offence under Section 302 of
IPC was led. The accused-appellant was
not put to any question during recording of
his statement under Section 313 Cr.P.C. and
no additional statement under Section 313
Cr.P.C.

16. It would be pertinent to reproduce
Section 216 of Cr.P.C. regarding the
alteration of charge which reads as follows:

216. Court may alter charge.

(1) Any Court may alter or add to
any charge at any time before judgment is
pronounced.

(2) Every such alteration or
addition shall be read and explained to the
accused.

(3) If the alteration or addition to
a
charge
is
such
that
proceeding
immediately with the trial is not likely, in
the opinion of the Court, to prejudice the
accused in his defence or the prosecutor in
the conduct of the case, the Court may, in
its discretion, after such alteration or
addition has been made, proceed with the
trial as if the altered or added charge had
been the original charge.

(4) If the alteration or addition is
such that proceeding immediately with the
trial is likely, in the opinion of the Court, to
prejudice the accused or the prosecutor as
aforesaid, the Court may either direct a new
trial or adjourn the trial for such period as
may be necessary.

(5) If the offence stated in the
altered or added charge is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained, unless
sanction has been already obtained for a
prosecution on the same facts as those on
which the altered or added charge is
founded.

17. It has been time and again held by
the Apex Court that Section 313 of Cr.P.C.
has its own importance and opportunity to
defend anything adverse to the accused
should have been given to the accused. The
opportunity
to
cross-examine
the
prosecution witnesses was not given to the
accused-appellant even the prosecution
witnesses
deposed
much
before
the
alternative charge. After framing the
alternative charge, learned trial court
should have recalled the prosecution
witnesses and they should have been
permitted to be cross-examined by the
accused-appellant, in the absence of which,
the accused could not have thought that the
said alteration of charge would be acted
upon and the trial would culminate into the
9 All. Raj Kumar Vs. State of U.P.
125
returning the finding of punishment to him
under Section 302 of IPC. The ingredients
of Section 302 of IPC were not present in
the charge of which the appellant was put
to trial. The object and scope of altering the
charge and principles therein have been
summarized
by
the Apex
Court
in
Nallapareddi Sridhar Reddy Vs. State of
A.P. (2020) 12 SCC 467, which are
applicable in our case. The Apex Court in
R. Rachaiah Vs. Home Secretary 2016 0
Supreme (SC) 383 has held that alteration
of charge in violation of mandate as per
Section 216 and 217 Cr.P.C. and conviction
recorded under altered charge seriously
causes prejudice to the accused. Therefore,
this impropriety of the trial court stands
vitiated and there could have been no
conviction under altered charge namely
under Section 302 of IPC. Hence, we hold
that the conviction on altered charge was
bad because the accused was never given
opportunity to defend himself for the
offence under Section 302 of IPC and his
interest was prejudiced. We are supported
in our view by the reasonings in Santosh
(supra).

18. We find it very strange that even
in alternative charge, the learned trial court
has mentioned the ingredients of dowry
death, as demand of plot as additional
dowry is there. Homicidal death of the
deceased Pooja for not meeting out the
demand of additional dowry is also there. It
is admitted fact that the death of the
deceased occurred in her matrimonial home
even before seven years of marriage
because the occurrence had taken place
after three months of the marriage of the
deceased. It is also evidence that before
two days of the occurrence, the deceased
had told her parents for demand of the plot
and harassment for that. Hence, in this
matter all the ingredients of offence under
Section 304B of IPC are present yet, the
learned trial court framed alternative charge
under Section 302 r/w 149 of IPC. This
exercise of learned trial Judge was futile.

19. For dowry death, presumption
under Section 113B of Indian Evidence
Act, 1872 is drawn, if it is shown soon
before her death such woman had been
subjected by the person causing death to
cruelty or harassment for, or in connection
with any demand of dowry, the court shall
presume that such person had caused
dowry death. The concept of "soon before
death" varies from case to case. What is
"soon before death" depends upon the facts
of each case, keeping in view the proximity
live link between the harassment or cruelty
and the death of deceased. In our case, it is
evident on record that the pressure was
being mounted on the deceased for selling
the plot, which stood in her name and she
was being threatened to life also. In this
case facts go to show and it is proved that
"soon before her death" the deceased was
subjected to harassment in connection with
demand of additional dowry because
pressurizing the deceased for selling the
plot was indirect way of demand of dowry.
Hence, when presumption under Section
113B of Indian Evidence Act, 1872 is
drawn then the matter falls within the
purview of offence under Section 304B of
IPC because the marriage of the deceased
was solemnized just before three months of
the occurrence. Hence, the death of the
deceased was within seven years of the
marriage and as discussed above it is
shown that soon before her death, she was
subjected to cruelty/harassment by the
appellant in connection with demand of
dowry, the death of the deceased would be
considered "dowry death".

304B. Dowry death.-
126 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

20. While going through the provision of
Section 304B of IPC, it is very clear that it can
be read with Section 106 of the Indian
Evidence Act and coupled with Section 113B
of the Indian Evidence Act. We are fortified in
a view that the matter is covered by the
ingredients of the said sections. The fact that
Section 302 IPC conviction cannot stand but
the same time acquittal cannot be ordered in
favour of the accused. The ground allegedly
taken by accused is also not stated by any
cogent evidence being led under Section 313
of Cr.P.C. As we considered the totality we are
of the confirmed opinion that the accused has
to be dealt with Section 304B IPC and
acquittal under Section 304B IPC and
conviction under Section 302 IPC cannot be
sustained.

21. In case of offence under Section
304B of IPC, there is reverse burden of proof
on the accused, which is not in the case of
Section 302 of IPC. The learned trial court has
committed manifest error by convicting the
accused-appellant under Section 302 of IPC
on the basis of reverse burden of proof on the
shoulders of the appellant. The evidence in this
case does not show that Section 302 of IPC is
applicable to the facts of this case.

22. Hence, we upturn the judgement and
order of the learned trial court to the extent of
conviction and sentence of accused-appellant
with regard to the offence under Section 302
r/w Section of 149 IPC and convict the
accused-appellant for the offence under
Section 304B of IPC. The period undergone
would be just and proper as the accusedappellant is in jail for more than 10 years. The
conviction and sentence of appellant under
Section 302 of IPC is set aside and appellant is
convicted and is sentenced under Section
304B of IPC to the period already undergone.
The conviction and sentence under Section 3
and 4 of Dowry Prohibition Act is maintained.
All the sentences to run concurrently as
directed by learned trial court. Fine and default
sentence maintained.

23. With these observations, the appeal is
partly allowed as modified above.

24. Record and proceedings be sent back
to the court below.
----------
(2022) 9 ILRA 126
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

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

Criminal Appeal No. 6384 of 2009

Umesh Mahto & Anr. ...Appellants
Versus
State of U.P. ...Respondent