# Raj Kumar v. State of U.P

- **Citation:** (2023) 12 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-22
- **Case number:** Criminal Appeal No. 187 of 2006
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-state-of-u-p-49617
- **Pages:** 9

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section 374(2) - The
Evidence Act,1872-106 & 113B---Appeal
against the judgment whereby appellants were
convicted under Section 304B I.P.C. and Section
3/4 of D.P. Act, and sentenced to 7 years
imprisonment along with fine---Ingredients of
Section 304B and 498A IPC/Section 4 of D.P.
Act regarding demand of dowry subjecting the
deceased
to
matrimonial
cruelty
by
the
appellant and his family members and causing
her dowry death are proved by prosecution
evidence beyond reasonable doubt---The case
of prosecution is fortified with the aid of
statutory presumption provided in Section 113B
of Indian Evidence Act and on account of giving
false explanation of cause of death of the
deceased, the presumption will be raised
against the accused appellant regarding causing
unnatural death of the deceased--No factual or
legal error in the impugned judgment passed by
learned court below---No finding regarding
charge under Section 3 of D.P. Act against
appellants, nevertheless they are convicted and
sentenced for charge under Section 3/4 of D.P.
Act instead of being convicted under Section 4
of D.P. Act only---Conviction for charge under
Section 3 of Dowry Prohibition Act is set-aside
and conviction and sentence for charge under
Section
4
of
Dowry
Prohibition
Act
is
maintained.

Appeal partly allowed. (E-15)

List of Cases cited:

## Text

12 All. Raj Kumar Vs. State of U.P.
5
(2023) 12 ILRA 5
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 187 of 2006

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

Counsel for the Appellant:
Sri Pradeep Kumar, Sri Pradeep Kumar, Sri
Prem
Chandraaa,
Sri
Santosh
Kumar
Tiwari, Sri Sanjay Kumar Singh

Counsel for the Respondent:
Govt. Advocate

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 374(2) - The
Evidence Act,1872-106 & 113B---Appeal
against the judgment whereby appellants were
convicted under Section 304B I.P.C. and Section
3/4 of D.P. Act, and sentenced to 7 years
imprisonment along with fine---Ingredients of
Section 304B and 498A IPC/Section 4 of D.P.
Act regarding demand of dowry subjecting the
deceased
to
matrimonial
cruelty
by
the
appellant and his family members and causing
her dowry death are proved by prosecution
evidence beyond reasonable doubt---The case
of prosecution is fortified with the aid of
statutory presumption provided in Section 113B
of Indian Evidence Act and on account of giving
false explanation of cause of death of the
deceased, the presumption will be raised
against the accused appellant regarding causing
unnatural death of the deceased--No factual or
legal error in the impugned judgment passed by
learned court below---No finding regarding
charge under Section 3 of D.P. Act against
appellants, nevertheless they are convicted and
sentenced for charge under Section 3/4 of D.P.
Act instead of being convicted under Section 4
of D.P. Act only---Conviction for charge under
Section 3 of Dowry Prohibition Act is set-aside
and conviction and sentence for charge under
Section
4
of
Dowry
Prohibition
Act
is
maintained.

Appeal partly allowed. (E-15)

List of Cases cited:

1. Ramaiah Vs St. of Karn. AIR 2014(SC) 3388,

2. Suresh Kumar Vs St. of Har. 2014 Cr.LJ (551)

3. Naresh Kumar Vs St. of Har. 2015(1) SCC797
(SC)

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant Criminal Appeal has been
preferred against the judgment and order
dated 29.04.2005 passed by Additional
Session Judge Court, No.2, Banda in
Session Trial No.280 of 2002, under
Sections 498A and 304B of I.P.C. and
Section 3/4 of Dowry Prohibition Act,
arising out of Case Crime No.29 of 2001,
Police Station Kalinjar, District Banda,
whereby the appellant Raj Kumar and coaccused Ram Asarey were convicted
under Section 304B I.P.C. and Section
3/4 of D.P. Act, and sentenced to 7 years
imprisonment
alongwith
fine
of
Rs.1,000/- for charge under Section 304B
of I.P.C.; 2 years imprisonment for charge
under Section 498A of I.P.C. and 6
months imprisonment for charge under
Section 3/4 of D.P. Act with default
stipulation. The co-accused Smt. Sudama
was acquitted from all charges in the
impugned judgment.

2. Heard Sri Santosh Kumar Tiwari,
learned Amicus Curiae appearing for the
accused-appellant and Sri Deepak Kapoor,
learned A.G.A. for the State-respondent
and perused the records.
6 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The factual matrix of the case in brief
are that informant Nathoo son of Vishal,
resident of village Jamu, Police Station
Kamasin, District Banda lodged a First
Information Report dated 14.06.2001 at Police
Station Kalinjar, District Banda, on 04.07.2001
at about 08:15 hours wherein he has stated that
he had married his daughter Kusuma on
29.04.1999 according to Hindu Rites and
Rituals with Raj Kumar son of Ram Asarey
and he gave Rs.20,000/- cash, valuable worth
Rs.10,000/- as dowry to groom's side, his
daughter was send off after marriage. The
father-in-law of his daughter stated that at the
time of Vidai of his daughter, although
marriage has been solemnized, he yet got
nothing in the dowry; whereupon the
informant expressed its inability to pay any
more pleading his poverty. After one month of
Vidai of his daughter his son Rajesh came to
the place of accused person taking back his
sister at the place of informant, where fatherin-law, mother-in-law, husband and brother-inlaw of his daughter demanded Rs.10,000/- in
cash, one motorcycle and one radio as
additional dowry. His son Rajesh came back to
his place alongwith his sister; the daughter of
informant stated the informant and other
family members that her husband and in-laws
were demanding dowry from day month of his
arrival at matrimonial place and husband used
to abuse her citing ground of receipt of less
dowry. The accused persons were coercing
and harassing her due to non-fulfillment of the
demand of dowry. The daughter of the
informant was again sent to her matrimonial
home after some time, but demand of dowry
persisted there. She was subjected to physical
and mental cruelty due to non-fulfillment of
demand of dowry, his daughter stated that if
the demand of dowry made by husband and
inlaws is not conceded, they would kill her.

4. Counsel for the appellant further
submitted on 05.06.2021 when informant
Nathoo came to the place of accused
persons to take back his daughter, he came to
know that his daughter Kusuma was done
away by giving beating to her by clubs and
sticks by her husband, parents-in-law and
brother-in-law (Devar). He visited the police
station to lodge an FIR, but his report was not
recorded. He also met Circle Officer who got
inquest and postmortem on the body of the
deceased, but his FIR was not recorded, then
he approached the Superintendent of Police
and on his direction his FIR was lodged. The
Circle Officer Amrita Mishra investigated the
case recorded the statements of witnesses,
collected invitation card of marriage, inquest
and postmortem report as well as documents
forwarded with postmortem report and
records relating to marriage of deceased with
accused Raj Kumar. After collecting evidence
the
Investigating
Officer
submitted
chargesheet against Raj Kumar, husband of
the deceased, Ram Asarey, father-in-law and
Smt. Sudama, mother-in-law of the deceased
with prayer to prosecute the accused for
charge under Sections 498A and 304B of
I.P.C. and Section 3/4 of Dowry Prohibition
Act.

5. During investigation this fact came
into light that on 06.06.2001 the uncle
(fufa) of the deceased, accompanied by her
father-in-law Nathoo and Chhatrapal Singh
visited
police
station
Kalinjar
and
submitted a death information report
regarding death of Kusuma Devi aged
about 18 years due to illness. On
06.06.2001
at
5:00
pm
this
death
information report was lodged vide G.D.
Entry No.9, at 07:20 hours at Police Station
Kalinjar, District Banda. This fact also
narrated in the said death information
report that deceased was married with Raj
Kumar three years ago, who was ill for 15
days and died suddenly, despite much
treatment.
12 All. Raj Kumar Vs. State of U.P.
7

6. Chargesheeted accused Ram
Asarey was enlarged on bail during trial
vide order dated 30.01.2002 passed by
court of session and accused Raj Kumar
was enlarged on bail vide order dated
04.06.2002 passed in Criminal Misc. Bail
Application No.11313 of 2002. Accused
Smt. Sudama Devi was also enlarged on
bail by the court's order dated 12.06.2002.
In postmortem examination report of
deceased Kusuma, her age is mentioned as
18 years. Three ante-mortem injuries in the
nature of contusion were found on right
thigh, right knee and left knee. The cause of
death
could
not
be
ascertained
in
postmortem
report,
and Viscera
was
preserved
for
chemical
analysis.
In
postmortem report time of death was found
to be four days before the date of
postmortem, which was conducted on
07.06.2001 at 3:00 pm, the body was
decomposed and was swollen, abdomen
was
distended,
internal
organs
were
decomposed. In viscera examination report
Aluminium Phosphide was found by
Forensic Science Laboratory, this report
was prepared on 10.07.2001. The accused
Raj Kumar, Ram Asarey and Smt. Sudama
were charged by court of session Banda on
commencement of Session Trial for charge
under Sections 304 B of I.P.C. and Section
3/4 of D.P. Act.

7. In prosecution evidence, P.W.1
Nathoo informant and father of deceased,
P.W.2 Shivkaran (cousin brother of the
deceased), PW3 Rajesh brother of deceased
were examined as witness of facts and PW4
Dr. G.K. Agarwal was examined as author
of postmortem report of the deceased, PW5
constable Lala Bhaiya is author of Chik FR
and GD entries of registration of case by
GD Entry No.19 at 08:15 hours dated
04.07.2001 vide Crime No. 29/01, PW6
Ms. Amrita Mishra Deputy Superintendent
of Police is Investigating Officer and PW7
Ashok Kumar then Naib Tehsildar is author
of inquest report.

8. The statement of accused persons
were recorded under Section 313 of
Cr.P.C., after conclusion of prosecution
evidence
in
which
they
stated
that
witnesses have deposed falsely against
them due to enmity, the deceased had been
indisposed for sometime prior to his death.
The accused were providing treatment to
her, but she died due to illness.

9. The accused persons examined
DW1 Nathu, DW1 Raj Kumar (Phoopha of
the deceased). The learned trial judge after
considering the material evidence on record
gave a finding of guilt to accused Raj
Kumar and Ram Asarey the husband and
father-in-law of the deceased and recorded
verdict of acquittal of Smt. Sudama Devi
the mother-in-law of the deceased, as her
complicity in the offence was not proved.
The convicted accused persons were
sentenced as stated above, all the sentences
were directed to run concurrently.

10. Convict Ram Asarey died during
the pendency of appeal on 15.02.2023, and
this Court vide order dated 15.03.2023
abated connected Criminal Appeal No.2349
or 2005 ( Ram Asarey Vs. State of U.P.) on
account
of
the
death
of
the
appellant/convict.

11. Learned Incharge C.J.M. Banda
communicated this Court vide letter dated
10.03.2023 that accused Raj Kumar was
released from jail custody on 02.08.2010
after undergoing the sentence awarded in
judgment dated 29.04.2005 passed in S.T.
No.280 of 2002, arising out of Case Crime
No.29 of 2001 under Sections 498A and
304B of I.P.C. and Section 3/4 of Dowry
8 INDIAN LAW REPORTS ALLAHABAD SERIES
Prohibition Act, Police Station Kalinjar,
District Banda.

12.
 Feeling
aggrieved
by
the
impugned judgment and order the present
appellant Raj Kumar file present Criminal
Appeal under Section 374(2) Cr.P.C.,
wherein learned Session Judge failed to
consider the fact that deceased had ended
her life by taking poison, no injury as
alleged by the PW1-father of the deceased
was found on person of the deceased which
might be inflicted by club and sticks. The
appellant was enlarged on bail during trial.

13. Learned counsel for the appellant
placed reliance on grounds taken in memo
of appeal, submitted that FIR in the present
case was lodged after one month of the
unfortunate death of the wife of appellant
which gave a ample opportunity of
embellishment,
concoction
and
afterthought in prosecution version. The
injuries found on persons of the deceased in
her postmortem report are of simple nature
and on non-vital part of the body. PW 4
Dr.G.K. Agarwal has stated in his evidence
that injuries found on person of the
deceased were of superficial in nature and
were not weak. The contusion turns into red
and thereafter black on lapse of days, the
injury No.1 to 3 were not having any colour
and no fatal injury was found on the person
of the deceased. He failed to state that he is
not having information that deceased has
consumed Aluminium Phosphide poison, if
any smell of Aluminium Phosphide poison
would emerged from mouth of the
deceased, he would have written this fact in
his postmortem examination report. The
DW1 Nathoo who is close relative of the
father of the deceased has himself given
death information report at Police Station
concerned on 07.06.2001 and no allegation
of rape found against accused persons. In
this death information report, the informer
has stated that he was informed about death
of the deceased by her father-in-law Ram
Asarey.

14. Learned counsel for the appellant
submitted
that
prosecution
failed
to
establish the guilt of the accused appellant
beyond reasonable doubt and he deserves
to be acquitted from all charges, conviction
and sentence referred by trial court is liable
to be set-aside.

15. Learned counsel for the appellant
placed reliance upon judgment of Hon'ble
Supreme Court in Ramaiah Vs. State of
Karnataka AIR 2014(SC) 3388, in which
it is held that generally the order of
acquittal is not interfered with because the
presumption
of
innocence,
which
is
otherwise available to the accused under
the fundamental principles of criminal
jurisprudence that every person shall be
presumed to be innocent, unless he is
proved guilty by court of law, gets further
reinforced
and
strengthened
by
his
acquittal. It is also trite that if two views
are possible on the evidence adduced in the
case and the one favourable to the accused
has been taken by the trial court, it should
not be disturbed.

16. Per contra learned A.G.A.
submitted
that
the
prosecution
has
successfully
proved
its
case
against
appellant
beyond
reasonable
doubt.
Learned trial court has rightly convicted
and sentenced the appellant, and coaccused on the basis of evidence adduced
during trial. There is no infirmity factual or
legal error in the impugned judgment, all
the ingredients of Sections 304B, 498A of
I.P.C. and Section 3/4 of D.P. Act are
fulfilled in the case. The appellant failed to
point out any material infirmity in the
impugned judgment and order, the sentence
12 All. Raj Kumar Vs. State of U.P.
9
awarded by learned trial court is itself in
lower side and minimum sentence has been
awarded in the case despite seriousness of
the offence and proof of the guilt of the
accused who is husband of the deceased.

17. From perusal of the impugned
judgment and evidence on record, it
appears that deceased died on 04.06.2005
at her matrimonial home. The FIR of her
death was given at Police Station on
07.06.2001
by
one
Nathoo
son
of
Chhatrapal Singh who is (Phoopha) uncle
of the deceased was accompanied by
father-in-law of the deceased at that time.
According to P.W1 the informant and father
of the deceased he got information of death
of his daughter Kushma, when he visited
her matrimonial place on 05.06.2001 and
found his daughter dead at the place of
accused persons. The marriage of the
deceased and accused Raj Kumar was
solemnized on 29.04.1999, the accused
persons made demand of dowry at the time
of Vidai ceremony of the deceased to her
matrimonial
place
and
this
demand
persisted when he visited her matrimonial
home for first time and it continued till her
unfortunate death. The accused persons
who
demanded
Rs.10,000/-
cash,
motorcycle and radio (transistor ) and the
deceased was done away by accused
persons who consisted her parents-in-law
and husband of the deceased till her death.

18. The version of the informant was
corroborated
by
evidence
of
PW2
Shivkaran Singh the cousin of the deceased
and PW3 Rajesh the real brother of the
deceased. A wrong information regarding
death of the deceased was given at the
behest of father-in-law of the deceased at
Police Station on 06.06.2001 through DW1
Nathoo (Phoopha) uncle of the deceased,
that she died due to illness on 04.06.2001,
whereas in fact her death was proved to be
caused due to consumption of Alluminim
Phosphide, a poisonous substance. There is
no evidence on record that whether
deceased consumed poison herself or she
was administered poison. The postmortem
examination was conducted after filing of
death information report by DW1 Nathoo
on 06.06.2001 and in postmortem report
dated 07.06.2001 the body was found to be
decomposed, swollen and foul smell was
emanating therefrom. Skin was peeled off
at many place on the body. However, even
if death was suicidal, the other ingredients
of Section 304B IPC being fulfilled in the
case this would be treated as a case of
dowry death.

19. So far as exhibits are concerned,
PW1 the informant Nathoo son of Vishal
has proved his written report addressed to
Superintendent of Police, Banda as Exhibit
Ka1 on the basis of which Chick FIR was
lodged, registered by PW5 as Exhibit Ka3
and GD entries were made regarding
registration of case which is exhibited as
Ex.Ka4. PW4 Dr. G.K. Agarwal proved
postmortem report which is exhibited as
Ex.Ka2, PW6 Amrita Mishra, Deputy
Superintendent of Police proved site plan
of place of occurrence as Ex.Ka5 during
her evidence and invitation card of the
marriage of the deceased as Ex.Ka1. She
has stated that after initial investigation
conducted by her the investigation was
handed over to Circle Officer Ajay Pratap
Singh due to her transfer from the District.
Site plan was provided by her in her own
signature. The dead body was found in
dilapidated house of accused persons
adjacent to the residential house of accused.
She recorded statements of the informant
on 19.07.2001 under Section 161 of Cr.P.C
after lodging of the FIR. The Naib
Tehsildar who conducted inquest on dead
10 INDIAN LAW REPORTS ALLAHABAD SERIES
body of the deceased stated in his report
that in the opinion of panch witnesses
deceased died due illness and for eliciting
the real cause of death the postmortem
examination was required. On the basis of
evidence of PW7 inquest report was
exhibited as Ex. Ka6 and police papers
with regard to postmortem of deceased
were exhibited as Ex.Ka7 to 11 regarding
which she has stated that these papers were
prepared by her in writing and signature.
DW1 Nathoo son of Ramavtar (Phoopha)
uncle of the deceased who stated that
Nathoo resident of Jamu is his real brotherin-law who is father of the deceased
Kusuma, he mediated the marriage of
deceased Kusuma with Raj Kumar, no
dowry was settled in the marriage, he is not
aware that any demand of dowry was made
in the marriage. The deceased used to visit
her parental house after marriage. The
accused persons never told him regarding
any demand of dowry. Prior to death of the
deceased he was informed by her father-inlaw that she was ill and he visited and
found her to be sick and there were
difficulty in breathing. Ram Asarey had
told him that she is being treated by a
doctor in Kalinjar, he did not take Kusuma
for treatment. After three to four days he
was informed by husband of the deceased
that she died. He had visited the place of
father of the deceased to inform him
regarding her death and there upon her
father, mother, Chhatrapal and his boy
visited the place of occurrence. In crossexamination he stated that accused persons
are his relatives, he is having cordial
relationship with the accused persons. The
deceased was daughter of his elder brotherin-law Nathu, Ram Asarey is father-in-law
of his brother, he is son-in-law of Ram
Asarey by relation, this is not true to say
that he has taken side of accused persons.

20. From the evidence of DW1, it
appears
that
he
is
having
cordial
relationship with the accused persons,
despite the fact that deceased was daughter
of his brother-in-law, he is a common
relative of both sides. However, whatever is
deposed by him is based on feedback given
by accused side, therefore, learned court
below has rightly not given much weight to
the evidence of DW1.

21. Sections 304B of I.P.C. was added
by Act 43 of 1986 w.e.f. 19.11.1986,
whereas Section 498A was inserted by Act
46 of 1983 w.e.f 25.12.1983.

22. The Hon'ble Supreme Court in
Suresh Kumar Vs. State of Haryana
2014 Cr.LJ (551) held that Section 304B
I.P.C. does not categorize death as
homicidal or suicidal or accidental. This is
because death caused by burns can, in a
given case, be homicidal or suicidal or
accidental. Similarly, death caused by
bodily injury can, in a given case, be
homicidal or suicidal or accidental. Finally,
any death occurring "otherwise than under
normal circumstances" can, in a given case,
be homicidal or suicidal or accidental.
Therefore, if all the other ingredients of
Section 304B of the Indian Penal Code
are
fulfilled,
any
death
(whether
homicidal or suicidal or accidental) and
whether caused by burns or by bodily
injury or occurring otherwise than under
normal circumstances shall, as per the
legislative mandate, be called a "dowry
death" and the woman's husband or his
relative "shall be deemed to have caused
her death". The Section clearly specifies
what constitutes the offence of a "dowry
death" and also identifies the single
offender or multiple offenders who has or
have caused the dowry death.
12 All. Raj Kumar Vs. State of U.P.
11

23. The actual words used in Section
304B of the Indian Penal Code are of
importance. This section reads as under:

"304-B. 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 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."

24. Thus, from perusal of the above
statutory provision it is obvious that for
recording conviction under Section 304B
IPC death of the deceased in unnatural
circumstances must be established within
seven years of her marriage. In present case
this fact is proved by evidence and the
witnesses of facts as well as scientific
evidence
provided
in
the
Viscera
examination report submitted by FSL that
deceased died due to consumption of a
poisonous
substance
i.e.
Alluminium
Phosphide. Therefore, it is established by
evidence that the deceased died within
seven years of her marriage, therefore, this
fact is established that she died in unnatural
circumstances within seven years of her
marriage
with
the
appellant
at
her
matrimonial place and accused persons
have taken wrong stand in the statement
under Section 313 Cr.P.C that she died due
to illness. They even not informed the
police just after the death of the deceased at
their place and information was given after
two days of her death, resulting in
decomposition of dead body. The accused
persons failed to give any plausible
explanation of the death of the deceased at
the place as required under Section 106 of
Indian Evidence Act, which provides that
when any fact is specially within the
knowledge of any person, the burden of
proving that fact is upon him. The case is
based on circumstantial evidence, as there
is no eye-witness in the case, but accused
persons failed to indicate the real cause of
death of the deceased at the time of
inception of the case, and real cause of
death can only be ascertained after
submission of viscera report by Forensic
Science Laboratory and till then they were
taking false case, in regard to cause of the
death of the deceased. Even the accused
side has tried to establish the fact that
deceased died due to illness through
evidence of DW1 as well as in their own
statement
under
Section 313 Cr.P.C.
recorded by the court after conclusion of
prosecution evidence. The delay in lodging
of FIR is duly explained in FIR itself and
same is proved by evidence of PW1.

25. This fact is also proved by the
prosecution evidence that deceased was
subjected to matrimonial cruelty soon
before her death by her husband and
inlaws. Therefore, all the ingredients of
Section 304B and 498A IPC/Section 4 of
D.P. Act regarding demand of dowry
subjecting the deceased to matrimonial
cruelty by the appellant and his family
members and causing her dowry death are
proved by prosecution evidence beyond
reasonable doubt and I find no factual and
12 INDIAN LAW REPORTS ALLAHABAD SERIES
legal error in impugned judgment with
regard to conviction recorded against the
appellant in impugned judgment.

26. Section 113B of Evidence Act is
also applicable in the case, which provides
that 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, as defined in
Section 304B IPC.

27. The Hon'be Supreme Court in
Suresh Kumar Vs. State of Haryana
(supra) held that Section 113B of the
Evidence Act introduces a reverse onus,
which is to say that though it is ordinarily
for the prosecution to prove its case beyond
a reasonable doubt, but when a reverse
onus is introduced, it is for the accused to
refute the case of the prosecution and prove
his innocence.

28. The Hon'ble Supreme Court in
Naresh Kumar Vs. State of Haryana
2015(1) SCC797 (SC) held that on proof of
the essential ingredients mentioned in
Section 113B, if the statutory presumption
raised against the accused which shifts the
burden on the accused, the accused must
give cogent explanation. Failure to give an
explanation or giving a false explanation
can be taken as an additional circumstance
against the accused.

29. In the present case, the case of
prosecution is fortified with the aid of
statutory presumption provided in Section
113B of Indian Evidence Act and on
account of giving false explanation of
cause of death of the deceased, the
presumption will be raised against the
accused
appellant
regarding
causing
unnatural death of the deceased. Therefore,
I find no factual or legal error in the
impugned judgment passed by learned
court below on recording conviction of the
appellant for charge under Sections 304B
and 498A IPC and Section 4 of Dowry
Prohibition Act, 1961. However, while
parting with the case, it would be pertinent
to mention that learned Additional Session
Judge has wrongly awarded sentence of
fine
(Rs.1,000)
alongwith
7
years
imprisonment for charge under Section
304B IPC, as Section 304B IPC provides
for
only
substantive
sentence
with
imprisonment for a term which shall not be
less than 7 years, but which may extend to
imprisonment for life. There is no provision
of awarding fine under Section 304B IPC,
similarly the learned trial judge has failed
to award the fine alongwith substantive
sentence for charge under Section 498A
IPC, as the section provides that husband or
relative of husband of a woman subjecting
her to cruelty shall be punish with
imprisonment for a term which may extend
to three years and shall also be liable to
fine. However, in the present case no fine
has been awarded for charge under Section
498A IPC, which is non compliance of
statutory provision. In similar fashion
composite
sentence
of
6
months
imprisonment has been awarded for charge
under Section 3/4 of D.P. Act, whereas both
the charges are separate and separate
sentences are liable to be forwarded to both
the charges. The learned trial court has
given a finding in impugned judgment that
accused Raj Kumar and Ram Asarey are
found guilty of charge of demand of dowry
which is punishable under Section 4 of D.P.
Act. There is no finding regarding charge
under Section 3 of D.P. Act against
appellants, nevertheless they are convicted
12 All. Lalla Vs. State of U.P.
13
and sentenced for charge under Section 3/4
of D.P. Act instead of being convicted
under Section 4 of D.P. Act only, which is
found to be proved by trial judge.
Therefore, fine Rs.1,000/- awarded in
impugned judgment for charge under
Section 304B IPC is quashed, and if same
is already deposited/paid, it will be
refunded to the accused on his application
in this regard.

30. Section 4 of D.P. Act provides that
for charge under Section 4, the person who
demands any dowry shall be punishable with
imprisonment for a term which shall not be
less than six months, but which may extend
to two years and with fine which may extend
to Rs.10,000/- provided that the court may,
for adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than six months. Whereas, in the present case
no fine has been awarded by the learned trial
judge in contravention of statutory mandate,
even if it is presumed that conviction was
only recorded for charge under Section 4 of
D.P. Act. For charge under Section 3 of D.P.
Act, the imprisonment for a term not less than
five years and fine which shall not be less
than Rs.15,000/- or the amount of the value
of such dowry, which ever is more, is
provided with proviso that the court may, for
adequate and special reasons to be recorded
in the judgment, impose a sentence of
imprisonment for term of less than five years.

31. Therefore the conviction for
charge
under
Section
3
of
Dowry
Prohibition Act is set-aside and conviction
and sentence for charge under Section 4 of
Dowry Prohibition Act is maintained.

32. As there is no State Appeal
regarding enhancement of sentence in
relation to impugned judgment or any
revision preferred by the informant for
enhancement of sentence, any addition in
sentence awarded in impugned order is not
desirable in Criminal Appeal filed against
conviction and sentence.

33. The appeal stands partly allowed
with above observation. However as
appellant/accused has already undergone
sentence awarded in impugned judgment
and order, he need not surrender.

34. Let lower court record be send
back immediately for necessary action
alongwith certified copy of this judgment.
----------
(2023) 12 ILRA 13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 233 of 2000

Lalla ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
V.S. Verma, Ram Kumar, Rehan Ahmad
Siddiqui

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Against
conviction and sentence - On 14.01.1997,
accused
allegedly
enticed
away
complainant
daughter
without
her
consent, along with silver ornaments and
₹2,200/- Despite search, she remained
untraced
-
Two
persons
witnessed
incident - A written report was given on
16.01.1997, on basis of which F.I.R