# Rajendra v. State of U.P - **Citation:** (2016) 4 ILRA 708 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-17 - **Bench:** Om Prakash-Vii - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-v-state-of-u-p-43677 - **Pages:** 7 ## Headnote Criminal Appeal- Indian Penal Code, 1860 - Ss. 304-B, 498-A - Dowry Prohibition Act, 1961 - S. 3/4 - Dowry death - Essential ingredients - Death otherwise than under normal circumstances within seven years of marriage - Demand of dowry and cruelty "soon before death" - Proof. Conviction cannot be sustained where demand of dowry and cruelty soon before death are not proved beyond reasonable doubt - Mere presence of poison in viscera does not establish dowry death - Where charge under S. 3/4 Dowry Prohibition Act not framed, conviction thereunder illegal - Acquittal of co-accused on same evidence relevant - Benefit of doubt to accused warranted 1.Death of the deceased was by consumption of poisonous substance and was otherwise than under normal circumstances and within seven years of marriage; however, mere proof of unnatural death does not by itself establish the offence under Section 304-B IPC. (paras 19-20). 2.The learned trial court did not rely upon the alleged oral dying declaration or the letters said to have been written by the deceased, and conviction was based mainly on alleged demand of Rupees One Lakh after marriage.(para 19). 3.Evidence revealed that when the deceased first and even subsequently came to her parental house, no complaint regarding demand of dowry was made, and reliance was placed only on statements of parents regarding demand at her matrimonial home. (para 19). 4.Charge under Section 3/4 of the Dowry Prohibition Act was not framed, yet conviction was recorded thereunder, which resulted in denial of opportunity of defence and rendered the conviction unsustainable in law. (para 20). ## Text 708 INDIAN LAW REPORTS ALLAHABAD SERIES 45. In AIR 2011 SC 2877, Krishna Kumar Malik vs State of Haryana, it has been laid down that if the prosecutrix is said to have been abducted and rape was committed on her, if she has also wavering several persons in the incident, if the conduct of the prosecutrix in not raising alarm while travelling is unnatural, if her evidence is shaky and untrustworthy and not corroborated by medical evidence, the accused should not be convicted. 46. Thus, complete testimony of the prosecutrix being unworthy of credence and unreliable and bundle of lies could not have form the basis for conviction of the accused on the basis of illegal, inadmissible evidence and also without framing of charges against some of the accused. 47. Thus, what has been stated and discussed above, I conclude that the prosecution case is bundle of false allegations and improbable facts, due to which the learned trial court mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. 48. Hence, the impugned judgement and order of conviction and sentence dated 30.07.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Court No. 1, Mirzapur in Sessions Trial No. 372 of 2002 (State vs Doctor alias Vinod Kumar and others) arising out of Case Crime No. 135 of 2002, under sections 376(2)(g), 366, 368, 394, 342 IPC, police station Vindhyachal, district Mirzapur, is hereby setaside. 49. Accordingly, the appeal is allowed. 50. The appellants Doctor alias Vinod Kumar, Collector alias Basant Lal, Inspector alias Pramod Kumar, Titil alias Jhallar and Amrit Lal are in jail. The appellants Ram Savari Devi and Heerawati Devi are on bail. They shall be released forthwith unless wanted in any other case. The appellants are directed to comply with the provision of Section 437-A Cr.P.C. forthwith. 51. Let a copy of this order be sent to the Trial court concerned. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 17.03.2016 BEFORE THE HON'BLE OM PRAKASH-VII, J. Criminal Appeal No.- 5117 Of 2005 Rajendra ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: 4 All. Rajendra Vs State Of U.P. 709 Pramod Bhardwaj,Amit Daga,J.S.Sengar,R.K. Pandey,R.S.Pandey,Rajesh Kesharwani,S.K. Dubey,S.K.Gupta,S.S.Rajput,U.C.Mishra Counsel for the Respondent: Govt. Advocate,Amrish Sahai,Pankaj Agrawal Criminal Appeal- Indian Penal Code, 1860 - Ss. 304-B, 498-A - Dowry Prohibition Act, 1961 - S. 3/4 - Dowry death - Essential ingredients - Death otherwise than under normal circumstances within seven years of marriage - Demand of dowry and cruelty "soon before death" - Proof. Conviction cannot be sustained where demand of dowry and cruelty soon before death are not proved beyond reasonable doubt - Mere presence of poison in viscera does not establish dowry death - Where charge under S. 3/4 Dowry Prohibition Act not framed, conviction thereunder illegal - Acquittal of co-accused on same evidence relevant - Benefit of doubt to accused warranted 1.Death of the deceased was by consumption of poisonous substance and was otherwise than under normal circumstances and within seven years of marriage; however, mere proof of unnatural death does not by itself establish the offence under Section 304-B IPC. (paras 19-20). 2.The learned trial court did not rely upon the alleged oral dying declaration or the letters said to have been written by the deceased, and conviction was based mainly on alleged demand of Rupees One Lakh after marriage.(para 19). 3.Evidence revealed that when the deceased first and even subsequently came to her parental house, no complaint regarding demand of dowry was made, and reliance was placed only on statements of parents regarding demand at her matrimonial home. (para 19). 4.Charge under Section 3/4 of the Dowry Prohibition Act was not framed, yet conviction was recorded thereunder, which resulted in denial of opportunity of defence and rendered the conviction unsustainable in law. (para 20). 5. In absence of a legally framed charge relating to dowry demand, the offence under Section 498-A IPC also could not be taken as proved on the facts of the case. (para 20). 6. It was a consistent version that the appellant himself took the deceased to the hospital, and the prosecution failed to prove that the death was a consequence of dowry-related cruelty. (paras 19-20). HELD (Paras 22-23): In view of the above discussions, I am of the opinion that the prosecution has failed to establish the guilt of the accused appellant under Sections 304-B IPC and 498-A IPC and 3⁄4 Dowry Prohibition Act beyond reasonable doubt and to the satisfaction of the judicial conscience of the court. So, the impugned judgement and order of conviction and sentence dated 7.10.2005, which has been sought to be assailed, call for and deserves, interference. The criminal appeal is liable to be allowed and the same is accordingly allowed. The judgement and order of conviction and sentence dated 7.10.2005 passed by the trial court is hereby set aside. The accused appellant, namely, Rajendra is found not guilty for the offence punishable under Sections 304-B IPC and 498-A IPC and 3⁄4 Dowry Prohibition Act. He is acquitted of all the charges framed against him Case Law discussed: No specific Supreme Court or High Court precedents are expressly cited or discussed in the judgment. 710 INDIAN LAW REPORTS ALLAHABAD SERIES (Delivered by Hon'ble Om Prakash -VII , J.) 1. This criminal appeal has been preferred by the accused / appellant against the judgement and order dated 7.10.2005 passed by the Additional District & Sessions Judge, Court No.1, Aligarh in Session Trial No. 479 of 2001 (State of U.P. vs. Saroj Devi and others) convicting and sentencing the appellant Rajendra for the offence punishable under Section 304-B IPC for ten years rigorous imprisonment and a fine of Rs. 3,000/-, for the offence punishable under Section 498-A IPC for two years rigorous imprisonment and a fine of Rs. 1,000/- and for the offence punishable under Section 3/4 of the Dowry Prohibition Act for one year rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine, appellant was also directed to undergo additional simple imprisonment of three months. All the sentences have been directed to run concurrently. 2. The facts of the case, in nutshell, as unfolded by the informant Tikam Singh son of Mewa Ram in the First Information Report (in short 'F.I.R.'), are that in March, 2000, the informant had married his daughter Uma with Rajendra Singh son of Om Prakash, resident of Village Ghari Ki Sarai, Police Station Sasni Gate, Aligarh giving sufficient dowry as per his capacity and Rs. 2,50,000/- cash but the in-laws of his daughter were not happy with the same and were demanding additional dowry in the form of Rs. 1,00,000/- cash. The daughter of the informant told time to time to her mother and Mausa Sher Singh about the said demand. The informant and his relatives tried to pacify the matter, but husband of the deceased, father in law, mother in law and devar were not agree. On 7.8.2000, in the evening, Rajendra, husband of the deceased, Om Prakash, father in law, Saroj mother in law and devar Prem Singh unanimously gave poison to the daughter of the informant and on being serious, they got admitted her in the Medical Hospital. In the night at about 10.00 p.m. it was informed that her sister consumed poison and when they reached Medical, her sister told that she was forcibly given poison and was beaten. Thereafter, she became much serious. She had omitting with smell of poison and at last at 11.00 p.m. she died. 3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-5) was registered at Police Station concerned mentioning all the details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time. 4. Investigation of the matter was entrusted to Man Singh Chauhan, Circle Officer City(1st), Aligarh. The Investigating Officer started investigation. He inspected the place of occurrence and prepared site plan (Ext. ka-4). Inquest of the dead-body was done by R.K. Shukla, S.D.M. Kol and report (Ext. ka-7) was prepared. Other police papers i.e. photo lash, letters to Chief Medical Officer and R.I. and challan lash were also prepared. 5. Autopsy report (Ext. ka-15) was prepared after conducting the post mortem on 8.8.2000 at 5.00 p.m. 6. As per the post mortem report, the deceased was average body built. Rigor mortis was present all over the body. On internal examination, membrance and brain were found congested. 50 grms pasty material were found in stomach. 4 All. Rajendra Vs State Of U.P. 711 7. In the opinion of the doctor, cause of death could not be ascertained and viscera was preserved. 8. After completing the investigation, charge-sheet (Ext. ka12) against the accused appellant was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session court, was committed to the Court of sessions. 9. Accused/appellant appeared and charge under Sections 498-A, 304-B, IPC was framed. All the accused have denied the charges framed against them and claimed their trial. 10 Trial proceeded, and on behalf of prosecution, eight witnesses were examined, wherein PW-1, Tikam Singh, PW-2 Rakesh Kumar, PW-3 Investigating Officer Man Singh Chauhan, C.O. City, Aligarh, PW-4 Constable Ram Khilari, PW-5 R.K. Shukla, S.D.M., PW-6 C.B.C.I.D. Inspector K.D. Chaudhary, PW7 Dr. Arjun Singh, PW-8 Dr. M.R. Bharadwaj and C.D.1 Sher Singh and C.D.2 Hans Kumari. 11. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded. 12. Accused appellant in his statement under Section 313 Cr.P.C. admitted the marriage of deceased Uma with him but denied the entire allegations levelled by the prosecution and stated that he has been falsely implicated. It was further stated that the deceased was suffering from Hepatitis Anemia and due to this reason she consumed poison. 13. In support of their case, the defence has produced DW-1 Dr. G.C. Sharma, DW-2 Janak Singh and DW-3 Panna Lal. 14. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt and convicted and sentenced the accused appellant, hence this appeal. All other co-accused were acquitted and there is no appeal against acquittal. 15. I have heard Shri S.S. Rajput, learned counsel for the appellant and Shri Brij Raj Verma, learned AGA for the State at length, and perused the entire record carefully. 16. Castigating the impugned judgement and order, learned counsel for the appellant has submitted that the appellant has served-out entire sentence imposed upon him as he was not enlarged on bail during pendency of the appeal but it was submitted that the appellant was illegally convicted and sentenced by the trial court. Deceased consumed poisonous substance herself as she was suffering from jaundice. She was admitted for treatment by the appellant before the incident. Prosecution could not establish the fact of demand of dowry against the appellant beyond reasonable doubt. There were general allegations against the appellant but the trial court illegally convicted and sentenced the appellant for the offence under Sections 304-B, 498-A IPC while other 712 INDIAN LAW REPORTS ALLAHABAD SERIES accused facing trial were acquitted on the basis of same set of evidence. It was further submitted that the trial court has not considered that charge under Section 3⁄4 Dowry Prohibition Act was not framed against the appellant but he was convicted in the said Section also, which is illegal. 17. Per contra, the learned AGA appearing for the State has submitted that the essential ingredients to constitute offence under Section 304-B,498-A IPC and 3⁄4 Dowry Prohibition Act were fully established by the prosecution beyond reasonable doubt. Deceased died in her in-laws house within seven years of her marriage. Death of the deceased was not natural but otherwise than under normal circumstances. There was specific report of viscera that cause of death of the deceased was due to consuming poisonous substance. Witnesses examined on behalf of the prosecution have also proved that accused appellant had demanded Rs. 1,00,000/- after the marriage and had subjected the deceased to cruelty, torture and harassment for or in connection with the said demand of additional dowry soon before her death. Appellant could not establish that death of the deceased was natural one. The findings of the trial court are based on the evidence available on record. There is no illegality, infirmity or perversity in the said findings warranting interference by this Court. 18. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. 19. In the present matter, offence is said to have been committed on 7.8.2000. Deceased died in the same night in the hospital. Viscera was preserved in which some poisonous substance was found which was the cause of death of the deceased. It has also come in the evidence that the deceased was admitted in the hospital by the appellant. Prem Singh, Om Prakash, Smt. Saroj, who were also facing trial have been acquitted by the trial Court. The trial court has not placed reliance on the oral dying declaration said to have been made by the deceased to the witnesses. Letters said to have been written by the deceased to her parents were also not relied upon by the trial court. Conviction of the accused appellant has been made by the trial court on the basis that the deceased was subjected to cruelty and harassment for or in connection of the demand of Rupees One Lakh after the marriage by the accused appellant, which was not fulfilled by the parents of the deceased. It has also come in the evidence that when the deceased returned at her parental house first time, she did not make any complaint about the said demand. Similarly, when she came again at her parental house, she again did not make any complaint from the witnesses about the said demand but the trial court placed reliance on the statement of mother and father of the deceased that accused appellant had demanded Rupees One Lakh when the deceased was at her in-laws house. It was also observed by the trial court that panchayat was held to pacify the matter. 20. Certainly in the present matter, cause of death of the deceased is consumption of poisonous substance meaning thereby death of the deceased was unnatural otherwise 4 All. Rajendra Vs State Of U.P. 713 than under the normal circumstances in the house of the appellant. Death took place within seven years of marriage. The defence regarding illness of the deceased and remaining perturbed was not found believable by the trial court. If the facts and circumstances of the case and the evidence available on record be compared with the findings recorded by the trial court in the impugned judgment and order, it is evident that the trial court has not framed charge against the appellant for the offence under Section 3⁄4 Dowry Prohibition Act but the appellant has been convicted and sentenced for the said offences. It is surprising that if the charge was not framed for the offence under Section 3⁄4 Dowry Prohibition Act and the appellant was not afforded opportunity to defend himself, how the appellant was convicted and sentenced for the said offences. Hence, in the opinion of the Court, the conviction and sentence of the appellant for the offence under Section 3⁄4 Dowry Prohibition Act is not sustainable in the matter. It is worth mentioning here that if there was no demand of dowry and charge in this respect was not framed by the trial court, the offence under Section 498-A IPC can also be not taken as proved in the present matter. Thus, there is substance in the submissions made by the learned counsel for the appellant and the same is liable to be accepted. The trial court has not only committed error of law but also error of fact. Apart from this, it is consistent version of the appellant that he tried to save the deceased and he himself taken the deceased to the hospital. If the viscera report is taken into consideration, only this much fact has been established that the deceased had consumed some poisonous substance and due to that reason she died. It does not mean that the poisonous substance was consumed by the deceased due to cruelty and harassment caused by the appellant soon before her death. 21. Hence, taking into account the entire facts and circumstances of the case and reappreciating the evidence available on record, I am of the view that the prosecution has not been able to establish the guilt of the accused appellant Rajendra. Hence, the Court is inclined to give benefit of doubt to the accused appellant Rajendra, keeping in mind the rule of caution. 22. In view of the above discussions, I am of the opinion that the prosecution has failed to establish the guilt of the accused appellant under Sections 304-B IPC and 498-A IPC and 3⁄4 Dowry Prohibition Act beyond reasonable doubt and to the satisfaction of the judicial conscience of the court. So, the impugned judgement and order of conviction and sentence dated 7.10.2005, which has been sought to be assailed, call for and deserves, interference. The criminal appeal is liable to be allowed and the same is accordingly allowed. 23. The judgement and order of conviction and sentence dated 7.10.2005 passed by the trial court is hereby set aside. The accused appellant, namely, Rajendra is found not guilty for the offence punishable under Sections 304-B IPC and 498-A IPC and 3⁄4 Dowry Prohibition Act. He is acquitted of all the charges framed against him. 714 INDIAN LAW REPORTS ALLAHABAD SERIES 24. Let a copy of this judgement along with lower court record be sent to the Sessions Judge, Aligarh. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 29.03.2016 BEFORE THE HON'BLE MRS. RANJANA PANDYA, J. Criminal Appeal No.- 5539 Of 2015 Aaraf ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: Vidit Narayan Mishra Counsel for the Respondent: Govt.Advocate Criminal Appeal - Conviction not challenged on merits - Appeal confined to quantum of sentence - Attempt to murder and attempt to rape - Sentencing principles - Reduction of sentence to period already undergone - Fine maintained. Sections 307, 376/511 IPC - Appellant convicted by trial court - In appeal, conviction not pressed on merits - Submission confined to reduction of sentence - Accused already undergone substantial part of sentence - Consideration of proportionality and societal interest - Sentence under Section 376/511 IPC reduced to period already undergone - Conviction affirmed - Appeal partly allowed.(Paras 19-21, 30-33) 1. That when the appellant does not press the appeal on merits of conviction and confines his arguments only to the question of sentence, such conduct amounts to acceptance of guilt, and the Court is required to consider only the appropriateness of sentence. (Paras 19-21) 2. That while awarding sentence, the Court must balance the nature and gravity of offence, societal interest, rights of victim and proportionality of punishment, and undue sympathy resulting in inadequate sentence is impermissible. (Paras 21-28) 3. That in the facts of the present case, where the accused had already undergone about three years and nine months of incarceration, the ends of justice would be met by reducing the sentence under Section 376/511 IPC to the period already undergone. (Paras 20, 29-30) HELD (Paras 30-31): In the facts and circumstances of the case, I think the end of justice would be met if the sentence of four years of the accused under sections 376/511 IPC is reduced to the period already