# Rakesh & Ors v. State of U.P

- **Citation:** (2022) 12 ILRA 197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-02
- **Case number:** Criminal Appeal No. 5332 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-ors-v-state-of-u-p-48000
- **Pages:** 8

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,1860-
Sections

302/34,
498A, 304B IPC - 3/4 D.P. Act, -Challenge
to-Conviction-In the absence of proving
any
fact
regarding
the
demand
of
additional dowry, motive is not proved-It
is also not proved that at the time of
occurrence appellant was inside the house
as he has taken plea that he had gone to
his duty at 9:00 am-In medical evidence
also the time of death is not established.-
The
chain
of
circumstances
is
not
complete
against
the
appellant-
the
prosecution has examined three witnesses
of fact PW1 , PW2 and PW3, All these
witnesses have turned hostile, They have
not supported the prosecution version
rather have deposed in the testimony that
the deceased was not subjected to cruelty
in connection with additional dowry.
Learned trial court has opined that the
ingredients of offence of dowry death are
not proved in this case because no witness
of fact has supported the prosecution case
rather he considered alternative charge of
Section
302
IPC
on
the
basis
of
circumstantial evidence and the provision
of Section 106 of Indian Evidence Act-the
prosecution could not elicit any evidence
which could prove the motive. Hence, the
motive fails. As far as the circumstantial
evidence is concerned, there is no doubt
that conviction can be based on the basis
of circumstantial evidence but it should be
tested on the touchstone of the law
relating to circumstantial evidence. Hence,
the burden could not be shifted on the
appellant u/s 106 of Indian Evidence Act.
Hence, learned trial court has committed a
grave error in convicting and sentencing
the appellant u/s 302 of IPC on the basis
of circumstantial evidence because there
was no circumstantial evidence existed
against the appellant-prosecution has not
198 INDIAN LAW REPORTS ALLAHABAD SERIES
established its case beyond reasonable
doubt against the appellant and he is
entitled to be given benefit of doubt.(Para
1 to 30)
B. In a case based on circumstantial
evidence, the settled law is that the
circumstances from which the conclusion
of guilt is drawn should be fully proved
and
such
circumstances
must
be
conclusive in nature. Moreover, all the
circumstances should be complete and
there should be no gap left in the chain of
evidence.
Further,
the
proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence. In the present case the courts
below have overlooked these settled
principles and allowed suspicion to take
the place of proof besides relying upon
some inadmissible evidence."(Par 26)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

12 All. Rakesh & Ors. Vs. State of U.P.
197
with law and the evidence available on
record. Thus, this Court is of the view that
the prosecution has not been able to
establish the guilt of the accused appellant
under Section 302 IPC beyond reasonable
doubt and to the satisfaction of the judicial
conscience of the Court. Therefore, the
Court is inclined to grant benefit of doubt
to the accused appellant on the ground of
rule of caution.

46. Hence, the impugned judgment
and order of conviction and sentence,
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.

47. The impugned judgement and
order dated 28.7.2016 is set aside. The
accused appellant is found not guilty for
the offence punishable under Section 302
IPC. He is acquitted from the charge.
Accused appellant is in jail. He should be
released forthwith, if not wanted in any
other case.

48. Let a copy of this judgment along
with trial court record be sent to the Court
 concerned, Budaun for compliance.
----------
(2022) 12 ILRA 197
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2022

BEFORE

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

Criminal Appeal No. 5332 of 2011

Rakesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent
Counsel for the Appellants:
Sri B.N. Rai, Sri Adarsh Kumar, Sri Ganesh
Mani Tripathi

Counsel for the Respondent:
Govt. Advocate.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,1860-
Sections

302/34,
498A, 304B IPC - 3/4 D.P. Act, -Challenge
to-Conviction-In the absence of proving
any
fact
regarding
the
demand
of
additional dowry, motive is not proved-It
is also not proved that at the time of
occurrence appellant was inside the house
as he has taken plea that he had gone to
his duty at 9:00 am-In medical evidence
also the time of death is not established.-
The
chain
of
circumstances
is
not
complete
against
the
appellant-
the
prosecution has examined three witnesses
of fact PW1 , PW2 and PW3, All these
witnesses have turned hostile, They have
not supported the prosecution version
rather have deposed in the testimony that
the deceased was not subjected to cruelty
in connection with additional dowry.
Learned trial court has opined that the
ingredients of offence of dowry death are
not proved in this case because no witness
of fact has supported the prosecution case
rather he considered alternative charge of
Section
302
IPC
on
the
basis
of
circumstantial evidence and the provision
of Section 106 of Indian Evidence Act-the
prosecution could not elicit any evidence
which could prove the motive. Hence, the
motive fails. As far as the circumstantial
evidence is concerned, there is no doubt
that conviction can be based on the basis
of circumstantial evidence but it should be
tested on the touchstone of the law
relating to circumstantial evidence. Hence,
the burden could not be shifted on the
appellant u/s 106 of Indian Evidence Act.
Hence, learned trial court has committed a
grave error in convicting and sentencing
the appellant u/s 302 of IPC on the basis
of circumstantial evidence because there
was no circumstantial evidence existed
against the appellant-prosecution has not
198 INDIAN LAW REPORTS ALLAHABAD SERIES
established its case beyond reasonable
doubt against the appellant and he is
entitled to be given benefit of doubt.(Para
1 to 30)
B. In a case based on circumstantial
evidence, the settled law is that the
circumstances from which the conclusion
of guilt is drawn should be fully proved
and
such
circumstances
must
be
conclusive in nature. Moreover, all the
circumstances should be complete and
there should be no gap left in the chain of
evidence.
Further,
the
proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence. In the present case the courts
below have overlooked these settled
principles and allowed suspicion to take
the place of proof besides relying upon
some inadmissible evidence."(Par 26)

The appeal is allowed. (E-6)

List of Cases cited:

1. Satye Singh Vs St. of U.K .(2022) 0 Supreme
(SC) 143

2. Tomaso Bruno & anr. Vs St. of U.P. (2015) 1
Crimes (SC) 105

3. Harjinder Singh @ Bhola Vs St. of Punj.
(2004) 5 Supreme 578

4. Ramasankar Kushwaha Vs St. of U.P. (2021) 0
Supreme (All) 935

5. Siddappa Vs St. of Karn. (2022) LawSuit (Kar)
2541

6. Gambhir Vs St. of Mah. (1982) 2 SCC 351

7. Padala Veera Reddy Vs St. of A.P. & ors.
(1989) Supp. 2 SCC 706,

8. Hukam Singh Vs St. of Raj. (1977) 2 SCC 99

9. Eradu Vs St. of Hyderabad (1956) AIR SC 316

10. Earabhadrappa Vs St. of Karn. (1983) 2 SCC 330

11. St. of U.P. Vs Sukhbasi(1985) Supp. SCC 79

12. Balwinder Singh Vs St. of Punj. (1987) 1
SCC 16

13. Ashok Kumar Chatterjee Vs St. of M.P
(1989) Supp. 1 SCC 560)

14. Shivu & anr.. Vs Regt.Gen. HC of Karn. &
anr.. (2007) 4 SCC 713
15. Chenga Reddy & ors. Vs St. of A.P. (1996)
10 SCC 193 para 21

16. Siddappa Vs St. of Karn.(2022) LawSuit
(Kar) 2541
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgement and order dated
08.08.2011 passed by Additional Sessions
Judge, Court No.16 in Session Trial No.403
of 2009 (State Vs. Rakesh and others),
arising out of Case Crime No.04 of 2009,
under Section 498A, 304B IPC and 3/4
D.P. Act, Police Station- Colonelganj,
District- Kanpur Nagar, whereby the
appellants were convicted and sentenced
under
Section
302/34
IPC
for
life
imprisonment
along
with
fine
of
Rs.10,000/-.

2. The brief facts of the case as culled
out
from
the
record
are
that
first
information report was lodged by informant
Ram
Chandra
at
Police
Station-
Colonelganj, District- Kanpur Nagar on
10.01.2009 with the averments that the
marriage of his daughter was solemnized
with Rakesh on 15.05.2006, in which
informant had given dowry as per his
financial condition. The husband, his
mother Chhidana and father Shivram along
with his three sisters were not satisfied with
the dowry. After some days of the marriage,
they used to torture his daughter for want
12 All. Rakesh & Ors. Vs. State of U.P.
199
of motorcycle and gold chain as additional
dowry. His daughter had complained
several times to the informant but he could
not meet out the aforesaid demand. On
10.01.2009 at about 9:00 am husband and
in-laws of his daughter killed her. He got
the information at 01:30 pm on telephone
and reached to the matrimonial home of his
daughter.

3. On the basis of aforesaid report, a
Case Crime No.04 of 2009 was registered
at police station.

4. Investigation was taken up by
I.O., who visited the spot and recovered
Dupatta from the spot, the dead body of
the deceased was sent for post mortem
after completing the inquest proceedings.
Inquest report was prepared. The post
mortem of the dead body was conducted
by concerned doctor and post mortem
report
was
prepared.
I.O.
recorded
statements u/s 161 Cr.P.C. Site plan was
also
prepared. After
completion
of
investigation,
a
charge
sheet
was
submitted by the I.O. against accused
Rakesh, Shivram and Smt. Chhidana u/s
498A,
304B
IPC
and
3/4
Dowry
Prohibition Act. Magistrate took the
cognizance and committed it to the Court
of Sessions because the case was triable
exclusively by Court of Sessions.

5. Learned trial court framed
charges against all the accused persons
u/s 498A, 304B IPC, alternatively u/s 302
r/w Section 34 IPC and u/s 3/4 Dowry
Prohibition Act. Accused persons denied
the charges and claimed to be tried.

6. The prosecution so as to bring home
the charges, framed against the accused,
examined the following witnesses:

1. Ram Chandra
PW1
2.
Siya Ram
PW2
3.
Smt. Shiv Kali
PW3
4.
Shailendra Tiwari
PW4
5.
Shiv Ratan
PW5
6.
Siya Ram Maurya
PW6
7.
Rajesh Kumar
PW7
8.
R.C. Vidyarthi
PW8

7. Following documentary evidence
was filed by prosecution, which was proved
by leading evidence:

1.
FIR
Ex.ka8
2.
Written Report
Ex.ka1
3.
Recovery memo of Dupatta
Ex.ka13
4.
Recovery memo of Wedding card &
Vyabhar Copy
Ex.ka11
5.
P.M. Report
Ex.ka2
6.
Panchayatnama
Ex.ka3
7.
Chalan Lash
Ex.ka4
8.
Charge sheet (Mool)
Ex.ka12
9.
Site plan with index
Ex.ka10

8. After completion of prosecution
evidence, the statements of accused u/s 313
of Cr.P.C. were recorded, in which they stated
that false evidence has led against them and
the deceased had committed suicide for not
having the child. No defense witness is
examined by the accused persons.

9. The learned trial court after hearing
both the parties, convicted the accused
persons Rakesh, Shiv Ram and Chhidana
for the offence u/s 302 r/w Section 34 IPC
and sentenced them for life with fine of
Rs.10,000/- each.

10. It is pertinent to mention that
when we have heard this appeal, the
200 INDIAN LAW REPORTS ALLAHABAD SERIES
accused appellants Shivram and Smt.
Chhidana had passed away. So now, we are
concerned with the appeal of appellant
Rakesh only, who is the husband of the
deceased.

11. Heard Shri Ganesh Mani Tripathi,
learned counsel for the appellant and Shri
N.K. Srivastava, learned AGA appearing on
behalf of the State.

12. Learned counsel for the appellants
has submitted that this is no evidence case.
No prosecution witness has supported the
case of prosecution. It is submitted that
prosecution has examined three witnesses
of fact, namely, PW1 Ram Chandra, PW2
Siya Ram and PW3 Shiv Kali. All the three
witnesses have turned hostile and nobody
has supported the prosecution version.
Even then, the trial court convicted and
sentenced
the
appellant
along
with
deceased appellants. It is further submitted
that learned trial court has opined that
demand of additional dowry is not proved,
hence no presumption can be raised u/s
113B of Indian Evidence Act. Learned trial
court was of the view that the case of
dowry death is not proved and after holding
that finding, learned trial court went further
and took the recourse of provision of
Section 106 of Indian Evidence Act and
convicted the appellant on the basis of
circumstantial evidence. At the time of
alleged occurrence, the appellant Rakesh
was not in the house. He had gone to his
duty at 9:00 am on the date of occurrence.
There was nobody inside the house when
the suicide was committed by the deceased.

13. Learned counsel for the appellant
further submitted that prosecution had
established the case of dowry death and
dowry death is not proved as found by the
learned trial Judge. Hence, no motive for
committing the alleged murder remains on
the record. Smt. Madhuri Devi, who had
seen the deceased first time and Jitendra
Kumar who had given information to the
police station, were not examined during
trial. Time of death is not mentioned in
inquest report, which was prepared on
10.01.2009.

14. Learned counsel for the appellant
submitted that in the morning at 9:00 am on
the said date of occurrence, the appellant
had gone on his duty and this plea of alibi
was not confronted by the prosecution
witnesses, namely, PW1, PW2 and PW3.
Hence, the burden could not be shifted on
the appellant u/s 106 of Indian Evidence
Act. Hence, learned trial court has
committed a grave error in convicting and
sentencing the appellant u/s 302 of IPC on
the
basis
of
circumstantial
evidence
because
there
was
no
circumstantial
evidence existed against the appellant.

15. Learned counsel for the appellant
relied on Satye Singh Vs. State of
Uttrakhand 2022 0 Supreme (SC) 143,
Tomaso Bruno and another Vs. State of
U.P. 2015 1 Crimes (SC) 105, Harjinder
Singh @ Bhola Vs. State of Punjab 2004
(5)
Supreme
578,
Ramasankar
Kushwaha Vs. State of U.P. 2021 0
Supreme (All) 935 and Siddappa Vs.
State of Karnataka 2022 LawSuit (Kar)
2541.

16. Learned AGA opposed the
submissions made by learned counsel for
the appellants and submitted that although
the witnesses of fact have turned hostile in
this case and not supported the prosecution
case, there was ample evidence against the
appellant on the basis of which, he was
convicted. It is contended that the death of
the deceased had taken place in his
12 All. Rakesh & Ors. Vs. State of U.P.
201
matrimonial home where she used to reside
with her husband in-laws. Hence, the
burden was on appellant to prove how the
death was taken place and according to
opinion of doctor, conducting the post
mortem, the cause of death was asphyxia
due to throttling. Hence, trial court has not
committed any mistake and appeal is liable
to be dismissed.

17. Prosecution has established this
case as a case of dowry death. According to
the prosecution story, the marriage of
daughter of informant was solemnized with
appellant Rakesh and she was tortured for
demand of additional dowry. It is also the
prosecution case that she was done to death
by the appellant Rakesh along with his
parents, who have passed away now.

18. To prove its case, the prosecution
has examined three witnesses of fact,
namely, PW1 Ram Chandra, PW2 Siya
Ram and PW3 Smt. Shiv Kali. All these
witnesses have turned hostile. They have
not supported the prosecution version
rather have deposed in the testimony that
the deceased was not subjected to cruelty in
connection with additional dowry. Learned
trial court has opined that the ingredients of
offence of dowry death are not proved in
this case because no witness of fact has
supported the prosecution case. He went
further and considered the case under
alternative charge of Section 302 IPC on
the basis of circumstantial evidence and the
provision of Section 106 of Indian
Evidence Act.

19.
 To
prove
the
case
under
circumstantial evidence, the motive assumes
a great importance. The motive of offence is
set up by the prosecution as demand of dowry
but all the three witnesses PW1 to PW3 have
denied this factum in their respective
testimony. They have not supported the
prosecution version and turned hostile and
even
in
the
cross-examination,
the
prosecution could not elicit any evidence
which could prove the motive. Hence, the
motive fails. Learned trial court has opined in
impugned judgement that when the death of
the deceased had taken place, the entire house
was not locked from inside and if the
deceased would have committed the suicide
when she was alone then in that case she
should have bolted the room inside because
no person wants any sort of interception
when he is going to commit suicide. We are
of the opinion that this is not the thumb rule.
The mindset of the person, going to commit
the suicide differs from person to person. If
the room was not bolted from inside, it
cannot be considered the incriminating
circumstances against the appellant. Another
circumstance, mentioned by the learned trial
court, is that PW3 has admitted that when she
reached to the matrimonial home of her
daughter, accused were not there. This
conduct of accused is also not indicative that
they had committed the crime because
residents of the house may flee out of fear
also.

20. Learned trial court has given finding
in the impugned judgement that appellant and
deceased were residing in the same house,
hence, the burden to prove the innocence was
on the appellant in the light of Section 106
Indian Evidence Act. Learned trial court goes
forward and applied the theory of last seen
evidence in this case by stating that the
appellant Rakesh had gone to his duty at 9:00
am and the dead body of the deceased was
first seen hanging at 10:30 am. This duration
was too short, hence, it was also the factor,
pointing to the guilt of the appellant.

21. In our opinion, learned trial court
has misread the provisions of Section 106
202 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Evidence Act. For invoking the
provision of Section 106 Indian Evidence
Act, it cannot be said that the appellant and
deceased were residing in the same house
but first of all the prosecution will have to
prove the fact that at the time of
commission of offence, the appellant was
inside the house. Prosecution cannot escape
from its liability to discharge its burden
first.

22. Section 106 of Indian Evidence
Act read as under:

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.

23. The Karnataka High Court in
Siddappa Vs. State of Karnataka 2022
LawSuit (Kar) 2541 this issue was
discussed. It is held in the aforesaid case as
under:

"42. In the case of Gajanan
Dashrath
Kharate
Vs.
State
of
Maharashtra (supra), the murder of the
father of the appellant was committed
secretly inside the house. Pertaining to the
facts of that case, in para.13 of the said
judgment, the Hon'ble Apex Court was
pleased to observe as below:

"13. As seen from the evidence,
appellant Gajanan and his father Dashrath
and mother were living together. On 7-42002, mother of the appellant-accused had
gone to another Village Dahigaon. The
prosecution has proved presence of the
appellant at his home on the night of 7-42002. Therefore, the appellant is dutybound to explain as to how the death of his
father was caused. When an offence like
murder is committed in secrecy inside a
house, the initial burden to establish the
case would undoubtedly be upon the
prosecution. In view of Section 106 of the
Evidence Act, there will be a corresponding
burden on the inmates of the house to give
cogent explanation as to how the crime was
committed. The inmates of the house cannot
get away by simply keeping quiet and
offering no explanation on the supposed
premise that the burden to establish its case
lies entirely upon the prosecution and there
is no duty at all on the accused to offer. On
the date of the occurrence, when the
accused and his father Dashrath were in
the house and when the father of the
accused was found dead, it was for the
accused to offer an explanation as to how
his father sustained injuries. When the
accused could not offer any explanation as
to the homicidal death of his father, it is a
strong circumstance against the accused
that he is responsible for the commission of
the crime."

 (emphasis supplied)

43. Thus, the initial burden of
proving that, as on the date of the alleged
incident, the accused was present in the
house or was lastly seen with the deceased
or that he was lastly in the company of the
deceased at the time of the incident would
be primarily upon the prosecution.

Thus, it is observed in the above
paragraph by the Hon'ble Apex Court that
the initial burden to establish the case
would
undoubtedly
be
upon
the
prosecution. It is only when the prosecution
discharges the said burden that the accused
12 All. Rakesh & Ors. Vs. State of U.P.
203
was found in the company of the deceased,
the burden of proving the facts which are
exclusively within the knowledge of the
accused would fall upon him.

24. Since the prosecution could not
discharge its burden by proving the fact
that at the time of alleged occurrence, the
appellant was inside the house. Moreover,
in this case three accused persons are
convicted, namely, Rakesh, Shivram and
Smt. Chhidana, if they all were inside the
house then also the question arises as to
who had committed the crime. Co-accused
Shivram and Chhidana have passed away
now and as discussed above it is not
sufficient for prosecution to prove the fact
that the deceased and appellant were
residing together in the same house. No
benefit can be given to prosecution if it
fails to prove the fact that at the time of
alleged occurrence, the appellant was
inside the house. Hence, Section 106 Indian
Evidence Act has no applicability in this
case.

25. As far as the circumstantial
evidence is concerned, there is no doubt
that conviction can be based on the basis of
circumstantial evidence but it should be
tested on the touchstone of the law relating
to circumstantial evidence.

26. The Hon'ble Apex Court in This
Court in C. Chenga Reddy & Ors. vs.
State of A.P., (1996) 10 SCC 193, para
(21) held as under :-

"21.
In
a
case
based
on
circumstantial evidence, the settled law is
that the circumstances from which the
conclusion of guilt is drawn should be fully
proved and such circumstances must be
conclusive in nature. Moreover, all the
circumstances should be complete and
there should be no gap left in the chain of
[pic]evidence.
Further,
the
proved
circumstances must be consistent only with
the hypothesis of the guilt of the accused
and totally inconsistent with his innocence.
In the present case the courts below have
overlooked these settled principles and
allowed suspicion to take the place of proof
besides relying upon some inadmissible
evidence."

27. After referring to a catena of cases
based on circumstantial evidence in Shivu
and Anr. vs. Registrar General, High
Court of Karnataka & Anr., (2007) 4
SCC 713, this Court held as under:-

"12. It has been consistently laid
down by this Court that where a case rests
squarely on circumstantial evidence, the
inference of guilt can be justified only when
all
the
incriminating
facts
and
circumstances are found to be incompatible
with the innocence of the accused or the
guilt of any other person. {See Hukam
Singh v. State of Rajasthan, (1977) 2 SCC
99; Eradu v. State of Hyderabad(AIR
1956 SC 316), Earabhadrappa v. State of
Karnataka (1983) 2 SCC 330, State of U.P.
v.
Sukhbasi(1985
(Supp.)
SCC
79),
Balwinder Singh v. State of Punjab(1987)
1 SCC 16 and Ashok Kumar Chatterjee
[pic]v. State of M.P (1989 Supp. (1) SCC
560) The circumstances from which an
inference as to the guilt of the accused is
drawn
have
to
be
proved
beyond
reasonable doubt and have to be shown to
be closely connected with the principal fact
sought
to
be
inferred
from
those
circumstances. In Bhagat Ram v. State of
Punjab, AIR 1954 SC 621, it was laid down
that where the case depends upon the
conclusion drawn from circumstances, the
cumulative effect of the circumstances must
be such as to negative the innocence of the
204 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and bring home the offences
beyond any reasonable doubt."

28. In Padala Veera Reddy v. State
of A.P. and Ors., 1989 Supp. (2) SCC
706, it was laid down that in a case of
circumstantial evidence such evidence must
satisfy the following test:-

"(1)
the
circumstances
from
which an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

(2) those circumstances should be
of a definite tendency unerringly pointing
towards guilt of the accused;

(3)
the
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else; and (4) the
circumstantial evidence in order to sustain
conviction must be complete and incapable
of explanation of any other hypothesis than
that of the guilt of the accused and such
evidence should not only be consistent with
the guilt of the accused but should be
inconsistent with his innocence. (See
Gambhir v. State of Maharashtra (1982) 2
SCC 351)."

29. In this case, in the absence of
proving any fact regarding the demand of
additional dowry, motive is not proved. It is
also not proved that at the time of
occurrence appellant Rakesh was inside the
house as he has taken plea that he had gone
to his duty at 9:00 am. In medical evidence
also the time of death is not established.
The chain of circumstances is not complete
against the appellant. We are of the
considered view that prosecution has not
established its case beyond reasonable
doubt against the appellant Rakesh and he
is entitled to be given benefit of doubt and
appeal is liable to be allowed.

30. Appellant-Rakesh is given benefit
of doubt and appeal is allowed accordingly.

31. Conviction and sentence of
appellant Rakesh u/s 302 r/w Section 34
IPC is hereby set aside and he is acquitted
of all the aforesaid charges framed against
him. He be set free forthwith if not wanted
in any other case.

32. Record and proceedings be sent
back to the court below.
---------
(2022) 12 ILRA 204
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 5571 of 2015

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

Counsel for the Appellant:
Sri Krishna Nand Yadav, Sri Dinesh Kumar
Pandey, Sri Manu Sharma

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 302. 307 &
342-Challenge to -Conviction-neither the
prosecution nor the defence give narration
of any altercation or fight between
husband and wife either on the date of the
incident or on any date immediately
before the incident. The marriage of the
appellant with the informant (PW-1) was