# Ram Nath Yadav v. Sudhir Kumar Yadav & Ors

- **Citation:** (2023) 10 ILRA 622
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-18
- **Case number:** J. Criminal Revision No. 827 of 1995
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-nath-yadav-v-sudhir-kumar-yadav-ors-49492
- **Pages:** 16

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Revision
against
acquittal - Indian Penal Code, 1860 -
Sections 498A, 304B/302/34 - The Dowry
prohibition Act, 1961 - Section 3⁄4 - Indian
Evidence Act, 1872 - Section 113B -
10 All. Ram Nath Yadav Vs. Sudhir Kumar Yadav & Ors.
623
Presumption as to dowry death, Section
32(1) - Cases in which statement of
relevant fact by person who is dead or
cannot be found, etc., is relevant - When it
relates to cause of death - maltreating -
'dying declaration' - mere admission in
hospital does not exonerate the accused
from the guilt - it is immaterial if the
witness could not answer as to which
accused has played which role during the
course of commission of crime - FIR is not
an encyclopedia, it is not a substantive
piece of evidence - only to contradict or
corroborate the evidence of the maker -
dying declaration would prevail upon the
first information report and over all the
evidence available on the record. (Para -
31,34)

Case of dowry death within four months of
marriage - FIR against accused persons -
demanding dowry, torture, and setting ablaze
deceased - pouring kerosene on her body - PM
Doctor found kerosene in deceased's body -
deceased was burned to death - trial court
found no independent witness - admission of
deceased by her husband - heavily hammered
by trial court trial judge gave unnecessary
importance to minor contradictions - laid undue
and too much importance to defence evidence -
even
in
presence
of
victim's
dying
declaration.(Para - 10,27,34,37)

HELD:- Alleged dying declaration was recorded
in accordance with law and in full consciousness
of the victim who died later on, hence her
statement is admissible under Section 32(1) of
the Evidence Act. Judicial pronouncements
support the prosecution's version, stating that
the bride died unnaturally within four months of
marriage due to not bringing the demanded
dowry and suffering physical and mental cruelty.
Accused persons' explanations are unconvincing.
Judgment suggests that trial court's acquittal
was based on unknown reasons, which must be
quashed for the ends of justice.(Para - 52,55)

Criminal Revision allowed. (E-7)

LIST OF CASES CITED:-

## Text

_Characters 0–39,934 of 53,469. This is a partial read: ask again with offset=39934 for what follows._

622 INDIAN LAW REPORTS ALLAHABAD SERIES
secured asset held by it in the hands of a
debtor, whose loan had become a nonperforming asset under the SARFAESI Act.
It was a suit by a third party, who had
nothing to do with proceedings taken under
the SARFAESI Act. Besides, as remarked by
their Lordships in Leelamma Mathew, the
suit was one for damages for shortage in the
area sold by the Bank. Obviously, the bar
under Section 34 in that case is not even
remotely attracted. For the said reason, no
assistance can be derived from the said
decision by the plaintiff-opposite parties.

37. The authority of the Supreme Court
in VCK Shares & Stock Broking Services
Limited (supra), on which reliance is lastly
placed by the plaintiff-opposite parties to
support their plea that the Civil Court's
jurisdiction is not ousted, is a decision
rendered in a very different context, again
under a different statute. It is a decision under
the RDBFI Act, where the question is about
the right of a defendant in a claim by the Bank
before the DRT to pursue its counter-claim,
either before the DRT or by suit before the
Civil Court. It is in that context that the
jurisdiction of the Civil Court, vis-a-vis the
Debts Recovery Tribunal under the the RDBFI
Act, has been held not excluded and the
remedy of a counter-claim provided through
an amendment to the the RDBFI Act, a course
of election for the defendant. In the considered
opinion of this Court, the decision of their
Lordships in VCK Shares & Stock Broking
Services Limited relied upon by the plaintiffopposite parties, has no bearing on the point
involved here.

38. In the entire conspectus of facts, this
Court is of opinion that the plaint in this case is
clearly an instance of abuse of process of
Court, designed to avoid the bar under Section
34 of the SARFAESI Act. The plaint is clearly
barred on a wholesome understanding of the
plaintiff-opposite parties' case, including that
deliberately suppressed, under Section 34 of
the SARFAESI Act. In the opinion of this
Court, therefore, this revision ought to
succeed.

39. In the result, this revision succeeds
and is allowed with costs. The impugned order
dated 22.08.2022 passed by the learned Civil
Judge (Sr. Div.), Aligarh in O.S. No.985 of
2021 is hereby set aside and reversed. The
application under Order VII Rule 11 of the
Code is allowed and the plaint rejected.

40. Let the lower court records be sent
down at once to the Trial Judge through the
learned District Judge, Aligarh. Let a copy
of this judgment be certified to the Trial
Judge.
----------
(2023) 10 ILRA 622
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.10.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Revision No. 827 of 1995

Ram Nath Yadav ...Applicant
Versus
Sudhir Kumar Yadav & Ors. ...Respondents

Counsel for the Applicant:
Sri R.K. Shangloo

Counsel for the Respondents:
Govt. Advocate, Sri Manoj Upadhyay, Sri Uma
Dutt Shukla

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Revision
against
acquittal - Indian Penal Code, 1860 -
Sections 498A, 304B/302/34 - The Dowry
prohibition Act, 1961 - Section 3⁄4 - Indian
Evidence Act, 1872 - Section 113B -
10 All. Ram Nath Yadav Vs. Sudhir Kumar Yadav & Ors.
623
Presumption as to dowry death, Section
32(1) - Cases in which statement of
relevant fact by person who is dead or
cannot be found, etc., is relevant - When it
relates to cause of death - maltreating -
'dying declaration' - mere admission in
hospital does not exonerate the accused
from the guilt - it is immaterial if the
witness could not answer as to which
accused has played which role during the
course of commission of crime - FIR is not
an encyclopedia, it is not a substantive
piece of evidence - only to contradict or
corroborate the evidence of the maker -
dying declaration would prevail upon the
first information report and over all the
evidence available on the record. (Para -
31,34)

Case of dowry death within four months of
marriage - FIR against accused persons -
demanding dowry, torture, and setting ablaze
deceased - pouring kerosene on her body - PM
Doctor found kerosene in deceased's body -
deceased was burned to death - trial court
found no independent witness - admission of
deceased by her husband - heavily hammered
by trial court trial judge gave unnecessary
importance to minor contradictions - laid undue
and too much importance to defence evidence -
even
in
presence
of
victim's
dying
declaration.(Para - 10,27,34,37)

HELD:- Alleged dying declaration was recorded
in accordance with law and in full consciousness
of the victim who died later on, hence her
statement is admissible under Section 32(1) of
the Evidence Act. Judicial pronouncements
support the prosecution's version, stating that
the bride died unnaturally within four months of
marriage due to not bringing the demanded
dowry and suffering physical and mental cruelty.
Accused persons' explanations are unconvincing.
Judgment suggests that trial court's acquittal
was based on unknown reasons, which must be
quashed for the ends of justice.(Para - 52,55)

Criminal Revision allowed. (E-7)

LIST OF CASES CITED:-

1. Pawan Kumar Vs St. of Har, (1998) CrLJ 1144
SC

2. St. of Punj. Vs Iqbal Singh & ors., AIR 1991
SC 1532

3. Sher Singh Vs St. of Har., 2015 (1) Scale 250

4. Bheem Singh Vs St. of Uttarakhand, 2015
CrLJ 1428 (SC)

5. PV Radhakrishnan Vs St. of Karn., AIR 2003
SC 2859

6. Kalawati Vs St. of Maha., AIR 2009 SC 1932

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. None appeared from the side of the
revisionists and alive accused Sudhir and
Smt. Aruna, even in revised call. Hence,
heard learned AGA for the State and
perused the record. This criminal revision
is decided on merit.

2. This revision has been preferred
against the judgment and order of acquittal
dated 31.03.1995 recorded by ASJ-X,
Kanpur Nagar, in ST No.547 of 1989 (State
vs. Sudhir Kumar Yadav and others) under
Section 498A, 304B/302/34 IPC, and
Section 3⁄4 of the Dowry Prohibition Act,
Police Station Naubasta, District Kanpur
Nagar

3. The grounds of revision are that the
opposite parties, Sudhir Kumar Yadav,
husband of the deceased Smt. Gomti @
Garima; Sunil Kumar Yadav, her jeth; Smt.
Aruna Yadav, jethani and Smt. Prema Devi,
mother-in-law (saas) were all responsible
for maltreating the deceased. Sunil Kumar
and Smt. Aruna are alleged to have caught
the deceased. Prema Devi poured the
kerosene on the deceased and Sudhir
Kumar (husband) applied a matchstick due
624 INDIAN LAW REPORTS ALLAHABAD SERIES
to which her entire body got burnt and she
died the same day in Ursala Hospital at
10:00 pm on 25.08.1989.

4. From the side of prosecution, PW1, informant Ram Nath, brother of the
deceased, PW-2, Raj Kumar, friend of the
informant who had visited the victim's
sasural a day before the incident and had
heard her complaint about beating etc; PW3, Dr. A. Rahman, who performed the
postmortem,
PW-4
HC
Sant
Kumar
Chaturvedi; PW-5 Shyam Lal Yadav -
Special Land acquisition officer, who
recorded the dying declaration of the
deceased on 25.08.1989 at 11:40 a.m. PW6, Ram Lakhan Yadav, ADM, Kanpur
Nagar; PW-7, Dr. S.C Mishra, who had
examined her injuries before her death and
PW-8, Jogendra Singh, IO have been
examined.

5. The marriage was solemnized on
12.05.1989 and Smt. Gomti was done to
death on 25.08.1989 within 04 months of
her marriage at her sasural by pouring
kerosene on her as the dowry demands of
the opposite parties could not be satisfied.

6. The prosecution had also relied
upon the dying declaration of the deceased,
in which she had clearly stated and
assigned specific role to each of the
accused persons should not have been
brushed aside just because the informant
made a little mistake in saying something
different relying upon his own memory.
Even this dying declaration was enough for
conviction of the opposite parties which
had been ignored for no valid reasons.

7. In defence, different suggestions
have been put to the witnesses as
committing suicide and also as accidental
burning of the deceased by a stove in the
kitchen. The defence case of committing
suicide
was
very
absurd
and
most
improbable, as it was suggested that she
was involved in love affair with his own
elder sister's son, Vinod, hence she
committed suicide. The same is wholly
false and mischievous suggestion, as Vinod
was a married man having three children
also. This suggestion was straightaway
denied by the applicant, PW-1. Contrary to
that later a suggestion was given to PW-2
Raj Kumar about her accidental burning by
the stove in the kitchen.

8.

There
could
not
be
any
documentary evidence e.g. letter etc., by
Smt. Gomti to her brother or her parents as
they lived in the same city Kanpur at a
distance of 8 km. The deceased was in her
sasural in Mohalla Baba Nagar while her
brother informant was living in Mohalla
Fazalganj and only three months had
passed after the marriage.

9. The medical evidence also
supported the prosecution version that she
was burnt by pouring the kerosene on her
body, as her clothes had a clear smell of
kerosene, which could not be possible if
she had caught fire by a stove.

10. The trial judge has given
unnecessary
importance
to
minor
contradictions and laid undue and too much
importance to the defence evidence even in
the
presence
of
the
victim's
dying
declaration.

11. There is a glaring defect in the
appraisal of evidence based on misreading
of evidence which is also leading to a
flagrant miscarriage of justice in this case.
There are compelling reasons to interfere in
the order of acquittal which is against the
law and the facts. Therefore, the revision be
10 All. Ram Nath Yadav Vs. Sudhir Kumar Yadav & Ors.
625
allowed, the order of acquitting the accused
opposite parties be set aside and an order
be passed against them to deal with in
accordance with the law.

12. Initially notices were issued to the
opposite parties but none appeared. It was
also reported that counsel for the revisionist
Sri RK Shangloo has died, hence notice
was issued to the revisionist and opposite
party nos.1 to 4 to engage another counsel.
CMM, Kanpur Nagar vide his report dated
19.12.2022 reported that the revisionist
Ram Nath Yadav had left Kanpur, though
his family members were living in house
no.139/07, Vijay Nagar, Masjid Wali Gali,
Police Station Kakadev Kanpur Nagar and
after obtaining the mobile number of his
son Ankit, a copy of notice was provided to
him with a direction to appear in the
Hon'ble Court though none has put in an
appearance on behalf of the revisionist.

13. A notice was also issued to the
opposite parties wherein it came out that
opposite party no.2 Sunil Kumar Yadav
(jeth) had died on 27.04.1996 and oppostie
party no.4 Smt. Prema Devi, mother-in-law
had died on 10.12.2001. Though opposite
party no.1, Sudhir Kumar Yadav, husband
of the deceased and Smt. Aruna Yadav wife
of late Sunil Kumar were found alive and
living together in house no.229 Baba
Nagar, Naubasta, Kanpur Nagar which is
the place of occurrence. From the side of
opposite party no.1, Sudhir Kumar and
opposite party no.3, Smt. Aruna Yadav, a
vakalatnama of Sri Manoj Upadhyay and
Sri Umadatt Shukla, learned counsel has
been filed on 19.12.2022 but none appeared
even in revised call for opposing this
revision. Since a criminal revision has to be
decided on merit and sufficient opportunity
has already been provided to both the
parties therefore, after hearing the argument
of learned AGA, this revision is being
decided on merit.

14. In brief, facts of the case are that
the informant PW-1, Ram Nath Yadav,
elder brother of the deceased Gomti Devi
moved a written complaint Ex.Ka-1 on
25.08.1989 that his sister Gomti Devi
daughter of Sri Rangi Lal Yadav had been
married with Sudhir son of Hukum Singh
resident of house no.229 Baba Nagar
Naubasta Kanpur according to Hindu rites
and rituals on 12.05.1989. The in-laws of
his sister started demand of dowry and
torturing her daily for it. On 24.08.1989, he
visited the in-laws house of his sister with
his friend Raj Kumar where she informed
that the accused persons used to beat her
and ask for bringing dowry otherwise they
would kill her. She also insisted to come
back with him but he consoled her and
returned after explaining and making her
understand.

15. On 25.08.1989 at 07:45 pm her
mother-in-law, Sudhir and Sunil with the
help of his wife set his sister ablaze due to
which her whole body has been burnt and
she is struggling for life in the emergency
ward of Ursala Hospital. As he received the
information, he reached there where his
sister Gomti informed that his sister-in-law
(jethani), her husband, jeth, and mother-inlaw had poured kerosene from her shoulder
to her feet and Sudhir (husband) set ablaze
with a matchstick. He requested to take
legal action against the accused persons.

16. On the basis of the aforesaid
written complaint, an FIR was lodged
under Sections 498A/307 IPC and 3⁄4 DP
Act at Crime No.679 of 1989 at about
10.30 p.m. and a chik FIR Ex.Ka-4
alongwith a carbon copy GD Ex.Ka-6 were
prepared. A carbon copy of GD Ex.Ka-7
626 INDIAN LAW REPORTS ALLAHABAD SERIES
and Ex.Ka-8 was also prepared. The IO
was deputed to investigate the case.

17. The matter was conveyed to the
police and administration by the hospital,
therefore, Shyam Lal Yadav, Executive
Magistrate was deputed to record the
'dying declaration' of the victim in which
she stated that at about 08 am in the
morning her mother-in-law, jethani, jeth
and her husband had set ablaze her. All the
accused persons caught her and poured
kerosene upon her. Her husband had poured
kerosene upon her and her mother-in-law
and sister-in-law (jethani) had put her on
fire by applying a matchstick. The accused
persons used to demand colour TV. When
she visited her maika on the occasion of
Rakshabandhan, she informed her brother
and
sister-in-law
(bhabhi)
about
the
demand, who had provided Rs.10,000/-.
His brother had spent Rs.80,000/- in her
marriage therefore her brother had become
penniless. Her husband and neighbours had
brought her to the hospital.

18. During the course of treatment,
the deceased died of burn injuries. Hence,
an inquest report Ex.Ka-14 was prepared.
The autopsy was done and a PM report
Ex.Ka-3 was prepared, related papers such
as Ex.Ka-11 Form-13, Ex.Ka-12, specimen
seal
of
the
dead
body,
Ex.Ka-13,
photonash, Ex.Ka-15, letter for conducting
postmortem; Ex.Ka-16, letter to RI were
also prepared and a medico legal report
Ex.Ka-17 was prepared and collected by
the
IO.
During the course
of the
investigation site plan Ex.Ka-18 was
prepared by the IO, half burnt worn apparel
of the deceased and bed sheets were taken
into possession and recovery memos
Ex.Ka-2 and Ex.Ka-19 were prepared.
After finding sufficient evidence, the IO
has submitted the charge-sheet Ex.Ka-20
against all the accused persons under
Sections 498A, 304B IPC and Section 3⁄4 of
the Dowry Prohibition Act.

19. After submission of the chargesheet the case was committed to the Court
of Sessions and the charge under the
aforesaid sections was framed from which
the accused persons denied and sought trial.

20. The prosecution has examined
following witnesses:-

21. The accused persons denied the
demand for dowry and torturing the
deceased for non-fulfilment of the demand.
According to the accused persons Gomti
Devi had burnt from the stove. On her
commotion, they saved her and admitted
her to the hospital. Smt. Aruna Devi stated
that Ram Nath, Raj Kumar and Nirmal
Singh were the person of bad character, all
these three used to tease her and use
obscene language. Two months before the
incident, in the evening at 6-7 o'clock they
all three came and started molesting her.
Knowing this the deceased had also
scolded her brother and his friends and had
also forbidden them not to come again. The
complaint was also made by her to her
1
PW-1
Ram Nath Yadav, informant and brother of
the deceased
2
PW-2
Raj Kumar, friend of the informant
3
PW-3
Dr. A. Rahman, Pm doctor
4
PW-4
HC Sant Kumar Chaturvedi
5
PW-5
Shyam Lal Singh Yadav Special Land
Acquisition officer who had recorded the
dying declaration
6
PW-6
Ram Lakhan Gupta, ADM Kanpur Nagar
who had prepared the inquest report
7
PW-7
Dr. SC Mishra who had treated the
deceased after the incident
8
PW-8
Yogendra Singh, Deputy SP, CO Govind
Nagar, IO
10 All. Ram Nath Yadav Vs. Sudhir Kumar Yadav & Ors.
627
father-in-law but she had not complained to
her husband or her mother-in-law. Prema
Devi, her mother-in-law stated that the next
day
was
Janmastami,
Garima
was
preparing tea. All persons were taking tea
thereafter, Sudhir went to the washroom.
She could not know what happened in the
kitchen. When they went to the kitchen, the
oil had come out of the stove and they saw
that Garima was burning there. She was
standing on the floor and the stove was
on the slab in the kitchen. When she
cried, Sudhir and Sunil reached there and
put a mattress on her. According to Sunil,
he was suffering from tuberculosis and
has falsely been implicated. Accused
Sudhir Kumar stated that he has falsely
been implicated as he admitted the
deceased at Ursala Hospital and had also
sent information to her family.

22. In defence, the accused persons
have examined the following witnesses:-

(i)
DW-1,
Dr.
RK
Mathur,
Pulmonary expert who has deposed that
accused Sunil had a lung infection, his
lungs was filled with pus. His health
condition is not good. He has lost 40% of
his weight.

(ii) DW-2, Hukum Singh Yadav,
father-in-law of the deceased deposed
that after marriage, the deceased used to
live separately in the house. He was very
affectionate
towards
Gomti
and
considered like his own daughter. Sudhir
and his wife Gomti had a cordial
relationship and Sudhir used to take
Gomti for outings and to watch movies.
There was love between Mrs. Aruna
(jethani) and the deceased Gomti. Sunil
also respected Gomti and did not torture
her for dowry. Just before the incident,
Mrs. Aruna Devi told her that in the night
Gomti's brother Ram Nath, Nirmal Singh
and Raj Kumar came to her house and
molested her. On that day, at about 6-7
p.m, all three came to his house and
molested her on which he got angry and
went to Ram Nath's dispensary and
scolded all three who were present there.
Neither before nor after the marriage any
demand for dowry was made nor had
made any complaint about not getting
dowry. On the day of occurrence at about
09:00 a.m, his son Sunil had informed
him that when Gomti was preparing
breakfast, she got burnt by the stove. He
then went to the house of Ram Nath by
the scooter of Ram Pal and where he
went to Ursala Hospital where she was
unconscious and was not able to speak.
Ram Nath and his wife had come there at
10.30 a.m. On coming out of the ward
when they started abusing them, they
came back.

(iii) DW-3, Sudhir Kumar Yadav,
husband of the deceased had given a
similar statement to that of his father,
Hukum Singh Yadav and denied the
demand for a golden ring, colour TV and
fridge. He also denied that any complaint
regarding dowry had been made to
Gomti. He denied that on 24.08.1989,
Ram Nath and Raj Kumar had come to
his house. He further deposed that on
25.08.1989 at 7:30 a.m when he was in
the bathroom, he heard the crying of
Aruna Devi that Gomti was burning. He
then and there came out and saw that his
elder brother was trying to extinguish the
fire by putting thick mattress on her. He
also assisted him and extinguished the fire.
Aruna
Devi
had
also
assisted
in
extinguishing the fire. When he reached
near the kitchen, his mother, bhabhi and
Gomti were moaning. By wrapping herself
in the same mattress, the deceased was
taken to the hospital. Gomti had worn
purple-coloured nylon saree. She stated that
628 INDIAN LAW REPORTS ALLAHABAD SERIES
the stove exploded and the fire engulfed
her. His father had reached the hospital at
10:00 a.m. with Harpal Singh. Dr. Ram
Nath had reached the hospital with his wife
at 10.30 am. None of his neighbours were
with him.
(iv) DW-4, Harpal Singh has deposed that
on 25.08.1989 at about 9 a.m., Hukum
Singh came to him and stated that Gomti
had been burnt on the stove and that she
had been taken to Ursala Hospital. He
reached the house of Ram Nath at 09.30
a.m from his scooter and informed him
about the incident thereafter, he had
reached Ursala Hospital at 10 am, where all
the accused persons were present and
Gomti was unconscious. Dr. Ram Nath
reached there with his wife at 10:00 a.m.

23. After the closure of the evidence,
the arguments of both the parties were
heard and the impugned
 judgment and order of acquittal were
passed by the trial judge against which this
criminal revision has been preferred by the
informant.

24. It deems appropriate to reproduce
the evidence of the prosecution in brief.

(i) PW-1, Ram Nath, the informant
and brother of the deceased has deposed in
favour of the prosecution and has proved
the FIR version. This witness has proved
that just after the marriage the accused
persons started demanding a golden ring,
colour TV and fridge from the deceased
and on non-fulfilment of such demands,
they used to torture the deceased. After
the marriage, the deceased visited her
house twice and had informed about the
demands of dowry and torture done by
the accused persons. He had also visited
her in-laws house twice, where the
accused persons also demanded dowry
from him, which he explained. Whenever
the deceased used to come to his house,
she
used
to
narrate
about
the
maltreatment by the accused persons for
want of dowry. He had lastly visited her
house on 24.08.1989 where Gomti stated
crying that accused Sudhir had beaten her
2-3 times for bringing the aforesaid
articles and had also stated that if the
same were not provided, she would be
killed. Thereafter, she insisted on taking
her therefrom otherwise, they would kill
her. He pacified her and the accused
persons and came back. The next day on
25.08.1989 at about 01:00 a.m, he got
information that accused persons had set
ablaze Gomti @ Garima and she was
admitted
to
Ursala
Hospital.
Subsequently, he informed his family
members and reached there and found
that Gomti was severely burnt. She
narrated that Sunil, Aruna, Prema and
Sudhir had set her ablaze. She also
narrated that the accused Sudhir Kumar
had poured kerosene on her and Aruna
Devi and Prema Devi had set her ablaze
by applying a matchstick. All the accused
persons had caught hold of her. She also
stated that when he returned, all the
accused persons demanded dowry and
thereafter beaten and set ablaze at about
7.45 a.m. He reported the matter to PS
Naubasta at 08:30 p.m. He had reached
the hospital at 02:00 p.m. and remained
busy with her treatment. The witness
further deposed that on his dictation
Nirmal Singh had written the complaint,
Ex.Ka-1. When he returned from the
police station, he found that Gomti Devi
had died. Her death was reported by him
to PS Naubasta. The witness has also
deposed that from the clothes of the
deceased, the smell of kerosene was
coming out. The witness has also proved
the recovery memo Ex.Ka-2; peticoat,
10 All. Ram Nath Yadav Vs. Sudhir Kumar Yadav & Ors.
629
M.Ex.1;
saree
M.Ex.2
and
bedsheet
M.Ex.3.

(ii) PW-2 Raj Kumar has deposed that
M.Exs-1, 2 and 3 were produced by Ram
Nath Yadav in police station about which
recovery
memo
Ex.Ka-2
had
been
prepared. This witness has also deposed
that whenever Gomti Devi used to come to
her house, sometimes she used to meet her
and also used to inform her regarding
torture, non-providing meals and several
kinds of maltreatment and pressure for
bringing dowry by the accused persons.
This witness has also deposed that on
24.08.1989 he went to the in-laws house of
Gomti Devi, where she stated regarding
beating by the accused persons. She had
also insisted in weeping state to take her
from there otherwise her in-laws would kill
her. Ram Nath explained and came back.
On 26.08.1989 he came to know that the
in-laws of Gomti Devi had set ablaze her.
Whenever he visited the in-laws house of
Gomti Devi, he apprehended that accused
persons would kill Gomti Devi.

(iii) PW-3, Dr. A. Rahman, who had
conducted the postmortem, deposed that at
08:30 p.m, he had conducted the postmortem of the deceased and found that she
was about 20 years old there were burn
injuries on the whole of her body except
the head. This witness proved PM report
Ex.Ka-3 and opined that the deceased had
died of burn injuries.

(iv)
PW-4,
Head
Constable
SK
Chaturvedi has proved chik FIR Ex.Ka-4,
GD Ex.Ka-5, Ex.Ka-6, Ex.Ka-7 and Ex.Ka8.

(v) PW-5, Shyam Lal Singh Yadav,
Land Acquisition Officer, has deposed that
on
25.08.1989
after
receiving
the
information, he reached Ursala Hospital
and recorded the statement of the deceased
Smt. Gomti @ Garima Devi, who stated
that all the accused persons had caught hold
of her and poured kerosene on her. Her
husband had poured kerosene and her
mother-in-law and jethani had set her
ablaze by applying a matchstick. They used
to demand colour TV. When she visited the
house, she had asked his brother and
bhabhi. They had also given Rs.10,000/-.
His brother had also spent Rs.80,000/- in
her marriage due to which he became poor.
Her husband and neighbours have carried
her to the hospital.

(vi) PW-6, Ramlakhan Gupta ADM
Kanpur Nagar, deposed that he had
conducted the inquest of the deceased on
26.08.1989 at 10 am. This witness has
proved challanlash Ex.Ka-11, specimen
seal Ex.Ka-12, photolash Ex.Ka-13, inquest
report Ex.Ka-14 and letters Ex.Ka-15 and
Ex.ka-16. The witness also deposed that he
had sent the dead body for a postmortem.
According to this witness and panch
witnesses, the deceased had died of burn
injuries.

(vii)
PW-7,
Dr.
S.C.
Mishra,
emergency doctor of Ursala Hospital has
deposed that Sudhir Yadav had brought his
wife Garima to Ursala Hospital on
25.08.1989 at 09:00 a.m. He had taken the
thumb mark of Sudhir Yadav on the
concerned register. There was a 100% burn
injury to Garima Yadav. Kerosene smell
was coming out of her body. The hairs on
the head had been scorched. He had
informed the police and the Magistrate. He
had examined her. The witness has proved
the medical report, Ex.Ka-7. The witness
has also proved the thumb impression of
Garima as Ex.Ka-17A and the thumb
impression of Sudhir Yadav as Ex.Ka-17.
According to this witness, the burn injuries
would have occurred to Garima on
25.08.1989 between 06-08 a.m. The
witness further deposed that the Magistrate
had recorded the dying declaration of the
deceased before her death and he had given
630 INDIAN LAW REPORTS ALLAHABAD SERIES
her the certificate Ex.Ka-9 regarding her
mental fitness. The injured person was
conscious and was also speaking.

(viii) PW-8, Yogendra Singh Deputy,
SP CO Govind Nagar IO of the case has
deposed that after getting the information
of death, the case was converted into
Section 302 IPC. On 26.08.1989 at 12:10
a.m.
The
earlier
investigation
was
conducted by SI RS Lavania. He had
recorded the statements of the witnesses,
inspected the place of occurrence and
prepared the site plan Ex.Ka-18, prepared
fard Ex.Ka-19 and after concluding the
investigation he had submitted the chargesheet Ex.Ka-20.

25. The learned trial court has
narrated the story and repeated the
statements of the witnesses on ten pages
and thereafter, the trial court has given his
finding from pages-11 to 17 and concluded
that no offence of dowry could be proved
by the prosecution. The learned trial court
has not given any finding that if the
accused persons had not set ablaze the
deceased for dowry, how and why the
deceased had died. He has not given any
finding that it was an accident or a case of
suicide.

26. From the perusal of the judgment,
it is very clear that, first of all the learned
Additional Sessions Judge formed an
opinion to acquit the accused, fabricated
the structure of an acquittal, misread the
evidence on record in his own way and
acquitted the accused persons. According to
this Court, when it was an unnatural death
of a young newly married lady within four
months of her marriage and there was a
charge of demand of dowry and torture for
not bringing the dowry and the prosecution
had adduced unrebutted and unimpeachable
evidence in support of the prosecution and
the initial burden of proving the case had
been discharged, why was the liability to
discharge the burden of proof under Section
113B of the Indian Evidence Act not sought
from the accused persons.

27. In this case a prompt FIR has been
lodged by the informant levelling the
charge of demand of dowry, torture and
setting ablaze the deceased by the accused
persons by pouring kerosene on her. The
PM doctor has also found that there was a
smell of kerosene in the whole body of the
deceased. Had the stove been brust, the
deceased would have suffered only fire
injury and not the kerosene would have
spilled on her body. It is not denied that
Rs.20,000/- and one motorcycle were not
provided prior to the tilak ceremony of the
deceased by her brother to the accused
persons. According to the prosecution, just
after the marriage, the accused persons
started demanding dowry in the form of a
colour TV, fridge and golden ring, which
could not be provided by the informant
thereafter, she was burnt to death.

28. From the evidence of PW-1 and
PW-2, it has been proved that PW-1
informant Ram Nath and PW-2 Raj Kumar
visited the house of the accused persons in
the evening of 24.08.1989 where the
deceased had again narrated the demand for
dowry by the accused persons and also
regarding torture by them for nonfulfilment of the said demand.

29. An allegation has been levelled
against the informant PW-1 Ram Nath,
PW-2 Raj Kumar and Nirmal Singh that
whenever they visited the house of the
deceased, they used to tease and molest
Smt. Aruna Devi, wife of Sunil Kumar
(Bhabhi). It is surprising that whether a
brother who is visiting the house of in-laws
10 All. Ram Nath Yadav Vs. Sudhir Kumar Yadav & Ors.
631
of his newly wedded sister would dare to
molest her elder sister-in-law while the
relations would have been established a
few days ago. It is also noteworthy that
Smt. Aruna Devi had a child and was the
wife of the elder brother of his brother-inlaw (bahnoi). It is also material that if it
was so, why no question had been asked
and no suggestion has been given regarding
it to the informant PW-1. and PW-2. On
account of such omission on the part of the
defence, it can be safely concluded that no
such teasing, molesting or immoral offence
had been committed by the informant or his
friends with Aruna Devi and this fact has
been hypothesised to diminish the veracity
of PW-1 and PW-2 and only to get the
undue sympathy of the court. It is also
noteworthy that a relative or a friend
generally does not enter in the inner part of
the house. They remain in the drawing
room. It is also the case of defence that,
after marriage the deceased and her
husband used to live separately in the
house. In such a situation, how the above
mentioned three persons would get an
opportunity to tease and molest Smt.
Aruna.

30. Another defence has been taken
by the accused persons that the deceased
used to love Vinod. The whereabouts of
any Vinod have not been given by them.
According to prosecution evidence, Vinod
was the son of the elder sister of the
deceased. It has been mentioned in the
revision that Vinod was already a married
person having three children. However, no
cogent, credible and sufficient evidence
could be produced and the same could not
be proved by the accused persons. This
allegation has been outrightly dismissed by
the PW-1. It is also noteworthy that neither
accused Sunil Kumar, Sudhir Kumar nor
Prema Devi have stated in this regard in
their statements under Section 313 CrPC.
The defence witnesses, especially DW-2
Hukum Singh Yadav, father-in-law of the
deceased and DW-3, husband Sudhir
Kumar Yadav, have also not deposed that
there was a love affair between the
deceased and any Vinod. If such a love
affair had been between both of them, these
witnesses would have deposed in their
evidence. Therefore, it is proved that such
false, fabricated and immoral allegations
were levelled by the accused persons only
to lower and diminish the dignity of the
deceased, the departed soul which is mere a
lame excuse. It is also noteworthy that no
charge has been levelled against the
deceased in her life time for not performing
marital duties towards her husband or the
rest of the family members. It is also
noteworthy that it has not been the case of
the defence that since the marriage of the
deceased could not be solemnized with the
alleged Vinod, therefore, she committed
suicide by pouring kerosene on herself. The
defence case is that when the deceased was
preparing breakfast, the stove exploded and
the deceased was caught on fire, though no
damaged stove, cooked breakfast or any
raw material in this regard were found and
noted at the place of occurrence. Thus, the
whole defence taken by the accused
persons appears to be imaginary and
concocted for the purposes of the case.

31. In this case, a prompt FIR has
been lodged with relevant materials against
the accused persons. The motive regarding
the demand for dowry and torture for not
bringing the demanded dowry has been put
forward and proved by the prosecution
witnesses. It has also been proved by the
evidence of PW-1 and PW-2 that prior to
the incident the deceased had been tortured
for not bringing the dowry. She wanted to
come with her brother, but he did not take
632 INDIAN LAW REPORTS ALLAHABAD SERIES
her back and the next day she died of an
unnatural death. The learned trial court has
misinterpreted the fact that there is
variation between the dying declaration and
the contents of the FIR. According to this
Court,
such
variations
are
of
little
importance and meaningless in the eyes of
law. It is quite possible that the sequence of
the incident narrated by the deceased in her
dying declaration and the same narrated by
the informant in FIR could have been
slightly different. In so many cases, the
Apex court has held that it is immaterial if
the witness could not answer as to which
accused has played which role during the
course of commission of crime. The FIR is
not an encyclopedia, it is not a substantive
piece of evidence. It is only to contradict or
corroborate the evidence of the maker.
Therefore, the dying declaration would
prevail upon the first information report
and over all the evidence available on the
record.

32. The informant PW-1 has deposed
that when he reached in the hospital after
01:00 p.m, the deceased was able to speak
and she was screaming and accusing the
accused persons for the offence. The doctor
who had given the certificate regarding her
consciousness had also found the deceased
conscious before and after the recording of
her dying declaration. PW-5, Shyamlal
Yadav had also found the deceased
conscious while recording her dying
declaration. Thus, on the basis of oral and
formal evidence it is concluded that the
deceased had given her dying declaration
consciously.

33. The learned trial court has
concluded that no independent witness had
been examined. In this case Ram Nath,
brother of the deceased and his friend, Raj
Kumar have been examined. According to
this court, no independent witness would be
available when the offence has been
committed by the in-laws inside the house.
It was not an incident on the street or public
place. The learned trial court has also
concluded that why the deceased was not
taken to her house in the previous evening,
is also an absurd finding. Generally, family
members fail to assess that some such
untoward incident may happen to their
daughter/sister in the near future.

34. The learned trial court has also
heavily hammered that the deceased was
admitted by her husband. According to this
Court, mere admission in hospital does not
exonerate the accused from the guilt. Some
times the patients are admitted only to
establish themselves to be bonafide.

35. The learned trial court has
concluded that if the deceased could have
been burnt to death, her head would have
also been poured with kerosene. According
to this Court, it is also an absurd ground. A
person may be poured by kerosene from his
or her head only when he would not be able
to resist otherwise kerosene may be thrown
on his or her person. No one can imagine
what would be done by the accused and
how the offence would be caused by him.

36. The learned trial court has also
concluded that the informant was promptly
informed
about
the
incident
which
establishes that the accused persons had
acted in bonafide manner. According to this
Court, PW-1 has proved that he was
informed at about 01:00 p.m. The incident
had occurred in the morning, therefore, it
cannot be said that a prompt information
was given by the accused to the informant.

37. It is also noteworthy that
according to the accused person, the stove
10 All. Ram Nath Yadav Vs. Sudhir Kumar Yadav & Ors.
633
burst and the deceased was caught fire. If it
was true, why the stove, raw or cooked or
semi-cooked foods items were not found by
the IO. DWs say that the stove was thrown
in the river after six months. According to
this Court, generally a stove are made of
metal and if they are damaged, they are
sold to scrapper or the stove seller. If the
incident occurred due to burst of the stove,
it was an important defence evidence which
would have been produced in the court
during the course of defence evidence and
the same would have been exhibited. Doing
not so establishes that no such stove burst
and the incident had not occurred in the
manner as alleged by the defence.

38. It is a matter of surprise that a
senior Additional Sessions Judge has not
discussed the ingredients of Section 304B
IPC and Section 113B of the Indian
Evidence Act, 1872. When the initial
burden
of
proof
had
already
been
discharged by the prosecution, a prompt
FIR had been lodged, an unnatural death of
the deceased had occurred within the walls
of the accused persons' house, why the
burden to prove the innocence was not
shifted on the shoulders of the defence.
Though four witnesses have been examined
from the defence side, but none of the
witnesses has deposed that the deceased
had committed suicide as she had love
affair with the alleged Vinod while such
plea had already been taken. When it has
not been proved that it was an accident and
the aforesaid plea had already been taken
by the accused persons, it was their duty to
prove the same to the hilt.

39. It is also a matter of surprise that
if all the accused persons had tried to
extinguish the fire, why none of them got
injured by the fire and why their clothes
were not damaged, it establishes that no
attempt was made by the accused persons
to save the deceased. This vital aspect of
the incident goes against the accused
persons.

40. Though the accused Sunil, elder
brother of Sudhir has died on 27.04.1996
after about seven years of the incident but it
has not been established that he had died
due to illness. A plea has been taken by him
that he was ill and was under the treatment
of DW-1, Dr. R.K. Mathur but he was not a
bed ridden patient. Prema Devi had stated
in her statement under Section 313 CrPC
that Sunil and Sudhir put mattress on the
deceased in order to save her which
establishes that Sunil was not so ill and he
was not unable to assist rest of the accused
persons in setting ablaze the deceased.

41.