# Ravi & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Criminal Appeal No. 2571 of 2014
- **Bench:** B. Amit Sthalekar, Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-ors-in-jail-v-state-of-u-p-46014
- **Pages:** 18

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860- Section 304-B, 498-A,
302 & 3⁄4 D. P. Act, 1961-challenge toconviction-deceased died within 7 months
of her marriage-she was subjected to
cruelty and harassment at the hands of
the appellants-on the eve of Karwachauth,
her mother-in-law tried to strangulate her
with chunni over trivial issues-Later, she
was giving poison (insecticide)-sentence
of appellants maintained u/s 304 Bconviction u/s 302 set aside-Learned Trial
court
not
justified
in
imposing
the
harshest penalty of life imprisonment
upon the appellants.(Para 2 to 72)

The appeal is disposed of. (E-5)

List of Cases Cited:

## Text

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1 All. Ravi & Ors. Vs. State of U.P.
363
before the police, while in custody of
police. It is no doubt true that there are
certain
circumstances,
which
raises
suspicion about the involvement of the
appellant in the alleged offence. But, there
is a well settled principle of law that the
suspicion howsoever strong it may be,
cannot be substituted for the evidence. In
the case on hand, in view of the above
discussion, it cannot be said that the chain
of events stands completed and it points
towards the guilt of the appellant only and
that it is not possible to take a different
view, then, the one taken by the trial Court.
We are,therefore, inclined to accept the
submissions made by Mr. A. D. Shah,
learned Sr. Advocate for the appellant that
the appellant requires to be granted the
benefit of doubt.

18. In the result, the appeal is
ALLOWED. The judgment and order of the
trial Court, Dated : 05.04.2003, rendered
in Sessions Case No. 134 of 1998, is
quashed and set aside. The appellant -
original accused is given the benefit of
doubt and is ordered to be acquitted. The
appellant is on bail, and hence, his bail
bond stands canceled. The amount of fine,
if any, paid, be refunded to the appellant. A
copy of this order be sent to the concerned
jail authorities, immediately."

19. One more aspect which goes to
the root of the matter is that there is no
forensic expert's evidence which would
show that the scissors was used by the
accused and accused alone.

20. In this case there is no eye
witness, rather, P.W.1 nowhere states in his
deposition that the appellant had run away
with the bloodstained clothes from the
residence of P.W.1. The reliance by Trial
Court on the judgment in Salim Vs. State
of U.P., J.I.C. 2010 (1) (Alld.) 44 is also
bad in eye of law as, in the case in hand, no
one has seen the appellant to have fled
away with bloodstained clothes.

21. We are also fortified in our view by
the latest decision of the Apex Court in
Mohd. Younus Ali Tarafdar Vs. State of
West Bengal, (2020) 3 SCC 747.

22. In view of the above, we are
satisfied that the judgment of the learned
Trial Judge cannot be upheld and it has to be
quashed.

23. The appeal is allowed. Judgment
and order impugned is set aside. The accused,
if not required in any other offence, be set
free by the police authority and if he has paid
the fine, the same be refunded to him.

24. The record and proceedings of the
Court below be sent to it forthwith.

25. This Court is thankful to both Sri
V.P. Srivastava, learned Senior Advocate and
learned A.G.A for ably assisting the Court.
----------

(2021)01ILR A363
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Appeal No. 2571 of 2014

Ravi & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Lav Srivastava, Sri Amber Khanna, Sri
Raj Kumar Khanna, Sri V.P. Srivastava
364 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
A.G.A., Govind Saran Hajela, Sri K.D. Tiwari

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860- Section 304-B, 498-A,
302 & 3⁄4 D. P. Act, 1961-challenge toconviction-deceased died within 7 months
of her marriage-she was subjected to
cruelty and harassment at the hands of
the appellants-on the eve of Karwachauth,
her mother-in-law tried to strangulate her
with chunni over trivial issues-Later, she
was giving poison (insecticide)-sentence
of appellants maintained u/s 304 Bconviction u/s 302 set aside-Learned Trial
court
not
justified
in
imposing
the
harshest penalty of life imprisonment
upon the appellants.(Para 2 to 72)

The appeal is disposed of. (E-5)

List of Cases Cited:

1.
Mustafa
Shahadal
Shaikh
Vs
St.
of
Mah.,(2013) AIR SC 851

2. Kashmir Kaur Vs St. of Punj.,(2013) AIR SC
1039

3. Anil Rai Vs St. of Bih.,(2001) 7 SCC 318

4. St. of U.P. Vs Jagdeo Singh,(2003) 1 SCC 456

5. Bhagalool Lodh & anr. Vs St. of U.P.,(2011)
13 SCC 206

6. Dahari & ors. Vs St. of U.P.,(2012) 10 SCC
256

7. Raju @ Balachandran & ors. Vs St. of
T.N.,(2012) 12 SCC 701

8. Ganga bhavani Vs Rayapati Venkat Reddy &
ors.,(2013) 15 SCC 298

9. Jodhan Vs St. of M.P.,(2015) 11 SCC 52

10. Maqsoodan Vs St. of U.P. (1983) AIR 126

11. Sucha Singh Vs St. of Punj. (2001) SC 1436
12. Raj Kumar Prasad Tamarkar Vs St. of
Bih.,(2007) 10 SCC 403

13. PrithPal Singh Vs St. of Punj. & ors.,(2012) 1
SCC 10

14. Harijan Bhala Teja Vs St. of Guj. (2016) 12
SCC 665

15. Rajbir Vs St. of Har.,(2010) 15 SCC 116

16. Jasvinder Saini & ors. Vs St.(Govt. of NCT of
Delhi) (2013) 7 SCC 256

17. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 116

18. Hem Chand Vs St. of Har.,(1994) 6 SCC 727

19. Smt. Shanti & anr. Vs St. of Har.,(1991) AIR
SC 1226

20. Salamat Ali Vs St. of Bih., (1995) AIR SC
1863

21. Mohd. Hoshan Vs St. of A.P.,(2002) SCC
(Crl.) 1765

22. Devi Ram Vs St. of Har.,(2002) 10 SCC 76

23. Satvir Singh Vs St. of Punj.,(2001) 8 SCC
633

24. Kansraj Vs St. of Punj.,(2000) 5 SCC 207

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. The present Criminal Appeal is
directed
against
the
conviction
and
sentence dated 07.06.2014 passed by Addl.
District and Sessions Judge, Court No. 9,
Moradabad in Sessions Trial No. 666 of
2004 (State Vs Ravi and others), whereby
the appellants, namely, Ravi, Chhajju and
Smt Premwati were convicted under
Sections 498-A, 304-B, 302 I.P.C. and
Section 3/4 of Dowry Prohibition Act.
They were sentenced for life imprisonment
1 All. Ravi & Ors. Vs. State of U.P.
365
under section 304-B I.P.C. The appellants
were also sentenced for life imprisonment
under Section 302 I.P.C. along with fine of
Rs. 10,000/- each with default stipulation
and further all the appellants were also
sentenced
for
three
years
rigorous
imprisonment under Section 498-A I.P.C.
along with fine of Rs. 2000/- each with
default stipulation and under Section 3/4 of
the Dowry Prohibition Act, they were
sentenced
for
one
year
rigorous
imprisonment along with fine of Rs. 1000/-
each with default stipulation. All the
sentences
were
directed
to
run
concurrently.

2. Adumbrated facts, as per the
prosecution
version
are
that
the
complainant Mahendra Singh (P.W.-1)
submitted a written report (Ex-Ka-1) on
25.10.2003 at P.S. Mainather, District
Moradabad to the effect that marriage of
his sister, namely, Meena was solemnised
with appellant no. 1 Ravi seven months
ago. Her sister was at her parental home on
the eve of Karwachauth, and at that time
she narrated that she had some altercation
with her mother-in-law and her mother-inlaw tried to strangulate her with the help of
her chunni; and when her husband came on
Karwachauth to take her back then the said
fact was complained to him, on which he
said that they must come to his residence,
next day after Deepawali, and then he
would talk on the matter, and, thereafter, he
is said to have taken his wife Meena with
him. It is further alleged that on 25.10.2003
at about 7.30 in the morning, it was
informed on telephone by appellant no. 1
Ravi that Meena is unwell and on getting
this information, the complainant is said to
have contacted the appellant no. 1 Ravi,
thereafter, to know the situation, and Ravi
(appellant no. 1) then told the informant
that Meena has died, and, thereafter, the
complainant along with other family
members reached at his sister's matrimonial
home, where he found his sister lying dead.
It is further alleged in the report that the
complainant suspects that her death was
committed by her husband Ravi (appellant
no. 1), her father-in-law Chhajju (appellant
no. 2), her mother-in-law Smt Premwati
(appellant no. 3) and her brother-in-law. It
is further alleged that father of the appellant
no. 1 used to demand dowry and on his
demand a motorcycle was given at the time
of marriage.

3. On the basis of the said written
report, the FIR (Ex-Ka-6) was lodged on
25.10.2003 at 15.45 p.m vide Case Crime
No. 276 of 2003, under Sections 498A,
304-B IPC and Section 3/4 of D. P. Act by
Constable Clerk 279 Ramprakash Singh
(P.W.-6). Investigation ensued. The postmortem was conducted and on completion
of the investigation a charge sheet (Ex-Ka5) under Section 498-A, 304 B IPC and
Section 3/4 of D. P. Act was submitted
against the present appellants. Charges
were framed against all the accused
appellants under Sections 498-A, 304-B
IPC and Section 3⁄4 of Dowry Prohibition
Act on 8.12.2004. Additional charge under
Section 302 IPC was framed against the
appellants, namely Ravi (appellant no.
1/Husband),
Chhajju
(appellant
no.
2/father-in-law)
and
Smt
Premwati
(appellant
no.
3/mother-in-law)
on
29.05.2012. The trial of accused- appellant
Sanjay (brother in law of deceased) was
separated on account of his being a
Juvenile and he has been tried by Juvenile
Justice Board.

4. During course of trial of these three
accused appellants, as many as eleven
witnesses
were
produced
by
the
prosecution, namely, Mahendra Singh
366 INDIAN LAW REPORTS ALLAHABAD SERIES
(P.W.1-brother of deceased/complainant),
Smt Somati Devi (P.W.-2 mother of
deceased), Dr. A. K. Jain (P.W.-3 who
conducted
postmortem),
Smt
Beena
Rajkumari (P.W.4), S.I. Sunder Lal (P.W.-
4), Dr S. P. Singh (P.W.-5), Constable Ram
Prakash Sharma (P.W.-6-prepared check
report and made G.D. entry), ShyamlalTehsildar (P.W.-7 conducted inquest), S.I.
Ramveer Singh (P.W.-8-first Investigating
Officer), Constable Naeem Abbas (P.W.-
9), Constable Veerendra Singh (P.W.-10),
and Constable Mehar Singh (P.W.-11).

5. The appellants abjured all the
allegations against them in their statement
under Section 313 Cr.P.C. and contended
that they have been falsely implicated on
account of enmity, and, thereafter, as many
as four witnesses were produced by the
defence, namely, Dr J. K. Jain, (D.W.-1),
Jai Gopal (D.W.-2), Ganpat (D.W.-3), and
Dr. Vinay Kumar, Radiologist (D.W.-4).

6. Learned Trial Court after analysing
all the evidences available on record
pronounced its judgement of conviction on
7.6.2014 and sentenced all the appellants as
aforesaid.

7. We have heard Sri R. K. Khanna,
learned counsel assisted by Sri Amber
Khanna, learned counsel for the appellants,
Sri Ratan Singh, learned AGA and have
perused the material on record.

8. Learned counsel for the appellants
has submitted that there is no evidence on
record to demonstrate that dowry was ever
demanded or that the deceased was
harassed or subjected to cruelty mental or
physical,
soon
before
her
death
in
connection with demand of dowry. It is
also argued that necessary ingredients of
Section 304B IPC are not made out. It is
also argued that Section 302 IPC is also not
made out in the facts & circumstances of
the present case. It is further submitted that
mere fact that a married woman committed
suicide within a period of seven years of
her marriage would not directly attract the
presumption under Section 113 B of the
Indian
Evidence
Act.
The
important
ingredient of showing that she had been
subjected to cruelty had to be shown to
exist. He further submitted that there is no
automatic presumption that Section 113 A
of the Indian Evidence Act would apply
unless it is shown that the suicide was
abetted by the accused.

9. It was next contended that the
evidence produced by the prosecution to
prove the offence under the Dowry
Prohibition Act was inconsistent and
unreliable, because the material prosecution
witnesses - P.W.1 (brother of deceased) &
P.W.-2 (Mother of deceased) are closely
related to one another and no independent
witness was examined in proof of demand
of dowry by the prosecution, therefore, it is
not safe to rely on the testimony of
interested and related witnesses in absence
of there being independent witness to
corroborate their testimonies.

10. The submission of learned counsel
further is that only on the basis of the fact
that ''Aluminium Phosphide' has been
found in her viscera report, it cannot be
assumed that poison was administered to
her by her husband or her in-laws, and
there is no evidence on record that under
what circumstances or mental state, she
consumed poison. It is further submitted
that there may be possibility of death of
deceased, who was having 32 weeks foetus,
due to ''Amniotic Fluid Embolism', i.e. to
say that when the amniotic fluid entered
into the bloodstream of the mother, it
1 All. Ravi & Ors. Vs. State of U.P.
367
toxifies the mother's blood, which might
result in her death.

11. On the other hand, learned A.G.A.
appearing for the State opposed the appeal
and argued that the deceased died in the
house of the appellants under abnormal
circumstances within seven months of her
marriage. The evidence adduced on behalf
of the prosecution is sufficient for drawing
inference that soon before her death she
was subjected to cruelty and torture in
connection with the demand of dowry. The
conviction and sentenced awarded to the
appellants are based on reliable and
clinching evidence.

12. Learned AGA has further
submitted that the unfortunate death of
deceased was certainly an unnatural death
as the viscera report itself reveals that the
poison ''Aluminium Phosphide' was found
during its examination, which is evident
from the report of the Forensic Science
Laboratory (Ex-Ka-4), available on record.
There is also no dispute that the death was
caused within seven months of the
marriage. Further submission of learned
counsel for the State is that under these
circumstances
the
presumption
under
Section 113-B and 113-A of the Evidence
Act would arise and the burden would shift
on the appellants to prove their innocence
but they have failed to do so.

13. It is also submitted that the
deceased had met her unnatural death
inside her matrimonial home, therefore,
under Section 106 of the Indian Evidence
Act too, the burden is on the appellants to
explain under what circumstances the
deceased chose to end her life. The
submission further is that even assuming
that it was a case of suicide, it will not
make any difference because suicide is also
an unnatural death and suicidal cases are
also covered under Section 304-B of I.P.C.
The defence has failed to discharge the
onus that has shifted on it or to rebut the
presumption by any cogent, reliable and
trustworthy evidence as to what was the
immediate
reason/cause
that
led
the
deceased to take such drastic step of
consuming poison. Therefore, the court
below has rightly convicted the appellants
and there is no need to interfere in the
impugned judgment.

14. At the outset, we deem it
appropriate to discuss the testimonies of
material witnesses of the prosecution, more
particularly the testimonies of P.W.-1 and
P.W.- 2, who are brother and mother of the
deceased respectively, who have levelled
categorical allegations of cruelty and
harassment, being meted to the deceased
Meena by her husband (appellant no. 1)
and his other family members.

15. P.W.-1, brother of deceased
deposed before the court below as under:-

" esjh cgu djok pkSFk ij gekjs ;gak
vkbZ gqbZ Fkh mlus eq>s o ifjokj okyksa dks crk;k
Fkk fd bl ?kVuk ls dqN fnu igys fdlh ckr
ij mldh lkl Jherh izseorh ls dqN dgk lquh
gks xbZ Fkh rFkk lkl us ehuk dk xyk pqujh ls
nck fn;k FkkA

tc jfo djok pkSFk ij esjh cgu ehuk
dks ysus gekjs ?kj ij vk;k rc geus mlls bl
?kVuk dh f'kdk;r dh rks mlus dgk fd
nhikoyh esa vxys fnu vkuk ckr dj ysaxsaA jfo
ds dgus ij geus viuh cgu ehuk dks jfo ds
lkFk llqjky Hkst fn;kA

fnuakd 25@10@2003 dks lqcg djhc
730 cts gekjs ?kj ehuk ds ifr jfo dk Qksu
vk;k fd ehuk dh rfc;r [kjkc gSA lwpuk feyus
ij eSusa jfo dks eksckbZy ij Qksu fd;k vkSj ehuk
dh fLFkfr tkuuh pkgh rc jfo us Qksu ij crk;k
fd ehuk ej xbZ gSA lwpuk feyrs gh eS vius
368 INDIAN LAW REPORTS ALLAHABAD SERIES
ifjokj ds yksxksa dks ysdj tViqjk igaqpk tgak
ehuk ejh iM+h FkhA

geas mldh gR;k dh blfy, lUnsg
gqvk fd ehuk dh llqjky okys eqfYteku chp
chp esa ngst dh eakx esa 50000@ o vU; lkeku
dh eakx djrs FksA mUgha dh eakx ij geus eksVj
lkbZfdy ysdj nh Fkh ysfdu fQj Hkh ngst ds
:i esa vU; lkeku dh eakx djrs jgrs Fks ftldh
f'kdk;r ehuk gels ckj ckj djrh FkhA ngst ds
dkj.k ehuk dh gR;k mlds ifr jfo] llqj Nttw
flag] lkl Jherh izseorh o nsoj` lat; us
feydj dh gSA 'kknh ds 7 ekg ds vUnj gh bu
yksxksa us mldh gR;k ngst ds fy, dj nhA

eS vius ifjokj okyksa dks ehuk dh
yk'k ds ikl NksM+dj Fkkuk eSukBsj x;k] ogak eSusa
vius
gkFk
ls
fy[kdj
rgjhj
nhA&&&&&&&&&&&&&&&&&&

ehuk dh iksLVekVZe ds ckn yk'k gekjs
lqiqnZ dj nh xbZ vkSj geus ehuk dk laLdkj fof/k
iwoZdj dj fn;kA gekjs igaqpus ij ehuk dh
llqjky okys ?kVuk LFky ls Hkkx x;s FksA"

16. P.W.-2, mother of deceased
deposed before the court below as under:-

" ehuk dh 'kknh esa ,d eksVj lkbZfdy
o 31000 :i;s uxn mudh eakx ij fn;s FksA eSusa
viuh yM+dh dh 'kknh esa djhc ,d yk[k frjiu
gtkj :i;s [kpZ fd;s FksA esjh yMdh ehuk dh
llqjky okys bruk 'kknh ds [kpZ djus ds ckn Hkh
vkSj ngst dh eakx djrs jgrs Fks rFkk mlds
ngst ds fy, rax o ijs'kku djrs FksA ehuk dh
llqjky okyksa us eksckbZy rFkk 50000@ dh eakx
dh eSusa eksckbZy Qksu mudks ns fn;k FkkA ysfdu
50000@ :i;s ugha ns ikbZ FkhA

djokpkSFk ls igys esjh yM+dh ehuk
esjs ?kj vkbZ FkhA mlus eq>s crk;k Fkk fd esjh
lkl izseorh eq>ls 50000@& :i;s dh eakx djh
FkhA esjs euk djus ij esjh lkl us pqujh ls esjk
xyk nck dj ekjus dh dksf'k'k djhA djok pkSFk
ds fnu esjk nekn jfo esjs ?kj vk;k rks eSusa bl
ckr dh f'kdk;r jfo ls djh rc jfo us dgk fd
bl le; ehuk dks esjs lkFk Hkst nks fnikoyh ds
vxys fnu vkdj ckr phr dj ysaxsA

fnuakd
25@10@2003
dks
pkjks
eqyfteku jfo] NTtw] izseorh o lat; us ,d jk;
gksdj esjh yM+dh ehuk dks tgj nsdj mldh
gR;k dj nhA esjs ikl fn0 25@10@2003 dks
lqcg 7%30 cts Qksu vk;kA bl ij eS] esjk yM+dk
egsUnz o ifjokj ds o feyus okys dbZ yksx ehuk
dh llqjky x;sA ogka igqap dj geus ns[kk fd
ehuk dh yk'k cjkenh esa iM+h FkhA vkSj mlds
ifr jfo o llqj Nttw ls iwNus ij mUgksaus dksbZ
larks"ktud tckc ugha fn;k vkSj ogak ls Hkkx
x;sA"

17. A close scrutiny of the testimonies
of PW-1 and P.W-2, brother and mother of
the
deceased
respectively,
abundantly
reveals that the deceased was subjected to
cruelty on account of demand of dowry.
Death of the deceased Meena occurred
within seven months of her marriage. It is
also not disputed that the deceased died in
her matrimonial home otherwise than under
normal circumstances, where she was
living with her husband. Death of deceased
was not under natural circumstances as the
death of Meena could be said to be
certainly an unnatural death on the
evidence adduced by the prosecution.

18. In the light of the aforesaid
evidence, it would be relevant to discuss as
to whether the appellants have been rightly
convicted under Section 304-B IPC ?

Section 304-B IPC reads as
under:-

(1) Where the death of a woman
is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative
of her husband for, or in connection with,
any demand for dowry, such death shall be
called "dowry death", and such husband or
1 All. Ravi & Ors. Vs. State of U.P.
369
relative shall be deemed to have caused her
death.

Explanation.-For the purpose of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extent to
imprisonment for life."

19. Thus, Section 304-B IPC provides
for a statutory compulsion merely on the
establishment of two conditions that (i)
death of a wife should have occurred
otherwise than under normal circumstances
within seven years of her marriage; (ii)
soon before her death, she should have
been subjected to cruelty or harassment by
the accused in connection with demand of
dowry. If these two factual positions are
established then, the court has to presume
that the accused has committed dowry
death. If any accused wants to escape the
rigour of Section 304-B IPC, the burden is
on him to disprove it. If he fails to rebut the
presumption, the court is bound to act on it.

20. Section 304-B IPC is coupled
with Section 113 B of the Indian Evidence
Act. Section 113-B of the Indian Evidence
Act reads as under:-

"113-B.
Presumption
as
to
dowry death.- When the question is
whether a person has committed the dowry
death of a woman and it is shown that soon
before her death such woman has been
subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the Court shall
presume that such person had caused the
dowry death.

Explanation.-For the purposes of
this section, "dowry death" shall have the
same meaning as in section 304B of the
Indian Penal Code (45 of 1860)."

21. Section 113-B of the Indian
Evidence Act, 1872 also provides that once
it is shown that soon before her death a
woman has been subjected by such person
to cruelty or harassment for, or in
connection with, any demand for dowry,
the Court "shall presume" that such person
had
caused
the
dowry
death.
The
expression "shall presume" has been
defined in Section 4 of the Indian Evidence
Act, 1872, relevant part of which is
extracted here in below:

"'Shall presume'.- Whenever it
is directed by this Act that the Court shall
presume a fact, it shall regard such fact
as proved, unless and
until it is
disproved."

22. Thus, Section 113-B read with
Section 4 of the Indian Evidence Act,
1872 would mean that unless and until it is
proved otherwise, the Court shall hold that
a person has caused dowry death of a
woman, if it is established before the
Court that soon before her death such
woman was subjected by such person to
cruelty or harassment for, or in connection
with, any demand for dowry. Section 3 of
the Indian Evidence Act, 1872 states that
unless a contrary intention appears from
the context, the word "disproved" would
mean a fact is said to be disproved when,
after considering the matters before it, the
Court either believes that it does not exist,
or considers its non-existence so probable
that a prudent man ought, under the
circumstances of the particular case, to act
upon the supposition that it does not exit.
370 INDIAN LAW REPORTS ALLAHABAD SERIES

23. It is, thus clear that irrespective
of the fact that whether the accused has
any direct connection with the death or
not, he shall be presumed to commit
dowry
death
provided
the
other
requirements encapsulated in the Section
are satisfied. It is not necessary for
attracting the provisions of Section 304-B
IPC that apart from showing that the
death
has
occurred
in
unnatural
circumstances within seven years of her
marriage and that soon before her death
and the woman was subjected to cruelty
or harassment by the accused for, or in
connection with, any demand for dowry,
it must also be shown that the accused
had any direct nexus with the death.

24. The term "soon before her
death" used in Section 304-B IPC and
Section 113-B of the Indian Evidence Act
connote a sense of proximity of time
between the dowry related maltreatment
amounting to cruelty and the incident of
death. Therefore, an isolated incident of
dowry related ill-treatment amounting to
cruelty meted out to the woman in the
past may not be independently relevant
but it may be relevant if it forms a chain
of continuous incidents of maltreatment
amounting to cruelty.

25. Thus, in case of dowry death,
prosecution is not obliged to establish
that the accused persons were directly
involved in the death of deceased in
terms of inflicting physical injuries. If
the ingredients of Section 304-B IPC are
established by the prosecution, then the
court would have no option but to
presume that the accused has committed
dowry death unless of course, accused or
accused persons are able to successfully
rebut the presumption.

26. Coming back to the facts of the
present case, we find the following
undisputed facts:-

(a) Death of deceased Meena
occurred within seven months of her
marriage thereby the main condition
prescribed under Section 304-B IPC
namely "within seven years of marriage"
was fulfilled.

(b) Death of deceased was not
normal as the unfortunate death of Meena
was certainly an unnatural death as the
viscera report itself reveals that the poison
'Aluminum Phosphide' was found during its
examination, which is evident from the
report of the Forensic Science Laboratory,
Agra, available on record (Ex-Ka-4). It is,
therefore, clear that her death was
unnatural within seven months of her
marriage.

27. It is also not disputed that the
deceased died in the house of her
matrimonial home where she was living
with her husband and in-laws, and the
deceased died in the circumstances which
can never be said to be normal, therefore, it
can safely be concluded that the second
condition of Section 304-B IPC is also
fulfilled and the appellants have rightly
been convicted for the said offence. The
testimonies of prosecution witnesses P.W.-
1 Mahendra Singh, who is brother of
deceased and P.W.-2 Smt Somati Devi, the
mother of the deceased respectively also
lends credibility to this conclusion.

28. Now, the second question is as to
whether any dowry demands were made
from the deceased or her parents ? and
whether the deceased was tortured and
subjected to cruelty on non fulfilment of
these dowry demands and whether the
1 All. Ravi & Ors. Vs. State of U.P.
371
appellants have rightly been convicted
under Section 498-A IPC ?

29. In this regard, the prosecution has
adduced and further relied upon the
testimonies of two persons namely P.W.-1
& P.W.-2, the brother and mother of the
deceased, which may be seen from the
relevant extract of their testimonies, as
under:

30. P.W.-1 has testified that " ehuk dh
llqjky okys eqfYteku chp chp esa ngst dh eakx
esa 50]000 o vU; lkeku dh eakx djrs FksA mUgha
dh eakx ij geus eksVj lkbZfdy ysdj nh Fkh
ysfdu fQj Hkh ngst ds :i esa vU; lkeku dh
ekax djrs jgrs Fks ftldh f'kdk;r ehuk gels
ckj ckj djrh FkhA". He has also testified that
his sister came to her parental home twothree days prior to Karwachauth and at that
point of time she disclosed the fact that
some altercation took place with her
mother-in-law on account of demand of
dowry and at that time her mother-in-law
also tried to press her neck with the help of
her chunni. The relevant extract of
testimony is "esjh lxh cgu ehuk dh 'kknh jfo
ds lkFk gqbZ FkhA 'kknh 18@02@2003 dks gqbZ Fkh
esjh cfgu djokpkSFk ij gekjs ?kj vk;h Fkh mlus
esjh eak dks crk;k Fkk fd ngst eakxus ds mij
lkl ls dgk lquh gks x;h rks lkl us pqUuh ls
xyk nck fn;k FkkA bldh lwpuk mlus ge yksxksa
dks nh Fkh] jfo djokpkSFk ij esjh cfgu ehuk dks
ysus vk;k rc bl ckr dh f'kdk;r jfo ls dh
Fkh] mlus cksyk nhikoyh ds vxys fnu vk tkuk
ckr dj ysxas vkSj cfgu dks vius lkFk ys x;kA
esjh cfgu us gh crk;k Fkk fd ngst ds fy, esjh
llqjky ds lc eq>s izrkfM+r djrs gSA" Similar
statement has been made by P.W.-2 Smt
Somati Devi, mother of the deceased. The
testimonies rendered by these witnesses are
sufficient to show that deceased was
subjected to cruelty in terms of Section
498-A IPC explanation (a) which talks of
mental cruelty as well. Both of these
witnesses have been extensively cross
examined where they have reiterated that
the deceased was subjected to torture and
cruelty on account of non fulfilment of
dowry
demand.
We
have
carefully
examined their testimonies and believe that
they are trust worthy and reliable witnesses.
There is absolutely no reason to disbelieve
their testimonies especially in the light of
dowry demand made directly to deceased,
her brother and mother. It would not be out
of place to mention that after the death of
bride the details of harassment & torture is
also not possible, but it may be inferred
from the evidence of parents & other
relatives
of
the
deceased
and
the
circumstances that the deceased was
subjected to harassment & torture.

31. Hon'ble Apex Court in Mustafa
Shahadal
Shaikh
Vs
State
of
Maharashtra, AIR, 2013 SC 851 relied on
the testimonies of parents of deceased and
other witnesses, who in turn narrated the
story of torture communicated to them by
the deceased. In Kashmir Kaur Vs State
of Punjab AIR 2013, SC 1039, Hon'ble
Apex Court accepted the story of torture
communicated by the deceased to her
parents.

32.

We
have
examined
the
testimonies of P.W-1 and P.W.-2, brother
and
mother
of
the deceased.
Their
testimonies can be accepted for establishing
two other ingredients of Section 304-B IPC
i.e. the demand of dowry and acts of
cruelty on non fulfilment of such dowry
demand soon before the death of deceased.

33. Further, as far as the stand taken
by learned counsel for the appellants that P.
W.-1 and P. W.-2 are interested witnesses
and closely related to each other and hence
their testimonies cannot be relied upon, is
372 INDIAN LAW REPORTS ALLAHABAD SERIES
also not tenable in the eyes of law. Hon'ble
Apex Court in a catena of decisions has
held that the evidence of a closely related
witness/s is required to be carefully
scrutinized and appreciated before any
conclusion is made to rest upon it,
regarding the convict/accused in a given
case
and
their
evidence
cannot
be
disbelieved merely on the ground that the
witnesses are related to each other or to the
deceased. In case the evidence has a ring of
truth to it, is cogent, credible and
trustworthy, it can, and certainly should, be
relied upon. (Ref: Anil Rai Vs. State of
Bihar, (2001) 7 SCC 318; State of U.P.
Vs. Jagdeo Singh, (2003) 1 SCC 456;
Bhagalool Lodh & Anr. Vs. State of U.P.,
(2011) 13 SCC 206; Dahari & Ors. Vs.
State of U. P., (2012) 10 SCC 256;
Raju@Balachandran & Ors. Vs. State of
Tamil Nadu, (2012) 12 SCC 701; Ganga
bhavani Vs. Rayapati Venkat Reddy &
Ors., (2013) 15 SCC 298; Jodhan Vs.
State of M.P., (2015) 11 SCC 52).

34. In the present case, nothing has
been brought on record to prove that the
evidence of PW- 1 and P.W-2 cannot be
believed and relied upon or they have
falsely implicated the appellants due to
some
personal
vengeance
or
have
implicated the appellants in the present
case at the instance of the prosecution.
Therefore, aforesaid testimonies cannot be
rejected on the mere ground of their
relationship because relationship by itself is
not a sufficient ground to discard the
evidence of the witnesses and label it as
inappropriate for credence and hence the
argument of the counsel for the appellants
with regard to interested witnesses and
minor contradictions in the statements of
prosecution witnesses holds no ground.

35. So far as the submission of the
learned counsel for the appellants that no
independent witness was examined to
prove the demand of dowry by the
prosecution
itself
renders
the
entire
prosecution case doubtful, also cannot be
accepted. There is no doubt that the P.W.-1
and P.W.-2 are closely related to each other
but on that count their testimonies cannot
be said to be unreliable in absence of any
independent witness. Deceased would be
the best person to speak about demand of
dowry but where she is no more, then the
only remaining evidence can be that of the
parents of the deceased to whom she would
be expected to confide and mention about
such demands made time to time in order to
ascertain if they could meet the same. The
death of the deceased within seven months
of her marriage is not disputed. We believe
the testimonies of P.W.-1 & P.W.-2 with
regard to the demand of dowry and torture
of deceased with a view to coercing her to
bring more dowry is also not disputed.
Therefore, the prosecution story cannot be
thrown away merely on the basis of not
producing any independent witnesses to
support the version of P.W.-1 and P.W.-2.

36. The law is settled on the point that
in
case
the
sole
testimony of
the
prosecution witness is trustworthy, the
same can be relied upon and it is the quality
of the witness and not the quantity, which
is relevant. Section 134 of the Evidence
Act is also relevant to be referred to in the
present case, which prescribes that no
particular number of witnesses shall in any
case be required for the proof of any fact.
The Hon'ble Supreme Court in Maqsoodan
Vs State of UP, 1983 AIR 126 has held
that it is not the number of witnesses but
the quality of evidence that counts.
1 All. Ravi & Ors. Vs. State of U.P.
373

37. The statements of PW-1 and
P.W.-2 are sufficient to prove the demand
of dowry against the appellants, as their
statements are trustworthy and there is no
reason to disbelieve their testimony.

38. We also find from the record that
in
this
case
deceased
died
in her
matrimonial home on account of the poison
''Aluminium
Phosphide'
and
the
medical/scientific evidence corroborating
the testimonies of the prosecution witnesses
shifts the burden of proof on to the accused
to prove the facts and circumstances, which
are within their special knowledge and
conscience. Initially the burden to establish
the case would undoubtedly rest upon the
prosecution, but in our view, the initial
burden has been discharged by the
prosecution on the basis of the evidence on
record, which establishes the fact that the
deceased was subjected to cruelty on
account of dowry demand. Accordingly, by
virtue of Section 106 of the Indian
Evidence Act, the burden lay on the
appellants
to
have
explained
the
incriminating
circumstances
pointing
against
them.
In
the
present
case,
harassment is caused within four corners of
the matrimonial house of the deceased
which is house of the appellants. When any
harassment is committed in secrecy of four
corners of the house, it is difficult to collect
direct evidence against the perpetrators of
the crime because either they are members
of family or they assist in harassment,
therefore, explanation is sought against
presumption from the appellants, but no
explanation was given by them and their
version is plain denial which is without any
merit. In these circumstances, it was the
appellants who could give some plausible
explanation as to how and in what manner
the incident in question occurred and as the
appellants have failed to discharge the
burden under Section 106 of the Evidence
Act not only by giving evasive answers but
also by making an unsuccessful claim that
the deceased died of some disease without
any basis and evidence on record, in our
opinion, this fictitious story cannot be
believed.

39. It is also a settled legal position
that Section 106 the Evidence Act is not
intended to relieve the prosecution of its
burden to prove the guilt of the accused
beyond any shadow of reasonable doubt. It
is only, when such a burden is discharged
by the prosecution that the onus eventually
shifts on to the accused to prove any fact
within his special knowledge, to establish
that he/she/they is/are not guilty of the
aforesaid alleged offence. We may refer to
the following Para, from the judgment of
the Apex court in Sucha Singh VS State of
Punjab, reported in AIR 2001 SC 1436
as under:

"We pointed out that Section 106
of the Evidence Act is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt, but the section would
apply to cases where prosecution has
succeeded in proving facts for which a
reasonable
inference
can
be
drawn
regarding the existence of certain other
facts, unless the accused by virtue of
special knowledge regarding such facts
failed to Offer any explanation which might
drive the court to draw different inference."

40. In the case of Raj Kumar Prasad
Tamarkar Vs. State of Bihar (2007) 10
SCC 403 the Apex Court held that "if some
occurrence happens inside the residential
portion of the accused, where he was also
available, at or about the time of the
incident, he is bound to offer his version as
374 INDIAN LAW REPORTS ALLAHABAD SERIES
to how the occurrence had taken place. The
only other person who can speak about the
occurrence will be the deceased and now
that she is dead, if at all, the accused alone
can offer an explanation. Section 106 of the
Indian Evidence Act states that when any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. It is true that this section
cannot be used, so as to shift the onus of
proving the offence, from the prosecution
to the accused. However, in the present,
there is satisfactory evidence, which fastens
or conclusively fixes the liability, for the
death of Gandhimathi, on the inmate of the
house, present therein at the relevant time.
So, in the absence of any other explanation,
the only possible inference is that the
accused participated in the act. If he claims
contrary, under Section 106 of the
Evidence Act, the burden of proving that
fact is upon him, since that is within his
special knowledge."

41. In the case of Prithpal Singh Vs
State of Punjab and others, reported in
(2012) 1 SCC 10, the Apex Court in the
following Para has held as under:

"... if fact is especially in the
knowledge of any person, then burden of
proving that fact is upon him. It is impossible
for the prosecution to prove certain facts
particularly within the knowledge of the
accused. Section 106 is not intended to
relieve the prosecution of its burden to prove
the guilt of the accused beyond reasonable
doubt. But the section would apply to cases
where the prosecution has succeeded in
proving facts from which a reasonable
inference can be drawn regarding the
existence of certain other facts, unless the
accused by virtue of his special knowledge
regarding such facts, failed to offer any
explanation which might drive the Court to
draw a different inference. Section 106 of the
Evidence Act is designed to meet certain
exceptional cases, in which, it would be
impossible for the prosecution to establish
certain facts which are particularly within the
knowledge of the accused."

42. In the case of Harijan Bhala Teja
vs State Of Gujarat, (2016) 12 SCC 665, it
has been held as follows:-

"Section
106
of
the
Indian
Evidence Act provides that when any fact is
especially within the knowledge of any
person, the burden of proving that fact is
upon him. Since it is proved on the record
that it was only the appellant who was
staying with his wife at the time of her death,
it is for him to show as to in what manner she
died, particularly, when the prosecution has
successfully proved that she died homicidal
death. "

43. Now the next argument of learned
counsel for the appellants that charge under
Section 304-B IPC and Section 302 IPC
cannot go simultaneously, and all the
appellants have wrongly been convicted
under Section 302 IPC is required to be
examined.

44. So far as the submission that
charge under Section 304-B IPC and
Section 302 IPC cannot be simultaneously
prosecuted is concerned, the Apex Court in
the case of Rajbir Vs State of Haryana,
(2010) 15 SCC 116, has issued directions
to all the trial Courts in India to ordinarily
add Section 302 IPC to the charge of
Section 304-B IPC, so that death sentence
could be imposed in such heinous and
barbaric crimes against women.

45. Subsequently, Hon'ble the Apex
Court in Jasvinder Saini and others Vs.
1 All. Ravi & Ors. Vs. State of U.P.
375
State (Government of NCT of Delhi)
reported in (2013) 7 SCC 256, observed
that direction issued in Rajbir (supra) was
not mean to be followed mechanically and
without due regard to the nature of the
evidence available in the case.