# Sanjay Kumar (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 476
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-24
- **Case number:** Criminal Appeal No.917 of 2006
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-in-jail-v-state-of-u-p-48799
- **Pages:** 15

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 304B- Unnatural death within
Seven years of marriage- All the four
witnesses of fact are consistent in proving
the marriage of the deceased Islawati
with accused Sanjay Kumar approximately
5 years ago from the date of the incident.
The prosecution, thus, became successful
in proving the incident of bride burning as
informed by the first informant, PW-1,
occurring within a period of five years' of
matrimonial life of the deceased Islawati
with accused Sanjay Kumar. By oral
evidence, the witnesses PW-1, PW-2, PW3 and PW-4 had proved the demand of
motorcycle in dowry and also torture and
beating of the deceased in connection
with the said demand.

In a case under Section 304 B of the IPC, the
prosecution has to prove that the death of the
woman was under unnatural circumstances
within seven years of her marriage and she was
subjected to cruelty and harassment by her
husband or any of his relatives for demand of
dowry.

Indian Evidence Act, 1872- Section 8 -
Subsequent Conduct- Neither the accused
informed the unnatural death of the
deceased nor they took her to the hospital
to get her all possible treatment. This
conduct is also a relevant fact which lead
to an inference that the unnatural death
was caused due to burn injuries caused by
her in-laws and the motive was unfulfilled
demand of motorcycle in dowry.

The subsequent conduct of the accused
persons in neither giving any information about
the unnatural death and nor providing the
deceased with any medical help will lead the
court to take an adverse inference against the
accused.

Indian Evidence Act, 1872- Section 106-
Burden of Proof- What happened in the
matrimonial house with the deceased and
how
the
wounds
and
injuries
were
sustained on the person of the deceased
as ante-mortem injuries are the facts,
particularly within the knowledge of the
accused-Sanjay as there is absolutely no
evidence on record nor it was alleged that
he was not present in the house on the
fateful day when the deceased was alive
just prior to the incident, no explanation
at all had been offered by the accused
despite opportunity given to him. The
presence of accused with the deceased
when she was alive is proved beyond
doubt. Resultantly, under Section 106 of
Evidence
Act,
1872,
there
is
a
6 All. Sanjay Kumar Vs. State of U.P.
477
corresponding burden on the accusedhusband to give cogent explanation as to
how the crime was committed. The
appellant cannot get away by keeping
mum.

Where the wife has died an unnatural death
inside the home, the presence of the husband
stands established by the prosecution during the
relevant period then the burden of proof of
explaining the circumstances under which the
deceased met her death, will lie upon the
accused husband.

Proportionate Punishment- Quantum of
Punishment- The judgment can not be
interfered on the argument as to the
disproportionate quantum of punishment.
The dowry death being a long standing
social event and the dowry death of the
deceased
in
the
instant
case
being
pestiferous committed in a scheme of the
most brutal manner and cruelty by the
covetous husband, the punishment of life
imprisonment, in our considered opinion,
is the proportionate punishment.

Where the deceased has been done to death in
a brutal manner by a greedy husband, no
interference is required in the quantum of
punishment awarded by the trial court. ( Para
28, 34, 46, 47, 51)

Criminal Appeal rejected. (E-3)

Judgements/ Case laws relied upon:-

## Text

_Characters 0–39,856 of 47,061. This is a partial read: ask again with offset=39856 for what follows._

476 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction and sentence dated 14.1.2016
are set aside. Appellants are acquitted of
the charges framed against them. The
accused appellant Alam in Criminal Appeal
No.888/2016 is in jail. He shall be released
from jail forthwith. Accused-appellants
Noor Mohammad and Deen Mohammad in
Criminal Appeal No.639/2016 are on bail.
Their
bail
bonds
and
sureties
are
discharged.

Let a copy of the judgment along
with the original record be sent to the court
below for compliance.
----------
(2022)06ILR A476
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No.917 of 2006

Sanjay Kumar ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Satish Chandra Mishra, Sri Dileep Kumar, Sri
Pramod Kumar Pandey, Sri R.B. Chaudhary, Sri
R. Bhargava, Sri Rajrshi Gupta, Sri Shesh Narain
Mishra

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code, 1860-
Section 304B- Unnatural death within
Seven years of marriage- All the four
witnesses of fact are consistent in proving
the marriage of the deceased Islawati
with accused Sanjay Kumar approximately
5 years ago from the date of the incident.
The prosecution, thus, became successful
in proving the incident of bride burning as
informed by the first informant, PW-1,
occurring within a period of five years' of
matrimonial life of the deceased Islawati
with accused Sanjay Kumar. By oral
evidence, the witnesses PW-1, PW-2, PW3 and PW-4 had proved the demand of
motorcycle in dowry and also torture and
beating of the deceased in connection
with the said demand.

In a case under Section 304 B of the IPC, the
prosecution has to prove that the death of the
woman was under unnatural circumstances
within seven years of her marriage and she was
subjected to cruelty and harassment by her
husband or any of his relatives for demand of
dowry.

Indian Evidence Act, 1872- Section 8 -
Subsequent Conduct- Neither the accused
informed the unnatural death of the
deceased nor they took her to the hospital
to get her all possible treatment. This
conduct is also a relevant fact which lead
to an inference that the unnatural death
was caused due to burn injuries caused by
her in-laws and the motive was unfulfilled
demand of motorcycle in dowry.

The subsequent conduct of the accused
persons in neither giving any information about
the unnatural death and nor providing the
deceased with any medical help will lead the
court to take an adverse inference against the
accused.

Indian Evidence Act, 1872- Section 106-
Burden of Proof- What happened in the
matrimonial house with the deceased and
how
the
wounds
and
injuries
were
sustained on the person of the deceased
as ante-mortem injuries are the facts,
particularly within the knowledge of the
accused-Sanjay as there is absolutely no
evidence on record nor it was alleged that
he was not present in the house on the
fateful day when the deceased was alive
just prior to the incident, no explanation
at all had been offered by the accused
despite opportunity given to him. The
presence of accused with the deceased
when she was alive is proved beyond
doubt. Resultantly, under Section 106 of
Evidence
Act,
1872,
there
is
a
6 All. Sanjay Kumar Vs. State of U.P.
477
corresponding burden on the accusedhusband to give cogent explanation as to
how the crime was committed. The
appellant cannot get away by keeping
mum.

Where the wife has died an unnatural death
inside the home, the presence of the husband
stands established by the prosecution during the
relevant period then the burden of proof of
explaining the circumstances under which the
deceased met her death, will lie upon the
accused husband.

Proportionate Punishment- Quantum of
Punishment- The judgment can not be
interfered on the argument as to the
disproportionate quantum of punishment.
The dowry death being a long standing
social event and the dowry death of the
deceased
in
the
instant
case
being
pestiferous committed in a scheme of the
most brutal manner and cruelty by the
covetous husband, the punishment of life
imprisonment, in our considered opinion,
is the proportionate punishment.

Where the deceased has been done to death in
a brutal manner by a greedy husband, no
interference is required in the quantum of
punishment awarded by the trial court. ( Para
28, 34, 46, 47, 51)

Criminal Appeal rejected. (E-3)

Judgements/ Case laws relied upon:-

1. Bansi Lal Vs. St. of Har. (2011) 11 SCC 359

2. Maya Devi & anr. Vs. St. of Har. (2015) 17
SCC 405

3. Trimukh Maroti Kirkan Vs. St. of Maha.
(2006) 10 SCC 681

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The instant Criminal Appeal has
been preferred against the judgment of
conviction and order of sentence dated
24.01.2006
passed
by
the
learned
Additional Sessions Judge, Court no. 6,
Basti in Sessions Trial No. 276 of 2000,
under Sections 498-A, 304-B of Indian
Penal Code, 1860 read with Section 3⁄4 of
Dowry Prohibition Act.

2. On behalf of accused-appellant,
learned Amicus Curiae Sri Pramod Kumar
Pandey argued the case whereas the Staterespondent is represented by the learned
Additional Government Advocate Ms. Arti
Agarwal.

3. Vide impugned judgment of
conviction and order of sentence, dated
24.01.2006, the appellant is convicted
under Sections 498-A, 304-B IPC read with
Section 3⁄4 of Dowry Prohibition Act, Police
Station
Lalganj,
District
Basti
and
sentenced with life imprisonment under
Section 304-B IPC. Under Section 498-A
IPC two years rigorous imprisonment and
fine of Rs. 2000/-; in default of payment of
fine
six
months
additional
rigorous
imprisonment. Under Section 3⁄4 of the
Dowry Prohibition Act one year rigorous
imprisonment. All the sentences are to run
concurrently.

FACTUAL
MATRIX
OF
THE
CASE

4. Briefly stating the prosecution case
as emerges from the written information
dated 27.08.2000 submitted in the Police
Station Lalganj, District Basti by the
brother of the deceased, is that the
informant's sister was married with the
accused-appellant Sanjay Kumar, resident
of village Dei Saar, Police Station Lalganj,
District Basti, approximately 5 years ago
(27.08.2000). It is complained that Sanjay
Kumar and his father Daya Shanker and
mother Dhanpati @ Kanchan were not
478 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfied with the gifts and dowry given to
them at the time of marriage, therefore
demanded ''Rajdoot' motorcycle in dowry
repeatedly. The father of the informant had
already died and the family of the
informant was not sound financially,
therefore, they could not fulfil the demand
of motorcycle in dowry. Due to this, the
accused persons, Sanjay Kumar and his
parents were harassing his sister, the
deceased Islawati Devi. On the complaint
made by the informant's sister, the
informant met her in-laws with folded
hands and told that he was not in a position
to gift motorcycle in dowry. Being annoyed
by the denial, the accused persons, on
27.08.2000, caused death of Islawati,
informant's sister by burning her. After
getting information of the incident when
the informant, Mani Ram Chaudhary
reached at the matrimonial house of his
sister and asked the accused Daya Shanker,
he told that she had died.

5. The First Information Report was
lodged on the said information registering
the criminal Case No. 98 of 2000 on
27.08.2000 at about 9:35 p.m. against
Sanjay Kumar (the present appellant), Daya
Shanker and Dhanpati Devi (the parents of
the
appellant
Sanjay
Kumar).
On
29.08.2000, the informant Mani Ram
Chaudhary applied to add the name of Ram
Singh S/o Daya Shanker, brother of the
accused-appellant Sanjay Kumar as an
accused making harassment and cruelty
committed on the deceased Islawati Devi in
connection with the demand of dowry.

6.

After
registering
the
First
Information
report,
the
Investigating
Officer reached at the spot of the incident,
collected the plain and blood stained soil,
other material and articles found near the
dead body including one plastic container
of kerosene oil of half a litre, the ash of the
spot and prepared the relevant memos on
08.08.2000.

7. The inquest proceeding was
conducted on 28.08.2000 and concluded on
the same day at about 1:00 p.m. The
Investigating Officer formed an opinion
that the death was caused by burning and
sent it for post-mortem with constables
Ram Narain Singh and Sriram Pandey on
the same day.

8. The plea of alibi is taken by learned
the Amicus Curiae on behalf of the
accused-appellant Sanjay Kumar.

9. The post-mortem was conducted on
29.08.2000 at about 4:00 p.m. The age of
the deceased was mentioned about 26
years. The doctor opined that the death
occurred 2-3 days ago. Following antemortem injuries were reported:

"1. Contusion on left side of face
6cm x 4cm just interior to left ear.

2. Contusion on the back of head
5cm x 4cm.

3. Contusion upper part of chest
22cm x 15cm.

4. Contusion 6cm x 4cm front of
upper left arm found above left elbow."

10. After collecting incriminating
material from the spot of the incident,
recording evidence of witnesses, the
Investigating
Officer
concluded
the
investigation
and
submitted
the
chargesheet, whereupon after hearing the
parties, charges against three accused
persons, namely Sanjay Kumar, Daya
Shanker and Dhanpati Devi @ Kanchan
6 All. Sanjay Kumar Vs. State of U.P.
479
were
framed
on
22.02.2001
and
subsequently in a separate Sessions Trial
against Ram Singh bearing Sessions Trial
No. 247 of 2001 also charges were framed
on 23.10.2001 under Sections 498-A, 304B IPC read with Section 3⁄4 of Dowry
Prohibition Act.

11. The prosecution produced the
following oral and documentary evidences
before the trial Judge:

P.W.-1,
the
informant, Mani
Ram Chaudhary
(brother of the
deceased)
Proved
the
written
complaint (Ex. Ka.1)
Proved the Application
(Ex. Ka.2)
P.W.-2,
Ram
Karan (brother of
the deceased)

P.W.-3,
S.K.
Chaudhary

P.W.-4,
Malti
Devi (Mother of
the deceased)

P.W.-5,
Radhey
Shyam
Proved Panchayatnama
as Ex. Ka.
P.W.-6,
Ram
Narain Singh

P.W.-7, Dr. P.N.
Singh
Proved
Post
mortem
report Ex. Ka-6.
P.W.-8, Diwakar
Kumar,
Sub
Inspector
1. Proved the recovery
memo of blood stained
and plain earth. (Ex.
Ka.-4)
2. Proved the recovery
memo of Ash and Earth
(Ex. Ka.-5)
P.W.-9,
Chedhi
Prasad
Yadav,
Station
HouseOfficer
P.W.-10,
Vidya
Sagar
Sharma,
Head Moharrir
P.W.-11, Sri Ram
Pandey,
Constable
One witness in defence
Arjun as D.W.-1

12. After the prosecution witnesses,
the accused persons were examined under
Section 313 Cr.P.C. and ultimately the trial
judge convicted the present accusedappellant Sanjay Kumar for the offence
under Sections 498-A, 304-B IPC read with
Section 3⁄4 Dowry Prohibition Act. The
accused Daya Shanker and Dhanpati Devi
@ Kanchan in Sessions Trial No. 276 of
2000 and Ram Singh in Sessions Trial No.
247 of 2001 were acquitted for all the
charges
levelled
against
them
under
Sections 498-A, 304-B IPC read with
Section 3⁄4 of Dowry Prohibition Act. As
such, the present accused-appellant Sanjay
Kumar is the sole accused before this court.

ARGUMENTS
OF
THE
LEARNED COUNSELS

13. Learned Amicus Curiae on behalf
of the accused-appellant argued that the
factum of demand of dowry is not proved
as the evidence with regard to the demand
of dowry is lacking. There is no complaint
either in the police station or any other
Forum like village Panchayat or before the
respected elders of the family of cruelty in
connection with the demand of dowry
either by the deceased Islawati or by her
brother. For the first time after death of the
deceased the allegations of demand of
480 INDIAN LAW REPORTS ALLAHABAD SERIES
dowry came in the written information
given by the brother of the deceased.

14. He further urged that even the
inquest witnesses had not stated any sign of
cruelty on the person of deceased just
before her death. The deceased was
reported to have been treated with cruelty
and harassment by the informant on his
own by reason of her death due to burning.

15. Learned Amicus Curiae further
argued that no specific role of demand of
dowry
and
committing
cruelty
in
connection therewith to can be assigned
to the accused-appellant. The informant,
PW-1 and other witnesses of the fact
have stated that the demand of dowry and
cruelty
committed
in
connection
therewith was made by all the accused
persons including the present accusedappellant, though there is no evidence
exclusively against the present accusedapplicant. Once on the same evidence
when
other
accused
persons
were
acquitted, the learned trial judge had
committed an error in recording the
conviction
of
the
present
accusedappellant
Sanjay
Kumar
only.
The
learned trial judge thus has passed the
impugned judgment of conviction and
order of sentence dated 24.01.2006
without considering the material on
record. The sentence is too severe being
the maximum as provided under Section
304-B IPC which is disproportionate to
the guilt, if any. The prosecution had
been unsuccessful in proving it's case
beyond all reasonable doubt. No specific
motive against the appellant is proved.
On the basis of the contentions made by
him, learned Amicus Curiae prays to set
aside the judgment of conviction and
order of sentence and to allow the appeal.

16. Learned Additional Government
Advocate Ms. Arti Agarwal replying the
arguments made by learned Amicus Curiae
on behalf of the accused-appellant argued
that the prosecution has successfully
proved all the ingredients to constitute the
presumptive offence under Section 304-B
IPC with regard to dowry death, namely:

(I) unnatural death of the wife ;

(ii) death within 7 years of
marriage ;

(iii) demand of dowry and ;

(iv)
cruelty
done
with
the
deceased in connection with demand of
dowry soon before her death.

17. Learned AGA contended that on
the date of the incident, the deceased,
"Islawati" was a young lady of 26 years of
age. Undoubtedly, her death was unnatural
as is evident from the post-mortem report.
The injuries apart from burn injuries found
in the arm of the person of the deceased
show that the deceased was subjected to
brutality and cruelty soon before her death.
Learned AGA has further contended that
the post-mortem report reveals that the
deceased was strangulated before her death
as hyoid bone was broken. She further
contended that the dead body was found in
the matrimonial house of the deceased
Islawati of which the accused appellant was
a normal resident. No plausible explanation
could be given by him. He rebut the
presumption against him. The material
circumstances were enough to presume it is
a case of dowry death against the accusedappellant. The defence has remained
unsuccessful in eliciting any fact during
cross-examination
of
the
prosecution
6 All. Sanjay Kumar Vs. State of U.P.
481
witnesses which may be considered as the
fact sufficient to rebut the presumption.

18. The plea taken in defence of alibi
had not been proved by the defence during
trial. The prosecution had established it's
case beyond all reasonable doubt against
the appellant, therefore there may not be
any interference with the judgment of
conviction and order of sentence. The
appeal deserves to be dismissed.

[DISCUSSIONS]

LAW RELATING TO DOWRY
DEATH

19. From the facts, circumstances of
the case and evidences on record, the case
against the present accused-appellant is of
dowry death which is a presumptive
offence under Section 304-B IPC. For the
purpose of easy reference in discussions,
Section 304-B IPC be quoted hereunder:

[304-B.
Dowry
death.--
"(1)Where the death of a woman is caused
by any burns or bodily injury or occurs
otherwise
than
under
normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative
of her husband for, or in connection with,
any demand for dowry, such death shall be
called "dowry death", and such husband or
relative shall be deemed to have caused her
death. Explanation. For the purpose of this
sub-section, "dowry" shall have the same
meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

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

20. As can be seen from the aforesaid
provision, for convicting the accused for an
offence punishable under Section 304B
IPC, the following pre-requisites are
required to be met:

(i) that the death of a woman
must have been caused by burns or bodily
injury or occurred otherwise than under
normal circumstance;

(ii) that such a death must have
occurred within a period of seven years of
her marriage;

(iii) that the woman must have
been subjected to cruelty or harassment at
the hands of her husband soon before her
death and ;

(iv) that such a cruelty or
harassment must have been for or related to
any demand for dowry.

21. The explanation appended to
Section 304B IPC states that the word
"dowry" shall have the same meaning as
provided in Section 2 of the Dowry
Prohibition Act, 1961 which reads as follows:

"2. Definition of ''dowry' - In
this Act, "dowry" means any property or
valuable security given or agreed to be
given either directly or indirectly -

(a) by one party to a marriage to
the other party to the marriage; or

(b) by the parents of either party
to a marriage by any other person, to either
party to the marriage or to any other
person;

at or before or any time after the
marriage in connection with the marriage
482 INDIAN LAW REPORTS ALLAHABAD SERIES
of the said parties, but does not include
dower or mahr in the case of persons to
whom the Muslim Personal law (Shariat)
applies."

22. The presumption of dowry death
arises when the death caused is unnatural
within 7 years of the marriage in the
matrimonial home and soon before the
unnatural death of the wife, there is
evidence of cruelty committed on her
before her death in connection with the
demand of dowry. It would also be
pertinent to reproduce Section 498-A IPC
as under:

"Section 498A in The Indian
Penal Code

498A. Husband or relative of
husband of a woman subjecting her to
cruelty.--Whoever, being the husband or
the relative of the husband of a woman,
subjects such woman to cruelty shall be
punished with imprisonment for a term
which may extend to three years and
shall also be liable to fine. Explanation.--
For the purpose of this section, "cruelty"
means--

(a) any wilful conduct which is
of such a nature as is likely to drive the
woman to commit suicide or to cause
grave injury or danger to life, limb or
health (whether mental or physical) of
the woman; or

(b) harassment of the woman
where such harassment is with a view to
coercing her or any person related to
her to meet any unlawful demand for
any property or valuable security or is
on account of failure by her or any
person related to her to meet such
demand."

23. In this connection to appreciate
the nature of presumption, we find it
relevant to note Section 113-B of Indian
Evidence Act, 1972 as under:

"Section 113B in The Indian
Evidence Act, 1872

[113B. 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).]"

WHETHER
DEATH
CAUSED
WITHIN 7 YEARS OF MARRIAGE

24. According to the case of the
prosecution, the marriage of deceased
Islawati with appellant Sanjay Kumar was
solemnized 5 years prior to the incident
dated 27.08.2000. The written information
of the incident has proved by the brother of
the deceased Mani Ram Chaudhary (PW-1)
and marked as Exhibit Ka-1. PW-1
categorically stated in the examination in
chief that the marriage of his sister, the
deceased, was solemnized 5 years ago and
denied the suggestion that he gave
statement to the Investigating Officer that
the deceased got married in the year 1988.

25. PW-2, Ramkaran, another brother
of deceased Islawati also stated that the
marriage was solemnized approximately 5
years ago from the date of incident. In the
course of cross examination, it was
6 All. Sanjay Kumar Vs. State of U.P.
483
suggested that this witness in his previous
statement to the Investigating Officer stated
that the marriage of his sister Islawati was
solemnized in the year, 1988 and the ritual
of "Gauna" was performed in the year,
1995. PW-2 denied that no such statement
was given to the Investigating Officer.
Apart from this suggestion, nothing could
be elicited by the learned defence counsel
to establish the marriage of the deceased
Islawati with the accused Sanjay in the
year, 1988.

26. PW-3 Shyam Karan Chaudhary,
brother of the deceased Islawati in his cross
examination has specifically stated with the
marriage
of
deceased
Islawati
was
solemnized with accused Sanjay in the
year, 1995. This witness also stood firmly
in the cross examination with regard to the
period of marriage.

27. PW-4 Malti Devi W/o Shyam
Karan
(PW-3)
who
sister-in-law
of
deceased Islawati also stated she got
married before the marriage of deceased
Islawati and that she came to her in-laws
house before the marriage of the deceased.
She was examined before the trial court on
17.05.1995 and stated that the marriage of
deceased was solemnized approximately 9
years ago from the date she was examined.
PW-4 also stated that she had witnessed the
marriage of the deceased. Nothing could be
carved out by the learned counsel for the
defence in contradiction to the statement of
other witnesses with regard to the period of
marriage of deceased Islawati with accused
Sanjay Kumar.

28. All the four witnesses of fact are
consistent in proving the marriage of the
deceased Islawati with accused Sanjay
Kumar approximately 5 years ago from the
date of the incident. The prosecution, thus,
became successful in proving the incident
of bride burning as informed by the first
informant, PW-1, occurring within a period
of five years' of matrimonial life of the
deceased Islawati with accused Sanjay
Kumar.

DEMAND OF DOWRY

29. The fact of demand of dowry can
be disclosed most probably and very
naturally by the sufferer i.e. the wife (In the
present case decesed Islawati) herself and
the inmates of her paternal house like her
mother, brother or other near relatives with
whom she might have shared the fact of
demand having been made to her. In the
case before us, PW-1, PW-2, PW-3 are the
brothers of the deceased and PW-4 is her
sister-in-law (wife of the brother of the
deceased,
namely,
Shyam
Karan).
Narrating their conversation with the
deceased during her life time the witnesses
have stated before the court with regard to
demand of motorcycle in dowry. PW-1
stated that their father had died before the
marriage of Islawati and according to their
financial capacity, they had given sufficient
dowry in the marriage but the accused
Sanjay Kumar, his parents and one real
uncle Ram Singh were pressing the demand
for motorcycle in the dowry. PW-1, the
elder brother of the deceased with folded
hands met the in-laws of his deceased sister
and begged pardon for not fulfilling their
demand of motorcycle in dowry and
requested not to torture his sister in
connection with their unfulfilled demand
but they continued torturing and treating
the deceased Islawati with cruelty in
connection with their unfulfilled demand
and ultimately P.W.-1 got the information
of his sister's death by burning in her inlaws house. When he reached to the
matrimonial house of the deceased, her
484 INDIAN LAW REPORTS ALLAHABAD SERIES
father-in-law Daya Shanker met and told
his sister had died. He immediately moved
to the police station, gave the written
information of the incident to lodge the
First Information Report. This witness
when confronted stated that before the
marriage, no terms of dowry were settled
but when his sister came from her
matrimonial house to her paternal home,
she told about the demand of motorcycle in
dowry. P.W.-1 was further confronted as to
when the said demand was made, he
replied that the demand was made in the
very year in which the marriage of Islawati
was solemnized. This witness in the cross
examination, thus, had proved that the
demand of motorcycle in dowry was made
to the deceased Islawati soon after her
marriage.

30. Contrary to this proved fact when
the accused persons were confronted with
the same, they simply stated that marriage
of Islawati with accused Sanjay Kumar was
solemnized 8 years ago from the date of
alleged incident. Except this bare statement
under Section 313 Cr.P.C., neither any
inconsistency could be carved out in the
cross examination of prosecution witness
that the solemnization of marriage 8 years
prior to the date of the incident nor the
accused had adduced any evidence to prove
their version.

31. In the cross examination of P.W.-
1, it has come that the deceased Islawati
was educated up to 10th standard, a query
was then made to PW-1 whether any letter
was written by her in relation to the
demand of dowry which he denied. But
P.W.-2 also denied the suggestion that
letter was not written as there was no such
demand nor any cruel treatment in
connection with demand of dowry was ever
made to her.

32. So far as the threat of life if the
demand of motorcycle as dowry is
concerned, PW-4, the sister-in-law of the
deceased stated that deceased Islawati
when visited her house, shared the trouble
she was facing relating to the demand of
dowry and cruel treatment by her in-laws in
connection with the said demand. P.W.-4
stated that the deceased also shared the
threat given to her that if the demand of
motorcycle was not fulfilled, she (Islawati,
the deceased) would be killed and second
marriage would be performed. In the cross
examination
also
P.W.-4
stood
uncontradicted and consistent with her
statement as to the threat of life to deceased
Islawati. The other witnesses of fact PW-2
and PW-3 also stated that the deceased had
shared threat to her life given by the
accused persons in case the demand of
motorcycle in dowry was not fulfilled. PW2 and PW-3 Shyam Karan stated that their
younger brother Mani Ram (PW-1) used to
visit their sister in her matrimonial house
frequently and he then became conversant
with the fact of demand of dowry and
subsequently killing of deceased. By oral
evidence, the witnesses PW-1, PW-2, PW3 and PW-4 had proved the demand of
motorcycle in dowry and also torture and
beating of the deceased in connection with
the said demand.

33. Anything contrary to the said
proved facts could not be carved out. Even
no evidence had been adduced in defence.

UNNATURAL
DEATH
AND
MEDICAL EVIDENCE

34. The witnesses of fact, namely,
PW-1 to PW-4 proved that they came to
know that her sister was burnt and killed by
her in-laws when PW-1 rushed to know
about the well being of her sister and
6 All. Sanjay Kumar Vs. State of U.P.
485
reached her matrimonial house, her fatherin-law informed that she had died. Neither
the accused informed the unnatural death of
the deceased nor they took her to the
hospital to get her all possible treatment.
This conduct is also a relevant fact which
lead to an inference that the unnatural death
was caused due to burn injuries caused by
her in-laws and the motive was unfulfilled
demand of motorcycle in dowry.

35. The inquest of the dead body after
registration of the First Information Report
on 27.08.2000 was done on 28.08.2000.
The informant of the incident was Mani
Ram Chaudhary PW-1 and no in male from
the matrimonial house of the deceased. The
spot of the incident of burning and death of
the deceased, as described in the inquest
report, is the matrimonial house of the
deceased. The prima facie reason of
unnatural death is assigned in the inquest
report to the accused that they caused death
by burning. The inquest proceeding is
proved by the witness of the inquest,
namely, Radhey Shyam as PW-5. He
proved his signature on the inquest
proceeding marked as Exhibit Ka-3. This
witness also proved the collection of blood
stained soil from the spot of the incident
and plain earth soil therefrom by the
Investigating Officer. The memo of the
aforesaid is proved by him as Exhibit
3Ka/5. This witness has further stated that
on the spot, at the time of the inquest, a
container of kerosene oil was also found
and the recovery memo was prepared by
the Investigating Officer and he witnessed
the recovery by making the signature on
memo marked as Exhibit 3K/6. Apparently,
according to this witness, no apparent
injury was found on the burnt body but in
view of the fact, collecting blood stained
soil from the spot, the aforesaid portion of
the statement suffers from obscurity. The
body was, however, sent for the postmortem.

36. The post-mortem examination
was done on 29.08.2000 about 4:00 p.m.
The doctor PW-7 observed that the dead
body was 2 to 3 days old and the deceased
was about 26 years of age. He observed the
condition of the body as follows:

"Body swolen, both eyes, skin
pealed off at places bulges out conjunctiva
congested. Tongue protruded out of mouth
4cm in length. Abdomen burst open,
intestine coming out. Protruded tongue is
blackened due to partial burn. Tip of the
tongue lacerated. Indentation of teeth
present in lower surface of tongue."

37. The ante-mortem injuries found
on the body are:

(I) contusion on the left side of
the face of 6cmx4cm just interior to left ear

(ii) contusion on the back of head
5cmx4cm

(iii) contusion upper part of chest
22cmx15cm

(iv) contusion 6cmx4cm front of
the upper left arm from above left elbow.

38. The doctor had opined that postmortem burn was present all over the body.
Scorching of hair present on the head scalp,
most of hair were completely burnt. The
smell of kerosene oil present on scalp hair
and remaining part of cloth. The right
cornua of hyoid bone was fractured.
Extravascular of blood muscles present. On
the internal examination of the dead body,
the doctor found a wound on the head, the
liquification of the brain started. No smoky
486 INDIAN LAW REPORTS ALLAHABAD SERIES
particles were present in the Bronchi.
Lungs
were
congested,
pericardium
congested, heart both chambers empty, the
abdominal was ruptured and intestines were
coming out. Stomach empty, saces and
pulpy matter present in small intestine gas
faecal matter present. Putrifacation of liver
started. The doctor had opined that the
death of the deceased was caused by result
of asphyxia due to strangulation of neck.
This report was proved by doctor as Exhibit
K-6

39. In the cross examination, PW-7
had denied any ligature mark on the neck
of the deceased and no mark of fingers or
thumb were also found.

40. The burn injuries and scars on the
dead body were opined by PW-7, the
doctor
as
post-mortem
injuries
i.e.
subsequent to the killing of the deceased.
On a suggestion, the doctor stated that if
after death clothes of the deceased caught
fire, post mortem burn could occur. It is
also apparent from the internal examination
that there were no smoke particles in the
bronchea. This clearly shows that when the
body was being burnt, the victim was not in
a vital condition or alive so as to inhale the
smoke particles. Likewise, the autopsy
fining post-mortem burn all over body.
Ante-mortem injuries found on the person
of the deceased is attributable to the violent
death. The presence of acclerants used and
violent sings are factors indicating ''post
mortem
burning'
following
homicidal
death. The above fact reflecting from the
post-mortem examination and the opinion
of doctor clearly proved the homicidal
death of the deceased and, thereafter,
burning of the dead body by the accused.

41. On going through the report of the
inquest coupled with the post-mortem
examination, it is established that the
deceased was first beaten brutally then she
was strangulated and finally when she died,
her body was tried to emulate in fires
pouring kerosene oil on it. The antemortem injuries mentioned in the postmortem report, collection of blood stained
soil reported in the inquest by the
Investigating Officer are sufficient to
establish the offence of torturing, beating
and cruelly committed on the deceased
soon before her death by the accused. The
ante-mortem
injuries
reveal
that
the
deceased was subjected to extreme cruelty
soon before her death, particularly in
proximity to the death caused by the
accused.

42. The Import of the provisions of
Section 498A, 304-B IPC and Section 113B of the Indian Evidence Act has been
explained in several decisions of the Apex
Court. In Bansi Lal Vs. State of Haryana
[(2011) 11 SCC 359], it has been held that:

"17. While considering the case
under Section 498-A (Sic. Section 304-B),
cruelty has to be proved during the close
proximity of time of death and it should be
continuous
and
such
continuous
harassment, physical or mental, by the
accused should make life of the deceased
miserable which may force her to commit
suicide."

43. In Maya Devi and Anr. Vs. State
of Haryana [(2015) 17 SCC 405], it was
held that:

"23. To attract the provisions of
Section 304-B, one of the main ingredients of
the offence which is required to be
established is that "soon before her death"
she was subjected to cruelty or harassment
"for, or in connection with the demand for
6 All. Sanjay Kumar Vs. State of U.P.
487
dowry". The expression "soon before her
death" used in Section 304-IPC and Section
113-B of the Evidence Act is present with the
idea of proximity test. In fact, the learned
Senior Counsel appearing for the appellants
submitted that there is no proximity for the
alleged demand of dowry and harassment.
With regard to the said claim, we shall advert
to while considering the evidence led in by
the prosecution. Though the language used is
"soon before her death", no definite period
has been enacted and the expression "soon
before her death" has not been defined in
both the enactments. Accordingly, the
determination of the period which can come
within the term "soon before her death" is to
be determined by the courts, depending upon
the facts and circumstances of each case.
However, the said expression would normally
imply that the interval should not be much
between the cruelty or harassment concerned
and the death in question. In other words,
there must be existence of a proximate and
live link between the effect of cruelty based
on dowry demand and the death concerned.
If the alleged incident of cruelty is remote in
time and has become stale enough not to
disturb the mental equilibrium of the women
concerned, it would be of no consequence."

44. On the basis of the evidence led
by the prosecution, we find that there is
sufficient
linking
of
the
chain
of
circumstances which produce the following
picture of the entire incident from the very
inception till the end, namely:-

(I) The deceased "Islawati" was
married with accused Sanjay S/o Daya
Shanker and Dhanpati 5 years prior to the
date
of
the
incident
occurred
on
28.07.2000;

(ii) The body of the deceased was
found in the matrimonial house of the
deceased in the burnt state and there are
consistent evidence that the death was
caused otherwise than under normal
circumstances;

(iii) The deceased was at her
matrimonial house prior and at the time of
her death;

(iv) The information of the death
of the deceased was not given to her
brother;

(v) The deceased was subjected
to assault and cruel treatment by the
accused person who is her husband;

(vi) The act of cruelty and
harassment was in connection with the
demand of dowry and was made soon
before her death.

NO
EXPLANATION
BY
THE
ACCUSED

45.

All
the
incriminating
circumstances were put to the accusedappellant Sanjay who while denying them
being false offered an explanation that he
was falsely implicated due to enmity. To
the question as to whether he wanted to
produce any defence, the answer was ''yes'.
However, no defence was produced by
accused Sanjay. The defence witness D.W.-
1 was produced to support of plea of alibi
of co-accused Ram Singh who is not before
us. Absolutely no explanation was offered
by the appellant Sanjay as to what had
happened in the house on the fateful day,
admittedly wherein he was present.

46. It is proved that the deceased was
normally living in her matrimonial house
with her husband accused Sanjay Kumar
prior to the incident in question, her dead
488 INDIAN LAW REPORTS ALLAHABAD SERIES
body was found with several wounds,
injuries and signs of torture and beating on
it including the evidence of strangulation
and the death was caused by asphyxia
which is proved. In such circumstances
what happened in the matrimonial house
with the deceased and how the wounds and
injuries were sustained on the person of the
deceased as ante-mortem injuries are the
facts, particularly within the knowledge of
the accused-Sanjay as there is absolutely no
evidence on record nor it was alleged that
he was not present in the house on the
fateful day when the deceased was alive
just prior to the incident, no explanation at
all had been offered by the accused despite
opportunity given to him.

47. The prosecution has discharged its
initial burden beyond all reasonable doubt
that the murder of deceased Islawati was
committed
in
the
secrecy
of
her
matrimonial house wherein accused Sanjay
was normally residing with her. The dead
body was found with signs of beating and
cause of death reported is asphyxia by
strangulation. The presence of accused with
the deceased when she was alive is proved
beyond doubt. Resultantly, under Section
106 of Evidence Act, 1872, there is a
corresponding burden on the accusedhusband to give cogent explanation as to
how the crime was committed. The
appellant cannot get away by keeping
mum.

48. In the Case of Trimukh Maroti
Kirkan Vs. State of Maharashtra [(2006)
10 SCC 681], the Apex Court in para 14
and 15 has held as under:

"14. If an offence takes place
inside the privacy of a house and in such
circumstances where the assailants have all
the opportunity to plan and commit the
offence at the time and in circumstances of
their choice, it will be extremely difficult
for the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
Courts. A Judge does not preside over a
criminal trial merely to see that no
innocent man is punished. A Judge also
presides to see that a guilty man does not
escape. Both are public duties. (See
Stirland v. Director of Public Prosecution
quoted with approval by Arijit Pasayat, J.
in State of Punjab vs. Karnail Singh (2003)
11 SCC 271). The law does not enjoin a
duty on the prosecution to lead evidence of
such character which is almost impossible
to be led or at any rate extremely difficult
to be led. The duty on the prosecution is to
lead such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case.