# Santosh (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 889
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-22
- **Case number:** Criminal Appeal No. 5657 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-in-jail-v-state-of-u-p-46837
- **Pages:** 12

## Headnote

A. Criminal law - Indian Penal Code,
1860 - Sections 300, 302, 304, 498A -
Code of Criminal Procedure - Sections
161, 216, 313 - Dowry Prohibition Act -
Section 3⁄4 - Evidence Act, 1872- Section
106, 114 - Dowry Death - The total
effect of the evidence led and the
documents proved has to be satisfied
before addition or alteration of the
charge. The ingredients of S. 302 of IPC
were not present though charge was framed.
Reliance by the Court on the evidence of
hostile witnesses is permissible but the Court
at least has to be aware that prima facie a
witness who makes different statements at
different times has no regard for truth. (Para
25)

If the testimony of hostile witnesses is to be
made the basis of punishment or conviction,
there must be corroboration. The learned
judge,
unfortunately,
has
come
to
the
conclusion
that
the
hostile
witnesses
mentioned that the death was in the
matrimonial home. (Para 26)

The question which arises before us is that
when no cogent evidence to convict the
accused despite that the learned Judge has
relied on what can be said to be his own
conjectures which are not borne out even on
interpretation of S.106 of the Evidence Act,

## Text

2 All. Santosh Vs. State of U.P.
889
rise to a reasonable notice and opportunity
to the paper owner."

21. The copy of the Khatauni of 136973 Fasli filed by the petitioner alongwith the
supplementary affidavit indicates that the
name of Sarju Singh S/o Vishvanath is
recorded in plot no.4350 which the petitioner
states was recorded on the basis of order
passed by Supervisor Kannoongo but no date
has been disclosed and in plot no.3908 and
3909, the name of Sarju Singh has been
recorded under clause-9 in place of one
Bhagauti Deen on the basis of the order dated
23.02.1965 under PA-10 but in the bottom
the signatures are not clear and the date is not
mentioned. Therefore, it was for the
petitioner to prove that this entry was made
after following the due procedure of law as
prescribed under the Land Records Manual
and was duly communicated to the main
tenant and it was within his knowledge. But
he has failed to prove it. Therefore the
petitioner is not entitled on the basis of
adverse possession and alleged permissive
possession is also not sustainable as the
petitioner could not show as to how Bhagauti
Deen was representative of family and the
possession of father of petitioner was also not
found in basic year.

22. The Revisional Authority on the basis
of sale of Plot No.4029 of the same Khata by
Rekhai to Akchhaibar Singh has allowed the
revision of the respondents without considering
that the revisionist had taken a plea that the
revisionist had got the land in dispute from
Akchhaibar Singh. It is also not in dispute to the
parties that in the basic year the petitioner and
respondents were not in possession. Therefore
the revisional authority has allowed the revision
without considering as to how the land in
dispute has come to the opposite parties and
whether the claim of the respondents is
sustainable in the eyes of law or not.

23.

The
petitioner
has
filed
supplementary
affidavits
and
certain
documents before this Court to show that the
name of the grand father of petitioner and
representative of the family of the petitioner
was recorded in the third settlement i.e. Soyam
but it was not disclosed before the courts
below.

24. In view of above, this Court is of the
opinion that the matter is required to be
reconsidered by the Revisional Authority in
accordance with law and in the light of the
observations
made
here-in-above.
The
petitioner may file the documents, filed before
this Court, before the Revisional Authority, for
his consideration in accordance with law while
deciding afresh.

25. The Writ Petition is, accordingly,
partly allowed. The order dated 20.05.1994
passed by Deputy Director of Consolidation,
Sultanpur is hereby quashed. The matter is
remanded
to
Deputy
Director
of
Consolidation, Sultanpur, who shall decide the
revision a fresh within a period of six months
from the date of production of certified copy
of this order. No order as to costs.
----------
(2021)02ILR A889
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 5657 of 2011

Santosh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
890 INDIAN LAW REPORTS ALLAHABAD SERIES
Swati
Agrawal
Srivastava,
Sri
Sanjay
Shukla, Sri Kamal Kishore Mishra, Sri
Rakesh Kumar Singh

Counsel for the Opposite Party:
A.G.A.

A. Criminal law - Indian Penal Code,
1860 - Sections 300, 302, 304, 498A -
Code of Criminal Procedure - Sections
161, 216, 313 - Dowry Prohibition Act -
Section 3⁄4 - Evidence Act, 1872- Section
106, 114 - Dowry Death - The total
effect of the evidence led and the
documents proved has to be satisfied
before addition or alteration of the
charge. The ingredients of S. 302 of IPC
were not present though charge was framed.
Reliance by the Court on the evidence of
hostile witnesses is permissible but the Court
at least has to be aware that prima facie a
witness who makes different statements at
different times has no regard for truth. (Para
25)

If the testimony of hostile witnesses is to be
made the basis of punishment or conviction,
there must be corroboration. The learned
judge,
unfortunately,
has
come
to
the
conclusion
that
the
hostile
witnesses
mentioned that the death was in the
matrimonial home. (Para 26)

The question which arises before us is that
when no cogent evidence to convict the
accused despite that the learned Judge has
relied on what can be said to be his own
conjectures which are not borne out even on
interpretation of S.106 of the Evidence Act,
1872. (Para 20)

B. No doubt the stage of framing new
charge u/s 216 of the Cr.P.C. can be at
any stage, but the charge for alteration
or addition has to be so that the accused
is put to circumstance which are against
him. The basic feature for framing
and/or altering charge in criminal trial is
based on principle of fair play. In judging
the question of prejudice as of guilt, the Trial
Court was supposed to act with a broad vision
and look to the substance and not to the
technicalities. The main concern should be to
see whether accused has/had a fair trial
though he may know or not of what he was
being tried for, once the evidence is over, he
would not have a fair chance of crossexamination of the witnesses for the new
charge added which is u/s 302 of I.P.C. and
no evidence was recorded so as to bring
home charge of S. 302 of IPC. (Para 29, 33)

In the situation where demand of dowry and
harassment soon before the death was found
to be lacking, the presumption u/s 113B of
Act, 1872 has not been believed. The learned
Trial Judge in view of the unsupported
evidence has acquitted the accused as well as
other in-laws of the charges under Section
498A, 304B of IPC and Section 3/4 of D.P.
Act, but with the recourse of Section 216 of
Cr.P.C., altered the charge and with a
recourse of Section 106 read with Section 114
of Act, 1872, convicted and sentenced the
appellant alone u/s 302 of IPC as he was the
husband of the deceased. (Para 30, 32, 34)

C. It is well settled by plethora of
judicial pronouncements by this Court
that suspicion, however strong cannot
take the place of proof. An accused is
presumed to be innocent unless proved
guilty beyond reasonable doubt. (Para
42)

The evidence must be such that the guilt of
the accused would have to be proved by
consistent evidence which would be proved by
the attending circumstances from which
cogent evidence would emerge. (Para 43)

The chronology of events as narrated in the
F.I.R. and the depositions of the hostile
witnesses go to show that the accused had
married the deceased. She was his legally
wedded wife. The death took place within seven
years of their marriage. The witnesses who have
turned hostile also conveyed that there were
certain demands. In that view of the matter, the
death having occurred in the house of the
accused, he can be held for the unnatural death
u/s 304B but not u/s 302 of IPC. The converse
cannot be applied as in S. 302, it is for the State
to prove that the accused was guilty of the
charges which were levelled against him. In that
2 All. Santosh Vs. State of U.P.
891
view of the matter, the accused has been held
guilty as he is in jail for a period of more than
10 years. His incarceration can be said to be
enough punishment for him for untimely death
of his legally wedded wife. (Para 44, 45)

S. 304B of IPC does not categorize death. It
covers every kind of death that occurred
otherwise than in normal circumstances. The
deeming fiction is invoked. The onus on the
accused, in-laws or the husband to show
otherwise is on them. The onus u/s 302 is on
the prosecution. (Para 48)

Appeal partly allowed. (E-3)

Precedent followed:

1. L.S. Rao Vs St. of A.P., 2004 (3) Crl. 70 SC
(Para 9)

2. Babu Vs Babu, 2003 (3) Crl. 285 SC (Para 9)

3. Shanker Vs St. of Karn., 2003 (1) Crl. 44 SC
(Para 9)

4. R. Rachaiah Vs Home Secretary, 2016 0
Supreme (SC) 383 (Para 10)

5. Dharmendra Rajbhar Vs St. of U.P, Criminal
Appeal No. 234 of 2017, decided on 19.01.2021
(Para 10)

6. Trimukh Maroti Kirkan Vs St. of Mah., (2006)
10 SCC 681 (Para 12)

7. St. of Guj.Vs B.L. Dave, Criminal Appeal 99 of
2021, decided on 02.02.2021 (Para 16)

8. St. of Raj. Vs Bhawani, AIR 2003 SC 4230
(Para 25)

9. Sanjay Maurya Vs St. of U.P., Criminal Appeal
No. 3660 of 2013, decided on 29.01.2021 (Para
28)

10. Nallapareddi Sridhar Reddy Vs St. of A.P.,
(2020) 12 SCC 467 (Para 31)

11. St. of Orissa Vs Banabihari Mohapatra,
Special Leave to Petition (Crl.) No. 1156 of
2021, (Coram: Hon'ble Mrs. Justice Indira
Banerjee and Hon'ble Mr. Justice Hemant
Gupta), reported in Live Law 2021 SC 103 (Para
42)

12. Preetpal Singh Vs St. of U.P.& anr., (2020) 8
SCC 645 (Para 48)

Precedent distinguished:

1. Sahabuddin & anr. Vs St. of Assam, (2012)
13 SCC 213 (Para 12)

2. Smt. Krishna Vs St. of U.P., 2017 (100) ACC
774 (Para 12)

3. Kalu @ Laxminarayan Vs St. of M.P. (2019)
10 SCC 211 (Para 12)

Present appeal challenges judgment and
order
dated
06.09.2011,
passed
by
Additional Sessions Judge/Special Judge
(E.C. Act), Gorakhpur.

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
& Hon'ble Gautam Chowdhary, J.)

1. Heard Mrs. Swati Agrawal
Srivastava,
learned
counsel
for
the
appellant, Sri Nagendra Kumar Srivastava
and Sri Rupak Chaubey, learned A.G.As
for the State.

2. The present appeal challenges the
judgment and order dated 6.9.2011 passed
by
Additional
Sessions
Judge/Special
Judge (E.C. Act), Gorakhpur in Sessions
Trial No.68 of 2010 convicting and
sentencing the appellant alone under
Section 302 of Indian Penal Code, 1860
(hereinafter referred to as 'IPC') for life
imprisonment with fine of Rs.2,000/- and,
in case of default of payment of fine,
further to undergo imprisonment for one
month.

3. Factual data as culled out from the
record is that a First Information Report
being Case Crime No.664/2009 was lodged
892 INDIAN LAW REPORTS ALLAHABAD SERIES
on 18.4.2009 at Police Station Khorawar,
Gorakhpur on the complaint made by one
Jitendra Kumar Sahani s/o Dheesh Rawat,
resident of Domar Ghat, Police Station
Khajni, Gorakhpur who stated that his
sister was married to Santosh s/o
Bhagwan Kewat, Village Dumri Tola
Bakhariya, P.S. Khorawar, Gorakhpur
three years ago and in the F.I.R. it was
mentioned that the in-laws of the
deceased
were
demanding
sum
of
Rs.50,000/- time and again and when
their demands were not fulfilled, his
sister was being harassed and on the
intervening night of 17/18.2.2009 at
about 2.00 a.m. the accused-appellant
along with Jhinak, Bhagwan, Rajmati and
Tetari did the death of her sister by
strangulating
her
with
saree
and
thereafter hanged her.

4. On the aforesaid F.I.R., the
investigation was moved into motion.
The red saree which was mentioned in
the F.I.R. was recovered. The dead
body was sent for postmortem and
wherein it was opined that the cause of
death
was
asphyxia
due
to
strangulation. The Investigation Officer
recorded the statements of several
witnesses under Section 161 of Cr.P.C.
and submitted the charge-sheet against
the accused-appellant as also against
Bhagwan and Rajmati under Sections
498A, 304 B of I.P.C. 3/4 of Dowry
Prohibition Act.
The accused were facing charges which
were exclusively triable by the Court of
Sessions,
hence,
the
case
was
committed to the Court of Sessions.

5. On being summoned, all the
three accused pleaded not guilty and
wanted to be tried, hence, the trial
started and the prosecution examined
about 13 witnesses who are as follows:

1
Jitendra
Kumar
Sahani
PW1
2
Ghisrawan
PW2
3
Sumitra
Devi
PW3
4
Dhanwanti
Devi
PW4
5
Pana Devi
PW5
6
Chikhuri
Prasad
PW6
7
Dr.
V.P.
Singh
PW7
8
Jayanti
Pd.
Sharma
PW8
9
Bhim
PW9
10 Triloki
PW 10
11 Vishwajeet
Srivastava
PW11
12 Brijesh
Kumar
Mishra
PW 12
13 Ram Pyare
PW 13

In support of ocular version following
documents were filed:

1
Written
Report
Ex.Ka.1
2
F.I.R.
Ex.Ka.3
3
Recovery
memo
Ex. Ka. 13
4
Postmortem
Report
Ex. Ka.5
2 All. Santosh Vs. State of U.P.
893
5
Panchayatna
ma
Ex.Ka.2
6
Chargesheet
Ex. Ka.11

6. A very strange fact requires to be
mentioned here that the accused were
originally charged with commission of
offences under Section 498A, 304B of IPC
and Section 3/4 of D.P.Act. The charge was
framed on 30.4.2010 and witnesses number
1 to 12 were examined on oath. P.W.11
was examined on 22.3.2011. The learned
Judge who had framed the charge on
30.4.2010
was
Mr.
K.K.
Pandey.
Unfortunately, for the appellant who had
settled the dispute with the other side met
with Sri Lukmanul Haq, learned Additional
Sessions
Judge
who
without
any
application, of his own decided to have
charge
substituted/altered
after
oral
testimony of maximum witnesses was
recorded and charged all the three accused
with Section 302 read with Section 34 of
I.P.C.

7. The learned ASJ/Special Judge, after
examining P.W.12, all of a sudden, altered
and framed additional charge on 14.7.2011
and put the accused-appellant herein and
other two co-accused to question under
Section 313 of Cr.P.C. on 26.7.2011 and
12.8.2011 which means that the learned
Judge did not re-examine any of the
witnesses except P.W.13 namely I.O and no
fresh evidence was led pursuant to alteration
of charge.

8. It appears that the learned judge who
had subsequently taken charge of the matter
had made up his mind that despite there being
no evidence which proved the guilt against
the accused-husband. The learned judge
convicted the accused-appellant on the basis
of what is known as morale conviction. This
is the submission made by learned counsel
for the appellant.

9. It is submitted by learned counsel for
the appellant that the learned judge has
misread the judgment of the Apex Court in
L.S. Rao Vs. State of Andhra Pradesh,
2004 (3) Crl. 70 SC and has come to the
conclusion that the death occurred in
matrimonial home of the deceased and
therefore, provisions of Section 114 of the
Evidence Act would be attracted and has
come to the conclusion that Santosh has not
discharged the burden of proof cast on him
that at the time of incident he was not at
home (place of incidence). It is submitted that
the learned Judge had heavily relied on the
decisions titled Babu Vs. Babu, 2003 (3)
Crl. 285 SC and Shiv Shanker Vs. State of
Karnataka, 2003 (1) Crl. 44 SC. The
learned judge even came to the conclusion
that police had no reason to file a false
charge-sheet and that is why he convicted the
accused-husband under Section 302 of I.P.C.
for life and acquitted the other two accused.

10. Learned counsel for the appellant
has contended that the charge could not
have been altered in the fashion and in the
manner in which it has been done which
has acted prejudicial to the appellant herein
and learned counsel has relied on the
decision in R. Rachaiah Vs. Home
Secretary, 2016 0 Supreme (SC) 383 and
decision of this Court in Criminal Appeal
No.234 of 2017 (Dharmendra Rajbhar
Vs. State of U.P.), decided on 19.1.2021 so
as to contend that accused requires to be
given benefit of doubt as the prosecution
has failed to prove the circumstances
connecting accused to death of deceased.

11. Learned counsel for the State has
vehemently submitted that the burden of
894 INDIAN LAW REPORTS ALLAHABAD SERIES
proof has been shifted on the accused as
per Section 106 of the Evidence Act, 1872
as the death was unnatural and at the
dwelling place of husband.

12. Learned A.G.A. has relied on the
cases titled (1) Trimukh Maroti Kirkan vs.
State of Maharashtra, (2006) 10 SCC 681,
(2) Sahabuddin and another Vs. State of
Assam, (2012) 13 SCC 213, (3) Smt.
Krishna Vs. State of U.P., 2017 (100) ACC
774, (4) Kalu alias Laxminarayan Vs. State
of Madhya Pradesh, (2019) 10 SCC 211 to
contend that the judgment cannot be found
fault with.

13. Heard the learned counsel for the
parties and perused the judgment and order
impugned.

14. While considering the decision of
the Court below, we would have to go
through the evidence of the hostile witnesses
though they have scantly supported the case
of the prosecution. The learned judge has
relied on their testimonies.

15. The postmortem report has been
proved by P.W.7 who has conducted the
postmortem report. According to him, the
body had boils at several places, the face
had blue spot, on neck also there was
injury, the brain was liquefied, the
respiratory tract was deeply congested and
there was faecal matter. The death was,
according to P.W.7, due to asphyxia and
had occurred three days before the date on
which postmortem was carried out. Even in
his cross-examination, he has accepted that
the death was due to strangulation. On the
basis of this evidence, it can be said that the
death of the deceased was homicidal.

16. We are sifting the evidences led in
view of the recent decision of the Apex
Court in Criminal Appeal 99 of 2021
(State of Gujarat Vs. B.L.Dave) decided
on 2.2.2021.

17. Investigation of the case had taken
place and the charge-sheet was laid under
Section 498A, 304B of IPC and Section 3/4
of
D.P.Act.
Learned
Sessions
Judge
acquitted two accused and also the present
appellant for charges under Section 498A,
304B of IPC and Section 3/4 of D.P.Act
but as we can see, convicted the accused
under Section 302 of IPC after altering the
charge.

18. It is further submitted by learned
counsel for the appellant that once Trial
Court came into conclusion that when no
offence was committed under Section 498A
of IPC, the presumption under Section 114
of Evidence Act, 1872 could not be raised.

19. It would be pertinent to reproduce
Section 216 of Cr.P.C. regarding alteration
of charge which reads as follows:

"216. Court may alter charge.

(1)Any Court may alter or add to
any charge at any time before judgment is
pronounced.

(2)Every
such
alteration
or
addition shall be read and explained to the
accused.

(3)If the alteration or addition to
a
charge
is
such
that
proceeding
immediately with the trial is not likely, in
the opinion of the Court, to prejudice the
accused in his defence or the prosecutor in
the conduct of the case, the Court may, in
its discretion, after such alteration or
addition has been made, proceed with the
trial as if the altered or added charge had
been the original charge.

(4)If the alteration or addition is
such that proceeding immediately with the
2 All. Santosh Vs. State of U.P.
895
trial is likely, in the opinion of the Court, to
prejudice the accused or the prosecutor as
aforesaid, the Court may either direct a
new trial or adjourn the trial for such
period as may be necessary.

(5)If the offence stated in the
altered or added charge is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained, unless
sanction has been already obtained for a
prosecution on the same facts as those on
which the altered or added charge is
founded

20. The question which arises before us
is that when no cogent evidence to convict
the accused despite that the learned Judge has
relied on what can be said to be his own
conjectures which are not borne out even on
interpretation of Section 106 of the Evidence
Act, 1872 (hereinafter referred to as 'Act,
1872') which reads as follows:

"106. Burden of proving fact
especially within knowledge.--When any fact
is especially within the knowledge of any
person, the burden of proving that fact is
upon him. Illustrations

(a)When a person does an act with
some intention other than that which the
character and circumstances of the act
suggest, the burden of proving that intention
is upon him.

(b)A is charged with travelling on a
railway without a ticket. The burden of
proving that he had a ticket is on him."

21. Section 113B and 114 of the Act,
1872 reads as follows:

".1[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).]."

114 Court may presume existence
of certain facts. --The Court may presume
the existence of any fact which it thinks likely
to have happened, regard being had to the
common course of natural events, human
conduct and public and private business, in
their relation to the facts of the particular
case.

22. Provisions of Section 106 and 114
of Act, 1872 were raised by the learned
Judge below but oral and other reliable
evidence would not permit this Court to
raise
such
presumption
as
the
said
presumption is rebuttable. The fact that the
deceased died in the matrimonial home is
not in dispute but whether it was accused
who authored the act which would fulfill
the ingredients of Section 300 of IPC and
whether it would fall within its purview,
such presumption cannot take place of
proof. The learned judge with utmost
respect could not have convicted the
accused under Section 302 of I.P.C. on
evidence which was not laid or rather the
evidence which was led, was never put to
him under Section 313 of Cr.P.C statement
and, therefore, he was taken off guard. The
presumption under Section 106 of Act,
1872 will not also come to the aid of the
prosecution as it was not proved beyond
reasonable doubt that the charge which was
added did not even mention the satisfaction
of the learned Judge below and the
conviction was not from major to minor but
was from minor to major offence.
896 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The submission of learned A.G.A.
is that no objection was raised at the time
of alteration of charge.

24. We may hasten to mention here
that the charge was added at the fag end of
the trial. The accused could not have
thought that the said alteration of charge
would be acted upon within seven days and
the trial would culminate into returning the
finding of punishment to him under Section
302 of IPC though the evidence was not
completing the right of 1872, Act.

25. The total effect of the evidence
led and the documents proved has to be
satisfied before addition or alteration of the
charge. The ingredients of Section 302 of
IPC were not present though charge was
framed. Reliance by the Court on the
evidence of hostile witnesses is permissible
but the Court at least has to be aware that
prima facie a witness who makes different
statements at different times has no regard
for truth. Reliance can be placed on the
decision in State of Rajasthan Vs.
Bhawani, AIR 2003 SC 4230.

26. If the testimony of hostile
witnesses is to be made the basis of
punishment or conviction, there must be
corroboration.
The
learned
judge,
unfortunately, has come to the conclusion
that the hostile witnesses mentioned that
the death was in the matrimonial home.
The question is, can this statement be
sufficient to convict the accused under
Section 302 of IPC? The answer is, no.

27. In our case, we can safely hold
that the alteration of charge was bad and
reliance is placed on the decision in R.
Rachaiah (Supra) which will apply in full
force.

28. We are pained to state that this is
the second case which is similar to the case
recently decided namely in Criminal
Appeal No. 3660 of 2013 (Sanjay Maurya
Vs. State of U.P.) decided on 29.1.2021,
on which, heavy reliance is being placed by
learned counsel for the appellant.

29. In judging the question of
prejudice as of guilt, the Trial Court was
supposed to act with a broad vision and
look to the substance and not to the
technicalities. The main concern should be
to see whether accused has/had a fair trial
though he may know or not of what he was
being tried for, once the evidence is over,
he would not have a fair chance of crossexamination of the witnesses for the new
charge added which is under Section 302 of
I.P.C. and no evidence was recorded so as
to bring home charge of Section 302 of
IPC. No doubt the stage of framing new
charge under Section 216 of the Cr.P.C.
can be at any stage, but the charge for
alteration or addition has to be so that the
accused is put to circumstance which are
against him. The basic feature for framing
and/or altering charge in criminal trial is
based on principle of fair play.

30. The charges which were levelled
and in absence of any evidence, being
proved and when there was no charge of
murder, the Trial Court could not have
altered the charge at the fag end of the Trial
and raised presumption as to commission
of offence under Section 302 of IPC.

31. The object and scope of altering
the charge and the principles therein have
been summarized by the Apex Court in
Nallapareddi Sridhar Reddy Vs. State of
A.P., (2020) 12 SCC 467 which are
applicable in our case.
2 All. Santosh Vs. State of U.P.
897

32. In this case, the learned Trial
Judge perused the charges and suddenly
after most of the witnesses were examined
and when it appeared that he could not base
the conviction, on the basis of presumption
under Section 106 and 114 of the Evidence
Act, 1872, he altered the charge to Section
302 of I.P.C.

33. The Apex Court in R. Rachaiah
Vs. Home Secretary, 2016 0 Supreme
(SC) 383 has held that alteration of charge
in violation of mandate as per Sections 216
and 217 of Cr.P.C., and conviction
recorded under altered charges seriously
causes prejudice to the accused. Thereafter,
this impropriety of the Trial Court stands
vitiated and there could have been no
conviction under altered charge namely
under Section 302 of IPC.

34. In the situation where demand of
dowry and harassment soon before the
death was found to be lacking, the
presumption under Section 113B of Act,
1872 has not been believed. The learned
Trial Judge in view of the unsupported
evidence has acquitted the accused as well
as other in-laws of the charges under
Section 498A, 304B of IPC and Section 3/4
of D.P.Act, but with the recourse of Section
216 of Cr.P.C., altered the charge and with
a recourse of Section 106 read with Section
114 of Act, 1872, convicted and sentenced
the appellant alone under Section 302 of
IPC as he was the husband of the deceased.

35.

Recently,
this
Court
in
Dharmendra Rajbhar Vs. State of U.P.
(Supra)
in
similar
situation
has
considered legal position as far as Section
106 of the Act, 1872 is concerned. We do
not want to burden our judgment with
reproduction of the said findings and
analysis except para 40 of the said
judgment wherein the Court has held as
under:

"40. Section 101 to Section
114A of Chapter-VII of the Indian
Evidence Act, 1872 deal with subject "OF
THE BURDEN OF PROOF." Section 106
of the Indian Evidence Act provides that
when any fact is especially within the
knowledge of any person, the burden of
proof to prove that fact is upon him.
Section 106 is an exception to Section
101 of the Evidence Act which stipulates
that whoever desires any Court to give
judgment as to any legal right or liability
dependent on the existence of facts which
he asserts must prove that those facts
exist. Section 106 of the evidence act has
to be read in conjunction with and not in
derogation of Section 101 Evidence Act.
Section 106 of the Indian Evidence Act
does not relieve prosecution of it's
primary and foremost duty to establish
the guilt of the accused beyond all
reasonable
doubts
independent
of
weaknesses of the defence. It is only when
prosecution, for well perceptible and
acceptable reasons, is unable to lead
evidence
because
of
circumstances
beyond it's control including the reason
that the fact required to be proved was
"within the special knowledge of an
accused alone" and prosecution could not
have known it by due care and diligence,
that Section 106 can be resorted to by
shifting burden on the accused to disclose
that fact which is "in his special
knowledge" and if accused fails to offer
any reasonable explanation to satiate
judicial inquisitive scrutiny, he is liable
to be punished. Section 106 is not meant
to be utilized to make up for the
prosecution's inability to establish its
case by leading, cogent and reliable
evidence"
898 INDIAN LAW REPORTS ALLAHABAD SERIES

36. What is the situation in the present
case? Considering the testimony which has
come before us, we are unable to subscribe
ourselves to the submission of learned
A.G.A. that the decision in Sahabuddin
and another (Supra) would apply to the
facts of this case. In the said matter the
Apex Court has sifted the evidence of
entrusted witnesses who had not turned
hostile and the evidence was corroborated.
In our case, there is lack of proper
evidence, there was no credible evidence
available and the statement under Section
313 Cr.P.C. also does not give accused
proper chance.

37. The judgment in R. Rachaiah
(Supra) would be applicable to the facts of
this case in contradiction with the judgment
relied upon by learned A.G.A in the case of
Kalu alias Laxminarayan and in Smt.
Krishna (Supra).

38. In our case, there is no dying
declaration. The demand of dowry was not
established. In Smt. Krishna (Supra), the
High Court has felt that it is not necessary for
the Court to reexamine all the witnesses and
the burden gets shifted on the accused. Had
the learned judge decided to convict the
accused under Section 304B of IPC, the said
judgment would have been helpful to the
State.

39. The decision of the Apex Court in
Trimukh Maroti Kirkan (Supra) will apply
to the facts of this case though it is nobody's
case that the husband was last seen with the
deceased. It is proved that the husband and
wife were last seen together. No doubt, the
offence was committed in the matrimonial
home but it was near the dwelling house. The
Apex Court has held the conviction of the
accused under Section 304B would be just
and proper.

40. The factual data shows that the
provisions of Section 113 of the Act, 1873 as
submitted by learned A.G.A. for the state can
be raised against the accused that the death
was within the period of seven years. The
depositions of the witnesses though they
became hostile, confirms the fact that the
accused used to demand certain amounts and
that might have been cause of the death of the
deceased.

41. The recovery memo of saree,
postmortem report and the panchayatnama
would permit us to hold the accusedappellant guilty under Section 304B of IPC.
Depositions of P.W.1 to P.W.4 go to show
that the accused can be convicted under
Section 304B of IPC. The acquittal of the
other two accused cannot be disturbed.

42. While penning this judgment, this
Court has come across the judgment of the
Apex Court in the case of Special Leave to
Petition (Crl.) No.1156 of 2021, State of
Orissa
Vs.
Banabihari
Mohapatra
(Coram: Hon'ble Mrs. Justice Indira
Banerjee and Hon'ble Mr. Justice Hemant
Gupta), reported in Live Law 2021 SC 103
wherein the Apex Court has held as under:

"It is well settled by plethora of
judicial pronouncements by this Court that
suspicion, however strong cannot take the
place of proof. An accused is presumed to be
innocent
unless
proved
guilty
beyond
reasonable doubt"

43. The evidence must be such that the
guilt of the accused would have to be proved
by consistent evidence which would be
proved by the attending circumstances from
which cogent evidence would emerge.

44. In our case, there are no evidences
of Section 302 of IPC being fulfilled but at
2 All. Santosh Vs. State of U.P.
899
the same time it would have been much
better for the learned Additional Sessions
Judge to record a finding of no guilt and the
presumption against the accused cannot
take place of evidence for convicting the
accused under Section 302 of IPC but for
304B, a presumption under Section 113 of
the Act, 1872 could have been pressed into
service which we are doing, the reason
being, as we narrated herein above, the
death took place within period stipulated
under the Act.

45. The chronology of events as
narrated in the F.I.R. and the depositions of
the hostile witnesses go to show that the
accused had married the deceased. She was
his legally wedded wife. The death took
place within seven years of their marriage.
The witnesses who have turned hostile also
conveyed that there were certain demands.
In that view of the matter, the death having
occurred in the house of the accused, he
can be held for the unnatural death under
Section 304B but not under Section 302 of
IPC. The converse cannot be applied as in
Section 302, it is for the State to prove that
the accused was guilty of the charges which
were levelled against him. In that view of
the matter, we have held the accused guilty
as he is in jail for a period of more than 10
years. His incarceration can be said to be
enough punishment for him for untimely
death of his legally wedded wife.

46. The decisions cited by learned
A.G.As would have permitted us to
upturn the finding under Section 304B of
IPC but in case of Section 302, we must
have what is known as credible evidence
before convicting the accused. In our case
the variation of evidence relating to all
the
aspects
make
the
conviction
vulnerable under Section 302 of IPC.

47. The judgment in Sanjay
Maurya Vs. State of U.P. (Supra) will
also come to the aid of the accused.

48. However, in this case, as there is
no
dying
declaration,
though
the
presumption could have been raised and
as the accused has been in jail for more
than 10 years and as the State has not
preferred the appeal as the conviction was
under Section 302 of IPC, we hasten to
convict the accused under Section 304B
of IPC. The reason being, it is a crime
against women and children. We are
supported in our view by the recent
decision in Preetpal Singh Vs. State of
U.P. and another, (2020) 8 SCC 645
which we have decided to apply to the
facts of this case, reason being, Section
304B of IPC does not categorize death. It
covers every kind of death that occurred
otherwise than in normal circumstances.
The deeming fiction is invoked by us.
The onus on the accused, in-laws or the
husband to show otherwise is on them.
The onus under Section 302 is on the
prosecution.

49. We have no other option but to
acquit the accused under Section 302 of
I.P.C. as this is a case of no evidence.

50. The deceased died of unnatural
death which would have been a case of
Section 304B but the learned Judge has
come to the conclusion that it was not the
case of Section 304B of IPC but of
Section 302 of I.P.C.

51. In the end, we acquit the accusedappellant under Section 302 of IPC and
convict him under Section 304B. The
reason is, the evidence is writ large that the
death occurred within seven years and the
900 INDIAN LAW REPORTS ALLAHABAD SERIES
dead body was found near the dwelling
house of the accused.

52. In view of the above, the appeal is
partly allowed. The accused-appellant is
sentenced to undergo 10 years rigorous
imprisonment. If 10 years of incarceration is
over, he shall be released forthwith, if not
required in any other case. The fine and
default sentence is maintained. The default
sentence to run after 10 years of incarceration
is over. The judgment and order impugned in
this appeal is modified to the aforesaid extent.
Let a copy of this judgment along with the
trial court record be sent to the Court and Jail
Authorities concerned for compliance.
----------
(2021)02ILR A900
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2021

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Misc. Bail Application No. 46273 of
2020

Mohan Shyam ...Applicant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Pankaj Kumar Shukla

Counsel for the Opposite Party:
A.G.A., Sri Sandeep Kumar, Sri Amit Daga

A. Criminal Law -Indian Penal Code -
Sections 107, 147, 307, 504, 506, 306 -
Application for bail - The moot pertinent
question of law is as to whether any
conduct of the applicant would fall within
the ambit of Section 107/306, I.P.C.? (Para
14)

Words
and
Phrases
-
'instigate',
'instigation' - The word instigate literally
means to goad, urge forward, provoke, incite,
encourage to do an act. A person is said to
instigate another person, when he actively
suggests or stimulates him to do an act by
means of language, direct or indirect or whether
it takes the form of expression, solicitation or of
hints
of
incitement
or
encouragement.
Instigation may be in expression, word or may
be simply by conduct of a person creating such
a situation exploiting his position, that the other
person have no other option but to take the
extreme step. Such a person would be liable for
abetment. (Para 15)

Where the accused had, by his acts or omission
or by a continued course of conduct, created
such circumstances that the deceased was left
with no other option except to commit suicide,
in which case, an "instigation" may have to be
inferred. (Para 17)

Before holding an accused guilty of an
offence u/s 306 I.P.C., the court must
scrupulously
examine
the
facts
and
circumstances of the case. It is to be borne
in mind that in cases of alleged abetment of
suicide there must be proof of direct or indirect
acts of incitement to the commission of suicide.
Merely on the allegation of harassment without
there being any positive action proximate to the
time of occurrence on the part of the accused
which led or compelled the person to commit
suicide, conviction in terms of Section 306,
I.P.C. is not sustainable. (Para 18)

In order to bring a case within the
purview of Section 306 of I.P.C. there
must be a case of suicide and in the
commission of the said offence, the
person who is said to have abetted the
commission of suicide must have played
an active role by an act of instigation or by
doing
certain
act
to
facilitate
the
commission of suicide. (Para 18)

It has been contended that the applicant is
completely innocent and at best he could be
liable for not rendering desired assistance to the
informant Jagdish (deceased's son) in pacifying
the situation. The harassment part is attributed
to other co-accused persons (Bablu, Satyapal
and one Shamma). If assuming for the sake of
argument
that
the
dying-declaration
is