# Satendra Kumar (in Jail) v. State of U.P

- **Citation:** (2010) 1 ILRA 226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-25
- **Case number:** Criminal Appeal No. 636 of 2010
- **Bench:** Amar Saran, Shyam Shankar Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satendra-kumar-in-jail-v-state-of-u-p-41560
- **Pages:** 5

## Headnote

Section
302-life
imprisonment
in
addition of fine Rs.1000/-and further
sentenced one year R.1 with fine of
Rs.1000/-death
caused
firstly
by
strangulation than set on fire by the
appellant-incident took place in side the
house-presence of appellant not deniedeye witness turn hostile-even then entire
evidence can not be ignored-considering
gravity of case as well as circumstantial
evidence-not entitled for bail-rejected.

Held: Para 11 & 13

In the present case P.W.1 has supported
the prosecution case in his examination
in chief. His cross-examination was
deferred on the request of accused and
after about 40 days when he again
appeared in the witness box he turned
hostile by disowning his earlier stand.
Apparently it shows that either the
witness has been terrorized or he has
been won over by the accused under
some temptation. In the light of the
observations of the Apex Court the entire
evidence of P.W.1 cannot be rejected.
Rather it has to be scrutinized and
accepted to the extent it supports the
prosecution case and the medical report
also supports it.

It is true that there is no direct eye
account of the death of the deceased and
only the circumstances put forward by
the prosecution have to be scrutinized to
reach
any
conclusion.
From
the
circumstances of the case and the
evidence (oral and documentary) on
record it appears that the cause of death
of the deceased is especially within the
knowledge of the appellant and as per
the provisions contained u/s 106 of the
Indian Evidence Act the burden of
proving that fact is on the appellant.
Case law discussed:
(2009) 1 SCC(Crl) 272, (1976 1 SCC page 389,
(2001) 2 SCC page 205, 2006 Crl.L.J. Page
1121, (1999) 8 SCC page 679, (2006) 10 SCC
page 681.

## Text

226 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

26. In view of above, we are of the
considered opinion that impugned order
dated 12.12.2003 passed in writ petition
no. 42351 of 1997 is liable to be set aside
and it is hereby set aside. In the result the
appeal is allowed. No order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.03.2010

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE SHYAM SHANKAR TIWARI, J.

Criminal Appeal No. 636 of 2010

Satendra Kumar
...Appellant (in Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Appellants:
Sri Ram Singh
Sri A.C. Tiwari

Counsel for the Opposite Party:
G.A.

Criminal
Appeal-Conviction
under
Section
302-life
imprisonment
in
addition of fine Rs.1000/-and further
sentenced one year R.1 with fine of
Rs.1000/-death
caused
firstly
by
strangulation than set on fire by the
appellant-incident took place in side the
house-presence of appellant not deniedeye witness turn hostile-even then entire
evidence can not be ignored-considering
gravity of case as well as circumstantial
evidence-not entitled for bail-rejected.

Held: Para 11 & 13

In the present case P.W.1 has supported
the prosecution case in his examination
in chief. His cross-examination was
deferred on the request of accused and
after about 40 days when he again
appeared in the witness box he turned
hostile by disowning his earlier stand.
Apparently it shows that either the
witness has been terrorized or he has
been won over by the accused under
some temptation. In the light of the
observations of the Apex Court the entire
evidence of P.W.1 cannot be rejected.
Rather it has to be scrutinized and
accepted to the extent it supports the
prosecution case and the medical report
also supports it.

It is true that there is no direct eye
account of the death of the deceased and
only the circumstances put forward by
the prosecution have to be scrutinized to
reach
any
conclusion.
From
the
circumstances of the case and the
evidence (oral and documentary) on
record it appears that the cause of death
of the deceased is especially within the
knowledge of the appellant and as per
the provisions contained u/s 106 of the
Indian Evidence Act the burden of
proving that fact is on the appellant.
Case law discussed:
(2009) 1 SCC(Crl) 272, (1976 1 SCC page 389,
(2001) 2 SCC page 205, 2006 Crl.L.J. Page
1121, (1999) 8 SCC page 679, (2006) 10 SCC
page 681.

(Delivered by Hon'ble S.S. Tiwari, J.)

1. Heard Sri Ram Singh learned
counsel for the appellant and learned
AGA for the State.

2. This criminal appeal has been
filed on behalf of appellant Satendra
Kumar against the judgment and order
passed
by
learned
Addl.
Sessions
Judge/Special Judge (SC/ST(PA) Act) in
Sessions Trial No. 1262 of 2007 in which
appellant has been convicted u/s 302 and
201 IPC and sentenced to undergo
rigorous imprisonment for life u/s 302
IPC, in addition to fine of Rs.1000/- and
in case of default of payment of fine
further
to
undergo
three
months
imprisonment. He has further been
1 All] Satendra Kumar V. State of U.P.

227
sentenced u/s 201 IPC with imprisonment
of one year and a fine of Rs.1000/- and in
default of payment of fine further to
undergo three months imprisonment.

3. Prayer for bail has been made by
the appellant in the above criminal appeal.

4. The prosecution case in brief is
that the deceased Deorani was married
with the appellant Satendra Kumar about
three years prior to this incident. The
appellant along with his other family
members being not satisfied with the
dowry given in the marriage used to
torture her. Ultimately the death of
Deorani was caused by the appellant and
his family members and her body was set
on fire. An FIR was lodged regarding the
above incident at P.S.Chhatari District
Bulandshahr u/s 304B and 498A IPC and
u/s 3⁄4 D.P. Act against the appellant and
other accused. The case was investigated
by the Investigating Officer and charge
sheet was submitted against the appellant
and others under the aforesaid sections.

5. After committal of the case,
charges u/s 498A IPC,304B IPC and
Section 3/4 Dowry Prohibition Act were
framed against the accused. The learned
trial court framed charges u/s 302/201
IPC also against the appellant and others
in the alternative. Relying upon the
evidence adduced on record the learned
trial court recorded the finding of
conviction against appellant Satendra
Kumar as stated above and other coaccused persons were acquitted.

6. It is contended by learned counsel
for the appellant that FIR of this case is a
tainted document as it was not registered
on the information or dictation of the
informant rather it was prepared by some
other person with the connivance of the
police of the police station concerned. It is
also
contended
that
the
deceased
committed suicide. There is no evidence
against the appellant as all the witnesses
of fact produced by the prosecution have
turned hostile and have not supported the
prosecution story. It is also contended that
the trial court itself did not believe the
prosecution story against the accusedappellant and other accused persons
regarding allegations of dowry demand
and torture and consequential death of the
deceased. It has also been contended that
the appellant is a disabled person. He was
not present at his residence at the time of
alleged incident as he runs a Cheap
Ration Shop allotted to him for selling
kerosene and ration.

7. Learned AGA has rebutted the
above argument and submitted that the
evidence of P.W.1, the informant is on
record who has supported the prosecution
case in his examination in chief but
subsequently after a deferred crossexamination he turned hostile. His entire
evidence cannot be brushed aside. It can
be believed to the extent it supports the
prosecution case. It is also contended that
an unnatural death of the deceased took
place inside the house of the appellant. He
was present at his residence at the time of
the incident. The death of the deceased
was caused first and then her body was set
on fire only to give it a colour of suicide.
The post mortem report fully supports the
prosecution case. No carbon particles
were found in the trachea of the deceased.
There was no redness in the skin of the
deceased. The story put forward by
appellant and supported by DW 1
explaining the fracture injury in the hyoid
bone of the deceased is false and an after
thought. The appellant has given a false
228 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

explanation
by
giving
an
incorrect
information to the villagers regarding the
death of the deceased since he has not
disclosed the true facts regarding her
death, a presumption should be shown
against his innocence. There is no
evidence on record that due to his alleged
disability he is unable to do any kind of
work.

8. The Apex Court has time and
again laid down certain principles in the
form of guide lines to be followed by
Courts while evaluating the circumstantial
evidence. But no universal yard-stick can
be laid down in this regard as the facts
and circumstances differ from case to
case. In the case of Ujjagar Singh Vs.
State of Punjab (2009) 1 SCC(Crl) 272
it has been observed by Apex Court as
follows:

"It must more the less be emphasized
that whether a chain is complete or not
would depend on the facts of each case
emanating from the evidence and no
universal yard-stick should even be
attempted."

9. A perusal of the statement of
P.W.1 Kalyan Singh on record reveals
that in his examination in chief he has
fully supported the prosecution case. He
has also proved the written report
submitted by him at the police station as
Ext. Ka-1 but his cross-examination was
got deferred on that date and after about
40 days he was again produced in the
court for further cross-examination and
then he turned hostile and did not support
the prosecution case. On the strength of
these facts it is averred by the prosecution
that deliberately P.W.1 has turned hostile
later on as he has been won over by the
appellant but evidence adduced by him in
the beginning of his statement in the
Court cannot be brushed aside.

10. The Apex Court reiterated its
observation on the evidenciary value of
hostile witness in the case of Bhagwan
Singh Vs. State of Haryana (1976 1
SCC page 389 and again observed in the
case of Gura Singh Vs. State of
Rajsthan (2001) 2 SCC page 205 that it
is a misconceived notion that merely
because a witness is declared hostile his
entire evidence should be excluded or
rendered unworthy of consideration. The
evidence remains admissible in the trial
and there is no legal bar to base the
conviction upon the testimony of such
witness. The same view has been taken by
the Apex Court in the case of Radha
Mohan Singh alias Lal Saheb and others
Vs. State of U.P. 2006 Crl.L.J. Page
1121 wherein it has been observed that
the evidence of a hostile witness cannot
be rejected in toto merely because the
prosecution chooses to treat him as hostile
and cross-examines him. It can be
accepted to the extent his version is found
to be dependable on a careful scrutiny
thereof.

11. In the present case P.W.1 has
supported the prosecution case in his
examination
in
chief.
His
crossexamination was deferred on the request
of accused and after about 40 days when
he again appeared in the witness box he
turned hostile by disowning his earlier
stand. Apparently it shows that either the
witness has been terrorized or he has been
won over by the accused under some
temptation.
In
the
light
of
the
observations of the Apex Court the entire
evidence of P.W.1 cannot be rejected.
Rather it has to be scrutinized and
accepted to the extent it supports the
1 All] Satendra Kumar V. State of U.P.

229
prosecution case and the medical report
also supports it.

12. Admittedly, the deceased
Deorani died inside the house of her
husband. As per the defence case she
committed suicide but the medical report
does not support the defence theory
inasmuch as the post mortem report
reveals that there was a ligature mark on
the front side of the neck in the middle
part in the size of 10cm x 3 cm. and
Echymosis was present under neath and
hyoid bone was also found fractured. It
further reveals that post mortem burn
injuries were found all over the body
except
the
neck,
back,
chest
and
abdomen. No line of redness was found
present nor carbon particles were found in
her trachea and in the opinion of the
doctor death was due to asphyxia as a
result
of
ante
mortem
injuries
of
strangulation. Thus the medical report
belies the theory of suicide by the
deceased put forward by the defence. The
evidence of D.W.1 that the deceased
while in a burning condition crying for
help ran out of her house and collided
with a rope tied with the wall meant for
drying clothes is only an after thought
because only by colliding with a rope
such as ante-mortem injury and a fracture
of the hyoid bone is not possible.
Moreover, after strangulation her dead
body was set on fire as the dead body had
post mortem burn which also shows that it
was not a case of suicide.

13. It is true that there is no direct
eye account of the death of the deceased
and only the circumstances put forward
by the prosecution have to be scrutinized
to reach any conclusion. From the
circumstances of the case and the
evidence (oral and documentary) on
record it appears that the cause of death of
the deceased is especially within the
knowledge of the appellant and as per the
provisions contained u/s 106 of the Indian
Evidence Act the burden of proving that
fact is on the appellant.

14. The Apex Court in the case of
State of Tamil Nadu Vs. Rajendra
(1999) 8 SCC page 679 has observed that
in cases of circumstantial evidence where
the accused omits to offer an explanation
or offers a false explanation in response to
a question regarding an incriminating
circumstance, is an additional link in the
chain of circumstances to make them
complete and the conduct of accused in
such circumstances becomes relevant.

15. In Trimukh Maroti Kirkan v.
State of Maharashtra (2006) 10 SCC
page 681. The Apex Court has held:

"The demand for dowry or money
from the parents of the bride has shown a
phenomenal increase in the last few
years. Cases are frequently coming before
the courts, where the husband or in-laws
have gone to the extent of killing the bride
if the demand is not met. These crimes are
generally committed in complete secrecy
inside the house and it becomes very
difficult for the prosecution to lead
evidence. No member of the family, even
if he is a witness of the crime, would come
forward to depose against another family
member. The neighbours, whose evidence
may be of some assistance, are generally
reluctant to depose in court as they want
to keep aloof and do not want to
antagonize a neighborhood family. The
parents or other family members of the
bride being away from the scene of
commission of crime are not in a position
to give direct evidence which may
230 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

inculpate
the
real
accused
except
regarding the demand of money or dowry
and harassment caused to the bride. But,
it does not mean that a crime committed
in secrecy or inside the house should go
unpunished.
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 Prosecutions- quoted
with approval by Arijit Pasayat,J. In State
of Punjab v. 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. Here it is
necessary to keep; in mind Section 106 of
the Evidence Act which says that when
any
fact
is
especially
within
the
knowledge of any person, the burden of
proving that fact is upon him."

15. In view of the above discussions
considering the evidence of informant on
record coupled with the FIR, post mortem
report and false explanation put forward
by the appellant and the provision
contained u/s 106 of the Indian Evidence
Act we are of the considered view that
death of the deceased has been caused by
the
appellant
by
strangulation
and
thereafter her body was set on fire.
Considering the gravity of the offence and
nature
of
evidence
and
attending
circumstances and the finding of guilt of
the appellant recorded by the trial court,
the appellant does not deserve bail and
accordingly his prayer for bail is hereby
rejected.

16. Office is directed to prepare
paper book within three months and
hearing of the appeal is expedited and it
be listed thereafter.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2010

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE RAJESH CHANDRA, J.

First Appeal From Order No. 861 of 2010

Oriental Insurance Co. Ltd. ...Appellant
Versus
Smt. Sukhviri and others ...Respondents

Counsel for the Appellant:
Sri Amaresh Sinha
Sri S.K. Mehrotra

Counsel for the Respondents:
Sri Anurag Sharma

Motor Vehicle Act, 1988-Section 173accident
claim
Tribunal-award
given
with direction to the insurance company
to-deposit entire amount of award of
compensation-recover the same from the
vehicle owner if there is breech of policyappeal
by
insurance
company-heldwarrant no interference-keeping it open
to initiate fresh recovery proceeding
against vehicle owner.