# Shyam Babu & Anr v. State of U.P. Opp. Party

- **Citation:** (2022) 10 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-12
- **Case number:** Crl. Appeal No. 2424 of 2006
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-babu-anr-v-state-of-u-p-opp-party-47730
- **Pages:** 9

## Headnote

(A) Criminal Law - Criminal Procedure
Code, - Sections 313 & 437-A, - Indian
Penal Code,1860 - Sections 304-B, 304B(2) & 498-A, - The Dowry Prohibition Act,
1961 - Sections 2, 3 & 4 : - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
Evaluation of Evidences - offence of demand of
dowry and death - FIR registered by the
informant with allegation that his deceased
daughter was married with accused husband
who has killed his daughter by hanging as he
had failed to meet the dowry demand - death
caused within four months of marriage -
demand of dowry found to be based on
evidence available on record - deceased was
tortured and strangulated to death - necessary
ingredient to attract offence under section 304-B
IPC are clearly exist - demand of dowry and
consequential implication of accused appellant
no. 1 in offences under section 304-B, 498-A
IPC & 3⁄4 DP Act is sustained. (Para - 11, 17)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 437-A, -
Indian Penal Code, 1860 - Sections 304-B,
304-B(2)
&
498-A,
-
The
Dowry
Prohibition Act, 1961 - Sections 2, 3 & 4 -
Criminal Appeal - Conviction & Sentence - Life
imprisonment - Evaluation of Evidences -
offence of demand of dowry and death -
accused appellant no. 2 & 3 (i.e. Jeth & Jethani)
are having their separate living - accused
appellant no. 1 are living with deceased in a
new house which was towards the corner of old
Abadi where the dead body of the deceased was
found - inconsistency in the testimony of the
PWs with regards to separate living of Jeth
Jethani which corroborated by the specific
10 All. Shyam Babu & Anr. Vs. State of U.P.
379
defence take by them u/s 313 Cr.P.C. - no
specific date, time or manner of demand of
dowry are alleged against the appellant no. 2 &
3 - held, trial court has not considered the
evidence in correct perspectives - finding in that
regards is reversed - thus, at the instance of
accused appellant Nos. 2 & 3 the impugned
order of conviction & sentence is set aside.
(Para - 19, 20, 21)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Sections - 313 & 437-A, -
Indian Penal Code, 1860 - Sections 304-B,
304-B(2)
&
498-A,
-
The
Dowry
Prohibition Act, 1961 - Sections 2, 3 & 4 : -
Criminal Appeal - Conviction & Sentence - Life
imprisonment - quantum of punishment -
appropriate punishment to be awarded under
section 304-B of IPC would be depend U.P.on
the facts and circumstances of each case - the
death of deceased has occurred on account of
strangulation and injury marks, within four
months of her marriage - therefore, court find
that, this is not a case in which minimum
punishment prescribed u/s 304-B IPC ought to
be awarded to the appellant no. 1 - since,
accused appellant no. 1 has already suffered
actual incarceration of more than 23 years
which already undergone would adequately
meet the end of justice and therefore, sentence
of life Imprisonment be modified and be
substituted by the sentence already undergone
by him - appeal at the instance of accused
appellant no. 1 is accordingly allowed in part -
all the appellants shall be set at liberty subject
to compliance of section 437-A of Cr.P.C. (Para
- 23, 24)

Appeal Allowed accordingly. (E-11)

## Text

378 INDIAN LAW REPORTS ALLAHABAD SERIES
and the object of the legislation would
reduce naught. The above legal position is
laid down by Single Judge of this High
Court in "Radhika (Juvenile) Vs. State of
U.P." decided on 5.8.2019 in Criminal
Appeal No.4418 of 2019. Although the
juvenile in conflict with law is detained in
observation home since 16.8.2019, but
keeping
in
view
the
facts
and
circumstances of the case and for achieving
the object of Juvenile Justice (Care and
Protection of Children), Act and the
evidence available on the record, I find that
if the appellant juvenile is released on bail
it would defeat the ends of justice and the
object of Act. In this case when the victim
X complained to the mother and Bhabhi of
appellant, they threatened her to meet dire
consequences and also stated that if she
disclosed anybody she and her family
members will not be able to show their
faces
to
the
society.
In
above
circumstances, I do not find it proper to
release the juvenile on bail and give in
custody of his father due to reasons
mentioned above. Accordingly, the instant
appeal is dismissed.

12. However, the concerned court
below is directed to conclude the trial
expeditiously, preferably, within a period
of two months from the date of receipt of
the certified copy of this order.

13. Let the lower court record be
returned back to the concerned court below
forthwith.
----------
(2022) 10 ILRA 378
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.10.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Crl. Appeal No. 2424 of 2006

Shyam Babu & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Lallu Singh, Sri Mahesh Kumar Mishra

Counsel for the Opp. Party:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, - Sections 313 & 437-A, - Indian
Penal Code,1860 - Sections 304-B, 304B(2) & 498-A, - The Dowry Prohibition Act,
1961 - Sections 2, 3 & 4 : - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
Evaluation of Evidences - offence of demand of
dowry and death - FIR registered by the
informant with allegation that his deceased
daughter was married with accused husband
who has killed his daughter by hanging as he
had failed to meet the dowry demand - death
caused within four months of marriage -
demand of dowry found to be based on
evidence available on record - deceased was
tortured and strangulated to death - necessary
ingredient to attract offence under section 304-B
IPC are clearly exist - demand of dowry and
consequential implication of accused appellant
no. 1 in offences under section 304-B, 498-A
IPC & 3⁄4 DP Act is sustained. (Para - 11, 17)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 437-A, -
Indian Penal Code, 1860 - Sections 304-B,
304-B(2)
&
498-A,
-
The
Dowry
Prohibition Act, 1961 - Sections 2, 3 & 4 -
Criminal Appeal - Conviction & Sentence - Life
imprisonment - Evaluation of Evidences -
offence of demand of dowry and death -
accused appellant no. 2 & 3 (i.e. Jeth & Jethani)
are having their separate living - accused
appellant no. 1 are living with deceased in a
new house which was towards the corner of old
Abadi where the dead body of the deceased was
found - inconsistency in the testimony of the
PWs with regards to separate living of Jeth
Jethani which corroborated by the specific
10 All. Shyam Babu & Anr. Vs. State of U.P.
379
defence take by them u/s 313 Cr.P.C. - no
specific date, time or manner of demand of
dowry are alleged against the appellant no. 2 &
3 - held, trial court has not considered the
evidence in correct perspectives - finding in that
regards is reversed - thus, at the instance of
accused appellant Nos. 2 & 3 the impugned
order of conviction & sentence is set aside.
(Para - 19, 20, 21)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Sections - 313 & 437-A, -
Indian Penal Code, 1860 - Sections 304-B,
304-B(2)
&
498-A,
-
The
Dowry
Prohibition Act, 1961 - Sections 2, 3 & 4 : -
Criminal Appeal - Conviction & Sentence - Life
imprisonment - quantum of punishment -
appropriate punishment to be awarded under
section 304-B of IPC would be depend U.P.on
the facts and circumstances of each case - the
death of deceased has occurred on account of
strangulation and injury marks, within four
months of her marriage - therefore, court find
that, this is not a case in which minimum
punishment prescribed u/s 304-B IPC ought to
be awarded to the appellant no. 1 - since,
accused appellant no. 1 has already suffered
actual incarceration of more than 23 years
which already undergone would adequately
meet the end of justice and therefore, sentence
of life Imprisonment be modified and be
substituted by the sentence already undergone
by him - appeal at the instance of accused
appellant no. 1 is accordingly allowed in part -
all the appellants shall be set at liberty subject
to compliance of section 437-A of Cr.P.C. (Para
- 23, 24)

Appeal Allowed accordingly. (E-11)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This Criminal Appeal arises out of
judgment and order of conviction and
sentence dated 27.04.2006, passed by the
Additional Session Judge, Fast Track Court
No.2, Fatehpur in Session Trial No. 72 of
2004 arising out of Case Crime No.161 of
2003, whereby accused appellant no.1
Shyam Babu, appellant no.2 Suresh @
Dhandhu and appellant no.3 Lalli @
Kalawati
have
been
convicted
and
sentenced to life imprisonment under
Section 304B IPC and have also been
convicted and sentenced to three years
imprisonment under Section 498A IPC
with a fine of Rs.1,000/- and in default of
fine they have to undergo one year
additional imprisonment. They have also
been convicted and sentenced to one year
imprisonment under section 3/4 of Dowry
Prohibition Act with a fine of Rs.2,000/-
and in default of fine they have to undergo
one year additional imprisonment. All the
sentences are directed to run concurrently.

2. Prosecution case, in brief, is that
deceased Rupa Devi got married to the
accused appellant no.1 on 20.04.2003. On
28.08.2003 the first informant (PW-1), who
happens to be the father of the deceased,
received an information that the deceased
has been killed by the accused appellants
by hanging as he had failed to meet the
dowry
demand.
The
incident
is
of
28.08.2003 and a written report scribed by
one
Ashok
Kumar
was
given
on
29.08.2003 on the basis of which a First
Information Report was registered as Case
Crime No.161 of 2003 under Sections
498A, 304B IPC and 3/4 of Dowry
Prohibition Act, Police Station Thariyaon,
District Fatehpur.

3.

After
registering
FIR
the
Investigating Officer came on spot and an
inquest was conducted in the presence of
inquest witnesses as also in the presence of
Naib Tahsildar. The dead body of deceased
was found in the house of accused
appellant no.1. In the opinion of inquest
witnesses the death of deceased was caused
on account of hanging as also on account of
injuries and, therefore, postmortem was
required to be conducted to ascertain the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
cause of death. The dead body was
accordingly sealed and sent to mortuary
where the postmortem was conducted by
Dr.
Sanjay
Gupta
(PW-3).
In
the
postmortem report following injuries have
been found on the deceased and cause of
death has been ascertained as asphyxia as a
result of ante-mortem strangulation:-

"(i) Ligature mark all around neck
30cm x 2cm, 7cm below, 5cm each on both
side below ear. Groove base is pale
margins ecchymosed hard lathery and
parchment like. Nylon string with knot
present all around the neck cut away from
knot preserved sealed and sent to SP
Fatehpur.

On internal examination - Muscles of
neck ruptured large muscle contused hyoid
bone fractured present.

(ii) Contusion on right side of scalp at
temporal region size 6cm x 4cm underlying
muscles
contused,
underlying
facture
parietal bone present.

(iii) Abrasion on left side of abdomen
in hypochondrium 9cm above umbilicus
size 6cm x 3cm.

(iv) Abrasion on back of left side of
chest 5cm left to midline at T 10 level size
3x2cm.

(v) Abrasion 5cm below knee joint
size 3x2cm."

4. Upon conclusion of statutory
investigation under Chapter XII of the
Criminal Procedure Code charge sheet
(Ex.Ka.9) came to be submitted against the
accused appellants by the Investigating
Officer on 29.10.2003. Having taken
cognizance of the charge sheet the
Magistrate committed the case to the court
of
session
where
proceedings
were
registered as Session Trial No.72 of 2004.
On 25.11.2004 the court concerned framed
charges against the accused appellants
under Sections 498A, 304B IPC and 3/4 of
Dowry Prohibition Act. The accused
appellants denied the charges levelled
against them and demanded trial.

5. In order to bring home the charge
the prosecution has adduced oral testimony
of PW-1 and PW-2, who are the parents of
deceased and are the two witnesses of fact.
Oral testimony has also been adduced of
Dr. Sanjay Gupta as PW-3 who conducted
the postmortem. PW-4 Suresh Kumar was
the Naib Tahsildar, who has verified the
inquest whereas PW-5 Lal Bahadur Singh
is the Investigating Officer. PW-6 Arvind
Kumar Yadav is the Circle Officer, who
has
proved
the
charge
sheet.
The
prosecution has also adduced documentary
evidence
including
written
report
as
Ex.Ka.1, postmortem report as Ex.Ka.2,
inquest report as Ex.Ka.3, charge sheet as
Ex.Ka.9 and site plan with index as
Ex.Ka.8.

6. The witness of fact namely PW-1
has stated that the marriage of deceased
with the accused appellant no.1 was
solemnized on 20.04.2003 in which dowry
was settled as Rs.7000, 10gm gold, one
buffalo and a cycle but he could only give
Rs.7000 cash, utensils of Rs.4500 and
clothes of Rs.3000 and due to his poor
financial condition he could not give 10gm
gold, one buffalo and cycle. It was deposed
that due to not providing of such dowry
articles the deceased was harassed by all
the accused appellants and she was
physically assaulted from time to time.
Every time when the deceased used to visit
her parents she was asked to get the
remaining dowry. It was also stated that
information with regard to unnatural death
of deceased was given to PW-1 and PW-2
by one Ashok Kumar and when they came
to the house of accused appellant no.1 they
10 All. Shyam Babu & Anr. Vs. State of U.P.
381
found the dead body on the floor and tied
from two sides with a green colour rope. It
was further stated that when PW-1 came on
spot the accused appellants were not there
and written report was given next day after
it was scribed by Ashok Kumar.

In the cross-examination PW-1 has
admitted that the dead body was found in the
new house of accused appellant no.1, although
it was alleged that all the accused appellants
were living together in the same house. PW-1
has also admitted that prior to this incident he
had not made any complaint with regard to
demand of dowry or harassment meted out to
deceased and that he only tried to counsel the
family members not to harass his daughter.

7. PW-2 has also made similar disclosure
in her statement. She has also denied the
suggestion given
to
her during
crossexamination that house of accused appellant
no.1 is separate and distinct from the house
occupied by accused appellant nos.2 and 3.
PW-2, however, has admitted that last rites of
deceased were performed by the accused
appellants.

8. PW-3 Dr. Sanjay Gupta, who
conducted the postmortem, has clearly stated
that the deceased died due to injuries noticed
above.

9. PW-5, who is the Investigating Officer,
in his cross-examination has noted availability
of two houses with the accused appellants'
family one of which has been addressed as the
house of accused appellant no.1 which is
towards end of Abadi and the other referred to
the house of appellant nos.2 and 3 within the
Abadi. The statement of PW-5, in that regard, is
extracted hereinafter:-

"मुलकजम श्यामबाबू का मकान गाोंव के
आवादी के ककनारे है उसके मकान के पूवष कमले
हुए खेत है घटना के समय धान की फसल खडी
थी।

अकभयुक्त झल्ली व श्रीमती लल्ली का
माकान जो आबादी के अन्दर है उसे भी देखा है।
श्याम बाबू के मकान के दकक्षण की खेत है कजनमें
घटना के समय धान की फसल खडी थी।"

10.
The
incriminating
material
surfaced during the course of trial against
the accused appellants was confronted to
them under section 313 Cr.P.C. and the
accused appellants have stated that the
deceased and accused appellant no.1 were
residing in the new house constructed
towards the end of Abadi while accused
appellant nos.2 and 3 were residing in the
old house existing in midst of Abadi. The
allegation with regard to demand of dowry
or strangulating the deceased have been
specifically denied. The postmortem report
has been questioned by the accused
appellants and it has been stated that the
report itself is manipulated.

11. On the basis of evidence brought
before the court below in the form of oral
testimony and documentary evidence the
trial court has come to the conclusion that
the deceased was subjected to demand of
dowry and her death has occurred within
seven years from the date of marriage. It
has also been held that the deceased was
strangulated and, therefore, her death has
occurred in unnatural circumstances and
necessary ingredients to attract offence
under section 304B IPC are clearly made
out. The court below has also returned a
finding that the deceased was subjected to
demand
of
dowry
and
consequently
appellants have also been convicted under
section 498A IPC and 3/4 D.P. Act.

12. Learned counsel for the accused
appellants submits that the appellants were
382 INDIAN LAW REPORTS ALLAHABAD SERIES
arrested and sent to jail on 31.08.2003. The
accused appellant no.1 has remained in jail
ever since then and has been enlarged on
bail by this Court vide order dated
08.09.2022 and, therefore, the actual period
of incarceration of accused appellant no.1
is 19 years and with remission period of 4
year 3 months 7 days the incarceration
would be more than 23 years. So far as the
accused
appellant
nos.2
and
3
are
concerned they have been enlarged on bail
by this Court vide order dated 13.09.2006.

13. Learned counsel for the accused
appellants
further
contends
that
the
deceased had actually committed suicide
and the finding returned by the court below
that it was a case of strangulation is
unsustainable. It is also argued that the
accused
appellant
no.1
was
living
separately with the deceased in the new
house while accused appellant nos.2 and 3
were residing in old house situated within
the Abadi area and as the accused appellant
nos.2 and 3 had a separate living they
cannot be implicated and convicted for the
offence under section 304B IPC. It is also
contended that allegations of demand of
dowry are vague and general in nature and
there is no specific incident asserted by the
prosecution in respect of such demand nor
any complaint was ever made to the police
with respect to alleged demand of dowry.
Learned counsel further urges that the
manner in which the body has been found
with bangles in her hands as per inquest
report clearly shows that she has not been
tortured prior to her death and even the last
rites were performed by the accused
appellants. It is also submitted that
punishment accorded to appellant no.1 is
highly excessive.

14. Sri Arun Kumar Singh, learned
A.G.A. for the State submits that the
injuries found on the body of deceased
together with the fact that the death
occurred due to strangulation would clearly
show that the offence was committed by
more than one person. It is also submitted
that the accused appellants have not
adduced any defence evidence to show that
the accused appellant nos.2 and 3 had a
separate living and the positive evidence of
PW-1 and PW-2 that accused appellant
nos.2 and 3 were living together with
deceased in the same house remains
unrebutted.

15. We have heard learned counsel
for the parties and perused the materials
brought on record.

16. The facts as have been noticed
above clearly reveal that the marriage of
deceased with accused appellant no.1 was
solemnized on 20.04.2003 and the incident
leading to unnatural death occurred on
28.08.2003 which is nearly four months
after the marriage. So far as the allegation
with regard to demand of dowry is
concerned PW-1 and PW-2 have clearly
stated that at the time of marriage it was
agreed that in addition to the dowry items
given the informant had to give 10gm gold,
one buffalo and cycle, which could not be
given
and
the
deceased
was
being
consistently harassed for getting such
dowry items. The statement of PW-1 and
PW-2 in that regard is specific. Although it
is admitted to PW-1 and PW-2 that no
formal complaint in respect of demand of
dowry was lodged by them, yet, their
statement that they were attempting to
persuade the family members not to harass
the deceased by making them personal
requests seems credible. It is otherwise
natural that parents of bride would make all
efforts to ensure peaceful living of their
daughter and only if their efforts fail that a
10 All. Shyam Babu & Anr. Vs. State of U.P.
383
formal complaint would ordinarily be
lodged. The gap in the period of marriage
and death is only about four months and,
therefore, non lodgement of any formal
complaint would not mean that there
existed no demand of dowry. Except to
deny such accusations under section 313
Cr.P.C. the appellants have not produced
any evidence to rebut the allegations made
by PW-1 and PW-2 with regard to demand
of dowry. The finding of the court below
that the deceased was subjected to demand
of dowry immediately prior to her death is,
therefore, found to be based on evidence
available on record and we find no
infirmity in it.

17. So far as the cause of death of
deceased is concerned the postmortem report
has been proved by the concerned doctor
(PW-3) and from its perusal it is apparent that
the deceased was strangulated to death.
Hyoid bone of deceased was found fractured.
The body of the deceased otherwise had
injury marks which clearly supports the
prosecution version that the deceased was
tortured and she was strangulated to death.
The finding by the court below that the
deceased died due to unnatural circumstances
is thus clearly borne out from the records.
We, therefore, find that necessary ingredients
to attract offence under section 304B IPC are
clearly shown to exist in the facts of the case.
The finding of court below with regard to
demand
of
dowry
and
consequential
implication of accused appellant no.1 in
offences under section 304B, 498A IPC and
3/4 D. P. Act is, therefore, sustained.

18. So far as the argument advanced on
behalf of the accused appellant nos.2 and 3
on the premise that they had a separate living
and, therefore, they cannot be convicted for
the above offences is now taken up for
consideration.

19. The evidence on record about
separate or joint living of appellant nos.1
and 2 with the deceased is primarily in the
nature of oral statement of witnesses which
needs to be examined. PW-2 in her
examination-in-chief has stated that father
of appellant no.1 had died prior to the
marriage of the deceased and that the
deceased after marriage was living with her
husband together with Jeth and Jethani
(appellant nos.2 and 3) in the house of
appellant no.2. In her cross-examination
she has, however, admitted that dead body
of the deceased was found in the house of
accused appellant no.1. The statement of
PW-2 clearly shows existence of two
houses i.e. one belonging to accused
appellant no.2 (Jeth) while the other was
the house of husband (appellant no.1). PW5, who is the Investigating Officer, has
visited and seen the place of occurrence
and in his cross-examination has clearly
stated that the house of appellant no.1 is
towards corner of Abadi and abuts the
paddy field whereas the house of accused
appellant nos.2 and 3 is within the Abadi
area. The statement of PW-5 therefore
clearly corroborates the statement of PW-2
insofar
as
existence
of
two
houses
belonging to accused appellants in the same
village is concerned. PW-1 and PW-2 have,
however,
denied
the
suggestion
that
accused appellant nos.2 and 3 were living
separately in their house situated within the
old Abadi while accused appellant no.1 was
living in his new house constructed towards
the end of Abadi, but we do not find their
statement to be reliable since on this aspect
their statement are contradictory and the
statement of PW-5, who is an independent
person, appears to be more reliable.
Inference of two separate houses belonging
to Jeth and husband of deceased are clearly
discernible from their statements. Existence
of two houses, which are specifically
384 INDIAN LAW REPORTS ALLAHABAD SERIES
described as house of accused appellant
no.1 Shyam Babu and house of accused
appellant no.2 Suresh @ Dhandhu together
with statement of PW-2 that the deceased
alongwith her husband was residing in the
house of accused appellant no.2, makes it
clear that the appellants family had two
houses in the same village. Inconsistency in
the statement of PW-2 that all the
appellants were living in the house of Jeth
whereas body of deceased was found in the
house of appellant no.1 coupled with the
statement of PW-5 clearly proves that
accused appellant no.1 had a separate living
with the deceased while appellant nos.2 and
3 were separately residing in the old house
within the abadi. The evidence in that
regard is corroborated by the specific
defence taken by the accused appellants in
their statement under section 313 Cr.P.C.
that the accused appellant nos.2 and 3 were
living separately in old house situated in
Abadi.

20. We may, at this stage, notice an
additional fact regarding marriage itself
was solemnized between the accused
appellant no.1 with the deceased. PW-1 has
admitted that prior to marriage of deceased
the father of appellant no.1 had died and
the trial court has also noticed that their
marriage was settled on the intervention of
mother and Nana of appellant no.1 Shyam
Babu. The prosecution witnesses of fact
have not included the name of Jeth and
Jethani (appellant nos.2 and 3) as the
persons instrumental in solemnizing the
marriage. This also lends support to the
evidence otherwise available on record that
Jeth and Jethani (appellant nos.2 and 3)
were living separately. Trial court although
has noticed this aspect of the matter but has
rejected the plea of separate living on the
ground that no evidence was led by the
appellants to substantiate the plea of
separate living. After noticing the existence
of two houses belonging to appellants in
same village the trial court has observed
that either ancestral house within the Abadi
has fallen or may have been sold. This
remark is based completely on surmises.
We are, therefore, not inclined to accept the
reasoning assigned by the trial court in
coming to the conclusion that despite the
existence of two houses in the same village
the two families were living in the house of
accused appellant no.1. Moreover, as the
existence of two houses was clearly
admitted and the PW-5 had also indicated
that old house within the Abadi was of
accused appellant no.2 while the new house
belonged to accused appellant no.1 there
was no other requirement of adducing any
voter list etc. to substantiate the plea of
separate living on part of the accused
appellant nos.2 and 3.

21. In view of the above deliberations
made on the factual aspects we are
persuaded to the view that accused
appellant nos.2 and 3 had a separate living
in their old house within the Abadi. The
statement of PW-2 that all the members
were living in the house of Jeth (appellant
no.2) otherwise cannot be accepted in view
of the admitted position that the dead body
of the deceased was found in the house of
accused appellant no.1. We are, therefore,
of the view that the trial court has not
considered
the
evidence
in
correct
perspective and its refusal to accept the
plea of separate living of accused appellant
nos.2 and 3 cannot be sustained. The
finding in that regard is thus reversed. We
accept the contention advanced on behalf
of the accused appellant nos.2 and 3 that
they had a separate living and, therefore,
that they cannot be implicated for the
offences under section 304B IPC. We
further find that the allegations with regard
10 All. Shyam Babu & Anr. Vs. State of U.P.
385
to demand of dowry by accused appellant
no.2 and 3 are clearly vague as no specific
date, time or manner of demand of dowry
by them has been disclosed by any of the
prosecution witnesses, as such we hold that
the conviction of accused appellant nos.2
and 3 under sections 498A IPC and 3⁄4 D.P.
Act also cannot be sustained.

22. This takes us to the last facet of
this appeal i.e. the argument with regard to
quantum of punishment awarded to the
accused appellant no.1 in the matter.
Section 304B defines ''dowry death' in
following manner:-

"304B. 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 purposes 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."

23. Upon evaluation of evidence on
record we have already returned a finding
that the unnatural death of the deceased
was on account of demand of dowry and
the conviction of appellant no.1 under
section 304B has been affirmed. Subsection (2) of section 304B IPC then
provides for punishment of dowry death.
The imprisonment for offence under
section 304B IPC cannot be less than seven
year but it may extend to imprisonment for
life. What exactly be the appropriate
punishment to be awarded under section
304B IPC would depend upon the facts and
circumstances of each case. The death of
the deceased in the present case has
occurred on account of strangulation and
injury marks have otherwise been found on
the body of the deceased. The death has
otherwise occurred nearly four months of
the marriage itself. We are, therefore, of the
view that this is not a case in which
minimum punishment prescribed under
section 304B IPC ought to be awarded to
the accused appellant no.1. A harsher
punishment would certainly be warranted
in the facts of this case. However, we find
that accused appellant no.1 has already
suffered actual incarceration of more than
19 years and together with remission the
total period would extend to more than 23
years.
Considering
the
facts
and
circumstances of the case and upon overall
evaluation of evidence on record we are of
the view that the sentence of more than 23
years already undergone by appellant no.1
would adequately meet the end of justice
and, therefore, we accept the argument
advanced on behalf of appellants that the
sentence of life imprisonment awarded to
accused appellant no.1 be modified and be
substituted
by
the
sentence
already
undergone by him. Subject to the above
modification on the quantum of sentence
the conviction of accused appellant no.1 is
sustained.

24. The appeal at the instance of
accused appellant no.1 is, accordingly,
allowed in part and the sentence awarded to
him of life imprisonment under section
304B IPC is substituted with sentence
386 INDIAN LAW REPORTS ALLAHABAD SERIES
already undergone by him. Judgment and
order of the court below dated 27.04.2006
is accordingly modified. Since the accused
appellant no.1 is on bail, his sureties and
bonds shall stand discharged and he shall
be set at liberty, unless is wanted in any
other case subject to compliance of section
437A Cr.P.C.

So far as the appeal at the instance of
accused appellant nos.2 and 3 is concerned
it succeeds and is allowed. Judgment and
order dated 27.04.2006, to the extent of
appellant nos.2 and 3, is set aside. Since the
accused appellant nos.1 and 2 are on bail,
their sureties and bonds shall stand
discharged and they shall be set at liberty,
unless they are wanted in any other case
subject to compliance of section 437A
Cr.P.C.
----------
(2022) 10 ILRA 386
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Crl. Appeal No. 3379 of 2002

Suresh ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri S.K. Mishra, Sri Mohd. Raghib Ali, Sri Mohd.
Raghib Ali, A.C., Sri Saghir Ahmad, A.C.

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

Criminal Law - Criminal Procedure Code,
1973 - Section - 313, 374 & 437(a) - Indian
Penal Code, 1860 - Sections 34 & 302: -
Criminal Appeal - Conviction & Sentence - Life
imprisonment - offence of murder - FIR -
allegations that, accused (appellant) threaten to
the informant and thereafter he attacked U.P.on
him armed with a knife along with his two brother
whom were armed with a bottle of acid and with
iron rods, in said attacked wife of informant was
injured in knife & acid attack due to which she died
while in treatment - Evaluation of Evidence - court
finds that, the genesis of crime disclosed by the
prosecution is not entirely reliable - as all the eyewitnesses are close relatives - neither knife nor
bottle of acid or the sole 'two rU.P.ee note' which
was the bone of contention are recovered - no any
mark of acid was found on the ground - trial court
was not entirely convinced with the prosecution
case and granted benefit of doubt to the two coaccused brothers of accused on the basis of same
set of evidences - since all the accused were
charged u/s 34 therefore, their acquittal on the
basis of same set of evidence is also a ground
available for the accused appellant to claim benefit
of doubt - held - prosecution fails in proving the
guilt of accused appellant beyond reasonable
doubt - impugned order of conviction & sentence
is set aside - appellant shall be set at liberty
subject to compliance of section 437-A of Cr.P.C. -
Appeal allowed. (Para - 35, 36, 39, 40, 41)

Appeal Allowed. (E-11)

List of Cases cited:

1. Kumar Vs St. Represented by Inspector of Police
(2018 (6) JT 85),

2. Ramanand @ Nandlal Bharti Vs St. of U P
(Criminal Appeal Nos. 64-65 of 2022, decided on
13.10.2022

3. Raghunath Vs St. of Har., (2003) 1 SCC 398,

4. Khema & ors. Vs St. of U.P. & ors., AIR 2022 SC
3765

5. Vadivelu Thevar Vs St. of Madras, 1957 SCR 981

(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Shiv Shanker Prasad, J.)

1. Accused appellant Suresh has been
convicted under Section 302 IPC and
sentenced to rigorous life imprisonment