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

- **Citation:** (2021) 8 ILRA 789
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-04
- **Case number:** Criminal Appeal No 461 of 1992
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kunwari-ors-in-jail-v-state-of-u-p-47310
- **Pages:** 7

## Headnote

Indian Penal Code (45 of 1860) - Section
304B
-
Dowry
death
-No
specific
allegation against the appellant no. 2
regarding
demand
of
dowry
and
harassment - PW2 specifically stated in
his cross examination that appellant no. 2
used to oppose the alleged demand of
dowry by husband - Held - prosecution
failed to prove that soon before her death
deceased was subjected to cruelty or
harassment
by
appellant
no.
2
in
pursuance of demand of dowry - appellant
no. 2 entitled to benefit of doubt - Appeal,
allowed (Para 28, 29, 30, 31)

Allowed. (E-4)

List of Cases cited:
790 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

8 All. Smt. Kunwari & Ors. Vs. State of U.P.
789
impose for preventing a repetition of the
same offence or a commission of other
offences by the offender.

(5)
The
court
making
a
supervision order under sub-section (3)
shall explain to the offender the terms and
conditions of the order and shall forthwith
furnish one copy of the supervision order to
each of the offenders, the sureties, if any,
and the probation officer concerned."

31. It is relevant to mention here that
Section 360 Cr.P.C. also confers the
powers on the Court to release the accused
on probation for good conduct or after
admonition.

32. For the reasons aforesaid, the
appeal filed by the appellant no.2-Chauthi
Harijan is partly allowed.

The conviction of appellant no. 2,
namely, Chauthi Harijan under Section
307 read with Section 34 IPC and sentence
awarded to him is set aside. However,
appellant no.2 is found guilty for the
offence punishable under Section 324 read
with Section 34 IPC and is convicted
thereunder.

He shall get benefit of Section
4 of Probation of Offenders Act.

He shall file two bonds to the
tune of Rs.20,000/- each coupled with
personal bonds to the effect that he shall
not commit any offence and shall be of
good behaviour and shall maintain peace
during the period of one year. If he is in
breach of any of the conditions, he shall
subject himself to undergo one year
rigorous
imprisonment.
The
bonds
aforesaid
shall
be
filed
by
the
accused/appellant no.2 within two months
from the date of judgement. The time for
submitting the bail bonds shall not be
extended on any ground whatsoever.

33. Let a copy of this judgment along
with original lower Court record be sent to
the
Court
concerned
for
compliance
forthwith.
----------
(2021)08ILR A789
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No 461 of 1992

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

Counsel for the Appellants:
Sri R.B, Sahai, Sri Indra Deo Mishra, Sri
Shri Ram (Rawat), Sri Vishnu Pandey (A.C.)

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

Indian Penal Code (45 of 1860) - Section
304B
-
Dowry
death
-No
specific
allegation against the appellant no. 2
regarding
demand
of
dowry
and
harassment - PW2 specifically stated in
his cross examination that appellant no. 2
used to oppose the alleged demand of
dowry by husband - Held - prosecution
failed to prove that soon before her death
deceased was subjected to cruelty or
harassment
by
appellant
no.
2
in
pursuance of demand of dowry - appellant
no. 2 entitled to benefit of doubt - Appeal,
allowed (Para 28, 29, 30, 31)

Allowed. (E-4)

List of Cases cited:
790 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Sunil Bajaj Vs St. of M.P. 2000 (9) SCC 417

2. Kansraj Vs St. of Punj. 2000 (5) SCC 20

3. Sham Lal Vs St. of Har. AIR 1997 SC 1873

(Delivered by Hon'ble Anil Kumar Ojha, J.)

 Heard Sri Indra Deo Mishra, learned
counsel for the appellant no. 2, Sri Rupak
Chaubey, learned A.G.A. for the State and
perused the records.

2. The Chief Judicial Magistrate,
Allahabad,
submitted
a
report
dated
13.07.2018 stating therein that appellant
no.1 Smt. Kunwari Devi and appellant no.3
Ram Pratap, have died. So, vide order
dated 11.04.2019 appeal against appellant
no. 1 Smt. Kunwari Devi and appellant no.
3 Ram Pratap was abated.

Thus, the case of appellant no.2
Ram Autar has to be examined only.

3. Challenge in this criminal appeal is
the judgment and order dated 20.02.1992
passed by 1st Additional Sessions Judge,
Allahabad, in S.T. No. 361 of 1989 (State Vs
Ram Baran and others), under Sections 147,
304B/201 I.P.C., P.S.- Naini, District-
Allahabad,
whereby
the
learned
1st
Additional
Sessions
Judge,
Allahabad,
convicted the appellant no. 2 Ram Autar and
sentenced him to undergo 7 years R.I., under
Section 304-B read with Section 34 of the
IPC.

4. Tersely put, the prosecution case is
that complainant Mataru Lal lodged an F.I.R.
on 25.02.1989 at 12.50 p.m, at P.S.- Naini,
District- Allahabad, stating therein that Smt.
Bitola, deceased, was his daughter. She was
married with accused Ram Baran, two years
before this incident. Accused Ram Baran, his
father Khelari and brothers of Ram Baran
accused Ram Pratap and Ram Autar were
unhappy with the victim, because they were
demanding a T.V. set in dowry. Some day
before
the
incident,
accused
persons
attempted to kill the victim by causing her
burn injuries. The complainant took the
victim, to his house and after treatment the
victim recovered. Thereafter, accused persons
Ram Baran and Khelari assured the
complainant that no untoward incident will
take place in future. Believing the assurance,
he sent his daughter, the deceased to the
house of her in-laws about one month before
the alleged incident. On 25.02.1989 at about
8.30 a.m. the accused Ram Baran came to the
house of the complainant and asked his son
Raj Kumar whether the deceased has come to
his house. He further told him that the
deceased has run away with 3kg. Silver and
Rs. 500/- in cash in the previous night. On
this, the complainant and his family members
searched the victim. They suspected that the
accused persons might have killed the
deceased. The complainant along with family
members went to the village of accused
persons and there they found the dead body
of the victim Smt. Bitola in a well situated
towards east of the village abadi. The
complainant further stated in the complaint
that accused persons had killed the deceased
because he could not give T.V. set in dowry.
Accused persons killed the deceased, threw
her dead body into the well. At the time of
incident the victim was nearly 20 years old.

5. On the written report submitted by
complainant Mataru Lal, the case was
registered at P.S. Naini, District Allahabad,
in Crime No. 79 of 89, under Sections 147,
304-B, 201 IPC, against accused Ram
Baran, Ram Pratap, Ram Autar, Khelari
and Kunwari Devi, mother of Ram Baran.

6.

Investigating
officer
started
investigation and inquest of the deceased
8 All. Smt. Kunwari & Ors. Vs. State of U.P.
791
Bitola Devi was done by Nayab Tehsildar,
Karachana on 25.02.1989. Postmortem of
the dead body of the deceased was
conducted 27.03.1989 and statement of
witnesses under section 161 Cr.P.C. was
recorded.

After
completion
of
the
investigation, investigating officer filed
charge
sheet
against
accused-persons
namely Ram Baran, Ram Autar, Ram
Prasad and Smt. Kuwari.

7. The then Judicial Magistrate-IV,
Allahabad, committed the case of accused
persons to the court of sessions for trial. The
then the 1st Additional Sessions Judge,
Allahabad, on 16.01.1990 charged accused
Ram Autar, Ram Pratap, Ram Baran and
Smt. Kunwari, under Section 147, 304B read
with section 149 IPC and 201 IPC. Accused
persons denied the charges and claimed to be
tried.

Prosecution was called to adduce
the evidence.

8. Prosecution produced P.W. 1, Mataru
Lal, father of the deceased, P.W. 2 Satya
Narain Bharti, scribe of the FIR, P.W. 3 Dr.
R.B. Singh, who conducted the autopsy on
the dead body of the deceased, P.W. 4 Smt.
Rania @ Ranno Devi, mother of the deceased
Smt. Bitola Devi, P.W. 5 Raj Kumar, brother
of the deceased Smt. Bitoal Devi, P.W. 6 S.I.
B.D. Singh, P.W. 7 Latif Ullah, Nayab
Tehsildar, P.W. 8 Constable Jai Ram Shukla
and P.W. 9 Sri Nasir Kamal.

9. After conclusion of the evidence,
statement of accused persons under section
under Section 313 Cr.P.C. was recorded.
Accused Ram Avtar denied the evidence
and said that he has been falsely
implicated.

10. After hearing the learned counsel
for the prosecution and defence, learned
lower court convicted the appellants Smt.
Kunwari, Ram Autar and Ram Pratap under
Section 304-B read with section 34 of the
IPC and sentenced them to undergo 7 years
R.I.

11. Aggrieved by the aforesaid
judgment and order dated 20.02.1992
passed by 1st Additional Session Judge,
Allahabad, appellants Kunwari, Ram Autar
and Ram Pratap have preferred this appeal
before this Hon'ble Court.

Appeal
was
admitted
on
25.02.1992.

12. Learned counsel for the appellant
no.2 Ram Autar submitted that appellant
no.2 Ram Autar, is elder brother of
husband of deceased Bitola Devi. There is
no evidence of demand of dowry and
harassment
of
the
deceased
against
appellant. Appellant no. 2 was living
separately. He has nothing to do with the
alleged demand of T.V. set. He could be
not beneficiary of T.V. set. There is no
evidence against the appellant to convict
him under section 304-B IPC. Hence, this
appeal should be allowed and the appellant
Ram Autar should be acquitted.

13. Per contra, learned A.G.A.
countered the above submissions and
contended that there is sufficient evidence
of demand of dowry against appellant no. 2
Ram Avtar. This is the consistent case of
the prosecution that all the appellants were
living in one house although they were
having two other houses also. The victim
was done to death by the appellant no. 2
Ram Avtar along with other co-accused
persons, therefore, appeal has no legs to
stand and it may be dismissed.
792 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Before dwelling in the merits of
the appeal provisions of Section 304-B of
I.P.C. need mention here which are as
follows:

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

15. In Sunil Bajaj v. State of M.P.
2000 (9) SCC 417, it has been held by
Hon'ble Apex Court that in order to convict
an accused for an offence under Section
304-B I.P.C., the following essentials must
be satisfied:

(1) the death of a woman must
have been caused by burns or bodily injury
or
otherwise
than
under
normal
circumstances:

(2)
such
death
must
have
occurred within 7 years of her marriage;

(3) soon before her death, the
woman must have been subjected to cruelty
or harassment by her husband or by
relatives of her husband;

(4) such cruelty or harassment
must be for or in connection with demand
of dowry.

It
is
only
when
the
aforementioned ingredients are established
by acceptable evidence such death shall be
called "dowry death" and such husband or
his relative shall be deemed to have caused
her death."

16. Learned A.G.A. submitted that the
death of deceased Bitola was due to bodily
injury and otherwise than under normal
circumstances, I agree with the aforesaid
contention of the learned A.G.A.

17. PW3 Dr. R.B. Singh who
conducted the post mortem over the dead
body of the deceased Bitola found
following injuries on her person:

1. Multiple abrasion on left side
of face and contusion was present.

2. Ligature mark present on left
side face upper 1/3rd beck, placed
transversely 26cmx2cm in fractions under
big area is abraded and contused.

Cloth was inserted in the mouth
of the deceased, there was blood on the
cloth.
In the opinion of the doctor, death was
caused due to asphyxia which was result of
injury no. 2. Injury no. 2 was sufficient in
the ordinary course of nature to cause the
death.

Thus, from the evidence of PW3
Dr. R. B. Singh, it is manifest that death of
deceased Bitola was not natural, she died
8 All. Smt. Kunwari & Ors. Vs. State of U.P.
793
due to bodily injury as mentioned in the
post mortem report. Learned counsel for
appellant no. 2 Ram Avtar did not dispute
the above fact.

18. The deceased Bitola died within
seven years of her marriage. PW1 Matru,
PW4 Rania and PW5 Raj Kumar have
given evidence to this effect. This fact was
also not disputed by the learned counsel for
the appellant no. 2.

19. Learned counsel for the appellant
submitted that the appellant Ram Avtar has
not demanded anything in dowry. He drew
attention of the Court towards the page no.
6 of the paper book, which is a letter
written by Ram Baran (husband of the
deceased) wherein demand of Rs. 5000/-,
Tape recorder, Transistor, Cycle, Utensils
and some other house hold goods have
been made.

Learned counsel for the appellant
submitted that demand was made by the
husband (Ram Baran) of the deceased only
and appellant no. 2 Ram Avtar has nothing
to do with the aforesaid demand.

20. PW1 Matru has admitted in his
statement, at page no. 26 of the paper book,
that two accused persons present in the
court did not demand any dowry. He has
further stated that except Ram Baran none
has demanded dowry from him. Further he
has stated that when his daughter comes to
his house, she tells about the demand of
dowry and beatings.

21. PW2 Satya Narayan has also
stated in his cross-examination at page no.
31 of the paper book that Ram Baran used
to demand dowry which was opposed by
his brothers. He further stated that two
accused persons present in the court
opposed the demand of dowry. In the
opinion of this witness, the deceased Bitola
was done to death by her husband, her
mother-in-law
and
her
father-in-law.
Accused persons present in the court were
not involved in the murder of the deceased
Bitola.

22. PW4 Smt. Rania @ Ranno Devi
who is mother of the deceased Bitola has
deposed in page no. 36 of the paper book
that accused persons Ram Avtar, Pradeep
and their mother did not demand any dowry
from her.

23. PW5 Raj Kumar who is brother of
the deceased Bitola has stated in his crossexamination at page no. 41 of the paper
book that accused persons present in the
court and their mother did not demand
dowry from him or from his mother and
father before him.

From the perusal of the letter sent
by Ram Baran to his in-laws, which is at
page no. 6 of the paper book, it is evident
that only and only Ram Baran demanded
dowry.

Moreover,
there
is
general
allegation of demand of dowry and
harassment.

24. In case of Kansraj v. State of
Punjab 2000 (5) SCC 207, the Hon'ble
Apex Court has held in para no. 5 as
follows:

"5.......In the light of the evidence in
the case we find substance in the submission
of the learned counsel for the defence that
respondents 3 to 5 were roped in the case
only on the ground of being close relations of
respondent No.2, the husband of the
deceased. For the fault of the husband, the in-
794 INDIAN LAW REPORTS ALLAHABAD SERIES
laws or the other relations cannot, in all
cases, be held to be involved in the demand of
dowry. In cases where such accusations are
made, the overt acts attributed to persons
other than husband are required to be proved
beyond
reasonable
doubt.
By
mere
conjectures and implications such relations
cannot be held guilty for the offence relating
to dowry deaths. A tendency has, however,
developed for roping in all relations of the inlaws of the deceased wives in the matters of
dowry deaths which, if not discouraged, is
likely to affect the case of the prosecution
even against the real culprits. In their over
enthusiasm and anxiety to seek conviction for
maximum people, the parents of the deceased
have been found to be making efforts for
involving other relations which ultimately
weaken the case of the prosecution even
against the real accused as appears to have
happened in the instant case."

25. From the perusal of the evidence
of PW1 Matru, PW2 Satya Narayan, PW4
Rania & PW5 Raj Kumar, it is clear that
there is no specific allegation with regard to
demand of dowry or harassment in
pursuance of aforesaid demand against
appellant No. 2 Ram Avtar. He is the elder
brother of the husband of the deceased
Bitola so the dictum of Kans Raj (supra) is
squarely applicable to the facts of the
present case.

26. Learned counsel for the appellant
submitted that there is no evidence with
regard to soon before the death of deceased
Bitola, she was subjected to cruelty or
harassment by appellant no. 2 Ram Avtar
in connection with demand of dowry.

In Sham Lal v. State of
Haryana AIR 1997 SC 1873, the Hon'ble
Apex Court has held as follows:

"11. It is imperative, for invoking
the aforesaid legal presumption, to prove
that "soon before her death" she was
subjected to such cruelty or harassment.
Here, what the prosecution achieved in
proving at the most was that there was
persisting dispute between the two sides
regarding the dowry paid or to be paid,
both in kind and in cash, and on account of
the failure to meet the demand for dowry,
Neelam Rani was taken by her parents to
their house about one and a half years
before her death. Further evidence is that
an attempt was made to patch up between
the two sides for which a panchayat was
held in which it was resolved that she
would go back to the nuptial home
pursuant to which she was taken by the
husband to his house. This happened about
ten to fifteen days prior to the occurrence
in this case. There is nothing on record to
show that she was either treated with
cruelty Or harassed with the demand for
dowry during the period between her
having been taken to the parental home and
her tragic end.

12. In the absence of any such
evidence it is not permissible to take
recourse
to
the
legal
presumption
envisaged in Section 113-B of the Evidence
Act. That rule of evidence is prescribed in
law to obviate the prosecution of the
difficulty to further prove that the offence
was perpetrated by the husband, as then it
would be the burden of the accused to rebut
the presumption."

27. So far as the facts of the present
case are concerned, prosecution in the
F.I.R., has alleged that on the assurance
given by Ram Baran and his father,
deceased Bitola was sent to her nuptial
home before one month of the alleged
8 All. State of U.P. & Anr. Vs. Aakash Verma & Ors.
795
incident. PW1 Matru has also deposed
about the aforesaid fact in the court.

28. During one month before the incident,
there is no evidence on file that there was any
communication between the deceased and the
prosecution witnesses. The deceased was sent
to her in-laws house on the assurance of good
behaviour by her husband and father-in-law.
After coming there to her in-laws house, there is
no evidence on record so as to ascertain that the
deceased was ill-treated by the appellant no. 2,
hence the factum of soon before death is also
not established in the present case.

29. Upshot of the above discussion is that
the husband, mother-in-law and father-in-law of
the deceased Bitola have already died, only
appellant no. 2 Ram Avtar is surviving and
contesting the appeal. He is the elder brother of
the Ram Baran (husband of the deceased) and
there is no specific allegation against the
appellant no. 2 Ram Avtar regarding demand of
dowry and harassment. The alleged letter
demanding dowry was written by the husband
of the deceased Ram Baran. PW2 Satya
Narayan has specifically stated in his crossexamination that appellant no. 2 Ram Avtar
used to oppose the alleged demand of dowry by
husband (now deceased) of the deceased Bitola.

30. It is settled law of the Hon'ble Apex
Court that in order to convict an accused for an
offence under Section 304-B of I.P.C.,
prosecution is obliged to establish four
ingredients beyond reasonable doubt. So far as
the facts of the present case are concerned,
prosecution has been able to establish that
deceased Bitola died within seven years of her
marriage, she died due to bodily injuries or
other than normal circumstances but the
prosecution has failed to prove the fact that
soon before her death deceased Bitola was
subjected to cruelty or harassment by appellant
no. 2 Ram Avtar in pursuance of demand of
dowry.

31. In view of the above facts and
circumstances, I am of the considered opinion
that appellant no. 2 is entitled to benefit of
doubt, accordingly the appeal of the appellant
no. 2 Ram Avtar succeeds and deserves to be
allowed.

32. Appeal is accordingly, allowed.

33. The judgment and order dated order
dated 20.02.1992 passed by 1st Additional
Sessions Judge, Allahabad, in S.T. No. 361 of
1989 (State Vs Ram Baran and others), under
Sections 147, 304B/201 I.P.C., P.S.- Naini,
District- Allahabad, qua the appellant no. 2
Ram Avtar is set-aside. Appellant no. 2 is
acquitted of the charges leveled against him.
His bail bonds are canceled and sureties are
discharged.

34. Copy of this judgment be certified to
the court below for compliance. Lower court
record be transmitted to the District Court,
concerned.
----------
(2021)08ILR A795
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Special Appeal Defective No. 244 of 2021
connected with
Special Appeal Defective No. 243 of 2021
and other connected cases

State of U.P. & Anr. ...Appellants
Versus
Aakash Verma & Ors. ...Respondents