# Smt. Omwati & Ors v. State of U.P

- **Citation:** (2025) 12 ILRA 426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-19
- **Case number:** Criminal Appeal No. 1149 of 1991
- **Bench:** J.J. Munir, Sanjiv Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-omwati-ors-v-state-of-u-p-52932
- **Pages:** 13

## Text

_Characters 0–39,970 of 43,408. This is a partial read: ask again with offset=39970 for what follows._

426 INDIAN LAW REPORTS ALLAHABAD SERIES
stained earth at the place of occurrence, but
did not found it. It also raises serious doubt
whether the incident actually took place at
the alleged place of occurrence.

48. In view of the above, we come to
the conclusion that the prosecution has
utterly failed to prove its case beyond
reasonable doubt and the learned Trial
Judge has not appreciated the evidence on
record in the right perspective and reached
a
wrong
conclusion
regarding
the
appellants' guilt upon conjectures and
improper appreciation of evidence.

49.
In
view
of
the
foregoing
discussions, we are of opinion that both
these appeals deserve to be allowed and the
conviction and sentence of the appellants
set aside. Thus, Criminal Appeal No. 1071
of 1987 and Criminal Appeal No. 1069 of
1987, both, are accordingly, allowed. The
impugned judgment and order, dated
13.04.1987,
passed
by
the
learned
Additional Sessions Judge in S.T. No. 540
of 1985 (State v Udai Narain and others) is
set aside. Appellant no.2, Amrit Lal, in
Criminal Appeal No. 1071 of 1987 and
appellant nos. 6 and 7, Harish Chandra and
Kallu respectively, in Criminal Appeal No.
1069 of 1987 are acquitted of all the
charges. The appellants, to wit, Amrit Lal,
Harish Chandra and Kallu are in custody
and lodged in jail. They are directed to be
released forthwith, if not wanted in any
other case.

50. Before being realeased, the above
appellants shall execute personal bonds in
the sum of Rs.25,000/- each under Section
481 of the Bhariya Nagarik Suraksha
Sanhita, 2023 (corresponding to Section
437-A of Cr.P.C.) for their appearance, in
the event of an appeal being preferred
against their acquittal.

51. Let a copy of this judgment and
order be sent to the Trial Court along with
the Trial Court record for information and
necessary compliance.
----------
(2025) 12 ILRA 426
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 19.12.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.
THE HON'BLE SANJIV KUMAR, J.

Criminal Appeal No. 1149 of 1991

Smt. Omwati & Ors. ...Appellant
Versus
State of U.P. ...Respondents

Issue for consideration
Validity of conviction u/s 304-B/34 and 201 IPC

Headnotes
Sections 304-B/34 and 201 Indian Penal
Code-conviction-challenged-prosecution
has
failed to prove the essential ingredients of
dowry death against the appellants-not proved
that they are relatives of the deceased's
husband-no evidence that they demanded
dowry-not proved that they committed crueltyabsence of essential ingredients- presumption
u/s 113-B of the Indian Evidence Act is not
attracted-prosecution failed to prove its case
beyond reasonable doubt -Trial Court has not
appreciated the evidence in correct prospective.
Appeal allowed.(E-9)

Case Law Cited
1. State of U.P. Vs Nahar Singh (Dead) and
Others (1998) 3 SCC 56
2. Muddasani Venkata Narsaiah (Dead) through
Lrs Vs Muddasani Sarojana, (2016) 12 SCC 288
3. Criminal Appeal No.1076 of 2014 (Karan
Singh vs. State of Haryana), decided on
31.01.2025
4. Harjit Singh v. State of Punjab; (2006) 1 SCC
463
List of Acts
1.Indian Penal Code;
2. Indian Evidence Act.
12 All. Smt. Omwati & Ors. Vs. State of U.P.
427
List of Keywords
without
sufficient
reason,
extra-judicial
confession, strong suspicion

Appearances of parties
Counsel for Appellant(s) : Ashok Kumar Singh
Bais, S.k. Agarwa
Counsel for Respondent(s) : D.G.A.

(Delivered by Hon'ble Sanjiv Kumar, J.)

1. This criminal appeal has been
preferred by the appellants, namely, Smt.
Omwati wife of Hukum Singh, Vijay Pal
and Om Pal sons of Chhajju Singh,
residents of Village, Bhaila, Police Station
Deoband, District Saharanpur, against the
judgment and order dated 11.06.1991,
passed by the Court of the VIth Additional
Sessions Judge, Saharanpur, in Session
Trial No.103 of 1990, under Sections 304B/34 and 201 Indian Penal Code (in short
'I.P.C'.), Police Station Deoband, District
Saharanpur.

2. By the impugned judgment and
order, appellant, Smt. Omwati has been
convicted
and
sentenced
to
undergo
imprisonment for life for the offence
punishable under Section 304-B/34 IPC.
The appellants, Vijay Pal and Om Pal have
been convicted and sentenced to undergo
seven years' rigorous imprisonment for the
offence punishable under Section 304-B/34
IPC. All the appellants have also been
convicted and sentenced to undergo three
years' rigorous imprisonment for the
offence punishable under Section 201 IPC
also. All the sentences have been directed
to run concurrently.

3. Feeling aggrieved by the impugned
judgment and order, this appeal has been
filed by all the three convicts. During the
pendency of this criminal appeal, appellant
No. 1, Smt. Omwati, has died, and the appeal
against her stands abated vide order dated
02.09.2025. Therefore, the appeal has been
heard on behalf of the surviving appellants,
Vijay Pal and Om Pal.

4. The brief facts of the prosecution case
are that the informant, Satyapal Singh, son of
Sube Singh, resident of village, Kapsadh,
Police Station Sardhana, District Meerut,
filed a written report (Ext. Ka-1) before the
In-charge, Police Station, Deoband, District
Saharanpur, dated 13.10.1988, wherein it was
said that the marriage of his sister, Vimlesh,
was solemnized with Jai Bhagwan more than
five years ago in village, Bhaila. After the
marriage, whenever his sister came over to
parents' village Kapsadh, she would say that
her in-laws were demanding a television and
cash. Whenever the informant went to village
Bhaila, the same demand was made to him as
well, but due to his poor financial condition,
he could not fulfill the demand. The
appellant, Omwati (mother-in-law of his
sister) would regularly harass the informant's
sister in this regard. On the night of 11/12
October 1988, at about 11:00 p.m., his sister
was murdered by her mother-in-law, Smt.
Omwati, Vijay Pal, and Om Pal by
administering poison. Soon thereafter her
dead body was cremated. The above incident
was witnessed by several residents of the
village, including Dharampal son of Fakira
and Mahipal son of Shadhu Singh, resident of
village, Sabirpur and they went over to
informant's village and informed him about
it. On the basis of written report (Ext. Ka-1),
a chik FIR (Ext. Ka-6) was registered as Case
Crime No.416 of 1988, under Sections 302,
201 I.P.C., and 3/4 Dowry Prohibition Act, at
Police Station Deoband on 13.10.1988 at
20:30 hours.

5. The investigation was conducted by
the Circle Officer, R.D. Singh, who
recorded the statements of the informant
428 INDIAN LAW REPORTS ALLAHABAD SERIES
and other witnesses and also collected the
burnt bones and ashes of the deceased from
the place where her dead body was
cremated. He prepared the recovery memo
(Ext. Ka-4). He also inspected the place of
occurrence and prepared its site plan (Ext.
Ka-3). After completing investigation, he
filed a charge-sheet against the appellants,
Smt. Omwati, Vijay Pal and Om Pal, under
Sections 304-B, 201 I.P.C. and Section 3/4
Dowry Prohibition Act before the Chief
Judicial Magistrate, Saharanpur.

6.
The
learned
Magistrate
took
cognizance of the offence and summoned
the appellants. The relevant prosecution
papers were furnished to the appellants
under Section 207 Cr.P.C. and the case was
committed to the Court of Session on
18.04.1990 for trial.

7. The appellants appeared before the
Court of Session and charges under
Sections 302/34, 304-B/34 and 201/34
Indian Penal Code were framed against the
appellants. They pleaded not guilty and
claimed to be tried.

8. The prosecution examined six
witnesses in support of the prosecution
case; namely, P.W.1, Satyapal Singh,
(brother
of
the
deceased),
P.W.2,
Dharampal,
P.W.3,
Mahipal,
P.W.4,
Kishan Singh, P.W.5, Rohitash and P.W.6,
R.D. Singh (the Investigating Officer).

9. Out of these six witnesses, P.W.1
Satyapal Singh (brother of the deceased and
the informant) has proved the written report,
(Ext.Ka-1) and said that his sister, Vimlesh
was married to Jai Bhagwan, son of Hukum
Singh, about five years ago. Smt. Omwati
was her mother-in-law whereas Vijay Pal and
Om Pal were brothers of Hukum Singh, Jai
Bhagwan's father. Whenever his sister would
visit her parent's home, she complained about
the demand of dowry and harassment by her
mother-in-law. The same demand was also
made to him, which he could not fulfill on
account of his poverty. About one year and
nine months ago, Dharampal and Mahipal
came to his house and informed him that on
the night of 11/12.10.1988, at about 11:00
p.m., his sister had been killed by Omwati,
Vijay Pal, and Om Pal by administering
poison mixed in milk and her body cremated
on their plot at about 4:00 a.m. Thereafter, the
informant went to village Bhaila, made
inquiries from different persons, and lodged
the FIR.

10. P.W.2, Dharampal, is stated to be a
witness, who was present in village Bhaila on
the day of the incident. According to P.W.2,
he along with Mahipal had gone to purchase
a jhota-buggi. They selected the jhota of Jai
Bhagwan. Upon Jai Bhagwan's request they
stayed at his gher as it had become dark. At
about 10-11 p.m., a woman came to Jai
Bhagwan's gher and told him that his wife
had been poisoned. Thereupon, he went to Jai
Bhagwan's house alongwith Mahipal. Some
residents of the village, Bhaila were also
present there. Vimlesh was lying on a cot and
she was vomiting. Omwati, Vijay Pal, and
Om Pal were also present there. Vimlesh said
to Jai Bhagwan, "अब तो थारे च़ैन पड़ जायगी,
टेलीविजन, सोफासेट ि नकद रूपया लमल
जायेगा," and also said, "मुझे ओमिती, विजय
पाल ि ओमपाल ने गेहूूँ में रखने की गोली दूध में
खखला दी ह़ै।" After saying so, she died.
Thereafter, the appellant, Omwati said, "मेरी
बुद्धध खराब हो गयी थी। मैंने अनाज में रखने
की गोली इसे दूध के साथ दे दी।" Thereafter, at
about 4:30 a.m., they took Vimlesh's dead
body to their plot and burnt it. He has also
12 All. Smt. Omwati & Ors. Vs. State of U.P.
429
said that he objected asking the appellants not
to burn the body, but they did not agree.

11. P.W.3 Mahipal is also a man, who
was present in village Bhaila along with
P.W.2 at the time of occurrence. He said
that after receiving information that poison
had been administered to Vimlesh, he,
along with Jai Bhagwan and Dharampal,
went Vimlesh's house, where she was
suffering in agony and asking Omwati
whether her desire for a sofa set, TV, and
cash had been fulfilled. Thereafter, she
died. The appellants were present there and
Vimlesh did not say anything else. We
asked Omwati, what she had done, she said
that she had committed a mistake and had
administered a wheat pill tablet mixed in
milk. Thereafter, the appellants, Vijay Pal
and Om Pal insisted on performing her last
rites. He told the appellants to inform the
Police about the incident, but they refused.
Thereafter they picked up the dead body
and carried it to their plot.

12. P.W.4, Kishan Singh, a resident of
the same village where the incident
occurred, has not supported the prosecution
case and turned hostile. He said that he
does not know the circumstances under
which Vimlesh died.

13. P.W.5, Rohitash, also a resident of
the village, has also turned hostile and said
that he was not present at the time when
Vimlesh died.

14. P.W.6, R.D. Singh, Circle Officer,
was the Investigating Officer of the case.
He said that he conducted the investigation,
inspected the place of occurrence, and
prepared
its
site
plan
(Ext.
Ka-2).
Thereafter, he went to the place where the
deceased was burnt and prepared its site
plan (Ext. Ka-3). He also said that he
collected the cremated bones and ashes of
the deceased from the place where the body
was cremated and prepared the recovery
memo
(Ext.
Ka-4).
After
collecting
evidence, he filed a charge-sheet against
the appellants, Omwati, Vijay Pal, and Om
Pal.

15. After closure of the prosecution
evidence, statements of the appellants were
recorded under Section 313 Cr.P.C. In their
statements,
they
have
admitted
that
Vimlesh was married to Jai Bhagwan, but
they said that the marriage was solemnized
about 8-9 years ago. It was also said that
Vijay Pal and Om Pal are not the brothers
of Hukum Singh. They have denied the
prosecution case and said that during the
days when this incident occurred, Vimlesh
was pregnant. On the night of the incident,
Vimlesh suffered a miscarriage, due to
which she died. This information was
conveyed to her parental home (a reference
to her relation thus). The informant,
Satyapal,
came
over
before
whom
Vimlesh's last rites were performed.

16. The accused have produced
D.W.1, Pratap Singh, in their defence.
D.W.1 has stated, on oath, that he knows
the informant and the accused. The
marriage of Jai Bhagwan (husband of the
deceased) was solemnized about 11 years
ago. He participated in the marriage. He
has heard that Jai Bhagwan's wife died due
to miscarriage. He participated in her last
rites. The informant, Satyapal Singh, and
others from the deceased's parents side
were also present there. She died at about
4:00 a.m., and her last rites were performed
at about 10:00 a.m.

17. The learned Trial judge, after
considering the evidence, adduced by both
parties, passed the impugned judgment and
430 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 11.06.1991, whereby the
appellants, Smt. Omwati, Vijay Pal, and
Om Pal, were convicted and sentenced
under Sections 304B/34 and 201 I.P.C. as
indicated above.

18. Heard Mr. Ashok Kumar Singh
Bais, learned Counsel for the appellants
and Ms. Divya Ojha, learned Additional
Government Advocate-I for the State.

19. It is submitted on behalf of the
appellants that the learned Trial Court has
not properly considered the evidence of
both parties. The marriage of the deceased,
Vimlesh,
was
solemnized
with
Jai
Bhagwan about 8-9 years ago. The
appellants, Vijay Pal and Om Pal, are not
the relatives of Jai Bhagwan (husband of
the deceased) and do not reside with Smt.
Omwati (mother-in-law of the deceased).
They would not have gained directly or
indirectly from any demand for dowry.
There is no evidence that they demanded
dowry or subjected the deceased to torture
or harassment for want of dowry. There is
also no evidence that they administered
poison to the deceased or assisted Smt.
Omwati in administering it. There is no
evidence to show that they cremated the
dead body of the deceased and thereby
caused the disappearance of evidence of the
crime. It is also said that P.W.2 Dharampal
and P.W.3, Mahipal are chance witnesses
as well as interested witnesses, being
relatives
of
P.W.1
Satyapal
Singh
(informant). Therefore, their evidence is
not reliable.

20. On the other hand, the learned
A.G.A. has submitted that the prosecution
has proved its case against the appellants.
P.W.1, Satyapal Singh is the deceased's
brother and has supported the prosecution
case regarding the demand of dowry and
the torture of the deceased. P.W.2,
Dharampal and P.W.3, Mahipal were
present in the village when the deceased
died. They have supported the prosecution
case. There is no ambiguity in the
prosecution evidence. The deceased gave
her dying declaration before Dharampal
and Mahipal, and there was an extrajudicial confession by her mother-in-law,
Omwati as well. It is also submitted that
appellants administered poison to deceased,
Vimlesh, and after her death, secretly burnt
her dead body on their plot at about 4:00
a.m. Thus, the prosecution case is proved
beyond reasonable doubt.

21. In the present case, the appellants
have been convicted for offence punishable
under Section 304-B and 201 I.P.C. Section
304-B IPC reads as follows:-

"(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."

22. In Harjit Singh v. State of
Punjab; (2006) 1 SCC 463, the Supreme
12 All. Smt. Omwati & Ors. Vs. State of U.P.
431
Court held that, in cases falling under
Section 304-B IPC, the prosecution must
prove the following essential ingredients
for the offence of 'dowry death'.

(a) The death of a woman must
have been caused by any burns or bodily
injury, or must have occurred otherwise
than under normal circumstances;

(b) The death must have been
caused within seven years of her marriage;

(c) Soon before her death, she
must have been subjected to cruelty or
harassment by the husband or any relative
of her husband; and

(d) Cruelty or harassment must
be for, or in connection with, any demand
for dowry."

23. The Supreme Court has further
held that if the aforesaid four ingredients are
established by the prosecution, then the death
can be called a 'dowry death', and the husband
and/or relatives of the husband, as the case
may be, shall be deemed to have caused the
dowry death. The word 'dowry' has been
defined under Section 2 of the Dowry
Prohibition Act, 1961 which provides that
dowry means any property or valuable security
given or agreed to be given either directly or
indirectly by one party to a marriage to the
other party to the marriage or by the parents of
either party to a marriage or by any other
person, to the other party to the marriage or to
any other person. The dowry must be given or
agreed to be given at or before or any time
after the marriage in connection with the
marriage of the said parties.

24. Section 113-B Indian Evidence
Act raises a presumption as to the 'dowry
death', which reads as follows:-

"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 had 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 304-B of the
Indian Penal Code (45 of 1860)."

25. In the light of above legal position,
it has to be seen whether the prosecution
has proved its case. According to the
prosecution, the deceased, Vimlesh, was
married to Jai Bhagwan since about five
years before her death. P.W.1, Satyapal
Singh, brother of the deceased, has said that
the marriage of his sister, Vimlesh, was
solemnized with Jai Bhagwan about five
years ago. The defence has not put any
question to this witness to rebut or
contradict the said fact. The effect of
failure to cross-examine a witness fell for
consideration of the Supreme Court in
State of U.P. Vs Nahar Singh (Dead) and
Others (1998) 3 SCC 56, in which, the
informant (P.W.1) was not cross-examined
by the appellant on the point of explanation
of delay in lodging the complaint. It was
held that since the evidence of P.W.1 had
remained unchallenged on the explanation
of delay, the same ought to have been
believed by the High Court.

26. Further, in Muddasani Venkata
Narsaiah
(Dead)
through
Lrs
Vs
Muddasani Sarojana, (2016) 12 SCC 288
, the Supreme Court has observed that a
party is obliged to put his case in crossexamination of witnesses of the opposite
party. The rule of putting one's version in
the cross-examination is not merely a
technical one but is one of essential justice.
In case of non-cross examination of the
432 INDIAN LAW REPORTS ALLAHABAD SERIES
witness on a particular fact, the Court
would presume that the witness account has
been accepted.

27. Again, in Arvind Singh V State
of Maharashtra, (2020) 8 SCC 302, it was
held that the prosecution is required to
bring home the guilt beyond reasonable
doubt. It would be open to the accused to
raise such reasonable doubt by crossexamination of the prosecution witnesses to
discredit
them
in
respect
of
their
truthfulness and veracity. A party intending
to bring evidence to impeach or contradict
the testimony of a witness must give an
opportunity to the witness to explain or
answer when the witness is in the witness
box.

28. The principle then is clear that
unless the witness is cross-examined on a
particular point while in the witness-box
and afforded an opportunity to explain, his
evidence on that point would be treated to
have been accepted by the opposite side.
Thus, the testimony of P.W.1 on the point
of marriage of the deceased would be
treated to be accepted by defence.

29. On the other hand, the appellants,
in their statements, recorded under Section
313 Cr.P.C., have said that the marriage of
Vimlesh was solemnized 8-9 years ago.
The defence has produced D.W.1, Pratap
Singh, who has said that the marriage of
Vimlesh was solemnized about eleven
years ago. The period of marriage, he has
said is not as per defence case. D.W.1, in
his deposition, has given the date of
marriage also, but no documentary proof in
this regard has been produced by the
defence. The Investigating Officer has also
not collected any documentary proof with
regard to the date or time period of the
deceased's marriage. The prosecution has
contradicted this witness by giving a
suggestion otherwise. D.W.1 has not
explained the reason why he would still
remember the deceased's date of marriage
after such a long lapse of time. Even the
appellants have not given the date of
marriage of the deceased. Thus, the
testimony of D.W.1, on this point, is not
reliable.

30. In view of the above, it is held that
the deceased, Vimlesh, was married to Jai
Bhagwan about five years ago since before
her death.

31. According to the prosecution, the
deceased was administered poison by
mixing it in milk, as a result of which, she
died. On the other hand, it is the case of the
defence that the deceased was pregnant and
on
the
fateful
night,
there
was
a
miscarriage, due to which, she died. In the
present case there is no inquest report and
post-mortem report for the deceased. In
either of the two eventualities, the death of
the deceased cannot be held normal.
Therefore, the death of the deceased
occurred otherwise than under normal
circumstances.

32. The FIR was lodged by P.W.1,
Satyapal Singh, the deceased's brother. It
has nowhere been said in the FIR that the
appellants, Vijay Pal and Om Pal ever
demanded dowry from the deceased or the
informant and harassed the deceased due to
the above demand. The allegation of
demand of dowry is against the appellant
Omwati
(the
mother-in-law
of
the
deceased) alone. P.W.1, Satyapal Singh has
said that it was Omwati, the mother-in-law
of the deceased, who was demanding a
television and cash in dowry. Due to the
said demand, she harassed the deceased.
P.W.1, Satyapal Singh, has not deposed of
12 All. Smt. Omwati & Ors. Vs. State of U.P.
433
any particular act of cruelty or harassment
by Omwati. He has not spoken of any
instance when the alleged demand of
dowry or harassment of the deceased took
place.

33. Learned counsel for the appellants
drew the attention of the Court to Criminal
Appeal No.1076 of 2014 (Karan Singh vs.
State of Haryana), decided on 31.01.2025
by the Supreme Court. The said case also
related to a dowry death, where there were
allegations regarding demand of dowry and
cruelty or harassment meted out to the
victim. In that context, the Supreme Court
held that while deposing about the demand
of dowry, the witnesses had not stated any
particular act of cruelty or harassment by
the appellant, which is an essential
ingredient of Section 304-B IPC. The
aforesaid judgment is fully applicable to
the present case, as the informant in the
present matter too has not deposed to any
specific act of cruelty or harassment of the
victim.

34. The appellants, Vijay Pal and Om
Pal are residents of the same village,
Bhaila. There is no evidence to show that
they live together with co-appellant,
Omwati. According to the prosecution, the
appellants, Vijay Pal and Om Pal are the
maternal uncles-in-law of the deceased, and
P.W.1 Satyapal Singh, has said that they
are brothers of Hukum Singh (father of Jai
Bhagwan). Both appellants have denied
that they are brothers of Hukum Singh and
said that Hukum Singh's father was Kashi
Ram, whereas their father's name is
Chhajju Singh. They live separately from
Omwati.

35. To attract the offence under
Section 304-B IPC, the prosecution has to
prove that the cruelty was committed by the
husband or the relatives of the deceased's
husband.
In
the
present
case,
the
prosecution has failed to prove that the
appellants, Vijay Pal and Om Pal, are
relatives of Jai Bhagwan, the husband of
the deceased. According to P.W.1, he
received information about the death of his
sister the next day. Therefore, P.W.1 is not
an eye-witness to the incident and his
statement is only with regard to the demand
of dowry and harassment of his sister, a
fact which, the prosecution have failed to
prove.

36. The prosecution has examined
P.W.2, Dharampal and P.W.3, Mahipal to
prove that the appellants committed murder
of the deceased and the deceased made a
dying declaration before them in this
regard. Thereafter, in order to cause
destruction of evidence of the crime, her
dead body was cremated in the early hours
of the next day. Upon a perusal of the
testimony of both these witnesses, their
evidence does not inspire confidence, and it
is very hard to believe their version of the
story. Admittedly, both these witnesses are
residents of another village. Therefore,
their presence at the place of occurrence is
not normal and both of them are chance
witnesses. Being chance witness their
testimony is to be closely scrutinized.

37. It has come out in P.W.1, Satyapal
Singh's evidence that P.W.2, Dharampal, is
the elder brother of Sompal, to whom his
other sister is married. Thus, P.W.2,
Dharampal, is a relative of the informant.
P.W.3, Mahipal, is also a distant relative of
the informant. The prosecution's case is that
both these witnesses went together to the
village of Bhaila to purchase a jhota-buggi.
According to the statement of P.W.2,
Dharampal, they liked and selected Jai
Bhagwan's
jhota-buggi.
According
to
434 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.3, Mahipal, they also settled the price
to purchase this jhota-buggi. However,
since it was late for them to return to their
respective villages, they stayed overnight at
the house of Jai Bhagwan. It has come out
in the testimony of P.W.2, Dharampal that
he did not purchase the jhota-buggi from
Jai Bhagwan, but instead purchased it from
Jalalabad about 20-25 days later. P.W.3,
Mahipal, has also stated that Dharampal
purchased a jhota-buggi after 5-7 days of
the incident from someone else. The
prosecution
has
not
clarified
why
Dharampal refused to purchase the jhotabuggi from Jai Bhagwan later, despite
initially liking it and agreeing to purchase
it. This lends weight to the appellants'
argument that the purpose of their visit to
Bhaila was concocted. Both P.W.2 and
P.W.3 are resident of Shabbirpur, and,
according to P.W.2, Dharampal their
village is 4 miles away from Bhaila. It has
come in evidence of P.W.2 and P.W.3 that
the price to purchase the jhota buggi was
settled by 6:00 p.m. It was not too late for
them to return home to their village.
Therefore, their stay in village, Bhaila is
not a normal event or happending.

38. Besides this, P.W.2 Dharam Pal
said that he did not go to the Police
Station to lodge the report, as he did not
deem it necessary. On the other hand,
P.W.3 Mahipal said that they would have
lodged the FIR at the Police Station if
someone had allowed them to do so.
P.W.3 had said that the appellants would
not let them go. Therefore, the two
witnesses could not go to the Police
Station to lodge a report. Both the above
stands are contradictory to each other and
the reason shown by both of them in not
going to the Police Station to lodge an
FIR
is
not
very
convincing
and
dependable.

39. According to P.W.1 Satyapal
Singh, on the next day of the incident, he
went to village, Bhaila and inquired of the
villagers regarding the cause of his sister's
death. Thereafter, he lodged the FIR on the
following day. P.W.1 has not disclosed the
name of any person from whom he
gathered information about the cause of her
death. The prosecution has not produced
any such person in support of the
prosecution case. The prosecution has
produced P.W.4, Kishan Singh and P.W.5,
Rohitash, both residents of the same
village, where the incident occurred. Both
of them have not supported the prosecution
case and turned hostile.

40. It has come in the testimony of
P.W.1, Satyapal Singh that Jai Bhagwan,
(the husband of the deceased), was the love
son of his parents. His father had died, and
he was living with his mother. He had his
own house and agricultural land in the
village. The appellants, Vijay Pal and Om
Pal lived separately and had no close
relations with Jai Bhagwan. They would
not have benefited by the demand of any
such dowry. There is also no evidence that
they raised a demand for dowry and
harassed the deceased. The facts necessary
to reverse the burden and attract the
presumption under Section 113-B of the
Evidence Act have not been proved by the
prosecution vis a vis the appellants, Vijay
Pal and Om Pal. In view of the above, the
burden was on the prosecution to prove the
reason, which led the appellants to commit
the dowry death of the deceased with the
help
of
co-appellant,
Omwati.
The
prosecution has failed to establish such
motive for them to commit this crime.

41. According to the prosecution, the
deceased had made a dying declaration
before Dharampal and Mahipal. Section 32
12 All. Smt. Omwati & Ors. Vs. State of U.P.
435
(1) Indian Evidence Act, dealing with the
admissibility of dying declaration by a
person relating to cause of his own death, is
as follows:

"32. Cases in which statement of
relevant fact by person who is dead or
cannot be found, etc., is relevant.

Statements, written or verbal, or
relevant facts, made by a person who is
dead, or who cannot be found, or who has
become incapable of giving evidence, or
whose atttendance cannot be procured,
without an amount of delay or expense
which under the circumstances of the case
appears to the Court unreasonable, are
themselves relevant facts in the following
cases :

(1)When it relates to cause of
death. - When the statement is made by a
person as to the cause of his death, or as to
any of the circumstances of the transaction
which resulted in his death, in cases in
which the cause of that person's death
comes into question. Such statements are
relevant whether the person who made
them was or was not, at the time when they
were made, under expectation of death, and
whatever may be the nature of the
proceeding in which the cause of his death
comes into question.
(2).................................................."

42. It is settled law that a dying
declaration is an important piece of
evidence under Section 32(1), Evidence
Act and if a dying declaration is found to
be reliable, true and voluntary, then there is
no need for corroboration by witnesses and
conviction can be recorded on its basis
alone. But, at the same time, a dying
declaration like any other evidence has to
be tested on the touchstone of credibility to
be acceptable. This is more so, as the
appellants do not get an opportunity to
question the veracity of the statement by
cross-examination.

43. In the light of above legal position,
the version given by P.W.2, Dharampal and
P.W.3, Mahipal with regard to the dying
declaration by the deceased is not reliable.
P.W.2, Dharampal and P.W.3 Mahipal
have said that while they were staying at
the Gher with Jai Bhagwan on the fateful
night at about 10-11 p.m., a woman came
to the gher and informed Jai Bhagwan that
his wife had been administered poison.
Thereafter, they along with Jai Bhagwan,
went to his house where few men and
women of the village were already present.
The appellants, Omwati, Vijay Pal and Om
Pal were also present there. P.W. 2,
Dharmpal has said that Vimlesh was lying
on a cot and was vomiting. Then Vimlesh
said to Jai Bhagwan, "अब तो थारे च़ैन पड़
जायगी, टेलीविजन, सोफासेट ि नकद रूपया
लमल जायेगा।" and also said, "मुझे ओमिती,
विजय पाल ि ओमपाल ने गेहूूँ में रखने की
गोली दूध में खखला दी ह़ै।" After saying so,
she died.

44. In his cross-examination, P.W.2,
Dharampal has deposed differently by
saying
that
Vimlesh
was
slightly
unconscious and was murmuring that her
mother-in-law had administered a tablet
used for preserving wheat and Vimlesh
died while murmuring these words. In his
cross-examination, he did not say that
Vimlesh said anything against the surviving
appellants, Vijay Pal and Om Pal of their
involvement in the crime.

45. P.W.3, Mahipal has deposed that
Vimlesh was in severe agony and said to
Omwati that the latter's desire for a
television, sofa set and cash was fulfilled or
436 INDIAN LAW REPORTS ALLAHABAD SERIES
not ? Thereafter, she died and did not utter
any other word. In this statement too, there
is nothing said against the surviving
appellants, Vijay Pal and Om Pal that they
administered poison to the deceased or
assisted Omwati in administering it. There
is no case that Jai Bhagwan, the husband of
the deceased, demanded dowry or was
involved in his wife's death. So why the
deceased, Vimlesh would utter words to Jai
Bhagawan about fulfillment of his demand
for dowry. The Investigating Officer has
not taken down the statement of Jai
Bhagwan though he is said to have been
present on the spot. In view of these
contradictions with regard to the dying
declaration of the deceased, the dying
declaration
of
the
deceased
is
not
believable or reliable. Importantly, there is
nothing in the dying declaration against
appellants, Vijay Pal and Om Pal that they
played a role in the death of the deceased.

46. It is also relevant to mention that
the Investigating Officer recorded the
statements of P.W.2 and P.W.3 after more
than three months of the date when the FIR
was lodged. The prosecution has not given
any explanation for this delay. Though the
names of these witnesses were mentioned
in the FIR, being material witnesses, their
statements should have been recorded
promptly. The belated recording of their
statements without sufficient reason, also
raises suspicion about the prosecution case.

47. The appellant, Omwati, who died
during the pendency of this appeal, had
made on extra-judicial confession before
Dharampal and Mahipal. It is a settled
principle of the law that an extra-judicial
confession made by an accused, under
Section 24 Evidence Act, is a weak piece of
evidence.

48. In the present case, the extrajudicial confession was made by the coappellant, Omwati, against whom the
appeal has abated. According to P.W.2
Dharampal and P.W.3 Mahipal, she did not
say
anything
in
her
extra-judicial
confession against the surviving appellants,
Vijay Pal and Om Pal, regarding their
participation in the offence. Therefore, this
point
does
not
require
any
further
consideration by this Court.

49. It is the prosecution case that after
the death of the deceased, her dead body
was cremated by the appellants at about
4:00 a.m. in a plot of land belonging to the
appellants. The Investigating Officer has
collected the burnt bones and ashes from
the place where the dead body was
cremated, and, according to the site-plan, it
was a plot and not a cremation ground.
There is no evidence that the plot belonged
to the appellants. P.W.2 Dharampal has
said that he did not go with the dead body
for cremation, along with others, and had
returned to his house. P.W.3 Mahipal has
said that the appellants took the dead body
to their plot and he returned to his house.
None of the above two witnesses said that
the dead body of the deceased was
cremated in their presence.

50. It has come in the statements of
P.W.2 and P.W.3 that many villagers were
present at the house, including Omwati
(mother-in-law) and Jai Bhagwan (husband
of the deceased). The prosecution has not
proved who lit the pyre. It has also not been
proved in clear terms that the appellants,
Vijay Pal and Om Pal, cremated the dead
body along with co-appellant Omwati in
order to cause the disappearance of
evidence of the crime. In absence of such
evidence, it can not be said that the
12 All. Smt. Omwati & Ors. Vs. State of U.P.
437
appellants cremated the dead body and
caused disappearance of evidence.

51. In view of the above discussion,
we come to the conclusion that the Trial
Court failed to appreciate evidence in the
proper prospective and without applying
the settled principles of law, assumed that
not informing the informant about the death
of the deceased and cremation of the dead
body by night raised suspicion that the
appellants were involved in the crime. The
learned Trial Court also wrongly assumed
that the appellants committed the offence
and believed the prosecution case on the
ground that Jai Bhagwan, the husband of
the deceased, was not roped in this case,
which rules out the possibility of a false
implication of the appellants. It is a settled
principle of the law that strong suspicion
alone is not sufficient to convict an
accused, and suspicion, no matter how
strong, cannot replace legal proof in a
criminal trial. Proof is established through
evidence presented by the prosecution.
Suspicion is the distance between "may be
true" and "must be true." The prosecution
evidence must cover this distance with
'clear, cogent and unimpeachable' evidence
to bridge the gap. A Court cannot base a
conviction on mere conjectures or to accept
suspicion as proof, even if the accused fails
to explain certain things. Therefore, there is
no concrete evidence against the surviving
appellants, Vijay Pal and Om Pal regarding
their involvement in the offence.

52. The prosecution has failed to prove
the essential ingredients of dowry death
against the appellants, Vijay Pal and Om
Pal. It is not proved that they are relatives
of the deceased's husband. There is no
evidence that they demanded dowry. It is
also not proved that they committed cruelty
vis-a-vis the deceased soon before her
death. In view of the absence of essential
ingredients, the presumption of dowry
death against the appellants, under Section
113-B of the Indian Evidence Act, is not
attracted, as already remarked. It is also
material to note that the appellants, Vijay
Pal and Om Pal did not live in the same
house with the deceased and would not
benefit by the demand of dowry. There is
also no evidence that they cremated the
dead body of the deceased to destroy the
evidence
of
the
crime.
Thus,
the
prosecution has failed to prove its case
beyond reasonable doubt and the Trial
Court has not appreciated the evidence in
correct prospective. The learned Trial
Judge
has
illegally
convicted
the
appellants. Thus, the impugned judgment
and order passed by the Trial Court is liable
to be set aside and the appellants, Vijay Pal
and Om Pal deserve to be acquitted.

53 . In view of the above, the criminal
appeal is allowed. The impugned judgment
and order dated 11.06.1991 passed by the
Trial Court is set aside and the appellants,
Vijay Pal and Om Pal are acquitted of
offence punishable under Section 304-B
and 201 IPC.

54. The appellant, Vijay Pal is in
custody.