# Smt. Phulau @ Phoolwati & Anr v. State of U.P

- **Citation:** (2021) 2 ILRA 393
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-18
- **Case number:** Criminal Appeal No. 917 of 2001
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-phulau-phoolwati-anr-v-state-of-u-p-46805
- **Pages:** 29

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code,1860-Section 304-B, 498-Achallenge to-conviction- deceased had
died inside the house of appellants due to
burn injury-According to P.W.3 100%
burn injury was caused to the deceased
due to which her legs and feet were
charred- prosecution witness had seen
and
found
seven
sarees
and
two
petticoats worn/wrapped on the body of
the deceased -soon before her death
quarrel took place between husband and
wife-he was demanding a piece of land
and
she-buffalo-appellants
failed
to
produce any evidence in their defence to
rebut the statutory presumption provided
under Section 113-B of Evidence Actappellants failed to provide any document
that the deceased was suffering from
mental weakness- the prosecution has
succeeded to prove its case that deceased
was being harassed and tortured for want
of dowry-However, the Appellant no. 1
(mother-in-law) is acquitted-sentence of
appellant no. 2 (husband) is affirmed.(Para
1 to 85)

B. Where an accused is alleged to have
committed the murder of his wife and the
prosecution succeeds in leading evidence
to
show
that
shortly
before
the
394 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of crime they were seen
together or the offence takes placed in the
dwelling home where the husband also
normally resided, it has been consistently
held that if the accused does not offer any
explanation how the wife received injuries
or offers an explanation which is found to
be false, it is a strong circumstance which
indicates
that
he
is
responsible
for
commission of the crime.(Para 65)

The Appeal is partly allowed. (E-5)

List of Cases cited:-

## Text

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2 All. Smt. Phulau @ Phoolwati & Anr. Vs. State of U.P.
393

34. Thus, the prosecution has miserably
failed to prove its case beyond reasonable
doubt against the appellants. Learned trial
Court, without considering the aforesaid fact
and circumstance of the prosecution story,
has passed the impugned judgment and order
in cursory manner, which is liable to be setaside. Appellants Guddu and Naresh are
entitled for acquittal and consequently the
appeal is liable to be allowed.

35. I am, therefore, unable to uphold the
conviction and sentence of the appellants.
The impugned judgment and order, dated
26.02.2003, passed in Session Trial No.354
of 2001 (State of U.P. Vs. Guddu and
Another), is hereby set-aside. Both the
appellants, Guddu and Naresh are acquitted
and consequently, the appeal is allowed.

36. Appellants are on bail. Their bail
bonds are cancelled and sureties are
discharged.

37. Keeping in view the provision of
Section 437-A of the Code, appellants Guddu
and Naresh are hereby directed forthwith to
furnish personal bond of a sum of Rs.20,000/-
each and two reliable sureties each of the like
amount before the trial Court, which shall be
effective for a period of six months, along
with an undertaking that in the event of filing
of Special Leave Petition against this
judgment or for grant of leave, they, on
receipt of notice thereof, shall appear before
Hon'ble Supreme Court.

38. A copy of this judgment along with
lower court record be sent to trial Court by
FAX for immediate compliance.
----------
(2021)02ILR A393
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.02.2021
BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 917 of 2001

Smt. Phulau @ Phoolwati & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Shishir Pradhan, Dhirendra Pratap Singh,
Piyush Shrivastava, Surya Nath

Counsel for the Respondent:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code,1860-Section 304-B, 498-Achallenge to-conviction- deceased had
died inside the house of appellants due to
burn injury-According to P.W.3 100%
burn injury was caused to the deceased
due to which her legs and feet were
charred- prosecution witness had seen
and
found
seven
sarees
and
two
petticoats worn/wrapped on the body of
the deceased -soon before her death
quarrel took place between husband and
wife-he was demanding a piece of land
and
she-buffalo-appellants
failed
to
produce any evidence in their defence to
rebut the statutory presumption provided
under Section 113-B of Evidence Actappellants failed to provide any document
that the deceased was suffering from
mental weakness- the prosecution has
succeeded to prove its case that deceased
was being harassed and tortured for want
of dowry-However, the Appellant no. 1
(mother-in-law) is acquitted-sentence of
appellant no. 2 (husband) is affirmed.(Para
1 to 85)

B. Where an accused is alleged to have
committed the murder of his wife and the
prosecution succeeds in leading evidence
to
show
that
shortly
before
the
394 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of crime they were seen
together or the offence takes placed in the
dwelling home where the husband also
normally resided, it has been consistently
held that if the accused does not offer any
explanation how the wife received injuries
or offers an explanation which is found to
be false, it is a strong circumstance which
indicates
that
he
is
responsible
for
commission of the crime.(Para 65)

The Appeal is partly allowed. (E-5)

List of Cases cited:-

1. Gurnaib Singh Vs St. of Punj. (2013) CJ SC
2413

2. St. of Karnataka Vs Dattaraj & ors. (2016) CJ
SC 202

3. Baijnath & ors. Vs St. of M.P. (2017) 1 SCC
101

4. Sujit Biswas Vs St. of Assam (2013) 12 SCC
406

5. Sher Singh @ Partapa Vs St. of Haryana
(2015) 3 SCC 724

6. Budhiman Singh Vs St. of U.P. (2018) CJ All
274

7. Kashmiri Devi Vs St. of U.K.(2020) AIR SC
652

8. Jatinder Kumar Vs St. of Haryana (2020) AIR
SC 161

9. Shanti Vs St. of Haryana (1991) SCC (Cri.)
191

10. Anil Rai Vs St. of Bih. (2001) SCC (Cri.)
1009

11. Pala Singh & anr. Vs St. of Punj. (1972) AIR
SC 2679

12. Sarwan Singh & ors. Vs St. of Punj. (1976)
AIR SC 2304

13. Preet Pal Singh Vs St. of U.P. (2020) AIR SC
3995
14. Raj Kumar Vs St. of Punj. (2010) 15 SCC
362

15. Radha Mohan Singh @ Lal Saheb Vs St. of
U.P. (2006) 1 SCC (Cri.) 661

16. Podda Narayana Vs St. of A.P. (1975) AIR SC
1252

17. Shakila Khader Vs Nausher Gama (1975)
AIR SC 1324

18. Eqbal Baig Vs St. of A.P. (1987) AIR SC 923

19. Khujji @ Surendra Tiwari Vs St. of M.P.
(1991) SC 1853

20. Kans Raj Vs St. of Punj. (2000) 5 SCC 207

21. Sham Lal Vs St. of Haryana (1997) 9 SCC
759:1997 SCC (Cri) 759

22. Rajindar Singh Vs St. of Punj. (2015) SC
1359

23. Surindra Singh Vs St. of Haryana (2014) 4
SCC 129

24. Sher Singh Vs St. of Haryana (2015) 3 SCC
724

25. Dinesh Vs St. of Haryana (2014) 12 SCC 532

26. Sher Singh Vs St. of Haryana (2015) 1
SCALE 250

27. Dinesh Vs St. of Haryana (2014) 5 SCALE
641

28. Om Prakash Vs St. of Punj. (1992) 4 SCC
212

29. Arun Garg Vs St. of Punj. (2004) 8 SCC 251

30. Trimukh Maroti Kirkan Vs St. of Mah. (2006)
10 SCC 681

31. Nika Ram Vs St. of H.P. (1972) AIR SC 2077

32. St. of T.N. Vs Rajendran (1999) 8 SCC 679

33. St. of Karn. Vs Suvarnamma (2015) 1 SCC
323
2 All. Smt. Phulau @ Phoolwati & Anr. Vs. State of U.P.
395
34. Behari Prasad & ors. Vs St. of Bih.(1996)
SCC (Crl.) 271

35. Bahadur Naik Vs St. of Bih. (2000) AIR SC
1582

36. Ram Gulam Choudhary Vs St. of Bih.(2001)
AIR SC 2842

37. Krishna Mochi & ors. Vs St. of Bih.(2002)
AIR SC 1965

38. St. of Karn. Vs Bhaskar Kushali Kotharkar &
ors. (2004) AIR SC 4333

39. Naresh Kumar Vs St. of Haryana (2015) 1
SCC 797
(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. This criminal appeal, under Section
374 (2) Code of Criminal Procedure, 1973
(hereinafter referred to as "Code"), has
been filed against the judgment and order
dated 28.09.2001, passed by Additional
Sessions Judge, FTC No.1, Raebareli in
Sessions Trial No.76 of 1991, arising out of
Crime No.89 of 1990, Police Station
Shivratanganj, District Raebareli, whereby
appellant no.1-Smt.Phulau @ Phoolwati
and appellant no.2 Bharat Sharan Singh
(hereinafter referred to as 'appellants') have
been convicted and sentenced for seven
years rigorous imprisonment for offence
under Section 304-B IPC ; for one year
rigorous
imprisonment
with
fine
of
Rs.500/- each for offence under Section
498-A IPC. It has further been provided
that both the sentences of the appellants
shall run concurrently.

2. The prosecution case, in brief, is
that deceased Smt. Geeta, sister of Ram
Narain Singh, (P.W.1), was married with
Bharat
Sharan
Singh-appellant
no.2.
Appellant no.1 Smt. Phulau @ Phoolwati is
mother of appellant no.2. On 08.06.1990,
the informant (P.W.1) received information
through one Ram Krishna Raidas, resident
of village Pure Subedar Halmet of
Satgawan, (co-villager of appellants) that
the deceased had died, due to burn injury
on account of setting fire at her in-laws
house. On the said information, informant
(P.W.1) along with his family members,
rushed to the matrimonial house of
deceased and found that his sister Geeta
was lying dead inside the kitchen, in burnt
condition. Police was also present there and
when the police took out the dead body of
the deceased for inquest proceeding,
informant (P.W.1) and other persons
present there, saw that several sarees were
wrapped in the waist and stomach of the
deceased. The informant-(P.W.1) lodged
First Information Report (in short 'FIR')
(Ex.Ka.1) against the appellants and other
co-accused Manju Devi (since deceased
during trial), sister of appellant no.2, at
Police
Station
Shivratanganj,
District
Raebareli, on same day at about 17:10
hours, alleging that appellants and other coaccused were torturing and harassing the
deceased by making pressure on her
parents to transfer the landed property in
favour of appellant Bharat Sharan Singh
and also demanding she-buffaloes and due
to non-fulfillment of the said demand, they
had beaten the deceased so many times and
had caused her death by setting her ablaze.

3. On the basis of written report
(Ex.Ka.1),
Chik
FIR
(Ex.Ka.3)
was
prepared by S.I. Jai Karan Verma (P.W.4)
and Case Crime No.89 of 1990, under
Sections 498-A, 304-B IPC and Section 3/4
Dowry Prohibition Act (hereinafter referred
to as 'D.P. Act') was registered against the
appellants and co-accused Manju Devi by
making necessary entry in General Diary.
Before, the information (Ex.Ka.1) given by
P.W.1 at concerned Police Station, an
396 INDIAN LAW REPORTS ALLAHABAD SERIES
information (Ex.Kha.1) was already given
by one Indra Pal Singh, uncle of appellant
Bharat Sharan Singh, at 10:15 a.m. on
08.06.1990, regarding death of deceased,
alleging that deceased had died due to burn
injuries, while she was cooking food. On
that information, Station House Officer
Gaush Mohd. Khan (P.W.5) proceeded to
the place of occurrence, inspected the dead
body of the deceased, conducted the
inquest proceeding and prepared inquest
report (Ex.Ka.4) along with relevant
documents (Ex.Ka.5 to Ex.Ka.9), necessary
for post mortem examination. P.W.5 also
recovered a watch of the deceased, lying
near the dead body and prepared recovery
memo (Ex.Ka-10). Thereafter, the dead
body of the deceased was duly sealed and
was sent for post mortem examination
along with relevant police papers.

4. Dr. G.K. Srivastava, (P.W.3),
Senior
Surgeon,
District
Hospital,
Raebareli,
conducted
post
mortem
examination on the dead body of the
deceased Geeta Devi on 09.06.1990 at 4:30
p.m. and he found following ante-mortem
injuries on the body of the deceased:-

"Burn injuries Grade II to Grade
VI involving entire body (100% burn). Both
legs and feet charred. Skin at places black.
Base of vesicles red and inflamed. Singing
of scalp hairs."

5. According to P.W.3, at the time of
post mortem examination, the deceased
was about 24 years and her death was
caused due to shock as a result of antemortem burn injuries. He (P.W.3) found
seven burnt sarees and two petticoats
tightened around the waist of deceased
which were removed from the body of the
deceased after cutting the same. According
to
him,
he
prepared
post
mortem
examination report (Ex.Ka.2).

6. The investigation of the case was
entrusted to Investigating Officer, Dy. S.P.
Shri Bipin Bihari Chaubey, who visited the
place of occurrence, prepared site plan
(Ex.Ka.11),
recorded
statement
of
witnesses
and
after
conclusion
of
investigation, filed charge sheet (Ex.Ka.12)
against the appellants along with coaccused Km.Manju Singh. Cognizance of
the offence was taken by the concerned
Additional
Chief
Judicial
Magistrate,
Raebareli, under Sections 498-A, 304-B
IPC and 3/4 D.P. Act and since the offence
was exclusively triable by the Court of
Sessions, it was committed for trial, after
providing
the
copies
of
necessary
documents, as provided under Section 207
of the Code to the Court of Sessions Judge,
Raebareli for trial.

7. Charges for offence under Sections
498-A and 304 B IPC were framed but the
appellants and other co-accused pleaded
not guilty and claimed for trial.

8. During trial, the prosecution, in
order to prove its case, examined five
witnesses such as Ram Narain Singhinformant P.W.-1, Ram Murti Singh P.W.-
2, Dr. G.K. Srivastava P.W.-3, S.I. Jai
Karan Verma P.W.-4 and Gaush Mohd.
Khan as P.W.5.

9. The prosecution has also relied
upon 12 documentary evidences namely :
written report (Ex.Ka.1), Post mortem
report (Ex.Ka.2), Chik FIR (Ex.Ka.3),
Inquest report (Ex.Ka.4), documents related
to post mortem report (Ex.Ka.5 to 9),
Recovery memo (Ex.Ka.10), Site plan
(Ex.Ka.11), charge sheet (Ex.Ka.12).
2 All. Smt. Phulau @ Phoolwati & Anr. Vs. State of U.P.
397

10. During trial, co-accused Manju
Devi had died and the proceeding against
her was abated.

11.

After
conclusion
of
the
prosecution evidence, the statements of the
appellants were recorded under Section 313
of the Code wherein they admitted that the
deceased was married with appellant no.2
Bharat Sharan Singh in the year 1986, her
Gauna was solemnised after one year of
marriage and she had died in their house
due to burn injuries but denied the
prosecution story as well as the evidence.
They further stated that deceased was burnt
as she was cooking food at the time of
occurrence and thatch (chappar) also
caught fire. They further stated that at the
time of occurrence, they were not at their
home. Seeing the flame of fire and hearing
the noise of people, they reached there and
put off the fire with help of people, but they
were falsely implicated.

12. The appellants did not adduce any
evidence in their defence.

13. The trial Court, after considering the
evidence available on record in view of the
argument of learned counsel for the
appellants as well as the prosecution, vide
impugned judgment and order convicted and
sentenced the appellants, as mentioned above.

14. Aggrieved by the impugned
judgment and order, the appellants have
preferred this appeal.

15. Heard Shri Piyush Srivastava,
learned counsel for the appellants, Shri Tilak
Raj Singh, learned AGA for the State and
perused the record.

16. Learned counsel for the appellants
submitted that appellants are innocent and
have been falsely implicated in the present
case. Learned counsel further submitted
that deceased was mentally weak, she was
cooking food in the kitchen but suddenly
fire caught her and also to chappar of their
house (kitchen). He further submitted that
at the time of occurrence, none of the
appellants
including
co-accused
were
present in the house and on the alarm raised
by co-villager, the appellants and coaccused reached there and put off the fire
with their help but the deceased had died
due to burn injuries.

17. Learned counsel further submitted
that because the chik FIR (Ex.Ka.3) was
not signed by the informant (P.W.1); copy
of FIR was not received by P.W.1; FIR was
produced before the concerned Chief
Judicial Magistrate on 03.07.1990; and in
addition to above, in inquest report, the
presence of informant (P.W.1) was not
found whereas according to him, he was
present, hence, FIR was doubtful and antetime. Learned counsel further submitted
that FIR was lodged by delay and the
scriber of the FIR (Ex.Ka.1), brother of
P.W.1, was also not examined because if he
was produced, he would support the
defence story that the FIR was lodged antetime.

18. Learned counsel further submitted
that inquest proceeding was not conducted
by any Magistrate; deceased had not died
within seven years of her marriage; and the
prosecution has also not proved any
demand of dowry or any cruelty or
harassment with deceased, soon before her
death. Learned counsel further submitted
that the charge for demand of dowry i.e.
Section 3/4 D.P. Act was also not framed
and appellants were not convicted for the
offence of demand of dowry but the trial
Court has convicted the appellants for the
398 INDIAN LAW REPORTS ALLAHABAD SERIES
offence of dowry death. Learned counsel
further
submitted
that
independent
witnesses, including the witnesses of the
inquest
proceeding
and
Investigating
Officer were also not examined by the
prosecution.

19. Learned counsel further submitted
that Indrapal Singh, uncle of appellant
Bharat Sharan Singh, who had given
information to police for the first time
regarding the death of deceased was also
not examined by the prosecution. Learned
counsel further submitted that no complaint
regarding demand of dowry or harassment
was made by the informant earlier to this
occurrence.
Learned
counsel
further
submitted that the trial Court, without
considering the material available on record
in proper manner, has passed the impugned
judgment and order in a very cursory
manner which is liable to be set aside.

20. Learned counsel for the appellants
has placed reliance on the following
decisions, rendered by the Hon'ble Apex
Court :

(i) Gurnaib Singh vs. State of
Punjab 2013 CJ (SC) 2413 ;

(ii) State of Karnataka vs.
Dattaraj and others 2016 CJ (SC) 202 ;

(iii) Baijnath and others vs. State
of Madhya Pradesh (2017) 1 SCC 101 ;

(iv) Sujit Biswas vs. State of
Assam (2013) 12 SCC 406 ;

(v) Sher Singh @ Partapa vs.
State of Haryana (2015) 3 SCC 724 ;

(vi) Budhiman Singh vs. State of
U.P. 2018 CJ (All.) 274.

21.

Per
contra,
learned
AGA
vehemently opposed the submissions of
learned counsel for appellants and submitted
that death of the deceased has been caused by
burn injuries within seven years of her
marriage, inside the house of the appellants
and the deceased was tortured and harassed
soon before her death for demand of dowry.
Learned AGA further submitted that the fact
that the marriage of the deceased was
solemnised in the year 1986 and her death
was caused in 1990, due to burn injuries, has
been admitted by the appellants in their
statement under Section 313 of the Code.
Learned AGA further submitted that the
manner in which the death of the deceased
was caused i.e. after wrapping so many
clothes (seven sarees and two petticoats),
itself is evident that death of the deceased
was caused by the appellants. Learned AGA
further submitted that the appellants have also
failed to lead any evidence to prove that the
deceased was mentally weak or any type of
evidence in their defence. Learned AGA
further submitted that for the offence under
Section 304-B IPC., if the essential element
of dowry death is proved, the appellants may
be convicted for offence under Section 304 B
IPC., even if they were not put on trial for
offence under Section 3/4 D.P. Act. Learned
AGA further submitted that there is neither
any illegality in FIR nor in inquest report.
Learned AGA further submitted that medical
evidence is supported with ocular evidence
and the prosecution evidence cannot be
disbelieved only for want of independent
witnesses. Learned AGA further submitted
that the impugned judgment and order is well
discussed, well reasoned and requires no
interference. The appeal has no force and is
liable to be dismissed.

22. I have considered the rival
submissions made by learned counsel for
the parties and perused the record.

23. In Gurnaib Singh (supra), the
Hon'ble Supreme Court held that where the
prosecution had failed to prove demand of
2 All. Smt. Phulau @ Phoolwati & Anr. Vs. State of U.P.
399
dowry and cruelty and as the letters, written
by victim (deceased) to her father regarding
the
alleged
demand
of
dowry
and
harassment, was not produced in evidence,
modifying the conviction of the appellant
for offence under Sections 498-A, 304 B
IPC as the deceased did not consume
poison accidentally, convicted the appellant
for offence punishable under Sections 498A and 306 IPC and sentenced him for
seven years rigorous imprisonment.

24. In State of Karnataka vs.
Dattaraj (Supra), the Hon'ble Apex Court,
in peculiar facts and circumstances of that
case, found that there was no cruelty or
torture to the deceased by the appellant
soon before her death and the demand of
dowry was also doubtful, hence dismissed
the appeal, filed by the State, against
acquittal of appellant by the High Court.

25. In Baijnath (Supra), where the
appellant was exonerated by the trial Court
but convicted by the High Court and there
was evidence that appellant Baijnath was
living
separately,
appellants
were
sufficiently well-off as stated by defence
witnesses in the facts and circumstances of
the case, Hon'ble Apex Court held that only
the factum of unnatural death of deceased
in matrimonial home within seven years of
her marriage is not sufficient for the
offence under Sections 304-B, 498-A IPC
unless other ingredients of dowry death and
cruelty are proved by the prosecution.

26. In Sujit Biswas (Supra), the
Hon'ble
Supreme
Court,
where
the
important fact known to the informant was
missing in FIR in prosecution case of rape,
based on circumstantial evidence, in the
facts and circumstances of the case, set
aside the judgment of court below as well
as of High Court and allowed the appeal.

27. In Sher Singh @ Partapa
(Supra), the Hon'ble Supreme Court in the
facts and circumstances of the case, has
held that the initial burden is on the
prosecution to prove the ingredients of
Section 304-B IPC. Hon'ble Court, where
prosecution had failed to prove live link
and proximity between cruelty emanating
from dowry demand and death of deceased,
acquitting the appellant by setting aside the
judgment of conviction, allowed the appeal.

28. In Budhiman Singh (Supra), the
Single Bench of this Court has held that
mere bald allegation regarding demand of
dowry and cruelty or harassment to
deceased will not suffice the essential
ingredient of the provisions of dowry death
and the prosecution is under an obligation
to prove the factum of cruelty or
harassment due to demand of dowry soon
before the death of the deceased.

29. Appellants have been convicted
and sentenced for offence under Sections
304-B and 498-A IPC. Before considering
the evidence available on record, in the
light of arguments advanced by learned
counsel for the parties, it is necessary to
refer the relevant provision of law relating
to the offence in question i.e. Section 304B, 498-A IPC, Section 113-B of The Indian
Evidence Act, 1872 and also Section 2 of
D.P. Act, 1961, which reads as under :

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
400 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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.

498A. Husband or relative of
husband of a woman subjecting her to
cruelty.--Whoever, being the husband or
the relative of the husband of a woman,
subjects such woman to cruelty shall be
punished with imprisonment for a term
which may extend to three years and shall
also be liable to fine.

Explanation.--For the purpose of
this section, "cruelty" means--

(a) any wilful conduct which is of
such a nature as is likely to drive the
woman to commit suicide or to cause grave
injury or danger to life, limb or health
(whether mental or physical) of the woman;
or

(b) harassment of the woman
where such harassment is with a view to
coercing her or any person related to her
to meet any unlawful demand for any
property or valuable security or is on
account of failure by her or any person
related to her to meet such demand.

113B. Presumption as to dowry
death.--When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman has been subjected by
such person to cruelty or harassment for,
or in connection with, any demand for
dowry, the Court shall presume that such
person had caused the dowry death.

Explanation.--For the purposes of
this section, "dowry death" shall have the
same meaning as in section 304B, of the
Indian Penal Code.

Section 2 of Dowry Prohibition
Act- Definition of ''dowry'. In this Act,
"dowry" means any property or valuable
security given or agreed to be given either
directly or indirectly

(a) by one party to a marriage to
the other party to the marriage; or

(b) by the parent of either party
to a marriage or by any other person, to
either party to the marriage or to any other
person."

30. The above provision, related with
dowry death, clearly shows that if the death
of any woman is caused within seven years
of her marriage by burn or bodily injury
"or
otherwise
than
under
normal
circumstances" and it is shown that if soon
before the death of such woman, she was
subjected to cruelty or harassment by her
husband or any relative of her husband, in
connection with demand for dowry and if
the prosecution succeeds to prove the
above ingredient, such death shall be called
as dowry death. In addition to above,
Section 113-B of Indian Evidence Act,
1872 provides that in such cases, if it is
shown that such woman was subjected,
soon before her death by the accused, to
cruelty or harassment for in or connection
with any demand for dowry, the Court shall
presume that such accused had caused the
dowry death.

31. Ram Narain Singh (P.W.1),
brother of the deceased, has stated that the
deceased was married in the year 1986 with
appellant Bharat Sharan Singh and after
marriage, she had gone to matrimonial
home and lived with appellant for only two
days. He further stated that at the time of
marriage, sufficient dowry was given to the
appellants. He further stated that after one
2 All. Smt. Phulau @ Phoolwati & Anr. Vs. State of U.P.
401
year of her marriage, Gauna (second time
departure
from
paternal
house
to
matrimonial house) was performed. He
further stated that on 08.06.1990, he got
information at 10:00 a.m. that the deceased
had died due to burn injuries. He further
stated that upon that information, he went
to matrimonial home of the deceased, saw
that the deceased was wrapped in 6-7
sarees and her head and legs were burnt. He
further stated that he was sure that due to
non-fulfillment of dowry, (she-buffalo and
transfer of land) the appellants and Nanad
(co-accused Manju Devi) had caused death
of the deceased. Stating that when deceased
returned from her matrimonial house after
Gauna, she had told her father and family
members that appellants and co-accused
Manju Devi used to torture and beat her for
want of she-buffalo and transfer of land, he
further stated that she (deceased) had
returned to her parental house two months
prior to her death, and had again told that
appellants and co-accused were demanding
she-buffalo and landed property and also
used to beat her. Stating further that his
father and uncle Ram Murti Singh (P.W.2)
had also approached the appellants and
tried to convince the appellant Phulao but
she had told them that unless she-buffalo
was not given and land was not transferred
in favour of appellant Bharat Sharan Singh,
she would not bring the deceased to her
house. Stating further that on 24.5.1990,
just 15 days prior to the occurrence,
appellant Bharat Sharan Singh had returned
from Delhi and sent his maternal uncle
Rang Bahadur to bring her (deceased), he
further stated that the deceased was not
ready to go to her matrimonial house due to
fear and terror of harassment and torture,
caused by appellants and co-accused Manju
Devi, but upon being advised by family
member and co-villagers, he (P.W.1) and
his father had sent the deceased to her
matrimonial house but just after 6-7 days,
she was killed, due to burn injury, by
appellants and co-accused Manju Devi for
non-fulfillment of said demand i.e. transfer
of land and she-buffalo. Stating further that
when he reached the matrimonial home of
deceased, police was already present there
and was conducting inquest proceedings,
he further stated that written report,
(Ex.Ka.1), got prepared by his brother on
his dictation, was submitted by him at
concerned Police Station.

32. Ram Murti Singh (P.W.2), uncle
of deceased, has stated that his niece
(deceased) was married with appellant
Bharat Sharan Singh in the year 1986.
Stating further that the deceased had gone
to her matrimonial home after her marriage
and also after Gauna, he further stated that
deceased died in the year 1990. He further
stated that after Gauna whenever the
deceased used to come to her parental
home, she used to disclose that due to nontransfer of land and she-buffalo as a dowry,
they (appellants and co-accused Manju
Devi) used to harassed her. Stating further
that he had also tried to convince the
appellants and other family members, two
months prior to the occurrence but the
deceased was killed, due to burn injury,
caused by appellants and co-accused, he
further stated that he had also seen the dead
body of the deceased, lying in kitchen of
the appellants.

33. Dr. G.K. Srivastava (P.W.3) has
stated that on 09.06.1990, he was posted as
Medical Officer at District Hospital,
Raebareli and conducted the post mortem
of the deceased at 4:30 p.m. and prepared
post mortem report (Ex.Ka.2). (Injuries
noted by this witness has been mentioned in
paragraph Nos.4 and 5). According to this
witness,
membranes
of
brain
were
402 INDIAN LAW REPORTS ALLAHABAD SERIES
congested and liquified. According to him
further, stomach and urinary bladder were
empty and deceased had died due to shock
as a result of 100% ante-mortem burn
injuries.

34. S.I. Jai Karan Verma, (P.W.4),
Head Moharrir, posted at Police Station
Shivratanganj, on 08.06.1990, had stated
that he had prepared chik FIR (Ex. Ka.3),
on the basis of written information
(Ex.Ka.1), filed by Ram Narain Singh
(P.W.1). In cross examination, this witness
has admitted that before filing of written
report
(Ex.Ka.1),
an
information
(Ex.Kha.1) was given by Indrapal Singh on
08.06.1990 at about 10:15 a.m. mentioning
therein that the deceased had died due to
burn injuries while she was cooking food.

35. S.I. Gaush Mohd. Khan (P.W.5)
has stated that on 08.06.1990, on an
information (Ex.Kha.1), given by one
Indrapal Singh, he rushed to the place of
occurrence,
conducted
the
inquest
proceeding and prepared inquest report
(Ex.Ka.4) and also prepared relevant police
papers (Ex.Ka.5 to Ex.Ka.9), required for
post mortem examination. He further stated
that at the time of inquest report, he had
also recovered wrist watch and prepared its
recovery memo (Ex.Ka.10). He also stated
that he had found the body of deceased,
wrapped in several sarees. Stating that he
was fully acquainted with the handwriting
and signature of Investigating Officer,
Dy.Sp. Shri Bipin Bihari Chaubey, he
proved Site plan (Ex.Ka.11) and charge
sheet (Ex.Ka.12) prepared by Investigating
Officer. Stating that at the time of inquest
proceedings, Ram Narain Singh (P.W.1)
and appellant no.2 Bharat Sharan Singh
were also present and dead body of
deceased was drawn from the house with
their help, he further stated that dead body
of deceased was sealed in presence of
appellant Bharat Sharan Singh and Ram
Narain (P.W.1).

36. Offence of Section 304-B IPC is
grievous to Section 4 of D.P. Act. For trial
of accused under Section 304-B IPC, the
trial of accused under Section 4 of D.P. Act
is not mandatory because Section 4 of D.P.
Act provides punishment for demand of
dowry whereas Section 304-B IPC provides
punishment for dowry death. The meaning
and definition of 'dowry' in both these
sections are common and there are catena
of decisions, delivered by Hon'ble Apex
Court wherein without framing charge and
conviction for offence under Section 4 D.P.
Act, the prosecution had succeeded to
prove its case against accused/appellant for
offence under Section 498-A and 304-B
IPC (See Kashmiri Devi vs. State of
Uttarakand AIR 2020 SC 652 and
Jatinder Kumar vs.The State of Haryana
AIR 2020 SC 161.

37. In Shanti vs. State of Haryana
1991 SCC (Cri.) 191, Hon'ble Apex Court
where appellant was convicted only for
offence under Section 304-B IPC and not
for offence under Section 498-A IPC
confirming the conviction of the appellants
has held as under :

"6. Now we shall consider the
question as to whether the acquittal of the
appellants of the offence punishable under
Section 498-A makes any difference. The
submission of the learned counsel is that
the acquittal under Section 498-A IPC
would lead to the effect that the cruelty on
the part of the accused is not established.
We see no force in this submission. The
High Court only held that Section 304-B
and Section 498-A IPC are mutually
exclusive and that when once the cruelty
2 All. Smt. Phulau @ Phoolwati & Anr. Vs. State of U.P.
403
envisaged in Section 498-A IPC culminates
in dowry death of the victim, Section 304-B
alone is attracted and in that view of the
matter the appellants were acquitted under
Section 498-A IPC. It can therefore, be
seen that the High Court did not hold that
the prosecution has not established cruelty
on the part of the appellants but on the
other hand the High Court considered the
entire evidence and held that the element of
cruelty which is also an essential of Section
304-B IPC has been established. Therefore,
the mere acquittal of the appellants under
Section 498-A IPC in these circumstances
makes no difference for the purpose of this
case........."

38. Coming to the facts of this case,
record shows that in the present case,
charge sheet was also filed for offence
under Section 3/4 D.P. Act, in addition to
Section 304 B IPC and Section 498-A IPC.,
against the appellants but the trial Court
framed charge only under Sections 498-A
and 304-B IPC. Thus, it cannot be said that
either the appellants were acquitted for
offence under Section 4 of D.P. Act or the
prosecution was failed to prove the said
offence. Thus, in view of the above,
submission
of
learned
counsel
for
appellants that prosecution has failed to
prove its case under section 4 D.P.Act
hence, it failed to prove the demand of
dowry, has no force.

39. So far as submission of learned
counsel for the appellants that chik FIR
(Ex.Ka.3) was not signed by the informant;
copy of FIR was not received by him ; and
FIR
was
produced
before
Judicial
Magistrate on 03.07.1990; is concerned,
record shows that Ram Narain (P.W.1) has
clearly stated that he reached the place of
occurrence on an information given by one
Ram
Krishna
Raidas,
co-villager
of
appellants and saw that his sister had died
and inquest proceeding was conducted in
his presence. S.I. Gaush Mohd. Khan
(P.W.5) has also stated that at the time of
inquest proceeding, Ram Narain (P.W.1)
was present.

40. Perusal of record further shows
that FIR was lodged at 17:10 hours on
same day i.e. 08.06.1990, although this
witness Ram Narain (P.W.1) has stated that
he had not accompanied the dead body of
his sister from the place of occurrence but
on that very account, it cannot be said that
FIR was not lodged at the time shown in
Chik FIR (Ex.Ka.-3) and G.D. report
(Ex.Ka.5).

41. It is also pertinent to note that on
Chik FIR (Ex.Ka.3), Ram Narain (P.W.1)
has not put his signature. In this regard, it is
relevant to mention Section 154 of the
Code and Para 97 of the U.P. Police
Regulations, which reads hereasunder :

"154. Information in cognizable
cases. - (1) Every information relating to
the commission of a cognizable offence, if
given orally to an officer in charge of a
police station, shall be reduced to writing
by him or under his direction, and be read
over to the informant ; and every such
information, whether given in writing or
reduced to writing as aforesaid, shall be
signed by the person giving it, and the
substance thereof shall be entered in a
book to be kept by such officer in such form
as the State Government may prescribe in
this behalf.

(2) A copy of the information as
recorded under sub-section (1) shall be
given forthwith, free of cost, to the
informant.

(3) Any person aggrieved by a
refusal on the part of an officer in charge
404 INDIAN LAW REPORTS ALLAHABAD SERIES
of a police station to record the information
referred to in sub-section (1) may send the
substance of such information, in writing
and by post, to the Superintendent of Police
concerned who, if satisfied that such
information discloses the commission of a
cognizable offence, shall either investigate
the case himself or direct an investigation
to
be made
by any police
officer
subordinate to him, in the manner provided
by this Code, and such officer shall have all
the powers of an officer in charge of the
police station in relation to that offence."

Section
97
of
U.P.
Police
Regulations reads as under :

"97.
Whenever
information
relating to the commission of a cognizable
offence is given to an officer-in-charge of a
police station the report will immediately be
taken down in triplicate in the check receipt
book for reports of cognizable offences
(Police form No. 341). This step will on no
account be delayed to allow time for the true
facts to be ascertained by a preliminary
investigation. Even if it appears untrue, the
report must be recorded at once. If the report
is made orally, the exact words of the person
who makes it, including his answers to any
questions put to him should be taken down
and read over to him; he must sign each of
the three parts, or if he cannot write, he must
make his mark or thumb- impression. If a
written report is received an exact copy must
be made, but the signature or mark of the
messenger need not be taken. In all cases the
officer-in-charge of the station must sign
each of the three parts and have the seal of
the station stamped on each. The triplicate
copy will remain in the book : the duplicate
copy will be given to the person who makes
the oral or brings the written report ; the
original will be sent forthwith through the
Superintendent of Police to the Magistrate
having jurisdiction with the original written
report (if any) attached.

The practice of delaying first
information reports until they can be sent to
headquarters attached to special or general
diaries is contrary to the provisions of
Criminal Procedure Code and is prohibited.

If there is an Assistant or Deputy
Superintendent in charge of the sub-division,
and stationed at a place other than the
headquarters of the district, the original
should be sent through him to the
Magistrate." (Emphasis supplied)

42. Thus, from perusal of aforesaid
provision, it is clear that if the information,
relating to commission of cognizable
offence, is given orally to officer-in-charge
of Police Station, it shall be reduced into
writing, and thereafter be signed by the
informant but if written information is
given under signature or thumb impression
of the informant, and that information is
recorded in relevant police papers/diary,
signature of informant is not mandatory on
police papers/diary.

43. It is settled principle of law that if
FIR was lodged promptly and investigation
was started without any delay, delay in
sending the copy of FIR to the Magistrate
is immaterial. Hon'ble Apex Court in Anil
Rai vs. State of Bihar 2001 SCC (Cri.)
1009, while discussing the relevancy and
scope of Section 157 of the Code has held
as under:

"20. This provision is designed to
keep the Magistrate informed of the
investigation of such cognizable offence so
as to be able to control the investigation
and, if necessary, to give appropriate
direction under Section 159 of the Code of
Criminal Procedure. But where the F.I.R.
is shown to have actually been recorded
without delay and investigation started on
the basis of the F.I.R., the delay in sending
2 All. Smt. Phulau @ Phoolwati & Anr. Vs. State of U.P.
405
the copy of the report to the Magistrate
cannot by itself justify the conclusion that
the investigation was tainted and the
prosecution insupportable Pala Singh and
Anr. v. State of Punjab : AIR 1972 SC
2679. Extraordinary delay in sending the
copy of the F.I.R.