# Smt. Seema v. State of U.P

- **Citation:** (2022) 10 ILRA 249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Criminal Appeal No. 4599 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-seema-v-state-of-u-p-47712
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 498-A, 304-B,
201,
302
-
3/4
Dowry
Prohibition
Act,1961-Challenge
to-ConvictionAccidental death converted into dowry
death-Applicant and his wife met accident
while returning home on a motorcyclewife
succumbed
to
injuries-informant
gave a colour of accidental death to dowry
death-applicant
proved
the
medical
reports of the treatment while trial court
did not consider the Panchnama in proper
manner
upon
which
signature
of
informant was taken and he was also
present in the cremation-Hence, on the
basis of defence evidence, both oral and
documentary and in the circumstances of
the case, the convicts/appellants have
succeeded to create a doubt about the
genuineness of the prosecution case-It is
well settled principle of law that when the
genesis and the manner of the incident is
doubtful,
the
accused
cannot
be
250 INDIAN LAW REPORTS ALLAHABAD SERIES
convicted-Thus,
the
appellants
are
acquitted of the charges leveled against
them and the impugned order is set
aside.(Para 1 to 49)

B. In a criminal trial, if the accused
succeeds to create a reasonable doubt in
the mind of the Court as regards to his
guilt and on the basis of evidence-oral,
documentary or circumstantial adduced in
his defence, it is sufficient for his acquittal
because the burden to prove its case lies
heavily and solely beyond reasonable
doubt upon the prosecution. (Para 41 to
46)

The appeals are allowed. (E-6)

List of Cases cited:

## Text

10 All. Smt. Seema Vs. State of U.P.
249

44. In the present case, we have come
to the irresistible conclusion that the role of
the appellants is clear from the dying
declaration and other records. However, the
point which has also weighed with this
court are that the deceased had survived for
around two and half months after the
occurrence
and
ultimately
died
of
septicemia. In that view of the matter, we
are of the opinion that the conviction of the
appellants under section 302 of Indian
Penal Code is required to be converted to
that under section 304(I) of Indian Penal
Code and in view of the same appeal is
partly allowed and the sentence of the
accused persons/ appellant is reduced to the
period of 10 years with remission. The
period already under gone can be sustained
in the full period of incarceration.

45. The fine is reduced to Rs. 5000/-
each to be paid to the original complainant.
The default sentence would be 6 months
with
remission
and
will
run
after
completion of 10 years incarceration. The
accused persons have been languishing in
jail since long, at least each of them has
suffered for about 8 years of imprisonment
and must have repented to their deed which
was out of anger.

45. It is to be made clear that
accused/appellant Smt. Anguri Devi, has
already been released from the prison on
the basis of mercy petition of 4.8.2022
hence, she need not under go any
imprisonment.

Accordingly, the appeal is partly
allowed. Record and proceedings be sent
back to the court below forthwith
----------
(2022) 10 ILRA 249
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 4599 of 2015
with
Criminal Appeal No. 4601 of 2015
with
Criminal Appeal No. 4597 of 2015

Smt. Seema ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Atul Tej Kulshreshtha, Sri Rajrshi Gupta,
Sri Vinay Kumar Khokhar, Sri Vinay Singh,
Sri Dileep Kumar

Counsel for the Respondent:
G.A., Sri Braham Singh, Sri Sushil Kumar
Tewari

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 498-A, 304-B,
201,
302
-
3/4
Dowry
Prohibition
Act,1961-Challenge
to-ConvictionAccidental death converted into dowry
death-Applicant and his wife met accident
while returning home on a motorcyclewife
succumbed
to
injuries-informant
gave a colour of accidental death to dowry
death-applicant
proved
the
medical
reports of the treatment while trial court
did not consider the Panchnama in proper
manner
upon
which
signature
of
informant was taken and he was also
present in the cremation-Hence, on the
basis of defence evidence, both oral and
documentary and in the circumstances of
the case, the convicts/appellants have
succeeded to create a doubt about the
genuineness of the prosecution case-It is
well settled principle of law that when the
genesis and the manner of the incident is
doubtful,
the
accused
cannot
be
250 INDIAN LAW REPORTS ALLAHABAD SERIES
convicted-Thus,
the
appellants
are
acquitted of the charges leveled against
them and the impugned order is set
aside.(Para 1 to 49)

B. In a criminal trial, if the accused
succeeds to create a reasonable doubt in
the mind of the Court as regards to his
guilt and on the basis of evidence-oral,
documentary or circumstantial adduced in
his defence, it is sufficient for his acquittal
because the burden to prove its case lies
heavily and solely beyond reasonable
doubt upon the prosecution. (Para 41 to
46)

The appeals are allowed. (E-6)

List of Cases cited:
1. Maya Devi & anr. Vs St. of Har.(2015) 17 SCC
405

2. Neel Kumar @ Anil Kumar Vs St. of Har.
(2012) 5 SCC 766

3. Janak Yadav & ors. Vs St. of Bih. (1999) SCC
Crl. 558(559)

4. Munshi Prasad Vs St. of Bih. (2002) 1 SCC
351

5. Adam Bhai Suleman Bhai Ajmeri Vs St. of
Guj. (2014) 7 SCC 716

6. Rishi Kesh Singh & ors. Vs St.(1970) AIR All
51 FB

7. V.D. Jhingran Vs St. of U.P. (1966) AIR SC
1762

8. Harbhajan Singh Vs St. of Punj. (1966) AIR
SC 97

9. Bhikari Vs St. of U.P. (1966) AIR SC Pg 1

10. Pankaj Vs St. of Raj. (2016) AIAR Crl. 886
SC

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Nalin Kumar Srivatava, J.)

1. These criminal appeals have been
preferred by appellants Smt. Seema,
Devendra Singh and Praveen Singh against
the judgment and order dated 15.09.2015
passed by Additional District & Sessions
Judge / Fast Track Court No.2, Moradabad
in Sessions Trial No.1549 of 2008 (State
Versus Devendra Singh and others) arising
out of case crime no.701 of 2005 under
sections 498-A, 304-B, 201, 302 IPC and
section 3/4 Dowry Prohibition Act, Police
Station
Asmauli,
District
Moradabad
convicting and sentencing all the appellants
for the offence under section 498-A IPC to
undergo 2 years rigorous imprisonment
with fine of Rs.5000/- and in default of
payment of fine, three months further
rigorous imprisonment, for the offence
under section 304-B IPC to undergo
imprisonment for life, for the offence under
section 201 IPC to undergo 2 years
rigorous
imprisonment
with
fine
of
Rs.5000/- and in default of payment of fine,
three months further rigorous imprisonment
and for the offence under section 4 Dowry
Prohibition Act to undergo one year
rigorous
imprisonment
with
fine
of
Rs.5000/- and in default of payment of fine,
three
months
further
rigorous
imprisonment. All sentences were directed
to run concurrently.

2. Factual scenario as culled out from
the F.I.R. is that the informant (P.W.1)
solemnized the marriage of his daughter
with Devendra Singh (accused) on 8.4.2004
in which he spent around six lac rupees, but
her husband and in-laws' were not satisfied
with the dowry and they used to blame the
daughter of the informant for not fulfilling
their demand. Daughter of the informant
had told this fact to him and other family
members when she returned from her
10 All. Smt. Seema Vs. State of U.P.
251
matrimonial house. On 30.6.2004, when the
informant went to meet his daughter at her
in-laws' house, she told that her jeth, jethani
and mother-in-law had made a demand of
rupees five lacs and started extending
torture to her. On 31.10.2004, the informant
went to her daughter's place on the
occasion
of
karwachauth
and
made
complaint to Devendra, the husband,
regarding
harassment
and
additional
demand of dowry. On 18.11.2004, the
informant again visited her daughter's
matrimonial house, but no one was found
over there. On query being made, the
neighbours informed that Devendra, his
mother, his brother and bhabhi have
committed the murder of her daughter due
to demand of dowry and also destroyed the
evidence thereof. Informant was not
informed regarding the death of his
daughter. The Police did not lodge any
F.I.R. despite efforts of the informant and
ultimately by order of the Court, F.I.R. was
lodged.

3. Initially, the investigation was
made by C.O. Harendra Pratap Singh
(P.W.4), but subsequently it was transferred
to C.O. Brijesh Kumar Srivastava (P.W.5),
who
conducting
the
proceedings
of
investigation,
recorded
statements
of
witnesses, prepared site plan Ext. A4 and
after completion of entire formalities,
charge-sheets Ext. A5 and Ext. A6 were
submitted to the Court by the last I.O. Dpy.
S.P. Sushil Kumar (P.W.6).

4.

Magistrate
concerned
took
cognizance in the matter and the case,
being exclusively triable by the Sessions
Court, was committed to the Court of
Sessions.

5. The Trial Court framed charges
against accused Devendra Singh, Praveen
Singh and Smt. Seema for the offence
under Sections 498A, 304-B, 302, 201, 3/4
Dowry Prohibition Act on 18.7.2011.

6. Accused denied the charges framed
against them, pleading not guilty and
claimed to be tried.

7. Accused Smt. Krishna died before
framing of charge and the case was abated
against her.

8. In order to prove its case,
prosecution examined six witnesses. Out of
them, P.W.1 is Bhagwant Singh, the
informant, P.W.2 Sudeep, the brother of the
deceased, P.W.3 Hukum Singh, the uncle of
the
deceased,
P.W.4
Circle
Officer
Harendra
Pratap
Singh,
the
first
investigating officer, P.W.5 Brijesh Kumar
Srivastava, the subsequent investigating
officer and P.W.6 Circle Officer Sushil
Kumar, the last investigating officer.

9. As per documentary evidence,
application under section 156 (3) Cr.P.C.
Ext. A-1, affidavit Ext. A-2, Chik F.I.R.
Ext. A-3, Site Plan Ext. A-4, Charge-sheet
Ext. A-5 and A-6 and application Ext. A-7
have been filed.

10. On conclusion of prosecution
evidence, statement of accused-persons
were recorded under section 313 Cr.P.C.
wherein they denied all the allegations and
incriminating evidence against them and
stated that their implication in the present
case is totally false. Narrating the story,
they have stated that on 16.11.2004,
Devendra was returning home along with
his wife (deceased) on a motorcycle
bearing registration no.UP-81 - 8427 and
when they reached village Nandpur Beeta
at 7:30 P.M., an unknown DCM vehicle hit
their motorcycle, due to which Devendra
252 INDIAN LAW REPORTS ALLAHABAD SERIES
and his wife became injured and thereafter
his wife succumbed to the injuries.
Devendra also received injuries in the said
accident. He got treated at Sai Hospital,
Moradabad, Sainik Hospital, Meerut and
lastly at Army Hospital, Kocchi. It was
further stated that accidental case was
converted into a case of dowry death.
Panchnama was prepared on spot in the
presence of informant and his family
members who were also present at the time
of cremation.

11. Accused persons in their defence
have examined D.W.1 Harpal Singh, D.W.2
Ranjit Singh, D.W.3 Tirmal Singh, D.W.4
Dr. Anurag Agarwal, D.W.5 Rajendra
Singh, D.W.6 C.P. 93 Harvir Singh, D.W.7
Devendra
Singh
(Accused),
D.W.8
Chandan Giri Goswami and D.W.9 S.I.
Anil Kumar.

12. Bed Head Ticket of Sai Hospital Ext.
Kha-1, Panchnama Ext. Kha-2, Discharge Slip
Ext. Kha-3, Medical Report Ext. Kha-4,
Medical
Treatment
Report
Ext.
Kha-5,
Treatment paper and discharge slip Ext. Kha-6,
Kha-7 respectively have been produced as
documentary evidence by defence.

13. Trial Court, having heard learned
counsels for parties and going through
entire record, vide impugned judgment and
order, convicted and sentenced the accusedappellants
as
above.
Hence,
feeling
aggrieved with said judgment and order,
accused-appellants have filed this appeal.

14. Heard Sri Rajarshi Gupta, learned
counsel for the appellants, Sri N.K.
Srivastava, learned A.G.A for the State and
perused the entire record.

15. P.W.1 Bhagwant Singh has proved
the application moved before the Court
under section 156 (3) Cr.P.C. as Ext. A-1
and he has also proved the facts of the
marriage of her daughter with accused
Devendra Singh on 8.4.2004. He has also
deposed that accused-persons Devendra,
Praveen, Seema and Krishna used to
demand rupees five lacs as additional
dowry from her and she was subjected to
cruelty for the demand of dowry. He has
further deposed that his daughter used to
tell those incidents to him and when on
18.11.2004 he went to the house of the
accused-persons to meet his daughter, the
neighbours told that the accused-persons
have murdered his daughter and the dead
body was set to fire. In his crossexamination,
he
has
expressed
his
ignorance about the alleged motorcycle
accident wherein accused Devendra got
injured and subsequently hospitalized and
his daughter died. He does not know the
cause of death of his daughter Sarita.

16. P.W.2 Sudeep is the brother of the
deceased and he has also corroborated the
deposition of P.W.1 and has categorically
stated that the accused-persons used to
demand additional dowry from his sister
and she was continuously subjected to
cruelty for demand of dowry.

17. P.W.3 Hukum Singh is the brother
of the informant. He has also corroborated
the statement of P.W.1 and supported the
prosecution version in his deposition.

18. P.W.4 C.O. Harendra Pratap
Yadav has deposed as secondary witness
for H.M. Ganga Singh, the scribe of the
F.I.R. and has proved the chik F.I.R. as Ext.
A-3. This witness is also the first I.O. of the
case and he had recorded the statement of
H.M. Ganga Singh.
19. P.W.5 C.O. Brijesh Kumar Srivastava is
the second I.O. of the case who has proved
10 All. Smt. Seema Vs. State of U.P.
253
the site-plan Ext. A-4 prepared after
inspection of the spot, which was prepared
on the basis of the identification of the
informant. He has also recorded the
statement of the informant and other
witnesses.

20. P.W.6 Dy. S.P. Sushil Kumar is the
third I.O. of the case, who has proved the
proceedings
of
investigation
in
his
deposition and has also proved chargesheets Ext. A-5 and A-6.

21. After prosecution evidence was
over, the incriminating circumstances and
evidence were put to the accused-persons.
The accused-persons in their statement
under section 313 Cr.P.C. has denied the
prosecution story and told the whole
evidence as false and fabricated. They have
taken a specific defence that on 16.11.2004,
accused Devendra was coming from his inlaws' house by motorcycle. At about 7:30
P.M., near village Nandpur Beeta, one
unknown DCM vehicle collided with his
motorcycle and both of them got injured.
Deceased Sarita died of the injuries and
accused Devendra was admitted into Sai
Hospital, Moradabad and subsequently
Sainik Hospital and later on he was treated
in Sainik Hospital, Meerut and Sainik
School Hospital, Kocchi (Kerala). The
informant has maliciously gave a colour of
dowry death to an accidental case. It has
also been stated that in the pressure of the
informant of the case, a panchnama was
also prepared and all the family members
of the deceased were present at the time of
cremation.

22. To give support to the contention
of whatsoever stated in the statement under
Section 313 Cr.P.C., the convicts have
adduced oral and documentary evidence
also.

23. Assailing the findings, learned
counsel appearing for appellants argued
that the prosecution case is totally baseless
and from the evidence available on record,
no case is made out as against the convicts /
appellants. The impugned judgment is
based on surmises and conjectures. There
was
no
eye-witness
or
even
any
circumstantial evidence to connect the
convicts / appellants with the crime alleged
against them. It has been further submitted
that
the
learned
trial
court
has
misinterpreted the evidence available on
record and has not given any weightage to
the defence evidence which was against the
norms of the established legal principles. It
has been submitted that no ingredients to
bring home the guilt of the accused under
section 304-B IPC was proved by the
prosecution.

24. Per contra, the learned A.G.A. has
contended that the impugned judgment
suffers with no lacuna or error and the
appeals, being devoid of merit, are liable to
be dismissed.

25. Before appreciating the rival
submissions made by both the sides, we
have to put a glance upon relevant
provisions of law.

Section 304-B IPC - 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.
254 INDIAN LAW REPORTS ALLAHABAD SERIES

Explanation.-- For the purpose 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."

26. In a catena of decisions, the
ingredients to be proved in order to convict
an accused for the offence punishable under
Section 304-B IPC are promulgated. In Maya
Devi and Another Versus State of Haryana
(2015) 17 Supreme Court Cases 405, it has
been reiterated that the following essentials
must be satisfied to successfully charge under
section 304-B IPC :

(Page 417) -

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

(ii) such death must have occurred
within seven years of her marriage;

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

(iv) such cruelty or harassment
must be for, or in connection with, demand
for dowry.

27. P.W.1 says that the marriage
between the deceased and accused Devendra
was solemnized on 8.4.2004 and this fact has
been corroborated by P.W.2 and P.W.3 also.
The death of the deceased was caused on
18.11.2004. This is an admitted position of
fact that the deceased died within seven years
of her marriage.

28. The prosecution alleges that the
accused-persons, to fulfill their demand of
dowry, caused the dowry death of the
deceased and a specific defence has been
taken by the accused-persons that the
deceased died in a road accident wherein
accused Devendra was also got injured. It
is argued that in such circumstances, one
has no hesitation to say that the death of the
deceased may be called as unnatural death.

29. It has also been submitted by the
learned A.G.A. that P.W.1, P.W.2 and P.W.3
have narrated in their deposition that the
deceased was subjected to cruelty for the
demand of additional dowry by her in-laws
and they used to harass her to fulfill the
demand of rupees five lacs. They have also
stated that the accused-persons forcibly
obtained the signature of the deceased on
withdrawal form and withdrew rupees two
lacs from the Bank account of the deceased.
P.W.1 has also stated that he went to the inlaws of his daughter and requested them not to
harass the deceased, but they did not pay any
attention to it. In their cross-examination,
P.W.1, P.W.2 and P.W.3, besides minor
contradictions, have corroborated the each
other's version so far as the fact of demand of
additional dowry and cruelty caused to the
deceased is concerned. The learned A.G.A. has
also submitted that element of "soon before"
has been established by the prosecution
evidence. P.W.1 in his examination-in-chief
has stated that when, on 31.10.2004, he went
to the in-laws of his daughter on the occasion
of Karwachauth, the deceased told her
regarding the demand of rupees five lacs and
also her harassment for this demand, of which
he had also complained to the accused-persons
and some days after, on 18.11.2004, he was
informed of the murder of her daughter. This
ingredient of "soon before" has also been
proved by P.W.2 in his deposition.

30. The learned A.G.A. has submitted
that in this way, the prosecution has proved
10 All. Smt. Seema Vs. State of U.P.
255
its case beyond reasonable doubt and the
learned trial court has committed no error
in holding the accused-persons guilty of the
offence of dowry death.

31. The learned counsel for the
appellants has vehemently argued that no
evidence
has
been
adduced
by
the
prosecution to show as to the death of the
deceased was unnatural. He has submitted
that the accused-persons / appellants have a
specific defence that the death of the
deceased was caused in a road accident
when she was going by motorcycle with
her husband accused Devendra. He has also
argued that sufficient evidence in this
respect has been adduced by the convicts,
but
the
learned
trial
court
with
a
preoccupied mind did not analyze the
defence evidence in proper manner and
rejected it out-rightly without giving any
weight, which was improper.

32. In Neel Kumar alias Anil Kumar
Versus State of Haryana (2012) 5
Supreme Court Cases 766 (paragraph-30),
the Hon'ble Apex Court has held - "It is the
duty of the accused to explain the
incriminating circumstance proved against
him while making a statement under
Section 313 Cr.P.C. Keeping silent and not
furnishing
any
explanation
for
such
circumstance is an additional link in the
chain of circumstances to sustain the
charges against him."

33. In Janak Yadav and Others
Versus State of Bihar, 1999 SCC
(Criminal) 558 (559), it was held that
Section
313
Cr.P.C.
prescribes
a
procedural safeguard for an accused
facing the trial to be granted an
opportunity to explain the facts and
circumstances appearing against him in
the
prosecution's
evidence.
That
opportunity is a valuable one and cannot
be ignored.

34. The learned counsel for the
appellants has submitted that to support
their version in the statement under
Section
313
Cr.P.C.,
oral
and
documentary evidence has also been
adduced from the defence side. He has
relied upon the decision of the Hon'ble
Apex Court in Munshi Prasad Versus
State of Bihar (2002) 1 SCC 351
wherein it has been held that the evidence
tendered by the defence witnesses cannot
always be termed to be a tainted one by
reason of the factum of the witnesses
being examined by the defence. The
defence witnesses are entitled to equal
respect and treatment as that of the
prosecution. The issue of credibility and
trustworthiness ought also to be attributed
to the defence witnesses on a par with
that of the prosecution. A lapse on the
part of the defence witnesses cannot be
differentiated and be treated differently
than that of the prosecutors' witnesses.
The judgment was followed in Adam
Bhai Suleman Bhai Ajmeri Versus
State of Gujarat (2014) 7 SCC 716.

35. D.W.7 accused Devendra Singh
himself has supported his evidence in
statement given under Section 313 Cr.P.C.
He has affirmed this fact
that on
16.11.2004,
when
he
was
driving
motorcycle with his wife sitting behind
him, at about 7:00 P.M., one vehicle hit his
motorcycle from behind wherein he got
injured and his wife succumbed to injuries.
He
was
admitted
in
Sai
Hospital,
Moradabad and subsequently sent to the
Military Hospital, Meerut and Sanjeevini
Hospital, Cochin and the record of the
treatment was deposited in Mumbai Cabs.
He has proved the discharge slip of the
256 INDIAN LAW REPORTS ALLAHABAD SERIES
Meerut Hospital executed by Sri Jaideep
Chaudhary, Surgeon Commander as Ext.
Kha-3. He has also proved the medical
reports of Sanjeevini Hospital executed by
the same Jaideep Chaudhary as Ext. Kha-4,
5, 6 and 7, which include the treatment
report and discharge slip as well. He has
also narrated this fact that report in the
accident case was lodged under Sections
279, 337, 338, 304-A IPC against unknown
driver, however subsequently charge-sheet
against the accused / driver Narendra Singh
was submitted and criminal case is
pending.

36. It also transpires from the record
that when F.I.R. in the accidental case was
not lodged, an application under Section
156 (3) Cr.P.C. was moved by Praveen
Singh, the brother of the husband / accused
Devendra Singh before the Court and by
order of the Court dated 11.10.2012, the
application was allowed and S.O. Asmauli
was directed to lodge an F.I.R. and
investigate into the matter. This order (Ext.
Kha-12) is available on the trial court
record. Ext. Kha-11 is the copy of the
judgment of the revisional court wherein
the order dated 11.10.2012 was challenged
and the revision was dismissed. Ext. Kha-9
and Ext. Kha-10 are the copies of F.I.R. and
charge-sheet relating to the case of the
accident registered as Crime No.288 of
2012 wherein the date and time of the
accident is mentioned as on 16.11.2004 at
7:00 P.M. Charge-sheet into the matter has
also been submitted against the accused /
driver Narendra Singh. All these papers are
available on the record of the trial court and
proved.

37. The learned counsel for the
appellants has submitted that the learned
trial court has not considered the aforesaid
documents in right perspective. It has been
submitted that the learned trial court has
emphasized upon the requirement of
inquest and postmortem of the body of the
deceased in an accidental case, but he has
not considered Ext. Kha-2 Panchnama in
proper manner.

38. It has been vehemently argued
that statement of P.W.1 Bhagwant Singh
has been given weightage by the trial court
wherein he has stated that he was not
present at the time of Panchnama and he
has also relied upon the statement of crossexamination of D.W.5 wherein he has
stated that when he reached on the spot,
Bhagwant Singh was not present over
there.
The
learned
counsel
for
the
appellants has drawn the attention of this
Court towards the statement of P.W.1
Bhagwant Singh himself, who, in his crossexamination at page no.15 has admitted
that " मैं अपने दस्तखत पहचानता हूँ काo सोंo
64 A / 3 प्रदशष खा-2 पर भी मेरे हस्ताक्षर हैं ӏ It
is pertinent to mention that Paper No. Ext.
Kha-2 is the Panchnama, which has been
written by Rajendra Singh, D.W.5 at the
place of accident. It also bears the signature
of Bhagwant Singh, Surendra Singh,
Gajendra Singh, Roop Singh, Jitendra
Singh, Hari Om Singh and Satveer Singh.
In Ext. Kha-2, it has been mentioned that
the death of the deceased Sarita has been
caused on spot in a road accident at Simli -
Nandpur Beeta Road and Devendra Singh
has been admitted into Sai Hospital,
Moradabad
in
injured
condition
for
treatment. It has also been mentioned that
the family members of Devendra Singh and
deceased Sarita are present on the spot
along with several other persons. All the
Panchas are of the opinion that since it is a
case of sudden accidental death, no legal
formality is required and with the consent
of all the persons, the cremation of the
deceased ought to be performed. It has
10 All. Smt. Seema Vs. State of U.P.
257
been
submitted
that
accordingly
the
cremation of the deceased was performed
in the presence of the family members of
the deceased.

39. Learned counsel for the appellants
has submitted that since Bhagwant Singh -
P.W.1, the father of the deceased, was
himself present on spot and was very well
aware of the fact that it was an accidental
death and he was also consenting for the
cremation of her deceased daughter, there is
no doubt that it was not a case of homicidal
or dowry death rather it was a case of
accidental death.

40. We have focused upon the issue of
burden of proof lying upon the accused in a
criminal proceeding.

41. In Rishi Kesh Singh and others
Versus State, AIR 1970 All 51 (FB),
which is the leading case on the subject, the
issue of burden of proof of the accused has
been discussed. The principle enumerated
in V.D. Jhingran Versus State of U.P.,
AIR 1966 SC 1762 has been quoted in the
aforesaid judgment, which reads like this -

"It is sufficient if the accused
person
succeeds
in
proving
a
preponderance of probability in favour of
his case. It is not necessary for the accused
person to prove his case beyond a
reasonable doubt or in default to incur a
verdict of guilty. The onus of proof lying
upon the accused person is to prove his
case by a preponderance of probability."

42. Similarly, Harbhajan Singh
Versus State of Punjab, AIR 1966 SC 97
has also been quoted wherein it has been
held that "Where the burden of an issue lies
upon the accused, he is not required to
discharge that burden by leading evidence
to prove his case beyond a reasonable
doubt. That, no doubt, is the test prescribed
while deciding whether the prosecution has
discharged its onus to prove the guilt of the
accused; but that is not a test which can be
applied to an accused person who seeks to
prove substantially his claim that his case
falls under an Exception. Where an accused
person is called upon to prove that his case
falls under an Exception, law treats the
onus as discharged if the accused person
succeeds in proving a preponderance of
probability."

43. In Rishi Kesh Singh's case (supra)
the abovementioned principle has been
accepted.

44. In Bhikari Verus State of U.P.,
AIR 1966 SC Page-1, the Court held that
"The doctrine of burden of proof in the
context of the plea of insanity may be
stated in the following propositions: (1)
The
prosecution
must
prove
beyond
reasonable doubt that the accused had
committed the offence with the requisite
mens rea; and the burden of proving that
always rests on the prosecution from the
beginning to the end of the trial. (2) There
is a rebuttable presumption that the accused
was not insane, when he committed the
crime..........the accused may rebut it by
placing before the court all the relevant
evidence
-
oral,
documentary
or
circumstantial, but the burden of proof
upon him is no higher than that rests upon a
party to civil proceedings."

45. From the above, it is to be
summed up that in a criminal trial, if the
accused succeeds to create a reasonable
doubt in the mind of the Court as regards to
his guilt and on the basis of evidence - oral,
documentary or circumstantial adduced in
his defence, it is sufficient for his acquittal
258 INDIAN LAW REPORTS ALLAHABAD SERIES
because the burden to prove its case lies
heavily and solely beyond reasonable doubt
upon the prosecution. In the present case
also, on the basis of the defence evidence,
both oral and documentary and in the
circumstances of the case, the convicts /
appellants have succeeded to create a doubt
about the genuineness of the prosecution
case.

46. In Pankaj Versus State of
Rajasthan, 2016 AIAR (Criminal) 886
(Supreme Court), it has been held that "it
is well-settled principle of law that when
the genesis and the manner of the incident
is
doubtful,
the
accused
cannot
be
convicted". The evidence produced by the
prosecution
has
neither
quality
nor
credibility, it would be unsafe to rest
conviction upon such evidence. (Emphasis
supplied)

47. In the facts and circumstances of
the present case, the aforesaid law is clearly
applicable. On the basis of defence
evidence, the convicts / appellants have
succeeded
to
provide
an
alternative
approach to the Court to consider that they
might be innocent and the incident did not
occur in such a manner and at such place as
the
prosecution
claims. The
defence
evidence adduced by the convicts /
appellants
helps
their
case
by
a
preponderance of probability. The learned
trial court did not appreciate the defence
evidence and brushed it out in an improper
manner.

48. As a result thereof, in our view,
the appeals succeeds and the conviction
judgment and order of the learned trial
court is liable to be set-aside.

49. The Appeals are accordingly
allowed. The impugned judgment and order
of the Trial Court dated 15.09.2015
convicting and sentencing the convicts /
appellants is hereby set aside and the
appellants are acquitted of the charges
levelled against them. Appellants Smt.
Seema and Praveen Singh are on bail, their
personal bonds are cancelled and sureties
are discharged. Appellant Devendra Singh
is in jail. He shall be released forthwith, if
not wanted in any other case.

50. Let a copy of this judgment along
with lower court record be sent forthwith to
court concerned for compliance.
----------
(2022) 10 ILRA 258
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 6351 of 2007

Naresh Chandra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.P.S. Chauhan, Sri Narendra Kumar, Sri
Rabindra Bahadur Singh, Sri Sahabuddin

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law -Criminal Procedure Code,
1973-Section 374(2) - Indian Penal Code,
1860-Section
302-Challenge
toConviction-One stranger killed a woman
with knife-no enmity-no motive- PW-4
and PW-5 had given ocular evidence that
they had seen the accused stabbing the
deceased and had also caught him on the
spot
with
murder
weapon-defence
witnesses found not reliable-no defect or