# Smt. Vimlesh v. State of U.P

- **Citation:** (2024) 5 ILRA 1378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Criminal Appeal No. 3820 of 2022
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vimlesh-v-state-of-u-p-52037
- **Pages:** 11

## Headnote

Criminal Law - Appellate proceedings -
Appellants- husband and mother-in-law of
the deceased- conviction and sentence-
Sections 304B and 498A IPC- dowry
demand- dowry death by burn injuries-
death within seven years of marriage-
demand of dowry made- no complaint
made to police earlier- not determinative of
fact- whether dowry demand was made or
not- cumulative analysis of evidence-
deceased committed suicide within seven
years of marriage- harassment meted out
to her- demand of dowry- inability to bear
child- accused being husband responsible
for safety and security of his wife-
conviction of the husband sustained- no
reason given by trial court for awarding
maximum punishment- sentence already
undergone by him awarded as punishment-
husband's
appeal
partly
allowed-
conviction of mother-in-law set aside-
Appeal allowed. (Paras 25, 26, 27, 28, 29
and 30)

HELD:
Upon cumulative analysis of evidence on record,
we are of the view that this was a case of suicide
committed by the deceased within 7 years of
marriage on account of harassment meted out to
her due to demand of dowry as also her inability
to bear a child. So far as the conviction of
accused appellant Ankur Gupta is concerned, it is
admitted that he is the husband of deceased and
is responsible for safety and security of his wife
but he has failed to perform his responsibilities as
husband and, therefore, his conviction under
Sections 498A, 304-B IPC & 4 of Dowry
Prohibition Act is sustained. (Para 25)

So far as the role of accused appellant Smt.
Vimlesh (mother-in-law) in demanding dowry is
concerned, the allegation is not specific as
against her and the allegations at best appear to
be omnibus and vague. It is evident that she has
firstly reported that smoke was coming out of the
room of deceased and on her screams DW-1 &
ors.came to the house and broke open the door.
As we have already observed that the deceased
had committed suicide and looking to the conduct
of the accused mother-in-law, we are of the view
that the accused mother-in-law cannot be
convicted for offence under Sections 498A, 304B
IPC and 4 of Dowry Prohibition Act, in the
absence of any specific allegation against her
with regard to demand of dowry. The conviction
of accused Smt. Vimlesh under Sections 498A,
304B IPC and 4 of Dowry Prohibition Act is,
therefore, reversed. (Para 26)

Coming to the question of sentence, we find that
the trial court has awarded life sentence to the
accused appellant Ankur Gupta under Section
5 All. Smt. Vimlesh Vs. State of U.P.
1379
304-B IPC. Punishment under Section 304-B IPC
varies from 7 years to life. When the court
proceeds
to
award
maximum
permissible
sentence for an offence, it is the cardinal principle
of law that reasons have to be given for awarding
such maximum punishment. We do not find any
such reasons to have been disclosed by the trial
court. We otherwise find that there are no
circumstances, which may justify awarding of
extreme punishment to the accused appellant
Ankur Gupta in the facts of the present case.
Considering the evidence in its entirety, we are of
the view that punishment of life under Section
304-B IPC to the accused appellant Ankur Gupta
is not warranted, and ends of justice would be
met if the sentence already undergone by the
accused appellant Ankur Gupta is awarded to him
under Section 304-B IPC. To that extent, we
modify the impugned judgment and order of the
court below. (Para 27)

Appeals allowed. (E-14)

List of Cases cited:

## Text

1378 INDIAN LAW REPORTS ALLAHABAD SERIES
(3). The
appellants
shall
not
interfere in any manner with the further
investigation, if any and shall not make any
effort
to
influence
the
prosecution
witnesses; and
(4). The appellants shall mark
regular attendance with such police station
and at such periodical intervals as may be
determined by the Special Court; and
(5). The appellants shall cooperate
with the Special Court for early conclusion
of the trial.
8. The appeal is allowed on the
above terms.
----------
(2024) 5 ILRA 1378
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3820 of 2022
connected with
Criminal Appeal No. 2023 of 2022

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

Counsel for the Appellant:
Anjali Singh Tomar, Inder Pal Singh Tomar,
Pramod Kumar Singh, Somit Shukla

Counsel for the Respondent:
Bheshaj Puri, G.A.

Criminal Law - Appellate proceedings -
Appellants- husband and mother-in-law of
the deceased- conviction and sentence-
Sections 304B and 498A IPC- dowry
demand- dowry death by burn injuries-
death within seven years of marriage-
demand of dowry made- no complaint
made to police earlier- not determinative of
fact- whether dowry demand was made or
not- cumulative analysis of evidence-
deceased committed suicide within seven
years of marriage- harassment meted out
to her- demand of dowry- inability to bear
child- accused being husband responsible
for safety and security of his wife-
conviction of the husband sustained- no
reason given by trial court for awarding
maximum punishment- sentence already
undergone by him awarded as punishment-
husband's
appeal
partly
allowed-
conviction of mother-in-law set aside-
Appeal allowed. (Paras 25, 26, 27, 28, 29
and 30)

HELD:
Upon cumulative analysis of evidence on record,
we are of the view that this was a case of suicide
committed by the deceased within 7 years of
marriage on account of harassment meted out to
her due to demand of dowry as also her inability
to bear a child. So far as the conviction of
accused appellant Ankur Gupta is concerned, it is
admitted that he is the husband of deceased and
is responsible for safety and security of his wife
but he has failed to perform his responsibilities as
husband and, therefore, his conviction under
Sections 498A, 304-B IPC & 4 of Dowry
Prohibition Act is sustained. (Para 25)

So far as the role of accused appellant Smt.
Vimlesh (mother-in-law) in demanding dowry is
concerned, the allegation is not specific as
against her and the allegations at best appear to
be omnibus and vague. It is evident that she has
firstly reported that smoke was coming out of the
room of deceased and on her screams DW-1 &
ors.came to the house and broke open the door.
As we have already observed that the deceased
had committed suicide and looking to the conduct
of the accused mother-in-law, we are of the view
that the accused mother-in-law cannot be
convicted for offence under Sections 498A, 304B
IPC and 4 of Dowry Prohibition Act, in the
absence of any specific allegation against her
with regard to demand of dowry. The conviction
of accused Smt. Vimlesh under Sections 498A,
304B IPC and 4 of Dowry Prohibition Act is,
therefore, reversed. (Para 26)

Coming to the question of sentence, we find that
the trial court has awarded life sentence to the
accused appellant Ankur Gupta under Section
5 All. Smt. Vimlesh Vs. State of U.P.
1379
304-B IPC. Punishment under Section 304-B IPC
varies from 7 years to life. When the court
proceeds
to
award
maximum
permissible
sentence for an offence, it is the cardinal principle
of law that reasons have to be given for awarding
such maximum punishment. We do not find any
such reasons to have been disclosed by the trial
court. We otherwise find that there are no
circumstances, which may justify awarding of
extreme punishment to the accused appellant
Ankur Gupta in the facts of the present case.
Considering the evidence in its entirety, we are of
the view that punishment of life under Section
304-B IPC to the accused appellant Ankur Gupta
is not warranted, and ends of justice would be
met if the sentence already undergone by the
accused appellant Ankur Gupta is awarded to him
under Section 304-B IPC. To that extent, we
modify the impugned judgment and order of the
court below. (Para 27)

Appeals allowed. (E-14)

List of Cases cited:

1. Hem Chand Vs St. of Har., (1994) 6 SCC 727

2. Kashmira Devi Vs The St. of Uttarakhand, AIR
2020 SC 652

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

1. These two appeals are directed
against the judgment and order of conviction
and sentence dated 09.03.2022, passed by
Additional District and Sessions Judge,
Court No.16, Aligarh in Sessions Trial No.
297 of 2017 (State Vs. Ankur Gupta and
others) arising out of Case Crime No.1064
of 2016, Police Station Quarsi, District
Aligarh, whereby the accused appellants
Ankur Gupta (husband of deceased) and
Smt. Vimlesh (mother-in-law of deceased)
have been convicted under Section 304B
IPC and sentenced to life imprisonment;
under Section 498A IPC for two years
rigorous
imprisonment
with
fine
of
Rs.10,000/- each and in default of payment
of fine they are to further undergo six
months additional imprisonment and; under
Section 4 of Dowry Prohibition Act for one
year rigorous imprisonment with fine of
Rs.5,000/- each and in default thereof they
are to further undergo three months
additional imprisonment. All sentences are
to run concurrently.

2. The informant Umesh Chandra
(PW-1), who is the father of deceased, has
made a written report (Ex.Ka.1), scribed by
Pradeep Nath Sharma (not produced in
trial), to the Station House Officer, Police
Station Quarsi, informing that he is resident
of District Budaun and had married his
daughter Shreya Varshaney (deceased) to
accused appellant Ankur Gupta with Hindu
customs and traditions on 06.03.2013 and
had spent nearly Rs.10 lac for the purposes.
Ever since the marriage in-laws of his
daughter were demanding additional dowry.
On several occasions he met the demands
and persuaded his daughter to stay with her
in-laws. On 26-27.10.2016 the deceased
informed informant on phone that accused
Ankur requires Rs.5 lac for establishing
factory. If such amount is not given before
Deepawali, her mother-in-law, husband and
sister-in-law (Nanad) would kill her for
dowry. The incident occurred on 29.10.2018
in the morning hours. Informant's brotherin-law Girish intimated him that deceased
has been strangulated to death by her
mother-in-law Vimlesh, husband Ankur and
sister-in-law Swati @ Sona and thereafter
set her ablaze. Request was made for
lodging First Information Report and taking
appropriate legal action.

3. Based upon the aforesaid written
report (Ex.Ka-1) the First Information
Report
(Ex.Ka.11)
was
lodged
on
29.10.2016 at 07.20 pm as Case Crime
No.1064 of 2016 under Sections 498-A,
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
304-B, 201 IPC and 3⁄4 of Dowry Prohibition
Act against three accused Ankur Gupta
(husband), Smt. Vimlesh (mother-in-law)
and
Swati
@
Sona
(sister-in-law).
Investigation proceeded. The Investigating
Officer recovered a ring having thread
(kalawa) and a blue cane on which Artele
was mentioned and there was smell of
kerosene. This recovery has been exhibited
as Ex.Ka.4. The inquest (Ex.Ka.5) was
conducted and the inquest witnesses found
that the deceased died due to burn injuries
and her tongue had protruded. The death
apparently occurred due to burn injuries but
in the opinion of inquest witnesses
postmortem was required to be conducted to
ascertain the cause of death. The dead body
was accordingly sealed and sent for
postmortem. The postmortem (Ex.Ka.7) was
conducted on 30.10.2016 at 12.15 and the
Autopsy
Surgeon
noted
following
conditions of the body:-

"Age: 31 years

General Examination: Average
body built, pugilistic attitude present, both
eyes closed, tongue protruded.

External
Examination/Antemortem Injuries:

Superficial to deep thermal burn
injury present all over the body except both
foot sole and some part of scalp. Singing of
hairs (scalp) present. Line of redness present
at places. Smell of kerosene oil present.
About 95& thermal burn injury. Exudate
present at places.

Time of death: Expired about one
day back.

Cause of death: Due to asphyxia
with hypovolumic shock as a result of
antemortem thermal burn injury."

4. The Investigating Officer, after
recording the statement of witnesses under
Section 161 Cr.P.C. and collecting other
evidence etc., concluded the investigation
and submitted a chargesheet (Ex.Ka.10) on
15.12.2016 against the accused Ankur
Gupta, Smt. Vimlesh and Swati @ Sona.
Cognizance was taken on the chargesheet
and the case was committed to the court of
sessions where it got registered as Sessions
Trial No.297 of 2017. Charges were framed
against all named accused under Sections
498A, 304B IPC and 3⁄4 of Dowry
Prohibition Act. Alternate charge was also
framed under Section 302 IPC in addition to
aforesaid sections. The accused denied the
charges and demanded trial.

5. The prosecution in addition to the
documentary evidence, noticed above, has
produced the first informant as PW-1. In his
examination-in-chief, he has stated that
marriage of deceased daughter with accused
Ankar was solemnized on 06.02.2013 and
he had spent Rs.10 lac in the marriage. From
the very initial days the deceased was being
harassed for dowry by her in-laws. He had
intervened and got the issues resolved. It is
also stated that demand of Rs.5 lac was
being raised as dowry and on 26.10.2016 the
deceased made a phone call stating that if
amount of Rs.5 lac is not paid, then her inlaws would kill her. It was about quarter to
12 in the afternoon on 29.10.2016 that
informant's brother-in-law Girish Gupta
informed him that the mother-in-law, sisterin-law and husband have killed the deceased
by burning her. PW-1 has proved the written
report.

In the cross-examination, PW-1
has stated that he was saddened and
perplexed by the death of daughter and does
not know if the date of marriage was
mentioned as 06.03.2013 in the FIR. He has
supported the allegation of demand of
dowry from the very beginning. He has,
however, admitted that though various
5 All. Smt. Vimlesh Vs. State of U.P.
1381
incident kept happening regarding demand
of dowry from 2013 onwards but he never
lodged any report with the police. He has
denied the suggestion that in-laws kept his
daughter well and a false report has been
lodged. In his further cross-examination,
PW-1 has stated that telephone call for
demand of dowry of Rs.5 lac was received
by his wife on 26-27.10.2016 and not by
him. He has denied the suggestion that his
daughter was not keeping well. Deceased
was treated at Aligarh and Bareilly as she
was not able to conceive. The incident
occurred on the day of Chhoti Diwali. He
has denied the suggestion that the family
was busy celebrating Diwali when the
incident occurred. When he arrived at the
house of her deceased daughter nobody
from the family was present. He had not
seen as to whether accused Ankur and his
mother was present at the time of inquest.
PW-1 has admitted that father of accused
Ankur died long back and two brother of
accused Ankur also died by drowning in the
Ganges. It is also stated that the deceased
visited her maternal house about 5-6 months
ago and stayed there for about one month.
He further denied the suggestion that his
daughter was undergoing depression and
that she had beaten her own mother while
she was at her maternal house. He has also
stated that accused Ankur was working in a
factory at R. K. Puram. He has denied the
suggestion that his daughter has committed
suicide because she has beaten her mother or
she was under depression. He has also
denied the suggestion that on 29.10.2016
before death of deceased, at about 2-21⁄2 pm
she called her mother and informed her that
she is in trouble and would not meet her
today.

6. PW-2 (Uma Devi) is the mother of
deceased and has fully supported the
prosecution case with regard to torture being
extended to the deceased. She has stated that
there was no independent witness with
regard to dowry of Rs.10 lac. The deceased
called her on 26-27 saying that her in-laws
are asking for Rs.5 lac. In the crossexamination, PW-2 has stated that sister-inlaw of deceased had beaten her with slippers
and thrown her out of house. She had,
however, not lodged police report about the
incident. She did not remember the mobile
number of her daughter from which she
called her. She had denied the suggestion
that her daughter was under depression and
she had beaten her. She has also denied the
suggestion that on the date of incident her
daughter called her at 02.16 in the afternoon
from her mobile no.9319726234. She has
admitted that mother-in-law of the deceased
is widow, who lost her two sons by
drowning in river Ganga and accused Ankur
was the only son alive in the family. Sisterin-law of the deceased, Swati, is married and
has two children and is living elsewhere.

7. PW-3 (Girish Gupta) happens to be
the maternal uncle of the deceased. He
claims that information regarding the
incident
was
received
from
medical
representative Dushyant, who informed him
that outside the house of deceased a crowd
had gathered. When he entered the house he
found that the deceased was lying dead. He
claims that the deceased was strangulated
and later burnt and her tongue protruded. He
has supported the prosecution case about
demand of dowry.

8. PW-4 (Harendra Singh) is the Sub
Inspector, who has proved the recovery of
ring having thread (Kalawa) vide Ex.Ka.4.
He has also proved the arrest of accused
persons on 30.10.2016. He has stated that he
received information of incident at police
chowki on wireless. He has also proved the
inquest.
1382 INDIAN LAW REPORTS ALLAHABAD SERIES

9. PW-5 (Dr. Anupam Bhaskar) is the
Autopsy Surgeon, who has proved the
postmortem report. He has stated that in the
trachea soot particles were available. Both
lungs were congested. Superficial deep
thermal burn injuries were present on the
entire body except sole and some portion of
head. Smell of kerosene was also coming.
The deceased was 95% burnt. Cause of
death was asphyxia with hypovolumic
shock as a result of antemortem thermal
burn injury.

10. PW-6 (Rajeev Kumar) is the
Investigating Officer, who has stated that
29.10.2016 at about 03.12 pm information
was received from mobile no.8650521855
of Dinesh that the deceased has committed
suicide. It is on the basis of this information
that the police came on spot. Avinash and
Mahesh were immediate neighbours. He had
not recorded statement of neighbours or
those who were present. He was informed
by mother of the deceased that her daughter
was treated at Bareilly and Aligarh between
2013 to 2016. PW-6 has admitted that he has
not
recorded
the
statement
of
any
independent witness. He has also came to
know that sister-in-law of the deceased has
kids and she lives separately with her
husband at Gular Road.

11. PW-7 (Manvendra Singh) is the
Constable, who has proved the police papers
and has denied the suggestion that FIR is
ante-timed.

12. Based upon the evidence led during
trial by the prosecution, statement of accused
persons under Section 313 Cr.P.C. has been
recorded. Accused Swati has stated that she is
innocent and lives separately and that the
deceased
was
suffering
from
mental
depression.
Accused
mother-in-law
of
deceased has also stated that she is innocent
and the deceased was suffering from
depression on account of which she
committed suicide. Similar stand is taken by
the accused Ankur, who has stated that the
deceased had committed suicide in which he
has no role to play and he is innocent.

13. The defence has produced Atul
Kumar Varshaney as DW-1. He has stated that
he has business of locks in which 20 persons
are working. Accused Ankur Gupta was
working in his factory and his name finds
place in the Employees State Insurance list. He
has stated that accused Ankur came to the
factory at 09.00 in the morning and left at
02.30 pm when he got a call from his mother
about his wife having got burnt. He knew the
accused Ankur for the last 5-6 years as he is
distantly related to his wife. The accused was
working as supervisor. Attendance register for
the date of incident, however, has not been
produced by him.

14. DW-2 (Mahesh Chandra) is the
neighbour of accused persons, who has stated
that he has his shop in front of house of
deceased. He claims that he is living in the
same area for the last twenty years and knows
accused persons since then. It was Chhoti
Diwali on the date of incident that the motherin-law of deceased rushed out of the house and
told that smoke is coming out of the room
which was locked from inside. He claims to
have rushed to the place and door was broke
open from outside. He has denied the
suggestion that the shop was closed on the day
of incident and he was not present.

15. DW-3 (Hari Prakash) is also
neighbour of accused persons, who has stated
that he has business of handle plate and the
house of accused is in front of his house and
that he knows the accused for last 7-8 years.
He claims that the deceased has committed
suicide.
5 All. Smt. Vimlesh Vs. State of U.P.
1383

16. DW-4 (Dr. Mohd. Riyad) is the
Psychiatrist in City Hospital, Civil Lines,
Aligarh, who has stated that the deceased
was suffering from depression and he has
examined the deceased on 17.05.2016. He
has certified that mentally depressed patient
can
commit
suicide.
In
the
crossexamination he has disclosed that he is MD
in Psychiatrist and has not produced original
records. He had given his statement on the
basis of copy of prescription.

17. It is on the basis of above evidence
led during trial by the prosecution and upon
consideration of the explanation furnished
by the accused appellants under section 313
Cr.P.C. and defence version that the court
below has come to the conclusion that the
prosecution has established its case beyond
reasonable doubt against the accused
appellants Ankur Gupta (husband) and Smt.
Vimlesh (mother-in-law) and found them to
be guilty of committing the offence.
Ultimately, the court below has convicted
and sentenced the accused appellants vide
impugned judgment and order and acquitted
the accused Swati, sister-in-law of the
deceased. Thus aggrieved, the accused
appellants are before this Court in the
present appeals.

18. Learned counsel for the appellants
states that this is a case of suicide by the
deceased as she had not been able to bear a
child. It is submitted that the deceased was
undergoing depression and treated by the
doctors at Aligarh and Bareilly Learned
counsel, therefore, submits that in the
depressed
mental
state
the
deceased
committed suicide by pouring kerosene on
herself and, therefore, the accused appellants
cannot be convicted for dowry death. It is also
contended that marriage was solemnized three
years back but not a single complaint of
demand of dowry was made, nor any
independent witness has been produced to
prove the demand of dowry. It is further
argued that merely on the strength of suspicion
the accused appellants have been convicted
and sentenced by the court below. It is also
urged that the accused appellant Smt. Vimlesh
is a widow elderly lady, aged about 71 years,
and has already lost her two sons who
drowned in the river Ganga. It is further
argued that the accused appellant Ankur was
not present at the place of occurrence when the
deceased committed suicide and returned only
after coming to know of incident, and that the
trial court has imposed maximum punishment
upon
the
accused
appellants
without
disclosing reasons for it while the minimum
punishment provided under Section 304-B
IPC is seven years. Submission is that the
accused appellant Ankur Gupta has already
undergone incarceration of 8 year 1 month 14
days with remission as on 09.05.2024, while
the appellant Smt. Vimlesh has served
sentence incarceration of 3 year 1 month 12
days as on 09.05.2024. It is moreover
submitted that the trial court has not correctly
appreciated the evidence on record and,
therefore, the impugned judgment and order of
conviction and sentence is liable to be set
aside.

19. Learned AGA, on the other hand,
submits that this is a case of dowry death,
inasmuch as ingredients of dowry death are
clearly made out in the facts of the case.
Learned A.G.A. has supported the reasoning
of trial court that had it been a case of suicide
the deceased would have attempted to save
herself and the articles kept in the room like
bed, refrigerator etc. would have been
damaged but nothing happened of this kind,
which clearly shows that the deceased was
burnt and the accused persons did not let her
save herself. It is, therefore, submitted that
judgment and order of conviction and
sentence requires no interference.
1384 INDIAN LAW REPORTS ALLAHABAD SERIES

20. We have heard Shri Somit Shukla,
learned counsel for the appellants and
learned A.G.A. for the State and have
perused the material on record, including the
records of court below.

21. In the facts of the case, evidence on
record shows that the marriage of the
deceased was solemnized with accused
appellant Ankur Gupta on 06.02.2013 and
she died on 29.10.2016. It is, therefore, clear
that the deceased has died within seven
years of marriage. The first condition for an
offence under Section 304B IPC is clearly
made out.

22. Coming to the second condition
with regard to demand of dowry the
testimony of PW-1 and PW-2, who are the
parents of deceased, is specific on that
count. PW-1 has stated that they spent Rs.10
lac at the time of marriage towards dowry
and that there was a continuous demand of
dowry from the side of accused persons. It is
alleged that in the year 2013 itself, as also in
the year 2014, 2015 and 2016 there was
consistent demand of dowry. Although it is
alleged by the counsel for the accused
appellants that there was no report lodged
with the police or the specific dates for
demand of dowry are not mentioned but this
would not be decisive in our opinion
because parents of a bride firstly try to make
efforts for the marriage to succeed and,
therefore, such instance of demand of dowry
are not reported at the first instance. The
mere fact that complaint has not been made
to the police ipso facto cannot be
determinative of fact as to whether there has
been demand of dowry or not. It may well
be a factor to be considered. In the facts of
the present case, PW-1 has specifically
stated that she got a call from the deceased
on 26/27.10.2016 with regard to demand of
dowry of Rs.5 lac. This money was needed
for establishing factory for accused Ankur.
The evidence in that regard is consistent on
part of the prosecution witnesses. In such
circumstances, upon evaluation of evidence
on record, we find that the trial court has
correctly returned findings with regard to
dowry given in the marriage and that the
deceased was being harassed for dowry.
This demand continued even soon before the
death of the deceased. The second condition
for an offence to be proved under Section
304B is also met.

23. Coming to the next aspect of death
of the deceased, it is apparent that she died
on account of burn injuries. The death is,
therefore,
unnatural.
So
far
as
the
prosecution case that the deceased was
strangulated and then burnt is concerned, we
find that the allegation is based entirely upon
suspicion, inasmuch as the only reason for
making such allegation is that the tongue of
deceased had protruded. We have examined
the medical evidence on record and find that
there is no evidence to suggest that the
deceased has been strangulated prior to
death. The Autopsy Surgeon has given his
opinion as per which the tongue of deceased
could have protruded on account of lack of
oxygen since room itself was filled with
smoke. The postmortem report shows no
other sign of injury on the body of deceased.
The only injuries found on the body of
deceased is with regard to burn injuries. The
prosecution, therefore, has not been able to
prove the allegation that the deceased was
strangulated or physically tortured before
death occurred on account of burn injuries.

24. We have examined the testimony
of defence and prosecution witnesses from a
perusal whereof it is apparent that the
deceased had got married in the year 2013
but she could not bear a child. This fact is
admitted to PW-2, who is the mother of
5 All. Smt. Vimlesh Vs. State of U.P.
1385
deceased. She has admitted that her daughter
was taken to different hospital for treatment
at Aligarh and Bareilly. The specific case of
the defence is that the deceased was
undergoing depression on account of such
fact. DW-4, who is the psychiatrist, has
certified that the deceased was examined by
him as she was suffering from depression. It
has also come in evidence of defence
witnesses
that
the
mother-in-law
of
deceased firstly reported that smoke was
coming out of the room whereafter DW-1,
who is the immediate neighbour, came to the
house and broke open the door. The
evidence on record thus suggest that it is in
the afternoon hours that the deceased
committed
suicide.
Apart
from
the
depression as the deceased was not able to
bear a child, the demand of dowry and
harassment by her in-laws apparently was
the cause for her to have committed suicide.
Existence of soot particles in trachea of
deceased also shows that the deceased had
committed suicide.

25. Upon cumulative analysis of
evidence on record, we are of the view that
this was a case of suicide committed by the
deceased within 7 years of marriage on
account of harassment meted out to her due
to demand of dowry as also her inability to
bear a child. So far as the conviction of
accused
appellant
Ankur
Gupta
is
concerned, it is admitted that he is the
husband of deceased and is responsible for
safety and security of his wife but he has
failed to perform his responsibilities as
husband and, therefore, his conviction under
Sections 498A, 304-B IPC & 4 of Dowry
Prohibition Act is sustained.

26. So far as the role of accused appellant
Smt. Vimlesh (mother-in-law) in demanding
dowry is concerned, the allegation is not
specific as against her and the allegations at
best appear to be omnibus and vague. It is
evident that she has firstly reported that smoke
was coming out of the room of deceased and
on her screams DW-1 and others came to the
house and broke open the door. As we have
already observed that the deceased had
committed suicide and looking to the conduct
of the accused mother-in-law, we are of the
view that the accused mother-in-law cannot be
convicted for offence under Sections 498A,
304B IPC and 4 of Dowry Prohibition Act, in
the absence of any specific allegation against
her with regard to demand of dowry. The
conviction of accused Smt. Vimlesh under
Sections 498A, 304B IPC and 4 of Dowry
Prohibition Act is, therefore, reversed.

27. Coming to the question of sentence,
we find that the trial court has awarded life
sentence to the accused appellant Ankur Gupta
under Section 304-B IPC. Punishment under
Section 304-B IPC varies from 7 years to life.
When the court proceeds to award maximum
permissible sentence for an offence, it is the
cardinal principle of law that reasons have to
be given for awarding such maximum
punishment. We do not find any such reasons
to have been disclosed by the trial court. We
otherwise find that there are no circumstances,
which may justify awarding of extreme
punishment to the accused appellant Ankur
Gupta in the facts of the present case.
Considering the evidence in its entirety, we are
of the view that punishment of life under
Section 304-B IPC to the accused appellant
Ankur Gupta is not warranted, and ends of
justice would be met if the sentence already
undergone by the accused appellant Ankur
Gupta is awarded to him under Section 304-B
IPC. To that extent, we modify the impugned
judgment and order of the court below.

28. In Hem Chand Vs. State of
Haryana, (1994) 6 SCC 727, the Supreme
Court has observed that though punishment
1386 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 304-B IPC varies from 7 years
to life but award of extreme punishment
should not be as a matter of course and must
be awarded in rare cases. In para 7 and 8, the
Supreme Court observed as under:-

"7. Now coming to the question of
sentence, it can be seen that Section 304-B
IPC lays down that:

"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."

The point for consideration is
whether
the
extreme
punishment
of
imprisonment for life is warranted in the
instant case. A reading of Section 304-B IPC
would show that when a question arises
whether a person has committed the offence
of dowry death of a woman what all that is
necessary is it should be shown that soon
before her unnatural death, which took place
within seven years of the marriage, the
deceased had been subjected, by such
person, to cruelty or harassment for or in
connection with demand for dowry. If that is
shown then the court shall presume that such
a person has caused the dowry death. It can
therefore be seen that irrespective of the fact
whether such person is directly responsible
for the death of the deceased or not by virtue
of the presumption, he is deemed to have
committed the dowry death if there were
such cruelty or harassment and that if the
unnatural death has occurred within seven
years from the date of marriage. Likewise
there is a presumption under Section 113-B
of the Evidence Act as to the dowry death. It
lays down that the court shall presume that
the person who has subjected the deceased
wife to cruelty before her death caused the
dowry death if it is shown that before her
death, such woman had been subjected, by
the accused, to cruelty or harassment in
connection with any demand for dowry.
Practically this is the presumption that has
been incorporated in Section 304-B IPC
also. It can therefore be seen that
irrespective of the fact whether the accused
has any direct connection with the death or
not, he shall be presumed to have committed
the dowry death provided the other
requirements mentioned above are satisfied.
In the instant case no doubt the prosecution
has proved that the deceased died an
unnatural death namely due to strangulation,
but there is no direct evidence connecting
the accused. It is also important to note in
this context that there is no charge under
Section 302 IPC. The trial court also noted
that there were two sets of medical evidence
on the file in respect of the death of the
deceased. Dr Usha Rani PW 6 and Dr Indu
Lalit PW 7 gave one opinion. According to
them no injury was found on the dead body
and that the same was highly decomposed.
On the other hand, Dr Dalbir Singh PW 13
who also examined the dead body and gave
his opinion, deposed that he noticed some
injuries at the time of re-post-mortem
examination. Therefore at the most it can be
said that the prosecution proved that it was
an unnatural death in which case also
Section 304-B IPC would be attracted. But
this aspect has certainly to be taken into
consideration in balancing the sentence to be
awarded to the accused. As a matter of fact,
the trial court only found that the death was
unnatural and the aspect of cruelty has been
established and therefore the offences
punishable under Sections 304-B and 201
IPC have been established. The High Court
in a very short judgment concluded that it
was fully proved that the death of the
deceased in her matrimonial home was a
dowry death otherwise than in normal
circumstances as a result of cruelty meted
out to her and therefore an offence under
Section 304-B IPC was made out. Coming
5 All. Smt. Vimlesh Vs. State of U.P.
1387
to the sentence the High Court pointed out
that the accused-appellant was a police
employee and instead of checking the crime,
he himself indulged therein and precipitated
in it and that bride-killing cases are on the
increase and therefore a serious view has to
be taken. As mentioned above, Section 304B IPC only raises presumption and lays
down that minimum sentence should be
seven years but it may extend to
imprisonment for life. Therefore awarding
extreme punishment of imprisonment for
life should be in rare cases and not in every
case.

8. Hence, we are of the view that a
sentence of 10 years' RI would meet the ends
of justice. We, accordingly while confirming
the conviction of the appellant under Section
304-B IPC, reduce the sentence of
imprisonment for life to 10 years' RI. The
other conviction and sentence passed against
the appellant are, however, confirmed. In the
result, the appeal is dismissed subject to the
above modification of sentence."

29. In Kashmira Devi Vs. The State of
Uttarakhand, AIR 2020 SC 652, the
principle laid down in Hem Chand (supra)
has been reiterated and the Court observed
as under in para 24:-

"24. Having arrived at the above
conclusion the quantum of sentence requires
consideration. The High Court has awarded
life imprisonment to the appellant on being
convicted under Section 304-B IPC. The
minimum sentence provided is seven years
but it may extend to imprisonment for life.
In fact, this Court in Hem Chand v. State of
Haryana [Hem Chand v. State of Haryana,
(1994) 6 SCC 727 : 1995 SCC (Cri) 36] has
held that while imposing the sentence,
awarding
extreme
punishment
of
imprisonment for life under Section 304-B
IPC should be in rare cases and not in every
case. Though the mitigating factor noticed in
the said case was different, in the instant
case keeping in view the age of the appellant
and also the contribution that would be
required by her to the family, while husband
is also aged and further taking into
consideration all other circumstances, the
sentence as awarded by the High Court to
the appellant herein is liable to be
modified."

30. In light of the observation made in
para 24 (reproduced above), the Court
modified the sentence to a period of 7 years.
Para 25 of the judgment in Kashmira Devi
(supra) is, thus, reproduced hereinafter:-

"25. In the result, the following:

Order

25.1. The conviction of the
appellant recorded by the High Court under
Section 304-B IPC and Section 498-A IPC
through its judgment dated 29-6-2017 [State
v. Govind Singh, 2017 SCC OnLine Utt
1932] is upheld and affirmed.

25.2. The sentence ordered by the
High Court through its order dated 10-72017 [State of Uttarakhand v. Govind Singh,
GA No. 42 of 2010, decided on 10-7-2017
(Utt)] is modified and the sentence of
imprisonment for life is altered by ordering
the
appellant
to
undergo
rigorous
imprisonment for a period of seven years
which shall include the period of sentence
already undergone by the appellant. The fine
as imposed and the default sentence is
sustained.

25.3. The appeal is allowed in
part, in the above terms.

25.4. The parties to bear their own
costs."

31. Consequently, the Criminal Appeal
No. 3820 of 2022 filed by the accused
appellant Ankur Gupta succeeds and is
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed in part. Since the accused appellant
Ankur Gupta has been taken in custody on
30.10.2016 and he has remained in jail ever
since then and the period of incarceration
undergone is more than 8 years with
remission, as such, his sentence is modified
to the sentence already undergone by him.
The fine and the additional sentence, on
failure to deposit the fine, are maintained.
The appellant Ankur Gupta is set to liberty
on the sentence already undergone, subject
to observance of Section 437A Cr.P.C.,
provided he is not wanted in any other case.

32. Criminal Appeal No. 2023 of 2012
at the instance of accused appellant Smt.
Vimlesh, accordingly, succeeds and is
allowed. The judgment and order of
conviction and sentence dated 09.03.2022,
insofar as it convicts the accused appellant
Smt. Vimlesh, is set aside. Accused
appellant Smt. Vimlesh is reported to be in
jail, she shall be released forthwith, subject
to compliance of section 437A Cr.P.C.
provided she is not wanted in any other case.
----------
(2024) 5 ILRA 1388
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 4350 of 2005

Rajveer Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
K.K. Dwivedi, R.P. Dwivedi

Counsel for the Respondent:
Govt. Advocate, D.N. Wali, Manoj Yadav

Criminal Law: Indian Penal Code, 1860 -
Section 302 - Murder - Indian Evidence
Act, 1872 - Sections 8, 27 & 60 - Criminal
Procedure Code,1973 - Section 161, 313 -
blind murder committed during night hours
- none of three witnesses P.W.1, P.W.3
and P.W.5 have witnessed the incident -
F.I.R. has been lodged against unknown
persons - appellant alongwith another
person has been implicated as an accused
on the basis of suspicion - Court convicted
& sentenced the appellant u/s 302 I.P.C.
for life imprisonment - Held, appellant is
the scribe of the F.I.R. which has been
lodged by P.W.1 and present at the time of
inquest and is also a witness of inquest and
participated in the last rites as pointed out
by P.W.2.- Allegation against accused -
quarrel with his brother over partition of
property and for not sharing the sale
proceeds of the plot which was in the name
of his mother- recovery of an axe is
recovered by the police itself and not at his
pointing out - in a circumstantial evidence
- motive plays pivotal role and non proving
creates serious dent in the prosecution
story - St.ment of an accused recorded by
a police officer under Section 27 of the
Evidence Act is a memorandum of
confession
during
interrogation
,
confessional part of such St.ment is
inadmissible and only the part which leads
to discovery of fact is admissible in
evidence - Evidence Act - Section 60
mandates
that
no
secondary/hearsay
evidence can be given in case of oral
evidence, except for the circumstances
enumerated in the section - finding of trial
court in respect of recovery is against the
settled proposition of law as laid down by
Hon'ble Apex Court and it can't be
sustained and is liable to discarded -
conduct of an accused may be relevant fact
under section 8 of Evidence Act, by itself,
cannot be a ground to convict him or hold
guilty for a serious offence like murder -
finding by trial court is not just, proper and
legal and is liable to be set-aside.(Para 28,
29, 32, 33, 35, 40, 46, 48)

Appeal is allowed. (E-13)