# Sri H.C. Mishra, Sri v. Singh

- **Citation:** (2013) 2 ILRA 890
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013
- **Bench:** Dharnidhar Jha, Pankaj Naqvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-h-c-mishra-sri-v-singh-42640
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 372-
Appeal against acquittal-offence under
section 498-A, 304-B, 302/34 I.P.C.-
readwith
3/4
D.P.
Act-Trail
Court
recorded
finding
of
fact
about
no
demand
of
dowry-living
peacefully
continues three years in-in-laws housegoes to established regarding no demand
of dowry-merely because defence failed
to explain about burn injury-can not be
basis for interference with trail court
finding-appeal dismissed.

Held: Para-8
We have already noted that some of the
facts which have been alleged by the
prosecution were not established. There
was no demand of dowry initially at the
time of marriage and the court below has
rightly noted that there was no evidence to
establish that there was any further
demand while the deceased was residing in
her matrimonial house. The further story
that she was expelled from her matrimonial
house on account of not bringing the
desired dowry was falsified by the fact that
she had remained in her matrimonial house
peacefully for three continuous years.
Merely because the defence did not offer
any explanation as to how the deceased has
incurred the burn injuries, was of his
consequence. The non - establishment of
the ingredients of the offence itself had
entitled the accused to an acquittal.

Case Law discussed:
AIR 1962 SC 605; AIR 1977 SC 170

## Text

890 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
any kind of relief howsoever innocuously
worded the order under review may be.
The submission of learned counsel
appearing for the respondent No.1 that the
order dated 6.2.2009, which is under
review in the instant review petition is a
very innocuous order and further it is a
conditional order and hence instead of
filing
the
review
petition,
it
was
incumbent on the part of review applicant
to have appropriately interpreted the said
order does not impress the Court.

17. As noticed above, the allegation of
the review applicant is that the very initial
appointment order of respondent no.1
appointing him as Assistant Teacher on
compassionate ground is forged. Further
noticeable feature in this case is that on an
inquiry, the department has found the order
dated 21.6.2004, on the strength of which the
respondent
no.1
had
claimed
his
reinstatement, has also been found to be
forged. This report is embodied in the order
dated 30.6.2005. The said order dated
30.6.2005 was challenged by respondent
no.1 by way of filing Writ Petition No. 532
(SS) of 2005. Further, while filing the
subsequent Writ Petition No. 918 (SS) of
2009 even the factum of pendency of the
earlier
writ
petition
was
deliberately
suppressed by the respondent no.1. Another
material suppression, which is apparent in
the instant case, which the respondent no.1
indulged into, is that while filing Writ
Petition No. 918 (SS) of 2009, pendency of
criminal case in respect of allegations of
forgery in the appointment order dated
20.8.1991 was not disclosed. It is also
noteworthy that the order dated 7.11.2007 is
also being termed to be a forged document
allegedly fabricated by respondent no.1.

18. From a close scrutiny and analysis
of the aforesaid facts and circumstances of
the case as also the competing arguments
raised by learned counsels appearing for the
parties, I have no hesitation to hold that this
Court was persuaded to pass the order dated
6.2.2009 by suppression and concealment
of material facts as noted above. Though the
order dated 6.2.2009 is innocuously worded
and in fact it is a conditional order,
however, for the reason that the said order is
causing miscarriage of justice on account of
the fact that the departmental authorities
have already held the initial appointment of
respondent no.1 to be forged, in my
considered view, the order dated 6.2.2009
deserves to be reviewed, albeit without
giving any finding as to thegenuineness of
the appointment of respondent no. 1.

19. In view of the discussions made
and reasons given above, in the result, the
instant review petition is allowed and the
order dated 6.2.2009 is hereby set aside. It is
expected that pleadings in the Writ Petition
No. 918 (SS) of 2009 shall be completed
within the shortest possible span of time and
the same shall be decided expeditiously.

20. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2013

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE PANKAJ NAQVI, J.

Criminal Misc.Application (Leave toAppeal)
No. 105 of 2013(u/s 372)

Madan Pal Sharma

...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri
H.C.
Mishra,
Sri
V.
Singh
2 All] Madan Pal Sharma Vs. State of U.P and Ors.
891
Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 372-
Appeal against acquittal-offence under
section 498-A, 304-B, 302/34 I.P.C.-
readwith
3/4
D.P.
Act-Trail
Court
recorded
finding
of
fact
about
no
demand
of
dowry-living
peacefully
continues three years in-in-laws housegoes to established regarding no demand
of dowry-merely because defence failed
to explain about burn injury-can not be
basis for interference with trail court
finding-appeal dismissed.

Held: Para-8
We have already noted that some of the
facts which have been alleged by the
prosecution were not established. There
was no demand of dowry initially at the
time of marriage and the court below has
rightly noted that there was no evidence to
establish that there was any further
demand while the deceased was residing in
her matrimonial house. The further story
that she was expelled from her matrimonial
house on account of not bringing the
desired dowry was falsified by the fact that
she had remained in her matrimonial house
peacefully for three continuous years.
Merely because the defence did not offer
any explanation as to how the deceased has
incurred the burn injuries, was of his
consequence. The non - establishment of
the ingredients of the offence itself had
entitled the accused to an acquittal.

Case Law discussed:
AIR 1962 SC 605; AIR 1977 SC 170

(Delivered by Hon'ble Dharnidhar Jha, J.)

1. We have heard Sri Veer Singh,
learned counsel for the appellant on
admission of appeal under Section 372
I.P.C. The appeal is directed against
judgment of acquittal dated 23.2.2013
passed by the learned Additional Sessions
Judge, Court No. 2 Muzaffarnagar in
Sesstions Trial No. 172 of 2006.

2. Some of the admitted facts were
that the deceased Ravita was married to
respondent Amit Kumar as per Hindu
rites and rituals on 7th March, 2002 and
that she was residing in her matrimonial
house on 13.5.2005. It is also not disputed
that she was burnt and the burn injuries
were to the extent of 95% and she died of
those injuries.

3. What was alleged and what was
disputed was that just after the marriage, not
being satisfied with the quantum of dowry
given by the father of the deceased, the inlaws of the deceased placed additional
demand of Rs. 25,000/- in cash and a scooter.
It was stated that the lady had been beaten up
and expelled from the matrimonial house one
year prior to the occurrence and was told to
be allowed to return only when she had
brought the demanded cash and the scooter.
The informant stated that there was some
patch up between the parties and Rs. 10,000/-
in cash was given to the accused which
facilitated the lady to return to her
matrimonial house but the lady continued to
be assaulted and beaten up daily and lastly,
on 13.5.2005 at about 11:00 a.m. he learnt
from some unknown persons that the lady
had been burnt by her in-laws and husband.

4. The informant, examined as P.W.
1, claimed having rushed to the house of
the accused and found that she had been
admitted into the hospital. When he
wanted to meet the deceased the doctors
forbade him to do so.

5. During the course of the trial
P.W.1, father of the deceased admitted that
at the time of the marriage there had not
been any demand of dowry and the
marriage was dowryless.The father of the
groom was unhappy on the poor hospitality
extended to the baratis but that particular
892 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
evidence does not indicate that there was
any further annoyance and acrimony
between the parties and the prosecution case
that the deceased had been turned out after
one year of the marriage from her
matrimonial house appears hypothetical and
as of no consequence as the prosecution
evidence itself indicated that the lady
remained
at
her
matrimonial
house
continuously for three years and there was
no complaint of any ill treatment and
torture.

6. Learned counsel appearing for the
appellant was critical of the judgment by
submitting that once the death was under
circumstances not natural and within
seven years of marriage the defence had
to discharge its burden under Section 113
B by showing as to how the deceased
happened to have those burn injuries.

7. We on scrutiny of the arguments
wish to note that even in a case of
statutory burden created on defence as
may be in cases of Section 304 B I.P.C. or
cases
of
misappropriation
or
embezzlement of properties where the
burden is caused on the accused to
indicate the discharge of entrustment of
the property, the primal onus is on the
prosecution
of
establishing
the
constitution of the offence which was
allegedly committed by the accused by
admissible and acceptable evidence this
onus never shifts. Once the prosecution
has discharged its primary onus of
establishing the offence which was
allegedly committed by the accused, then
only there would be some burden on the
accused which could be required to be
discharged. But, again there is difference
between the discharge of the onus by the
prosecution and showing the probabilities
of the defence version by referring to the
facts admitted by the witnesses or those
brought
on
record
by
the
crossexamination the prosecution witnesses.
Yet
another
principle
of
criminal
jurisprudence which is applicable to all
cases is that if there are four ingredients
creating the offence and the prosecution
had established all the four ingredients by
acceptable evidence and the defence has
set up any plea which is constituted by yet
another five sets of facts which the
defence attempted to establish by leading
evidence, the Court has to adopt an
approach that if the defence has failed in
establishing the four ingredients of its
defence case completely and fully but if it
had probablised the truth of the fifth
factual ingredient, then a doubt is created
by such probability of one fact of the
defence version whereby the foundation
of the prosecution case is shaken and the
accused gets acquitted. We want to refer
in the above context some of the cases of
Supreme
Court
rendered
in
K.M.
Nanawati Vs. State of Maharashtra
reported in AIR 1962 SC 605 and
Rabindra Kumar Dey Vs. State of Orissa
reported in AIR 1977 SC 170.

8. We have already noted that some
of the facts which have been alleged by
the prosecution were not established.
There was no demand of dowry initially
at the time of marriage and the court
below has rightly noted that there was no
evidence to establish that there was any
further demand while the deceased was
residing in her matrimonial house. The
further story that she was expelled from
her matrimonial house on account of not
bringing the desired dowry was falsified
by the fact that she had remained in her
matrimonial house peacefully for three
continuous years. Merely because the
defence did not offer any explanation as
2 All] Badri Vishal and Ors. Vs. Ran Narain
893
to how the deceased has incurred the burn
injuries, was of his consequence. The non
- establishment of the ingredients of the
offence itself had entitled the accused to
an acquittal.

9. In view of our findings just noted,
we find that the appeal against acquittal
filed by the appellant is meritless and the
same is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2013

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Second Appeal No. 117 of 2013

Badri Vishal and Ors.
 ...Petitioners
Versus
Raj Narain

 ...Respondent

Counsel for the Petitioners:
Sri Ashok Shukla, Sri Shishir Tewari

Counsel for the Respondent:
Sri Raj Narain

Hindu minority and guardianship Act
1956-Section8(2)
and
(4)-
Suit
for
cancellation of sale deed-at behest of
minor-dismissed by Trail Court-decreed
by Lower Appellate Court-with specific
finding-transfer made even by mother of
minor-without prior permission heldillegal-can
not
be
disturbed
under
second appeal-no substantial question of
law involve.

Held: Para-11
A detailed hearing and perusal of the
judgment and orders of both the Courts
below made it abundantly clear that no
substantial question of law is involved in
this
appeal.
Even
appreciation
of
evidence by the two Courts below has
not been assailed before this Court.
Since the question involved in the
instant second appeal has already been
decided by the Hon'ble Apex court as
well as this Court in three cases, I do not
find it fit and expedient to refer this
matter to a larger Bench of this Court as
provided under Chapter V of Rules of the
Court, 1952.

Case Law discussed:
[1982 (1) RR 122]; 1978 AWC 13; 2011 (2)
AWC 1641; AIR 1991 SC 1256; 1987 AWC
109; AIR 1962 SC 1314; (2005) 7 SCC 60; AIR
1947 PC 19; (2011) 1 SCC 673; Civil Appeal
No. 1374 of 2008.

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. Heard learned counsel for the
appellants and perused the records.

2. The instant appeal has been
preferred against the judgment and decree
dated 22.12.2010, passed by learned
Additional Civil Judge (J.D.), Court
No.21, Barabanki, in Regular Suit No.134
of 1996, by which the plaintiffs suit for
cancellation of sale deed was dismissed
with costs but Civil Appeal No.5 of 2011
preferred by the defendant has been
allowed and judgment and decree passed
by the learned Trial Court has been set
aside and the suit for cancellation of sale
deed has been decreed with costs by
learned First Appellate Court who has
discussed the entire evidence and law laid
down by the Hon'ble Apex Court as well
as this Court in detail.

3. Simple dispute in this case is that
the plaintiff was the recorded tenure holder
of disputed agricultural plots. Since he was
minor, his mother was natural guardian who
sold it to the defendants without obtaining
any permission from the learned District
Judge as required under Section 8 of Hindu
Minority and Guardianship Act, 1956. It is