# Tajeem v. State of U.P

- **Citation:** (2023) 2 ILRA 648
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-20
- **Case number:** Criminal Appeal No. 2490 of 2022
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tajeem-v-state-of-u-p-49724
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 304-B - Indian Penal Code,1860 -
Dowry death - Punishment - Sentence -
duty of a court to use its judicial discretion
to award a sentence that is ''proper' in the
backdrop of circumstances of the case at
hand, and ''matches' with the guilt of
2 All. Tajeem Vs. State of U.P.
649
offender - court to prepare a balance
sheet
of
mitigating
and
aggravating
circumstances
and
quantify
the
''punishment' based thereon - In the
instant case the appellant was in jail since
10.4.2013 i.e. for about 10 years -
deceased committed suicide by hanging &
that the accused was not present on the
spot - Court reduced the maximum
sentence U/s 304-B IPC from 14 years to
10 years with all remissions (Para 24)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,808 of 40,935. This is a partial read: ask again with offset=39808 for what follows._

648 INDIAN LAW REPORTS ALLAHABAD SERIES
from the record it appears that the District
Magistrate has no material in support of the
police report that the property in question
was acquired by the present appellants
being
gangsters
even
though
the
proceedings was not followed as per the
provisions of the Act. While passing the
impugned orders of attachment the order
was passed in mechanical manner without
application of mind and is arbitrary. Thus
the order passed by learned Special Judge
Gangsters Act / Additional Session Judge
Court No.-5 Unnao is also illegal and the
same is also liable to be quashed.

22. In view of above facts and
circumstances of the case, the impugned
judgment and order of the learned court
below cannot be said to be passed in
correct perspectives as it is not sustainable
in the eye of law and requires interference
by this court, the prosecution has failed to
establish that the provisions of Section 2
and 3 of the Gangster Act is attracted in the
case of of appellants, and further the
appellants' property is also not attached in
accordance with law, as the prosecution has
failed to establish that the said property and
vehicle acquired and owned by the
appellants have been earned from the
income indulging in anti social activities.
The enquiry under Section 16 was not done
in accordance with the Act, the provisions
of Section 14, 15 & 17 was also not
followed in accordance with the Act, thus
the entire proceeding initiated in pursuance
thereof is vitiated.

23. Accordingly, the present appeal is
allowed. The impugned judgment and order
dated 10.03.2021 passed by the court of
learned Special Judge, Gangster Act/
Additional Sessions Judge, Court No. 5,
Unnao in Criminal Misc. Case No. 94 of
2021, Sushil Kumar Jaiswal Vs. State,
arising out of Case Crime No. 336 of 2017,
under Section 3(1) of the Gangster Act,
Police Station Hasanganj, District Unnao is
hereby quashed.

24. Consequently the order dated
22.09.2020 and 01.01.2021 passed by
District
Magistrate,
Unnao,
are
also
quashed.

25. The District Magistrate, Unnao is
directed to release the vehicles Pickup Dala
No. UP 35T 4181 as well as five shops
situated at Khasra No. 256, measuring
0.014 Hectare situated at Village Kurauli,
Tehsil Hasangaj, District Unnao in favour
of appellants, forthwith.

26. No order as to costs.
----------
(2023) 2 ILRA 648
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 2490 of 2022

Tajeem ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sushil Pandey

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860 -
Section 304-B - Indian Penal Code,1860 -
Dowry death - Punishment - Sentence -
duty of a court to use its judicial discretion
to award a sentence that is ''proper' in the
backdrop of circumstances of the case at
hand, and ''matches' with the guilt of
2 All. Tajeem Vs. State of U.P.
649
offender - court to prepare a balance
sheet
of
mitigating
and
aggravating
circumstances
and
quantify
the
''punishment' based thereon - In the
instant case the appellant was in jail since
10.4.2013 i.e. for about 10 years -
deceased committed suicide by hanging &
that the accused was not present on the
spot - Court reduced the maximum
sentence U/s 304-B IPC from 14 years to
10 years with all remissions (Para 24)

Allowed. (E-5)

List of Cases cited:

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

2. Kashmir Kaur Vs St. of Pun. AIR 2013 SC
1039

3. Gajanan Dashrath Kharate Vs St. of Mah.
2016 (4) SCC Page 604

4. Sher Singh @ Pratapa Vs St. of Har. 2015
(89) ACC 288 (SC)

5. Gurukukh Singh Vs St. of Har., reported in
2009(11) Scale 688

6. Jameel Vs St. of U. P., reported in 2009(13)
SCALE 578

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This criminal appeal has been filed
under Section 374 (2) Cr.P.C. against the
judgment and order dated 14.9.2022 passed
by Additional District & Sessions Judge,
Sitapur in Sessions Trial No. 809 of 2013
arising out of Case Crime No. 51 of 2013
relating to Police Station- Khairabad,
District- Sitapur, whereby convicted and
sentenced the appellant for the offences
under section-304-B I.P.C. for fourteen
years rigorous imprisonment with fine of
Rs. 5,000/- and in default of payment of
fine,
three
months
additional
simple
imprisonment; under Section- 498-A I.P.C.
for three years rigorous imprisonment with
fine of Rs. 2,000/- and in default of
payment of fine, two months additional
simple imprisonment; under Section- 201
IPC for two years imprisonment with fine
of Rs. 2,000/- and in default of payment of
fine,
two
months
additional
simple
imprisonment; and under Section- 4 of
Dowry Prohibition Act for one year
rigorous imprisonment with fine of Rs.
1,000/- and in default of payment of fine,
one month additional simple imprisonment.

2. The prosecution story, in brief, is
that the complainant Qamar Jahan, W/o
Imamuddin is a resident of Biswan, Sitapur.
The complainant had married her daughter
Tarannum with Tajeem (appellant) about 18
months ago. In the marriage, the applicant
had given dowry according to her status,
but the accused-appellant and her mother
Asiya, Aafaq and Aafaq and his wife and
Sajia Bano were not happy with the dowry
given and the additional dowry demand of
motorcycle was being raised. On nonfulfillment of the demand, they used to
harass the daughter of the complainant
right from the time of her marriage and on
01.04.2013, they killed the complainant's
daughter by thrashing her and hanging her
with a rope around her neck and buried the
dead body secretly. On getting information
from others, when the complainant went to
matrimonial house of her daughter and
inquired about her daughter (deceased), the
family members of the appellant chased the
complainant away from their house by
abusing her and extended threat that if you
take any legal action, I will kill you too. On
the basis of written report, the First
Information Report was registered against
the appellant and other family members in
Case Crime No. 51 of 2013, under Sections
498A, 304B, 302, 201, 504, 506 IPC and
650 INDIAN LAW REPORTS ALLAHABAD SERIES
3/4
of
Dowry
Prohibition
Act
on
02.04.2013 at police station- Khairabad,
District- Sitapur.

3. During course of investigation, on
3.4.2013 on receiving oral information
from the City Magistrate, the Nayab
Tehsildar Rohit Kumar Maurya reached the
place of occurrence near the cemetery
secretariat.
The
Sub-Inspector
Vidyashankar Shukla of Thana Khairabad
was already present there. As per the
instructions
of
Additional
District
Magistrate, Sitapur and City Magistrate, the
proceedings
of
Panchayatnama
were
conducted by them. An arbitrator was
appointed from among the people present
there and after taking the opinion of the
arbitrators, S.I. Vidyashankar prepared the
panchayatnama
under
his
direction.
Thereafter, the dead body was sealed and
relevant police papers for postmortem were
handed over to Constable Vijay Kumar
Verma and Pindarlal. After preparing the
relevant papers relating to postmortem, the
dead body was sent for post mortem and
the same was conducted by the PW-4, Dr.
Rakesh Kumar, Senior Consultant on
3.4.2013 at district hospital, Sitapur and
prepared post mortem report. The doctor
opined that the cause of death was due to
hanging. The time of death of the deceased
may be about three days ago i.e. on
1.4.2013.

4. After completion of the investigation,
the investigating officer submitted the chargesheet against the appellant and other family
members including the accused Sajia U/s
498A, 304B, 302, 201, 504, 506 IPC and
Sections 3/4 of Dowry Prohibition Act on
23.6.2013
and
25.7.2013
before
the
magistrate court who took cognizance and the
case was committed to the court of sessions
on 26.11.2013 where the case was registered
as S.T. No. 809/2013 and thereafter, this case
was transferred to the court of Additional
District & Sessions Judge, Sitapur for trial.
The charges were framed against the
appellant and other co-accused U/s 498A,
304B, 302/34, 201, 504, 506 IPC and Section
4 of Dowry Prohibition Act on several dates
i.e. 26.8.2014, 2.4.2015 and 20.4.2015. The
charges were read over to the appellant and
other co-accused but they denied the charges
levelled against them in toto and claimed to
be tried.

5. The prosecution in order to prove its
case has examined the following witnesses:

(i) PW-1, Qamar Jahan who is the
complainant as well as the mother of the
deceased.
She
supported
the
entire
prosecution version and proved the written
report as Ex-ka-1.

(ii) PW-2, Jiyauddin who is the
uncle of the deceased. He also supported the
entire prosecution version.

(iii) PW-3, Imauddin who is the
father of the deceased. He also supported the
entire prosecution version.

(iv) PW-4, Dr. Rakesh Kumar who
conducted the post-mortem of the deceased
on 3.4.2013 at 05.25 pm and following
injuries were found on the body of the
deceased:

(1) The ligature mark was present in
the middle of the neck above the thyroid
carlways, which was present around the neck,
which was 31 cm in length, 1.5 to 2 cm in
width, which was 6 cm below and 5.5 cm
below the chin. Mild unitosis was present along
the edge of the ligature mark. On cutting the
ligature mark, the left half bone was fractured.

(2) Multiple lacerations of 6 cm x 4
cm were present on the inner side of the left leg.

(3) Multiple lacerations of 5 cm x
3 cm were present on the inner side of the
right knee.
2 All. Tajeem Vs. State of U.P.
651

The Doctor opined that the cause
of the death of the deceased was hanging.
He proved the post-mortem report as Exka-3.

(v) PW-5, Rohit Kumar Maurya,
Nayab
Tehsildar
who
proved
the
panchayatnama report as Ex-ka-3 and
relevant police papers as Ex-ka-4 to Ex-ka8.

(vi) PW-6, Radhey Lal, Retired
S.I. who registered the FIR on the basis of
written report given by the complainant. He
proved the copy of chik and G.D. as Ex-ka9 and Ex-ka-10, respectively.

(vii)
PW-7,
Akhilesh
Kumar
Chaurasia, Circle Officer who conducted the
investigation. During course of investigation,
he prepared the site plans of the place where
the deceased was buried and the residence of
the accused-appellant and proved it as Ex-ka11 and Ex-ka-12, respectively. Thereafter on
10.4.2013, he arrested the appellant Tajeem
and submitted the charge-sheet against the
appellant and other family members on
23.6.2013 and proved it as Ex-ka-13. He
submitted another charge-sheet against the
accused Sajia Bano on 25.7.2013 and proved
it as Ex-ka-14. He also proved the recovery
memo of marron, yellow, red, white scarf
(dupatta) as Ex-ka-15.

(viii)
PW-8,
Jagdish
Yadav,
Inspector who recovered the scarf of the
deceased in presence of the witnesses namely,
Shakil Ahmad and Iliyas and sealed it. He
received a letter for ensuring further
proceedings from the office of ADM, which
was proved as Ex-ka-16.

6. Thus, the prosecution relied on oral
evidence of PW-1 to PW-8 as well as
documentary evidence of Ex-ka-1 to Ex-ka16.

7. After conclusion of the evidence of
the prosecution, the statement of the
appellant was recorded U/s 313 CrPC in
which the accused-appellant denied the
charges and stated that he is innocent and
has been falsely implicated in the case. He
further stated that with their consent, the
last rites of the deceased were done in the
presence of the witnesses from the mayka
side of the deceased. After the last rites, the
family members of the deceased were
demanding the expenses incurred in the
marriage. Due to non- completion, the false
and frivolous case was filed against him.
The deceased was alone at home at the time
of
the
incident.
This
incident
was
committed by unknown persons by entering
the house.

8. In defence, the witness DW-1,
Shakeel Ahmed was examined, who
supported the version of the appellant
Tajeem and stated that after the list rites of
the deceased, the family members of the
deceased demanded the expenses incurred
in the marriage from the appellant. When
he refused to do so, then the family
members of the deceased lodged the false
and frivolous FIR against the appellant and
his family members.

9. After appreciating the evidence
available on record, the trial court acquitted
the other co-accused persons and convicted
the appellant vide order dated 14.9.2022, as
aforesaid.

10. Being aggrieved and dissatisfied
with the aforesaid order dated 14.9.2022,
this criminal appeal has been preferred U/s
374(2) CrPC.

11. I have heard Mr. Sushil Pandey,
learned counsel for the appellant, Mr. Vijay
Srivastava, learned AGA appearing for the
State and perused the material available on
record.
652 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Learned counsel for the appellant
submits the trial court has convicted the
appellant on the basis of conjecture and
surmises.
The
trial
court
failed
to
appreciate the evidence available on record.
There are material contradictions in the
statement of prosecution witnesses. It is
also submitted that only on the basis of
interested
witnesses,
the
trial
court
convicted the appellant and in this matter
no independent witness was produced by
the prosecution. The counsel for the
appellant submits that at the time of
incident, he was not present on the spot
when the deceased committed suicide by
hanging. It is further submitted that after
last rites of the deceased, the complainant
and other family members of the deceased
demanded
the
expenses
incurred
in
marriage from the accused-appellant. When
he refused to do so, then the FIR was
lodged by the mother of the deceased
against the appellant. It is also submitted
that the last rites of the deceased was
performed in presence of the appellant.
Thus, the learned counsel for the appellant
submits that this is the case of suicide not
of dowry death and therefore, the accused
is supposed to be given the benefit of doubt
as ingredients of 304-B IPC are not made
out against him.

13. Learned counsel has further
submitted that what was the date of demand
is nowhere proved, it is submitted that there
is a missing link between the date of
demand and the death and therefore, the
accused would be entitled to the benefit as
propounded by the Apex Court in Hem
Chand Vs. State of Harayana (1994) 6
SCC 727. Thus the prosecution has failed
to establish that the death of the deceased
(Tarannum) occurred due to cruelty and
harassment by the appellant. He further
submits that the prosecution has failed to
establish the charges against the appellant
beyond shadow of doubt.

14. Lastly, the counsel for the
appellant submits that the appellant is
languishing in jail since 10.4.2013. Thus,
the appellant is lodged in jail since about
10 years. Apart from arguing the merit of
the case, learned counsel for the appellant
contended that there is no evidence against
the appellant regarding the cruelty or
harassment committed by him. If the Court
arrives at a conclusion that the appellant
was guilty, his sentence kindly be reduced
to the period already undergone U/s 498A,
304B, 201 IPC and Section 4 of Dowry
Prohibition Act.

15. Learned AGA submitted that the
deceased
committed
suicide
at
her
matrimonial home and the deceased died
under unnatural circumstances. It is further
submitted that the prosecution has fully
established that the death of the deceased
was done under unnatural circumstances
right from the time of marriage and soon
before her death she was subjected to
harassment and cruelty due to demand of
dowry and the appellant has been rightly
convicted U/s 498A, 304B, 201 IPC and
Section 4 of Dowry Prohibition Act and on
perusal of the judgement, it reveals that the
prosecution has clearly established the
charges levelled against the appellant and
thus the prosecution has not failed to
establish beyond shadow of doubt and
learned trial court rightly convicted and
sentenced him, as aforesaid. Thus, in these
circumstances, there is no ground for
leniency of the Court.

16. To appreciate the argument of the
parties, it is necessary to look into the
provisions of Sections 498A, 304B IPC and
133 of the Evidence Act.
2 All. Tajeem Vs. State of U.P.
653

17. Their Lordship of Hon'ble
Supreme Court in AIR 2013 (SC 1039) in
case of Kashmir Kaur vs. State of Punjab
has explained the ingredients of offence
under section 304B of IPC which reads as
under:-

From the above decisions the
following principles can be culled out:

a) To attract the provisions of
Section 304B IPC the main ingredient of
the offence to be established is that soon
before the death of the deceased she was
subjected to cruelty and harassment in
connection with the demand of dowry.

b) The death of the deceased
woman was caused by any burn or bodily
injury or some other circumstance which
was not normal.

c) Such death occurs within seven
years from the date of her marriage.

d) That the victim was subjected
to cruelty or harassment by her husband or
any relative of her husband.

e) Such cruelty or harassment
should be for or in connection with demand
of dowry.

f) It should be established that
such cruelty and harassment was made
soon before her death.

g) The expression (soon before) is
a relative term and it would depend upon
circumstances of each case and no
straightjacket formula can be laid down as
to what would constitute a period of soon
before the occurrence.

h) It would be hazardous to
indicate any fixed period and that brings in
the importance of a proximity test both for
the proof of an offence of dowry death as
well as for raising a presumption under
Section 113B of the Evidence Act.

i) Therefore, the expression "soon
before" would normally imply that the
interval should not be much between the
concerned cruelty or harassment and the
death in question. There must be existence
of a proximate or life link between the
effect of cruelty based on dowry demand
and the concerned death. In other words, it
should not be remote in point of time and
thereby make it a stale one.

j) However, the expression "soon
before" should not be given a narrow
meaning which would otherwise defeat the
very purpose of the provisions of the Act
and should not lead to absurd results.

k) Section 304B is an exception
to the cardinal principles of criminal
jurisprudence that a suspect in the Indian
Law is entitled to the protection of Article
20 of the Constitution, as well as, a
presumption of innocence in his favour.
The concept of deeming fiction is hardly
applicable to criminal jurisprudence but in
contradistinction to this aspect of criminal
law, the legislature applied the concept of
deeming fiction to the provisions of Section
304B.

l) Such deeming fiction resulting
in a presumption is, however, a rebuttable
presumption and the husband and his
relatives, can, by leading their defence
prove that the ingredients of Section 304B
were not satisfied.

m) The specific significance to be
attached is to the time of the alleged cruelty
and harassment to which the victim was
subjected to, the time of her death and
whether the alleged demand of dowry was
in connection with the marriage. Once the
said ingredients were satisfied it will be
called dowry death and by deemed fiction
of law the husband or the relatives will be
deemed to have committed that offence.

Section 113 B of the Act reads as
follows:

[113B. Presumption as to dowry
death.--When the question is whether a
person has committed the dowry death of a
654 INDIAN LAW REPORTS ALLAHABAD SERIES
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
304 B of the Indian Penal Code, (45 of
1860).]

18. As per definition of dowry death
under Section 304 B IPC and the wording
in the presumptive Section 113 B of the
Act, if it is proved that death of woman is
caused by any burn 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 (i) She was subjected to cruelty
or harassment by her husband or his
relatives, or (ii) Such cruelty or harassment
was for, or in connection with, demand of
dowry, or (iii) Such cruelty or harassment
was soon before her death; then it becomes
obligatory on the court to raise a
presumption that accused caused dowry
death.

19. In [2016 (4) SCC Page 604], in
the case of Gajanan Dashrath Kharate v.
State of Maharashtra, their Lordships of
Hon. Supreme Court have held that the
initial burden to establish the case would
undoubtedly be upon the prosecution. In
view of Section 106 of the Evidence Act,
there will be a corresponding burden on the
inmates of the house to give cogent
explanation as to how the crime was
committed. The inmates of the house
cannot get away by simply keeping quiet
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty at all on
the accused to offer explanation. In
paragraph no.13, their Lordships have held
as under:-

"13. As seen from the evidence,
appellant Gajanan and his father Dashrath
and mother Mankarnabai were living
together. On 7-4-2002, mother of the
appellant-accused had gone to another
Village Dahigaon. The prosecution has
proved presence of the appellant at his
home on the night of 7-4- 2002. Therefore,
the appellant is duty-bound to explain as to
how the death of his father was caused.
When an offence like murder is committed
in secrecy inside a house, the initial burden
to establish the case would undoubtedly be
upon the prosecution. In view of Section
106 of the Evidence Act, there will be a
corresponding burden on the inmates of the
house to give cogent explanation as to how
the crime was committed. The inmates of
the house cannot get away by simply
keeping quiet and offering no explanation
on the supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty at all on
the accused to offer. On the date of the
occurrence, when the accused and his
father Dashrath were in the house and when
the father of the accused was found dead, it
was for the accused to offer an explanation
as to how his father sustained injuries.
When the accused could not offer any
explanation as to the homicidal death of his
father, it is a strong circumstance against
the accused that he is responsible for the
commission of the crime."

20. Now, it has to be seen that just
before her death, deceased was subjected to
cruelty or harassment by her husband and
any relative of husband in connection with
demand of dowry. This element and burden
of prove in case of dowry deaths have been
2 All. Tajeem Vs. State of U.P.
655
dealt with in detail by Hon'ble The Apex
Court in Sher Singh @ Pratapa v. State of
Haryana 2015 (89) ACC 288 (SC). The
Apex Court held as under:

12. In our opinion, it is beyond
cavil that where the same word is used in a
section and/or in sundry segments of a
statute, it should be attributed the same
meaning, unless there are compelling
reasons to do otherwise. The obverse is
where different words are employed in
close proximity, or in the same section, or
in the same enactment, the assumption
must be that the legislature intended them
to depict disparate situations, and delineate
dissimilar and diverse ramifications. Ergo,
ordinarily Parliament could not have
proposed to ordain that the prosecution
should "prove" the existence of a vital
sequence of facts, despite having employed
the word "shown" in Section 304 B. The
question is whether these two words can be
construed as synonymous. It seems to us
that if the prosecution is required to prove,
which always means beyond reasonable
doubt, that a dowry death has been
committed, there is a risk that the purpose
postulated in the provision may be reduced
to a cipher. This method of statutory
interpretation
has
consistently
been
disapproved and deprecated except in
exceptional instances where the syntax
permits reading down or reading up of
some words of the subject provisions.

13. In Section 113A of the
Evidence Act Parliament has, in the case of
a wife's suicide, "presumed" the guilt of the
husband and the members of his family.
Significantly, in section 113 B which
pointedly
refers
to
dowry
deaths,
Parliament has again employed the word
"presume".
However,
in
substantially
similar circumstances, in the event of a
wife's unnatural death, Parliament has in
Section 304 B "deemed" the guilt of the
husband and the members of his family.
The Concise Oxford Dictionary defines the
word "presume" as: supposed to be true,
take for granted; whereas "deem" as:
regard, consider; and whereas "show" as:
point out and prove. The Black's Law
Dictionary (5th Edition) defines the word
"show" as- to make apparent or clear by the
evidence, to prove; "deemed" as- to hold,
consider,
adjudge,
believe,
condemn,
determine, construed as if true; "presume"
as- to believe or accept on probable
evidence; and "Presumption", in Black's,
"is a rule of law, statutory or judicial, by
which finding of a basic fact gives rise to
existence
of
presumed
fact,
until
presumption is rebutted." The Concise
Dictionary of Law, Oxford Paperbacks has
this comprehensive yet succinct definition
of burden of proof which is worthy of
reproduction:

"Burden of Proof: The duty of a
party to litigation to prove a fact or facts in
issue. Generally the burden of proof falls
upon the party who substantially asserts the
truth of a particular fact (the prosecution or
the plaintiff). A distinction is drawn
between the persuasive (or legal) burden,
which is carried by the party who as a
matter of law will lose the case if he fails to
prove the fact in issue; and the evidential
burden (burden of adducing evidence or
burden of going forward), which is the duty
of showing that there is sufficient evidence
to raise an issue fit for the consideration of
the trier of fact as to the existence or nonexistence of a fact in issue.

The normal rule is that a
defendant is presumed to be innocent until
he is proved guilty; it is therefore the duty
of the prosecution to prove its case by
establishing both the actus reus of the crime
and the mens rea. It must first satisfy the
evidential
burden
to
show
that
its
656 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations have something to support
them. If it cannot satisfy this burden, the
defence may submit or the judge may direct
that there is no case to answer, and the
judge must direct the jury to acquit. The
prosecution
may
sometimes
rely
on
presumptions
of
fact
to
satisfy
the
evidential burden of proof (e.g. the fact that
a woman was subjected to violence during
sexual intercourse will normally raise a
presumption to support a charge of rape
and prove that she did not consent). If,
however, the prosecution has established a
basis for its case, it must then continue to
satisfy the persuasive burden by proving its
case beyond reasonable doubt (see proof
beyond reasonable doubt). It is the duty of
the judge to tell the jury clearly that the
prosecution must prove its case and that it
must prove it beyond reasonable doubt; if
he does not give this clear direction, the
defendant is entitled to be acquitted.

There are some exceptions to the
normal rule that the burden of proof is upon
the prosecution. The main exceptions are as
follows. (1) When the defendant admits the
elements of the crime (the actus reus and
mens rea) but pleads a special defence, the
evidential burden is upon him to prove his
defence. This may occur, the example, in a
prosecution for murder in which the
defendant raises a defence of self-defence.
(2) When the defendant pleads automatism,
the evidential burden is upon him. (3)
When the defendant pleads insanity, both
the evidential and persuasive burden rest
upon him. In this case, however, it is
sufficient if he proves his case on a balance
of probabilities (i.e. he must persuade the
jury that it is more likely that he is telling
the truth than not). (4) In some cases statute
expressly places a persuasive burden on the
defendant; for example, a person who
carries an offensive weapon in public is
guilty of an offence unless he proves that
he had lawful authority or a reasonable
excuse for carrying it".

14. As is already noted above,
Section 113 B of the Evidence Act and
Section 304B of the IPC were introduced
into their respective statutes simultaneously
and, therefore, it must ordinarily be
assumed that Parliament intentionally used
the word 'deemed' in Section 304B to
distinguish this provision from the others.
In actuality, however, it is well nigh
impossible to give a sensible and legally
acceptable meaning to these provisions,
unless the word 'shown' is used as
synonymous to 'prove' and the word
'presume' as freely interchangeable with the
word 'deemed'. In the realm of civil and
fiscal law, it is not difficult to import the
ordinary meaning of the word 'deem' to
denote a set of circumstances which call to
be construed contrary to what they actually
are. In criminal legislation, however, it is
unpalatable to adopt this approach by rote.
We have the high authority of the
Constitution Bench of this Court both in
State of Travancore-Cochin v. Shanmugha
Vilas Cashewnut Factory, AIR 1953 SC
333 and State of Tamil Nadu v. Arooran
Sugars Limited (1997) 1 SCC 326,
requiring the Court to ascertain the purpose
behind the statutory fiction brought about
by the use of the word 'deemed' so as to
give full effect to the legislation and carry it
to its logical conclusion. We may add that it
is generally posited that there are rebuttable
as well as irrebuttable presumptions, the
latter oftentimes assuming an artificiality as
actuality by means of a deeming provision.
It is abhorrent to criminal jurisprudence to
adjudicate a person guilty of an offence
even though he had neither intention to
commit it nor active participation in its
commission. It is after deep cogitation that
we consider it imperative to construe the
word 'shown' in Section 304B of the IPC as
2 All. Tajeem Vs. State of U.P.
657
to, in fact, connote 'prove'. In other words,
it is for the prosecution to prove that a
'dowry death' has occurred, namely, (i) that
the death of a woman has been caused in
abnormal circumstances by her having been
burned or having been bodily injured, (ii)
within seven years of a marriage, (iii) and
that she was subjected to cruelty or
harassment by her husband or any relative
of her husband, (iv) in connection with any
demand for dowry and (v) that the cruelty
or harassment meted out to her continued to
have a causal connection or a live link with
the demand of dowry. We are aware that the
word 'soon' finds place in Section 304B;
but we would prefer to interpret its use not
in terms of days or months or years, but as
necessarily indicating that the demand for
dowry should not be stale or an aberration
of the past, but should be the continuing
cause for the death under Section 304B or
the suicide under Section 304B of the IPC.
Once the presence of these concomitants
are established or shown or proved by the
prosecution, even by preponderance of
possibility, the initial presumption of
innocence is replaced by an assumption of
guilt of the accused, thereupon transferring
the heavy burden of proof upon him and
requiring
him
to
produce
evidence
dislodging his guilt, beyond reasonable
doubt. It seems to us that what Parliament
intended by using the word 'deemed' was
that only preponderance of evidence would
be insufficient to discharge the husband or
his family members of their guilt. This
interpretation provides the accused a
chance of proving their innocence. This is
also the postulation of Section 101 of the
Evidence Act. The purpose of Section 113B
of the Evidence Act and Section 304B of
the IPC, in our opinion, is to counter what
is commonly encountered - the lack or the
absence of evidence in the case of suicide
or death of a woman within seven years of
marriage. If the word "shown" has to be
given its ordinary meaning then it would
only require the prosecution to merely
present
its
evidence
in
Court,
not
necessarily through oral deposition, and
thereupon make the accused lead detailed
evidence to be followed by that of the
prosecution. This procedure is unknown to
Common Law systems, and beyond the
contemplation of the Cr.P.C.

21. It is well settled principle that
once prosecution proved that death was
occurred within 7 years of marriage and the
deceased/victim was subjected to cruelty
and harassment by her husband and relative
of her husband soon before her death in
connection with the demand of dowry, then
heavy burden of proof lies upon accused to
adduce evidence dislodging his guilt,
beyond reasonable doubt. In the present
case, the prosecution failed to prove his
case that why the deceased (Tarannum)
herself committed suicide by hanging.

22. Last argument of learned counsel
for the appellant is that the appellant is
languishing jail since 10.4.2013. Appellant
is a very poor person. It is also submitted
that the deceased committed suicide by
hanging and, therefore, he prayed for
reduction of sentence to the period already
undergone in jail. It is evident that the
appellant is languishing in jail for about 10
years.

23. The Indian Penal Code, like other
major penal statutes, prescribes punishment
for various offences created under it. It
provides for four kinds of punishments;

(i) death; (ii) imprisonment for
life; (iii) imprisonment for various terms
which may be either simple or rigorous,
and(iv) fine. A further peep into the
658 INDIAN LAW REPORTS ALLAHABAD SERIES
legislative paradigm of the code discloses
that certain offences are made punishable
with a minimum sentence with a cap qua
the maximum, with or without fines, For
some offences, it prescribes an upper limits
of sentence, leaving the minimum, to the
discretion of the court, which may even be
of one day.

24. The Code, thus, gives much
leeway to, and confers wide discretion on,
the judiciary to pick up an opt punishment,
if the offence concerned is made punishable
by different forms of alternate punishment
and a choice is given to it to opt either of
them, in isolation or combination, and/or to
quantify ''punishment' within the range of
''minimum' and ''maximum' punishment, if
any, prescribed for the offence. In the
absence of any sentencing policy or
standardized guiding principles in India, a
court is virtually left to determine sentence
which, in its opinion, meets the ends of
justice. However, it is the duty of a court to
use its judicial discretion to award a
sentence that is ''proper' in the backdrop of
circumstances of the case at hand, and
''matches' with the guilt of offender.

25. In Gurukukh Singh v. State of
Haryana, reported in 2009(11) Scale 688,
the Supreme Court not only emphasized
that it is the duty and obligation of every
court to award proper sentence but also
enumerated various factors that the court is
required to consider while determining the
sentence. They are (i) motive or previous
enmity; (ii) whether the incident had taken
place on the spur of the moment; (iii) the
intention/knowledge of the accused while
inflicting the blow or injury; (iv) the
gravity, dimension and nature of injury; (v)
the age and general health condition of the
accused; (vi) whether the injury was caused
without premeditation in a sudden fight;
(vii)the nature and size of weapon used for
inflicting the injury and the force with
which the blow was inflicted; (viii) the
criminal background and adverse history of
the accused; (ix) number of other criminal
cases pending against the accused; (x)
incident
occurred
within
the
family
members or close relations, and (xi) the
conduct and behavior of the accused after
the incident, whether the accused had taken
the injured/ the deceased to the hospital
immediately to ensure that (s)he gets
proper medical treatment ? In the same
breath, the apex court has made it clear that
these factors are only illustrative and not
exhaustive. These are some of the relevant
factors which are required to be kept in
view by a sentencing court. Each case,
obviously, has to be seen from its special
perspective. The court must ensure that the
accused receives appropriate sentence and
that it must be proportionate to the gravity
of the offence committed by the convict.
Proportion
between
''crime'
and
''punishment' is one of the accepted goals of
criminal justice system. The principle of
proportion between crime and punishment
essentially requires a court to prepare a
balance-sheet of mitigating and aggravating
circumstances
and
quantify
the
''punishment' based thereon. The principle
of proportionality is evolved to remove (or
at least to minimize) arbitrariness in the
sentencing process.

26. In Jameel v. State of Uttar
Pradesh, reported in 2009(13) SCALE
578, the apex court further stressed that the
imposition of appropriate punishment is the
manner in which the courts respond to the
society's cry for justice against the
criminals.
Justice,
the
court
stated,
demands that the courts should impose
punishment befitting the crime so that the
courts reflect public abhorrence of the
2 All. Babloo @ Ranjeet Singh Vs. State of U.P.
659
crime and conscience of the society. It also
reminded the courts of the need that they,
while modulating sentence, need to be stern
or to be tempered with mercy whenever
factual matrix of a case at hand warrants.
The nature of the crime, the manner in
which it was planned and committed, the
motive for commission of the crime, the
conduct of the accused, the nature of
weapons
used
and
other
attending
circumstances may be necessary pointers
for the court in tailoring ''proper' sentence.

27. So far as the question of sentence
is concerned, the same is a matter of
discretion of the learned trial Judge. It is
well settled law that when the discretion
has been granted to the learned trial Judge,
if the same is not arbitrarily, capriciously or
perversely but has been properly exercised
by accepted judicial norms, the appellate
court ought not to interfere to the detriment
of the accused person unless there are very
strong reasons which are not disclosed on
the face of the judgment for the lesser
punishment.

28.

Considering
the
above
propositions
of
law
and
facts
and
circumstances of the present case, I am of
the view that the appellant is in jail since
10.4.2013 and as such, about 10 years have
already elapsed. So, in the interest of
justice, the maximum sentence U/s 304-B
IPC from 14 years is reduced to 10 years
with all remissions under Section 304-B
IPC. But the sentence awarded U/s 498-A,
201 I.P.C. and Section 4 of the Dowry
Prohibition Act shall remain unaltered. All
the sentences shall run concurrently. It is
made clear that the fine clause shall remain
unaltered.

29. The Jail Authority will calculate
the period of his incarceration with
remission
and
decide
the
same
in
accordance with jail manual.

30. Thus the appeal is dismissed on
the point of conviction and partly
allowed on the point of sentence.

31. The trial court record be sent
back.