# Talewar (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 822
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-22
- **Case number:** Criminal Appeal No. 4598 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/talewar-in-jail-v-state-of-u-p-46817
- **Pages:** 6

## Headnote

Law-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Sections 498A, 304-B &
Dowry Prohibition Act,1961-Section 3/4 -
challenge to-conviction-deceased died in
her matrimonial home within 2 years of
her marriage- PW-5 (doctor) opined that
the death of the deceased to be unnatural
and have occurred due to strangulationComplainant alleged that her daughter
was done to death by strangulation on
account of non-fulfilment of demand of
dowry- Most of the witnesses have not
supported case of the prosecution is a fact
which emerges on the record and the
learned Judge had convicted the accused
on the basis of the autopsy report that he
had done her to death by strangulation
and he has brought certain facts on record
that incident occurred on the spur of the
moment,
which
was
not intentionalaccused is set free if ten years of sentence
is over.(Para 1 to 24)

The Appeal is partly allowed. (E-5)

List of Cases cited:-

## Text

822 INDIAN LAW REPORTS ALLAHABAD SERIES
250 and in the case of B.N. Kavatakar and
Another Vs. State of Karnataka, reported
in 1994 SUPP (1) SCC 304, we are of the
considered opinion that the offence would
be one punishable under Section 304 part-I
of the IPC.

17. If we summarize the evidence of
all the witnesses, they have withstood the
cross examination and the factum of
trustworthy dying declaration corroborated
by the testimony of PW-2 son himself
against father will also not permit us to
brush aside the evidence.

18. The submission of learned counsel
for the appellant relying on the decisions in
Khushal Rao ( supra) would, on the
contrary, go against the appellant and the
decision in State of Madhya Pradesh (
supra) is also against appellant.

19. In our case, the decision of State
of Madhya Pradesh ( supra) will not aid
the appellant, reason being here this is a
case of conviction wherein State of
Madhya Pradesh it was appeal against
acquital. The judgment of this High Court
in Pramod Kumar Vs. State of U.P. also
will not help the appellant. The conviction
has been based on circumstances which are
attendant to the dying declaration. The said
decision in Pramod Kumar Vs. State of U.P.
also laid down that the dying declaration
was truthful. Similar is the case here.
Reliance can be placed on the recent
decision of this Bench in the case of
Criminal Appeal No.- 4702 of 2012 (Ashiq
Ali and Another Versus State of U.P.)
decided on 10.2.2021 and this vexatious
question as to whether the offence with
such
gravity
would
fall
within
the
provisions of Section 300 or 304 I.P.Code.
The decision in Pramod Kumar (supra) and
the decision in the case of Ashiq Ali and
another (supra) will permit us to hold that
accused be punished for Section 304 Part -I
of IPC as it appers that due to being
addicted to liquor and being in depression
due to loss of business, there was a quarrel
between him and his wife. He and his wife
had a heated discussion. The judgment of
this Court is pressed into service by the
learned counsel which is applicable to the
facts of this case. Statement recorded under
Section 313 Cr.P.C. shows that he had felt
really sorry about the incident. He has
children ( second daughter) whom he will
have to maintain and he has been in jail for
a period of over 10 years.

20.

We
substitute
the
life
imprisonment
to
10
years
rigorous
imprisonment.
Fine
is
reduced
to
Rs.1,000/- and the sentence is reduced to
three months.

21. Appeal is partly allowed. If the
accused is not wanted in any other case, he
be set free.

22. Record and proceedings be sent
back to the Court below forthwith.
----------
(2021)02ILR A822
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4598 of 2014

Talewar ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
2 All. Talewar Vs. State of U.P.
823
Sri Krishna Gopal, Sri Brij Raj Singh

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Sections 498A, 304-B &
Dowry Prohibition Act,1961-Section 3/4 -
challenge to-conviction-deceased died in
her matrimonial home within 2 years of
her marriage- PW-5 (doctor) opined that
the death of the deceased to be unnatural
and have occurred due to strangulationComplainant alleged that her daughter
was done to death by strangulation on
account of non-fulfilment of demand of
dowry- Most of the witnesses have not
supported case of the prosecution is a fact
which emerges on the record and the
learned Judge had convicted the accused
on the basis of the autopsy report that he
had done her to death by strangulation
and he has brought certain facts on record
that incident occurred on the spur of the
moment,
which
was
not intentionalaccused is set free if ten years of sentence
is over.(Para 1 to 24)

The Appeal is partly allowed. (E-5)

List of Cases cited:-

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

2. Hari Om Vs St. of Haryana & Anr.(2014) 10
SCC 577

3. Sunil Dutt Sharma Vs St. (Govt. of NCT of
Delhi) (2014) 4 SCC 375

4. Kashmira Devi Vs St. of U.K. & Ors (2020) 11
SCC 343

5. Dev Narain Mandal Vs St. of U.P., Surjit Vs.
Nahar rai, State Vs Vinod Kumar & Heeralal
(2012) 6 SCC 770

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. &
Hon'ble Gautam Chowdhary, J.)

1. This appeal has been preferred
against the Judgment and order dated
30.10.2014 passed by the Additional
Sessions Judge, Room No.09, Budaun in
Sessions Trial No. 146 of 2011 arising out
of Case Crime No. 1649 of 2010 under
Sections 498A, 304-B I.P.C. and 4 of
Dowry Prohibition Act, Police Station
Ujhani, District Budaun.

2.

Facts
emerging
from
the
prosecution story are that complainant Smt.
Bhagwan Devi wife of Gendan Lal,
resident of Village Khaspur Gautiya, Police
Station
Kunwargaon,
District
Budaun
moved an application under Section 156 (3)
Cr.P.C.
before
the
Chief
Judicial
Magistrate, Budaun with the allegations
that complainant's daughter Reshamwati
aged 19 years was married to accusedappellant
Talewar
on
7.5.2009.
She,
according to her status, had given cycle,
T.V. all other necessary articles and
Rs.50,000/- in cash. Her daughter used to
go and come to her matrimonial home. Her
daughter told her that her in-laws pester her
and demanded dowry, motorcycle and a
buffalo and if she would not bring they
would done her to death. The complainant
along with others went to make settlement
with in-laws of her daughter but they were
adamant
to
demand
said
dowry.
Complainant told that she had given
enough dowry according to her status and
she had no capacity to give more dowry.
Complainant's son-in-law carried his wife
Reshamwati on 30.5.2010 last time. Their
son Bablu aged about 10 years also
accompanied with them. On 11.6.2010 at
about 5 p.m. one Aram Singh son of Nanhe
resident of Junaiya told her that her
daughter was done to death by her in-laws
at about 12 noon and also locked her in a
824 INDIAN LAW REPORTS ALLAHABAD SERIES
room. When complainant along with her
husband, Munshilal of her in-laws and Har
Nam Singh reached in-laws home of her
daughter at about 6 p.m., husband of
complainant found his daughter dead in the
room and none of in-laws was found there.
Her son Bablu were found on the spot and
many persons gathered. Her son Bablu told
that brother-in-law Talewar, Jaisingh (jeth)
and Sukhi (jethani) being unanimous
strangulated her; when he went to see in the
room they made him to run away by
beating him; and when he asked them later
on, they told that his sister was sleeping in
the room. Complainant alleged that her
daughter
was
done
to
death
by
strangulation on account of non-fulfillment
of demand of dowry. The Chief Judicial
Magistrate allowed the said application and
directed the Station House Officer, Ujhani
to investigate the matter lodging the First
Information Report on the basis of which
on 19.8.2010 at about 18.30 pm. chik First
Informantion
Report
as
Case
Crime
No.1649 of 2010 under Sections 304B,
498A I.P.C. and under Section 3⁄4 Dowry
Prohibition Act was lodged.

3. After investigation, the police
submitted charge sheet in the court. The
Magistrate took cognizance, summoned the
accused and finding the case to triable by
sessions court committed it to the court of
Sessions on 5.2.2011. The Sessions Court
framed charges against accused Talewar
and Jai Singh under Sections 498A, 304 B
and in alternative under Sections 302/34
I.P.C. and Section 3⁄4 Dowry Prohibition
Act, which were read over to the accused,
who denied the charges and claimed trial.

4. Prosecution examined as many as
seven prosecution witnesses, i.e., P.W.1
Smt. Bhagwan Devi (complainant), P.W.
Gendanlal (husband of complainant), P.W.3
Bablu (son of complainant), P.W.4 Heeralal
(independent witness), P.W. 5 Dr. R.K.
Verma (who conducted post mortem
report), P.W. 6 Munshilal (independent
witness) and P.W. 7 Head Moharrir Akhlak
Ali (Investigating Officer).

5. P.W. 1 Bhagwan Devi (mother of
the deceased) stated that her daughter died
two years ago. She was married to Talewar
one year before her death. Her death
occurred due to strangulation. She proved
application under Section 156 (3) Cr.P.C.
(Ext. Ka-1). She stated that she received
information on the very same day when
death of her daughter occurred due to
strangulation. She had gone to the house of
Talewar on the very same day and saw that
corpse of her daughter was lying. Corpse
was carried to Budaun, postmortem was
conducted whereafter Talewar and others
carried the corpse with them and performed
last rites of the corpse, her husband and her
other family members were present there,
Talewar had performed last rites of the
corpse. This witness further stated that she
had got case lodged on saying of persons.
She had spent one -half lakh rupees in the
marriage. Clothes, jewellary, bed, cushion,
watch, cycle etc were given in dowry. Her
daughter lived one year in the house of
Talewar. She had come to her home three
times. She had come on teez, festivals and
marriage occasions. She never spoke to her
that Talewar had ever committed mar-peet
with her. She did not know that she may be
punished for telling a lie but she was aware
that telling a lie is sin. When she lodged the
report, the inspector came, investigated and
asked when girl was married and how she
died. The inspector had no diary.

6. P.W. 2, who was father of the
deceased, namely, Gendanlal stated that name
of his daughter was Reshamwati. Her
2 All. Talewar Vs. State of U.P.
825
marriage was performed with Talewar one
and half year before the incidence. He
performed marriage as per Hindu rites. He
stated that he had given dowry in the
marriage of the Reshamwati as per his status.
He had given Rs.50,000/- in cash, cycle, T.V.
and necessary domestic articles. Accused
Talewar, Jai Singh (jeth of Reshamwati) and
other in-laws were happy and satisfied with
the dowry. This witness further stated that his
daughter used to come and go to his house
and was happy. After marriage, neither
Reshamwati had not complained to him or
none of his family about demand of motor
cycle and buffalo as additional dowry by
husband and in-laws nor any of the in-laws
put any type demand nor his daughter was
tortured physically or mentally by her
husband or in-laws for dowry. No issue of
one and half year was born to Reshamwati
for which she was annoyed. Accused had
never demanded additional dowry from him.
Talewar was only dependent on fields besides
which he had no other source of income for
which Talewar and Reshamwati used to
remain disturbed. His daughter Reshamwati
died two and half years ago. How she died,
he did not know. On death of Reshamwati, on
information being furnished by Talewar and
his family members, he and others went to inlaws house of the deceased, where Talewaar
and his family members were mourning over
the corpse of Reshamwati and all were
present near the corpse. After death of
Reshamwati, police came into the village.
Thereafter, proceedings of panchayatnama
was conducted in which he was made a
witness. This witness further stated that death
of his daughter Reshamwati was not
committed by her husband Talewar and jeth
Jai Singh conspiring with their family
members.

7. P.W. 3 Bablu aged about 13 years
stated that Reshamwati was his sister. Her
marriage was performed with Talewar. He
further stated that his parents had given
articles loading in tractor trolley. Clothes,
utensils, bed, almirah, T.V. and jewellary
were given. Money were given at the time
vidai (see off). Cycle was also given.
Talewar never used to beat his sister. He
used to visit her sister's house. When his
sister died, he was at his house. She died
after one-two year of the marriage. She was
suffering from fever and she died. Case was
registered by his father. He did not know
whether postmortem was conducted or not.
He had not gone at the time of postmortem.
He had not visited the house of his sister,
therefore, he was unable to tell whether the
police had reached or not and police came
to his parent is not known to him.

8. P.W.4 Heeralal stated that name of
Talewar's wife was Reshamwati who was
aged about 22-23 years. She was married
one-two years ago when she died. He also
stated that when Reshamwati died, he had
gone to see her. Her corpse was lying on
the ground. He had not seen any injury on
her ded body. He had not seen any ligature
mark on the neck. Inspector had visited the
place of occurrence who interrogated all
the persons. He was also interrogated by
the Inspector and what he stated was
reduced in writing.

9. P.W. 5 Dr. R.K. Verma conducted
the postmortem of the deceased who stated
in his statement that eyes of the corpse
were closed and congested; face was also
congensted; nose was bleeding; there were
ligature marks on both sides of the neck,
which was 4cm below the ears; same was
appearing very near to left ear and below
the thyroid gland. Thus, the doctor opined
that the death of the deceased to be
unnatural and have occurred due to
strangulation.
826 INDIAN LAW REPORTS ALLAHABAD SERIES

10. P.W.6 Munshi Lal is a formal
witness, who stated that when he reached
the place of occurrence, police was already
present there which did proceedings of
panchayatnama, he was made a witness to
the panchayatnama on which he put his
signature.

11. P.W. 7 Head Constable Akhalak
Ali is also a formal witness, who proved
the relevant documents such as prepared by
him.

12. Statements of accused were
recorded under Section 313 Cr.P.C. in
which they denied the facts of incidence
and alleged that statements of witnesses are
wrong and on account of acrimony, the case
is being conducted. At last, they stated that
they are not guilty. They examined D.W.1
Jalim Singh and D.W.2 Raja Ram in
defence and no other oral or documentary
evidence was produced by them.

13. After hearing the prosecution and
defence counsel, the learned Sessions Judge,
vide Judgment and order dated 30.10.2014,
exonerated accused Jai Singh of the charges
under Sections 498A, 304B I.P.C. and 3⁄4 of
Dowry Prohibition Act. Further the learned
Sessions Judge convicted the accused
appellant Talewar under Section 304-B I.P.C.
and
sentenced
him
to
undergo
life
imprisonment; he further convicted him
under Section 498A I.P.C. and sentenced to
undergo three years' rigorous imprisonment
with fine of Rs.3,000/- and in case of default
of payment of fine, to undergo further three
months' simple imprisonment; and he further
convicted
the
accused-appellant
under
Section 4 of Dowry Prohibition Act and
sentenced to undergo one year rigorous
imprisonment with fine of Rs.1,000/- and in
case of default of payment of fine, to undergo
further one month simple imprisonment.

14. Being dissatisfied with the
conviction and sentence, the accusedappellant Talewar is being this Court by
way of present appeal.

15. Heard learned counsel for the
appellant and learned A.G.A. for the State.

16. Learned counsel for the appellant
Talewar states that death was not so
gruesome that leniency may not be shown
to the accused. It is submitted that all the
witnesses have practically turned hostile
and it is a moral conviction. The accused is
in jail for ten years. Learned counsel,
therefore, prays for mercy, sympathy and
lessor punishment for which he has relied
on the following decisions:-

1. Hem Chand Vs. State of
Haryana, (1994) 6 SCC 727

2. Hari Om Vs. State of Haryana
and another, (2014) 10 SCC 577

3. Sunil Dutt Sharma Vs. State
(Government of NCT of Delhi), (2014) 4
SCC 375

4. Kashmira Devi Vs. State of
Uttarakhand and others, (2020) 11 SCC
343

17. Learned A.G.A. vehemently
opposed
the
reduction
and
sentence
awarded to the accused-appellant and
submitted that in this case, there is brutality
in causing death and it is dowry death.
Death was committed immediately within
two years of the marriage which shows
premeditation.

18. Most of the witnesses have not
supported case of the prosecution is a fact
which emerges on the record and the
2 All. Bali Mohammad @ Munna Kasai Vs. State of U.P.
827
learned Judge had convicted the accused on
the basis of the autopsy report that he had
done her to death by strangulation and he
has brought certain facts on record that
incident occurred on the spur of the
moment, which was not intentional.

19. Learned Trial Judge has relied on
the decision of the Apex court in the case of
Dev Narain Mandal Vs. State of U.P.,
Surjit vs. Nahar rai, State Vs. Vinod
Kumar and Heeralal, 2012 (6) SCC 770
and punished him for life imprisonment
under Section 304-B. But, totality of the
circumstances would not permit us to
inflict or concur so as to hold the accused
guilty of such gravity that he requires to be
punished with the maximum of sentence
awardable to him, i.e., life imprisonment.
We would substitute it to ten years'
incarceration under Section 304-B I.P.C.

20. We may deem it fit to rely on the
decisions and award sentence of ten years'
rigorous imprisonment with remissions as
awarded in the case of Hem Chand Vs.
State of Haryana and other Judgments
referred hereinabove as far as Section 498A
I.P.C. is concerned. The accused has already
been in jail. If he has not deposited fine, the
default sentence would begin after he has
completed three years of incarceration.

21. As far as conviction under Section 4
of Dowry Prohibition Act is concerned,
punishment was for one year which he has
already undergone. He is now not required to
undergo imprisonment further as we have
substituted the sentences awarded under
Sections 304-B and 498A I.P.C. We hold that
sentences shall not be one after the other but
would be simultaneous.

22. Period of punishment under
Section 4 of Dowry Prohibition act is
already over. If period of ten years'
incarceration is over and accused-appellant
is not required in any other case, he be
released from jail forthwith.

23. Lower court record be sent to the
court below forthwith.

24. Appeal is partly allowed in the
light of the observations made hereinabove.

25. Let a copy of this Judgment be
sent to the Jail Authorities concerned and
District Magistrate for compliance.
----------
(2021)02ILR A827
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 5453 of 2008

Bali Mohammad @ Munna Kasai
 ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Atul Kumar Tiwari, Sri Ambrish Kumar
Kashyap, Sri Narendra Kumar Singh, Sri
R.K. Singh, Sri Rajendra Kumar Dubey, Sri
Santosh Kumar Pandey

Counsel for the Opposite Party:
A.G.A., Sri Pravin Kumar

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal
Code,1860-Section
376

&
Scheduled Castes and Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989-
Section
3
(2)
(xii)-modification
of