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

- **Citation:** (2021) 2 ILRA 477
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-25
- **Case number:** Criminal Appeal No. 3686 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tarun-in-jail-v-state-of-u-p-46831
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - section 304-B - Dowry death,
section 498-A - Husband or relative of a
478 INDIAN LAW REPORTS ALLAHABAD SERIES
husband of a woman subjectiong her to
cruelty , Dowry Prohibition Act, 1961 -
section 4 - penalty for demanding dowry -
quantum of punishment - death was not
so
gruesome
that
the
accused
be
sentenced till his last breath - suicidal
note proved by examining D.W. 2 - not
been converted by prosecution - sentence
of imprisonment is substituted by ten
years of imprisonment with remissions
allowable. (Para - 16,17)

Marriage of deceased was solemnized on
25.06.2011 - nearly about 8 lakhs incurred in
marriage - family members of Husband were
not satisfied - harassing the deceased time to
time - Family members and appellant were
demanding 2 lakhs more as dowry - father of
the deceased was not in a position to fulfill the
same - Deceased informed her mother on
telephone that the demand has not been
fulfilled
-
unknown
person
informed
on
telephone that his daughter has been done to
death - on reaching they saw that his daughter
was lying dead - there were many injuries on
her body.(Para -3)

HELD:- The totality of the evidence of all the
witnesses who are independent witnesses as
well as the family members of the deceased and
the evidence of the police personnel and the
documentary evidence conclusively prove that
the death occurred, it was a suicide death she
was harassed . The documentary evidence by
which it can be said that the dying declaration
was searched after he was released on bail.
Deceased had died during seven years of her
marriage. The FIR and the evidence of P.W. 1, 2
and 3 point out to one fact that the deceased
was wedded to the appellant. The evidence of
P.W. 4 also goes to show that there were
ligature marks and panchayatnama was also
prepared. All these facts go to show that it was
a suicide and the demand was immediately
before she committed or took her life. (Para -
14)

Criminal appeal partly allowed. (E - 6)

List of Cases cited:-

## Text

2 All. Tarun Vs. State of U.P.
477
10 years. From the evidence, it is clear that
even if the Court believes the dying
declaration which is very doubtful, his
client could not have been convicted under
Section 302 of I.P.C. It was the accused,
who has taken the deceased to the hospital
and he has requested for lesser punishment
looking to the young age of the accused.

17. As against this, learned Counsel
for the State has contended that by
declaration is proper as per Section 32 of
the Evidence Act, 1872 and has been
rightly relied upon the learned Judge.

18. Learned Counsel for the State
has taken us to Section 216 of Cr.P.C.
and has submitted that there is no
illegality in re-charging the accused and
it is further submitted that the way the
accused has ablaze, his wife within one
year of the marital life, the conviction
was just and proper.

19. Even if we hold that there is no
illegality in re-framing the charge, justice
would demand us to see that reasoning of
the learned Judge, which are perverse.
The dying-declaration which has been
made the basis of the punishment does
not speak about any demand for dowry.
The death of the deceased was caused on
the spur of moment as the accused was
alleged to have disliked the practice of
the deceased in serving the parent of the
accused also and it was he, as it appears
from the evidence, who had taken the
deceased to the hospital. He has no
motive nor any intention of doing away
with his wife.

20. In view of the aforementioned
discussion, we are of the view that this
appeal has to be partly allowed, hence, is
partly allowed.

21. The conviction of the appellant
under Section 302 I.P.C. is converted to
conviction under Section 304-Part-II of
IPC. We reduce the sentence to 7 years and
the fine has been reduced to Rs. 5,000/-
and, in default of payment of fine, 6
months additional rigorous imprisonment.

22. The appellant is in Jail for 10
years, if his period of incarceration as held
above is over, he shall be released
forthwith, if not required in any other case.
The judgment and order impugned shall
stand modified accordingly.

23. Let a copy of the judgment along
with the trial court record be sent to the
court below and jail authorities for
compliance.
----------
(2021)02ILR A477
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2021

BEFORE

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

Criminal Appeal No. 3686 of 2014

Tarun ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Shishir Tandon, Sri Amitabh Agarwal, Sri
Apul Misra, Sri Sikandar Khan, Sri Sunil
Singh

Counsel for the Opposite Party:
A.G.A., Sri Rajeev Tiwari

(A) Criminal Law - Indian Penal Code,
1860 - section 304-B - Dowry death,
section 498-A - Husband or relative of a
478 INDIAN LAW REPORTS ALLAHABAD SERIES
husband of a woman subjectiong her to
cruelty , Dowry Prohibition Act, 1961 -
section 4 - penalty for demanding dowry -
quantum of punishment - death was not
so
gruesome
that
the
accused
be
sentenced till his last breath - suicidal
note proved by examining D.W. 2 - not
been converted by prosecution - sentence
of imprisonment is substituted by ten
years of imprisonment with remissions
allowable. (Para - 16,17)

Marriage of deceased was solemnized on
25.06.2011 - nearly about 8 lakhs incurred in
marriage - family members of Husband were
not satisfied - harassing the deceased time to
time - Family members and appellant were
demanding 2 lakhs more as dowry - father of
the deceased was not in a position to fulfill the
same - Deceased informed her mother on
telephone that the demand has not been
fulfilled
-
unknown
person
informed
on
telephone that his daughter has been done to
death - on reaching they saw that his daughter
was lying dead - there were many injuries on
her body.(Para -3)

HELD:- The totality of the evidence of all the
witnesses who are independent witnesses as
well as the family members of the deceased and
the evidence of the police personnel and the
documentary evidence conclusively prove that
the death occurred, it was a suicide death she
was harassed . The documentary evidence by
which it can be said that the dying declaration
was searched after he was released on bail.
Deceased had died during seven years of her
marriage. The FIR and the evidence of P.W. 1, 2
and 3 point out to one fact that the deceased
was wedded to the appellant. The evidence of
P.W. 4 also goes to show that there were
ligature marks and panchayatnama was also
prepared. All these facts go to show that it was
a suicide and the demand was immediately
before she committed or took her life. (Para -
14)

Criminal appeal partly allowed. (E - 6)

List of Cases cited:-

1. Hem Chand Vs St. of Har. , 1994 0 Supreme
(SC) 1014
2. G.V. Siddaramesh Vs St. of Karn. , 2010 0
Supreme (SC) 136

3. Hari Om Vs St. of Har. & anr. , 2014 0
Supreme(SC) 73

4. Raju @ Rajeev Vs St. of U.P. , Criminal
Appeal No. 4701 of 2013

5. Vivek Vs St. of U.P. , Criminal Appeal No.
5047 of 2019

6. St. of Raj.n Vs S. Bahadur & anr. , 2005 SCC
(crl.) 228

7. Kansraj Vs St.of Punj. , 2020 Cr.L.J. 2993

8. Satyaver Singh & anr. Vs St. of Pun. , 2001
(43) ACC 1083

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

1. Heard learned counsel for the
appellant, learned A.G.A. for the State and
perused the record.

2. The present criminal appeal has
been filed against the judgement and order
dated 20.08.2014 passed by Additional
Sessions Judge, Court No.1 Bulandshahr in
Sessions Trial No. 106 of 2012, "State of
U.P. Vs. Tarun and others", arising out of
Case Crime No. 807 of 2011, under section
304-B & 498-A of IPC and section 4 of the
Dowry Prohibition Act, 1961, Police
Station
Kotwali
Nagar,
District
Bulandshahr, whereby the appellant has
been convicted and sentenced under
Section
304-B
IPC
with
rigorous
imprisonment of life, under section 498-A
IPC with simple imprisonment of 3 years
and a fine of Rs. 10,000/-, in default of
payment of fine to further undergo 3 month
imprisonment and under section 4 of the
Dowry Prohibition Act, 1961 one year
imprisonment and a fine of Rs. 5,000/- in
2 All. Tarun Vs. State of U.P.
479
default of payment of fine to further
undergo 3 month imprisonment.

3. The brief facts which led to the
litigation and whereby the State had to start
investigation are that the marriage of
deceased Seema, daughter of Ram Sewak
Paliwal resident of Futa Kuwan Wali Gali,
Devi Pura-II, Bulandshahr was solemnized
with Tarun Paliwal on 25.06.2011. In this
marriage nearly about 8 lakhs was incurred
but the family members of Tarun Paliwal
were not satisfied and they were harassing
the deceased time to time. Family members
and appellant were demanding 2 lakhs
more as dowry but father of the deceased
Seema was not in a position to fulfill the
same. On 15.10.2011 deceased Seema
informed her mother on telephone that the
demand has
not been
fulfilled.
On
16.10.2011 a unknown person informed on
telephone that his daughter has been done
to death and they should reach at
Bulandshahr, on reaching there they saw
that his daughter was lying dead and there
were many injuries on her body.

4. The trial was to be conducted by
the court of Sessions as it was Sessions
triable case, hence the case was committed
to the court of sessions.

5. The court of sessions framed
charges against accused who pleaded not
guilty.

6. The prosecution examined the
following witnesses :-

1.
Ram Sewak
P.W.1
2.
Smt. Krishna
Paliwal
P.W.2
3.
Sandeep
P.W.3
Paliwal
4.
Vijay Paliwal P.W.4
5.
Indraveer
Singh
P.W.5
6.
Dr.
Naresh
Viz
P.W.6
7.
Bhan Singh
P.W.7
8.
Satish
Chandra
P.W. 8

7. In order to substantiate the oral
testimony of the witnesses and their
medical evidence, documentary evidence
were also produced which are as follows :-

1.
Written report Ext. Ka-1
2.
F.I.R.
Ext. Ka-3
3.
Recovery
&
Superdi
of
ornaments
Ext. Ka-10
4.
Recovery
memo
of
Plastic rope)
Ext. Ka-11
5.
P.M. Report.
Ext. Ka-5
6.
Panchayatnam
e
Ext. Ka-2
7.
Chargesheet
(Mool)
Ext. Ka-13
8.
Challan Lash Ext. Ka-8

8. The prosecution placed reliance on
the following documentary evidence so as
to bring home the charges levelled against
the accused.

9. The accused was examined under
section 313 Cr.P.C. also for evidences
being led an over and the submissions of
the counsels were heard.
480 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Learned counsel for the appellant
has submitted that on the evidence which
has led the accused can not be said to have
committed any office which would fall
within the perview of section section 304-B
read with section 498-A IPC. It is further
submitted that the presumption that the
death occurred within seven years of
marriage is rebutable preposition if no
allegation of any dowry was there. In the
case on hand it is that the suicide note can
not be the sole basis of conviction of the
accused, yet on the basis of conclusion that
the deceased was subjected to death. In the
alternative he has submitted that if this
court comes to the conclusion that the
accused is guilty of section 304-B, he has
submitted that the punishment imposed by
the court that of life imprisonment is not
warranted and the accused who is in jail be
likewise convicted

11. learned counsel for the appellant
has contended that even if this court is not
with him on the argument which he has
advanced so as to contend that this was not
dowry death, it is submitted that even if this
court relied on the suicide note and comes
to the conclusion that the death was within
the period of seven years of the marriage,
the punishment imposed by the court for
life imprisonment is not warranted on the
facts of the case. The suicidal note is not a
conclusive evidence according to the
learned counsel for the appellant. Learned
counsel for the appellant has relied on the
following decisions. (1)1994 0 Supreme
(SC) 1014 Hem Chand Vs. State of
Haryana decided on 6.10.1994; (2) 2010
0 Supreme (SC) 136 G.V. Siddaramesh
Vs. State of Karnataka decided on
5.02.2010 in Criminal Appeal No. 160 of
2006; (3) 2014 0 Supreme(SC) 73 Hari
Om Vs. State of Haryana & another
decided on 31.10.2014 in Criminal
Appeal No. 1167 of 2011; (4) Criminal
Appeal No. 4701 of 2013 Raju @ Rajeev
Vs. State of U.P. decided on 25.01.2019
in Criminal Appeal No. 4701 of 2013 and
(5) Criminal Appeal No. 5047 of 2019
Vivek Vs. State of U.P. decided on
23.09.1019 in Criminal Appeal No. 5047
of 2019.

12. As far as 498-A of I.P. Code and
the conviction under section 4 of dowry
prohibition Act against the accused is
concerned, it is submitted that he has
already
completed
the
period
of
incarceration of three years and one year
respectively. Learned counsel is not aware
that the fine has been deposited or not yet,
as accused is in jail. As against this the
learned A.G.A. contends that all the
witnesses and evidence on record would
justify the fact that the accused was the
person who had hastened the death of the
deceased. All the evidence proves that the
deceased was done to death or she has
committed suicide. Death has occurred
according to learned counsel for the State
and he contends that even if this Court
comes to the conclusion that it was not a
murder but she had committed suicide it
was just within five months of the
marriage. The consistent version of all the
prosecution witnesses go to show that there
was a prolonged demand of two lakhs from
the side of accused and his family
members. It is further submitted by learned
counsel for the State that it is not a case
where judgements relied by the counsel for
appellant would be applicable.

13. Learned counsel for the State even
opposes the alternative prayer of Sri Apul
Mishra appearing for the appellant, in view
of the gruesomeness and time during which
a young lady has met with her fate it is
submitted that even if this court comes to
2 All. Tarun Vs. State of U.P.
481
the conclusion that it was suicide then also
no leniency or sympathy should be shown
to such a person. Several judgements and
the findings of learned Judge who has
convicted the accused are relied. Section
304(B) of IPC reads as follows:-

304B. Dowry death.- (1) Where
the death of a woman is caused by any
burns or bodily injury or occurs otherwise
than under normal circumstances within
seven years of her marriage and it is shown
that soon before her death she was
subjected to cruelty or harassment by her
husband or any relative of her husband for,
or in connection with, any demand for
dowry, such death shall be called "dowry
death", and such husband or relative shall
be deemed to have caused her death.

Explanation.- For the purpose of
this sub-section, ''dowry' shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961(28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life.

14. The totality of the evidence of all
the witnesses who are independent witnesses
as well as the family members of the
deceased and the evidence of the police
personnel and the documentary evidence
conclusively prove that the death occurred, it
was a suicide death she was harassed and
now it is an admitted position which is
emerged on the record and we are concur
with the learned Sessions Judge who has
proved has convicted the accused and has dis
believed the theory that the deceased was at
depression due to she being post graduate
whereas the accused-husband was not even
cleared his 12th standard examination. The
evidence of the witnesses can not be burst
aside prayed that the minor discrepancy
which has been pointed out by the accused.
The documentary evidence by which it can
be said that the dying declaration was
searched after he was released on bail. All
these may leave to one conclusion that
deceased had died during seven years of her
marriage. The suicide note at 82 is rood that
view of the matter in view of decision
Kansraj Vs. State of Punjab 2020 Cr.L.J.
2993 and Satyaver Singh and another Vs.
State of Punjab 2001 (43) ACC 1083 are
judgements which have made withthe learned
Judge. The Apex Court in State of Rajsthan
Vs. S. Bahadur and another 2005 SCC
(crl.) 228 has been relied by the learned
Judge. We do not find any reason to defer
with the same. The FIR and the evidence of
P.W. 1, 2 and 3 point out to one fact that the
deceased was wedded to the appellant. The
evidence of P.W. 4 also goes to show that
there were ligature marks and panchayatnama
was also prepared. All these facts go to show
that it was a suicide and the demand was
immediately before she committed or took
her life. The witnesses who have testified
against the accused cannot be said to be such
witnesses whose testimony has taken, they
were put to cross examination also. We
concur with the learned trial judge.

15. What was the cause of death was
mentioned in the suicidal note that she was
being belittled time and again, despite she
not being at any fault and that led to her
leaving for the heavenly abode. We are not
going into the cause of death as that fact is
appreciated by the learned trial Judge, we
concur with the learned trial Judge and we
are unable to accept the submissions of Sri
Apul Mishra that it is not a case of
conviction.

16. The nexus to the quantum of
punishment the most unfortunate part is
482 INDIAN LAW REPORTS ALLAHABAD SERIES
that the deceased died out during the short
span of her marriage. The learned counsel
for the appellant has relied on the decision
of G.V. Siddharamesh (Supra) and has
requested this Court that while confirming
conviction this court may sentence him for
10 years. The said decision would apply to
the facts of this case. Further relied on Hari
Om (Supra) will also permit us to vary the
sentence and reduce the same to ten years.
A recent decision of our High Court in
Criminal Appeal No. 4701 of 2013 dated
11.04.2019 in the case of Raju @ Rajiv Vs.
State of U.P. will also permit us to reduce
the sentence and the judgement of Lordship
Justice Pritinkar Diwakar in the case of
Raju @ Rajiv will permit us to reduce the
sentence for the following reasons.

(i) The death was not so
gruesome that the accused be sentenced
till his last breath though the period
during which the deceased had given up
her life was during a short span of her
marriage.

(ii) In the suicidal note which
has been sought to be proved by
examining D.W. 2 has not been converted
by prosecution even before the trial Judge
which also raise with us in lessening with
period of incarceration of the accused.

17. The sentence of imprisonment is
substituted by ten years of imprisonment
with remissions allowable. As far as 498A I.P.C. is concerned the period of
incarceration is already over, he shall
deposit fine of Rs. 10,000/- failing which
the default sentence would stand to run
from date of incarceration is over and as
far
as
Dowry
prohibition
case
is
concerned, the period of one year is
already over, he shall deposit Rs. 5,000/-
failing which the default sentence would
run from the date of incarceration.

19. The appeal is partly allowed.
The record of this case be sent back to the
trial court.

18. We are thankful to the counsels
for assisting this court.
----------
(2021)02ILR A482
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2021

BEFORE

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

Criminal Appeal No. 4159 of 2012

Nand Kishore @ Nagpal
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Radhey Shyam Shukla, Sri Ashutosh

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

(A) Criminal Law - Indian Penal Code,
1860 - Sections 307 - Attempt to murder ,
Sections
326
-
Voluntarily
causing
grievous hurt by dangerous weapons or
means - Arms Act, 1959 - Sections 25/27
- conclusively proved that it is the
accused, who was involved in the incident
- firearm injuries in the eye - no witness
has mentioned - how P.W. 2 received
injuries in the eye - inflicted maximum of
punishment - requires modification. (Para -
22,23,27)

Informant gave a written complaint - his son
injured on the date of incident - going to ply van
on the kanta after having his meal - met
Lekhpal who was having illicit relation with one
woman of easy virtue had altercation with son
of the complainant - with a view to do away the