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

- **Citation:** Criminal Appeal No. 119 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-13
- **Case number:** Criminal Appeal No. 119 of 2019
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-in-jail-v-state-of-u-p-45149
- **Pages:** 14

## Headnote

A. Criminal Law-Indian Penal Code (45 of
1860)-Section 304B, S.498A - Evidence
Act (1 of 1872) , Section 3 - Relative as
witnesses - No independent eye witness -
Reliability - Offences relating to dowry
death are mostly committed inside the
house of the accused - in such cases there
is at least possibility of independent
witness
-
in
normal
circumstances,
neighbours, servants do not come forward
to
disclose
anything
regarding
the
occurrence - close relative do not prefer to
implicate a false person, leaving aside the
real culprit - it has to be established by
the defence, as to why the nearest relative
of deceased are falsely implicating him by
leaving aside the real culprit - merely on
the
ground
of
non
production
of
independent witness, prosecution case
can not be thrown out (Para 21, 23 )

B. Criminal Law-Indian Penal Code (45 of
1860), Section 304B - Evidence Act (1 of
1872) , Section 113B - Dowry death -
Expression - "Soon before her death" -
Proximity test - soon before her death
does not mean just soon before her death
- It means that there should be a
proximity
between
the
cruelty
or
harassment related to the demand of
dowry and unnatural death of deceased
(Para 24)

C.Criminal Law-Criminal Procedure Code
(2 of 1974)-Section 313 - Examination of
accused - Object - to give accused an
opportunity
of
explaining
the
circumstances that appear against him - S.
304 B IPC - Dowry Death -husband with
deceased at the time of death - it was
husband
duty
to
explain
the
circumstances that how the death of
deceased was caused - what effort was
made
by
him
to
prevent her
from
committing suicide - Failure, to explain
circumstances or produce any reliable
evidence in defence against the evidence
produced by the prosecution regarding
unnatural death of deceased - strengthen
the culpability of husband. (Para 36)

Deceased Pooja married with appellant Vinod -
she died within 7 years of her marriage - in
unnatural circumstances, inside the house of the
appellant - she was subjected to cruelty and
harassment just soon before her death by the
appellant - due to demand of dowry - FIR
lodged without delay - As per medical report
died due to strangulation - at the time of death
of deceased the appellant was with her but he
did not explain any circumstances regarding
manner or cause of her death - Husband also
not explained as to how the dead body of
deceased was laid, out side his house -
Conviction justified.

Appeal Dismissed (E-5)

List of cases cited :

1.Vajresh Venkatray Anvekar Vs St. of Maha
(2013)

## Text

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3-5 All. Vinod Vs. State of U.P.
77
deceased by pistol. According to Dr. S. N.
Singh (P.W.-5), injuries of the deceased was
so dangerous that it bleeds on touch and air
was gashping out of the wound with the
respiration ; the patient was in very critical
condition. In his opinion, the injury of the
patient was dangerous in nature. Thus, in
view of absence of source of light at the
place of occurrence, critical condition of
deceased and also it is not in question and
answer form, the dying declaration (Ext.
Ka-16) is doubtful and not reliable.

24. It is settled principle of law that
the accused will be presumed as innocent
unless and until the prosecution has
succeeded to prove its case beyond
reasonable doubt and the presumption of
innocence
of
accused
is
further
strengthened if he is acquitted by the Trial
Court
after
considering
the
material
evidence available on record. Hon'ble the
Apex Court in Surajpal Singh and others
Vs. State, AIR 1952 SC 52 held as under :-

"It is well-established that in an
appeal under section 417 of the Criminal
Procedure Code, the High Court has full
power to review the evidence upon which
the order of acquittal was founded, but it is
equally well-settled that the presumption
of innocence of the accused is further
reinforced by his acquittal by the trial
court, and the findings of the trial court
which had the advantage of seeing the
witnesses and hearing their evidence can
be reversed only for very substantial and
compelling reasons." (Emphasis supplied).

25. It is also well settled principle of law
that in an appeal against acquittal, if two views
are possible, one is in favour of accusedperson and judgment of Trial Court is not
illegal or manifestly perverse, the appellate
Court should not disturb the order of acquittal.
Hon'ble the Apex Court in State of Madhya
Pradesh vs. Mukesh and others, (2007) 2
SCC 680 held as under :-

"Moreover, it must be borne in mind
that we are dealing with a judgment of
acquittal passed by the High Court. If two
views are possible, ordinarily this Court would
not interfere therewith. The State has not been
able to show any illegality in the judgment of
the High Court. We, therefore, do not intend to
interfere therewith. The appeal is dismissed."

26. In the light of above discussions, we
are of the view that the impugned judgment
and order passed by Trial Court is well
reasoned, well discussed and requires no
interference. The prosecution has miserably
failed to prove its case beyond reasonable
doubt and there is no illegality or infirmity in
the impugned judgment and order dated
23.10.1981 passed by Trial Court in Sessions
Trial
No.136
of
1981,
whereby
the
respondents-accused were acquitted. The
appeal is liable to be dismissed.

27. The judgment and order dated
23.10.1981 passed by Trial Court in Sessions
Trial No.136 of 1981 is affirmed. The appeal
lacks merit and is dismissed.
----------
(2020)03-05ILR A77
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 119 of 2019

Vinod ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Anurag Mishra, Sri Om Prakash
78 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
A.G.A., Sri Zuber Ahmad Siddiqui, Sri Ankur
Tandon

A. Criminal Law-Indian Penal Code (45 of
1860)-Section 304B, S.498A - Evidence
Act (1 of 1872) , Section 3 - Relative as
witnesses - No independent eye witness -
Reliability - Offences relating to dowry
death are mostly committed inside the
house of the accused - in such cases there
is at least possibility of independent
witness
-
in
normal
circumstances,
neighbours, servants do not come forward
to
disclose
anything
regarding
the
occurrence - close relative do not prefer to
implicate a false person, leaving aside the
real culprit - it has to be established by
the defence, as to why the nearest relative
of deceased are falsely implicating him by
leaving aside the real culprit - merely on
the
ground
of
non
production
of
independent witness, prosecution case
can not be thrown out (Para 21, 23 )

B. Criminal Law-Indian Penal Code (45 of
1860), Section 304B - Evidence Act (1 of
1872) , Section 113B - Dowry death -
Expression - "Soon before her death" -
Proximity test - soon before her death
does not mean just soon before her death
- It means that there should be a
proximity
between
the
cruelty
or
harassment related to the demand of
dowry and unnatural death of deceased
(Para 24)

C.Criminal Law-Criminal Procedure Code
(2 of 1974)-Section 313 - Examination of
accused - Object - to give accused an
opportunity
of
explaining
the
circumstances that appear against him - S.
304 B IPC - Dowry Death -husband with
deceased at the time of death - it was
husband
duty
to
explain
the
circumstances that how the death of
deceased was caused - what effort was
made
by
him
to
prevent her
from
committing suicide - Failure, to explain
circumstances or produce any reliable
evidence in defence against the evidence
produced by the prosecution regarding
unnatural death of deceased - strengthen
the culpability of husband. (Para 36)

Deceased Pooja married with appellant Vinod -
she died within 7 years of her marriage - in
unnatural circumstances, inside the house of the
appellant - she was subjected to cruelty and
harassment just soon before her death by the
appellant - due to demand of dowry - FIR
lodged without delay - As per medical report
died due to strangulation - at the time of death
of deceased the appellant was with her but he
did not explain any circumstances regarding
manner or cause of her death - Husband also
not explained as to how the dead body of
deceased was laid, out side his house -
Conviction justified.

Appeal Dismissed (E-5)

List of cases cited :

1.Vajresh Venkatray Anvekar Vs St. of Maha
(2013) 3 SCC 462

2.Maya Devi Vs St. of Har. AIR 2016 SC 125

3.Trimukh Maroti Kirkan Vs St. of Mah. 2006
(10) SCC 681

4.Ramesh Vithal Patil Vs St. of Karn. (2014) 11
SCC 516

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.

1. This appeal has been filed against
the judgment and order dated 24.11.2018,
passed by Additional Session Judge, Bansi,
District Siddharth Nagar, in Sessions Trial
No. 30 of 2018 (State vs. Vinod and
another), arising out of Case Crime No. 09
of 2018, Police Station (P.S.) Bansi,
District Siddharth Nagar, whereby the
accused-appellant (hereinafter referred as
''appellant')
has
been
convicted
and
sentenced under Section 498-A I.P.C. for
two years rigorous imprisonment and fine
of Rs. 5,000/- in default whereof, two
months additional imprisonment, under
3-5 All. Vinod Vs. State of U.P.
79
Section 304-B I.P.C. for seven years
rigorous imprisonment and under Section 4
of Dowry Prohibition Act, 1961 (in short
''D.P. Act') for two years imprisonment and
fine of Rs. 5,000/- and in default whereof,
for two months further imprisonment. All
the sentences have been directed to run
concurrently.

2. The prosecution story, in brief, is
that the Pooja (deceased), daughter of PW2 Subhawati, informant, was married to
appellant-Vinod, four years prior to the
occurrence. On 11.1.2018, at about 10:30
a.m.,
PW-2
Subhawati,
lodged
first
information report (hereinafter referred as
''F.I.R.') at P.S. Bansi, District Siddharth
Nagar that her daughter Pooja (deceased),
aged about 27 years, was married to the
appellant in 2013; after marriage, the
appellant and his mother Ishrawati (since
acquitted) used to taunt and harass
deceased for want of dowry. It was further
stated in F.I.R. that deceased Pooja used to
tell PW-2, Subhawati regarding the demand
of dowry and torture caused by the
appellant and Ishrawati (since acquitted) to
her, but she, being widow and unable to
fulfil the demand of dowry due to poverty,
could not do anything in this regard. In the
intervening
night
of
10/11.1.2018,
appellant Vinod along with her mother
Ishrawati
(since
acquitted)
committed
murder of deceased Pooja by strangulation
and her dead body is lying at place of
occurrence.

3. The said information was entered
in G.D. Report (Ex.Ka.1) and was lodged
as Crime No. 0009 of 2018, U/s 498-A,
304-B I.P.C. and 3/ 4 of D.P. Act at P.S.
Bansi, District Siddharth Nagar by PW-1
Const. Ankit Singh and investigation was
entrusted to PW-8 Dy.S.P. Mahendra
Singh.

4. Information was given to PW-4,
Kesari
Nandan
Tripathi
(Executive
Magistrate), Nayab Tehsildar, Bansi for
inspecting and conducting inquest of the
dead body of deceased, who proceeded to
the place of occurrence, inspected the dead
body on 11.1.2018 with the help of S.I.
Ravi Kant Mani, and prepared the inquest
report (Ex.Ka.1), as well as the relevant
papers Ex.Ka.5 to Ex.Ka.8 i.e. challan lash,
photo lash, letter to C.M.O., letter to R.I.,
sealed the dead body of deceased and sent
it for post-mortem examination.

5. PW-3, Dr. Sanjay Chaudhary,
conducted the post-mortem examination on
11.1.2018 and found the following the
ante-mortem injuries on the body of
deceased;

(i) Ligature mark around neck 25
c.m. in length and 1 to 1⁄2 c.m. in breadth. 5
c.m. below right ear lobe, 8 c.m. below left
ear lobe and 6 c.m. below the chin.

(ii) Saliva was dribbling out from
the mouth.

6. According to him, upon opening
the ligature mark, white subcutaneous
tissues were found and the bone of neck
was normal. According to him, the death of
deceased was caused due to asphyxia
caused by ante mortem injury.

7. PW-8, Dy.S.P. Mahendra Dev
Singh, inspected the place of occurrence,
prepared the site plan Ex.Ka.10, recorded
the statement of PW-1 Const. Ankit Singh
and PW-2 Smt. Shubhavati, arrested the
appellant Vinod and another accused Smt.
Ishrawati (since acquitted) and recorded
their statement. Meanwhile, upon his
transfer, the investigation was entrusted to
PW-6, Dy.S.P. Uma Shankar Singh who
recorded the statement of other witnesses
80 INDIAN LAW REPORTS ALLAHABAD SERIES
and upon conclusion of investigation, filed
charge-sheet Ex.Ka.9 against the appellant
and Smt. Israwati (since acquitted) before
competent Magistrate.

8. The Chief Judicial Magistrate took
the cognizance and, since the offence was
exclusively triable by the Session Court,
committed it for trial, after providing the
relevant copies of police papers.

9. The learned Trial Judge framed
charges against the appellant-Vinod and
Smt. Ishrawati (since acquitted) under
section 498-A, 304-B I.P.C. and 3⁄4 D.P.
Act alternatively under Section 302 I.P.C.
who denied the charges and claimed to be
tried.

10. Prosecution in order to prove its
case, examined PW-1 Const. Ankit Singh,
PW-2 Smt. Subhavati, PW-3 Dr. Sanjay
Chaudhary, PW-4 Kesari Nandan Tiwari,
PW-5 Sangeeta, PW-6 Umashankar Singh,
PW-7 Gyandas and PW-8 Mahendra Dev
Singh. PW-2 Subhawati, PW-5 Sangeeta
and PW-7 Gyan Das are the witnesses of
fact and rest witnesses are formal witness.

11. After prosecution evidence, statement
of appellant-Vinod and Smt. Ishrawati (since
acquitted) U/s 313 Cr.P.C. were recorded,
wherein, they denied the prosecution evidence
and claimed that they have been falsely
implicated in this case. An opportunity was
given to them to lead the defence evidence in
order to explain the prosecution evidence, DW1 Ram Sundar was examined by them in
defence.

12. Learned Trial Court, by the aforesaid
impugned
order,
while
acquitting
Smt.
Ishrawati, mother-in-law of the deceased,
convicted the appellant-Vinod as above,
aggrieved whereof, he has preferred this appeal.

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

14. Learned counsel for the
appellant
has
submitted
that
the
appellant is innocent and has been
falsely implicated in this case. The
marriage of deceased was solemnized
more than 10 years prior to the
occurrence;
appellant
had
neither
demanded any dowry nor committed
any cruelty or harassment to deceased
soon before her death; and medical
evidence is not corroborated by the
ocular evidence as the deceased had
committed suicide due to frustration.
Learned counsel further submitted that
the prosecution has failed to produce
either any independent witness or any
eye witness. The whole prosecution
story is based on the statement of PW2, Subhawati, mother of deceased who
is an interested witness and hence not
reliable. Prosecution has miserably
failed
to
prove
its
case
beyond
reasonable
doubt.
The
impugned
judgment
and
order
is
illegal,
unjustified and liable to be set aside.

15. Per-contra, learned A.G.A. and
learned counsel for the informant have
submitted that the deceased has been found
dead inside the house of appellant, husband
of deceased. Learned counsels further
submitted that due to demand of dowry,
appellant used to torture and harass the
deceased
and
caused
her
death
by
strangulation. F.I.R. was lodged without
any delay and as per medical examination
report,
deceased
had
died
due
to
strangulation. Learned counsel further
submitted that at the time of death of
deceased appellant was with her but he did
not explain any circumstances regarding
3-5 All. Vinod Vs. State of U.P.
81
manner or cause of her death. Learned
counsel
further
submitted
that
the
prosecution has succeeded to prove its case
beyond reasonable doubt against the
appellant. Appeal is liable to be dismissed.

16. I have considered the rival
submission of learned counsel for both the
parties and perused the record.

17. The offence in question in this
case is related to demand of dowry, dowry
death, harassment of victim for demand of
dowry, cruelty and harassment to the
deceased by her husband.

18. Before considering the evidence
available on record, led by both parties, in
the light of argument advanced by the
learned counsel for the parties, it is
necessary to refer the relevant provision of
law relating to the offence in question i.e.
Section 304-B and Section 498-A I.P.C.,
Section 113-B of Indian Evidence Act and
Section 2 Dowry Prohibition Act, 1961
which are as under:-

Section 304-B (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 subsection, "dowry" shall have the same
meaning as in section 2 of the Dowry
Prohibition Act, 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.

Section
498-A
Husband
or
relative of husband of a woman subjecting
her
to
cruelty.--Whoever,
being
the
husband or the relative of the husband of a
woman, subjects such woman to cruelty
shall be punished with imprisonment for a
term which may extend to three years and
shall also be liable to fine. Explanation.--
For the purpose of this section, "cruelty"
means

(a) any wilful conduct which is of
such a nature as is likely to drive the
woman to commit suicide or to cause grave
injury or danger to life, limb or health
(whether mental or physical) of the woman;
or

(b) harassment of the woman
where such harassment is with a view to
coercing her or any person related to her
to meet any unlawful demand for any
property or valuable security or is on
account of failure by her or any person
related to her to meet such demand.

Section
113-B
of
Indian
Evidence Act-Presumption as to dowry
death.--When the question is whether a
person has committed the dowry death of a
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 section 304B, of the Indian
Penal Code.

Section 2 of Dowry Prohibition
Act-Definition of ''dowry'. In this Act,
"dowry" means any property or valuable
security given or agreed to be given either
directly or indirectly
82 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) by one party to a marriage to
the other party to the marriage; or

(b) by the parent of either party
to a marriage or by any other person, to
either party to the marriage or to any other
person.

19. The above provision, related with
dowry death, clearly shows that if a death of
any women is caused within 7 years of her
marriage by burn "or otherwise than under
normal circumstances" and it is shown that if
soon before the death of such women, she was
subjected to cruelty or harassment by her
husband or any relative of her husband, in
connection with demand for dowry and if the
prosecution succeeds to prove the above
ingredient, such death shall be called as dowry
death. In addition to above Section 113-B of
Indian Evidence Act, further provides that in
such cases, if it is shown that a women was
subjected, soon before her death by the accused,
to cruelty or harassment for in or connection
with any demand of dowry, the Court shall
presume that such accused had caused the
dowry death.

20. According to PW-1 Ankit singh,
F.I.R. (Ex.Ka.1) was lodged by him on the
information given by PW-2 Shubhawati on
11.1.2018 at about 10:30 a.m. under Section
498-A, 304-B I.P.C. and 3⁄4 D.P. Act. As per the
prosecution case, the occurrence was happened
in the intervening night of 10/11.1.2018 and
PW-2 Shubhawati lodged the F.I.R. when she
was informed by PW-5 Sangeeta on 11.1.2018
at about 5:00 a.m. and upon that information
PW-2 Shubhawati came to the place of
occurrence, saw the dead body of her daughter
and lodged the F.I.R. Thus, there is no delay in
lodging the F.I.R.

21. So far as the submission of learned
counsel for the appellant that no independent
witness has been produced and the witnesses
produced by the prosecution are relative of
deceased, hence the prosecution is doubtful, is
concerned, it is settled principle of criminal law
that merely on the ground of non production of
independent witness, prosecution case can not
be thrown out. Offences relating to dowry death
are mostly committed inside the house of the
accused and in such cases there is at least
possibility of independent witness because most
of the evidence, facts and circumstances are
within the knowledge of the accused person
who usually do not state anything regarding the
occurrence.
In
such
cases,
in
normal
circumstances, neighbours, servants and family
member of the accused also do not come
forward to disclose anything regarding the
occurrence, in order to save the accused.

22. Hon'ble Supreme Court in
Vajresh Venkatray Anvekar vs. State of
Maharashtra (2013) 3 SCC 462, while
discussing the nature of evidence required
for offences relating to dowry death has
held as under:-

17. The learned Sessions Judge
has refused to rely upon the evidence of the
parents, brother and brothers-in-law of
Girija primarily on the ground that they
are interested witnesses. We find this
approach to be very unfortunate. When a
woman is subjected to ill-treatment within
the four walls of her matrimonial house,
ill-treatment is witnessed only by the
perpetrators of the crime. They would
certainly not depose about it. It is common
knowledge that independent witnesses like
servants or neighbours do not want to get
involved. In fact, in this case, a maid
employed in the house of the appellant who
was examined by the prosecution turned
hostile.

18. It is true that chances of
exaggeration by the interested witnesses
cannot be ruled out. Witnesses are prone to
3-5 All. Vinod Vs. State of U.P.
83
exaggeration. It is for the trained judicial
mind to find out the truth. If the
exaggeration is of such nature as to make
the witness wholly unreliable, the court
would obviously not rely on him. If
attendant circumstances and evidence on
record clearly support and corroborate the
witness, then merely because he is
interested witness he cannot be disbelieved
because of some exaggeration, if his
evidence is otherwise reliable. In this case,
we do not find any such exaggeration qua
the appellant. The witnesses have stood the
test of cross- examination very well. There
are telltale circumstances which speak
volumes. Injuries suffered by Girija prior to
the suicide cannot be ignored. The pathetic
story of Girija's woes disclosed by her
parents, her brother and her brothers-inlaw deserves to be accepted and has rightly
been accepted by the High Court. A1 and
A3 have been acquitted by the Sessions
Court. That acquittal has been confirmed
by the High Court. The State has not
appealed against that order. We do not
want to therefore go into that aspect. But,
we must record that we are not happy with
the manner in which learned Sessions
Judge has ignored vital evidence.

 (Emphasis Supplied)

23. In addition to above, it is also
settled principle of law that the evidence,
produced by the relative of the deceased,
cannot be ignored only on the ground that
they are relative because the close relative
do not prefer to implicate a false person,
leaving aside the real culprit. If it is alleged
by the defence, it has to be established by
the defence, as to why the nearest relative
of deceased are falsely implicating him by
leaving aside the real culprit. In this case,
the evidence led by the PW-2 Subhawati,
PW-5 Sangeeta and PW-5 Gyan Das who
are nearest relative of deceased are reliable
and their evidence cannot be discarded only
on the ground that they are relative of the
deceased. Thus, the submission raised by
the learned counsel for the appellant, in this
regard, has no force.

24. It is pertinent to note at this
juncture that for the offence of dowry
death, homicidal death of the women is not
necessary. It includes unnatural as well as
accidental death also. It is also necessary to
note that section 304-B I.P.C. as well as
113-B of Indian Evidence Act, both the
provision state that prosecution is not
required to prove the factum of cruelty or
harassment by the accused with the
deceased soon before death of deceased,
beyond reasonable doubt because in these
provisions, burden has been laid on
prosecution only to show that soon before
the death of deceased, she was subjected to
cruelty or harassment in connection with
demand of dowry by her husband or
relatives of her husband. In addition to
above, the word soon before her death does
not mean just soon before her death. It
means that there should be a proximity
between the cruelty or harassment related
to the demand of dowry and unnatural
death of deceased. Hon'ble Supreme Court
while discussing Section 304 B I.P.C.,
Section 113-B Indian Evidence Act and
definition of dowry as provided in Section
2 of the D.P. Act, in Maya Devi vs. State
of Haryana AIR 2016 SC 125 has held as
follows:-

"16. To attract the provisions of
Section 304B, one of the main ingredients
of the offence which is required to be
established is that "soon before her death"
she was subjected to cruelty or harassment
"for, or in connection with the demand for
dowry". The expression "soon before her
death" used in Section 304B IPC and
84 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 113B of the Evidence Act is
present with the idea of proximity test. In
fact, learned senior counsel appearing for
the appellants submitted that there is no
proximity for the alleged demand of dowry
and harassment. With regard to the said
claim, we shall advert to while considering
the evidence led in by the prosecution.
Though the language used is "soon before
her death", no definite period has been
enacted and the expression "soon before
her death" has not been defined in both the
enactments.
Accordingly,
the
determination of the period which can
come within the term "soon before her
death" is to be determined by the courts,
depending
upon
the
facts
and
circumstances of each case. However, the
said expression would normally imply that
the interval should not be much between
the cruelty or harassment concerned and
the death in question. In other words,
there must be existence of a proximate
and live link between the effect of cruelty
based on dowry demand and the death
concerned. If the alleged incident of
cruelty is remote in time and has become
stale enough not to disturb the mental
equilibrium of the woman concerned, it
would be of no consequence."

 (Emphasis Supplied)

25. Hon'ble Court further in Maya
Devi (supra), discussing the law laid down
by the Apex Court in Bansi Lal vs. State
of Harayana AIR 2011 SC 691; Mustafa
Shahadal
Shaikh
vs.
State
of
Maharashtra AIR 2013 SC 851 and
Ramesh
Vithal
Patil
vs.
State
of
Karnataka (2014) 11 SCC 516; regarding
the nature of proof required for dowry
death, has held as under:-

" 21. Section 304B IPC does not
categorise death as homicidal or suicidal
or accidental. This is because death caused
by burns can, in a given case, be homicidal
or suicidal or accidental. Similarly, death
caused by bodily injury can, in a given
case,
be
homicidal
or
suicidal
or
accidental. Finally, any death occurring
"otherwise
than
under
normal
circumstances" can, in a given case, be
homicidal or suicidal or accidental.
Therefore, if all the other ingredients of
Section 304B IPC are fulfilled, any death
(homicidal or suicidal or accidental)
whether caused by burns or by bodily
injury or occurring otherwise than under
normal circumstances shall, as per the
legislative mandate, be called a "dowry
death" and the woman's husband or his
relative "shall be deemed to have caused
her death". The section clearly specifies
what constitutes the offence of dowry death
and also identifies the single offender or
multiple offenders who has or have caused
the dowry death.

22. The key words under Section
113B of the Evidence Act, 1872 are "shall
presume" leaving no option with a court
but to presume an accused brought before
it of causing a dowry death guilty of the
offence. However, the redeeming factor of
this provision is that the presumption is
rebuttable. Section 113B of the Act enables
an accused to prove his innocence and
places a reverse onus of proof on him or
her. In the case on hand, accused persons
failed to prove beyond reasonable doubt
that the deceased died a natural death.
When Kavita allegedly committed suicide,
her husband- appellant No.2, though he
was not present in the house, was present
in his office at M.D. University, Rohtak at
the relevant time but he did not make any
sincere effort to take her to the hospital
which was very near to the place of the
incident. Similarly, appellant No. 2 got the
deceased examined by DW-2 in order to
3-5 All. Vinod Vs. State of U.P.
85
create
an
impression
that
she
was
struggling with chronic depression but the
truth floated upon the surface when the
deceased reveals that the accused persons
were maltreating her and she had started
picking up the ideas of suicide. Lastly,
appellant No. 2 falsely informed the court
that having learnt about the death of his
wife Kavita, he left for Delhi to inform her
family members. In fact, the accused never
went to Delhi and the complainant received
a telephonic message from an unknown
person regarding the death of his daughter.
So far as Maya Devi- appellant No. 1
herein is concerned, there is no denying the
fact that she was working as a teacher in a
government school and she was not present
at the relevant time at the place of incident
but it is very much clear from the evidence
on record that both the accused persons
had a dominating role in the entire episode
and she had always accompanied her sonappellant No. 2 herein to the house of the
complainant
(PW-3)
for
the
dowry
demands. The presumption under Section
113B of the Act is mandatory may be
contrasted with Section 113A of the Act
which was introduced contemporaneously.
Section 113A of the Act, dealing with
abetment of suicide, uses the expression
"may presume". This being the position, a
two-stage process is required to be
followed
in
respect
of
an
offence
punishable under Section 304-B IPC: it is
necessary to first ascertain whether the
ingredients of the Section have been made
out against the accused; if the ingredients
are made out, then the accused is deemed
to have caused the death of the woman but
is
entitled
to
rebut
the
statutory
presumption of having caused a dowry
death. From the evidence on record, we are
of the opinion that in the present case
Kavita died an unnatural death by
committing suicide as she was subjected to
cruelty/harassment by her husband and inlaws in connection with the demand for
dowry which started from the time of her
marriage and continued till she committed
suicide. Thus, the provisions of Sections
304B and 498A of the IPC will be fully
attracted."
 (Emphasis supplied)

26. Now the question arises, whether,
the deceased died within 7 years of her
marriage with the appellant; her death was
unnatural; and she was subjected to cruelty
or harassment, soon before her death, by
the appellant, in connection with demand of
dowry or not.

27. PW-2 Smt. Subhawati, mother of
the deceased, has specifically stated that the
marriage of deceased was solemnized with
appellant, four years before her death.
According to her, she had given dowry as
per her capacity; just after the marriage the
appellant, his parents and sisters used to
demand a motorcycle in dowry and also to
harass and torture her. She further stated
that 8-10 days prior to of the occurrence,
the appellant Vinod took away deceased
from her house and at that time also, he
asked for a motorcycle as a dowry. She has
further stated that her daughter Sangeeta
(PW-5) informed her on phone that
deceased Pooja was killed by her in-laws
and on that information, she came to Bansi
(appellant's house) and saw that the dead
body of Pooja was lying in the outer side of
the house of appellant. She further stated
that she had lodged the F.I.R. (Ex.Ka.3);
police reached the place of occurrence and
recovered an iron rod in length about 2.5 ft,
a scarf and a mobile charger. She further
stated that on perusal of dead body, it
appeared that the death was caused by
strangulation. According to her, dead body
of the deceased was sealed before her and
inquest report (Ex.Ka.4) was also prepared
86 INDIAN LAW REPORTS ALLAHABAD SERIES
before her, whereupon she had also put her
thumb impression.

28. PW-5, Smt. Sangeeta, sister of
deceased, also stated that deceased, her
youngest sister, was married with appellant
Vinod, just 4 years before the occurrence.
Stating that at the time of marriage, dowry
was given to appellant according to her
capacity; appellant was not satisfied with
dowry; he was demanding a motorcycle in
dowry and was harassing and torturing the
deceased for want of dowry, she further
stated that deceased Pooja used to tell her
the act of harassment and demand of dowry
made to her by the appellant and his
relatives, whereupon she used to pacify her.
She further stated that on 10th January,
2018, she was in Mumbai; appellant Vinod,
at about 4:00 O' clock in the morning,
informed her that deceased was not feeling
well
and
was
in
critical
condition.
Thereafter, he switched off his phone but as
she rang after an hour, he informed that the
deceased had died. She further stated that
thereafter, she informed her mother (PW-2)
that deceased had been murdered by her inlaws.

29. PW-7, Gyan Das, maternal uncle
of the deceased, has also stated that
deceased was married with the appellant
just 4 years before her death and when he
used to visit the deceased's matrimonial
house, she used to tell him that appellant
and his family members used to demand a
motorcycle and also used to harass and
torture her.

30. PW-3 Dr. Sanjay Chaudhary
stating the ante mortem injuries caused to
deceased (noted in para no. 5) has
specifically stated that the deceased had
died due to asphyxia caused by antemortem injury. According to him, 500 gm.
semi digested food was also found in
stomach of deceased.

31. PW-8, Dy. SP Mahendra Singh,
Investigating Officer, who inspected the
place of occurrence and prepared site plan
(Ex.Ka.10) has stated that death of
deceased was caused in her bed room.

32. PW-6 Dy. SP Umashanker Singh,
who took over the investigation after PW-8
Mahendra Singh, has stated that after
recording statement of witnesses and
inspecting the panchnama, post-mortem
report and other documents, he concluded
the investigation and filed charge-sheet
(Ex.Ka.9)

33. In addition to above, in F.I.R.
(Ex.Ka.3)
it
has
been
specifically
mentioned that marriage of deceased with
appellant was solemnized in 2013 and the
incident happened in the intervening night
of 10/11.1.2018. PW-2 Smt. Subhavati,
PW-5 Sangeeta and PW-7 Gyandas have
specifically stated that the deceased was
married with applicant four years prior to
the occurrence. In cross-examination PW-2
Shubhawati, although has stated that, at the
time of marriage, deceased was aged about
15-16 years but again she stated that
deceased was graduate. She was not further
cross examined on the point of duration of
marriage
of
deceased.
In
crossexamination, PW-5 Sangeeta further said
that the deceased was married with
appellant in 2013. Thus the prosecution
have successfully proved that unnatural
death of deceased was caused within 7
years of her marriage and the submission
made by the learned counsel for the
appellant has no force.

34. In this case, the nature of cause of
death is not disputed because it is admitted
3-5 All. Vinod Vs. State of U.P.
87
fact that the death of deceased was not
natural. According to PW-2 Subhawati,
PW-5 Sangeeta and PW-7 Gyan Das, the
death of deceased was caused by the
appellant-Vinod along with his family
member for demand of dowry and deceased
was subjected to cruelty and harassment by
them just before her death in connection
with dowry. It is very pertinent to note at
this juncture that for the first time PW-2
Subhavati when she reached the place of
occurrence, she found that the dead body of
deceased was lying in the outer side of the
house of appellant. According to PW-3, Dr.
Sanjay Chaudhary, ligature mark was
present around the neck of deceased. This
witness has not found any gap in ligature
mark which is generally found in suicidal
case by hanging. In addition to above, no
rope was found on the place of occurrence
by Investigating Officer PW-8 Dy.S.P.
Mahendra Singh whereas from perusal of
site plan (Ex.Ka.10) it transpires that only
two rooms are inside the house of appellant
and deceased had died in one room where
bed was also lying.

35. According to PW-5, Sangeeta, the
appellant Vinod rang her at 4:00 O' clock in
the morning of 10th January, 2018 and
informed that deceased Pooja was in
critical condition. Thereafter, he switched
off his phone and after one hour when she
(PW-5) again rang him, he informed that
the deceased had died. This clearly shows
that at the time of death of deceased, the
appellant was with the deceased.

36. Appellant Vinod has not stated in
his statement under section 313 Cr.P.C., as
to how, deceased had died, whereas her
death was caused inside his house. He has
also not explained as to how the dead body
of deceased was laid, out side his house. He
has also not specifically denied his
presence, at the time of occurrence, inside
his house. He has also not explained or
disclosed
anything
regarding
the
circumstances related to the cause of death,
cruelty or harassment just before the death
of deceased, demand of motorcycle as
dowry and duration of his marriage with
deceased. DW-1 Ram Sundar has stated
that he got the marriage of appellant Vinod
with Pooja solemnized 10 years ago; there
was no demand of dowry by the appellant;
and there was no harassment or torture with
deceased by the appellant. In cross
examination, he has specifically admitted
that he has also solemnized two other
marriages.
He
further
admitted
that
appellant Vinod is his relative (brother-inlaw). This witness neither normally resides
at the house of appellant nor was present at
the time of occurrence at the house of
appellant. Appellant being husband of
deceased has to disclose the exact duration
or year of his marriage, facts and
circumstances as well as cause of death of
deceased, in his statement under Section
313 Cr.P.C., but he did not disclosed it and
only answered that prosecution version is
false. Similarly, if the appellant was with
the deceased at the time of occurrence, it
was
also
his
duty
to
explain
the
circumstances that how the death of
deceased was caused and if she committed
suicide, what effort was made by him to
prevent her to take such step. Failure, to
explain circumstances or produce any
reliable evidence in defence against the
evidence produced by the prosecution
regarding unnatural death of deceased,
demand of dowry, cruelty and harassment
to deceased, duration of marriage and, to
discharge the burden as required U/s 113 B
Evidence Act and mere denial to the
prosecution evidence put to him U/s 313
Cr.P.C., strengthen the culpability of
appellant in committing the offence and the
88 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of DW-1 Ram Sundar is not
sufficient to controvert the prosecution
version.

37. Hon'ble Supreme Court Trimukh
Maroti Kirkan Vs. State of Maharashtra
2006 (10) SCC 681 where accused was
charged for committing murder of his wife
and it was established by the prosecution
that shortly before the offence, he was seen
with his wife inside his house where he and
his wife were normally used to reside.
Hon'ble Supreme Court has held as under:

"Where an accused is alleged
to have committed the murder of his
wife and the prosecution succeeds in
leading evidence to show that shortly
before the commission of crime they
were seen together or the offence takes
placed in the dwelling home where the
husband also normally resided, it has
been consistently held that if the
accused does not offer any explanation
how the wife received injuries or offers
an explanation which is found to be
false, it is a strong circumstance which
indicates that he is responsible for
commission of the crime. In Nika Ram
v. State of Himachal Pradesh AIR 1972
SC 2077 it was observed that the fact
that the accused alone was with his wife
in the house when she was murdered
there with 'khokhri' and the fact that the
relations of the accused with her were
strained would, in the absence of any
cogent explanation by him, point to his
guilt.
In
Ganeshlal
v.
State
of
Maharashtra (1992) 3 SCC 106 the
appellant
was
prosecuted
for
the
murder of his wife which took place
inside his house. It was observed that
when the death had occurred in his
custody, the appellant is under an
obligation
to
give
a
plausible
explanation for the cause of her death
in his statement under Section 313
Cr.P.C.
The
mere
denial
of
the
prosecution case coupled with absence
of any explanation were held to be
inconsistent with the innocence of the
accused,
but
consistent
with
the
hypothesis that the appellant is a prime
accused in the commission of murder of
his wife. In State of U.P. v. Dr.
Ravindra Prakash Mittal AIR 1992 SC
2045 the medical evidence disclosed
that the wife died of strangulation
during late night hours or early
morning and her body was set on fire
after sprinkling kerosene.