# Vishwanath Gupta (In Jail) v. State of U.P. 30 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 12 ILRA 29
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-26
- **Case number:** Criminal Appeal No. 1492 of 2010
- **Bench:** Ramesh Sinha, Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwanath-gupta-in-jail-v-state-of-u-p-30-indian-law-reports-allahabad-series-45567
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304-B, 302, 201 -The criminal
appeals have been preferred against the conviction
under section 498-A, 304-B, 302, 201 I.P.C.

Burden of proving fact especially within
knowledge (106). - When any fact is
especially within the knowledge of any person,
the burden of proving that fact is upon him."

Dead body of the deceased in the house of
accused / appellant on the date and time of the
incident and they have failed to explain the
death of deceased. Hence, conviction of the
appellant for the murder of the deceased by the
Trial Court justified and does not require in
interference (Para 30)

Appeals dismissed. (E-2)

List of Cases cited: -

## Text

_Characters 0–39,810 of 48,158. This is a partial read: ask again with offset=39810 for what follows._

12 All. Vishwanath Gupta Vs. State of U.P.
29
confidence and appears to be absolutely
trustworthy, unblemished and should be of
sterling quality."

5.5. With the aforesaid decisions
in mind, it is required to be considered,
whether is it safe to convict the accused
solely on the solitary evidence of the
prosecutrix? Whether the evidence of the
prosecutrix
inspires
confidence
and
appears to be absolutely trustworthy,
unblemished and is of sterling quality?

(Emphasis supplied)

39. Thus in the light of above
discussion, it is clear that the sole
testimony
of
victim
(P.W.-3),
is
contradictory to her statement under
Section 164 of the Code and also to the
medico legal evidence. She was more than
eighteen years at the time of occurrence,
the independent witness (P.W.-1) as well as
her own uncle (P.W.-2) have not supported
the prosecution story. The prosecution
evidence regarding her age proved by
Balram Bajpayee (P.W.-7) is also not
reliable and trustworthy. The statement of
victim (P.W.-3) in the light of law laid
down by Hon'ble Supreme Court in
Santosh Kumar Prasad (supra) is neither
trustworthy nor unblemished nor is of
sterling quality. The prosecution has
produced manufactured and concocted
evidence.

40. Trial Court has not properly
discussed
the
prosecution
evidence.
Prosecution has miserably failed to prove
its case beyond reasonable doubt that
appellant had kidnapped with intent to
compel the victim for marriage and
committed rape with her. The impugned
judgment and order passed by trial Court is
liable to be set aside and the appellant is
entitled to be acquitted.

41. I am, therefore, unable to uphold
the
conviction
and
sentence
of
the
appellant. The impugned judgment and
order passed by the Trial Court is
accordingly set aside. The appellant-Sanjay
is
acquitted.
Consequently
appeal
is
allowed.

42. The appellant-Sanjay is in jail. He
is directed to be released forthwith unless
wanted in any other case.

43. Keeping in view the provision of
Section 437-A of the Code, appellant is
hereby directed forthwith to furnish a
personal bond of a sum of Rs.20,000/- each
and two reliable sureties each of the like
amount before the trial Court, which shall
be effective for a period of six months,
along with an undertaking that in the event
of filing of Special Leave Petition against
this judgment or for grant of leave,
appellant on receipt of notice thereof, shall
appear before Hon'ble Supreme Court.

44. A copy of this judgment along
with lower court record be sent to Trial
Court by FAX for immediate compliance.
----------
(2020)12ILR A29
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Criminal Appeal No. 1492 of 2010
connected with
Criminal Appeal No. 1491 of 2010

Vishwanath Gupta ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party
30 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Satish Trivedi, Sri Ajay Kumar Pandey,
Sri Ram Krishna Mishra, Sri R.C. Yadav, Sri
Sudhanshu Pandey.

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

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304-B, 302, 201 -The criminal
appeals have been preferred against the conviction
under section 498-A, 304-B, 302, 201 I.P.C.

Burden of proving fact especially within
knowledge (106). - When any fact is
especially within the knowledge of any person,
the burden of proving that fact is upon him."

Dead body of the deceased in the house of
accused / appellant on the date and time of the
incident and they have failed to explain the
death of deceased. Hence, conviction of the
appellant for the murder of the deceased by the
Trial Court justified and does not require in
interference (Para 30)

Appeals dismissed. (E-2)

List of Cases cited: -

1. Gurmukh Singh Vs St. of Har. reported in
1991 (1) Crimes 112-113

2. St.of H.P. Vs Smt. Manju Rani reported in
2013 Crl.L.J. 101

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

4. Shambhu Nath Mehra Vs St. of Ajmer 1956
SCR 199

5. W.B. Vs Mir Mohammad Omar & ors. (2000)
8 SCC 382

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The above two criminal appeals
have been preferred against the judgment
and order dated 22.2.2010 passed by
Additional Sessions Judge, Kushi Nagar
Padrauna in S.T. No. 168 of 2001 under
section 498-A, 304-B, 302, 201 I.P.C.
convicting and sentencing the appellants
under section 498-A I.P.C. for two years
imprisonment, under section 304-B I.P.C.,
for ten years imprisonment, under section
302 I.P.C. for life imprisonment and fine of
Rs. 10,000/- and in default of payment of
fine further imprisonment of one year and
under section 201 I.P.C. for three years
imprisonment.

2. As the above mentioned two
criminal appeals have been preferred
against the same judgment and order, hence
the same are being heard and decided
together by this common judgment.

3. The brief facts of the case are that
the First Information Report was lodged by
the informant Pooranmasi (hereinafter
referred to as 'the informant') stating that he
had married his only daughter Km. Vidya
(hereinafter referred to as 'the deceased') in
the year 1989 with one Aniruddha Gupta
son of Vishwanath Gupta resident of village
Gaunariya,
police
station
Kaptanganj,
District Padrauna. In the marriage he has
given sufficient dowry and only one bicycle
was
left
to
be
given
which
was
continuously demanded by Aniruddha and
his father Vishwanath, who used to
threatened and also frequently used to
abuse, harass and torture his married
daughter in various manner. The informant
at regular intervals had gone to village
Gaunaria and pacify her daughter and sonin-law Aniruddha and demanded time to
give bicycle but on account of poverty he
could not give bicycle to them. His
daughter was also having infant child aged
about two and half years, namely, Raj
Kumar. In the intervening night of
2/3.1.1996 at about 12 hours his daughter
12 All. Vishwanath Gupta Vs. State of U.P.
31
and her infant child were murdered on
account of non fulfillment of demand of
dowry and in the night itself the dead body
of the deceased Smt. Vidya along with her
child was cremated. When the informant
and his family members came to know
about death and disposal of the dead body
of their daughter Smt. Vidya and her infant
child then they were shocked and went to
the village Gaunaria and came to know
about all the facts. When, the informant
made a query from Vishwanath and his
family members as to why the information
about the death of his daughter and her
infant child and performance of their last
rites were not communicated to them
immediately, Aniruddha and Vishwanath
got angry and abused him and stated that he
immediately leave their house as because
of him the said incident had taken place.
The informant also informed about the
incident at police station Kaptanganj but
his F.I.R. was not lodged, hence he
informed about the same to Superintendent
of Police by submitting the written report
on the basis of which the F.I.R. was
registered as case crime no. 50 of 1996
under sections 498-A, 304-B, 302, 201
I.P.C., police station Kaptanganj, District
Kushi Nagar on 29.3.1996 at 11:30 a.m.

4. After registration of the F.I.R., the
Investigating
Officer
interrogated
the
witnesses and recorded their statements
under section 161 Cr.P.C. He made a spot
inspection of the place of occurrence and
made site plan (Ex. Ka-4) of the same and
also visited the place where the cremation
was done and prepared the site plan of the
said place which was marked as (Ex. Ka.
5). After investigation, on 5.5.1996 chargesheet was submitted against appellants
Vishwanath Gupta, Harendra Gupta and
Aniruddha for the offence under sections
498-A, 304-B and 201 I.P.C. before the
Magistrate, who committed the case to the
Court of Sessions.

5. The trial court framed charges
against
appellants
Vishwanath
Gupta,
Harendra Gupta and Aniruddha under
sections 498-A, 304-B, 201 I.P.C. on
12.3.2001 and under section 302/34 on
13.9.2001 respectively.

6. During the pendency of trial,
accused Aniruddha Gupta died and his trial
was ordered to be abated on 10.3.1997.

7. The appellants denied charges
framed against them and claimed their trial.

8. The prosecution in support of its case
has examined P.W. 1 Pooranmasi, P.W. 2 Smt.
Jhinki, P.W. 3 Constable Dinesh Singh.

9. The statements of the appellants
were recorded under section 313 Cr.P.C. by
the trial court and they did not led any
evidence.

10. P.W. 1 Pooranmasi Gupta in his
deposition before the trial court has
reiterated the prosecution case and stated
that the incident had taken place 13 years
back. His daughter Smt. Vidya's marriage
was performed in village Gaunaria with
Aniruddha according to Hindu rites and
traditions 20 years back and in the marriage
he could not give bicycle and after
marriage, when his daughter went to her inlaw's
house,
accused Aniruddha
and
Vishwanath used to demand bicycle and
used to abuse her. His daughter had an
infant child by the name of Raj Kumar,
who was aged about two and half years. On
the day of incident, his daughter and her
infant child were done to death by accused
Aniruddha and Vishwanath and after killing
32 INDIAN LAW REPORTS ALLAHABAD SERIES
them their last rites were also performed by
accused persons. On receiving information,
about the killing of his daughter and her
infant child and coming to know about the
fact that their bodies have been cremated,
from another person of the village, he went
to his daughter's in-law's house to enquire
about the incident and when query was
made by him about the same, Aniruddha
and Vishwanath abused him and asked him
to go away from their house. Thereafter, he
went to the police station to lodge the F.I.R.
but when no heed was paid to his request
then he approached the Superintendent of
Police of the district where he got a written
report typed and signed the same. The
person, who typed the written report had
read over the same to him. The Circle
Officer thereafter had gone to the place of
occurrence and he met him. The Circle
Officer had also gone to his house and
thereafter went to the house of his daughter.
The statement of the informant was also
recorded under section 161 Cr.P.C. He
proved the written report (Ex. Ka.1) and his
signature on the same stating that it was
given at the police station under his
signature. In his cross examination, this
witness had stated that the information
about the death of his daughter Smt. Vidya
was given to him at door of his house by a
person but he could not tell as to who had
given the said information. He stated that
the information was given in the presence
of Jhinki and Narmada. He stated that the
person, who had come to inform about the
death of Smt. Vidya at his house, was aged
about 25 years. He stated that several
letters regarding the demand of bicycle in
dowry by the accused persons had come
but he had thrown away the same. The
witness had stated that he had studied upto
class-IV and he could read Hindi. Further,
in his cross examination, he has stated that
he had given blank paper to Superintendent
of Police bearing his signature and what
was written on the same, he could not tell.
The Circle Officer had not taken his
statement under section 161 Cr.P.C. His
daughter and her son were ill for several
days and because of their ailment both have
died. The father-in-law and mother-in-law
of his daughter have not tortured her at any
point of time.

11. P.W. 2 Smt. Jhinki, who is the
mother of the deceased Smt. Vidya and
wife of P.W. 1 was examined by the trial
court and in her statement, she has stated
that the name of her daughter was Vidya
and her marriage was performed with
Aniruddha in village Gaunaria 20-25 years
ago from the date of her deposition before
the trial court. After marriage Gauna
ceremony was performed. In dowry there
was no demand for bicycle. Aniruddha,
Vishwanath and Harendra never used to
torture her daughter for want of bicycle in
dowry. She used to go to the house of her
daughter frequently but her daughter did
not tell anything to her. It has been stated
by her that her daughter had a son aged
about two and half years. Her daughter
Smt. Vidya and her son both died in her
house but she could not tell as to how they
died. After the death of her daughter and
her child Raj Kumar, information was
given
to
them.
On
receiving
the
information, she along with her son
Harishchandra had gone to her daughter's
in-laws house. She does not know whether
for the death of her daughter and her minor
son, any report was lodged or not. The
Circle Officer and the Sub Inspector had
not recorded her statement under section
161 Cr.P.C. This witness was declared
hostile by the prosecution.

12. In the cross examination by the
A.D.G.C. (Criminal), she stated that when
12 All. Vishwanath Gupta Vs. State of U.P.
33
she reached her daughter's in-laws house then
the bodies of her daughter and her child Raj
Kumar have already been cremated by her sonin-law and after staying there for a day she
come back to her house. She did not met any
police personnel and when her statement under
section 161 Cr.P.C. was read over to her she
denied the same. She denied the suggestion that
she in order to save the accused Aniruddha,
Vishwanath and Harendra, who had murdered
her daughter and her minor son and cremated
their bodies for want of bicycle, she is falsely
deposing. Further in her cross examination by
the defence, it was stated by her that the in-laws
of her daughter had never tortured her daughter
Smt. Vidya or demanded any dowry from them.

13. P.W. 3 Constable Dinesh Singh in his
examination-in-chief before the trial court has
deposed that he knew Head Moharrir Constable
Shashikant Pandey and is conversant with his
signature and hand writing. He proved the chik
F.I.R. (Ex. Ka. 2) in the hand writing and
signature of Constable Shashikant Pandey. He
further proved Ex. Ka.3 of the G.D. entry which
was in the hand writing and signature of
Constable Tuntun Ram as he was conversant
with his writing and signature. He further stated
that he also knew Circle Officer Rishipal Singh
and was also conversant with his hand writing
and signature. He also knew Brij Bhushan
Singh, who had worked with him and was
conversant with his hand writing and signature
and has proved paper no. 7 Ka-1, 7 Ka-2 which
were in the hand writing and signature of Brij
Bhushan which also bears the signature of
Circle Officer Rishipal Singh and proved the
same as Ex. Ka. 4 and 5. The witness further
deposed that S.I. Mahant Yadav was known to
him and he is conversant with his hand writing
and signature and has proved Ex. Ka-6 in the
hand writing and signature of S.I. Mahant
Yadav and further proved Ex. Ka. 7 and stated
that the charge-sheet was in the hand writing
and signature of S.S.I. Mahant Yadav.

14. The trial court after going through
the evidence of the prosecution has
recorded the finding of conviction and
sentence of the appellants Vishwanath
Gupta and Harendra Gupta for the offence
under section 498-A/304-B I.P.C. and
sentenced them for 10 years R.I. under
section 304-B I.P.C. for the death of
deceased Smt. Vidya and under section
302/34 I.P.C. for the murder of deceased
Raj Kumar for life imprisonment vide
impugned judgment and order dated
22.2.2010.

15. Being aggrieved by the impugned
judgment
and
order,
the
appellants
preferred the present appeals against their
conviction and sentence.

16. Heard Sri Ram Krishna, learned
counsel for the appellants, Km. Meena,
learned A.G.A. for the State and perused
the impugned judgment and order as well
as lower court record.

17. Learned counsel for the appellants
submits that the appellant Vishwanath
Gupta is the father-in-law of the deceased.
He was named in the F.I.R. along with
Aniruddha-husband of the deceased Smt.
Vidya. So far as appellant Harendra, who is
the brother-in-law (Devar) of the deceased
Smt. Vidya is concerned, he was not named
in the F.I.R. but during the course of
investigation his complicity was shown and
charge-sheet was submitted against him
along with appellant Vishwanath and
accused Aniruddha. He submitted that
appellant Vishwanath, who is father-in-law
of the deceased Smt. Vidya, is aged about
75 years whereas appellant Harendra, who
is brother-in-law (Devar) of the deceased
Smt. Vidya is aged about 50 years. Both of
them are in jail since 22.2.2010. He
vehemently submitted that the deceased
34 INDIAN LAW REPORTS ALLAHABAD SERIES
Smt. Vidya was living along with her
husband and her children and the two
appellants had no concern with the affairs
of the deceased Smt. Vidya and her
husband. They have been falsely implicated
in the present case only on account of the
fact that they were in-laws of the deceased
Smt. Vidya and were living in the same
house where the deceased Smt. Vidya was
living along with her husband and minor
child. He next submitted that though P.W.
1, who is the informant of the case and
father of the deceased Smt. Vidya, had
supported the prosecution case before the
trial court but in his cross examination he
denied the prosecution case and denied the
involvement of the two appellants in the
incident and negated from his earlier
statement made before the trial court and
stated that the deceased Smt. Vidya and her
child died on account of ailment as they
were ill for last several days. So far as the
evidence of P.W. 2-Smt. Jhinki mother of
the deceased Smt. Vidya is concerned, he
submitted that she did not support the
prosecution case right from beginning and
was declared hostile by the prosecution. He
further argued that the evidence of P.W. 1
before the trial court in his examination-inchief also cannot be the basis of conviction
of the appellants for the offence in question
and the trial court committed gross
illegality in convicting and sentencing the
two appellants ignoring the fact that the
F.I.R. of the incident was lodged after more
than three months of the incident by the
P.W.1. He submitted that the implication of
the two appellants in the present case is an
afterthought. He pointed out that even the
appellant Harendra was not named in the
F.I.R. and the allegation which have been
levelled for demand of bicycle and the
committing
the
murder
of
the
two
deceased, was with respect to accused
Aniruddha, who was the husband of the
deceased Smt. Vidya and only bald
allegation was made against appellant
Vishwanath for the harassment of the
deceased Smt. Vidya. He further submitted
that the presumption drawn against the two
appellants under section 113-B of the
Evidence Act for committing the murder of
the deceased Smt. Vidya and her son for
want of bicycle is against the evidence on
record. In support of his argument he
placed reliance on the judgment of Punjab
and Haryana High Court in the case of
Gurmukh Singh vs. State of Haryana
reported in 1991 (1) Crimes 112-113 where
the Court observed that in a case under
section 304, 498-A I.P.C. where the
evidence of the parents of the deceased is
found to be weak and that of independent
witness goes against the complainant, the
prosecution case cannot be said to be
established beyond reasonable doubt. The
next case cited by him in support of his
argument is State of Himachal Pradesh vs.
Smt. Manju Rani reported in 2013
Crl.L.J. 101 and referred paragraphs 10,
14, 15, 16, 17 and 18 in which it has been
observed that the offence under section
498-A, 304-B I.P.C. read with Section 113B can be invoked only when it is
established and proved that there had been
demand for dowry. When there are
infirmities
in
the
evidence
of
the
prosecution and improvements have been
made in the testimony of the witnesses,
acquittal would be the only consequence.

18. So far as the conviction of two
appellants under section 302/34 I.P.C. for
the murder of the deceased Raj Kumar
minor child of the deceased Smt. Vidya, by
the trial court is concerned, he vehemently
argued that the prosecution has failed to
bring on record any evidence against the
appellants which could establish that it was
the two appellants, who committed murder
12 All. Vishwanath Gupta Vs. State of U.P.
35
of deceased Raj Kumar as the onus firstly
lies on the prosecution to prove its case
beyond reasonable doubt against the
appellants and simple raising onus on the
accused in view of the Section 106 of the
Evidence Act to explain the death of the
deceased Raj Kumar within their special
knowledge, is not sustainable. He argued
that the two appellants no doubt were living
in the same house where the deceased Smt.
Vidya was living along with her husband
and minor child-Raj Kumar and simply
because the two appellants were living in
the same house where the incident had
taken place and they have failed to explain
the death of the deceased Raj Kumar in
their house, is not alone circumstance or
the fact which may hold them guilty for the
murder of the deceased Raj Kumar. The
trial court had erred in convicting the two
appellants for his murder. He submitted that
it is quite possible that there was some
uncordial
relationship
between
the
deceased Smt. Vidya and her husband
Aniruddha and because of said fact, the
deceased Smt. Vidya and her minor child
Raj
Kumar
died
in
mysterious
circumstances and their last rites were
performed by the husband of the deceased
Smt. Vidya in the non presence of the
family members of the deceased- Smt.
Vidya, who did not raise any objection
regarding the cremation of the two
deceased and after three months of the
incident the F.I.R. was lodged against the
appellants
Vishwanath
and
accused
Harendra, who was the Devar of the
deceased Smt. Vidya for harassment and
oblique motive. He submits that the
explanation given by the prosecution for
the delay in lodging the F.I.R. is not at all
satisfactory as the informant has stated that
after receiving the information about the
incident he visited the house of the
appellants and thereafter went to lodge the
F.I.R. at police station but the same was not
lodged,
hence
he
approached
the
Superintendent of Police and submitted a
written report for the same, thereafter, the
F.I.R. was lodged. He argued that the
conviction of the appellants by the trial
court is not sustainable in the eyes of law
and the same be set aside and the appellants
be acquitted.

19. On the other hand, learned A.G.A.
has opposed the arguments of learned
counsel for the appellants and submitted
that the deceased Smt. Vidya died an
unnatural death in her matrimonial home
within seven years of marriage and her
dead body was also disposed of by the
appellants
along
with
her
husband
Aniruddha without informing the parents of
the deceased Smt. Vidya. She further stated
that the informant P.W. 1, who is the father
of deceased Smt. Vidya had supported the
prosecution case in its entirety in his
examination-in-chief before the trial court
but it appears that thereafter the accused
pressurize and won over him, hence he
denied the involvement of the appellants in
the present case in his cross examination.
The evidence of P.W. 1 goes to show that
the deceased Smt. Vidya and her minor
child Raj Kumar were done to death in the
in-laws house of deceased Smt. Vidya
where she lived along with her husband and
appellants, hence the trial court has rightly
convicted
the
appellants
raising
presumption of dowry death under section
113-B of the Evidence Act against the
appellants and convicted them under
section 304-B IPC and sentenced them for
ten years R.I. So far as conviction of the
appellants under section 302/34 I.P.C. for
the murder of the minor child of the
deceased Smt. Vidya, namely, Raj Kumar is
concerned, the trial court has rightly
sentenced and convicted them for life
36 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment with the aid of Section 106B IPC as the two appellants failed to
explain the death of minor child of
deceased Smt. Vidya in their house. She
submitted that the fact that the two
deceased were ill for last several days and
died
together
appears
to
be
highly
improbable and false explanation, thus she
argued that the appeals of the appellants
have no force and are liable be dismissed.

20.

We
have
considered
the
submissions advanced by learned counsel
for the parties and have meticulously
perused the evidence and material brought
on record.

21. It is an admitted fact that the
marriage of deceased Smt. Vidya was
solemnized with co-accused Aniruddha in
the year 1989 and in the intervening night
of 2/3.1.1996 at about 12 hours the
deceased Smt. Vidya along with her infant
child, namely, Raj Kumar aged about two
and
half
years
died
in
suspicious
circumstances
in
the
house
of
the
appellants. After the incident, the dead
bodies of deceased Smt. Vidya and of her
infant
child
was
cremated
without
informing either to the police or to the
informant, who is the father of deceased
Smt. Vidya, hence neither Panchayatnama
nor post mortem of the dead bodies of two
deceased were conducted, thus the cause of
death of both the deceased could not be
ascertained. The F.I.R. of the incident was
lodged
against
appellants-Vishwanath
Gupta-father-in-law
of
deceased
Smt.
Vidya and Aniruddha-husband of deceased
Smt. Vidya, who died during the pendency
of trial. During the course of investigation,
the involvement of appellant-Harendra
Gupta, who is brother-in-law (devar) of
deceased Smt. Vidya came into light on
account
of
which
charge-sheet
was
submitted against three accused persons,
namely,
Vishwanath
Gupta,
Harendra
Gupta and Aniruddha for the offence under
sections 498-A, 304-B, 201 I.P.C. and 3/4
D.P. Act by the Investigating Officer.

22. The trial court on 12.3.2001
framed
charges
against
appellants
Vishwanath Gupta and Harendra Gupta for
the offence under sections 498-A, 304-B,
201 I.P.C. and for the death of deceased
Smt. Vidya whereas on 13.3.2001 framed
charges against the appellants under section
302/34 I.P.C. for the death of deceased Raj
Kumar-son of deceased Smt. Vidya, aged
about two and half years.

23. P.W. 1 Pooranmasi Gupta, who is
the father of deceased Smt. Vidya has
supported the prosecution case in its
entirety in his examination-in-chief before
the trial court which was recorded on
10.11.2009 but on 1.12.2009 when his
cross examination was recorded by the trial
court he did not support the prosecution
case and resiled from his earlier statement
stating that under the influence of some
persons of village Gaunaria, he gave
evidence against the appellants but he
could not disclose the name of the said
persons, who pressurize and influence him
for giving the said statement before the trial
court. He further denied the suggestion that
in order to save the accused-appellants he is
falsely deposing in cross examination in
their favour.

24. P.W. 2 Smt. Jhinki, who is the
mother of deceased Smt. Vidya has denied
the
prosecution
case
right
from
its
inception before the trial court, hence she
was declared hostile by the trial court.

25. Thus, in these circumstances this
Court has to evaluate the evidence led by
12 All. Vishwanath Gupta Vs. State of U.P.
37
the prosecution in order to examine
whether the conviction and sentence of the
appellants for the offence which they have
been charged with is justified or not.

26. The contention advanced by
learned counsel for the appellants that the
deceased Smt. Vidya was living along with
her husband and her infant child and the
demand of bicycle was being made by
Aniruddha-husband
of
deceased
Smt.
Vidya and the appellants, who are father-inlaw and brother-in-law of deceased Smt.
Vidya, have no concern with their affairs
and the deceased Smt. Vidya though died
an
unnatural
death
in
a
suspicious
circumstances
in
the
house
of
the
appellants, they cannot be fastened with the
criminal liability of the death of deceased
Smt. Vidya and her infant child, is not
sustainable as the appellants used to live in
the same house in which the deceased Smt.
Vidya and her husband were living, hence
the
conviction
and
sentence
of
the
appellants for the death of deceased Smt.
Vidya, by the trial court does not suffer
from any manifest error at all. Firstly on the
ground that the marriage of deceased Smt.
Vidya with Aniruddha was solemnized in
the year 1989 and Gauna ceremony was
also performed and within seven years of
marriage, the deceased Smt. Vidya in the
intervening night of 2/3.1.1996 died an
unnatural death in suspicious circumstances
and further her infant child Raj Kumar aged
about two and half years was also done to
death and their dead bodies were disposed
of by the appellants without giving
information either to the police or to the
parents of deceased Smt. Vidya, who on
receiving information about the same
express their shock and enquired from the
appellants as to why they were not
informed about the death of both the
deceased and their dead bodies were
disposed
of
on
which
the
accused
appellants threatened the informant and
ousted him from their house. Secondly, as
per the evidence of P.W. 1 recorded before
the trial court in his examination-in-chief as
well as in the F.I.R. in which he
categorically stated that the demand of
bicycle, which was made by the appellant
Vishwanath and accused Aniruddha as the
same was not given by P.W. 1 at the time of
marriage, could not be fulfilled by the
informant on account of poverty due to
which the deceased Smt. Vidya was being
threatened and also used to torture by the
appellant
Vishwanath
and
accused
Aniruddha and was done to death in her
matrimonial home and her dead body was
also disposed of without performing
panchayatnama and post mortem of the
deceased. So far as the argument of learned
counsel for the appellants that the F.I.R.
was lodged after inordinate delay of three
months which shows that the informantP.W. 1 after last rites of the two deceased
were performed, he for his oblique motive
and for harassment of the appellants had
lodged the F.I.R. against them after due
deliberation and consultation and the
prosecution has failed to give plausible
explanation for the delay in lodging the
F.I.R. of the incident, has no force. Here it
would be important to note that in the F.I.R.
itself, the informant has stated that when he
went to concerned police station, i.e.,
police station Kaptaganj for informing
about the incident, his report was not
lodged, hence he gave application to the
Superintendent of Police requesting for
lodging the F.I.R. of the incident in
pursuance of which the F.I.R. was lodged,
thus in our opinion the delay which
occurred in lodging the F.I.R. of the
incident, is not fatal to the prosecution case.
The other argument of learned counsel for
the appellants that the appellant Harendra
38 INDIAN LAW REPORTS ALLAHABAD SERIES
Gupta, who is the brother-in-law (devar) of
deceased Smt. Vidya was not named in the
F.I.R. as the same was lodged against
appellant Vishwanath Gupta and accused
Aniruddha husband of deceased Smt. Vidya
and during the course of investigation, the
involvement of appellant Harendra Gupta
has come into light which is an afterthought
in order to falsely implicate him in the
present case, is also of not much
significance as admittedly, the appellant
Harendra Gupta was also living in the same
house along with appellant Vishwanath and
accused Aniruddha and after the incident
no effort was made by him also to inform
about the incident either to the police or to
the parents of deceased Smt. Vidya and the
dead body of both the deceased were
disposed of in suspicious manner. Both the
appellants in their statements recorded
under section 313 Cr.P.C. have failed to
explain or give reasonable explanation
regarding the death of two deceased, who
died
unnatural
death
in
suspicious
circumstances in the house in which they
were living and were found present on the
date and time of the incident. They have
also not led any defence evidence to
explain the death of two deceased, who
died unnatural death in their house. The
argument of learned counsel for the
appellants that the evidence of P.W. 1 and
P.W. 2 is weak evidence and the case law
which has been cited in support of the said
argument is also not sustainable on the
ground that P.W. 1 Pooranmasi father of
deceased Smt. Vidya has supported the
prosecution case in toto in his examinationin-chief recorded before the trial court on
10.11.2009 and the cross examination was
deferred which was recorded on 10.11.2009
just after one month of his examination-inchief wherein he retracted his statement
made before the trial court in his
examination-in-chief and stated that earlier
statement which was made by him before
the trial court was under the influence of
some persons of the village Gaunaria but he
could not disclosed the name of the
persons, who pressurize or influenced him
to give such statement. Further he has
stated that the deceased Smt. Vidya and her
son died on account of some ailment and
further the deceased Smt. Vidya was not
harassed and tortured by the appellants nor
her daughter made any complaint against
them nor the appellants had demanded
bicycle from her, the said statement and
conduct of P.W. 1 goes to show that he had
been won over by the accused persons and
the explanation which has come forward
through him that the two deceased died on
account of ailment is a false explanation as
there was no medical document produced
either by P.W. 1 or by the accused
appellants to corroborate that the two
deceased died on account of ailment, thus
the trial court after going through the
evidence brought on record has rightly
convicted and sentenced the appellants for
the offence under section 498-A, 201 I.P.C.
and sentenced them under section 304-B
I.P.C.
for
10
years
R.I.
drawing
presumption under section 113-B of the
Evidence Act as a case of dowry death
proved against the appellants and recorded
conviction against them for the said
offences.

27. So far as conviction and sentence
of two appellants for causing the death of
the infant child of deceased Smt. Vidya,
namely, Raj Kumar aged about two and
half years by the trial court, the statement
made by learned counsel for the appellants
that the onus on the two appellants in view
of Section 106 of the Evidence Act and
convicting them under section 302/34 IPC
for the murder of deceased Raj Kumar by
the trial court is absolutely illegal and
12 All. Vishwanath Gupta Vs. State of U.P.
39
cannot be sustained in the eyes of law, has
also no substance as it has come in the
evidence that has been referred above that
admittedly, the deceased Smt. Vidya along
with infant child Raj Kumar was living
with her husband in the same house in
which the two appellants were also living
and on the date and time of incident both of
them were present in the house and the
deceased
Raj
Kumar
also
died
in
mysterious circumstances and his dead
body was also disposed of without getting
inquest proceeding and post mortem being
conducted in order to know the cause of
death of the two deceased. The two
appellants failed to explain in their
statements recorded under section 313
Cr.P.C., the death of infant child, namely,
Raj Kumar in their house in suspicious
circumstances.
The
trial
court
was
absolutely
right
in
coming
to
the
conclusion that as to how it was possible
that the infant child, who was living with
his mother deceased Smt. Vidya died on the
same date and time when deceased Smt.
Vidya died and he was also suffering from
ailment like his mother as has been stated
by P.W. 1 in his cross examination before
the trial court. The nature of ailment and
any medical treatment given to him for the
same has also not been brought on record
which goes to show that P.W. 1 was won
over by the accused appellants at the time
of his cross examination which was
recorded after more than one month of his
examination-in-chief in order to save the
accused-appellants. Since the suspicious
and unnatural death of the deceased Raj
Kumar had taken place in the house which
was shared by the two appellants, hence as
per requirement of Section 106 of the
Evidence Act, they were required to give
plausible and convincing explanation about
the circumstances in which the deceased
Raj Kumar died in their house. Where an
offence like murder is committed in secrecy
inside a house, the initial burden to
establish the case would be undoubtedly be
upon the prosecution, but the nature and
amount of evidence to be led by it to
establish the charge cannot be of the same
degree as is required in other cases of
circumstantial evidence. The burden would
be of a comparatively lighter character. In
view of Section 106 of the Evidence Act
there will be a corresponding burden on the
inmates of the house to give a 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 an
accused to offer any explanation. In the
case of Trimukh Maroti Kirkan vs. State
of Maharashtra (2006) 10 SCC 681, the
Apex Court whilst applying provision of
Section 106 of the Indian Evidence Act,
observed in paras 13 to 14 as under:

''13. The demand for dowry or
money from the parents of the bride has
shown a phenomenal increase in last few
years. Cases are frequently coming before
the Courts, where the husband or in-laws
have gone to the extent of killing the bride
if the demand is not met. These crimes are
generally committed in complete secrecy
inside the house and it becomes very
difficult for the prosecution to lead
evidence. No member of the family, even if
he is a witness of the crime, would come
forward to depose against another family
member. The neighbours, whose evidence
may be of some assistance, are generally
reluctant to depose in Court as they want to
keep aloof and do not want to antagonize a
neighborhood family. The parents or other
family members of the bride being away
40 INDIAN LAW REPORTS ALLAHABAD SERIES
from the scene of commission of crime are
not in a position to give direct evidence
which may inculpate the real accused
except regarding the demand of money or
dowry and harassment caused to the bride.
But, it does not mean that a crime
committed in secrecy or inside the house
should go unpunished.

14. If an offence takes place
inside the privacy of a house and in such
circumstances where the assailants have all
the opportunity to plan and commit the
offence at the time and in circumstances of
their choice, it will be extremely difficult
for the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
Courts. A Judge does not preside over a
criminal trial merely to see that no innocent
man is punished. A Judge also presides to
see that a guilty man does not escape. Both
are public duties. (See Stirland v. Director
of Public Prosecution 1944 AC 315 quoted
with approval by Arijit Pasayat, J. in State
of Punjab Vs. Karnail Singh (2003) 11 SCC
271). The law does not enjoin a duty on the
prosecution to lead evidence of such
character which is almost impossible to be
led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead
such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case.