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

- **Citation:** (2021) 8 ILRA 515
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-09
- **Case number:** Criminal Appeal No 3452 of 2019
- **Bench:** Subash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yameen-in-jail-v-state-of-u-p-47267
- **Pages:** 12

## Headnote

(A) Criminal Law -The Indian Penal Code,
1860 - Sections 304B, 316 & 498A - The
Code
of
Criminal
Procedure,
1973-
Sections 161 & 313 - Dowry prohibition
Act,1961 - Section 4 - appeal against
conviction -

Informant moved a written information - on
ground of additional demand of dowry his sister
was bitterly beaten - subjected to physical and
mental cruelty - sister of informant dragged by
accused persons - poured kerosene oil over the
body of his sister set her ablaze - 80% burnt -
record of dying declaration - one before Naib
Tehsildar - another under section 161 Cr.P.C.

(B) Criminal Law - Indian Evidence Act,
1872 - Section 32 - Dying declaration -
where there are more than one statement
in nature of dying declaration, the one
first in point must be preferred - if there
are several dying declaration the dying
declaration which is trustworthy and
reliable has to be accepted - Held - First
dying declaration which was recorded by Naib
Tehsildar on 13.06.2015 on the very next day of
occurrence is found to be more trustworthy and
reliable - corroborated with the second dying
declaration, which is in the form of statement of
injured under Section 161 Cr.P.C ,which
corroborates with the first dying declaration,
same is not contradictory - No discrepancy on
the material point so as to ascertain the role of
committing dowry death by the husband of the
victim.(Para - 29,30)

(C) Criminal Law - Indian Evidence Act,
1872 - Section 113B - Presumption as to
dowry death -presumption under Section
113B of Evidence Act is the presumption
of the law which is mandatory - Once the
ingredients of Section 304B of I.P.C is
made out the accused is deemed to have
516 INDIAN LAW REPORTS ALLAHABAD SERIES
committed the dowry death of the women
- Accused is entitled to rebutt the
statutory presumption - husband is the
beneficiary in case of dowry demand
hence he is liable to dowry death and to
give the explanation as to how the death
has occurred. (Para - 33)

HELD:- Ingredients of Section 304B of I.P.C are
fulfilled as the death of deceased took place
within seven years of marriage and death of
deceased was not in normal circumstances
rather it was homicidal, thermal burn and there
is also evidence in regard to demand by the
husband of deceased and also the evidence that
for non fulfillment of the same she was
subjected to cruelty. Harassment and cruelty
indicate that demand of dowry is found to be
continuous soon before the death, as is evident
from the evidence adduced by the prosecution.
Offence under Section 304B of I.P.C is proved
beyond reasonable doubt. Impugned judgment
of conviction and sentence passed by the court
below does not bear any infirmity and needs no
interference.(Para - 31,35)

Criminal Appeal dismissed. (E-6)

List of Cases cited:-

## Text

8 All. Yameen Vs. State of U.P.
515
sustained simple injuries on non-vital part
of his body.

41. In these circumstances of the case,
this court is of the view that conviction of
the appellant under Section 307 IPC cannot
be sustained but appellant is liable to be
convicted for the offence under Section 324
IPC.

42. Again it is noteworthy that the
incident took place in the year 1981 i.e. 40
years ago and it is said that now appellant
is above 60 years old person. Record does
not show that the appellant has any
criminal antecedent and learned counsel for
appellant has also submitted the same
which could not be rebutted by learned
counsel for the State.

43. To sum up, the conviction &
sentence imposed on the appellant under
Section 307 IPC is set aside instead he is
convicted under Section 324 IPC and the
period of sentence is reduced to the period
of sentence already undergone by him
besides a fine of Rs. 5000/- in default to
undergo rigorous imprisonment for one
month. The amount so deposited be paid to
the complainant as compensation.

44. Accordingly, the appeal is partly
allowed.
----------
(2021)08ILR A515
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.03.2021

BEFORE

THE HON'BLE SUBASH CHAND, J.

Criminal Appeal No 3452 of 2019

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

Counsel for the Appellant:
Sunil Kumar

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

(A) Criminal Law -The Indian Penal Code,
1860 - Sections 304B, 316 & 498A - The
Code
of
Criminal
Procedure,
1973-
Sections 161 & 313 - Dowry prohibition
Act,1961 - Section 4 - appeal against
conviction -

Informant moved a written information - on
ground of additional demand of dowry his sister
was bitterly beaten - subjected to physical and
mental cruelty - sister of informant dragged by
accused persons - poured kerosene oil over the
body of his sister set her ablaze - 80% burnt -
record of dying declaration - one before Naib
Tehsildar - another under section 161 Cr.P.C.

(B) Criminal Law - Indian Evidence Act,
1872 - Section 32 - Dying declaration -
where there are more than one statement
in nature of dying declaration, the one
first in point must be preferred - if there
are several dying declaration the dying
declaration which is trustworthy and
reliable has to be accepted - Held - First
dying declaration which was recorded by Naib
Tehsildar on 13.06.2015 on the very next day of
occurrence is found to be more trustworthy and
reliable - corroborated with the second dying
declaration, which is in the form of statement of
injured under Section 161 Cr.P.C ,which
corroborates with the first dying declaration,
same is not contradictory - No discrepancy on
the material point so as to ascertain the role of
committing dowry death by the husband of the
victim.(Para - 29,30)

(C) Criminal Law - Indian Evidence Act,
1872 - Section 113B - Presumption as to
dowry death -presumption under Section
113B of Evidence Act is the presumption
of the law which is mandatory - Once the
ingredients of Section 304B of I.P.C is
made out the accused is deemed to have
516 INDIAN LAW REPORTS ALLAHABAD SERIES
committed the dowry death of the women
- Accused is entitled to rebutt the
statutory presumption - husband is the
beneficiary in case of dowry demand
hence he is liable to dowry death and to
give the explanation as to how the death
has occurred. (Para - 33)

HELD:- Ingredients of Section 304B of I.P.C are
fulfilled as the death of deceased took place
within seven years of marriage and death of
deceased was not in normal circumstances
rather it was homicidal, thermal burn and there
is also evidence in regard to demand by the
husband of deceased and also the evidence that
for non fulfillment of the same she was
subjected to cruelty. Harassment and cruelty
indicate that demand of dowry is found to be
continuous soon before the death, as is evident
from the evidence adduced by the prosecution.
Offence under Section 304B of I.P.C is proved
beyond reasonable doubt. Impugned judgment
of conviction and sentence passed by the court
below does not bear any infirmity and needs no
interference.(Para - 31,35)

Criminal Appeal dismissed. (E-6)

List of Cases cited:-

1. Pawan Kumar Vs St. of Har. , (1998) 3 SCC
309 (para 6)

2. Kansraj Vs St. of Punj. , (2005) SCC 207
(para 9)

3. Heera Lal Vs St. (Govt. of NCT of Delhi) ,
(2003) 8 SCC 80 (para 8)

4. Bakshish Ram Vs St. of Punj. , (2013) 4 SCC
131 (para 14)

5. Suresh Kumar Vs St. of Har. , (2013) 16 SCC
553

6. St. of A..P. Vs Raj Gopal Asawa , AIR 2004
SCW 1566

7. Ashok Kumar Vs St. of Har. , AIR 2010 2839
SC

8. Sher Singh @ Pratap Vs St. of Har. , AIR
2015 SC 980
9. Satbir Singh Vs St. of Punj. , AIR 2001 SC
2828

10. Rajendra Prasad Vs Darshan Devi Uchattam
Nyaylaya Nirnaya , Saar 2001 at 501

11. Mukeshbhai Gopalbhai Barot Vs St. of Guj. ,
A.I.R 2010 SC 3692

12. Lakhan Vs St. of M.P , (2010) 3 SCC
Criminal 942

13. Mohanlal & ors. Vs St. of Har. , (2007) 9
SCC 151

14. Suresh Vs St. of Har. , (2013) 16 SCC 553

15. Bhateri Devi Vs St. of Har. , 2011 Criminal
Law Journal 463 (P&H)

(Delivered by Hon'ble Subash Chand, J.)

 1. The instant Criminal Appeal has
been preferred on behalf of the appellantconvict Yameen against the judgment dated
10.04.2019 passed by the Additional
Sessions
Judge/Fast
Track
Court-3,
Bulandshahar in Sessions Trial No. 767 of
2015 (State of U.P Vs. Yamin and others)
arising out of Case Crime No. 452 of 2015,
under Section 304B, 498A, 316 I.P.C and
Section 4 of D.P. Act, P.S. Kotwali Dehat,
District Bulandshahar whereby the accused
Yunus and Smt. Jubaida were acquitted
from the charge levelled against them and
held appellant Yameen guilty for the
offence under Section 304B, 498A and 316
of I.P.C and Section 4 of D.P. Act and was
punished for the offence under Section
304B of I.P.C with rigorous imprisonment
of 10 years, for the offence under Section
498A was punished imprisonment of 2
years and fine of Rs. 5000/-, in default of
payment of fine an additional imprisonment
of 3 months was to be under gone, for the
offence under Section 316 of I.P.C was
punished with rigorous imprisonment of 10
years and fine of Rs. 7000/-, in default of
8 All. Yameen Vs. State of U.P.
517
payment of fine an additional imprisonment
of 6 months was to be under gone, for the
offence under Section 4 of D.P Act was
punished with imprisonment of 1 year and
fine of Rs. 5000/-, in default payment of
fine an additional imprisonment of 1 month
to be under gone. All the sentence were
directed to run concurrently.

2. The brief facts giving rise to this
criminal appeal are that the informant
Mohd. Javed moved a written information
with the police station concerned with these
allegations that his sister Razina was
married with Yameen on 19.03.2011. The
in-laws of his sister were not satisfied with
the dowry given at the time of marriage and
an additional demand of one Scorpio car
and Rs. 1 lakhs in cash was made and for
non fulfillment of the same, his sister was
subjected to physical and mental cruelty.
On 11.10.2013, on the ground of the
additional demand of dowry his sister was
bitterly beaten, F.I.R of the same was
lodged with the police station concerned by
his brother Mohd. Sazid which was register
as case crime no. 92 of 2013. In that case a
compromise was arrived at between both
the parties and it was settled that his sister
would be taken to in-laws house from the
parental house and accused persons will not
repeat their alleged demand of dowry. The
sister of informant was residing at her
parental house since 09.06.2015 and she
was sent to her in-laws house on
11.06.2015. On 12.06.2015 at 5 'O' clock
the sister of informant was dragged by the
accused
persons-
husband
Yameen,
mother-in-law Smt. Jubaida, three sister-inlaws namely Nazma, Asma and Reshma,
father-in-law Yunus, devar Yaseen and
Faizan, after having poured kerosene oil
over the body of his sister set her ablaze.
His sister was burnt 80% and with the fear
of her parents she was rushed to Adbulla
hospital of Bulandshahar, from there she
was referred to Green hospital in Meerut.
His sister was also pregnant and 5 months
child was in her womb that also died in the
womb. The informant was busy in the
treatment of his sister, therefore, could not
lodge the F.I.R and the same was lodged on
18.06.2015 but no case was registered.
Thereafter, an application was moved to the
Senior
Superintendent
of
Police,
Bulandshahar on which by the order of
S.S.P, Bulandshahar case crime no. 452 of
2015 was registered under Sections 498A,
307, 316 of I.P.C and 3/4 of D.P. Act
against the accused Yameen, Smt. Jubaida,
Yunus, Nazma, Asma, Reshma, Yaseen
and Faizan. During treatment the sister of
informant died on 15.07.2015 in Ram
Manohar Lohiya hospital New Delhi where
she
had
been
referred
earlier.
An
application in this regard was moved by
informant Javed to the Station Officer of
Kotwali Dehat.

3. The Investigating Officer after
having concluded the investigation filed
charge-sheet before the court of Magistrate
concerned against the accused Yameen,
Smt. Jubaida and Yunus under Section
498A, 316, 304B of I.P.C and 3/4 of
D.P.Act and remaining accused were
exonerated. The C.J.M, Bulandshahar took
cognizance
on
the
charge-sheet
and
committed the case to the court of Sessions
for trial.

4. The trial court took cognizance on
the
charge-sheet
and
summoned
the
accused persons and the charge was framed
against them under Sections 498A, 304B
and 316 of I.P.C and Section 3/4 of D.P.
Act and the alternate charge under Sections
302 read with 34 of I.P.C was also framed.
All the accused persons denied the charge
and claimed for trial.
518 INDIAN LAW REPORTS ALLAHABAD SERIES

5. On behalf of prosecution to prove
the charge against the accused persons in
documentary
evidence,
adduced
the
written
information
Exhibit
Ka-1,
application in regard to information of
death of Razina during treatment, Exhibit
Ka-2 and Exhibit Ka-3 death report issued
by Executive Magistrate, Exhibit Ka-4,
statement of brother of deceased Javed,
Exhibit Ka-5, letter to the Head of
Department of F.M.T.L.H.M college, New
Delhi for postmortem of deceased, Exhibit
Ka-6, death summary of Razina, Exhibit
Ka-7, death report legal information to be
added to death register, Exhibit Ka-8, chick
F.I.R, Exhibit Ka-9, G.D entry in regard to
registration of case crime no. 452 of 2015,
Exhibit
Ka-10,
dying
declaration
of
deceased Razina recorded by Nayab
Tehsildar Dev Raj Singh, Exhibit Ka-11,
charge-sheet, Exhibit Ka-12, postmortem
report
of
deceased,
Exhibit
Ka-13,
statement of Razina under Section 161
Cr.P.C recorded by female constable 767
Sheetal, Exhibit Ka-14, site plan of place of
occurrence Exhibit Ka-15.

In
oral
evidence,
examined
P.W.1-Javed,
P.W.2-Smt.
Raheesa,
P.W.3-Mohd.
Sazid,
P.W.4-Executive
Magistrate Manoj Kumar, P.W.5-Dr.
Shyam Gupta, P.W.6-S.I Charan Singh,
P.W.7-Naib Tehsildar Dev Raj Singh,
P.W.8-Abhishek Yadav, S.S.P (I.O),
P.W.9-Dr. Rishabh Kumar, P.W.10-
Constable 767 Sheetal, P.W.11-S.I Sunil
Kumar.

6. The statement of accused persons
under section 313 Cr.P.C., were recorded.
All the accused persons denied the
incriminating
circumstances
in
the
evidence against them and accused Yameen
stated that death of Razina was accidental
because the dibiya of kerosene oil had fell
down on her whereby she caught fire and
the efforts were made to extinguish the fire,
she was also rushed to the hospital for
immediate treatment. No demand of
alleged dowry was ever made. Moreover
accused Smt. Jubaida and Yunus in their
statement stated that they resided separately
from their son Yameen and no alleged
demand of dowry was ever made by them.

7. On behalf of accused persons in
defence
evidence,
examined
D.W.1Rakesh and D.W.2-Naushad.

8. The learned trial court after hearing
the contentions of the learned counsel for
the parties passed the impugned judgment
dated 10.04.2019 whereby the accused
Yunus and and Smt. Jubaida were acquitted
from the charge levelled against them while
the accused Yameen was convicted for the
offence under Sections 304B, 498A, 316 of
I.P.C and Section 4 of D.P. Act and was
punished as stated above.

9. Aggrieved from the impugned
judgment 10.04.2019, this criminal appeal
has been preferred on behalf of the
appellant Yameen on the grounds that the
impugned judgment is based on perverse
and illegal finding. There are material
contradictions in the oral testimony of
prosecution witnesses in contrast to the
documentary evidence available on record.
The F.IR of this case was lodged belated of
which there is no explanation. Out of 11
witnesses
examined
on
behalf
of
prosecution P.W.-1, Javed, P.W.-2, Smt.
Raheesa, P.W-3, Sazid are the witnesses of
the fact and they have not supported the
prosecution version. P.W-7, Dev Raj Singh,
Naib Tehsildar has not proved the dying
declaration recorded by him likewise P.W10, constable 767 Sheetal has not proved
the statement of deceased under Section
8 All. Yameen Vs. State of U.P.
519
161 Cr.P.C. That statement does not
contain thumb impression or signature of
the deceased as such the same can not be
read as dying declaration of the deceased
under Section 32 of the Evidence Act. The
defence witness D.W-1, Rakesh and D.W2, Naushad have proved that deceased died
due to accidental burn injuries. The dying
declaration recorded by P.W-7 and P.W-10
are contradictory to each other and does not
inspire the confidence of the court.

10. I have heard submissions made by
Shri Sunil Kumar, learned counsel for the
appellant and also learned A.G.A. for the
State, and perused the materials brought on
record.

11. On behalf of prosecution to prove
the charge against the accused persons in
ocular evidence examined P.W.1-Javed,
P.W.2- Raheesa and P.W.3-Mohd. Sazid.

12. P.W.1-Javed in his examinationin-chief supports the contents of the written
information and it also verified that the
written information was given by him with
his signature and during treatment his sister
died. He gave the information of the same
Exhibit Ka-2 with the police station
concerned.

In
cross-examination
by
the
defence this witness says that his sister was
never subjected to physical or mental
cruelty by her husband or any member of
in-laws house for non fulfillment of
additional demand of dowry. He got the
information in regard to burning of his
sister from some neighbour of his brotherin-law (bahnoi). Accordingly, he reached to
Abdulla hospital, Bulandshahar to see his
sister, she was admitted by the in-laws of
his sister to the Green hospital, Meerut. His
sister did not tell him that she was set
ablaze by any inmate of in-laws house. The
occurrence took place in her in-laws
house, he was not present there. From
Green hospital, Meerut his sister was also
referred to Delhi hospital where she
underwent treatment and during treatment
his sister died. He lodged the F.I.R at the
behest of his family and persons of the
village.

During trial this witness was
declared hostile. In cross-examination by
prosecution, this witness had stated that the
statement
which
he
has
given
on
15.01.2016 in his examination-in-chief and
the statement which he has given today on
09.02.2016 both are correct.

13. P.W.-3, Smt. Raheesa, mother of
the deceased in her statement says that her
daughter Razina never made complaint in
regard to demand of the alleged dowry from
her, she was never subjected to cruelty for the
alleged demand of dowry and she caught fire
as the kerosene oil dibiya fell upon the gas
oven. Her daughter was not set ablaze by any
persons of in-laws house after having poured
kerosene oil on her. This witness was also
declared hostile. In cross-examination, this
witness denied the statement under Section
161 Cr.P.C which was given to the
Investigating Officer.

14. P.W.-3, Mohd. Sazid in his
examination-in-chief says that deceased was
never subjected to cruelty by any members of
in-laws for the alleged demand of dowry and
she caught fire due to falling of the kerosene
oil dibiya on the gas oven. This witness was
also declared hostile as she had denied her
own statement under Section 161 Cr.P.C.

15. On behalf of prosecution in regard
to prove the cause of death of deceased has
examined
P.W.4-Manoj
Kumar,
520 INDIAN LAW REPORTS ALLAHABAD SERIES
Executive Magistrate. This witness says
that on 15.07.2015 he received a call from
police outpost of Ram Manohar Lohiya
hospital, Delhi to conduct the inquest and
postmortem of a female who had died
during treatment. Accordingly, he reached
to the mortuary and in his presence the
inquest report was prepared by S.I
Devendra Kumar on his direction and same
was also signed by him. He also recorded
the statement at 12:15 p.m of P.W.-1,
Javed, brother of the deceased. This
witness had also signed over his own
statement and verified his statement, which
was marked as Exhibit Ka-5. From the
perusal of the in this inquest report Exhibit
Ka-3 and postmortem report Exhibit Ka-4
the cause of death is shown as burn
injuries.

16. On behalf of prosecution P.W-10,
constable 767 Sheetal in her statement
says that on 02.07.2015 she was deployed
as female constable with the Police Station
Kotwali
Dehat,
Bulandshahar.
She
recorded the statement of injured Razina on
that day.

17. P.W-11, S.I. Sunil Kumar, the
first Investigating Officer in his statement
says that on 02.07.2015 female constable
767 Sheetal interrogated injured Razina and
videography of her statement was also
made. The statement of injured under
Section 161 Cr.P.C was perused by him
and entry of the same was also made in the
G.D.

This
witness
in
his
crossexamination also says that while the female
constable recorded the statement of injured,
he was very much present there, he also
made
queries
in
between,
he
has
videography
and
voice
recording
of
injured.

18. On behalf of prosecution in
medical evidence examined P.W-5, Dr.
Shyam Gupta and P.W-9, Dr. Rishabh
Kumar.

P.W-5, Dr. Shyam Gupta in his
statement says that he was Senior resident
in Delhi hospital. Injured Razina was
admitted on 15.06.2015 at 3 'O' clock of
day time and it was told that she was set
ablaze by her in-laws. During treatment of
15 days her condition was deteriorated and
on 15.07.2015 at 7:30 a.m Razina died
during treatment. Her death summary was
prepared by him, her death report was also
prepared by him which is Exhibit Ka-8, she
was 70% burnt.

P.W-9, Dr. Rishabh Kumar
proved the postmortem report of deceased
Razina Exhibit Ka-13 and says that Razina
was 80% superficial to deep thermal burn.
Cause of death was due to septicemia shock
and thermal burn infection.

19. Section 304B of I.P.C reads as
under:-

"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).
8 All. Yameen Vs. State of U.P.
521

(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."

20. The Hon'ble Apex Court in
Pawan Kumar Vs. State of Haryana
(1998) 3 SCC 309 (para 6), Kansraj Vs.
State of Punjab (2005) SCC 207 (para 9),
Heera Lal Vs. State (Govt. of NCT of
Delhi) (2003) 8 SCC 80 (para 8),
Bakshish Ram Vs. State of Punjab (2013)
4 SCC 131 (para 14) had indicated the
following ingredients of Section 304B of
I.P.C:-

(a) that the married women had
died
otherwise
than
under
normal
circumstances;

(b) such death was within seven
years of marriage;

(c)
the
prosecution
has
established that there was cruelty or
harassment by her husband or near relative
of her husband in connection with demand
of dowry soon before death.

21. The Hon'ble Apex Court in
Suresh Kumar Vs. State of Haryana
(2013) 16 SCC 553 pargraph 27 held:

"In death occurrence otherwise
'than under normal circumstances', can be
homicidal, suicidal or accidental."

The Hon'ble Apex Court in State
of Andhra Pradesh Vs. Raj Gopal
Asawa, AIR 2004 SCW 1566 held:

" definition of dowry is not
restricted to agreement or demand for
payment of dowry before or at the time of
marriage;
but
also
includes
demand
subsequent to marriage."

The Hon'ble Apex Court in
Ashok Kumar Vs. State of Haryana, AIR
2010 2839 SC held:

"husband or relative will be
deemed to have committed offence under
Section 304B of I.P.C if ingredients of the
offence have been satisfied by deemed
fiction of law."

The Hon'ble Apex Court in Sher
Singh @ Pratap Vs. State of Haryana,
AIR 2015 SC 980 held:

"word soon before death is not to
be interpreted in terms of days or months
or
years.
But
necessarily
indicating
domain of dowry should not be stale, it
should be continuing cause of death under
Section 304B of I.P.C or under Section
306 I.P.C."

The Hon'ble Apex Court in
Satbir Singh Vs. State of Punjab, AIR
2001 SC 2828 held:

"There should be nexus between
the death of wife and dowry related
harassment inflicted on her. If the interval
elapsed is wide, court would guage the
immediate cause of her death."

22. In the case in hand, so far as the
date of marriage of Razina with Yameen is
concerned, same is admittedly 19.03.2011.
So far as the demand of the dowry and for
non fulfillment of the same, harassment or
cruelty is concerned P.W-2, Raheesa,
mother of deceased, P.W-3, Mohd.
Sazid, brother of deceased both have
turned hostile during trial and have not
supported the prosecution version.
522 INDIAN LAW REPORTS ALLAHABAD SERIES

23. So far as the testimony of P.W-1,
Javed who is informant and brother of
deceased
is
concerned,
he
in
his
examination-in-chief proved the written
information Exhibit Ka-1 and also the
application in regard to the death of his
sister Exhibit Ka-2. This witness in
examination-in-chief
also
proved
the
contents of prosecution story as narrated in
the written information. This statement of
P.W.1-Javed was recorded on 15.01.2016.
On 09.02.2016, P.W.1-Javed was crossexamined. In cross-examination by defence
P.W.1-Javed gave the statement against the
prosecution and therefore, was declared
hostile by the trial court. On the very day
on behalf of prosecution, cross-examination
of P.W.1-Javed was done and he admitted
that the statement given by him on
15.01.2016 and today i.e on 09.02.2016,
both are correct. Again this witness was
cross-examined
by
prosecution
on
03.11.2018 and this witness stated that the
statement given by him on 09.02.2016 was
true.

The testimony of P.W.1-Javed
can not be discarded in toto. The testimony
of this witness will be relied by the court
because
this
witness
has
stated
on
09.02.2016 that the statement given by him
on 15.01.2016 and 09.02.2016 are correct.
The whole prosecution case has been
deposed by this witness in his examinationin-chief.

His testimony becomes tainted,
therefore, it requires corroboration.

24. The statement of P.W.1-Javed was
also recorded by P.W-5, Manoj Kumar,
Executive Magistrate which is Exhibit
Ka-5. This statement is signed by Javed
and also by P.W-5, Manoj Kumar,
Executive Magistrate. This statement has
been proved by P.W-5, Manoj Kumar,
Executive Magistrate and in this statement
it is stated that demand of Rs. 1 lakh was
made by brother-in-law (jija) and for non
fulfillment of the same his sister was
beaten. Earlier the settlement was also
arrived at in presence of persons of the
village and F.I.R was also lodged for the
same at that time, and therefore, this act of
burning the in-laws of his sister are
responsible.

Although P.W.1-Javed has been
examined on behalf of prosecution and
during examination P.W-1, Javed was not
examined in regard to this statement
Exhibit Ka-5 since this statement was
signed by P.W.1-Javed himself, which was
marked as Exhibit Ka-5 and has been
proved by P.W.5-Manoj Kumar, Executive
Magistrate therefore, the testimony of
P.W.5-Manoj Kumar, Executive Magistrate
also corroborates this fact that the demand
of Rs. 1 lakh in additional dowry was made
by husband of the deceased and for non
fulfillment of the same she was subject to
cruelty. Earlier from the occurrence of
burning one more incidence took place in
regard to the same F.I.R was also lodged
and a settlement was also arrived at
between the parties in presence of persons
of village.

25. On behalf of prosecution there is
dying declaration of deceased. The first
dying declaration is dated 13.06.2015
which is Exhibit Ka-11, this dying
declaration has been proved by P.W-7, Dev
Raj Singh, Naib Tehsildar. This witness
recorded the dying declaration of injured
Razina on the telephonic directiion of
District Magistrate, Meerut.

26. The learned counsel of appellant
contended that only the execution of the
8 All. Yameen Vs. State of U.P.
523
dying declaration Exhibit Ka-11 was
proved by this witness P.W.7-Dev Raj
Singh, Naib Tehsildar but the contents of
the same cannot be read in evidence
because the same were not deposed by this
witness.

This
contention
of
learned
counsel for the appellant is not sustainable
because P.W.7-Dev Raj Singh, Naib
Tehsildar has specifically deposed that the
dying declaration of injured Razina was
recorded by him while she was in fit state
of mind. Dr. Mumtaz Ahmad also certified
her mental fitness at 12:35 a.m on
13.06.2015, thereafter, at 12:40 a.m. he
recorded the statement of injured Razina,
whatever Razina told him same was
recorded by him and this dying declaration
is in his hand writing and signed by him
and by Dr.Mumtaz Ahmad and R.T.I of the
injured Razina was also verified by this
witness. As such there was no need to
depose the contents of dying declaration by
P.W.7-Dev Raj Singh, Naib Tehsildar. It
is also noteworthy here that P.W.7-Dev
Raj Singh Naib Tehsildar was examined
during trial, no cross-examination was
made on behalf of the defence counsel in
regard to the veracity of contents of the
dying declaration.

The Hon'ble Apex Court in
Rajendra Prasad Vs. Darshan Devi
Uchattam Nyaylaya Nirnaya Saar 2001
at 501 held:

"If the opposite party says that
statement of any witness to be false, his
duty is to cross-examine the witness on that
point; otherwise the statement of witness
shall be accepted."

27. From the perusal of this dying
declaration, it is found that the injured
Razina (now deceased) has assigned the
role of pouring kerosene oil and litting fire
to her husband Yameen and also stated that
her husband made demand of Rs. 1 lakh in
dowry from her, which could not be
fulfilled by her father, consequently at 5 'O'
clock of evening her husband poured
kerosene oil over her body and lit fire.

28. Second dying declaration on
which prosecution has relied is the
statement of Razina recorded under Section
161 Cr.P.C on 02.07.2015 by P.W.10constable 767 Sheetal, this witness says
that she recorded the statement of Razina
on the direction of Darogaji on 02.07.2015.
In this statement injured Razina stated that
mother-in-law and three sister-in-laws
caught hold of her, father-in-law, brotherin-laws and husband poured kerosene oil
over her body and her husband lit fire with
a match and it is also stated that demand of
Rs. 1 lakh was made from her, she was sent
to her parental house and thereafter on
11.06.2015 she was brought to her in-laws
house
and
on
12.06.2015
for
non
fulfillment of demand of Rs. 1 lakh and
Scorpio
car,
she
was
burned.
This
statement has been proved by P.W.10female constable 767 Sheetal. Certainly
on this statement there is no signature or
thumb impression of Smt. Razina.

This very statement was recorded
by P.W-10, constable 767 Sheetal on
direction of the Investigating Officer and
contents of the same were entered in the
G.D by the Investigating Officer. This fact
has been proved on behalf of prosecution
by the witness P.W-11, S.I. Sunil Kumar,
Investigating Officer. This witness has
deposed that on 02.07.2015 the statement
of victim Razina was recorded by P.W.10constable 767 Sheetal in his presence
videography of the same was prepared.
524 INDIAN LAW REPORTS ALLAHABAD SERIES
After perusal of the contents of this statement
under Section 161 Cr.P.C same was entered
by him in the G.D. This witness also said that
videography and voice recording of the
victim were in his custody. As such, getting
no signature or thumb impression of the
victim on this statement can not be said to
be fatal as the statement of victim was
recorded under Section 161 Cr.P.C and
same need not be signed by the witness in
view of the Section 162 Cr.P.C.

The Hon'ble Apex Court in
Mukeshbhai Gopalbhai Barot Vs. State of
Gujrat, A.I.R 2010 SC 3692 held:

"the
statement
of
a
persons
recorded under Section 161 Cr.P.C would be
treated as dying declaration after his death."

29. The learned counsel for the appellant
also
submitted
that
these
two
dying
declarations are contradictory to each other
and same cannot be relied upon. This
contention of learned counsel for the
appellant is not sustainable because if there
are two contradictory dying declarations
the
dying
declaration
which
is
corroborated by other evidence can be
relied upon.

The Hon'ble Apex Court in
Lakhan Vs. State of M.P (2010) 3 SCC
Criminal 942 held:

"two
contradictory
dying
declaration, the ascertainment of the reliable
dying declaration can be made which one of
the dying declaration is corroborated by
other evidence to greater extent. Conviction
can be confirmed on the same."

The Hon'ble Apex Court also in
Mohanlal and others Vs. State of
Haryana (2007) 9 SCC 151 held:

"where there are more than one
statement in nature of dying declaration,
the one first in point must be preferred. Of
course
if
there
are
several
dying
declaration the dying declaration which is
trustworthy
and
reliable
has
to
be
accepted."

30.
Therefore,
the
first
dying
declaration which was recorded by P.W7, Dev Raj Singh, Naib Tehsildar on
13.06.2015 on the very next day of
occurrence
is
found
to
be
more
trustworthy and reliable and same is also
corroborated with the second dying
declaration, which is in the form of
statement of injured Razina under
Section 161 Cr.P.C and same was
recorded by P.W-10, constable 767
Sheetal in presence of Investigating
Officer P.W-11, Sunil Kumar and entry
of the same was also made in the C.D,
which corroborates with the first dying
declaration, same is not contradictory.
There is no discrepancy on the material
point so as to ascertain the role of
committing dowry death by the husband of
the victim.

31. Therefore, in view of the evidence
on record, the ingredients of Section 304B
of I.P.C are fulfilled as the death of
deceased also took place within seven years
of marriage and death of deceased was not
in normal circumstances rather it was
homicidal, thermal burn and there is also
evidence in regard to demand of Rs. 1 lakh
and Scorpio car by the husband of deceased
and also the evidence that for non
fulfillment of the same she was subjected to
cruelty. This harassment and cruelty
indicate that demand of dowry is found to
be continuous soon before the death, as is
evident from the evidence adduced by the
prosecution. As such the offence under
8 All. Yameen Vs. State of U.P.
525
Section 304B of I.P.C is proved beyond
reasonable doubt by the prosecution.

32. Now the burden of proof shifts
upon the accused. Section 113B of the
Evidence Act reads as under:

"113B. 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."

33. The Hon'ble Apex Court in
Suresh Vs. State of Haryana (2013) 16
SCC 553 in paragraph 13 held:

"that
the
presumption under
Section 113B of Evidence Act is the
presumption of the law which is mandatory.
Once the ingredients of Section 304B of
I.P.C is made out the accused is deemed to
have committed the dowry death of the
women. The accused is entitled to rebutt
the statutory presumption."

The Punjab and Haryana High
Court in Bhateri Devi Vs. State of
Haryana, 2011 Criminal Law Journal
463 (P&H) held:

"husband is the beneficiary in
case of dowry demand hence he is liable
to
dowry
death
and
to
give
the
explanation as to how the death has
occurred."

34. On behalf of accused to rebut
this statutory presumption has been taken
in statement under Section 313 Cr.P.C
that the dibiya of kerosene oil fell upon
Razina and as a result of that she caught
fire and it was an accidental. Same kind
of the suggestion were given by defence
counsel to the prosecution witnesses.
More-over, in defence evidence D.W-1,
Rakesh
and
D.W-2,
Naushad
were
examined. Both the witnesses have stated
that the dibiya of kerosene oil fell on the
gas oven as a result of which Razina
caught fire. Both the witnesses in their
cross-examination says that when Razina
caught fire they were not present at the
place of occurrence, they did not see
the occurrence from their own eyes.
Therefore,
the
testimony
of
these
witnesses is not admissible in evidence,
as such, accused has also failed to rebut
this legal presumption.

35. In view of the over all
assessment and re-appreciation of the
evidence on record, it is established that
the prosecution had proved its case
beyond
all
reasonable
doubts.
The
impugned judgment of conviction and
sentence passed by the court below does
not bear any infirmity and needs no
interference.
Accordingly,
criminal
appeal deserves to be dismissed.

36. Accordingly, Criminal Appeal is
dismissed. Judgment dated 10.04.2019
passed
by
the
Additional
Sessions
Judge/Fast Track Court-3, Bulandshahar
in Sessions Trial No. 767 of 2015 (State
of U.P Vs. Yameen and others) is hereby
affirmed. The appellant is in jail. He is
directed to serve out the remaining
sentence as has been awarded by the trial
court.

37.

Let
a
copy
of
this
judgment/order be certified to the court
concerned for necessary information and
follow up action.
526 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)08ILR A526
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.08.2021

BEFORE

THE HON'BLE AJAY TYAGI, J.

Criminal Appeal No 4320 of 2009

Basant Lal Pal & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ajatshatru Pandey, Sri Akhilesh Kumar,
Sri Anees Ahmad, Sri J.S.P. Singh, Sri R.K.
Singh, Sri S.K. Pal, Sri Shiv Nath Singh

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

(A)
Criminal
Law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Sections 147, 342/149, 394 & 395 - The
Code of Criminal procedure, 1973
-
Section 111,151, 107 , 116 & 197 -
Prosecution of judges and public servants
.
Appellant No.2 died and appeal abated against
him - Complainant had Rs.2839/- as revenuecollection with him - amount snatched by police
along with government record - constable and
three other constables started beating him by
fist, legs and rule - locked him up in lockup -
facts
not
proved
by
the
prosecution
-
government-peon was with complainant -
material witness - not produced by the
prosecution - court below concluded - a class-IV
employee and could not dare to depose against
police personnel - prosecution withheld best
witnesses - no explanation why best witnesses
were not produced - wrongful confinement not
made out - Concerned SDM issued notice under
Section 111 Cr.P.C. - after proceedings notice
was dropped - if after judicial consideration
notice was dropped by SDM then it cannot be
said
that
police
wrongfully
confined
the
complainant and his son at police-chauki .
HELD:-Prosecution witnesses not at all reliable
witnesses.
Material
witness
Tehsildar
and
alleged eye-witness (peon) were withheld by the
prosecution and they were not produced before
the learned trial court. Trial court failed to
appreciate the evidence on record correctly and
judiciously
and
based
its
findings
and
conclusions only on the basis of assumptions
and
presumptions.
Hence,
findings
are
perverse.(Para - 27)

Criminal Appeal allowed. (E-6)

(Delivered by Hon'ble Ajai Tyagi, J.)

 1. This appeal has been preferred
against the judgment and order passed by
Additional Sessions Judge/Special Judge
(Dacoity Affected Area), Lalitpur in
Sessions Trial No.03 of 1998 (State vs.
Basant Lal and another) under Sections
147, 342/149, 395 IPC, by which accused
appellants-Basantlal Pal and Ghanshyam
were convicted under Sections 394 and 342
IPC and sentenced for 10 years RI and
Rs.10,000/- fine under Section 394 IPC and
one year RI under Section 342 IPC. During
the pendency of this appeal, Ghanshyamappellant No.2 died and appeal was abated
against him.

2. In this case, initially First
Information Report bearing Case Crime
No.23/1993 was filed against five accused
persons namely, Basantlal Pal, Ghanshyam,
Ram
Narain,
Rajendra
Singh
and
Rameshwar Dayal (all police personnel).
Investigating Officer filed final report in
court due to not finding any evidence. Final
report was accepted by learned Magistrate
against which a revision was preferred
before learned Sessions Judge. Learned
Sessions Judge, allowed the revision and
directed
the
learned
Chief
Judicial
Magistrate to decide the matter afresh.
Learned CJM took cognizance. In the
meantime,
complainant
also
filed
a