Achchhe Lal And Another vs State Of U.P. And Another
2023 Latest Caselaw 6970 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 17.11.2022
 
Judgment delivered on 3.3.2023
 

 

 
Court No. - 50
 

 
Case :- CRIMINAL APPEAL No. - 2675 of 2021
 

 
Appellant :- Achchhe Lal And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Vijai Prakash Yadav,Mohd Raghib Ali,Mohd.Raghiv Ali
 
Counsel for Respondent :- G.A
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

1. Heard learned counsel for the appellants and learned A.G.A. for the State and perused the lower court record.

2. Instant Crl. Appeal has been preferred by convict appellants Achchhe Lal and Prema Devi against judgment and order dated 19.2.2021 passed by learned Additional Sessions Judge/ FTC (offence against women), Jaunpur passed in S.T. No. 263 of 2017 arising out of Case Crime 292 of 2017, under Section 498-A, 304-B IPC and Section 3/4 D.P. Act, P.S. Sujanganj, District Jaunpur. By the impugned judgment and order, learned Trial Court has convicted the appellants for charge under Sections 498-A, 304B IPC and Section 4 of D.P. Act. One year imprisonment and Rs. 2,000/- fine for charge under Section 498-A IPC, 10 years imprisonment for charge under Section 304B IPC and six months imprisonment and Rs. 1,000/- fine for charge under Section 4 D.P. Act and all the sentences were directed to run concurrently.

3. Factual matrix of the case relevant for present appeal is that informant Udayraj Bind, who is r/o Umrikhurd, P.S. Maharajganj, District Jaunpur, lodged an F.I.R. on the basis of written report Ext. Ka-1 at P.S. concerned with averment that his niece Roshni Bind was married with Achchhey Lal Bind S/o Prahland Bindh, R/o village Sujahniya, P.S. Sujanganj, District Jaunpur, on 24.4.2014. Husband and in-laws of his niece were not satisfied with the gifts and dowry given which were given to them in marriage and they started demanding additional dowry to the tune of Rs. 5,00,000/- from Roshni and on non-fulfillment of their demand of dowry, they used to beat and torture her. On 24.5.2017 she was badly tortured by accused persons Achchhey Lal (husband), Rati Lal (husband's brother), Aneeta (sister-in-law) and Prema Devi (mother-in-law). He got apprised of this fact on 24.5.2017 in the evening telephonically. He visited the matrimonial home of his niece by taking a hired vehicle but the accused persons refused to send her off to her parental place. They snatched the child of 18 months from her lap and for that reason she could not accompany the informant to visit her parental home. The informant and his companions returned home thereafter. However, on 26.5.2017 at 12:00 noon he was informed that his daughter (niece) has been burnt. When the informant and his family members reached on the spot, they were apprised of the fact that she was burnt and she has been admitted to P.H.C. Sujanganj and thereafter she was referred to District Hospital for Jaunpur. Informant side visited the victim at P.H.C. Sujangaj where she stated that her husband Achchhey Lal Bind, father-in-law Prahlad, brother-in-law Rati Lal, sister-in-law Aneeta and mother-in-law Prema had burnt her after pouring kerosene oil on her body. Victim died on way to District Hospital. The informant lodged an F.I.R. at P.S. concerned on 26.5.2017 at 16:45 hours.

4. The inquest on dead body of the deceased was conducted on 27.5.2017 between 10:00 am to 12:00 hours. Post mortem of the deceased was conducted by Dr. R.P. Vishwakarma (PW-5) on 27.5.2017 at 3:35 PM. Doctor has stated in his post-mortem examination report that in his opinion, cause of death is due to shock as a result of severe flame burn injury, approximately 98% (ante-mortem).

5. Investigating Officer recorded statements of witnesses of fact Naib Tehsildar Sri Ram Narain as PW-8, Dr. Rajendra Prasad Vishwakarma as PW-5, other witnesses of fact and formal witnesses and finding complicity of accused persons submitted two charge sheet, one against Achchhey Lal, Prahlad and Rati Lal and other against Aneeta and Prema Devi under Sections 498-A, 304B IPC and 3/4 D.P. Act on 20.8.2017 and 13.11.2018 respectively.

Learned magistrate took cognizance of the offence on the basis of charge sheet and summoned accused persons to face trial. Charge sheeted accused persons were enlarged on bail except accused Achchhey Lal and Prema Devi. Learned Magistrate committed the case for trial to Court of Sessions finding the offence being exclusively trial by the Court of Sessions. On commencement of Session Trial, learned Court concerned framed charges under Sections 498-A, 304B and 3/4 D.P. Act against Achchhey Lal, Prahlad and also alternative charge under Section 302/149 IPC against five accused persons. Case of co-accused Rati Lal (brother-in-law of the victim) was referred for trial to J.J.B as he was found juvenile in conflict of law.

6. Trial Court examined PW-1 Uday Raj Bind (informant), PW-2 Pappu @ Hari Shankar (father of the deceased), PW-3 Heerawati @ Kalawati (mother of the deceased), PW-4 Arjun (other uncle of the deceased), PW-5 Dr. Rajendra Prasad Vishwakarma, who conducted post-mortem on the body of the deceased, PW-6 Mandhata Pratap Singh (then Naib Tehsildar) who conducted inquest on the dead body of the deceased on 27.5.2015 at mortuary of District Hospital, Jaunpur, PW-7 Santosh Kumar Shukla (Naib Tehsildar), who recorded dying declaration of the deceased on 26.5.2017 at C.H.C., Sujanganj, PW-8 Ram Narayan Srivastava( then Head Mohrrir) who is author of Chick F.I.R. and extracts of G.D. of registration of case on the date of lodging of F.I.R., PW-9 Vinay Kumar Dwivedi (C.O.), who investigated the case and filed charge sheet against accused Achchhey Lal, Prahlad and Rati Lal dated 20.8.2017 before the Court, PW-10 Uma Shankar Singh C.O.), who carried out initial investigation in the case and PW-11 Digvijay Singh (then C.O.), is last investigating officer of the case who carried out remaining investigation after transfer of Sri Vimay Kumar Dwivedi (PW-9) and filed charge sheet against Prema Devi, Roshni and Aneeta under Section 498-A and 304B IPC and 3/4 D.P. Act.

7. After conclusion of prosecution evidence, statement of accused persons Achchhey Lal, Rati Lal, Prema Devi, Prahlad, Roshni and Aneeta was recorded by the Trial Court under Section 313 Cr.P.C. in which they stated that witnesses have falsely deposed against them. PW-7 Naib Tehsildar recorded dying declaration of the victim/deceased in conspiracy with informant and police. The case was proceeded against them to extract the money after death of the deceased Roshni.

8. In defence evidence accused persons examined DW-1 Sita Devi, mother-in-law of accused-Roshni and DW-2 Ram Bali, who is father-in-law of accused Aneeta, DW-3 Rama Pati, who is neighbour of accused Prahlad where he stalls a tea shop.

9. Trial Court heard the arguments of learned counsel for the State as well as defence counsel and after appreciation of evidence on record, gave verdict against accused Achchhey Lal, Prema Devi for charge under Section 498-A, 304B IPC and Section 3/4 D.P. Act and held that prosecution has exclusively proved charges against these two accused persons beyond reasonable doubt, however, learned Trial Court concluded that charge levelled against accused Prahlad, father-in-law of the deceased, Roshni and Aneeta (married sister-in-law of the deceased) have not been proved beyond reasonable doubt and acquitted them of all charges levelled against them during trial. Present appeal has been preferred by convict accused persons feeling aggrieved by the judgment and order passed by learned Trial Court.

10. Learned counsel for the appellants submitted that in F.I.R. general and omnibus allegations are made by the informant against all accused persons. There is no specific allegation against accused-appellants. In dying declaration of the victim, main allegation is made against co-accused Rati Lal (dewar of the deceased) regarding whom it is stated that he ignited a match box and burnt the deceased, however, learned Trial Court in impugned judgment has not placed reliance on said dying declaration recorded by PW-7. There is no allegation or evidence regarding demand of dowry prior to or during marriage against accused-persons. Allegations of demand of dowry after marriage are afterthought and concocted. Learned Trial Court has acquitted the co-accused Prahlad (father-in-law of the deceased) on the ground that on the basis of evidence adduced it is found that he runs a tea shop in some other village and it is natural that he would be living outside home through out the day and in these circumstances the allegation of demand of dowry and subjecting the victim to cruelty is not found reliable qua him. Learned Trial Court has also observed that statement of PW-4 is not in consonance of other witnesses of fact who are his family members. There is no document in support of the theory that deceased was referred to District Hospital, Jaunpur. Learned Trial Court has relied upon defence version that married sister-in-law of the deceased Aneeta and Roshni were not present on the date of incident, inasmuch as, Roshni was married shortly of the fateful incident in present case. Appellants are held in jail custody from the stage of investigation. Learned Trial Court has miserably failed to appreciate the evidence on record while convicting and sentencing the present appellants and mis-appreciated the evidence adduced during trial. There is no cogent and reliable evidence against the appellants to support their conviction for charges allegedly proved against them. He further submitted that deceased's side witnesses never made any complaint after marriage of the deceased with accused Achchhey Lal till her unfortunate death, to any person or Authority regarding demand of dowry or torture against accused persons. In fact, deceased has committed suicide by pouring kerosene oil over her body and burnt herself. Accused Achchhey Lal was outside home as he used to work as labourer at some other place. The other family members were also not present at the time of incident, therefore, they could not see her when she burnt herself but as soon as they noticed the said incident, they attempted to save her and brought her to C.H.C., Sujanganj from where she was sent to District Hospital, Jaunpur but died on way to District Hospital. They informed parental side of the deceased at the earliest and members of her parental side also reached at C.H.C. Sujanganj where she was lying in critical condition and she was not in a position to speak any person because of having 98% burn injury and she was unconscious. In alleged dying declaration also no specific role has been assigned to present appellants.

11. Per contra, learned A.G.A. appearing for the State opposed and contended that the grounds taken in present appeal are not sustainable. The case of prosecution has been proved by cogent evidence of witnesses of fact as well as the statements of doctor who conducted post-mortem of the deceased. Executive Magistrate conducted inquest on the dead body and recorded statements of I.O.s who investigated the case and submitted charge sheet against accused persons. The acquittal of co-accused persons cannot be a ground for acquittal of present appellants as learned Trial Court distinguished the case of acquitted and convicted the accused persons. The judgment of learned Trial Court is based on evidence on record and it requires no interference at appellate stage. Allegations against accused persons are of very serious nature and there is cogent evidence regarding their complicity in the offence of demand of dowry, practising matrimonial cruelty against the deceased and causing dowry death of the deceased on the date and time of the incident who admittedly died in her matrimonial home i.e. home of accused persons.

12. During trial of the case following documents were proved by evidence of witnesses who appeared before the Trial Court.

Ext. Ka-1

Written report

By PW-1

Ext. Ka-2

P.M. report of the Roshni

By PW-5

Ext. Ka-3

Inquest report

By PW-6

Ext. Ka-4 and Ka-8

Police papers related to P.M. of the deceased

By PW-6

Ext. Ka-9

Dying declaration of the deceased

By PW-7

Ext. Ka-10

Chick F.I.R. dated 26.5.2017

By PW-8

Ext. Ka-11

Extracts of G.D. dated 26.5.2017

By PW-8

Material Ext.-1

Marriage invitation card

By PW-9

Ext. Ka-12

Charge Sheet against Achhey Lal and others

By PW-9

Ext. Ka-13

Site plan

By PW-10

Ext. Ka-14

Charge Sheet against accused Aneeta and others

By PW-11

13. In present case appellants are convicted for charge under Section 498-A, 304-B IPC and Section 4 D.P. Act and sentenced to various terms of imprisonment and fine awarded in impugned judgment.

14. Section 498-A IPC provides as under:-

"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."

15. Present case is based on circumstantial evidence as it is admitted that there is no eye-witness of the incident. The main and major charge framed against the appellants and other accused persons in present case by trial court is that of Section 304-B IPC. The motive of commission of offence by the accused persons is suggested by prosecution is that of demand of dowry and non-fulfillment thereof. Learned trial Court has not placed reliance on dying declaration of the deceased recorded by Santosh Kumar Shukla, Naib Tehsildar, which is marked as Ext. Ka-9, wherein she has stated that on 26.5.2017, the date of incident, she was brought to C.H.C., Sujanganj in burnt condition by her father-in-law Prahlad and husband of named accused Aneeta at around 1:25 pm. In this dying declaration she has stated that on that date her father-in-law Prahlad, mother-in-law Prema Devi, sisters-in-law Roshni and Aneeta and brother-in-law Rati Lal picked quarrel with her, which continued up to afternoon. Her husband poured kerosene oil upon her and her devar caught hold of her and ignited matchstick and set her ablaze due to which her body started burning. It is further stated that she did not know as to who brought her to hospital. This dying declaration is signed by PW-7 Satnosh Kumar Shukla, Naib Tehsildar, who has proved this document by her sworn testimony in which he has stated that he had recorded her dying declaration on being informed by S.D.M., Machhlishahar, Jaunpur. For recording of statements of the victim, he visited C.H.C., Sujanganj, District Jaunpur, where injured was lying in burnt condition and her treatment was being carried out in supervision of doctor. She was in a position of hearing, speaking and understanding. He read over the statement after recording the same to victim as her whole body was burnt and she was unable to affix her signature or thumb impression on her statement.

16. In cross-examination, this witness has stated that he had taken a certificate from doctor who was attending on victim, regarding her ability to speak, but said certificate is not placed on record. He recorded statement at 3:10 pm on 26.5.2017. He admitted in cross-examination that there is overwriting in timing of recording of statement.

17. PW-5, Dr. R.P. Vishwakarma, has stated in his evidence that he was posted as Sr. Medical Officer at Machhlishahar on 27.5.2017. He started post-mortem examination on the dead body of the deceased Roshni, wife of Achchhey Lal on 27.5.2017 at 3:35 pm onwards. The dead body was identified by a Constable of P.S. Machhlishahar, District Jaunpur, who had also brought papers relating to inquest of the deceased. In post-mortem examination superficial and deep flame burn injuries were found present throughout body except both sole of feet. Dust particles were present on upper respiratory track. Line of redness was found. The approximate time of death was one day before. In stomach, pale and semi digested food particles were present. In large intestine faecal matter was present. In his opinion cause of death was due to shock as a result of sever flame burn injury, approximately 98% (ante-mortem). Dr. has stated that burn injuries found on the person of the deceased were sufficient to cause death.

18. Prosecution has produced four witnesses of fact to prove its case out of whom PW-1 Udairaj Bind is informant and uncle of the deceased, who is author of the written report which found basis of lodging of F.I.R. against accused persons with regard to present incident. He has proved written report as Ext. Ka-1 during his examination before the Court. This written report is scribed by one Swaminath Pandey, who is his co-villager. PW-1 has stated that Swaminath Pandey also accompanied him when he visited hospital after coming to know that his niece was burnt. The report was scribed by Swaminath Pandey on his dictation. He is in total three brothers. The elder brother Harishankar is father of the deceased who was having four issues, two sons namely Arun and Ajit and two daughters namely Roshni (deceased) and Archna. Roshni was married to Achchhey Lal (accused) on 24.4.2014. They had given Rs. 1,00,000/- cash and valuable in marriage of Roshni. Roshni gave birth to a son namely Himanshu who was around 18 months of age at the time of incident. Accused persons Achchhey Lal, Rati Lal, Prema Devi, Aneeta and Roshni started demanding dowry through Roshni after birth of Himanshu and began to torture her for dowry. On 24.5.2017 Roshni called his elder brother Arjun (PW-4) and told that accused persons were beating her and called him to come and take her along with him then he visited the house of accused persons with his brother Arjun. When Roshni got prepared to go with them at her parental place, accused persons had snatched the child from her lap and for that reason she declined to go with them without her child and the witnesses came back to their home empty handed. After two days on 26.5.2017 at 12:00 hours they received a phone call from accused persons that their daughter got burn. The witnesses and his family members reached the place of victim, but while reaching there they found that none was present there. The people of the neighbourhood told them that family members of Roshni had taken her to hospital, then they visited hospital and found that Roshni was lying there. She was alive and able to speak. When they spoke to her, she stated that Achchhey Lal had poured kerosene oil on her persons and devar Rati Lal had ignited a matchstick on her person. Her mother-in-law Prema Devi, sister-in-law Aneeta and Roshni had caught hold of her. Her statement was recorded by magistrate in the hospital. She was treated in the hospital but observing her condition, doctor of C.H.C. referred her to District Hospital, Jaunpur but she breathed her last in District Hospital, Jaunpur on same date.

19. In cross-examination this witness has stated that C.H.C. and P.S. both are lying in nearby at town Sujanganj. He stated that all the three brothers Udairaj, Harishankar and Arjun resided together. At the time of marriage Roshni was 19 years of age. His brother Arjun visited place of accused persons in connection with marriage of Roshni. Prahlad has a shop of tea and betel at Belwar market. His home lies 2 km. away from Belwar market. Prahlad sits in his shop in day hours and visits her home in the evening after closing the shop. His brother Harishankar (father of the deceased) works for gain in Mumbai. The marriage of Roshni was settled by his brother Arjun. At the time of marriage accused persons had not made any demand of dowry. The witness and his family members visited the place of accused persons after four days of marriage and thereto no demand of dowry was made and they brought back Roshni with them. She used to come to her parental place and go back to her matrimonial home in routine manner after marriage. When the deceased last time left his home for her matrimonial home having her 18 months old child with her, it was her last visit of her parental place. Thereafter she died at her matrimonial home after three months. He also visited her matrimonial home to participate in marriage of Roshni (sister-in-law of the deceased) where he met family members of Prahlad and husband of the deceased. He also met his niece Roshni there. He visited the hospital on fateful day at around 2:00 pm but he did not found Prahlad and Achchhey Lal there. His brother Arjun was taking Roshni to District Hospital from C.H.C. at around 4:00 pm. He was not accompanying them at that time. It would be wrong to say that Roshni had committed suicide by setting herself ablaze. It would be wrong to say that she has not given any statement to magistrate or Tehsildar. He has not found any other injury on the person of the deceased except burn injuries.

20. PW-2 Pappu @ Harishankar, who is father of the deceased, his statement is consistent with the statement of PW-1 on factual aspects. He stated that on 24.5.2017 his daughter Roshni was beaten by accused persons in connection with demand of dowry. She was also subjected to torture prior to 24.5.2017. She failed to visit his place as the accused persons had snatched her child from her lap. When he met his daughter in hospital, she told that accused persons had set her ablaze by pouring kerosene oil on her body. He also stated that no demand of dowry was made at the time of marriage or just thereafter. Prior to the incident his daughter Roshni had visited his place in the marriage of his brother Arjun and resided with them for two to three months at his home. In said marriage Rati Lal, brother-in-law, of the deceased and Roshni (sister-in-law of the deceased) had visited his home to take Roshni with them. Some dispute occurred at the time of Bidai (send off) of Roshni from his place. When Roshni visited his home in the marriage of his niece, accused Achchhey Lal abused her on telephone. No dispute occurred at the time when Roshni was send off to her matrimonial home along with Rati Lal and Roshni, however she did not proceed happily and she was not willing to go to her matrimonial home. He was present in his home at that time. This was her last Bidai (send off) from her home to the place of her in-laws. Roshni died after seven months of last send off from his home. When his daughter died he was in Bombay. His daughter would speak to his wife and his wife told him that her in-laws are demanding dowry after marriage of his niece (daughter of Arjun). He came back to his home after three days of death his daughter. This is true that quarrel used to take place between Roshni and Achchhey Lal with regard to dowry, however, his daughter did not inform him regarding this dispute. Whatever he was apprised of the dispute between his daughter and her husband through his wife.

21. PW-3 Heerawati @ Kalawati, who is mother of the deceased, has stated in her evidence that her daughter had told her that accused persons were demanding Rs. 5,00,000/- in dowry. She was beaten by the accused persons, six months before her death and Roshni herself informed her about the incident. Her husband had visited the place of her daughter and persuaded the accused persons and thereafter the peace prevailed for sometime, however, in the marriage of daughter of her brother-in-law Roshni visited her home to participate in the marriage. Her Devar had also participated in invitation in said marriage and after returning to his home, he told him that much gift and dowry was given in said marriage by parental side of deceased Roshni. Achchhey Lal (her husband) got infuriated after knowing this and he abused the deceased on telephone. She also reached in the middle of telephonic talk of Roshni and Achchhey Lal and then Roshni gave telephone to her and when she spoke to Achchhey Lal, he abused her also and thereafter demand of dowry of Rs. 5,00,000/- aggravated and Roshni was beaten and subjected to torture by accused persons. She was ultimately done to death by them by setting her ablaze. She also stated that Achchhey Lal holds a tea shop at his home.

22. PW-4, Arjun, who is uncle of the deceased, has stated that when he visited his niece after four days of Bidai (departure) to matrimonial home, she told that his brother and sister-in-law used to tease her for bringing less dowry. On 11.5.2016 marriage of her daughter scheduled and he had brought the deceased ten days back to his home for her participation in the marriage. In marriage of his daughter his in-laws had given much gifts which was noticed by accused Rati Lal (brother-in-law of Roshni) and he told this fact to Achchhey Lal after returning to his home and Achchhey Lal abused the deceased on mobile phone and was demanding Rs. 5,00,000/- as dowry and also stated that he will not permit her to enter in his home without said dowry. He also abused the mother of deceased on telephone in same sequence. When the witness and others had visited the hospital on fateful day Tehsildar was recording the statements of the deceased. Thereafter doctor referred her to District Hospital. They were taking her to District Hospital in ambulance but she died on way. Prahlad holds tea and betel shop at Belwar market where he has also constructed four rooms on road. Marriage of Roshni and Achchhey Lal was solemnized on 24.4.2014 and he visited her parental place eight to ten times after marriage before her death. He also stated that demand of dowry began after marriage of Roshni and not prior to that. The investigating officer had not interrogated him. Rati Lal had not made any demand of dowry when he participated in marriage of his daughter. Roshni went to his matrimonial home after marriage of his daughter unwillingly and thereafter never came back to her parental place. The Tehsildar had taken statement of victim on 26.5.2017 at around 2:00 pm and she was referred to District Hospital at 1:40 hours. He bellied the defence suggestion that no statement of deceased was recorded by Naib Tehsildar. He also denied the defence suggestion that Roshni committed suicide due to non-fulfillment of her aspirations on account of lack of money.

23. PW-7, Santosh Kumar Shukla, Naib Tehsildar admitted in cross-examination that there is overwriting in timing of recording of dying declaration. It was taken at 3:30 pm. He cannot explain as to how this overwriting occurred. He denied the defense suggestion that he had not recorded any dying declaration and there was no instruction to him for recording the same.

24. PW-9 Vinay Kumar Dwivedi is second Investigating Officer of the case. He has proved charge sheet filed in the case against accused persons which is marked as Ext. Ka-12. He admitted that he did not take into account of the fact from author of dying declaration as to her ability to speak at the time of recording of her dying declaration.

25. PW-10 Uma Shankar Singh (first investigating officer) has stated that accused Achchhey Lal had surrendered in the Court on 23.6.2017. He has proved site plan of the place of incident as Ext. Ka-13.

26 This is admitted fact that the marriage of deceased and accused Achchhey Lal was solemnized on 24.4.2014 and she died on 26.5.2017 within seven years of her marriage at her matrimonial home in unnatural circumstances due to extensive burn injuries received.

27. The defense case is that due to want of money and dis-satisfaction on account of non-fulfillment of her aspirations, she committed suicide by pouring kerosene oil on her person, whereas the prosecution case is that deceased was burnt to death by accused persons including her husband and in-laws on account of non-fulfillment of demand of dowry and she was subjected to cruelty soon before her death on 26.5.2017 as well as prior to that.

28. The accused side had failed to specify exact time and manner in which deceased allegedly committed suicide. They have taken a case that none of the family members were present in the house when incident occurred and her in-laws had rushed to C.H.C., Sujanganj as soon as they got apprised of the incident and did whatever they could to save her. None from the side of informant was present at the time of incident and they came to the place of accused persons and thereafter to hospital where victim was admitted after coming to know about the incident. 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. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Where an offence like murder or dowry death is committed in secrecy inside a house, the initial burden to establish the case would 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.

29. Hon'ble Apex Court in the case of Sandeep Vs. State of U.P., (2012) 6 SCC 107, Prithipal Singh Vs. State of Punjab 2012(76) ACC 680 (SC) and Trimukh Maroti Kiran versus State of Maharashtra, (2006) 10 SCC 681, observed that burden would be comparatively of alike character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give 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. 

30. Learned trial court has assigned one reason in disbelieving the dying declaration of the deceased that Magistrate failed to produce a certificate from the doctor regarding mental fitness of the declarant and her capacity to speak in the impugned judgment i spite of the presence of doctor at that time as stated by PW-7, author of dying declaration, however, judgment of Hon'ble Apex Court in Laxman Vs. State of Maharashtra, (2002) 6 SCC 710 is relevant here wherein a Constitution Bench placed reliance in Koli Chunilal Savji vs. State of Gujarat, 1999 (9) SCC 562, wherein it is stated that when it was held that ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. The Constitution Bench held that where it is proved by the testimony of the Magistrate that declarant was fit to make statement even without examination by the doctor, the declaration cannot be acted upon, provided the Court ultimately holds the same to be voluntary and truthful. The certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.

31. In V.K. Mishra and Anr. Vs. State of Uttarakhand, (2015) 9 SCC 588 Hon'ble Apex Court held that before recording conviction of an accused under Section 304 B IPC, following conditions must be proved:-

"1. The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

2. Such a death should have occurred within seven years of her marriage.

3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

4. Such cruelty or harassment should be for or in connection with demand of dowry.

5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death."

32. In Surinder Singh Vs. State of Haryana, (2014) 4 SCC 129, Hon'ble Apex Court held that for presumption contemplated under Section 304-B IPC and Section 113-B of the Evidence Act to spring into action, it is necessary to show that the cruelty or harassment was caused soon before victim's death. The question as to how "soon before". This would obviously depend on facts and circumstances of each case. Section 113-B of Evidence Act provides regarding presumption as to dowry death. In Suresh Kumar Vs. State of Haryana, 2014 Cri.L.J. 551 (SC), it is held that Section 113-B of the Evidence Act introduces a reverse onus, it is to say that though it is ordinarily for prosecution to prove its case beyond reasonable doubt but when a reverse onus is introduced, it is for the accused to refute the case of the prosecution and prove his innocence.

33. Section 113-B of the Indian Evidence Act provides 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 had 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 (45 of 1860)."

34. In present case, this fact has been proved that on the basis of evidence of witnesses of fact specifically that demand of dowry was initiated by accused Achchhey Lal, husband of the deceased when he was apprised by his younger brother Rati Lal that his in-laws had given much gift and dowry in the marriage of daughter of Arjun, cousin of the deceased as Rati Lal had visited said marriage on invitation from in-laws of his brother Achchhey Lal. Achchhey Lal had telephoned the deceased even when she was at her parental place in connection with marriage of her niece, few months before her unfortunate death, and demanded dowry and abused her as well as her mother PW-3 on telephone and when the deceased came back to her matrimonial home, she was subjected to torture and cruelty which continued till her death, therefore, this fact has been proved beyond reasonable doubt that death of the deceased occurred within seven years of marriage by physical burns and in unnatural circumstances at her matrimonial place. She was subjected to cruelty by her husband Achchhey Lal, soon before her death. Accused failed to divulge any plausible explanation of her death which occurred due to extensive burn injuries received by the deceased at her matrimonial home. Accused Achchhey Lal is husband of the deceased and in view of relations with the deceased, he bears responsibility for upkeep welfare, nurturing and good health of deceased who was his wife but even in his statement under Section 313 Cr.P.C., he has not given any explanation of unfortunate death of his wife within seven years of her marriage. He is simply denied the allegations made against him regarding causing dowry death of the deceased, therefore, he failed to discharge reverse burden imposed under law by virtue of Section 106 of the Evidence Act as well as Section 113-B of the Act. He has also not taken specific plea of alibi in his statement under Section 313 Cr.P.C.

35. DW-1 Seeta Devi is mother-in-law of co-accused Roshni who stated to the effect that on fateful day Roshni was present in her home as her marriage had taken place on 11.5.2017 with her son namely Dinesh. On 25.5.2017 marriage of daughter of her Jeth was scheduled and that time, Roshni was in her matrimonial home. She has also proved marriage invitation card of Pinki, daughter of her brother-in-law which was scheduled on 25.5.2017, a day before fateful incident in this case. She has proved invitation card as Ext. Kha-2.

36. DW-2 Rambali has stated that his younger brother Udal was married to Aneeta (daughter of Prahlad). Aneeta had gone to her parental place in connection with marriage of her younger sister Roshni, five days back to said marriage and after four days of the said marriage, he brought back Aneeta to his home and Aneeta was present at his home on the date of incident.

37. DW-3 Ramapati Vishwakarma has stated in his evidence that Prahlad and Aneeta used to reside at Belwar market where Prahlad runs a shop. He himself informed Prahlad about the incident of burn of Roshni and thereafter Prahlad rushed to home along with his wife where incident occurred. Witness also holds a shop in a nearby place to the shop of Prahlad. He received information of the incident at around 12:00 hours from some villager but he had not visited the place of incident.

38. From the perusal of statements of witnesses, it appears that these witnesses have stated nothing regarding the innocence of accused Achchhey Lal but these witnesses have been produced to support the fact that accused Aneeta, Rati Lal, Prema Devi and Achchhey Lal were present at the place of incident when burn incident of the victim took place.

39. As regards Prema Devi, no specific allegation has been levelled against her either with regard to demand of dowry or practised matrimonial cruelty or causing death of the deceased against her in dying declaration of the deceased although the same has not been relied upon in impugned judgment as well as in the statement of PW-1 and PW-3. This fact has emerged that accused Achchhey Lal, Rati Lal were directly instrumental in burning of the deceased. General role has been assigned to the accused Prahlad, Prema Devi, Aneeta and Roshni out of whom three were already acquitted by learned Trial Court and accused Prema Devi and accused Achchhey Lal have been convicted by learned Trial Court. No cross appeal appears to be filed with regard to acquittal of the accused Prahlad, Aneeta, Roshni either by State or by first informant, therefore it can be concluded that as the co-accused who have been assigned similar role to that of present appellant Prema Devi, have already been acquitted by learned Trial Court, accused Prema Devi deserves to be extended benefit of doubt in present appeal. Learned Trial Court has concluded in impugned judgment that deceased was not done to death by accused persons by setting her ablaze but she had committed suicide. Even in dying declaration, Ext. Ka-9, which is relied upon by prosecution and is proved by PW-9, the Naib Tehsildar, no specific role has been assigned to Prema Devi and general allegation is made against all the named accused persons that prior to setting her ablaze by Achchhey Lal and Rati Lal, all the accused persons had engaged in altercation with her till the noon on that date.

40. Be that as it may, on the basis of meticulous analysis of evidence appearing on record, this Court is of the considered opinion that prosecution has proved its case beyond reasonable doubt against appellant Achchhey Lal for charge under Section 498-A, 304B IPC and 4 D.P. Act and order of learned Trial Court in respect of accused Achhey Lal is liable to be affirmed. However, in view of above discussion Prema Devi, mother-in-law of the deceased, deserves to be acquitted of all the charges for which she has been convicted and sentenced along with appellant Achchhey Lal. Consequently, appeal is partly allowed. The verdict of conviction and sentence imposed on appellant Prema Devi is set aside and she is acquitted of all the charges framed against her by learned Trial Court. Appeal in respect of appellant Achchhey Lal is dismissed and verdict of guilt and sentence awarded to him by learned Trial Court in impugned judgment is affirmed.

41 Let a copy of this judgment along with lower court record be forwarded to the Court concerned for compliance and release order will be issued by the Court concerned through Superintendent of Jail to release the accused Prema Devi, if she is not wanted in any other case.

Order Date :- 3.3.2023

A.P. Pandey