Abrar Ahmad vs State Of U.P.

Reserved
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1080 of 2020
Abrar Ahmad
…..Appellant
Versus
State of U.P.
…..Respondent
Counsel for the Appellant : Abrar Ahmad, Arvind Kumar Singh,
Deepesh Kumar Ojha, Prashant
Tripathi, Rahul Misra, Sumit Kumar
Gupta
Counsel for the Respondent : G.A.
Along with :-
1. Criminal Appeal No. 856 of 2020
Smt. Shabana Khatoon and another
Versus
State of U.P.
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE SAURABH SRIVASTAVA, J.
(Delivered by Hon'ble J.J. Munir, J.)
1. These two connected criminal appeals have been preferred
by Abrar Ahmad, Lal Babu and Shabana Khatoon, who stood their
trial before Mr. Abhimanyu Singh, the then Additional District and
Sessions Judge, Court No.4, Kushinagar at Padrauna in
connection with Crime No.648 of 2013, under Sections 498-A,
304-B of the Indian Penal Code, 1860 (for short, 'IPC') and
Section 3/4 of the Dowry Prohibition Act, 1961 (for short, 'DP Act'),
Police Station Vishunpura, District Kushinagar and were convicted
of offences punishable under Sections 304-B/ 34, 498-A/ 34 IPC

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and Section 4 of the DP Act. The appellants were, however,
acquitted of the offence under Sectio 3 of the DP Act.
2. The learned Judge passed sentences of imprisonment for
life upon each of the appellants for the offence under Section 304-
B IPC and for the offence under Section 4 DP Act, each of the
appellants received a two year term of simple imprisonment
together with fine in the sum of Rs.5000/-. In the event of default
in payment of fine, an additional term of two months simple
imprisonment was directed to be suffered by the appellants. No
sentence has been passed under Section 498-A IPC,
notwithstanding the conviction on the aforesaid charge.
3. An information was given to the Station House Officer,
Police Station Vishunpura, District Kushinagar in the form of a
written report by Nurul Huda son of Idrish Ansari, a resident of
Village Nonia Patti, Post and P.S. Padrauna, District Kushinagar,
saying that the informant had married his daughter Tajrun
Khatoon on 29.06.2013 to Abrar Ahmad son of Amiruddin, a
resident of Jama Masjid, Post Dudahi, P.S. Vishunpura, District
Kushinagar. After his daughter went to her matrimonial home and
a month had passed by, he received a phone call from his
daughter that her in-laws were demanding a motorcycle, a chain,
a ring, apparently of gold. To this, the informant reported that he
told his daughter that he had given cash and all necessaries in
her marriage and that he could not fulfill the aforesaid demand.
His daughter in answer told the informant, as he reports, that her
in-laws say that if she did not listen to them and get a motorcycle,
chain and ring from her family, she would be done to death. The
informant has narrated that at the time of marriage, he had given
away Rs.1 lac in cash, a chain, a ring, a nathia, jhumka and payal,
besides all necessaries for the household. On 06.10.2013, which
fell on a Sunday in the evening hours, at about 6.00 p.m., the
informant received a phone call from his daughter that her in-laws

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were beating her up, telling her that if within a week, their
demands were not fulfilled, she would be killed. Today, on
10.10.2013, which was a Thursday, he received a phone call late
in the night from his son-in-law, Abrar Ahmad, that his daughter
was seriously unwell. Upon receiving this information, it is said by
the informant that he immediately left for Dudahi, that is to say, his
son-in-law's home and found there that his daughter was dead.
Nurul Huda said in his report to the Police that he was convinced
that his daughter had been murdered by throttling her and in this
murder, his son-in-law Abrar Ahmad, elder brother Lal Babu and
Lal Babu's wife Shabana Khatoon, besides others in the family,
were involved. This written information dated 10.10.2013 is on
record as Ex. Ka-1.
4. On the basis of the written information, the Police at P.S.
Vishunpura registered a First Information Report (for short, 'FIR')
and the check FIR shows that the crime was registered on
10.10.2013 at 9.35 p.m. The crime occurred in the night
intervening 09/10.10.2013. The check FIR shows that the crime
was registered as Crime No. 648 of 2013, under Sections 498-A,
304-B IPC and Section 3/4 DP Act, P.S. Vishunpura, District
Kushinagar. The check FIR is on record and marked as Ex. Ka-7.
Inquest for the deceased was held on 10.10.2013, commencing at
10.00 a.m. and ending at 11.30 a.m. The inquest report dated
10.10.2013 is on record as Ex. Ka-3. According to the autopsy
report dated 10.10.2013, Ex. Ka-2, the cause of death is asphyxia
as a result of strangulation. The ante-mortem injury, that is
noticed, is a contused ligature mark of size 18 cm x 2.5 cm on the
anterior part of the neck, extending from right mastoid to mid of
anterior part of left side neck. The external examination reveals
that both eyes and mouth were closed, hyoid bone was fractured
and subcutaneous haemorrhage was present. The time of death
was opined to be about one day before the examination.

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5. The investigation was handed over to Police Station Tarya
Sujan, District Kushinagar and assigned to a Deputy
Superintendent of Police, one Dinesh Kumar Singh, PW-7. He
commenced investigation recording statements under Section 161
Cr.P.C. and visiting the scene of crime, whereof a site-plan was
drawn up. The site-plan is on record as Ex. Ka-9. The
Investigating Officer filed a charge-sheet, bearing No. 48 dated
26.12.2013 against the appellant Abrar Ahmad and Lal Babu
together. This charge-sheet is marked as Ex. Ka-10. A separate
charge-sheet dated 02.01.2014 was filed against the appellant
Shabana Khatoon, which is marked as Ex. Ka-11.
6. The learned Chief Judicial Magistrate, Kushinagar took
cognizance, the appellants were furnished relevant prosecution
papers as provided under Section 207 Cr.P.C. and vide order
dated 25.06.2015, the case was committed to the Court of
Sessions for trial.
7. Before the learned Sessions Judge, two sessions trials were
registered, to wit, Sessions Trial No.331 of 2015, where the
appellant Abrar Ahmad was the sole accused, and Sessions Trial
No.501 of 2015, where Lal Babu and Shabana Khatoon were the
accused. Both the trials came up before Mr. Rajeev Kamal
Pandey, Additional Sessions Judge/ F.T.C. Kushinagar at
Padrauna for framing of charge. In S.T. No.331 of 2015, on
07.08.2015 four charges were framed against the appellant Abrar
Ahmad, viz: the first charge was for the offence punishable under
Section 498-A IPC, the second under Section 3 DP Act, the third
under Section 4 DP Act and the fourth under Section 304-B IPC.
Here, there was an alternate charge under Section 302 IPC as
well. Likewise, in S.T. No.501 of 2015, on 07.10.2015 four
charges were also framed against the appellants Lal Babu and
Shabana Khatoon, i.e., the first under Section 498-A/ 34 IPC, the
second under Section 3 DP Act, the third under Section 4 DP Act,

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and the fourth under Section 304-B/34 IPC; alternatively, under
Section 302/34 IPC. In both the trials, the accused-appellants,
who are the appellants here, pleaded not guilty and claimed trial.
8. Both the cases, being ones arising out of the same crime,
were tried together.
9. The prosecution examined the following witnesses in
support of their case:
1. PW-1 – Nurul Huda, the first informant and father of the
deceased,
2. PW-2 – Najrun Khatun, sister of the deceased,
3. PW-3 – Naim Ansari, brother of the deceased,
4. PW-4 – Dr. Anoop Kumar, who conducted postmortem of
the deceased,
5. PW-5 – D.D. Sharma, Deputy Superintendent of Police,
in whose presence inquest and other related documents
were prepared,
6. PW-6 – SI Amar Nath Srivastava, the then Head
Moharrir, who drew up the check FIR and made other G.D.
entries,
7. PW-7 – Addl. Superintendent of Police Dinesh Kumar
Singh, who investigated the case and submitted the
charge-sheet,
8. S.H.O. Gopal Tripathi, the then S.H.O., P.S. Bishunpura,
District Kushi Nagar.
10. The prosecution produced the following documentary
evidence:
Sr.
No.
Exhibit No. Exhibited documents with brief particulars
1 Ex. Ka-1 Written report dated 10.10.2013 lodged with Police
Station Padrauna, District Kushi Nagar, proved by
PW-1, Nurul Huda,
2 Ex. Ka-2 Postmortem report dated 10.10.2013, proved by PW-4,
Dr. Anoop Kumar
3 Ex. Ka-3 Inquest report dated 10.10.2013, proved by PW-5,
D.D. Sharma
4 Ex. Ka-4 Sample seal dated 10.10.2023, proved by PW-5, D.D.
Sharma

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5 Ex. Ka-5 Police Form No.13 (Challan Lash) dated 10.10.2013,
proved by PW-5, D.D. Sharma
6 Ex. Ka-6 Police Form No. 379 (Photo Lash) dated 10.10.2013,
proved by PW-5, D.D. Sharma
7 Ex. Ka-7 Check FIR dated 10.10.2013, proved by S.I. Amar
Nath Srivastava
8 Ex. Ka-8 Carbon Copy of GD Entry dated 10.10.2013, proved by
S.I. Amar Nath Srivastava
9 Ex. Ka-9 Site-plan of the place of occurrence dated 11.10.2013,
proved by PW-7, Addl. S.P. Dinesh Kumar Singh
10 Ex. Ka-10 Charge sheet dated 26.12.2013 submitted against
Abrar Ahmad and Lal Babu, proved by PW-7, Addl.
S.P. Dinesh Kumar Singh
11 Ex. Ka-11 Charge sheet dated 02.01.2014 submitted against
Shabana Khatun, proved by PW-7, Addl. S.P. Dinesh
Kumar Singh
12 Ex. Ka-12 Recovery memo taking into possession of the
belongings of the deceased dated 11.10.2013, proved
by PW-8, S.H.O. Gopal Tripathi
13 Ex. Ka-13 Arrest memo dated 12.10.2013, proved by PW-8,
S.H.O. Gopal Tripathi
14 Ex. Ka-14 Carbon Copy of GD Entry dated 12.10.2013, proved by
PW-8, S.H.O. Gopal Tripathi
15 Material Ex. 1 Marriage Card
16 Material Ex. 2 Envelop of Marriage Card
11. After the prosecution evidence was over, the statements of
the appellants under Section 313 Cr.P.C. were recorded, all on
08.08.2018. In their statements under Section 313 Cr.P.C., in
answer to the last question, if the accused had anything to say, all
the three appellants have come up with substantial explanations,
which would be noticed later on in the course of this judgment.
12. The accused-appellants entered defence and three
witnesses were produced, to wit: Istiyak Alam, DW-1, Husain
Ansari, DW-2, and Amir Hasan, DW-3.
13. After holding trial and hearing parties, the learned Additional
Sessions Judge convicted and sentenced each of the appellants
by means of the impugned judgment and order.
14. Aggrieved, these appeals have been preferred.
15. Heard Mr. Arvind Kumar Singh, learned Counsel for the
appellants and Mr. Shashi Shekhar Tiwari, learned Additional

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CRLA No. - 1080 of 2020
Government Advocate along with Mr. Kamlesh Kumar Nishad,
learned State Law Officer appearing on behalf of the State in both
the appeals.
16. Mr. Arvind Kumar Singh, learned Counsel for the appellants
has urged that the FIR is ante-timed. The inquest shows that
information to the police station was given on 10.10.2013 at 6.15
a.m. Amar Nath Srivastava, PW-6, was the Moharrir at the police
station who has said in his testimony that the written information
was received on 10.10.2013 at 12.35 p.m. It was, however,
lodged at 9.35 p.m. with a delay of eight hours from receiving it
and twenty hours after the incident. The exact date and time of
incident are not mentioned in the G.D. The medical report, in the
submission of the learned Counsel for the appellants, does not
support the prosecution. It is next submitted that the Call Detail
Record (CDR) was not collected during course of investigation.
No complaint about cruelty in connection with dowry demand was
made prior to the incident. There is no evidence that the
deceased was subjected to cruelty in connection with demand for
dowry soon before her death. The prosecution have failed to
prove that the appellants had subjected the deceased to cruelty in
connection with demand of dowry soon before her death. This is
an essential ingredient, which the prosecution have to prove
beyond reasonable doubt in order to raise the presumption under
Section 113-B of the Evidence Act. The appellant Abrar Ahmad,
who is the husband of the deceased, informed the deceased's
father about the incident. Abrar Ahmad, Lal Babu and Shabana
were present at the spot on 10.10.2013. The last fact shows the
absence of a guilty mind and honourable behaviour. Abrar Ahmad
and Lal Babu were arrested on 10.10.2013, but the arrest memo
was prepared on 12.10.2013. It is submitted that the testimonies
of PW-1, PW-2, PW-3 and PW-4 are not reliable and do not
inspire confidence. It is a case of suicide and not homicide. The
deceased committed suicide by hanging herself to death, not on

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account of any harassment in connection with dowry, but for
reason of other bickerings between the husband and wife and
their circumstances. It is emphasized that Lal Babu and Smt.
Shabana lived separately in the same house and they were not on
good terms. There is absolutely no involvement of these two
appellants in the affairs of the deceased's family. Learned
Counsel for the appellants submits that the explanation offered
about the victim's unnatural death and the circumstances that
figure in the statements of Abrar Ahmad, Lal Babu and Smt.
Shabana under Section 313 Cr.P.C. have not been considered by
the learned Trial Judge. It is particularly emphasized that the
Investigating Officer has neither collected the CDR nor an FIR has
been lodged about cruelty in connection with dowry demand prior
to the incident, which would show that the ingredients of the
offence under Section 304-B IPC are not attracted. The learned
Counsel for the appellants has placed reliance upon the authority
of the Supreme Court in Charan Singh v. State of Uttarakhand,
(2024) 13 SCC 649. It is lastly submitted that the extreme
punishment of life imprisonment has been awarded for the offence
under Section 304-B IPC without assigning any cogent reasons. It
should not be awarded in every case as held by the Supreme
Court in Hem Chand v. State of Haryana, (1994) 6 SCC 727. The
learned Counsel for the appellants brings it to our notice that
Abrar Ahmad has already served more than 13 years in jail in the
aforesaid case.
17. Mr. Shashi Shekhar Tiwari, learned A.G.A. along with Mr.
Kamlesh Kumar Nishad, learned State Law Officer have
supported the impugned judgment and said that it is a case of a
young women's death within seven years of marriage in her
matrimonial home with a background of cruelty in connection with
demand of dowry shortly before her death. In the learned A.G.A.'s
submission, presumption under Section 113-B of the Evidence Act

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CRLA No. - 1080 of 2020
would, therefore, arise and burden would lie upon the appellants
to prove their innocence.
18. Upon hearing learned Counsel for the parties, we are of
opinion that the case in the appeal of Abrar Ahmad, on one hand,
and that in the appeal of Smt. Shabana Khatoon and Lal Babu, on
the other, have very different facts and evidence, vis-a-vis the
charge involved. We also find that though the Trial Court was right
in framing a charge under Section 302 IPC, but as the legal
position would have it, the charge under Section 302 IPC could
not have been the alternate charge. Rather, the charge under
section 304-B IPC should have been the alternate or just the next
charge to be considered, if the charge under Section 302 IPC was
not substantiated by the prosecution evidence. The law, that is
crystallized in this regard, is clear and it is not that, that the
murder of a woman within seven years of marriage within the four-
walls of her matrimonial home, where soon before her death,
there was cruelty inflicted upon her in connection with dowry,
would become a case punishable under section 304-B alone. In
both offences, that is to say, Sections 302 and 304-B IPC, there is
essentially an unnatural death involved. Both the charges have
different ingredients. Whereas the charge under Section 302 IPC
requires the intention to do another to death followed up by the
necessary action, a case under Section 304-B includes any kind
of unnatural death of a woman in her matrimonial home within
seven years of marriage, if immediately before her death, she was
subjected to cruelty in connection with demand of dowry. Thus, a
purely suicidal death, where ingredients of Section 304-B are
attracted, would lead to proof of the charge with burden shifted
upon the accused to establish his/ her innocence, provided the
prosecution discharge its burden regarding commission of acts of
cruelty in connection with dowry demand immediately before the
unnatural death of the woman in her matrimonial home, the period
of marriage not having exceeded seven years. Therefore, where

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CRLA No. - 1080 of 2020
the Court finds that there is material to frame a charge under
Section 302 IPC, the Court must consider evidence to see if the
charge under Section 302 IPC is proved. If it is not proved, the
Court can then consider evidence to decide whether the
alternative charge of dowry death punishable under Section 304-B
is established. In this connection, reference may be made to
Jasvinder Saini v. State (Govt. of NCT of Delhi), (2013) 7 SCC
256. In Jasvinder Saini (supra), it was held:
“ 15. It is common ground that a charge under Section
304-B IPC is not a substitute for a charge of murder
punishable under Section 302. As in the case of murder
in every case under Section 304-B also there is a death
involved. The question whether it is murder punishable
under Section 302 IPC or a dowry death punishable under
Section 304-B IPC depends upon the fact situation and
the evidence in the case. If there is evidence whether
direct or circumstantial to prima facie support a
charge under Section 302 IPC the trial court can and
indeed ought to frame a charge of murder punishable
under Section 302 IPC, which would then be the main
charge and not an alternative charge as is erroneously
assumed in some quarters. If the main charge of murder
is not proved against the accused at the trial, the
court can look into the evidence to determine whether
the alternative charge of dowry death punishable under
Section 304-B is established. The ingredients
constituting the two offences are different, thereby
demanding appreciation of evidence from the perspective
relevant to such ingredients. The trial court in that
view of the matter acted mechanically for it framed an
additional charge under Section 302 IPC without
adverting to the evidence adduced in the case and
simply on the basis of the direction issued in Rajbir
case [ Rajbir v. State of Haryana , (2010) 15 SCC 116 :
(2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] . The High
Court no doubt made a half-hearted attempt to justify
the framing of the charge independent of the directions
in Rajbir case [ Rajbir v. State of Haryana , (2010) 15
SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] ,
but it would have been more appropriate to remit the
matter back to the trial court for fresh orders rather
than lending support to it in the manner done by the
High Court.”
19. In this case, what we find is that the husband and wife were
staying together in one part of the house belonging to the
husband’s father, who would stay at Lucknow with his wife,
whereas in another part, his brother and sister-in-law, the
appellants in the connected appeal, Shabana Khatoon and Lal
Babu had their living quarters. There is evidence adduced in

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CRLA No. - 1080 of 2020
defence on behalf of all the appellants that Abrar Ahmad had
soured relations with his brother Lal Babu, after the latter’s
marriage, on account of which their father had put them up in
separate accommodation within the same premises. This stand
has come in the explanation given by the appellants to the
incriminating circumstances appearing against them, in their
statements under Section 313 Cr.P.C. and the defence evidence
led. Of course, this does not figure in the prosecution evidence
and nothing on the point could be elicited during the cross-
examination as well. However, the cross-examination of the three
witnesses for the prosecution, who are the father, brother and
sister of the deceased, and for that matter, their examinations-in-
chief as well, show that they were strangers to Abrar’s household
after all. In the short life of the parties’ marriage, PW-1, the
deceased’s father, had visited the deceased’s matrimonial home
on one occasion alone. All his information about the affairs in his
daughter’s life were based on three telephonic conversations that
he had with his daughter. In this kind of an interaction between the
two families, after matrimony, if it can at all be called any kind of
interaction, it is difficult to infer or hold that PW-1 would have
known that the two brothers were estranged and living in separate
quarters, albeit in the same house.
20. So far as PW-2, the deceased’s sister, is concerned, she
never went to her sister’s matrimonial home and her interaction
with the deceased after the latter’s marriage was limited to a
telephonic contact, which too, from the evidence, appears to be
brief and infrequent. PW-3, the deceased’s brother, appears to
have visited his sister, but again not any more than his father,
PW-1. None of the witnesses for the prosecution would know that
the deceased and her brother-in-law were living apart. To the
contrary, the defence witnesses, who have no axe to grind or
reason to speak falsehood, have spoken about the estrangement
of the two brothers and their separate households within the same

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CRLA No. - 1080 of 2020
premises, separated by their father on account of the soured
relationship between the two brothers. The circumstances, in
which the relations had soured, have also been spoken about by
the defence witnesses. The Trial Court has not paid any attention
to the defence evidence. It is not fair to condemn defence
evidence or look upon it with suspicion as second grade evidence,
inferior to that of the prosecution. As regards the awareness that
PW-1 had about his son-in-law’s household and the limited
contact that he had with his daughter, would be evident from the
following part of his cross-examination:
" अबरार के पास मोबाइल था। मेरी बेटी ने अपनी शादी के बाद अबरार के मोबाइल से मुझसे 3
बार बात की थी। एक बार घटना के एक महिना पहले बात किया था। बात मुझसे हुई थी। तारीख
व समय नहीं बता सकता। मुझे मेरे मोबाइल का नम्बर याद नही है। मैं पढ़ा लिखा नही हूँ। फिर इस
घटना के पहले भी मेरी बेटी ने मुझसे फोन किया था। कब किया था समय याद नही है। तीसरी बार
छः रोज पहले फोन किया था। यकिन के साथ समय याद नही आ रहा है। शादी के बाद मैं एक ही
बार उसकी ससुराल गया हूँ। मैं शादी के बाद पहली बार अपनी लड़की के ससुराल हाल चाल लेने
गया था। मेरी लड़की ने जब पहली बार मुझसे फोन किया तो हाल चाल लेने के संबंध में की थी।
अबरार कुल कितने भाई है इस समय मुझे याद नही है। अबरार का सबसे बड़ा भाई लालबाबू है।
और अबरार के कितने भाई है मुझे नहीं मालूम है। मेरी बेटी के लिए ससुराल में अलग से कोई
कमरा मिला था कि नहीं इसकी जानकारी मुझे नही है।"
21. Likewise, PW-2, Smt. Najroon, who was the deceased’s
sister, had no contact with the deceased nor had she visited her
matrimonial home. This fact would be evident from the following
part of her cross-examination:
"मैं हमेशा अपनी बहन का हाल चाल फोन करके पूछती थी। मैं किस नम्बर से अपनी बहन से बात
करती थी नम्बर मुझे याद नहीं है। फोन खराब हो गया था। इसलिये फेंक दिया। मैं अबरार के
नम्बर पर ताजरुन से बात करती थी। मैं जब अबरार के फोन पर फोन करती थी तथा कहती थी
कि ताजरुन से बात कराइये तो वह ताजरुन से बात करा देते थे। फोन में दिन में ही करती थी।
ताजरुन किस नं. से बात करती थी मुझे मालूम नहीं। मैं कभी ताजरुन के घर नहीं गयी थी। मेरे
शौहर भी कभी ताजरुन के घर नहीं गये थे। मुझे इस बात की जानकारी नहीं है कि शादी के बाद
मेरे पिता जी ताजरुन के घर गये थे कि नहीं मैंने अपने पिता जी से ताजरुन के सम्बन्ध में कोई बात
नहीं किया था।
शबाना खातून और लाल बाबू से कभी नहीं मिली हूँ।"
22. PW-3, Naeem Ansari, who is the deceased’s brother, also
had scanty contact with the deceased and her matrimonial
household, as would appear from the following part of his cross-
examination:

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"शादी के बाद से मेरी बहन से मुलाकात नहीं हुई। केवल मोबाइल से बात हुई। ताजरुन को शादी
में गिफ्ट के रूप में मोबाइल नहीं दिया गया था ताजरुन से बात उसके पति अबरार के मोबाइल से
ही होती थी ताजरुन से मेरी बात तीन चार बार हुई।
अबरार ने मुझे कभी फोन नहीं किया किस तारीख को ताजरुन से बात हुई तारीख नहीं बता
सकता। ताजरुन से जितने बार बात हुई दिनांक व समय याद नहीं है। ताजरुन के निकाह से 1
माह तक मेरी ताजरुन से कोई बात नहीं हुई। उस समय मैं पडरौना में ही था। मैंने बहन का हाल
चाल लेने के लिए फोन नहीं किया वही फोन करती थी।"
23. All this evidence would show the scanty nature of interaction
that the deceased’s family had with her husband’s family. They
would possibly not know, therefore, that the two brothers were
living separately.
24. In his statement under Section 313 Cr.P.C., the appellant Lal
Babu, Abrar’s brother, has stated:
"मैं और अबरार दोनो बेरोजगार थे। दोनो लोगो के खर्चे का पैसा मेरे पिता अमीरूद्दीन भेजा करते
थे। इसकी वजह से अबरार के साथ मेरे तालमेल बहुत खराब हो गए थे इसलिए हमारे पिता ने घर
का बटवारा करके मुझे व मेरी पत्नी को अलग कर दिया था। मैं अपनी पत्नी के साथ अलग रहता
था तथा अलग खाना बनता था।
अलग हो जाने के कारण अबरार से मेरी कोई बातचीत नहीं होती थी। दादी के जागने के कारण
इस घटना की जानकारी हुई। अबरार और उसकी पत्नी के बीच किस प्रकार के संबंध थे तालमेल
न होने के कारण नहीं जान पाया। अबरार की ग्रहस्थी में मेरा व मेरी पत्नी का कोई हस्तक्षेप नहीं
था अबरार ने अपनी पत्नी को हम लोगो से बात करने से मना किया था।"
25. DW-1 is a brother-in-law of sorts to Lal Babu. He stated in
his examination-in-chief:
"लाल बाबू व अबरार के पिता अमीरुद्दीन लखनऊ में ठेकेदारी का काम करते हैं। लाल बाबू व
अबरार की माँ व अन्य भाई बहन लखनऊ में रहते हैं, लालबाबू व अबरार दुदही में अपने पैतृक घर
पर रहते हैं, लालबाबू व अबरार के खर्च के लिए उनके पिता पैसा भेजते थे, अमीरुद्दीन ने लालबाबू
के पास पैसा खर्च के लिए भेजते थे, लालबाबू की शादी के बाद से लालबाबू व अबरार में खर्च को
लेकर झगड़े होते थे इस झगड़े को देखकर सन् 2012 में अमीरुद्दीन ने अपने दोनों लड़को को
अलग कर दिया तब से लालबाबू अपनी पत्नि के साथ उसी घर में अलग रहते थे वह अपना अलग
भोजन बनाते थे अलग खाते पीते थे। इन लोगों के पास खेतीवारी नही है उसके बाद दिनांक
29.06.2013 को अबरार की शादी ताजरुन के साथ हुई शादी व ताजरुन की मृत्यु के समय
लालबाबू अलग रहता था। लालबाबू व अवरार के बीच कोई सम्बन्ध नही था,”
26. In his cross-examination, he has stated:
"मेरी जानकारी मे ताजरुन के शादी के लगभग एक-डेढ़ साल पहले से लालबाबू व शबाना अलग
बनाते खाते थे लेकिन लालबाबू अबरार आदि सब लोग एक ही घर में रहते थे लालबाबू व अबरार
में सम्बन्ध अच्छे नही थे और कोई विवाद नही था, उन लोगों में कोई बात चीत नहीं होती थी,”
27. DW-2, Husain Ansari, is some kind of a medical man, who
runs a pathology centre for the testing of blood, urine etc. Abrar
would work with him before his marriage. Abrar worked with

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CRLA No. - 1080 of 2020
Husain Ansari (DW-2) for a period of one and a half years before
his marriage and about a month and two afterwards. He is
otherwise an independent witness, not connected to either the
deceased’s family or the appellants’ family. However, he knew
their affairs well because Abrar would work for him. He has said in
his examination-in-chief:
"लालबाबू अबरार के बड़े भाई है अबरार की शादी के पूर्व से ही लालबाबू और उसकी पत्नी शबाना
खातुन को अबरार के पिता ने अबरार के शादी के पहले से अलग कर दिया था, लालबाबू अपनी
शादी के पहले अबरार के साथ रहता था इनके पिता शेष परिवार के साथ लखनऊ रहते हैं वे
लालबाबू व अबरार के खर्ज के लिए पैसा लालबाबू के पास भेजते थे लालबाबू की शादी के बाद
दोनों भाइयों मे टकरार होती थी जिसके कारण पिता अमरुद्दीन ने लालबाबू के शादी के बाद
लालबाबू व उसकी शबाना खातुन को उसी मकान में अलग कमरा दे दिया और वह अलग रहने
लगे यह बात सन् 2011 की है। लालबाबू अपनी पत्नी शबाना खातुन व अपनी दादी के साथ
अलग रहते थे अलग खाना खाते पीते थे लालबाबू की दादी मर गयी है।"
28. This witness in his cross-examination has testified:
"मैं MLC दिल्ली होल्डर हूँ हमारा घर मुल्जि मान लालबाबू व अबरार के घर से 500 मीटर की दूरी
पर है मैं अभियुक्त लालबाबू व अबरार के घर रोज नही जाता रहा हूँ जब कोई अवसर पर काम
पड़ता था तो मैं उनके घर जाता हूँ
लालबाबू के शादी होने के कुछ दिन समय बाद जब अबरार अविवाहित था उसी समय से
अमीरुद्दीन ने दोनों को अलग कर दिया था अबरार अकेले बनाता खाता था।"
29. DW-3, Amir Husain, is a neighbour of the deceased’s in-
laws. He has said in his examination-in-chief:
"लालबाबू, अबरार को जानता हूँ लालबाबू व अबरार का घर मेरे घर के एक घर के बाद है
लालबाबू के पिता लखनऊ में रहकर ठीकेदारी करते हैं लालबाबू और अबरार के अलावे उनके
परिवार के लोग लखनउ रहते है लालबाबू व अबरार का खर्च अमरुद्दीन भेजते थे अबरार की शादी
से पूर्व ही लालबाबू अलग रहते थे अमरुद्दीन ने लालबाबू की शादी के बाद से लालबाबू को अलग
कर दिया था लालबाबू व अबरार का खाना अलग-अलग बनाते खाते है घर एक ही कोठरी अलग
अलग बटवारा हुआ है अबरार की शादी हुई तो लालबाबू अलग रहते थे और लालबाबू की दादी
नगैतुन लालबाबू के साथ रहती थी लालबाबू अबरार के बीच अबरार की शादी से पहले से बोल
चालू बन्द था लालबाबू अपनी पत्नी शबाना के साथ अलग रहते हैं।"
30. He has said in his cross-examination:
"अबरार के पिता लखनऊ रहते थे बाकी लालबाबू अबरार व उनकी पत्नि यां एक ही घर मे रहती
थी उस घर का मुख्य एक ही दरवाजा है।"
31. The explanation offered by Lal Babu in his statement under
Section 313 Cr.P.C. and the preponderant evidence of three
defence witnesses, one of whom is related to the appellants’
family, though apparently not a blood-relative and the two other
independent witnesses, DW-2 and DW-3, who have broadly

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CRLA No. - 1080 of 2020
spoken about the strained relations between the two brothers,
both of whom were supported in their livelihood by their father’s
exertions and the fact that upon Lal Babu’s marriage, their father
had placed them in separate living quarters in the same house
with no hearth to share, shows that two brothers hardly had any
interaction as a family. There is consistent evidence that the two
brothers did not speak to each other.
32. Now, in this background, whatever happened on the fateful
night, was a matter between the appellant Abrar and the
deceased. It is true that the marriage was a very short live one,
and in that short period, there is testimony of PW-1 in his
examination-in-chief that one month after marriage, the deceased
had called him up to say that her in-laws Abrar and Lal Babu @
Ajmeri and Shabana Khatoon were demanding in dowry a gold
chain, a gold ring and a motorcycle. The witness has testified that
he told his daughter that whatever he had, he had given away in
her marriage and now his circumstances did not permit him to
give anything more. A week after this call, the deceased again
called up PW-1, her father, and informed him that Abrar, Lal Babu
and Shabana were threatening her that in the event the chain, the
ring and the motorcycle were not given, they would not let her live.
On 06.10.2013, there was yet another phone call from the
deceased, where she told PW-1 that the three of her named in-
laws were torturing her and demanding the dowry to be made
good within a week, and else, they would do her to death. On
10.10.2013, the fateful phone call came from the appellant Abrar
to PW-1 that he should immediately come over as Tajroon was
very ill. PW-1 then went over to Tajroon’s place, located in Dudahi
only to find that her dead body was lying there. There was a
ligature mark on her neck, a fact which convinced PW-1 that her
in-laws had murdered her.

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CRLA No. - 1080 of 2020
33. This witness in his cross-examination has testified to the
effect that when he first spoke to his daughter over telephone to
know about her welfare, she had told him that her in-laws were
troubling her. He has said that he never informed the Police about
his daughter being ill-treated or troubled by her in-laws. As
regards, the appellants, Lal Babu and Shabana Khatoon, PW-1
has stated that none of them ever called him up on phone. He has
further said that Shabana Khatoon had greeted him, but both of
them did not say anything else. The relevant part of PW-1’s cross-
examination reads:
"लालबाबू ने कभी मुझे फोन नही किया। शवाना ने भी कभी हमे फोन नहीं किया। मैं जब अपनी
बेटी से मिलने गया था तो शवाना ने मुझे सलाम किया। उन लोगों ने मुझसे और कोई बात नहीं
किया। मैंने भी उनका हाल चाल नही पूछा था।"
34. So far as PW-2, Smt. Nazroon, the deceased’s sister is
concerned, she has testified in her examination-in-chief that her
younger sister was treated with cruelty and violence by her
husband, brother-in-law Lal Babu and sister-in-law Shabana
Khatoon in connection with their demand of a motorcycle, a gold
chain and a gold ring that they wanted in dowry. This information
was given to her by the deceased Tajroon over mobile phone,
during conversation the two had. In her cross-examination, in one
part of it, that is reproduced hereinabove, this witness has
expressed her lack of acquaintance with the deceased’s husband
and in-laws and acknowledged having never visited her sister. In
her cross-examination, she has asserted that the deceased had
told her that the appellants Shabana Khatoon and Lal Babu would
demand a motorcycle, gold chain and a gold ring in dowry. This
information, the witness had acquired during a telephonic
conversation with the deceased, as the cross-examination would
show. She had never been to their households or knew any of the
appellants personally, much less intimately. In her cross-
examination, this witness has further said in answer to a question

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CRLA No. - 1080 of 2020
by the Court that she knew about violence and cruelty for the
purpose of demand of dowry, but did not know how Tajroon died.
35. PW-3, Naeem Ansari, in his examination-in-chief has said
that a month after her marriage, his sister called him up on phone
to say that her husband Abrar, brother-in-law Lal Babu and his
wife Shabana Khatoon would beat her up and torture her
demanding in dowry a motorcycle and they had further said that in
the event the demand was not made good, they would not spare
her life. In his cross-examination, this witness has said about the
demand for dowry that when his sister called his father, she had
told the latter about the dowry demand by her in-laws, but they did
not lodge any complaint with the Police. It is also said in the
cross-examination by this witness that his sister had told them,
which means her parents’ family, that the appellants are greedy in
nature and it is for that reason that they were demanding a
motorcycle, a chain and a ring. About the motorcycle, that was
already given at the time of marriage, the witness has said, he
does not remember in whose name it was purchased. It is further
on said that it was Abrar, who would repeatedly come up with the
demand for dowry. The witness also says in his cross-examination
that notwithstanding the information about cruelty in connection
with demand of dowry, they did not lodge any complaint with the
Police nor did they seek the intervention of their close relatives or
friends in order to resolve the matter through a panchayat.
36. Now, so far as cruelty and the demand of dowry is
concerned, there are consistent allegations by the three
prosecution witnesses against the appellant Abrar, who was the
deceased’s husband, with convincing reasons why this kind of a
demand would have been made. After all, it was Abrar, who was
the deceased’s husband, and for small gains to be made, like a
motorcycle, a gold chain or gold ring, it is natural that these would
be considerations for the appellant Abrar to act in the manner he

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CRLA No. - 1080 of 2020
appears to have done. There is convincing evidence on record to
show that Abrar and his brother Lal Babu had separate
households within the same premises with a partition being
brought about by their father, who appears to be the earning
member of the family, living in Lucknow. The separate households
for the two sons were set up by their father, when Lal Babu was
married, and it has come in evidence of the defence witnesses
that the two brothers did not see eye-to-eye and were hardly on
speaking terms. In our opinion, therefore, the fact that there was
cruelty inflicted upon the deceased in connection with demand for
dowry has to be limited to the appellant Abrar, the deceased’s
husband. We say so because Lal Babu and wife Shabana lived in
a separate household and Lal Babu apparently was not on good
terms with his brother. The two hardly spoke to each other. In
these circumstances, to infer that Lal Babu and his wife Shabana
would join cause with Abrar, the appellant, in subjecting the
deceased to cruelty in connection with demand for dowry, is rather
illogical. The gainer would be the husband and so the perpetrator.
37. The evidence against Lal Babu and Shabana, indulging in
violence or treating the deceased with cruelty in connection with
demand for dowry along with Abrar, is based mostly on telephonic
conversations, that PW-1, PW-2 and PW-3 had with the
deceased. The evidence shows that post marriage, the deceased
had never come back home to her parents nor the parents or
siblings had opportunity to interact with her. The information that
the witnesses had from the deceased was, therefore, scanty and
one which cannot be mechanically accepted for all the appellants.
Abrar, being the husband, would of course take the blame for any
cruelty that was inflicted in connection with the demand for dowry,
but there is no reason to accept this part of the evidence against
Abrar’s brother and sister-in-law, who are already estranged with
him. In our opinion, the learned Trial Judge has not given due
weightage to the defence witnesses or the explanation by the

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CRLA No. - 1080 of 2020
appellants Lal Babu and Shabana and gone mostly by the
prosecution evidence and almost a presumption to find against
them on the fact of infliction of cruelty in connection with demand
for dowry upon the deceased.
38. Coming to the homicide or the unnatural death that the
deceased met, it again happened in the room where Abrar and his
wife stayed. Apparently, it happened by night and there was no
reason at that hour for the appellants Lal Babu and Shabana to be
there. The two were living in separate households, albeit in the
same house and premises. It is true that the cause of death is
asphyxia on account of strangulation and the hyoid bone is
fractured, as the doctor reports. Abrar, who was presumed to be
with his wife by night, could have the charge under Section 302
IPC considered against him on the basis of circumstantial
evidence. The Trial Court logically should have first considered
evidence on the charge under Section 302 IPC and tested it, if the
charge could be proved by the exacting standards required in a
case of circumstantial evidence. If the said charge was not
proved, then the case under Section 304-B IPC could have been
examined on a presumption under Section 113-B of the Evidence
Act, because the prosecution has after all proved cruelty in
connection with dowry demand, at least by Abrar, immediately
before the unnatural death. The marriage, of course, was well
within seven years. Thus, the Trial Court did not do, and instead,
proceeded straight away to consider the charge under Section
304-B IPC with reference to the evidence on record. This charge,
it held proved against the appellant Abrar, besides the two other
appellants.
39. Even if this Court were to feel that there is a case where the
Court should consider circumstantial evidence against Abrar on
the charge under Section 302 IPC, we cannot do that in view of
the provisions of Section 386(b) Cr.P.C. in the absence of an

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CRLA No. - 1080 of 2020
appeal for enhancement of sentence under Section 386(c) Cr.P.C.
There is neither an appeal for enhancement of sentence by the
State nor by the complainant nor a revision by either of them. The
only other option available with the Court is to order a retrial. This
is not a case of ordering a retrial because that is a course which
has to be treaded with much caution. The reason is that retrial
wipes out all evidence that has hither to been recorded and with
passage of time, it may not be possible for good and sound
evidence to be led again. Therefore, this Court has to exercise
powers in accordance with Section 386(b) Cr.P.C., either
reversing the finding and sentence and acquitting the appellant,
alter the finding, maintaining the sentence, or with or without
altering the finding, alter the nature or the extent, or the nature
and extent, of the sentence, but without enhancing the same, to
borrow almost the phraseology of the statute. Reference in this
connection, on the limitation of our powers to convict the appellant
on a different charge and enhance the sentence, is well
elucidated in Sachin v. State of Maharashtra, (2025) 9 SCC 507,
where it has been held:
“ 57. However, in this case, our focus of attention is
whether, in the absence of any appeal or revision filed
by the State, a complainant or a victim in a particular
case and when the appeal has been filed only by the
accused assailing the judgment of conviction and
sentence, the High Court can exercise its revisional
jurisdiction while dealing with an appeal filed by the
accused/convict. In other words, when an accused is
seeking setting aside of a judgment of conviction and
sentence, can the High Court, in the absence of there
being any challenge to the same from any other quarter,
suo motu exercise its revisional power and thereby
condemn the accused by awarding an enhancement in his
sentence. Even if an opportunity of hearing is given to
such an accused/convict, we do not think that the High
Court can exercise its revisional jurisdiction under
Section 401CrPC while exercising its appellate
jurisdiction in an appeal filed by the accused/convict
in the High Court. All that the High Court can do is to
set aside the judgment of conviction and sentence and
acquit the accused, or while doing so, order for a
retrial or, in the alternative, while maintaining the
conviction, reduce the sentence. In other words, in an
appeal filed by the accused/convict, the High Court
cannot suo motu exercise its revisional jurisdiction
and enhance the sentence against the accused while
maintaining the conviction.

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58. In this regard, we find that the expression “but
not so as to enhance the same” in sub-clause (iii) of
clause (b) of Section 386CrPC throws some light on the
view we have taken, which reads as under:
“386. Powers of the appellate court.—
*
(b) in an appeal from a conviction—
*
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of
the sentence, but not so as to enhance the same;”
Although the said expression “but not so as to enhance
the same” is in the context of sub-clause (iii) of
clause (b) of Section 386, the spirit of the said
provision must be understood, inasmuch as while
maintaining the finding of conviction, the High Court
cannot exercise its suo motu revisional jurisdiction
under Section 401CrPC and enhance sentence awarded to
the appellant-accused.
61. In this regard, it must be noted that for exercise
of powers of the appellate court for enhancement of
sentence in an appeal filed either by the State or the
complainant or the victim, CrPC provides that the
appellate court can reverse the finding and sentence
and acquit or discharge the accused or order him to be
retried by a court competent to try the offence or
alter the finding by maintaining the sentence or with
or without altering the finding, alter the nature or
the extent, of the sentence but not so as to enhance
the same. Thus, the power to enhance the sentence can
be exercised by the appellate court only in an appeal
filed by the State, victim or complainant provided the
accused has had an opportunity of showing cause against
such enhancement. It is further provided that the
appellate court shall not inflict greater punishment
for the offence which in its opinion the accused has
committed, than might have been inflicted for that
offence by the court passing the order of sentence
under appeal. Therefore, even in an appeal for
enhancement of sentence, unless the conditions
prescribed in the form of provisos are complied with by
the appellate court, there cannot be an enhancement of
sentence. Obviously in such an appeal for enhancement
of sentence, the convict or the accused is the
respondent and therefore there cannot be enhancement of
sentence unless the accused or convict has been heard.
62. However, under the scheme of Section 386 vis-à-vis
in an appeal for enhancement of sentence there can also
be an acquittal of the accused as per sub-clause (i) of
clause (c) of Section 386. But, on the other hand, in
an appeal from a conviction, it has been expressly
stated that there cannot be enhancement of the
sentence. Therefore, while in an appeal for enhancement
of sentence filed by the State, the accused can make
out a case for acquittal or discharge or retrial, in
the case of an appeal from conviction, the respondent
in such an appeal, namely, the State or the victim or

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CRLA No. - 1080 of 2020
the complainant cannot seek enhancement of the sentence
than what has been awarded by the trial court. The
above distinction can be explained by way of a Latin
maxim which has been discussed by Ujjal Bhuyan, J.,
while in the Bombay High Court [Jyoti Plastic Works (P)
Ltd. v. Union of India, (2021) 15 GSTR-OL 453 : 2020
SCC OnLine Bom 2276] , in the following words: (Jyoti
Plastic Works case [Jyoti Plastic Works (P) Ltd. v.
Union of India, (2021) 15 GSTR-OL 453 : 2020 SCC OnLine
Bom 2276] , SCC OnLine Bom para 40)
“40. In this connection we may refer to the maxim
reformatio in peius. It is a Latin phrase meaning a
change towards the worse i.e. a change for the worse.
As a legal expression it means that a lower court
judgment is amended by a higher court into a worse
one for those appealing it. In many jurisdictions,
this practice is forbidden ensuring that an appellant
cannot be placed in a worse position as a result of
filing an appeal. When the above phrase is prefixed
by the words “no” or “prohibition”, which would
render the maxim as no reformatio in peius or
prohibition of reformatio in peius, it would denote a
principle of procedure as per which using a remedy
available in law should not aggravate the situation
of the person who avails the remedy. In other words,
a person should not be placed in a worse position as
a result of filing an appeal. No reformatio in peius
or prohibition of reformatio in peius is a part of
fair procedure and thus by extension can also be
construed as part of natural justice. It is not only
a procedural guarantee but is also a principle of
equity.”
(emphasis supplied)
63. The rationale of the above can be explained in
simple language by stating that no appellant by filing
an appeal can be worse off than what he was. That is
exactly what we are seeking to reiterate in our
judgment having regard to the facts of the present
case.”
40. Now, that the Trial Court has not considered the charge
under Section 302 IPC, and instead, the charge under Section
304-B IPC alone has been tested vis-a-vis the appellant Abrar,
besides the two other appellants, pragmatically, we can either
affirm the finding and sentence or acquit the appellant, or alter the
finding and alter the nature or the extent, or the nature and extent
of the sentence. The evidence against Abrar, that appears, surely
shows, as already found, that it was he who would treat his wife
with cruelty in connection with demand of dowry immediately
before her death, so much so that a distress call was given by the
deceased to her father earlier in the evening and in the night died

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CRLA No. - 1080 of 2020
an unnatural death on account of strangulation. The presumption
under section 113-B of the Evidence Act would attach. Abrar, the
appellant, has hardly discharged the burden of proof cast upon
him under Section 113-B of the Evidence Act to show that he had
not caused the dowry death charged against him.
41. Considering the nature of evidence, which is about
strangulation and Abrar being the husband, we are of opinion that
no interference with the impugned judgment, vis-a-vis Abrar is
called for. We would, therefore, in the case of Abrar affirm both the
conviction and the sentence. So far as the appellants, Smt.
Shabana Khatoon and Lal Babu are concerned, we have already
held that there is not much reliable evidence against them that
they too treated the deceased with cruelty in connection with
demand for dowry immediately before her unnatural death. There
is no scope to delve into the feasibility of considering if the charge
under Section 302 IPC is proved against these appellants, in the
absence of an appeal by the State for enhancement of sentence
or a revision or appeal by the complainant. Even otherwise,
circumstantially the evidence against Lal Babu and his wife does
not inspire confidence about their involvement in the deceased’s
unnatural death in any manner. We have expressed our reasons
for so concluding and need not recapitulate. In a conviction under
Section 304-B IPC unless it is established by evidence that soon
before the victim’s unnatural death, she was subjected to cruelty
in connection with demand for dowry, the presumption under
Section 113-B of the Evidence Act cannot be raised. This is
precisely the case here. Reference in this connection may be
made to Baijnath v. State of M.P., (2017) 1 SCC 101. In Baijnath
(supra), it was held by the Supreme Court:
“ 29. Noticeably this presumption as well is founded on
the proof of cruelty or harassment of the woman dead
for or in connection with any demand for dowry by the
person charged with the offence. The presumption as to
dowry death thus would get activated only upon the
proof of the fact that the deceased lady had been

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CRLA No. - 1080 of 2020
subjected to cruelty or harassment for or in connection
with any demand for dowry by the accused and that too
in the reasonable contiguity of death. Such a proof is
thus the legislatively mandated prerequisite to invoke
the otherwise statutorily ordained presumption of
commission of the offence of dowry death by the person
charged therewith.
30 . A conjoint reading of these three provisions, thus
predicate the burden of the prosecution to unassailably
substantiate the ingredients of the two offences by
direct and convincing evidence so as to avail the
presumption engrafted in Section 113-B of the Act
against the accused. Proof of cruelty or harassment by
the husband or his relative or the person charged is
thus the sine qua non to inspirit the statutory
presumption, to draw the person charged within the
coils thereof. If the prosecution fails to demonstrate
by cogent, coherent and persuasive evidence to prove
such fact, the person accused of either of the
abovereferred offences cannot be held guilty by taking
refuge only of the presumption to cover up the
shortfall in proof.
31. The legislative primature of relieving the
prosecution of the rigour of the proof of the often
practically inaccessible recesses of life within the
guarded confines of a matrimonial home and of
replenishing the consequential void, by according a
presumption against the person charged, cannot be
overeased to gloss over and condone its failure to
prove credibly, the basic facts enumerated in the
sections involved, lest justice is the casualty.
32. This Court while often dwelling on the scope and
purport of Section 304-B of the Code and Section 113-B
of the Act have propounded that the presumption is
contingent on the fact that the prosecution first spell
out the ingredients of the offence of Section 304-B as
in Shindo v. State of Punjab [Shindo v. State of
Punjab, (2011) 11 SCC 517 : (2011) 3 SCC (Cri) 394] and
echoed in Rajeev Kumar v. State of Haryana [Rajeev
Kumar v. State of Haryana, (2013) 16 SCC 640 : (2014) 6
SCC (Cri) 346] . In the latter pronouncement, this
Court propounded that one of the essential ingredients
of dowry death under Section 304-B of the Code is that
the accused must have subjected the woman to cruelty in
connection with demand for dowry soon before her death
and that this ingredient has to be proved by the
prosecution beyond reasonable doubt and only then the
Court will presume that the accused has committed the
offence of dowry death under Section 113-B of the Act.
It referred to with approval, the earlier decision of
this Court in K. Prema S. Rao v. Yadla Srinivasa Rao
[K. Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC
217 : 2003 SCC (Cri) 271] to the effect that to attract
the provision of Section 304-B of the Code, one of the
main ingredients of the offence which is required to be
established is that “soon before her death” she was
subjected to cruelty and harassment “in connection with
the demand for dowry”.”
42. In this case, we have already held that on the evidence led
by the prosecution, a case of cruelty in connection with dowry

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CRLA No. - 1080 of 2020
demand is not at all established against Smt. Shabana Khatoon
and Lal Babu, the two appellants in Criminal Appeal No. 856 of
2020. Once the presumption is not raised, conviction as ordered
by the Trial Court on its basis under Section 304-B IPC cannot be
sustained. No case under Section 4 of the DP Act and under
Section 498-A IPC, for the selfsame reason, is also made out
against these two appellants.
43. Therefore, so far as Criminal Appeal No.856 of 2020 is
concerned, we would acquit the appellants, Smt. Shabana
Khatoon and Lal Babu on all three counts, to wit, under Section
304-B/ 34, 498-A/ 34 IPC and Section 4 of the DP Act.
44. In the result, Criminal Appeal No.1080 of 2020 fails and is
dismissed. Criminal Appeal No. 856 of 2020 succeeds and is
allowed. The appellants, Smt. Shabana Khatoon and Lal Babu,
are acquitted. They need not surrender. Their bail bonds are
cancelled and sureties discharged.
45. The appellants, Smt. Shabana Khatoon and Lal Babu shall
execute a personal bond each in the sum of Rs.25,000/- under
Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(corresponding to Section 437-A of the Code of Criminal
Procedure, 1973) for their appearance, in the event of an appeal
being preferred against their acquittal.
46. Let this order be communicated to the appellant Abrar
Ahmad in Criminal Appeal No.1080 of 2020 through the Jail
Superintendent of the Jail, where he is serving, by the Registrar
(Compliance).
47. Let the lower court records be returned.
(Saurabh Srivastava, J.) (J.J. Munir, J.)
July 01, 2026
Anoop
Digitally signed by :-
ANOOP KUMAR SINGH
High Court of Judicature at Allahabad