Aalmeen And Ors. vs State Of U.P.
- Court
- Allahabad High Court
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 1262 of 2013
Aalmeen and Ors.
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Dheeraj Srivastava, Aman Bahadur,
Anupam Mishra, Bhupendra Veer
Singh, Gaurav Singh, Jyoti Rajpoot,
Manjusha Kapil, Prabhat Kumar
Counsel for Respondent(s) : Govt. Advocate,
Judgment Reserved on : 04.08.2026
Judgment Delivered on: 03.11.2026
Court No. - 1
HON'BLE RAJAN ROY, J.
HON'BLE MANJIVE SHUKLA, J.
(Per: Rajan Roy, J.)
1. Heard Ms. Jyoti Rajpoot, learned counsel for the appellants
and Sri Ravish Chandra Mishra, learned AGA for the State.
2. This is an appeal under Section 374 Cr.P.C. by the
appellants, challenging the judgment and order dated 24.07.2013
passed in Sessions Trial No. 225/12 arising out of case Crime No.
721/11, under Sections 498A, 304B IPC alternate under Section
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302/34 IPC and 3/4 Dowry Prohibition Act, P.S. Nighasan,
District Kheri.
3. The appellant no. 1, Aalmeen (husband) has been convicted
for the offence punishable under Section 304B IPC and has been
sentenced to undergo imprisonment for life.
4. Appellant no. 2, Kameel (father-in-law) and appellant no. 3,
Masaha (mother-in-law) have been convicted and sentenced to
undergo imprisonment for life under Section 302 read with 34
IPC with fine of Rs. 10,000/- each and in default of payment of
fine to undergo three months simple imprisonment. The
appellants no. 2 and 3 have also been sentenced to undergo three
years rigorous imprisonment under Section 498A with a fine of
Rs. 5000/- each and in default of payment of fine to undergo one
month simple imprisonment. The appellants no. 2 and 3 have
further been sentenced to undergo one year rigorous
imprisonment under Section 4 of the Dowry Prohibition Act with
a fine of Rs. 500/- each and in default of payment of fine to
undergo fifteen days simple imprisonment.
5. The prosecution case in nutshell is that the deceased, Ajmat
Jahan @ Chunni, was married to Aalmeen @ Ilias Badakkan, son
of Jamil, about one and a half years before the incident. The
husband and in-laws kept demanding dowry ever since marriage
and ultimately, on the fateful day i.e. on 26.06.2011 at about 5
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CRLA No. - 1262 of 2013
PM, the husband and in-laws poured kerosene oil on the deceased
Ajmat and set her on fire. After setting her on fire, they ran away.
The informant, father of the deceased, came to know about the
incident through other villagers, whereupon, the informant,
mother of the deceased, as also his son Ezad along with other
villagers, reached the house of in-laws of the deceased, where
they found their daughter badly burnt. She was taken to hospital
where she succumbed to her injuries on 30.06.2011. A written
Tehrir was given by the father on 27.06.2011 and the FIR was
lodged on the same day at about 7:15 PM. The husband of the
deceased and the in-laws were mentioned as accused in the FIR
which was initially lodged under Sections 498-A, 323, 307 IPC
and Section 3/4 Dowry Prohibition Act. After death of the
deceased, charge sheet was prepared and filed by the police
against the aforesaid accused under Sections 498-A, 304-B IPC
and Section 3/4 Dowry Prohibition Act.
6. The Chief Judicial Magistrate, Lakhimpur committed the
case to the Sessions Court on 20.03.2012. Charges were framed
against the accused on 29.05.2012 by the Additional District and
Sessions Judge, Court No. 1, Lakhimpur Kheri, in Sessions Trial
No. 225 of 2012 under Sections 498-A, 304-B IPC, Section 3/4
Dowry Prohibition Act and another charge was framed against
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them under Section 302 read with 34 IPC. The accused denied the
charges and demanded trial, accordingly, they were put to trial.
7. The trial court, based on the facts and evidence before it,
found the accused-husband guilty of the offence punishable under
Section 304-B IPC, whereas, the other accused, that is, the in-
laws, were found to be guilty of the offence punishable under
Sections 302 read with 34 and 498-A IPC as also under Section
3/4 of the Dowry Prohibition Act. They were accordingly
sentenced, as already mentioned in the earlier paragraph of the
judgment.
8. The husband was not found guilty of the offence punishable
under Section 302 read with 34 IPC. He, however, was convicted
for the offence punishable under Section 304-B IPC.
9. As per the trial court the husband has been convicted under
Section 304-B IPC, in which the offence punishable under
Section 498-A IPC and Section 3/4 of the Dowry Prohibition Act
are implicit, therefore, a separate order of conviction under the
said provisions and sentencing has not been passed by it.
10. The case of the defence is one of denial and also that they
were not present at the time of the incident.
11. Exhibit Ka-9 is the F.I.R. Exhibit Ka-8 is the dying
declaration of Smt. Ajmat Jahan. Exhibit Ka-11 is the post-
mortem report. Exhibit Ka-1 is the written Tehrir submitted by
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the father of the deceased. Exhibit Ka-2 is the inquest report.
Exhibit Ka-13 is the site plan.
12. The prosecution examined as many as 11 witnesses. PW-1,
Shakil Ahmed, is the father of the deceased. PW-2, Shaibunnisha
@ Chhotkanni, is the mother of the deceased. PW-3 is the Naib
Tehsildar, who got the inquest report prepared. PW-4 is the Naib
Tehsildar, Rakesh Kumar Maurya, who recorded the dying
declaration. PW-5, Ezad Khan, is the brother of the deceased.
PW-6, Yogendra Bahadur Singh, is the Head Moharrir, who
recorded the Chik FIR, made the G.D. entries, on the written
Tehrir submitted by the informant. PW-7, Dr. I.B. Tripathi, is the
autopsy surgeon who conducted the post-mortem. PW-8, Vivek
Chandra, is the then Circle Officer who was the second
Investigating Officer of the case. PW-9, Dr. B.S. Tomar, is the
Doctor who certified the mental state of the deceased while she
was alive for the purposes of recording of her dying declaration
and remained present throughout the same, as per the prosecution.
PW-10 is the 1st Investigating Officer, S.I. Bansraj Pandey. PW-
11 is then Circle Officer, who was the third Investigating Officer,
having taken over investigation from Sri Vivek Chandra, the
second Investigating Officer.
13. The defence examined 2 witnesses, DW-1 Chunna and DW-
2 Jamaluddin, both of whom are neighbours of the accused.
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14. The statements of the accused were recorded under Section
313 Cr.P.C. on 03.07.2013.
15. The contentions of the counsel for the appellants may be
summarized as under:
(i) The FIR was delayed, having been lodged on the next day of
the incident at 7:15 PM, which left room for deliberation,
consultation and false implication.
(ii) PW-1, PW-2 and PW-5, that is, the father, mother and brother
of the deceased, did not support the prosecution case, which goes
to show that it was a case of false implication under the pressure
of family members and villagers.
(iii) The pre-requisites for attracting Section 304-B IPC and
Section 113-B of the Indian Evidence Act, that is, cruelty and
harassment in connection with demand for dowry soon before
death, was not proved, yet, the learned trial court has recorded a
finding to the contrary on the basis of conjectures and surmises,
which is not supported by evidence.
(iv) The dying declaration of the deceased is wholly unreliable
and full of contradictions, especially as, the Doctor admitted that
he did not conduct a physical or clinical examination, nor did he
check the patient's blood pressure/pulse rate during or before
recording of the statement.
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(v) The dying declaration is also unreliable because of the access
of near relatives, that is, the mother and brother, to the patient just
before recording of dying declaration.
(vi) The statement of PW-10, the Investigating Officer, that when
he went to record the statement of the victim while she was alive,
she was told that her condition was not such that she could give a
statement and that the same had already been recorded by the
Magistrate, itself establishes that she was not in a fit state of mind
to give any dying declaration, therefore, the one that has been
recorded is wholly unreliable.
(vii) PW-10 did not even record the statement of the Doctor or the
Magistrate on the relevant date.
(viii) The short statement, which is sought to be relied upon by
the prosecution as the dying declaration, is apparently
contradictory, as, in the preceding lines she has implicated the
mother-in-law alone as the one who had poured kerosene oil and
burnt her, whereas, in the subsequent lines, she has also roped in
the father-in-law which makes the dying declaration unreliable,
as, it shows that it was the result of prompting, tutoring and
mental confusion arising from severe traumatic burn shock and
heavy sedation.
(ix) The doctor concerned has not given a prior fitness
certification of the victim before recording of her dying
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declaration. Moreover, the thumb impression on the dying
declaration does not mention as to whether it is the right or left
thumb, which was relevant considering the fact that the victim is
said to have been burnt badly and there were burn injuries all
over the body.
(x) The doctor who conducted the post-mortem did not find any
ante-mortem injuries other than the burn injuries which belies the
statement in the dying declaration of being beaten up for not
fulfilling the demand of dowry by the in-laws and husband.
(xi) The use of the word ' vkfn ' repeatedly in the dying declaration
is quite unnatural considering the fact that the victim was a
Muslim and, even otherwise, nobody while giving a statement or
dying declaration would use such words, which means that the
Naib Tehsildar, who claims to have recorded the dying
declaration, has used his own words and they are not of the
victim. It was prompted by third parties/relatives present there
prior to recording of the statement.
(xii) As per Modi's Medical Jurisprudence and Toxicology,
homicidal burning by pouring liquid kerosene from above
invariably results in gravity-driven downward flow, causing burn
injuries, splash patterns, hair singeing over the scalp, face, neck
and upper limbs. However, the findings of the post-mortem report
do not tally with the aforesaid authority on medical jurisprudence.
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CRLA No. - 1262 of 2013
The complete preservation/sparing of the head, face, neck and
right arm is physically inconsistent with homicidal kerosene
pouring, strongly pointing to self-immolation or an accidental fire
where the victim covered her face.
(xiii) The Investigating Officer admitted that he did not find any
burnt clothes, nor did he find any container/cane of kerosene oil,
matchbox at the scene of crime, and there were no physical marks
of struggle, which belies the entire prosecution case that the
victim was set on fire after pouring kerosene oil, as, this would
have necessarily entailed a struggle and also burning of other
things which were lying around and would have certainly been
possible only if kerosene oil had been stored in some container,
with matchsticks being found on the scene, which is not the case.
(xiii) PW-5, in whose presence the inquest report was prepared,
has clearly stated that in the inquest report, no allegations of
demand of dowry or homicidal burning were recorded.
(xiv) The trial court has failed to appreciate the defence evidence
in the form of DW-1 and DW-2 who clearly stated that the
accused were not at home at the time of the incident and that the
victim came out of the house while on fire and threw herself in a
ditch.
(xv) The trial court has also ignored the plea of alibi/non-presence
of the accused at the time of the incident as also separate
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residence of the in-laws in their statement under Section 313
Cr.P.C., which was fully corroborated by the statements of the
defence witnesses DW-1 and DW-2.
(xvi) Once all the primary witnesses of fact (PW-1, PW-2, PW-5)
did not support the prosecution case and the defence witnesses
supported the defence case, then, the trial court did not have any
evidence before it to convict the accused of the offences for
which they had been charged.
(xvii) While Exhibit Ka-8 alleges pouring of kerosene oil, the
post-mortem report, Exhibit Ka-11, proves complete preservation
of the head, face, neck and right arm, which is a physical
impossibility under Modi's Medical Jurisprudence for downward
kerosene flow.
(xviii) The trial court committed a fundamental legal error by
splitting the offence and convicting appellant No. 1 under Section
304-B IPC and appellants No. 2 and 3 under Section 302 IPC on
the basis of the same evidence.
(xix) There is a direct contradiction between forensic medical
evidence and the dying declaration. The appellant-Aalmeen,
husband of the victim, took her to the hospital, which was a
circumstance wholly in favour of the accused and against the
prosecution case, but the trial court has brushed aside the same on
flimsy grounds.
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(xx) The appellants have remained in jail for long. Appellants
No. 2 and 3 have remained in jail for 18 years, whereas,
Appellant No. 1 has remained in jail for 7 years on the basis of
their conviction, which in turn is based purely on conjectures,
suspicion and surmises.
16. For all these reasons, the learned counsel for the appellants
has sought setting aside of the impugned judgment of conviction
as also the sentence imposed, and alternatively, modification and
reduction of the sentence of the appellants to the period already
undergone. Learned counsel for the appellant has relied upon the
following decisions in support of her contentions aforesaid: -
(i) Paparambaka Rosamma and others vs. State of A.P.; AIR
1999 SC 3455 ;
(ii) State of Rajasthan vs. Wakteng; AIR 2007 SC 2020;
(iii) Atbir vs. Government of NCT of Delhi; (2010) 9 SCC 1 ;
(iv) Bhajju Alias Kiran Singh vs. State of Madhya Pradesh;
(2012) 4 SCC 327 ;
(v) K. Ramachandra Reddy and another vs. Public Prosecutor;
(1976) 3 SCC 618 ;
(vi) The State of Punjab vs. Bhajan Singh and others; (1975) 4
SCC 472 ; and
(vii) Paniben (Smt.) vs. State of Gujarat; (1992) 2 SCC 474 .
17. On the other hand, learned A.G.A., Sri Ravish Mishra,
contended that merely because PW-1, PW-2 and PW-5 had turned
hostile does not mean that their entire testimony is liable to be
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discarded. The law is settled that even such testimonies, to the
extent they support the prosecution case, can be relied upon. In
the case at hand, PW-1, PW-2 and PW-5 have accepted the fact
that their daughter was burnt alive and died as a result of such
burn injuries. As regards they having turned hostile, the trial court
has rightly opined that they were won over. Merely because they
turned hostile would not make the prosecution case unreliable in
view of the dying declaration of the victim which has been
proved by the doctor who remained present throughout its
recording, as also by the Naib Tehsildar who recorded the same.
The doctor has certified that she was in a good state of mind, and
likewise, the Naib Tehsildar has also proved that she was in the
right state of mind to get her statement recorded. There are no
such major inconsistencies or contradictions in the dying
declaration as to make the same unreliable. The conduct of the
accused is also a relevant factor considering that even after the
incident, none of them lodged the FIR, which was lodged by the
maternal family of the victim. Further, it is the maternal family
members who took the victim to the hospital. The in-laws had run
away. Minor lapses on the part of the investigation will not belie
the prosecution case, especially in view of the dying declaration
of the victim. The trial court has rightly convicted the appellants
and its judgment does not require any interference.
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18. In support of his contentions, learned AGA, Sri Ravish
Mishra relied upon the decisions of Hon’ble the Supreme Court
in Bhagwan Singh vs. The State of Haryana; (1976) 1 SCC 389 ;
Laxman vs. State of Maharashtra; (2002) 6 SCC 710 ; and
Dayaram and another vs. State of Madhya Pradesh; (2020) 13
SCC 382 .
19. Post mortem report Exhibit Ka-11 mentions the ante
mortem injuries of the victim as under:
“Sup. to deep burn all over body except Head, face, neck
perineum, Rt. Arm & forearm & both soles.”
Cause of death is due to septicemia as a result of ante
mortem burn injury.
20. PW-7 the Autopsy Surgeon has proved the post mortem
report, ante mortem injuries and cause of death mentioned
therein. He has categorically stated “ e`rdk dh e`R;q tyus ds dkj.k gqbZ
FkhA ” in his cross-examination. The defence could not impeach his
credibility or that of the post mortem report in any manner.
21. From the evidence on record, especially the post-mortem
report and testimony of the autopsy surgeon (Pw-7), it is
established beyond doubt that the deceased did not die a natural
death. She died on account of septicaemia as a result of ante-
mortem burn injuries.
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CRLA No. - 1262 of 2013
22. The question is as to whether appellant No. 1, husband, is
guilty of having committed the offence punishable under Section
304-B IPC, Section 498-A IPC and Section 3/4 of the Dowry
Prohibition Act, and whether appellants No. 2 and 3 are guilty of
having committed the offence of murder punishable under
Section 302 read with Section 34 IPC.
23. The crime was committed on 26.06.2011 at about 5.00 pm.
Victim was taken to the hospital. FIR was lodged on 27.06.2011
at 7.15 pm by the father. Considering the fact that she was badly
burnt it is quite natural that the maternal family members would
have been focussing all their attention and energy in ensuring
proper medical treatment to her. The situation may not have been
clear for quite sometime as to whether it was foul play, therefore,
the fact that FIR was lodged next day by itself does not discredit
the prosecution case.
24. PW-1, father of the deceased, admits in his examination-in-
chief to having given the written Tehrir dated 27.06.2011, he also
admits the contents mentioned therein, but says that he submitted
the Tehrir under the pressure of the villagers and relatives, and
has not supported the prosecution case in his testimony before the
court and was declared hostile, but, he does not deny having
given the Tehrir. In fact, in his cross-examination also, he has
stated that the Circle Officer had recorded his statement and that
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CRLA No. - 1262 of 2013
he had told the Circle Officer about demand of dowry and of ill-
treatment/cruelty by the accused for dowry, and also that they had
poured kerosene oil on her and set her on fire. However, he has
denied having told the Circle Officer about demand of dowry
immediately after marriage and that his daughter was often beaten
up and was harassed and treated with cruelty. He has also denied
having told the Circle Officer about the deceased telling him
about such cruelty and the accused having run away after setting
her on fire nor that the statement of his daughter was recorded by
the Magistrate. He has, however, admitted that his daughter had
died in the house of the in-laws, even in his cross-examination. In
his examination-in-chief also, he has stated that when he reached
the hospital where the daughter was admitted, she was in a state
of having been burnt. Even PW-2 has stated that her daughter was
burnt at her in laws house. She was taken by them i.e. maternal
family to the District Hospital, Rakhati, Nighasan and from there
to Government Hospital Lakhimpur. She died on the fourth day of
the incident. Aalmeen, etc. were not at the hospital. Nobody from
the in laws was present at the hospital. The maternal family got
the victim treated. In cross-examination also she has stated that
all members of the maternal family were asked to go out of the
room when the dying declaration was to be recorded. Of course,
she has turned hostile, but, as stated to the extent she has
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CRLA No. - 1262 of 2013
supported the prosecution case, her testimony is admissible. To
the extent testimony of PW-1 and PW-2 supports the prosecution
case it is admissible and can be relied.
25. Dying declaration (Exhibit Ka-8) of the deceased was
recorded the very next day of the incident.
26. The dying declaration reads as under:
“ ZJherh vter tgkWa 20 o"kZ iRuh vkyehu fuoklh xzke cfuxokWa Fkkuk fu?
kklu ftyk& [khjh Lfkku& ftyk vLirky y[kheiqj] cuZ okMZ frfFk o
le; & fn0 27-6-11 06-00 PM
c;ku fd;k fd esjh 'kknh ,d lky igys cfuxoka esa gqbZ FkhA esjh 'kknh ds
ckn ls gh esjs lkl&llqj ngst xkM+h vkfn lkeku ds fy;s ekj&ihV djrs
jgrs FksA dy fnu esa esjs lkl us esjs Åij feV~Vh dk rsy Mkydj tyk
fn;k x;kA esjk ifr Hkh eq>s eksVj lkbfdy] TV vkfn ds fy;s ekjrk
ihVrk gSA eq>s ngst ds fy;s esjs lkl&llqj us tyk;k gSA
fu0 va0 vter tgka
c;ku fy[kdj rLnhd fd;kA
She was well oriented to
time place and person
during conversation, fit
for DD
Sd/-
27.6.11
6.10 PM”
Sd/-
27.6.11
6.10 PM
EMO
Distt Hospital Kheri
27. PW-9, the doctor, has certified fitness of the victim to give
dying declaration. PW-9 has also proved the endorsement made
by him on the dying declaration. PW-4 has clearly stated that PW-
9 remained present throughout recording of the dying declaration
of the victim.
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CRLA No. - 1262 of 2013
28. The endorsement made by PW-9 on the dying declaration is
not merely about the patient being conscious, but, being fit to
give a statement/declaration. He has recorded his satisfaction in
this regard on the basis of questions put to her regarding the time,
place and persons, by PW-9. In his examination-in-chief, he has
categorically stated as under:
“ eSaus c;ku ntZ gksus ls iwoZ Jherh vter tgkWa dk ijh{k.k fd;k FkkA
vter tgkWa iwjs gks'kks gokl esa FkhA le;] fdl LFkku ij gS vkSj vxy
cxy ds O;fä;ksa dh igpku djus esa l{ke FkhA mldh ekufld voLFkk
LoLFk FkhA vkSj ;g c;ku nsus dh fLFkfr esa Fkh rHkh eSaus uk;c rglhynkj
dks c;ku ntZ djus dh vuqefr nh FkhA c;ku ij eSaus viuh vk[;k O;ä
dh Fkh vius gLrk{kj fd;s FksA izn'kZ d&8 xokg us ns[kdj dgk fd ;g
ogh e`R;q iwoZ c;ku gS tks uk;c rglhynkj ds }kjk vter tgka ds cksyus
ij fy[kk x;k FkkA bl ij esjh vk[;k o gLrk{kj gSA ”
29. In cross-examination, the defence has not been able to
impeach the credibility of the testimony of PW-9 in this regard at
all. In fact, PW-9, the doctor has categorically stated in his cross-
examination as under:
“ og c;ku nsus esa vleFkZ ugh FkhA Jherh vter tgka dh iYl] CyM
izs'kj ml le; uksV ugh fd;k FkkA iYl] CyM izs'kj lqcg 'kke uksV gksrh
gSA eSaus ekufld Consciousness ns[kh FkhA esfMdy ijh{k.k ugh fd;k
FkkA
eSusa viuh jk; dk vk/kkj Vkbe] Iysl] vkSj ijlu ds vk/kkj ij fn;k
gS ;fn ge fdlh ds Vkbe] Iysl o ijlu ds ckjs esa iwNrs gS vkSj og crk
nsrk gS rks ge le> tkrs gS fd og tkx:d gSA ”
30. From the endorsement on the dying declaration and the
statement of PW-9, the mental fitness of the victim to give a
dying declaration is amply proved. Though the dying declaration
has not been recorded in question and answer form, but, PW-9
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CRLA No. - 1262 of 2013
has clearly stated that he had evaluated her state of mind as to
whether she was fit for giving a statement, by putting questions to
her with regard to time, place and person, and this testimony has
not been impeached in cross-examination by the defence.
31. This is further endorsed from the testimony of Naib
Tehsildar (PW-4) who recorded the dying declaration. He has
stated in his examination-in-chief “ MkDVj oh0,l0 rksej esjs lkFk c;ku
ds le; mifLFkr jgs Fks vkSj mUgksus ejht dh voLFkk ns[kdj crk;k Fkk fd
ejht iwjh rjg gks'kks gokl esa gS vkSj c;ku nsus dh fLFkfr es gS tc eSus vkyehu
ls ?kVuk ds lEcU/k esa c;ku nsus ds fy;s dgk Fkk mlus tks c;ku fn;k Fkk og
eSaus mlh izdkj v{kj'k% fy[kk FkkA
”
32. In his cross-examination he has testified
- “ vter tgka Li"V
cksy jgh FkhA mldh vkokt lkQ FkhA ;g dguk xyr gS fd vter tgkaW cksy
ugh ik jgh gks vkSj eSaus QthZ c;ku vafdr fd;k FkkA
”
33. No doubt, PW-9 has stated that the BP and pulse of the
victim were not examined, but, both PW-4 and PW-9 have
categorically stated about mental fitness of the victim to give her
statement/dying declaration.
34. Merely because most of the body of the victim was burnt
does not create a doubt on the dying declaration considering the
evidence that her head, face, neck, perineum, right arm and
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CRLA No. - 1262 of 2013
forearm both sides were not burnt especially in view of
unimpeachable testimony of PW-4 and PW-9.
35. As regards the emphasis laid by the appellants’ counsel
upon the statement of the Investigating Officer that when he went
to record the statement of the victim, the mother told him that her
statement had been recorded by the Magistrate a few hours ago,
and that her condition was not good, and that she was not in a
condition to give a statement, this by itself does not take away
from the reliability of the dying declaration as recorded by the
Naib Tehsildar in the presence of the doctor, PW-9, for the
reasons given hereinabove.
36. As regards presence of the family members in the hospital,
near the victim, before recording of her dying declaration, it was
quite natural in the circumstances in which she had been
admitted, but, that by itself does not persuade us to doubt the
reliability of the dying declaration. When we peruse the dying
declaration, we find that though she has alleged cruel treatment
by the husband in connection with demand of dowry, but, she has
not implicated him so far as pouring of kerosene oil and setting
her on fire is concerned. In fact, she has not spoken about his
presence at the time of commission of crime. This is a factor
which points towards the truthfulness of the dying declaration
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CRLA No. - 1262 of 2013
which has been proved by PW-9 and PW-4. She has only spoken
about involvement of the mother-in-law and father-in-law.
37. The fact that initially she mentioned about the mother-in-
law as having poured kerosene and set her on fire, and thereafter
she has also stated about the father-in-law, is also not a
circumstance which would create doubt upon the veracity of her
dying declaration by itself, considering the circumstances in
which the same was being made. They were not present during
recording of the dying declaration of her daughter, as testified by
PW-4 and PW-9.
38. So far as the emphasis laid by the appellants’ counsel on the
fact that PW-1, PW-2 and PW-5 had turned hostile, no doubt, it is
so, but, at the same time, PW-1 does not deny the marriage of his
daughter with the appellant No. 1 about 1.5 years prior to the
incident, thus, the factum of marriage and death having taken
place within 7 years of the marriage is proved even from the
statements of PW-1, PW-2 and PW-5, further, he has also testified
that when he reached the hospital, he found his daughter burnt
and that she was burnt at her in laws place, as already discussed.
As stated earlier, testimonies of PW-1 and PW-2 to the extent
they support the prosecution case are admissible and reliable.
39. As regards the contention that no clothes, etc., were found
burnt at the scene of crime, nor any container of kerosene oil,
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etc., nor any matchstick was found, PW-9, IO has stated that there
were no doors in the roofed rooms, all were open. Moreover, PW-
10 visited the scene of crime on 28.06.2011 i.e. two days after the
incident. This was a lapse on the part of the investigation which
was not conducted properly and thus, the fact that burnt items
were not recovered by itself does not persuade us to disbelieve
the prosecution case considering the other evidence on record as
discussed hereinabove, especially as, DW-1 and DW-2 have
themselves stated that the victim came running out of the home
while on fire.
40. It is amply proved from the medical evidence on record that
the right arm, forearm and palm were not burnt, therefore, the fact
that the dying declaration which contains thumb impression but
does not specifically mention whether it was of the left or right
arm, by itself is of no consequence to disbelieve the prosecution
case.
41. The contention that the use of the word ' vkfn ' in the dying
declaration at several places itself is testimony of the fact that the
words mentioned therein are not those of the deceased, at first
blush did appear to be an attractive argument, but, considered in
totality, we are not ready to disbelieve the dying declaration after
the testimony of PW-4 and PW-9, merely on this count. The
possibility of other items sought to have been mentioned by the
22
CRLA No. - 1262 of 2013
deceased, which may not have been audible, and the use of the
word ' vkfn ' in these circumstances cannot be ruled out.
42. Even DW-1 and DW-2 have stated that when she came out
of the house while on fire and threw herself into the ditch, even
thereafter she was able to speak, meaning thereby, she was in a
position to speak, as such, even as per the defence evidence the
contention that she may not have been in a position to get her
dying declaration recorded, cannot be accepted, especially in
view of the testimony of PW-4 and PW-9.
43. The fact that the inquest report does not mention about any
allegation of dowry is inconsequential, as, that is not the purpose
of preparing the inquest report nor is there any requirement in law
that such fact should be mentioned in the inquest report. The law
is very well settled on this count.
44. There is no evidence to prove that the kerosene oil was
poured from the top so as to attract the authorities relied upon by
the appellants and the reasoning given therein.
45. On the question as to who took the victim to hospital. Of
course, PW-1 in his examination-in-chief has stated that when
they reached the house of the in-laws of the deceased, they were
told that the victim had been taken to the hospital by her husband
and in-laws, but, PW-2, the mother, has testified otherwise.
Though she also turned hostile, she has stated that her daughter
23
CRLA No. - 1262 of 2013
was lying burnt in her in-law's house and they (maternal family
members) took her to the District Hospital, Nighasan, and from
there they took her to the Government Hospital, Lakhimpur. She
has stated that the husband of the victim, Aalmeen, etc. were not
present in the hospital. There was nobody from the in-laws in the
hospital. The maternal family members got the treatment done.
Of course, she has denied other facts.
46. The Investigating Officer has stated that he did not make
any effort to find out who had admitted the victim in the hospital.
In the statement under Section 313 Cr.P.C., none of the accused
have claimed to have taken the victim to the hospital. In fact, the
defence witness, DW-1 has stated that the accused were not at
home when the incident took place. The younger son of appellant
No. 2 called the husband of the victim, Aalmeen, who was taking
the victim to the hospital on a Dunlop when the maternal family
members arrived who took the victim to the hospital. DW-2 has,
however, stated that the deceased was taken to the hospital by her
maternal family members, in his cross-examination. The FIR, of
course, was not lodged by the in-laws, neither by the husband nor
the in-laws, nor is there any evidence to show that any intimation
was given by them about the incident to the police concerned or
the maternal family of the deceased.
24
CRLA No. - 1262 of 2013
47. The written Tehrir was given on the next day by the father
of the deceased. In the written Tehrir, it is stated that her (victim)
statement has not yet been recorded and that she may die any
moment in the hospital where she has been admitted. This is
slightly incongruous because as per PW-6, the Head Moharrir
who received the written Tehrir, the same was submitted by
Shakir Ahmed and his son, on 27.06.2011 at 7:15 p.m., whereas,
the dying declaration had been recorded on the same date at 6:10
p.m. in the hospital, but, the possibility of the written Tehrir,
which was typed, having been prepared prior to 6:10 p.m. and
submitted in the police station, and the fact that these two persons
may not have been present at the hospital, cannot be ruled out. No
doubt, the Naib Tehsildar and the doctor, that is PW-4 and PW-9,
have spoken about the presence of family members of the
deceased before the dying declaration was recorded and have
specifically mentioned about the mother, but, there is no mention
about the presence of the father and the brother, who are said to
have submitted the written Teahrir at the police station, therefore,
this slight discrepancy does not by itself make the prosecution
case unbelievable.
48. Appellants No. 2 and 3 have taken the plea of alibi, and the
defence witnesses DW-1 and DW-2 have also spoken about their
non-presence at the time and place of crime. They have, in fact,
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CRLA No. - 1262 of 2013
stated that the victim came out of the house with her body on fire
and threw herself in a ditch, but, none of the defence witnesses
have stated as to the place where appellants No. 2 and 3 were
present at the time of commission of the crime. In fact, it has been
amply proved from the evidence of DW-1 and DW-2, as also
from the statements of PW-1, PW-2 and PW-5, that the victim
was set on fire in her in-laws' house. It being so, the burden was
on appellants No. 2 and 3 to have offered an explanation in this
regard. If appellants No. 2 and 3 specifically took the plea of alibi
in their statements under Section 313 Cr.P.C., then, they should
have proved their presence elsewhere by adducing evidence.
Merely stating that they were not present in the house would not
suffice. They had to prove their presence elsewhere at the same
time at which the crime is alleged to have been committed.
49. In the dying declaration (Exhibit Ka-8), the deceased has
specifically mentioned about the offence having been committed
by the mother-in-law and father-in-law, though not by her
husband. The presence of appellants No. 2 and 3 at the scene of
crime has been proved from the dying declaration itself.
50. Though the husband, Aalmeen, has not offered any
explanation about the place of his presence at the time of
commission of the crime, but, considering that in the dying
declaration, the wife has not mentioned him as being present and
26
CRLA No. - 1262 of 2013
having poured kerosene oil on her nor the prosecution has led any
evidence to prove his presence at the place or time the crime was
committed, he was not required in law, to offer any explanation.
51. Based on the evidence discussed hereinabove, we are of the
opinion that the prosecution has proved the charge of murder
against appellants No. 2 and 3 punishable under Section 302 read
with Section 34 IPC beyond reasonable doubt. None of the
decisions relied upon are of any avail, in view of the evidence
discussed hereinabove.
52. However, so far as the conviction of appellant No. 1, the
husband under Section 304-B IPC, is concerned, we are of the
considered opinion that once it is proved beyond reasonable
doubt that the deceased was murdered by the father-in-law and
the mother-in-law, then, there is no question of applying the
presumption under Section 113-B of the Indian Evidence Act to
prove the charge framed against appellant No. 1 under Section
304-B IPC. The trial court has erred in doing so. The presumption
under Section 113-B of the Indian Evidence Act would apply only
when there is no evidence to prove the death being a murder and
it is only then that the presumption referred in the said Section is
to be applied. Once the charge of murder of the deceased
daughter in law by the appellant Nos. 2 and 3 is proved beyond
reasonable doubt, then, there is no way that we can hold appellant
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CRLA No. - 1262 of 2013
No. 1 (husband) guilty of dowry death based on the presumption
under Section 113-B of the Indian Evidence Act.
53. We may in this context refer to Para 15 of the decision
reported in (2013) 7 SCC 256; Jasvinder Saini and others vs.
State (Government of NCT of Delhi) :
“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.
……………………………………...”
54. Trial Courts often commit the mistake in case of dowry
deaths either in not framing the charge punishable under Section
302 IPC if there is evidence prima facie or if framed, in not
considering the evidence from the point of view of the said
charge because it has been framed as an alternative charge, if the
charge for the offence under Section 304-B IPC is proved. This is
an erroneous approach. If there is prima facie evidence to frame a
28
CRLA No. - 1262 of 2013
charge under Section 302 IPC, it has to be framed as the main
charge and the other charge under Section 304-B IPC would be
the alternative charge which will be considered if the main charge
is not proved. It is for this reason, to allay any confusion as to the
legal position in this regard, we deem it necessary to refer to
certain precedents. Of course in the case at hand the Trial Court
has not committed this error but has committed another error in
convicting the appellant no. 1 of having committed the offence
punishable under Section 304-B IPC even when it was
established that it was a case of murder committed by appellants
no. 2 and 3 which, for the reason discussed earlier could not have
been done. In this context also these precedents are relevant. To
drive home the point further we may also quote extracts of a
decision reported in (2014) 15 SCC 163; Vijay Pal Singh and
others vs. State of Uttarakhand on this issue:
“16. Since, the victim in the case is a married woman and
the death being within seven years of marriage, apparently,
the Court has gone only on one tangent, to treat the same as
a dowry death. No doubt, the death is in unnatural
circumstances but if there are definite indications of the
death being homicide, the first approach of the prosecution
and the Court should be to find out as to who caused that
murder. Section 304-B IPC is not a substitute for Section
302 IPC. The genesis of Section 304-B IPC introduced w.e.f.
19-11-1986 as per Act 43 of 1986 relates back to the 91st
Report of the Law Commission of India. It is significant to
note that the subject was taken up by the Law Commission
suo motu. Para 1.3 of the Report reads thus:
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CRLA No. - 1262 of 2013
"1.3. The approach to be adopted. If, in a particular
incident of dowry death, the facts are such as to
satisfy the legal ingredients of an offence already
known to the law, and if those facts can be proved
without much difficulty, the existing criminal law can
be resorted to for bringing the offender to book. In
practice, however, two main impediments arise-
(i) either the facts do not fully fit into the pigeon-hole
of any known offence; or
(ii) the peculiarities of the situation are such that
proof of directly incriminating facts is thereby
rendered difficult.
The first impediment mentioned above is aptly
illustrated by the situation where a woman takes her
life with her own hands, though she is driven to it by
ill-treatment. This situation may not fit into any
existing pigeon-hole in the list of offences recognised
by the general criminal law of the country, except
where there is definite proof of instigation,
encouragement or other conduct that amounts to
'abetment' of suicide. Though, according to newspaper
reports, there have been judgments of lower courts
which seem to construe 'abetment' in this context
widely, the position is not beyond doubt.
The second situation mentioned above finds
illustration in those incidents in which, even though
the circumstances raise a strong suspicion that the
death was not accidental, yet, proof beyond
reasonable doubt may a not be forthcoming that the
case was really one of homicide. Thus, there is need to
address oneself to the substantive criminal law as well
as to the law of evidence.”
18. However, it is generally seen that in cases where a
married woman dies within seven years of marriage,
otherwise than under normal circumstances, no inquiry is
usually conducted to see whether there is evidence, direct or
circumstantial, as to whether the offence falls under Section
302 IPC. Sometimes, Section 302 IPC is put as an alternate
charge. In cases where there is evidence, direct or
circumstantial, to show that the offence falls under Section
30
CRLA No. - 1262 of 2013
302 IPC, the trial court should frame the charge under
Section 302 IPC even if the police has not expressed any
opinion in that regard in the report under Section 173(2)
CrPC. Section 304-B IPC can be put as an alternate charge
if the trial court so feels. In the course of trial, if the court
finds that there is no evidence, direct or circumstantial, and
proof beyond reasonable doubt is not available to establish
that the same is not homicide, in such a situation, if the
ingredients under Section 304-B IPC are available, the trial
court should proceed under the said provision. In Muthu
Kutty v. State², this Court addressed the issue and held as
follows: (SCC pp. 122-23, para 20)
"20. A reading of Section 304-B IPC and Section 113-
B, Evidence Act together makes it clear that law
authorises a presumption that the husband or any
other relative of the husband has caused the death of
a woman if she happens to die in circumstances not
normal and that there was evidence to show that she
was treated with cruelty or harassed before her death
in connection with any demand for dowry. It,
therefore, follows that the husband or the relative, as
the case may be, need not be the actual or direct
participant in the commission of the offence of death.
For those that are direct participants in the
commission of the offence of death there are already
provisions incorporated in Sections 300, 302 and 304.
The provisions contained in Section 304-B IPC and
Section 113-B of the Evidence Act were incorporated
on the anvil of the Dowry Prohibition (Amendment)
Act, 1984, the main object of which is to curb the evil
of dowry in the society and to make it severely
punitive in nature and not to extricate husbands or
their relatives from the clutches of Section 302 IPC if
they directly cause death. This conceptual difference
was not kept in view by the courts below. But that
cannot bring any relief if the conviction is altered to
Section 304 Part II. No prejudice is caused to the
accused-appellants as they were originally charged
for offence punishable under Section 302 IPC along
with Section 304-B IPC.”
20. Though in the instant case the accused were charged by
the Sessions Court under Section 302 IPC, it is seen that the
trial court has not made any serious attempt to make an
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CRLA No. - 1262 of 2013
inquiry in that regard. If there is evidence available on
homicide in a case of dowry death, it is the duty of the
investigating officer to investigate the case under Section
302 IPC and the prosecution to proceed in that regard and
the court to approach the case in that perspective. Merely
because the victim is a married woman suffering an
unnatural death within seven years of marriage and there is
evidence that she was subjected to cruelty or harassment on
account of demand for dowry, the prosecution and the court
cannot close its eyes on the culpable homicide and refrain
from punishing its author, if there is evidence in that regard,
direct or circumstantial.
23. In two of the early decisions of this Court, after the
introduction of Section 304-B IPC, the ingredients of the
offence and the interplay of Section 304-B IPC with
Sections 498-A, 302, 306 IPC have also been discussed. In
State of Punjab v. Iqbal Singh, the Court in para 8 stated
that: (SCC pp. 9-10, para 8)
“8. The legislative intent is clear to curb the menace
of dowry deaths, etc., with a firm hand. We must keep
in mind this legislative intent. It must be remembered
that since crimes are generally committed in the
privacy of residential homes and in secrecy,
independent and direct evidence is not easy to get.
That is why the legislature has by introducing Sections
113-A and 113-B in the Evidence Act tried to
strengthen the prosecution hands by permitting a
presumption to be raised if certain foundational facts
are established and the unfortunate event has taken
place within seven years of marriage. This period of
seven years is considered to be the turbulent one after
which the legislature assumes that the couple would
have settled down in life. If a married woman is
subjected to cruelty or harassment by her husband or
his family members Section 498-A IPC would be
attracted. If such cruelty or harassment was inflicted
by the husband or his relative for, or in connection
with, any demand for dowry immediately preceding
death by burns and bodily injury or in abnormal
circumstances within seven years of marriage, such
husband or relative is deemed to have caused her
death and is liable to be punished under Section 304-
B IPC. When the question at issue is whether a person
is guilty of dowry death of a woman and the evidence
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CRLA No. - 1262 of 2013
discloses that immediately before her death she was
subjected by such person to cruelty and/or harassment
for, or in connection with, any demand for dowry,
Section 113-B of the Evidence Act provides that the
court shall presume that such person had caused the
dowry death. Of course if there is proof of the person
having intentionally caused her death that would
attract Section 302 IPC. Then we have a situation
where the husband or his relative by his wilful conduct
creates a situation which he knows will drive the
woman to commit suicide and she actually does so,
the case would squarely fall within the ambit of
Section 306 IPC. In such a case the conduct of the
person would tantamount to inciting or provoking or
virtually pushing the woman into a desperate situation
of no return which would compel her to put an end to
her miseries by committing suicide."
55. In this very context, we may also refer to another decision
of the Supreme Court of India reported in 2001 (2) SCC 577;
Shamnsaheb M. Multtani vs. State of Karnataka . While the
issue involved in the said case was slightly different,
nevertheless, the scope and purport of Section 304-B IPC and the
presumption attached to the offence referred therein by way of
Section 113-B of the Indian Evidence Act vis-à-vis the offence
under Section 302 IPC was considered and the
observations/reasonings given by the Supreme Court throw some
light on the interplay of the two provisions, which is relevant as
guidance to the courts dealing with criminal trials pertaining to
dowry death and the charge under Section 302 IPC as well as
under Section 304-B IPC. We may, therefore, extract relevant
paragraphs of the said report as under:
33
CRLA No. - 1262 of 2013
“27. The postulates needed to establish the said offence are:
(1) death of a wife should have occurred otherwise than
under normal circumstances within seven years of her
marriage; (2) soon before her death she should have been
subjected to cruelty or harassment by the accused in
connection with any demand for dowry. Now reading
Section 113-B of the Evidence Act, as a part of the said
offence, the position is this: If the prosecution succeeds in
showing that soon before her death she was subjected by
him to cruelty or harassment for or in connection with any
demand for dowry and that her death had occurred (within
seven years of her marriage) otherwise than under normal
circumstances "the court shall presume that such person
had caused the dowry death".
-------------------------------------------
31. Now take the case of an accused who was called upon
to defend only a charge under Section 302 IPC. The burden
of proof never shifts onto him. It ever remains on the
prosecution which has to prove the charge beyond all
reasonable doubt. The said traditional legal concept
remains unchanged even now. In such a case the accused
can wait till the prosecution evidence is over and then to
show that the prosecution has failed to make out the said
offence against him. No compulsory presumption would go
to the assistance of the prosecution in such a situation. If
that be so, when an accused has no notice of the offence
under Section 304-B IPC, as he was defending a charge
under Section 302 IPC alone, would it not lead to a grave
miscarriage of justice when he is alternatively convicted
under Section 304-B IPC and sentenced to the serious
punishment prescribed thereunder, which mandates a
minimum sentence of imprisonment for seven years.
32. The serious consequence which may ensue to the
accused in such a situation can be limned through an
illustration: If a bride was murdered within seven years of
her marriage and there was evidence to show that either on
the previous day or a couple of days earlier she was
subjected to harassment by her husband with demand for
dowry, such husband would be guilty of the offence on the
language of Section 304-B IPC read with Section 113-B of
the Evidence Act. But if the murder of his wife was actually
committed either by a dacoit or by a militant in a terrorist
34
CRLA No. - 1262 of 2013
act the husband can lead evidence to show that he had no
hand in her death at all. If he succeeds in discharging the
burden of proof he is not liable to be convicted under
Section 304-B IPC. But if the husband is charged only
under Section 302 IPC he has no burden to prove that his
wife was murdered like that as he can have his traditional
defence that the prosecution has failed to prove the charge
of murder against him and claim an order of acquittal”
56. From what has been observed by the Supreme Court in the
aforesaid decision in Shamnsaheb M. Multtani (supra) , it is
evident that on satisfaction of the prerequisites attracting the
offence under Section 304-B IPC, Section 113-B of the Evidence
Act comes into play and the Court shall presume that such person
had caused dowry death, but in a case such as the one at hand,
where appellants No. 2 and 3 have been found to have committed
the murder of the deceased, there is no question of convicting the
husband for dowry death based on the presumption referred in
Section 113-B of the Evidence Act read with Section 304-B IPC
on the same evidence. In fact, in para 32 of the aforesaid report, it
has been categorically observed - “ But if the murder of his wife
was actually committed either by a dacoit or by a militant in a
terrorist act, the husband can lead evidence to show that he had
no hand in her death at all. If he succeeds in discharging the
burden of proof, he is not liable to be convicted under Section
304-B IPC ."
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CRLA No. - 1262 of 2013
57. In the case at hand, the prosecution itself has proved the
offence of murder, referable to Section 302 IPC, as having been
committed by the father-in-law and mother-in-law, therefore, the
husband need not have led any further evidence. From the
prosecution's own case and the trial court's finding thereon
accepting the prosecution case and holding appellants No. 2 and 3
guilty of murder, the fact that the husband cannot be held guilty
of dowry death of his wife, based on any presumption, is self-
evident, legally so. This is especially when the case of the
prosecution is that the daughter-in-law was set on fire by the
mother-in-law and the father-in-law, and the charge under Section
302 IPC against the husband has not been found to be proved by
the trial court, and the said finding has not been challenged by the
State or the informant. In fact, the very presence of the husband at
the scene of the crime has not been proved. The charge against
the appellant no. 1 of having committed the offence under Section
304-B IPC is, thus, not proved and the trial court has erred in law
on this count.
58. No doubt, from the dying declaration itself, the charge of
having committed the offence punishable under Section 498-A
IPC and Sections 3 and 4 of the Dowry Prohibition Act are
proved against appellant No. 1. The trial court did not convict and
sentence appellant No. 1 separately under these provisions on
36
CRLA No. - 1262 of 2013
account of its observation that the same were implicit in the
conviction under Section 304-B IPC. However, now that we have
arrived at the conclusion that the offence punishable under
Section 304-B IPC is not proved against the appellant No. 1, we
have to consider the charge against him for the offence
punishable under Section 498-A IPC, Section 3/4 of the Dowry
Prohibition Act.
59. As regards the offence punishable under Section 498-A IPC
is concerned, when we consider the evidence on record in the
form of dying declaration of the deceased, in the light of the
ingredients of the aforesaid penal provision, we find that the
deceased wife has categorically stated – " esjk ifr eq>s eksVjlkbZdy]
Vh0oh- vkfn ds fy, ekjrk ihVrk gSA ", therefore, the case at hand would
squarely fall within Explanation (b) of Section 498-A, as, the
aforesaid demand, as stated by the deceased wife in her dying
declaration, amounts to cruelty for the purposes of Section 498-A
IPC. The factum of marriage is amply proved. The trial court has
rightly found the said offence to have been committed by
appellant No. 1, husband, but has opined that as the conviction
for such an offence is implicit in the conviction for the offence
punishable under Section 304-B IPC, as already mentioned
earlier, therefore, the Trial Court has not separately recorded a
conviction for the offence punishable under Section 498-A IPC.
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CRLA No. - 1262 of 2013
60. In view of the above discussion, the said offence is proved
as having been committed by appellant No. 1, the husband,
beyond reasonable doubt, accordingly, we hold that appellant No.
1 is guilty of having committed the said offence.
61. Considering the facts and evidence on record, and also the
fact that demand for dowry, property, valuable security, as
referred in Section 498-A IPC is a social evil, and the aforesaid
provisions have been made by an enactment to curtail the said
social evil, and also considering the trauma which the victim must
have undergone when such demands were made by her husband,
we sentence the appellant No. 1 to rigorous imprisonment for 3
years and a fine of Rs. 10,000/- and in default of payment of fine
to undergo simple imprisonment for three months..
62. The charge of commission of the offence punishable under
Section 4 of the Dowry Prohibition Act, 1961 is also proved
beyond reasonable doubt from the dying declaration of the wife,
especially when we read the dying declaration as a whole, as, the
statement attributed to the husband of having demanded
motorcycle, TV, etc. and of beating her up on non-fulfilment of
the same, is obviously a demand for such property in connection
with the marriage solemnised with her, and could not be
otherwise, because the wife obviously did not have any
independent source of income, therefore, she was obviously
38
CRLA No. - 1262 of 2013
expected to pressurise her maternal family to provide the same.
The trial court also found the said charge to be proved, but did not
record a finding of conviction only for the reason that this charge
was implicit in the charge under Section 304-B IPC. As we are
setting aside the finding of the trial court with regard to the
conviction of appellant No. 1 under Section 304-B IPC, therefore,
it is necessary to record an independent finding with respect to
the aforesaid charge. Accordingly, we hold appellant No. 1 guilty
of having committed the offence punishable under Section 4 of
the Dowry Prohibition Act, 1961 beyond reasonable doubt.
63. In view of the above discussion, for the offence committed
by appellant No. 1 under Section 4 of the Dowry Prohibition Act,
1961, he is sentenced to simple imprisonment for 2 years and a
fine of Rs. 10,000/- and in default of payment of fine to undergo
simple imprisonment for three months.
64. So far as the appeal relates to appellant No. 1, it is allowed
in part. He is acquitted of the charge of having committed the
offence under Section 304-B IPC, but, is convicted of the charge
framed against him of having committed the offence under
Section 498-A IPC and Section 4 of the Dowry Prohibition Act.
In view of the above discussion, the judgment of the Trial Court
convicting the appellant no. 1 under Section 304-B IPC, to that
39
CRLA No. - 1262 of 2013
extent, is set aside and it stands modified in aforesaid terms. The
appeal of appellants no. 2 and 3 is dismissed.
65. As the appellant no. 1 has already undergone the sentence
imposed, he shall be released forthwith. He is directed to file a
personal bond and two sureties each in the like amount to the
satisfaction of the Court concerned in compliance of Section 437-
A of the Code of Criminal Procedure within six weeks.
66 Let the Lower Court Records along with certified copy of
this judgment be sent to the trial Court and the C.J.M. concerned
for necessary action.
67. A copy of this judgment shall also be sent to the appellants
who are lodged in jail.
(Manjive Shukla,J.) (Rajan Roy,J.)
November 03, 2026
Santosh/-
Digitally signed by :-
SANTOSH KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench