Pradeep Kumar vs Party(s)

trial court.

3. Learned A.G.A. submits that the learned trial court has passed the impugned judgment and order without considering the evidence and material on record. The demand of dowry as well as the cruelty soon before the death and unnatural death of the deceased was proved by the prosecution but the learned trial court failed to consider the same, while passing the impugned judgment and order. He further submits that learned trial court has also failed to consider that since the cause of death could not be ascertained, therefore, the viscera was preserved and sent for examination and as per report of the FSL,aluminium phosphide was found but the learned trial court wrongly and illegally has discarded the report and evidence, whereas in the case of death within 7 years of the marriage, 2 A378 No. 2472 of 2005 there is presumption of dowry death, which is to be rebutted by the accused and the accuseds have failed to rebut the same. Thus, the submission is that the impugned judgment and order is not sustainable in the eyes of law. Therefore, the leave to appeal may be granted and the appeal may be heard and decided on merit, as the impugned judgment and order is liable to be set aside.

4. We have considered the submissions of learned A.G.A. as well as gone through the records.

5. The prosecution story, in brief, is that the brother of the deceased had lodged an F.I.R. alleging therein that his sister Mamta was married according to Hindu Rites and Rituals about three years back with Pradeep son of Bhrigunath, resident of Village Ektala, Majra Bijuamau, Police Station Macherhata and in the marriage all the articles demanded in dowry were given. After marriage the accuseds were demanding Rs.20,000/- and motor cycle from his sister Mamta and about one and a half months ago, Bhrigunath had come to his house and demanded Rs.20,000/- for motor cycle in presence of Raj Kishore son of Babu Ram, Dubar son of Mahabeer, Prem son of Shriram etc. of his village. The complainant requested him that he is not in a position to give the same and sent him back, on account of which the husband of the sister Mamta namely Pradeep Kumar, father-in-law Bhrigunath, sister-in-law Suman and mother-in-law etc. had not stopped cruelty with her. The complainant's sister Mamta was continuously telling the complainant regarding demanding of 20,000/- for motor cycle. On 27.04.1992, the information was received from the house of Mamta that she is ill. The complainant alongwith his mother went to Village Ektala at about 5:00 p.m. in the evening, when his sister Mamta was lying dead. Mamta has been killed by his husband Pradeep Kumar, father-in-law Bhrigunath, sister-in-law Suman and wife of Bhrigunath, on account of non- fulfillment of demand of dowry of Rs.20,000/- for motor cycle and they were intending to burn or hide the dead body. He after leaving his mother, went to the police station for lodging the F.I.R.With the said allegations, the F.I.R. vide Case Crime No.34/1992, under Sections 498- A, 304-B I.P.C. was lodged on the basis of written tehrir on 27/28/04/1992 at 00:45 in the night. 3 A378 No. 2472 of 2005

6. The inquest of the deceased was made by the police in Village Ektala on 28.04.1992 at 6:15 in the morning. The inquest was completed at 8:00 in the morning. Thereafter , the dead body was sent for post mortem. The post mortem was conducted on 28.04.1992 at 4:45 in the evening, in which the cause of death could not be ascertained, therefore, the viscera was preserved for chemical examination, which was sent to the FSL. The report of the FSL was received, which is Paper No.131 Ka/ 2 Ex. Ka 18. During investigation, 9 letters were taken into custody by the police from the house of the accused and one letter demanding dowry from Bhrigunath, which was also sent for examination of the hand writing, report of which is Paper No.171 Ka Ex. Ka 19. Thereafter, after completing the investigation, which was conducted by the Circle Officer Mishrikh, the charge sheet under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act was submitted by the Investigating Officer against the accused Pradeep Kumar, Bhrigunath, Chandra Kumari wife of Bhrigunath and Smt. Kusmawati daughter of Bhrigunath.

7. The learned CJM after taking cognizance on the charge sheet and compliance of Section 207 IPC, committed the case to the session, being session trial by means of the order dated 11.01.1996. The trial court framed the charge against the accused under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act. The accuseds denied the charges and pleaded for trial.

8. In order to prove its case, the prosecution produced Arun Kumar as P.W.-1, Prem Shankar as P.W.-2, Dubar as P.W.-3, Virendra Sahai Saxena as P.W.-4, Ved Prakash Singh as P.W.-5 and Dr. A.K. Pandey as P.W.-6.

9. The prosecution also filed and proved certain documentary evidences i.e. Chik Report, Inquest Report and documents relating to it, photo of the dead body and letter of the CMO, sample of the seal, challan of the dead body, R.I. letter etc., the authenticity of which were not disputed by the accuseds. Accordingly, they were exhibited.

10. After prosecution evidences, statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they stated that wrong and false evidence has been given against them. They also denied that the marriage was solemnized about 4 years back and pleaded that the 4 A378 No. 2472 of 2005 marriage was solemnized in the year 1984 and the relations with the deceased were cordial and they were living happily.The deceased was also pregnant at the time of death. She died on account of illness. It was also pleaded that the mother-in-law of the deceased had gone to her maternal house in connection with the janeu sanskar of her nephew. The husband was in Lucknow on the date and time of incident, where he was doing course of Electrical Engineering in Polytechnic. The name of one of the sister of the husband of the deceased was wrongly given. She was already married in other village and was not at the place of incident. No oral or documentary evidence were produced in defence.

11. After hearing learned counsel for the parties and considering the material placed on record, the learned trial court passed the impugned judgment and order and acquitted the accused persons.

12. Learned trial court after considering the evidence adduced before it has recorded a finding that P.W.1 Arun Kumar has stated in his evidence that Bhrigunath i.e. father-in-law of the deceased had come to his house about 1 and 1/2 months prior to the date of the incident and demanded Rs.20,000/- for motor cycle and it was first and the last time hat he had demanded the same. However, on his persuasion, he went back. So far as letter of the Bhrigunath regarding demand of dowry is concerned, hand writing report was not acceptable because no handwriting of Bhrigunath was taken in court and sent for report of the handwriting expert. Thus, the demand of dowry could not be proved.

13. Learned trial court after considering the evidence adduced before it has also recorded a finding that the prosecution has failed to prove that the deceased died within 7 years of marriage because there is contradiction in the evidence in regard to the marriage of the deceased with Pradeep Kumar as the complainant has stated in his evidence that the deceased Mamta was married after 10-12 years of Rani, who was married in the year 1974. He also stated that he had not mentioned in the report that marriage was solemnized 4 years back. He also stated that it is wrong to say that the marriage was solemnized in the winters of 1984. However, rest of the witnesses who have given evidence regarding marriage of the deceased stated that the marriage of the deceased was solemnized about 4 years back as told to them.Thus, the death within 7 years of marriage 5 A378 No. 2472 of 2005 could not be proved.

14. The unnatural death of the deceased also could not be proved because the death could not be ascertained in the post mortem, therefore, the viscera was preserved, which was sent for chemical examination. In the chemical examination, aluminium phosphide was found. However, the doctor, who had conducted the post mortem and appeared as P.W.6, has stated that poison was found in the body of the deceased and it has been stated by him on the basis of chemical examination report. However, the symptoms, which were found in the body may be on account of various reasons in addition to the poison and the medical examination report has not been found to be reliable as the linked evidence i.e. after collection of viscera, how it was sealed, kept and sent for medical examinations, has not been adduced.

15. In view of above, the prosecution has failed to prove the demand of dowry and that the deceased had died on account of unnatural death within 7 years of marriage and she was subjected to cruelty by her husband and family members soon before the unnatural death for demand of dowry, on account of which she died and learned trial court has recorded a categorical finding that the deceased had died on account of cholera. The relevant findings recorded by the learned trial court are extracted hereinbelow:- "अतः उपरो(cid:472) स(cid:286)पूण(cid:259) सा(cid:296)य पिरचचा(cid:259) एवं प(cid:347)ावली पर अिभयोजन प(cid:87) (cid:497)ारा (cid:352)(cid:293)तुत की गयी सा(cid:296)य के िववेचन के उपरांत म(cid:520) इस िन(cid:292)कष(cid:259) पर प(cid:631)ँचता (cid:632)ँ िक अिभयोजन प(cid:87) अिभयु(cid:472) गण के िव(cid:627)(cid:490) लगाए गए आरोप(cid:523) को िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयोजन प(cid:87) ममता मृतका की शादी (cid:352)दीप के साथ ममता के मरने से 7 वष(cid:259) के अंदर होना िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण (cid:497)ारा दहेज की मांग िकया जाना िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। दहेज के िलए अिभयु(cid:472)गण (cid:497)ारा ममता के (cid:352)ताि(cid:237)त िकए जाना िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण का (cid:498)वहार ममता से अ(cid:267)छा नह(cid:514) था। यह भी िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण (cid:352)दीप कु मार, (cid:361)ीमती चं(cid:349)कु मारी एवं (cid:361)ीमती ु सुमावती की उपि(cid:293)थित घटना(cid:293)थल पर मृतका के मरने के समय िस(cid:490) करने कु म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण का मृतका की मृ(cid:277)यु म(cid:517) कोई कृ (cid:277)य िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण के (cid:497)ारा ममता की मृ(cid:277)यु दहेज के िलए की गयी और दहेज की मांग तथा मृतका की मृ(cid:277)यु के म(cid:280)य संबंध (cid:293)थािपत करने म(cid:517) भी 6 A378 No. 2472 of 2005 अिभयोजन प(cid:87) सफल नह(cid:514) है। घटना का पंचनामा िविधक नह(cid:514) है। घटना की (cid:352)थम सूचना िरपोट(cid:259) एं टी टाइम होना िस(cid:490) होती है एवं िविध िव(cid:88)ान (cid:352)योगशाला की िरपोट(cid:259) (cid:352)दश(cid:259)क 18 तथा (cid:352)दश(cid:259)क 19 की संब(cid:490)कारक सा(cid:296)य नह(cid:514) है। इसके अितिर(cid:472) ममता मरने के समय गभ(cid:259)वती थी तो ऐसी पिरि(cid:293)थित म(cid:517) जबिक अिभयु(cid:472)गण भृगुनाथ व (cid:361)ीमती चं(cid:349)कु मारी दादा-दादी बनने वाले हो और अिभयु(cid:472) (cid:352)दीप िपता बनने वाला हो, के (cid:497)ारा दहेज ह(cid:277)या िकया जाना अ(cid:293)वाभािवक एवं अिव(cid:502)सनीय है। मृतका की मृ(cid:277)यु संिद(cid:264)ध पिरि(cid:293)थितय(cid:523) म(cid:517) होना िस(cid:490) नह(cid:514) होती है, अिपतु मृतका की मृ(cid:277)यु कालरा की बीमारी से होना िस(cid:490) होता है। अतः म(cid:520) यह पाता (cid:632)ँ िक अिभयोजन प(cid:87) अिभयु(cid:472)गण के िव(cid:627)(cid:490) भा.द.िव. की धारा 498ए, 304बी तथा दहेज (cid:352)ितषोध अिधिनयम के आरोप(cid:523) को िस(cid:490) करने म(cid:517) सफल नह(cid:514) है और अिभयु(cid:472)गण दोषमु(cid:472) िकए जाने यो(cid:264)य है।"

16. In view of above, it is apparent that the prosecution has failed to discharge the primary duty of proving it's case, therefore, the contention of learned A.G.A. that the respondents could not prove their innocence and rebut the presumption, is misconceived and not tenable for the reason that the presumption under Section 113-B of the Indian Evidence Act, 1872 can be drawn only when the prosecution discharges it's primary burden of proving the required ingredients for such presumption. It is primary burden of proving death of a woman caused by burns or bodily injury or occurred otherwise than under normal circumstances, within seven years of her marriage and she was subjected to cruelty or harassment by her husband or by any relative of her husband and the cruelty or harassment should be for or in connection with the demand of dowry and such cruelty or harassment of the deceased should have been soon before her death on prosecution for offence of dowry death under Section 304-B I.P.C.and only thereafter the question of rebuttal by the accused arises.

17. The Hon'ble Supreme Court, in the case of Kans Raj vs. State of Punjab; (2005) 5 SCC 207, has held that as and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113-B of the Indian Evidence Act, 1872. The relevant paragraph Nos.9 and 10 are extracted herein below:- 7 A378 No. 2472 of 2005 "9. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected to soon before her death.

10. As and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113B of the Evidence Act. It has to be kept in mind that presumption under Section 113B is a presumption of law. We do not agree with the submissions made by Mr.Lalit, learned Senior Counsel for the accused that the statement made by the deceased to her relations before her death were not admissible in evidence on account of intervening period between the date of making the statement and her death."

18. The Hon'ble Supreme Court, in the case of Satbir Singh and Another Vs. State of Haryana; (2021) 6 SCC 1, has held that once all the essential ingredients are established by the prosecution, presumption under Section 113-B of the Indian Evidence Act, 1872 mandatorily operates against the accused and this presumption of casualty that arises can be rebutted by the accused. The relevant Paragraph Nos.19 to 21 are extracted herein below:- "19. This Court in Bansi Lal v. State of Haryana [Bansi Lal v. State of Haryana, (2011) 11 SCC 359 : (2011) 3 SCC (Cri) 188] , emphasised the mandatory application of the presumption under Section 113-B of the Evidence Act once the ingredients of Section 304-B IPC stood proved : (SCC pp. 366-67, paras 19-20) "19. It may be mentioned herein that the legislature in its wisdom has used the word "shall" thus, making a 8 A378 No. 2472 of 2005 mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. … Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. …

20. Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raise a presumption that the accused has caused the dowry death."

20. Therefore, once all the essential ingredients are established by the prosecution, the presumption under Section 113-B of the Evidence Act mandatorily operates against the accused. This presumption of causality that arises can be rebutted by the accused.

21. The usage of rebuttable presumption of causality, under the Evidence Act, creates a greater Section 113-B of responsibility on Judges, defence and prosecution. They need to be extra careful during conducting criminal trials relating to Section 304-B IPC. In order to address this precarious situation, procedural law has some safeguards, which merits mentioning herein."

19. In view of above, it is primary duty of the prosecution to prove the aforesaid facts for constitution of offence of dowry death and on proving of the said factors, the presumption of dowry death can be drawn and then burden will shift on the accused to rebut and prove that it is not a dowry death.In the present case the prosecution has failed to discharge it's primary burden, therefore, the presumption could not have been drawn and burden to rebut shifted on accuseds.

20. The Hon'ble Supreme Court, in the case of Ramesh and Others versus State of Haryana; (2017) 1 SCC 529, has held that before an appeal is entertained on merits, leave of the High Court is to be obtained, which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. The relevant paragraphs 24 and 26 are extracted hereinbelow:- "24. We have duly appreciated the submissions advanced by the counsel for the parties on both sides. No doubt, the High Court was dealing with the appeal against the judgment of the trial court which had acquitted 9 A378 No. 2472 of 2005 the appellants herein. The scope of interference in an appeal against acquittal is undoubtedly narrower than the scope of appeal against conviction. Section 378 of the Code of Criminal Procedure, 1973 confers upon the State a right to prefer an appeal to the High Court against the order of acquittal. At the same time, sub-section (3) thereof mandates that such an appeal is not to be entertained except with the leave of the High Court. Thus, before an appeal is entertained on merits, leave of the High Court is to be obtained which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. At the same time, while exercising its appellate power, the High Court is empowered to reappreciate, review and reconsider the evidence before it. However, this exercise is to be undertaken in order to come to an independent conclusion and unless there are substantial and compelling reasons or very strong reasons to differ from the findings of acquittal recorded by the trial court, the High Court, as an appellate court in an appeal against the acquittal, is not supposed to substitute its findings in case the findings recorded by the trial court are equally plausible.

25. x x x x x

26. This legal position is reiterated in Govindaraju v. State (2012) 4 SCC 722 and the following passage therefrom needs to be extracted: (SCC p. 732, paras 12-13) "12. The legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 CrPC. This is an indication that appeal from acquittal is placed on a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under introduced as an Section 378 Cr.P.C. has been additional stage between the order of acquittal and consideration of the judgment by the appellate court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under sub-section (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the courts."

13. Under the scheme of CrPC, acquittal confers rights on an accused that of a free citizen. A benefit that has accrued to an accused by the judgment of acquittal can be taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the appellate court should be fully convinced that the findings returned by the trial court are really erroneous and contrary to the settled principles of criminal law." 10 A378 No. 2472 of 2005

21. The Hon'ble Supreme Court, in the case of Guru Dutt Pathak Vs. State of U.P. reported in (2021) 6 SCC 116, has held that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court and if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

22. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that the impugned judgment and order of acquittal has rightly been passed in accordance with law after considering the evidence and material on record by the learned trial court and nothing could be pointed out by the learned A.G.A., on the basis of which a contrary view is possible, therefore, it does not call for any interference by this Court and no case for grant of leave to file the appeal is made out. The application is accordingly dismissed. Consequently, the appeal stands dismissed. October 29, 2025 Akanksha Sri/- (Zafeer Ahmad,J.) (Rajnish Kumar,J.) AKANKSHA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

trial court.

3. Learned A.G.A. submits that the learned trial court has passed the impugned judgment and order without considering the evidence and material on record. The demand of dowry as well as the cruelty soon before the death and unnatural death of the deceased was proved by the prosecution but the learned trial court failed to consider the same, while passing the impugned judgment and order. He further submits that learned trial court has also failed to consider that since the cause of death could not be ascertained, therefore, the viscera was preserved and sent for examination and as per report of the FSL,aluminium phosphide was found but the learned trial court wrongly and illegally has discarded the report and evidence, whereas in the case of death within 7 years of the marriage, 2 A378 No. 2472 of 2005 there is presumption of dowry death, which is to be rebutted by the accused and the accuseds have failed to rebut the same. Thus, the submission is that the impugned judgment and order is not sustainable in the eyes of law. Therefore, the leave to appeal may be granted and the appeal may be heard and decided on merit, as the impugned judgment and order is liable to be set aside.

4. We have considered the submissions of learned A.G.A. as well as gone through the records.

5. The prosecution story, in brief, is that the brother of the deceased had lodged an F.I.R. alleging therein that his sister Mamta was married according to Hindu Rites and Rituals about three years back with Pradeep son of Bhrigunath, resident of Village Ektala, Majra Bijuamau, Police Station Macherhata and in the marriage all the articles demanded in dowry were given. After marriage the accuseds were demanding Rs.20,000/- and motor cycle from his sister Mamta and about one and a half months ago, Bhrigunath had come to his house and demanded Rs.20,000/- for motor cycle in presence of Raj Kishore son of Babu Ram, Dubar son of Mahabeer, Prem son of Shriram etc. of his village. The complainant requested him that he is not in a position to give the same and sent him back, on account of which the husband of the sister Mamta namely Pradeep Kumar, father-in-law Bhrigunath, sister-in-law Suman and mother-in-law etc. had not stopped cruelty with her. The complainant's sister Mamta was continuously telling the complainant regarding demanding of 20,000/- for motor cycle. On 27.04.1992, the information was received from the house of Mamta that she is ill. The complainant alongwith his mother went to Village Ektala at about 5:00 p.m. in the evening, when his sister Mamta was lying dead. Mamta has been killed by his husband Pradeep Kumar, father-in-law Bhrigunath, sister-in-law Suman and wife of Bhrigunath, on account of non- fulfillment of demand of dowry of Rs.20,000/- for motor cycle and they were intending to burn or hide the dead body. He after leaving his mother, went to the police station for lodging the F.I.R.With the said allegations, the F.I.R. vide Case Crime No.34/1992, under Sections 498- A, 304-B I.P.C. was lodged on the basis of written tehrir on 27/28/04/1992 at 00:45 in the night. 3 A378 No. 2472 of 2005

6. The inquest of the deceased was made by the police in Village Ektala on 28.04.1992 at 6:15 in the morning. The inquest was completed at 8:00 in the morning. Thereafter , the dead body was sent for post mortem. The post mortem was conducted on 28.04.1992 at 4:45 in the evening, in which the cause of death could not be ascertained, therefore, the viscera was preserved for chemical examination, which was sent to the FSL. The report of the FSL was received, which is Paper No.131 Ka/ 2 Ex. Ka 18. During investigation, 9 letters were taken into custody by the police from the house of the accused and one letter demanding dowry from Bhrigunath, which was also sent for examination of the hand writing, report of which is Paper No.171 Ka Ex. Ka 19. Thereafter, after completing the investigation, which was conducted by the Circle Officer Mishrikh, the charge sheet under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act was submitted by the Investigating Officer against the accused Pradeep Kumar, Bhrigunath, Chandra Kumari wife of Bhrigunath and Smt. Kusmawati daughter of Bhrigunath.

7. The learned CJM after taking cognizance on the charge sheet and compliance of Section 207 IPC, committed the case to the session, being session trial by means of the order dated 11.01.1996. The trial court framed the charge against the accused under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act. The accuseds denied the charges and pleaded for trial.

8. In order to prove its case, the prosecution produced Arun Kumar as P.W.-1, Prem Shankar as P.W.-2, Dubar as P.W.-3, Virendra Sahai Saxena as P.W.-4, Ved Prakash Singh as P.W.-5 and Dr. A.K. Pandey as P.W.-6.

9. The prosecution also filed and proved certain documentary evidences i.e. Chik Report, Inquest Report and documents relating to it, photo of the dead body and letter of the CMO, sample of the seal, challan of the dead body, R.I. letter etc., the authenticity of which were not disputed by the accuseds. Accordingly, they were exhibited.

10. After prosecution evidences, statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they stated that wrong and false evidence has been given against them. They also denied that the marriage was solemnized about 4 years back and pleaded that the 4 A378 No. 2472 of 2005 marriage was solemnized in the year 1984 and the relations with the deceased were cordial and they were living happily.The deceased was also pregnant at the time of death. She died on account of illness. It was also pleaded that the mother-in-law of the deceased had gone to her maternal house in connection with the janeu sanskar of her nephew. The husband was in Lucknow on the date and time of incident, where he was doing course of Electrical Engineering in Polytechnic. The name of one of the sister of the husband of the deceased was wrongly given. She was already married in other village and was not at the place of incident. No oral or documentary evidence were produced in defence.

11. After hearing learned counsel for the parties and considering the material placed on record, the learned trial court passed the impugned judgment and order and acquitted the accused persons.

12. Learned trial court after considering the evidence adduced before it has recorded a finding that P.W.1 Arun Kumar has stated in his evidence that Bhrigunath i.e. father-in-law of the deceased had come to his house about 1 and 1/2 months prior to the date of the incident and demanded Rs.20,000/- for motor cycle and it was first and the last time hat he had demanded the same. However, on his persuasion, he went back. So far as letter of the Bhrigunath regarding demand of dowry is concerned, hand writing report was not acceptable because no handwriting of Bhrigunath was taken in court and sent for report of the handwriting expert. Thus, the demand of dowry could not be proved.

13. Learned trial court after considering the evidence adduced before it has also recorded a finding that the prosecution has failed to prove that the deceased died within 7 years of marriage because there is contradiction in the evidence in regard to the marriage of the deceased with Pradeep Kumar as the complainant has stated in his evidence that the deceased Mamta was married after 10-12 years of Rani, who was married in the year 1974. He also stated that he had not mentioned in the report that marriage was solemnized 4 years back. He also stated that it is wrong to say that the marriage was solemnized in the winters of 1984. However, rest of the witnesses who have given evidence regarding marriage of the deceased stated that the marriage of the deceased was solemnized about 4 years back as told to them.Thus, the death within 7 years of marriage 5 A378 No. 2472 of 2005 could not be proved.

14. The unnatural death of the deceased also could not be proved because the death could not be ascertained in the post mortem, therefore, the viscera was preserved, which was sent for chemical examination. In the chemical examination, aluminium phosphide was found. However, the doctor, who had conducted the post mortem and appeared as P.W.6, has stated that poison was found in the body of the deceased and it has been stated by him on the basis of chemical examination report. However, the symptoms, which were found in the body may be on account of various reasons in addition to the poison and the medical examination report has not been found to be reliable as the linked evidence i.e. after collection of viscera, how it was sealed, kept and sent for medical examinations, has not been adduced.

15. In view of above, the prosecution has failed to prove the demand of dowry and that the deceased had died on account of unnatural death within 7 years of marriage and she was subjected to cruelty by her husband and family members soon before the unnatural death for demand of dowry, on account of which she died and learned trial court has recorded a categorical finding that the deceased had died on account of cholera. The relevant findings recorded by the learned trial court are extracted hereinbelow:- "अतः उपरो(cid:472) स(cid:286)पूण(cid:259) सा(cid:296)य पिरचचा(cid:259) एवं प(cid:347)ावली पर अिभयोजन प(cid:87) (cid:497)ारा (cid:352)(cid:293)तुत की गयी सा(cid:296)य के िववेचन के उपरांत म(cid:520) इस िन(cid:292)कष(cid:259) पर प(cid:631)ँचता (cid:632)ँ िक अिभयोजन प(cid:87) अिभयु(cid:472) गण के िव(cid:627)(cid:490) लगाए गए आरोप(cid:523) को िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयोजन प(cid:87) ममता मृतका की शादी (cid:352)दीप के साथ ममता के मरने से 7 वष(cid:259) के अंदर होना िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण (cid:497)ारा दहेज की मांग िकया जाना िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। दहेज के िलए अिभयु(cid:472)गण (cid:497)ारा ममता के (cid:352)ताि(cid:237)त िकए जाना िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण का (cid:498)वहार ममता से अ(cid:267)छा नह(cid:514) था। यह भी िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण (cid:352)दीप कु मार, (cid:361)ीमती चं(cid:349)कु मारी एवं (cid:361)ीमती ु सुमावती की उपि(cid:293)थित घटना(cid:293)थल पर मृतका के मरने के समय िस(cid:490) करने कु म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण का मृतका की मृ(cid:277)यु म(cid:517) कोई कृ (cid:277)य िस(cid:490) करने म(cid:517) सफल नह(cid:514) है। अिभयु(cid:472)गण के (cid:497)ारा ममता की मृ(cid:277)यु दहेज के िलए की गयी और दहेज की मांग तथा मृतका की मृ(cid:277)यु के म(cid:280)य संबंध (cid:293)थािपत करने म(cid:517) भी 6 A378 No. 2472 of 2005 अिभयोजन प(cid:87) सफल नह(cid:514) है। घटना का पंचनामा िविधक नह(cid:514) है। घटना की (cid:352)थम सूचना िरपोट(cid:259) एं टी टाइम होना िस(cid:490) होती है एवं िविध िव(cid:88)ान (cid:352)योगशाला की िरपोट(cid:259) (cid:352)दश(cid:259)क 18 तथा (cid:352)दश(cid:259)क 19 की संब(cid:490)कारक सा(cid:296)य नह(cid:514) है। इसके अितिर(cid:472) ममता मरने के समय गभ(cid:259)वती थी तो ऐसी पिरि(cid:293)थित म(cid:517) जबिक अिभयु(cid:472)गण भृगुनाथ व (cid:361)ीमती चं(cid:349)कु मारी दादा-दादी बनने वाले हो और अिभयु(cid:472) (cid:352)दीप िपता बनने वाला हो, के (cid:497)ारा दहेज ह(cid:277)या िकया जाना अ(cid:293)वाभािवक एवं अिव(cid:502)सनीय है। मृतका की मृ(cid:277)यु संिद(cid:264)ध पिरि(cid:293)थितय(cid:523) म(cid:517) होना िस(cid:490) नह(cid:514) होती है, अिपतु मृतका की मृ(cid:277)यु कालरा की बीमारी से होना िस(cid:490) होता है। अतः म(cid:520) यह पाता (cid:632)ँ िक अिभयोजन प(cid:87) अिभयु(cid:472)गण के िव(cid:627)(cid:490) भा.द.िव. की धारा 498ए, 304बी तथा दहेज (cid:352)ितषोध अिधिनयम के आरोप(cid:523) को िस(cid:490) करने म(cid:517) सफल नह(cid:514) है और अिभयु(cid:472)गण दोषमु(cid:472) िकए जाने यो(cid:264)य है।"

16. In view of above, it is apparent that the prosecution has failed to discharge the primary duty of proving it's case, therefore, the contention of learned A.G.A. that the respondents could not prove their innocence and rebut the presumption, is misconceived and not tenable for the reason that the presumption under Section 113-B of the Indian Evidence Act, 1872 can be drawn only when the prosecution discharges it's primary burden of proving the required ingredients for such presumption. It is primary burden of proving death of a woman caused by burns or bodily injury or occurred otherwise than under normal circumstances, within seven years of her marriage and she was subjected to cruelty or harassment by her husband or by any relative of her husband and the cruelty or harassment should be for or in connection with the demand of dowry and such cruelty or harassment of the deceased should have been soon before her death on prosecution for offence of dowry death under Section 304-B I.P.C.and only thereafter the question of rebuttal by the accused arises.

17. The Hon'ble Supreme Court, in the case of Kans Raj vs. State of Punjab; (2005) 5 SCC 207, has held that as and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113-B of the Indian Evidence Act, 1872. The relevant paragraph Nos.9 and 10 are extracted herein below:- 7 A378 No. 2472 of 2005 "9. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected to soon before her death.

10. As and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113B of the Evidence Act. It has to be kept in mind that presumption under Section 113B is a presumption of law. We do not agree with the submissions made by Mr.Lalit, learned Senior Counsel for the accused that the statement made by the deceased to her relations before her death were not admissible in evidence on account of intervening period between the date of making the statement and her death."

18. The Hon'ble Supreme Court, in the case of Satbir Singh and Another Vs. State of Haryana; (2021) 6 SCC 1, has held that once all the essential ingredients are established by the prosecution, presumption under Section 113-B of the Indian Evidence Act, 1872 mandatorily operates against the accused and this presumption of casualty that arises can be rebutted by the accused. The relevant Paragraph Nos.19 to 21 are extracted herein below:- "19. This Court in Bansi Lal v. State of Haryana [Bansi Lal v. State of Haryana, (2011) 11 SCC 359 : (2011) 3 SCC (Cri) 188] , emphasised the mandatory application of the presumption under Section 113-B of the Evidence Act once the ingredients of Section 304-B IPC stood proved : (SCC pp. 366-67, paras 19-20) "19. It may be mentioned herein that the legislature in its wisdom has used the word "shall" thus, making a 8 A378 No. 2472 of 2005 mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. … Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. …

20. Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raise a presumption that the accused has caused the dowry death."

20. Therefore, once all the essential ingredients are established by the prosecution, the presumption under Section 113-B of the Evidence Act mandatorily operates against the accused. This presumption of causality that arises can be rebutted by the accused.

21. The usage of rebuttable presumption of causality, under the Evidence Act, creates a greater Section 113-B of responsibility on Judges, defence and prosecution. They need to be extra careful during conducting criminal trials relating to Section 304-B IPC. In order to address this precarious situation, procedural law has some safeguards, which merits mentioning herein."

19. In view of above, it is primary duty of the prosecution to prove the aforesaid facts for constitution of offence of dowry death and on proving of the said factors, the presumption of dowry death can be drawn and then burden will shift on the accused to rebut and prove that it is not a dowry death.In the present case the prosecution has failed to discharge it's primary burden, therefore, the presumption could not have been drawn and burden to rebut shifted on accuseds.

20. The Hon'ble Supreme Court, in the case of Ramesh and Others versus State of Haryana; (2017) 1 SCC 529, has held that before an appeal is entertained on merits, leave of the High Court is to be obtained, which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. The relevant paragraphs 24 and 26 are extracted hereinbelow:- "24. We have duly appreciated the submissions advanced by the counsel for the parties on both sides. No doubt, the High Court was dealing with the appeal against the judgment of the trial court which had acquitted 9 A378 No. 2472 of 2005 the appellants herein. The scope of interference in an appeal against acquittal is undoubtedly narrower than the scope of appeal against conviction. Section 378 of the Code of Criminal Procedure, 1973 confers upon the State a right to prefer an appeal to the High Court against the order of acquittal. At the same time, sub-section (3) thereof mandates that such an appeal is not to be entertained except with the leave of the High Court. Thus, before an appeal is entertained on merits, leave of the High Court is to be obtained which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. At the same time, while exercising its appellate power, the High Court is empowered to reappreciate, review and reconsider the evidence before it. However, this exercise is to be undertaken in order to come to an independent conclusion and unless there are substantial and compelling reasons or very strong reasons to differ from the findings of acquittal recorded by the trial court, the High Court, as an appellate court in an appeal against the acquittal, is not supposed to substitute its findings in case the findings recorded by the trial court are equally plausible.

25. x x x x x

26. This legal position is reiterated in Govindaraju v. State (2012) 4 SCC 722 and the following passage therefrom needs to be extracted: (SCC p. 732, paras 12-13) "12. The legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 CrPC. This is an indication that appeal from acquittal is placed on a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under introduced as an Section 378 Cr.P.C. has been additional stage between the order of acquittal and consideration of the judgment by the appellate court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under sub-section (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the courts."

13. Under the scheme of CrPC, acquittal confers rights on an accused that of a free citizen. A benefit that has accrued to an accused by the judgment of acquittal can be taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the appellate court should be fully convinced that the findings returned by the trial court are really erroneous and contrary to the settled principles of criminal law." 10 A378 No. 2472 of 2005

21. The Hon'ble Supreme Court, in the case of Guru Dutt Pathak Vs. State of U.P. reported in (2021) 6 SCC 116, has held that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court and if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

22. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that the impugned judgment and order of acquittal has rightly been passed in accordance with law after considering the evidence and material on record by the learned trial court and nothing could be pointed out by the learned A.G.A., on the basis of which a contrary view is possible, therefore, it does not call for any interference by this Court and no case for grant of leave to file the appeal is made out. The application is accordingly dismissed. Consequently, the appeal stands dismissed. October 29, 2025 Akanksha Sri/- (Zafeer Ahmad,J.) (Rajnish Kumar,J.) AKANKSHA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench