Krishan Kumar vs State Of U.P.

[PER: HON'BLE AJAY BHANOT, J.]

The instant appeal arises out of the judgement dated 27.03.2017 rendered by the learned Sessions Court in Sessions Trial No. 425 of 2010 State vs. Krishan Kumar and Others. The FIR which culminated in the impugned judgment was registered as Case Crime No. 34 of 2010 under Section 498-A, 304-B IPC and ¾ of Dowry Prohibition Act at P.S. Malwa, District Fatehpur.

The learned trial court by the impugned judgment has found the appellants in the respective appeals guilty of offences under Section 304-B IPC and has imposed a sentence of life imprisonment. The appellants in the respective appeals have also been convicted under section 498A IPC and sentenced to three years' rigorous imprisonment along with a fine of Rs. 5,000/-, and in case of default in payment of fine the appellants are liable to undergo additional simple imprisonment for one month. Furthermore, the appellants have been convicted under Section 3/4 of the Dowry Prohibition Act and sentenced to undergo six months' rigorous imprisonment along with a fine of Rs. 2,000/-, and in case of default in payment of fine, the appellants are liable to undergo additional simple imprisonment for 15 days. All the aforesaid sentences shall run concurrently.

The Criminal Appeal No.2167 of 2016 (Krishan Kumar Vs. State of U.P.) is being pressed before this Court. In Criminal Appeal No. 2163 of 2017, appellant No.1-Shivlal died during the pendency of the appeal. By order dated 23.04.2026 the appeal of appellant No. 1, Shivlal stood abated. Learned counsel for the appellants now presses the appeal only on behalf of appellant No. 2, Smt. Chhediya in respect of Criminal Appeal No.2163 of 2017.

The following appellants who have been convicted by the learned trial court are before this Court in the instant appeal:

Briefly put the prosecution case set out in the F.I.R. dated 02.03.2010 is that Rukmini the daughter of the first informant got married to Krishan Kumar on 06.07.2008. The marriage was solemnized commensurate with the financial capacity of the first informant. After few months of the marriage, in-laws of the deceased including her husband-Krishan Kumar; father-in-law-Shiv Lal (since deceased), Mother-in-law-Chhediya, Aunt-in-law-Nanki, Brother-in-law-Ramswaroop, wife of brother-in-law-Raj Kumari started making dowry demands. The first informant gave a sum of Rs. 40,000/- and a cycle to them. The amount was drawn using a credit card in November.

Thereafter, when his daughter came to her maternal house on Khichdi festival, she informed them that her in-laws were demanding Rs. 40,000/- for house construction. The first informant went to village Bhadwa and told them that he does not have the financial capacity to pay the aforesaid amount. He also pleaded with the in-laws not to assault the victim. However, the accused persons refused to relent. They informed him that in case the demand was not fulfilled, they would not keep his daughter and would kill her. When his daughter returned to her maternal home on Khichdi festival, she told them of her plight. The accused persons demanded Rs.40,000/-, assaulted her on a daily basis and denied her food. The accused persons started torturing and harassing the daughter of the first informant on account of non-fulfillment of the demand of Rs. 40,000/-. His daughter would inform them about the said demand whenever she came home. However, because of financial destitution, he could not satisfy the demands and the torture of the victim went on unabated.

On 15.02.2010, the daughter of the first informant was murdered by the accused persons at about 11:00 AM. After murdering the deceased, the accused persons burnt her body. The first informant party came to know from village Bhadwa about the incident and reached the site to confirm the news. The daughter of the first informant was lying burnt to death in a small room.

After lodgement of the said FIR, police investigation was on foot. Charge-sheet was filed against the accused appellants under sections 498A, 304B IPC and Section ¾ of Dowry Prohibtion Act on 28.03.2010. Cognizance of the offences was taken by the learned trial court on 08.04.2010.

The charges were framed against the appellants on 05.02.2011 while alternative charges were framed on 08.07.2011. The same are extracted below:

The appellants pleaded not guilty to the charges and the case went to trial.

Tabular charts depicting the evidences adduced by the prosecution during the trial are as under:

The first informant received information about the death of his daughter on 15.02.2010 at 10:00 AM from a villager. The first informant-Phaguni/father of the deceased reached the site of the incident at 11:00 AM on 15.02.2010.

PW1/First informant-Phaguni has deposed before the trial court that he went to Bhadwa with his family members and some persons from the village. According to the testimony of PW1, he reached the police station at about 01:30 P.M. on 15.02.2010. P.W.1 also stated that he dictated the first Tehrir/written report to Rajendra Kumar, a lad from the village on 15.02.2010 at about 16:30 hours. P.W.1 thereafter submitted the Tehrir at the police station.

The first tehrir thus submitted by P.W.1 was entered in the G.D. as Rapat No. 24 at 16:30 hours on 15.02.2010. The said GD entry was in the record of the trial court and registered as paper-book No. 8-Ka-3. G.D. entry No. 24 contains the transcription of the first Tehrir. The aforesaid G.D. was proved by the Constable 16-Anand Prakash Singh who was introduced by the defence as D.W.1.

D.W.-1 in his testimony stated that he had earlier worked with the Head Muharrir, Awadhesh Kumar who had transcribed the said G.D. entry no. 24 and he recognized the handwriting of the author of the said GD. D.W.1 proved the G.D. entry as secondary evidence as original was destroyed. The said GD was marked as Exh. Kha-1. It is noteworthy that the prosecution avoided to prove the said document.

The second tehrir was tendered by the P.W.1-Faguni/father of the deceased 15 days after the death and submission of the first tehrir. PW1 testified that he dictated the said tehrir to a typist who typed the same. PW1 identified his signatures on the second tehrir. PW1 proved the second tehrir and its contents and the document was marked as Exh. Ka-1. Pursuant to the second tehrir the F.I.R. was got registered which was later marked as Exh. Ka-2.

The FIR was registered on 02.03.2010 at about 09:30 hours by Faguni, father of the deceased under Sections 498A, 304B IPC and Section ¾ of Dowry Prohibition Act at Police Station Malwa, District Fatehpur. PW3/H.C. 24 Awadhesh Kumar stated that the chik FIR was recorded by him. PW3 identified his handwriting and signatures on the chik FIR which was marked as Exh. Ka-2.

PW3 also testified that he had made the GD No. 14 on 02.03.2010 at 09:30 hours in his hand. GD Rapat No. 14 depicted the lodgement of the FIR. A carbon copy of GD Rapat No. 14 which was in the record of the trial was identified by him. The original GD was produced by PW3 in court. After comparing the original GD entry with the carbon copy of the same in the court record, PW3 proved the carbon copy of GD Rapat No. 14 which was then marked as Exh. Ka-3.

On receipt of the aforesaid first Tehrir a police party was constituted which reached the spot to conduct the inquest proceedings. The inquest report was drawn up by the then Naib Tehsildar-Dinesh Kumar Mishra-P.W.5. on 16.02.2010.

P.W.5 proved the inquest report. Recitals in the inquest report disclose that inquest proceedings had commenced on 16.02.2010 at 11:15 hour and continued till 12:30 PM. The inquest report was proved by P.W. 5 and marked as Exh Ka-5

PW-6/IO/Pradeep Kumar Dubey recovered one white colored plastic bottle containing about one and a half litres of kerosene oil from the site of the incident. The aforesaid recovery memo was proved by the I.O. PW-6 and marked as Ex. Ka-11. The aforesaid material exhibit was not produced and not proved before the learned trial court.

The site plan was drawn up by the PW-6/IO at the pointing out of PW1/first informant. The PW-6 identified his signatures on the site plan and proved the same, which was then marked as Ex. Ka-10.

After the conclusion of the inquest proceedings, the body was wrapped up in a cloth which was then stitched and sealed in a cloth. Thereafter, the body was made over to Constable 228 Vijay Shankar and Home Guard 438 Shiv Bhawan. The said police personnel took it to the hospital for post mortem.

Relevant documents which were drawn up for movement of the body to the hospital for post-mortem and which were proved by P.W.-5-Dinesh Kumar Mishra/Tehsildar included Photo Nash marked as Exh. Ka-6, challan nash marked as Ex. Ka-7, sample seal marked as Ex. Ka-8 and letter to C.M.O. marked as Ex. Ka-9

The post mortem was conducted on 16.02.2010 at 4:30 PM by Dr. A.S. Khan-PW-4. The post mortem report records that the body was smelling of kerosene oil and that the deceased was having three months old pregnancy. PW-4 proved the post mortem report and its contents. The postmortem report was then marked as Ex. Ka-4.

The ante mortem injuries, cause of death and time of death as depicted in the post mortem report which were also confirmed by P.W.-4 which are extracted herein:-

Faguni-Father of the deceased/first informant entered the witness box as P.W.1. P.W.1 deposed that his daughter Rukmini got married to the accused-Krishan Kumar about three years ago. P.W.1 has stated that at the time of the marriage he had given dowry according to his financial capacity. However, the in laws were not satisfied with the same. When his daughter came to her maternal home two months after her marriage she informed them that the accused persons, namely, Krishan Kumar-husband, Shiv Kumar-Father-in-law, and Chhediya-mother-in-law, Nanaki-aunt-in-law, Ram Swaroop-brother-in-law and Raj Kumari/sister-in-law demanded Rs.50,000/-towards dowry. He had withdrawn Rs.40,000/- from Kisan credit card and gave the amount along with the cycle to the in-laws.

P.W.1 then states that the said amount did not satiate the in-laws and the accused persons started demanding Rs.40,000/-for construction of house. P.W.1 told the in-laws of his daughter that he was not in a position to pay that amount. The in-laws of his daughter continued to assault and torture for his daughter for failure to make good the said demands. Just prior to her death his daughter had come home for the festival of khichadi and informed them about all accused persons demanding dowry and torturing them on that account. He consoled his daughter and she returned to her matrimonial home. However, ten days later the accused persons murdered his daughter for failure to fulfill their demands.

Shanti, mother of the deceased entered the witness box as PW-2 and deposed before the trial court that her daughter Rukmini was married to Krishan Kumar in 2008. Dowry was given to the in-laws of her daughter as per their resources, but that did not satisfy the former. The in-laws of her daughter namely, Shiv Lal (Father-in-law), Chhediya (Mother-in-law), Nanki (Aunt-in-law), Ram Swaroop (Brother-in-law), Rajkumari (Sister-in-law) demanded Rs. 50,000/-towards dowry. Her husband withdrew 40,000/- from the Kishan Credit Card facility and gave the amount to them along with a cycle. However, the accused persons were not content and started demanding Rs. 40,000/- for house construction. The accused persons assaulted and tortured her daughter for failing to satisfy the dowry demands. Whenever her daughter came home, she informed them that the aforesaid six persons demanded dowry and tortured her. P.W.-2 further stated that they had told her in-laws that they would be unable to satisfy the demands because of lack of financial capacity. Just prior to her death, she came to her maternal house for the festival of Khichadi. On that occasion too, she informed them that all the accused persons were demanding Rs. 40,000/- dowry and had tortured her in that regard. Three days later she went back to her matrimonial house. Her daughter died one month after returning to her matrimonial house.

Shri Swetashwa Agarwal, learned Senior Counsel and Amicus Curiae, assisted by Sri Sushil Dwivedi, learned counsel for the appellant have canvassed the following submissions in favour of the appellant as under:

Shri Paritosh Kumar Malviya, learned A.G.A-I and Shri Chandan Agarwal, AGA-I have vehemently opposed the submissions of learned Senior Counsel and have made following submissions:

The first Tehrir in respect to the incident was submitted by the first informant before the Police Station Malwa, District Fatehpur on 15.02.2010 at about 16:30 hours. The aforesaid Tehrir was not produced by the prosecution.

The said Tehrir was a critical piece of evidence which was suppressed by the prosecution for no satisfactory reasons or any good cause. The GD bearing the contents of the first tehrir (Exh. Ka 1) tendered and proved by the first informant is a clinching piece of evidence to determine the truth of the matter. In the facts of this case an adverse inference is liable to be drawn against the prosecution for suppression of material evidence under Section 114(g) of the Evidence Act. An adverse inference drawn to the effect that had the said Tehrir been produced by the prosecution, the same would have contradicted the prosecution case.

The corresponding entry made in pursuance of the aforesaid Tehrir in the G.D. (Exh. Ka 1) was produced and proved in defence evidence through DW-1 Constable 16 Anand Prakash Singh. DW-1 identified the hand writing and signatures of Head Moharrir Awadhesh Kumar who has made the aforesaid G.D. entry. DW 1 refuted the suggestion he had never seen Head Moharrir Awadhesh Kumar writing or was unfamiliar with his hand writing.

The said G.D. entry (Exh. Ka-1) contained the contents of the first tehrir. As per the contents of the GD the first tehrir did not record any dowry demand made by the appellants. The said GD entry has not been refuted by the prosecution. In this manner defence evidence corroborates the earlier adverse inference drawn against the prosecution, and strengthens the defence case that no dowry demand was made by the appellants.

The FIR was got registered on 02.03.2010 at about 09:30 A.M. PW-1, in his testimony, admitted that he had tendered a written report/Tehrir at the Police Station at about 01:30 P.M. He had dictated the second Tehrir to Rajendra Kumar, who had reduced it to writing. The said second Tehrir was submitted before the Police Station on this day his daughter died. Under cross examination PW-1 stated that he had tendered the Tehrir before the S.O. at the Police Station. However, the FIR was not registered and he was asked to compromise the matter. According to the PW-1 thereafter he submitted an application before the Court. The case was not got registered on orders of the Court. The case was registered on orders of the S.P.

The application made before the competent Court for lodgement of FIR by PW1 was never produced in evidence. There is no evidence to show that the FIR was registered on the orders of the S.P. On the contrary, the prosecution evidence shows that the FIR was got registered on the second Tehrir dated 02.03.2010 submitted by PW-1 before Police Station Malwa, District Fatehpur. The manner of lodgement of FIR as deposed to by P.W. 1 is contradicted by the evidence in the record.

Both the tehrirs submitted by PW1 contain contrary versions and cannot be reconciled. The explanation for the delay in lodgement of FIR given by the PW-1 in his testimony before the Court below suffers from serious contradictions and lacks credibility. In fact reasons for the delay stated by PW1 are found to be false. The FIR which introduces dowry demands for the first time was registered after inordinate delay and as an afterthought.

The cumulative impact of the adverse inference drawn against the prosecution for suppressing the first tehrir and false testimony of PW 1 regarding registration of FIR, renders the unexplained delay in the FIR fatal to the prosecution case. Further there is absence of dowry demands in the first tehrir/written report submitted by the PW 1. The dowry demands were introduced for the first time in the second tehrir submitted 15 days later by PW 1. The contrary versions regarding dowry demands in the respective tehrirs by PW 1 casts a doubt on the prosecution story stated in the FIR.

The inquest report which is Exh. Ka-5 records that inquest proceedings were conducted on the Tehrir submitted by the PW-1 dated 15.02.2010. The PW-1 was a witness to the inquest report. The inquest report records that in the opinion of the Panchas the deceased was done to death by throttling and thereafter set on fire. Recitals in the inquest report also state that the deceased was subjected to harassment and cruelty on account of failure to make good the dowry demands. PW-1 in his testimony has categorically denied giving any such opinion to the PW-5 when the inquest report was being drawn up. Testimony of P.W.1 falsifies the aforesaid recitals regarding dowry demands in the inquest report.

The inquest report also records that the bangles which the deceased was wearing were intact. This fact itself contradicts the recitals in the inquest report that the deceased was throttled to death and thereafter her body was burnt.

There is another aspect to the matter. The inquest report is transcribed in three distinct handwritings which were not reconciled by the prosecution. There is merit in the submission of the learned Senior Counsel for the appellants that the introduction of dowry demand in the inquest report was made much belatedly and is an interpolation.

In the wake of the aforesaid facts this Court finds that the dowry demands referenced in the inquest report are disputed by PW 1 and appear to be interpolated. The aforesaid endorsement pertaining to dowry demand in the inquest report is accordingly disbelieved.

Material Exhibits were not produced and proved before the trial court.

According to the FIR, inquest report, testimonies of P.W. 1 and P.W. 2 the deceased was assaulted and throttled to death by the accused. The deceased was thereafter burnt by the accused persons.

As seen earlier the inquest report records that the bangles of the deceased were intact when her body was being examined during the inquest proceedings. The aforesaid recital in the inquest report clearly refutes the prosecution case that she was assaulted and throttled to death before being set on fire.

Similarly the postmortem report and the deposition of PW-4 Dr. A.S. Khan discloses that the deceased did not suffer any ante-mortem injuries other than burn injuries. This evidence also rules out the possibility of the victim being assaulted and throttled to death. The soot particles in the trachea as depicted in postmortem report also prove that the deceased was not done to death by throttling before she was burnt.

The medical and other documentary evidences in the record thus clearly repudiate the prosecution case depicted in the FIR and the testimonies of PW-1 and PW 2 regarding physical assault as the cause of death.

The evidence in the record shows that PW-1 had made false claims regarding the cause of death in the FIR as well as in his testimony.

The inconsistencies in the documentary evidence, including the inquest report, post-mortem report, FIR as well as in the testimonies of PW-1 and PW-2 is of great significance in the facts and evidences of this case. The aforesaid contradictions established in the preceding discussion strengthen the defence case that a false prosecution was belatedly brought against them by fabricating the cause of death.

PW-1 Phaguni who is the father of the deceased in his testimony has made sweeping allegations of dowry demands against the husband and in-laws of the deceased. PW-1 has nominated the deceased’s husband (Krishan Kumar), father-in-law (Shiv Lal), mother-in-law (Chhediya), aunt-in-law (Nanki), brother-in-law (Ram Swaroop) and sister-in-law (Raj Kumari) individually and collectively. PW-1 testified that all the accused persons lived together in one house to support the aforesaid general allegations of dowry demands made against all the in-laws of the deceased.

However, under cross-examination PW 1 resiled from his earlier depostion and he admitted that the in-laws of the deceased had two houses. PW 1 also admitted before the trial court that the deceased and her husband lived separately from other members of her husband’s family. The distance between the houses is half kilometer. The testimony of PW1 regarding common residence of all accused persons under cross examination again shook his reliability.

PW-1 has testified before the trial court that no dowry demand was made from him directly, but such demands were made only from his daughter. However, under cross-examination PW-1 yet again failed to hold his ground when he deposed that a Panchayat had taken place at his instance to discuss the dowry demands. He also testified thereafter that he tried to negotiate with the in-laws regarding the dowry demands.

PW-1 also deposed that no dowry demands were made either prior to marriage or at the time of marriage by the accused persons. PW-1 had testified that he gave Rs.800/- at the time of marriage. According to PW 1 demand of dowry was made for the first time after two months of marriage. PW-1 and his family came to know about the same when his daughter returned home after two months. However under cross-examination PW-1 stated that the first demand was made six months after marriage. There is a clear discrepancy in the timing relating to the demands of dowry in the statements of PW-1.

Apart from this, as per the statement of PW-1, there was a gap of almost 11 months between the date of incident and the last demand of dowry as told to her parents. This statement shows that the demand was not insistent.

In his examination-in-chief, PW-1 stated that the amount of Rs. 40,000/- which was withdrawn from Kisan Credit Card was given to the in-laws. However, under cross-examination, he modified the statement and stated that the amount was paid to his daughter and son-in-law for construction of a house. He also gave the a cycle to the couple. His statement shows that he had made voluntary gifts to the children.

According to the PW-1 the first demand was made for construction of a house. Later, PW-1, in his examination-in-chief, also stated that the second demand for construction of a house to the extent of Rs. 40,000/- was made without giving any specific time. Under cross-examination, he again modified the statement and stated that the second demand of Rs. 40,000/-was made 2–3 months after the first demand was satisfied.

The PW-1 was searchingly cross-examined on the issue of making good the dowry demand of Rs. 40,000/-. He claimed under cross-examination that he had a pass book of his Kisan Credit Card Account. However, the pass book was not produced and the withdrawal of money from the Kisan Credit Card could not be established by PW-1 before the trial court. The proof of withdrawal of the amount of Rs. 40,000/- becomes all the more significant in view of the fact of the admitted destitute financial status of PW-1 and his family. (PW 1 spent Rs. 800/- at the marriage). PW 1 was rightly challenged in the dock about his capacity to muster the amount. PW 1 could not withstand the cross examination on this issue.

The best evidence to establish the satisfaction of dowry demand by payment of Rs 40,000/- was suppressed by the PW-1. In these facts, the court finds the application of Section 114(g) of the Evidence Act to be of relevance in the facts and evidences before this Court. An adverse inference is accordingly drawn against PW-1 in respect of payment of Rs 40,000/- towards dowry demand of Rs. 40,000/-, PW 1 suppressed Kisan Credit pass book as the same would have rebutted the prosecution case.

In wake of the preceding discussion, the testimony of PW-1 improved and changed from time to time. There are also material contradictions in the statements made by PW-1 in examination-in-chief and in cross-examination. Moreover, PW-1 had made vague and general demands against all members of the family. Failure to specify roles of individual family members in making dowry demands discredits the prosecution case as common residence of all accused persons has been disproved. He also tried to change the tenor under cross-examination by stating that his son-in-law had made demands of dowry. PW1 was repeatedly shaken under cross examination on material aspects of the prosecution.

The credit of PW-1 has been successfully impeached. He is an unreliable witness. Accordingly, his testimony in so far as it implicates the appellants is entirely discarded. Testimony of P.W.1 is unsafe to be relied upon for convicting the appellants.

P.W.2 in her statement has stated that her daughter was married to the accused-Krishan Kumar in the year 2008. They had given dowry at the time of marriage according to their capacity. However, the in-laws of the deceased were not satisfied with the dowry so given. P.W.2 in her examination-in-chief too made general and sweeping allegations of dowry demands against all members of the family of the husband of the deceased. According to P.W.2, the first demand of dowry was made by Krishan Kumar (husband), Shiv Lal (father-in-law), Chhediya (mother-in-law), Nanki (aunt-in-law), Ramswaroop (brother-in-law), Raj Kumari (sister-in-law) to the extent of Rs. 50,000/-. The aforesaid demand was satisfied by her husband who withdrew an amount of Rs. 40,000/- and gave the amount in cash to all the accused persons along with a cycle. Despite realizing the aforesaid amount, the accused persons were not satisfied and continued to escalate their dowry demands. According to P.W.2, the second demand of dowry was to the extent of Rs. 40,000/- for construction of a house.

The time line and purpose of dowry demands as stated by P.W.2 is inconsistent with those stated by P.W.1.

P.W.2 in her cross-examination has also stated that a second demand of Rs. 50,000/- was made after 5-6 months of marriage for investment in business. According to P.W.2, Rs. 50,000/- was paid to the in-laws towards satisfaction of dowry demands. P.W.2 has also stated that the amount was demanded by the daughter as well as the son-in-law.

The sweeping nature of the allegations and lack of material particulars regarding the dowry demands as deposed to by P.W.2 renders her testimony suspect. This is most damaging to the prosecution since common residence of all accused was falsified. Moreover, under cross-examination she stated that both the daughter and the son-in-law asked her and her husband for money. P.W.2 in her testimony clearly lost sense of the timeline of the marriage and dowry demands, which also makes her testimony doubtful.

There are material contradictions in the testimonies of PW1 and PW2. PW1 has categorically testified that no demand of dowry was made at the time of the marriage and for a while even thereafter. However, PW2 has specifically deposed that dowry was given when the marriage was solemnized. The said mutual contradictions cannot be reconciled and the said inconsistencies dent the credibility of the witnesses.

The deposition of PW2 that Rs. 50,000/- was paid to the in-laws of the deceased is again contrary to the statement of PW1. Further, as seen earlier the payment of the amount could not be proved by the prosecution.

In this manner credit of PW 2 was repeatedly shaken. For the above reasons PW2 is an unreliable witness and her testimony is disbelieved. It is unsafe to rely on the testimony of P.W. 2 to return the guilt of the appellants.

The prosecution has not been able to establish cruelty, or harassment for dowry demands made by the appellants soon before the death of the deceased as per applicable standards of evidence and in a manner which would satisfy the ingredients of Section 304B I.P.C. In the instant case bald allegations of demand of dowry were made belatedly by P.W. 1 and P.W. 2 and are not liable to be believed. The credibility of P.W. 1 and P.W. 2 has been successfully impeached which is fatal to the prosecution case.

The purpose of introducing the concept of presumptions in law is to dispense with proof of certain facts which cannot be proved by the prosecution or those which are in the special knowledge of the persons of the household. The foundational facts for invocation of the presumption under Section 304B I.P.C. read with Section 113B of the Indian Evidence Act have to be strictly proved beyond reasonable doubt. Failure to establish the foundational facts in the manner stated above will prevent the prosecution from attracting the presumptions under Section 304B IPC read with Section 113B of the Indian Evidence Act.

The bar of proving the foundational facts to invoke the presumption under Section 304 IPC read with Section 113B of the Indian Evidence Act cannot be so high as to make an impossible demand on the prosecution; but at the same time, the standard of proving the foundational facts should also not be a low hanging fruit where the presumption can be drawn at the mere asking of the prosecution without determining the credibility of prosecution evidence.

Foundational facts which have to be established beyond reasonable doubt for bringing the death within the ambit of dowry death under Section 304B IPC with the aid of Section 113B of the Indian Evidence Act are as under:

The prosecution has to be held rigorously accountable to the standards of evidence of proving the foundational facts for the presumption of dowry death beyond reasonable doubt. The prosecution cannot be relieved of the burden of establishing the foundational facts or essential ingredients before bringing the incident within the ambit of dowry death. In the same breath, the prosecution cannot be allowed to use the provisions for drawing the evidential presumptions as contemplated in Section 304B read with 113B of the Indian Evidence Act to lower the standards of evidence applicable in criminal trials. Any attempt by the prosecution to reduce the rigor of evidential standard of beyond reasonable doubt by evading the obligation to prove the prerequisites for invoking Section 304B IPC read with 113B of the Evidence Act cannot be countenanced by the courts.

Prosecution could not prove the foundational facts of demand or torture for dowry and also that there was a live nexus and proximity between dowry demands and death of the deceased. The prerequisites of invoking the presumption under Section 304-B IPC read with Section 113-B of Indian Evidence Act have not been established in the manner provided by law. The appellants cannot be convicted under Section 304-B with the aid of Section 113-B of the Indian Evidence Act.

In the proceedings taken out under Section 313 CrPC the substance of the prosecution case to the effect that the deceased was married to the accused Krishan Kumar on 06.07.2008; and that after the marriage the deceased was subjected to regular physical and mental cruelty and torture for her failure to fulfil the demand for dowry of ₹40,000/- and a bicycle was put to the accused.

Thereafter, the accused persons were confronted with the fact that, on 15.02.2016 at about 11:00 a.m., on account of the failing to fulfil the dowry demands, the deceased was subjected to mental and physical torture and was murdered by the accused persons and thereafter her body was burnt. Among others, the following questions warrant the attention of this Court:

It is noteworthy that the aforesaid questions were posed to the appellant in an omnibus fashion without alerting them to the specific incriminating evidences in the testimonies of PW 1 and PW 2. This is important in view of the contrary depositions of the said witnesses against them. Thereafter, in the proceedings under Section 313 CrPC bald references were made to the tehrir, chik FIR, panchayatnama, postmortem report, documents pertaining to the postmortem namely photo nash, challan nash, namuna mohar, letter to the CMO, one can of kerosene oil. Lastly, an omnibus statement was made that the accused persons had heard testimonies of PW1 to PW6 and their responses to the same were elicited.

Proceedings under Section 313 CrPC are the most significant safeguard of the rights of defense of an accused and are integral to a fair trial. Proceedings are not to be completed in a mechanical manner or as a matter of formality. The accused persons have to be alerted to specific incriminating evidences against them as well as their respective roles in the offence.

In the instant case, as seen above, the appellants were not alerted to the specific incriminating evidences and the respective roles attributed to them in the prosecution evidence. The proceedings under Section 313 CrPC were conducted in a mechanical manner and as a mere formality.

The scope of Section 313 Cr.P.C. and adverse impact of non-compliance thereof have been stated in authorities of long standing.

The Supreme Court in Nar Singh Vs. State of Haryana^{11.(2015) 1 SCC 496} examined significance and propounded the scope of Section 313 Cr.P.C. by holding:-

A similar view was taken in Sujit Biswas Vs. State of Assam^{22.(2013) 12 SCC 406}:-

The Supreme Court in State of U.P. Vs. Mohd Iqram & Anr.^{33.(2011) 8 SCC 80} has held as under:-

The mechanical conduct of proceedings under Section 313 Cr.P.C. in the instant case is in the teeth of the law laid down in preceding case laws. In light of the cases on point non compliance of Section 313 Cr.P.C. in the spirit of the precedents discussed earlier vitiates the impugned judgement.

In the ordinary course of things, the matter was liable to be remitted for conducting fresh proceedings under Section 313 CrPC to ameliorate the miscarriage of justice which has happened as a result of non-compliance of the mandate of Section 313 CrPC. However, the custody report of the appellant Krishan Kumar discloses that the actual undergone custody period by Krishan Kumar is nine years, nine months, thirty days. Furthermore, a long period has elapsed since the incident and the conclusion of trial and in view of other infirmities in the prosecution, it will not be in the interest of justice to remand the matter for fresh initiation of proceedings under Section 313 Cr.P.C.

In this wake, the Court does not deem it appropriate to remand the matter for fresh proceedings under Section 313 CrPC at this stage.

Learned trial court in the impugned judgment erred in law by placing exclusive reliance on the testimonies of PW1 and PW2 to return a conviction against the appellants. As seen above, the aforesaid reliance by the learned trial court was misconceived inasmuch as PW1 and PW2 were wholly unreliable witnesses to implicate the appellant. The trial court also neglected to consider the consequences of inordinate and unexplained delay in the lodgment of the FIR. The material inconsistencies in the cause of death depicted in the prosecution case in various documentary evidences and testimonies of witnesses was also overlooked by the learned trial court.

The learned trial court erred in law by drawing the presumptions under S 304B Indian Penal Code read with S 113 Indian Evidence Act. The impugned judgment of the learned trial court is liable to be set aside and is set aside.

The prosecution has failed to prove the charges under Sections 304B and 498-A IPC as well as Sections 3/4 of Dowry Prohibition Act against the appellants beyond reasonable doubt. The accused appellants are acquitted of the charges which were laid against them by the trial court and which are the subject matter of this appeal.

The appellants- Krishan Kumar and Smt. Chhediya are on bail, their bail bonds and surety bonds are canceled and sureties shall stand discharged.

The Criminal Appeal is allowed.

A copy of this judgment translated in Hindi to be served upon the appellants by the Secretary, District Legal Services Authority.