State of U.P. Vs Mohd.Ahmad and 2 Ors.

This application for leave to appeal under Section 378(3) Cr.P.C. has been filed for appeal against the judgment and order dated 25.02.2005 passed by learned Additional Sessions Judge, Court No.4, Barabanki in Sessions Trial No.463/2003, arising out of Case Crime No.148/2002, under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Dariyabad, District Barabanki, whereby the accused/respondents have been acquitted of the charges by the learned trial court.

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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 was proved by the P.W.-2 : Jabir Hussain, who is uncle of the deceased and the P.W.-9 : Smt. Maimuna, who is mother of the deceased. The doctor has also stated that injuries, which were sustained by the deceased, could not have come by falling from stair case but without considering it, all the respondents have been acquitted. Even otherwise the submission is that it is a case of dowry death, which was within seven years of marriage, therefore, burden was on the respondents to prove innocence and disprove the charge, which they failed to do.

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

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The prosecution story, in brief, is that about two and a half years prior

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to 12.12.2002, sister of P.W.-1: Mehtab, namely, Sahnuma was married to Mohd. Ahmad R/o Village Barhua, Police Station Dariyabad, District Barabanki. After nikah (marriage), the husband Mohd Ahmad, father-inlaw Nishar Ahmad and mother-in-law Jaitunnisha used to do cruelty with her for non fulfillment of demand of dowry. They were demanding Rs.10,000/-, motor cycle and double bed etc. Since the demand could not be fulfilled, therefore, the accused persons killed the deceased at about 07:00 PM on 12.12.2002 by beating her. Thereafter, leaving the dead body in cottage, they ran away after putting lock on it. An unknown person telephonically informed the P.W.-4: Taj Mohammad about the death of Smt. Sahnuma and the Taj Mohammad informed the same to her brother, Mehtab i.e. P.W.-1 and her mother, Maimuna i.e. P.W.-9. Taj Mohammad also informed about the incident telephonically to the Circle Officer and the Station House Officer of the Police Station Dariyabad, District Barabanki. Accordingly, the first information report was registered on 13.12.2002 at 09:30 A.M. bearing Case Crime No.148/2002, under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act against the accused persons including Kumari Shaharbano and Kumari Roshan i.e. against five persons.

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The inquest of the dead body was done under the supervision of P.W.13 : Sri D.P. Singh, Sub Divisional Magistrate, P.W.-6 : Sri Budha Singh Chauhan, Station House Officer, P.W.-10 : Constable Ramjas Saroj and other members of the inquest. The dead body was sent for post mortem, which was conducted by P.W.-7 : Dr. S. Mehrotra in presence of P.W.-8 : Dr. S.K. Srivastava. Thereafter, the investigation was conducted by P.W.12 : Sri Sushil Kumar Shukla, Circle Officer and charge sheet was filed against accused Mohd. Ahmad. Thereafter, further investigation was done by P.W.-5 : Deenanath Dubey, Circle Officer, who filed a supplementary charge sheet on the basis of material available on record against the accused Nishar Ahmad and Smt. Jaitunnisha. Thereafter, in compliance of Section 207 Cr.P.C., the matter was committed to the Session by means of order dated 11.08.2003 being triable by the Session. Charges under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act were framed against the accused persons by the Sessions Judge on 12.11.2003. The accused persons denied the charges and pleaded for trial.

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In order to prove its case, the prosecution produced Mehtab (brother of the deceased) as P.W.-1, Jabir Hussain (uncle of the deceased) as P.W.-2, Gopi as P.W.-3, Taj Mohammad as P.W.-4, Deenanath Dubey (Circle Officer) as P.W.-5, Budha Singh Chauhan (Station House Officer) as P.W.-6, Dr. S. Mehrotra as P.W.-7, Dr. S.K. Srivastava as P.W.-8, Smt. Maimuna (mother of the deceased) as P.W.-9, Constable Ramraj Saroj as P.W.-10, Constable Chandrika Prasad as P.W.-11, Sushil Kumar Shukla (Circle Officer) as P.W.-12 and Sri D.P. Singh (Sub Divisional Magistrate) as P.W.-13.

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The prosecution also filed and proved documentary evidences i.e. Tehrir Report, Inquest Report, Charge Sheet, Photolash, Panchayatnama, Namuna Seal, Report sent to the Chief Medical Officer, Report Sent to the R.I., Post Mortem Report, Chik F.I.R. Medical Report, Site Plan etc.

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After prosecution evidences, statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they stated that they have wrongly been roped in the case and the deceased had died by falling from the stair case. Accused Mohd. Ahmad also pleaded that he was in Lucknow in connection with work of embroidery and on information, he had reached the village. Similarly, the accused Nishar Ahmad and Jaitunnisha have stated that they have wrongly been roped in the case, whereas they had gone to Faizullaganj, Police Station Jahangirabad, which is at a distance of about 06 Km. from the place of incident, in connection with the treatment of Jaitunnisha and on information of the death of Sahnuma, they reached the Village Barhua. No oral or documentary evidence were produced in defence.

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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.

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Learned trial court has recorded a finding that demand of dowry and cruelty soon before death could not be proved by the prosecution. P.W.-2 : Jabir Hussain, who is uncle of the deceased, has stated that though the demand of Rs.10,000/- was made for vidai but the accused persons took the deceased to their home without fulfilling the demand, therefore, the demand of dowry could not be proved. It has also been admitted by the P.W.-4 : Taj Mohammand that the deceased Sahnuma had come to the Village from her in-laws' house alongwith two-three persons and the persons, who had come with her, had not made any complaint of in-laws. P.W.-9 : Maimuna, who is mother of the deceased, has also admitted that no complaint against the in-laws was lodged. P.W.-9 has also stated that no complaint was made to the villagers. P.W.-9 has also stated that "मेरी ल�की जब मरी थी तो सब ठीक-ठाक था", therefore, admittedly it appears that prior to death of the deceased, neither there was any demand of dowry nor cruelty for demand of dowry and the same could also not be proved.

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Dr. S. Mehrotra, who conducted the post mortem of the deceased has proved that three injuries were sustained by the deceased i.e. (1) Abrasion 1 cm. x 1 cm. on the upper right side of the lip, (2) Contusion 3 cm. x 3 cm. on the back side of the left shoulder and 6 cm. away from the right elbow, and (3) Abrasion 2 cm. x 2 cm. on the left side of back and 3 cm. from midline. Dr. S. Mehrotra also stated that the cause of death could not be ascertained and the said injuries could have been sustained by falling from stair case. Dr. S.K. Srivastava, who appeared as P.W.-8 stated that

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he was with Dr. S. Mehrotra at the time of post mortem. Thus, the medical report does not support the prosecution case.

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The learned trial court, upon considering the evidence and material on record, has recorded the following findings:-

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" उपयु � चचा� के आधार पर इस �यायालय का यह िनि�त िन�कष� है िक िद० 12.12.02 को सायंकाल लगभग 7.00 बजे �ाम - बर�वा , थाना - दिरयाबाद , िजला - बाराबंकी म� के अ�तग�त अिभयु�गण मोह�मद अहमद , िनशार अहमद और �ीमती जैतुनिनशा �ारा मृतका सहनुमा को दहेज की मांग को लेकर उसे �ताि�त करने या दहेज की कमी को लेकर उसकी ह�या िकए जाने का अिभयोजन केस युि� - यु� एवं स�देह से परे िस� नह� रहा और िन�कष�तः अिभयु�गण मोह�मद अहमद , िनशार अहमद एवं �ीमती जैतुनिनशा धारा 498 ए , 304 बी भारतीय दं�ड संिहता एवं धारा 3/4 दहेज �ितषेध अिधिनयम के आरोप� म� दोष - मु� िकए जाने यो�य है।"

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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 disprove the charge, 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 death. 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. For offence of dowry death under Section 304-B I.P.C., 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:-

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" 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:

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(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal

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circumstances;

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(b) such death should have occurred within 7 years of her marriage;

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(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

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(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

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(e) to such cruelty or harassment the deceased should have been subjected to soon before her death.

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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."

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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, the 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:-

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" 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)

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“19. It may be mentioned herein that the legislature in its wisdom has used the word “shall” thus, making a 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 113B relatable to Section 304-B IPC, the onus to prove shifts

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exclusively and heavily on the accused. …

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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.”

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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.

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21. The usage of rebuttable presumption of causality, under Section 113B of the Evidence Act, creates a greater 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."

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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.

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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:-

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"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 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

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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.

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25. x x x x x

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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)

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“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 Section 378 Cr.P.C. has been introduced as an 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. Subsection (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."

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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."

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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.

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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 .

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(Zafeer Ahmad,J.) (Rajnish Kumar,J.)

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October 29, 2025 Saurabh

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Digitally signed by :- SAURABH VERMA High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Mohd.Ahmad and 2 Ors.

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State of U.P. v. Mohd.Ahmad and 2 Ors.

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