Allahabad High Court
Keshav Prasad vs State Of U.P. on 22 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:4234 Court No. - 14 Case :- CRIMINAL APPEAL No. - 794 of 2004 Appellant :- Keshav Prasad Respondent :- State of U.P. Counsel for Appellant :- Arun Kumar Tripathi Counsel for Respondent :- Govt.Advocate Hon'ble Mohd. Faiz Alam Khan,J.
1. Heard Shri Arun Kumar Tripathi, learned counsel for the appellant and learned A.G.A. for the State-respondent and perused the record.
2. This criminal appeal has been preferred by the appellant, namely, Keshav Prasad under Section 374(2) of the Cr.P.C. against the judgment and order dated 27.03.2004 passed by learned IVth Additional Sessions Judge, Pratapgarh in Sessions Trial No.96 of 1999 (State vs. Keshav Prasad and another), arising out of Case Crime No.434 of 1998, under Sections 498-A, 304-B I.P.C., Police Station Lalganj, District Pratapgarh, whereby the appellant - Keshav Prasad has been convicted for committing offence under Sections 498-A, 304-B I.P.C. and has been sentenced to undergo seven years rigorous imprisonment for committing offence under Section 304-B I.P.C.
3. The necessary facts required for disposal of the instant appeal are in terms that a written information was given by the informant/Amarnath Verma/brother of the deceased on 12.07.1998 at about 21:50 hours at Police Station Lalganj, District Pratapgarh alleging therein that his sister namely Suryakala Devi aged about 22 years was married to the appellant and two children were born out of this wedlock, however, she was being subjected to cruelty in lieu of demand of dowry by the appellant and his family members, who were demanding a motorcycle. It is also stated in the F.I.R. that the sister of the informant was being continuously subject to assault for not meeting the demand of the accused persons and she (deceased) about eight days before the incident had also informed that she was being subjected to cruelty for non meeting out the demand of a motorcycle and on the day when the F.I.R. was lodged a person informed that his sister has been done to death and when the informant and his family members arrived at the matrimonial house of his sister, they found that the deceased has been done to death by the accused persons.
4. On the basis of this written information, an F.I.R. at Case Crime No.434 of 1998, under Sections 498-A, 304-B I.P.C., Police Station Lalganj, District Pratapgarh was registered and the investigation of the same commences. During the course of investigation, inquest report of the dead body of the deceased was prepared and after preparation of the necessary papers for the purpose of postmortem, the dead body of the deceased was sent for postmortem.
5. The postmortem of the body of the deceased was performed by Dr. P.S. Mishra at District Hospital, Pratapgarh, however, cause of death of the deceased could not be ascertained and the viscera was preserved and the during the course of trial, viscera report was submitted by the Forensic Lab, which has been placed on record as exhbit Ka-15 suggesting that Aluminium Phosphide has been found in the viscera of the deceased.
6. The investigating officer also prepared site plan and recorded the statement of many prosecution witnesses, completed other formalities and finding sufficient material against the accused persons submitted charge sheet against under Sections 498-A, 304-B I.P.C.
7. The trial court also framed the charges against the appellant and another accused person under Sections 498-A, 304-B I.P.C. to which the accused persons denied and claimed trial.
8. It is also recalled that during pendency of the trial, another accused person namely Ganga Prasad Verma died and the proceedings of the trial were abated so far as he was concerned.
9. The prosecution in order to prove its case has presented P.W.-1/Informant/Amarnath Verma (brother of the deceased), P.W.-2/Prayagdin (father of the deceased), P.W.-3/Constable C.P. Ram Sewak, Pairokar of Police Station Lalganj and also relied on documentary evidence e.g. written application, charge sheet, chik F.I.R., site plan, G.D. Entry of the police station, inquest report, postmortem report and report submitted by the Forensic Lab etc.
10. After conclusion of the evidence of the prosecution, the statement of the appellant was recorded under Section 313 Cr.P.C., wherein he denied all the evidence produced by the prosecution and specifically stated that the deceased was suffering from acute abdominal pain and due to misconception has consumed poisonous substance in place of medicine and died. It is also claimed that the marriage of the deceased with the appellant was solemnized about eight years ago.
11. The trial court using powers conferred under Section 311 Cr.P.C. had summoned C.W.-1 - P.N. Chaturvedi and C.W-2 - Ram Asharey as court witnesses and thereafter recorded additional statement of accused person/appellant under Section 313 Cr.P.C., wherein the appellant again denied the evidence produced by these two witnesses, however, no defence witness or evidence was produced.
12. The trial court after hearing learned counsel for the parties and having done appreciation of the evidence found the case of the prosecution proved beyond reasonable doubt against the appellant and thus convicted the appellant under Section 498-A, 304-B I.P.C. and was sentenced in the manner described in the 2nd paragraph of this judgment.
13. Aggrieved by the said impugned judgement and order, this criminal appeal has been preferred by the sole appellant - husband.
14. Learned counsel for the appellant while challenging the impugned judgment and order of the trial court, submits that the trial court has committed manifest illegality in appreciating the evidence available on record and has passed the judgment of conviction only on the basis of 'surmises and conjectures'.
15. It is vehemently submitted that when there was no evidence before the trial court pertaining to any cruelty committed with the deceased, soon before her death, pertaining to demand of any dowry and in any condition, Section 113-B of the Indian Evidence Act could not be invoked and the trial court appears to have fallen into a trap by assuming that invocation of Section 113-B of the Indian Evidence Act is automatic while the same can only be invoked when prosecution is able to prove that death of wife has occurred within seven years of her marriage otherwise than in normal way and 'soon before her death' the deceased was subjected cruelty in lieu of demand of dowry.
16. It is further submitted that the trial court has also taken aid of the statement of some of the witnesses recorded under Section 161 Cr.P.C. while this could not be done and the only exception, wherein a statement of witness or any person recorded under Section 161 Cr.P.C. could be used, is under Section 32 of the Indian Evidence Act i.e. when a witness could not be found or when the statement is related to cause of his death, which is not existing in the instant case, therefore, the trial court has committed extreme illegality in relying on the statement of the witnesses recorded under Section 161 Cr.P.C., which have also been disowned by the witnesses.
17. It is also submitted that the reasons, which have been given by the trial court for recording the judgement of conviction, are patently absurd and could not be protected by any principle pertaining to appreciation of evidence thus it is a case, where, there was absolutely no evidence against the appellant, however, the trial court has convicted the appellant. Thus instant appeal be allowed and the impugned judgment and order of the trial court be set-aside and appellant be acquitted of all the charges framed against him.
18. learned A.G.A. for the State on the other hand submits that once the death of the deceased has been proved to have occurred within seven years of her marriage with the appellant and there was ample evidence that soon before her death, the deceased was subjected to cruelty, the presumption as provided under Section 113-B of the Indian Evidence Act may safely be inferred. Thus the trial court has not committed any illegality or to say any irregularity in convicting the appellant and no interference in the impugned judgement and order is required.
19. Having heard learned counsel for the parties and having perused the record, before proceeding further, it appears in the interest of justice that the ingredients of Section 304-B and 498-A I.P.C. be highlighted so it will make the law cause of this Court easy in assessing as to whether the prosecution has been able to prove all the ingredients of these offences, wherein the appellant has been convicted and these sections are being reproduced as under:
"Section 304B. Dowry death. - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation. For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.] Section 498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purposes of this section, "cruelty means"--
(a) anywilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]"
20. The law with regard to dowry death is now no more res integra and the same has been settled by catena of judgements rendered by Hon'ble Supreme Court. Some of these judgements are being reproduced for ready reference as under:
"In Baijnath and Ors. vs. State of Madhya Pradesh reported in MANU/SC/1501/2016, Hon'ble Supreme Court while considering the requirement of section 304B I.P.C. opined as under:
"27. The evidence on record and the competing arguments have received our required attention. As the prosecution is on the charge of the offences envisaged in Sections 304B and 498A of the Code, the provisions for reference are extracted hereunder:
304B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.-For the purpose of this Sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, "cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
28. Whereas in the offence of dowry death defined by Section 304B of the Code, the ingredients thereof are:
(i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances and
(ii) is within seven years of her marriage and
(iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry.
the offence Under Section 498A of the Code is attracted qua the husband or his relative if she is subjected to cruelty.
The explanation to this Section exposits "cruelty" as:
(i) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) or "Tahbazari' "Tahbazari' "Tahbazari'
(ii) harassment of the woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
29. Patently thus, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences.
30. The expression "dowry" is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression "cruelty", as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as ii may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry to reiterate is the gravamen of the two offences.
31. Section 113B of the Act enjoins a statutory presumption as to dowry death in the following terms:
113B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.-For the purpose of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)
32. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.
Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
33. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
34. The legislative premature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss-over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty.
35. This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawmder Kaur and Anr. v. State of Punjab MANU/SC/0499/2011 : (2011) 11 SCC 517 and echoed in Rajeev Kumar v. State of Haryana MANU/SC/1144/2013 : (2013) 16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death Under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death Under Section 113B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao MANU/SC/0890/2002 : (2003) 1 SCC 217 to the effect that to attract the provision of Section 304B of the Code, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry".
The Apex Court in the case of Kaliyaperumal Vs. State of Tamil Nadu, MANU/SC/0624/2003 has held that presumption shall be raised only on proving of the following essential:-
(I) The question before the court must be whether the accused has committed the dowry death of a woman.
(II) The woman was subjected to cruelty or harassment by her husband or his relatives.
(III) Such cruelty or harassment was for, or in connection with, any demand for dowry.
(IV) Such cruelty or harassment was soon before her death.
The word "soon before death" fell for consideration in a large number of cases before the Supreme Court and this Court. The Supreme Court in the case of Hira Lal and others v. State (Government of NCT), Delhi, MANU/SC/0495/2003 : (2003) 8 SCC 80 has considered the scope of Section 113-B of the Evidence Act and Section 304-B IPC in the following terms:
"9. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death " used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to expression "soon before" used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods "soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession". The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium 45 m of the woman concerned, it would be of no consequence."
The principle laid down in this case has been uniformly followed by the Supreme Court in a large number of cases. Reference may be made to the judgments in the case of Rajinder Kumar v. State of Haryana, MANU/SC/0046/2015 : (2015) 4 SCC 215; Baljinder Kaur v. State of Punjab, MANU/SC/1047/2014 : (2015) 2 SCC 629; and, Vijay Pal Singh and others v. State of Uttarakhand, MANU/SC/1172/2014 : (2014) 15 SCC 163.
In Trimukh Maroti Kirkan Vs State of Maharashtra reported in MANU/SC/8543/2006, Hon'ble Supreme Court observed as under:
"10. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
11. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh MANU/SC/0585/2003 : 2003 CriLJ 3892). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
21. The aforesaid legal precedents would sufficiently demonstrate that the initial burden to prove necessary ingredients of Section 304B I.P.C. is on the prosecution to prove its case on the scale of 'proof beyond reasonable doubt' and the same can never be exonerated and it is always the duty of the prosecution to prove its case on the standard of proof of reasonable doubt and even in those cases where some presumption has been provided in any statute or provision the prosecution would be obliged to prove at least those facts on the basis of which such presumption could be invoked. Thus the presumption provided under Section 113-B of the Indian Evidence Act could only be invoked, if the prosecution has been able to prove all the ingredients of Section 304-B I.P.C. and not otherwise.
22. Now coming to the facts of the instant case, it appears to be an admitted situation that P.W.-1/Amarnath Verma, who had lodged the F.I.R., has not supported the case of the prosecution and he has disowned his statement given under Section 161 Cr.P.C. and has categorically stated that his sister was not being subjected to cruelty in lieu of any demand of dowry. So far as the P.W.-2/Payagdin, who is the father of the deceased, is concerned, he has also not stated anything against the appellant rather specifically stated that his daughter was not being subjected to cruelty in lieu of demand of any dowry and she had died accidentally by consuming any poisonous substance.
23. At this juncture, the trial court appears to have seen something suspicious and ventured to use the powers bestowed under Section 311 Cr.P.C. and has summoned two witnesses as court witness i.e. C.W.-1 - P.N. Chaturvedi and C.W-2 - Ram Asharey. C.W.-1 - P.N. Chaturvedi is the Circle Officer/investigating officer, who has proved the statement of witnesses given under Section 161 Cr.P.C. and has proved the statement which has also been exhibited as Exhibit Ka-2. C.W-2 - Ram Asharey is a witness, whose statement was recorded by the investigating officer, who appears to have given an affidavit in support of the accused persons during the course of investigation, at the stage of bail before the trial court and he has proved certain excerpts appearing in that affidavit.
24. Perusal of the impugned judgement and order of the trial court would reveal that taking into account the fact that death of the deceased had occurred otherwise than in normal circumstances within seven years of her marriage, the trial court framed an issue at page no.14 of the impugned judgement that the only issue, which remains now to be adjudicated, is as to whether the deceased was subjected to cruelty in lieu of demand of dowry. To this extent, I do not find any illegality in the impugned judgement and order as it would also be admitted to the appellant and has also been proved on record that the marriage of the deceased with the appellant was solemnized within seven years of death of the deceased and she had died otherwise than in normal circumstances i.e. by consummation of some poisonous substance.
25. Now the main question, which was staring the face of the trial court, was to see as to whether the prosecution has been able to prove or it is otherwise established on record that the deceased was being subjected to cruelty in lieu of demand of dowry and that too 'soon before her death'. In this regard, the trial court appears to have considered the fact that P.W.-1 - Amarnath Verma and P.W.-2 Payagdin have not supported the case of the prosecution and have been declared hostile, thereafter the trial court proceeded to see the background events and stated that P.W.-1 Amarnath Verma had stated that he has lodged the F.I.R. on the basis of instigation given by the villagers, however, he has not contradicted the fact which is appearing in the F.I.R. that the deceased was being subjected to cruelty in lieu of demand of a motorcycle, therefore, the trial court hold that he is not speaking truth.
26. The trial court has also taken into consideration the statement of the investigating officer i.e. C.W.-1 P.N. Chaturvedi, who has proved the statement of witnesses recorded under Section 161 Cr.P.C. and has also exhibited a letter 7Ka, wherein some allegations have been levelled with regard to the demand of dowry and the court took it consideration a letter written by one Duli Chand and thereafter, it has also considered that an affidavit given by C.W.-2 - Ram Asharey at the time of consideration of plea of bail of the appellant before the trial court, wherein it was stated that the deceased has committed suicide and then the trial court on the basis of this evidence, circumstances and facts came to a conclusion that the deceased was being subjected to cruelty in lieu of demand of dowry that too 'soon before her death'.
27. Having considered the conclusions drawn by the trial court and the reasons appended for the same, in the considered opinion of this Court, the reasons given for such fining appears to be patently perverse and could not sustain the scrutiny of law.
28. It is to be recalled and has have already stated earlier that statement of witnesses recorded under Section 161 Cr.P.C. could only be used for contradiction when he will appear before the court of law for the purpose of tendering his/her evidence, however, there are certain circumstances as enumerated under Section 32 of the Indian Evidence Act, wherein such statement could be used either as 'Dying Declaration' or for any other purpose, however, that is not a case here. Thus the trial court has committed patent illegality in relying on the statement of the witnesses given under Section 161 Cr.P.C. specially when these statements have been specifically denied by the witnesses when they appeared in the witness box as P.W.-1 and P.W.-2.
29. The next mistake, which, in the opinion of this Court, the trial court has committed, is of assuming that the deceased was being subjected to cruelty in lieu of demand of dowry. In criminal jurisprudence, there is no presumption unless provided so even for the offence of Section 304-B I.P.C. or 498-A I.P.C., there cannot be any presumption. The presumption as given under Section 113-B of the Indian Evidence Act could only be invoked when all the ingredients of Section 304-B I.P.C. would be proved by the prosecution that too beyond reasonable doubt. This Court is not hesitating in highlighting that the main ingredient of offence of Section 304-B I.P.C. i.e. 'soon before her death the deceased was subjected to cruelty' was not proved by the prosecution on any standard what to say beyond any reasonable doubt. Thus the impugned judgement of the trial court appears to be based on presumption, which was not permitted and could not be taken legally in the facts and circumstances of the case and also on assumptions and suspicions, which are specifically barred by holding any person guilty of any offence thus, in the considered opinion of this Court, the trial court has committed manifest illegality in recording the judgment of conviction.
30. The law in this regard is well settled that if two views are emerging from the evidence tendered before the trial court, the view favourable to the accused person must be taken for the reasons that there is an initial presumption of innocence in favour of an accused person and therefore, it is the duty of the prosecution to negate that presumption by leading truthful, reliable and trustworthy evidence, which is completely lacking in this case as no prosecution witness has come forward to state that soon before her death, the deceased was being subjected to cruelty in lieu of demand of dowry.
31. For the reasons mentioned herein-before, the instant criminal appeal preferred by the appellant - Keshav Prasad succeeds and the same is accordingly allowed. The impugned judgment and order dated 27.03.2004 passed by learned IVth Additional Sessions Judge, Pratapgarh in Sessions Trial No.96 of 1999 (State vs. Keshav Prasad and another), arising out of Case Crime No.434 of 1998, under Sections 498-A, 304-B I.P.C., Police Station Lalganj, District Pratapgarh is set aside and the appellant is acquitted of all the charges framed against him.
32. The appellant appears to be on bail, his sureties are discharged. He need not to surrender in this case unless his detention is required with regard to any other criminal case. However, he shall file his personal bond along with two sureties of Rs.25,000/- before the trial court within 30 days from today, as provided under Section 437-A of the Code of Criminal Procedure (Now Section 481 of the B.N.S.S.).
33. A copy of this order along with the record of the trial court be immediately sent to the trial court for compliance.
Order Date :- 22.1.2025 Anupam S/-