MAHIPALversusSTATE OF U.P.

                                                          AFR




        HIGH COURT OF JUDICATURE AT ALLAHABAD
                 CRIMINAL APPEAL No. - 4514 of 2023

Mahipal                                                 …..Appellant(s)


                                Versus

State of U.P.                                        …..Respondents(s)

Counsel for Appellant(s)         : Bishram Tiwari, Kamlesh Kumar
                                   Tripathi, Ram Naresh Nigam, Ritesh
                                   Singh, Shyam Shanker Pandey,
                                   Sonu Malik, Suresh Singh
Counsel for Respondent(s)        : G.A.


Court No. - 42
                   HON'BLE SIDDHARTHA VARMA, J.
                   HON'BLE PRASHANT MISHRA-I, J.

1.    The present criminal appeal has been preferred against the

judgment and order dated 7.4.2023 passed by learned Sessions Judge,

Rampur, in Session Trial No. 372 of 2017 (State vs. Mahipal and others),

in Case Crime No. 552 of 2017 under Section 302 IPC, Police Station –

Milak, District – Rampur, whereby the trial court had convicted the

appellant to undergo life imprisonment under Section 302 IPC with a

fine of Rs. 30,000/- and in case of default of payment of fine, he shall

undergo four months additional imprisonment.


2.    Upon the death of Mamta, the niece of the first informant Sri

Rameshwar, an FIR was got lodged on 15.8.2017 which had given rise

to Case Crime No. 552 of 2017. The alleged incident had taken place on

14.8.2017. As per the FIR version, the first informant had informed that
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the daughter of the elder brother of the first informant was married

around 3 years earlier to Mahipal. In the marriage, it has been said, the

elder brother Sompal had given sufficient dowry to the accused Mahipal.

However, the in-laws were not satisfied with the dowry and, therefore,

immediately after the marriage the husband of the deceased, Mahipal,

her father-in-law Sompal, her mother-in-law Sharda, jethani – Saroj, jeth

Brijesh and nanad Kumari Annu were from the very beginning after the

marriage torturing her. In this regard, a panchayat was also held.

However, in the mid night of 14/15.8.2017 they all had together killed

his niece Mamta. Upon getting the information about the death of

Mamta, he had stated that he had reached the matrimonial house of

Mamta and, thereafter, he had found that her dead body was lying and

that the family members had run away. He had stated that at the place

where the dead body was lying he had left behind his brother Sompal

and had gone to get the FIR lodged.

3.    Upon the FIR being lodged, the Police got into action and the

inquest report was prepared on the 15.8.2017 itself. The inquest had

commenced at 10:05am and had got completed at 11:00am. The dead

body along with the Panchayatnama and the FIR etc. was sent for post

mortem which was conducted on 15.8.2017 at 2:45PM. The cause of

death was said to be asphyxia due to ante-mortem throttling. It was,

however, said that the viscera was preserved. The police thereafter

recorded the statements of various witnesses and also that of the accused

persons and submitted its report before the Court, which on 20.1.2018

framed charges under Sections 498-A and 304-B IPC. An alternative
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charge under Section 302/34 IPC was also framed on 7.12.2022. The

charges were framed against the husband Mahipal, the father-in-law

Sompal and the mother-in-law Smt. Sharda.

4.    For proving of the prosecution case, as many as 7 prosecution

witnesses were examined. Ashok Kumar Singh was produced as the

court witness and from the side of the defence, three defence witnesses,

namely, Smt. Chameli Devi, Rajpal, Harpal Singh were also examined.

5.    P.W.-1 was the first informant, namely, Rameshwar. He had

deposed before the Court in his examination in chief that the deceased

was his niece and was the daughter of his brother Sompal. He had

reiterated the facts as were stated in the FIR. In the statement-in-chief he

had stated that for 4 -5 months after marriage in the place of the in-laws

everything went off well but after that there were demands of dowry. In

the dowry, Rs. 1 lac cash, one car and money for the purposes of

building a house were demanded. He had stated that when the dowry

was not given then they used to beat the deceased Mamta. After the

completion of one year of marriage when the demand of dowry was not

fulfilled then Mamta was also turned out of her house. With regard to the

turning out of Mamta from her matrimonial house, a report was also got

lodged at the Mahila Police Station. However, thereafter, there was an

agreement reached between the parties with the help of all the relatives.

Upon the rapprochement, Mamta went back to her matrimonial house

but again after sometime the in-laws started beating her. On 14.8.2017,

he had stated that when dowry was not given she was killed by

strangulation and the culprits were Mahipal, Sompal, Sharda, Brijesh
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and Annu. He had stated that thereafter he had reached the matrimonial

house of the deceased on 15.8.2017 where none of the family members

were to be found and the dead body was lying on a cot inside the room.

On the neck there was an injury and there was a black line on it. On the

head, there was a swelling. He had stated that he had got the FIR lodged

against all the six accused and he had got it reported by dictating it to his

nephew Arvind and he had, thereafter, proved the FIR. In the cross-

examination, he had stated that Sompal and he himself i.e. Rameshwar

were living in the same house. He had stated that in the morning he

along with his nephew Arvind had gone to the place of incident at

Partapur. They had started at 7:00am on a bike. After half an hour of

their reaching Partapur, the elder brother of the first informant Radhey

Shyam, another nephew Poshaki Lal and other relatives also started in

two tractor trolleys. One tractor-trolley belonged to the pradhan of the

village and the other tractor-trolley belonged to Poshakilal and he had

stated that in the village Partapur another daughter of Sompal was got

married and the name of the other daughter was Guddi and her

husband’s name was Jai Virath. Guddi was the eldest daughter amongst

the brothers and sisters. He had stated that Guddi had not given the news

to him but other persons of the village had given that news. Who had

rung him up, he did not know and he had also not asked the name of that

person. He had also not verified about the death of Mamta from Guddi.

When he had reached Partapur, Guddi was not there and she had also not

reached the place of incident till such time as the informant’s side was

there. He had stated that when he had reached Partapur then no one of
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the in-laws side was there. However, when he and his nephew Arvind

had reached, the other villagers had reached the place of incident whose

name the informant did not know. He had stated that he stayed back at

the place of incident for about 15 minutes. Who all had killed Mamta

was informed by the person who had informed him of the incident on the

phone. For him to reach at Milakh Kotwali from Partapur, it had taken

about 15 to 20 minutes. At the police station, the nephew Arvind had

scribed the FIR on his dictation. He had in the cross-examination stated

that whenever Mamta used to come to her Maika, she used to tell

everything about her in-laws. Upon asking the villagers as to where the

family members of the in-laws had gone, the villagers had told the

informant that they had left the village at around 4:00am in the morning.

He had stated that even though the relations with Guddi the elder sister

of the deceased were cordial, they had not contacted Guddi. He had

stated that he had no idea that the elder brother of the accused Mahipal,

namely, Brijesh had gone to Bagad (a place of pilgrimage). He had stated

that Mamta was a simple girl and that he had no idea if she was suffering

from any fits of anger etc. Upon further cross-examination, he had stated

that because there was swelling on the neck and on the head he had

stated that there was throttling. Upon a question being asked as to where

the child of the deceased was born, he had told that the child was born in

the Lovey Hospital. After the child was born, she had stayed for some

time with the in-laws and thereafter for sometime, she went to her

maika. He had also stated that he had no idea as to how much was the

expense of the hospital as the same was borne by his brother. He had
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further stated in his cross examination that it was wrong to say that

because the husband of the deceased was a driver and because of that

reason he used to remain out of the village and, therefore, the husband

was vexed when she was not found in the matrimonial house. He had

further stated that it was also not correct that because she stayed for long

periods in her maika, her husband did not get the happiness she could

give. He had stated that in his presence never any altercation had taken

place for the purposes of dowry. In fact, he had stated that in the FIR he

had not mentioned about the demand of dowry because nothing of that

sort had happened in his presence ever.

6.    P.W.-2, was the father of the deceased, Sompal. He had stated that

the deceased was his daughter and that he had married her off around

three years earlier with Mahipal and had given her enough dowry. He

had stated that around 8 to 10 months after the marriage, Mamta used to

inform him about the demand of dowry by her in-laws. He had also

stated that she was turned out of her matrimonial house because of the

non-payment of dowry. He had also stated that he had got a report

lodged in the Mahila Police Station at Rampur. However, the two

families had arrived at an agreement when there was a panchayat of the

relatives. For sometime things went off smoothly but thereafter again the

demand of dowry started off. He had stated that for a very long period,

the deceased was not given food and when she used to fall ill she was

not given any money for buying medicines. He had stated that he used to

send money for the medicines. He had, thereafter, stated that the incident

had taken place around one and a half year prior to the date of the
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recording of the testimony in the Court and that on 15.8.2017 his elder

daughter Guddi whose house was in the neighbourhood of the house of

Mamta had rung him up and had informed him that the in-laws had

throttled Mamta. He had stated that upon hearing this, all the family

members had gone to the in-laws place at Partapur. There he had found

that the in-laws were not present in the house. In the statement-in-chief,

further he had stated that when he had reached the house at Partapur, he

had found the dead body lying on a cot. He had also found some injury

on the neck and head. He had stated that his brother Rameshwar had

informed the police about the incident. After all the formalities the dead

body was cremated. In the cross-examination he had stated that he had

given enough dowry to the husband of the deceased at the time of the

marriage. He had also stated in the Court, that he had also given a list of

things which he had given as dowry. He had stated that whenever his

daughter and son-in-law used to come to the village they were seen off

with presents. He had stated that he had not gone to get the FIR lodged

and thus the same was lodged by his brother Rameshwar. He had stated

that he had given enough dowry at the time of marriage. He had stated

that his son-in-law Mahipal was a driver and also used to do farming and

had stated that it was correct to say that for many days together his son-

in-law used to be out of the house and that his daughter used to stay in

her maika. On the date of the incident, he had reached the place of

incident half an hour after his brother and his nephew had reached.

Thereafter he had stated that at the house the inmates of the susural and

various villagers were there. In the cross-examination again he had
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stated as to how he had got the information and then he had stated that

his son-in-law was present.

7.    He had stated that his daughter was never happy in her in-laws

house. She had become pregnant after two years of marriage and had

stayed in her in-laws house thereafter. The medical treatment was also

given by the in-laws. The child, however, was a still born child and was

born in the Lovey hospital and that he had got her admitted in the maika

in the Lovey hospital. He had however no proof about it. He had stated

that the in-laws had kept the daughter admitted for 4 days in the Lovey

hospital. From the time she conceived till such time as she delivered the

baby she had remained in the matrimonial home. She never came to her

maika. After she was discharged from the hospital she had gone to her

in-laws. The child was born after full 9 months. When the deceased was

pregnant, the maika vala used to visit her. He had stated that he had not

got the FIR lodged as he was unconscious at the relevant point of time.

He had also stated that police had never taken any statement of his.

Upon being confronted with a statement under Section 161 Cr.P.C., he

had stated that he had not got any statement under Section 161 Cr.P.C.

recorded. On the date of incident he was unconscious. What was got

recorded in the FIR he did not know. Whether Brijesh, the Jeth, had gone

for pilgrimage he did not know. Why his brother despite knowledge that

there was a demand of dowry had not mentioned in the FIR that Rs. 1 lac

was demanded, he did know. He had stated that whenever his son-in-

law Mahipal used to go out as a driver his daughter i.e. the deceased

used to stay with her in-laws and she never used to go to her maika. He
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had further stated that he had on many an occasion brought the deceased

to his own house. Then he had stated that he had seen the injuries on the

body of the deceased and that it was present on the waist and neck and

on the neck there were injuries of beating by danda also. He had stated

that earlier also she used to get beatings. He had never got reported those

beatings as he feared that the son-in-law Mahipal would abandon her.

He had in the cross-examination stated that the deceased had never fallen

ill and, therefore, earlier when he had stated in his statement that he used

to give her medicines was a wrong statement. The fact was that no

medicine was required by her. He had stated that his other daughter

Maldei (Guddi) was also got married in the village where the deceased

had got married and Maldei had never informed of any torture or

demand of dowry. He had stated that it was wrong to say that because

the father had kept the daughter for a very long time in maika, therefore,

Mamta had committed suicide. He had thereafter in the end stated that it

is wrong to say that she used to stay very happily in the matrimonial

home.

8.      P.W.-3 was the Sub Inspector Satendra Kumar who was the

Investigating Officer at the relevant point of time. He was also present at

the time of the panchayatnama. He had stated in his cross-examination

that he had not found any evidence of any broken bangles. She was also

wearing a chain(mala) in her neck. There was no apparent injury on the

body. On the neck there was a ligature mark. How the death had taken

place, he had no idea. She was wearing a round Bindi and her clothes

were proper. From the panchayatnama it was apparent that there were a
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few people from her maika and a few people from her Sasural. No danda

etc. was recovered.

9.    P.W.-4 was one Vinod Babu, the brother of the deceased. He had

stated in the examination-in-chief that he had solemnized the marriage of

his sister in the village – Partapur, Police Station – Milakh, District –

Rampur, with Mahipal around 3 years prior to the date of incident. For a

period of 8 to 9 months everything went off well and thereafter there was

a demand of Rs. 1 lac and a car and some money for the construction of

house. The demand was made by the husband Mahipal, her father-in-law

Sompal, her mother-in-law Sharda, her sister-in-law Annu, her Jeth

Brijesh and jethani Saroj. When the demand was not fulfilled, the

deceased was tortured and somehow she used to go to her village i.e.

her mother’s place. When a complaint was made with the police then

the in-laws asked for forgiveness and they also stated that they would

never in future demand any dowry. For some time everything went off

well but subsequently he states that Mahipal and his family members

killed the deceased. Upon getting the information about the death of the

deceased, he had stated that he had reached the village – Partapur where

he had found the dead body on a cot. He had stated that he had seen the

injuries on the eye-brows, neck and at that point of time, the accused

persons were not available in the house and the FIR was lodged by his

uncle Rameshwar. He had also signed on the Panchayatnama. The

compromise which was earlier entered into was also seen by him and he

had stated that it was a Panchayatnama which was entered between the

family members of the deceased and her in-laws. In the cross-
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examination, he had stated that information with regard to the death had

reached his uncle on phone. He or his father had not received any

information. In the cross-examination, further he had stated what he had

got recorded in the examination-in-chief. Upon a question being asked

whether he had got any case lodged earlier then he had said that he had

got a case lodged in the Mahila Police Station. He, however, had stated

that he did not have a copy of the FIR as the matter had resulted in a

compromise. He had, in fact, not known even about the case crime

number. He had stated that the deceased never used to stay continuously

for 15 to 20 days in her susural. Even though she used to get a beating at

the in-laws place he had stated that he never used to get a medical done.

Whenever they used to say that they would not torture her then they used

to take her to the in-laws place. When the deceased was pregnant, he had

stated that the routine check up was got done by in-laws as also by her

family members on the mother's side. He had stated that he did not

remember as to who had taken the discharge certificate. The still born

child was born almost after one and a half or two years of the marriage

of Mamta.

10.   P.W. -5 is the Doctor who had conducted the post mortem along

with other doctors in the panel. He had stated about the ante- mortem

injuries that were there, namely traumatic swelling on the top of the head

and on the right eye-brow. There was also an injury on the neck, both on

the front side and on the back side. There was an abrasion on the chest of

the left side. The doctor had stated that the hyoid bone was intact and the

opinion given by the doctor was that it could have been caused by
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throttling. However, the viscera was preserved. He had also stated that at

the time of post mortem all the articles of make up, namely, bangles etc.

were in proper state. He had also given an opinion that the case could

have been that of hanging and the injuries could have been because the

body had fallen down when it was being taken down from the rope.

There were no thumb impressions on the throat which are usually found

at the time of throttling and, therefore, he also stated that the death could

happen because of hanging and that it also could be a case of suicide. In

the cross-examination, however, further he had stated that there was no

sign of any rope being used for hanging. He had then stated that if

throttling by hand was done then there would have been some signs of

nails on the neck. Upon a question being put as to whether it was

essential for the finger prints to be there if there was throttling then he

had answered that it was not possible without them. He has stated that

hyoid bone normally got broken in the case of throttling but it was not

essential at all times.

11.     P.W.-6, Sri O.P. Arya was the investigating officer and he had

stated the manner in which the investigation was done. He had stated

that it was right to say that at the time of the incident most of the family

members were not there but the whereabouts of Mahipal, the husband

who was a driver could not be told. He had, however, stated that it was

wrong to say that she had committed suicide as she was tired of the

people in the maika.

12.     P.W.-7 was the constable Harendra Singh who had proved the

chik.
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13.   A Court Witness by the name of Ashok Kumar Singh was also

summoned and had stated that on 15.8.2017 he was posted at Tehsil

Milakh as Tehsildar and he had gone to oversee the panchayatnama on

the relevant date. He had stated that on the body of the deceased there

was no sign of any resistance and, there was no injury to that effect.

However, there was only a ligature mark on the throat. There was

absolutely no sign of any weapon having been used. The ligature mark, it

was said could have been there because of hanging. The other articles of

make up namely a chain (neckless) Bindi and bangles were found intact.

      Thereafter, the statements of the accused persons were recorded

under Section 313 Cr.P.C. They had denied having committed the crime.

14.   From the side of the defence also, certain witnesses had appeared.

D.W.-1 was Smt. Chameli Devi. She had very categorically stated that

Mamta had died by hanging. The door was closed from inside and she

had hung herself to death with the help of a Chunni. She had stated that

father of Mahipal had informed her that Mahipal had gone somewhere

else in some programme of Janamasthmi. When the incident had

occurred, the mother of Mahipal had raised a hue and cry and quiet a few

people of the village had collected and from the window they had seen

Mamta hanging. They broke down the door and entered. She had stated

very categorically that Mamta had committed suicide. She had, upon a

question being asked as to why she was taken down from hanging

position then she had replied that it was thought that she might have

been saved by taking her down from the hanging position. She had also

stated that her in-laws never tortured her. She had stated that Mahipal
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used to go for driving and was very often out of the house. She had

basically stated that the deceased was happy in the house of the in-laws

and there was no torturing etc done. The child of Mamta was also born

by surgery and that the entire expenses were borne by Mahipal, the

accused.

15.   In the cross-examination, she stood firm and had stated that

Sompal, the father-in-law of the deceased had come and informed her

about the death of Mamta.

16.   D.W.-2 Rajpal had also stated somewhat the same thing as was

stated by the D.W.-1. He had also stated that he was not in any manner

related to the accused persons.

17.   D.W.-3 is Haripal Singh. He had also stated exactly what the

D.W.- 1 and 2 had stated that Mamta had died by hanging herself.

18.   Upon completion of the Trial, the court on 7.4.2023 had acquitted

Sompal @ Dhyan Singh and Smt. Sharda of the charges under Section

498-A, 304-B, 302/34 IPC and Section 3/4 of the Dowry Prohibition

Act. However the Trial Court convicted the accused – appellant Mahipal

under Section 302 IPC, then the instant criminal appeal was filed by

Mahipal.

19.   Learned counsel for the appellant Sri Bishram Tiwari assisted by

Sri Ritesh Singh has submitted that the witnesses of fact i.e. the P.W. 1,

2, 3 and 4 had simply concluded that because of the fact that the incident

had occurred in the house of the appellant Mahipal, the appellant alone

was responsible and had to be convicted.
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20.   Learned counsel for the appellant assailed this aspect of the case

by submitting that as per the law laid down by the Supreme Court in the

judgement of Smt. Gargi v. State of Haryana reported in AIR 2019 SC

4864, settled law was that even if the appellant was the husband of the

deceased and both of them were staying under the same roof, the fact

remained that such companionship in itself did not mean that a

presumption of guilt of the appellant had to be drawn. The Trial Court

could not have thus proceeded in the manner it had proceeded by

presuming that the appellant was guilty as per the provisions of Section

106 of the Evidence Act. He had submitted that it was the bounden duty

of the prosecution to discharge its primary burden of proving the case of

the prosecution beyond reasonable doubt. The prosecution first had to

work its way through various evidence to find out that the appellant was

actually in the house at the relevant point of time. Learned counsel for

the appellant submits that the appellant was a driver and there was every

possibility that he was not in the house at all.

21.   Since the learned counsel for the appellant relied upon paragraph

no. 33 of the judgment in the case of Smt. Gargi v. State of Haryana

reported in (2019) 9 SCC 738, they are being reproduced here as under:-

      “33. The prosecution has relied upon another circumstance that the deceased

      was lastly in the company of the appellant and she had failed to explain his

      whereabouts as also the circumstances leading to his death.

      33.1 Insofar as the “last seen theory” is concerned, there is no doubt that the

      appellant being none other than the wife of the deceased and staying under

      the same roof, was the last person the deceased was seen with. However, such

      companionship of the deceased and the appellant, by itself, does not mean
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that a presumption of guilt of the appellant is to be drawn. The trial court and

the High Court have proceeded on the assumption that Section 106 of the

Evidence Act [ “106. Burden of proving fact especially within knowledge.—

When any fact is especially within the knowledge of any person, the burden

of proving that fact is upon him.”] directly operates against the appellant. In

our view, such an approach has also not been free from error where it was

omitted to be considered that Section 106 of the Evidence Act does not

absolve the prosecution of its primary burden. This Court has explained the

principle in Sawal Das [Sawal Das v. State of Bihar, (1974) 4 SCC 193 : 1974

SCC (Cri) 362] in the following: (SCC p. 197, para 10)

       “10. Neither an application of Section 103 nor of 106 of the Evidence
       Act could, however, absolve the prosecution from the duty of
       discharging its general or primary burden of proving the prosecution
       case beyond reasonable doubt. It is only when the prosecution has led
       evidence which, if believed, will sustain a conviction, or which makes
       out a prima facie case, that the question arises of considering facts of
       which the burden of proof may lie upon the accused.”
33.2. On the facts of the present case, it emerges that as per the version of PW

7, the deceased was lastly in his company on 28-4-1997 when he allegedly

expressed his dejection and fear as also his plan to return with luggage. The

appellant has pointed out that the deceased was with her in the morning of

29-4-1997 when he pointed out his tour programme commencing that day

with scheduled return on 3-5-1997. It is not in dispute that the deceased was

regularly on tour for longer durations of about two weeks in connection with

his duties. The dead body was recovered on 1-5-1997 and as per post-mortem

report, the probable time that had elapsed between death and post-mortem (on

2-5-1997 at 12.30 p.m.) was 24 to 72 hrs. On the basis of this opinion, it

cannot be assumed by way of arithmetical calculation that the deceased might

have met with his end on 29-4-1997. The possibility of it being a day later is

not ruled out.
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      33.3. In the given set of circumstances, the last seen theory cannot be

      operated against the appellant only because she was the wife of the deceased

      and was living with him. The gap between the point of time when the

      appellant and the deceased were last seen together and when the deceased

      was found dead had not been that small that possibility of any other person

      being the author of the crime is rendered totally improbable. In Sk. Yusuf [Sk.

      Yusuf v. State of W.B., (2011) 11 SCC 754 : (2011) 3 SCC (Cri) 620] , this

      Court has said: (SCC pp. 760-61, para 21)

             “21. The last-seen theory comes into play where the time gap between
             the point of time when the accused and the deceased were last seen
             alive and when the deceased is found dead is so small that possibility
             of any person other than the accused being the author of the crime
             becomes impossible.”



22.   The other arguments raised by the learned counsel were as

follows:-

      I.     Still further, learned counsel for the appellant submitted that

      one more sister of the deceased known by the name of Guddi @

      Maldeihad got married in the very same village where the

      deceased had got married but she had never given the information

      of the death and also the sister of the deceased was not in the

      know of the fact that her own sister was being tortured in any

      manner whatsoever.

      II.    Learned counsel for the appellant further submitted that if

      the evidence of the various prosecution witnesses of fact are seen

      then also it becomes clear that the first informant was the uncle of

      the deceased and he had stated that somebody had rung him up to

      inform about the death but in fact he was unable to tell the name
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of the person who actually had informed him and the call details

were also not looked into when the investigation had taken place

and, therefore, it was not reliable to believe that somebody had

informed him. Further, the case of the P.W.-1 becomes doubtful

when P.W.-2 who was the father had said that he had directly got

information at around 8 to 9 AM in the morning on the date of the

incident. The father had also never got the FIR registered but he

was stating that he had got the FIR scribed. The source from

where the father got information also was the elder daughter and

this fact was never disclosed by P.W.-1.

III.   Learned counsel for the appellant had submitted that when

the still born child of the deceased was born there were

contradictory stands taken by the prosecution witnesses as to who

had met the expenses of the treatment. The P.W.-1 had stated that

it was the Maikawala who had got the treatment done whereas the

P.W.-2 and other prosecution witness i.e. the brother of the

deceased had stated that the in-laws had got the treatment done.

IV.    Learned counsel for the appellant had further stated that

when there were statements from the side of the defence also that

they had seen the incident actually with regard to the hanging of

the body from the roof then that aspect of the matter ought to have

been looked into by the Trial Court.

V.     Learned counsel for the appellant further stated that if there

had to be a strangulation there in the absence of any hyoid bone

being fractured then a definite medical opinion ought to have been
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                                                     CRLA No. 4514 of 2023

      there with regard to the fact as to whether there were any thumb

      nail marks on the throat. Learned counsel for the appellant states

      that when thumb nail marks on the throat were absent and the

      ligature mark was there present on the neck and throat then there

      was a possibility that the deceased had died owing to hanging.

      VI.   Learned counsel for the appellant had submitted that when

      other co-accused had been discharged of the charges levelled

      against them and the evidence was led with regard to all the

      accused virtually on the same ground that the deceased and the

      accused were all living under the same roof then for the trial court

      to take a view different for the accused definitely had a prejudicial

      effect on the case of the appellant who was the only accused who

      was convicted.

23.   Learned AGA Sri Amit Sinha opposed the appeal and submitted

that in view of the evidence which was there against the accused and in

view of the fact that the deceased had died in the house of the accused

appellant then there was no other presumption to be drawn than the one

which had been drawn by the trial court.

24.   Having heard the learned counsel for the parties, we are of the

view that the prosecution did not discharge its duty of actually coming

up with the evidence which would have gone to prove that despite the

fact that the husband i.e. the accused appellant was staying with the

deceased under the same roof he alone was the person who had actually

committed the crime. In the instant case, we find that the appellant's

husband was a car driver and he quite often used to be away in
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                                                      CRLA No. 4514 of 2023

connection with his job but at no point of time the prosecution

specifically pointed out that in fact the appellant alone had committed

the crime and conclusions had been drawn because of the provisions of

Section 106 of the Evidence Act that if the accused was living with the

appellant then it was the appellant’s duty to have explained as to how the

murder had taken place. In the instant case, we find that the very first

prerequisite was that the prosecution should have come up with the case

whereby it would have been found that the husband was on that

particular date in the house where the deceased had died. In the absence

of the primary function which had to be performed by the prosecution

whereby they had to prove that the husband was actually present in the

house at that particular point of time, we are of the view that the

prosecution had failed in its duty and thus the only irresistible conclusion

is that when the prosecution itself had failed to discharge its duty of

bringing in evidence to prove that the husband i.e. the appellant was in

the house at the relevant point of time and had committed the murder,

then the accused – appellant is entitled for acquittal. Also it is

noteworthy to mention here that one of the most important witnesses of

cruelty, harassment and demand of dowry, etc. was the elder daughter of

Sompal i.e. Maldei alias Guddi, who was married in the very same

village where the deceased Mamta was married. She has not been

produced by the prosecution. She would have been the test witness

regarding the allegations levelled by the in-laws of Mamta (deceased) as

both were real sisters and were married in the same village. Had Maldei
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                                                   CRLA No. 4514 of 2023

alias Guddi was examined by the prosecution she would have been a

much better witness than those produced by the prosecution.

25.   Further, PW-2, in his examination-in-chief, has very clearly stated

that Maldei alias Guddi was married in the neighbourhood of Mamta’s

matrimonial home and he has also stated that Maldei informed him on

telephone that Mamta was beaten and was throttled to death by her in-

laws, whereas PW-1, on the other hand who is the uncle of deceased

Mamta, has vehemently stated in his cross-examination that the

information as to the death of Mamta was not given by Guddi. So, at this

juncture, there is a big contradiction between the version of the

witnesses. It has also been stated by the prosecution witnesses that the

cost of treatment during pregnancy of Mamta was borne by the

Maikawalas and in the same context the other prosecution witness says

that the cost was borne by the in-laws of the deceased. Therefore, here

also appears a contradiction which although not very material to the case

but holds an importance as the family members of the deceased would

have known the fact as to who borne the expenses when the deceased

was undergoing a surgery during her pregnancy, when still born child

was born.

26.   Moreover, the defence witnesses, namely, Chameli Devi, Rajpal

and Harpal Singh have also been examined and they all have stated that

Mamta died due to hanging and they have also stated about the injuries

which they saw on the body of the deceased. The doctor, who conducted

the post-mortem of the deceased, has also stated in his cross-examination
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                            that the injuries caused on the body of the deceased, may be due to

                            hanging.

                            27.         Therefore, in view of the above, we are of the view that

                            prosecution has completely failed to establish the charges levelled

                            against the appellant and that if on the same set of evidence, the two

                            accused Sompal alias Dhyan Singh and Smt. Sharda Devi were acquitted

                            of the charges levelled against them, it was bad to convict the sole

                            appellant-Mahipal on account of the same evidence.

                            28.         Thus in view of what has been stated by us, we are of the view

                            that the appeal deserves to be allowed and the judgment and order dated

                            7.4.2023 passed by the Sessions Judge, Rampur, be set aside.

                            29.         The instant criminal appeal is, therefore, allowed and the

                            judgement and order dated 7.4.2023 passed by the Sessions Judge,

                            Rampur, is set aside.

                            30.         That the appellant is honourably acquitted of all the charges under

                            which he was tried. Since the appellant is acquitted of all the charges, the

                            sureties and bail bonds be discharged. The appellant be, therefore,

                            released forthwith if he is not required in any other case.



                                                  (Prashant Mishra-I,J.) (Siddhartha Varma,J.)

                            May 12, 2026
                            PK




Digitally signed by :-
PRAVEEN KUMAR
High Court of Judicature at Allahabad