Allahabad High Court

ARUN KUMARversusSTATE OF U.P. AND ANOTHER

Decided: 10 September 2026
Bench: CHAWAN PRAKASH

Holding

The High Court held that the trial court did not commit any illegality in taking the viscera report on record and framing the alternative charge under Section 302 IPC, and therefore dismissed the application.

Summary

The applicant, Arun Kumar, filed an application under Section 528 of the Criminal Procedure Code seeking to set aside the order dated 24‑02‑2026 that framed an alternative charge of Section 302 IPC in a case originally involving Sections 498A, 304B IPC and the Dowry Prohibition Act. The original FIR alleged dowry demands and the subsequent death of the complainant’s daughter, leading to charge‑sheeting of the applicant. During trial, eight prosecution witnesses were examined and the applicant’s statement was recorded under Section 313 CrPC; the viscera report was later produced after a ten‑year delay and the trial court allowed the prosecution’s request to record it and to frame the alternative murder charge. The applicant contended that taking the viscera report at the final‑argument stage without cross‑examination was arbitrary, illegal and violated natural justice. The High Court examined the procedural history, held that the trial court had not committed any illegality in admitting the report or framing the charge, and consequently dismissed the application.

Issues considered

Whether the trial court erred in admitting a viscera report after a ten‑year delay and without cross‑examination of the applicant.
Whether framing an alternative charge under Section 302 IPC at the stage of final arguments was contrary to law and natural justice.
Whether the application under Section 528 CrPC is maintainable to set aside the order framing the alternative charge.

Legislation cited

Code of Criminal Procedure, 1973 — s. 313, 528
Dowry Prohibition Act, 1986 — s. 3, 4
Indian Penal Code — s. 302, 304B, 498A

Subjects

dowry death
Section 498A IPC
Section 304B IPC
alternative charge
viscera report
Section 528 CrPC
natural justice
cross‑examination

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 23548 of 2026

Arun Kumar
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Sanjeev Kumar Pandey
Counsel for Opposite Party(s) : Dr. Akhilesh Kumar, G.A.

Court No. - 83
HON'BLE CHAWAN PRAKASH, J.

1. Learned Counsel for the applicant is permitted to correct the prayer clause
during the course of the day.

2. Heard Mr. Sanjeev Kumar Pandey, learned Counsel for the applicant, Dr.
Akhilesh Kumar, learned Counsel for opposite party no.2 and learned
A.G.A. for the State and perused the record.

3. The present application under section 528 BNSS has been filed with a
prayer to set aside the order dated 24.02.2026 passed by learned Additional
Sessions Judge, FTC-Ist, (Offence Against Women) Mathura in S.T. No. 41
of 2017, under sections 498A, 304B IPC and 3/4 D.P. Act, Case Crime No.
1073 of 2015, Police Station Vrindavan, District Mathura.

4. Briefly stated, Shri Krishan Sharma, the opposite party no.2, lodged an
FIR bearing Case Crime No. 1073 of 2015 under Sections 498-A, 304-B IPC
and 3/4 D.P. Act at Police Station Vrindavan, District Mathura, against the
applicant and 3 others. It was alleged that his daughter Km. Kshama was
married to the applicant, Arun Sharma on 19.02.2011. At the time of
marriage, cash amounting Rs.3 lakhs and various articles were given.
However, the in-laws demanded an additional dowry of Rs. 5 lakhs cash and
a four wheeler. The daughter of opposite party no.2 was killed on
04.11.2015 at 2.00 P.M. at her matrimonial home. After a thorough
investigation, the applicant was charge-sheeted under sections 498A, 304B
IPC and 3/4 D.P. Act. According to the autopsy report dated 05.11.2015, no
ante mortem injuries were found and the cause of death could not be
NA528 No. 23548 of 2026
2

ascertained; the viscera was preserved.

5. The learned Chief Judicial Magistrate, Mathura, took cognizance on
08.02.2016. The matter was committed to the Court of Sessions and the
charges were framed against the applicant on 05.07.2018 under sections
498A, 304-B IPC and 3/4 D.P. Act. During the trial, a total number of eight
prosecution witnesses were examined. The statement of the
accused/applicant was recorded under section 313 Cr.P.C on 09.07.2025 and
the date was fixed for final arguments. The viscera of the deceased was
preserved on 04.11.2015 and sent for chemical examination to the Forensic
Science Laboratory, Agra on 17.12.2015 and was chemically examined on
22.12.2016.

6. Learned Counsel further submitted that in the meantime, taking a
somersault, the ADGC (Crl.) moved an Application No. 82-Kha dated
05.12.2025 for taking viscera report on record and framing an alternative
charge under Section 302 IPC. Objections were invited on the said
application and the applicant filed the objection dated 13.01.2026. The
application was allowed by the impugned order dated 10.02.2026, passed by
learned Addl. Session Judge/Fast Track Court I (Atrocities against Women)
Mathura. By said order viscera report dated 22.12.2016 was taken on record,
and the matter was fixed for framing of the alternative charge under section
302 IPC. Thereafter, learned Trial Court framed alternate charge of Section
302 I.P.C. against the applicants. Learned Counsel for the applicant submits
that the order dated 24.02.2026 is arbitrary and illegal and was passed
contrary to the facts of this case. The learned Trial Court has committed
gross illegality by taking the viscera report dated 22.12.2016 on record at the
stage of final argument. The prosecution had already produced eight
prosecution witnesses. The statement of applicant was recorded under
section 313 Cr.P.C., and the case was pending at the stage of hearing
arguments. It is further submitted that the viscera report was filed with a
delay of ten years and that no opportunity of cross-examination was given to
the applicant. He further submits that there is no evidence on record to frame
alternative charge of Section 302 I.P.C. and the impugned order is liable to
be set-aside.

7. Learned Counsel for opposite party no.2 and learned A.G.A. vehemently
opposed the arguments so advanced by the learned Counsel for the applicant
and submitted that, after obtaining the viscera report, the prosecution moved
an Application No. 82-Kha dated 05.12.2025 for taking viscera report on
NA528 No. 23548 of 2026
3

record and to frame an alternative charge under Section 302 IPC. After
hearing the applicant and the prosecution, the said application was allowed
by order dated 10.02.2026, and 24.02.2026 was fixed for framing of
alternative charge under Section 302 I.P.C. The applicant challenged the
order dated 10.02.2026 by filing Application U/S 528 BNSS No. 11808 of
2026, which was dismissed by the Co-ordinate Bench of this Court by order
dated 04.05.2026. Hence, this application is liable to be dismissed.

8. As per fact of this case, the opposite party no.2, lodged an FIR bearing
Case Crime No. 1073 of 2015 under Sections 498-A, 304-B IPC and 3/4
D.P. Act at Police Station Vrindavan, District Mathura against the applicant
and 3 others. After investigation, a charge-sheet was filed, and the learned
Magistrate took cognizance thereof. Thereafter, the matter was committed to
the Court of Sessions, and the charges under Sections 498A, 304B I.P.C. and
Section 3/4 D.P. Act were framed against the applicant. During the trial,
statements of eight prosecution witnesses were recorded and the statement of
applicant was recorded under Section 313 Cr.P.C. On 05.12.2025, the
prosecution moved an application for taking the viscera report on record and
for framing alternative charge under Section 302 I.P.C. Objections were
invited and the applicant filed an objection on 13.01.2026. The Trial Court
allowed the said application by order dated 10.02.2026 and fixed 24.02.2026
for framing of alternative charge under Section 302 I.P.C. The
applicant challenged the order dated 10.02.2026 by filing Application U/S
528 BNSS No. 11808 of 2026, which was dismissed by the Co-ordinate
Bench of this Court by order dated 04.05.2026.

9. As per facts available on record, the learned Trial Court did not commit
any illegality in framing the alternative charge against the applicant by order
dated 24.02.2026. Hence, this application is liable to be dismissed.

10. Accordingly, the application is dismissed.

September 11, 2026
Vijay
(Chawan Prakash,J.)

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

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