Court No. - 43

Case :- CRIMINAL APPEAL No. - 1090 of 2018

Appellant :- Kanhaiya Tiwari @ Dabloo Tiwari

Respondent :- State of U.P.

Counsel for Appellant :- Lav Srivastava,Rajan

Srivastava,Rajeev Nayan Singh,V.P. Srivastava, Sr. Advocate

Counsel for Respondent :- G.A.

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

1.

This appeal is by the accused appellant, who happens

to be the husband of the deceased, challenging the

judgment and order of conviction and sentence, dated

29.01.2018, passed by the Additional Session Judge/F.T.C.

II, Kushinagar (Place Padrauna) in Session Trial Nos. 48 of

2011 (State of U.P. vs. Kanhaiya Tiwari @ Dabloo Tiwari and

another) and 155 of 2011 (State of U.P. vs. Krishna Tiwari

@ Pillar and others), whereby the accused appellant has

been convicted and sentenced to life imprisonment under

Section 304B IPC and has also been convicted and

sentenced to two years simple imprisonment under Section

4 of Dowry Prohibition Act with fine of Rs.5,000/- and in

default of fine the accused appellant is to undergo six

months simple imprisonment. All the sentences shall run

concurrently.

2.

At the very outset we may note that the present

appeal has been heard with the consent of learned counsel

for the parties even without paper books as lower court

records are available and have been perused by us. Learned

counsel for the accused appellant as also the State counsel

have also been permitted to peruse the original records of

(2)

the court below. Filing of the paper book is thus dispensed.

3.

Prosecution case is that the first informant Parasnath

Dubey (PW-1) solemnized marriage of his daughter Ashmita

Dubey (deceased) with the accused appellant on 03.07.2010.

Accused appellant and his family members were harassing

and torturing the deceased for demand of dowry and also

tried to kill her. In the morning of 07.11.2010 the accused

appellant came to the house of first informant and demanded

Rs.5,000/- as also a gold chain in the form of dowry and also

stated that if the demand is not fulfilled by evening the

informant will lose her daughter. The accused appellant

returned on the same day. On 08.11.2010 in the morning first

informant received information that accused appellant and his

family members have murdered his daughter for demand of

dowry and are trying to hide her dead body. On receiving such

information the police reached the spot and took custody of

the dead body of deceased. The police also conducted inquest

and inquest report was prepared by 08.30 AM on 08.11.2010.

The inquest witnesses were doubtful of the cause of death and

opined that postmortem be carried out to ascertain the cause

of death.

4.

After inquest the dead body was sent to mortuary for

postmortem, which was conducted on 08.11.2010 at 04.20

PM and the doctor opined the cause of death to be

haemorrhage, shock and coma as a result of following ante-

mortem injuries:-

“(i)

Contused swelling 8.0cm x 6.0cm over right side of

head.

(ii)

Contused swelling of size 10.0cm x 6.0cm on left side

of head.”

5.

On the written information of the first informant a First

(3)

Information Report was lodged as Case Crime No.574 of

2010, under Sections 498A, 304B IPC and 3/4 of Dowry

Prohibition Act, Police Station Sewrahi, District Kushinagar on

09.11.2010 at 01.30 PM. After registration of FIR the

investigation proceeded and charge sheet was submitted

against the accused appellant and his family members, on

which the Magistrate took cognizance and committed the case

to the court of sessions. Charges accordingly were framed

against the accused persons on 15.03.2012, which they

denied and consequently the trial commenced.

6.

The prosecution in order to establish the charges against

accused persons produced oral testimonies of following

witnesses:-

1.

Parasnath Dubey (first informant)

PW-1

2.

Godawari Devi (mother of decea