The failure to properly record the accused's statement under Section 342 J&K Cr.P.C. vitiated the trial, leading to the acquittal of charges due to insufficient evidence.

JUDGMENT :

1. By this common judgment, Criminal Appeal bearing No. 25/2004 filed by the appellant, challenging judgment of conviction dated 28.09.2004 and order of sentence dated 29.09.2004 and Criminal Revision Petition bearing CRR No. 65/2005 filed by father of the victim challenging the aforesaid judgment to the extent of acquittal of the appellant/respondent No.2 of offence under section 302 RPC, are proposed to be disposed of. It is pertinent to mention here that vide the impugned judgment dated 28.09.2004, learned Principal Sessions Judge, Jammu (hereinafter to be referred as the trial court) has in a case arising out of FIR bearing No. 130/1994 for offence under section 302 RPC registered with Police Station, Bakshi Nagar, Jammu convicted the appellant for offence under section 498-A RPC but acquitted him of the charge under section 302 RPC. In proof of offence under section 498-A RPC, the appellant has been sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs. 2000/-.

2. As per the prosecution case, Smt. Anita Puri, wife of appellant/accused died in mysterious circumstances on 11.05.1994. She had entered into wedlock with the appellant in December, 1991. The Police initiated inquest proceedings under section 174 Cr.P.C. During the proceedings, statements of witnesses were recorded. The dead body was taken into possession and its post mortem examination was conducted. As per opinion of the Medical Board, the deceased had died due to asphyxia as a result of strangulation. Accordingly, FIR No. 130/1994 for offence under section 302 RPC was registered and investigation was set into motion.

3. During investigation of the case, it was established that the appellant/accused and his family members started making demands for dowry after the marriage and in fact father of the deceased was compelled to pay money but due to financial constraints, he could not continue the payment after the year, 1993. This resulted in straining of marital relation between the appellant and the deceased and ultimately, the appellant committed the murder of the deceased. Offences under sections 302 RPC and 3/25 Dowry (Restraint) Act were established against the appellant and the challan was laid before the court.

4. Vide order dated 24.09.1994, the learned trial court framed charges under sections 306 and 498-A RPC against the accused/appellant. This order was, however, challenged by the father of the victim before this Court and vide order dated 05.05.1997, this Court directed the trial court to frame charges for offence under sections 302 and 498-A RPC against the accused/appellant. Accordingly, vide order dated 26.07.1994, charges for aforesaid offences were framed by the learned trial court against the appellant/accused. The appellant denied the charges and claimed to be tried. The prosecution was, therefore, directed to lead evidence in support of its case. The prosecution examined PWs Harbans Lal Nanda, Santosh Devi, Bansi Lal, Jaisu Charan Singh, Bholi Devi, Sanjay Kumar, Anil Gupta, Anil Nargotra, Rajesh Nanda, Dr. Anayat Ullah Sheikh, Satdev Singh, Jatinder Kapahi, Bashir-ud-Din and R. K. Jalla as witnesses in support of their case. However, PWs Chaman Lal Puri, Susheela Devi and Amar Nath were not examined by the prosecution and they were given up. After completion of the prosecution evidence, the statement of accused/appellant under section 342 J&K Cr.P.C. was recorded in which he disputed the veracity of the prosecution case and he claimed that he has been falsely implicated. He also claimed that the deceased was feeling frustrated because of miscarriage and this may have compelled her to commit suicide. The appellant/accused examined one witness, namely, DW Parvesh in defence.

5. The learned trial court after appreciating the evidence on record, came to the conclusion that there was not clear evidence to show that the deceased had died due to homicidal strangulation. According to the learned trial court, the