Conviction under Section 306 I.P.C. cannot be treated as a minor offence in relation to Section 302 I.P.C.; prosecution failed to prove cause of death or allegations of cruelty.

JUDGMENT :

PRADEEP KUMAR SRIVASTAVA, J.

1.Heard learned counsel for the parties.

2. Present criminal appeal is directed against the judgment of conviction and order of sentence dated 29.03.2006 passed by learned Additional Sessions Judge, FTC, Koderma in S.T. No. 539(A) of 1999, whereby and whereunder the appellant has been held guilty for the offence under Section 328, 498A and 306 of the I.P.C. and sentenced to undergo R.I. for 05 years for the offence under Section 306 I.P.C. along with fine of Rs. 1,000/-, R.I. of 03 years along with fine of Rs. 5,00/- for the offence under Section 498A I.P.C. and R.I. for 5 years along with fine of Rs. 5,00/- for the offence under Section 328 of the I.P.C. with default stipulation. All the sentences were directed to run concurrently.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal is that informant’s daughter Dewanti Devi was married before 7-8 years with one Dhanpat Yadav in accordance with Hindu rites and customs. It is alleged that after marriage, the husband and wife were living in very good and cordial atmosphere for 3-4 years, but there was no issue to the informant’s daughter. It is further alleged that due to no issue, informant’s daughter was being subjected to cruelty and tortured both mental and physical by in-laws family members. The informant convened Panchayati 3-4 occasions to mend the conduct of the accused persons, but no virtual result yield. It is further alleged that on 06.05.1999, the son- in-law of the informant and his brother Ram Sahay Yadav (present appellant) had brutally assaulted the informant’s daughter while she was insisting to go to her parental home. Thereafter, again on 09.05.1999, the informant’s son-in-law Dhanpat Yadav and his brother Ram Sahay Yadav (present appellant) committed murder of his daughter and the information was given by the present appellant to the informant on10.05.1999 at about 5:00 A.M.

4. On the basis of aforesaid information, FIR being Jayanagar P.S. Case No. 30 of 1999 for the offence under Section 302/34 of the I.P.C. was instituted against the above-named accused persons. After completion of investigation, the police submitted charge sheet against the accused persons for the offence under Sections 302, 328, 498A of the I.P.C.

5. The case was committed to the court of Sessions, where trial proceeded in Original Sessions Trial No. 539 of 1999 Dhanpat @ Dhanpat Yadav faced trial, but the present appellant was absconding, therefore, his trial was separated and split case S.T. No. 539A of 1999 was continued. The present appellant appeared and also faced the trial and after conclusion of trial, he has been held guilty and sentenced as stated above.

6. Learned counsel for the appellant has vehemently argued that the appellant happens to be brother-in-law of the deceased. Admittedly, the marriage was solemnized about 8-10 years prior to the incident. It is admitted case of the prosecution that the deceased was murdered by administering poison. It is further submitted that the Viscera was sent to FSL Ranchi for chemical examination which was not available during trial of the case and has not been proved. The Doctor, who conducted, the autopsy on the dead body of the deceased, has also not been examined in this case. Therefore, the cause of death has not been proved by the prosecution. It is further submitted that the charges were framed under Section 302, 328, 498A read with Section 34 of I.P.C. and the husband of the deceased was convicted and sentenced in the original Sessions Trial No. 539 of 1999 vide judgment dated 24.05.2004 passed by same Court. It is utter surprising that it was never the case of the prosecution that the accuse