The main legal point established is the necessity for a fair and thorough consideration of evidence and the essential ingredients of the relevant sections of the IPC in reaching a just decision.

( 1 ) THE appellant Rajendra Prasad Pandey is the husband of the deceased Meena Devi who, according to the prosecution, was married to him in June 1992. She was allegedly done to death on 12. 2. 1997 in her Sasural in village Krishna Nagar, Police Station Naini, District Allahabad. The F. I. R. was lodged by her brother PW 1 Shiv Sagar Dubey, resident of Village Khutari, police Station Maridhan, District Mirzapur at Police Station Naini, District Allahabad. The instant appeal has been filed by the accused appellant against the judgment and order dated 21. 7. 2005, passed by Dr. Manjoo Nigam Special Judge, SC/st Act, Allahabad in Sessions Trial no. 334 of 1998, convicting and sentencing the accused appellant under Section 302 and 318 i. P. C.

( 2 ) AS per the F. T. R. , the complainant had performed a decent marriage of his sister according to his status and had given one Hero Honda motorcycle, cash of Rs. 40,000/-, jewellery and other household articles in dowry. The accused appellant was not satisfied and soon after the marriage he started treating the deceased with cruelty over the demand of dowry, particularly a VCR which could not be given by the complainant for financial difficulties. The accused appellant had also developed illicit relations with one Km. Arti. He continuously treated her with cruelty and ultimately killed her brutally by strangulation after assaulting her. At that time, she had six months pregnancy. It was also mentioned in the F. I. R. that there were ante mortem injuries but those injuries had not been mentioned in the inquest report.

( 3 ) AT the trial, charges under Sections 498a/304b/318 and 201 I. P. C. were framed against the accused appellant. However, the trial Judge has convicted the accused appellant under Section 302 I. P. C. with sentence of life imprisonment and a fine of Rs. 10,000/ -. He has further been convicted under Section 318 I. P. C. with sentence of 2 years rigorous imprisonment. Both the sentences have been ordered to run concurrently.

( 4 ) WE have heard Sri V. C. Misra, learned Senior Advocate assisted by Sri R. P. Dubey for the appellant and Ms. N. A. Moonis, learned A. G. A. for the State in opposition. The record of the lower court has been summoned.

( 5 ) WHILE pressing the bail prayer of the accused appellant during the pendency of the appeal, learned counsel has placed reliance on the case of Sohan Lal v. State of Punjab, 2004 (48) ACC 132 to stress the point that in the absence of a charge under Section 302 I. P. C. , he (when charged under Section 304b I. P. C.) could not be convicted thereunder for allegedly causing the death of the victim. Through the cited decision, the Apex Court has ruled that an accused neither charged under Section 302 I. P. C. nor under Section 109 I. P. C. is prejudiced due to non-framing of the charge under either of these sections. Conviction thereunder is wholly unsustainable when he was only charged for dowry death under Section 304-B I. P. C. On the other hand, the submission of the learned A. G. A. is that omission and defect in framing charge under Section 302 I. P. C. did not prejudice the accused appellant at all, But keeping in view the Supreme Courts decision in sohan Lals case (supra), we are of the view that the argument of the learned A. G. A. cannot be accepted.

( 6 ) THE accused could not be convicted under Section 302 I. P. C. without there being a charge framed under the said section. It has to be kept in mind that parameters of burden of proof are different in a case of dowry death under Section 304b I. P. C. and one under Section 302 I. P. C. Under these circumstances, the accused appellant (who was on bail during the trial also) should be released on bail.

( 7 ) AT the same time, we are of the clear view that the appeal should not be kept pending. Instead, the case should be remanded for retrial of the accused for the offences he was charged with (viz. under Sections 498-A, 304b, 318 and 201 I. P. C.) with app