The judgment established the importance of re-evaluating evidence and distinguishing between different sections of IPC to determine the appropriate conviction.

JUDGMENT :

1. Heard Sri S.D. Singh Jadaun for the sole appellant and learned A.G.A. for the respondent.

2. This appeal challenges the judgment dated 3.8.2013 passed by Shri Krishan Pratap Singh, Additional Session Judge, Court No.1, Varanasi, in Sessions Trial No.717 of 2010, under Sections 498A/302/304B of IPC and 3/4 D.P. Act, Police Station – Shivpur, District – Varanasi, convicting and sentencing the appellant under Section 302 IPC for life imprisonment and fine of Rs.25,000/- failing in payment of fine two years additional rigorous imprisonment.

3. Before we begin to pen down the reasons, we are shocked that the charge was framed on 12.1.2011 which was for commission of offence under Section 304B/498A and also under Section 3/4 of D.P. Act. This charge came to be framed against the accused on 12.1.2011. The charge was framed by one Sri D.K. Srivastava, learned Addl. District & Sessions Judge, Varanasi.

4. After his transfer, very strangely the new incumbent Sri Krishna Pratap Singh altered the charge and charged the accused for commission of offence under Section 302 I.P.C. Unfortunately, the wordings of the charge were the same. We would not have discussed this but the learned Judge reframed the charge after about evidence of 11 witnesses were recorded and evidence of Umesh Narain Pandey and Dr. Jayesh Mishra were to be recorded. The accused was also partly examined under Section 313 on 19.2.2013 but very strangely the learned Judge again examined him on 4.4.2013 and went on to examine 2 witnesses namely PW-13 and PW-14 and again put him to further statement under Section 313 Cr.P.C. and convicted the accused for 302 IPC acquitting him under other charges and imposed Rs. 25,000/-as a fine. The judgment, as such, will lost sanctity but as the accused is in Jail since long, we are constraint to pen down our judgment as the learned Counsel for the appellant has though made his submissions but has contended that 302 is not made out and looking to the period of incarceration does not call for full hearing of the matter.

5. Learned Counsel for the appellant has made three fold submissions; that perversity has crept in after the learned new Additional Sessions Judge was allotted the matter and after the learned Judge realised that the charge which was framed,no case was made out even from the dying declaration. He unilaterally without following the contours for alteration of charge framed the charge under Section 302 I.P.C. which has vitiated the entire proceedings and has heavily relied on the case of R. Rachaiah Vs. Home Secretary, Bangalore, (2016) 0 Supreme (SC) 383. He has taken us through the judgment of this High Court in the case of Surendra Singh Vs. State of UP, (2018) 0 Supreme (All) 2467, so as to contend that the allegations made are not proved and the dying declaration, as such, was not supported by any other independent witness and has contended that the judgments on which reliance is placed by the learned Judge to hold that the dying declaration is acceptable would not apply in the facts of this case.

6. The learned Advocate further has submitted that if this Court is satisfied that the trial is not vitiated and that the dying declaration is believable, the deceased did not die on the same day. The evidence on the record goes to show that it was the husband, who out of sheer anger, had done the act and it was he, who had taken his wife to the hospital. These circumstances have been totally ignored by the learned Judge in his overzeal to convict the accused. It is submitted by the Counsel that in this case the learned Judge has given a decision but has failed to do justice and has contended that life sentence was not necessary or what was the punishment awardable. It is submitted that the learned Judge has only with an overseal to punish the accused altered the charge as from the evidence even on the dying declarat