The main legal point established in the judgment is the importance of following proper procedures and accurately determining the appropriate section of the IPC based on the evidence and circumstances of the case.

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. Heard Sri Yogesh Kumar Srivastava, assisted by Sri Noor Mohammad, learned Advocates for the appellants and learned A.G.A. for the State.

2. Both these appeals challenge the judgment and order dated 26/27.7.2012 passed by Special Judge (D.A.A.) Etah in Sessions Trial No.311 of 2006 convicting and sentencing the appellants in both the appeals under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P. Code') for life imprisonment with fine of Rs.7,000/- and, in case of default of payment of fine, further to undergo imprisonment for six months.

3. Before we go to the facts, we with a burning heart wish to mention that the subsequent judge who convicted all the three accused by invoking Section 302 read with Section 34 of IPC and exonerating them under Sections 498A and Section 304 B can be said to have committed an irregularity as after all the witnesses had turned hostile and the statement of the accused were recorded under section 313 CrPC, the learned Judge, all of a sudden, without any application, either by State or by complainant, thought it fit that accused have committed what he considered to be murder and thereafter charged the accused under Section 302 read with Section 34 of I.P.C. and convicted the accused under the same offence.

4. Reference to a recent decision of the Apex Court in R. Rachaiah Vs. Home Secretary, (2016) 0 Supreme (SC) 383 can be made. The learned judge ought to have followed Section 216 and 217 of Criminal Procedure Code 1973 which has not been done. The Apex Court in R. Rachaiah (supra) has considered that the trial to vitiate and has held that conviction under Section 302 I.P.C., would be illegal.

5. In our case, appellants were originally charged with Sections 498A, and 304 B and from 2006 to 2012, they were tried and they were made to understand that they are being tried for commission of offence under Sections 498A, and 304 B of I.P.C. Can change of Judge change the course of punishment? That has exactly what has happened and that has been submitted by the counsel for the appellant.

6. Accused are in jail for more than 14 years. The state of affairs in the state of UP is also alarming. The case was not so grave that the state could not have considered this case for remission under section 433 and 434 of Cr.P.C. after a period of incarceration of 14 years.

7. With this prelude and anguish, we start to threadbare discuss the matter.

8. At the outset, the learned counsel for the appellant conveyed to us that he does not wish to now go to the technicalities in the prosecution as his clients have undergone the agony of incarceration for more than 15 years. The incident occurred on 27.11.2005 and the accused are in jail since 19.12.2005.

9. If we look at any other angle, no case for Section 302, IPC is made out in view of the several authoritative pronouncements which go to show that death of deceased due to septicemia will not take us beyond Section 304 II.

10. Brief facts as culled out from the record are that the deceased was beaten and set ablaze by the appellants on 27.11.2005 at her matrimonial home and she died in the hospital on 3.12.2005 during treatment. A complaint to that effect was lodged which was registered as Case Crime No.0135 of 2005 against the accused-appellants. Dying Declaration of the deceased was recorded in the hospital on the very same day.

11. Investigation was moved into motion and after recording statements of various persons, the Investigating Officer submitted the charge-sheet against Gajendra Singh, Bhujveer Singh, Rajanshree, Bablu, Neeta, Ved Prakash and Suman to the competent court. Ved Prakash and Suman were juvenile hence they were committed to the Juvenile Justice Board.

12. The accused were facing charges which were exclusively triable by the Court of Sessions, hence, the case was committed