The main legal point established in the judgment is that suspicion, however strong, cannot take the place of proof, and the burden of proof to establish guilt beyond reasonable doubt lies with the prosecution.

JUDGMENT :

1. Heard Mrs. Swati Agrawal Srivastava, learned counsel for the appellant, Sri Nagendra Kumar Srivastava and Sri Rupak Chaubey, learned A.G.As for the State.

2. The present appeal challenges the judgment and order dated 6.9.2011 passed by Additional Sessions Judge/Special Judge (E.C. Act), Gorakhpur in Sessions Trial No.68 of 2010 convicting and sentencing the appellant alone under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') for life imprisonment with fine of Rs.2,000/- and, in case of default of payment of fine, further to undergo imprisonment for one month.

3. Factual data as culled out from the record is that a First Information Report being Case Crime No.664/2009 was lodged on 18.4.2009 at Police Station Khorawar, Gorakhpur on the complaint made by one Jitendra Kumar Sahani s/o Dheesh Rawat, resident of Domar Ghat, Police Station Khajni, Gorakhpur who stated that his sister was married to Santosh s/o Bhagwan Kewat, Village Dumri Tola Bakhariya, P.S. Khorawar, Gorakhpur three years ago and in the F.I.R. it was mentioned that the in-laws of the deceased were demanding sum of Rs.50,000/- time and again and when their demands were not fulfilled, his sister was being harassed and on the intervening night of 17/18.2.2009 at about 2.00 a.m. the accused-appellant along with Jhinak, Bhagwan, Rajmati and Tetari did the death of her sister by strangulating her with saree and thereafter hanged her.

4. On the aforesaid F.I.R., the investigation was moved into motion. The red saree which was mentioned in the F.I.R. was recovered. The dead body was sent for postmortem and wherein it was opined that the cause of death was asphyxia due to strangulation. The Investigation Officer recorded the statements of several witnesses under Section 161 of Cr.P.C. and submitted the charge-sheet against the accused-appellant as also against Bhagwan and Rajmati under Sections 498A, 304 B of I.P.C. 3/4 of Dowry Prohibition Act.

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

5. On being summoned, all the three accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined about 13 witnesses who are as follows:

In support of ocular version following documents were filed:

6. A very strange fact requires to be mentioned here that the accused were originally charged with commission of offences under Section 498A, 304B of IPC and Section 3/4 of D.P.Act. The charge was framed on 30.4.2010 and witnesses number 1 to 12 were examined on oath. P.W.11 was examined on 22.3.2011. The learned Judge who had framed the charge on 30.4.2010 was Mr. K.K. Pandey. Unfortunately, for the appellant who had settled the dispute with the other side met with Sri Lukmanul Haq, learned Additional Sessions Judge who without any application, of his own decided to have charge substituted/altered after oral testimony of maximum witnesses was recorded and charged all the three accused