Point of Law: witnesses of both the sides (prosecution and the defence) sail on the same boat both have to be given same treatment at par to appraise on the touchstone of credibility and truthfulness which has not been made in the present case. If the testimony of the defence witnesses have not been disputed meaning hereby the case of the defence is accepted and the prosecution has failed to prove its case beyond reasonable doubt as no one has seen the incident or there is no eye witness of the incident.

JUDGMENT :

Manish Kumar, J.

1. This Criminal appeal has been filed by the appellants against the judgment and order dated 27.11.2009 passed by Additional Sessions Judge, FTC-Vth, court no. 14, Sultanpur in S.T. No. 332 of 2007 arising out of Crime No. 372 of 2007 under Sections 302/34, 498 A IPC and 3/4 of the Dowry Prohibition Act, 1961 registered at Police Station-Musafirkhana, District-Sultanpur convicting the appellant Brijesh Kaushal and Smt. Nirmala and sentencing them for life imprisonment along with fine of Rs. 5000/ each, in default thereof to undergo simple imprisonment for a period of three months.

2. Heard Shri Maneesh Kumar Singh, learned counsel for the appellants and Shri Umesh Verma, learned Additional Government Advocate for the State and perused the judgment and order passed by learned trial court as also the lower court record.

3. As per the prosecution case, on 22.05.2007, a First Information Report was lodged at 9.30 A.M. against four persons namely, Brijesh Kaushal (husband of the deceased), Smt. Nirmala (mother in law of the deceased), Ghanshayam Kaushal (father-in-law of the deceased) and Rajesh Kaushal (devar/brother-in-law of the deceased) under Sections 302/34, 498 A IPC and 3/4 of the Dowry Prohibition Act, 1961 stating therein that the marriage of the daughter of the complainant namely Manju (hereinafter referred to as 'the deceased') was solemnized with Hindu customs and rituals five years ago with Brjesh Kaushal (appellant no. 1). At the time of marriage, as per the capacity, the dowry was given. After the marriage, the husband and in-laws of the deceased used to harass mentally and physically both for dowry demand, and the same was told by the deceased repeatedly. On the fateful day i.e. 22.05.2007 at 08.00 A.M. some unknown persons called the complainant and informed him that his daughter was set ablaze by pouring kerosene oil and when he reached the Community Health Centre, Musafirkhana, District Sultanpur, he saw his daughter lying on the bed in the emergency ward and on asking, she told that today morning at 8.00 A.M. she was set to fire by her husband and mother in law by pouring kerosene oil for dowry demand of Rs. 20,000/-. The daughter has been referred to Medical College at Lucknow. It has also been disclosed that earlier also, case for dowry demand was filed which was subsequently compromised and his daughter returned to her matrimonial house.

4. After investigation, charge-sheet was filed against all four accused persons under Sections 302/34, 498-A IPC and under Section 3/4 of the Dowry Prohibition Act, 1961.

5. The trial Court framed the charges against the accused appellants under Sections 302/34, 498-A IPC and 3/4 of Dowry Prohibition Act, 1961 and the same was denied by the accused persons and asked for trial.

6. The prosecution, in order to bring home the accusation against the appellants has produced two witnesses of fact, namely Ram Chandar (the complainant)/father of the deceased as PW-1, Kumari Sanju Kaushal (younger sister of the deceased) as PW-2. The prosecution has further produced as many as six formal witnesses viz Suresh Kumar Dubey as PW3, Dr. Rajendra Prasad as PW-4, Nagendra Singh, the Sub-Inspector as PW-5, Sheetla Prasad Pandey as PW-6, Rajeev Kumar Shukla as PW-7 and Dr. Suresh Chandra as PW-8 and Shri Madan Mohan Verma has also produced as CW-1.

7. As documentary evidence, the prosecution has proved the Nakal Tehrir as Ext. ka-1, Chik FIR as Ext. ka 2, Kayami G.D. as Ext. ka-3, Dying Declaration as Ext. ka-4, Chargesheet as Ext. ka-5, Site plan as Ext. ka-6, Fard as Ext. ka-7, Panchanama as Ext. ka-8, C.M.O Report as Ext. ka-9, Photonash as Ext. ka-10, Form-13 as Ext. ka-11, Dead Memo as Ext. ka-12, Photo G.D. as Ext. ka-13, Post Mortem Report as Ext. ka-14.

8. On the other hand, the appellants in their defence examined Shiv Shankar Agrahari as DW-1, Ram Nath alias Natthu as DW-2, Surendra Pratap Tripathi as DW-3.

9. The statement of the accused persons were recorded und