Advocates appeared :
For the Appellant : Vivek Singh
For the Respondent : Kamal Kumar Tiwari

JUDGMENT VIVEK RUSIA, J. : – Shri Vivek Singh, learned counsel for the appellants.

Shri Kamal Kumar Tiwari, learned Government Advocate for the respondent / State.

With the consent of the parties, this criminal appeal is heard finally instead of hearing the application on suspension.

The present Criminal Appeal has been filed under section 374 of the Code of Criminal Procedure, 1973 against the judgment of conviction and sentence dated 15-2-2014 passed by the XV Additional Sessions Judge, Indore in Sessions Trial No. 796/2013, whereby the appellants have been convicted for the offences punishable under section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs. 10,000/-. With default clause to further undergo three months’ additional rigorous imprisonment.

2. As per the prosecution story, appellant No. 1 is the son of appellants No. 2 and 3, who was married to Mona @ Monika (the deceased) on 21-1-2013 under Hindu customs and rituals. After marriage, she was living with appellants, but she was subjected to cruelty for not fulfilling the demand of a gas burner and a cash amount of Rs. 10,000/-. The mother of the deceased sent Rs. 10,000/- to appellant No. 3 despite that cruelty continued with her. On the date of the incident, Kamal elder brother of the appellant No. 1 along with one other took the deceased to the hospital where she was reported to be died by consuming a poisonous substance but later on it was revealed that she died due to strangulation. On arriving at the local hospital in serious condition, Merg No. 38/13 (Ex-P/12) was registered and after her death, F.I.R. (Ex-P19) was registered at Crime No. 311/2013 under sections 304-B, 498-A/34 of the Indian Penal Code against all appellants. Spot map (Ex-P/11) and Naksha Panchayatnama (Ex-P/2). Vide Ex-P/15, P/16 and P/17, the appellants were arrested. The dead body was sent for autopsy which was conducted by Dr. Bharat Bajpai who opined that the death was due to asphyxia resulted in throttling and a report vide Ex-P/27 was submitted. Seized articles were sent to the Forensic Science Laboratory and reports were received vide Ex-P/24 and P/25. Statements of witnesses were recorded under section 161 of the Criminal Procedure Code, thereafter, the charge-sheet was filed under section 304-B, 498-A/34 of the Indian Penal Code against appellants before the JMFC from where the trial was committed to Sessions Court. Appellants denied the charges and pleaded for trial. The prosecution has examined nine witnesses and marked 28 documents in support of the charges. The appellants did not examine any witnesses and pleaded their false implications.

3. After evaluating the evidence came on record, the appellants were convicted vide judgment dated 15-2-2014. The learned Additional Sessions Judge has acquitted the appellants from the offences punishable under section 304-B, 498-A of the Indian Penal Code and section 4 of Dowry Prohibition Act but convicted under section 302 of the Indian Penal Code. Hence, the present criminal appeal is before this Court.

4. Shri Vivek Singh, learned counsel for the appellants has argued that initially the F.I.R. was registered against the appellants alleging that the deceased was subjected to cruelty for demand of dowry, thereafter, they were trialed for the offences punishable under sections 304-B and 498-A/34 of the Indian Penal Code but all the witnesses like mother, father and brother of the deceased have categorically denied any demand of dowry by the appellants, hence, these appellants ought to have been acquitted from all charges. The prosecution has not established the charge under section 302 of the Indian Penal Code against the appellants but they have been convicted only by relying on section 106 of the Indian Evidence Act as they have failed to explain under what circumstance, Mona @ Monika died. The said conviction based on section 106 of the Indian Evidence Act only, is bad in law and contrary to t