Court No. - 43

Case :- GOVERNMENT APPEAL No. - 451 of 2021

Appellant :- State of U.P.

Respondent :- Raju Madhyesiya And 2 Others

Counsel for Appellant :- G.A.

Counsel for Respondent :- G.A.

Hon'ble Vivek Kumar Birla,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Ratan Singh, learned AGA for the appellant on the

application under Section 378(3) Cr.P.C. seeking leave to file

appeal against the judgment and order dated 17.03.2021 passed

by the learned Sessions Judge, Gorakhpur in Session Trial No.

598 of 2017 (State vs. Raju Madhyesiya and others) arising out

of Case Crime No.332 of 2017 under Sections 498-A, 304-B,

323, 302 IPC and 3/4 Dowry Prohibition Act, P.S. Chauri

Chaura, District Gorakhpur.

2. The prosecution case is that the deceased - Suman

Madhyesiya sister of the informant Dinesh Kumar Madhyesiya

was married to Raju Madhyesiya (accused respondent no.1)

about two years ago. After her marriage, her Jethani, the family

members of her husband used to harass Suman Madhyesiya for

demanding dowry. They had threatened that unless their

demand of dowry is fulfilled, very bad consequences will

follow. The mobile of the informant's sister was switched off

since a day earlier and therefore, on 18.07.2017, they went to

her house and thereupon they came to know that the family

members of her husband's sister had set her ablaze and has

taken her to medical college for her treatment in serious

condition. Upon reaching the medical college they fond that the

informant's sister Suman Madhyesiya had died.

3. The prosecution examined P.W. 1 - the informant Dinesh

Kumar Madhyesiya; P.W. 2 - Durgesh Kumar, who is the

borther-in-law of the deceased; P.W. 3 - Rakesh Madhyesiya,

the elder brother of the deceased; P.W. 4 - Prabhawati Devi,

mother of the decease; P.W. 5 - Head Constable Raj Kumar

Mishra, who had registered the FIR upon the report given by

P.W.1; P.W.6 - Tapan Kumar Mishra who was posted at Tehsil

Sadar on the date of incident and who had prepared the inquest

report of the dead body of the deceased; P.W.7 - Dr.

Chandramani who had conducted the postmortem examination

of the dead body of the deceased; P.W.8 - Smt. Rachna Mishra

who was posted as the Circle Officer on the date of incident;

P.W. 9 - Praveen Kumar Singh who was posted as Circle Offier,

Chauri Chaura, District Gorakhpur on 20.07.2018 and took over

investigation of the case.

4. The learned Trial Court has passed the judgment of acquittal

on the ground that there is no cogent evidence on record to

indicate who informed P.W. 1 and P.W. 4 that the deceased -

Suman Madhyesiya has been killed by burning. While rejecting

the prosecution version regarding the offence having been

committed under Sections 498-A, 304-B, 323, 302 IPC and 3/4

Dowry Prohibition Act, it was held that there was no proof of

any demand of dowry and, therefore, it was not a case of any

cruelty having been committed before her death for extracting

dowry, as such it was found that the case under Section 498-A

IPC is not made out. Consequently, it was also found that the

case under Section 304-B, 323 IPC and 3/4 Dowry Prohibition

Act, is also not made out even if the death was caused within

three years of marriage.

5. No doubt that the unnatural death has taken place in the

present case due to burning. However, while considering the

alternative case under Section 302 IPC, it was found that there

is nothing on record to indicate as to who has informed P.W. 1 -

Dinesh Kumar Madhyesiya and P.W. 4-Prabhawati Devi about

the allegation that the deceased - Suman Madhyesiya was killed

by burning. P.W. 8 - Investigating Officer Ms. Rachna Mishra in

her cross-examination had categorically stated that she found

the evidence to the effect that at the time when the deceased

received burn injuries in the kitchen while using stove, her

husband-Raju Madhyesiya was present in his shop on the

ground floor, who came to spot after hearing the c