DEEN DAYAL Vs. STATE OF U P

JUDGEMENT

(1.) This appeal under Section 379 of Code of Criminal Procedure, 1973 read with Section 2(A) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 is at the instance of three appellants. Amar Singh, appellant No. 3, is the son of Deen Dayal, appellant No. 1 and Smt. Sukhrani, appellant No. 2. They were tried for killing Asha Devi, wife of appellant No. 3 for non fulfilment of their demand for dowry and were charged under sections 498-A and 304-B, alternatively section 302 of the Penal Code. At the conclusion of the trial they were acquitted of the charges by the 4th Additional Sessions Judge, vide judgment and order dated April 30, 2001 in Sessions Trial No. 740 of 1998. Against the judgment of acquittal passed by the trial court the State of U.P. preferred an appeal before the High Court that was registered as Govt. Appeal No. 2998 of 2001. A Division Bench of the High Court found and held that in the face of prosecution evidence the conclusion arrived at by the trial court was wholly untenable. Accordingly, the High Court allowed the appeal, set aside the Judgment of acquittal passed by the trial court and by judgment and order dated September 21, 2005 convicted all the three appellants under sections 498-A and 304-B of the Penal Code and sentenced them to undergo rigorous imprisonment for three years and ten years respectively for the two offences subject to the direction that the two sentences would run concurrently. The judgment and order passed by the High Court is brought under appeal to this court by the three appellants.

(2.) Dr. J.N. Dubey learned senior counsel made long and elaborate submissions in support of the appeal. Learned counsel first contended that in a criminal case the scope of an appeal against acquittal is quite different from an appeal against conviction and sentence. In the former case, if the trial court has taken one of the two possible views the judgment of acquittal would not warrant any interference in appeal. Counsel further submitted that the present case fell under that category and the High Court was in error in interfering with the judgment of the trial court and substituting its own view in place of the view taken by trial court. Next, passing over to the merits of the case, Dr. Dubey submitted that on the evidence on record several ingredients of the offence of dowry death remained unproved and since the prosecution failed to establish all the necessary conditions no presumption would arise against the appellants under Section 304-B of the Penal Code and Section 113-A of the Indian Evidence Act.

(3.) Before examining the submissions made on behalf of the appellants in any detail it would be useful and proper to state certain facts of the case that are admitted or are in any event undeniable. Asha Devi, the deceased was married with appellant No.3 in June 1997. Fifteen months later she died on September 6, 1998. At the time of her death she was living with the appellants. Her dead body was taken out of a well situate at a distance of about four hundred paces from the house of the appellants. Here it must be stated that her death was not caused by drowning. According to the prosecution, Asha Devi was killed by the appellants and her dead body was thrown into the well. The appellants, however, have a different story. Their case is that she had gone to fetch water and while pulling up the pail of water she accidently slipped and fell down into the well and died.