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2016 DIGILAW 3593 (ALL)

VINOD PATEL v. STATE OF U. P.

2016-10-27

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2016
JUDGMENT : (Judgment Delivered by Hon'ble B.K.Narayana, J.) 1. Heard Sri Sudist, learned counsel for the appellant, Sri Brij Raj, learned counsel appearing on behalf of the father of the victim and Sri A.N.Mulla, Sri Saghir Ahmad, Sri J.K.Upadhyay, learned AGAs and Mrs. Manju Thakur, brief holder for the State. 2. This criminal appeal is directed against the judgment and order dated 30.01.2004 passed by Additional Sessions Judge, Court No.7, Varanasi in S.T. No. 581 of 2000 convicting the appellant and sentencing him to imprisonment for life and a fine of Rs. 5,000/- and in default of payment of fine, six months additional rigorous imprisonment under Section 302 IPC and Section 304B IPC, two years rigorous imprisonment and fine of Rs. 2000/- and in default of payment of fine three months additional rigorous imprisonment, under Section 498A IPC and four months rigorous imprisonment and a fine of Rs. 5000/- and in default of payment of fine one month's additional rigorous imprisonment under Section 4 of the D.P.Act. 3. The facts and circumstances giving rise to this appeal are as hereunder :- (a) On 10.05.1998 Vinod Patel son of Lalloo Ram Patel, resident of S2/534, Sikrauli, P.S. Cantt, District Varanasi appellant-accused was married to one Gitanjali, daughter of Ramrup Patel, resident of Village Suddipur, P.S. Shivpur, District Varanasi. After marriage Gitanjali had stayed in her matrimonial home intermittently for few days on four occasions and when she had returned from her parental home on 15.06.2000 after staying there since 21.05.2000, Vinod Patel on noticing her suspected that she was pregnant and when he inquired from his wife about the name of father of the child she gave an evasive reply and since Vinod Patel on account of his suffering from a peculiar disease for which he was being treated was not in a position to procreate, he suspected that his wife was carrying the child of some other person and hence left with no other option he picked up his counrymade pistol of 12 bore which he used to keep in his house and shot his wife at about 2.15 a.m., while she was sleeping on a cot, as a result of which she died instantaneously. After the death of his wife, Vinod Patel realised that there was no point in absconding and as such he went to the police station and lodged the written report of the incident at P.S. Cantt., Varanasi on 16.06.2000, Ex. Ka-8 stating therein the aforesaid facts. (b) On the basis of the written report Ex. Ka-8, Check FIR Ex. Ka-9 was prepared by Constable Mohrrir 1697 Ram Nath Chaubey, PW-7 on 6.6.2000 and necessary G.D. entry was made by him vide rapat no. 7 on 16.06.2000 at 5.00 a.m. and case crime no. 267 of 2000 was registered against the appellant. (c) After the registration of the case officer-in-charge of P.S. Cantt, Varanasi, Mahavir Singh Chaudhary, P.W.-8 took over it's investigation and after copying the contents of the check FIR and the G.D. entry in the case diary, recorded the statement of appellant accused Vinod Patel in the C.D. and left for the place of the incident along with the other members of the police force. On reaching the place of occurrence, he collected plain and blood stained soil and a vanity bag from the place of the incident and prepared recovery memo Ex. Ka-4. Thereafter he took possession of the dead body of the deceased Gitanjali which was lying on a cot in her bedroom and prepared its recovery memo. He also inspected the place of occurrence at the instance of appellant Vinod Patel and prepared it's site plan Ex.Ka-11 and then proceeded to record the statements of witnesses Prem Lal, Pappu ad Dayashankar. After completing the inquest of the dead body of the deceased Gitanjali, he prepared the inquest report, challan lash, photo lash, police forms and letter addressed to the CMO for conducting the post mortem and after sealing the cadaver of the deceased, he handed it over to Constable Radheyshyam and Constable Rajbali for transporting it to the district hospital for conducting the post mortem. He also noted the factum of recovery of two cartridges from the place of incident in the inquest report. (d) The post mortem of the dead body of the deceased was conducted by PW-6, Dr. S.B.Singh, Medical Officer, Varanasi on 16.06.2000 at about 4.00 p.m. who also prepared her post mortem report Ex. Ka-7. He also noted the factum of recovery of two cartridges from the place of incident in the inquest report. (d) The post mortem of the dead body of the deceased was conducted by PW-6, Dr. S.B.Singh, Medical Officer, Varanasi on 16.06.2000 at about 4.00 p.m. who also prepared her post mortem report Ex. Ka-7. According to the post mortem report of the deceased following ante mortem injury was found on the deceased's dead body:- "one firearm wound of entry size 2 c.m. X 2 c.m. brain deep on left side of head 3-1/2 c.m. above left ear and 8 c.m. above left eyebrow and 4 c.m. Outer to midline with blast effect in an area of 22 c.m. X 14 c.m. on left and front of head. All the skull bones (frontal both parietal, Both temporal and occpital bone) found fractured, left side of frontal part of left parietal and part of left temporal bone missing. Brain matter is coming out and partly missing". (e) The post mortem report further recorded recovery of seven metalic pallets and a plastic wad from the brain and cranium. According to PW-8 who had conducted the post mortem, the deceased had died instantaneously as a result of firearm injury found on her head and brain. (f) The investigating officer of the case after completing the investigation submitted charge sheet against the accused appellant under Section 302 IPC before the C.J.M., Varanasi. Since the offence mentioned in the charge sheet was triable exclusively by the court of Session, C.J.M., Varanasi committed the case for trial of the accused appellant Vinod Patel to the court of Session Judge, Varanasi, on which, it was numbered as S.T. No. 581 of 2000 and made over for trial to the court of Additional Session Judge, Court No.7, Varanasi. (g) On the basis of the material on record charge was framed against the appellant Vinod Patel under Section 302 IPC on 21.05.2001. The accused appellant pleaded not guilty and claimed trial. (h) The prosecution in order to prove its case examined PW-1 Ramroop, PW-2 Santosh, PW-3 Tej Bahadur and PW-4 Virjoo Singh as witnesses of fact, who gave evidence of demand of Rs. The accused appellant pleaded not guilty and claimed trial. (h) The prosecution in order to prove its case examined PW-1 Ramroop, PW-2 Santosh, PW-3 Tej Bahadur and PW-4 Virjoo Singh as witnesses of fact, who gave evidence of demand of Rs. 50,000/- and land by the accused appellant and his family members as dowry from the deceased and her parents after the marriage of deceased Gitanjali with accused appellant Vinod Patel and her being treated with cruelty and tortured by accused appellant and his family members in her matrimonial home for non-fulfillment of the demands of dowry, payment of Rs. 50,000/- to the appellant and his family members in three installments pursuant to the decision of panchayat to which the dowry dispute between the families of the deceased and the appellant was referred and her being murdered by the accused appellant and his other relatives for non-fulfillment of their demands of dowry. (i) After recording the statements of PW-1 to PW-4, an application was moved by the prosecution before the trial judge under Section 319 Cr.P.C. with a prayer to summon Lalloo Ram Patel father of the accused appellant, Ram Ugra @ Ram Agya, uncle of the appellant, Manoj Kumar, cousin brother of the appellant, Kalawati, mother of the appellant, Leelawati, sister of the appellant and Sheelawati, wife of Manoj Kumar (sister-in-law of the appellant), as additional accused for being tried along with the accused appellant Vinod Patel for the murder of deceased Gitanjali. The aforesaid application was allowed by the trial judge and Ram Ugra @ Ram Agya, Manoj Kumar, Kalawati, Leelawati, and Sheelawati were summoned as additional accused to be tried for the murder of deceased Gitanjali along with co-accused Vinod Patel. On 16.07.2002, additional charge under Section 498A, 304B IPC and Section 3/4 D.P.Act was framed against Vinod Patel-accused appellant and other co-accused. (j) Thereafter the trial commenced de-novo against the accused appellant and the prosecution, in order to prove the charges framed against them again examined PW-1, Ramroop, father of the deceased, PW-2 Santosh, PW-3 Tej Bahadur, PW-4 Virjoo Singh and PW-5 Gopal as witnesses of fact and PW-6 Dr. (j) Thereafter the trial commenced de-novo against the accused appellant and the prosecution, in order to prove the charges framed against them again examined PW-1, Ramroop, father of the deceased, PW-2 Santosh, PW-3 Tej Bahadur, PW-4 Virjoo Singh and PW-5 Gopal as witnesses of fact and PW-6 Dr. Dhirendra Bahadur Singh, who proved the post mortem report of the deceased Ex.Ka-7, PW-7 Constable 1697 Ram Nath Chaubey, who proved the Check FIR Ex.Ka-9 and the G.D.entry Ex.Ka- 10, PW-8 Mahavir Singh Chaudhary, Investigating Officer of the case, who disclosed the various steps taken by him during the investigation of the case and proved the charge sheet Ex. Ka- 17 and PW-9 Satish Kumar Srivastava, Record Keeper in police office as formal witnesses. (k) The prosecution also adduced documentary evidence comprising of the application under Section 156(3) Cr.P.C. Ex.ka-1 moved by Ram Roop father of the deceased carbon copy of the application sent to the S.S.P., Varanasi by Roop Ram, Ex. Ka-2, recovery memo of plain and blood stained soil Ex.ka-6, application moved by Roop Ram before the C.J.M., Varanasi on 23.06.2000, Ex.ka-3, recovery memo of vanity bag Ex.ka-4, recovery memo of the clothes found lying on the cot on which the deceased was shot dead while sleeping Ex. Ka-5, post mortem report of the deceased Ex.ka-6, written report given by accused appellant Vinod Patel Ex.ka-8, Check FIR Ex. ka-9, carbon copy of the G.D. Entry Ex. Ka-10, site plan of the place of incident Ex. Ka-11, inquest report Ex. Ka-12 police form no. 13, Ex.Ka-13, photo lash, Ex.Ka-14, letter addressed to R.I., Ex.Ka-15, letter written by Investigating Officer to S.O., Lanka, Varanasi, Ex.Ka-16, charge sheet, Ex.ka-17, application for sending the material exhibit for chemical examination to the Forensic Lab, Lucknow Ex.ka-8, reports of the forensic lab Ex.ka-19 and Ex.Ka-20. (l) The accused appellant Vinod Patel and the other co-accused in their examination under Section 313 Cr.P.C. admitted that accused appellant Vinod Patel was married to Gitanjali on 10.05.1998 but denied the rest of the prosecution case including the allegations regarding demand of Rs. 50,000/- and land by them from the deceased and her parents as dowry after the marriage. They further stated that the accused appellant was beaten up by the police personnel and forced to scribe the inculpatory written report of the incident Ex.ka-8 at the police station. 50,000/- and land by them from the deceased and her parents as dowry after the marriage. They further stated that the accused appellant was beaten up by the police personnel and forced to scribe the inculpatory written report of the incident Ex.ka-8 at the police station. They also denied that any demand of dowry was ever made by them either from the deceased or her family members or any panchayat was ever convened to settle their dispute and in which PW-1 had agreed to pay a sum of Rs. 50,000/- to accused appellant and his other family members as dowry and had actually paid the aforesaid amount to them in three installments. Accused-appellant Vinod Patel had further pleaded that in the night of the place he was in the house of his maternal uncle Chhedilal where he had gone to participate in the birthday party of his younger brother Vinay Kumar and had stayed there through out the night. He had come to know that his wife had been murdered by someone who had forced his entry into his house from the back door while he was in the house of Chhedilal. The defense also examined Kharpattu as DW-1. (m) After considering the submissions made by the learned counsel for the parties before him and scrutinizing the evidence on record, both oral as well as documentary, learned Additioal Sessions Judge, Court No.7, Varanasi convicted the appellant and awarded aforesaid sentences to him while other co-accused Lalloo Ram Patel, Ram Ugra @ Ram Agya, Manoj Kumar, Kalawati, Leelawati and Sheelawati were acquitted of all the charges framed against them. (n) Hence this appeal. 4. Learned counsel for the appellant submitted that no credibility can be attached to the contents of the FIR in this case Ex.Ka-8 in view of the facts that the same is inculpatory scribed by him under the police force and pressure and the facts mentioned therein were scribed by him on the dictation of the police personnel. 5. 4. Learned counsel for the appellant submitted that no credibility can be attached to the contents of the FIR in this case Ex.Ka-8 in view of the facts that the same is inculpatory scribed by him under the police force and pressure and the facts mentioned therein were scribed by him on the dictation of the police personnel. 5. Advancing his submission in this regard further, learned counsel for the appellant argued that the presence of the injuries on the person of the appellant indicates that he was beaten up and tortured by the police into scribing the confessional written report of the incident whereas the correct fact is that on the night of the incident his wife Gitanjali was all alone in the house as he had gone to the house of the maternal uncle Chhedilal to attend the birthday function of his younger brother Vinay Kumar and had stayed there over night and he had received information about his wife being murdered by some one in the night who had forced his entry into his house from the back door from somebody while he was still in the house of his maternal uncle Chhedilal. 6. Learned counsel for the appellant next submitted that the conviction of the appellant on the basis of the evidence of the same witnesses which was not found reliable trustworthy, truthful and credible by the trial court for convicting co-accused Lalloo Ram Patel, Ram Ugra @ Ram Agya, Manoj Kumar, Kalawati, Leelawati and Sheelawati and who were acquitted by the trial court is wholly unjustified. He further submitted that the appellant having proved that he was not present in his house during the night of 15/16.06.2000, he could not have been convicted by the trial court by invoking Section 106 of the Evidence Act. He next submitted that the present case is one of circumstantial evidence, there being no direct evidence on record proving that the deceased Gitanjali was shot dead by the appellant and the prosecution having failed to complete the chain of circumstances pointing out to the guilt of the appellant, his conviction under Section 302 IPC cannot be sustained and is liable to be set aside. As far as his conviction under Section 304B, 498A IPC and Section 3/4 D.P.Act is concerned the same is also not warranted by any legally admissible evidence on record and hence his conviction for the aforesaid offences also cannot be maintained. Such being the state of evidence on record, the impugned judgment and order cannot be sustained and is liable to be set aside. 7. Per contra Sri Saghir Ahmad, learned AGA appearing for the State submitted that the conviction of the appellant is based upon cogent evidence and the sentence awarded to him is supported by relevant considerations. The impugned judgment does not suffer from any illegality or infirmity requiring any interference by this Court. This appeal lacks merit and is liable to be dismissed. 8. We have heard learned counsel for the parties and scanned the entire lower court record. 9. The appellant Vinod Patel was tried in this case for having committed the murder of his wife Gitanjali as well as for her dowry death. 10. The written report of the occurrence Ex. Ka-8 was lodged by the appellant himself at P.S. Cantt, Varanasi on 16.06.2000 at about 5.00 a.m.. On the basis of the aforesaid written report of the offence Ex. Ka-8, Check FIR Ex.Ka-9 was prepared by Constable Mohrrir 1697 Ram Nath Chaubey, PW-7 and relevant G.D.entry was also made by him vide Rapat no. 7 on 16.06.2000 at 5.00 p.m.. Upon the registration of the FIR, Officer-in-charge, P.S. Cantt, Varanasi, Mahavir Singh Chaudhary, PW-8 arrested the appellant and after recording his statement in the CD, left for the place of the incident alongwith the other members of the force. On reaching the place of incident, he seized plain and blood stained clothes lying on the cot on which the deceased Gitanjali's dead body was lying and her vanity bag and prepared recovery memo. After completing the inquest he prepared the inquest report and other documents and thereafter despatched the dead body of the deceased for post mortem. The medical evidence discloses single firearm wound on the dead body of the deceased brain deep on the left side of head caused by firearm. 11. There is no eye witness of the murder. The principal evidence against the appellant for convicting him under Section 302 IPC, consists of FIR Ex.Ka-8 which contains a confession of guilt by the appellant. The medical evidence discloses single firearm wound on the dead body of the deceased brain deep on the left side of head caused by firearm. 11. There is no eye witness of the murder. The principal evidence against the appellant for convicting him under Section 302 IPC, consists of FIR Ex.Ka-8 which contains a confession of guilt by the appellant. If this report is excluded, the other evidence on record is wholly insufficient to convict the appellant under Section 302 IPC. The principal question in this appeal is whether the statement or any portion made by the appellant in the FIR is admissible in evidence for the purpose of convicting him under Section 302 IPC. 12. The first information report reads as follows :- "My name is Vinod Patel, son of Lalloo Ram Patel, r/o of S2/534 Sikrauli, P.S. Cantt, Varanasi. I was married on 10.05.1998 to Smt. Gitanjali, d/o Ram Roop, r/o P.S. Shivpur, village Suddipur. After marriage my wife had stayed with me intermittently for few days on four occasions and when she had returned to my house on 15.06.2000 from her paternal home after staying there since 21.05.2000, I suspected that she was pregnant and when I inquired from my wife about the name of the person whose baby she was carrying she gave an evasive reply. Since I was suffering from a disease on account of which I was not in a position to procreate and for which I was undergoing treatment there was no question of my being the father of the child which my wife was carrying in her womb and since she was planning to give birth to a child conceived by her from a stranger, a serious quarrel took place between me and my wife and although such incidents had taken place in the past also but this time I realized that there was no other option so I picked up the countrymade pistol of 12 bore which I keep in my house and shot my wife at about 2.15 a.m. while she was sleeping on a cot by putting the pistol against her temple as a result of which she died instantaneously. After committing her murder I pondered for a while and then realised that there was no point in absconding and hence I have come to the police station for giving information." 13. After committing her murder I pondered for a while and then realised that there was no point in absconding and hence I have come to the police station for giving information." 13. On behalf of the appellant it is contended that the entire statement made in the FIR is a confession made to a police officer and is not admissible in evidence against him in view of the Section 25 of the Indian Evidence Act, 1872. On behalf of the State, it is contended that Section 25 protects only those portions of the statement which discloses the killing by the appellant, rest of the statement is not protected by Section 25 of the Act. 14. While dealing with the law relating to the confessions found generally in Section 24 to Section 30 of the Evidence Act and Section 162 and 164 of the Code of Criminal Procedure, 1898. Section 17 to Section 31 of the Evidence Act, the Apex Court in para 9 of its judgment rendered in the case of Aghnoo Nagesia Vs. State of Bihar reported in 1965 Law Suit (SC) 143, has observed as hereunder" "Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in ss. 24 to 30 of the Evidence Act and ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to he found under the heading "Admissions". Confession is a species of admission, and is dealt with in ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence Order investigation, save as mentioned in the proviso and in cases falling under sub-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police office-is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them." 15. The Apex Court in paragraph 10 of the same judgment has observed that Section 154 of the Code of Criminal Procedure provides for the recording of the first information report. The first information report as such is not substantive evidence which may be used to corroborate the informant under Section 157 of the Evidence Act or to corroborate him under Section 145 of the Act, if the informant is called as a witness. If the information is given by the accused himself, the fact of his giving the information is admissible against him as evidence under Section 8 of the Evidence Act. If the information is non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant but a confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act. 16. The question which next arises for our consideration in view of the aforesaid observation made by the Apex Court is whether the first information report in this case is a non confessional statement or a confessional first information report. 16. The question which next arises for our consideration in view of the aforesaid observation made by the Apex Court is whether the first information report in this case is a non confessional statement or a confessional first information report. While examining the meaning and the import of the term of confession, the Judicial Committee in Pakala Narayanswami Vs. Emperor, 66 Ind App 66 at p.81 ( AIR 1939 PC 47 at p.52). Lord Atkin observed : "....no statement that contains self- exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession." These observations received the approval of this Court in Palvin. der Kaur v. The State of Punjab (5). In State of U.P. v. Deoman Upadhyaya(6), Shah, J. referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant v. State of U.P. (1) and Palvinder Kaur v. The State of Punjab(1). The accused is entitled to insist that the entire, admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused. 17. The accused is entitled to insist that the entire, admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused. 17. After going through the recitals contained in the FIR, we find that the FIR in this case is a confessional first information report to a police officer which cannot be used againt him in view of the Section 25 of the Evidence Act. 18. The question which arises for our consideration in this appeal is that whether in view of the admitted factual position that the deceased Gitanjali the wife of the accused appellant Vinod Patel and both of them were living in their house situate in S-2/534, Sikrauli, P.S. Cantt, District Varanasi at the time of the incident and the deceased having been murdered in her husband's house the accused appellant's conviction under Section 302 IPC can be maintained by invoking Section 106 of the Indian Evidence Act or not. 19. Before examining the aforesaid issue it will be useful to examine the law on the aforesaid issue. In Woolmington Versus Director of Public Prosecution: 1935 AC 462, it has been held :- "Just as there is evidence on behalf the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence. . . Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have 26 already said as to the defence of insanity and Subject also to any stationary exception. . . Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have 26 already said as to the defence of insanity and Subject also to any stationary exception. If, at the end of and on the whole of the case, there reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." (emphasis ours) Above view has been approved by the apex court in a catena of it's decisions. In Vijayee Singh versus State of U.P.: 1990 Cr.L.J. (SC) 1510, apex court has observed thus:- "15. The phrase "burden of proof" is not defined in the Act. In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt". In K.M. Nanavati v. State of Maharashtra: AIR 1962 SC 605 apex court has observed as follows:- "In India, as it is in England, there is a presumption of innocence in 27 favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused." In Gurchran Singh versus State of Punjab: AIR 1956 SC 460 apex court has laid down that :- "6.But even so, the burden of proving the case against the appellants was on the prosecution irrespective of whether or not the accused have made out a plausible defence." Some of the other decisions on this point are Sawal Das versus State of Bihar: AIR 1974 SC 778 ; BaidyaNath Prasad Srivastava versus State of Bihar: AIR 1968 SC 1393 ; R venkatkrishnana versus CBI: (2009) 11 SCC 737 ; Subramaniam versus State of T.N.: (2009)14 SCC415 and many more. The residue of the above decisions are that prosecution has to establish guilt of the accused filtered of all reasonable prognosis favourable to the accused to secure conviction and it is never relieved of this initial duty. It is only when it has discharged it's initial burden of proof that the defence of the accused has to be looked into. At this juncture we advert to the most contentious contention mooted before us that section 106 Evidence Act can be applied to fasten guilt of the appellant even if prosecution has failed in it's initial burden. In this respect it is to be noted that in the present case 28 prosecution has heavily relied upon the testimony of P.W.4 Vishambhar as an eye witness to the murder to establish guilt of the appellant. Failing in that feat that now it desires to take a 'U' turn by shifting the burden of proof on the shoulders of the accused with the aid of section 106 Evidence Act. From what we have noted above it is sufficiently born out that even in cases which are covered under section 106 of Evidence Act the same principle applies which applies in cases of eye witness account for establishing guilt of the accused. Section 106 has to be read in conjunction with and not in derogation of section 101 Evidence Act. section 106 does not relieve prosecution of it's primary and foremost duty to establish accused guilt beyond all reasonable doubt independent of weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond it's control including the reason that the fact required to be proved was "within the special knowledge of the accused alone" and prosecution could not have known it by due care and diligence, that section 106 can be resorted to by shifting burden on the accused to divulge that fact which is "in his special knowledge" and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny he is liable to be punished. But even in such a situation prosecution has firstly to 29 establish entire chain of circumstances woven together in a conglomerated whole unerringly indicating that it was accused alone who is the perpetrator of the crime and the manner of happening of the incident is known to him alone and is within his special knowledge. It is then that the burden shift from the prosecution to the accused to explain how and in what manner offence was committed. Section 106 can not be utilised to make up for the prosecution's inability to establish it's case by leading cogent and reliable evidences, especially when prosecution could have known the crime by due diligence and care. Aid of section 106 Evidence Act can be had only in cases where prosecution could not produce evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it's case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. That section lays down only this much that if a fact is in the "special knowledge of a person" and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on that person in whose special knowledge it is. Section 106 Evidence Act has no application if the fact is in the knowledge of the prosecution or it could have gained it's knowledge with due care and diligence. Here we refer some of the decisions countenancing our view. Apex court in 30 Shambhu Nath Mahra versus State of Ajmer: AIR 1956 SC 404 has held as follows:- "11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are pre- eminently or exceptionally within his knowledge. The word "especially" stresses that it means facts that are pre- eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not." It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B). .................................................................. 31 13. We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused. This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts." Another decision on this aspect is Attygalle versus The King:AIR 1936 PC169. In P. Mani versus State of Tamil Nadu: AIR 2006 SC 1319 apex court has held as under :- "10. We do not agree with the High Court. In a criminal case it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. We do not agree with the High Court. In a criminal case it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out 32 evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever." In yet another decision Murlidhar and others versus State of Rajasthan: AIR 2005 SC 2345 , it has been observed by the apex court as follows:- "22.In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are "especially within the knowledge of the accused" and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, "especially within the knowledge of the accused." In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye-witnesses to 33 the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eye-witness. Testimony of Ram Ratan (PW-7) and Isro (PW-10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused- appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal. The evidence of Govind (PW-13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW-5), Ram Ratan (PW-7), Isro (PW-10) and Govind (PW-13) are wholly unreliable as their evidence is replete with contradiction and inherent improbabilities." 23. In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the assailants was within the knowledge of witnesses, utterly failed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was 34 nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification." In Ch. Razik Ram versus Ch. J.S.Chouhan: AIR 1975 SC 667 it has been held as follows:- "116. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of proof - applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent." In State Of West Bengal versus Mir Mohammad Umar: 2000SCC(Cr) 1516 it has been held as follows:- "36. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent." In State Of West Bengal versus Mir Mohammad Umar: 2000SCC(Cr) 1516 it has been held as follows:- "36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn 35 regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference." 38. Vivian Bose, J. had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra v. The State of Ajmer, 1956 SCR 199 : ( AIR 1956 SC 404 : 1956 Cri LJ 794) the learned Judge has stated the legal principle thus (para 11 of AIR): "This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge." 20. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge." 20. Thus the legal principle which is culled out from the reading of the aforesaid authorities is that although the prosecution has to establish the charge independently standing on its leg and the defense of the accused cannot be singularly used to hold him guilty and convict him when prosecution evidence is weak, incredible, insufficient and does not inspire any confidence and Section 106 of the Evidence Act is certainly not intended to relieve the prosecution of its duty. On the contrary it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts specially within the knowledge of the accused and which he could prove without difficulty or inconvenience. 21. In the instant case, the record shows that the victim Gitanjali was shot dead in the night of 15/16.06.2000 in her husband's house situate in S-2/534, Sikrauli, P.S. Cantt, District Varanasi where she was residing with her husband Vinod Patel accused-appellant and her dead body was found lying on a cot in her bed room in the house of accused appellant with a firearm wound on the right side of her head. According to the prosecution case apart from the deceased and her husband no one else was present in the house in the night of 15/16.06.2000 and hence the facts relating to the incident shall be deemed to be within the special knowledge of the accused-appellant unless the accused-appellant is able to come up with a plausible explanation for the incident or prove his absence from the place of occurrence at the time of incident, he can be convicted for the murder of his wife by taking aid Section 106 of the Indian Evidence Act. 22. Record further shows that the accused-appellant Vinod Patel in his statement recorded under Section 313 Cr.P.C. has stated that in the night of the incident he was not present in his house and had gone to the house of his maternal uncle Chhedilal to celebrate the birthday party of Vinay Kumar, younger brother of accused appellant and he had stayed there over night. The information regarding the murder of his wife in his house was communicated to him by someone while he was still in the house of his maternal uncle. The information regarding the murder of his wife in his house was communicated to him by someone while he was still in the house of his maternal uncle. In order to establish the plea of alibi set up by the accused-appellant in defense he had examined DW-1 Kharpattu. DW-1 Kharpattu in his examination in chief on page 177 of the paper book had deposed that on the night of the incident he had gone to the house of Lalloo for participating in the birthday celebration of his younger son Vinay and accused-appellant Vinod Patel was also present there and all the guests who were invited to the birthday party had stayed in the house of Lalloo through out night and at about 5.00 a.m., SO, Cantt had come to the house of Lalloo in a Govt. Jeep with four policemen and had informed Vinod Patel that an incident had taken place in his house and he was required to lodge an FIR of the incident and thereafter they had taken him away to P.S. Cantt along with them. However on page 181 of the paper book DW-1 Kharpattu in his cross examination clearly stated that the son of Lalloo whose birthday was being celebrated on the date of incident was born in witner season. In our opinion the alibi set up by PW-1 does not stand proved from the evidence of DW-1 for the reason that there is a glaring contradiction in the statement of accused-appellant recorded under Section 313 Cr.P.C. and the evidence of DW-1 with regard to the person to whose house he had gone for celebrating the birthday and where he had stayed over night. The accused-appellant Vinod Patel in reply to the last question put to him during his examination under Section 313 Cr.P.C. has categorically stated that in the night of the incident he had gone to the house of his maternal uncle Chhedilal where birthday of his younger brother was being celebrated, whereas DW-1 Kharpattu stated that the accused-appellant had gone to the house of Lalloo for celebrating birthday of his son Vinay. He further demolished the defense plea that the date of incident was the birthday of Vinay by deposing in his cross examination that son of Lalloo whose birthday was being celebrated in the night of 15/16.06.2000 was born in winter season although the incident had taken place in the month of June. Thus we have no hesitation in holding that the accused appellant has miserably failed to prove that the he was not present in his house in the intervening night of 15/16.06.2000, when his wife was shot dead. The accused-appellant having failed to come up with any plausible explanation with regard to the incident and his plea of alibi set up by him in his defense having been found to be false and the prosecution having discharged its initial burden of proof by establishing that the deceased was shot dead in her husband's house during the intervening night of 15/16.06.2000 and her dead body was recovered from her bed room in her husband's house, we are left with no other option but to look into the defense of the accused. In the present case in our opinion the prosecution has been able to establish the entire chain of circumstances woven together in a conglomerated whole unerringly indicating that it is accused appellant alone is perpetrator of the crime and the manner of happening of the incident is known to him alone and is within his special knowledge. 23. The Apex Court in the case of Shaikh Sattar Vs. State of Maharashtra reported in 2010 (8) SCC430 has held that the burden to establish the alibi is on the accused. The proposition has been reiterated by the Apex Court in the case of Jitendra Kumar Vs. State of Haryana reported in 2012 (3) SCC (Crl.) 67.. 24. The Apex Court laid down that the plea of alibi has to be proved so as to completely exclude the possibility of presence of appellant at the place of occurrence at the relevant time. 25. We after examining the records find that this burden has not been discharged by the appellant. 26. In view of the foregoing discussion, we do not find that the trial court had committed any error or illegality in convicting the accused appellant under Section 302 IPC for having committing the murder of his wife Gitanjali in his house in the night of 15/16.06.2000. 27. 26. In view of the foregoing discussion, we do not find that the trial court had committed any error or illegality in convicting the accused appellant under Section 302 IPC for having committing the murder of his wife Gitanjali in his house in the night of 15/16.06.2000. 27. In view of the confirmation of the recorded conviction of the accused-appellant and awarded life sentence to him by the trial court, the scrutiny of grounds on which the learned counsel for the appellant has assailed the recorded conviction of the accused-appellant and sentences awarded to him under Section 304B, 498A IPC and Section 3/4 D.P.Act will merely be an academic exercise nevertheless, we proceed to examine the tenability of the recorded conviction of the accused appellant and the sentences awarded to him by the trial court under the aforesaid offences. 28. Even the most superficial reading of Section 304B IPC indicates that in order to attract the provisions of Section 304B IPC, the main ingredients of the offence which are required to be established are that the death of the woman was caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and that soon before her death she was subjected to cruelty and harassment in connection with demand of dowry. 29. The Apex Court in AIR (2003) SC 3828 has held that presumption under Section 304B IPC shall be raised only on the proof of following essentials :- "(I) The presumption shall be raised only on proof of the following essentials:- (1) The question before the court must be whether the accused has committed the dowry death of a woman. (2) The woman was subjected to cruelty or harassmentby her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with. Any demand for dowry. (4) Such cruelly or harassment was soon before her death." The import of the expression "soon before her death" used in the substantive Section 304B IPC was examined by the Hon'ble Apex Court in the case of Kaliyaperumal Vs. State of Tamil Nadu, AIR 2003 SC 3828 and the Apex Court in the aforesaid judgment has observed as hereunder:- "The expression "soon before her death" used in the substantive Section 304B IPC and section 113 of the Evidence Act is present with the idea of proximity text. State of Tamil Nadu, AIR 2003 SC 3828 and the Apex Court in the aforesaid judgment has observed as hereunder:- "The expression "soon before her death" used in the substantive Section 304B IPC and section 113 of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression "soon before her death" is not defined. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before would normally implytha the interval should not be much between the concerned cruelty or harassment and death in question. There must existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence." 30. Now if we examine the contentions raised by the learned counsel for the appellant challenging his conviction under Section 498A, 304B IPC and 3/4 D.P. Act on the touch stone of the ingredients of Section 304B IPC and the judicial pronouncements made by the Hon'ble Apex Court on the issue in the light of the evidence on record, we find that the prosecution in order to prove the charge framed against the appellant under Sections 304B IPC, 498A IPC and Section 3/4 D.P.Act had examined PW-1 Ramroop, father of the deceased, PW-2 Santosh Kumar, PW-3 Tej Bahadur, PW-4 Gopal brother of the and PW-5 Virjoo cousin brother of the father of the deceased. PW-1 to PW-5 have in their evidence recorded before the trial court deposed in unison that the marriage between accused appellant and deceased Gitanjali, daughter of Ramroop r/o of Village Sikrauli, P.S. Cantt, Varanasi was solemnized about 4-5 years before 24.07.2001 which is the date on which recording of the evidence of the prosecution witnesses in Sessions Trial No. 581 of 2000 had commenced. Thus it is proved from their evidence that the marriage between the deceased and the accused-appellant was solemnized sometimes in the year 1997 and considering the admitted fact that she was shot dead in her matrimonial home in the night of 15/16.06.2000, it is proved that the deceased Gitanjali had died within seven years of her marriage. It is further proved from the post mortem report of the deceased Ex. Ka-7 as well as the evidence of PW-6 Dr. D.B.Singh who had conducted the post mortem of the dead body of the deceased Gitanjali that she had died as a result of firearm wound and wound found on the left side of her head and brain. The time since the death of the deceased was estimated by PW-9 to be about half day which considering the time at which the post mortem was conducted comes to around 4.00 a.m. on 16.06.2000. The post mortem report of the deceased further indicates that the presence of a dead female foetus, about five months old in her uterus. Thus it is proved that the death fo the deceased was caused by firearm injury inflicted on her body and was not normal and at the time of her death the deceased was four months pregnant. 31. As far as the prosecution evidence on the point of demand of dowry is concerned, we have very carefully scanned the evidence of PW-1 and we have found that he has consistently deposed that immediately after the marriage of his daughter Gitanjali with accused-appellant, he and his other relatives had started demanding dowry from her and torturing and maltreating her on account of non fulfillment of demands of dowry. He has further deposed that his son-in-law accused-appellant had demanded Rs. 50,000/- from her daughter on the pretext of pleasing his uncle and father and for stopping her maltreatment in his house. He also deposed that although initially the accused-appellant and his family members were demanding Rs. 50,000/- in cash but later they also started demanding half share of his daughter in his immoveable property and told him in no uncertain terms that unless their demand of dowry was fulfilled, the torture and maltreatment of his daughter would continue. On account of non fulfillment of the demands of dowry the accused appellant had committed the murder of his daughter by shooting her with a firearm. On account of non fulfillment of the demands of dowry the accused appellant had committed the murder of his daughter by shooting her with a firearm. The information of the incident was given to him by someone who had come from P.S. Cantt and on reaching the house of the accused appellant he had found that his daughter had been shot dead. Although he had communicated the aforesaid facts to the police officer present there but they had not paid any heed to his complaint whereupon he was forced to move an application before the SSP on 16.06.2000 and when no action was taken even by the SSP on his application, he had moved an application under Section 156(3) Cr.P.C. with a prayer for registration of a criminal case against the accused-appellant and his other relatives under appropriate offences and for investigation of the same. PW-1 in his cross examination has further stated that pursuant to the decision of the panchayat which had taken place for settling the dowry dispute between his daughter and her husband and his other family members, he had paid sum of Rs. 50,000/- to the accused appellant in three installments of Rs. 25,000/-, 15,000/- and Rs. 10,000/- which were paid by him to the accused appellant in the month of February 2000, last week of April 2000 and a few days before incident. PW-2 to PW-5 in their evidence tendered before the trial court have fully corroborated PW-1 on all material facts deposed by him in his testimony. 32. Thus from the evidence of PW-1 to PW-5 the prosecution has been able to establish that the accused-appellant and his family members had immediately after the marriage of Gitanjali with him started demanding dowry in the form of Rs. 50,000/- in cash and half share of the deceased in her father's property and PW-1 had actually paid a sum of Rs. 50,000/- in cash in three installments to the accused-appellant towards the fulfillment of demands of dowry made from him and her daughter by the accused-appellant and his relatives. 33. We have very carefully scanned the evidence of all the witnesses examined by the prosecution for proving the charge under Section 304B, 498A IPC and Section 3/4 D.P.Act against the accused appellant but none of them have stated anything about her being tortured or maltreated soon before her death in connection with any demand of dowry. 33. We have very carefully scanned the evidence of all the witnesses examined by the prosecution for proving the charge under Section 304B, 498A IPC and Section 3/4 D.P.Act against the accused appellant but none of them have stated anything about her being tortured or maltreated soon before her death in connection with any demand of dowry. 34. The prosecution having failed to prove the aforesaid essential ingredient necessary to establish the charge under Section 304B IPC, the conviction of the appellant under Section 304B IPC and the sentence awarded to him by the trial court cannot be sustained and is accordingly set aside. However, his conviction under Section 498A IPC and Section 3/4 D.P.Act recorded by the trial court stands maintained. 35. After an over all assessment of the evidence on record and the consideration of the submissions made by learned counsel for the parties before us, we find that the recorded conviction of the appellant and the sentences awarded to him under Section 302, 498A IPC and Section 3/4 D.P. Act by the trial court do not suffer from any illegality, infirmity or perversity requiring any interference by this Court. However, his conviction and the sentence awarded to him under Section 304B IPC are set aside. The accused-appellant is acquitted of the charge under Section 304B IPC. Accordingly this appeal stands allowed in part and the judgment and order dated 30.01.2004 stands modified to the extent indicated hereinabove. 36. There shall however be no order as to costs.