JUDGMENT Hon’ble Om Prakash-VII, J.—This criminal appeal has been preferred by the accused/appellant against the judgement and order dated 7.10.2005 passed by the Additional District and Sessions Judge, Court No. 1, Aligarh in Session Trial No. 479 of 2001 (State of U.P. v. Saroj Devi and others) convicting and sentencing the appellant Rajendra for the offence punishable under Section 304-B IPC for ten years rigorous imprisonment and a fine of Rs. 3,000/-, for the offence punishable under Section 498-A IPC for two years rigorous imprisonment and a fine of Rs. 1,000/- and for the offence punishable under Section 3/4 of the Dowry Prohibition Act for one year rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine, appellant was also directed to undergo additional simple imprisonment of three months. All the sentences have been directed to run concurrently. 2. The facts of the case, in nutshell, as unfolded by the informant Tikam Singh son of Mewa Ram in the First Information Report (in short ‘F.I.R.’), are that in March, 2000, the informant had married his daughter Uma with Rajendra Singh son of Om Prakash, resident of Village Ghari Ki Sarai, Police Station Sasni Gate, Aligarh giving sufficient dowry as per his capacity and Rs. 2,50,000/- cash but the in-laws of his daughter were not happy with the same and were demanding additional dowry in the form of Rs. 1,00,000/- cash. The daughter of the informant told time to time to her mother and Mausa Sher Singh about the said demand. The informant and his relatives tried to pacify the matter, but husband of the deceased, father in law, mother in law and devar were not agree. On 7.8.2000, in the evening, Rajendra, husband of the deceased, Om Prakash, father in law, Saroj mother in law and devar Prem Singh unanimously gave poison to the daughter of the informant and on being serious, they got admitted her in the Medical Hospital. In the night at about 10.00 p.m. it was informed that her sister consumed poison and when they reached Medical, her sister told that she was forcibly given poison and was beaten. Thereafter, she became much serious. She had omitting with smell of poison and at last at 11.00 p.m. she died. 3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Thereafter, she became much serious. She had omitting with smell of poison and at last at 11.00 p.m. she died. 3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-5) was registered at Police Station concerned mentioning all the details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time. 4. Investigation of the matter was entrusted to Man Singh Chauhan, Circle Officer City(1st), Aligarh. The Investigating Officer started investigation. He inspected the place of occurrence and prepared site plan (Ext. ka-4). Inquest of the dead-body was done by R.K. Shukla, S.D.M. Kol and report (Ext. ka-7) was prepared. Other police papers i.e. photo lash, letters to Chief Medical Officer and R.I. and challan lash were also prepared. 5. Autopsy report (Ext. ka-15) was prepared after conducting the post-mortem on 8.8.2000 at 5.00 p.m. 6. As per the post-mortem report, the deceased was average body built. Rigor mortis was present all over the body. On internal examination, membrance and brain were found congested. 50 grms pasty material were found in stomach. 7. In the opinion of the doctor, cause of death could not be ascertained and viscera was preserved. 8. After completing the investigation, charge-sheet (Ext. ka-12) against the accused appellant was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session Court, was committed to the Court of sessions. 9. Accused/appellant appeared and charge under Sections 498-A, 304-B, IPC was framed. All the accused have denied the charges framed against them and claimed their trial. 10. Trial proceeded, and on behalf of prosecution, eight witnesses were examined, wherein PW-1, Tikam Singh, PW-2 Rakesh Kumar, PW-3 Investigating Officer Man Singh Chauhan, C.O. City, Aligarh, PW-4 Constable Ram Khilari, PW-5 R.K. Shukla, S.D.M., PW-6 C.B.C.I.D. Inspector K.D. Chaudhary, PW-7 Dr. Arjun Singh, PW-8 Dr. M.R. Bharadwaj and C.D.1 Sher Singh and C.D.2 Hans Kumari. 11. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded. 12. Accused appellant in his statement under Section 313 Cr.P.C. admitted the marriage of deceased Uma with him but denied the entire allegations levelled by the prosecution and stated that he has been falsely implicated. It was further stated that the deceased was suffering from Hepatitis Anemia and due to this reason she consumed poison. 13. 12. Accused appellant in his statement under Section 313 Cr.P.C. admitted the marriage of deceased Uma with him but denied the entire allegations levelled by the prosecution and stated that he has been falsely implicated. It was further stated that the deceased was suffering from Hepatitis Anemia and due to this reason she consumed poison. 13. In support of their case, the defence has produced DW-1 Dr. G.C. Sharma, DW-2 Janak Singh and DW-3 Panna Lal. 14. Having heard the learned counsel for the parties and going through the record, the trial Court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt and convicted and sentenced the accused appellant, hence this appeal. All other co-accused were acquitted and there is no appeal against acquittal. 15. I have heard Shri S.S. Rajput, learned counsel for the appellant and Shri Brij Raj Verma, learned AGA for the State at length, and perused the entire record carefully. 16. Castigating the impugned judgement and order, learned counsel for the appellant has submitted that the appellant has served-out entire sentence imposed upon him as he was not enlarged on bail during pendency of the appeal but it was submitted that the appellant was illegally convicted and sentenced by the trial Court. Deceased consumed poisonous substance herself as she was suffering from jaundice. She was admitted for treatment by the appellant before the incident. Prosecution could not establish the fact of demand of dowry against the appellant beyond reasonable doubt. There were general allegations against the appellant but the trial Court illegally convicted and sentenced the appellant for the offence under Sections 304-B, 498-A IPC while other accused facing trial were acquitted on the basis of same set of evidence. It was further submitted that the trial Court has not considered that charge under Section ¾ Dowry Prohibition Act was not framed against the appellant but he was convicted in the said Section also, which is illegal. 17. Per contra, the learned AGA appearing for the State has submitted that the essential ingredients to constitute offence under Section 304-B,498-A IPC and ¾ Dowry Prohibition Act were fully established by the prosecution beyond reasonable doubt. Deceased died in her in-laws house within seven years of her marriage. Death of the deceased was not natural but otherwise than under normal circumstances. Deceased died in her in-laws house within seven years of her marriage. Death of the deceased was not natural but otherwise than under normal circumstances. There was specific report of viscera that cause of death of the deceased was due to consuming poisonous substance. Witnesses examined on behalf of the prosecution have also proved that accused appellant had demanded Rs. 1,00,000/- after the marriage and had subjected the deceased to cruelty, torture and harassment for or in connection with the said demand of additional dowry soon before her death. Appellant could not establish that death of the deceased was natural one. The findings of the trial Court are based on the evidence available on record. There is no illegality, infirmity or perversity in the said findings warranting interference by this Court. 18. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. 19. In the present matter, offence is said to have been committed on 7.8.2000. Deceased died in the same night in the hospital. Viscera was preserved in which some poisonous substance was found which was the cause of death of the deceased. It has also come in the evidence that the deceased was admitted in the hospital by the appellant. Prem Singh, Om Prakash, Smt. Saroj, who were also facing trial have been acquitted by the trial Court. The trial Court has not placed reliance on the oral dying declaration said to have been made by the deceased to the witnesses. Letters said to have been written by the deceased to her parents were also not relied upon by the trial Court. Conviction of the accused appellant has been made by the trial Court on the basis that the deceased was subjected to cruelty and harassment for or in connection of the demand of Rupees One Lakh after the marriage by the accused appellant, which was not fulfilled by the parents of the deceased. It has also come in the evidence that when the deceased returned at her parental house first time, she did not make any complaint about the said demand. It has also come in the evidence that when the deceased returned at her parental house first time, she did not make any complaint about the said demand. Similarly, when she came again at her parental house, she again did not make any complaint from the witnesses about the said demand but the trial Court placed reliance on the statement of mother and father of the deceased that accused appellant had demanded Rupees One Lakh when the deceased was at her in-laws house. It was also observed by the trial Court that panchayat was held to pacify the matter. 20. Certainly in the present matter, cause of death of the deceased is consumption of poisonous substance meaning thereby death of the deceased was unnatural otherwise than under the normal circumstances in the house of the appellant. Death took place within seven years of marriage. The defence regarding illness of the deceased and remaining perturbed was not found believable by the trial Court. If the facts and circumstances of the case and the evidence available on record be compared with the findings recorded by the trial Court in the impugned judgment and order, it is evident that the trial Court has not framed charge against the appellant for the offence under Section ¾ Dowry Prohibition Act but the appellant has been convicted and sentenced for the said offences. It is surprising that if the charge was not framed for the offence under Section ¾ Dowry Prohibition Act and the appellant was not afforded opportunity to defend himself, how the appellant was convicted and sentenced for the said offences. Hence, in the opinion of the Court, the conviction and sentence of the appellant for the offence under Section ¾ Dowry Prohibition Act is not sustainable in the matter. It is worth mentioning here that if there was no demand of dowry and charge in this respect was not framed by the trial Court, the offence under Section 498-A IPC can also be not taken as proved in the present matter. Thus, there is substance in the submissions made by the learned counsel for the appellant and the same is liable to be accepted. The trial Court has not only committed error of law but also error of fact. Thus, there is substance in the submissions made by the learned counsel for the appellant and the same is liable to be accepted. The trial Court has not only committed error of law but also error of fact. Apart from this, it is consistent version of the appellant that he tried to save the deceased and he himself taken the deceased to the hospital. If the viscera report is taken into consideration, only this much fact has been established that the deceased had consumed some poisonous substance and due to that reason she died. It does not mean that the poisonous substance was consumed by the deceased due to cruelty and harassment caused by the appellant soon before her death. 21. Hence, taking into account the entire facts and circumstances of the case and re-appreciating the evidence available on record, I am of the view that the prosecution has not been able to establish the guilt of the accused appellant Rajendra. Hence, the Court is inclined to give benefit of doubt to the accused appellant Rajendra, keeping in mind the rule of caution. 22. In view of the above discussions, I am of the opinion that the prosecution has failed to establish the guilt of the accused appellant under Sections 304-B IPC and 498-A IPC and ¾ Dowry Prohibition Act beyond reasonable doubt and to the satisfaction of the judicial conscience of the Court. So, the impugned judgement and order of conviction and sentence dated 7.10.2005, which has been sought to be assailed, call for and deserves, interference. The criminal appeal is liable to be allowed and the same is accordingly allowed. 23. The judgement and order of conviction and sentence dated 7.10.2005 passed by the trial Court is hereby set aside. The accused appellant, namely, Rajendra is found not guilty for the offence punishable under Sections 304-B IPC and 498-A IPC and ¾ Dowry Prohibition Act. He is acquitted of all the charges framed against him. 24. Let a copy of this judgement alongwith lower Court record be sent to the Sessions Judge, Aligarh.