Ravendra Singh vs State of U.P.

Poonam Srivastav, J.—These two criminal appeals are preferred against the judgment and order dated 29.6.2005, passed by Special Additional Sessions Judge/Special Judge (S.C./S.T.), Gautambuddh Nagar in Session Trial No. 247 of 2002 State v. Rajendra Singh and three Ors.. Both the accused are convicted u/s 302/304B, I.P.C. and sentenced to life imprisonment u/s 302, I.P.C. only and a fine of Rs. 1,000 each, in default of payment of fine further imprisonment of three months, u/s 498A, I.P.C. three years R.I. and a fine of Rs. 1,000 each, in default of payment of fine three months further imprisonment, u/s 3, D. P. Act five years R.I. and a fine of Rs. 15,000 each, in default of payment of fine six months further imprisonment and u/s 4, D. P. Act one year R.I. and a fine of Rs. 1,000 each, in default of payment of fine three months further imprisonment. All the sentences are directed to run concurrently.

The Appellant Ravendra Singh is the husband of deceased and Smt. Swadesh is sister-in-law (Jethani). The occurrence is alleged to have taken place on 3.5.2002 at 4 p.m. in her matrimonial home, village Chachali, police station, Jevar, district Gautambuddh Nagar, F.I.R. was lodged on 4.5.2002 at 7.30 a.m. by Jagpal Singh (P.W. 1), father of the deceased. The distance of police station from the place of occurrence is 12 kms. Post-mortem on the body of the deceased was performed on 4.5.2002 by Dr. Anand Prakash (P.W. 6). According to the opinion of the Doctor, death occurred due to Asphyxia, as a result of strangulation. Following ante-mortem injuries were detected by the Doctor on the body of the deceased:

(i) Ligature mark all around the neck 31 cm. x 1.5 cm. in the neck below thyroid cartilage.

(ii) Abraded contusion 4 cm. x 1 cm. on left side neck higher up in the neck obliquely placed running downward and medially.

(iii) Abraded contusion 3.5 cm. x 1 cm. right side neck, higher up and obliquely placed running downward medially.

The prosecution examined 11 witnesses in support of its case. P.W. 1, Jagpal Singh, the father of the deceased and first informant. P.W. 2 Urmila neighbour of Jagpal Singh. P.W. 3 Premwati alias Guddi, sister-in-law of Jagpal (Aunt of the deceased). P.W. 4 Gulshan is an acquaintance of Jagpal and he had accompanied him to the matrimonial home of the deceased when information was received in the village and he is also witness of inquest. P.W. 5 Smt. Jayshree, mother of the deceased, P.W. 6 Dr. Anand Prakash, who performed autopsy. P.W. 7 Sudhakar Yadav, CO., who is Investigating Officer and has also proved recovery memo of the rope. P.W. 8 Sheoraj Singh Malik, S.I. another witness of recovery of memo of rope. P.W. 9 Dhanpal Singh, uncle of the deceased and witness of inquest. P.W. 10 Rajendra Singh, H.C., scribe of the first information report. P.W. 11 Dinesh Kumar, brother of the deceased.

Two defence witnesses were examined on behalf of the Appellants, D.W. 1 Smt. Devi, neighbour of the Appellants. D.W. 2 Moti Singh, who had helped in taking down the body etc.

The charge framed by the learned Additional Sessions Judge on 25.9.2002 was under Sections 498A, I.P.C.. 304B, I.P.C. and 3/4, Dowry Prohibition Act on 24th January, 2003. During the continuation of the trial additional/alternative charge was framed by the Additional Sessions Judge u/s 302/34, I.P.C.

Sri Gaurav Kakkar, advocate, appears on behalf of the Appellants and learned A.G.A. on behalf of the State. At the very outset, first argument advanced on behalf of the Appellants is that there was no charge framed u/s 302, I.P.C. initially but it was framed only during the continuation of the trial when the statement of P.W. 1, P.W. 2 and P.W. 3 was recorded. Additional Sessions Judge has convicted the accused for offences u/s 304B, I.P.C. as well as 302, I.P.C. simultaneously which is not sustainable in law. Conviction is awarded u/s 304B, I.P.C. as well as u/s 302, I.P.C. but the Appellant is sentenced only for an offence u/s 302, I.P.C. Argument is that criteria of assessment of evidence for an offence under Sections 304B and 302, I.P.C. are different. Since conviction is u/s 302, I.P.C, the prosecution was liable to discharge its burden and bring home the guilt beyond any doubt.

Learned A.G.A. was questioned on this preliminary objection raised by the counsel on behalf of Appellants. Sri R. K. Singh, A.G.A. placed Section 354(2), Code of Criminal Procedure, which reads as under:

When the conviction is under . the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.

He further placed Section 465, Code of Criminal Procedure in support of his objection, which is enumerated below:

Finding or sentence when reversible by reason of error, omission or irregularity.- (1) Subject to the provisions herein before contained, no finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an early stage in the proceedings.

It is further contended on behalf of the State that since charge was framed u/s 302, I.P.C., there is no illegality if the accused is sentenced for an offence of murder whatsoever. Assertion of Sri Gaurav Kakkar is that since the allegations against the Appellants proceeded on the basis that the deceased was done to death by her in-laws within seven years of her marriage, she was subjected to cruelty for non-fulfilment of dowry and her death is admittedly an unnatural one, therefore, it is a ''dowry death'' within Section 304B, I.P.C. and not murder u/s 302, I.P.C, where the minimum sentence provided is life imprisonment. This legal argument, we propose to discuss at a later stage after assailing and analysing entire evidence. Since the conviction is u/s 302, I.P.C, we proceed to hear the case as such and we are therefore not granting the benefit of Section 113B of Evidence Act to the State. We are conscious of the fact that conviction u/s 304B, I.P.C, the minimum sentence is less but in spite of it the accused has to face the hazard of presumption against him as provided u/s 113B, Evidence Act. In the instant case, we propose to examine the prosecution case for both the offences one by one.

Learned Counsel Sri Gaurav Kakkar proposes to assail the prosecution evidence on the under noted grounds:

(i) There is no evidence of illicit relationship between the two Appellants, which is alleged by the State and a strong motive for murder and to make out an offence u/s 34, I.P.C

(ii) Section 106, Evidence Act will not come into play since there were other inmates of the house as claimed by the prosecution itself therefore it cannot be presumed that Appellant No. 1 was the only one who had knowledge about the facts what happened within the four walls of his house.

(iii) According to the Doctor, cause of death is strangulation but it is argued on behalf of defence that it is not a case of strangulation but it is a case of hanging. Learned Counsel proposes to demonstrate and substantiate his arguments by Medical Report, evidence of the Doctor and the anomalies vis-a-vis Medical Jurisprudence.

(iv) There is nothing to substantiate that the victim/deceased was subjected to cruelty soon before her death for demand of dowry.

(v) It is argued that the Appellants were named as an accused on prompting of the villagers namely Fakira.

(vi) The recovery of plastic rope 35 feet long, if used in the offence, then it cannot be a case of strangulation.

Narration of the prosecution story detailed in the first information report (Ext. Ka-1) shows that first Informant''s daughter Pravesh (deceased) was married to the Appellant Ravendra Singh, son of Mahavir, resident of village Chachali, Police Station Jevar. Sufficient dowry was given at the time of marriage according to the means of first informant. His daughter had informed him on a few occasion that her in-laws were not happy with the dowry and, therefore, they harassed her and subjected her to cruelty on account of non-fulfilment of demand of dowry. One Banwari, resident of village Rampur, P.S. Shikarpur, who was a mediator tried to intervene and on an assurance given by the family members of the Appellants, complainant allowed his daughter to go with her husband on 4.5.2002. Two persons from village Chachali came to give information that his daughter was dead. Dharmpal, son of Dan Singh accompanied the first informant Jagpal to village Chachali and saw that his daughter was lying in open. He was informed that she died at 4 p.m., the day before. The Appellant, his brother Rakesh, brother-in-law of Rakesh Banwari and the Appellant Swadesh were named in the report, who were instrument for killing the deceased for non-fulfilment of dowry. Accused Rakesh (brother of Appellant Ravendra) and Banwari were acquitted by the learned Sessions Judge but the present Appellants were convicted.

Jagpal, P.W. 1 repeated his allegation of the F.I.R. and further stated in his examination-in-chief that his daughter had confided in his wife Jayshree and Premwati. (P.W. 5 and P.W. 3) that her in-laws were not satisfied with the dowry. He has further stated that Banwari assured the family members and thereafter he had allowed his daughter to go to her in-laws house. This incident is said to have taken place 2-1/2 months before the occurrence. First informant had admitted in cross-examination that the Appellant Ravendra and his brother Rakesh lived together and the two themselves had never demanded any dowry at any point of time but they had demanded it through the deceased who had conveyed the message to her mother. He also admits that there was no demand of motorcycle. He further admits that his daughter had never confided in him personally; when he was confronted with his statement before police u/s 161, Code of Criminal Procedure He denied to have stated before the Investigating Officer that there was any demand of motorcycle or a buffalo or his daughter was ever harassed on account of non-fulfilment of the aforesaid two demands. The witness was confronted with several other statements relating to the demand of motorcycle as incorporated in his initial statement u/s 161, Code of Criminal Procedure The witness specifically denied, on the contrary he admits that no dowry was settled at the time of marriage and he had given dowry according to his means. He also admits that it was the villagers who prompted him to state that the family members of the Appellants are instrumental in killing his daughter. When the witness was questioned whether he could mention names of the said villagers and would be able to identify them, he had expressed his inability to either recognize them or give names or particulars about those persons, who had informed him that his daughter was killed by the accused. He is very emphatic in his assertion that the inlaws of his daughter had at no point of time ever made any demand for dowry. He further admits that when he reached his daughter''s sasural. he saw that his daughter was lying on blocks of ice. He further denies to have disclosed the names of the assailants to the C.O., on the contrary he has stated several other persons, who were present there had disclosed this fact to the Investigating Officer. Learned Counsel further pointed out that two persons from village Chachali, who had gone to inform P.W. 1 had not met him but the witness claims that one Fakira from his village was informed. Fakira was the one, who had given information to the family members of the deceased. The witness has further elucidated that Ravendra possesses 40 bighas of landed property. He has a P.C.O. booth situated 3-4 kms. away from his house. He looks after the said P.C.O. booth. He goes early morning at about 7-8 a.m. and comes back in the evening at about 7-8 p.m. The brother of the Appellant namely Rakesh works in the Telephone Exchange. However, he was unable to disclose that whether Rakesh was on duty on the date of incident or not. P.W. 1 has stated that saliva was coming out from the mouth of the deceased, which he had shown to the CO. and the CO. had collected saliva in a polythene.

Submission of the learned Counsel is that appraisal of evidence of P.W. 1 clearly establishes that there was no demand of dowry at any point of time and of course not soon before the incident and also that Appellant Ravendra had sufficient landed property. He used to run a P.C.O. booth. He had engaged servants as well, and the Appellant remained at his P.C.O. booth from early morning till late evening and therefore prosecution case completely stands demolished that the deceased was killed for non-fulfilment of dowry. It is also argued by Mr. Kakkar that this witness has not given any motive whatsoever. Prosecution has not made any attempt to bring forth any motive whatsoever.

The next witness is P.W. 2 Urmila, neighbour of P.W. 1. She has though laid emphasis that the in-laws used to harass the deceased for non-fulfilment of dowry but she has stated in her cross-examination that she used to come to her parents house happily and also go back to her inlaws place quite happily. Besides, it is pointed out by the learned Counsel that the Investigating Officer or any other police official had ever recorded her statement u/s 161, Code of Criminal Procedure or at any stage during the investigation. She was examined for the first time during the trial. The argument is that no reliance can be placed on this witness. Moreover she is only a neighbour and the prosecution has examined her to somehow establish its case.

Premwati alias Guddi, wife of Dhanpal Singh was examined as P.W. 3. She has admitted in her cross-examination that two brothers P.W. 1 and his brother P.W. 3 have separate living though in the same house. She has admitted that the deceased had never complained about behaviour of ill treatment by her in-laws or any demand of dowry. She admits that she had heard the deceased complaining to her mother. She was confronted with her statement u/s 161, Code of Criminal Procedure She was not able to give any specific reason why the Investigating Officer has recorded a statement which she had not given. She also admits that there was no quarrel or dispute regarding dowry either at the time of marriage or subsequent to it. The deceased stayed for 5-6 months in her maika and thereafter for about 6 months with her in-laws. She further states that she had gone to the house of the deceased alongwith Jayshree. She also states that after she had gone to the house of the Appellant, after her death the deceased was lying in open her mouth was closed.

P.W. 4 is Gulshan, who had accompanied Jagpal to Chachali. He has stated that after getting news of death of Pravesh, they reached her village. Nothing material has been stated by the said witness.

Jayshree mother of the deceased was examined as P.W. 5. She has not at all supported the prosecution case and therefore she was declared hostile. She unequivocally denies that she had ever disclosed to her husband that the Appellant''s family was demanding any dowry. She has completely denied the fact that she ever visited her daughter''s sasural alongwith P.W. 3 Premwati. P.W. 3 has contradicted the statement of other prosecution witnesses. The prosecution case regarding demand of dowry at any time by the Appellant Ravendra and his family members is completely negated. The theory of her daughter done to death for want of sufficient dowry is demolished by her testimony. Sri Gaurav Kakkar submits that statement of this witness who is none other but mother of the deceased completely rips apart the prosecution case.

P.W. 5, Jayshree was recalled subsequently to substantiate that Appellant Swadesh used to create problems between her daughter and husband and therefore she had made a complaint to Rakesh, husband of Appellant Swadesh.

Dr. Anand Prakash was examined as P.W. 6 to prove postmortem report. Perusal of statement of doctor and his opinion that death was as a result of strangulation and not suicide was given on the basis that he detected hyoid bone of the deceased fractured. Defence counsel submitted that finding of the learned Sessions Judge on the basis of this statement is without taking into consideration the admission of the doctor in his cross-examination.

The defence counsel has placed part of the cross-examination of the Doctor, where he admits that sometimes hyoid bone is fractured even in the case of suicide. Extensive cross-examination was conducted to elucidate symptoms of strangulation and suicide. In regard to homicidal strangulation, the Doctor has admitted that generally in such a case bleeding is found from mouth, nose and ears. Bleeding from nose is a common feature but he did not find any bleeding either from mouth, nose or ears. The mouth was also closed. The Doctor has stated in his cross-examination that the face of the deceased was congested but he has not mentioned this fact in the autopsy report that the face was livid and marked with petechiae. He has tried to explain that this was not mentioned for the reason that the entire face was congested and these marks were not clearly visible. This statement was in reply to a question put to the doctor about his view on the commentary of Modi''s Medical Jurisprudence. The doctor has agreed with the symptoms and the comparison drawn in the condition of the deceased in the two cases. He accepted that the condition of face besides being congested is essentially marked with petechiae. When questioned about the saliva coming out from the mouth of the deceased, he has clearly stated that he did not notice saliva, but at this point the counsel for defence has highlighted the statement of P.W. 1 to demonstrate that he has specifically admitted that saliva was coming out and was collected in a polythene by the Investigating Officer. The Doctor admits that he has also not mentioned certain striking factors such as carotid arteries internal coat was ruptured, which is usually present in a case of strangulation. On the basis of cross-examination of Doctor the counsel placed extract of Modi''s Medical Jurisprudence and focussed the differences between the case of hanging and strangulation. The salient feature of hanging as depicted in the comparison chart placed before us, such as dribbling of saliva, subcutaneous tissue under the ligature mark is white, hard and glistening as well as absence of bleeding from the nose, mouth and ears usually face not to be pale and petechiae.

On the basis of these salient feature, the argument is that it is not homicidal strangulation but suicidal. At least it cannot be accepted conclusively that the deceased was strangulated to death.

P.W. 7 Sudhakar Yadav, Investigating Officer and P.W. 8 Sheoraj Singh Malik have proved the recovery memo of rope. Submission is that this is another indication that the deceased has committed suicide. P.W. 9 Dhanpal Singh, uncle of the deceased and is a witness of inquest. P.W. 10, Head Constable, Rajendra Singh is the scribe of the F.I.R. and P.W. 11 is Dinesh Kumar brother of the deceased. He has come out with the theory of panchayat held prior to the incident regarding some dispute of demand of dowry. According to this witness, the demand of motorcycle and buffalo was reiterated in panchayat. He has come to depose for the first time during trial. P.W. 11 had made a bald statement of panchayat to establish the demand of dowry. P.W. 11 has also stated for the first time regarding some letters but neither any letter is on record nor it is the case of the prosecution. Sri Gaurav Kakkar submits that there is no evidence whatsoever about panchayat. Not even a single person has come forward with the story of panchayat Assertion on behalf of defence is that the entire prosecution story revoles around demand of dowry and its non-fulfilment but there is not an iota of evidence to corroborate these assertions.

The next argument on behalf of defence is that prosecution has completely failed to substantiate that the deceased was subjected to cruelty soon before her death for non-fulfilment of dowry, on the contrary, the evidence goes a long way to establish that there was no demand of dowry whatsoever and, therefore, one of the essential ingredients to constitute offence is missing. No offence is substantiated under Sections 304B and 498A. I.P.C. or 3/4. Dowry Prohibition Act.

Learned Counsel has also submitted that information of death of the deceased was disclosed to one Fakira who has not been examined and it was he who gave information to P.W. 1. Besides, the first informant admits that name of the accused was given out in the F.I.R. on prompting of the villagers who could neither be named nor identified by witnesses. Yet another aspect argued by learned Counsel that every witness has clearly stated that the deceased was a beautiful woman whereas husband was not good looking and, therefore, she was dissatisfied with her marriage and committed suicide. Recovery of plastic rope also corroborates the theory of hanging. Recovery memo of the rope is Ex. Ka-7 dated 18.5.2002 relied by the prosecution.

Learned A.G.A. Sri R. K. Singh has disputed the argument of Sri Gaurav Kakkar. He has elaborated the theory of strangulation on the basis of evidence of doctor. Besides, death took place within the house of the husband, he was conspicuously absent when the family members of the deceased arrived. It is also submitted by State counsel that the in-laws failed to inform the family members of the deceased about her death but they received information from some other persons. Evidently this has been done with an obvious intention. Besides the husband is expected to have exclusive knowledge as to what happened inside the house and thus a presumption u/s 106, Evidence Act arises against her.

Sri Kakkar while replying the argument of A.G.A. has reiterated his earlier arguments. Besides, he has added that the Appellant used to remain at his P.C.O. booth from 8 a.m. till late evening and death occurred at 4 p.m. therefore, he cannot be expected to be in the house and saddled with sole responsibility and exclusive knowledge.

We have heard learned Counsels at length and carefully examined statements of the witnesses. We proceed to examine the judgment of conviction under Sections 304B, 498A, I.P.C. and 3/4, Dowry Prohibition Act, before examining evidence in the light of charge framed by the court below for murder u/s 302, I.P.C. To bring home the guilt of dowry death, it is necessary to establish that there was demand of dowry and victim was subjected to cruelty for non-fulfilment of dowry within a span of seven years and also death was unnatural. Admittedly, death did take place within a span of seven years and it is an unnatural death. On the face of evidence of P.W. 1 who has come forward initially with a case that there was demand of dowry and deceased has complained to his wife and P.W. 3 that she was harassed at the hands of in-laws because the demand was not fulfilled. P.W. 1 himself has withdrawn and retrieved his own statement in his cross-examination that his daughter ever informed or complained to him about any demand whatsoever as well as the fact that she was subjected to cruelty at the hands of her in-laws. He admits that he came to know only through his wife who has completely disowned any such information given to her husband. The deceased never told her that she was treated badly for want of dowry. The first informant has also unequivocally admitted that son-in-law or her brother had ever demanded any article and he has also denied to have given such a statement to the police when he was interrogated after the incident. Mother has been declared hostile. P.W. 11 brother has come at a later date with a theory of panchayat but there is not an iota of evidence to substantiate this fact. It has also come in evidence that the Appellant owned a P.C.O. booth. He had employed servants and is a man of sufficient means and, therefore, there was no occasion to make any demand. Not only this, there is nothing to substantiate that at any point of time, the husband had made any demand of any article whatsoever. In view of this finding, we are unable to hold that there was any demand of dowry at the instance of Appellants. Prosecution witnesses have not alleged in their statements that daughter was subjected to cruelty for non-fulfilling of demand of dowry. Not a single incident has been mentioned either by father, mother or any of the witnesses who are family members of the victim and neighbour of the victim who were already examined as witnesses. Brother has come forward at a very late stage which is a bald statement and, therefore, he has raised an absolutely novel story of panchayat and letter sent by the victim but none of them has been corroborated by him. It is also difficult to arrive at a conclusion that victim was subjected to cruelty soon before the incident for want of dowry and thereafter she met an unnatural death.

In the instant case, we have not been able to find out any such incident at any point of time, what to say soon before the incident when she was subjected to cruelty and, therefore, we are of the considered opinion that this is not a case of ''dowry death'' within the meaning of its definition since the basic requirement that there should be a demand of dowry is completely missing, in addition to this, the fact that she was ever subjected to cruelty for non-fulfilment of demand of dowry, is also apparently a far-fetched conclusion of the learned Sessions Judge.

In view of these factors, we hold that the conviction under Sections 304B, 498A. I.P.C. and Section 3/4, Dowry Prohibition Act is uncalled for. There is no evidence whatsoever and, therefore, conviction for these offences are set at naught.

Now we proceed to examine conviction for an offence of murder. Two Appellants have been convicted u/s 302/34, I.P.C. There is allegation that Appellant Smt. Swadesh had illicit relation with Appellant Ravendra Singh, husband of the deceased and, therefore, both of them committed murder of the deceased in furtherance of common intention. There is no direct evidence of murder. There is no evidence of relationship between Appellant Smt. Swadesh and Ravendra Singh save for an allegation by Jayshree that she had requested husband of Smt. Swadesh, Rakesh to ask his wife to mend her ways. In fact Jayshree was recalled only for this very purpose subsequently and she has admitted that her daughter was not killed for want of dowry but because her sister-in-law jethani Smt. Swadesh used to create trouble and there was something going on between the accused Ravendra and his sister-in-law Smt. Swadesh. Her testimony is only for a limited purpose that both the Appellants had an affair and this was objectionable to the deceased. P.W. 5 while deposing about the relationship, has also admitted that she never informed anyone about this relationship before she gave her statement in the Court. She has further stated in her cross-examination that when she had complained to Rakesh about his wife, then Guddi and Rakesh were also present and Rakesh had said that he will look into the matter. This part of evidence of P.W. 5 at the maximum can be accepted that something was brewing between Ravendra and Appellant Smt. Swadesh but there is nothing else to arrive at a conclusion that they connived or killed the deceased in unison.

Evidently there is no direct evidence of murder. It is a case of circumstantial evidence. The circumstance which lead to an inference that the Appellants are responsible for causing death of Smt. Pravesh, is that two Appellants had illicit relation between them. The entire prosecution case and evidence in support thereof is that the deceased died at her husband''s house. The only aspect which can be taken into consideration, is that the Appellant Ravendra being husband, he is only person to prove his innocence since the fact leading to the death of the deceased is specially within his knowledge.

No doubt, Section 106 of the Evidence Act provides that when a fact is specially within the knowledge of any person, burden of proving that fact is upon him. This is a case where the prosecution has not come up with the theory that husband alone was in the house when the deceased died but on the contrary, other inmates of the house also lived in the same house and, therefore, no presumption can be raised u/s 106 of the Evidence Act. As it is often said that witnesses may lie circumstances will not and, therefore, it is necessary that the circumstances must cautiously be scrutinized to form an opinion that incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused.

In the instant case, we have thoroughly scrutinized the evidence of witnesses and there is nothing to substantiate that husband was with the deceased alone in the house at the relevant time, on the contrary, no such questions were put at the time of examination of the accused-Appellant u/s 313, Code of Criminal Procedure He was only questioned regarding demand of dowry, date of marriage etc. Appellant has specifically replied to the question that, how did she die? and he had answered that he was at his P.C.O. booth and, therefore, he has no knowledge how she died.

Learned Counsel for the Appellants has placed reliance on a number of decisions which we have examined. In the case of B. Venkat Swamy v. Vijaya Nehru and Anr. (2009) 1 SCC (Cri) 38, it was held that in a case of circumstantial evidence, tests for upholding conviction is:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In another case of Syed Hakkim and Anr. v. State (2009) 2 SCC (Cri) 281 : 2009 (2) ACR 1452 (SC), it was held that evidence regarding demand of dowry was scanty but courts below took into consideration the evidence of relatives and came to a conclusion that there was a demand of dowry. The conviction was u/s 302 and prosecution case rested primarily on circumstantial evidence but circumstances highlighted failed to bring the case within four corners of Section 302, I.P.C. and, therefore, the Apex Court granted an acquittal on account of insufficient evidence and judgment of conviction by High Court was set aside.

Similarly, in the instant case, learned Sessions Judge though has concluded that there was a demand of dowry but the evidence is completely to the contrary. There is complete denial of demand of dowry and we do not agree with the findings that there was any demand of dowry whatsoever and that the deceased was subjected to cruelty soon before death or at any point of time, that is why conviction u/s 304B, I.P.C. has also been set at naught. The circumstances also do not lead to a conclusive opinion of murder and, therefore, we are unable to agree with the findings of the learned Sessions Judge.

Learned Counsel has also cited a number of other decisions: Baldev Singh Vs. State of Punjab, Thakkan Jha and Ors. v. State of Bihar (2004) 13 SCC 348 ; Kamesh Panjiyar @ Kamlesh Panjiyar Vs. State of Bihar, Harjit Singh v. State of Punjab 2006 (54) ACC 282 : 2006 (1) ACR 16 (SC) and Sucha Singh v. State of Punjab 2001 (42) ACC 908 : 2001 (2) ACR 1182 (SC).

Learned A.G.A. has placed reliance on a decision of the Apex Court in the case of Joseph Poulo Vs. State of Kerala, Submission is that the Apex Court held that it is not every discrepancies or contradictions in the matter of assessing, reliability and credibility of a witness or truthful of his version. The defence has to substantiate that the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straight away condemned and their evidence discarded in its entirety. Learned Counsel has also emphasized on the observation of the Apex Court regarding questioning of the accused u/s 313, Code of Criminal Procedure The Appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his attitude of total denial. Since the Appellant has not explained facts which was personally and exclusively within his knowledge, missing links in the circumstantial evidence should be considered to be supplied by such denials of the Applicant and thus, the court below has rightly completed chain of circumstances and connected the Appellant.

We have considered the arguments of learned A.G.A. in its totality and examined the facts of the aforesaid citation. In the case of Joseph (supra) it was under Sections 302, 392 and 376, I.P.C. The present case is one where the entire story of prosecution rests on the evidence of dowry death and the Appellant Smt. Swedesh has been arrayed as an accused by aid of Section 34, I.P.C. only on the basis of half-hearted allegation that there was some relationship between two Appellants. Even if we accept the fact that there was some relationship then prosecution was duty bound to substantiate at least some circumstances to bring home the guilt of murder in accomplishment of a common intention. Prosecution has miserably failed to do so and we do not find it safe to uphold conviction u/s 302, I.P.C. as well.

The Apex Court in the case of Sucha Singh (supra) ruled that Section 106 of the Evidence Act is not intended to relieve the prosecution to prove its burden of guilt beyond reasonable doubt. This provision is only helpful to the prosecution where it is succeeded to prove facts from which a reasonable inference can be drawn regarding existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the . Court to draw a different inference.

We are conscious of the fact that Appellant Ravendra is husband but that alone is not sufficient to castigate the husband for murder of his wife, in absence of any incriminating evidence be it direct or circumstantial. We are unable to accept that the husband and his sister-in-law strangulated the deceased to death only on the ground of suspicion specially after examining admission of the doctor in his cross-examination regarding condition of the deceased highlighted by learned Counsel on the basis of Modi''s Medical Jurisprudence and suggestion of a feeble motive which is not proved.

In view of all these circumstances, we are of the opinion that the guilt of murder is also not substantiated by prosecution beyond reasonable doubt and, therefore, the order of conviction and sentence dated 29.6.2005, passed by the learned Additional Sessions Judge/Special Judge S.C. and S.T. Act, Gautam Buddh Nagar u/s 302/34, I.P.C. is also set aside. The appeal is allowed. The Appellants are granted benefit of doubt and we acquit both the Appellants. The Appellant Ravendra is in jail since 29.6.2005. He shall be released forthwith. The Appellant Smt. Swedesh is on bail. She need not surrender.

Let a copy of this judgment alongwith lower court record be sent to the Sessions Judge, Gautam Buddh Nagar for compliance.