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Hon'ble Mohd. Azhar Husain Idrisi,J.

(Delivered by Hon'ble Rahul Chaturvedi,J.) [1]. Heard learned counsels named above appearing for respective appellants as well as learned Additional Government Advocate for the State of U.P. Perused the record.

[2]. Since all the appeals suffer from same legal vice and flaw, therefore, all the appeals after being clubbed together and for the sake of brevity and convenience, are being decided by a common judgment.

[3]. The moot legal questions to be adjudicated, in these appeals are; (i) as to whether the trial courts are justified in framing the charge u/s 498A, 304B I.P.C. & Section 3/4 of Dowry Prohibition Act with alternative charge u/s 302 I.P.C. simplicitor or 302/34 I.P.C.; (ii) as to whether the trial courts are justified while exonerating the accused-appellants from the primary charges of Sections 498A, 304B I.P.C. & Section 3/4 of Dowry Prohibition Act, but convicting them u/s 302/34 I.P.C. taking recourse of Section 106 of the Evidence Act?

FACTUAL MATRIX OF RESPECTIVE APPEALS :

[5].            CRIMINAL APPEAL NO.1667 of 2021
 
		(Rammilan Bunkar vs. State of U.P.)           
 

(i) Appellant Rammilan Bunkar is facing incarceration since 09.02.2021 pursuant to judgment and order passed by the learned Additional Session Judge (F.T.C.), Lalitpur while deciding S.T. No.37 of 2017 (State vs. Rammilan Bunkar and 2 others), arising out of Case Crime No.113 of 2016, Police Station-Narahat, District Lalitpur. The appellant Rammilan Bunkar and 2 others were put to trial u/s 498A, 304B I.P.C. and Section ¾ D.P. Act with alternative charge u/s 302/34 I.P.C., but the learned Trial Judge have exonerated the accused-appellant from the charge u/s 304B I.P.C., but have convicted u/s 302 I.P.C. for life imprisonment with fine of Rs.10,000/-; u/s 498A I.P.C. for two years simple imprisonment with fine of Rs.3000/- and u/s 4 of D.P. Act for one year rigorous imprisonment and a fine of Rs.3000/- with default clause. In addition to this, remaining co-accused persons Lal Singh and Har Govind were also exonerated and acquitted from the charges u/s 498A, 304B, 302 I.P.C. & Section 4 D.P. Act.

(iv) The Court has occasion to examine the impugned judgment. No doubt, the deceased died under unnatural circumstances at the residence of her husband. In paragraph 35 and 36 of the judgment, it is clearly mentioned that prosecution has miserably failed to establish the guilt of Section 498A, 304B I.P.C. & 3/4 D.P. Act against co-accused Raj Bahadur and Surajkali, but without attributing any cogent reason abruptly and whimsically the learned Trial Judge have convicted the appellant Prem Chandra u/s 302 I.P.C. Since all accused persons were exonerated from the charge u/s 498A, 304B I.P.C. & 3/4 D.P. Act, therefore, presumption contained u/s 113 of the Evidence Act would not come to help of prosecution. If accused is being tried for the offence u/s 302 I.P.C., entire burden is upon the prosecution to establish the guilt of accused beyond reasonable doubt. In the entire judgment, there is no whisper that appellant Prem Chandra was an author of this unfortunate incident. However, Section 106 of the Evidence Act would come into play only after the prosecution establishes the case against the accused beyond the pale of reasonable doubt, then only the operation of Section 106 of Evidence Act starts operating against the accused.

(ii). In this case too, initially the F.I.R. was registered u/s 498A, 304B I.P.C. & 3/4 D.P. Act against Shiv Kumar, Jamuna Devi and Rumla @ Urmila. Being cognizable offence the matter was committed to the court of session and the learned Trial Judge have framed the charge against the appellants u/s 498A, 304B I.P.C. & 4 D.P. Act with an alternative charge u/s 302 I.P.C.

(iii). As per prosecution case, the informant's daughter Vimla (22 years) got married with Shankar Lal in April, 2016 whereby the informant has given dowry and gifts as per his capacity, but the in-laws were not satisfied and on account of scanty dowry there was a bad breath between them. The deceased's sister-in-law (nanad) Rumla @ Urmila got married with the maternal brother of Vimla and this was the sole reason for further animosity. In the intervening night of 15.6.2017 all the persons of in-laws throttled the neck of Vimla and wiped her off. Vimla was carrying the pregnancy of three months. Initially the F.I.R. was registered u/s 498A, 304B I.P.C. & 3/4 D.P. Act and the charge sheet was also submitted in same sections, but after committal of the case to the court of session, the learned Trial Judge have framed the charge against the appellants u/s 498A, 304B I.P.C. & 4 D.P. Act with an alternative charge u/s 302 I.P.C. on 26.10.2017, which were denied by the accused-appellants and insisted for trial.