2009 (4 )  SCR 501

MADAN LAL AND ANR. V.

STATE OF U.P. Criminal Appeal No.1701 of 2005

MARCH 5, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. These two appeals are directed against the judgment of a Division Bench of  

the  Allahabad  High  Court  allowing  the  appeals  filed  by  the  State.  The  accused  

persons faced trial for alleged commission of offences punishable under Sections  

304-B, 498-A of the Indian Penal Code, 1860 (in short ‘IPC’) and Sections 3 and 4 of  

the  Dowry  Prohibition  Act,  1961  (in  short  ‘D.P.Act’).  Learned  First  Additional  

Sessions  Judge,  Moradabad  (U.P.),  directed  acquittal  of  the  present  appellants  

holding that the prosecution version has not been established, and that there was no  

credible evidence of the deceased Asha having been caused death due to throttling.  

The trial Court held that the deceased was suffering from epilepsy and the possibility  

of her death on account of fit of epilepsy cannot be ruled out. State questioned the  

acquittal on several grounds. It was pointed out that there was direct evidence of  

demand of dowry and the Doctor’s evidence clearly ruled out the possibility of the  

injuries  sustained  by  the  deceased  having  been  caused  due  to  epileptic  fit.  

Accordingly, the judgment of  the trial  Court directing acquittal  was set aside qua  

accused persons Madan Lal  and Hoshiary (accused Nos. 2 and 3) appellants in

Criminal  Appeal  No.1701  of  2005  and  Ram  Chander  the  appellant  in  Criminal  

Appeal  No.1042/2006 who was accused No.1.  However,  the  High Court  did  not  

interfere with that part of the judgment of the trial Court by which (accused No.4)  

Mithlesh was acquitted.

2. In support of the appeal, learned counsel for the appellants submitted that  

the view taken by the trial Court was a possible view and the trial Court had analyzed  

the evidence in great detail to held that the prosecution version was not established  

and on the contrary the defence version was probable. According to him, the view  

taken by the trial Court was a possible view and the High Court should not have  

interfered  with  the  order  of  acquittal.  Learned  counsel  for  the  respondent  State  

submitted that the trial Court did not notice various relevant aspects. It was pointed  

out that the Doctors’ evidence has been misread. There were two injuries on the  

neck  of  the  deceased.  The  windpipe  and  the  sound box  of  the  deceased  were  

fractured. It was submitted that such injuries cannot be caused by epileptic fits. In  

addition it was submitted that the plea of the accused persons that the deceased  

was suffering from epilepsy was also not established by any cogent evidence. The  

version given by DW.1 and DW.2 was doubted and it was categorically observed by  

the High Court that their evidence was far from credible. It is also pointed out that  

there was clear evidence for demand of dowry.

3. Considering the rival submissions, we find that the trial Court’s judgment was  

full of surmises and cojunctures. Reliance placed on Modi’s Medical Jurisprudence  

to conclude that the injuries found on the neck of the deceased were possible due to  

epileptic fit is also not on a correct reading of the text. It is not stated any where that  

even a windpipe or sound box can be fractured as a result of epileptic fit.

That being so, the trial Court’s judgment was clearly vulnerable. The conviction  

as  recorded  by  the  High  Court  cannot  be  faulted.  However,  considering  the  

background  facts  of  the  case,  we  reduce  the  sentence  imposed  in  respect  of  

Sec.304-B IPC to seven years which is the minimum.  

The appeals are allowed to the aforesaid extent.