Manoj Kumar State of U.P v. …

1. Heard Shri Vineet Kumar Mishra, learned counsel for the appellant, Shri Badrul Hasan, learned A.G.A.-I for the State and perused the record.

2. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has been filed by the appellant namely Manoj Kumar S/o Shri Krishna impeaching the judgment and order 23.11.2012, passed by the Additional District and Session Judge, Court No.8, Hardoi (in short "Trial Court") in Session No.498/2011, arising out of Case Crime No.1067 of 2009, under Section - 306 IPC, Police Station - Tadiyawan, District - Hardoi thereby convicting the appellant for the offence under Section 306 IPC and sentencing him to undergo 07 Years' Rigorous Imprisonment with a fine of Rs.5,000/- and in default of payment of fine he has to undergo three months' additional imprisonment. The case of the prosecution, in nutshell, can be deduced from the

3. following facts :- (i) The marriage of the accused-appellant Manoj Kumar, S/ o Shrikrishna was solemnized with the deceased Seema Devi, daughter of the informant namely Shripal about 05 years before the date of incident i.e. on 11.10.2008. 2 CRLA No. - 1773 of 2012 (ii) An application under Section 156 (3) Cr.P.C. dated 20.11.2008 was preferred by the informant Shripal before the competent court of jurisdiction at Hardoi. In compliance of the order passed on the application (iii) under Section 156 (3) Cr.P.C. an F.I.R. was lodged and the same was registered as Case Crime No.1067/2009, under Sections 498-A, 304-B I.P.C. and Section 3/4 of the Dowry Prohibition Act, at Police Station-Tadiyawan, District-Hardoi on 22.12.2009 at 13.35 hours against Manoj, Shrikrishna and wife of Raja Ram. (iv) According to the application under Section 156(3) Cr.P.C./F.I.R. the deceased was ill treated by the accused- appellant and his family members on account of non fulfillment of demand of dowry and on 11.10.2008 one Lal Behari informed the son of the informant that deceased was seriously ill and on the same, day after receiving this information, the informant rushed to the matrimonial home of the deceased where he found the body of the deceased, wife of the accused-appellant. The F.I.R. also indicates that the applicant/informant (v) found injuries on the body of the deceased and bleeding from the nose. (vi) According to the informant/F.I.R., it was a case of murder by using force in neck i.e. throttling.

4. Indisputedly the deceased expired on 11.08.2008 and post mortem was carried out on 12.10.2008 at District Hospital, Hardoi and upon due examination of the body of the deceased, the cause of death could not be ascertained, therefore, Viscera was preserved and it was sent to Forensic Science Laboratory for chemical examination.

5. It is to be noted that during the pendency of the trial the Chemical Examination Report/expert opinion report was placed on record by the prosecution according to which the aluminium phosphide was found in the body of the deceased. To ascertain the veracity of the F.I.R., the Investigating Officer (in 6. short "I.O.") carried out the investigation and upon completion of the investigation, the I.O. submitted charge sheet for the offence under Sections 498-A, 306 I.P.C. Along with the charge sheet, the I.O. submitted the copy of the Written Report/Application (Ext.Ka-1), Chik F.I.R. (Ext.Ka-2), Copy of G.D. (Ext.Ka-4), Site Plan (Ext.Ka-5), Letter related to Superintendent, District Hospital (Ext.Ka-6), Letter of R.I. (Ext.Ka-7), Photo of the deceased (Ext.Ka-8), Challan of Body (Ext.Ka- 3 CRLA No. - 1773 of 2012 9), Seal (Ext.Ka-10), Inquest (Ext.Ka-11), Post Mortem Report (Ext.Ka- 12), F.S.L. Report (Ka-13).

7. Upon receiving the charge-sheet, the Additional Chief Judicial Magistrate, Court No.2, Hardoi took cognizance and committed the case to the Court of Session where it was registered as Session Trial No.498/2011 and charges were framed for the offence under Sections 498-A, 306 I.P.C. and alternative charge under Section 302 I.P.C. was also framed against the accused-appellant and co-accused Shrikrishna, which were denied by the accused and trial was claimed. To establish/prove its case, the prosecution examined statement of 8. informant Shripal (PW-1), Smt. Ram Devi (PW-2), Nand Lal (PW-3), and Anil Kumar (PW-4). 9. After closing the evidence of prosecution, statement of accused- appellant under section 313 Cr.P.C. was recorded by the trial court explaining the entire evidence and other circumstances, in which the appellant denied the prosecution story and the entire prosecution story was said to be wrong and concocted. The trial court after considering the evidence on record including 10. the statements of PW-1, PW-2, PW-3 and PW-4, main witnesses of the fact, who were declared hostile and also the opinion expressed in Viscera Report, according to which the deceased died on account of consuming the Aluminium Phosphide insecticide, acquitted the accused appellant for the offence 498-A and alternative charge under Section 302 I.P.C. However, the Trial Court convicted the appellant-Manoj Kumar and Shri Krishna for the offence under Section 306 I.P.C. The relevant portion of the judgment, under appeal, dated 23.11.2012 is extracted herein under :- “उपरो(cid:5)त त(cid:8)य(cid:10) से (cid:13)वतः (cid:13)प(cid:16)ट है (cid:20)(cid:21) मृत(cid:21)ा अपनी ससुराल म(cid:30) स(cid:31)फास खा(cid:21)र मरी है तथा अ$%यु(cid:5)तगण मनोज व )ी(cid:21)ृ(cid:16)ण (cid:21)ी घटना (cid:21)े समय उप,(cid:13)थ-त %ी है। मृत(cid:21)ा (cid:21)ी शादी उस(cid:21)ी मृ1यु से 5 व23 (cid:21)े अ4दर हुई है। अ$%यु(cid:5)तगण 6वारा जो मृत(cid:21)ा 6वारा जहर खाने (cid:21)ा (cid:21)ारण दशा3या गया है वह (cid:20)(cid:21)सी 7(cid:21)ार स8%व व (cid:13)वा%ा9व(cid:21) नहीं है। अ4य (cid:21)ोई प;र,(cid:13)थ-त य<द होती, तो वह अ$%यु(cid:5)तगण ही बता स(cid:21)ते थे और ऐसी ,(cid:13)थ-त म(cid:30) य<द (cid:21)ोई 9वशे2 त(cid:8)य उन(cid:21)ी जान(cid:21)ारी म(cid:30) था तो उसे सा@बत (cid:21)रने (cid:21)ा %ार धारा 106 %ारतीय साBय अCध-नयम (cid:21)े अनुसार अ$%यु(cid:5)तगण पर ही है, (cid:20)(cid:21)4तु उन(cid:21)ी ओर से (cid:21)ोई ऐसा साBय 7(cid:13)तुत नहीं (cid:20)(cid:21)या गया है। राजी खुशी अथवा 7स4नता म(cid:30) (cid:21)ोई Eय,(cid:5)त जहर खा(cid:21)र नहीं मरता। अतः यही 7तीत होता है (cid:20)(cid:21) मृत(cid:21)ा (cid:21)ो 7ताFGत (cid:20)(cid:21)या गया ,जस (cid:21)ारण उसने स(cid:31)फास खा(cid:21)र आ1मह1या (cid:21)र ली। साIीगण 6वारा दौरान 9ववेचना तो "बुरी -नयत" होने (cid:21)ा (cid:21)थन (cid:20)(cid:21)या गया, (cid:20)(cid:21)4तु 4यायालय (cid:21)े समI अ$%यु(cid:5)तगण से $मल(cid:21)र पILोही होने (cid:21)े (cid:21)ारण ऐसा (cid:21)ोई (cid:21)थन नहीं (cid:20)(cid:21)या गया है, (cid:20)(cid:21)4तु उपरो(cid:5)त त(cid:8)य तथा प;र,(cid:13)थ-तयां यही (cid:13)प(cid:16)ट (cid:21)रती हM (cid:20)(cid:21) अ$%यु(cid:5)तगण 6वारा परेशान (cid:21)रने (cid:21)े (cid:21)ारण ही मृत(cid:21)ा ने तंग आ(cid:21)र स(cid:31)फास खाया और अ1मह1या (cid:21)र ली। 4 CRLA No. - 1773 of 2012 अतः उपरो(cid:5)त 9ववेचना (cid:21)े आधार पर यही -न(cid:16)(cid:21)23 -न(cid:21)लता है अ$%योजन, अ$%यु(cid:5)तगण (cid:21)े 9वNO धारा 306 %ा०द०सं० (cid:21)ा आरोप सा@बत (cid:21)रने म(cid:30) सफल रहा है। धारा 498 ए %ा०द०स० तथा 9व(cid:21)(cid:31)प म(cid:30) धारा 302 %ा०द०स० (cid:21)ा (cid:21)ोई आरोप उपरो(cid:5)त प;र,(cid:13)थ-तय(cid:10) म(cid:30) अ$%यु(cid:5)तगण (cid:21)े 9वNO सा@बत नहीं होता है। त6नुसार अ$%यु(cid:5)तगण मनोज व )ी(cid:21)ृ(cid:16)ण (cid:21)ो धारा 306 %ा०द०सं० (cid:21)े तहत दो2ी पाया जाता है तथा धारा 498 ए %ा०द०स० व धारा 302 %ा०द०स० (cid:21)े तहत दो2मु(cid:5)त होने योRय हM। अ$%यु(cid:5)तगण मनोज व )ी(cid:21)ृ(cid:16)ण 4यायालय म(cid:30) हा,जर हM। उ4ह(cid:30) अ$%रIा म(cid:30) $लया जाये तथा उ4ह(cid:30) सजा (cid:21)े 7Sन पर सुना जायेगा।"

11. In the aforesaid background of the case, the counsel for the appellant has submitted that considering the facts of the case and the findings/observations recorded by the trial court for the purposes of convicting the appellant for the offence under Section 306 I.P.C. as also the spirit of Section 113-A and 113-B of Indian Evidence Act, 1872 and also that the appellant has already undergone about 25 months imprisonment and further that the incident is of 11.10.2008, he does not want to press the appeal on merits and he is confining his prayer only with regard to reducing of sentence to the period already undergone.

12. Learned counsel for the appellant submits that the accused- appellant has not been convicted previously for any offence and he is not impeaching the judgment and order of conviction and is confining his submission in the appeal only with respect to the order of sentence. It is for the reason that deceased, wife of the appellant and this aspect of the case was established by medical evidence and also that appellant has already spent about 25 months (02 years and 01 months). He was taken into custody on 01.02.2010 and was released on bail by the order of this Court dated 20.09.2011, passed in Bail Application No.6736 of 2010. Thereafter the Session Judge, Hardoi passed order dated 05.10.2011 for immediate release of the appellant. However, the appellant was not released from jail till 10.10.2011. He was released from jail in between 10.10.2011 and 22.10.2011. Therefore, during trial he remained in jail for 19 months. After conviction he was taken into custody on 23.11.2012 and was released on bail in terms of order of this Court dated 08.04.3013. The order dated 08.04.2013 is extracted herein under :- "(C.M.A. No. 112461 (B) of 2012) Heard learned counsel for the appellant/applicant, learned A.G.A. and perused the record. This appeal has been preferred against the impugned judgment and order dated 23.11.2012 passed by the Additional District & Session Judge, Court NO.8 Hardoi in Session Trial No. 498/11 Case Crime No. 1067 of 2009, Police Station- Tariyawan, District- Hardoi whereby he was convicted under Section 306 I.P.C. for seven years rigorous 5 CRLA No. - 1773 of 2012 imprisonment and a fine of Rs. 5,000/- failing which a further imprisonment of three months. The application has been moved on behalf of the appellant to enlarge him on bail during the pendency of the appeal. Learned counsel for the appellant submitted that all the witnesses of facts turned hostile and there is no evidence regarding the demand of dowry. All the four witnesses specifically stated that there is no demand of dowry. The appellant was on bail during the pendency of trial and he did not misuse the same. A request for bail was made. Learned A.G.A. opposed the bail application and contended that the deceased is the wife of the appellant and she died within five years of her marriage in her husband's house. The cause of death is poison. Considering the submissions made by both the parties and looking into the fact that the appellant was on bail during the pendency of the Trial and he did not misuse the same and all witnesses of facts turned hostile. I find it a fit case for bail. Let the appellant Manoj Kumar be released on bail in the aforesaid case crime number during the pendency of the appeal on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned on his depositing half of the amount of fine. Remaining half of the amount of fine shall remain stayed during the pendency of the appeal. The application stands disposed of accordingly." It is also stated that in the case of Paranagouda and another Vs. 13. State of Karnataka and another, 2023 SCC OnLine SC 1369, the conviction was modified by acquitting the appellants therein for the offence under Section 304-B I.P.C. and Section 3 and 4 of the D.P. Act and convicting them for the offence under Section 306 and 498A read with Section 34 IPC and sentencing them to imprisonment for the period already undergone with fine of Rs.5,000/- each. The relevant paragraphs 37 and 38 of the judgment are extracted hereunder:- "37. In the aforesaid background and the evidence on record as already noticed by us hereinabove, it can be safely noted that High Court ought to have examined as to whether accused could have been convicted for an offence for which no charge was framed and not undertaking of such an exercise would result in failure of justice? Thus, it will have to be seen from the facts unfolded in the present case as to whether the accused was aware of the basic ingredients of the offence for which they are being tried and whether the main facts sought to be established against them were explained to them clearly and whether they got a fair chance to defend themselves. If the answer is in the affirmative, then necessarily this Court will have to proceed further and examine as to whether accused can be convicted for the offence not charged and if the answer is in the negative it would result in acquittal of the accused for said offence. In the instant case the dying declaration of the deceased would clearly indicate that deceased 6 CRLA No. - 1773 of 2012 was mentally traumatized and she was unable to tolerate the torture and harassment meted out by the accused person on account of which she committed suicide. It is this taunting or mental torture which she could not withstand and forced her to commit suicide by self- immolation. In that view of the matter, we are of the considered opinion that accused persons are liable to be convicted for the offence punishable under Section 306 IPC though charge was not framed. The accused (appellant Nos.1 and 2) are now aged about 66 and 61 years respectively. They have already spent one year, one month and 27 days in prison. They do not have any past history of criminal record. Hence, a lenient view has to be taken while imposing the sentence.

38. For the reasons afore-stated the appeal is allowed in part. The judgment and order of conviction passed by the Sessions Court in SC No.35 of 2011 dated 14.09.2012 as affirmed in Criminal Appeal No.2847 of 2012 by judgment dated 20.07.2022 is hereby modified. The appellants are acquitted for the offences punishable under Section 304B IPC and Section 3 and 4 of Dowry Prohibition Act and convicted for the offence punishable under Section 306 and Section 498A read with Section 34 IPC and sentenced to imprisonment for the period already undergone with fine of Rs.5000/- each and in default to pay the fine to undergo one month simple imprisonment for each of the offence."

14. Learned A.G.A. Shri Badrul Hasan on the other hand opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused-appellant has been rightly convicted.

15. Considered the aforesaid and perused the record.

16. That it is noteworthy that the incident took place way back in the year 2008. The accused-appellant has suffered in the matter for the past about 17 years and there is no any criminal antecedent of him during these years, as stated and which has not been refuted.

17. Considering the aforesaid and also the facts and evidence on record including the testimonies of witnesses of fact, medical and expert opinion, which indicates that deceased committed suicide, and also the relevant provisions of law and settled proposition on the issue and also the period lapsed from the date of incident i.e. about 17 years as also the punishment/sentence awarded to the accused-appellant under Section 306 IPC, which is justified, I am of the view that lenient view has to be taken with regard to sentence of the appellant. For the reasons afore-stated, the appeal is allowed in part. The 18. judgment and order of conviction dated order 23.11.2012, passed by the Additional District and Session Judge, Court No.8, Hardoi in Session Trail No.498 of 2011, arising out of Case Crime No.1067 of 2009, under 7 CRLA No. - 1773 of 2012 Section- 306 IPC, Police Station - Tadiyawan, District - Hardoi is hereby modified. The appellant is sentenced for the period already undergone i.e. 25 months, with a fine of Rs.20,000/- and in default in payment of fine, to undergo one month's simple imprisonment. The accused-appellant shall deposit the fine within three months

19. from today, if already not deposited. In case of breach of the above condition, the appellant shall be

20. taken into custody and shall have to undergo sentence awarded to him. The appellant is stated to be on bail, his personal bond is cancelled

21. and sureties are discharged.

22. Let a copy of this judgment and the Trial Court Record be sent forthwith to the Trial Court concerned for compliance. (Saurabh Lavania,J.) December 12, 2025 ML/- MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri Vineet Kumar Mishra, learned counsel for the appellant, Shri Badrul Hasan, learned A.G.A.-I for the State and perused the record.

2. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has been filed by the appellant namely Manoj Kumar S/o Shri Krishna impeaching the judgment and order 23.11.2012, passed by the Additional District and Session Judge, Court No.8, Hardoi (in short "Trial Court") in Session No.498/2011, arising out of Case Crime No.1067 of 2009, under Section - 306 IPC, Police Station - Tadiyawan, District - Hardoi thereby convicting the appellant for the offence under Section 306 IPC and sentencing him to undergo 07 Years' Rigorous Imprisonment with a fine of Rs.5,000/- and in default of payment of fine he has to undergo three months' additional imprisonment. The case of the prosecution, in nutshell, can be deduced from the

3. following facts :- (i) The marriage of the accused-appellant Manoj Kumar, S/ o Shrikrishna was solemnized with the deceased Seema Devi, daughter of the informant namely Shripal about 05 years before the date of incident i.e. on 11.10.2008. 2 CRLA No. - 1773 of 2012 (ii) An application under Section 156 (3) Cr.P.C. dated 20.11.2008 was preferred by the informant Shripal before the competent court of jurisdiction at Hardoi. In compliance of the order passed on the application (iii) under Section 156 (3) Cr.P.C. an F.I.R. was lodged and the same was registered as Case Crime No.1067/2009, under Sections 498-A, 304-B I.P.C. and Section 3/4 of the Dowry Prohibition Act, at Police Station-Tadiyawan, District-Hardoi on 22.12.2009 at 13.35 hours against Manoj, Shrikrishna and wife of Raja Ram. (iv) According to the application under Section 156(3) Cr.P.C./F.I.R. the deceased was ill treated by the accused- appellant and his family members on account of non fulfillment of demand of dowry and on 11.10.2008 one Lal Behari informed the son of the informant that deceased was seriously ill and on the same, day after receiving this information, the informant rushed to the matrimonial home of the deceased where he found the body of the deceased, wife of the accused-appellant. The F.I.R. also indicates that the applicant/informant (v) found injuries on the body of the deceased and bleeding from the nose. (vi) According to the informant/F.I.R., it was a case of murder by using force in neck i.e. throttling.

4. Indisputedly the deceased expired on 11.08.2008 and post mortem was carried out on 12.10.2008 at District Hospital, Hardoi and upon due examination of the body of the deceased, the cause of death could not be ascertained, therefore, Viscera was preserved and it was sent to Forensic Science Laboratory for chemical examination.

5. It is to be noted that during the pendency of the trial the Chemical Examination Report/expert opinion report was placed on record by the prosecution according to which the aluminium phosphide was found in the body of the deceased. To ascertain the veracity of the F.I.R., the Investigating Officer (in 6. short "I.O.") carried out the investigation and upon completion of the investigation, the I.O. submitted charge sheet for the offence under Sections 498-A, 306 I.P.C. Along with the charge sheet, the I.O. submitted the copy of the Written Report/Application (Ext.Ka-1), Chik F.I.R. (Ext.Ka-2), Copy of G.D. (Ext.Ka-4), Site Plan (Ext.Ka-5), Letter related to Superintendent, District Hospital (Ext.Ka-6), Letter of R.I. (Ext.Ka-7), Photo of the deceased (Ext.Ka-8), Challan of Body (Ext.Ka- 3 CRLA No. - 1773 of 2012 9), Seal (Ext.Ka-10), Inquest (Ext.Ka-11), Post Mortem Report (Ext.Ka- 12), F.S.L. Report (Ka-13).

7. Upon receiving the charge-sheet, the Additional Chief Judicial Magistrate, Court No.2, Hardoi took cognizance and committed the case to the Court of Session where it was registered as Session Trial No.498/2011 and charges were framed for the offence under Sections 498-A, 306 I.P.C. and alternative charge under Section 302 I.P.C. was also framed against the accused-appellant and co-accused Shrikrishna, which were denied by the accused and trial was claimed. To establish/prove its case, the prosecution examined statement of 8. informant Shripal (PW-1), Smt. Ram Devi (PW-2), Nand Lal (PW-3), and Anil Kumar (PW-4). 9. After closing the evidence of prosecution, statement of accused- appellant under section 313 Cr.P.C. was recorded by the trial court explaining the entire evidence and other circumstances, in which the appellant denied the prosecution story and the entire prosecution story was said to be wrong and concocted. The trial court after considering the evidence on record including 10. the statements of PW-1, PW-2, PW-3 and PW-4, main witnesses of the fact, who were declared hostile and also the opinion expressed in Viscera Report, according to which the deceased died on account of consuming the Aluminium Phosphide insecticide, acquitted the accused appellant for the offence 498-A and alternative charge under Section 302 I.P.C. However, the Trial Court convicted the appellant-Manoj Kumar and Shri Krishna for the offence under Section 306 I.P.C. The relevant portion of the judgment, under appeal, dated 23.11.2012 is extracted herein under :- “उपरो(cid:5)त त(cid:8)य(cid:10) से (cid:13)वतः (cid:13)प(cid:16)ट है (cid:20)(cid:21) मृत(cid:21)ा अपनी ससुराल म(cid:30) स(cid:31)फास खा(cid:21)र मरी है तथा अ$%यु(cid:5)तगण मनोज व )ी(cid:21)ृ(cid:16)ण (cid:21)ी घटना (cid:21)े समय उप,(cid:13)थ-त %ी है। मृत(cid:21)ा (cid:21)ी शादी उस(cid:21)ी मृ1यु से 5 व23 (cid:21)े अ4दर हुई है। अ$%यु(cid:5)तगण 6वारा जो मृत(cid:21)ा 6वारा जहर खाने (cid:21)ा (cid:21)ारण दशा3या गया है वह (cid:20)(cid:21)सी 7(cid:21)ार स8%व व (cid:13)वा%ा9व(cid:21) नहीं है। अ4य (cid:21)ोई प;र,(cid:13)थ-त य<द होती, तो वह अ$%यु(cid:5)तगण ही बता स(cid:21)ते थे और ऐसी ,(cid:13)थ-त म(cid:30) य<द (cid:21)ोई 9वशे2 त(cid:8)य उन(cid:21)ी जान(cid:21)ारी म(cid:30) था तो उसे सा@बत (cid:21)रने (cid:21)ा %ार धारा 106 %ारतीय साBय अCध-नयम (cid:21)े अनुसार अ$%यु(cid:5)तगण पर ही है, (cid:20)(cid:21)4तु उन(cid:21)ी ओर से (cid:21)ोई ऐसा साBय 7(cid:13)तुत नहीं (cid:20)(cid:21)या गया है। राजी खुशी अथवा 7स4नता म(cid:30) (cid:21)ोई Eय,(cid:5)त जहर खा(cid:21)र नहीं मरता। अतः यही 7तीत होता है (cid:20)(cid:21) मृत(cid:21)ा (cid:21)ो 7ताFGत (cid:20)(cid:21)या गया ,जस (cid:21)ारण उसने स(cid:31)फास खा(cid:21)र आ1मह1या (cid:21)र ली। साIीगण 6वारा दौरान 9ववेचना तो "बुरी -नयत" होने (cid:21)ा (cid:21)थन (cid:20)(cid:21)या गया, (cid:20)(cid:21)4तु 4यायालय (cid:21)े समI अ$%यु(cid:5)तगण से $मल(cid:21)र पILोही होने (cid:21)े (cid:21)ारण ऐसा (cid:21)ोई (cid:21)थन नहीं (cid:20)(cid:21)या गया है, (cid:20)(cid:21)4तु उपरो(cid:5)त त(cid:8)य तथा प;र,(cid:13)थ-तयां यही (cid:13)प(cid:16)ट (cid:21)रती हM (cid:20)(cid:21) अ$%यु(cid:5)तगण 6वारा परेशान (cid:21)रने (cid:21)े (cid:21)ारण ही मृत(cid:21)ा ने तंग आ(cid:21)र स(cid:31)फास खाया और अ1मह1या (cid:21)र ली। 4 CRLA No. - 1773 of 2012 अतः उपरो(cid:5)त 9ववेचना (cid:21)े आधार पर यही -न(cid:16)(cid:21)23 -न(cid:21)लता है अ$%योजन, अ$%यु(cid:5)तगण (cid:21)े 9वNO धारा 306 %ा०द०सं० (cid:21)ा आरोप सा@बत (cid:21)रने म(cid:30) सफल रहा है। धारा 498 ए %ा०द०स० तथा 9व(cid:21)(cid:31)प म(cid:30) धारा 302 %ा०द०स० (cid:21)ा (cid:21)ोई आरोप उपरो(cid:5)त प;र,(cid:13)थ-तय(cid:10) म(cid:30) अ$%यु(cid:5)तगण (cid:21)े 9वNO सा@बत नहीं होता है। त6नुसार अ$%यु(cid:5)तगण मनोज व )ी(cid:21)ृ(cid:16)ण (cid:21)ो धारा 306 %ा०द०सं० (cid:21)े तहत दो2ी पाया जाता है तथा धारा 498 ए %ा०द०स० व धारा 302 %ा०द०स० (cid:21)े तहत दो2मु(cid:5)त होने योRय हM। अ$%यु(cid:5)तगण मनोज व )ी(cid:21)ृ(cid:16)ण 4यायालय म(cid:30) हा,जर हM। उ4ह(cid:30) अ$%रIा म(cid:30) $लया जाये तथा उ4ह(cid:30) सजा (cid:21)े 7Sन पर सुना जायेगा।"

11. In the aforesaid background of the case, the counsel for the appellant has submitted that considering the facts of the case and the findings/observations recorded by the trial court for the purposes of convicting the appellant for the offence under Section 306 I.P.C. as also the spirit of Section 113-A and 113-B of Indian Evidence Act, 1872 and also that the appellant has already undergone about 25 months imprisonment and further that the incident is of 11.10.2008, he does not want to press the appeal on merits and he is confining his prayer only with regard to reducing of sentence to the period already undergone.

12. Learned counsel for the appellant submits that the accused- appellant has not been convicted previously for any offence and he is not impeaching the judgment and order of conviction and is confining his submission in the appeal only with respect to the order of sentence. It is for the reason that deceased, wife of the appellant and this aspect of the case was established by medical evidence and also that appellant has already spent about 25 months (02 years and 01 months). He was taken into custody on 01.02.2010 and was released on bail by the order of this Court dated 20.09.2011, passed in Bail Application No.6736 of 2010. Thereafter the Session Judge, Hardoi passed order dated 05.10.2011 for immediate release of the appellant. However, the appellant was not released from jail till 10.10.2011. He was released from jail in between 10.10.2011 and 22.10.2011. Therefore, during trial he remained in jail for 19 months. After conviction he was taken into custody on 23.11.2012 and was released on bail in terms of order of this Court dated 08.04.3013. The order dated 08.04.2013 is extracted herein under :- "(C.M.A. No. 112461 (B) of 2012) Heard learned counsel for the appellant/applicant, learned A.G.A. and perused the record. This appeal has been preferred against the impugned judgment and order dated 23.11.2012 passed by the Additional District & Session Judge, Court NO.8 Hardoi in Session Trial No. 498/11 Case Crime No. 1067 of 2009, Police Station- Tariyawan, District- Hardoi whereby he was convicted under Section 306 I.P.C. for seven years rigorous 5 CRLA No. - 1773 of 2012 imprisonment and a fine of Rs. 5,000/- failing which a further imprisonment of three months. The application has been moved on behalf of the appellant to enlarge him on bail during the pendency of the appeal. Learned counsel for the appellant submitted that all the witnesses of facts turned hostile and there is no evidence regarding the demand of dowry. All the four witnesses specifically stated that there is no demand of dowry. The appellant was on bail during the pendency of trial and he did not misuse the same. A request for bail was made. Learned A.G.A. opposed the bail application and contended that the deceased is the wife of the appellant and she died within five years of her marriage in her husband's house. The cause of death is poison. Considering the submissions made by both the parties and looking into the fact that the appellant was on bail during the pendency of the Trial and he did not misuse the same and all witnesses of facts turned hostile. I find it a fit case for bail. Let the appellant Manoj Kumar be released on bail in the aforesaid case crime number during the pendency of the appeal on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned on his depositing half of the amount of fine. Remaining half of the amount of fine shall remain stayed during the pendency of the appeal. The application stands disposed of accordingly." It is also stated that in the case of Paranagouda and another Vs. 13. State of Karnataka and another, 2023 SCC OnLine SC 1369, the conviction was modified by acquitting the appellants therein for the offence under Section 304-B I.P.C. and Section 3 and 4 of the D.P. Act and convicting them for the offence under Section 306 and 498A read with Section 34 IPC and sentencing them to imprisonment for the period already undergone with fine of Rs.5,000/- each. The relevant paragraphs 37 and 38 of the judgment are extracted hereunder:- "37. In the aforesaid background and the evidence on record as already noticed by us hereinabove, it can be safely noted that High Court ought to have examined as to whether accused could have been convicted for an offence for which no charge was framed and not undertaking of such an exercise would result in failure of justice? Thus, it will have to be seen from the facts unfolded in the present case as to whether the accused was aware of the basic ingredients of the offence for which they are being tried and whether the main facts sought to be established against them were explained to them clearly and whether they got a fair chance to defend themselves. If the answer is in the affirmative, then necessarily this Court will have to proceed further and examine as to whether accused can be convicted for the offence not charged and if the answer is in the negative it would result in acquittal of the accused for said offence. In the instant case the dying declaration of the deceased would clearly indicate that deceased 6 CRLA No. - 1773 of 2012 was mentally traumatized and she was unable to tolerate the torture and harassment meted out by the accused person on account of which she committed suicide. It is this taunting or mental torture which she could not withstand and forced her to commit suicide by self- immolation. In that view of the matter, we are of the considered opinion that accused persons are liable to be convicted for the offence punishable under Section 306 IPC though charge was not framed. The accused (appellant Nos.1 and 2) are now aged about 66 and 61 years respectively. They have already spent one year, one month and 27 days in prison. They do not have any past history of criminal record. Hence, a lenient view has to be taken while imposing the sentence.

38. For the reasons afore-stated the appeal is allowed in part. The judgment and order of conviction passed by the Sessions Court in SC No.35 of 2011 dated 14.09.2012 as affirmed in Criminal Appeal No.2847 of 2012 by judgment dated 20.07.2022 is hereby modified. The appellants are acquitted for the offences punishable under Section 304B IPC and Section 3 and 4 of Dowry Prohibition Act and convicted for the offence punishable under Section 306 and Section 498A read with Section 34 IPC and sentenced to imprisonment for the period already undergone with fine of Rs.5000/- each and in default to pay the fine to undergo one month simple imprisonment for each of the offence."

14. Learned A.G.A. Shri Badrul Hasan on the other hand opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused-appellant has been rightly convicted.

15. Considered the aforesaid and perused the record.

16. That it is noteworthy that the incident took place way back in the year 2008. The accused-appellant has suffered in the matter for the past about 17 years and there is no any criminal antecedent of him during these years, as stated and which has not been refuted.

17. Considering the aforesaid and also the facts and evidence on record including the testimonies of witnesses of fact, medical and expert opinion, which indicates that deceased committed suicide, and also the relevant provisions of law and settled proposition on the issue and also the period lapsed from the date of incident i.e. about 17 years as also the punishment/sentence awarded to the accused-appellant under Section 306 IPC, which is justified, I am of the view that lenient view has to be taken with regard to sentence of the appellant. For the reasons afore-stated, the appeal is allowed in part. The 18. judgment and order of conviction dated order 23.11.2012, passed by the Additional District and Session Judge, Court No.8, Hardoi in Session Trail No.498 of 2011, arising out of Case Crime No.1067 of 2009, under 7 CRLA No. - 1773 of 2012 Section- 306 IPC, Police Station - Tadiyawan, District - Hardoi is hereby modified. The appellant is sentenced for the period already undergone i.e. 25 months, with a fine of Rs.20,000/- and in default in payment of fine, to undergo one month's simple imprisonment. The accused-appellant shall deposit the fine within three months

19. from today, if already not deposited. In case of breach of the above condition, the appellant shall be

20. taken into custody and shall have to undergo sentence awarded to him. The appellant is stated to be on bail, his personal bond is cancelled

21. and sureties are discharged.

22. Let a copy of this judgment and the Trial Court Record be sent forthwith to the Trial Court concerned for compliance. (Saurabh Lavania,J.) December 12, 2025 ML/- MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench