- (1.) NAHEED Ara Moonis, J. The instant appeal has been filed by the appellant Nisar against his conviction vide order dated 25.2.2005 passed by the Additional Sessions Judge, Court No. 5, Kanpur Dehat in S.T. No. 263 of 2003 whereby the appellant has been convicted under Section 498-A I.P.C. for one year and six months imprisonment and a fine of Rs. 5,000/- and in default of payment of fine four months further imprisonment, under Section 304-B I.P.C. for ten years rigorous imprisonment and under Section 3/4 of D.P. Act for one year imprisonment and a fine of Rs. 10,000/- and in default of payment of fine four months further imprisonment has been awarded.
(2.) THE prosecution case in nutshell is that a first information report was lodged by Ahmad Ali (P.W.4) on 13.4.2002 at 12.30 P.M. who was the uncle of the deceased in respect of the occurrence of the same day by stating that the appellant was married to his niece one year ten months before from the date of incident and at the time of marriage sufficient dowry was given by her brother but soon after the marriage her in-laws started nagging and torturing her for demanding more dowry. They were not satisfied even when the complainant brother has told them about their inability to fulfil their demand. On account of non-fulfilment of demand of dowry his niece was set on fire by her in-laws, Shafiq son of Sultan and Shafi alias Lale Khan. The complainant when received this information he reached there it was disclosed by his niece about the incident and thereafter he went to lodge the first information report. The case was registered as case Crime No. 173 of 2002, under Section 498-A I.P.C. and Section 3/4 Dowry Prohibition Act. After registration of the first information report the investigation was handed over to Anupam Sharma, S.I. (P.W.7). After the death of victim Rijwana in hospital on 15.4.2002 at 11.10 A.M. offence under Section 304-B I.P.C. was added and the same was entered in the general diary on 17.4.2002. During investigation from the spot a plastic can of kerosene oil and lighted match sticks were recovered Ex. Ka.5. The statement of the witnesses were recorded and site plan was also prepared and after conducting thorough investigation the charge sheet was submitted against accused/appellant Nisar, Safique and Shafi alias Lale Khan. Thereafter the case was committed to the court of sessions and the charges were framed against them on 12.8.2002 under Section 498-A, 304-B I.P.C. and Section 3/4 D.P. Act. All the accused pleaded not guilty and claimed to be tried. In order to prove its case the prosecution examined three witnesses of fact, P.W.2 Ashraf Ali who is the brother of the deceased, P.W.3 Idrish Khan, brother-in-law of the deceased who was the witness of the recovery memo prepared by the Investigating Officer and P.W.4 Ahmad Ali who is the complainant and uncle of the deceased. The prosecution has also examined formal witnesses Ashok Kumar, P.W. 1 who had proved the check first information report Exhibit Ka.1, Dr. U.K. Srivastava as P.W.5 who had conducted the post mortem on 16.4.2002 at 11.30 A.M. and proved the post mortem report of the deceased Exhibit Ka.5, J.P. Tiwari, S.I. was examined as P.W.6 who is the second Investigating Officer and had recorded the statements of the witnesses and inspected the place of occurrence and had submitted the charge sheet Exhibit Ka.8, Anupam Sharma was examined as P.W.7 who was the first Investigating Officer who after lodging of the first information report had recorded the statement of the witnesses and also the statement of the deceased under Section 161 Cr.P.C. in the hospital and prepared the site plan, Ex. Ka. 9. and arrested the accused/appellant Nisar and Shafique and prepared their arrest memo, P.W.8 Mohan Singh in whose presence the dying declaration of the deceased was recorded who has proved the same, which is Ex. Ka. 10. The statement of the accused/appellant and other accused persons were also recorded under Section 313 Cr.P.C. where they denied their involvement and have stated that they have been implicated due to enmity. The accused/appellant has stated that on the day of occurrence he was lying up stairs and his wife and other persons were on the ground floor. The wife had received injuries on account of fall of kerosene lamp, which was burning. He had taken her to community health centre for medical treatment. The co-accused Shafi in his statement recorded under Section 313 Cr.P.C. has stated that 7/8 months prior to the marriage of Nisar he was residing separately on the day of occurrence he had gone to his sister's house. Safique has also denied his involvement in the incident and has contended that he had also gone to his sister's house and after his return from there he heard that the deceased died due to burn injuries. The sister of the appellant was produced as defence witness and was examined as D.W.1 and Ram Singh as D.W. 2 who resides adjacent to the house of the appellant. The learned trial court after going through the entire evidence on record did not find the complicity of the co-accused Safique and Safi and hence they were acquitted while the appellant was convicted as stated above.
(3.) HEARD the learned counsel for the appellant and the learned A.G.A. on behalf of the State.;