N.L.Ganguly, J. - (1.) APPELLANT Sushll Kumar Upadhyaya has been convicted under Section 302,I.P.C. by the Sessions Judge, Ballia in S. T. No. 78 of 1984. The prosecution case is that Smt. Mamta, who was the daughter of Srikant Tewari was married on 9.5.83. It is said that in this marriage, a demand for dowry for Rs. 10,000 cash, watch, electric fan, winter suit, scooter and two-in-one radio-cum- tape recorder were made by the appellant Sushil Kumar Upadhyaya. The father of the deceased Smt. Mamta was not able to give scooter, two-in-one radio-cum- tape recorder and winter suit. For want of dowry, the accused was dissatisfied and was very angry since the time of bidai of his wife. He had threatened Sri Kant Tewari, his father-in-law that if the aforesaid articles were not supplied to him, the result would be very bad. After the marriage, the appellant Sushil Kumar Upadhyaya and deceased Smt. Mamta resided in one room of a house in Mohalla Harpur in the City of Ballia. Witnesses Anand Swarup Chaturvedi (P.W. 3), Kamakhya Narain Singh (P.W. 5) and one Arvind also used to reside in separate room of that house. The witnesses have stated that after the marriage, the appellant used to torture his wife and used to say that if the articles were not supplied, it would not be good for her. The deceased Smt. Mamta had informed these things to her father. Mamta had returned to her father's place in November, 1983 and after hearing the torture and demands of the appellant, he was not ready to send her to the house of the appellant. However, on intervention of Shanker Singh (P.W. 6) and Sher Singh (P.W. 4), Mamta was sent with the accused. A letter was sent by the accused to the lady which has been proved as Ext. Ka-1.
(2.) IN between the night of 22nd and 23rd of December, 1983, Smt. Mamta was burnt by the appellant by pouring kerosene oil. She had received 70% burn in the lower part of the body. After this burning, the residents of the house assembled. The residents of the house where the deceased lived with her husband appellant, persuaded the appellant to take Smt. Mamta to the hospital and the appellant took her to the hospital at Ballia with reluctance. IN the District Hospital of Ballia, Smt. Mamta was examined by Dr. Kailash Singh, M.O. at 11 p.m. on 22.12.1983. She had found third decree burn on whole of front and back of abdomen, pelivic region both leg front and back both arms underhung skin. Skin was red in colour. The doctor found that the injury was fresh and produced by dry heat. The injuries were entered in the Accident Register. The true copy of the extract of the register has been proved by the witness. Dr. Kailash Singh P.W. 8 which has been marked as Ext. Ka-24. He had prepared a reference slip for referring the injury to Sir Sunder Lal Hospital, B.H.U., Varanasi. This reference was made at 2.45 p.m. on 23.12.1983. P.W. 2 Srikant Tewari, father of the deceased Smt. Mamta was not informed by the appellant. He had come to know about the burning of his daughter at about 7 a.m. the next day. Srikant Tewari P.W. 2 went to the hospital at Ballia. The appellant did not inform him about the cause of the burning of Smt. Mamta. He gave evasive reply on query and told that Smt. Mamta will tell the cause after she has been cured. It has also come in evidence that one Dr. Vijai Kumar Shukla, M.O. in the District Hospital. Ballia is maternal uncle of the appellant. It has also been stated in the evidence that appellant used to remain with Smt. Mamta in the hospital and has not taken any interest in the treatment of the deceased. It is said that the appellant had threatened Smt. Mamta that if she will state any fact against him then, he will get an injection of poison administered to her and she will die. After referring the patient to Sir Sunder Lai Hospital. B.H.U., Varanasi. Srikant Tewari (P.W. 2), father of the deceased and appellant went there at Varanasi. Nand Kishore, brother-in-law of Srikant Tewari lived in B.H.U. compound who used to come to the hospital to see Smt. Mamta. The appellant went away on 2.1.1984. Then Smt. Mamta told Nand Kishore (P.W. 2) and Srikant Tewari that the accused had sprinkled kerosene oil on her and burnt her. She had told that she was not burnt accidentally. She also informed Srikant Tewari that the appellant had threatened her not to state any fact. When Srikant Tewari (P.W. 2) came to know about this fact, he moved an application Ext. Ka-8 to the. Dy. Inspector General of Police, Varanasi Range, Varanasi. On the basis of the application of Srikant Tewari (P.W. 2), one Smt. Sunita Chaturvedi S.D.M. (P.W. 11) was deputed to record the dying declaration of Smt. Sunita. She recorded the statement of Mamta on 3.1.1984 which has been proved by her and marked as Ext. Ka-22. Smt. Mamta died on 4.1.1984. A report about the death was received by the P.S. Lanka. Varanasi. Thereafter, P.W. 12 Surendra Pratap Singh, Sub- Inspector went to the S. S. L. Hospital, B.H.U., Varanasi and he appointed punches, inspected the deadbody and prepared panchayatnama which was proved and marked as Ext Ka-2. He prepared the other papers for post-mortem examination and handed over the deadbody to Sheo Dutt Pandey and Kamaldeo Singh for taking the dead body to the mortuary for post-mortem. Dr. S. K Pandey, Medical Officer, (P.W. 15) conducted the post-mortem on the deadbody of Mamta on 4.1.1984 at 3.45 p.m. The doctor found that the whole body except bottom of legs of Smt. Mamta was burnt to third decree. The Doctor opined that the deceased had died as a result of septicaemia. The postmortem report has been proved by the doctor S. K. Pandey (P.W. 15) and marked as Ext. Ka-45.
(3.) THE F.I.R. of the case was lodged by Srikant Tewari on 5.1.1984 at 4.15 p.m. at P.S. Kotwali, Sadar, Ballia naming the appellant as the person who burnt Smt. Mamta. THE case was actually registered at the police station on 13.1.1984. In the case charges under Section 302,I.P.C. was framed by the Sessions Judge. THE appellant had pleaded not guilty and had claimed to be tried. In support of the case, the prosecution examined P.W. 1 Abdil Sadir who stated that his house is near the house of Srikant Tewari. The marriage of daughter of Srikant Tewari was performed with the appellant. At the time of bidai from the house of Srikant Tewari, one Rai Saheb and other baraties were there. Sher Singh was also present. The people of the mohalla were present at the time. Appellant Sushil Kumar Upadhyaya at the time of bidai was highly displeased and was saying that he want a scooter and a tape-recorder. The appellant had also said that if these things are not given, result would not be good. This witness stated about the demand of scooter and tape-recorder and the displeasure of the appellant. His evidence is confined to the aforesaid fact. P.W. 2 Srikant Tewari is the father of the deceased, who has stated the fact about the marriage with the appellant. He also stated that whenever he visited to see his daughter at the house of appellant in Mohalla Harpur, the deceased used to tell him that her husband is not pleased and he troubled her. She had requested Srikant Tewari to arrange for the items demanded. Once deceased come to his house with appellant Sushil Kumar Upadhyaya, there also Sushil Kumar Upadhyaya appellant also asked about the demand of dowry. Sushil Kumar Upadhyaya has said to the deceased that get the demands fulfilled otherwise it would not be good. Sushil Kumar Upadhyaya appellant had left for his house. Sushil Kumar Upadhyaya appellant has sent a letter which has been proved as Ext. Ka-1 on record. The letter Ext. Ka-1 was put to the appellant in statement under Section 313. Cr. P.C. He has denied his signature or writing on the said letter. P.W. 13 Chandrahas Shukla, Dy. Jail, Superintendent, Ballia. He stated in Para 13 of the statement that a letter was given by Srikant Tewari P.W. 2. He stated that he had submitted an application to the Magistrate for obtaining the specimen signature for getting the Handwriting Expert opinion about the signature and writing of the letter Ext. Ka-1. The appellant had denied to give his signature or specimen handwriting. The application given by P.W. 13 Chandrahas Shukla for specimen signature and Handwriting Expert opinion was rejected by the Magistrate. The order of the rejection of the said application has been proved as Ext. Ka-36. It has not been proved by any direct evidence that the letter Ext. Ka-1 was written by the appellant Sushil Kumar Upadhyaya. We have perused the letter Ext. Ka-1. The list of the letter shows that in this letter, nothing was written demanding scooter or two-in-one tape-recorder. This referred to the incident which had happened the earlier day. It has been said that now the episode that has happened has created a very serious affect in his mind and the episode has made a permanent scratch in his heart and will continue throughout his life. It has also been said that perhaps now it will not be possible to live happily. Besides several other things, it has been mentioned that she may pardon her and live separately so that the rest of the life both may live separately. She was free to do whatever she likes and live at distance. He also stated that perhaps her parents have known the weakness that he could not live without her but now nothing could be said. In the end he said that forget him. Destroy the letter. He had also said that if he do not forget he will have to repent whole of the life. He regretted that he is not in a position to restore happiness to her. The careful perusal of this letter, though not proved in the handwriting of the accused appellant, shows that it was not a letter of demand of scooter and tape-recorder but indicated that something had happened which had broken his heart and he even stated that he may finish his life also, have said that she was free to live in a way she likes and perhaps she was not in a position to fulfil her desire. This letter cannot be taken as a ground for recording conviction for murder.;