Vinod Prasad, J. - (1.) APPELLANT Salim, husband of deceased Salma alias Mallu has questioned the legality and sustainability of his conviction under Section 302, I.P.C. and sentence of life imprisonment thereunder recorded by Special Judge (Anti Corruption), Gorakhpur in S.T. No. 361 of 1995, State v. Salim, under Section 307/302, I.P.C., P. S. Kotwali, district Gorakhpur.
(2.) IN bird eye view, prosecution allegations against the appellant were that the appellant, a resident of Humayunpur South, P. S. Kotwali, district Gorakhpur had contracted marriage with Salma alias Mallu (deceased), a resident of House No. 5/E, Kauwa Bag, Railway Colony, near about twelve years prior to the date of the incident and the couple were blessed with three children. One and half to two years prior to the date of incident, appellant had deserted Salma alias Mallu to live with another lady but subsequently one and half months prior to the date of the incident, appellant again started living with Salma alias Mallu in her parental house in mohalla Kauwa Bag, police station Kotwali, district Gorakhpur. On the fateful day, 23.6.1995, appellant brought Salma alias Mallu to his uncle's house in mohalla Humayunpur South and after sending his cousin sister Safi Kunnisa alias Soni away on the pretext of having a dialogue with his wife, he closed the door from inside and thereafter he levelled allegations of unchastity on Salma alias Mallu. Refuting of that unchastity allegations resulted in repeated assault on her by the appellant from a scissor lying near by, causing her as many as 11 injuries. Shrieks of the victim wife attracted P.W. 1 Safi Kunnisa alias Soni, Sabbir P.W. 2, Ramzan Ali (informant) P.W. 3 and many others at the spot. Injured Salma alias Mallu was immediately rushed to the hospital where Dr. S. K. Pathak examined her and prepared her injury report. She was also got X-rayed by Dr. U. K. Rao, P.W. 8 on 24.6.1995. Injured wife however lost her life on 8.7.1995 at 6.50 p.m. in the hospital. Informant Ramzan Ali, P.W. 3, had scribed the F.I.R. of the incident and after covering a distance of 2 kilometers had lodged it at police station Kotwali, district Gorakhpur on the day of the incident itself at 12.30 p.m. in the noon as Crime No. 5241 of 1995, under Section 307, I.P.C.
(3.) HARINATH Tewari, P.W. 10, had commenced the investigation, took the statement of injured under Section 161, Cr. P.C., which by virtue of death of the deceased Salma alias Mallu, is now her dying declaration. Investigating Officer prepared the site plan, made spot inspection, arrested the accused and concluding the investigation laid a charge-sheet in the Court against the appellant under Section 302, I.P.C. The case of the appellant was committed to the court of Sessions and on 19.2.1996, trial Judge framed the charge under Section 302, I.P.C. against the appellant.;