IMPORTANT POINT
Where dying declaration is doubtful, motive of crime is not established and injury report is not proved and the defence case that there was occidental death due to fire while cooking food is probable, the order of conviction and sentence recorded by trial court under section 302 I.P.C. cannot be sustained.

JUDGMENT

S.I. Jafri, J. -Bachcha Lal resident of village Mehnagar Police Station Mehnagar, District Azamgarh has preferred this appeal against his conviction under section 302

I.P.C. and sentence of death awarded to him by Sri S. L. Adarsh, ht Additional Sessions Judge; Azamgarh, by his judgment and order dated 31.10.1985 in Sessions Trial No. 51 of 1984.

1. 2. The prosecution alleges that this was a case of bride burning on account of nonfulfillment of the demand of a Motor cycle and a golden chain made by the appellant from his father-in-law Kedar Nath Seth. The defence asserted that this was a case of accidental fire which had caused burn-injuries to the deceased Smt. Durgawati while she was cooking food in the kitchen.

2. 3. Smt. Durgawati was married to the appellant about a year prior to the occurrence and she was residing in the house of her in laws in village Mehnagar Distt, Azamgarh. According to the prosecution case, about a month before the occurrence, Kanhiyalal

(P.W. 6), the brother of the deceased, bad visited the house of the appellant in village Mehnagar and it was at that time that his sister had requested him to arrange for a Motor cycle and a golden chain as demanded by her in-laws, otherwise, one day they would kill her. It was also alleged that eight or ten days prior to the occurrence, the appellant

himself went to his Sasural (father-in-law's place) in village Jalalpur and put forth his demand for a Motor cycle and a golden chain before his father-in-law Kedar Nath Seth

.(P.W. 4) in the presence of Rafiq Hussain (P.W. 5), Ismail Khan and Asha Ram and on

getting unsatisfactory response from his father-in-Jaw, the appellant bad told Kedar Nath

Seth in a threatening tone to see the fate of his daughter in the near future.

4. The case of the prosecution is that on 27/28.2.1983, sometime during the night,

Kerosene was sprinkled on the clothes of Smt. Durgawati deceased by her in-laws

including the appellant and she was set ablaze by means of a match-stick resulting burn-

injuries to her. Thereafter, she was removed to S.S.P.G. Hospital Varanasi by her in-laws

from Mehnagar where she was admitted on 28.2.1983. It is also alleged that Kedar Nath

Seth (P.W. 4) on getting information from Ram Dayal in his village about the burning of

his daughter, rushed to S S.P.G. Hospital at Varanasi on 1st March. 1983 and found her

daughter in the hospital in an unconscious state. Smt. Durgawati regained consciousness

on 2.3.1983 and told her father Kedar Nath Seth that Kerosene was sprinkled on her by

the appellant, his mother, sister-in-law and Raja Ram brother-in-law and then she was set

afire resulting burn injuries to her. On knowing the narration of the occurrence by his

daughter, Kedar Nath Seth went to the Police Station Kotwali, Varanasi with a typed

report of the occurrence and banded it down to the Head constable who prepared the chik

report at 2 P.M. on 2.3.1983. Tije Head constable registered a case under section 307

I.P.C. and also under section 4 of Dowry Prohibition Act. Later on, the papers of the case

were despatched to police station, Mehnagar, District Azamgarh and a case under section

307 I.P.C. was registered there at 4.10 P.M. on 4.3.83. Ram Sunder Tiwari, (P.W. 7) took

up the investigation of the case and he went to the place of occurrence on 6.5.83 where he

recorded the statement of Kedar Nath Seth. He also recorded the statement of Rafiq

Hussain (P.W. 5) and Kanhiya Lal (P.W. 6) on 8.5.1983. With the assistance of the

witnesses, he had prepared the site plan Ex. Ka. 5.

1. 5. After the registration of the case on 2.3.1983 at police station Kotwali Varanasi, the

dying declaration Ex. Ka 1 of the deceased was taken down on 2.3.1983 by Sri Ram

Chander Sharma, Executive Magistrate, in S.S.P.G. Hospital Varanasi.

6. The deceased breathed her last on 5.3.1983 at 345 A M. in the hospital. Dr. C.B.

Tripathi (P.W. 2) conducted autopsy on the dead body of the deceased on March 5, 1983

at 5 P.M. and found the fo