JUDGMENT Hon’ble R.N. Misra, J.—This appeal has been preferred by the convicted appellants, Rajesh Pandey, Kallu alias Shivdhani, Smt. Rama and Smt. Shanti Devi alias Sitawati against the judgment and order dated 5.12.2003, passed by Smt. Kamini Pathak, the then Additional Sessions Judge (Fast Track Court No. 1), Fatehpur, whereby the appellants have been convicted for life imprisonment for the offence, punishable under Section 304-B, I.P.C. They have further been convicted for the offence punishable under Section 498-A, I.P.C. and Section 3/4 of Dowry Prohibition Act and sentenced to undergo R.I. for three years, fine of Rs. 10,000 and R.I for two years with fine of Rs. 10,000/ respectively. In case of non-payment of fine, they have been sentenced for additional R.I for one year and six months respectively. 2. The facts giving rise to this appeal are as under : The accused-appellants are resident of village Budhanna, Police Station Chandpur, District Fatehpur. The complainant-informant, Shiv Balak Tiwari is resident of village Garhi, Police Sation Jafarganj, District Fatehpur. Smt. Rekha aged about 23 years was daughter of complainant, Shiv Balak Tewari, who was married with the accused-appellant, Rajesh Pandey about five years back to the occurrence in question. The accused-appellant Kallu @ Shivdhani is the father of appellant Rajesh Pandey, Smt. Rama is daughter of Kallu @ Shivdhani and Smt. Shanti Devi is his wife, meaning thereby, Rajesh Pandey is husband, Kallu @ Shivdhani is father-in-law, Smt. Shanti Devi is mother-in-law and Smt. Rama is sister-in-law (Nanad) of deceased Smt. Rekha. 3. The marriage had been performed according to the Hindu rites. In the marriage, dowry etc. were given by the complainant-informant according to his capability but the accused-persons were not happy. They were demanding Bufallo, golden chain and Rs. 20,000/- in cash in dowry and for that they were torturing the deceased. Smt. Rekha used to make complaints regarding her harassment and torture by her husband and in-laws to her parents. The complainant-informant repeatedly made attempts to pursuade the appellants for not torturing his daughter. He also told them that he was not in a position to fulfil their demands. 4. On 7.7.2000 at about 1.00 P.M., the complainant-informant was informed that inlaws of his daughter burned him alive by pouring kerosene oil on her. It was also informed that before burning, she was beaten by them. He also told them that he was not in a position to fulfil their demands. 4. On 7.7.2000 at about 1.00 P.M., the complainant-informant was informed that inlaws of his daughter burned him alive by pouring kerosene oil on her. It was also informed that before burning, she was beaten by them. When the complainant-informant with his associates went to the house of inlaws of his daughter, the village people told him about the incident. No one was available at the house of accused-persons except a minor child of deceased Smt. Rekha. The village people told the complainant-informant that the neigbourers had taken to Smt. Rekha to some hospital in Qasba Amauli, District Fatehpur on a Tractor, where she died. The dead body of the deceased was lying at the house of accused-persons. 5. Just before a day of occurrence i.e. on 6.6.2000, Vinay Kumar, the youngest son of complainant-informant had gone to the house of accused-appellants and met his sister Smt. Rekha who had told him about harassment and torture etc. made by the accused-appellants for dowry. The deceased had given a letter in which the entire facts were disclosed. 6. The complainant-informant lodged report of occurrence to the Police Station, Chandpur, District Fatehpur on 7.7.2000. The written F.I.R. is Ext. Ka-1. The police registered a case under Section 498-A, 304-B, I.P.C. and Section 3/4 of Dowry Prohibition Act, against the accused-appellants which is evident from the copy of G.D. Ext. Ka-16. Chik report is Ext. Ka-15. The matter was investigated by the police concerned. The Investigating Officer visited the spot and after inspecting the dead body, prepared inquest report Ext. Ka-8, photo of dead body Ext. Ka-11, Challan Ext. Ka-12 and after that he sealed the dead body and wrote letter Ext. Ka-9 and Ka-10 to the R.I. Police Lines and C.M.O. Fatehpur respectively for post-mortem examination of deceased. Dr. A.S. Khan and Dr. B.K. Sharma conducted the post-mortem examination of deceased on 8.7.2000. The post-mortem report is Ext. Ka-5. The Investigating Officer took burnt cloths of deceased and plastic container which were recovered from the spot and prepared memo Ext. Ka-13 and Ka-14 respectively. He interrogated the prosecution witnesses and after concluding investigation, submitted charge-sheet Ext. Ka-7 against the accused-appellants. 7. B.K. Sharma conducted the post-mortem examination of deceased on 8.7.2000. The post-mortem report is Ext. Ka-5. The Investigating Officer took burnt cloths of deceased and plastic container which were recovered from the spot and prepared memo Ext. Ka-13 and Ka-14 respectively. He interrogated the prosecution witnesses and after concluding investigation, submitted charge-sheet Ext. Ka-7 against the accused-appellants. 7. The accused-appellants have admitted this fact that Smt. Rekha aged about 23 years, daughter of complainant-informant, Shiv Balak Tewari was married with the accused-appellant Rajesh Pandey according to Hindu rites in the year 1995 but they have denied the allegation regarding demand of dowry, torture and causing death of deceased. They have further alleged that all the proceedings were conducted by the police on false consideration and they were forged one. The accused-appellant Rajesh Pandey has further alleged that Smt. Rekha was desirous of partition of ancestral house and when she failed in her movement, she committed suicide by burning herself. He has further alleged that the prosecution witnesses have given evidence against him under undue pressure of Ram Bharosey Tiwari, his Mausiya Sasur. Smt. Shanti Devi has alleged that she was residing separately in a temple and she did not know how the deceased died. She has also alleged factum of partition of the house as alleged by her son, Rajesh Pandey. The accused-appellant, Shivdhani has also taken same defence as taken by his son Rajesh Pandey. Smt.Rama Devi has alleged that she was a married lady and had come to the house of her parents and was living in a temple separately. The deceased was not even talking terms with her. She did not know, how she died. 8. Learned trial Court charged the accused-appellants for the offences punishable under Sections 498A and 304-B, I.P.C. and Section 3/4 of Dowry Prohibition Act. 9. In support of its case, the prosecution examined Shiv Balak Tewari PW-1, Smt. Shanti Devi PW-2 and Vinai Kumar PW-3 as witnesses of fact. Dr. A.S. Khan PW-4 was examined to prove post-mortem examination of deceased. PW-5 Yogendra Nath Pandey, Deputy S.P. investigated the case and submitted charge-sheet against the accused-appellants. PW-6 R.S. Dixit, Naib Tehsildar had also participated in preparation of inquest report. PW-7, Sub-Inspector, Rama Shanker Shukla had assisted PW-5 and 6 in the spot investigation. PW-8, Const. Niyamat Ali had prepared Chik report Ext. Ka-15 on the basis of written report Ext. PW-5 Yogendra Nath Pandey, Deputy S.P. investigated the case and submitted charge-sheet against the accused-appellants. PW-6 R.S. Dixit, Naib Tehsildar had also participated in preparation of inquest report. PW-7, Sub-Inspector, Rama Shanker Shukla had assisted PW-5 and 6 in the spot investigation. PW-8, Const. Niyamat Ali had prepared Chik report Ext. Ka-15 on the basis of written report Ext. Ka-1 and made entry of registration of case in G.D. Ext. Ka-16. 10. The accused-appellants have examined Ram Ashrey as DW-1 and Mani Ram DW-2 in their defence. 11. The letters Ext. Ka-2, Ka-3 and Ka-4 allegedly written by Smt. Rekha, the accused-appellant Rajesh Pandey and accused-appellant Shiv Dhani Pandey were also filed by the prosecution during the evidence. 12. After hearing the parties and considering the evidence on record, the learned trial Court convicted the appellants and sentenced them referred to earlier and aggrieved by said judgment and order, they have preferred this appeal. 13. We have heard the learned Counsels for parties at length and perused the evidence on record. 14. This fact is admitted by the parties that Smt. Rekha was married with the appellant Rajesh Pandey in the year 1995. This is also admitted fact that she died on 7.7.2000. This is also admitted fact that she died of burning. The post mortem report Ext. Ka-5 shows that there were superficial injuries of burn all over body of the deceased. In the opinion of both the doctors conducting post-mortem examination of the deceased, the death was caused due to shock as a result of ante-mortem burn injuries. Dr. S.A. Khan, PW-4 has been examined by the prosecution. In his cross-examination, he has clearly stated that except burning, there was no ante-mortem injury on the dead body of the deceased. In his very examination-in-chief, he has stated that there was smell of kerosene oil in the hairs of deceased. The Investigating Officer, who inspected the spot on 7.7.2000 also found the empty container of Kerosene Oil on the spot and he prepared its memo Ext. Ka-14. The accused persons have also admitted this fact in their statements under Section 313, Cr.P.C. that the deceased died due to burn injuries. The appellant, Rajesh Pandey, the husband of the deceased has clearly stated in response to question No. 16 that the deceased wanted partition of the house and in frustration, she committed suicide by pouring kerosene oil on her. The appellant, Rajesh Pandey, the husband of the deceased has clearly stated in response to question No. 16 that the deceased wanted partition of the house and in frustration, she committed suicide by pouring kerosene oil on her. The appellant, Kallu alias Shivdhani, father-in-law of the deceased has also given same answer in response to question No. 16 put to him, under Section 313 Cr.P.C. Thus this fact is not disputed that the deceased died due to burning. The only question which is to be decided as to whether she committed suicide or was burnt by the accused-persons?. 15. The prosecution has given evidence to prove torture of deceased by the accused-persons for dowry. The accused persons have denied demand of dowry and torture or cruelty to deceased due to dowry. PW-1, Shiv Balak Tewari, father of the deceased has stated that in the marriage, he had given dowry according to his capacity, but the accused-appellants were not satisfied with the same. They were demanding Bufallo, golden chain and Rs. 20,000 in cash even after marriage. He has further stated that whenever his daughter used to come to his house, she always complained about demand of dowry and torture by the accused persons. He has further stated that after about ten days of the marriage, he went to nuptial place of his daughter for her Bidai, but inlaws of the deceased refused. However, after 25 or 26 days, the Bidai of the deceased was performed. Further he has stated that when his daughter went back to her husband’s house, she made complaint about assault made by her husband and other family members. She had sustained injuries also which were shown to him but since it was a domestic problem, he did not report the matter to the police. 16. PW-2 is Smt. Savitri Devi, the mother of the deceased. She has also repeated same statement and has stated that whenever her daughter used to come to her house, she made complaint about her husband and inlaws regarding torture for dowry. She has further stated that her husband went to the house of her inlaws and requested them not to harass his daughter. He has also assured them that he would try to fulfil their demands but due to poverty, their demands could not be fulfilled. PW-3 is Vinai Kumar, the brother of the deceased. She has further stated that her husband went to the house of her inlaws and requested them not to harass his daughter. He has also assured them that he would try to fulfil their demands but due to poverty, their demands could not be fulfilled. PW-3 is Vinai Kumar, the brother of the deceased. He has also stated about torture of deceased by the accused-appellants for dowry. He has corroborated the statement of his father and mother given in the Court. Further he has stated that on 6.7.2000, he went to the house of inlaws of deceased, where she told him that she was being harassed and tortured by her husband, father-in-law, mother-in-law and sister-in-law for demand of buffalo, golden chain and Rs. 20,000/- in cash. She also told him that she was beaten by them of and on and she was not given food also. Further, this witness has stated that he had brought ‘Rab’ in a container and his sister when returning the container after taking out Rab from it, put a letter Ext. Ka-2 in the same. He has clearly stated that the deceased was a literate lady. He gave this letter to his mother. Smt. Savitri Devi, mother of the deceased has duly proved this letter Ext. Ka-2 in her statement on oath. She identified the writing and signature of deceased on Ext. Ka-2 because she was acquainted with it. She had seen the deceased while writing and signing papers. There is no evidence on record to show that this letter was not written by the deceased. A suggestion was given from the side of defence to PW-2 that this letter was written by Ashok, the scribe of the F.I.R Ext. Ka-1. But the witness has clearly denied it. We have compared the hand writing of F.I.R. Ext. Ka-1 with the handwriting of letter Ext. Ka-2 and come to the conclusion that both the writings completely defer. In such way, this is not proved that the letter Ext. Ka-2 was written by Ashok. 17. In the letter Ext. Ka-2, the deceased had described the cruelty and torture exercised upon her by naming her father-in-law Kallu alias Shivdhani, mother-in-law Smt. Shanti Devi and husband Rajesh Pandey. In this letter, one Askhilesh was also named who was younger brother of Rajesh Pandey but he is not accused before us. Ka-2 was written by Ashok. 17. In the letter Ext. Ka-2, the deceased had described the cruelty and torture exercised upon her by naming her father-in-law Kallu alias Shivdhani, mother-in-law Smt. Shanti Devi and husband Rajesh Pandey. In this letter, one Askhilesh was also named who was younger brother of Rajesh Pandey but he is not accused before us. There is a mention of the nephew of Smt. Shanti Devi also in this letter but he is also not accused in the case. However, there is no mention of the name of Smt. Rama in this letter who is sister of Rajesh Pandey the husband of deceased. In the letter Ext. Ka-2 the deceased mentioned the fact that once the accused persons along with Akhilesh wanted her strangulate and demanded buffalo, golden chain and Rs. 20, 000/- in cash in dowry. However, neighbourer rescued her. She further mentioned the fact that nephew of her mother-in-law has also given threat to kill her because his father was serving in Military and it was easy for him to kill her. She further described in the letter that she was repeatedly tortured by her husband and inlaws and she was apprehended her murder in near future by them. PW-3, Vinai Kumar has stated that this letter was handed over by him to his mother. The mother has also corroborated this fact. However, there was no mention of this letter in the F.I.R Ext. Ka-1 and on the basis of this fact, it has been argued by learned Counsel for the appellants that this letter is forged one but the explanation which has come on the record is sufficient for non-mentioning of this letter in it. As, we have discussed above, Vinai Kumar, the brother of the deceased has clearly stated that on 6.7.2000, he had visited the house of his sister and she has handed over this letter to him in a container in which he had brought Rab for her. He has further stated that the letter was handed over by him to his mother on the same day when he come back. The mother has also corroborated this fact. He has further stated that the letter was handed over by him to his mother on the same day when he come back. The mother has also corroborated this fact. Smt. Savitri Devi, mother of the deceased has clearly stated that when her son, Vinai Kumar handed over the letter to her, she had shown this letter to her husband and kept it in the pocket of his Kurta, but her husband could not carry this letter to the police station while lodging the F.I.R because this letter was kept in the Kurta other than that which was worn by him while going to the police station. Shiv Balak Tewari, the complainant-informant has also stated in his statement on oath that when he went to the police station for lodging the F.I.R, the letter Ext. Ka-2 remained at his house and therefore, he could not mention it in the F.I.R. When all the above statements of prosecution witnesses are read together, it becomes crystal clear that the letter was there but in such situation of hurry and worry, such mistake often occur. Since the complainant-informant had worn another Kurta when he went to the police station to lodge F.I.R, whereas the letter Ext. Ka-2 was kept by PW-2 in his another Kurta. Therefore, it could not be mentioned. All the witnesses have clearly stated that the letter Ext. Ka-2 was shown by them to the Investigating Officer. This fact is corroborated by the statement of I.O. Yogendra Nath Pandey also who is PW-5. He has stated in his very examination- in-chief that when he recorded statement of witnesses on 10.7.2000, photo copy of letter Ext. Ka-2 was handed over to him by the complainant-informant. This fact has been corroborated by PW-2, Smt. Savitri Devi also. Photo copy of letter is paper No. 11 Ba on the record alongwith police papers. The accused-appellants have stated in their statements under Section 313, Cr.P.C. that the deceased was desirous of partition of the house and when she failed to get favourable result, she committed suicide. From this averments of the accused-appellants also, it appears that there was some problem in the house and the deceased was desirous to live separately with her inlaw due to safety. 18. From this averments of the accused-appellants also, it appears that there was some problem in the house and the deceased was desirous to live separately with her inlaw due to safety. 18. From the evidence on record, it is clear that the deceased was being subjected to cruelty and torture by her husband and inlaws for demand of dowry but involvement of Smt. Rama, sister-in-law of the deceased appears to be doubtful. Smt. Rama has admitted her presence at the house of the appellants on the date of death of the deceased, but she has stated that she was staying in “Shivaiya” alongwith her parents. This fact is admitted to the parties that Smt. Rama was a married woman even at the time of incident. Nowhere, it has come on the record that she did not live at the house of her husband or inlaws. She used to come her parents’ house in usual way as the married woman do. In the letter Ext. Ka-2 also, there was no mention of the name of Smt. Rama alongwith other members of the family who were torturing the deceased for dowry. All inlaws of the deceased cannot be roped on the ground of being close relative of the husband of the deceased. The overt act attributed to them should be proved beyond reasonable doubt. Had there been any involvement of Smt. Rama for torturing the deceased for dowry, there was no occasion for the deceased to leave her name in the letter Ext. Ka-2. In such circumstances, we are not satisfied with the findings of learned trial Court regarding involvement of Smt. Rama in this case. 19. As regard alleged separate living of the appellants is concerned that is not well proved. PW-3, Vinai Kumar has admitted this fact that the appellants owned a Shivalya besides their residential house. But all the witnesses of fact have denied this suggestion of the appellants that they used to live separately in the Shivalya. In their statements, under Section 313, Cr.P.C also, the accused-persons have clearly stated that the deceased wanted partition of residential house for living separately and when it was not done, she committed suicide. Thus, it is clear that on the desire of deceased, the residential house of the appellants was not paritioned. In their statements, under Section 313, Cr.P.C also, the accused-persons have clearly stated that the deceased wanted partition of residential house for living separately and when it was not done, she committed suicide. Thus, it is clear that on the desire of deceased, the residential house of the appellants was not paritioned. Therefore, statements of DW-1 and DW-2, namely Ram Ashrey and Mani Ram are apparently false that the house has already been partitioned and there was only dispute regarding partition of agricultural land. Thus, separate living of the appellants is not proved. 20. As regard, death of deceased is concerned, this is admitted fact that she had died due to burn injuries. As we have discussed earlier, the burn injuries were caused by pouring kerosene oil on the deceased and lifting fire in it. The medical evidence also supports the case of prosecution. The accused persons have also admitted death of deceased due to burning. PW-3, Shiv Balak Tewari and PW-1, Smt. Savitri Devi have stated that when they come to know about death of their daughter, they reached the spot and found that all the family members of the deceased had left the place/house. The neighbourers told them that some of the villagers had taken her to a nearby Nursing Home, where she was declared dead. Had there been any bona fide on the parts of husband of deceased, he would not have left the dead body of the deceased unattended. He would have informed the complainant-informant. 21. Section 304-B, I.P.C. deals with dowry death. According to this section, if the death is caused within seven years of the marriage in abnormal circumstances and soon before death, torture is proved, the death shall be called “dowry death”. 22. Section 113-B, of Indian Evidence Act deals with the presumption in the cases of dowry death. This section shows that “when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death”. 23. No date have been given on the letter Ext. Ka-2. It has come in the evidence that the accused-appellant Rajesh Pandey was living in Kanpur also in connection with his livelihood. 23. No date have been given on the letter Ext. Ka-2. It has come in the evidence that the accused-appellant Rajesh Pandey was living in Kanpur also in connection with his livelihood. The prosecution witnesses have also admitted that of and on, Smt. Rekha also used to live with her husband in Kanpur. They stated that in the letter Ext. Ka-2 torturing and harassment of deceased by inlaws was clearly mentioned but it was not mentioned in the said letter that on 6.7.2000 or few days back to it, she was tortured or harassed by them. In the letter Ext. Ka-2, the previous incident were detailed and apprehension was expressed for future. This is admitted fact that on the date of occurrence, Rajesh Pandey was present at his house and was not in Kanpur. Letter Ext. Ka-2 shows that In harassing the deceased for dowry, he had made prominent role alongwith his relative. Being husband of the deceased, he was duty bound to protect the deceased from any torture or harassment by other also. He did not perform his duty properly. The minor child was also left by him near the dead body of the deceased while running away from the house after incident in question. No doubt, parents of Rajesh Pandey were also involved in harassment and torture of deceased for dowry in the past, but from the evidence on record, it is not clear that whether parents had tortured the deceased soon before her death i.e. 6.7.2000 or a few days back. In any case, the husband was living with the deceased and he could not be resolved of his responsibility. There is no convincing evidence on record that deceased committed suicide. 24. The prosecution has filed letter Ext. Ka-3 alleged to have been written by Rajesh Pandey, husband of deceased from jail. This letter is dated 19.11.2000. It has been stated by PW-3 that this letter was received at his house by courier service. Another letter is Ex.Ka-4 alleged to have been written by Kallu alias Shivdhani, father-in-law of the deceased. The contents of these letters shows that Rajesh Pandey and Kallu alias Shivdhani had confessed their guilt and wanted compromise. This letter is dated 19.11.2000. It has been stated by PW-3 that this letter was received at his house by courier service. Another letter is Ex.Ka-4 alleged to have been written by Kallu alias Shivdhani, father-in-law of the deceased. The contents of these letters shows that Rajesh Pandey and Kallu alias Shivdhani had confessed their guilt and wanted compromise. On the basis of these letters also, the prosecution side has urged that the murder of deceased for dowry by these accused is proved but we do not see any force in this contention because these letters have not been duly proved according to the Evidence Act, hence they cannot be taken into consideration. Only this much statement of prosecution witnesses is not sufficient that these letters were received by them either by post or by hand. The hand writing and signature of scribe of these letters have not been proved by any witness, therefore, we are of the considered view that these letters cannot be read in evidence. 25. From the evidence on record, it is clear that the deceased did not commit suicide. Her death was caused by burning and we are of the view that the husband of the deceased, namely Rajesh Pandey was responsible for the death of deceased but the other appellants were not. From the evidence on record, it is also clear that the involvement of Smt. Rama is not sufficiently proved, therefore, her conviction cannot be maintained and she deserves to be acquitted of the charges levelled against her. Likewise, conviction of Smt. Shanti Devi and Kallu alias Shivdhani for the offence punishable under Section 304-B, I.P.C. can also not be sustained but their conviction under Section 498-A, I.P.C. and Section 3/4 of Dowry Prohibition Act can be maintained. Similarly, the conviction of Rajesh Pandey in all the charges has to be maintained. The position is clarified as follows : (a) The appeal of Smt. Rama is allowed and she is acquitted of the charges levelled against her. She is on bail. Her bail bonds are cancelled and sureties are discharged. She need not to surrender. (b) The appeal of Kallu alias Shivdhani and Smt. Shanti Devi alias Seetawati against conviction under Section 304-B, I.P.C. is allowed and they are acquitted of said charge. She is on bail. Her bail bonds are cancelled and sureties are discharged. She need not to surrender. (b) The appeal of Kallu alias Shivdhani and Smt. Shanti Devi alias Seetawati against conviction under Section 304-B, I.P.C. is allowed and they are acquitted of said charge. But their appeal regarding conviction and sentenced punishable under Section 498-A and 3/4of Dowry Prohibition Act is dismissed and judgement and order to that extent is maintained. Their bails are cancelled. The C.J.M. concerned is directed to issue Non-bailable warrant of arrest against them so that they may be sent to jail to serve out the sentence passed against them. Compliance report be submitted within 15 days of receipt of copy of this judgement. (c) The appeal of Rajesh Pandey is totally dismissed. He is in jail. He shall remain in jail to serve out the sentence. In light of aforesaid modifications, the appeal is disposed of accordingly. Office is directed to send a copy of this judgement fortwith to C.J.M. concerned for compliance. Order Accordingly. ———