K.NARAYAN, J. - (1.)This appeal under Section 374(2) Criminal Procedure Code is directed against the conviction and sentence dated 31-3-1985 rendered by the District and Sessions Judge, Almora in Session Trial No. 32 of 1984. The accused appellants Capt. Radhey Shyam and his daughter Km. Rekha were convicted on the charges under Sections 120-B and 302/34 I.P.C. and sentenced to imprisonment for life on both counts, and the sentences made to run concurrently.
(2.)The trial related to an occurrence of the evening of 15-7-1984 wherein one Smt. Lila Thapa suffered severe burn injuries resulting in her death in the Military Hospital on 18-7-1984 at 9.20 a.m. The charges were based on the contention that Km. Rekha had drenched Smt. Thapa with kerosene oil and Capt. Radhey Shyam had set her ablaze in the evening of 15-7-1964 while the defence has been that she had drenched herself in kerosene oil under some fit or morbid hysteria, and caught fire from a candle that was burning in the bed-room.
(3.)The facts proved and not disputed by the accused are that Capt. Radhey Shyam has an earlier marriage and out of that Km. Rekha and one son was born. However, that wife has been deserted and has been living in Farrukhabad since before January 1984. The two children have been living with Capt. Radhey Shyam. Km. Rekha was about 17 years at the time of incident. Karan Singh (P.W. 2), the brother of the deceased, and informant had also been living with them since sometime after the marriage. They all lived in a flat of block in Alma lines of Ranikhet Cant. They had all gone to enjoy film Takat in Military Movies that day after noon. The other residents of the same block though different flats, were Mrs. Hardip Kaur and her husband Capt. Sant Singh with children Goldie and his sister, the couple was examined as P.W. 3 and 4. The others in the same block were Mrs. and Lt. Phalke who were also witnesses but have not been examined. The arrival of the couples after the fire is also not disputed. Capt. Sant Singh managed to get an army vehicle in which Smt. Lila was put in a cot and taken to Military Hospital where she is shown to have reached around 9.30 p.m. She was immediately attended to by Dr. Miss A. Bhaskar, as a telephonic message had already been given and after some time she also sent for a Magistrate for getting a dying declaration, which was done by Km. Binda Swarup Magistrate at almost midnight. The injuries on the person of Smt. Lila Thapa as noted in Military Hospital were almost hundred percent burns of second and third degree all over the body, they have been described still better in the postmortem examination report as "all over the body except parineum region and part of face and scalp". Needless to say that head and face are uppermost part and generally have no cloth to serve as combustible material to produce heat and perineum is the part usually kept covered by the position of thighs. The conditions of burns was thus shuddering in effect.