- (1.) These appeals by special leave at the instance of Appellants Mumtaz alias Muntyaz and Dilshad alias Pappu challenge correctness of the decision of the High Court of Uttarakhand at Nainital in Criminal Appeal No.270 of 2001 affirming their conviction and sentence for offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short the "IPC") passed in Sessions Trial No.15 of 1991 on the file of the Additional Sessions Judge, Roorkee.
(2.) On 27.12.1990 at about 6.30 AM PW-1 Radhey Shyam lodged FIR Ext.A-1 with Police Station Manglaur that his nephew Pawan Kumar had left his house at about 8.00 PM on the previous day and that in the intervening night of 26th and 27th December 1990 PW-1 heard shrieks of Pawan Kumar from the house of one Raees in the neighbourhood, whereafter PW-1 along with his other nephew PW-2 Anil Kumar came out of the house and saw that the hands of Pawan Kumar were tied and he was ablaze in the courtyard of the house of Raees. Both PWs 1 and 2 rushed there and put a quilt on Pawan Kumar. In this report, PW-1 Radhey Shyam further stated that he had seen the appellants and their associates Naseem Khan and Anees Khan setting Pawan Kumar on fire. Soon after this reporting, the police came to the spot and sent Pawan Kumar to Primary Health Centre, Manglaur for medical attention. Aforesaid FIR Ext.A-1 led to registration of Crime No.328 of 1990 at Police Station Manglaur relating to offences punishable under Sections 307 and 342 IPC.
(3.) At Primary Health Centre, a dying declaration Ext.A-24 of Pawan Kumar was recorded at 7.35 AM by PW-5 Satya Prakash Mishra, Sub-Divisional Magistrate in which Pawan Kumar stated that the appellants had set him on fire. The translation of the relevant portion of the dying declaration Ext.A-24 is as under: "Two persons after pouring kerosene set me on fire. I was set on fire this morning at about 2.00 2.30 AM. I was set on fire by Pappu, son of unknown, R/o Landhaura and Mumtaz, son of unknown, R/o Landhaura. Mumtaz works in the flour mill of Pappu. When I was coming after running a VCR on the way, I was taken to house of a Pathani lady whose name is Joulie. Joulie is wife of Raees, R/o Landhaura. In the presence of Joulie, Pappu and Mumtaz poured kerosene on me and set me on fire and ran away. When I started burning, I shouted and a person who is not known to me came there and extinguished fire by pouring water. Thereafter what happened I do not know. I do not know why Pappu and Mumtaz set me on fire. Pappu's flour mill is on Lakshar Road. Name of brother of Pappu is Zinda Hasan." Below the above dying declaration Ext.A-24, a certificate to the effect that Pawan Kumar was in a fit state of mind to give the dying declaration was recorded by Dr. S.K. Mittal.;