- (1.) U. K. Varma, J. Convicting Fakir Chand and Smt. Santosh under Sections 302, read with Section 34 of the Indian Penal Code and sentencing Fakir Chand to death and Smt. Santosh to imprisonment for life, Sri V. M. Joshi, the VII Additional Sessions Judge has made a reference for the confirma tion of the death sentence of Fakir Chand under Section 366 of the Code of Criminal Procedure. Aggrieved by his judgment and order, the appellants have come up in appeal.
(2.) THE investigation of this case had been ordered on the complaint of Surendra Kumar submitted to the Director-General of Police but passed on to the Deputy Inspector General of Police, Meerut Range. It is dated 9-5-85 and is marked Ex Ka. 1. It transpires there from that on 12-3-85 the date of incident, the complaint had gone out of Meerut. On his return Chandra Bhushan Sharma informed him that kerosene oil had been sprinkled upon his brother Narendra Kumar and he was burnt. He rushed immediately to Doctor Manvendra Sharma for treatment THE complainant immediately reached the clinic of Dr. Manvendra Sharma and from there took his brother Narendra Kumar to the medical college alongwith Sri Ram, the compounds of Dr. Sharma as advised by him. Narendra Kumar was admitted in the medical college but when his condition did not improve, he was withdrawn and got admitted in the Bhopal Nursing Home, THEre, his dying declaration was recorded on 14-3-85 by Sri Shyam Singh Addl. S. D. M. which translated into English is as follows : "my name is Narendra Kumar Sharma. I am the son of Laxmi Narain. I have full mental faculty and what I am saying is well throughout, I got burnt on Wednesday between 10. 30 and 11. 00 p. m. on 13-5-85. Fakir Chand resident of 362, Noor Nagar, Siyani district Ghaziabad, sprinkled kerosene oil on me from a can. Santosh Kumari ignited the fire by a match stick. I was clad in white terricot clothes and had Rs. 365 in my pocket. I came running to the clinic of Dr. Manvendra Sharma while burning. THE doctor quenched the fire. In the way too a few persons tried to pacify the fire. THE compounder of Dr. Manvendra Shanna had taken me to the medical college. " Surendra Kumar further mentioned in the complaint that the copy of the above dying declaration could be procured by him only on 27-4-85 and came to know that his brother Fakir Chand had been murdered by his wife Smt. Santosh Kumari and her brother. The Inspector of the concerned police station did not permit his report to be recorded and so he submitted an appli cation on 29-4-85 to the S. P. Rural Meerut. He directed the Inspector to register the report and investigate but being under the influence of the accused Smt. Santosh Kumari and Narendra Kumar, he did not carry out his directions. The G. D. Entry No. 47 made at 11. 35 p. m. on 12-3-85 shows that the Sub-Inspector A. S. Chauhan was appointed to enquire and report about the incident but he did not do so. The Inspector and Sub- Inspector had taken huge sum of money by way of illegal gratification and so had shelved the matter. The relation between his brother Narendra Kumar and his divorced wife Smt. Santosh Kumari, were estranged. Narendra Kumar had served her with a notice on 6-8-82. Smt. Santosh Kumari had instituted proceedings under Section 125 of the Code of Criminal Procedure against Narendra Kumar and her brother had filed a false complaint against him under Sections 323/504/506 of the Indian Penal Code. The Mawana Police previously too had been siding with Smt. Santosh Kumari and Fakir Chandra. The fact that Narendra Kumar died as a result of burn injuries on 16-3-85 has not been controverted. His post mortem report, which is Ext ka 16 on record duly proved by Dr. S. M. Sharma PW 7 shows that he had died as a result of the burn injuries all over his body excepting the inner side of the right leg and foot and left lower extremity below middle of the left thigh. It is also admitted to the parties that Smt. Santosh had instituted proceedings under Section 125 of the Code of Criminal Procedure for maintenance and had prosecuted Narendra Kumar deceased for bigamy under Section 494 of the Indian Penal Code when Narendra Kumar married another lady and that Fakir Chand appellant had been doing Pairvi for her sister in these cases.
(3.) THE prosecution examined Chandra Bhushan Sharma PW 1 and brought on record the dying declaration of Narendra Kumar Ext Ka 18 proved by Shyam Singh Yadav Deputy Collector, PW 4 to bring home the guilt of the accused to him. THE fact that the dying declaration had been given by Narendra Kumar in a fit state of mind had been corroborated by Dr. S. M. Sharma PW 7. Chandra Bhushan Sharma PW 1 stated that when after taking his meals at about 10. 30 p. m. he was going for a stroll towards Priya Cinema Hall, Mawana, he saw that Narendra Kumar who had his house nearby, was coming out of it crying that ms brother-in-law and wife had burnt aim. The accused Fakir Chandra and Smt. Santosh Kumari also emerged from the same house and heading towards the above Cinema Hall disappeared in a lane. He went towards the clinic of Dr. Manvendra Sharma behind Narendra Kumar. It was there that he met Surendra Kumar complainant PW 2 who told him the whole story. Dr. Manvendra gave first aid to Narendra Kumar and advised that he should be taken to the medical college. Narendra could not be saved. Jai Deo, Mahendra and Jeeyut had also heard the [cries of Narendra Kumar. In the cross-examination he deposed that it was not a fact that his shop closed at 6. 00 p. m. every day. He admitted that earlier Tuesday was a closed day for shops but later the spops started closing on Wednesday. He could not tell whether the incident took place on Tuesday or Wednesday. He admitted that he did not know either the accused Santosh or the accused Fakir Chand; from before the date of the incident. When he had first noticed Narender Kumar there were many others following him, Jai Deo and Mahendra Kumar were amongst them. The clinic of Dr. Manvendra was at a distance of 300 yards from the place where he first saw Narendra. He had reached the clinic of Dr. Manvendra after 10. 00 p. m. but did not remember the exact time. He did not go to lodge the first information report. Narendra had been treated by the compounder of Dr. Manvendra named Sri Ram. The doctor was not present there. He from Dr. Manvendra's clinic returned to his shop. He knew Narendra and Surendra because they used to purchase their grains from his shop on their ration cards. He had not gone to appear as a witness in any case for Narendra. He denied that he had been doing illicit trade with Surendra Kumar as his partner.;