Kalimullah Khan, J. - (1.) THIS Government Appeal under Section 378, Cr.P.C. has been filed by the State of U.P. Against accused Smt. Hanifa Khursheed W/o. Khursheed Kamal R/o. Ghazipur Lodge, Sir Sayeed Naigar, P.S. Civil Lines, District Aligarh against the impugned judgment and order dated 16.12.1981, delivered by the then Sessions Judge, Aligarh in Sessions Trial No. 530 of 1980 under Section 302, I.P.C., P.S. Civil Lines, District Aligarh, whereby he has acquitted aforesaid accused/respondent. The impugned judgment and order has been challenged on the ground that learned Sessions Judge erred in disbelieving the evidence of Nizam Uddin, P.W. 1, Bhullan, P.W. 2 and Khem Singh, P.W. 3. He further erred in not placing reliance on the dying declaration made by Jamil (deceased) in which he has stated that accused Smt. Hanifa Khursheed had burnt him alive after sprinkling kerosene oil on him. The judgment impugned is based on conjecture and surmises and learned Sessions Judge wrongly held that it was a case of accidental fire which is against the weight of evidence on record and, therefore, the impugned judgment is bad in law which has resulted in miscarriage of justice.
(2.) ACCORDING to prosecution case, accused -respondent Smt. Hanifa Khursheed was a lecturer in Abdullah College, Aligarh. She was residing in Ghazipur Lodge on Dodhpur Street in the City of Aligarh during the relevant period. Jamil S/o. Noora aged about 14 -15 years was working as her boy servant. At about 12:00 o'Clock (noon) on 4th July, 1979, he was severely burnt in the aforesaid residential accommodation of the accused in an incident of fire. Some Irani students got him admitted in Jawahar Lal Nehru Medical College, Aligarh. Iqbal Ahmad, Causality Record -Keeper of the aforesaid medical college, informed the police of police station Civil Lines at 2:00 p.m. The aforesaid information was entered into G.D. Dated 4.7.1979, vide rapat No. 21 on the same day, accused Smt. Hanifa Khursheed lodged the written report at police station that during her absence, an incident of fire took place in her house in which her property worth Rs. 12,000/ - was damaged and Jamil, her boy servant had sustained burn injuries who had already been admitted in the hospital before her arrival at her house. She came to know about the incident when she returned home from duty. The aforesaid information of accused Smt. Hanifa Khursheed was registered in the G.D. dated 4.7.1979 at 14:25 hours, vide G.D. rapat No. 22 at police station civil lines, District Aligarh. After the admission of Jamil, information was sent to P.S. Civil Lines for recording his dying declaration which was recorded by Sri. R.K. Sharma, the then S.D.M., Koil on the same evening at 15:50 hours at Jawahar Lal Nehru Medical College which has been proved as Exhibit Ka -15. Jamil died in the next morning on 5.7.1979 at 7:30 a.m. After the information of his death, police converted the case under Section 302, I.P.C. vide G.D. rapat No. 22 at 1:30 p.m. Exhibit Ka -12 is a true copy thereof. Inquest was conducted and after observing necessary formalities and preparing necessary papers, the dead body was despatched under sealed cover through constable (i) Sarnam Singh, CP No. 1071 and (ii) Mahendra Singh, CP No. 1007 for postmortem examination. Dr. M.U. Khan, P.W. 5 conducted the post -mortem examination at 3:00 p.m. on 5.7.1979 on the body of Jamil, hereinafter called 'deceased'. Following ante -mortem injuries were noticed at his body: (i) Superficial extensive burns present all over the body, chin above face not burnt. (ii) Line of redness and vesication present. (ii) Surgical wound with one stich on left ankle which is surgically dressed.
(3.) INTERNAL examination disclosed that brain and membraces, right and left lungs were congested. Right side heart was full and left side empty stomach contained two 2 Oz. Semi -digested food. Mucus membranes were normal. In the opinion of Dr. Khan, the death was due to shock resulting from extensive thermal burns described. Post -mortem report is on record.;