- (1.) P. K. Chatterji, J. This criminal appeal has been filed against the judgment & order dated 1-10-1990, passed by Special Addl. Sessions Judge Pratapgarh in Sessions Trial No. 161 of 1987 whereby the appellant is convicted under Section 304 Part-I, IPC, and sentenced to undergo ten years' R. I. and a fine of Rs. 1000/- and in default of payment of fine further imprisonment for one year was awarded.
(2.) FACTS of the case, in brief, are that one Ramadhar lodged a report at Police Station Kohdor that in the night of 18/19-5-1987 at about 2 p. m. his son Pratap Narain has set fire on his wife, namely, Shail Kumari by sprinkling kerosene oil on her. On noise Kedar Nath, Ramfer and others came there. The complainant Ramadhar was sleeping at Tubewell who also came at the spot and saw that his wife and daughter were extinguishing the fire of Shail Kumari. He had asked Shail Kumari regarding the incident then she told that her husband wanted to re-marry leaving her and two children and on her objection he has set fire upon her. After investigation charge-sheet was submitted against the accused appellant under Section 304 (1), IPC. He was tried by the learned Sessions Judge and was convicted and sentenced accordingly. In statement under Section 313, Cr. P. C. the accused appellant has admitted that the deceased was his wife. She was medically examined at District Hospital, Pratapgarh. Later on she was admitted in a Nursing Home at Allahabad where she died on 15-6-1987. He further stated that the deceased was sleeping with her son Manoj aged about two and half years who has asked for water from her mother and when the deceased was taking water, the lamp which was lightening, fell down and she caught the fire. He further stated that about one year before the incident he had met with an accident due to which his leg was broken and he cannot walk without medical shoe and clutches. He has been falsely implicated in the case. Heard learned Counsel for the appellant as well as for the State and perused the record.
(3.) IT was argued by the learned Counsel for the appellant that none of the prosecution witness has supported the prosecution case. There is solitary Dying Declaration of deceased Shail Kumari which was recorded in District Hospital, Pratapgarh by PW 4 on 19-5-1997 at 9. 05 a. m. In her dying declaration she named her husband, accused appellant that he had set fire on her as he wanted to re-marry. He further argued that it was an incident as the deceased had caught fire with a burning lamp which had fallen while she awoke to bring water for her son. At least one thing is clear from the evidence on record as well as from Dying Declaration that when the fire was set on, the deceased was not awaken. Therefore, prior to set on fire she had not seen her husband. No specific question has been asked on this point. Her testimony has been recorded under the Evidence Act. The injury report shows that she had burn injuries over her ankle to the extent of her breast. It was also suggested that the deceased caught fire from a burning lamp as in rural areas the lamp (Dhibri) used to burn throughout the night.;