- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (here-in after referred as Cr. P. C.), is directed against the judgment and order dated 15. 03. 1990, passed by learned Sessions Judge, Chamoli, in Sessions Trial -No. 8 of 1989, whereby accused / appellant Bishamber Dutt is convicted, under Sections 452, 354 and 304 of Indian Penal Code, 1860 (here inafter referred as I. PC. ). The said court has sentenced the convict (appellant) rig orous imprisonment for a period of five years under Section 452 I. PC, rigorous imprisonment for a period of two years under Section 354 I. P. C. and imprison ment for life under Section 304 I. P. C.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecutio story in brief is that complainant Nand Lal, son-in-law of Shanta Devi (deceased), used to live in Village Kunjethi at some distance from the house of his mother-in-law. On 22. 01. . 1988 (after two days of the inci dent) complainant Nand Lal (PW. 2) gave a report to Naib Tehsildar of the area -alleging that after death of his fa ther-in-law, for 5-6 months his mother-in-law Shanta Devi (deceased) used to live with her minor daughter Kunti (PW. 3 ). The other two elder daughters had already got married and one of them Bijla Devi (PWA) was married to the complainant. Prosecution case is that on 20th January 1988, at about 10 PM. , accused / appellant Bishamber Dutt, who was also resident of village Kunjethi, entered in the, house of Shanta Devi (deceased) with an inten tion to molest her, on which Shanta Devi shouted for help. On this, accused / appellant poured kerosene oil on Shanta Devi, and set her on fire. On hearing the cries 'complainant came from the neighbourhood and extin guished the fire. Meanwhile, accused / appellant Bishamber Dutt ran away. On 21. 01. 1988, as mentioned in the First Information Report, Shanta Devi was taken to the nearest Primary Health Center, Ukhimath. Her burn injuries were recorded on 23. 01. 1988 by Dr. Praveen Mishra (P. W. 1), who prepared the injury report (Ext. A-3 ). Shanta Devi was admitted in the hospital and her dying declaration (Ext. A-6) was recorded on 27. 01. 1. 988 by K. D. Juwantha, Tehsildar (P. W. 5 ). The First Information Report (Ext. A-4), which is registered by Patwari, Kali Math on 23. 01. 1988,' af ter it is received from Naib Tehsildar, investigated the crime. (In interior hills of Uttarakhand revenue officials are given police powers under U. P Govern ment Notification No. 494/viii-418-16, dated 07. 03. 1916 ). After four months of the incident Shanta Devi succumbed to the injuries suffered by her. On comple tion of investigation charge sheet (Ext. A-10) was filed by the Investigating Officer against accused / appellant Bishamber Dutt for his trial in connection with of fences punishable under Sections 452, 354 and 304 I. P. C. The Magistrate on receipt of the charge sheet, after giving necessary cop ies to the accused as required under Sec tion 207 of Cr. P. C. , appears to have committed the case to the court of Ses sions. Learned Sessions Judge after hearing the parties, on 10. 07. 1989, framed charge of offences punishable under Sections 452,354 and 304 I. P. C. and in alternative charge of offence punishable under Section 324 I. P. C. is also framed. The accused Bishamber Dutt pleaded not guilty and claimed to be tried. On this prosecution got exam ined P. W. 1 Praveen Mishra, the Medical Officer, who recorded the burn injuries on the person of the deceased at the time of admitting her in the hospital, P. W. 2 complainant Nand Lal, son-in-law of the deceased, P. W. 3 Kunti, mi nor daughter of deceased, P. WA Bijla Devi, married daughter of the deceased, P. W. 5 K. D. Juwantha, Tehsildar, who recorded the dying declaration and P. W. 6 Pushkar Singh, Patwari, who investi gated the crime. Oral and documentary evidence adduced-by the prosecution was put to the accused under Section 313 Cr. P. C. , in reply to which he admitted that he and Shanta Devi belonged to village Kunjethi. He further admitted that Shanta Devi was a widowed lady and used to live with her ten years old minor daughter Kunti. The accused fur ther admitted in his reply given under Section 313 Cr. P. C. that complainant Nand Lal is married to Bijla, a major daughter of the deceased, who used to live at some distance from Shanta Devi. As to the rest of the evidence accused / appellant has alleged the same to be false. He has denied that deceased died due to burn injuries as she has died af ter four months of the incident. Lastly, the accused stated that due to enmity he was implicated in the case.
(3.) BEFORE further discussions, it is pertinent to mention here the burn inju-, ries recorded by P. W. I Dr. Praveen Mishra on 23. 01. 1988, in Primary Health Centre, Ukhimath, where Shanta Devi was brought in the injured condi tion, and medical report (Ext. A-3) was prepared. The injuries mentioned in the injury report are being reproduced below: " (i) Burn injuries present all over right and left hand on both side (anterior, posterior, lateral and medial), up to 6cm above wrist joint of left hand and 8cm above the wrist joint of right hand. Burn is superficial type. (ii) urn injuries present allover right leg from fingers to waist in all di rections (anterior, posterior, lat eral and medial ). Burn 'is super ficial type. (iii) Burn injuries present on inner aspect of left leg from great toe to thigh. Burn is superficial in nature. (iv) urn Injuries present all over ab domen, anteriorly 4cm above the umblicus. Burn is superficial in nature. (v) Burn injuries present on both buttocks 10cm below the sacroiliac joint. " According to Medical Officer the burn injuries were third degreed more than 24 hours old. The abovementioned burn injuries, does establish on record that Shanta Devi suffered the burn in juries about 1-2 days before the same was recorded by Medical Officer. Now the question before this Court is who caused the burn injuries on the person of Shanta Devi. It is further required to be seen whether Shanta Devi was molested before the incident by the accused Bishamber Dutt. It is further re quired to be seen whether Bishamber Dutt committed house trespass with criminal intention. Finally it is also re quired to be seen what was the cause of death of deceased.;