- (1.) This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judgment and order dated 20 -09 -1990, passed by learned Sessions Judge, Nainital, in Sessions Trial No. 290 of 1985, whereby accused / appellant Ram Kishan is convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinaf ter referred as I. PC.), and sentenced to undergo imprisonment for life.
(2.) Heard learned counsel for the parties and perused the entire lower court record.
(3.) Prosecution story in brief is that Gyanwati alias Shakuntala was daugh ter of Tej Ram (P. W. 2), who was mar ried to accused / appellant Ram Kishan in the year 1982. She had dark com plexion. Accused / appellant Ram Kishan used to complain that Shakuntala is dark complexioned and rustic. Often he used to beat her. Shakuntala got sent message to her parents that she should be saved from her husband and in -laws. On this, she was taken by her mother to her parents house. However, after some days Poshaki Lal, father -in -law of Shakuntala, along with some others came and requested parents of Shakuntala to send her back. They as sured that she would not be ill treated. On this assurance Shakuntala was sent back to her husbands house in Kichha. On 08 -06 -1985 at about 4 P. M. , Mohan Lal (P. W. 4) and Shiv Shankar (P. W. 5), who were neighbours of Poshaki Lal (father of the accused Ram Kishan), saw that Shakuntala was burning in her hus bands house. She was shouting for help and she told the people who gathered that she has been set on fire by accused / appellant Ram Kishan and his sister Km. Maya (co - accused, who was also convicted under Section 302/34 I. P. C. , but she was juvenile and as such not sentenced to imprisonment ). The wit nesses saw that legs of Shakuntala were tied with a DHOTI. The people of lo cality, who rushed to the spot, took Shakuntala to nearby Primary Health Centre, Kichha (hereinafter referred as RH. C. , Kichha ). P. W. 1 Dr. H. S. Rawal, Medical Officer of P. H. C. , Kichha, at 5. 15 P. M. on that very day (08 -06 -1985), recorded in the accidental injury register that Shakuntala was brought with 100% burn injuries. However, at the time she was brought to P. H. C. she was conscious. P. W. I Dr. H. S. Rawal imme diately informed the surgeon as well as Police and prepared injury report (Ext. A -1 ). The Police made entry of the infor mation at 7. 14 RM. at Serial No. 18 on 08 -06 -1985 itself in the General Diary, extract of which is Ext. A -9. Meanwhile, on being requested, Naib Tehsildar Bhikari Lal Yadav (P. W. 3), also rushed to RH. C. , Kichha, for recording of dy ing declaration. On obtaining certificate (Ext. A -2) from the Medical Officer as to the condition of Shakuntala that she is able to make the statement, Bhikari Lal Yadav (P. W. 3), recorded dying declara tion (Ext. A -3) at 5. 40 P. M. on the very day i. e. 08 -06 -1985. After making the statement, Shakuntala became uncon scious and succumbed to injuries in the hospital at about 7. 20 P. M. Another memorandum relating to her death was sent from Primary Health Centre to Police Station, Kichha, where Head Con stable Suraj Singh (P. W. 7) made another entry in the General Diary at Serial No. 25 at 8. 10 P. M. , a copy of which is Ext. A -10. Sub Inspector M. S. Bhandari (P. W. 6) proceeded for RH. C. , Kichha. He took the dead body of the deceased in his possession in Primary Health Cen tre and prepared inquest report (Ext. A -4 ). He also took into possession the burnt piece of DHOTI from the place of incident and also prepared site plan (Ext. A -7 ). The dead body was sent from postmortem examination with necessary papers. Dr. G. R Agnihotri (C. W. I), con ducted post mortem examination on the dead body of Shakuntala on 09 -06 - 1985 at about 3. 30 P. M. and prepared autopsy report (Ext. A -11 ). On 05 -07 -1985, the Police which has till then reg istered the crime as the one punishable under Section 306 I. P. C. after coming to know of contents of dying declaration, altered it into one punishable under Section 302 I. P. C. Further investigations were taken up by Inspector Jagbir Singh, who interrogated the witnesses and sub mitted charge sheet (Ext. A -8) against accused Ram Kishan (present appellant), Km. Maya and Poshaki Lal, for their trial in respect of offence punishable under Section 302 I. P. C.;