- (1.) THIS appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judgment and order dated 12-11-1992, passed by IV Addi tional Sessions Judge, Nainital, in Ses sions Trial No. 175 of 1991, whereby accused/appellants Nanhey and Faruq are convicted under Section 302 read, with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I. P. C.), and each one of them is sentenced to un dergo imprisonment for life and also to pay fine of Rs. 500/ -.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story in brief is that on 21-03-1990 at about 9 P. M. in Vil lage Bara within the limits of Police Sta tion Kichha (now part of district Udham Singh Nagar), accused / appellants Nanhey and Faruq with common inten tion set the house of deceased Sunder Lal on fire after pouring kerosene oil with intention to commit murder of Sunder Lal, who was inside the house. On that very day i. e. 21-03-1990, at about 11. 30 P. M. , complainant Margub Ahmad (P. W. I) along with other villagers took Sunder Lal (deceased) with burn injuries in the upgraded Primary Health Centre, Kichha, where he was admitted. Dr. K. PS. Chauhan (P. W. 6), who examined the injuries on the person of Sunder Lal, informed immediately to the Police with the request that the Dying Declaration of the injured be recorded as he had 90% burn injuries. After making neces sary entry in the general diary at Serial No. 53, Sub Inspector B. D. Sharma (P. W. 9) went to Tehsildar Kirhha re questing him to record the Dying Decla ration of Sunder Lal. On this, Sri B. L. Yadav, Tehsildar (P. W. 3) at about 00. 30 hours reached in the Hospital and after obtaining a certificate from Dr. K. P. S. Chauhan, Medical Officer, the Tehsildar recorded Dying Declaration (Ext. A-3) of Sunder Lal, who made a statement that accused / appellants Nanhey and Faruq, before the incident asked him (Sunder Lal) to accompany them to commit theft. It is further stated by the deceased that the three were friends and one Omkar was also there. He further told the Magistrate (Tehsildar) that they (ac cused and deceased) had drinks before he refused Nanhey and Faruq to accom pany them in commission of theft. The refusal on the part of deceased enraged the two accused / appellants Nanhey and Faruq, who took the kerosene oil from the house of Sunder Lal, where they were sitting, and poured the same on Sunder Lal and set him on fire. Omkar tried to save Sunder Lal, but to no avail. After making said statement Sunder Lal succumbed to the burn in juries in the wee hours on 22-03-1990. Thereafter, Margub Ahmad (P. W. I) lodged the First Information Report (Ext. A-1) with the Police Station, Kichha. In the First Information Report complain ant has mentioned that when he came to know in the village that Sunder Lal's house has been set on fire, he rushed to the spot and saw Sunder Lal lying with burn injuries in his courtyard. The con tents as mentioned above in the dying Declaration were disclosed by the de ceased to the complainant also. Where after, the injured was taken to the Hos pital. On the basis of the First Informa tion Report, Crime No 219 of 1990 was registered against accused / appellants Nanhey and Faruq, relating to offence punishable under Section 3041. PC. and the same was investigated by Sub In spector Vijendra Sharma (P. W. 11 ). The Investigating Officer took the dead body of Sunder Lal in his possession from the Hospital and prepared inquest report (Ext. A-2) and other necessary papers-i. e. Police Form No. 33 (Ext. A-14), sketch of the dead body (Ext. A-15), Police Form No. 13 (Ext. A-16), letter to Chief Medical Officer (Ext. A-l7) and sample seal (Ext. A-18 ). The dead body was sent for postmortem examination in sealed cover. On 22-03-1990, at about 4 RM. Dr. Virendra Kumar Dixit (P. W. 4) conducted the postmortem examination and prepared autopsy report (Ext. A-6), in which he mentioned that extensive burn injuries led to shock and death. After interrogating the witnesses and on completion of investigation the Investi gating Officer submitted charge sheet (Ext. A- 21) against both the accused Nanhey and Faruq for their trial in re spect of offence punishable under Sec tion 304 I. P. C. The Magistrate on receipt of the charge sheet, after giving necessary cop ies to the accused, as required under Section 207 of Cr. P. C. , appears to have committed the case to the court of Ses sions. Learned Sessions Judge, Nainital, transferred the case to the court of IV Additional Sessions Judge, Nainital. The said trial court, on 05-09-1991, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 I. P. C. against both the accused Nanhey and Faruq. Both of them pleaded not guilty and claimed to be tried. On this prosecution got exam ined P. W. 1 Margub Ahmad, complain ant, P. W. 2 Salig Ram, neighbour of the deceased, P. W. 3 B. L. Yadav, Tehsildar, who recorded the Dying Declaration, P. W. 4 Dr. Virendra Kumar Dixit, who conducted postmortem examination on the dead body of Sunder Lal, P. W. 5 K. N. joshi, who brought medico legal regis ter from the Hospital, P. W. 6 Dr. K. P. S. Chauhan, who recorded the injuries on the person of Sunder Lal (deceased) at the time of his admission in the Hospi tal and certified the mental condition of the deceased at the time of recording of Dying Declaration, P. W. 7 Devi Das, wit ness of recovery of the kerosene jerkin from the spot, P. W. 8 Gopal Dutt Gururani, who prepared the check report (Ext. A-11) of the First Information Re port and made entry in the general di ary relating thereto, P. W. 9 Sub Inspec tor B. D. Sharma, who prepared the in quest report of the dead, body, P. W. 10 Omkar (declared hostile), P. W. 11 Sub Inspector Vijendra Sharma, Investigating Officer and P. W. 12 constable Viresh Dutt Tripathi, who proved that Bed Head Ticket of the deceased has been lost. The oral and documentary evidence was put to the accused/appellants Nanhey and Faruq in reply to which they alleged the same to be false and pleaded that they were falsely impli cated. However, no evidence in defence was adduced on behalf of the accused. After hearing the parties, the trial court found both the accused Nanhey and Faruq guilty of charge of offence pun ishable under Section 302 read with Sec tion 34 1. P. C. and thereafter parties were heard on sentence and each one of the convicts is sentenced to imprisonment for life and also to pay fine of Rs. 500/ -. In default of payment of fine the de faulter was directed to undergo impris onment for three months. Aggrieved by said judgment and order dated 12-11-1992, passed by IV Additional Sessions Judge, Nainital, in Sessions Trial No. 173 of 1991, this appeal was filed by the convicts before Allahabad High Court on 07-12-1992, where it was admitted on 08-12-1992. The appeal is received by this Court under Section 35 of U. P. Re organisation Act, 2000, for its disposal. (During the pendency of this appeal, ap pellant no. 2 Faruq died and appeal filed by him stood abated as is apparent from this Court's order recorded in the order sheet on 31-07-2004 ).
(3.) BEFORE further discussions, it is just and proper to mention here the burn injuries found on the person of the de ceased at the time he was admitted in the Primary Health Centre, Kichha. From the statement of P. W. 6 K. P. S. Chauhan read with the copy of injury report (Ext. A-7) it is established on record that Sunder Lal had 90% dry burn injuries by kerosene oil found at the time he was admitted in the hospital, which are be ing reproduced below : i) Superficial dry burn whole front and back right arm. (ii) Superficial dry burn whole front and back right thigh. (iii) Superficial dry burn whole front and back left thigh. (iv) Superficial dry burn whole geni tal organ. (v) Superficial dry burn whole front and back right leg up to foot. (vi) Superficial dry burn whole front and back left leg up to foot The aforementioned injuries recorded at the time of admission of the deceased in the Hospital get corroborated from the ante mortem injuries mentioned in the postmortem examination report (Ext. A- 6), prepared by P. W. 4 Dr. Virendra lumiar Dixit. The autopsy report shows that there were extensive 2nd and 3rd degree ante mortem burn injuries present all over the body except lower part of legs and feet where line of redness was present. On internal examination of the dead body Dr. Virendra Kumar Dixit (P. W. 4) found membranes congested, brain pale, pleura pale, larynx con gested. P. W. 4 Dr. Virendra Kumar Dixit in his examination before the court stated that the cause of death of the de ceased was shock due to burn injuries. From the above evidence it is clearly proved on record that the deceased (Sunder Lal) has died homicidal death due to ante mortem burn injuries. Now the question is whether the accused / ap pellant Nanhey accompanied with Faruq has caused the injuries with intention to commit murder of the deceased or not. The most important piece of evi dence on record produced by the pros ecution is the Dying Declaration (Ext. A-3) given by the deceased before his death to P. W. 3 B. L. Yadav, Tehsildar. P. W. 3 B. L. Yadav, Tehsildar, has stated on oath that in the intervening night of 21st/22nd of March, 1990 at about 00. 30 hours he recorded the Dying Dec laration of Sunder Lal after getting sat isfied as to his mental condition from Dr. K. P. S. Chauhan, who certified that the deceased was in a fit state of mind to make the statement. This witness has proved the Dying Declaration (Ext. A-3) recorded by him on which according to this witness he got the thumb impression taken from Sunder Lal after the state ment was recorded. It is just and proper to reproduce the Dying Declaration made by the deceased to P. W. 3 B. L. Yadav, Tehsildar in the 00. 30 hours in the intervening night of 21st / 22nd of March 1990. The same is being repro duced below : Hindi From the above Dying Declaration it is clear that deceased has made a cat egorical statement in clear terms that accused / appellants Nanhey along with Faruq, after the deceased refused to ac company them to commit theft poured kerosene oil on him and set the deceased on fire.;