Prem Prakash, J. - (1.) SARWAR (26) met with a gruesome death in the locality known as Imambara Chaoni within the municipal limits of Gonda. He died of burns received by him a little after midnight at 1 A. M. on 26th April. 11974. The occurrence in his receiving the fatal burn injuries took place in a small apartment which he had occupied in that locality having obtained it on rent form Nasimul Rahman (DWl), a few days before the occurrence. The kothri, in which the deceased, his wife, the appellant and his mother-in-law, Smt. Majida (since then died) had been living since a couple of days before was about four or five paces east-west and about four paces north-south. It was part of the house of Nasimul Rahman (DW1). Its exit was on the road, towards the east. This road joined the Faizabad road towards its south. Across the road towards the east were the houses of Ibrahim (PW 15) was adjacent to the kothri, towards the south. The kothri had door leaves in its exit and also there was a window facing east which was covered by iron bars. At a distance of SO or 60 paces was the house occupied by Yunus, the second-son-in- law of Majida, which was being occupied, also by the brother and the father of the appellant. The house of Ali Ullah (PW 10) was situate at a distance of 50 or 60 paces, to the north-west of the house of Nasimul Rahman and the house of Khalil (PW 12) was at a distance of 30 paces from the house of Nasimul Rahman. Outside his house at a distance of 10 paces was a neem tree from where the house of Nasimul Rahman was visible. There was admittedly no electric light in the kothri. The family living in the kothri in the fateful night consisted of the deceased, his wife, Smt. Akko, the appellant, and his mother-in-law Smt. Majida. Smt. Majida died on 21st May in the result of burn injuries she had received in the transaction in which Sar- war had received the burn injuries.
(2.) THE prosecution case against the accused-appellant was as follows : THE accused was married to Sarwar, son of Riyasat Khan of Gangawal, about five or six months before the incident. After staying for a night in Gangawal the accused returned to her parents and did not go to live with him again, despite all efforts made by him and his relations. About a month before the occurrence at the instance of the kith and kin of the deceased a panchayat was convened at the house of Yunus. Majida was called for in the panchayat. THE deceased and others, who were there in the panchayat, asked Majida to send the appellent to Gangawal, but Majida turned down the request on the ground that since there was no latrine in the house of the deceased and her daughter's living there was inconvenient and discomfortable, Sarwar should come and stay in Gonda and after the two had removed the misunderstanding, her daughter may go with him. Sarwar and his relations did not agree to it with the result that an amicable settlement could not be reached. Even thereafter the deceased, as told by Nasimul Rahman (DW1) used to visit the locality off and on to persuade him and others residing there to speak to Majida to send her daughter with him. A couple of days before the occurrence Sarwar arranged for the kothri and started living there with the accused and her mother. On the day of occurrence in the evening he had returned from Gonda where he had gone to collect things for their use. At about 12 or 1 A. M. when the deceased had already gone to bed and the appellant and her mother were resting on a cot beside him, those, who were living in the vicinity of the kothri, were attracted by the shouts of Sarwar THE door had been locked from inside; they peeped through the window to find Sarwar in flames. THEy called him near the window and threw sand and dust through the window upon him in an attempt to put off the fire. Some of them broke open the door of the kothri to save Sarwar's life. As one of the door leaves was broken, the accused and her mother came out of the kothri and rushed to the nearby house of Yunus. Sarwar also went out THE fire was extinguished. When he was on the road, he declared in the presence of Ali Ullah (PW 10), Khalil (PW 12) and Sattar (PW 13) besides others who had arrived at the scene of occurrence, that the appellant had burnt him. According to the prosecution, those, who were present on the spot, called the accused, her brother and parents from the house of Yunus and forced them to take Sarwar to the hospital where he was admitted in the Emergency Ward at 2.30 A. M. According to Dr M. S. Seth (PW 16), who treated and medically examined the deceased, Wasim Mohamad son of Halim Mohammad of Shashtri Nagar had identified the injured before him. Smt. Majida was also admitted in the Emergecy Ward along with Sarwar. Sarwar, however, expired sat 6. 45 A. M. Soon thereafter on receipt of the information, Second Officer Ram Samujh Pandey (PW 9) reached the hospital at 10 A. M. ; he performed the iinquest on the dead body and sent it to the mortuary for post-mortem examination. THE inquest report shows that on the right and left wrists were found marks of some thing being tied around them. Ali Ullah (PW 10) and Sattar (PW 13), who had reached the spot by the time the deceased came out side his kothri, had seen his hands being tied with a string. By the time the inquest was held, no information had been laid about the incident at the police station and it was left to Abdul Latif (PW 1), the cousin of the deceased, to deliver a written report of the occurrence at police station Kotwali on 27th April at 2 P.M. Abdul Latif had come with his master Laxmi Narain (PW 4) to purchase some accessories for the machine at about 1 A.M. He learnt in Chowk that a boy form Gangawal had been burnt to death in the locality known as Mohalla Imam- bara. Suspecting some foul play, he rushed to the place to make enquiries. He met Chunna Zahir and many others who had taken out burning Sarwar from inside the kothri, he learnt from them that when the door was broken open the appellant and her mother were standing aside in a corner in the kothri. The F.l.R, however, did not state that the declaration was made by the deceased in the presence of people drawn from the locality. They had informed to have heard that he had given some statement to the Doctor. The investigation of the case was taken up by Sub-Inspector Tribeni Prasad Varma (PW 17) who had received on 27th April at about 8 P. M. copies of the FIR and GD entry through constable Mohd. Shafiq. He rushed to the spot reaching there at 10 P.M., the same night. Being unable to proceed with the investigation for want of sufficient light, he commenced investigation the next day at 6 A VI. He interrogated Chunna, Zahir, Khalil, Nasimul Rahman and Ali Ullah. He went inside the kothri where the incident had occurred. A tarpaulin was found spread on the ground. Its corner was burnt. A half burnt pillow was lying on the tarpaulin. A smashed match-box with some match sticks ; a printed piece of cloth with burn marks ; a piece of sutli were found lying on the floor ; and a lamp was also found, the chimney of which was found on the almirah and the lower part containing a few drops of kerosene oil was lying on the ground. The Investigating Officer also noticed sufficient quantity of sand lying inside the kothri near the window. The broken door was found lying. Since the key of the lock was not available inspite of search, he got it removed by Mohammad Zahir (PW 14). The recovered articles were taken into possession and the memo (Ext. Ka-15) was prepared on the spot Thereafter, the site-plan was prepared. The accused was arrested from the house of her father On 29th April he interrogated Addul Latif (PW 1), Mohammad Hanif (PW 6) and Ibrahim (PW 15). Smt. Zaibal (PW 7) was interrogated on 3rd May and Sattar(PW 13) on 6th May. After completing the investigation the charge-sheet was submitted.
(3.) THE Investigating Officer stated that Zahir, Chunna and Nasimul Rahman were siding with the accused and were not prepared to state the truth. In those days Smt. Majida was serving at the residence or Nasimul Rahman, THE Public Prosecutor gave an application on 19th September, 1974. that the aforesaid witnesses being under the influence of the accused be discharged from evidence. THE defence counsel required the production of Nasimul Rahman in defence, but he did not make any submission for the examination of the rest of the witnesses. The accused abjured to her guilt. She admitted to have been married to Sarwar and having returned to her parents after staying for a night with her husband. She admitted that a Panchayat was held at her father's house which was attended by her mother, though she pleaded ignorance as to what the Panches had decided. Sarwar, according to her, had come to Gonda 10 days before the occurrence to attend the marriage of Rahmat's daughter. She did not deny to have been living with the deceased, along with her mother, in the kothri in that fateful night. Her version of the occurrence is, however, different. She alleged that after taking the meals Majida was lying on a cot outside the kothri whereas the deceased and she were inside the kothri- Sarwar told her that his parents had stopped giving him any help in cash or in kind ever since he started residing at Gonda. The appellant advised him to earn his own living by doing masonary work. Sarwar kept quiet. A little later he went out to urinate. He called Majida inside the kothri, locked the door, ana kept the key with himself. She and Majida went to bed on a cot and Sarwar lay down on the floor. At about 1 A. M. she woke up on the alarm raised by her mother and found that the clothes of Sarwar and her mother had caught fire. Sarwar was holding Majida and she was trying to rescue herself. Feeling terrified she stood aside in a corner and started raising an alarm. Her shouts and those of Majida attracted several persons to the place. Calling Sarwar near the window they threw dust upon him to extinguish the fire and ultimately one of the door leaves was broken to facilitate their coming outside the kothri. She rushed to the house of Yunus and informed her father Ali Hasan. Shortly thereafter she returned with her parents and brother and all of them took Sarwar to the hospital where he expired. Her father sent Iqbal, her brother, to Gangawal to inform the relatives of sarwar about his death- She denied, in this manner, that to get rid of Sarwar she had set him on fire, sprinkling kerosene oil when he was asleep. She denied that on coming outside the kothri sarwar declared that 'she had burnt him'. She admitted that the lamp (Ext. 5) was there in the kothri in the fateful night. She stated that Sarwar had the match box (Ext. 1) with him as he was accustomed to smoke biri. On being questioned as to why the witnesses had deposed against her, she stated that Abdul Latif and Zaibul were closely related to the deceased and that they had procured the witnesses to give false evidence against her.;