DINESH MAHESHWARI, V.S.SIRADHANA, JJ. - (1.) THIS appeal is directed against the judgment and order dated 27.06.1987, as passed in Sessions Case No.32/1986 whereby the Additional Sessions Judge, Nohar, while giving benefit of doubt, has acquitted the accused -respondents Raj Kumar, Mst.Chhoti @ Naraini and Mst.Durga, who were charged for the offence under Sections 302/34 IPC on the allegations of causing death of Mst. Kamla wife of Purshottam after setting her on fire. The accused were related to the deceased Kamla as being her brother -in -law, mother -in -law and sister -in -law respectively. It may be noticed at the outset that in this State appeal against acquittal, the accused persons Raj Kumar, Mst. Chhoti and Mst. Durga have been arrayed as respondents Nos.1,2 and 3 respectively. However, the respondents Nos.2 and 3, Mst. Chhoti @ Narayani and Mst. Durga, were reported to have expired. The learned Public Prosecutor, after obtaining verification, submitted that they had indeed expired in the years 2008 and 2010 respectively. Thus, it was observed on 20.02.2013 that this appeal has abated qua the respondents Nos.2 and 3. This appeal, therefore, remains to be considered only qua the respondent No.1 Raj Kumar son of Satyanarayan, the brother -in -law of the deceased.
(2.) THE relevant factual aspects could be noticed in the following: The Officer -in -charge of Civil Hospital, Bhadra, Dr.Brij Mohan Choudhary (PW -5) informed the SHO, Police Station, Bhadra, Mr.Abdul Aziz (PW -9) through the communication dated 29.05.1986 (Ex.P/4) that Kamla wife of Purshottam Kumhar, aged 25 years, was brought to the hospital at about 6:45 p.m. in 90% burnt state; and that her general condition was serious. According to the prosecution, the concerned SHO reached the Civil Hospital at 7:10 p.m.; and the injured Kamla made her statement (Ex.P/16) before him, which was recorded by the Constable Mr.Ashu Singh of Police Station, Bhadra in the presence of SHO Mr. Abdul Aziz (PW -9). In the aforesaid statement (Ex.P/16), the victim Mst. Kamla purportedly stated that she was married 5 years back and was having one son; and was residing with her in -laws for last 4 months. She further stated that her husband was working as a Muneem; and that her mother -in -law Mst. Chhoti, brother -in -law Raj Kumar and sister -in -law Mst. Durga had been pressurizing her while alleging that she was sleeping with her father -in -law and were also depriving her of food; and that her husband had turned down her request of getting separated from the family. She stated further that on the day of incident, at around 4:00 p.m., her mother -in -law slapped her and the brother -in -law and sister -in -law asserted that they shall continue to beat and abuse her. Mst. Kamla further stated that her mother -in -law blind -folded her and poured oil upon her and then, in order to kill, one of them set her ablaze though she did not know as to who lit the fire. She also stated that her brother -in -law jotted down something on a paper, which was not shown to her; that she was educated upto 5th standard; and that her father -in -law and husband both were not in the house. She stated yet further that her mama (maternal uncle) Jaikishan brought her to hospital but thereafter, stated that she did not know as to who brought her to the hospital and that her maternal uncle was not present there. Thereafter, the S.H.O allegedly read out the statement to Mst. Kamla, who after confirming the same, affixed her right thumb impression thereupon. For their relevance, the contents of this statement (Ex.P/16) could be taken note of as under: - JUDGEMENT_199_TLRAJ0_2014.jpg After the aforesaid statement, since Kamla's condition was deteriorating, the SHO (PW -9) sent a request to the Judicial Magistrate Bhadra, Shri Madan Gopal Dadhich (PW -12) at 7:15 p.m. through the communication Ex. P/17 for recording her dying declaration. Upon reaching the hospital, the Judicial Magistrate obtained a fitness certificate from the Officer -in -charge of the hospital Dr. Brij Mohan Chaudhary (PW -5) at 7: 25 p.m. that Kamla was speaking and was in a fit condition to make the statement. Hence, PW -12 recorded her dying declaration (Ex. P/6) at 7:30 p.m.
(3.) MST .Kamla, in her dying declaration (Ex.P/6) before the Judicial Magistrate, Bhadra, stated that her mother -in -law Chhoti, brother -in -law Rajkumar and sister -in -law Durga accused her of having illicit relations with the father -in -law and abused her in filthy language; and that all of them set her ablaze with kerosene oil. She, however, stated further that she set herself on fire; and that she did so because she was not being given the food, was tortured and her husband was not getting separated. She also stated that she was beaten by everyone and that day too, she was beaten up and at that time, her husband and father -in -law were not in the house; but her mother -in -law, brother -in -law and sister -in -law were present. She stated further that her mother -in -law bind -folded her and she could not say as to who ignited the fire. At this stage of statement, the Magistrate tried to seek clarification from Kamla and asked her to state clearly as to whether her mother -in -law, brother -in -law and sister -in -law set her on fire or she burnt herself to which, she replied that she was set on fire by her mother -in -law, bother -in -law and sister -in -law but she did not know as to who of the three did so. She concluded by saying that she had a child and was married four years back. This statement (Ex.P/6) has been strongly relied upon by the prosecution as being the dying declaration of the victim Mst. Kamla. The contents of Ex.P/6 could be noticed as follows: - JUDGEMENT_199_TLRAJ0_20141.jpg;