- (1.) THIS appeal has been filed by the State against the order dated 15.2.1993 passed by learned Sessions Judge, Jodhpur (hereinafter referred to as 'the trial court') whereby the learned trial court has acquitted the accused respondent for the offence punishable under Section 302 I.P.C.
(2.) BRIEF facts of the case are that in the intervening night of 28th and 29th July, 1992 at about 1:35 AM, PW 14 Bagta Ram submitted a written report Exhibit P/9 at Police Station Sursagar, Jodhpur while stating that at about 12:30 AM Babu Lal S/o Gena Ram was crying in front of house of Harchand Ram that he is burning. He immediately went there and found that Babu Lal's mother, brother and Dungarram were sitting there. It is stated in the complaint that as there was no conveyance available to take Babu Lal to hospital, he reached the police station to report the matter. In the same night at about 2:45 Harchand Ram (PW -10) had given his statement to the A.S.I., Bajrang Singh while stating that in the night, he woke up upon hearing the cries of his mother Babli (PW -9) and saw his brother Babu Lal burning, who coming from the house of accused Badri Lal and Dungar Ram (PW -3) had doused the fire by putting mattress on him. When he reached near deceased Babu Lal he told him that accused Badri Lal poured kerosene on him and thereafter lit the fire. On the basis of said statement, the Police Station, Sursagar registered FIR No. 17/1992 for the offences punishable under Sections 307 and 326 I.P.C. Dying declaration of Babu Lal was recorded by the Judicial Magistrate as Exhibit P/7 wherein deceased Babu Lal had stated that Sharvan Ram's son lit the fire after pouring kerosene on him. He has also stated that accused -respondent Badri Lal had asked him to provide liquor, but he refused, he asked him that why he is naming him for killing his brother and when he denied, he poured kerosene from the lamp on him and lit the fire and thereupon his brothers rescued him. After 7 -8 days i.e. on 5.8.1992 Babu Lal died. As per post mortem report, the cause of death was burn injuries. After completing investigation, the police filed charge sheet against the accused respondent for the offence punishable under Section 302 I.P.C. The matter was committed to the trial court wherein charges were framed against the accused -respondent for the offence punishable under Section 302 I.P.C. He denied the charge and claimed trial.
(3.) TO prove the charge against the accused respondent, the prosecution had produced as many as 17 witnesses. The statements of accused respondent were recorded under Section 313 Cr.P.C. and his wife Smt. Sattu was produced as defence witness. As per defence, the deceased himself lit the fire and prior to that, he threatened that he would commit suicide by inflaming himself.;