KAPUR, J. - (1.) THE deceased Razia died on 6. 03. 1991 as a result of extensive burns. At the time of her death she was the wife of Nazir, brother of accused Abdul Rehman. This was her second marriage and it was a second marriage for Nazir also, who had three daughters from his first wife. Razia also had one daughter Zarina. Nazir was employed in the Army and was posted in Punjab while she was staying at the house of her in- laws where the inmates were four brothers-in-laws, two sister-in- laws, father and mother-in-law besides children. She got burn injuries on 6. 03. 1991 and in burnt condition she was taken to the hospital by the family members. THE doctor at the hospital sent the slip Ex. P. 5 at 5. 40 a. m. to the Incharge, Kalyan Circle Police. Out Post, Sikar to inform that a female named Razia was admitted in the female surgical ward with 90% burns. THE doctor advised the police to arrange for recording dying declaration. Her first dying declaration Ex. P. 5 was recorded at 6. 40 a. m. by Sheespal Singh, Incharge of the Police Outpost. Razia gave out that her brother-in-laws Ramzan, Nazir and Rehman used to beat her with sticks and on that day when she was sleeping in her room, her brother-in-law Rehman came there, poured kerosene oil from a bottle and lit a match stick. She also stated that her husband was in Punjab and that she had no quarrel with him and Rehman alone had burned her. She also gave out that no one had seen Rehman burning her. THEn Ismail took her to the hospital. By way of addition a line has been added to this statement that she got a Tabij made 3-4 days before this incident and her brother-in-law used to say that this was for
(2.) GEKJS ij tknw djok;k gs*. This statement was sent to the Police Station for registering a case and also for arranging the recording of a statement of Razia by a Magistrate Ex. P. 9 requisition was produced before the Judicial Magistrate, Sikar at 8. 10 a. m. and the Magistrate Shri O. P. Gupta, P. W. 12 proceeded to the hospital to record the statement. He obtained a certificate from the doctor that Razia was fit to give a statement on the application Ex. P. 9 itself. This) bears the time 8. 35 a. m. Then he recorded the statement Ex. P. 10 at 8. 40 a. m. in the Female Surgical Ward. He questioned Razia whether she was under the influence of any body and she gave out that she was voluntarily making the statement. This Ex. 9. 10, dying declaration of Razia is a detailed statement giving the details of the family members, relationship with her husband, the names of her brothers-in-laws. Then she stated that at about 12 in the night when she was sleeping in her room, her brother-in-law Rehman came there and poured kerosene oil from a bottle and then set her on fire. She also said that at that time only two of them were in the room and there was no third person. Then she stated that he alone had burnt her. She had got a Tabij prepared for her illness but Rehman said that this was for purposes of acquiring supernatural powers over others Tknw djok;k gs*. This was the cause of dispute and Rehman used to Beat her for this reason. Again she specifically said that the other family members were not involved. On being burnt she shouted, then her brother-in-law Ismail took her to the hospital and got her admitted there. This statement ended at 9. 05 a. m. After investigation in the case, the appellant was challenged and committed for trial before the Sessions Judge, Sikar. After recording evidence and hearing the parties the appellant was found guilty for the offence under Section 302 IPC and sentenced to imprisonment for life and a fine of Rs. 250/ -. In default of payment of fine he has to undergo three months rigorous imprisonment. Against this judgment of conviction and sentence dated 31. 03. 1992 the appellant has filed this appeal. When the accused appellant was examined under Section 313 Cr. P. C. he stated that Razia got a Tabij prepared for purposes of having control over all the family members. This Tabij was taken away by him (accused ). She also lost one gold Madalia and she suspected that it had been taken by the accused which he denied. He even promised to get her two Madalias in place of one. However, Razia wanted that he should return the Tabij otherwise she would burn herself and implicate him. She burned herself at night at a time when the room was bolted from inside and the door had to be pushed for opening it. The main witnesses in the case are the family members and they have not supported the case of the prosecution. The conviction of the appellant is mainly based on the two dying declarations made by the deceased before the police as well as before the Magistrate.
(3.) FIRST we may look into the site inspection report in order to find out the condition of the door of the room in which Razia was found burnt. There was a cot in the room on which a bed was spread out and the pillow as well as the Gudadi and the cot were burnt. There was smell of kerosene. The bedding was wet with water said to have been thrown for extinguishing the fire. There was a 5 litre can of kerosene oil in the room in which the kerosene oil was in a very small quantity. The entrance to the room was fitted with the doors with a latch (AAGAL) inside the room and at the time of inspection the latch was in one door only. An attempt was made to close the door but the latch did not fit in the Kunda of the other door because the Kunda in the other door was twisted downwards. The key of the lock was found in the room. Besides this, there were in the room. In the same Guwadi there were other rooms in which the other family members used to live. Before coming to the contentions of the learned counsel for the appellant, the oral evidence which is negligible may be looked into. In the oral evidence of Sabira d/o Nazir Hussain, P. W. 1 has admitted the quarrel between her motbir deceased Razia and the accused Rehman over a Tabij but has stated that her mother burnt herself. The door to her room was closed from inside which was opened by the family members. She is a 13 years old girl and according to her the door was opened by pushing it again and again. Then water was sprinkled on her mother and the burning clothes. Rehman went to the neighbours to telephone to the police and her uncles took Razia to the hospital in a tempo. P. W. 2 Hazira has also supported the version about the exchange of words in respect of Tabij and Rehman was annoyed with Razia on account of it. She woke up in the night on hearing shouts of her mother then her aunt and others broke open the door and found Razia in a burning condition. According to her, Razia was in her room and Rehman came on hearing the shouts. She has stated that her mother had a gold Madalia with a Tabij and she used to take it out five times a day and wash it and she had lost it two-three days before her death. She had her doubts on Rehman but Rehman took oath and said that he had not taken it. Thereafter her mother kept on saying that she would die but implicate Rehman. These two witnesses have not implicated accused but they have not been declared hostile. The other witnesses are all hostile. ;