JUDGMENT

Sangeet Lodha, J. - This criminal appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr. P. C. ") has been filed by the State aggrieved by the judgment and order dated 16. 2. 93 passed by Session Judge, Jalore in Session Case No. 32/92, acquitting the accused Okha Bharti of the charges for offences under Sections 302 & 498A IPC and accused Smt. Dariya of the charges for the offences under Sections 302/114 & 498A IPC.

2. Briefly the prosecution case is that on 27. 3. 92, Smt. Babi, the wife of accused respondent no. 1 herein was admitted to Primary Health Centre, Sanchore in severely burnt condition. On receiving information in this regard on wireless, SHO, Police Station, Sanchore, vide requisition dated 27. 3. 92 (Ex P/1) enquired from the Medical Officer, Primary Health Centre, Sanchore about the fitness of Smt. Babi to make a statement which was received by the Medical Officer on 27. 3. 92 at 2 P. M. . On the Medical Officer certifying by way of endorsement on the requisition regarding fitness of Smt. Babi to make a statement, the SHO, Police Station, Sanchore, requested Tehsildar-cum-Executive Magistrate, Sanchore vide application dated 27. 3. 92 (Ex. P/2) to record the statement of Smt. Babi at the hospital. The Medical Officer again made an endorsement on the application (Ex. P/2) in the following terms: "Smt. Babi w/o of Okha Bharti, age 22 yrs. , caste Swami, R/o of Village Bichhawar is in position to give statement at time of admission". Accordingly, Moola Ram (PW 5), Tehsildar-cum-Executive Magistrate, Sanchore reached hospital and recorded the statement of Smt. Babi (Ex. P/7) on the same day at 2. 30 P. M.

3. Smt. Babi in her statement (Ex. P/7) revealed that she had entered into marriage 5-6 years back. Her husband had illicit relations with his elder brother's wife Smt. Dariya. When she objected to it, on being tutored by Smt. Dariya, while she was sitting in her hut, her husband came with the jerrycan containing kerosine, poured the kerosine on her body, lit the match-stick and set her on fire. Thereafter, some people came there and extinguished the fire. On account of burn, she lost visibility and therefore, she could not identify the persons extinguishing the fire. She reiterated that on being asked by her Jethhani (husband's elder brother wife), her husband with an intention to kill her, poured the kerosine and set her on fire. She further alleged that her husband has poured kerosine and set her at fire with an intention to kill her on the asking of her Jethhani. The statement recorded as aforesaid was read over by the Tehsildar-cum-Executive Magistrate to the victim Smt. Babi, she accepted the same as correct, affixed her left hand thumb impression taken on the statement and Tehsildar-cum-Executive Magistrate also subscribed his signature. The statement recorded was forwarded by Tehsildar, Sanchore to SHO, Sanchore, who in his turn forwarded the same to the SHO, Police Station, Sarwana through Bajrang Singh, Constable. On the basis of the statement of Smt. Babi recorded as aforesaid, SHO, Police Station, Sarwana registered the FIR for commission of offences under Section 498A, 307 IPC and investigation commenced.

4. During the investigation, necessary memos were drawn and the statements of witnesses were recorded. On 29. 3. 92 at 2. 15 A. M. Smt. Babi expired. The dead body of Smt. Babi was subjected to autopsy. The accused Okha Bharti and Smt. Dariya were arrested. At the instance of accused Okha Bharti, the jerrycan of kerosine was recovered.

5. After completion of the investigation, police filed the charge sheet against the accused appellants for offences under Sections 302/109 & 498A IPC before the Judicial Magistrate, First Class, Sanchore. The matter was committed to the Session Judge, Jalore for trial. The trial Judge framed the charges against the accused appellants for offences under Sections 302, 302/114 & 498A IPC. The accused appellants denied the charges and clai