Point of Law: Criminal Law – Criminal Trial – Dying declaration – Admissibility of - Dying declaration was recorded by PW-7 within 12 hours of incident after taking certificate of doctor (E.M.O.). Doctor certified that declarant was in a fit state of mind and at that time, PW-7, Executive Magistrate/Naib Tehsildar, doctor, and declarant were present there. After recording dying declaration, doctor recertified that declarant was in a fit mental condition during and after statement.

JUDGMENT :

Sanjay Kumar Pachori, J.

1. This appeal has been preferred by appellants, namely Jakir Ali, Kutti @ Alimunnisha against the judgment and order passed by Additional Sessions Judge, Court No. 1 Sidharthnagar, respectively on 11.12.2013 and 12.12.2013 in Sessions Trial No. 182 of 2011 arising out of case Crime No. 444 of 2011, police station Golhaura, District Sidharthnagar, whereby the appellants have been convicted under section 302 read with section 34 Indian Penal Code (in short “I.P.C.”) and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/-each with default sentence of two months.

PROSECUTION CASE

2. The prosecution case in brief as per first information report, FIR (Ex.Ka.-5), which was lodged on 17.7.2011 at 4:30 a.m. at PS Golhaura, District Sidharthnagar by Mohd. Umar (PW-1) is that his sister Zahida (deceased) was married to Jakir in the year 1992, and out of this wedlock, 6 children were born. Her eldest daughter is about 15-16 years old. About three months prior to the incident, Jakir had kept Kutti as his wife. Jakir used to beat Zahida when she protested about his illicit relations. On the intervening night of 16/17.7.2011, Jakir and Kutti together set fire to Zahida by sprinkling kerosene oil, her neck was also tied by a rope. Anwar Ali (not examined) and Mohd. Salim (PW-2) and many other people had come on the spot upon hearing the cries of his sister and after saving her, informed him about the incident. He took Zahida to Etwa Hospital with the help of the other villagers, then she was referred to District Hospital Siddharthnagar for treatment, his sister was undergoing treatment.

3. The informant (PW-1) on receiving information, reached on the spot and brought the injured to C.H.C, Community Health Centre. Etwa, for treatment at 2:00 a.m. on 16/17.7.2011. Dr. V. K. Vaid (PW-4) examined the injured and prepared a medical report (Ex.Ka.-4). He found two injuries on her body, first; a ligature mark all around on the neck, second; superficial to deep burn wound was present on the whole of the back, both thighs, right leg, both upper arms and forearms, both hands, and some part of the chest, the upper part of the abdomen, 80% of burn injury. A smell of kerosene oil was present on her body. He informed the police and after giving first aid, referred the injured to the District Hospital Siddharthanagar for further treatment, wherein a dying declaration of injured Smt. Zahida was recorded by Guru Saran Lal (PW-7), Executive Magistrate/Naib Tehsildar, between 1:50 p.m. to 2:00 p.m. on 17.7.2011 in the presence of Emergency Medical Officer, E. M. O. (not examined).

4. The FIR dated 17.7.2011 (Ex.Ka-5) was registered as case Crime no. 444 of 2011 under section 307 I.P.C. against the appellants at PS Golhaura, District Sidharthnagar at 16:30 hours by CP-233 Ram Sumer Yadav (PW-5), on the basis of a written complaint (Ex.Ka-1) of Mohd. Umar (PW-1). The distance between the place of occurrence and the Police Station is about 12 Km.

5. On 18.7.2011, S.I. Satanand Panday (PW-8/investigating officer, I.O.) arrested the appellant Jakir Ali, and on 19.7.2011, after inspecting the place of the occurrence, as pointed out by the informant (PW-1) and his relatives, he prepared a site map (Ex.Ka-10) of the place of the incident. He also recovered an empty bottle of kerosene oil, burnt clothes of the injured Smt. Zahida on 19.7.2011 and prepared a seizure memo (Ex.Ka-16).

6. The proceeding of the inquest was conducted at 1:30 p.m. on 23.7.2011 by S.I. Bhawani Prasad Upadhyay (not examined) on the basis of information of death received through ward boy Surendra Gaur (not examined) at PS-Kotwali Nagar, District Sidharthnagar, which had been endorsed at G.D. Report no. 20 time 11.20 a.m. on 23.7.2011, at the Mortuary of District Hospital Sidharthnagar, an inquest report (Ex.Ka-3) was prepared. S.I. Bhawani Prasad Upadhyay also prepared other police papers (Ex.Ka-12 to Ex.Ka-15) for getting conducted a post-mortem of