MUMTAZ@ MUNTYAZ Vs. STATE OF U.P.

JUDGEMENT

(1.) These appeals by special leave at the instance of Appellants Mumtaz alias Muntyaz and Dilshad alias Pappu challenge correctness of the decision of the High Court of Uttarakhand at Nainital in Criminal Appeal No.270 of 2001 affirming their conviction and sentence for offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short the "IPC") passed in Sessions Trial No.15 of 1991 on the file of the Additional Sessions Judge, Roorkee.

(2.) On 27.12.1990 at about 6.30 AM PW-1 Radhey Shyam lodged FIR Ext.A-1 with Police Station Manglaur that his nephew Pawan Kumar had left his house at about 8.00 PM on the previous day and that in the intervening night of 26th and 27th December 1990 PW-1 heard shrieks of Pawan Kumar from the house of one Raees in the neighbourhood, whereafter PW-1 along with his other nephew PW-2 Anil Kumar came out of the house and saw that the hands of Pawan Kumar were tied and he was ablaze in the courtyard of the house of Raees. Both PWs 1 and 2 rushed there and put a quilt on Pawan Kumar. In this report, PW-1 Radhey Shyam further stated that he had seen the appellants and their associates Naseem Khan and Anees Khan setting Pawan Kumar on fire. Soon after this reporting, the police came to the spot and sent Pawan Kumar to Primary Health Centre, Manglaur for medical attention. Aforesaid FIR Ext.A-1 led to registration of Crime No.328 of 1990 at Police Station Manglaur relating to offences punishable under Sections 307 and 342 IPC.

(3.) At Primary Health Centre, a dying declaration Ext.A-24 of Pawan Kumar was recorded at 7.35 AM by PW-5 Satya Prakash Mishra, Sub-Divisional Magistrate in which Pawan Kumar stated that the appellants had set him on fire. The translation of the relevant portion of the dying declaration Ext.A-24 is as under: