VIJAY KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) VISHNU Sahai, J. Through this appeal, which has been preferred from jail, Vijay Kumar has challenged the judgment and order dated 25-5-2001 passed by the Sessions Judge, Lucknow in Sessions Trial No. 311/2001, whereby he has been convicted and sentenced in the manner stated hereinafter: (i) Under Section 302 IPC to imprisonment for life and to pay a fine of Rs. 1,000 ; and (ii) Under Section 498-A IPC to three years' RI and to pay a fine of Rs. 1,000. The sentences were directed to run concurrently. It is pertinent to mention that during the pendency of this appeal. Mr. R. K. Dwivedi, learned Counsel for the appellant, has filed vakalatnama on behalf of the appellant.

(2.) SHORTLY stated, the prosecution case runs as under: The informant deceased Smt. Chanda was the wife of the appellant. At the time of the incident, the informant alongwith her husband Vijay Kumar her son Anil Kumar PW 1, her daughter Anita Kumari PW 2 and two other children, was living in Martin Purwa within the limits of Police Station Hazratganj, District Lucknow. The appellant was a drunkard and under the influence of liquor persistenly used to ill- treat and beat the informant. On the night of 28/29-9-2000 the informant, the appellant, Amit Kumar PW 1. Anita Kumari PW 2, two other children of the informant and the appellant slept at their house in Martin Purwa. At about 2. 00 a. m. the appellant in an intoxicated state started abusing and assaulting the information. An altercation also took place between the appellant and the informant hearing which Amit Kumar and Anita woke up. Thereafter the appellant picked up a cane containing kerosene oil and poured the kerosene oil on the informant. He then set her on fire. Hearing the cries of the informant. Amit Kumar, Anita Kumari and other members of the family rushed there. In the morning, Amit Kumar on a rickshaw took the informant, who was in a precariously injured condition, to Police Station Hazratganj, Lucknow, where the informant lodged her written FIR.

(3.) THE evidence of Uday Veer Singh PW 4 shows that on 30-9-2000 while he was posted as Additional City Magistrate-I (ACM-I) at Lucknow he received information on wireless set to record the dying declaration of a victim in King George's Medical College, Lucknow. On the said information, he came to King George's Medical College, Lucknow. He commenced the process of recording the dying declaration of Chanda at 4. 15 p. m. Prior to recording it he enquired from Dr. Mahesh about the mental fitness of Chanda. Dr. Mahesh gave a certificate, which is appended on the top of the paper on which the dying declaration was recorded, that she was in a fit condition to make the statement. THEreafter, he also satisfied himself regarding the mental fitness of Chanda and having been convinced that she was fit to make a statement recorded her statement. Part of the statement she gave of her own free will and part of it as answers of the questions put by him. In English the said statement would read thus: About 12 years ago I was married to the appellant. I have four children from him, two sons and two daughters. My husband is a drunkard and does not not work. I work in a school at Martin Purwa. On account of the bad habits of my husband quarrels used to take place between him and me. My husband used to beat me and children. On 28-9-2000 between 12. 00 to 2. 00 a. m. my husband poured kerosene oil on me and set me on fire. My daughter poured water to extinguish the fire. My husband did not extinguish it. I sustained burn injuries on my hands, legs, stomach and chest. My husband took me to Balrampur Hospital, but since he had no money I could not be treated there. THE owner of the school got me admitted in Medical College. After Uday Veer Singh had recorded her statement, she affixed her thumb impression on it. THEreafter, he again called Dr. Mahesh who gave a certificate that Smt. Chanda was in a fit mental condition. It is pertinent to mention that this certificate is incorporated at the bottam of the paper on which Chanda's dying declaration had been recorded.