AKILA ALIAS AKKOO Vs. STATE OF U P

JUDGEMENT

(1.) SARWAR (26) met with a gruesome death in the locality known as Imambara Chaoni within the municipal limits of Gonda. He died of burns received by him a little after midnight at 1 A. M. on 26th April. 11974. The occurrence in his receiving the fatal burn injuries took place in a small apartment which he had occupied in that locality having obtained it on rent form Nasimul Rahman (DWl), a few days before the occurrence. The kothri, in which the deceased, his wife, the appellant and his mother-in-law, Smt. Majida (since then died) had been living since a couple of days before was about four or five paces east-west and about four paces north-south. It was part of the house of Nasimul Rahman (DW1). Its exit was on the road, towards the east. This road joined the Faizabad road towards its south. Across the road towards the east were the houses of Ibrahim (PW 15) was adjacent to the kothri, towards the south. The kothri had door leaves in its exit and also there was a window facing east which was covered by iron bars. At a distance of SO or 60 paces was the house occupied by Yunus, the second-son-in- law of Majida, which was being occupied, also by the brother and the father of the appellant. The house of Ali Ullah (PW 10) was situate at a distance of 50 or 60 paces, to the north-west of the house of Nasimul Rahman and the house of Khalil (PW 12) was at a distance of 30 paces from the house of Nasimul Rahman. Outside his house at a distance of 10 paces was a neem tree from where the house of Nasimul Rahman was visible. There was admittedly no electric light in the kothri. The family living in the kothri in the fateful night consisted of the deceased, his wife, Smt. Akko, the appellant, and his mother-in-law Smt. Majida. Smt. Majida died on 21st May in the result of burn injuries she had received in the transaction in which Sar- war had received the burn injuries.

(2.) THE prosecution case against the accused-appellant was as follows : THE accused was married to Sarwar, son of Riyasat Khan of Gangawal, about five or six months before the incident. After staying for a night in Gangawal the accused returned to her parents and did not go to live with him again, despite all efforts made by him and his relations. About a month before the occurrence at the instance of the kith and kin of the deceased a panchayat was convened at the house of Yunus. Majida was called for in the panchayat. THE deceased and others, who were there in the panchayat, asked Majida to send the appellent to Gangawal, but Majida turned down the request on the ground that since there was no latrine in the house of the deceased and her daughter's living there was inconvenient and discomfortable, Sarwar should come and stay in Gonda and after the two had removed the misunderstanding, her daughter may go with him. Sarwar and his relations did not agree to it with the result that an amicable settlement could not be reached. Even thereafter the deceased, as told by Nasimul Rahman (DW1) used to visit the locality off and on to persuade him and others residing there to speak to Majida to send her daughter with him. A couple of days before the occurrence Sarwar arranged for the kothri and started living there with the accused and her mother. On the day of occurrence in the evening he had returned from Gonda where he had gone to collect things for their use. At about 12 or 1 A. M. when the deceased had already gone to bed and the appellant and her mother were resting on a cot beside him, those, who were living in the vicinity of the kothri, were attracted by the shouts of Sarwar THE door had been locked from inside; they peeped through the window to find Sarwar in flames. THEy called him near the window and threw sand and dust through the window upon him in an attempt to put off the fire. Some of them broke open the door of the kothri to save Sarwar's life. As one of the door leaves was broken, the accused and her mother came out of the kothri and rushed to the nearby house of Yunus. Sarwar also went out THE fire was extinguished. When he was on the road, he declared in the presence of Ali Ullah (PW 10), Khalil (PW 12) and Sattar (PW 13) besides others who had arrived at the scene of occurrence, that the appellant had burnt him. According to the prosecution, those, who were present on the spot, called the accused, her brother and parents from the house of Yunus and forced them to take Sarwar to the hospital where he was admitted in the Emergency Ward at 2.30 A. M. According to Dr M. S. Seth (PW 16), who treated and medically examined the deceased, Wasim Mohamad son of Halim Mohammad of Shashtri Nagar had identified the injured before him. Smt. Majida was also admitted in the Emergecy Ward along with Sarwar. Sarwar, however, expired sat 6. 45 A. M. Soon thereafter on receipt of the information, Second Officer Ram Samujh Pandey (PW 9) reached the hospital at 10 A. M. ; he performed the iinquest on the dead body and sent it to the mortuary for post-mortem examination. THE inquest report shows that on the right and left wrists were found marks of some thing being tied around them. Ali Ullah (PW 10) and Sattar (PW 13), who had reached the spot by the time the deceased came out side his kothri, had seen his hands being tied with a string.

(3.) THE Investigating Officer stated that Zahir, Chunna and Nasimul Rahman were siding with the accused and were not prepared to state the truth. In those days Smt. Majida was serving at the residence or Nasimul Rahman, THE Public Prosecutor gave an application on 19th September, 1974. that the aforesaid witnesses being under the influence of the accused be discharged from evidence. THE defence counsel required the production of Nasimul Rahman in defence, but he did not make any submission for the examination of the rest of the witnesses.