Mohd. Iqbal vs State of U.P.

S.K. Agarwal, J.—Heard learned Counsel for the applicant and learned A.G.A.

It has been contended by the learned Counsel for the applicant that the version contained in the dying declaration is quite in contrast with the version disclosed in the F.I.R. The dying declaration does not nominate any person present in the house as an eye-witness. According to the dying declaration, the deceased girl was alone in her house and her mother was upstairs on the roof. The dying declaration nominates only 3 persons who have dragged her upto the lavatory. She was thereafter burnt there. Initially she was inside the house. Kerosene oil upon her was thrown by all the 3 whereas the first information report attributes this role to only Azeem Iqbal and Shadab. No doubt the lightening of match stick and thereby setting the girl on fire is attributed to the applicant. It is further contended that the certificate issued by the doctor before and after recording the dying declaration is peculiar one and the dying declaration has not been recorded in the questionnaire form. It has been contended that there was absolutely no motive for the uncles of the deceased girl to set her afire. The probability of her having committed suicide as a result of frustration which was caused to her by the breaking of her marriage with Dr. Sajid Iqbal, son of the applicant. The settlement of this marriage of Dr. Sajid Iqbal in 1998 with the deceased girl was on the ground that Dr. Sajid Iqbal was suffering from infirmity in his movement because of some paralytic stroke and after operation when he had recovered almost fully, that marriage was broken on account of insistence of the own uncle Mohd. Jameel for settling his marriage with his own daughter Km. Nazma. The deceased girl was daughter of the step-brother of Mohd. Ismail. In all probability, the marriage was broken with the deceased girl and solemnised with Km. Nazma. The frustration and agony of this breaking had its effect upon the girl and she may have committed suicide. The girl was medically examined at 2.45 p.m. on 28.2.1999. The dying declaration was recorded at 4.30 p.m. According to the medical examination report, the general condition of the girl was very very poor. The pulse was not palpable and blood pressure was not recordable. Still the police was informed for the dying declaration and necessary action. In this context, the medical certificate given by Dr. Balbir Singh is very tricky.

Learned A.G.A. contended in response to the abovesaid argument that this dying declaration cannot be discarded on account of above infirmity. The certificate no doubt ought to have been very clear about the mental state of the girl. The word used by the doctor in his certificate ''patient conscious, well oriented'' does not meet the requirement of law is not correct. He further stresses that the variations with regard to her mental condition in the dying declaration and the medical evidence and the story has no serious effect upon the case of the prosecution. According to his contention, the assailants as well as the deceased were all closely related to each other. The death in this case had occurred after 9 days and the cause of death as shown in the post-mortem report is septicaemia as a result of ante-mortem burn injuries. A perusal of the site plan indicates that no place of setting the girl afire is shown therein. Neither the place wherefrom she was dragged or the court-yard where she was set afire are marked therein. The only place made explicit in the site plan is where she, after running out, had fallen.

The applicant is in jail since May, 1999. In between, he was granted a short-term bail for a period of 13 days on the occasion of marriage of his daughter. There is no allegation that he had abused that bail in any manner. He is also suffering from angina for the last several years. Under my orders, he was subjected to Trade Mill Test, 2-D Cardiography at Kanpur Medical College, Kanpur. The report suggests that 2-D Cardiology was normal and the result of T.M.T., indicates ''moderately positive''. The medical opinion regarding this under-trial accused is suffering from coronary artery disease, Hypertension-NIDDM. It further shows that he is not able to undertake any serious labour which will cause angina if undertaken. These tests were conducted under the supervision of Dr. R. P. S. Bhardwaj, Professor of Cardiology and Dr. R. K. Bansal, Lecturer in Cardiology, Kanpur Medical College, Kanpur. The report of the jail doctor is based on the abovesaid two tests. He is in jail since May, 1999. In between several times, he was taken to jail hospital for treatment on several occasions.

Any of my observations shall not be taken into consideration by the trial court during hearing of the case.

Without adverting to the merits or demerits of the case, let the applicant, Mohd. Iqbal, be enlarged on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of C.J.M., Etawah in Case Crime No. 103 of 1999, under Sections 147/302, I.P.C., P.S. Kotwali, district Etawah.