Parat Singh vs State of Himachal Pradesh

Sanjay Karol, J.—Appellant Parat Singh (hereinafter referred to as the accused) has appealed against the judgment dated 25.9.2007 of the learned Sessions Judge, Sirmaur District at Nahan, passed in Sessions Trial No. 29-ST/7 of 2005/2004, titled as State of Himachal Pradesh versus Parat Singh, whereby he stands convicted for having committed an offence punishable under the provisions of Section 302 of the Indian Penal Code. He is sentenced to undergo rigorous imprisonment for life and pay fine of `25,000/- and in default of payment of fine to further undergo rigorous imprisonment for three years. It is the case of prosecution that on 20.5.2004, at about 8.30 a.m., information was received, on telephone, at Police Station, Paonta Sahib, that a lady was burnt at Durga Colony, Taruwala. Information (Ex. PW-1/A) was recorded in the Daily Diary Register. SHO Khajana Ram (PW-23) proceeded to the spot, where he was informed that the lady was taken to the Civil Hospital, Paonta Sahib, from where he went to the hospital and met Dr. K.L. Bhagat (PW-2), who was attending to the injured i.e. Smt. Bimla Devi (deceased). On an application (Ex. PW-2/A) moved by the police, Dr. K.L. Bhagat certified her fit to make a statement. Thereafter, SHO Khajana Ram recorded statement (Ex. PW-2/B) of Bimla Devi in the presence of the doctor (PW-2). Thumb impression of Bimla Devi was obtained on her statement and PW-2 also appended his signatures on the same. MLC (Ex. PW-2/C) of Bimla Devi, issued by Dr. Bhagat, was taken into possession by the police. Since condition of the injured was critical, she was referred for further treatment to PGI at Chandigarh. Enroute Bimla Devi expired and her body brought back to the hospital, where postmortem was conducted by Dr. Kamal Pasha (PW-17), who issued postmortem report (Ex. PW-17/B). Prior thereto, inquest report (Ex. PW-4/A) was prepared by the police. SHO Khajana Ram proceeded to the spot and collected incriminating material in the shape of burnt skin (Ex. P-3), burnt ash (Ex. P-4), burnt nails kept in a small glass jar, burnt clothes (Ex. P-8), Chappals/Sandals (Ex. P-2), plastic bottle of kerosene (Ex. P-5), match box (Ex. P-6) and broken bangles (Ex. P-7). This was done in the presence of Smt. Randeep Kaur (PW-3) and Neeraj Sharma. Recovery was effected vide memos (Ex. PW-3/B & 3/C). Spot map was prepared by Dharam Singh (PW-10) and Vijay Chauhan (PW-13) and photographs of spot of crime taken by Gulsher Ahmed (PW-12). On the spot, police arrested Parat Singh (accused), husband of Bimla Devi, who allegedly set his wife on fire by pouring kerosene oil.

Investigation of the case was conducted by Dy. S.P. Pritam Singh (PW-20), Dy. S.P. Bhagat Singh Thakur (PW-22) and SHO Khajana Ram (PW-23). Investigation revealed that Bimla Devi was married to accused in the year 1982. Since she could not conceive and deliver a child, accused solemnized another marriage with a lady by the name of Suman, who through the accused, conceived and delivered a child. This was all during subsistence of his marriage. Accused would torture Bimla Devi and pressurize her to give divorce. Investigation also revealed that Bhabi (sister-in-law) of the accused died after giving birth to a child, namely Pankaj Kumar, who lived with the deceased. Persistently, accused tortured the deceased.

On 19.5.2004 at about 9.30 p.m., accused quarreled with the deceased in the presence of Pankaj Kumar. Smt. Randeep Kaur (PW-3), a neighbour, called both the accused and Bimla Devi and counseled them. Later on at about 12-12.30 mid night, accused again quarreled with Bimla Devi. On 20.5.2004 at about 6.30 a.m., Bimla Devi again came to the house of PW-3 and told her that accused had not allowed her to enter the house and as such she was forced to spend the night in the verandah. Thereafter, Bimla Devi went to her house and started boiling milk for Pankaj Kumar. At that time, accused entered the kitchen, poured kerosene oil and set her on fire. She cried for help but accused dragged her into the bathroom, where he poured water on her. Bimla Devi, who sustained severe burn injuries, was taken to the hospital, in a car, by a neighbour.

Police, during investigation, also recovered mobile call records (Ex. PW-18/A-1 to A-3) of Suman and accused, from Surinder Pal Singh (PW-18), evidencing the fact that both of them had been in constant touch with each other. Police also took into possession affidavits (PW-7/A, 7/B & 4/C) sworn by accused, Suman and her mother Meena Devi. Also record (Ex. PW-11/A to 11/C), showing that a child was born to Suman through accused, was seized by the police.

Incriminating material collected by the police was sent for scientific analysis and report (Ex. PX) obtained from Forensic Science Laboratory, Junga.

With the completion of investigation, challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under the provisions of Sections 302 and 494 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.

In order to establish its case, prosecution examined as many as 23 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took up a defence of being a victim of conspiracy, hatched by Rajesh Kumar (PW-7), brother of the deceased, as also Smt. Randeep Kaur @ Rano (PW-3), a politically influential person. During her life time, deceased threatened to commit suicide and involve him in a false case. He had also lodged a complaint in April 2003. In order to establish his defence, accused examined three witnesses.

Appreciating the testimonies of the witnesses, trial Court convicted the accused for having committed an offence, punishable under the provisions of Section 302 of the Indian Penal Code, and sentenced him as aforesaid, but however acquitted him in relation to an offence punishable u/s 494 of the Indian Penal Code, for the reason that prosecution failed to prove, the accused having solemnized second marriage with Suman, in accordance with Hindu customary rites.

State has not filed any appeal against the acquittal of the accused, in relation to one of the charged offences.

Assailing the judgment, Mr. Jagdish Vats, learned counsel for the appellant, has argued that (i) dying declaration is not worthy of credence and as such reliance thereupon is totally erroneous, illegal, resulting into travesty; (ii) conduct of the accused in dousing the fire and taking the deceased to the hospital belies the prosecution case of murder; (iii) findings returned by the trial Court cannot be said to be on the basis of legal evidence.

The fact that Bimla Devi (deceased) was married to the accused in the year 1982 is not in dispute. That the deceased did not bear any child out of the wedlock is also not in dispute. Pankaj Kumar (PW-5), aged 7 years at the time of the incident, is son of brother of the accused and was living with the deceased also cannot be disputed. It is the case of accused that he had actually adopted Pankaj Kumar. But this fact is not established on record. The fact that both the accused and the deceased were living at Durga Colony, Taruwala alongwith Pankaj Kumar is also not in dispute. The fact that accused was working with ESI organization is not in dispute. In fact, as is evident from his line of cross-examination, it is his own case that he had served at different places in the State of Gujarat, Punjab and Haryana. Accused hails from District Hoshiarpur (Punjab).

It be also observed that there is no dispute about the fact that deceased died, on account of burn injuries, which fact also stands established through the testimony of Dr. K.L. Bhagat (PW-2) and Dr. Kamal Pasha (PW-17).

We are mindful of the fact that accused stands acquitted, in relation to an offence, punishable u/s 494 of the Indian Penal Code. Before us, prosecution has not assailed this part of the judgment, not even during the course of hearing of the appeal. But however, to establish the guilty intent of the accused, in relation to charge under the provisions of Section 302 of the Indian Penal Code, prosecution has invited our attention to the material placed on record, evidencing the factum of accused marrying Suman, during the subsistence of his marriage with deceased Bimla Devi. It is argued that Suman, through accused, had delivered a child and accused wanted to extract a divorce from Bimla Devi for which he used to torture and pressurize her.

According to the prosecution, it is the accused, who set the deceased on fire, after pouring kerosene oil. On the other hand, it is the case of the accused that deceased put herself on fire, after pouring kerosene oil. Incident took place in the house of the deceased is not in dispute.

Only question, which needs to be examined, is as to whether prosecution has been able to prove, beyond reasonable doubt, the fact that accused set his wife on fire with an intent to kill her or not.

Having heard learned counsel for the parties and perused the record, we are of the considered view that in the instant case no ground for interference is made out. The dying declaration, corroborated by independent witnesses, proves the guilty intent of the accused in murdering his wife. This fact stands established on record, beyond reasonable doubt.

Law with regard to dying declaration is now well settled. In Jaishree Anant Khandekar Vs. State of Maharashtra, a comparative study of laws of various countries on the point of dying declaration was done by the Apex Court. It was held that:

The law relating to dying declaration is an exception to the hearsay rule. The rationale behind admissibility of a dying declaration was best expressed, not in any judgment, but in one of the soliloquies in Shakespeare''s King John, when fatally wounded Melun wails:

Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure '' against the fire? What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth? (See King John, Act V, Scene IV.)

Both Taylor and Wigmore in their treatise on Evidence took refuge to the magic of Shakespeare to illustrate the principles behind admissibility of dying declaration by quoting the above passage.

Among the judicial fraternity this has been best expressed, possibly by Lord Chief Justice Baron Eyre (See. R. Vs. Woodcock, (1789) 1 Lea. 502, and which I quote (ER p. 353): -

...That such declarations are made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that which is imposed by a positive oath in a court of justice.

The test of admissibility of dying declaration is stricter in English Law than in Indian Law. Sir James Fitzjames Stephen in 1876 brought out a ''Digest of the Law of Evidence'' and its introduction is of considerable interest even today. The author wrote that English Code of Evidence is modelled on the Indian Evidence Act of 1872. In the words of the author:

In the autumn of 1872 Lord Coleridge (then Attorney General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August, 1873, just before Parliament was prorogued. The Bill was thus never made public, though I believe it was ordered to be printed.

It was drawn on the model of the Indian Evidence Act and contained a complete system of law upon the subject of evidence.

In that book, Article 26 sums up the English law relating to dying declaration as under:-

Article 26. Dying Declaration as to Cause of Death. - A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made.

Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular.

(emphasis supplied)

In Section 32(1) of the Indian Evidence Act the underlined portion is not there. Instead Section 32(1) is worded differently and which is set out:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant -Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death - When the statement is made by a person as to the cause of his death, or to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person''s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be he nature of the proceeding in which the cause of his death comes into question.

(emphasis supplied)

The Privy Council in the case of Nembhard Vs. The Queen, 1982 (1) All ELR 183 (Privy Council), while hearing an appeal from the Court of Appeal of Jamaica, made a comparison of the English Law and Indian Law by referring to the underlined portions of Section 32(1) of the Indian Evidence Act at page 187 of the report. Sir Owen Woodhouse, speaking for the Privy Council, pointed out the different statutory dispensation in Indian Law prescribing a test of admissibility of dying declaration which is distinct from a common law test in English Law.

Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one''s life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eye witness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice. American Law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the necessity principle.

On certainty of death, the same strict test of English Law has been applied in American Jurisprudence. The test has been variously expressed as ''no hope of recovery'', ''a settled expectation of death''. The core concept is that the expectation of death must be absolute and not susceptible to doubts and there should be no chance of operation of worldly motives. (See Wigmore on Evidence page 233-234).

This Court in Kishan Lal Vs. State of Rajasthan, held that under English Law the credence and the relevance of the dying declaration is admissible only when the person making such statement is in hopeless condition and expecting imminent death. Justice Willes coined it as a "settled hopeless expectation of death" (R Vs. Peel, (1860) 2 F. & F. 21, which was approved by the Court of Criminal Appeal in R Vs. Perry, (1909) 2 KB 697). Under our Law, the declaration is relevant even if it is made by a person, who may or may not be under expectation of death, at the time of declaration. (See para 18, page 3066). However, the declaration must relate to any of the circumstances of the transaction which resulted in his death.

In Khushal Rao Vs. The State of Bombay, the Apex Court has further held that:-

Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But in our opinion, it is not right in principle to do so. Though under S. 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice, illustration (b) to S. 114 of the Act, lays down as a rule of produce based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other cases that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.

It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as for as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the lying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities.

(Emphasis supplied)

The aforesaid decision came up for consideration before the Constitution Bench of the Apex Court in Harbans Singh and Another Vs. State of Punjab, and after taking into account its earlier decision in Ram Nath Madhoprasad and Others Vs. State of Madhya Pradesh, affirmed the aforesaid view. In Smt. Paniben Vs. State of Gujarat, the Court has further reiterated and laid down the following principles:-

A dying declaration is entitled to great weight. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring-corroboration is merely a rule of prudence.

However, since the accused has no power of cross-examination, which is essential for eliciting the truth, the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

Merely because a dying declaration does not contain the details as to occurrence, it is not to be rejected. Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. But a dying declaration which suffers from infirmity cannot form the basis of conviction. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Munnu Raja and Another Vs. The State of Madhya Pradesh,

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, Ramawati Devi Vs. State of Bihar,

(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. K. Ramachandra Reddy and Another Vs. The Public Prosecutor,

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v.

Rasheed Beg and Others Vs. State of Madhya Pradesh,

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. Kake Singh Alias Surendra Singh Vs. State of Madhya Pradesh,

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. Ram Manorath and Others Vs. State of Uttar Pradesh,

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. State of Maharashtra Vs. Krishnamurti Laxmipati Naidu,

(viii) Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Ojha and Others Vs. State of Bihar,

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. Nanhau Ram and Another Vs. State of Madhya Pradesh,

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. State of U.P. Vs. Madan Mohan and Others,

In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declarations made by the deceased Bai Kanta. This Court in Mohanlal Gangaram Gehani Vs. State of Maharashtra, held:

where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.

Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, they have to be accepted.

However, where the prosecution version differs from the statement of deceased, dying declaration cannot be used for convicting the accused [Paniben (supra)].

The aforesaid view has been reiterated in Jai Karan Vs. State of (N.C.T. Delhi), Sham Shankar Kankaria Vs. State of Maharashtra, and Mohd. Asif Vs. State of Uttaranchal,

The Constitutional Bench of the Apex Court in Laxman Vs. State of Maharashtra, while considering the conflict in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, and Koli Chunilal Savji and Another Vs. State of Gujarat, came to the conclusion that law laid down in the latter was the correct law and simply because the Doctor has not recorded/made endorsement that the deceased was in a fit state of mind to make the statement in question, other material on record to indicate that the deceased was fully conscious and capable of making statement cannot be ignored. This view has been reiterated in Ravi and another vs. State of T.N. (2004) 10 SCC 776 and Kamalavva and Another Vs. State of Karnataka,

In Shaik Nagoor vs. State of Andhra Pradesh represented by its Public Prosecutor, High Court of Shaik Nagoor Vs. State of A.P. rep. by its Public Prosecutor, High Court of A.P., Hyderabad, the Apex Court held that where the Judicial Magistrate and the Police officer had given detailed description and witnesses were not cross-examined on the point of fitness of the deceased to give dying declaration plea taken by the accused that the deceased was not fit to make the statement, under the circumstances of that case, was untenable.

In Maniben Maheria Vs. State of Gujarat, the Court was dealing with a case where death had taken place 25 days after recording of the statement of the deceased and the same was taken to be a dying declaration.

Further in Sohal Lal @ Sohan Singh and Others Vs. State of Punjab, State of Karnataka Vs. Shariff, Dayal Singh Vs. State of Maharashtra, and Kanti Lal Vs. State of Rajasthan, it has been held that it is not necessary that dying declaration is to be recorded before the Magistrate. The same can be recorded even before or by the police official. This view stands reiterated in Gulam Hussain and Another Vs. State of Delhi,

In Mohan Lal and Others Vs. State of Haryana, the Court disbelieved the statement made by the wife of the accused on the ground that not only it was vague but also there was no contemporaneous documentary or other material to prove dowry demands prior to the incident.

In Jayabalan Vs. U.T. of Pondicherry, the Apex Court was dealing with the case of an accused who was charged of having poured kerosene oil on his wife and then set her on fire. The accused husband was charged for having committed an offence punishable u/s 302, IPC. The accused assailed the findings of conviction on the ground that prosecution had examined only interested witnesses and also dying declaration was tutored, promoted and product of the imagination of deceased. In the proven facts of that case repelling the contention, it was held as under:-

We are of the considered view that in case where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

(Emphasis supplied)

In Sukanti Moharana Vs. State of Orissa, the Court was dealing with a case where the dying declaration was challenged on the ground that it did not contain thumb impression or signatures of the deceased. The challenge was repelled on the ground that medical evidence proved that the deceased was having 90% burn injuries on the thumb and therefore was in no position to sign the dying declaration. The Apex Court further reiterated its decision in Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P., in the following terms:-

...This Court in more than one decision cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.

This view stands reiterated in Ongole Ravikanth Vs. State of A.P.,

Dying declaration need not be in the form of question and answer. Principles required to be adopted for recording the statement of deceased stand reiterated in Ram Bihari Yadav Vs. State of Bihar and Others, State of Karnataka Vs. Shariff, and K. Ramachandra Reddy and Another Vs. The Public Prosecutor,

Prosecution evidence has to be appreciated in the backdrop of the above stated legal position.

Dr. K.L. Bhagat (PW-2) was posted at Civil Hospital, Paonta Sahib. He has testified that on 20.5.2004 at about 8.30-8.40 a.m., deceased was brought to the hospital. He attended to her. Since her condition was critical, she was referred to PGI at Chandigarh. According to him, nature of burns was 100% and he issued MLC (Ex. PW-2/C).

Dr. Kamal Pasha (PW-17), who conducted postmortem and prepared report (Ex. PW-17/B), has deposed that deceased died due to 98% full thickness burn leading to hypovolumic shock and injuries on the person of the deceased could be caused by pouring kerosene oil and setting her on fire.

Dy. S.P. Bhagat Singh Thakur (PW-22) conducted investigation of the case w.e.f. 25.5.2004 to 10.6.2004. He has proved affidavits of accused (Ex. PW-7/B), Suman (Ex. PW-7/A) and her mother Meena Devi (Ex. PW-7/C). These affidavits were attested by Advocate Shri R.K. Madan (Notary Public) (PW-8). Entries in relation to these affidavits were made and signatures of the deponents obtained on the Register maintained by him. These affidavits also disclose the fact that accused got married to Suman on 8.6.2003.

Prosecution has also proved on record, through the testimony of Dr. Maya Garg (PW-11) that Suman, wife of Parat Singh son of Hari Ram, resident of Hoshiarpur, gave birth to a child in her hospital, on 12.3.2004. She has proved medical record (Ex. PW-11/A) and certificate of birth (Ex. PW-11/B and 11/C).

Assuming that the factum of marriage and birth of a child is not proved by these witnesses, at this juncture, we may also observe that PW-22, in his uncontroverted testimony has also deposed that on two occasions, prior to her death, Bimla Devi had complained to him about the conduct of the accused, who had stopped providing maintenance to her. She had disclosed the factum of accused having solemnized another marriage as also accused ill-treating her.

Thus, we find that there was sufficient motive for the accused to have murdered the deceased. He had been wanting the deceased to give divorce, which fact, as would be seen, stands materially disclosed by other independent witnesses.

We may also observe that through his defence witnesses, accused has tried to prove that there was animosity between him and brothers of the deceased. We would like to deal with the statements of these witnesses, at this juncture.

According to HC Dev Raj (DW-2), on 9.12.2002, a complaint was received from accused Parat Singh against Bimla Devi and her brothers Dalbir Singh and Rajesh, alleging threat to his life. What happened to this complaint? has not come on record. The document (written complaint) has not been placed and proved on record nor has this witness testified contents thereof. Significantly, here the defence of the accused is that the deceased threatened to kill herself and falsely implicate him. But the complaint sought to be proved is other way. Testimony of this witness does not even remotely probabilise the defence of the accused.

HC Sunder Singh (DW-3) has simply proved registration of FIR No. 358 dated 5.9.2004 against brothers of the deceased and Smt. Randeep Kaur (PW-3). But this FIR was registered much after occurrence of the incident and that too. This has got nothing to do with the innocence of the accused in the present case.

Next witness is Virender Singh (DW-1), neighbour of the accused. Perusal of his testimony would only establish that (a) the witness was a neighbour; (b) he took the deceased to the hospital in his car; (c) accused accompanied him to the hospital; (d) on way, deceased, who was in great pain, cried and uttered words Hai; (e) at the time when she was put on the stretcher, for being taken inside the hospital, she did not speak anything. But then this witness categorically does not state as to whether at that time deceased was in her senses or not. He does not state that deceased had become unconscious. All that he states is that she had stopped talking. This witness admits presence of a seven years old child (Pankaj) in the house of the deceased.

To our mind, this witness does not, in any manner, render the defence of the accused to be probable. It is nobody''s case that accused had not accompanied his wife to the hospital or had absconded. It is also not the case of prosecution that on way to the hospital, deceased had narrated occurrence of the incident to any person. Simply because on way to the hospital, deceased did not disclose the cause or the manner in which the incident occurred, would not render the prosecution case to be doubtful. Distance between the spot of crime and the hospital is just 2 kms and at that time deceased was admittedly in great pain.

Now, coming to the relevant prosecution evidence, we find that there is a dying declaration (Ex. PW-2/B), recorded in the presence of Dr. K.L. Bhagat (PW-2), who unequivocally, has deposed that an application (Ex. PW-2/A), for recording statement of the deceased was moved. He certified the deceased to be fit to make statement. Police recorded statement of Bimla Devi (deceased) in his presence. She disclosed that her husband used to torture her, and on the day of incident burnt her by sprinkling kerosene oil on her. Her husband had married Suman. He burnt her, as she could not bear a child and he did not want to keep her. Night before the incident, accused quarreled with her.

This dying declaration bears right hand thumb impression of the deceased, who sustained 100% burn injuries, as she was not in a condition to sign the same. But then the doctor (PW-2) has signed it. We do not find that minor contradiction with regard to the time, of the patient being brought to the hospital and recording of her statement, there is anything which would render her dying declaration to be doubtful. In the MLC, it is recorded that the patient was brought at 9 a.m., whereas in the statement time recorded is 8.50 a.m. Difference in time is just of 10 minutes, which is to be ignored for the reason that doctor has deposed that he was trying to save the lady, who was fighting for her life. Also, this dying declaration stands materially corroborated by PW-2 and Khajana Ram (PW-23), in whose presence the same was made.

Contents of dying declaration stand fully corroborated by Smt. Randeep Kaur (PW-3), who has also deposed that on 19.5.2004 at about 9.30 p.m., deceased came to her house and told her that accused had been quarreling with her and asking her to accept the notice of divorce. She called Parat Singh to the house of Pritam Singh and asked them not to quarrel. At about 12.30 in the night, Bimla Devi again came and told her that accused was quarreling and torturing her. In the morning (20.5.2004) at about 6.30 a.m., Bimla Devi came and said that she had spent the whole night outside in the verandah, as accused did not allow her to enter the house. Accused also said "why don''t you die". At about 8 a.m., she heard that accused had burnt Bimla Devi, when she immediately rushed to the spot. Seeing her, Bimla Devi, who was totally naked, cried "Didi, he has burnt me". She wrapped Bimla Devi with a bed sheet, who was then taken to the hospital in a vehicle. Significantly, this witness also mentioned about the presence of Suman in the life of the accused.

Crucially this witness had no reason to depose against the accused. There is nothing in her cross-examination to suggest that she was harbouring any grudge/animosity against the accused. It is not even suggested to her that she is politically well connected or otherwise influential. It is not suggested to this witness that she has falsely deposed about the incident, which had taken took place the previous night.

We find that to corroborate the dying declaration, prosecution examined Pankaj (PW-5), who though in his examination-in-chief did depose that his father (accused) had set his mother (deceased) on fire, but in cross-examination clarified that this he deposed on the asking of his Mama (Rajesh). Thus to this extent, no reliance can be placed on testimony of this witness, but however, we find that unequivocally he has deposed one fact, which lends credence to the prosecution case about the incident which took place in the night intervening 19.5.2004 and 19.5.2004. In his unsheltered testimony, witness has categorically deposed that throughout the night, both he and his mother (deceased) slept in the verandah, which was at about 12 O''clock in the night.

It is contended that accused is a victim of conspiracy of Smt. Randeep Kaur (PW-3) and Rajesh Kumar (PW-7), but we find that there is no connection between the two. It has come on record through the testimony of PW-7 that he met PW-3, for the first time, after occurrence of the incident. We find that there is extensive cross-examination of PW-7, with regard to certain financial transaction, entered into between him and the accused. Rajesh Kumar (PW-7) wants the Court to believe that he paid money to the accused to get his sister medically cured and meet financial demands. We need not go into this aspect, for the simple reason that otherwise we find that there is enough motive on record for the accused to have committed the crime. Money was never a motive to commit crime.

Prosecution has been able to prove recovery of incriminating material in the shape of burnt skin (Ex. P-3), burnt ash (Ex. P-4), burnt nails kept in a small glass jar, burnt clothes (Ex. P-8), Chappal/Sandal (Ex. P-2), plastic bottle of kerosene (Ex. P-5), match box (Ex. P-6) and broken bangles (Ex. P-7), through the testimony of investigating Officer SHO Khajana Ram (PW-23).

Constable Arun Kumar (PW-1) has proved on record, report (Ex. PW-1/A) recorded at the Police Station; SI Sucha Nand (PW-19) has proved FIR (Ex. PW-19/B); HC Raj Kumar (PW-14) has proved that seized articles were deposed with him at the Police Station; and Surat Singh (PW-15) has proved that the incriminating articles were taken to Forensic Science Laboratory, Junga and report (Ex. PX) obtained by him.

We find that there is testimony Shri J.C. Sharma (PW-16), Tehsildar, who in fact has proved statement (Ex. PW-16/A) of Pankaj (PW-5), which is in the line of the dying declaration (Ex. PW-2/B) of the deceased. However, we have not considered this statement, while arriving at our findings.

Thus, to our mind, dying declaration, corroborated by independent witnesses, clearly establish the prosecution case of the accused having committed murder of his wife. His conduct of dousing the fire is not of much help. He took the deceased from the kitchen to the toilet and poured water. He took no steps for dousing the fire by covering the deceased with a cloth. He was asked to take the deceased to the hospital. Findings returned by the Court below are based on legal evidence. We do not find any illegality, infirmity or perversity in the judgment passed by the Court below. It cannot be said that the Court below erred in correctly and completely appreciating the evidence led by the parties, resulting into travesty of justice.

For all the aforesaid reasons, appeal is dismissed. Pending applications, if any, also stand disposed of.