Balbir Singh vs State

M.L. Koul, J.—This appeal has been filed by the appellant Balbir Singh (hereinafter referred to as the accused) against his conviction for the commission of murder of his wife Smt. Rajinder Kour and sentence of death awarded to him by the learned Sessions Judge, Poonch, by his order

dated 17-4-1990.

The prosecution case which owes its origin to the dying declaration of the deceased Smt. Rajinder Kour, shortly relates that the deceased

Rajinder Kour was married to the accused Balbir Singh and one boy and a girl had born out of this wedlock, who are alive. Her sister Smt.

Gurjeet Kour got married to her borther-in-law Darshan Singh (Younger brother of the accused) on the date of occurrence and this marriage had taken place at the instance of her husband. Some days earlier to the eventful day, her husband was declaring that he would not allow this marriage to take place. When the marriage party returned home at 10 a.m. on 7-10-1987 her husband got infuriated and he had not also formed the marriage party. Short while after the barat came back to home, her husband asked the deceased to bring some fresh water. She got some fresh water and sat beside her husband. He (accused) took up a gallon containing kerosene oil in his hands and sprinkled it upon her and set her ablaze with a match stick. He was telling her that, in case her sister got married in their house, he would do away with her life. Her husband was not having good relations with his brother and father and, for that reason, he disliked her sister getting married to his brother. Such dying declaration of the deceased was recorded by the S.H.O. Poonch under EXPW. BAM in presence of Dr. Bashir Ahmad Malik. On this report forwarded by

S.H.O. to the Police Station Poonch, a case u/s 307 of the RPC was registered against the accused. During investigation of the case, the deceased died in the hospital on 13-10-1987 by succumbing to the 100% burn injuries sustained by her from burning, at the hands of the accused with an intention to kill her, for she could not prevail upon her parents and sister to see that her sister Gurjeet Kour was not married to the brother of the

accused.

Soon after the registration of the case, the site-plan EXPW. TH was prepared and one match box and some other articles vide seizure memo

WXPDS/1, EXPDS/2 and EXPOS/3, were seized by the police including one handker-chief of the accused vide seizure memo EXP.DS. Also some clay with kerosene smell was seized under EXP.DS/4.

The prosecution examined 15 witnesses and nobody was examined in defence.

There is no eye witness to testify to the act of setting fire to Rajinder Kour, which is the prosecution case or the fact of the Rajinder Kour's

catching fire accidently, as alleged by the defence.

The learned court below convicted the appellant on the basis of circumstantial evidence. The circumstances established against the accused, are:

i)The dying declaration of the deceased recorded by S.H.O. Talib Hussain, wherein it is alleged that the accused sprinkled kerosene oil on the person of the deceased and set her on fire after lighting a matchastick, and such a statement of the deceased was recorded in presence of P.W.

Dr. Bashir Ahmad Malik;

ii) Oral dying declaration of the deceased made by her before her father P.W. Lal Singh, who visited her in the hospital and, before whom, she had stated that the accused being annoyed for her another sister getting married to the brother of the accused, sprinkled kerosene oil upon her and put her ablaze after lighting a match stick;

iii) Medical evidence of Dr. Bashir Ahmad Malik stating that the deceased died on 13-10-1987 and her cause of death was toximia dure to burns,

which led to cardiac respiratory failure and death of the deceased; and

iv) Motive.

The Rajinder Kour who was burnt at the relevant point of time has never been in dispute. There could be three alternatives for her being burnt:

i) Suicide;

ii) Accidental fire; and iii) Being put on fire.

The plea of suicide has not been advanced either by the prosecution or by the defence. It is true, that Rajinder Kour was being teased by her

husband on account of the fact that he never wanted that her younger sister should get married to his younger brother, but she had withstood all that and was living with her husband nicely. The record does not have any indication that Rajinder Kour ever thought of putting an end to her life.

Suicide, as the reason of death has, therefore, rightly not been pressed into service, leaving the other two alterntives of accidental fire as pleaded by the defence and the intentional killing by burning her, as pleaded by the prosecution, for consideration.

So far as the irst circumstance i.e. the dying declaration of the deceased is concerned, it is significant to note that the deceased made a statement

soon after the occurrence before the SHO Talib Hussain, who reached immediately on the spot on some secret information. She stated before him that the accused was infuriated on account of the fact that her younger sister Gurjeet Kour got married to Darshan Singh younger brother of the

accused. The accused made her to bring fresh water for him, likely with a motive to see that whether there was any explosive material available,

with which he could do away with her. Soon after, she came back and sat near him, he took up a gallon containing kerosene oil in his hand and sprinkled it over her clothes and set her on fire after lighting a match stick.

Such a declaration of the deceased disclosed that this thing was done by the accused within on a spur of the moment. This declaration was

recorded by P.W. Talib Hussain in presence of Dr. Bashir Ahmad Malik, who has certified that the dying declaration of the deceased was recorded on the verandah of his hospital by the P.W. Talib Hussain, and he had given a certificate testifying that the victim had burns on her both eyelids as well and could not open her eyes for signatures. She had burns over her hands as well and, as such, her thumb impression could not be

taken. On the basis of said declaration, the police swung into action and a criminal case u/s 307, RPC was registered against the accused. Soon

after, the SHO Talib Hussain learnt about the incident, not a moment's time was wasted by him in lifting the deceased to the hospital, where necessary medical aid was provided to her by the Doctor Bashir Ahmad Malik. It was found that she had 100% burns on her body, and there was no likelihood of her survival and the same prompted the said SHO to record her declaration immediately. The said declaration in un-impeacheable words indicted the accused with the commission of crime that it was he and he alone, who sprinkled kerosene oil upon the clothes of the deceased and set her on fire with a motive to kill her after he was apprehensive that she had a hand in getting her younger sister married to the brother of the

accused, when he was inimical both to his brother and father.

P.W. 1 Parkash Singh (brother of the deceased). P.W. 3 Smt. Nanki Devi (mother of the accused). P.W. 4 Darshan Singh (brother of the

accused). P.W. Joginder Kour (Bhabi of the accused) examined as witnesses by the prosecution, have been declared hostile, for they have changed their evidence which was recorded by the Investigation Officer u/s 161 of the Cr. P.C. However, they could not conceal the fact that the accused and the deceased were living separately from them in a different house and none of the brothers and father of the accused attended the barat of Darshan Singh, who was married to Gurjeet Kour sister of the deceased on the eventful day, for the fact that this was a love marriage and there was a feud about his marriage in their house. As per the terms of the dying declaration, such a discard had arisen on account of the fact that the accused was not in favour of this marriage, because he was not bearing good relations with his father and brothers. These hostile witnesses admitted the fact that the deceased in flames came running from her house and water was poured on her and she was covered with a blanket.

According to them, she narrated at that time that she caught fire accidently after her stove burst out. Shortly after the occurrence. P.W. 11 Darshan singh reached on the spot and found that the body of the deceased was covered with a blanket and, therefore, he could not see as to whether she was dead or not? Although, this witness also turned hostile, but he could not resist to confirm the fact that after the solemnization of their marriage in Gurdawara Nangali Sahib, the bride and bridegroom were brought back to their home in a vehicle by him. Some people told him that the deceased in a burning condition had come out running from her house and fell down in the compound. The only irresistable conclusion drawn from the above hostile prosecution witnesses would be that she was set on fire, as a result of which she sustained 100% burn injuries, which resulted into her death after some days in the hospital. This pivotal circumstance of evidence, on which the whole prosecution story is based, is the dying declaration of the deceased recorded by P.W. Talib Hussain. He immediately after the occurrence went to the house of the accused and found that the deceased was in a burnt position and on a cart she was taken to the hospital at Poonch and, in the presence of Dr. Bashir her statement

EXPWD. BAM was recorded. The said declaration of the deceased was attested by Dr. Bashir Ahmad and signed as a witness by PW Parkash

Singh brother of the accused, who was declared hostile by the prosecution. This dying declaration formed the basis for initiation of the prosecution against the accused. Such dying declaration of the deceased moments after the occurrence was recorded by the Investigating Officer without fail in presence of the Dr. Bashir Ahmad under the bona fide impression that there was no possibility of the deceased to survive any longer, for she had received 100% burn injuries on her person. This fact receives recognition from the certificate of the said Doctor recorded on the back of the dying declaration EXPW.BAM to the effect that the victim was having burns on both of her eyelids and could not open her eyes and was unable to give her signatures, for her hands were burnt and the thumb impressions were not visible. So far as the accused being in the company of the deceased prior to the occurrence is concerned, the same is not indispute, for it is the case of the prosecution based even upon the hostile evidence of the relatives of the accused that on the eventful day, none of them had gone to Gurdawara Nangali Sahib for celebration of the marriage of Gurjeet

Kour (sister of the deceased) and Darshan Singh (brother of the accused) for all of them had stood back in their house, as the deceased had forbade her husband from attending the marriage of the couple on account of the fact that the deceased never wanted that the marriage of her sister should take place with the brother of the accused. Such atainted evidence of the accused's nearest relatives is put at naught from the very language of the deceased's dying declaration, which is related in english translation, as under :--

My husband's name is Balbir Singh. I have one son and a daughter. My sister Gurjeet Kour was married to my brother in law (devar) Darshan

Singh today. This marriage had been settled by my husband was saying that he would not like this marriage to take place. Today when at 10'O

clock this marriage party returned, my husband had not gone with the Barat. Soon after the barat returned, my husband told me to bring some fresh water. I brought some fresh water. No sooner I sat down, my husband picked up a gallon containing kerosene oil and at once sprinkled it upon me and by lighting a matchstick, he set me on fire. My husband was saying, if my sister is brought in marriage in their house then he would kill

me. My husband was inimical towards his brother and father for some days, therefore, he was not liking that my sister should come to his house.

We are living separately from them.

During arguments, a great emphasis was laid by Mr. R.P. Bakshi learned Counsel for the accused on Section 32 of the Evidence Act, which

provides the mode as to how a dying declaration should be recorded. According to him, it lays down that a dying declaration should preferably be in question and answer from. As in the present case, that has not been done, therefore, no reliance could be laid on such a statement of the deceased which is impeacheable for the reason that it is not recorded in the form, as is envisaged u/s 32 of the Evidence Act. It is well settled principle of law that when a conviction rests on a dying declaration, it is implied that it must inspire confidence so as to be safe to act upon it. So far as the circumstance that the accused was living with the deceased preceding to her burning, is not in dispute. This fact that the accused on the eventful day was present in the town is established from the evidence of his brothers, mother and bhabies as discussed above, that none of their family members had gone to Gurdwara Nangali Sahib to attend the marriage ceremony, for there was a discard between the deceased and the accused with regard to the celebration of the marriage of deceased's sister Gurjeet Kour with the younger brother of the accused, namely, Darshan

Singh. The evidence of these witnesses when analysed and sifted minutely, gives a clear perception of the fact that there was a total discord between husband and wife i.e. the accused and the deceased with regard to the solemnization of the marriage of their brother and sister, namely,

Darshan Singh with Gurjeet Kour. Such a discard assumed such a magnitude, as a result of which the accused was suspicious of his wife the

deceased, who, according to him, had played a prominent part in seeing that her sister got married to his brother.

The fact remains that the brothers, mother and sisters-in-law of the accused did not take a leading part in putting out the fire from the

deceased's person, and did not ensure her despatch for medical assistance at all, and the same was expected of them as dear kith and kins of the

accused. Luckily, somebody gave secret information to the police and the SHO, Poonch, immediately rushed on the spot and took the deceased on a cart with 100% burns on her body to the hospital. He immediately recorded her statement in presence of Doctor Bashir Ahmed Malik, who,

on enquiry told him (the SHO) that the condition of the patient was critical and she was on her death bed. There was no hope of her survival. The said Doctor confirmed the language which was used by the deceased in making her statement before the Investigating Officer. The prompt investigation of the Investigating Officer made this case of burning possible to be proved by the prosecution on a bona fide circumstance of dying declaration recorded by the Investigating Officer, soon after the occurrence took place.

It was argued by the learned Counsel for the accused that as the dying declaration of the deceased was neither recorded by a Magistrate nor

by a Doctor, but by the Investigation Officer himself without explaining the non availability of the Magistrate and the Doctor, therefore, such a dying declaration could not inspire confidence on which conviction could be recorded. Such an argument advanced and based upon the proposition of law as laid down in State (Delhi Administration) Vs. Laxman Kumar and Others, does not hold good in the circumstances of the case in question; firstly, on the ground that such a declaration was recorded by the SHO in presence of a Doctor witness soon after the occurrence had taken place, and the same was recorded instantly for the reason that the Doctor had opined to the S.H.O. that the lady (deceased) was in a critical stage and there was no hope of her survival. Secondly, the condition of the patient at that time necessitated that the Investigating Officer should have recorded her statement immediately, which he did and, although, the patient had 100% burns on her body and even was not in a position to put her thumb impressions on her statement, which were burnt, but was in a good state of mind to make such a statement without any waivering or in such a notch potch manner, which could show that she was actually in a semi conscious condition and talking incoherently, and there was a possibility that in that manner, her imagination might have played with her in giving out the name of the accused as her assailant. It is the case of the prosecution and defence as well, that both the deceased and the accused were enjoying a happy marital life and, therefore, her imagination could not play with her to blurt out the name of her husband as her assailant. The statement of the deceased, which formed the basis for initiation of criminal investigation against the accused and being her last statement before her death, has withstood all the tests of the Evidence

Act, to be declared as a dying declaration, for it was made by the deceased before her death to the Investigating Officer relating the circumstances under which her death had taken place at the hands of the accused. Both the prosecution witnesses Investigating Officer Talib Hussain and Dr.

Bashir Ahmed have been put to a lengthy cross examination and have succintly proved that such a statement was made by the deceased of her own free will, when she was in a good state of mind and was not influenced or tainted by anybody, for there was no relation of her present in the

hospital at the time her statement was recorded. In Khushal Rao Vs. The State of Bombay, it has been held ""that 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 assilant of the deceased, there was 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 is suffers from an infirmity, then without any corroboration, it cannot form the basis of

a conviction"". In above context of the law, it becomes very material to make mention of the circumstances, under which the dying declaration of the

deceased has been recorded. The said declaration was recorded by its scribe P.W. Talib Hussain, soon after he received a secret information about the occurrence, he went to the house of the accused, and found that the deceased was laying in a burnt condition and he managed her shifting to Poonch hospital on a cot and recorded her statement in presence of Dr. Bashir Ahmad and her brother-in-law P.W. Parkash Singh.

P.W. Parkash Singh did not support the prosecution story in literal sense of his statement recorded u/s 161 of the Cr. P.C., but could not deny the fact that the deceased was burnt and she came out from her house in a burning condition while saying that she caught fire, for her stove had burst.

He did not support the dying declaration to have been recorded in his presence, but admitted his signatures on the dying declaration, which,

according to him, were recorded by the police on a blank paper. However, his statement is negatived by Dr. Bashir Ahmad who in unambiguous terms after being put to a lengthy cross-examination by the defence has stated and corroborated the fact that the dying declaration of the deceased

Rajinder Kour was recorded in his presence by P.W. Talib Hussain, when he (the Doctor) verified the fact that the deceased who could make a statement was in a critical state of health and there was every likelihood of her non survival and the same prompted the Investigating Officer to record her statement immediately in presence of the Doctor, fully being of the view that she could die at any time. Dr. Bashir Ahmad was a

Medical Officer and was, in no way, connected with the accused or the deceased. He being an expert with independent thinking about the matter,

was not expected to speak a lie. He did not bear any ill will or enmity towards the accused or any soft corner for the deceased and, therefore, one could not say that he could attest a blank document, so as to involve the accused falsely in the case. He had been working as a Surgeon in Poonch

Hospital. He was not bearing any ill will or grouse against the accused which could impel him to make a false statement against the accused. His position as an expert derives full confidence to believe him as an independent witness, who could say as to whether the deceased Rajinder Kour was in a fit condition to make a statement or not. He has testified that the deceased was in a good state of mind to make a statement, which she made before the Investigating Officer Talib Hussain. According to him, although the deceased had received 100% burns on her body, but she even then was conscious and in a fit state of mind to make a statement. He has stated that since the hands of the deceased were also burnt, therefore,

she was not in a position to mark her thumb impressions on the statement. He narrated the whole sequence as to how her statement was reduced to writing by the Investigating Officer. According to him, she made her statement slowly and was in a great pain and also cried while her statement was being recorded. The evidence of Investigating Officer and Doctor could not be impeached in any manner by the defence to show that the said declaration of the deceased was not free from any inducement or tain-tedness and, as such no conviction could be recorded on such evidence by the trial Judge. As the statement of the deceased was recorded immediately after the incident, therefore, there was no possibility for the S.H.O. to wait and call for the Magistrate to record her statement in a question answer form, for there was every likelihood that she could die any time.

Therefore, the way and the circumstances in which her statement has been recorded shows that such a statement of the deceased was independently sufficient to form the sole basis for the conviction of the accused even if there would have been no corroboration to it. In this regard,

one gets prompted to make mention of Khushal Rao Vs. The State of Bombay, wherein it has been authoritatively held that 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 the dying declaration is a weaker kind of evidence than other piece of evidence; a dying declaration stands on a same note as other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principle governing the weighing of evidence.

In the case on hand, the dying declaration of Rajinder Kour had been recorded at the earliest opportunity by the Investigating Officer soon

after he learnt about the occurrencce and removed her to the hospital, where except her brother-in-law, Darashan Singh and Dr. Bashir Admad,

none was present, who could tutor the deceased to make a statement against the accused (her husband). She was not impaired at the time her statement was recorded and remanined by and large consistent throughout, when immediately next time she made an oral declaration before her father Lal Singh and indicted her husband as the assailant, who sprinkled kerosene oil upon her body and then set her ablaze. We fail to

understand, as to why he has been declared n interested as awitness by the trial court when, in no manner he has improved upon or exaggerated the statement of deceased, as made by her, before his arrival. There is no proof on the file that she had lost total consciousness when her father met her in the hospital and both Doctor and I. O. were present when she made an oral declaration before her father about the incident, which ultimately resulted into her death. His statement, as such, is worth consideration and bears recognition to such a declaration as recorded by its scribe in the words of the maker of the declaration.

The deceased when removed from the place of occurrence to the hospital was surrounded by her in-laws and no relatives on her parents side

were present when the dying declaration was recorded. This is an admitted case of the parties that some discord arose between the husband and wife about the solemnization of the marriage of their brother and sister respectively, as a result of which, they were sour to each other, and the same resulted into the non participation of the family members of the bridegroom, Balbir Singh in his marriage ceremony which on the eventful day took place at Gurdwara Nangali Sahib. In the circumstances when the occurrence took place at a time when the accused was present in his house,

therefore, the evidence of dying declaration recorded by the Investigating Officer as far as practicable in the words of the maker of the declaration stands on a very higher footing than the dying declaration, which would have been made orally by the declarant and the same was likely to suffer from all infirmities of human memory and character. The present declaration has proved all the tests of Evidence Act, and the same has been recorded at the earliest opportunity by its scribe, who is Senior Officer in the police department in presence of the Doctor who testified to it in letter and spirit that such a statement was by the declarant which was free from any tutoring, inspiration or inducement. If such a statement could have been beyond her control, she could have easily indicted her inlaws people in the commission of the crime, even after she came crying to them and was ablaze in fire, but they did not take any leading part in putting out the fire from her person and ensured her despatch for medical

assistance, unless the Investigating Officer reached on the spot and removed her to the hospital. Their cold shoulder towards her, shows that; either they were under the control of their son (accused) badly, who never wanted that the marriage of Gurjeet Kour and Darshaan Singh to take place or they were inimical towards the deceased, which created an impediment in their mind not to take a leading part in putting out the fire from her person and ensure her despatch to the hospital. But, the deceased made a natural sequence of the circumstances, as a result of which, she was put on fire by her husband, which resulted into her death for she sustained 100% burns from such fire set on her by her husband after sprinkling kerosene oil on her body and was lit with a match stick. A. person at the verge of death is not supposed to make an untrue statement unless prompted or tutored by his friends or relatives. Infect; the shadow of immediate death is the best guarantee of the truth of the statement made by dying man the cause of circumstances leading to his death, which are absolutely fresh in his mind and is un-tainted or discoloured by any other consideration except speaking of truth. It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration.

Thus, if the statement of a dying person passes the test of graver scrutiny applied by the Courts, it becomes the most reliable piece of evidence which does not require any corroboration. Suffice it to say, that it is now well established by a long course of decisions. If, on a careful scrutiny of such a declaration, the Court is satisfied that the dying declaration is true and free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration, even if there is no corroboration.

The above mentioned view has been taken in AIR 1988 SC 558 (sic). In the instant case, the dying declaration has withstood all the tests laid down under the Evidence Act, and the trial court has very clearly on proper scrutiny of the evidence of the scribe of the dying declaration and its attesting witness Dr. Bashir Ahmad clearly after satisfying its conscience found that the dying declaration made by Rajinder Kour was true, and free from any effort which prompted her to make such a statement which was coherent and consistent and, therefore, there was no legal impediment in founding the conviction of the accused on such a dying declaration, even if it would be found that there is no corroboration.

Although, as discussed above, no corroboration is required to show that such a declaration was a true narration of the facts related with the

commission of the crime by the accused and was true and free from any effort to prompt the deceased to make a statement, that too, in a coherent and consistent manner, but, even then, such a declaration receives recognition in the statement of her father PW Lal Singh, before whom she verbally again indicated the accused for having committed the gruesome crime by sprinkling kerosene oil on her body and setting her ablaze. His statement put to lengthy cross-examination could not be impeached on any score. Rather it lends truthful and vallid support to the prosecution story that the dying declaration was made by the deceased in a very coherent and consistent manner in presence of a Doctor, who declared her to be fully conscious to make such a statement, even though, she was burnt badly.

The said dying declaration has assumed the importance of correctness on account of the other fact as well that soon after the dying declaration

was recorded at 11.15 a.m. on the eventful day, the same alongwith the report of its scribe (Investigating Officer in the case) was dispatched to the police station, Poonch, when FIR was registered at 11.40 a.m. We have never seen a case, in which such a promptness has been shown by a police officer, who has forwarded the dying declaratin of a deceased moments after it was recorded, to the Police Station, for it forming the part of

FIR on which the investigating Agency swung into action and it (declaration) ultimately formed the basis for recording the conviction of the

accused, after the said declaration went through all the requisite tests of evidence Act, to which the veracity of witnesses was put at the time their statements were recorded. The statements i.e. the statement of Doctor Bashir Ahmad and the scribe of the declaration Talib Hussain withstood all the cross-examination, to which they were put by the defence and after their evidence was scrutinized on the touch stone of Evidence Act, they were found to have correctly and independently proved the dying declaration, which was made before them by the deceased soon after the occurrence took place when her mind was free from any inspiration or promptness from any corner and the statement made by her was coherent and consistent in the natural sequence of the circumstances, under which such a statement was by her.

The next circumstances on which the conviction of the accused u/s 302 RPC has been recorded by the trial court, is the evidence of the

Doctor Bashir Ahmed, who has testified to the fact that the dying declaration of the deceased Rajinder Kour was recorded by the Investigating

Officer Talib Hussain in his presence. According to him, the deceased who was brought to hospital around 11 a.m. on 7-10-1987 was in a critical condition and there was no possibility of her survival. He informed the Investigating Officer on the latter's enquiry that there was no hope of her

survival, for she had 100% burns. The same prompted the S.H.O. to record her statement immediately. The said Doctor has certified the fact that the victim had burns on her both eyelids and could not open her eyes for signatures. She had burns over her hands as well and, therefore, her thumb impressions could not be taken. His certificate Exp. BAM/1 regarding the death of the deceased, reads, as under:--

Certified that the patient Rajinder Kour w/o Balbir Singh was admitted in Surgical ward on 7-10-1987 under C/ R No. 1167 as a case of 100%

burns. She expired on 13-10-1987. The cause of death is toxemia due to burns which led to cardio respiratory failure. The duration of burns at the time of admission was six hours.

The said Doctor while discharging his public duty issued such a certificate to show that the deceased at the time of her admission in the hospital

had sustained 100% burns on her person, as a result of which, she was not expected to survive for long and the same compelled the Investigating

Officer to record her statement immediately. The observation of the Doctor made by him at the time the dying declaration of the deceased has recorded that she would not survive for long proved prophetic when the deceased ultimately died of such burn injuries, regarding which the death certificate has also been issued by him under EXPW. BAM/1, as narrated above. As such, no imputation can be attributed to him for impelling him to make a false statement against the accused.

He being an expert and an independent witness, under law, is entitled to credence for he had no grudge or grievance against the accused, which could compel him to make a wrong statement against the accused. This witness when examined in the court was put to a lengthy cross-examination by the defence, in order to show that the dying declataration of the deceased was managed by the prosecution prior to the death of the deceased.

Such an assertion on the part of defence proved illogical and un-believeable on account of the fact that such a declaration was recorded by the

Investigating Officer at 11.15 a.m. and the same formed the part of the FIR, when a case was registered against the accused for an attempt to murder his wife u/s 307 RFC at 11.40 a.m. sharp. Although, as per the statement of the said Doctor, the deceased Rajinder Kour had sustained

100% burn injuries on her body, she was in a fit state of mind to make a statement, which she made slowly in a prescribed manner and was reduced to writing by the Investigating Officer and she cried sometimes. He has categorically and in unequivocal terms corroborated the statement of Investigating Officer that such a statement of the deceased was written by the Investigating Officer without any motivation or inducement from any corner, which, in no way, impelled the deceased to make a statement against her husband.

Even, the close relatives of the accused, brothers, bhabies and mother have been susceptible to narrate that the deceased had sustained burns

on her body in their house and they sprinkled water on her body to extinguish the fire upon her body and, ultimately, covered her with a blanket which extinguished the fire. Although, they have turned hostile, but they could not resist the fact to say that the deceased sustained injuries out of burns which, according to them, had taken place due to a stove burst. No such damaged stove was either seized by the police or produced before them by the prosecution witnesses to testify that actually the fire upon the body of the deceased had taken place due to a stove lit by the deceased,

either for preparing the meals, tea or was going to boil some milk for the child. No plausible story has been put forth by the defence to show as to what for the stove was lit by the lady which burst due to her mishandling and she caught fire on her body from a burning stove. The certificate of death issued by the Doctor was impeached by the appellant's counsel on the ground that no autopsy of the deceased had taken place and,

therefore, the certificate issued by him that she died out of burn injuries is not certificate. The said Doctor has categorically stated that he was vividly in know of the circumstances of the case from the time the lady was admitted in the hospital till her death and found it unnecessary to cause autopsy upon her body, for the cause of death was quite apparent from her body that she died due to 100% burn injuries and no post mortem was

required.

The post mortem examination on the dead is not absolutely necessary to prove the murder, for, even in the absence of the dead body, murder

may be proved by some other cogent and credible evidence, in the case on hand, it has been admitted by the Doctor that the deceased had sustained 100% burns, which resulted into her death, because she had sustained toxemiria due to bruns, which led to her cardio respiratory failure.

The duration of burns at the time of admission was six hours. It shows that the Doctor who is an expert in the matter, on his medical wisdom found that it was not necessary to conduct the post mortem upon the dead body of the deceased when conclusively he had found that she had received

100% burns, which resulted into her death. He was specific in narrating the fact that it was due to such burns that she was not even able to affix her thumb impressions on the dying declaration, for her finger tips were also burnt. In all fours, the medical evidence is satisfactory and conclusive proof that the death of the decleased has taken place due to cardio respiratory failure, which led to her death.

The next circumstance, on the basis of which, the conviction has been recorded is the motive behind crime to have been committed by the

accused. It has come out in the prosecution evidence and in the statement of the accused as well that, initially it was at the instance of the accused the marriage between the deceased's sister and brother of the accused was arranged but, subsequently, he changed his mind for he had developed strained relations with his brothers and father and, therefore, was opposing such a marriage and even was pressurising his wife to see that it did not take place. As the accused's opposition did not bear any fruit and, on the eventful day, the marriage between the sister of deceased and brother of the accused got solemnized, it enraged the accused to such an extent that he lost his equilibrium of mind and, in order to take revenge upon his

wife, he hit upon a plan to sprinkle kerosene oil upon his wife and set her on fire. It is not all along that the motive is to be established from a cogent and un-impeachable evidence. The same can be discovered even from the very act of the accused as to in what circumstances he committed the crime. In the case on hand, he had a motive to take revenge upon his wife for she did not succumb to his thoughts and could not prevail upon her father to disallow his another daughter from getting married to the accused's younger brother. All along, motive for particular offence is not apparent in the mind of the accused and many a time such gruesome murders are being committed by the accused for frivolous and non existent considerations. One cannot all along entertain the manifestations of human mind and nobody knows as to in which direction his mind

works, unless it is bridled in the proper way by the person who commits such a crime. No direct evidence is all along necessary for commission of such crimes and the motive behind a crime can be inferred on the circumstances surrounding the action of the accused. The fact that the accused was not happy with the solemnization of the marriage of his younger brother, namely, Darshan Singh with Gurjeet Kour sister of the deceased,

receives covert support in the hostile evidence of PW Parkash Singh brother of the accused, his mother PW Nanki Devi, his another brother PW

Dershan Singh and his bhabi Smt. Joginder Kour. All of them have confirmed the fact that the marriage of Darshan Singh and Gurjeet Kour was solemnized with the concurrence of the accused, but the accused or they did not attend the marriage, for they had some work at their home. They admitted the fact that no male member of their family including the accused, his father and brothers attended the marriage and the explanation put forth by them that due to some work they could not attend the marriage, is un-believeable. They have tried to suppress the real fact of not having attended the marriage, which, one can conceivably derive from their evidence that they did not dare to attend the marriage of their son, for the fact that the accused was averse to such marriage, and failed to get his wife (the deceased) agreed to prevail upon her father to see that such a marriage did not take place. He committed the crime because he could not contain himself to bear as to why the deceased failed to prevail upon her father to see that the marriage of Darshan Singh and Gurjeet Kour did not materialized and, once he found that marriage was solemnized in

Gurdwara Nan-gali Sahib, immediately he thought of a plan to take revenge upon his wife and father-in-law by sprinkling kerosene oil upon his wife and set her ablaze, due to which she sustained 100% burns, which ultimately resulted into her death.

There has been other evidence of some burnt hair and a piece of cloth having carried the smell of kerosene oil which sent for forensic science

analysis, as per the expert opinion of the scientific analysis confirmed the presence of traces of kersosene oil on these articles seized by the police during investigation. However, this evidence has not been taken into consideration by the trial court, for the fact that both the witnesses PWs Devi

Lal and Satvir Singh in whose presence such things were seized, have resiled from their evidence to say that such things were seized in their

presence. We fail to understand as to why their evidence has been dis believed when they have admitted to have signed the document by virtue of which these things have been seized by the police. The fact that they have resiled to say that they were knowing as to what was seized under the

EXDS/2 does not mean that their evidence is not reliable, for they have admitted that these documents were signed by them. They have not stated anywhere that they were forced to sign these documents. They have signed this seizure list out of their free will, and it does not lie honest on their part to say that they were not knowing as to what was seized under the said documents. The forensic science report, in the circumstances, is a vital piece of evidence, on which reliance could be placed and the same proves that the kerosene oil was used upon the body of the deceased, for putting her on fire, which actually was done by the accused and the same resulted into her death.

In this case, if all other circumstaces would not have been proved, but, even, then, the mere circumstance of the dying declaration proved by

cogent and substantial evidence was in itself sufficient to show that the accused and the accused alone was the person who sprinkled kerosene oil upon the body of the deceased on 7-10-1987 and put her ablaze, as a result of which, she died in the hospital on 13-10-1987. In all circumstances of the case, as discussed above, the accused is proved to have committed the murder of the deceased, and has, therefore, rightly been convicted by the learned trial court for an offence u/s 302 RPC which offence he has forgotten to mention in recording the order of conviction

against the accused.

The next matter which remains and was argued by the learned Counsel for the appellant is as to whether the sentence of death awarded to the

accused requires to be changed or not.

In this regard, we could emphatically say that the accused has done away with the life of his wife on a very flimsy ground, although, they were

keeping a cordial family relation for a long time and had given birth to children, one son and a daughter, who are alive. It has often been held by the

Hon'ble Supreme Court that where in a case of murder, the material for choice of sentence was scanty and the motive for the crime was obscure and the killing was not for gain, there was nothing so un common about such crime to deem it as an exceptional case in which instead of death

sentence, life imprisonment could be awarded. The very fact that the crime of the accused in the instant case has devastated the whole family and the young children have become orphans, therefore, this case was not falling with the category of the rarest of rare cases, where, the death

sentence was warranted.

The next relevant aspect for consideration is that the accused has been in the - police and the judicial lockup for the last six years, and the case

is not of a bride burning, but the murder has taken place on the very impulse of the accused that he was not satisfied with his wife for a flimsy ground that she did not succumb to his thought to see that marriage of her sister was not solemnized with his brother. In the facts and circumstances of the case, that the deceased and that accused have given birth to two minor children, who are alive, we feel, that it would not be proper to restore the death sentence as a necessary corollary on the finding of guilt. The accused is at his youth and has two children, who have already become orphan. Their career would be spoiled and, in case of their father's death, nobody is left to look after them and get them settled in their life. In these modern times, his brothers would not take care of his children, especially, when there is a discard between the brothers and the father with the accused regarding the issue that he did not allow the marriage of his brother to take place normally with the sister of the deceased.

They have not, in any manner, come nearer to the accused and are not expected to take care of his children, who have almost become orphan.

We have more to look for the children of the accused who, for no fault of theirs, have become orphan and have to suffer for the fault of their

father, who has committed the murder of their mother.

Keeping these circumstances in mind, we allow this appeal partly to the extent that the accused should be sentenced to imprisonment for life

instead of a death sentence, to have been awarded upon him. While upholding the conviction and sentence of the trial court, we hereby reduce the sentence of death to imprisonment for life and the order of sentence of death passed by the trial court shall be read accordingly, by the authorities under whose custody the accused stands at the moment.

The Criminal reference of the learned Sessions Judge, Poonch, dated 17-4-90 is accepted accordingly.