1

A.F.R.

Court No. - 4

Case :- CRIMINAL APPEAL No. - 1749 of 1988

Appellant :- Bhim Sen

Respondent :- State of U.P.

Counsel for Appellant :- G.N. Sharma,Jitendra Singh

Counsel for Respondent :- D.G.A.

Hon'ble Bala Krishna Narayana,J.

Hon'ble Vivek Varma,J.

Per Hon'ble B. K. Narayana, J.

Heard Sri Jitendra Singh, learned counsel for the appellant and Sri

M.C. Joshi and Smt. Manju Thakur, learned A.G.A.-I for the State.

Appellant Bhim Sen has filed this appeal before this Court against

the judgement and order dated 06.08.1988 passed by IInd Additional

Sessions Judge, Mathura in S.T. No. 603 of 1987, 'State Vs. Gir Prasad

and two others' arising out of Case Crime No. 157 of 2014 by which he

has been convicted and sentenced to imprisonment for life u/s 302 I.P.C.

and three years rigorous imprisonment u/s 498-A I.P.C. Both the sentences

were directed to run concurrently.

Briefly stated the facts of this case are that appellant Bhim Sen son

of Dhaniram was married according to Hindu rites and rituals to Smt.

Bina (deceased), daughter of Sukha, resident of village- Pilua Sadikpur,

P.S.- Farah, District- Mathura about three years before the incident and

one Bainiram was the middle man. It is also alleged that Bainiram had

given a loan of Rs. 14,000/- to Dhaniram, father of the three accused,

prior to the said marriage and when Dhaniram showed his reluctance to

return the loan amount, Bainiram asked him to return the same with a

promise to give him loan again at the time of marriage of appellant Bhim

Sen, as a result of which Dhaniram returned the said money to Bainiram.

2

It is further alleged that at the time of the marriage of appellant Bhim Sen

when Dhaniram again demanded the loan from Bainiram, he refused to

oblige him. However, for the said marriage of appellant Bhim Sen,

Dhaniram took loan from some third person. The other two accused,

Chhotey and Gir Prasad used to tell appellant Bhim Sen that he must

compensate them for the money spent by their father in the marriage. It is

further alleged that two months prior to May, 1986, appellant Bhim Sen

went to Sukha, father of Smt. Bina (deceased) and asked him to arrange

payment of Rs. 7,000/- spent by her father in the marriage but Sukha

showed his inability to arrange the said money. Thereafter, all the

aforesaid three accused, it is alleged, started harassing and maltreating

Smt. Bina for the said amount. It is further alleged that on 19.05.1986 at

about 7 a.m., P.W.1 informant Girraj Singh, Pradhan of village- Kharba

along with P.W.2 Ram Gopal alias Ghora happened to pass from near the

house of appellant Bhim Sen and they heard shrieks of a lady emanating

from inside his house. When they went inside the house, they saw Smt.

Bina in the courtyard, appellant Bhim Sen and accused Chhotey had

caught hold of her while accused Gir Prasad had set her on fire as a result

of which she was burnt. It is also alleged that before putting her on fire,

kerosene oil had been poured on her body by accused-appellant Bhim

Sen. The said occurrence was also witnessed by P.W.3 Saligram, P.W.4

Ram Dayal and other residents of village- Nagla. Smt. Bina was taken to

P.S.- Raya by P.W.1 informant Girraj Singh to lodge the written report of

the incident (Ext.Ka.1) containing the prosecution version of the case.

Smt. Bina was immediately taken to Civil Hospital, Mathura and

from there, she was taken to Methodist Hospital, Jaisingh Pura, Mathura.

There she made a statement which was recorded as her dying declaration

by P.W.13 Dr. Solomon Chatterjee. On 23.05.1986, Smt. Bina died as a

result of burn injuries received by her in the above occurrence.

After completion of the investigation of the aforesaid case, the

Investigating Officer submitted charge-sheet against all the three accused

3

before the Chief Judicial Magistrate, Mathura (Ext.Ka.18).

Since the offences mentioned in the charge-sheet were triable

exclusively by the Court of Sessions, Chief Judicial Magistrate, Mathura

committed the accused for trial to the Court of Sessions Judge, Mathura

where Case Crime No. 157 of 2014 was registered as S.T. No. 603 of

1987, “State Vs. Gir Prasad and two others”, and made over for trial from

there to the Court of IInd Additional Sessions Judge, Mathura who on the

basis of material collected during the investigation and after hearing the

prosecution as well as the accused on the point of charge, framed charge

u/s 302 & 498-A I.P.C. against appellant Bhim Sen while acquitted co-

accused Chhotey @ Om Prakash and Gir Prasad of all the charges.

Appellant Bhim Sen abjured the charges framed against him and claimed

trial.

The prosecution in order to prove its case against the accused-

appellant Bhim Sen examined as many as 14 witnesses.

P.W.1 informant Girraj Singh, who is the father of the deceased,

stated that on 19.05.1986 at about 7 a.m. when he along with P.W.2 Ghora

alias Ram Gopal was passing from near the house of the accused, he heard

shrieks of a lady from inside the house and when they went inside the

house, they found that appellant Bhim Sen and Chhotey had caught hold

of Smt. Bina whose body was on fire and accused Gir Prasad was also

present there. He also stated that at that time, the three accused were

taunting Smt. Bina that her father had not returned Rs. 12,000/- which he

had promised to give. He also stated that in the said occurrence, appellant

Bhim Sen also received burn injuries. He also stated that thereafter he

lodged written report of the incident (Ext.Ka.1) at P.S.- Raya, District-

Mathura.

P.W.2 Ram Gopal alias Ghora is also an eye-witness of the

occurrence and he corroborated the statement of P.W.1 informant Girraj

Singh to some extent but since he had not fully corroborated the statement

4

which he had given earlier u/s 161 Cr.P.C., at the request of public

prosecutor, he was declared hostile and public prosecutor was allowed to

cross-examine him.

P.W.3 Saligram and P.W.4 Ram Dayal were eye-witnesses of the

occurrence but both of them turned hostile and did not support the

prosecution case.

P.W.5 Keshav, who is the real brother of the deceased Smt. Bina

stated that about three years ago, his sister was married with appellant

Bhim Sen according to Hindu rites in which one Bainiram was

middleman. He had also stated that Bainiram had given a loan of Rs.

14,000/- to Dhaniram, father of the three accused and he took the above

loan amount from Dhaniram under the excuse that he would again

advance money at the time of marriage of appellant Bhim Sen but he did

not stand by his promise, as a result of which Dhaniram had to take loan

from some other persons to meet the expenses of marriage of appellant

Bhim Sen. He also stated that accused Gir Prasad and Chhotey used to ask

appellant Bhim Sen to compensate them for the money spent by their

father in his marriage and two months before the death of Smt. Bina,

appellant Bhim Sen had come to his house and demanded Rs. 7,000/-

from his father to arrange the money which had been spent in the

marriage of Smt. Bina but his father refused. He also stated that thereafter,

he saw his sister in a burnt condition in Methodist Hospital, Jaisingh Pura,

Mathura.

P.W.6 Dr. P.K. Sharma stated that on 19.05.1986, he conducted

medical examination of Smt. Bina and he found 1 to 3 degree burns over

the face, neck, skull, hair of Smt. Bina and also on other portions of her

body and the burns were about 80 to 85%. He also opined that the injuries

found on the body of Smt. Bina could have been caused to her at about 7

a.m. on the same day and he proved his injury report as (Ext.Ka.2).

P.W.7 Constable Vinod Kumar stated that on 23.05.1986, he along

5

with Constable Bachu Singh had brought the dead body of Smt. Bina to

Mathura for postmortem examination.

P.W.8 Head Constable Madan Lal is the scribe of check F.I.R.

(Ext.Ka.3) and corresponding G.D. Entry (Ext.Ka.4). He also stated that

on 28.05.1986, the present case was converted from u/s 307 I.P.C. to u/s

302 I.P.C. and he proved corresponding G.D. Entry (Ext.Ka.5). He also

proved G.D. Entries (Exts.Ka.6 and Ka.7) which related to the factum of

sending of special report to the concerned authorities and also entry

regarding the return of the constable at the police station after delivery of

the special report.

P.W.9 S.I. P.C. Chaturvedi stated that on 23.05.1986, he conducted

inquest on the dead body of Smt. Bina and prepared inquest report

(Ext.Ka.8) and other related documents (Exts.Ka.9 to Ka.13).

P.W.10 S.I. Satyapal Singh stated that the present case was

registered at the police station in his presence and he was entrusted with

the investigation of the case. He stated that during investigation of the

case, he prepared site plan of the place of occurrence (Ext.Ka.14) and

recovery memos of 'pipi' of kerosene oil (Ext.Ka.15), burnt dhoti

(Ext.Ka.16) and kerosene oil stained earth (Ext.Ka.17). He also stated that

thereafter the investigation of the case was handed over by him to P.W.12

Deputy S.P. Suresh Chandra Sharma as it was the case of dowry death.

P.W.11 Dr. S.K. Srivastava, Methodist Hospital, Jaisingh Pura,

Mathura produced the dying declaration of Smt. Bina dated 19.05.1986

from the record of the hospital and proved the same as (Ext.Ka.20).

P.W.12 Deputy S.P. Suresh Chandra Sharma who had investigated

the case in later stages, stated that after completion of investigation, he

filed charge-sheet (Ext.Ka.18) against the three accused.

P.W.13 Dr. Solomon Chatterjee stated that on 19.05.1986 when he

was working in Methodist Hospital, Jaisingh Pura Mathura, he recorded

the dying declaration of Smt. Bina (Exts.Ka.19). He also stated that he

6

recorded the said dying declaration instead of calling a Magistrate because

Smt. Bina had burn injuries of 95% and he was afraid that she may

succumb to her injuries even before the arrival of the Magistrate.

P.W.14 Dr. M.K. Gupta stated that on 23.5.1986, he was posted as

Medical Officer, Civil Hospital, Mathura and had conducted postmortem

examination on the dead body of Smt. Bina and prepared her postmortem

report (Ext.Ka.21) He noted following ante-mortem injuries on the person

of Smt. Bina :-

Superficial two deep septic wound burns present on head and

face, neck both sides, thorex both sides, including both breasts

upper part of abdomen above the umblicus both sides. Both

upper limb, both side front and back including both hands lower

part of both thighs and whole of leg on both sides. Foul smelling

coming from septic wounds. Skin is peeled at places. Vesicles

present at places.

According to P.W.14 Dr. M.K. Gupta, the death of Smt. Bina was

caused due to shock and toxaemia as a result of ante-mortem burn

injuries.

The appellant and the other co-accused in their examination u/s 313

Cr.P.C. admitted that Smt. Bina was married to the appellant but rest of

the allegations were denied by them. Appellant Bhim Sen also stated that

P.W.1 informant Girraj Singh, Pradhan of the village, wanted to grab the

land belonging to his family and for that reason, he and his brothers had

been falsely implicated in the present case. The accused-appellant also

examined Hoti Lal and Dr. H.K. Kulshrestha as D.W.1 and D.W.2.

Learned IInd Additional Sessions Judge, Mathura after considering

the submissions advanced before him by the learned counsel for the

parties and scrutinizing the evidence on record, both oral as well as

documentary, by the impugned judgement and order, while acquitting co-

accused Chhotey @ Om Prakash and Gir Prasad, convicted the appellant

and awarded aforesaid sentences to him.

Hence, this appeal.

7

It is contended by Sri Jitendra Singh, learned counsel for the

appellant that no one had actually seen the incident and after the

deceased's clothes had caught fire while she was cooking food and taken

to the hospital where she succumbed to her burn injuries, an absolutely

false F.I.R. was lodged by P.W.1 informant Girraj Singh, the Pradhan of

the village, falsely implicating his brothers with the sole malafide

intention of grabbing their property. He next submitted that the glaring

contradictions between the recitals contained in the F.I.R. lodged by P.W.1

informant Girraj Singh describing himself as the eye-witness and those

contained in the dying declaration of the deceased which itself is a forged

and fabricated statement, totally belies the prosecution story that the

appellant had caused the death of his wife after pouring kerosene oil on

her and setting her ablaze on account of her failure to bring the sum of Rs.

14,000/- which his brothers had allegedly spent on the marriage between

the deceased and the appellant. He next submitted that there is no

explanation why the dying declaration of the deceased was not recorded

before the Magistrate although she had remained alive for more than four

days after the incident and there is no cogent and reliable evidence on

record indicating that the deceased who was admitted to the hospital and

with more than 95 burn injuries, was in a fit mental condition to record

her dying declaration or for that matter even to speak and hence, reliance

placed by the learned trial Judge on the deceased's dying declaration is

totally unjustified. He lastly submitted that the neither the recorded

conviction of the appellant nor the sentence awarded to him can be

sustained and is liable to be set-aside.

Per contra Smt. Manju Thakur, learned A.G.A.-I for the State

submitted that it is fully proved from the evidence of the three eye

witnesses of fact that the appellant had set his wife (deceased) ablaze after

pouring kerosene oil on her on account of non-fulfillment of demand

made by him from her family members. It is further established from the

medical evidence that the deceased had died as a result of the burn

8

injuries received by her in her matrimonial home. She also contended that

even if it is assumed for the sake of arguments that there are

contradictions in the statements of the eye-witnesses and the facts stated

by the deceased in the dying declaration, even then the appellant is not

entitled to be acquitted of the charges for the simple reason that there

being no denial on the part of the appellant that at the time of the incident,

he was not present in the house and hence, the facts relating to the

unnatural death of the deceased were within his special knowledge and he

having failed to come up with any explanation for the circumstances

under which the deceased had caught fire and received burn injuries to

which she later succumbed, the appellant cannot escape fastening of guilt

of the murder of his wife on him. Even otherwise, contradiction if any vis-

a-vis the F.I.R. recitals and the dying declaration of the deceased are not

so material so as to render the entire prosecution case unreliable and

untrustworthy. This appeal lacks merit and is liable to be dismissed.

We have heard learned counsel for the parties present and perused

the entire lower court record very carefully.

The only question which arises for our consideration in this appeal

is that whether the prosecution has been able to prove its case against the

accused-appellants beyond all reasonable doubts or not ?

The conviction of the appellant in the present case is essentially

based upon the dying declaration of the deceased (Exts.Ka.19 & Ka.20).

Before testing the grounds on which the learned counsel for the

appellant has challenged the veracity of the dying declaration of the

deceased, we consider it useful to have a glance at the law on the issue of

admissibility of dying declaration for the purpose of conviction of

appellant.

The doctrine of dying declaration is enshrined in the legal maxim

'Nemo moriturus praesumitur mentire', which means 'a man will not meet

his maker with a lie in his mouth'. The doctrine of dying declaration is

9

enshrined in section 32 of the Indian Evidence Act, 1872 (hereinafter

called as, 'Evidence Act') as an exception to the general rule contained in

section 60 of the Evidence Act, which provides that oral evidence in all

cases must be direct i.e., it must be the evidence of a witness, who says he

saw it. The dying declaration is, in fact, the statement of a person, who

cannot be called as witness and, therefore, cannot be cross-examined.

Such statements themselves are relevant facts in certain cases.

In the case of Munnawar and others v. State of Uttar

Pradesh and others reported in 2010 (70) ACC 853 (SC), the

Apex Court held as under:

“that a dying declaration can be relied upon if the

deceased remained alive for a long period of time after the

incident and died after recording of the dying declaration. That

may be evidence to show that his condition was not overtly

critical or precarious when the dying declaration was recorded.”

It would be pertinent to note the case of Bhajju alias Karan

Singh v. State of M.P. reported in 2012 (77) ACC 182 (SC)

before the Apex Court which had almost identical facts. The dying

declaration of the deceased was relied upon as the witnesses of fact did

not support the prosecution case and were declared hostile and similar

defence was taken that the deceased had caught fire while she was

cooking food. The Hon'ble Court referring to the case of Munna Raja

and another v. The State of Madhya Pradesh reported in (1976)

3 SCC 104 relied upon by the learned counsel for the accused-appellant

observed as under:

“Reliance placed by the learned counsel appearing for the

appellant/accused upon the judgement of this Court in the case of

Munnu Raja and another v. The State of Madhya Pradesh

reported in (1976) 3 SCC 104 to contend that a dying declaration

cannot be corroborated by the testimony of hostile witnesses is

hardly of any help. As already noticed, none of the witnesses or

the authorities involved in the recording of the dying declaration

had turned hostile. On the contrary, they have fully supported the

case of the prosecution and have, beyond reasonable doubt,

proved that the dying declaration is reliable, truthful and was

voluntarily made by the deceased. We may also notice that this

very judgement relied upon by the accused itself clearly says that

10

the dying declaration can be acted upon without corroboration

and can be made the basis of conviction. Paragraph 6 of the said

judgement reads as under:-

“.....It is well settled that though a dying declaration must

be approached with caution for the reason that the maker of the

statement cannot be subject to cross-examination, there is neither

a rule of law nor a rule of prudence which has hardened into a

rule of law that a dying declaration cannot be acted upon unless it

is corroborated (see Khushal Rao v. State of Bombay). The

High Court, it is true, has held that the evidence of the two eye-

witnesses corroborated the dying declarations but it did not come

to the conclusion that the dying declarations suffered from any

infirmity by reason of which it was necessary to look out for

corroboration.”

In para-22 of this report the Hon'ble Court has

further held that-

“The law is very clear that if the dying declaration has been

recorded in accordance with law, is reliable and gives a cogent

and possible explanation of the occurrence of the events, then the

dying declaration can certainly be relied upon by the Court and

could form the sole piece of evidence resulting in the conviction of

the accused. This Court has clearly stated the principle that

section 32 of the Evidence Act, 1872 (for short 'the Act') is an

exception to the general rule against the admissibility of hearsay

evidence. Clause (1) of section 32 makes the statement of the

deceased admissible, which is generally described as a 'dying

declaration'.”

The Apex Court relying upon the dying declaration of the

deceased being consistent with the prosecution case which was

fully corroborated by medical evidence did not disturb the

concurrent findings of guilt of accused-appellant recorded by the

two Courts. In view of the aforesaid preposition of the law the

dying declaration of the deceased recorded in this case fulfills all

the legal requirements and it is in consonance with the

prosecution story as also the medical evidence.

Thus, what follows from the reading of the aforesaid authorities on

the issue is that if the dying declaration has been recorded in accordance

with law, is reliable and gives a cogent and possible explanation of the

occurrence of the events, then the dying declaration can certainly be relied

upon by the Court could form a sole piece of evidence resulting in the

conviction of the the accused.

Admissibility of the dying declaration of the deceased has been

assailed by the learned counsel for the appellants on four grounds. Firstly,

it was not recorded before the Magistrate although the circumstance did

11

not warrant any such urgency as shown by P.W.13 Dr. Solomon Chatterjee

in recording deceased's dying declaration without waiting for the

Magistrate to arrive. In our opinion, the dying declaration of the deceased

is not liable to be discarded solely on the aforesaid ground because there

is no law which requires that dying declaration in order to be reliable,

should be recorded before the Magistrate. Before drawing any adverse

inference against the prosecution on account of the dying declaration

having been recorded by the doctor attending her and not before the

Magistrate, we will have to examine the other attending circumstances

also.

The second ground on which the deceased's dying declaration has

been challenged is that there was evidence on record showing that when

she was admitted to the hospital, she was injected pethidine injection and

as such she was not in a position to speak and hence, her dying

declaration could not have been recorded there. In this regard, learned

counsel for the appellant invited attention of the court to the verdict of

Hon'ble Supreme Court rendered in the case State (Delhi

Administration) vs Lachhman Kumar & others reported in 1986

SCC (Crl) page 2. In the aforesaid case before the Hon'ble Supreme

Court, pethidine injection had been given to the deceased and the doctor

prescribed repetition of it every eight hours. It was observed by Hon'ble

Supreme Court in para 26 of the judgement on page 17 that a judicial

notice can be taken of the fact that after pethidine injection is given, the

patient would not have normal alertness and thus, the certificate of the

doctor that deceased was in a fit condition to make a dying declaration

can not be given full credit. The above observation was made by Hon'ble

Supreme Court on the basis of the peculiar facts of that case. In that case,

a dying declaration of a lady had been recorded by a police officer in

suspicious circumstances which was contradictory to her earlier oral

dying declaration and the court while dis-believing the said dying

declaration took the above fact also in view that she had been given a

12

pethidine injection before her dying declaration was recorded. So far as

the present case is concerned, P.W.13 Dr. Solomon Chatterjee was cross-

examined quite in detail regarding the effect of pethidine injection and on

pages 5 and 6 of his statement, he stated that if pethidine injection of

small dose of 50 mg is given to a patient then the patient need not in every

case became unconscious. He also opined that main function of the

pethidine injection is to reduce the pain of the patient. He specifically

stated that when he recorded the dying declaration of Smt. Bina, she was

fully conscious. A certificate to this effect was also recorded by the doctor

below the dying declaration of Smt. Bina (Ext.Ka.19) that the patient was

in a fully lucid condition. A reading of the entire evidence of P.W.13 Dr.

Solomon Chatterjee leaves no doubt that when he recorded the dying

declaration (Ext.Ka.19) of Smt. Bina, she was fully conscious and,

therefore, merely because a pethidine injection had been given to her

earlier to reduce her pain, from this fact, no presumption can be drawn

that she was not in a fit condition to give the said dying declaration.

We further find that there is nothing on the record indicating

anything on the file to show that when her dying declaration was recorded

by P.W.13 Dr. Solomon Chatterjee, Smt. Bina was not in a fit condition to

make the said dying declaration.

The next ground raised on behalf of appellant Bhim Sen is that it is

admitted to P.W.13 Dr. Solomon Chatterjee that when Smt. Bina was

brought to Methodist Hospital, she had about 90 to 95% burns and thus,

according to learned counsel for the appellant, when a patient has suffered

such burn injuries, it is apparent that he/she cannot be in a fit condition to

make a dying declaration. When in this regard, P.W.13 Dr. Solomon

Chatterjee was cross-examined, he stated that inspite of 90 to 95% burns,

Smt. Bina was in a condition to make a dying declaration. In Liyakat

Ali vs State reported in 1988 (1) Crimes page 647, Hon'ble Delhi

High Court observed that a patient having even 90% burns may even be in

a position to give a statement depending on nature and depth of the burns

13

and thus simply because a patient has 90 to 95% burns, it does not lead to

the only conclusion that he/she is not in a fit condition to make any

statement. P.W.13 Dr. Solomon Chatterjee who is an absolutely honest an

independent witness and who has no motive whatsoever either against

appellant Bhim Sen or against any other accused and who had no

opportunity to record dying declaration (Ext.Ka.19) of Smt. Bina has

stated clearly that when he recorded her statement, she was in a fit

condition to make the statement and there is nothing on the record to dis-

believe the above contention of P.W.13 Dr. Solomon Chatterjee and,

therefore, simply because she had 90 to 95% burns on her body, it will not

be enough to believe that she was not in a fit condition to make a

statement when her dying declaration was recorded.

The fourth ground on which the dying declaration has been

castigated by the learned counsel for the appellant is that there are

material contradictions between the facts stated by the deceased in her

dying declaration and those in the written report of the incident. Inviting

our attention to the written report of the incident (Ext.Ka.1) and the

deceased's dying declaration (Ext.Ka.19), he submitted that while in the

written report of the incident, it has been recited that when the informant

reached the house of the deceased on hearing her shrieks at about 7 p.m.,

he saw that appellant Bhim Sen and Jyoti had caught the hands of Smt.

Bina and set her ablaze shouting that her family members had failed to

fulfill their demands of dowry of Rs. 10,000/- and the incident was the

result of the aforesaid omission on their part. However, the deceased in

her dying declaration had stated that her brother-in-law and sister-in-law

(jeth and jethani) used to quarrel with her everyday and ask her to bring

Rs. 12,000/- from her paternal home which was spent on her marriage. On

19.05.1986 when she had returned after answering the call of nature in the

morning, her brother-in-law and sister-in-law had again quarrelled with

her and thereafter her husband Bhim Sen had sprinkled kerosene oil on

her and set her ablaze. The villagers had saved her.

14

We do not find any reason to disbelieve the dying declaration of the

deceased on the ground of aforesaid contradictions. The written report of

the incident was not lodged by the deceased and hence, the defence

cannot get any advantage of the aforesaid discrepancy especially when we

have found her dying declaration to be a valid document.

The dying declaration in this case, in our opinion, has been

recorded in accordance with law, is reliable and gives a cogent and

possible explanation of the occurrence of the events.

Thus, in view of the above, we do not find that the learned trial

Judge committed any illegality or legal infirmity in relying upon the

deceased's dying declaration (Ext.Ka.19) for the purpose of recording the

appellant's conviction. Apart from the dying declaration of the deceased

(Ext.Ka.19), we find that there is yet another extremely glaring

incriminating circumstance pointing at the guilt of the appellant.

The appellant had neither stated in his examination u/s 313 Cr.P.C.

nor he had given any suggestion to any of the witnesses or adduced any

evidence to show that he was not present in the house at the time of the

incident. There is complete absence of any denial from the side of the

appellant about his presence in his house at the time of the occurrence. In

such a case, Section 106 of the Evidence Act comes into play. Section 106

of the Evidence Act reads as hereunder :-

Section 106 in The Indian Evidence Act, 1872

106. Burden of proving fact especially within knowledge—When

any fact is especially within the knowledge of any person, the

burden of proving that fact is upon him. Illustrations

(a) When a person does an act with some intention other

than that which the character and circumstances of the

act suggest, the burden of proving that intention is upon

him.

(b) A is charged with travelling on a railway without a

ticket. The burden of proving that he had a ticket is on

him.

15

Now, since we have already noted that it stands admitted to the

appellant that he was present in the house and he has failed to come up

with any explanation with regard to the deceased's clothes having caught

fire, the Court can validly draw an adverse inference against him on the

presumption that the appellant has concealed material information

pertaining to the death of the deceased from the Court.

Thus, the complicity of the appellant in committing the deceased's

murder is proved from the facts stated by the deceased in her dying

declaration.

Although there is no law which requires that a conviction can be

based upon a dying declaration only when corroborated by other

evidence. In the present case, the facts deposed by the deceased in her

dying declaration finds corroboration from the other circumstances as

well. The presence of the appellant at the time and place of the incident is

not only established from the evidence of P.W.1 informant Girraj Singh

but also from the testimony of Dr. H.K. Kulshreshtha, who was examined

as D.W.2. and who had proved the injuries of the deceased as well as the

appellant Bhim Sen which he is alleged to have received in the same

occurrence.

Learned counsel for the appellant has endeavoured to persuade us

that the factum of the deceased also having received injuries in the same

incident is a very strong circumstance indicating that the appellant could

not have set the deceased on fire as he himself had received injuries in the

occurrence trying to douse the fire in order to save her.

The aforesaid ground deserves to be rejected forthwith. It is evident

from the injury report of the appellant as well as the evidence of D.W.2

Dr. H.K. Kulshreshtha that the appellant had got his injuries examined at

6.45 p.m. although the incident had taken place at 7 a.m. No explanation

is coming forth for the inordinate delay of almost 12 hours on the part of

the appellant in getting his injuries examined promptly. Under such

16

circumstances, the possibility of the burn injuries noted by D.W.1 and the

appellant's body being self-inflicted with the object of saving himself,

cannot be ruled out.

Thus, upon a holistic view of the facts of the case, attending

circumstances and the evidence on record, we do not find that the learned

trial Judge committed any other illegality in convicting the appellant and

awarding aforesaid sentences to him.

This appeal lacks merit and is accordingly dismissed.

Appellant Bhim Sen is on bail. His bail bonds are cancelled and his

sureties discharged. Chief Judicial Magistrate, Mathura is directed to get

appellant Bhim Sen arrested and sent to jail for serving out the remaining

part of his sentences.

There shall however, be no order as to costs.

Order Date :- 11.11.2019

KS