V. P. MATHUR, J. ( 1 ) THIS criminal appeal against the sentence of death passed under Sec. 302 IPC by Mr. G. S. N Tripathi, the then Sessions Judge, Lalitpur, has been preferred by Saroj Kumar Gupta. The usual reference has also been submitted by the Sessions Judge. The order of the, learned Sessions Judge is dated 17/1/1987. ( 2 ) SMT. Kusum, who was the wife of Karan Singh, had left her husband about 10 years back and it is contended that she was living in a room at the place popularly kdown as Elite Choraha. She come into contect with Saroj Kumar Gupta appellant, who was engaged as a Conduct of a Bus on which Kusums father was a Driver. It is said that Saroj Umar Gupta and Smt. Kusum started living as husband and wife. There was some dispute a day or two earlier between these two persons as regards unfaithfulness of Smt. Kusum. On 13/5/1986 this occurrence allegedly took place. It is said that Saroj Kumar Gupta caught hold of Smt. Kusum by her hair, sprinkled kerosene oil with a Kuppi and set her on fire. The lady rushed and was entangled in some bushes and fell down in a depression in front of her room She was burning badly. Witnesses Smt. Prem. Bai (PW 1) and Nannoo Lal (PW 2), who are close neighbours, came on the spot and at the bidding of Nannoo Lal, Saroj Kumar Gupta took the deceased to district Hospital, Lalitpur. Dr. N. M. Saxena (PW 3) was on emergency duty and he admitted Smt. Kusum in the emergency Ward at 9. 30 A. M. and noted the injuries in Ext. Ka. He sent a memo through Santosh Kumar Ward-boy (PW 5) vide Ext. Ka. 3 to the Station House Officer, Kotwali Lalitpur, at 9. 45 A. M. informing the police about the admission of the lady with burns. Upon this, Sri Anand Mohan Pathak (PW 9) Sub Inspector was deputed to proceed to the District Hospital and carry out preliminary inquiry and submit a report. Sri Pathak: made inquiry from the victim and submitted his report to the Station House Officer the same day, vide paper No. 7 of the Paper Book. On the basis of this preliminary inquiry report a case was registered in the General Diary of the police at No. 31 at 12. Sri Pathak: made inquiry from the victim and submitted his report to the Station House Officer the same day, vide paper No. 7 of the Paper Book. On the basis of this preliminary inquiry report a case was registered in the General Diary of the police at No. 31 at 12. 30 P. M. at the direction of the Station House Officer concerned and the investigation was entrusted to Sri Anand Mohan Pathak (PW 9 ). Meanwhile, on an information having been communicated by the Hospital authorities, the Executive Magistrate Mr. Uma Vilas Awasthy reached the District Hospital. Lalitpur, and between 10. 35 and 11 A M. he took down a dying declaration of Smt. Kusum. It is Ext. Ka. 2. A. ( 3 ) DR. N. M. Saxena, who had admitted Smt. Kusum, referred her case for treatment to Dr. R. K. Agrawal (PW 7 ). Dr. Agrawal vide entries on the bed bead ticket treated this lady, found 2 to 4 degree burns on her person and advised blood transfusion as well as shifting of the injured to Medical College at Jhansi for better treatment. It appears that this lady suddenly disappeared from the Hospital at about 4 P. M. on 13/5/1986 and there is nothing on record except the statement of her son Rao Raja (PW 4) and the statement of Smt. Prem. Bai to show that she remained in Jhansi for some time there is however, nothing to show that she was admitted in Medical College Jhansi for treatment there. Ultimately on 28/5/1986 at about 12. 15 P. M. Smt. Kusum again came to the District Hospital, Lalitpur and was readmitted and inspite of treatment given to her she ultimately died on 9/6/1986 at 2. 30 A. M. The postmortem on the dead body was conducted by Dr. R. K Agrawal (PW 7 ). The post-mortem. examination report is Exi. Ka. 15. It may be mentioned that according to the injury reported prepared by Dr. N. M. Saxena at the time of first admission of Smt. Kusum vide injury report Ext. Ka. 1, she was having burns on face, neck, chest, back shoulder, front of back of both the arms, both thighs and her hairs were found signing. There was smell of kerosene oil present on her clothes. According to the postnlortem examination report Ext. Ka. 15 she had the following ante-mortem injuries: 1. Ka. 1, she was having burns on face, neck, chest, back shoulder, front of back of both the arms, both thighs and her hairs were found signing. There was smell of kerosene oil present on her clothes. According to the postnlortem examination report Ext. Ka. 15 she had the following ante-mortem injuries: 1. 2 to 4 degree burn over face both sides of cheeks having epithelisation with infected ulcer on the chin. 2. 1 to 4 degree burn over neck (front and back) with formation of scar. 3. 2 to 4 degree burn on front and back of the chest and front of abnomen, superficial layer of skin peeled off. At places, Scars were present with Puspackets and underneath. 4. 2 to 4 degree burn over left arm with infected crust formation. 5. 2 to 4 degree burn over right arm sparing posterior aspect. Scar formation was present at places. Ulcer had formed and there was crust formation. 6. 2 to 4 degree burn over anterior lateral and medial side on both thighs with scar There was also ulcer and infected crust formation According to Dr. R. K. Agrawal, who was assisted by Dr. M. K. Joshi in the postmortem. examination death was due to shock as a result of ante-mortem. burn injuries. ( 4 ) THE prosecution has examined in this case 9 witnesses in all. Smt. Prem. Bai (PW 1) and Nannoo Lal (PW 2) are the only eyewitnesses of the incident. All others are formal witnesses, including Sri Anand Mohad Pathak (PW 9) and Sri Uma Vilas Awasthy (PW 2 ). ( 5 ) IT may be mentioned that Nannoo Lal did not support the prosecution version and was cross- exam med by the prosecution with the permission of the court. ( 6 ) IN his defence, the accused simply stated that he was not the husband of the deceased lady. The fact of the burning of Smt. Kusum is admitted but the circumstances under which she burnt, as put forth by the prosecution, are denied. It is contended that higher authorities by entering into mutual consultations have started this false case against the accused appellant and, the dying declaration that Smt. Kusum gave was made by her under the influence and threat of Sri Pathak, Investigating Officer. ( 7 ) IN defence, four witnesses have been examined by the accused appellant. It is contended that higher authorities by entering into mutual consultations have started this false case against the accused appellant and, the dying declaration that Smt. Kusum gave was made by her under the influence and threat of Sri Pathak, Investigating Officer. ( 7 ) IN defence, four witnesses have been examined by the accused appellant. They are Kripa Ram, Jagram (H. C.), Sheikhar Chandra and Rao Raja, D. Ws. 1, 2, 3 and 4 respectively. Kripa Ram (D W 1) is an employee of Nagar Palika, Lalitpur. He came with the Assessment Registrar of the year 1978-79, which has not been revised and is still continuing. According to him, Elite Talkies falls within Mohalla Har Deela. Mohalla Tuwan Teela is 11/2 kilometres from Mohalla Har Deela. There is no residential house in the name of Hardeo Singh in Har Deela. During cross- examination he admits that the assessment was made in the year 1978. 79 and entries are continuing since then Jagram (PW 2) since September, 1985 was Head Moharrir in police station Kotwali, Lalitpur. He came with the General Diary of 14/5/1986. At No. 31 at 2. 00 P. M. there is an entry of receipt of a telegram from Prem. Kumar. This telegram was handed over to. Sri Anand Mohan Pathak, Investigating Officer on 14/5/1986. Sheikhar Chandra (DW 3) is a Petition Writer. He has come to depose that he went to District Hospital Lalitpur in the emergency Ward on 13. 5. 1986 at -about on in the morning. He found a burnt woman in the Ward. The Investigating Officer (PW 9), Sri Pathak was also present there. This woman told Sri Pathak in Bundelkhandi dislect that suddenly her Dhoti caught fir and Darogaji told her that she should nominate somebody as the person who put her to fire otherwise she will be hauled up for an attempt at suicide. He also says that on 13/5/1986 he had got a telegram sent by the son of Saroj Kumar Gupta accused to the effect that Darogaji had taken away Saroj Kumar Gupta and it is likely that he might be implicated in the case. During cross-examination he says that at the time when the investigating Officer was forcing the lady in the Hospital in name somebody, accused Saroj Kumar Gupta was also present. During cross-examination he says that at the time when the investigating Officer was forcing the lady in the Hospital in name somebody, accused Saroj Kumar Gupta was also present. Darogaji was, however, not insisting upon the name of Saroj Kumar Gupta being taken by the lady. Rao Rajo (DW 4) is aged about 15 years. He is son of the deceased lady from her first husband Karan Singh. He comes to put forth the defence version of the story. According to him, his house is at Elite Choraha and near the house of Nannoo Lat (PW 2 ). At about 8. 45 A M. when he was taking food his mother came from out-side. She sprinkled kerosene oil on her clothes and put fire to them. Then she ran out. Saroj Kumar Gupta was not present in the house at that time Nannoo Lal, however, came there and threw some clothes on this burning lady and quenched the fire. Then this child went to the Choraha where Saroj Kumar Gupta was on the Bus. He told him what had happened. Saroj Kumar Gupta then came on the spot, arranged for a Taxi and took the lady to Hospital and got her admitted, there. In the Hospital Darogaji insisted that the lady should name somebody as the person who had put fire to her but the lady was not willing to no so. A Magistrate also came and put questions to the lady. She answered in Bundelkhandi. The Magistrate, who did not know Bundelkhandi called the Investigating Officer and both went away after taking the thumb mark of his mother on a paper. The same day from Lalitpur Hospital the lady went to Jhansi and after 3 or 4 days she returned to Lalitpur where she remained alive for some days and died. ( 8 ) SMT. Prem. Bai is an eyewitness of the occurrence, upon whom the prosecution is placing reliance and Nannoo Lal is not being related upon by the prosecution. It is said that he had turned hostile. There is also the dying declaration of the lady recorded by the executive Magistrate between 10. 55 A. M. and 11 A. M on 13. 5. 1986. as well as the statement of this lady recorded under Sec. 161, Cr. PC after 12 noon by the Investigating Officer the same day which is also being treated as a dying declaration. There is also the dying declaration of the lady recorded by the executive Magistrate between 10. 55 A. M. and 11 A. M on 13. 5. 1986. as well as the statement of this lady recorded under Sec. 161, Cr. PC after 12 noon by the Investigating Officer the same day which is also being treated as a dying declaration. Smt. Prem. Bai Yadav says that she has a house at Elite Choraha adjacent to the house in which Smt. Kusum and Saroj Kumar Gupta used to live. Near about is the house of Nannoo lal. Now it is sought to be contended that Smt Prem. Bai had no house at Elite Chooraha and was not present when this occurrence took place and she is a got-up witness and the only eye witnesses are the son of the deceased, namely Rao Raja (DW 4) and Nannoo Lal (PW 2 ). It is admitted to Smt. Prem Bai also that she has another rented house in Mohalla Tuwan Teela and this has now been proved to be at a distance of 1 to 11/2 kilometres from Elite Choraba. She says that she lives in both the houses at times. There is a suggestion to Smt. Prem. Bai on behalf of the accused by his learned counsel that on the date and time of the occurrence and at the place of occurrence the accused-appellant Saroj Kumar Gupta had asked her to accompany Smt. Kusum to the Hospital since she had burnt herself. According to this suggestion, the presence of Smt. Prem Bai on the spot is not disputed and belied. However, there is a second suggestion that on the date of occurrence she was not present and was in Jhansi. According to Smt. Prem. Bai she was present at her house nearby, at lite Choraha, and when Smt. Kusum cried out, she came out of her house and saw the occurrence. She says that Saroj Kumar Gupta was very much present on the spot and had caught hold. Smt. Kusum by, her hair and then sprinkled Kerosene oil and put her to fire. Then Kusum fell down in the depression and in the mean time Nannoo Lal came there and threw quit etc, on the burning lady to quench the, fire. She says that Saroj Kumar Gupta was very much present on the spot and had caught hold. Smt. Kusum by, her hair and then sprinkled Kerosene oil and put her to fire. Then Kusum fell down in the depression and in the mean time Nannoo Lal came there and threw quit etc, on the burning lady to quench the, fire. Every body there upbraided the accused-appellant and directed him to take her to Hospital upon which the accused himself took the lady to Hospital and got her admitted there and then made himself scarce Nannoo Lal (PW 2) upon whom the prosecution has not placed reliance, but who, according to the defence is a reliable witness, admits that Smt. Prem. Bai lived near the house of the deceased when this incident took place. It may also be stated that Smt. Prem. Bai was interrogated after the registration. of the case on 13. 5. 1986 itself by the Investigating Officer and she gave out her version of the story to him. In the site plan Ext. Ka. 17, which the Investigating Officer prepared during the course of investigation, the thatched hut of Smt. Prem. Bai is shown just adjacent to the house of the deceased and the doors of both are shown opening towards east. The house of Nannoo Lal has also been shown in the site plan. The statement of Kripa Ram (PW 1) is of no avail because he has made his statement on the basis of the assessment that was made for theyear 1978-79. If there is no hut of Smt. Prem. Bai alias Boto mentioned in the assessment list it will not in any way discount the prosecution version. There has been no revision of the assessments for the year 1978. Therefore, if Smt. Prem Bai first set up a hut and then constructed a new house near Elite Choraha after 1978, it will not necessarily be noted in the Register unless she makes an application and seek an amendment. She states on oath that she is paying house tax to the Municipal Board. The learned Sessions Judge has dealt with the testimony and Kripa Ram and has rightly discarded it as of no avail in this case. We are also of the opinion that it has been established satisfactorily beyond doubt that Smt. Prem. She states on oath that she is paying house tax to the Municipal Board. The learned Sessions Judge has dealt with the testimony and Kripa Ram and has rightly discarded it as of no avail in this case. We are also of the opinion that it has been established satisfactorily beyond doubt that Smt. Prem. Bai was present when this occurrence took place and she had a residential hut near the room in which the deceased was living at the time of occurrence. She is, therefore, a very natural and probable witness of this occurrence. There is nothing on record to show that she is in any way inimically disposed against Saroj Kumar Gupta or was under the thumb of the police to such an extent as to be available to tell a lie and implicate an otherwise innocent person. Smt. Prem. Bai was first married to one Hallan Yadav of village Khura Silgan. She says that this man was of bad character and, she, therefore, left him and with the consent of her father she had married Thakur Bardeo Singh, who is her present husband. Hardeo Singh has a scooter Rickshaw. About 15 days prior to her statement in this case the Investigating Officer had challaned that rickshaw and released it on furnishing security. This does not mean that Smt. Prem. Bai is under the thumb of the Investigating Officer. Her statement under Sec. 161 Cr. PC was recorded much before the alleged challan of the Scooter Rickshaw on the very date of the occurrence itself. There is absolutely nothing on the basis of which the statement of Smt. Prem. Bai should be discarded. We then come to the consideration of the testimony of Nannoo Lal (PW 2 ). He has deviated from his statement under Section 161 Cr. PC and now says that a quarrel was going on between Smt. Kusum and Saroj Kumar Gupta as a result of which this occurrence took place. According to his testimony Saroj Kumar Gupta was very much present on the spot. But if we peruse the statement of Rao Raja (DW 4), Saroj Kumar Gupta was not present on the spot. According to Nannoo Lal some days before this occurrence, Saroj Kumar was asking Smt. Kusum as to who was the person with whom she was sleeping and she was telling him that it was her brother. But if we peruse the statement of Rao Raja (DW 4), Saroj Kumar Gupta was not present on the spot. According to Nannoo Lal some days before this occurrence, Saroj Kumar was asking Smt. Kusum as to who was the person with whom she was sleeping and she was telling him that it was her brother. There was some exchange of words between them. Then on the date of this occurrence the accused threatened Smt. Kusum that he will make her writhe in pain and die and Kusum was telling him that she will teach him a lesson which he will remember for his life. Then Kusum went inside, sprinkled kerosene oil on her body and put fire to herself. At the bidding of this witness the accused also went and tried to save but she started burning. Then Saroj Kumar pushed her out and she fell down. Saroj Kumar came to her with a Godda and the fire was quenched. A number of persons had collected: The accused went and brought a two seater auto-rickshaw and on it took the lady to Hospital. During cross-examination the reason for this witness going back on his original statement is appellant. He admits in para 9 of this statement that he had a quarrel with the accused about five months prior to his statement in connection with some bicycle. Upon this the accused appellant had set Goondas after him and these Goondas had threatened him and told him that he does not know Saroj Kumar, meaning there by that Saroj Kumar was a very powerful adversary and. that he should not pick up quarrel with him The result was that he had to beg forgiveness. This admission clearly shows that the witness is scared of Saroj Kumar and his power, and although Saroj Kumar might be in jail custody but his associates are still out and there is reason why witness should feel apprehensive for his own life and the well being of his family if he came forward to depose against Saroj Kumar. The learned Sessions Judge had dealt with the testimony of this witness in detail and we are of the opinion that he has rightly discarded his testimony and held him to be a witness, who has been won over by the accused. ( 9 ) THERE thus remains the only eyewitness Smt. Prem. Bai Yadav. The learned Sessions Judge had dealt with the testimony of this witness in detail and we are of the opinion that he has rightly discarded his testimony and held him to be a witness, who has been won over by the accused. ( 9 ) THERE thus remains the only eyewitness Smt. Prem. Bai Yadav. She finds complete corroboration from and furnishes corroboration to the dying declaration recorded by the Executive Magistrate (PW 4) Mr. Uma Vilas Awasthy, which was recorded on 13-5-86 before the Investigation of the case could start. Against this dying declaration the only allegation is that Smt. Kusum did not know Khadi Bali and was only versed with Bundakhandi and she made the entire statement before the Magistrate in her own dialect. The learned Magistrate did not understand what she said. The contention of DW 4 Rao Raja is that the Magistrate consulted the Investigating Officer (PW 9), took thumb mark of Smt. Kusum on a paper and then left the Hospital. The insinuation appears to be that the dying declaration Ext Ka 2 (Ka-2a) was prepared after-wards on the same paper. However, when Mr. Awasthy came to the witness-box, the suggestions put to him were to raise the surpicion against this dying declaration on the ground that it did not contain the entire statement of the lady who was speaking in both Khadi as well as Bundelkhandi Bolis since the learned Magistrate did not understand Bundelkhandi Boli at all. The statement of Mr. Awasthy is to the effect that he put questions to the lady in Khadi Boli and she answered them completely in Khadi Boli itself and then the questions and answers were duly written. He also says that in between the lady was also making wailings and making some remarks in Bundelkhandi dialect which were, however, not relevant and hence he did not note them down. There is also statement of Dr. N. M. Saxena, who was also present when the statement of the lady was recorded by the Magistrate and be also supports the version of the Magistrate that whatever answers were given by the lady to the questions put by the Magistrate were duly taken down by the Magistrate in his presence and nothing was left out. The dying declaration Ext. Ka. The dying declaration Ext. Ka. 2a is a document which shows coherent statement of the lady as a continuous process in reply to the questions that were put to her. She did not speak incoherently. It cannot be said that it was not a complete statement. It has been rightly relied upon by the learned Sessions Judge and it cannot be discharded. ( 10 ) DW 4 Rao Raja is absolutely an unreliable witnesses. His testimony contradicts the statement of PW 2 Nannoo Lal in some respects. His statement that no dying declaration was made by the lady who was only speaking in Bundelkhandi, and that the Magistrate simply obtained her thumb impression and in consultation with the Investigating Officer left the place is all false. The Doctor who is a completely independent witness proves that the dying declaration was made and was recorded as it was made. The Executive Magistrate who had recanted the dying declaration has also made a statement on oath of which, a mention has been made by us earlier. Under these circumstances, Rao Raja is absolutely unworthy of credit and his testimony has rightly been rejected by the learned Sessions Judge. ( 11 ) THE statement of the lady recorded by the Investigating Officer under Sec. 161 Cr. P. C. gives a glimpse of what might have happened and supports the prosecution version completely. The lady says that she was first married to Karan Singh of Gidaura, who had left her 10 years ago and that thereafter she was living with Saroj Gupta. She used to work as a labourer to bring up her two daughters and one son but for the last 8 or 10 days Saroj Gupta had forbidden her from working as labourer and started beating her. In that situation Prem. and Nannoo Lal were helping her sustain herself. For the last 3 days she was insisting upon Saroj Gupta to enter into court marriage with her and Saroj Gupta was consistently beating her and on the date of this occurrence also he gave her a sound beating and put her to fire. The occurrence was seen by both the neighbours, namely Smt. Prem. Bai and Nannoo Lal. This statement of the lady is in line with the dying declaration recorded by the Magistrate earlier and finds support from tile testimony of Smt. Prem. Bai. The occurrence was seen by both the neighbours, namely Smt. Prem. Bai and Nannoo Lal. This statement of the lady is in line with the dying declaration recorded by the Magistrate earlier and finds support from tile testimony of Smt. Prem. Bai. In our opinion, therefore, the case against the accused is made out. ( 12 ) INTENTION and knowledge are of course states of mind. They are nonetheless facts, which can be proved but not always by direct evidence. They have generally to be inferred from the circumstances, such inference one way or the other can only be made if a reasonable man would on facts make it In the instant case it is established beyond doubt that Saroj Kumar who was annoyed with Smt. Kusum because she was either insisting that he should go through the formality of court marriage with her or because he was apprehensive of her unfaithfulness, sprinkled kerosene oil on this lady and put her on fire The intention could only be to commit her murder. It is not a case covered by Sec, 304 Part I of the Indian Penal Code. It is a case of culpable homicide amounting to murder but the circumstances can be looked into that Saroj Gupta was driven to this action because either the lady was asking for too much by insisting that there should be a regular court marriage or because she could not explain her sleeping with an outsider and showed that she was unfaithful In our opinion, it is not a case which can be said to be rarest of the rare. Therefore, the conviction of the appellant Saroj Gupta under Sec. 302 IPC should stand but the sentence of death should be reduced to life imprisonment. ( 13 ) IN view of what we have discussed above, the conviction of the appellant Saroj Kumar is confirmed under Sec. 302 IPC and sentence is reduced to imprisonment for life. He is already in Jail where he will serve out the sentence. The Reference stands rejected accordingly. .