JUDGMENT Faizan Uddin, J. 1. In this Criminal Appeal, the appellant has challenged his conviction under Section 302 of the Indian Penal Code for which he has been sentenced to undergo life imprisonment by the Sessions Judge, Durg, in Sessions Trial No. 78 of 1985. 2. The deceased Mst. Ratna Bai was daughter of Radheshyam (P.W. 1). Ratnabai was married to the appellant on 10-3-1984 and at the relevant time, she was living with the appellant in Mohalla Ramnagar in the town of Bhilai as a tenant in the house of Heeraji (P.W. 3). It is said that after the marriage of Ratnabai with the appellant, she was harassed and more often beaten by the appellant. She used to often report the misbehaviour of the appellant towards her to her parents as well as to the wife of the landlord Heeraji. According to the prosecution, on 17-3-1985 between 8.00 p.m. to 9.00 p.m. when the deceased Ratnabai was cleaning the utencils after taking the dinner, her cries for help were heard by the landlord Heeraji (P.W. 3) and others. Heeraji (P.W. 3) on hearing her cries, rushed to the house occupied by the appellant and saw that Ratnabai was ablazed with fire. The appellant was present there is a silent spectator. On being scolded by the witness Heeraja (P.W. 3), the appellant fetched water and extinguished the fire. Injured Ratnabai was taken to the hospital in Sector I wherefrom she was referred to the hospital in Sector IX, where she was admitted on 17-3-1985 at 10.30 p.m. In the hospital she was attended by Dr. Jain (P.W. 11) who informed the police. He found burn injuries to the extent of 85 percent. The burns were deep. He found 15 percent burns on back and front of trunck. Both upper extrimities were burnt upto the extent of 18 per cent. Both lower extimities were burnt upto 30 percent, p Portion in head and neck were burnt upto 5 percent. The patient was in shock and the pulse was just pulpable. B.P. was not recordable. General condition was poor; but the lungs and heart were normal. She was carrying pregnancy of 4 months. On 19th the patient was in poor stage but had started passing urine. On 20th and 21st March, 1985, the condition continued to be the same as on 19th. B.P. was not recordable. General condition was poor; but the lungs and heart were normal. She was carrying pregnancy of 4 months. On 19th the patient was in poor stage but had started passing urine. On 20th and 21st March, 1985, the condition continued to be the same as on 19th. On 22nd March, 1985 at 10.25 p.m the condition of the patient deteriorated. She was semi-conscious and was unable to talk properly in the evening. According to Dr. Jain, from 10.25 p.m. on 22nd March, 1985, the patient was not in a position to speak but before that she was speaking. On 23rd March, at 1.45 p.m. (midnight) she was declared dead. Ex. P-4 is the bed head ticket of the patient in which the daily condition of the patient is recorded. Radheshyam, father of Ratnabai and other relatives were informed who also reached the Hospital. The appellant did not inform the police about the incident. Later on Radheshyam (P.W. 1) made a written report (Ex. P-l) to the police on 30th March, 1985. Later on Police made an attempt to record the dying declaration of Ratnabai but the same could not be recorded as she was not in a fit state pf health. 3. After her health Dr. S.A. Khan (P.W. 10) performed an autopsy over her dead body, who as per his post mortem report (Ex. P-8) found infected burns on her body. In the opinion of Dr. Khan (P.W. 10) the cause of death was due to septic shock as a result of burns which were ante mortem in nature. 4. At the trial, the appellant admitted that his wife had caught fire and died but abjured the guilt that he was responsible for the same and pleaded to be tried. Learned trial Judge on evaluation of the prosecution evidence found the appellant guilty for the offence charged with and, therefore, convicted and sentenced him, as stated above, against which this appeal has been preferred. 5. Learned trial Judge on evaluation of the prosecution evidence found the appellant guilty for the offence charged with and, therefore, convicted and sentenced him, as stated above, against which this appeal has been preferred. 5. Learned Counsel for the appellant assailed the finding of the learned trial Judge about the guilt of the appellant by contending that the prosecution evidence does not establish beyond reasonable doubt that it was the appellant who had set fire to his wife Smt. Ratnabai resulting into her death and that the evidence of dying declaration is also unworthy of reliance as Ratnabai had herself first stated that her Sari and caught fire accidentally and that the theory of dying declaration came forward on 22nd March, 1985, much after the occurrence which took place in the night of 17th March, 1985. In order to appreciate these contentions, we shall scrutinize the prosecution evidence. 6. The conviction of the appellant rests on the circumstantial evidence as well as on the oral dying declaration said to have been made by Ratnabai in the evening of 22nd March, 1985, in the presence of her father Radheshyam (P.W. 1) and Jeevanlal Sharma (P.W. 2). We shall first examine the circumstances appearing against the appellant, which, according to the prosecution, points towards the guilt of the appellant. 7. The appellant in answer to the questions put to him in his examination under Section 313 of the Code of Criminal Procedure has admitted that his wife Ratnabai had died, having burnt in fire in his house. It is also an admitted fact that only the appellant and his deceased wife Ratnabai both lived in the house of Heeraji Soni (P.W. 3) as tenant; but he denied the allegations that he set fire to her person and took the plea of false implication. The question for determination, therefore, is whether Ratnabai accidentally caught fire or that she was set to fire by her husband, the appellant. The appellant made no statement nor gave any explanation as to how Ratnabai caught fire. 8. Radhes-hyam (P.W. 1) is the father of the deceased Ratnabni who deposed that after Ratnabai was wedded to the appellant in March, 1984, she used to complain against the harassment caused to her by the appellant. The appellant made no statement nor gave any explanation as to how Ratnabai caught fire. 8. Radhes-hyam (P.W. 1) is the father of the deceased Ratnabni who deposed that after Ratnabai was wedded to the appellant in March, 1984, she used to complain against the harassment caused to her by the appellant. No cross-examination of the appellant was directed to challenge the said statement from which it has to be inferred that this fact was not disputed by the appellant. This statement of Radheshyam (P.W. 1) is further corroborated by the evidence of Heeraji Soni (P.W. 3), in whose house, the appellant lived as tenant. Heeraji Soni [P.W. 3) deposed in paragraph 3 that the appellant often used to quarrel with his wife Ratnabai and she used to weep before him. His wife used to console her. Heeraji (P.W. 3) was also cross-examined on this aspect. This evidence, therefore, clearly goes to show that the relations of the appellant and his deceased wife were not cordial and the appellant was unhappy with her. 9. The incident is said to have occurred round about 8.00 p.m. when Heerajt Soni (P.W. 3) and his wife Karanbai (P.W. 4) were taking dinner in separate room. The portion occupied by the appellant on rent is just close-by at a distance of about 10 feet only to the portion occupied by the landlord Heeraji. When the incident occurred, Karanbai (P.W. 4) was the first to reach the room of the appellant followed by her husband Heeraji Soni (P.W. 3). Karanbai (P.W. 4) deposed that she heard the cries of deceased Ratnabai. She left her dinner and immediately rushed to her, and saw that body of Ratnabai was ablazed and the appellant was standing there with a burning Danda, to quote in her own words--"Aparadhi Ke Hath Men Ek Bhabhka Jal Raha Tha." She further deposed that when the appellant noticed that she had arrived there, he started to extinguish the fire of the Danda by hand; to quote in her own words--"Jab Abhiyukta Ne Mujhe Dekha To Dande Ki Aag Ko Hath Se Bujhana Laga." She deposed that she called her husband saying that Ratnabai was burning in fire. Immediately her husband Heeraji Soni arrived as also several other persons and extinguished the fire and injured Ratnabai was taken to Hospital. Immediately her husband Heeraji Soni arrived as also several other persons and extinguished the fire and injured Ratnabai was taken to Hospital. She also deposed that in the room where the incident had occurred there was smell of Kerosene oil. When she was being taken to hospital. Kerosene oil smell was coming out. It may be pointed out that the statement of Karanbai that the appellant was seen standing with a burning Danda and when the arrived, the appellant started extinguishing the same by his hand, has not been challenged, at all, by cross-examining her on that aspect. Her testimony, therefore, goes unchallenged. 10. Heeraji Soni (P.W. 3) husband of Karanbai stated that he too was taking the dinner when he heard the call of his wife saying that "rush Tiwarin was burning", meaning (the wife of the appellant Vishnu Prasad Tiwari was in fire.). Heeraji (P.W. 3) immediately reached at the room of the appellant and saw Ratnabai in fire and the appellant was standing in the room at the some distance and was doing nothing to extinguish the fire. It appears that after the arrival of Karanbai and before the arrival of Heeraji (P.W. 3), the appellant threw the burning Danda which he had in his hand. Heeraji (P.W. 3) further stated that he saw the appellant rubbing his hand against the ground. Heeraji (P.W. 3) also stated that seeing that the appellant was standing as silent spectator, he got annoyed and said to the appellant that instead of extinguishing the fire he was just standing quiet. He commanded the appellant to bring water and pushed him towards kitchen for the purpose. The appellant then brought water under compulsion and extinguished the fire. Karanbai then wrapped Ratnabai in Sari and took her to hospital in a rikshaw. Heeraji (P.W. 3) also followed them on cycle. Heeraji (P.W. 3) further deposed that the room where the incident occurred, was smelling with Kerosene oil. Heeraji (P.W. 3) also deposed that after his return from the hospital along with other tenant at about 2.30 a.m., he along with tenants saw that the room of the appellant was open. In the room he saw the Kerosene oil Can which was seized as per seizure memo. (Ex. P-2), one read twisted handkerchief stained with moulhsstiva and a piece of burnt sari etc. There was a sigri but without fire. 11. In the room he saw the Kerosene oil Can which was seized as per seizure memo. (Ex. P-2), one read twisted handkerchief stained with moulhsstiva and a piece of burnt sari etc. There was a sigri but without fire. 11. From the circumstances discussed above and the conduct of that appellant as seen above, it conclusively lead to the irresistible conclusion that the appellant and he alone was the perpetrator of the crime, and responsible for setting fire to the person of his wife resulting into her death. 12. This brings us to the evidence of oral dying declaration testified by Radheshyam (P.W. 1) father of the deceased, Jeevanlal Sharma (P.W. 2) and Khamhan (P.W. 5). Radheshyam (P.W. 1) who is a teacher deposed that on 18th March, 1985, he had gone to the District Education Officer's Office Durg where at about 11.00 a.m. he was informed by some Khamhan (P.W. 5) that his daughter had burnt and was admitted in Sector IX Hospital. He want to see her and found that her body was badly burnt. He deposed that his daughter Ratna appeared to be very much terrified and told that she caught fire from Sigri accidentally. He deposed that on 22nd March, 1985, at about 4.00 p.m. Jeevanlal Sharma (P.W. 2) had come to see his daughter. Jeevanlal (P.W. 2) is the brother-in-law (Sadu) of younger brother of Radheshyam (P.W. I). At that time the appellant was not present there. 13. Jeevanlal (P.W. 2) asked injured Ratnabai as to how the incident had occurred, assuring her that she should not fear, as after she regains health, he will keep her with him. Ratnabai then felt relieved of the fear and told that her husband had poured Kerosene oil and set fire to her person. It appears that since Ratnabai was terrified and under mis-apprehension that she will have to go to her husband after regaining health, she did not divulge the true fact and, therefore, originally she appears to have stated that her sari had caught fire accidentally with stgri, while in fact there was no fire in the sigri. Jeevanlal (P.W. 2) deposed that he had learnt about the incident on 18th March, 1985 itself; but since his thigh was operated that day, he could not go to see Ratnabi that day. Jeevanlal (P.W. 2) deposed that he had learnt about the incident on 18th March, 1985 itself; but since his thigh was operated that day, he could not go to see Ratnabi that day. After 3-4 days when he was able to move, he went to the hospital on 22nd March, 1985, at about 4.30 p.m. to see Ratnabai along with his wife. When he reached the hospital Ratnabai was speaking and answering the question. Jeevanlal (P.W. 2) deposed that when he asked Ratnabai as to how the incident had occurred, she told him that her husband had poured Kerosene oil on her and set fire, after gagging her by forcing a cloth in her mouth. The aforesaid statement of Radheshyam (P.W. 1) and Jeevanlal (P.W. 2) and fully supported by Khamhan (P.W. 5). In this connection here it would be relevant to look to the medical evidence of Dr. M.L. Jain (P.W. 11) who deposed that from 10.25 p.m. on 22nd March, 1985 patient Ratnabai was not in a position to speak but before that she was speaking. That means the patient was already taking till the evening of 22-3-1985 as stated by the witness. 14. Learned Counsel for the appellant on the basis of the decision in the case of State of Assam v. Mafizuddin Ahmed (A.I.R. 1983 S.C. 274) attacked the evidence of oral dying declaration by contending that the deceased did not make any dying declaration from 17th March, 1985 till 21st March, 1985 and the disclosure of the incident implicating her husband was made after a long lapse of time which could not be relied on. The decision referred to above, does not help the appellant as the same is distinguishable in the sense that the patient did not divulge earlier that her husband had set fire to her person because of the presence of the appellant himself and she was under fear and shock thinking that after she regains her health she will have to stay again with the appellant. It was only on the assurance given by Jeevan (P.W. 2) that if she survives, she will not be sent back to stay with the appellant but he himself will keep her and it was on this assurance that she came out with the dying declaration. 15. It was only on the assurance given by Jeevan (P.W. 2) that if she survives, she will not be sent back to stay with the appellant but he himself will keep her and it was on this assurance that she came out with the dying declaration. 15. Learned Counsel for the appellant then relying on the decision in the case of Shakuntala v. State (Delhi) ( 1984 (1) Crimes 261 ), contended that the evidence of Jeevanlal (P.W. 2) could not be given any credence as he stands contradicted with his case diary statement (Ex. D-1). On examining the alleged contradiction, we find that the submission is without merit. In the Court statement Jeevan (P.W. 2) deposed that patient Ratnabai had told that the appellant had gagged her mouth and had tied her hands behind while this fact does not appear in his case diary statement (Ex. P-1). But in this connection it may be pointed out that these are the minor details but there is no substantial improvement or any change in the statement of Jeevan (P.W. 2) on the point of oral dying declaration giving rise to any doubt. We thus on critical examination find that the evidence of oral dying declaration does not suffer from any infirmity. However, even for the sake of arguments we exclude the evidence of dying declaration the circumstantial evidence by itself is enough to sustain the conviction of the appellant. 16. Lastly we shall be failing in our duty if we do not highlight the conduct and the role of the police, lathargic and irresponsible manner, in which it acted in not taking cognizance of the offence and failing to give due attention to the incident. The appellant himself took no initiative in making a report of the incident. The bridegrooms at the house of their husband are total stranger and they hardly find any supporter or sympathiser in or around the family of her in-laws. But in the instant case, the landlord of the appellant and his wife came forward to make true statement of the incident. Radheshyam (P.W. 1) father of the victim deposed in paragraph 3 that after Ratna made the oral dying declaration in the evening of 22nd March, 1985. But in the instant case, the landlord of the appellant and his wife came forward to make true statement of the incident. Radheshyam (P.W. 1) father of the victim deposed in paragraph 3 that after Ratna made the oral dying declaration in the evening of 22nd March, 1985. Jeevan (P.W. 2) proceeded to lodge the report in the police and, therefore, under the impression that Jeevan (P.W. 2) had lodged the report, he himself did not go to make a report of the incident. But later on he learnt that no report has been recorded and, therefore, he made a written report (Ex. P-l) on 30th March, 1985 to the City Superintendent of Police, Bhilai through Ramesh Sharma. Jeevanlal (P.W. 2) stated that after the victim made dying declaration he went to the Chhawani Police Station and made the report to the Havaldar, but he did not record the report. He then went to the Police-Station in Sector I; but there also he found that report was not recorded. He then went to the City Kotwali. He did not find any report there also. He, therefore, returned back to Chhawani Police-Station and told the Head Moharrir that there was no report anywhere. Head Constable then sent a Constable with him who took A.D.M. Durg with him and reached in the hospital of Sector IX at about 11.00 p.m. but by that time victim Ratnabai became unconscious and, therefore, her dying declaration could not be recorded by the A.D.M. If the Police had not made Jeevanlal (P.W. 2) a shuttle cock who was running from one Police Station to another, then probably the time would not have been wasted and the Magistrate would have been in a position to record the dying declaration sometimes before 10.00 p.m. as till then the victim was conscious. At this stage one can simply express grave dissatisfaction on the manner in which the police and the investigating agency had acted which is highly condemnable. 17. For the reasons stated above the appeal fails and is hereby dismissed.