M. K. MUKERJEE, C. J. ( 1 ) YAD Ram, the appellant before us, was arraigned before the learned Sessions Judge, Moradabad for the murder of his wife. The trial culminated in an order of conviction and sentence of death recorded against the appellant. Aggrieved thrreby he filed an appeal add the learned trial Judge, in his turn, made the obligatory, reference under section 366 of the Code of Criminal Procedure for confirmation of the sentence of death. The appeal and the reference have been heard together and this judgment will dispose of both of them. ( 2 ) BEREFT of details, die case for the prosecution is as under: On April 12, 1982 at or about 6. 30 p. m. Jagannath Sharma (P. W. 1), a resident of Puranaganj in the district of Rampur, went to Bilari Police Station in the district of Moradabad and lodged a report. In that report he stated that his sister Smt. Ashoka Devi was given in marriage to Yad Ram (the appellant) ten years back. For the last few years their relationship was not cordial and, ultimately, being unable to bear his tortures any more, she came back to their place two months earlier and started living there. Thereafter Yad Ram came there and on his entreaties his (P. W. 1) mother allowed Ashoka Devi to go with him. Even after she had gone back to her husbands place, he had been receiving information from his elder sister Shyama Devi, who was married to Krishna Avtar Sharma of Mohalla Bazar, Bilari, that Yad Ram had been torturing and tormenting Ashoka Devi. On that very day, that is, on 12. 4. 1982, he received a message sent by Krishna A v tar Sharma through one Ram Nath asking him to come to Bilari. On getting the message, he along with his mother and cousin Naresh Kumar Sharma came to Bilari and found her sister lying dead in her house with bums on her body. On inquiry, he learnt that in the night between 11th and 12th April, 1982, at or about 3 a. m. Yad Ram had set her on fire, removed her semi-burnt clothes and thrown them in a well. He had, thereafter, furtively given her some treatment but she could not be cured and ultimately she died around 5. On inquiry, he learnt that in the night between 11th and 12th April, 1982, at or about 3 a. m. Yad Ram had set her on fire, removed her semi-burnt clothes and thrown them in a well. He had, thereafter, furtively given her some treatment but she could not be cured and ultimately she died around 5. 30 p. m. On the basis of the above report, Bilari Police Station registered a case against the appellant and S. I. K. B. Singh (P. W. 6) took up investigation. He reached the spot on the same night and after holding inquest upon the dead body sent it for postmortem examination. He recovered some clothes belonging to the deceased from inside a well there and prepared a seizure memo in respect thereof. He found a stove in the house of the appellant which had neither any oil inside nor was it serviceable. On April 18, 1982 the investigation of the case was taken over by S. 1. Inder Pal Singh (P. W. 4) who seized the above stove, arrested the appellant and on completion of investigation, submitted charge sheet. In due course the case was committed to the Court of Session. ( 3 ) THE appellant pleaded not guilty to the charge framed against him. His defence was that he was not present at the time, date and place of the alleged occurrence and that he had been falsely implicated. His further defence was that on the day in question he had gone to village Sujatpur to bring his son and on the following day when he returned he found his wife lying burnt. She told him that while preparing tea she had caught fire and received injuries. He then took her to Dr. Udai Sharan Sharma, Dr. Arman and Devendra Pal, who examined her, but she could not be saved. ( 4 ) IN support of its case the prosecution examined seven witnesses. Though no witness was examined by the appellant, at his instance the trial court examined one witness, namely, Sri Budh Sen (C. W. 1 ). Udai Sharan Sharma, Dr. Arman and Devendra Pal, who examined her, but she could not be saved. ( 4 ) IN support of its case the prosecution examined seven witnesses. Though no witness was examined by the appellant, at his instance the trial court examined one witness, namely, Sri Budh Sen (C. W. 1 ). ( 5 ) IT will be appropriate at this stage to mention that during the hearing of the appeal and the connected death reference this Court examined Smt. Shyama Devi (H. C. W. 1), the elder sister of the deceased and her husband Krishna Avtar Sharma (H. C. W. 2) and further examined P. W. 4. Besides, the appellant, with the leave of the Court, examined Khusi Ram, his brother-in-law, as a defence witness (D. W. 1 ). ( 6 ) TO bring Rome the charge levelled against the appellant the prosecution relied principally upon toe ocular version of the incident as given out by Km. Sushma Devi (P. W. 2), the daughter of the deceased, who at the time of the incident was aged about 6 years and, on the date of her examination in Court (on 11. 11. 1987), about 12 years and certain circumstantial evidence. Before we proceed to consider the latter, let us find out whether the evidence of the child witness can be relied upon or not. ( 7 ) IT appears from record that before examining P. W. 2 the learned Judge questioned her about her understanding and being satisfied administered her oath. She stated that she was a student of class II. She had a real brother by the name of Sonu and a step brother by the name of Guddu, who used to reside with his parents. Sonu was sold by her father in Bareilly and over this issue there used to be quarrels between her parents. On the date of the incident, which was about 5/5-1/2 years back, she and her parents were in the house. On that day her father, accompanied by two persons came back home and all of them took liquor. After consuming liqour those two persons left. Then there was a quarrel between her parents and in course thereof her father sprinkled kerosene oil upon her mother and set her on fire by lighting a match-stick. On that day her father, accompanied by two persons came back home and all of them took liquor. After consuming liqour those two persons left. Then there was a quarrel between her parents and in course thereof her father sprinkled kerosene oil upon her mother and set her on fire by lighting a match-stick. Her father then poured some water upon her, removed her clothes and threw them in a well. Narrating the incident further she stated that after confining her in the courtyard her father went to fetch Guddu. While leaving the house, he told her that if she made any attempt to go out of the house, she would be killed. Next day, her mother died in the evening. She claimed to have narrated the incident to her maternal aunt. She lastly stated that her father used to beat her mother almost every day. ( 8 ) IN cross-examination, she stated that since after the incident she had been staying with her maternal uncle at Rampur and reading in a school there. She next stated that on the following night she was interrogated by a police officer. It was also elicited from her that she reported the matter to her maternal aunt in the morning in her house and to nobody else. She further stated in her cross-examination that she was awake when her father came to the house in the evening, drank liquor and set her mother on fire. She denied the defence suggestion that she was tutored to say that her father set her mother on fire. ( 9 ) IN assailing the evidence of P. W. 2, Mr. Wali, the learned counsel appearing for the appellant, first contended that the non-disclosure of the fact, that P. W. 2 had seen the incident, in the F. I. R. , lodged by P. W. 1 clearly proved that she was not in the house on the fateful night. Having gone through the materials on record and considering the same in the light of probabilities, we do not find any substance in this contention. Un-controverted evidence appearing on record clearly proves that the appellant along with his wife and Sushnia used to live together. In the fitness of things, therefore, Sushma, who at the material time was aged about 6 years, was expected to stay with her parents, particularly her mother. Un-controverted evidence appearing on record clearly proves that the appellant along with his wife and Sushnia used to live together. In the fitness of things, therefore, Sushma, who at the material time was aged about 6 years, was expected to stay with her parents, particularly her mother. While on this point we cannot lose sight of the admitted fact that the deceased had admittedly lost the company of her son, who, while according to the prosecution, had been sold away, according to the appellant himself, was given in adoption. When judged on the touch-stone of probability, the conclusion is inescapable, therefore, that P. W. 2 was with her parents in that house on he date in question. ( 10 ) THEN again, we find from the evidence of Smt. Shyama Devi (H. C. W. 1) the maternal aunt of P. W. 2, who also stays in the same town (Bilari) that she (P. W. 2) had been to her house in the following morning at or about II a. m. That indicates not only that P. W. 2 was in Bilari on the fateful night but also that she might not have been present in the house of the appellant when P. W. 1 had gone there on the following evening. As P. W. 2 was a child or it can be legitimately inferred that her near relations or neighbours would take care of her following the calamity that befell her. In that context, the omission of her name in the F. I. R. does not negate her presence at the material time and her claim as an eye witness. ( 11 ) RELIANCE was also placed on behalf of the appellant upon the evidence of Khushi Ram (D. W. 1), wherein he stated that in the following afternoon she (P. W. 2) came to the house of the appellant along with her grandmother, that is, the mother of the deceased, and others, to contend that P. W. 2 was not present in the house of the appellant on the previous day. The belated testimony of Khushi Ram does not inspire any confidence having regard to his admission that he had not deposed about this fact to anybody before he deposed in the court (at the appellate stage ). The belated testimony of Khushi Ram does not inspire any confidence having regard to his admission that he had not deposed about this fact to anybody before he deposed in the court (at the appellate stage ). Besides, from the above statement of D. W. 1 no conclusive inference can be drawn that she was not in the house of the appellant in the previous evening, more particularly when evidence, earlier discussed, proves that she had gone to the house of her maternal aunt, namely, Shyama Devi in the following morning. In any view of the matter, the evidence of Khushi Ram does not in any way disprove her statement that she had been with her parents on the previous night. For the foregoing discussion and in absence of any infirmity, incongruity and inconsistency in her statement, which we have carefully gone through, we find no reason to disbelieve the assertion of P. W. 2 that on the fateful night she had seen her father setting her mother on fire and throwing her clothes in the well. ( 12 ) MR. Wali next contended that even if the evidence of P. W. 2 was believed still then no conviction should be rested there upon as she was a child aged only 5/6 years. Law is now well settled that though there is no legal embargo in recording a conviction relying upon the sole testimony of a child witness, as a matter of prudence, the court should seek corroboration of such evidence as most of the children of such age are witnesses of imagination. Judged in the light of the above principle, we might have reluctantly persuaded ourselves not to rely upon the sole testimony of P. W. 2 to sustain the conviction of the appellant, but then there is unimpeachable and un-controverted circumstantial evidence on record, which, as the discussion to follow will indicate, not only materially corroborated the evidence of P. W. 2, but even independent thereof, proves the case of the prosecution beyond all reasonable doubts and negatives that of the defence. ( 13 ) THE corroboration of the evidence of P. W. 2 first comes from the evidence of Dr. A. N. Saxena (P. W. 5), who held post mortem examination upon the deceased on 13. 4. ( 13 ) THE corroboration of the evidence of P. W. 2 first comes from the evidence of Dr. A. N. Saxena (P. W. 5), who held post mortem examination upon the deceased on 13. 4. 1982 at about 3 p. m. and found the following ante-mortem injuries on the body of the deceased 2nd degree burn injuries present over face, neck, chest including both breasts, front of abdomen, right arm, including hand and shoulder, left forearm and left shoulder, upper part back front of thigh, Vescicles (visicans) were present over the front area. Vesicles were found containing fluid. Reddish demaraction was present around the burnt area. There are a few third degree burns also on back. Hair of scalp were singed, so also eye-brow. ( 14 ) IN the opinion of the doctor, death was caused due to shock and burn injuries. He stated that the injuries might have been caused if the victim was set on fire after sprinkling kerosene oil on her person. ( 15 ) HOWEVER, the most telling and incriminating circumstances which unerringly point to the guilt of the appellant and negatives his contention that the death was due to accidental fire emanating from a stove are, that the victim was found inside her house wearing a petticoat only and that semiburnt Sari and blouse belonging to her were recovered from inside a well nearby. ( 16 ) AS has been already noticed, P. W. 2 categorically stated in her examination-in-chief that after setting her mother on fire and pouring water upon her, her father disrobed her mother and threw her clothes in a well. This part of her evidence was not at all challenged by the defence in cross- examination. The above evidence of P. W. 2 stands corroborated by the evidence of S. I. K. B. Singh (P. W. 6) who first took up investigation of the case. The Panchayatnama (Ex. Ka 8) prepared by him shows that the deceased had only a petticoat, and no other clothes, on her person and that the dead body was covered with a Dhoti. Considering the fact that the victim was a lady aged about 28 years, we can legitimately infer that before the unfortunate incident she was fully dressed and, in my case, was not wearing a petticoat only. Considering the fact that the victim was a lady aged about 28 years, we can legitimately infer that before the unfortunate incident she was fully dressed and, in my case, was not wearing a petticoat only. If, therefore, she had died due to accidental fire, as contended by the appellant she was expected to be found fully clothed. Therefore, absence of any cloth on her body, except a petticoat, coupled with the find of her semi burnt saree and blouse from inside the well not only disproves the case of accidental fire but conclusively proves, by themselves, that her clothes were removed from her body immediately after the incident. In as much as there was nobody else in the house except the appellant who could have done so, the conclusion is inevitable that the appellant had set her on fire and then threw her blouse and Sari in the well. To put it differently, the above circumstances, even bereft of the reliable evidence of P. W. 2, lead to the only conclusion that none but the appellant caused the death of his wife by setting fife upon her. ( 17 ) ANOTHER circumstance which negatives the theory of accidental fire is that the stove found inside the house was non-functional. The most important evidence on this point was furnished by P. W. 6. He categorically stated that he found a stove lying near the place of occurrence which was full of dust, had no oil inside it and was not fit for use. Besides P. W. 2 stated in cross-examination that the stove was unworkable. ( 18 ) MR. Wali, however, strongly urged that, in each case prosecution is duty bound to prove the exact time of occurrence and for its failure to do so the instant case must fail. In elaborating his contention Mr. Wali argued that even though in the First Information Report it was stated by P. W. 1 that the incident took place at or about 3 a. m. no evidence was adduced by the prosecution in support thereof. In fact, Mr. Wall submitted: the prosecution did not prove as to when exactly the incident took place. The above contention of Mr. Wali is devoid of any sub Stance. If the contention of Mr. In fact, Mr. Wall submitted: the prosecution did not prove as to when exactly the incident took place. The above contention of Mr. Wali is devoid of any sub Stance. If the contention of Mr. Wali is accepted as an abstract proposition of law and taken to its logical conclusion all cases of criminal breach of trusts and misappropriations and many a case of murder and other allied offences would fail. Besides, section 212 of the Code of Criminal Procedure which lays down the requirements to be incorporated in a charge would have to be rewritten. ( 19 ) IN a given case, in view of the nature of the offence and the facts constituting the same it may not be possible for the prosecution to prove the exact time of the commission of the offence and in such case, it will be sufficient for the prosecution to prove the period during which or the dates between which it was committed. To cite an example: A house of a villager is found locked from outside for 2/3 days and ultimately when it is broken open the dead body of his wife is found therein. For successful prosecution of the villager for the mother of his wife the prosecution is certainly not expected nor is it possible for it to prove the exact time of the murder. It will be sufficient for the prosecution in such a case to prove the dates between which the murder was committed. ( 20 ) KEEPING in view the above principle, if we consider the facts of the instant case we find that evidence was laid by the prosecution to prove that the appellant, accompanied by his two friends, came to the house in the fateful evening had drinks with them and thereafter the victim was done to death. It was not expected or nor possible for P. W. 2 to state the exact time of death and on this score alone, the prosecution cannot fail, more particularly when it has been able to conclusively prove that in between the evening of 11. 4. 19982 and following morning, the victim was murdered. ( 21 ) IT was lastly contended by Mr. 4. 19982 and following morning, the victim was murdered. ( 21 ) IT was lastly contended by Mr. Wali that the evidence of Budh Sen (C. S. 1) clearly proved that the victim made a. dying declaration to the effect that she sustained injuries owing to stove burn and that she also stated that her husband had gone to Siroli in the district of Bareilly to bring his son in the previous night. In other words, Mr. Wali argued that the evidence of Budh Sen (C. W. 1) clearly disproved the prosecution case and supported that of the defence. ( 22 ) HAVING carefully gone through his evidence in the light of other materials appearing on record, we have no hesitation in concluding that Budh Sen deposed falsely. He is the real brother in law of the appellant, being the husband of his sister. He stated that his house was about one kilometre away from the house of the appellant. Learning that Smt. Ashoka Devi had received burn injuries, he came to her house in the following morning at or about 10 a. m. and in his presence, she disclosed to his wife that she had sustained injuries due to stove burns. He further stated that he found bum injuries on her face and nowhere else. He lastly stated that she (the victim) told that her husband had gone to Siroli the previous evening to bring his son. The above evidence of this witness cannot be relied upon; firstly, because P. W. 2 categorically stated that he did not come to their house; secondly, because the victim had, as the post mortem report shows, injuries all over her body and not only on the face as deposed by him; thirdly, because other evidence on record shows that the victim was not in a position to speak in details; fourthly, because the circumstantial evidence which we have already discussed in detail completely negatives the theory of accidental fire and lastly because had he really been there, it was expected of him to immediately arrange for treatment of the victim which admittedly he did not do. ( 23 ) EVIDENCE was also laid by the prosecution to prove that the appellant had a motive to commit the crime but we need not detail or delve into the same as we have already found that, the independent thereof, the prosecution has been able to conclusively prove the crime. For the foregoing discussion we uphold the conviction of the appellant. ( 24 ) THAT brings us to the question of sentence. Considering the nature of the offence and the manner in which it was committed the appellant certainly deserves no sympathy, but then the evidence on record shows that the appellant committed the murder in a state of intoxication. We cannot also lose sight of the fact that since the offence was committed more than 10 years have passed and the appellant is incarcerated for more than two years. Striking a balance between these disparate considerations, we commute the sentence of death imposed upon the appellant to imprisonment for life. ( 25 ) SUBJECT to the above modification regarding sentence the appeal is dismissed and the reference is rejected. Sentence modified. .