M. S. A. SIDDIQUI, J. ( 1 ) THE appellant Mst. Chandrawatiwas convicted by the learned Additional Sessions Judge, Delhiunder Section 302 Indian Penal Code. and was sentenced to death togetherwith a fine of Rs. 10,000 and in default of payment of tine toundergo rigorous imprisonment for a period of one year. She was also convicted under Section 498-A 34 Indian Penal Code. and sentencedto pay a fine of Rs. 5,000 and in default of payment of fine toundergo rigorous imprisonment for six months. Appellants Kishanlal and Harkesh were convicted u/s 498-A134 Indian Penal Code. and sentenced to undergo rigorous imprisonment for three years togetherwith a fine of Rs. 5,000 each and in default of payment of fine toundergo rigorous imprisonment for a period of six months. Appellants have appealed against their convictions and sentences. The record is also before us for confirmation of the death sentence. The appeal and death reference are being disposed of by thiscommon judgment. ( 2 ) DECEASED Krishna, who died of bum injuries on 14-11-88was married to the appellant Kishan Lal on 18-4-1987. Themarried life of the deceased Krishna and Kishan Lal, accordingto the prosecution, lacked connubial felicity and was marked by constant bickerings and quarrels, the cause of this discord beingthe dowry demands of the appellants. It is the prosecution easethat the deceased was being subjected even to maltreatment. Deceased Krishna complained to her father Harichand (P. W. 9)and sister Neeru (P. W. 1) about the cruel treatment meted out to her by the appellants. The immediate provocation for the appellants stepping up their ill-treatment of the deceased wastheir demand for a motor cycle and also half share of the saleproceeds of the house belonging to her father. ( 3 ) ACCORDING to the prosecution on 13-11-1988, the deceasedwas beaten up by her husband as a result whereof she had sustaineda bleeding injury over her left arm. Thereafter, on the same dayat about 8. 30 to 8. 45 p. m. the appellant Mst. Chandrawati andthe deceased had a quarrel during the course of which the appellant Mst. Chandrawati dragged the deceased inside the bed room. threw kerosene on her and set her on fire. In the meantime, atabout 9. Thereafter, on the same dayat about 8. 30 to 8. 45 p. m. the appellant Mst. Chandrawati andthe deceased had a quarrel during the course of which the appellant Mst. Chandrawati dragged the deceased inside the bed room. threw kerosene on her and set her on fire. In the meantime, atabout 9. 05 p. m. , somebody informed the Fire Station Shankerroad over phone about the fire at the appellants house, whichbrought leading Fireman Raj Kumar (P. W. 16) at the spot, andwho took the deceased to the Ram Manohar Lohiya Hospital. New Delhi. The deceased was admitted in the Emergency Wardof the said hospital at about 9. 40 p. m. where she was examinedby Dr. S. Kumar, who found her to have sustained 100 per centburns vide M. L. C. (Ex. Public Witness 2 A and 10 A ). Dr S. Kumar referredthe deceased to the Surgical Emergency Ward, where the deceasedwas examined by Dr. D. Gupta (P. W. 6) in the presence of Dr. Sandeep Cuopra (P. W. 7 ). After examining Krishna, Dr. Gupta (P. W. 6) recorded her dying declaration (Ex. Public Witness 6 A ). ( 4 ) AT aboat 9. 10 p. m. a telephonic message was received atthe Police Station, Patel Nagar from S. I. Suraj Bhan of Police Control Room about the alleged incident. Pursuant to this information, S. I. Inder Singh (P. W. 24) requested the S. D. M. Shriv. K. S. Chalihan (P. W. 13) to record the dying declaration of the deceased, Immediately thereafter, S. D. M. Suri Cnauhan (P. W. 13)rushed to the hospital but he could not record the dying declaration as the deceased was unfit to maice the statement. On 14-11-1988 at 10. 30 a. m. the deceased succumbed to her burn injuries. S. D. M. Shri Chauhan (P. W. 13) prepared the inguestreport (Ex. Public Witness 13 A) and sent the dead body for post-mortemexamination. ( 5 ) ON 13-11-1988, the investigating officer S. I. Inder Singh (P. W, 24) seized one half burnt GADDA and pillow, one small. cane containing kerosene oil, one match box and two burnt matchsticks from the bedroom vide seizure memo (Ex. Public Witness 191a ). ( 6 ) DR. L. T. Ramani (P. W. 3) performed the post mortemexamination on the dead body of Smt. Krishna on 15-11-1988at about 4. cane containing kerosene oil, one match box and two burnt matchsticks from the bedroom vide seizure memo (Ex. Public Witness 191a ). ( 6 ) DR. L. T. Ramani (P. W. 3) performed the post mortemexamination on the dead body of Smt. Krishna on 15-11-1988at about 4. 30 p. m. and observed as under: "there are 3rd degree bums all over the body involving100 per cent body surface (upper part of face andforehead however shows 2nd degree burns ). Scalphair partially burnt, smell of kerosene oil is presentin scalp hair. There is evidence of vesication on rightside of forehead and eyelids". Dr. L. T. Ramani (P. W. 3) opined that the deceased s death wascaused on account of shock resulting from the bum injuries videreport Ex. Public Witness 3 A. After the completion of the investigation,the three appellants were sent for trial. ( 7 ) AT the trial in the court of Sessions, the appellants abjured their guilt and alleged that a false case has been foisted on them. They have not adduced any evidence in support of their defence. ( 8 ) IN order to. prove the charges against the accused, theprosecution examined as many as 24 witnesses. The learned Additional Sessions Judge on a consideration of the evidenceadduced by the prosecution found that the charges under Sections 302 and 498-A 34 Indian Penal Code. were fully brought home to the accusedmst. Chandrawati. He also found that a charge under Section498-A 34 T. P. C. has been proved against the accused Kishan Laland Harkesh. That being the case. the learned Additional Sessionsjudge held that the appellant Mst. Chandrawati -deserved to beawarded the highest sentence laid down under Section 302 Indian Penal Code. Consequently, he convicted and sentenced the appellant Mst. Chandrawati to be hanged. In addition to this, the appellant Mst. Chandrawati was convicted u/s 498-A/34 Indian Penal Code. and sentencedto pay a fine of Rs. 5,000 or in default to suffer imprisonment forsix months. The learned Additional Sessions Judge also convictedand sentenced the appellants Kishan Lal and Harkesh undersection 498-A/34 Indian Penal Code. to undergo rigorous imprisonment forthree years together with a fine of Rs. 5,000 each or in default ofpayment of fine to undergo further rigorous imprisonment for. sixmonths. 5,000 or in default to suffer imprisonment forsix months. The learned Additional Sessions Judge also convictedand sentenced the appellants Kishan Lal and Harkesh undersection 498-A/34 Indian Penal Code. to undergo rigorous imprisonment forthree years together with a fine of Rs. 5,000 each or in default ofpayment of fine to undergo further rigorous imprisonment for. sixmonths. ( 9 ) THE case of prosecution rests mainly on three categoriesof evidence: (1) evidence of Smt. Neeru (P. W. 1), Smt. Sheela (P. W. 6) and Harichand (P. W. 9); (2) the dying declaration (Ex. P. W I 6/a) made by the deceased Smt. Krishna; and (3)evidence of Dr. L. T. Ramani (P. W. 3) and the Investigatingofficer Inder Singh (P. W. 24 ). Evidence was also produced toshow the alleged torture of Krishna for some time preceding theoccurrence over demands for a motor cycle and also half share ofsale proceeds of the house belonging to her father. ( 10 ) IT is beyond the pale of controversy that deceased Krishna. who died of burn injuries on 14-11-1988, was married to theappellant Kishan Lal on 18-4-1987. that the appellant Mst. Chandrawati is the mother and the appellant Harkesh is the fatherof the appellant Kishan Lal. It is also evident from the evidenceof Smr. Neeru (P. W. 1), Smt. Shecla (P. W. 5), Hari Chand (P. W. 9), Dr. D. Gupta (P. W. 6), Dr. L. T. Ramani (P. W. 3), Shriv. K. . S. Chauhan (P. W. 13) and S. I. Inder Singh. (P. W. 24)that on 14-11-1988 the deceased Krishna died of bum injuries. There could be three alternatives for her being burnt (a) suicide; (b) accidental fire; and (c) being put on fire. The plea of accidental fire has not been advanced either by the prosecution orby the defense. That apart, the theory of accidental death hadto be brushed aside in view of presence of kerosene on the scalpof the deceased. Deceased Krishna suffered burn infuries in a bedroom of the appellant s house. Accidental fire as the. reason ofdeath has. therefore rightly not been pressed into service leavingthe two other alternatives of suicide and the intentional killingby burning her, for consideration. As stated earlier, there is noeve witness to testify to the act of setting fire to Krishna whichis the prosecution case. Accidental fire as the. reason ofdeath has. therefore rightly not been pressed into service leavingthe two other alternatives of suicide and the intentional killingby burning her, for consideration. As stated earlier, there is noeve witness to testify to the act of setting fire to Krishna whichis the prosecution case. It must be remembered that since suchcrimes are generally committed in the privacy of residential houseand in secrecv, independent and direct evidence is. not easy toact. The Apex Court observed in the case of Om Parkash Vs. State of Puniab, 1992 Crl. L. J. 3935 (1): ". . . . It is the duty of the court, in a case of death becauseof torture and demand of dowry, to examine thecircumstances of each case and evidence adduced onbehalf of the parties, for recording a finding on thequestion as to how the death has taken place. Whilejudging the evidence and circumstances of the case,the court has to be conscious of the fact that a deathconnected with dowry takes place inside the house,where outsiders who can be said to be independentwitnesses in the traditional sense, are not expectedto be present. The finding of guilt on the charge ofmurder has to be recorded on the basis of circumstances of each case and the evidence adduced beforethe court. . . . . " ( 11 ) THE prosecution has examined Smt. Neeru (P. W. 1) andsmt. Sheila (P. W. 5) to prove that at the relevant time, theappellant Mst. Chandrawati having belaboured Krishna, draggedher inside the room and immediately thereafter they heard shrieksand alarm raised by Krishna and when they looked up they noticedsmoke and fire in the house while Krishna was shouting for help. Before we refer to the oral evidence of these witnesses, it is appropriate to deal with the dying declaration (Ex. Public Witness 6/a) madeby the deceased. The learned Additional Sessions Judge has placedstrops reliance on the said dying declaration in holding the appellant Mst. Chandrawati guilty of murder. Learned counsel appearing for the appellant Mst. Chandrawati submitted that the dyingdeclaration (Ex. Public Witness 61a) is a fabrication and must thereforebe discarded. He further submitted that having reward to the natureand severity of the bum injuries. Krishna could not reasonably beexpected to have been in a position to make the dying declarationattributed to her. Chandrawati guilty of murder. Learned counsel appearing for the appellant Mst. Chandrawati submitted that the dyingdeclaration (Ex. Public Witness 61a) is a fabrication and must thereforebe discarded. He further submitted that having reward to the natureand severity of the bum injuries. Krishna could not reasonably beexpected to have been in a position to make the dying declarationattributed to her. ( 12 ) IT is well settled that the conviction could be based uponthe dvying declaration even if there is no other corroboratingevidence on the record (Tarachnnd Damu Sutar Vs. State ofmaharashtra AIR 1962 S. C. 130- (2) Manianpan Vs. State ofmadras AIR 1962 S. C. 1252 (3) Khushal Rao Vs. State ofbombay AI. R. 1958 S. C. 221 (4) It is true that the last word ofa dying man has a sanctity to which due weight must be givenand the same can t bs just brushed aside. A dying declarationenjoys almost a sarosanct status as a piece of cadence as it comes from the mouth of a person who is about to die and at that stagehe is not likely to make a false statement. The Apex Court pointedoat in Khushal Rao (supra) that a dying declaration stands onthe same footing as another piece of evidence and has to bejudged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. Inlallubhai Devchand Shah Vs. State of Gujrat AIR 1972 S. C. 1776, (5) dealing with a dying dedartion, the Apex Court laiddown: "the law with regard to dying declarations is very clear. A dying declaration must be closely scrutinized asto its truthfulness like any other important piece ofevidence in the light of the surrounding facts andcircumstances of the ease, bearing in mind on theone hand, that the statement is by a person who hasnot been examined in court on oath and, on the otherhand, that the dying man is not likely to implicateinnocent person falsely. " ( 13 ) IT has been judicially evolved as to how and what testshould be employed for placing reliance on a dying declaration. " ( 13 ) IT has been judicially evolved as to how and what testshould be employed for placing reliance on a dying declaration. By and large, inter aha, the following tests can be devised inorder to answer the question whether dying declaration is true: (i) Whether the declarant had sufficient opportunity toobserve and identify his assailant; (ii) Whether the capacity of the declarant to rememberthe facts stated, had not been impaired at the timehe was making the statement, by circumstances beyond his control either due to nature of the injuriesor for any other cause; (iii) Whether the statement has been consistent throughout if the declarant had several opportunities ofmaking a dying declaration apart from the officialrecord of it; (iv) Whether the statement had been made at the earliestopportunity and was not the result of the tutoringby interested parties; (v) Whether the statement made by the declarant isintrinsically sound and accord with probabilities ? (vi) Whether any material part of the statement is provedto be false by other reliable evidence. ( 14 ) IN the instant case, the prosecution relied very strongly onthe dying declaration (Ex. Public Witness. 6/a) recorded by Dr D. Gupta (P. W. 6 ). The learned Additional Sessions Judge relving uponthe testimony of Dr. D. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7) came to the conclusion that notwithstanding the exclusive burns, Krishna was in a fit state of mind and able tospeak at the time when she made the dying declaration (Ex. Public Witness 6 (A) before Dr. Gupta (P. W. 6 ). ( 15 ) IN Suresh Vs. State of M. P. (1987) 2 S. C. C. 32, (15)the Apex Court was inquired to deal with a more or less similarsituation-In that case, the victim had sustained 100 per centburns of 2nd degree and her dying declaration wasrecorded bydr. Bhargava in the hospital. Dr. Bhargava had deposed that thevictim was in a fit State of health. The evidence, however, disclosed that when Dr. Bhargava was recording her statement thevictim had started going into coma. Yet the Apex Court acceptedthe dying declaration made by the victim to Dr. Bhargava. Therefore, the mere fact that Krishna suffered 100 per cent burnsand her general condition was poor is no reason to discard theevidence of Dr. D. Gupta (P. W. 6) and Dr. Bhargava was recording her statement thevictim had started going into coma. Yet the Apex Court acceptedthe dying declaration made by the victim to Dr. Bhargava. Therefore, the mere fact that Krishna suffered 100 per cent burnsand her general condition was poor is no reason to discard theevidence of Dr. D. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7) when they say that she was in a fit of state of mindand was able to make the dying declaration, (See also Pandmabanshamalbhai Patel Vs. State of Gujrat J. T. 1991 (1) S. C. 205 ). (16) ( 16 ) THE truthfulness of a dying declaration has to be testedwith reference to the circumstances and other relevant facts ofeach case. It is, therefore, necessary to examine closely the circumstances attendant upon the dying declaration (Ex. Public Witness 6/a ). It is true that the dying declaration (Ex. Public Witness 6 /a) has not beenrecorded in the form of question and answer. It is not necessarythat dying declaration must be always recorded in the form ofquestion and answer. It would be desirable to do so, but if thatis not done, by itself it is not a circumstance which would justifyrejecting the dying declaration. The law in this behalf has beenclarified by the Supreme Court in the case of Ganpat Mahadeomana Vs. State of Maharashtra 1993 Cr. LJ. 298. (17) ". . . . Learned counsel for the appellant submitted thatsince the executive Magistrate did not record the statement by way of questions and answers, the recordingis defective and, therefore, it should not be actedupon. We see no force in the submission. The formby itself is not important. The statement is clear. Because of the mere fact that the entire thing is notrecorded by way of separate questions and answers,the value of the dying declaration is not detracted. " ( 17 ) DR. D Gupta (P. W. 6) testified that on 13-11-1988, hewas posted as Senior Resident Surgeon in the Surgical Emergencyward of the Ram Manohar Lohia Hospital, He further testifiedthat on that day at about 9. 50 p. m. Dr. S. Kumar had referredkrishna to his ward and he had recorded her dying declaration (Ex. Public Witness 6/a) in the presence of Dr. Sandeep Chopra (P. W. 7 ). Dr. Sandeep chopra (P W. 7) also swears to the same effect. 50 p. m. Dr. S. Kumar had referredkrishna to his ward and he had recorded her dying declaration (Ex. Public Witness 6/a) in the presence of Dr. Sandeep Chopra (P. W. 7 ). Dr. Sandeep chopra (P W. 7) also swears to the same effect. Atthe outset, we must make it clear that the evidence of a doctorhas got to be appreciated like the evidence of an" other witness andthere is no irrebuttable presumption that a doctor is always awitness of truth, (Mayur Panna Shah Vs. State of Gujarat A. I. R. 1983 S. C. 66 ). (18) the dying declaration (Ex. Public Witness 6,a) showsthat the deceased Krishna had made the following statement beforedr. Gupta (P. W. 6) : "13-11-1988 9. 50 p. m. ""my name is Krishna r/o 258, A Block, Ranjit Nagar,near Satyam Cinema, Delhi. I was locked in a roomby my mother-in-law Smt. Chandrawati in, theevening and she put kerosene on me and burnt me. My sister-in-law Geeta, Pushpa and Mamta werepresent in the house at the time of incident but wereout of the loom. My husband Kishan was sent toanother room. My mother-in-law and he waspresent in the house but out of the room at time ofincident. Also my husband does not do any workand drinks alcohol and beats me up regularly. Sd. 13-11-1988" ( 18 ) DR. D. Gupta (P. W. 6) deposed that the deceasedkrishna was mentally fit and coherent when she had made herstatement (Ex. Public Witness 6/a) before him and she had not beengiven any sedative before she was transferred to his ward. Dr. Sandeep Chopra (P. W. 7) also swears to the same effect. Atthis juncture, learned counsel for the appellant Mst. Chandrawatihas invited our attention to the evidence of leading fireman Rajkumar (P. W. 16), and Dr. L. T. Ramani (P. W. 3) and them. L. C. report (Ex. Public Witness 2/a and Ex. Public Witness 10/a) in supportof his submission that the deceased was not in a fit mental andphysical condition to make a volitional statement after she hadreached the hospital. Leading fire man Raj Kumar (P. W. 16)testified that on 13-11-1988 at about 9. L. T. Ramani (P. W. 3) and them. L. C. report (Ex. Public Witness 2/a and Ex. Public Witness 10/a) in supportof his submission that the deceased was not in a fit mental andphysical condition to make a volitional statement after she hadreached the hospital. Leading fire man Raj Kumar (P. W. 16)testified that on 13-11-1988 at about 9. 05 p. m. , a call was received at the fire station about a fire at the house of the appellants,and pursuant to this call he rushed to the spot; that on reachingthere he found the deceased Krishna lying burnt in the houseand that he took Krishna to R. M. L. Hospital. He further adtiedthat at that time, Krishna was unconscious and she did not makeany statement before him. According to the prosecution, Rajkumar (P. W. 16) was the first person before whom Krishnahad made an oral dying declaration. Since this witness has notsupported the prosecution version on the said point, he has beendeclared hostile by the prosecution. During cross examination,his attention was invited to his case diary statement portionmarked A to A in Ex. Public Witness 16[a, but he had disowned the saidstatement. It is pertinent to note here that the aforesaid contradiction has not been proved by the statement of the Investigatingofficer Inder Singh (P. W. 24 ). S. I. Inder Singh (P. W. 24) hasnowhere stated in his evidence that Raj Kumar (P. W. 16) hadmade the statement portion marked A to A in Ex. Public Witness 16/a berore him during investigation. ( 19 ) SECTION 145 of the Evidence Act mandates that if anycontradiction in the evidence of any witness, from his previousstatement reduced to writing, is intended to be used in the case,the attention of the witness must be called to that particular partof his previous statement. If he admits the previous statement, itis unnecessary to prove it. If he denies the previous statement,such statement has to be proved in an appropriate manner. Ifthis is not done, the evidence of the witness cannot be assailedin respect of those statements. (Somnath Vs. Union of Indiaa. I. R. 1971 S. C. 1910; (19 ). Tehsildar Singh Vs. State of U. P. A. I. R. . 1959 S. C. 1012); (20 ). In this view of the matter, wehave no hesitation in holding that the aforesaid contradictionportion marked A to A in Ex. (Somnath Vs. Union of Indiaa. I. R. 1971 S. C. 1910; (19 ). Tehsildar Singh Vs. State of U. P. A. I. R. . 1959 S. C. 1012); (20 ). In this view of the matter, wehave no hesitation in holding that the aforesaid contradictionportion marked A to A in Ex. Public Witness 16)A has not been provedin accordance with law. The mere fact that Raj Kumar (P. W. 16) has been declared hostile by the prosecution and allowedto be cross-examined does not make him an unreliable witnessso as to exclude his evidence from consideration altogether. (Rabindra Kumar Dev Vs. State of Orissa AIR 1977 S. C. 170 ). (6) ( 20 ) THE prosecution has produced the M. L. C. (Ex. Public Witness 2/a and Ex. Public Witness 10/a), which shows that Krishna was admittedin the Emergency Ward of the Hospital on 13-11-1988 at about9. 40 p. m. It also contains an endorsement made by the Examining Medical Officer Dr. S. Kumar that "patient states that hermother-in-law threw oil on her and put fire to her by burntmatch sticks. " Surprisingly, the prosecution has not examined Dr. G S. Kumar to prove the said dying declaration of the deceasedkrishna. However, the M. L. C. (Ex. P. 2)A and Ex. Public Witness 10/a)clearly shows that at 9. 40 p. m. , when Krishna was admitted inthe hospital, she was mentally fit to make any volitional statement. This document has lent material corroboration to the testimony of Dr. D. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7) that Krishna was in a fit mental and physical conditionto make a dying declaration. Dr. D. Gupta (P. W. 6)" whorecorded the dying declaration, was the best person to opine aboutthe fitness of the deceased to make the statement. (See A. M. A. Rehman Vs State of Gujrat AIR 1976 S. C. 1732 ). (21) Thereis absolutely no basis of doubting the integrity and veracity ofdr. D. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7 ). Nothing has been elicited in the cross examination of both thedoctors to show that they were biased in favour of the prosecutionor ill disposed towards the appellant Mst. Chandrawati. Thus thenegative testimony of Raj Kumar (P. W. 16) is not strong enoughto wipe out the positive evidence of the said doctors about fitnessof the deceased to make the statement. Nothing has been elicited in the cross examination of both thedoctors to show that they were biased in favour of the prosecutionor ill disposed towards the appellant Mst. Chandrawati. Thus thenegative testimony of Raj Kumar (P. W. 16) is not strong enoughto wipe out the positive evidence of the said doctors about fitnessof the deceased to make the statement. ( 21 ) LEARNED counsel for the appellant has also assailed thedying declaration (Ex. Public Witness 6/a) on the ground that the evidenceof Dr. Gupta (P. W. 6) shows that after examining the deceasedhe ordered resuscitation proceedings to be initiated and in themeantime he recorded the dying declaration (Ex. Public Witness 6/a ). Relying upon the dicticnary meaning of the word resuscitation as "revival after apparent death" contained in the Taber s Cyclopedic Medical Dictionary, learned counsel further submitted thatan attempt was made by the attending doctors to revive Krishnabefore recording her dying declaration (Ex. Public Witness 6/a) and thatwould wholly improbablise, if not render altogether, false thesaid dying declaration. We do not find any merit in the saidsubmission. Dr. Gupta (P. W. 6) has nowhere stated that Krishnawas clinically dead at the time of recording her dying declaration. It is undisputed that Krishna expired on 14-11-1988. The tenorof the aforesaid statement of Dr. Gupta (P. W. 6) clearly showsthat he found that the life was ebbing fast in the patient. In sucha situation, he was justified indeed-he was duty bound to recordthe dying declaration of the deceased. Both the medical mennamely, Dr. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7)were conscious about her condition and, therefore, they wouldnot have attached any importance to her statement if they hadany doubt about her mental capacity. One important thing tonotice in connection with the cross examination of Dr. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7) is that there is noteven a whisper of a suggestion in their cross examination toshow that they were motivated in giving false evidence. ( 22 ) IT is significant to note that the evidence of fireman Rajkumar (P. W. 16) shows that none of the accused persons accompanied him when Krishna was being taken to the hospital. They chose to remain in the house. The M. L. C. (Ex. P. 2ja andex. ( 22 ) IT is significant to note that the evidence of fireman Rajkumar (P. W. 16) shows that none of the accused persons accompanied him when Krishna was being taken to the hospital. They chose to remain in the house. The M. L. C. (Ex. P. 2ja andex. P. W. 10/a) shows that Krishna was brought to the hospitalby Raj Kumar (P. W. 16) The evidence of Dr. Gupta (P. W. 6-)and Dr. Sandeep Chopra (P. W. 7) shows that none of thedeceased s relatives was present in the hospital at the time ofrecording her dying declaration (Ex. Public Witness 6/a ). The evidenceof Neeru (P. W. 1), Mst. Sheela (P. W. 5) and Hari Chand (P. W. 9) shows that they reached the hospital at about 12. 30 a. m. Thedying declaration (Ex. Public Witness 6/a) was completed at 9. 55 p. m. Even no police officer was present at that time. According tothe Investigating Officer S. I. Inder Singh (P. W. 24), he reachedthe hospital at 10 p. m. In a frantic effort to undo the effect of thedying declaration (Ex. Public Witness 6ia), a suggestion was put to Dr. Gupta (P. W. 6) that he had recorded the dying declaration atthe instance of the police. This suggestion has been denied bydr. Gupta (P. W. 6 ). There is no substance in the suggestionbecause Dr. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7)are independent witnesses and they have no axe to grind againstthe appellant Mst. Chandrawati. The deceased Krishna was quitenear to her creator at 9. 50 p. m. dangerously so indeed, and wemay accept that her mind was then free from failings which afflictthe generality of human beings, like involving enemies in falsecharges. Had there being tutoring there would have been nodifficulty for Krishna in implicating her husband and father-in-lawalso. This by itself shows that the deceased had no tendency toimplicate innocent persons. The evidence of Dr. Gupta (P. W. 6)and Dr. Sandeep Chopra (P. W. 7) leaves no room for doubtthat no relation of the deceased was present at the time of recording of dying declaration (Ex. Public Witness 6/a) and the deceased hadmade the statement without any influence or rancor. The occurrence had taken place inside the house. It cannot be said thatthere was mistaken identity of the assailant or that the deceasedhad no opportunity to see the assailant. Public Witness 6/a) and the deceased hadmade the statement without any influence or rancor. The occurrence had taken place inside the house. It cannot be said thatthere was mistaken identity of the assailant or that the deceasedhad no opportunity to see the assailant. Moreover, the defencehas no where suggested that the deceased would have no opportunity to observe and identify the assailant. ( 23 ) THE dying declaration (Ex. Public Witness 6,a) finds ample corroboration from the case history (Ex. Public Witness 6:a) recorded by Dr. Sandeep Chopra (P. W. 7) at 9. 50 p. m. He is an attesting witnessof the dying declaration (Ex. Public Witness 6/a ). The case history (Ex. P. W. 6jc) clearly shows that the statement had been made todr. Sandeep Chopra s hearing and had been recorded in hispresence. The dying declaration (Ex. Public Witness 6/a) and the casehistory (Ex. Public Witness 6/c) are contemporaneous documents whichgo to show that the deceased had made the statement before themedical men. There is a consistency in the statements of the deceased Krishna as recorded in the M. L. C. (Ex. Public Witness 2 and Ex. P. W. 10/a) the case history (Ex. Public Witness 6/c) and the dying declaration (Ex. Public Witness 6/a ). Thus. the corroboration presided bythe said documents invested the dying declaration (Ex. Public Witness 6/a)with a stamp of truth, which went a long way towards inculpatingthe appellant Mst. Chandrawati. ( 24 ) LEARNED counsel further contended that the dying declaration. (Ex. Public Witness 6/a) is rendered doubtful in the manner in whichthe last two. lines of the deceased s alleged statement had subsequently been added. The case history (Ex. Public Witness 6/c) is almosta replica of the dying declaration (Ex. Public Witness 6/a ). but the lasttwo lines containing the statement (Ex. Public Witness 6/a) of the deceasedto the effect that "also my husband does not do any work anddrinks alchohat and beats me up regularly" do not find place inthe case history (Ex. Public Witness 6/c ). Learned counsel has also invitedour attention to the placement of the deceased s thumb impressionat point b in the dying declaration Ex. Public Witness 6/a. We have ourselves examined placement of the deceased s thumb impressionpoint b with the help of a magnifying glass and find that thesaid last lines were added after obtaining the thumb impressionon the dying declaration (Ex. Public Witness 6/a. We have ourselves examined placement of the deceased s thumb impressionpoint b with the help of a magnifying glass and find that thesaid last lines were added after obtaining the thumb impressionon the dying declaration (Ex. Public Witness 6/a ). It is significant to notethat the aforequoted part of the deceased s statement does notinculpate any person in the alleged incident. That apart, the saidpart of the dying declaration is not so indissolubly linked with theother part of the dying declaration that it is not possible to severthe two parts. The two parts of the dying declaration are severableand the correctness of one part does not depend upon the correctness of the other part. Consequently, the subsequent addition ofthe last two lines in question in the dying declaration (Ex. Public Witness 6/a) does not vitiate the whole of it. In the dying declaration (Ex. Public Witness 6/a) before us, the statement so far as they went toimplicate the appellant Mst. Chandrawati in the affair were quitecategoric in character and they definitely indicated that it wasthe appellant Mst. Chandrawati who had set the deceased Krishnaon fire. ( 25 ) LEARNED counsel for the appellant Mst. Chandrawati hasalso invited our attention to the statement of Dr. L. T. Ramani (P. W. 3), who testified that on post mortem examination, he foundthat there were third degree deep burns present all over the bodyof the deceased involving 100 per cent body surface and evennails were burnt. According to Taber s Cyclopedic Medicaldictionary, third degree bums means bums in which both epidermisand dermis are destroyed with damage extending to underlyingtissues. Taking his cue from the said definition, he forcefullycontended that the deceased s palm and fingers including thumbsmust have been burnt completely and in such a situation it isdifficult to believe that impression of her thumbs was availableto be taken on the dying declaration (Ex. Public Witness 6/a ). In ouropinion, the said arguments though attractive cannot be accepted. It has come in the evidence of Dr. L. T. Ramani (P. W. 3) thatupper part of the deceased s face and forehead showed 2nd degreeburns and her scalp hairs were partially burnt. He has nowherestated in his statement that nails of the deceased s thumbs wereburnt. Dr. D. Gupta (P. W. 6) and Dr. It has come in the evidence of Dr. L. T. Ramani (P. W. 3) thatupper part of the deceased s face and forehead showed 2nd degreeburns and her scalp hairs were partially burnt. He has nowherestated in his statement that nails of the deceased s thumbs wereburnt. Dr. D. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7)have unequivocally stated in their statements that the deceasedhad affixed her thumb impression on the dying declaration. Inview of the positive evidence of Dr. Gupta (P. W. 6) and Dr. Sandeep Chopra. we are not inclined to hold that the deceased shand thumbs had been so affected that a full impression was notavailable to be taken. ( 26 ) AS stated earlier, the evidence of Dr. Gupta (P. W. 6)and Dr. Sandeep Chopra (P. W. 7) clearly shows that at therelevant time, the deceased was mentally fit to make a dyingdeclaration. Dr. L. T. Ramani (P. W. 3) testified that on internalexamination, he found that scalp bones were intact, scalp tissues,neck tissues and brain ware normal. Thus the testimony ofdr. L. T. Ramani (P. W. 3) has lent material corroboration to thetestimony of Dr. Gupta (P. W. 6) and Dr. Chopra (P. W. 7)regarding mental fitness of the deceased to make a dying declaration. Consequently, we find that the capacity of the deceasedkrishna to remember the facts stated in her dying declaration (Ex. Public Witness 6/a) had not been impaired at the time she wasmaking the statement. ( 27 ) LASTLY, learned counsel for the appellant Mst. Chandrawati, with some ingenuity has attempted to break the grain ofthe story as contained in the dying declaration (Ex. Public Witness 6/a ). According to the learned counsel there are telling circumstanceswhich would go to show that it is a case of suicide. One of thecircumstance relied upon is that if it is a case of homicide namelythat the appellant Mst. Chandrawati forcibly sprinkled keroseneoil and set the deceased on fire, the deceased must have raisedhue and cry and many people would have heard and that thereis no evidence of any one in the locality having heard such criesand absence of any such cries would support the theory of suicide. At this juncture, the learned counsel for the State has strenuouslyurged that it has come in evidence of Mst. Neeru (P. W. 1) andmst. At this juncture, the learned counsel for the State has strenuouslyurged that it has come in evidence of Mst. Neeru (P. W. 1) andmst. Sheela (P. W. 5) that at the time of the alleged incident theywere present at the house of the appellants; that they saw theappellant Mst. Chandrawati catching hold of Krishna and dragging her inside the room and when they went towards the backside of the appellants house they noticed fire and smoke billowingout and heard Krishna crying "mausi MUJHE BACHAO". ( 28 ) AT the outset, it is relevant to recall what was said by theapex Court in State of Kerala Vs. M. M. Mathew AIR 1978s. C. 1571 (7) though in a somewhat different context (at page1573): ". . . . . . It is true that courts of law have to judge theevidence before them by applying the well recognizedtest of basic human probabilities. . . . . . ". Admittedly, Mst. Neeru (P. W. 1) is the real sister of the deceasedand Mst. Sheela (P. W. 5) is a neighbour of Mst. Neeru (P. W. 1 ). Consequently, the evidence of both these witnesses require acareful, independent assessment and evaluation of their credibility. Their evidence has to be tested for its inherent consistency and the inherent probability of the story; consistency with the attending circumstances of the case. ( 29 ) LET us consider if the testimony of Mst. Neeru (P. W. 1)and Mst. Sheela (P. W. 2) pertaining to the facts mentioned abovecan be accepted as true and reliable. Mst. Neeru (P. W. 1) testified that on 13-11-1988 at about 6[6. 30 p. m. , appellant Kishan syounger brother alongwith another person came to the house ofher father (P. W. 9) and told her that Kishan had met with anaccident and her father (P. W. 9) had been called to the appellants house. Thereupon, she alongwith Mst. Sheela (P. W. 5)proceeded to the appellant s house at Ranjit Nagar. When theyreached Ranjit Nagar, appellant Kishan s brother and the personaccompanying them left them at the bus stand Ranjit Nagar anddisappeared. According to Mst. Neeru (P. W. 1) somehow shemanaged to reach the appellants house. On reaching the house,the appellant Mst. Chandrawati informed her that no such accident had taken place and she had summoned her father. Mst. Neeru (P. W. 1) deposed that thereafter, the appellant Mst. According to Mst. Neeru (P. W. 1) somehow shemanaged to reach the appellants house. On reaching the house,the appellant Mst. Chandrawati informed her that no such accident had taken place and she had summoned her father. Mst. Neeru (P. W. 1) deposed that thereafter, the appellant Mst. Chandrawati started making several complaints and levellingallegations against the deceased Krishna upon which she expressedher desire to leave and on this Krishna also expressed her desireto accompany her. ( 30 ) MST. Neeru (P. W. 1) further added that she requestedthe appellant Chandrawati to allow Krishna to accompany herbut she declined her request and thereupon Krishna startedweeping. At that time. Krishna s left arm was bleeding. On enquiry, Krishna told her that she was beaten up by her husbandwith a cricket bat. She then protested to the appellant Kishanbut he denied having beaten Krishna whereas Krishna maintainedthat she was being given beatings regularly for the previous fourdays. Thereupon, she again requested the appellant Mst. Chandrawati to send Krishna to her father s house but she refused andthreatened that only her dead body would go from the matrimonialhouse. She insisted to take the deceased with her and was proceeding towards the room of Krishna, she was caught by hair bythe appellant Chandrawati who dragged her back and the brotherof the appellant Kishan, who had gone to call them, slapped heron face. Appellant Kishan s sister and one fat lady pushed herand Sheela (P. W. 5) out of the house. At the same time, Satish,son-in-law of the appellant Chandrawati started beating Krishnaand dragged her inside. When she and Sheela (P. W. 5) went tothe back side of the appellant s house, they heard Shrieka andalarm raised by Krishna. As they looked up, they noticed fireand smoke billowing out and heard Krishna crying; "mausimujhe Bachao. " Thereupon, they raised an alarm which attractedseveral people and they requested them to save Krishna who hadbeen set on fire, but. none of them came to Krishna s reseue. ( 31 ) MST. Neeru (P. W. 1) also deposed that she alongwithmst. Shcela (P. W. 5) rushed to the police station in a threewheeler and reported to the police that Krishna was being burntalive at her matrimonial home. Police then accompanied themto the appellants house. Fire brigade had already arrived at theappellants house and she saw Krishna being brought downstairsby the firemen. She also saw the appellant Mst. Shcela (P. W. 5) rushed to the police station in a threewheeler and reported to the police that Krishna was being burntalive at her matrimonial home. Police then accompanied themto the appellants house. Fire brigade had already arrived at theappellants house and she saw Krishna being brought downstairsby the firemen. She also saw the appellant Mst. Chandrawati weeping and at that time Mst. Chandrawati told the police thatshe (P. W. 1) and Mst. Sheela (P. W. 5) had set her daughter-in-law on firs. When Krishna was being taken out of the house, sheand Sheela (P. W. 5) returned home. On reaching home, she informed her father about the alleged incident. according to Mst. Neeru (P. W. 1), she along with" her father (P. W. 9) and Mst. " Sheela (P. W. 5) reached the hospital at about 12. 30 a. m. Mst. Sheela (P. W. 5) also swears in the same effect. ( 32 ) ONE important feature which must be duly taken note ofat this stage is that the incident as narrated by Mst. Neeru (P. W. 1) and Mst. Sheela (P. W. 5) does not find place in the dyingdeclaration (Ex. Public Witness 61a ). Krishna has nowhere stated in thedying declaration (Ex. Public Witness 6ja) that on the day in questionher husband had assaulted her with a cricket bat as a resultwhereof she had sustained a bleeding injury on her left arm. Even the M. L. C. (Ex. P-2!a) and other contemporaneous medical documents (Ex. Public Witness 6/c, Ex. Public Witness 6/d, Ex. Public Witness 6/e,ex. Public Witness 6/f) and the post mortem report (Ex. Public Witness 3/a) areconspicuous by absence of any such injury on the deceased s leftarm. She has nowhere stated in her dying declaration about thepresence of both the witnesses at the time of the alleged incident. It has come in the evidence of Neeru (P. W. 1) and Mst. Sheela (P. W. 5) that immediately after the alleged incident they hadgone to the police station and Mst. Neeru (P. W. 1) had reportedto the police that her sister was being burnt alive at her matrimonial house and further the same polios officer had accompaniedthem to the appellants house. Strangely enough, no such policereport has been produced in the court to substantiate the statements made by both the witnesses. Even. Neeru (P. W. 1) had reportedto the police that her sister was being burnt alive at her matrimonial house and further the same polios officer had accompaniedthem to the appellants house. Strangely enough, no such policereport has been produced in the court to substantiate the statements made by both the witnesses. Even. none of the policepersonnel who accompanied these witnesses to ths appellants house has been produced in the witness box. ( 33 ) IT is also significant to note here that after arrival of thepolice, they did not go upstairs and did not ask the polie thatthey wanted to go upstairs to see what had happened inside thehouse. Although thev saw that Krishna was being removed to ther. M. L. Hospital, thev did not go to the hospital directly from theplace of. occurrence and went thereafter visiting their house andreached the hospital at about 12 mid-night or 1 a. m. Such astrange conduct of these witnesses assails their version and rendersit doubtful. ( 34 ) DECEASED s father Hari Chand (P. W. 9) testified that atabout 11 p. m. her daughter Neeru (P. W. 1) informed him aboutthe alleged incident and immediately thereafter he alongwith Mst. Neeru (P. W. 1) went to the police station Jhangirpuri, where hewas informed, by a police officer that the deceased had been admitted in Willingdon Hospital (R. M. L. Hospital ). They then wentto R. M. L. Hospital and found the deceased in a poor conditionwith severe burns all over her body. Surprisingly, neither Harichand (P. W. 9) nor Mst. Neeru (P. W. 1) had lodged any reportat the Police Station, Jhangirpuri about the alleged incident. Whatprevented them from lodging a report of the alleged incident atthe police station is shrouded in mystery. Moreover, evidence ofmst. Neeru (P. W. 1) shows that she knew that Krishna had beenremoved to the R. M. L. Hospital and in such a situation there wasno necessity for them to go to the P. S. Jhangirpuri to locate thedeceased. The fact that Mst. Neeru (P. W. 1) Mst. Sheela (P. W. 5) and Hari Chand (P. W. 9) went to P. S. Jhangirpuri to locatethe hospital where the deceased was admitted for medical tratment clearly indicates that their version about their visits to theappellants house prior to and after the alleged incident is anafterthought, or an embellishment introduced in their evidence soto add credence to the prosecution story. Sheela (P. W. 5) and Hari Chand (P. W. 9) went to P. S. Jhangirpuri to locatethe hospital where the deceased was admitted for medical tratment clearly indicates that their version about their visits to theappellants house prior to and after the alleged incident is anafterthought, or an embellishment introduced in their evidence soto add credence to the prosecution story. ( 35 ) AS demonstrated earlier, both the witnesses namely Mst. Neeru (P. W. 1) and Mst. Sheela (P. W. 5) want us to believethat they were present in the appellants house at the time whenkrishna was in fiames. But they made no attempt to save her. Although they deposed that they had raised an alarm and shoutedfor help but nobody cam" forward to save Krishna. It is significant to note that the prosecution did not examine any residentof that locality who could have corroborated the testimony of thesaid witnesses regarding the alarm alleged to have been raisedby them. The normal ordinary human conduct would be thatwhen Krishna was in flames, they would have made everyendeavour to save her life and call the people to come to theirrescue to save her life. The circumstances pointed out earlierclearly indicate that Krishna did not lodge any report at the policestation regarding the alleged incident. Both the witnesses did notaccompany the deceased when she was being removed to thehospital. At least, Mst. Neeru (P. W. 1) should have accompaniedthe deceased to the hospital and should have expressly or by herbehaviour disclosed her feelings about the well being of her realsister. The said strange conduct of both the witnesses militatesagainst the veracity of the core of their testimony as the same isnot in conformity to probability in the substantial fabric of theirtestimony. Consequently, we are not inclined to accept their testimony relating to their presence in the appellants house at thetime where Krishna was in flames. ( 36 ) IT has to be borne in mind that the whole occurrencehad taken place inside the room and it is quite possible that thecries if any raised by the deceased could not have been heardby the neighbourers. ( 37 ) THE next circumstance relied upon by the learned counselis that there were no marks of violence found on the dead bodyand according to him some force must have been used by theappellant before setting her on fire which should have left somemarks of violence. ( 37 ) THE next circumstance relied upon by the learned counselis that there were no marks of violence found on the dead bodyand according to him some force must have been used by theappellant before setting her on fire which should have left somemarks of violence. According to the medical opinion, the deceasedhad suffered 100 per cent bums and if there were any marks ofviolence, they would have disappeared. ( 38 ) YET another circumstance relied upon by the learnedcounsel in this context is that the door was bolted from inside. At the outset, we must make it clear that none of the prosecutionwitnesses deposed that the door of the room in question wasbolted from inside. Site plan (Ex. Public Witness 15/a) prepared by theinvestigating Officer Devender Singh (P. W. 15) shows that theroom in question has one door. Constable Narendra Kumar (P. W. 22) had taken the photograph (Ex. Public Witness 22/2) of the door, whichwas in broken condition. There is not an iota of evidence on recordto show as to who had broken open the door. According to thelearned counsel the fact that the door was broken open, speaksfor itself and it was inferable from these circumstances that thedeceased had committed suicide by setting herself on fire afterbolting the door from inside. He further submitted that inter alia. bolting the door from inside was a pointer towards such apossibility. ( 39 ) IT is pertinent to note that nothing has been elicited inthe cross examination of Mst. Neeru (P. W. 1), Mst. Sheela (P. W. 5) and Hari Chand (P. W. 9) to show or suggest that the deceasedkrishna was in the fraipe of mind to commit suicide. There wasno question of her being broken hearted and frustrated so as toresolve to commit suicide. There was no cause or occasion to makeher suddenly opt for suicide on the fateful day. Putting all thesepieces together, there appears to be no possibility of the deceasedhaving made up her mind to end her life either due to frustrationor desperation or to take revenge on her husband or in laws forill-trenting her day in and day out. ( 40 ) IT is also pertinent to mention that the deceased sustainedbum injuries inside the appellants house. Admittedly, the appellants including the appellant Mst. Chandrawati were inside thehouse at the time of the occurrence. ( 40 ) IT is also pertinent to mention that the deceased sustainedbum injuries inside the appellants house. Admittedly, the appellants including the appellant Mst. Chandrawati were inside thehouse at the time of the occurrence. No explanation whatsoeverhas come forth from the appellants as to how the deceased received bum injuries inside the house. They have not offered anyexplanation as to how the door of the room was broken andwho did it. The appellants instead of giving any explanation feignedignorance about the alleged occurrence. The normal ordinaryhuman conduct would be that when one of their inmates was inflames, they would have made every endeavour to save her life,if it were a case of suicide, and call the people to come to theirrescue to save her life. No such attempt was made nor evenattempted. The evidence on record established that the deceasedwas burnt by pouring kerosene oil on her body. The appellantswere present in the house when the incident took place but noneof them attempted to save her life,which showed their indifferenceand hard hearted conduct. The appellants did not inform theparents of the deceased, nor they made any report regarding theoccurrence to the police. The appellants or any of their familymembers did not take injured Krishna to the hospital. In appreciating the dying declaration, these circumstances become highlyrelevant. It is a settled law that the conduct of an accused in anoffence previous and subsequent to the crime are relevant facts. These are the most telling and crucial facts apart from repulsiveinhuman conduct of the appellants. Moreover, there is no evidence to show that the deceased had bolted the door of the roomfrom inside. Fireman Raj Kumar (P. W. 16) who almost reachedthe scene of occurrence immediately found that the deceased waslying with bums and he took the deceased immediately to ther. M. L. Hospital. Taking an overall view of the circumstances outlined herein before, we are satisfied beyond reasonable doubt thatthe death of Krishna was not suicidal but homicidal. We, therefore,have no hesitation in coming to the conclusion that the dyingdeclaration (Ex. Public Witness 6 /a) is intrinsically sound and in accordwith probabilities. ( 41 ) LEARNED counsel further submitted that the S. D. M. Shrichauhan (P. W. 13) has specifically mentioned in his inquest report (Ex. We, therefore,have no hesitation in coming to the conclusion that the dyingdeclaration (Ex. Public Witness 6 /a) is intrinsically sound and in accordwith probabilities. ( 41 ) LEARNED counsel further submitted that the S. D. M. Shrichauhan (P. W. 13) has specifically mentioned in his inquest report (Ex. Public Witness 13 /f) that "since Krishna died without herstatement recorded, a very valuable piece of evidence i. e. dyingdeclaration could not be adduced in evidence" and this circumstance throws doubt on the dying declaration (Ex. Public Witness 6/a ). It has come in the evidence of Shri Chauhan (P. W. 13) that on13-11-1988, he reached the hospital within one hour after receivingrequest from the investigating officer but the deceased s dyingdeclaration could not be recorded as she was found unfit to makeany dying declaration. It is pertinent to mention that there aretwo inquest reports on the record and both were prepared by Shrichauhan (P. W. 13. ). His first inquest report (Ex. . Public Witness 13/a)is dated 15-11-1988 and the second inquest report (Ex. Public Witness 13/f) is dated 21-2-1990 -. The inquest report (Ex. Public Witness 131f)is dated 21-2-1990. The inquest report (Ex. Public Witness 13/f) was notfiled before the court alongwith the charge sheet. Trial Court sorder sheet dated 13-12-1989 shows that on its motion, this report (Ex. Public Witness 131f) was requisitioned by the trial court. Subsequentorder sheets recorded by the trial court go to show that afterrepeated directions, an incomplete report was produced beforethe court on 22-2-1990 and on that day the court directed thes. D. M. to appear personally and pursuant to that direction thisreport (Ex. Public Witness 13/f) was filed before the. court, on 2-3-90. Shri Chauhan (P. W. 13) has not given any explanation whatsoever regarding the inordinate delay in preparing this report (Ex. P. W. 13/f ). Since the inquest report (Ex. Public Witness 13/a) preparedby SDM (Ex. Public Witness 13) is already on record, the report (Ex. P. W. 13/f) can t be treated as an inquest report. What actuallyprompted the SDM to prepare this report (Ex. Public Witness 13/f) isshrouded in mystery. The manner and the circumstances in whichthis report (Ex. Public Witness 13/f) was brought into existence havecompletely robbed its efficacy. At any rate, this report (Ex. Public Witness 13/f) is not strong enough to wipe out the positive evidence ofdr. Gupta (P. W. 6) and Dr. Public Witness 13/f) isshrouded in mystery. The manner and the circumstances in whichthis report (Ex. Public Witness 13/f) was brought into existence havecompletely robbed its efficacy. At any rate, this report (Ex. Public Witness 13/f) is not strong enough to wipe out the positive evidence ofdr. Gupta (P. W. 6) and Dr. Sandeep Chopra (P. W. 7 ). ( 42 ) AFTER giving our anxious, consideration, we are satisfiedthat the dying declaration (Ex. Public Witness. 6/a) duly recorded by Dr. D. Gupta (P. W. 6) and attested, by. Dr. Sandeep Chopra (P. W. 7)fully implicates the appellant Mst Chandiawati. Having subjectedthe dying declaration (Ex. Public Witness 6/a) to a close scrutiny; we aresatisfied, that it does not suffer from any infirmity. The deceasedhad no. motive to falsely implicate the appellant and to screenthe real offender who had set her on fire. On the contrary theappellant had motive for committing this ghastly offence, onaccount of greed. and avarice foe dowry. The root cause for killingyoung bride is avarice, and. greed and all tender feelings. whichalone? make the. humanity noble disappear from the heart, as hasbeen observed by their lordships of the Supreme. Court in Smt. Paniben. Vs, State 1992- Cri,l. J. 2919) : (22),. Therefore we seeno, ground to disagree with the, finding recorded, by. the learnedtrial court that, the appellant Mst. Chandrawati had caused thedeath of the deceased Mst. Chandrawatl Consequently, we findthe appellant Mst. Chandrawati guilty of the offence, punishableunder Section 302 Indian Penal Code. and accordingly confirm the appellant Mst, Chandrawati s conviction thereunder. ( 43 ) LEARNED counsel for the appellant have also assailed theirconvction n/s 498/a read with Section 34 Indian Penal Code. Prosecutionwitness who deposed about the harassment of the deceased Krishnaare Mst. Neeru (P. W. 1) Mst. Sheela (P. W. 25) and Harichand (P. W. 9 ). Relying upon the testimony of the said witnesses, thelearned Additional Sessions Judge has convicted the appellantsunder Section 498-A/34 Indian Penal Code. Deceased s father Harichand (P. W. 9) deposed that after the deceased s marriage, he suffereda heart attack and was hospitalized for one month and duringthat period, his elder son-in-law Rakesh (husband of Neeru Public Witness I ) served him well in the hospital. According to him, after hisdischarge from the hospital, he purchased a scooter and gifted itto Rakesh. Deceased s father Harichand (P. W. 9) deposed that after the deceased s marriage, he suffereda heart attack and was hospitalized for one month and duringthat period, his elder son-in-law Rakesh (husband of Neeru Public Witness I ) served him well in the hospital. According to him, after hisdischarge from the hospital, he purchased a scooter and gifted itto Rakesh. After about a month of his discharge from the hospital,krishna was sent to his house after giving beatings. She told himthat she was being harassed by her husband and parents-in-lawand asked that he (P. W. 9) should. give a three wheeler and halfsale proceeds of his house. He then went to the appellants housewho had repeated the said demands. One important thing tonotice in connection with the cross examination of this witnessis that it was not even suggested to him that the deceased wasnever subjected to maltreatment or harassment by the appellantsand further that no such demand as alleged by him was ever madeby the appellants. Thus, the said testimony of Harichand (P. W. 9)has been left unchallenged by the appellants. ( 44 ) IT is also evident from the evidence of Mst. Neeru (P. W. 1) that her father : (P. W. 9) had gifted a scooter to her husbandas her husband had served her father well during his illness andon that acocurnt the appellant Kishanlal used to demand a scooterfrom Krishna. She testified that the deceased Krishna had toldhim that the appellants Mst. Chamdirawati and Kishanlal haddemanded half share in her father s house. She further testified thatwhenever Krishna used to visit her, she always used to complainabout the maltreatment w barassment by the appellants. She alsoadded that Krishna had come to her parental house and "stayedabout three moa-ths prior to Diwali, 1988, when she was beatenup by her in-laws. It is significant to -note here that her aforesaidtestimony has been left unchallenged by the appellants. In additionto this, Mst. Sheela (P. W. 5) deposed that the deceased Krishnahad complained to her about the demand of a scooter made bythe accused Kishanlal. According to us, there statements madeby Krishna regarding barassment by the appellants on account ofthe aforesaid demands are admissible under Clause (1) of Section3 2 of the Evidence Act. The cause of Krishna s death is in questionin this case. According to us, there statements madeby Krishna regarding barassment by the appellants on account ofthe aforesaid demands are admissible under Clause (1) of Section3 2 of the Evidence Act. The cause of Krishna s death is in questionin this case. The only question that remains to be answered is asto whether it can be said that the statements are "as to any ofthe circumstances of the transaction which resulted in Krishna sdeath". Similar question also arose before the Apex Court insharad Birdhichand Sarda Vs. State of Maharastra AIR 1984s. C. 1622, (8) which was answered in affirmative. ( 45 ) IN that case it was pointed out that "the law in Indiadoes not make the admissibility of a dying declaration dependentupon the person s having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death wouldbe admissible under Section 32, Evident Act. " It was furtherobserved that: ". . . . The test of proximity cannot be too literally construedand practically reduced to a cut-and-dried formula ofuniversal application so as to be confined in a straitjacket. Distance of time would depend or vary withthe circumstances of each case. For instance, wheredeath is a logical culmination of a continuous dramalong in process and is, at it were, a finale of thestory, the statement regarding each step directly connected with the end of the drama would be admissiblebecause the entire statement would have to be readas an organic whole and not torn from the context. Sometimes statements relevant to or furnishing animmediate motive may also be admissible as being apart of the transaction of death. It is manifest thatall these statements come to light only after the deathof the deceased who speaks from death. For instance,where the death takes place within a very short timeof the marriage or the distance of time is not spreadover more than 3 months the statement may be admissible under Section 32. " ( 46 ) IN Wazirchand Vs. State of Haryana AIR 1989 S. C. 37, (9) the victim . . as one Veena. Veena and the accused Kanwarsingh were married on 16-10-1983. On the morning of 10-6-1984veena died of burn injuries. There was no eye witness to saywhether the fire to her clothes was accidental from the kerosenestove or whether the Veena committed suicide. State of Haryana AIR 1989 S. C. 37, (9) the victim . . as one Veena. Veena and the accused Kanwarsingh were married on 16-10-1983. On the morning of 10-6-1984veena died of burn injuries. There was no eye witness to saywhether the fire to her clothes was accidental from the kerosenestove or whether the Veena committed suicide. The prosecutioncase was that the accused harassed Veena on account of demandsof dowry and therefore she committed suicide. There the statements of Veena which she made after her marriage and right uptothe time when she died, that she and her parents were beingharassed by the accused for various dowry articles, were considered in evidence by the Apex Court. In this case, Krishna sstatements go to establish harassment. They are thus admissibleunder Clause (1) of Section 32 of the Evidence Act. Clause (b)of the Explanation to Section 498-A T. P. C. shows that the harass-ment of the woman, where such harassment is with a view tocoercing her or any person related to her to meet any unlawfuldemand for property or valuable security or is on account ofthe failure by her or any person related to her to meet suchdemand would amount to cruelty for the purpose of Section498-A Indian Penal Code. In the present case, as pointed out by the learnedadditional Sessions Judge the evidence of Mst. Neeru (P. W. 1)and Mst. Sheela (P. W. 5 ). Harichand (P. W. 9) clearly provesthat repeated demands were made by the appellants on Krishnafor a scooter and value of her half share in her parental house. Learned Additional Sessions Judge who had advantage of watching the demeanor of these witnesses believed them on the pointthat the appellants subjected the deceased Krishna to crueltyand harassment and we are not inclined to take a different view. ( 47 ) IN view of the above discussion, we find that the offenceunder Section 498-A/34 Indian Penal Code. against the appellants has beenproved beyond any shadow of reasonable doubt. ( 48 ) THIS brings, us to the question of sentence to be awardedto the appellant Mst. Chandrawati. The trial court imposed asentence of death on the appellant. She was also sentenced topay a fine of Rs. 10. 000 or in default to suffer imprisonmentfor one year. In Smt. Paniben Vs. ( 48 ) THIS brings, us to the question of sentence to be awardedto the appellant Mst. Chandrawati. The trial court imposed asentence of death on the appellant. She was also sentenced topay a fine of Rs. 10. 000 or in default to suffer imprisonmentfor one year. In Smt. Paniben Vs. State of Gujrat (supra) it hasbeen observed by their Lordships that "every time a case relatingto dowry death comes up, it causes ripples in the pool of conscience of this court. Nothing could be more barbarous, nothingcould be more heinous than this sort of crime". At the sametime, it has to be borne in my mind that normal sentence formurder is now imprisonment for life and not sentence of deathand the court must give special reasons for awarding deathsentence. It has been held in Lichhamdevi Vs. State of Rajasthana. I. R. 1988 SC 1785 (10) that special reasons mean specialfacts and circumstances obtained in the case justifying the extremepenalty. In Bachan Singh Vs. State of Punjab AIR 1980 SC898, (11) and later in Macchi Singh Vs. State of Punjab A. I. R1983 SC 95 (12) the Apex Court indicated certain guidelines tobe applied to the facts of each case for imnosing the extremepenalty of death. ( 49 ) NO doubt, it is a case of bride burning. The Apex Courtin State Vs. Lakshmn Kumar A. TR 1986 SC 250 (13) has observedthat in the case of bride burning, death sentence may not be improper. . But in the present case, we do not find special factsand circumstances to bring this case within the category of rarestof rare cases justifying imposition of the extreme penalty. In ouropinion, having regard to all the facts and circumstances of thecase this is not fit case for awarding death sentence. We. therefore,set aside the death sentence awarded to the appellant Mst. Chandrawati, and instead sentence her to imprisonment for life. ( 50 ) LEARNED Additional Sessions Judge imposed in the instantcase a fine of Rs. 10,000 on the appellant Mst. Chandrawati. Inpalaniappa Gounder Vs. State of T. N. (1977.) 2 S. C. C. 634, (14)it has been observed that the common trend of sentencing is thateven a sentence of life imprisonment is seldom combined witha heavy fine of sentence. The primary object of imposing. 10,000 on the appellant Mst. Chandrawati. Inpalaniappa Gounder Vs. State of T. N. (1977.) 2 S. C. C. 634, (14)it has been observed that the common trend of sentencing is thateven a sentence of life imprisonment is seldom combined witha heavy fine of sentence. The primary object of imposing. a fineis not to ensure that the offender will undergo the sentence indefault of payment of fine but to see that the fine is realized, whichcan happen only when the fine is not unduly excessive havingregard to all the circumstances of the case including the pecuniarygain likely to have been made by the offender by committing theoffence and his means to pay the fine. In the instant case, thereis nothing on the record to show that the appellant Mat. Chandrawati has made or is likely to have made any pecunaary gain bycommitting the alleged offence. Learned Additional Sessions Judgedid not even attempt to consider whether the appellant has mean sto pay such a heavy. fine imposed on her. In the circumstancesthere was no Justification for imposition of sentence of fine ofrs. 10,000 over and above the sentence of death. Hence we setaside the sentence of fine of Rs. 10,000 imposed on the appellantmst. Chandrawati. If the fine has been paid it will be refunded tothe appellant Mst. Chandrawati. Except to the limited extent ofmodifiction in the sentence, appellant Mst. Chandrawati s appealshall stand dismissed. The reference made by the learned Additional Sessions Judge under Section 366 Criminal Procedure Code. for confirmationof death sentence is hereby rejected. ( 51 ) THE appeal of the appellants Kisham Lal and Hankesh aredismissed and their convictions and sentences under Section 498-A read with Section 34 Indian Penal Code. are confirmed. ( 52 ) BEFORE we part with the case. we would like to placeon record our appreciation for the valuable assistance renderedby Shri K. B. Andley, Advocate, who has appeared as Amicuscuriae in this case. Criminal reference of Chandrawati for confirmation of deathsentence has rejected and accordingly she was sentenced to lifeimprisonment. The sentenoe of fine of Rs. 10. 000 Was also setaside. So far as the other two appellants Krishan Lal and Harkeshare concerned their convictions u/s 498-A Indian Penal Code was uphed.