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2004 DIGILAW 583 (KER)

Chandran v. State of Kerala

2004-11-25

M.RAMACHANDRAN, M.SASIDHARAN NAMBIAR

body2004
JUDGMENT M. Sasidharan Nambiar, J. 1. The accused in Session Case No.48 of 1998 on the file of the Additional Sessions Court, Kalpetta is the appellant. He was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life for the murder of his wife, Vijayalakshmi, daughter of PW3, Meenakshi. Prosecution alleges that the appellant, deceased Vijayalakshmi and their son, PW2, Vineesh, were residing in a house situated near to the maternal house of the deceased were P.W.3 and P.W.1, brother of the deceased, were residing. Apart from PW2 the appellant has an elder daughter in the deceased. The prosecution case is that on 30.7.1995, deceased Vijayalikshmi had come to the house of her mother and prepared rice flour and returned back to her house at about 2 pm. At about 3.30 p.m. only the deceased, appellant and PW2 were inside their house. PW3 heard the cry of Vijayalikshmi that she is being killed and P.W.3 rushed to the house of the deceased. PW3 found that the deceased was engulfed in flames. The appellant was coming out of the house through the northern kitchen door. Hearing the cry of P.W.3, neighbours also rushed to the house and tried to put out the fire. Deceased had sustained severe burns by that time. She was immediately taken to Fathima Hospital, Kalapetta. PW1, brother of the deceased, hearing the news, rushed to the hospital. As advised from the hospital, Vijayalakshmi was taken to the Medical College Hospital, Kozhikode. PW10, Dr. Shivakumar, Lecturer in Neuro Surgery, examined Vijayalakshim at 6.45 p.m. on 30.7.1995 and prepared Exhibit P7 would certificate an admitted her in the hospital. PW10 found 100% burns on the body of Vijayalakshmi. Vijayalakshmi succumbed to her injuries on that night itself. PW 18, sub Inspector of Police of Kalpetta Police Station, on getting information, reached the Medical College Hospital at 10.30 p.m. on 30.7.1995. As the injured could not speak, P.W.18, Sub Inspector recorded Exhibit P1 first information statement of PW1 and after returning to the Police Station, Exhibit P1(a) FIR was prepared and registered Crime No.182 of 1996 of Kalpetta Police Station for the offences punishable under section 307 and 498A IPC. As the injured could not speak, P.W.18, Sub Inspector recorded Exhibit P1 first information statement of PW1 and after returning to the Police Station, Exhibit P1(a) FIR was prepared and registered Crime No.182 of 1996 of Kalpetta Police Station for the offences punishable under section 307 and 498A IPC. After getting information of the death of Vijayalakshmi, PW18 submitted Exhibit P14 report to the court that offence punishable under section 307 IPC is substituted by offence under Section 302 IPC and the matter is being investigated. On the transfer of PW18, from that station, his successor, PW17, Circle Inspector of Police, took over the investigation on 31.7.1995 and prepared Exhibit P3 inquest report. He submitted the report for conducting the postmortem and PW9, Forensic Surgeon, conducted the Postmortem examination on the body of the deceased on 31.7.1995 and prepared Exhibit P6 report. PW16, arrested the appellant on 1.8.1995 and got him examined by PW11 Civil Surgeon of Government Hospital, Kalpetta and got prepared Exhibit P8 wound certificate. PW16, the successor of CI, continued the investigation. PW2, at the time of the incident was aged less than 4 years. PW 16 took steps to record the statement of PW2 under Section 164 of the Code of Criminal Procedure. Though PW2 was produced before Judicial First Class Magistrate, Mananthavady on 26.8.1995, the Magistrate could not record his statement under Section 164 of the Cr.P.C. as the child was not able to give any statement. After completing the investigation, PW17, laid the charge before the Magistrate, who in turn committed the case to the Session Court. 2. Learned Session Judge framed the charge for the offences punishable under Section 302 and 498A of IPC. Appellant pleaded not guilty. Prosecution examined PWs 1 to 18, got marked Exhibits P1 to P14 and got identified Mos.1 to 13. On the side of the defence Exhibits D1 and D2 portions of the statements of PWs 3 and 6 recorded under Section 161 CR.P.C. were got marked. After questioning the appellant under Section 313 Cr.P.C. and hearing the prosecution and the defence, the learned Sessions Judge called upon the appellant to enter on his defence and adduce evidence, if any. He did not adduce any evidence. After questioning the appellant under Section 313 Cr.P.C. and hearing the prosecution and the defence, the learned Sessions Judge called upon the appellant to enter on his defence and adduce evidence, if any. He did not adduce any evidence. The stand taken by the appellant at the time of questioning under Section 313 of Cr.P.C. was that on the date of occurrence he disclosed his mental pain on account of the difficulty in arranging the operation for their eldest daughter and then the deceased pacified him and he went out of the house and after sometime he heard a cry and he rushed back and found that the deceased was engulfed in flames and he had tried to put out the fire and in that process he sustained burns and the police took him in the custody on the same day and produced before the Magistrate only on the third day. A suggestion was put to the prosecution witnesses that the deceased had committed suicide. The learned Sessions Judge on appreciating the evidence found that the death of Vijayalakhsmi was not suicide but homicide. The learned Sessions judge also found that though PW2 was a child witness, his evidence is credible and reliable and the attending circumstances conclusively establish that appellant pored kerosene on the deceased ant set fire and thereby caused her death. Therefore, appellant was found guilty for the offence punishable under Section 302 of IPC. The learned Session Judge also found that there is no evidence to prove the offence under Section 498A of IPC and therefore acquitted him on the said charge. After hearing the appellant on the question of sentence, he was sentenced imprisonment for life, which is challenged in this appeal filed from Jail. 3. Advocate Shri Deepu Thankan was appointed to argue the appeal for the appellant. What is contended in the appeal memorandum is that PW2 was aged only 3 years at the time of occurrence and PW2 was not in a position to give any evidence and the learned Sessions Judge should not have accepted his tutored evidence. It is contended that on the evidence of PW2 alone, appellant should not have been found guilty and there is no other evidence to prove that appellant has committed the offence and therefore the conviction is to be set aside. It is contended that on the evidence of PW2 alone, appellant should not have been found guilty and there is no other evidence to prove that appellant has committed the offence and therefore the conviction is to be set aside. Learned counsel appearing for the appellant vehemently argued that the learned Sessions Judge erred in placing implicit faith on the evidence of PW2. It was pointed out that though at the time of recording evidence PW2 was aged 11, he was only aged less than 4 years at the time of the incident and since that date he was being brought up by PWs1 and 3 and therefore the evidence of PW2 is completely tainted due to the tutoring and therefore his evidence should have been rejected. It is argued that if the evidence of PW2 is not acceptable there is no other evidence to hold that appellant pored Kerosene and set fire on the deceased. It is also argued that the report on chemical analysis did not establish the presence of Kerosene and therefore there is no evidence to prove that the appellant had set fire after poring Kerosene. It is argued that prosecution case itself is that appellant did not try to escape from the scene of occurrence and was there when PW3 reached the place and that conduct establishes that appellant has not committed any offence. It is also pointed out that appellant himself sustained injuries in his attempt to put out the fire and that corroborates the defence case that appellant is not the culprit. 4. Learned Public Prosecutor argued that it is not the law that evidence of a child witness cannot be relied on and though PW2 was subjected to cross - examination, nothing was brought out to disbelieve his version and he is the most probable and competent witness to disclose how the incident occurred and therefore the learned Sessions Judge rightly relied on his evidence and there is no reason to interfere with the conclusion. It is also argued that the conduct of the appellant and the attending circumstances would fortify the conclusion that it is the appellant who committed the murder of his wife Vijayalakshmi. 5. The points for consideration are: (i) Whether the death of Vijayalakshmi was suicide or homicide? (ii) Whether the appellant committed the murder of Vijayalakshmi? and (iii) Whether the conviction and sentence are legal and proper. 5. The points for consideration are: (i) Whether the death of Vijayalakshmi was suicide or homicide? (ii) Whether the appellant committed the murder of Vijayalakshmi? and (iii) Whether the conviction and sentence are legal and proper. 6. The fact that the deceased sustained 100% burns on 30.7.1995 at about 3.30 p.m. as spoken to by PWs 1 and 3 is not disputed at all. Even the defence case is that she sustained burn injuries and was removed to the hospital. The evidence of PW10 the doctor, established that when he examined the deceased from Medical College Hospital at 6.45 p.m. on 30.7.1995 she had 100% burns and could not speak. The evidence of PW9, the Forensic Surgeon with Exhibit P6 postmortem report, which is not challenged, would conclusively establish that the death occurred on account of the burns sustained by Vijayalakshmi. The question is whether the death was homicide or suicide. 7. The case of the appellant is that sometime before the incident he was inside the house along with the deceased. His case is that when he expressed his mental agony to the deceased for his inability to arrange the operation for their daughter, who is suffering from some illness on the lips at the time of birth, the deceased was not perturbed and instead she consoled the appellant and therefore appellant had gone out of the house. It is his case that he thereafter heard a cry from inside the house and rushed there and found the dresses of the deceased burning and he tried to put out the fire and in that process he also sustained burns. Prosecution examined PW2 as the eye witness to the incident. PW1, brother of the deceased was admittedly not near the vicinity at the time of occurrence and even according to PW1 he got information of the occurrence only after Vijayalakshmi was taken to Fathima Hospital. Though PW1 furnished Exhibit P1 first information statement that appellant pored Kerosene and set fire on Vijayalakshmi, that was only on the basis of the information gathered by PW1 and therefore, the evidence of PW1 is not helpful to find out the genesis of the incident. PW6 is a neighbour who reached the spot only subsequently and he did not know as to how the incident occurred. PW4 is only an attestor to Exhibit P3 inquest report and has not witnessed the incident. PW6 is a neighbour who reached the spot only subsequently and he did not know as to how the incident occurred. PW4 is only an attestor to Exhibit P3 inquest report and has not witnessed the incident. PW5 is the person who accompanied the deceased to the hospital and has no knowledge as to how the deceased sustained the burns. PW3 also did not witness the incident and she rushed to the house only on hearing the cry of the deceased. 8. PW2, Vineesh, is the son of the appellant in deceased Vijayalakshmi. Admittedly he was aged less than 4 years at the time of the incident. Apart from the appellant and the deceased, only PW2 was present inside the house at the time of the incident. The learned Sessions Judge has relied on the evidence of PW2 and on that basis held that appellant committed the murder of his wife by poring Kerosene over her body and setting fire by using a match stick. The question is how far the evidence of PW2 is reliable. Before appreciating the evidence of PW2 it is necessary to bear in mind that he is a child witness. 9. The records would reveal that at the time of examination PW2 was 11 years. The learned Sessions Judge has administrated the oath to PW2 and thereafter recorded as follows: 'I have put some questions to test his capacity to give evidence. He has given rational answers. So he is permitted to be examined'. It is thereafter PW2 was examined in chief and thereafter examined. It is clear that the learned Sessions has not complied with the procedural formalities are examining PW2. 10. Under Section 118 of the Indian Evidence Act, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions because of tender years, extreme old age, disease, whether of body or mind, or any other cause of he same kind. The explanation makes it clear that even a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the question put to him and giving rational answers to them. Therefore, child is not incompetent to give evidence. The explanation makes it clear that even a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the question put to him and giving rational answers to them. Therefore, child is not incompetent to give evidence. But the competency of the child to testify as witnesses is a condition precedent to administration of oath or affirmation to him. The court is bound to testify the capacity of a witness to depose by putting proper questions. It is to ascertain in the best way it can whether from the extend of his intellectual capacity and understanding he is able to give rational account of what he had seen or heard on particular occasion. If the child can satisfy those requirements, he is definitely a competent witness to testify. Therefore, if the witness is of tender age, the court must put questions and ascertain the extend of his intellectual capacity and understanding. A Division Bench of this Court in Aravindakshan Pillai v. State of Kerala (1988 (2) KLT 990) has laid down the necessity to record the questions and answers so as to appreciate whether the child is a competent witness. This Court has held thus: 'It is desirable that the court should record the questions and answers so that the appellate court might consider whether the decision as to the competency of the child witness was right. Here the witness was asked few question regarding her name and age. It is seen that oath was administered to the witness. When the witness is a child under 12 years of age the court must ascertain whether the witness understands the duty of speaking the truth or does he understands the nature and significance of the oath or affirmation. It is always desirable that Judges should record the opinion that the child understands the duty of speaking the truth' 11. Section 4 of the Oath Act, 1969 provides that oaths or affirmation shall be made by all witnesses, that is to say all persons who may lawfully be examined or give, or be required to give, evidence by the or before any court or person having by law or consent of the parties authority to examine such persons or to receive evidence. As per the proviso where the witness is a child under 12 years of age and the court or person having authority to examine such witness is of opinion that though witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. Therefore, even if the court finds that the witness does not understand the nature of oath or affirmation, but understands the duty of speaking the truth, he is a competent witness and the admissibility of his evidence will not be affected by the absence of an oath. Therefore, when a child below 12 years is to be examined, before allowing to testify, the court has to ascertain the extend of his able to give rational account of what he had seen and heard, he is competent to be examined as a witness. But, in spite of the fact that the witness understands the duty of speaking the truth. If he does not understand the nature of oath or affirmation, oath as provided under Section 4 shall not be administered to the witness. But that does not mean that his evidence would be inadmissible. It will not also affect the obligation of the witness to state the truth. 12. As stated earlier, the records in the case reveal that the learned Session Judge did not record the questions put to the witness or the answers given by the witness so as to enable this Court to find out whether the decision as to the competency of the witness was right. But that will not affect the value of the evidence, although the procedure adopted by the learned session Judge is not correct. He did not administer the oat to PW2 after finding that the witness understands the duty of speaking the truth. Oath should have been administered only after satisfying that PW2 understands the duty of speaking truth and also the nature of an oath or affirmation. But that defect is not fatal. At best it could only be said that the witness had deposed without proper administration of oath. Oath should have been administered only after satisfying that PW2 understands the duty of speaking truth and also the nature of an oath or affirmation. But that defect is not fatal. At best it could only be said that the witness had deposed without proper administration of oath. But in view of the proviso to Section 4 of the Oaths Act, that will not render the evidence of a child witness inadmissible in evidence. Credibility and reliability of the evidence of PW2 has to be examined. 13. There is no rule of law that evidence of a child witness cannot under any circumstance be acted upon without corroboration. Apex Court in Rameshwar Kalayan Singh v. State of Rajasthan ( AIR 1952 SC 54 ) has observed thus: 'The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge'. In Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC 341 ) the Supreme Court has held thus: 'A child witness if found competent to depose to the facts an reliable one, such evidence could be the basis of conviction. In other words even in the absence of oath, the evidence of a child witness can be considered under section 118 of the Evidence Act, provided that, such witness is able to understand the questions and able to give rational answer thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored'. In Panchhi and Others v. State of U.P. (1998) 7 SCC 117) the Supreme Court considered the evidence of a child witness and held thus: 'We do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is suscestible to be swayed by what others tell him and thus he is an easy prey to tutoring'. The Apex Court has then held that 'courts have laid down that evidence of a child witness must find adequate corroboration before if is relied on. It is more a practical wisdom than of law'. This has been quoted with approval by the Supreme Court in the later decision in State of U.P. v. Ashok Dixit (2000) 3 SCC 70 ). 14. In Arbind Singh v. State of Bihar (1995) Supp. 4 SCC 416) the supreme Court has considered the evidence of a child witness. PW2. Poonam Kumari, daughter of the deceased and the appellant in that case. There was a gap of 4 years between the incident and the date of her examination. Finding that certain statements made in the course of her deposition would suggest that the possibility of tutoring could not be ruled out, the Supreme Court held that 'it is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring'. 15. The law therefore recognizes the child as a competent witness. But a child particularly at such a tender age of 4 years, who is unable to form a proper opinion about the nature of the incident because of his immaturity of understanding is not considered by the court to be a witness whose sole testimony can be relied on without other corroborative evidence. Due to their tender age, thy easily mistake what they had been asked to believe. As a result, they may be persuaded to speak as if they have themselves seen it, though in fact they have not seen them and are only believed to have seen them. They are always easy prey to tutoring. 16. The evidence of PW2 is that he had witnessed the incident that occurred in his house on 30.7.1995. He was examined in court on 6.11.2002. There was a gap of more than seven years. They are always easy prey to tutoring. 16. The evidence of PW2 is that he had witnessed the incident that occurred in his house on 30.7.1995. He was examined in court on 6.11.2002. There was a gap of more than seven years. As he was aged 11 years at the time of his examination, the learned Sessions Judge found that he was giving rational answers and therefore a competent witness to testify. But the crucial question is about the competency of PW2 to narrate what he had witnessed 7 years before the date of his examination. It is seen from the records and the evidence of PW16, the investigating officer, that PW 2 was produced before the Judicial First Class Magistrate, Mannanthavady on 26.8.1995 for recording his statement under Section 164 of Cr.P.C. The learned Magistrate has recorded as follows: 'I have put many questions to the child. But the child is able to state only his name. I have made earnest attempt to remove his embarrassment and fear. In spite of that the child has not made any statement in connection with the alleged offence in crime No.182 of 1995'. Therefore, it is clear that even though PW2 was produced before the Magistrate to record his statement under Section 164 of Cr.P.C. within one month from the date of the incident, the Magistrate, in spite of earnest attempt, found that he was unable to give any statement with regard to the occurrence. If that be so, the evidence tendered by PW2 after 7 years, cannot be swallowed without a pinch of salt. It is, therefore, absolutely necessary to appreciate the evidence of PW2 with more care and caution. What is deposed by P.W.2 from the box is that he found the appellant poring Kerosene over the head of his mother and thereafter setting fire using a match stick. Though in chief examination the case is that Kerosene was pored from a can, in re-examination it is clarified that can is also known as bottle which is evidently a careful attempt to support the prosecution case. In cross-examination PW2 deposed that he found his father poring Kerosene and setting fire on his mother. But he did not raise any voice. His father thereafter closed the doors. In cross-examination PW2 deposed that he found his father poring Kerosene and setting fire on his mother. But he did not raise any voice. His father thereafter closed the doors. It is to be borne in mind that there are only two doors to the house; one on the northern kitchen and the other from the south to enter into the house. Apart from the kitchen and the side room, the only other room is the bed room. What is deposed by PW2 is that finding the incident he hid in the room. It is also to be borne in mind that from the date of the occurrence PW2 was being brought up by PW3, the grand mother and PW1, the uncle. He was brought up in an atmosphere where he was made to believe that it was his father who caused the death of her mother by setting fire after poring Kerosene on her head. Being a child PW2 would definitely be swayed to tutoring. At worst PW2 may be a prey of his own imaginations, because of the atmosphere in which he was brought up. Appreciating the evidence of PW2 in the proper perspective, especially in the background that he was not able to disclose anything about the incident to the Magistrate when produced to record his statement, within one month from the date of incident, we find it most unsafe to rely on the evidence of P.W.2. Postmortem certificate with the evidence of PWs would establish that the hairs on the head of the deceased were not burnt. If we are to believe the evidence of PW2 kerosene was pored over the head and then appellant set fire on Vijayalakshmi. If so hairs on the head would have been caught fire first. The intrinsic evidence belies the evidence of PW2. We are unable to agree with the finding of the learned Sessions Judge that the evidence of PW2 is reliable. 17. What remains is only the evidence of PW3. Her evidence when examined in court was that she heard a cry of the deceased from her house, therefore along with her daughter-in-law she rushed to the spot. According to PW3 she found the front door of the house closed. She entered the house and found the appellant going out through the back door. Her evidence when examined in court was that she heard a cry of the deceased from her house, therefore along with her daughter-in-law she rushed to the spot. According to PW3 she found the front door of the house closed. She entered the house and found the appellant going out through the back door. The evidence of PW14, the village Officer, with Exhibit P10 scene plan would establish that there were only two doors to the house; one to the north and the other to the south. Northern door is the door to go outside the house from the kitchen. Southern door is to enter inside the house from the front. Though the original attempt of the prosecution was to prove that the appellant after setting fire tried to run away from the house, the evidence of PW3 is that even thereafter appellant was present in the courtyard. The evidence of PW6 is also that on hearing the cry he rushed to the spot and then found the appellant standing in the courtyard and PW3 catching the collar of the appellant. Therefore one fact is clear. Appellant did not try to escape from the scene of occurrence and was physically present there. According to PW3 appellant did not try to put out the fire and the neighbours who rushed there put sacks and put out the fire and thereafter the victim was taken to the hospital. True, the fact that the appellant did not accompany the victim to the hospital is a circumstance against the appellant. But for that reason alone we cannot conclude that it was the appellant who set fire to the deceased. It cannot be ignored that as per the evidence of PW6, immediately after the incident, PW3 had expressed an apprehension about the part of the appellant in the death of her daughter. Therefore, the failure of the appellant to accompany the injured to the hospital could be for that reason. As rightly pointed out by the learned counsel appearing for the appellant, the evidence of PW11 with Exhibit P8 wound certificate would establish that when PW11 examined the appellant there were burns over his face, nose right forearm and back of the right forearm of the appellant. PW11 deposed that they were 1st degree burns. 18. As rightly pointed out by the learned counsel appearing for the appellant, the evidence of PW11 with Exhibit P8 wound certificate would establish that when PW11 examined the appellant there were burns over his face, nose right forearm and back of the right forearm of the appellant. PW11 deposed that they were 1st degree burns. 18. Modi's Medical Jurisprudence and Toxicology, 22nd Edition describes 1st degree burns as follows' 'First degree burns consists of erythema or simple redness of the skin caused by the momentary application of flame or hot solids, or liquids much below boiling point. It can also be produced by mild irritants. The erythema marked with superficial inflammation usually disappear in a few hours, but may last for several days, when the upper layer of the skin peels off but leaves no scars'. 19. The evidence of PW15 with Exhibit P11 seizure mahazar would establish that M.O.4 shirt worn by the appellant at the time of the incident was seized. Exhibit P11 establishes that the right part, left hand side, left pocket portion of the shirt were burnt. The probability that appellant sustained burns in his attempt to save the victim, cannot be completely ruled out. Therefore, the fact that the appellant was present at the scene of occurrence will not establish that appellant committed the murder of his wife. The chance of the victim getting fire on her dress and the appellant rushing there to save her and sustaining burns cannot be completely ruled out especially when there is no other acceptable evidence to prove that appellant pored Kerosene over the body of the deceased an set fir on her. As rightly pointed out by the learned counsel appearing for the appellant the report of chemical analysis does not establish the presence of Kerosene on the body of the deceased. Even though prosecution has a case that appellant could be arrested only on 1.8.1995, the evidence of PW3 is that on the date of incident itself Sub Inspector had come there and took the appellant with him in a Jeep. 20. When the entire facts and evidence are appreciated in the proper perspective, we have no hesitation to hold that prosecution has not conclusively established that appellant pored kerosene on the body of his wife and set fire. The fact that the victim sustained burns accidentally also cannot be ruled out. 20. When the entire facts and evidence are appreciated in the proper perspective, we have no hesitation to hold that prosecution has not conclusively established that appellant pored kerosene on the body of his wife and set fire. The fact that the victim sustained burns accidentally also cannot be ruled out. That possibility is more because the evidence of PW 18 with Exhibit P4 scene mahazar show the scene of occurrence as the north western room. The kitchen is on the western side of the southern room. P.W.18 has collected some burnt portions of the dress worn by the deceased even from the kitchen. She was found with the burns on the south eastern room. The victim after getting fire had moved from the kitchen to the front room. This probabilises the defence version. Therefore, on the evidence we hold that prosecution has failed to conclusively prove that appellant committed the murder of his wife. The finding of the learned Sessions Judge and the conviction and sentence imposed on the appellant are therefore unsustainable. In the result, the Criminal Appeal is allowed. The conviction an sentence passed by the learned Session Judge in S.C. No.48 of 1998 are set aside. We find the appellant not guilty of the offence under Section 302 of IPC. The appellant is acquitted and is set at liberty. He shall be released from Jail forthwith, if not wanted in any other case.