Judgment Amar Dutt, J. 1. Usman is aggrieved by the conviction and sentence recorded against him by the Sessions Judge, Ludhiana on 1.04.2002 for having raped and murdered Rekha. 2. Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that on 27-04-1998 Sunil Kumar and his brother Balwinder Kumar had as usual left for their place of work in the morning at about 9.00 A.M. When around 1.00 P.M. both the brothers returned to their home, which was situated in Shimlapuri, Ludhiana for taking their meals, they found the outer gate of the house closed from inside. They also heard shrieks of Bachao Bachao raised by their sister Rekha coming from inside. Thereupon two brothers had scaled the wall of the house and entered the Court-yard. There they found that the door of the inner room of the house was also bolted and some smoke was coming out of the room. Together they pushed open the door and found their sister ablaze and lying on the floor of the room. The nawar of the iron cot lying in the room was also burning. Balwinder Kumar PW9 tried to extinguish the fire. Rekha, who was crying had told them that appellant who used to reside in the neighbourhood had in their absence entered the house and committed rape on her and thereafter poured kerosene oil from the container lying in the house and set her ablaze. She also told them that Usman was hiding himself in the inner room. Sunil Kumar had caught hold of Usman, who had tried to run away from the spot, in the meantime, many persons including their mother had arrived at the spot. She had gone to get the death certificate of her husband from the office of Municipal Corporation. She was accompanied by her brothers Ashok Kumar and Vijay Kumar, who had gone with her to the Corporations office. Rajinder Kumar, another uncle of Sunil Kumar, had also reached the house Rekha had succumbed to the injuries. After leaving the appellant in the custody of his uncle Rajinder Kumar, Sunil Kumar had left for the Police Station for lodging the report. On the way near Janjh Ghar of their locality, he had met police party and had given statement Ex. PW-8/A. The police party had accompanied Sunil Kumar to his house where inquest report Ex. After leaving the appellant in the custody of his uncle Rajinder Kumar, Sunil Kumar had left for the Police Station for lodging the report. On the way near Janjh Ghar of their locality, he had met police party and had given statement Ex. PW-8/A. The police party had accompanied Sunil Kumar to his house where inquest report Ex. PC was prepared. One iron bed and elastic can were taken into possession along with ashes of burnt clothes from the spot. 3. Appellant was taken into custody. Dead body of Rekha was sent to the Civil Hospital for getting post-mortem conducted thereon. During the post-mortem, vaginal swabs were recovered and sent to the Chemical Examiner for his opinion. Appellant was got medico legally examined and after the receipt of the report of the Chemical Examiner, challan was put in the Court of Illaqa Magistrate against the appellant, who committed the same to the Court of Sessions for trial as offence disclosed therein were exclusively triable by that Court. 4. On going through the papers sent up with the challan, the trial Court found that prima facie a case was made out against the appellant under Sections 376 and 302 IPC and accordingly framed the charge under Sections 376 and 302 IPC and when the appellant pleaded not guilty to the charge, the prosecution was called upon to lead its evidence. To bring home the charges, the prosecution examined Dr. Pritpal Singh as PW1, Kanwaljit Kaur as PW2, Dr. Ashok Raswant as PW3, HC Karam Singh as PW4, Harminder Singh as PW5, Varinder Kumar as PW6, Constable Surinder Singh as PW7, Sunil Kumar as PW8, Balwinder Kumar as PW9, SI Surjit Singh as PW 10 and Vijay Kumar as PW11. 5. After completion of the prosecution evidence, when the incriminating circumstances were put to the appellant, he denied all of them and asserted that he was innocent and had been falsely implicated in the case. Appellant, however, chose not to lead any evidence in defence to prove his assertion. 6. After hearing the arguments, the trial Court convicted the accused under Sections 376 and 302 IPC and sentenced the appellant under Section 376 IPC to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1000/-. Appellant, however, chose not to lead any evidence in defence to prove his assertion. 6. After hearing the arguments, the trial Court convicted the accused under Sections 376 and 302 IPC and sentenced the appellant under Section 376 IPC to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine, he was ordered to undergo further two months rigorous imprisonment and under Section 302 IPC he was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/-. In default of payment of fine, he was ordered to undergo further four months rigorous imprisonment. Hence, the present appeal. 7. We have heard Mr. J.S. Bhatti, learned counsel appearing on behalf of the appellant and Mr. S.S. Randhawa, learned Senior Deputy Advocate General, Punjab on behalf of the State. 8. On behalf of the appellant, it was submitted by Mr. J.S Bhatti, learned counsel for the appellant that case against the appellant is based on dying declaration of Rekha, which had been made by her before her brothers who are also submitted that other children of the family were in the house and they have not been examined. It was urged that the Investigating Agency had foisted upon the appellant a case of a blind murder. 9. On behalf of the State, it was submitted that the circumstances spelt out in the dying declaration are corroborated by independent circumstances which have been collected during the investigation. Deceased had stated in the statement made before her brothers that she had been raped by Usman, who had thereafter set her ablaze. Vaginal swabs were found to contain semen and Rekha had high degree of burns. She had also stated that the appellant was still hiding in the adjoining room, which fact is corroborated by the circumstance that Usman was apprehended at the spot from the place indicated. It has been brought out in the cross examination that children of the family were not inside the house but were playing in the street behind the house. In this view of the matter, it was urged on behalf of the State that appeal is without merit and the same should be dismissed. 10. We have carefully considered the rival contentions and gone through the record with the assistance of the learned counsel for the parties. 11. In this view of the matter, it was urged on behalf of the State that appeal is without merit and the same should be dismissed. 10. We have carefully considered the rival contentions and gone through the record with the assistance of the learned counsel for the parties. 11. The case against the appellant is built upon on the dying declaration made by the deceased before her two brothers. The death of Rekha is stated to have taken place due to the extensive burns that were found on her dead body after she had been set ablaze by Usman. Dr. Pritpal Singh had while appearing as P.W.1 stated that time which elapsed between injuries and death was immediate. The investigating agency had not collected any evidence as to the material from which the clothes worn by the deceased were made, which would have helped us to come to the conclusion as to the time which would have elapsed between fire being ignited and it having reached the stage at which the deceased was found by her brothers. Interestingly the deceased also did not try to fix the time that had elapsed between when she was set at ablaze and when her brothers had reached her after scaling the wall after breaking open the door of the room. In cross-examination, the defence had not tried to explore these possibilities and accused in his statement under Section 313 Cr.P.C. is equally silent about how the incident had taken place. In a situation where there were two persons alone, who could have deposed about the manner in which the incident of setting ablaze Rekha took place and one of them does not discharge the obligation, which shifts to him under Sections 103 and 106 of the Indian Evidence Act, we have no option but to accept what had been stated by the two brothers, who after breaking the door of the room had found their sister lying burning on the floor and have detailed what was told by her to them about the incident. In State of W.B. v. Mir Mohammad Omar and others, (2000)8 S C.C. 382, the Apex Court has observed as under : "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. In State of W.B. v. Mir Mohammad Omar and others, (2000)8 S C.C. 382, the Apex Court has observed as under : "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. xxxxxx xxxxxx 33.......... When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. XXXXXX XXXXXX 36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follow : "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 37. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference." 38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned judge has stated the legal principle thus : "This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are `especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word `especially stresses that. It means facts that are pre-eminently or exceptionally within his knowledge." 12. After thus expounding the law, the Apex Court made the following observations : "39. In the present case, the facts which the prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustained fatal injuries and the proximity of the place within which the dead body was found are enough to draw an inference that victims death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts, the inference would stand undisturbed." 13. The aforesaid view was relied upon by a Division Bench of this Court in Rajinder Singh & others v. State of Punjab, Criminal Appeal No. 701-DB of 2003, decided on July 1, 2005. 14. Coming to the dying declaration, which had been accepted by the trial Court, we find that it consists of two parts, one about Rekha deceased being raped and thereafter being set ablaze. With regard to first, we have on record the evidence of the Chemical Examiner, which proves that the deceased had been subjected to sexual inter-course immediately prior to her death. With regard to first, we have on record the evidence of the Chemical Examiner, which proves that the deceased had been subjected to sexual inter-course immediately prior to her death. The vaginal swabs were found to have contained semen and appellant could have, if so advised, asked for a DNA profile of the semen to rule out the possibility of his having raped her. He has chosen not to do so and on this account the presence of semen becomes an incriminating circumstance against the appellant. Second circumstance relates to the burning. P.W.1 Dr. Pritpal Singh had found the following injuries : Superficial deep extensive burns all over body with peeling skin at place singing of hair of axallery, public area and scalp was present. Finger of both hands were clinched. Skull, thorax ribs, carilages healthy. Membrance and brain bears patichial haemorrhage were present. Pleura Larynx trachea, right and left lungs were congested. Heart was healthy and right side of heart was contained blood. Peritonium, Pharynx and oesophagus, liver, spleen, kidney were congested. Stomach was healthy and contained about 150 cc of secretion, small intestines were healthy and contained gasses, large intestines were also healthy and empty. Three swabs were taken from vagina and sent for chemical examination and internal organs were healthy and empty." and this factor also corroborates the version of the deceased. 15 The argument that the children were available in the house at the time of incident not having been examined is of no avail because in the evidence it has come on record that children were playing in the street at the back of the house. Looked at from any angle, we find it difficult to accept the submission made by the learned counsel for the appellant that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. 16. For the reasons recorded above, this appeal fails and the same is hereby dismissed.