GIRISH CHANDRA GUPTA, J. ( 1 ) BIRESHWAR Goswami and Bisheshwar Goswami both sons of Shri Nakuleshwar Goswami and Shrimati Swati Goswami wife of bisheshwar Goswami, pursuant to a written complaint dated 23rd september, 1988 lodged by Shri Amarendra Nath Adhikari with the officer-in-charge of Asansol Police Station, which formed the basis of formal FIR, were charged under Section 302 of the Indian Penal Code for intentionally committing murder of Shrimati Kakali Goswami daughter of the complainant amarendra Nath Adhikari under Section 201 of the Indian Penal Code for causing evidence of offence to disappear and knowingly giving false information with the intention of the screening the accused person from legal punishment and under Section 120b of the Indian Penal Code for having agreed to commit murder of Shrimati Kakali Goswami amongst themselves. The learned Trial Judge by his judgment dated 20th September, 2000 acquitted all the accused persons from the charges under Section 120b and Section 201 of the Indian Penal Code. The learned Trial Judge further acquitted Bisheswar and his wife Swati from the charge under Section 302 of the Indian Penal Code. The accused Bireshwar was however found guilty of the offence punishable under Section 302 and was convicted. By his order dated 21st September, 2000 the learned Trial Judge sentenced bireshwar to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and in default to suffer further rigorous imprisonment for two years. The convict has now come up in appeal. ( 2 ) THE case of the prosecution briefly stated is that Kakali, daughter of Amarendra Nath Adhikari was given in marriage to Bireshear on 8th May, 1988. On 7th August, 1988 at 5 a. m. Bireshwar called at the residence of shri Amarendra Nath Adhikari and told him that one of his friends had met with a scooter accident and was admitted in the Burnpur hospital. He requested Mr. Adhikari to accompany him to which the latter readily agreed. They got into a taxi. While proceeding towards the hospital, Bireshwar divulged that Kakali had in the last night set herself on fire and had attempted to commit suicide and was lying at Asansol hospital. Shri Adhikari upon arriving at the hospital found his daughter dead. The family members of shri Adhikari namely his wife and son reached the house of Bireshwar after they were informed by Shri Adhikari. Shri Adhikari upon arriving at the hospital found his daughter dead. The family members of shri Adhikari namely his wife and son reached the house of Bireshwar after they were informed by Shri Adhikari. Shri Adhikari accompanied by his wife went to the hospital once again but the son was forbidden from going there by Bireshwar. Shri Adhikari alleged that he suspected foul play in the matter because his son-in-law was an alcoholic and was of loose morals. He added that he was of the firm belief that his daughter was forced to consume something and after making her unconscious she was set on fire. An allegation of torture, in the matrimonial house, upon the deceased daughter is also there. ( 3 ) THE case of the defence, as would appear from the suggestions given to the witnesses of the prosecution as also from the answers given to the questions put in examination under Section 313 of the Code of Criminal procedure, is as follows : (a) Bisheshwar in answer to question No. 11 in his examination under section 313, Cr. P. C. stated, inter alia, as follows : "bireshwar had gone to his friend's house, along with Kakali, and he had returned around 9 p. m. and thereafter we had gone to sleep. At about 12 p. m. /1 a. m. I had suddenly heard the words, "fire, Fire, save me, save me". I had gone to the first floor and had seen that kakali was on fire and my brother was trying to extinguish it. I along with my wife had assisted him. I had told my brother to summon a taxi. The neighbours too had arrived and we all had put her in the taxi and had taken her to the nursing home, but the nursing home did not admit her and we had taken her to the Sub-Divisional Hospital. She had expired around dawn. " (b) Bireshwar in answer to question No. 17 in his examination under section 313, Cr. P. C. stated, inter alia, as follows : "i had showed her a film at home for cheering her up, and had taken her on a visit to Babu's house during the afternoon and we had dinner over there and had returned home, we had gone to sleep around 10 p. m. I am a patient of epilepsy and I keep sleeping tablets in my home. Sometimes Kakali used to have those tablets. She had been having those tablets of mine daily for the last 2/3 days after hearing the results of the examination and sometimes Kakali used to consume alcohol. " (c) Swati in answer to question No. 7 in her examination under Section 313, Cr. P. C. stated, inter alia, as follows : "she was young and sentimental by nature. She had remained depressed for a few days. During the afternoon of the day of the occurrence, my brother-in-law and Kakali had gone to a friend's house and they had dinner over there and returned around 9 p. m. Thereafter i had gone downstairs to sleep. I awoke from my sleep at midnight on hearing the shouts of my brother-in-law. We ran upstairs and found that Kakali had set herself on fire and my brother-in-law was extinguishing the fire. We had assisted him. The neighbours had arrived. " (d) In cross-examination on behalf of Bisheshwar and Swati Shri adhikari was suggested that Bireshwar and his wife had consumed wine in a party on the relevant day and after their return Kakali had taken tranquilizer for insomnia and that these two accused persons had no connection with the same. They also suggested that Kakali used to drink occasionally with her husband outside the matrimonial house. On behalf of Bireshwar it was suggested to P. W. 1 that Kakali was in the habit of taking sedative doses. It was further suggested on behalf of Pireshwar that the couple had gone to the house of a friend and had drunk wine there. ( 4 ) THE case of the defence therefore in sum and substance is that on 6th August, 1988 both Bireshwar and his wife Kakali attended a party in a friend's house ; both of them consumed liquor ; they came back to their house at around 9 p. m. and fell asleep by 10 p. m. Kakali had taken tranquilizer presumably before going to sleep. At 12 p. m. /1a. m. Bireshwar cried fire whereupon the elder brother Bisheshwar and his wife Swati rushed upstairs and found that Bireshwar was trying to extinguish the fire. ( 5 ) THE defence has not adduced any evidence. ( 6 ) LET us now scrutinize the evidence before considering the submissions advanced by Mr. Sekhar Bose, learned Advocate appearing for the appellant. m. Bireshwar cried fire whereupon the elder brother Bisheshwar and his wife Swati rushed upstairs and found that Bireshwar was trying to extinguish the fire. ( 5 ) THE defence has not adduced any evidence. ( 6 ) LET us now scrutinize the evidence before considering the submissions advanced by Mr. Sekhar Bose, learned Advocate appearing for the appellant. ( 7 ) SOUMEN Adhikari, the P. W. 6 the brother of the victim has deposed that on 6th August, 1988 he went to the house of the accused and left in the evening because Bireshwar and Kakali were to leave for a party thrown by a friend of Bireshwar. According to the statement of the accused Swati they returned home after dinner at about 9 p. m. According to Bireshwar himsell as per his answer to question No. 17 put to him under Section 313 of Cr. P. C. they fell asleep by 10 p. m. According to Swati, after Kakali had returned at about 9 p. m. , she had gone downstairs to sleep. Therefore in the unit occupied by the couple except for the husband and wife no one else was there and they had gone to sleep at 10 p. m. According to accused bisheshwar "at about 12 p. m. /1 a. m. I had suddenly heard the words 'fire' 'fire' and 'save me' 'save me'". According to accused Swati she awoke from her sleep at midnight on hearing the shout of her brother-in-law bireshwar. According to P. W. 9 "at about 1 a. m. /1. 30 a. m. the accused bireshwar cried out saying 'fire' 'fire'". The P. W. 9 went upstairs and found the accused Bireshwar was trying to extinguish the fire by means of a wet saree. According to Bisheshwar he found that Kakali was on fire and his brother was trying to extinguish the same. According to Swati she and her husband Bisheshwar ran upstairs and found that Kakali had set herself on fire and her brother-in-law was trying to extinguish the same. ( 8 ) WHILE Bisheshwar saw that Kakali was on fire, his wife saw that kakali had set herself on fire. Whereas P. W. 9 only saw that Bireshwar was trying to extinguish the fire by means of a wet saree. ( 8 ) WHILE Bisheshwar saw that Kakali was on fire, his wife saw that kakali had set herself on fire. Whereas P. W. 9 only saw that Bireshwar was trying to extinguish the fire by means of a wet saree. ( 9 ) THE time when Bireshwar cried fire, according to Bisheshwar was 12 p. m. /1 a. m. according to his wife it was midnight whereas the time, according to P. W. 9 when Bireshwar cried out 'fire' it was 1 a. m. /1. 30 a. m. The cry of Bireshwar cannot but be subsequent to the incident. It is worth noticing that the time of the incident was given out by the accused persons to be 2. 30 a. m. , at the earliest possible opportunity, to the Investigating officer while preparing the inquest report. The inquest report which is exhibit "1" reads that "at about 2. 30 a. m. the husband had found out that his wife had set herself on fire". The inquest report being exhibit 1' appears to have been signed by both Bireshwear and Bisheshwar on the one hand and amarendra Nath Adhikari and Soumen Adhikari on the other being P. W. 1 and 6 respectively. P. W. 15 the I. O. , who prepared the inquest report, has in his cross-examination deposed that at the time of preparing the exhibit 1' he examined Amarendra Nath Adhikari and Soumen Adhikari and others. Amarendra Nath Adhikari and Soumen Adhikari were not at the place of occurrence. Therefore the time of occurrence given in the inquest report must have emanated either from Bireshwar or Bisheshwar. The bar under section 162, Cr. P. C. shall not be applicable in this case as would appear from the section itself because the present case had not been started on 7th August, 1988. As already indicated the FIR in the present case was lodged on 23rd September, 1988. The statement made by the de facto complainant and the accused persons in relation to U. D. Case No. 229 of 1988, shortly after death of the victim, can therefore be taken into consideration for the limited object that such a statement was made. The defence does not also appear to have any objection thereto because in cross-examination they asked the P. W. 15 as to whether the recording was made after examining the parties. The defence does not also appear to have any objection thereto because in cross-examination they asked the P. W. 15 as to whether the recording was made after examining the parties. We thus have before us various versions of time of the incident given by the accused persons themselves. ( 10 ) SWATI in her examination under Section 313 of Cr. P. C. has stated that she had removed the pieces of burnt cloth from the body of the victim and covered her with a wrapper and then her husband and brother-in-law took her away in a taxi. ( 11 ) EXHIBIT 5' the bed-head ticket maintained by the S. D. Hospital, asansol goes to show that the victim was admitted at 3. 20 a. m. on 7th august, 1988. Dr. T. K. Biswas P. W. 10 has proved the exhibit 5'. We cannot but observe that the time of admission of the victim appearing in exhibit 5' also contains an interpolation. The interpolated time reads like 3. 40 a. m. According to exhibit 1', we have verified from the original, the time of admission of the victim in the hospital was given out to be 3. 20 a. m. Exhibit 5' contains an entry made in a different hand at 4. 15 a. m. which has been proved by Dr. S. N. Sinha. He deposed that he was called by the admitting doctor for her treatment and he examined the victim at 4. 15 a. m. ( 12 ) EXHIBIT 5' contains still another entry to the effect that "seen dead" at 6. 05 a. m. on 7th August, 1988. There is yet another entry in exhibit 5' showing "death at 6. 05 a. m. on 7th August, 1988". The latter entry made in the Ext. 5 indicating the time of death is grossly interpolated. The former entry goes to show that the victim was found dead at 6. 05 a. m. but the entry specifying the time of death at 6. 05 a. m. is interpolated and grossly interpolated making the circumstances all the more curious. The inquest report being exhibit 1' made after examining the accused persons amongst others contains the time of death as 6. 05 a. m. whereas there is firm testimony before us of the P. W. 1 showing that at around 5. 15/5. 05 a. m. is interpolated and grossly interpolated making the circumstances all the more curious. The inquest report being exhibit 1' made after examining the accused persons amongst others contains the time of death as 6. 05 a. m. whereas there is firm testimony before us of the P. W. 1 showing that at around 5. 15/5. 20 a. m. he reached the hospital accompanied by Bireshwar and found his daughter dead. A suggestion was given to the P. W. 1 that the victim died at 6. 05 a. m. which has been denied by the P. W. 1. ( 13 ) THE post mortem was conducted by Dr. Biswajit Banerjee along with Dr. Vivekananda Roy in connection with the Asansol Police Station u. D. Case No. 229 of 1988. According to him the victim had suffered "extensive burn almost whole body including face, chest, abdomen, back, both thighs, both upper extremities, both legs upto middle of legs and also frontal hair of the scalp except sole and middle of leg. Abdominal walls superficial burn, plaura, healthy, trachea-soot present". ( 14 ) P. W. 1 deposed that her sakha and pala (bangles) had remained unaffected. There is no significant cross-examination on this aspect of the matter. Even the post mortem report does not suggest that her arms were affected. ( 15 ) THE post mortem report further goes to show that stomach, liver and kidney were sent for analysis of viscera. FSL report being exhibit No. 8' contains the following findings : "ethyl Alcohol and Barbiturates have been detected in the viscera". On the basis of FSL report Dr. Biswanath banerjee one of the participants in the post mortem examination opined that "alcohol itself has poisoning effect. When it is mixed with barbiturates the effect is most serious and that may cause death. Due to struggle for existence frothing may occur". In the post mortem report froth on both angles of the mouth was found. The analyst in his report which is exhibit 9' has stated that "death in my opinion was due to combination of alcohol and barbiturates poisoning and extensive burnt anti mortem in nature". P. W. 13 opined that death appears to be more in favour of being homicidal. Ultimately he however admitted in cross-examination that it was not possible for him to opine definitely whether the death was accidental, homicidal or suicidal. P. W. 13 opined that death appears to be more in favour of being homicidal. Ultimately he however admitted in cross-examination that it was not possible for him to opine definitely whether the death was accidental, homicidal or suicidal. ( 16 ) THE theory of accident has not been introduced by anyone. Therefore, the death could not have been accidental. We already have before us the case of the accused persons suggested to the P. W. 1 that at a party in the house of the friend of Bireshwar the couple drank wine. We also have before us the case run by the accused persons that the victim took tranquilizer. In the stomach of the victim alcohol and barbiturates were found. According to the accused persons the victim voluntarily took wine and tranquilizer for which there is no evidence far less satisfactory evidence. P. W. 1 the father of the victim was an ordinary employee of IISCO belonging to a middle-class Bengalee family wherein consumption of wine is still considered a taboo. The situation, two decades ago, in the year 1988 was even worse. It is difficult to believe that the victim voluntarily took wine. No evidence in that regard is forthcoming. Admittedly the victim was taken to one of her husband's friend's house by her husband. According to P. W. 6 they left for the friends's house in the evening. According to Bisheshwar and his wife they came back by 9 p. m. and fell asleep by 10 p. m. For any person not accustomed to taking alcohol it is unbelievable that he would think of taking tranquilizer after having consumed alcohol. In the evening the couple went and by 9 p. m. they are claimed to have returned. Such a short lived party, wherein liquor was served and consumed, is also a curious affair. We therefore, have no manner of doubt in our mind that both alcohol and tranquilizer were caused to be administered to the victim by Bireshwar, the appellant herein, because even in the party she was accompanied by none other than the appellant. ( 17 ) THE clothes of the victim would have furnished a great deal of assistance in finding out as to how did the victim come in contact with the fire of such a magnitude that the victim died within hours. ( 17 ) THE clothes of the victim would have furnished a great deal of assistance in finding out as to how did the victim come in contact with the fire of such a magnitude that the victim died within hours. But that part of the evidence is not available because Swati had removed those clothes and wrapped her in a chaddar before the victim was sent to hospital. The place of occurrence is stated to be the balcony/verandah. P. W. 1 has deposed that in the verandah various furniture including clothes, hangers, mirror, gas cylinder were kept but none of the articles lying in the verandah was affected by the fire. This is also admitted by the accused persons in their examination under Section 313, Cr. P. C. A person seeking to burn herself would not be so calculative as not to damage any part of the property of the household. ( 18 ) THE learned trial Judge after examining the evidence came to the conclusion as follows : "from the circumstantial evidence, specially from the post mortem report and FSL report, it can not be said that alcohol was consumed by the deceased after sustaining injuries. On the other hand, it can be said without any hesitation that alcohol was consumed/ administered by/to the deceased. FSL report also disclosed the presence of barbiturates in the viscera of the deceased. If alcohol and barbiturates are consumed by the deceased prior to sustaining burn injuries, had she any capacity to set her ablaze. On the other hand, it can be said that after administering the alcohol and barbiturates, the deceased was set on fire. Therefore, the circumstantial evidence unerringly point towards guilt of the accd. , bireshwar as at that time only he was present in that room. It was argued that there was no motive in committing murder of deceased Kakali. The question of motive loses importance if evidence is clear, cogent and reliable. Therefore, the circumstantial evidence coupled with the evidence of doctors, P. M. report and FSL report amply proves the charges under Section 302, IPC against the accd. " ( 19 ) WE are inclined to agree with the learned trial Judge that the victim was set on fire by Bireshwar. Therefore, the circumstantial evidence coupled with the evidence of doctors, P. M. report and FSL report amply proves the charges under Section 302, IPC against the accd. " ( 19 ) WE are inclined to agree with the learned trial Judge that the victim was set on fire by Bireshwar. Regard being had to the common course of natural events the victim, already under the influence of alcohol and tranquilizer, could not have set herself on fire. Except for Bireshwar and the victim no one else was present in the room. ( 20 ) WE are also inclined to think that the victim was burnt alive in order to ensure her death which in all probability would have ensued in any event from the effect of poisoning caused by alcohol mixed with barbiturates. See in this regard the evidence of Dr. Biswanath Banerjee discussed above. "in a case of murder by poison there are three main points to be proved : firstly did the deceased die of the poison in question ; secondly had the accused the poison in question in his or her possession ; and thirdly had the accused an opportunity to administer the poison in question to the deceased. If these three points are proved, a presumption may under certain circumstances be drawn by the Court that the accused did administer the poison to the deceased and did cause the death of the deceased. " (See Mt. Gajrani and Anr. v. Emperor, reported in AIR 1933 All 394 which was cited with approval by the Apex Court in the case of A. C. Lagu v. The State of bombay, reported in AIR 1960 SC 500 and also in the case of Mohan v. State of U. P. reported in AIR 1960 SC 659 . There is overwhelming material on the record, already discussed, in support of each of the three ingredients required for proof of death by poisoning. ( 21 ) THE appellant and the co-accused persons wished the Court to believe that the victim voluntarily consumed alcohol and barbiturates. They also wished the Court to believe that the victim had set herself on fire. The burden of proving the existence of the aforesaid facts was on the appellant and the co-accused which they did not discharge. The aforesaid allegations are not by themselves believable for the reasons indicated above. They also wished the Court to believe that the victim had set herself on fire. The burden of proving the existence of the aforesaid facts was on the appellant and the co-accused which they did not discharge. The aforesaid allegations are not by themselves believable for the reasons indicated above. The contradictory version as regards the time of occurrence, the removal of the burnt clothes the omission on the part of the investigating agency to pursue the U. D. Case, the misleading information as regards the time of death the unaffected furnitures lying at the supposed place of occurrence deliberately given, wrong information to the de facto complainant about an alleged accident encountered by a friend ; the act of withholding the information from her parents until the victim had died and absence of any injury even on the tips of the fingers of the appellant who allegedly was trying to extinguish the fire point to one conclusion only reached by the Trial Court. ( 22 ) WE are also firmly of the opinion that the prosecution has been able to adduce such evidence as it was in its power. Rest of it is in the special knowledge of the appellant. He has chosen not to adduce any evidence. Law in this regard is well settled. In the case of B. P. Agarwal v. State of Bihar reported in (1997)9 SCC 338 . Their Lordships discussed the law on the subject referring to various judgments, which as far as is absolutely necessary, for our purpose, is as follows : "the facts which were in the personal knowledge of the accused who were present in the house on that fateful night could have been revealed by them to disprove the prosecution case. This burden under section 106 of the Indian Evidence Act is not discharged by them. In this connection we may usefully refer to some of the decisions of this court on the point. In the case of Shambhu Nath Mehra v. State of ajmer Bose J. speaking for a two-number Bench referring to the applicability of Section 106 at the Evidence Act to criminal prosecutions laid down in paragraphs 10 and 11 of the report as under : " (10) Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. Section 101 lays down the general rule about the burden of proof. 'whoever desires any Court to give judgment as to any legal, right or liability dependent on the existence of facts which he asserts, must prove that those facts exists'. 'a desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. " (11) 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. In the case of Collector of Customs v. D. Bhoormal another Bench of two learned Judges of this Court while considering the offence under Sea Customs Act, 1978 earmarked the scope of Section 106 of the Evidence Act in the following terms in paragraphs 30 and 31 of the Report : "31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in blatoh v. Archer Cowp at p. 65 according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted'. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. " ( 23 ) REFERENCE in this regard can also be made to paragraphs 36, 37 and 38 of the judgment in the case of State of West Bengal v. Mr. Mohammed Omar reported in (2000)8 SCC 382 . ( 24 ) THE submissions made by Mr. Bose may now be considered. He submitted as follows : - (A) The FIR was lodged almost 46 days after the incident which goes to establish that the father of the victim did not suspect any foul play in the matter. Mohammed Omar reported in (2000)8 SCC 382 . ( 24 ) THE submissions made by Mr. Bose may now be considered. He submitted as follows : - (A) The FIR was lodged almost 46 days after the incident which goes to establish that the father of the victim did not suspect any foul play in the matter. We are unable to accept this submission. The victim died on 7th August, 1988 and on the same day exhibit 1' being inquest report was prepared by the I. O. The I. O. in his evidence has stated that in preparing the inquest report he examined the father and the brother of the victim and others. The other two signatories to the inquest report are Blreshwar and bisheshwar. The report itself discloses that the father made an allegation against the son-in-law. After preparing the inquest report, according to P. W. 17 the I. O. , statement of the father was recorded in connection with the u. D. Case No. 229/88 on 7th August, 1988. On 12th August, 1988 P. W. 1 the father of the victim wrote a letter to the Additional Superintendent of police, Asansol, reference to which has been made in the G. D. No. 1442 dated 25th August, 1988 according to P. W. 17. A further G. D. was lodged on 8th September, 1988 which was registered as G. D. No. 444 in pursuance whereof Bireshwar was arrested and set at large on the following day. According to P. W. 16 there are other general diaries made subsequent to 8th September, 1988 and the FIR was lodged on 23rd September, 1988. There is therefore no scope for entertaining the view that the father, P. W. 1 did not suspect any foul play in the matter. The father in his FIR has stated that he was not in a fit state of mind to lodge an FIR. He also has stated that he was threatened by the accused persons. We are of the view that the delay in lodging the FIR in the facts of the case has sufficiently been explained and does not go to show that the FIR is a product of an afterthought. (B) The second submission of Mr. Basu is that the victim was in the habit of taking tranquilizer. We are of the view that the delay in lodging the FIR in the facts of the case has sufficiently been explained and does not go to show that the FIR is a product of an afterthought. (B) The second submission of Mr. Basu is that the victim was in the habit of taking tranquilizer. Nothing is there on the record to show that the victim at any point of time was prescribed any tranquilizer. In the absence of any dependable evidence we are unable to accept that the victim was in the habit of taking tranquilizer. The appellant deals in medicine. He cannot in the normal circumstances be expected to have allowed his wife to consume tranquilizer without advice. It is true that the brother of the victim has in this regard given a somewhat different picture but the brother's evidence is not believable because he did not relate what he was supposed to know namely the necessity wherefrom the victim took up the habit of taking tranquilisers. Another reason why we are unable to give credence to the brother is that he appears to have been interested in begging favours from Bireshwar. He also has in his evidence sought to involve his father in this sinister affair but his father has firmly denied any such act or conduct on his part. We, therefore, are unable to accept the testimony of the brother in this respect. (C) The third submission of Mr. Basu is that there was no hostility between the parties even after the incident had happened. We are unable to accept this submission either. Hostility was there which was apparent on 7th August, 1988 itself which we already have discussed and need not repeat : (D) The fourth submission of Mr. Basu is that there was no complaint of torture or cruelty towards the victim either by the father or by the daughter. It is true that there was no written complaint in that regard. The father has however in the FIR referred to torture upon the victim. He also has in his evidence referred to cruelty having been inflicted upon his daughter. The victim did not lead her marital life for full three months. Therefore greater details in this regards are not in the normal course expected. The father has however in the FIR referred to torture upon the victim. He also has in his evidence referred to cruelty having been inflicted upon his daughter. The victim did not lead her marital life for full three months. Therefore greater details in this regards are not in the normal course expected. It is difficult to believe that for mere failure in H. S. examination suicide could have been committed by a married found lady of 21 years. ( 25 ) MR. Bose relied on two dying declarations. One is alleged to have been made in the presence of the taxi driver the P. W. 2 to the effect that due to her mistake she looked bad. Another dying declaration allegedly made by the victim is deposed to by P. W. 9 to the effect that what a wrong she had committed. ( 26 ) FIRSTLY we don't accept the submission that these two sentences or part of the sentences can at all be said to be a dying declaration. The p. W. 10, Doctor has stated in his evidence that the victim was not in a position to speak. Assuredly she was under the influence of the deadly effect of alcohol mixed with barbiturates. Therefore it is difficult to believe that any dependable dying declaration could at all have been made in the presence of P. W. 2 or P. W. 9. In any event these two sentences or part of the sentences are at the highest soliloquies. What was going through the mind of the victim and what thought of the mind was breathed by these sentences is not known to anyone. Which mistake or which wrong was referred to by her, if at all, may be anybody's guess. She is not alleged to have altered these sentences in answer to any question put to her nor was any of these sentences intended for any one. Therefore the so-called dying declarations are no dying declarations, according to us, are not at all dependable. ( 27 ) MR. Bose submitted that these two dying declarations were deposed to by P. W. 2 and P. W. 9. Yet the witnesses were not declared hostile and therefore the defence was entitled to take the benefit thereof. Therefore the so-called dying declarations are no dying declarations, according to us, are not at all dependable. ( 27 ) MR. Bose submitted that these two dying declarations were deposed to by P. W. 2 and P. W. 9. Yet the witnesses were not declared hostile and therefore the defence was entitled to take the benefit thereof. In support of his submission he relied on two judgments reported in the case of Mukhtiar Ahmed Ansari v. State reported in 2005 SCC (Criminal) 1037 : air 2005 SCC 2804 and 2005 SCC (Criminal) 1050. The question of any benefit being taken of the alleged dying declaration may arise if they amount to a dying declaration. We already have indicated our mind in this regard which need not be repeated. ( 28 ) LASTLY he submitted that when it is not possible to come to a conclusion as to whether the death was homicidal or suicidal, the appellant deserves an order of acquittal. ( 29 ) WE are unable to accept this submissions for reasons already discussed hereinabove. ( 30 ) HAVING regard to the analysis of the entire materials made in the foregoing paragraphs, we are of the considered view that the circumstances put forth by the prosecution have been cogently and firmly established and the circumstances undisputedly point towards the guilt of the appellant. As such, we have no hesitation to hold that the appellant had committed this cruel murder of his young wife. ( 31 ) IN the result the appeal is dismissed and the order of conviction and sentence passed by the learned trial Court is affirmed. ( 32 ) THE appellant, who is on bail, shall surrender before the learned trial Court to serve out the remaining sentence within 15 days, failing which the learned trial Court shall take all coercive steps for his arrest and his bail bond cancelled. ( 33 ) LOWER Court Record with a copy of this judgment to go down forthwith to the learned trial Court for information and compliance within a month from today. .