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2008 DIGILAW 452 (GAU)

Khukan Debnath v. State of Assam

2008-06-23

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT A. Hazarika, J. 1. The convict herein as appellant has assailed the judgment of conviction and sentence passed by the learned Additional Sessions Judge, Dibragarh in Sessions Case No. 93/2000 whereby the appellant has been convicted under Section 302 of the Indian Penal Code, 1860 (For short the 'IPC') and sentenced to undergo imprisonment for life with a fine of Rs. 1,000/-, in default further imprisonment for 3 (three) months. 2. Prosecution story as set up during the trial in a nutshell is as follows : On 11th June, 1999 at about 3.30 p.m., Mamun Debnath (hereinafter referred to as deceased), wife of Khukan Debnath, the appellant herein, caught fire in her person. It was suspected that her husband has caused the incident by pouring kerosene over her person and setting her afire. The deceased was rushed to Assam Medical College Hospital, Dibrugarh, for treatment wherein the deceased made a dying declaration before PW 4, Dr. Parthapratim Dutta implicating the appellant and the deceased breathed her last on 16.6.1999 at 8 p.m. The dying declaration is Ext. 2, Dr. R.K. Gogoi, PW 13 performed the autopsy on 16.6.1999. Post-mortem report is Ext. 7. During the course of investigation an old kerosene stove and an old can of tin for keeping kerosene oil were recovered from the rented house of the appellant. The seizure report is Ext. 6. On completion of investigation, the charge-sheet was submitted against the accused for commission of offence punishable under Section 302, IPC. The charge was read over to the accused to which he pleaded not guilty and claimed to be tried, hence the trial started against the accused. 3. The prosecution during the trial has examined as many as 13(thirteen) witnesses to prove the prosecution case. Admittedly there were no eye-witnesses to the scene of occurrence. The deposition of prosecution witnesses PW1, Joynal Sah, PW 2, Rajen Dey, PW 3, Krishna Gupta, PW 9, Bhabatosh Dutta and PW10, Swapan Bhawal have not disclosed any incriminating materials against the accused. 4. PW 4, Dr. Parthapratim Dutta, who attended the deceased on 11.6.1999 has deposed that he was in casualty department of Assam Medical College Hospital and at about 8.00p.m. on 11.6.1999 a burnt patient viz. Pratima Debnath, a female Hindu aged about 22 years was brought to the casualty department. The patient sustained 90% body surface burnt. 4. PW 4, Dr. Parthapratim Dutta, who attended the deceased on 11.6.1999 has deposed that he was in casualty department of Assam Medical College Hospital and at about 8.00p.m. on 11.6.1999 a burnt patient viz. Pratima Debnath, a female Hindu aged about 22 years was brought to the casualty department. The patient sustained 90% body surface burnt. The history of burn was due to stove burst as stated by her husband in his house at around 4.30 p.m. on 11.6.1999. The description of burn as deposed is that misced flame burn 90% body surface. Smell of kerosene oil was found. Nature of injury was grievous. Patient was admitted in plastic surgery department on 11.6.1999 at 8 p.m. The patient expired due to cardiorespiratory failure on 16.6.1999 at 4 a.m. Ext. 1 was the medical report given by him and Ext. 1(1) was his signature. Patient gave a dying declaration which was recorded by him on 11.6.1999 at 11 p.m. Ext. 2 was the dying declaration of the patient (Pratima Debnath) and Ext. 2(1) was his signature. PW 4 has further deposed that original dying declaration of the patient is now available with the bed-head ticket of the patient in Medical College Hospital record. Ext. 2 is copied from the bed-head ticket (with objection by defence). At the time of recording dying declaration, the patient could speak. PW 4 was cross-examined in extensively. On a query to this witness as to how he took up the case, his reply was that he took up the case as Medico legal. He performed his duties based on Medico Legal Jurisprudence written by Dr. Modi. While the patient was brought to the Medical College casualty department, patient sustained 90% injuries and definitely not 95% injuries. In applying Rule 9 in Medico Jurisprudence he stated mat when somebody sustained 90% injury the vocal organ will automatically soaked. If vocal organ is soaked, man cannot speak. In another question he replied that he knows how to write the dying declaration of the patient which is to be reduced in writing in the language of the patient, there is no scope for translation. Ext. 2 is not in original. There is no enclosure pertaining to dying declaration. Ext. 2 contains two parts. He explained that first part indicate certificate and 2nd part was the dying declaration of the patient. The patient spoke in Assamese. Ext. Ext. 2 is not in original. There is no enclosure pertaining to dying declaration. Ext. 2 contains two parts. He explained that first part indicate certificate and 2nd part was the dying declaration of the patient. The patient spoke in Assamese. Ext. 2 is not the exact copy of the original certificate. He signed the document (Ext. 2) on 23.7.1999. 5. The prosecution has examined the father of the deceased as PW 5, who deposed that on hearing the incident he had rushed to the place of occurrence in his son-in-law's house and saw that the accused was ready to take the deceased to the hospital. Initially the deceased was taken to Moran Nursing Home where from she was taken to Medical College, Dibrugarh. When he met her she was able to speak and when he had asked how the fire caught her, she replied that when she had filled the stove with kerosene oil, a little oil had spilled on the ground and that was the reason that the accused had beaten her and when she fell down, her husband poured kerosene oil over her person and set on fire. There-after when she tried to come out, her husband pushed her into the house forcefully. He has further stated that the same statement was narrated by the deceased when asked by the doctor. The doctor when questioned the accused, the accused confessed in presence of the doctor as well as before him that he had set fire to her. In cross-examination PW 5 had stated that police recorded his statements after 7/8 days of the occurrence. In his statement before police he had not stated that the girl was burnt fully but the whole body was burnt. However, miswitness had deposed that the victim girl made her statements in Bengali and other suggestions put to him have been denied. 6. PW 6 is the brother of the deceased who had lodged the FIR, Ext. 3 and his version is hearsay. 7. PW 7 is the mother of the deceased in whose presence the accused confessed that he had burnt the girl by setting her on fire. In cross-examination PW 7 had deposed that when the accused confessed that it is he who had set fire on the deceased, Saraswati Purkayastha, doctor and she herself were present. Other suggestions put to her have been denied. 8. In cross-examination PW 7 had deposed that when the accused confessed that it is he who had set fire on the deceased, Saraswati Purkayastha, doctor and she herself were present. Other suggestions put to her have been denied. 8. Another witness PW 8, Saraswati Purkayastha, examined by the prosecution has corroborated the statement of PW 7 to the effect of confession of guilt by the accused. She stated that there were many people when the accused had confessed but could not say who else were present at that time. 9. The prosecution has examined PW 11 Dinesh Chandra Dihingia, ASI Barbari Police Outpost who held the inquest in presence of one Magistrate Smt. Binita Pegu on being informed by MRD Officer AMCH by a written application that a women byname Pratima Debnath died by getting burnt in fire. Ext. 4 is the inquest report and Ext. 4(1) is his signature. Ext. 4(2) is the signature of Binita Pegu. 10. The Investigating Officer Tankeswar Borah has been examined as PW 12 by the prosecution. PW 12 has deposed that on receipt of the Ejahar Ext. 3 he was asked to investigate the case on being informed that the injured has already been admitted at AMCH, Dibrugarh. Accordingly, he went to medical college on 12.6.1999 and found the injured Pratima Debnath @ Mamun on the bed No. 19. He tried to record her statement, however, due to injuries sustained he could not do so. But he came to know that the doctor has already recorded the dying declaration of the victim. Thereafter on the following day i.e. 13.6.1999 he recorded the statement of the injured and from the statements of the injured he came to know that on 11.6.1999 around 4.00 p.m. while she was filling the stove with kerosene, a little kerosene spilled on the ground and quarrel took place between her and the husband and immediately the husband poured kerosene on her person and set fire and as a consequence the fire burnt the whole body. Ext. 5 is the statement of the victim. Ext. 5(1) is the note in connection with the thumb impression which the injured had put before him. Ext. 5(2) is his signature. This witness recorded the statements of three other witnesses in the medical college itself. Ext. 5 is the statement of the victim. Ext. 5(1) is the note in connection with the thumb impression which the injured had put before him. Ext. 5(2) is his signature. This witness recorded the statements of three other witnesses in the medical college itself. Thereafter he came to know that the accused was present at Sadar Police Station, Dibrugarh and accordingly he went to Sadar Police Station and took the accused to the place of occurrence at Moran on being arrested. On 14.6.1999 he had once again gone to the place of occurrence alongwith the accused and on entering his rented house he found it smelling too much of kerosene and also found an old stove and an old jerrycane containing kerosene whereupon he seized those two items in presence of witnesses. Material Ext. 1 is the old kerosene stove and material Ext. 2 is the old jerrycane containing kerosene oil. Ext. 6 is the seizure list. Ext. 6(1) is his signature and Ext. 6(2) is the signature of the accused. He also examined the witnesses. The injured succumbed to the injuries and Section 302, IPC was added and thereafter submitted the charge-sheet against the accused. In the cross-examination he deposed that on 12.6.1999 he had been to AMCH Dibrugarh and on the same day he came to know that a dying declaration had already been recorded. On his second visit on 13.6.1999 he had recorded the statements of parents of the injured and he took the statement of the injured vide Ext. 5. He has further deposed that he had taken the statement of Swaraswati Purkayastha, PW 8. In her statement she had stated that she only guessed that Khukan Debnath had set fire to his wife. 11. The Doctor, who had performed the post-mortem examination on the dead body of the deceased was examined as PW 13, In his deposition he had stated that he was serving as a Demonstrator in the Forensic Medicine Department, Assam Medical College, Dibrugarh. On 16.6.1999 he had performed a post-mortem examination over the dead body of Pratima Debnath and found on removal of the bandage third to fourth degree dermo-epidemal flame burn present on face, all sides of the neck, all sides of the thorax and abdomen, peritoneum, all sides of the both upper and lower limbs. The scalp hairs were burnt partially. The bum areas involving dermo-epidemal layers destroyed completely. The scalp hairs were burnt partially. The bum areas involving dermo-epidemal layers destroyed completely. Approximately 95% of the body surface involved in burn. The burn areas were differentiated from healthy area by a red line of inflammatory zone. In his opinion, cause of death was shock, resulting from ante-mortem flame bum injury involving of approximately 95% of body surface and of dermo-epidemal severity. In his cross-examination questions were put to him to which he deposed that vocal cord was healthy. Trachea and larynx are included with the vocal cord. In regard to question relating to talking of the deceased, he had deposed that there is no definite rule whether the deceased was able to talk or not and he had not considered this from single book. His opinion is formal and he has consulted medical jurisprudence of Dr. Modi, Dr. Reddy, Dr. Parikh, Dr. Apurba Nandi and Dr. Mukherjee and denied the suggestions that the authors mentioned above did not opine that an injured of 95% flame burn injury will not be able to talk. He used the word 'approximately' in showing the degree of burn (95% Approximately) and he denied that a person having 95% flame burn injury cannot-be able to speak. 12. Heard Mr. P. Bora, learned Counsel appearing for the appellant. Also heard Mr. K.A. Mazumdar, learned Additional PP, Assam, for the respondent-State. 13. Learned Counsel appearing on behalf of the appellant has submitted that : (i) None of the two dying declaration vide Ext. 2 and Ext. 5 being reliable the learned trial Judge committed a serious error in recording a judgment of conviction against the appellant in view of the deposition of PW 4 Dr. Parthapratim Dutta who deposed that a patient having 90% of the burn injury, the vocal organ will be automatically choked and therefore dying declaration recorded by PW 4 is not safe to rely upon in absence of certificate that the deceased was in a fit mental condition to make the dying declaration; (ii) The second dying declaration (Ext. 5) recorded by PW 12 Tankeswar Borah on 13.6.1999 and taking her thumb impression on the recorded statement of dying declaration would belie the entire prosecution story in view of the deposition of Dr. R.K. Gogoi, that there was surgical bandage both upper and lower limbs and the inquest report Ext. 5) recorded by PW 12 Tankeswar Borah on 13.6.1999 and taking her thumb impression on the recorded statement of dying declaration would belie the entire prosecution story in view of the deposition of Dr. R.K. Gogoi, that there was surgical bandage both upper and lower limbs and the inquest report Ext. 4 which would go to show that there was bandages on both the hands and therefore the judgment of conviction would not be safe basis on the aforesaid dying declaration; (iii) The dying declaration recorded by PW 4 was in Assamese whereas PW 5 Jogesh Debnath has deposed that her statement was recorded in Bengali and therefore a doubt is created as to whether the deceased understood the implication of the statements made by her; (iv) Admittedly there was no eye-witness to the incident and therefore the judgment of conviction cannot be sustained in view of infirmities in recording two dying declarations; (v) The witnesses examined by the prosecution are highly interested witnesses and the confession alleged to have been made before the interested witnesses would hit under Section 27 of the Evidence Act; (vi) The learned trial Judge has failed to apply its mind in regard to various infirmities in the prosecution case and therefore submits that the interference is called for in the judgment of conviction recorded against the appellant. 14. The following decisions have been referred in support of the argument advanced by the counsel of the appellant. (1) Paparambaka Rosamma and Ors. v. State of A.P. 1999 CriLJ 4321 ; (2) Ramesh Prasad v. State of Bihar 2000 CriLJ 503 ; (3) Laxmi (Smt.) v. Om Prakash and Ors. 2001 CriLJ 3302 ; (4) Arvind Singh v. State of Bihar 2001 CriLJ 2556 ; (5) Panchdeo Singh v. State of Bihar 2002 CriLJ 973 and (6) Laxman v. State of Maharashtra 2002 CriLJ 4095. 15. On the other hand, the learned Public Prosecutor, Assam countering the argument advanced has taken us through the entire relevant depositions of the witnesses and the dying declarations recorded, more particularly the cross-examination of PW 13, Dr. R.K. Gogoi denying to the effect that an injured of 95% flame burn injury cannot be able to talk and therefore supported the judgment of conviction and urged before us that it is not a fit case for reversal. 16. Mr. R.K. Gogoi denying to the effect that an injured of 95% flame burn injury cannot be able to talk and therefore supported the judgment of conviction and urged before us that it is not a fit case for reversal. 16. Mr. Mazumdar has placed reliance upon the following decisions : (1) Heeralal Yadav v. State of M.P. and Ors. 2006 CriLJ 3301 and (2) Lingu Orang v. State of Assam 2006 (4) GLT 95. 17. There is no dispute that apart from the two dying declarations, no substantive evidence has been brought on record to prove the prosecution case. The other points as urged has no relevance to the merit of the case and the Court is not going to consider the other points being without substantive piece of evidence and infirmities relating to extra-judicial confession. The same cannot be a basis for conviction except the two dying declarations. Therefore we will at the outset consider as to whether the said two dying declarations are trustworthy in nature in upholding the conviction. The first dying declaration was recorded byPW4Dr. Partha Pratim Dutta vide Ext. 2 and Ext. 1 is report of Medical Officer on examination of the patient. Ext. 1 would go to show that alleged H/O burns due to stove burst as said by husband in her husband's house at around 4.30 p.m. on 11.6.1999 and the part of body where wound inflicted, identification mark and injury was grievous and smell of kerosene. 18. We have gone through the deposition of PW 4 Dr. Partha Pratim Dutta who has deposed that the patient sustained 90% body surface burnt and the patient was admitted in Plastic Surgery Department on 11.6.1999 at 8.00 p.m. and expired due to cardiorespiratory failure on 16.6.1999 at 4 a.m. The patient gave a dying declaration which was recorded by him on 11.6.1999 at 11 p.m. vide Ext. 2, which is quoted hereunder for better appreciation Dying declaration--Certified that the enclosed dying declaration of Mrs. Pratima Debnath was taken by me after verifying her State of consciousness and fully responding to my verbal commands with the witness of P.R. Basu Singh Tousi, Intern, AMCH and Dr. Ripon Chutia, Intern, AMCH. Mrs. Pratima Debnath has said in front of the above-mentioned witness that,--at around 3.30 p.m. on 11.6.1999 Mr. Khukan Debnath, husband of Mrs. Pratima Debnath was taken by me after verifying her State of consciousness and fully responding to my verbal commands with the witness of P.R. Basu Singh Tousi, Intern, AMCH and Dr. Ripon Chutia, Intern, AMCH. Mrs. Pratima Debnath has said in front of the above-mentioned witness that,--at around 3.30 p.m. on 11.6.1999 Mr. Khukan Debnath, husband of Mrs. Pratima Debnath quarreled with her and poured kerosene over her body and set her on fire. She also said that her husband Mr. Khukan Debnath did not allow her to go out of the house after setting her on fire. She also says she has been physically assaulted on various occasions earlier. 19. The other dying declarations vide Ext. 5 recorded by PW 12 Tankeswar Bora on 13.6.1999 is quoted hereunder : My name and address as given at above are true. Now, I am 19 years old. Shri Khukan Debnath a resident of Moranhat, Ushapur married me since 2 1/2 years ago. I have no pregnancy. At present I am living with my husband at the rented house of Munu De at the Mozidpatty, Moran. My husband is a salesman at a cloth house. Since after our marriage, my husband used to beat me often. He used to asks me to fetch money from my parental house, but as my father lives on daily wage he lived in want of money. Around 4 p.m. on 11.6.1999 when I filled the stove with kerosene oil, a little oil spilled on the ground for which he picked a quarrel with me and then pouring kerosene oil over my body and then set fire. I raised hue and cry and came out of the house, but fire burn my whole body. On the recorded statement of dying declaration T.I. was taken of the injured. 20. The dying declaration recorded by PW 4 Dr. Partha Pratim Dutta vide Ext. 2 has two parts; first part speaks of the mental capacity and the second part relates to the dying declaration of the deceased. Ext. 2 was not produced in original though a copy was produced and proved. 20. The dying declaration recorded by PW 4 Dr. Partha Pratim Dutta vide Ext. 2 has two parts; first part speaks of the mental capacity and the second part relates to the dying declaration of the deceased. Ext. 2 was not produced in original though a copy was produced and proved. The dying declaration was recorded in Assamese in presence of two witnesses and the prosecution have failed to prove the dying declaration in original and the witnesses to the dying declaration have also not been examined and therefore it would be unsafe to convict the accused on the basis of dying declaration recorded by PW 4 Ext. 2. 21. The other dying declaration is Ext. 5, recorded by PW 12 Tankeswar Borah. There is no dispute that the dying declaration recorded by a police officer is admissible in evidence but with great care and caution, if accepted. It is also admitted that the mental status of the deceased was fit to give her statement as recorded by PW 4 who has further deposed that her eye and tongue was not burnt and she was able to see. Though PW 4 has deposed that when somebody sustained 90% injury, the vocal organ will automatically soaked. But in his deposition, Dr. R.K. Gogoi, i.e. PW 13 who performed the autopsy has opined that vocal cord was healthy. Trachea and Larynx are included with the vocal cord and the author of book referred in his deposition has never ruled that 95% flame burn injury will not be able to speak. The deposition of PW 8 can be referred to as regard the mental status of the deceased who deposed that she saw the deceased talking with the doctor. Therefore the dying declaration recorded by PW 12, Ext. 5 is admissible under Section 32 of the Evidence Act. 22. Both the witnesses PW 4 and PW 12 who recorded the dying declaration satisfied themselves that the deceased gave her statement after understanding the effect thereof, though the dying declaration recorded by PW 4 i.e. Ext. 2 has not been accepted being not produced in original and due to non-examination of the witnesses to the dying declaration (Ext. 2). 23. Both the witnesses PW 4 and PW 12 who recorded the dying declaration satisfied themselves that the deceased gave her statement after understanding the effect thereof, though the dying declaration recorded by PW 4 i.e. Ext. 2 has not been accepted being not produced in original and due to non-examination of the witnesses to the dying declaration (Ext. 2). 23. It maybe noticed that while answering the question which was posed to the injured, namely, when the incident happened, who did it etc., in answer thereto, she had replied that when she filled the stove with kerosene, a little bit kerosene spilled over the ground and quarrel took place between her with her husband. The husband poured kerosene oil and lit the fire which evidently would mean that no outsider was present. 24. It is by now well settled principle of law that a conviction can be based on the dying declaration alone, subject of course, to the satisfaction of the Court that the same is trustworthy. 25. In Ravi Kumar @ Kutti Ravi v. State of Tamil Nadu reported in (2006) 9 SCC the Apex Court has held as under : 5....The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The Court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The Court has also to see and ensure that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration without any further corroboration. Normally, therefore, the Court in order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence. While holding thus, the Hon'ble Apex Court has referred the decisions in Paniben v. State of Gujarat 1992 CriLJ 2919 ; Uka Ram v. State of Rajasthan 2001 CriLJ 1821 ; Laxman v. State of Maharashtra 2002 CriLJ 4095 ; P. V. Radhakrishna v. State of Karnataka 2003 CriLJ 3717 ; State of Maharashtra v. Sanjoy (2004) 13 SCC 314 and Muthu Kutty v. State (2005) 9 SCC 113 , wherein the above well settled principles have been recognized and reiterated by the Apex Court. 26. The recent decision of the Apex Court reported in Sher Singh and Anr. v. State of Punjab AIR 2008 SCW 1437, is in the similar line of the judgment referred to the above. In the said judgment the Apex Court has held that in case of dying declaration since the accused has no power to cross-examination, the Court would insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. In Sher Singh (supra), the Apex Court has held that certificate of doctor as to fitness of declarant is not always essential. Requirement of certificate of doctor is only a rule of caution. What is essential is that the person recording the dying declaration must be satisfied that the deceased in a fit state of mind. In the instant case if we accept the testimony of PWs 2 and 8 it would come to the conclusion that the deceased was speaking to the doctor after admission into AMCH, Dibrugarh and therefore dying declaration can safely be acted upon, where accused was implicated as the person who had poured kerosene on the body of the victim and set her on fire. 27. 27. Learned Counsel appearing on behalf of the appellant has however, strongly relied upon the decisions referred to above and submitted that the dying declaration has not been proved as required under the law to sustain the conviction. Reference has been made to Paparambaka Rosamma (supra), wherein the Apex Court has held that the doctor's certificate not only about consciousness but also but about fit state of mind of the deceased that existed before recording of dying declaration is essential. In the case in hand Ext. 2 has its two parts. 1st part relates to mental state of mind whereby and whereupon the doctor recorded the dying declaration which would go to show that the deceased was capable of giving the dying declaration though Ext. 2 has not been accepted, the original being not produced. Ext. 5 is clear that the deceased was capable of giving her statement. Therefore the case referred would not help the appellant. The other cases referred to and reported in are on the same line which do not help the appellant in view of the statement of P W 5 and PW 8. Even if the Court do not accept the deposition of PW 5 being interested witness, the deposition of PW 8 corroborates the evidences of PW 12 that the deceased was capable of mentally fit to give the dying declaration. Therefore this Court holds that the dying declaration do not suffer from the rule of law that it cannot form the sole basis of conviction unless it is corroborated as held by the Apex Court in Ravi Kumar (supra). 28. There cannot be any doubt, whatsoever that the appellant had not been able to prove his alibi. He did not examine any witness to support his case. He did not offer any explanation whatsoever as to how the fire caught on the person of the deceased as she was present alone in his rented house as alleged by him. Though after the occurrence he had hired a taxi to take the injured to Moran Nursing home as stated by PWs 5 and 7. He did not offer any explanation whatsoever as to how the fire caught on the person of the deceased as she was present alone in his rented house as alleged by him. Though after the occurrence he had hired a taxi to take the injured to Moran Nursing home as stated by PWs 5 and 7. In a situation of this nature where admittedly the husband and the wife were residing in a rented house and the prosecution having been able to prove that at the time of occurrence it was he and the deceased alone who were residing in the house, it was for the appellant to prove as to how the deceased had met her death. 29. The cause of death is not in dispute. What was contended by the appellant was that the death was not homicidal in nature but it was a result of an accident. Yet again nothing has been brought on record to show that the death was a result of any accident. 30. The fact remains that kerosene was put on the body of the deceased and the fire was lit. We thus cannot accept the plea of the learned Counsel appearing on behalf of the appellant that there were serious infirmities in recording the dying declaration and the dying declaration cannot be the basis for conviction. The prosecution has proved that after burn injury the mental state of mind of the deceased was fit as proved by the prosecution witnesses. The appellant must be held to be aware that such an act of pouring kerosene on the body of the deceased and set fire was likely to cause death in the ordinary course of nature. Therefore we conclude with the following words--"Nemo moriturus Praesumitur mentire i.e. a man will not meet his maker with a lie in his mouth." The philosophy in law underlying admittance in evidence of dying declaration has been proved by the prosecution in the instant case with cogent and reliable witnesses. In the result, for the reasons mentioned hereinabove we do not find any merit in this appeal. The appeal is dismissed accordingly. 31. Send down the records. Appeal dismissed.