Judgment ( 1. ) THIS judgment shall also govern the disposal of connected Criminal Appeal No. 138 of 2008 (Koushal Prasad Jaiswal v. The State of M. P.) filed on behalf of the accused. ( 2. ) THE accused has been convicted under Section 302, I. P. C. and has been sentenced to death by the impugned judgment dated 19-12-2007 hence this reference has been made by learned 12th Additional sessions Judge, Fast Track Court, Jabalpur under Section 366 of the Code of Criminal procedure for confirmation of the sentence of death sentence awarded to the accused. Simultaneously the accused has also filed criminal Appeal No. 138/2008 assailing the impugned judgment of conviction and order of sentence passed against him in sessions Trial No. 167/2007. Both the matters are being disposed of by this common judgment. ( 3. ) IN brief the case of prosecution is that sanjay Shrivastava (hereinafter referred to as the deceased) was serving on the post of councilor in the Department of" Microbiology of Medical College, Jabalpur. His duty was to test the blood of patient suffering from HIV disease as well as to distribute requisite medicines to those patients ). The blood of the accused was examined by the deceased on 4-1-2007 in order to ascertain whether he is a patient of HIV, however, on examining his blood, the result was found to be negative. The blood of the accused was also tested on 27-2-2007 in the Laboratory, namely, Regional Medical Research Centre for Tribals and according to the report of said laboratory also, the accused was not found to be the patient of HIV, even then, the accused was approaching, contacting and insisting the deceased again and again to provide medicines of HIV, but every time deceased was refusing because the accused was not the patient of HIV. ( 4. ) ON the date of incident, viz. 6-3-2007 the deceased was discharging his duty and was in his chamber in the Medical College, jabalpur, nearby him Rama Swamy Naidu alias David, who is a technician and was serving under the deceased was also sitting adjoining to the chamber of the deceased. One retired doctor S. R. Dubey was also sitting nearby the deceased as he brought a sample of blood of one patient for its examination. It is said that at 11. One retired doctor S. R. Dubey was also sitting nearby the deceased as he brought a sample of blood of one patient for its examination. It is said that at 11. 30 a. m. one constable, namely, Mohanlal Yadav also came to the office of the deceased with a sample of blood of one prisoner and was consulting the deceased. At that juncture it is said that accused carrying a plastic container having kerosene in it arrived there and by pouring kerosene threw the burning matchstick on the deceased, as a result of which the deceased received burn injuries. The accused thereafter ran away from the place of occurrence although he was chased by the deceased up to some distance in burning condition. Thereafter the employees of the hospital doused the water on the deceased to extinguish the fire. Immediately the deceased was shifted to Ward No. 11 of the medical College where he was examined by dr. Mukesh Agrawal,. who found the deceased 70 to 80% burnt. On the same date at 11. 50 hrs. Sub-Inspector S. L. Chandrol of Police Station Garha received a telephonic message from Medical College, Jabalpur that a person has been ablaze as a result of which sub-Inspector rushed to the Medical college where he was informed about the incident and was told that the deceased is undergoing treatment in Ward No. 11. ( 5. ) SUB-INSPECTOR S. L. Chandrol thereafter wrote Dehati Nalishi which was lodged by the deceased and his case-diary statement was also recorded by the Investigating officer. Immediately, the Executive magistrate was informed and was directed to arrive at Medical College to record the dying declaration of the deceased, as a result of which Executive Magistrate R. L. Vansh came and recorded the dying declaration of the deceased in the hospital. ( 6. ) IN furtherance to its investigation the investigating agency prepared spot map; seized burnt articles from the place of occurrence; arrested the accused and registered a case against him under Section 307, i. P. C. Since the burn injury was found on the thumb of the hand of the accused, he was sent to Medical College where he was examined by Dr. Manju Agrawal. The place of occurrence was examined by Scientific officer of Scene of Crime Unit, FSL, Jabalpur and photographs were taken by said Scientific Officer. ( 7. Manju Agrawal. The place of occurrence was examined by Scientific officer of Scene of Crime Unit, FSL, Jabalpur and photographs were taken by said Scientific Officer. ( 7. ) DURING the course of treatment, when dr. Nityanand Pandey found that the condition of the deceased is deteriorating, he advised to refer the deceased to Higher centre, as a result of which the deceased was sent to Delhi on 8-3-2007 where he was treated at Safdarjang Hospital and where ultimately deceased breathed his last on 12-3-2007. On account of death of the deceased the case was altered to Section 302,i. P. C. The investigating agency also recorded the statement of the witnesses. After the investigation was over, a charge sheet was submitted in the competent Court, which on its turn committed the case to the Court of session, from where the case was received by the trial Court for its trial. ( 8. ) LEARNED Trial Judge on going through the averments made in the charge-sheet framed charge punishable under Section 302, I. P. C. against the accused. Needless to emphasis, the accused adjured his guilt and pleaded complete innocence. ( 9. ) IN order to prove its case prosecution examined as many as 15 witnesses and placed Exs. P-1 to P-30, the documents on record. ( 10. ) THE defence of the accused is of false implication and the same defence he set-forth during the cross-examination of the prosecution witnesses as well as in his statement recorded under Section 313, Cr. P. C. ( 11. ) LEARNED trial Judge after appreciating and marshalling the evidence placed on record came to hold that the accused did commit the offence for which he was charged and eventually convicted him and passed the capital sentence by the impugned judgment. ( 12. ) IN this manner the present reference has been referred by learned Trial judge to this Court. The accused has also simultaneously preferred appeal under section 374 (2), Cr. P. C. assailing the impugned judgment of conviction and order of sentence passed against him by the Trial Court. ( 13. ( 12. ) IN this manner the present reference has been referred by learned Trial judge to this Court. The accused has also simultaneously preferred appeal under section 374 (2), Cr. P. C. assailing the impugned judgment of conviction and order of sentence passed against him by the Trial Court. ( 13. ) THE contention of Shri H. S. Dubey, learned counsel appearing for the accused is that the prosecution has failed to prove its case beyond reasonable doubt and, therefore, learned trial Court has erred in convicting the accused for the offence punishable under Section 302, I. P. C. Learned counsel further submits that an application under Sections 54, 328 and 335, Cr. P. C. was filed on behalf of the accused on 22-6-2007 praying therein that accused be examined by Medical Board in order to ascertain whether he is of unsound mind and if that is the position, according to learned counsel, it was incumbent upon the Trial court to get the accused examined by medical Board in order to ascertain whether he is of unsound mind or not. Since this has not been done, the conviction of accused is bad in law. His next contention is that since the accused was not known to the eye-witnesses earlier to the incident, it was incumbent upon the investigating agency to hold a test identification parade and since admittedly no test identification parade has been conducted, the case of prosecution becomes highly suspicious. It has also been propounded by the learned counsel that looking to the testimony of Investigating officer S. L. Chandrol (PW-13), the arrest of the accused is highly suspicious. Lastly and in the alternative, it has been submitted by the learned counsel that as per the testimony of Autopsy Surgeon Dr. Yogesh Tyagi (PW-6) the deceased died due to septicemic shock, and therefore, the case would not rest under the ambit and sweep of Section 302, i. P. C. and at the most it would be under section 326, I. P. C. In support of his contention, learned counsel has placed reliance on the decision of the Supreme Court B. N. Kavatakar and another v. State of karnataka, 1994 Supp (1) SCC 304. ( 14. ( 14. ) ON the other hand, Shri Aseem Dixit, learned Public Prosecutor has argued in support of the impugned judgment and has submitted that the accused, despite he was not a patient of HIV, was making demand again and again to the deceased to provide him medicine of HIV and when repeatedly it was refused by the deceased, on the fateful day he threw kerosene and ablaze the deceased. Thus for no rhyme or reason it can be said that the accused has not committed the offence punishable under Section 302, i. P. C. or has committed some lesser offence. In support of his contention learned public Prosecutor has placed heavy reliance on the decision of the Supreme Court State of Madhya Pradesh v. Ram Prasad, AIR 1968 sc 881 . ( 15. ) BY putting a deep dent on the contention of learned counsel for the accused that without holding any inquiry in respect to the unsoundness of mind of the accused, it has been submitted that such a request was never made on behalf of the accused when he was brought before the Magistrate for remand purpose, further, when the charge was framed against him and also on several other dates during the trial, no such application was filed. It has also been contended by learned Public Prosecutor that when the case was fixed for recording the evidence of prosecution witnesses on 22-6-2007, on that date such an application was submitted which has been rightly rejected by the learned Trial Court on 25-6-2007. The contention of learned Public prosecutor is that the learned Trial Court did not notice the accused to be of unsound mind from his behaviour and he was found to be a normal man, therefore, if the application would have been allowed, the same would be a futile exercise. ( 16. ) BY inviting our attention to para 69 of the impugned judgment it has been submitted by learned Public Prosecutor that earlier to the present incident a case under section 302 and 307 IPC at Crime No. 157/2007 was also registered against the accused at Police Station Churhat, District Sidhi with the allegation that he ablaze one Vishwanath kevat, son of Parmeshwardeen Kevat by sprinkling petrol on him. Since the accused was absconding as a result of which during the trial of present case his arrest was also formally made for the offence registered against him at Crime No. 157/2007 of police Station Churhat, District Sidhi. ( 17. ) ON the point of quantum of sentence it has been submitted by the learned Public prosecutor that in the present case one innocent public servant who was enjoying high position of Councilor in the Medical College was ablaze by the accused in brutal manner, therefore, the act of accused would come under the purview of rarest of rare case. In this context our attention has been drawn to the decision of the Supreme Court renuka Bai @ Rinku @ Ratan ,and Anr. v. State of Maharashtra AIR 2006 SC 3056 . On these premised submissions, it has been argued and prayed by the learned Public prosecutor that death reference be accepted by dismissing the appeal filed on behalf of the accused. ( 18. ) HAVING heard learned counsel for the parties, we are of the view that the death sentence awarded to the accused, in the peculiar facts and circumstances is not at all warranted and the sentence of life imprisonment would be the appropriate punishment. ( 19. ) IN the present case there is dying declaration Ex. P-2 of the deceased recorded by Executive Magistrate R. L. Vansh (PW-2)on the date of incident at 12-05 p. m. without any delay and within 30 to 40 minutes of the incident. Apart from the written dying declaration, a Dehati Nalishi Ex. P-21 was lodged by the deceased in Ward No. 11 of the Medical College when he was admitted after the incident and this Dehati Nalishi was registered at 12 hrs. Thereafter 161 Cr. P. C. statement of the deceased was also recorded vide Ex. P. 22. According to us, these two documents would also come under the ambit and sweep of dying declaration of the deceased as envisaged under Section 32 (1) of the Evidence Act. We shall now examine hallmark of these dying declarations. ( 20. ) THE dying declaration has been recognized by the law as a relevant piece of evidence under Section 32 of the Evidence Act. We shall now examine hallmark of these dying declarations. ( 20. ) THE dying declaration has been recognized by the law as a relevant piece of evidence under Section 32 of the Evidence Act. The doctrine of dying declaration is based on maxim "nemo moriturus praesumitur mentire" which would mean that a person would not like to meet with his Maker having lie in his mouth. Section 32 (1) of the evidence Act has been scanned for several times by the Supreme Court and now it has become a firm law that if the dying declaration is clear, cogent and trustworthy, no corroboration of it is required. The dying declaration in itself is having high credential value and having its own weightage. True, the accused has no opportunity to cross examine the maker of the dying declaration, therefore, before placing reliance on it, the court is required to see whether the same is worth reliable and if there is any suspicion, as a rule of prudence corroboration is needed. At the same time, we may mention here that if the dying declaration inspires full confidence of the Court in its correctness, there is no bar in the eye of law not to convict a guilty person solely on the basis of dying declaration. In the latest pronouncement of the Supreme Court Sunder Lal v. State of Rajasthan, (2007) 10 SCC 371 : 2007 Cri LJ 3281 Dr. Arijit Pasayat, J. who spoke for the Bench, placed reliance on the earlier decision of Supreme Court Paniben v. State of Gujarat, (1992) 2 SCC 474 : (1992 cri LJ 2919) and has summed up the principles in para 12 on page 376 as under :- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu raja v. State of M. P. (1976) 3 SCC 104 : AIR 1976 SC 2199 . (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (see state of U. P. v. Ram Sagar Yadav (1985) 1 scc 552 : AIR 1985 SC 416 and Ramawati devi v. State of Bihar (1983) 1 SCC 211 : air 1983 SC 164 . (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (see state of U. P. v. Ram Sagar Yadav (1985) 1 scc 552 : AIR 1985 SC 416 and Ramawati devi v. State of Bihar (1983) 1 SCC 211 : air 1983 SC 164 . (iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Rama-chandra Reddy v. Public Prosecutor ( (1976)3 SCC 618 ) : AIR 1976 SC 1994 . (iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M. P. (1974) 4 SCC 264 : AIR 1974 sc 332 . (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M. P. , 1981 Supp SCC 25 : AIR 1982 SC 1021 ). (vi) A dying declaration which suffers from Infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U. P. (1981) 2 SCC 654 ). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati naidu, 1980 Supp SCC 455 : AIR 1981 SC 617 . (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar, 1980 Supp 769) : AIR 1979 sc 1505 . (ix) Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M. P. , 1988 Supp SCC 152 : AIR 1988 SC 912 . (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See Nanhau Ram v. State of M. P. , 1988 Supp SCC 152 : AIR 1988 SC 912 . (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U. P. v. Madan mohan (1989) 3 SCC 390 ) : AIR 1989 SC 1519 . (xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of maharashtra (1982) 1 SCC 700 : AIR 1982 sc 839 . The Supreme Court thereafter in para 13 has laid down the law of land that the dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no local impediment to make it the basis of conviction, even if there is no corroboration. The supreme Court placed reliance on its earlier decision Gangotri v. State of U. P. 1993 supp (1) SCC 327 : 1992 Cri LJ 1290 ( 21. ) ON the basis of above said elucidated principles of law on the point laid down by the Supreme Court, we shall now examine the credibility of the alleged dying declaration in the present factual scenario. ( 22. ) EXECUTIVE Magistrate R. L. Vansh (PW-2) has specifically stated that he arrived at Ward NO. 11 of the Medical College, jabalpur where the deceased was undergoing the treatment and after obtaining certificate of the doctor, who certified that the deceased is fit to give dying declaration, he started writing the dying declaration at 12-05 hrs and the same was over at 12. 35 p. m. The Executive Magistrate specifically stated that deceased told that he is serving on the post of Medical Councilor in the Medical college in HIV Testing Department. 35 p. m. The Executive Magistrate specifically stated that deceased told that he is serving on the post of Medical Councilor in the Medical college in HIV Testing Department. The accused who is resident of Sidhi and who often make demand of medicines of HIV and also C. D. 4, (a medicine of HIV) came to him and poured the kerosene and thereafter threw a burning matchstick on him as a result of which he received burn injuries. The deceased also stated that up-to certain distance he tried to catch the accused, but failed. On receiving burn injuries the deceased was screaming as a result of which staff members arrived there and they doused the water in order to extinguish the fire and thereafter the deceased was shifted to Ward no. 11 for the treatment. On being asked by the Executive Magistrate on the point of enmity, deceased firmly said that he is not having any enmity with the accused. This witness proved the dying declaration of the deceased Ex. P-2 which was recorded by him. On close scrutiny of the testimony of executive Magistrate R. L. Vansh (PW-2) as well as the dying declaration of the deceased ex. P-2 it is revealed that earlier to the incident the deceased examined the accused and did not find him to be a patient of HIV, though the accused was insisting him to provide C. D. 4, medicine but, the same was not being provided to the accused by the deceased. Because accused often met to the deceased earlier to the incident, therefore, the deceased has not only named the accused but has also stated about the vile act of throwing kerosene and setting the fire. ( 23. ) EXECUTIVE Magistrate R. L. Vansh (PW-2) was cross-examined at length but despite there being a roving cross examination over him he remains firm in his statement and nothing crept out from his testimony in order to disbelieve his evidence or the dying declaration Ex. P-2 recorded by him. The testimony of this witness is clear, cogent and trustworthy. In para 2 of his testimony, this witness has categorically stated that on being asked by this Witness to the deceased whether the deceased is having any enmity with the appellant, specifically the deceased answered that he had no enmity with him, but, the appellant is known to him. The testimony of this witness is clear, cogent and trustworthy. In para 2 of his testimony, this witness has categorically stated that on being asked by this Witness to the deceased whether the deceased is having any enmity with the appellant, specifically the deceased answered that he had no enmity with him, but, the appellant is known to him. Hence, it can safely be said that the deceased will not say untrue statement against the accused. The deceased himself was serving on the post of Councilor for last several years in the Medical College and must be knowing that he is at the verge of the death and must not be having any hope that he would survive, therefore, even if he was not having any enmity with the deceased, he was having opportunity to implicate appellant falsely by saying that he is having enmity with him, but, he spoke the truth why? Because he was anticipating that he has to meet the maker of human being and he should not meet with him with a lie in his mouth and, therefore, for this reason from the very begining much weightage is being given to the maxim "nemo morturus praesumitur mentire". The deceased clearly stated that appellant is well known to him as he often used to visit him to provide medicine CD-4 which is being given to HIV patient, but, specifically he stated in the dying declaration that he is not having any enmity with the accused and, therefore, this version of the deceased in his dying declaration is the strongest link against the accused that he threw kerosene on the deceased and ablaze him. The dying declaration Ex. P/2 has been duly proved by the testimony of this witness. ( 24. ) APART from the above said dying declaration (Ex. P/2), there are two more dying declarations of the deceased, they are in the form of Dehati Nalishi (Ex. P/21) and the statement of the deceased recorded under section 161 Cr. P. C. which is Ex. P/22. These two documents have been proved by investigating Officer S. L. Chandroul (PW-13 ). Specifically this witness in para 2 has stated that when he arrived in Ward No. 11, he found the deceased lying on the bed having burn injuries. The doctors were nearby him. P. C. which is Ex. P/22. These two documents have been proved by investigating Officer S. L. Chandroul (PW-13 ). Specifically this witness in para 2 has stated that when he arrived in Ward No. 11, he found the deceased lying on the bed having burn injuries. The doctors were nearby him. On being asked to the deceased, specifically it was told to him by the deceased that in between 11. 30-11. 45 a. m. appellant came in his office carrying a plastic container, he threw the kerosene and set the fire by throwing burning matchstick on him. Further deceased told to this witness that at the time of incident, one Constable mohanlal Yadav of Central jail was also present as he brought a sample of blood of some prisoner. Indeed, at that juncture the said constable was sitting there and the deceased was having interaction with him. This fact also finds place in the testimony of mohanlal Yadav (PW-4) as well as in the dying declaration (Ex. P-2 ). Thus, the presence of Mohanlal Yadav at the time of incident has been proved. The Investigating officer has proved Dehati Nalishi (Ex. P/21)which was lodged by the deceased and the case diary statement of the deceased (Ex. P/22 ). In the cross-examination para 20, this witness has admitted that he found deceased burnt severally, thereafter he wrote dehati Nalishi. Further in the cross-examination this witness has stated that the deceased was speaking in low tone. After noting down Dehati Nalishi which took 10-15 minutes to write, he rang to Tehsildar. Learned counsel for the appellant, tried to convince us that the distance between the collectorate Office where Tehsildar was on duty, is 10 kms. far away from the Medical college and the road is throughout busy and because the Investigating Officer has admitted that one would reach to the Medical college from the Collectorate within 15-20 minutes and therefore, according to learned counsel Dehati Nalishi Ex. P/21 and the dying declaration Ex. P/2 of the deceased are suspicious documents. True, the difference of 5-10 minutes is there because the dying declaration Ex. D/2 was written at 12. 05 p. m. and Dehati Nalishi Ex. P/21 was written at 12. 00 hours, but this itself would not be a ground to hold the dying declaration and the Dehati Nalishi to be suspicious documents which are otherwise proved. ( 25. True, the difference of 5-10 minutes is there because the dying declaration Ex. D/2 was written at 12. 05 p. m. and Dehati Nalishi Ex. P/21 was written at 12. 00 hours, but this itself would not be a ground to hold the dying declaration and the Dehati Nalishi to be suspicious documents which are otherwise proved. ( 25. ) WE also do not find any merit in the contention of learned counsel for the appellant that merely because; the deceased was severally burnt, he was not in a position to speak. At this juncture we would like to examine the testimony of Dr. Mukesh Agrawal (PW-1) who first examined the deceased and found him 70-80% burnt, but, firmly this witness has denied the suggestion put to him that the patient having 70-80% burn injuries would not be in position to speak. It has been stated by Executive Magistrate R. L. Vansh (PW-2) that in between 11-11. 30 a. m. he received information about the incident from Police Station Garha and im-mediately he proceeded to the Medical college where he reached within 15-20 minutes. In para 9 of his cross examination executive Magistrate has stated that before recording the dying declaration he directed all the persons except the doctors to go away. According to this witness, the doctor gave certificate on the dying declaration prior to and after recording to the statement. In very specific words in para 11 the Executive magistrate is saying that the deceased was giving answer in normal condition. Hence, from the testimony of S. L. Chandroul (PW-13)as well as from the evidence of Executive magistrate R. L. Vansh (PW-2) it is proved that at the time of recording of the dying declaration, Dehati Nalishi and 161 Cr. P. C. statement, the deceased was in a position to speak. ( 26. ) WE have already held hereinabove that if the dying declaration is clear, cogent and trustworthy, without any independent corroboration, the conviction can be accorded but in the present case there are eye witnesses also and the prosecution has examined three eye witnesses they are mohanlal Yadav (PW-4), Ramaswamy Naidu @ David (PW-5) and Dr. S. R. Dubey (PW-9 ). ) WE have already held hereinabove that if the dying declaration is clear, cogent and trustworthy, without any independent corroboration, the conviction can be accorded but in the present case there are eye witnesses also and the prosecution has examined three eye witnesses they are mohanlal Yadav (PW-4), Ramaswamy Naidu @ David (PW-5) and Dr. S. R. Dubey (PW-9 ). Before we x-ray the testimony of these eyewitnesses, it would be relevant to mention here that constable Mohanlal Yadav (PW-4)was present at the time of incident because he brought the sample of blood of a prisoner which was required to be tested by the deceased. Ramaswamy Naidu @ David (PW-5) is a Technician serving under the deceased and, therefore, his presence at the time of occurrence is quite natural and Dr. S. R. Dubey (PW-9) was present there as he also brought the sample of blood of one of his patient. ( 27. ) ON going through the testimony of pw-4, Mohanlal Yadav, it is revealed that when this witness was sitting in the chamber of the deceased and was having interaction with him at that juncture accused came there and took out a bottle, thereafter he threw the kerosene on the person of the deceased and threw the burning matchstick on the person of the deceased. This witness also tried to catch hold the appellant and chased him up to certain distance but could not succeed on account of crowd. Thereafter, this witness has stated that the persons who were present there, doused water in order to extinguish the fire. The deceased was thereafter transmitted to Ward No. 11 where he was admitted. In cross examination, this witness has stated that after the incident, he is seeing the appellant in the court only. We do not find any substance in the submission of learned counsel for the appellant that on account of not holding the test identification parade, no reliance can be placed on the statement of this witness as well as the statement of Dr. S. R. Dubey (PW-9 ). The incident had taken place in broad day light and these eye witnesses were having sufficient opportunity not only to see the appellant but to observe his act also. According to PW-4, Mohanlal Yadav, he also chased the appellant up to certain distance and thus he had sufficient time to see the face of the appellant. The incident had taken place in broad day light and these eye witnesses were having sufficient opportunity not only to see the appellant but to observe his act also. According to PW-4, Mohanlal Yadav, he also chased the appellant up to certain distance and thus he had sufficient time to see the face of the appellant. Therefore, even if the test identification parade was not conducted by the investigating agency, that in itself is no ground, in the peculiar facts and circumstances of the case, to hold that this witness is not worth reliable. Apart from this, in the dying declaration as well as in Dehati nalishi, the appellant has been named and, therefore, there was no necessity to hold the test identification parade. The test identification parade is generally conducted in order to get the clue to the investigating agency in identifying the accused. In the present case, when the appellant was sufficiently identified by his name, to us, in the peculiar facts and circumstances there was no necessity to conduct the test identification parade. After close scrutiny of the evidence of PW-4, Mohanlal Yadav, we do not find any infirmity in his testimony. ( 28. ) THE other eye witness is Ramaswamy naidu alias David (PW-5) who on the date of incident was serving on the post of technician under the deceased. This witness was sitting adjacent to the chamber of the deceased, at that juncture, according to this witness one S. R. Dubey (PW-9) came and sat nearby him as he (Dr. S. R. Dubey)brought a sample of blood which was to be tested. This witness has also stated that one police constable came there having blood sample of a prisoner and as soon as the said constable came out from the chamber, at that juncture accused arrived there and took out a can containing some liquid and threw it on the deceased and thereafter set the fire. The accused immediately fled from the place of occurrence although this witness chased to catch hold him, thereafter the employees of his department doused the water on the person of the deceased. This witness has further stated that he failed in catching hold the accused and because the deceased was ablaze, he came back in order to save the deceased. The accused immediately fled from the place of occurrence although this witness chased to catch hold him, thereafter the employees of his department doused the water on the person of the deceased. This witness has further stated that he failed in catching hold the accused and because the deceased was ablaze, he came back in order to save the deceased. In para 4 of his testimony this witness has stated that earlier to the incident also, the accused came to get his blood tested and he is acquainted with appellant by his face. This witness was cross-examined at length but despite there being a roving cross-examination over him, he remain embedded in his version. Learned counsel for the appellant could not point out that how and in what manner the statement of this witness should be disbelieved. In para 10 this witness has firmly denied the suggestion that the deceased was not in a position to speak although he was severally burnt. ( 29. ) THE last eye witness is Dr. S. R. Dubey (PW-9) who had categorically stated that on the fateful day, he along with his one HIV patient, namely, Muneem Driver came to the deceased to get the blood of his patient examined. According to this witness accused came there and took out a "kuppi" (flask) containing kerosene in it and threw the kerosene on the person of the deceased and thereafter lit the fire. Even for the sake of argument, the evidence of PW-4, Mohanlal yadav and S. R. Dubey (PW-9) is ignored (though it cannot be ignored since it is worth reliable), the evidence of Technician ramaswamy Naidu alias David (PW-5) is very much relevant and it has been carved out from his testimony that earlier to the incident also, this witness has seen the accused since he came repeatedly for the treatment as the accused was having certain doubts of the disease of HIV. ( 30. ) THE incident had taken place on 6-3-2007, firstly the deceased was treated at medical College at Jabalpur, however, when it was found that his condition is deteriorating he was shifted to Safdarjung hospital, New Delhi where he succumbed to burn injuries on 12-3-2007. The postmortem of the deceased was conducted by Dr. Yogesh tyagi (PW-6 ). During the post-mortem, the autopsy surgeon noticed the presence of smell of kerosene in the hair of the deceased. The postmortem of the deceased was conducted by Dr. Yogesh tyagi (PW-6 ). During the post-mortem, the autopsy surgeon noticed the presence of smell of kerosene in the hair of the deceased. The autopsy surgeon found head, neck, face, chest, back, abdomen, both palms, private part and both the thighs to be burnt. The burn injuries were deep and the deceased was 80% burnt. Except the burn injuries, no other injury Was found on the person of the deceased by the autopsy surgeon. The doctor opined that the death was due to septicemic shock on account of burn injuries. ( 31. ) MUCH emphasis has been put by Shri dubey, learned counsel for the appellant by placing reliance on the decision of Supreme court B. N. Kavatakar, (supra) and has argued that if the death has occurred on account of septicemia after six days of the incident, the offence would fall under the ambit and scope of Section 326 of IPC. The argument though at the first blush appears to be quite attractive, however, on deeper scrutiny found it to be devoid of any substance. In the case of B. N. Kavatakar (supra) the injuries were caused by lethal weapons by the accused of that case and on account of receiving injuries the deceased developed "septicemia" as a result of which he died and in that context it was held by the supreme Court that the offence would come under the ambit and sweep of Section 326 of IPC. In the present case, the deceased was infected by septicemia on account of burn injuries. We shall now examine what is "septicemia" and how it occurs. Septicemia is a systemic infection, usually caused by bacteria of various types contaminating a persons blood. When septicemia is not treated with the appropriate antibiotics, the infected blood can then contaminate other organs or tissues of the body, creating life-threatening infections. There are many things that can cause septicemia, most notably, cuts that have become infected. Infections of the mouth or teeth, when untreated by antibiotics, can cause septicemia. One serious complication can occur if a dentist initiates treatment of affected teeth, and there is an additional development of bacterial endocarditis (BE), which is a strep infection. The strep enters the blood steam and then cultivates inside the cardiac tissues creating blockages. Infections of the mouth or teeth, when untreated by antibiotics, can cause septicemia. One serious complication can occur if a dentist initiates treatment of affected teeth, and there is an additional development of bacterial endocarditis (BE), which is a strep infection. The strep enters the blood steam and then cultivates inside the cardiac tissues creating blockages. Anyone with a heart condition is slightly more vulnerable to BE and needs to take antibiotics prior to dental procedures. In most cases, where infection of the mouth, like an abscess is clearly evident, dentists will treat the infection prior to performing any type of oral surgery. Infections of cuts or surgical wounds both carry a risk or developing septicemia. These wounds that begin to feel hot, look red, have red streaks coming out from them, or that seem to be draining pus should all be examined by a doctor. Since many people who have surgery now go home within a day or two, self-examination is important to rule out possible infection. With a large cut or surgical wound, one has a slightly increased risk of septicemia, because blood loss lowers the bodys natural immunities. Burns are another major causal factor in septicemia. Third degree burns are particularly vulnerable to infection, and the larger the burn, the greater the chance of infection. Often third degree burns damage the nerve endings of skin, causing people not to initially feel pain at the site of the burn. People may not notice initial infection of burns without visual inspection. Another possible cause of septicemia is internal injury, such as a stomach injury after a car accident. Intestinal rupture, gall bladder disease and rupture of the appendix or spleen are indicated in septicemia as well. These ruptures very often are treated with antibiotics from the onset, since the blood is immediately exposed to high and dangerous bacteria levels. This is particularly of issue with intestinal perforations, which spill bowel contents into other parts of the body, causing almost immediate septicemia. A partial miscarriage, or missed miscarriage can also result in septicemia, if pregnancy remains stay in the uterus and become infected. Virtually any internal infection more readily can become septicemia because of direct contact with blood cells. This is particularly of issue with intestinal perforations, which spill bowel contents into other parts of the body, causing almost immediate septicemia. A partial miscarriage, or missed miscarriage can also result in septicemia, if pregnancy remains stay in the uterus and become infected. Virtually any internal infection more readily can become septicemia because of direct contact with blood cells. Thus, it is as clear like a noon day that septicemia is an infection which can be caused by cuts or surgical wounds, infections of mouth or teeth when untreated by antibiotics, internal injury on account of accident, rupture of intestinal, gall bladder disease and rupture of spleen or appendix etc. partial miscarriage or miscarriage and also on account of burn injuries. Thus the decision of Supreme Court B. N. Kavatakar (supra) placed reliance by learned counsel for the appellant is tangentially off the point and is not applicable in the case of burn injuries. ( 32. ) ACCORDING to us no special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person it is obvious that the appellant must have known that he was running the risk of causing the death of the victim of such bodily injury as was likely to cause the death and, therefore, as he had no excuse for incurring that risk, the offence must be taken to fall within fourth clause to Section 300 Penal Code in other words the act of appellant was culpable homicide amounting to murder even if he did not intend to cause the death. The appellant has committed an act so imminently dangerous that it was in all probability likely to cause death or result in an injury that was likely to cause death. (See decision of Supreme Court Ram prasad (supra)) placed reliance by learned public prosecutor. ( 33. ) THUS there is overwhelming material on record in order to hold that accused threw the kerosene on the person of the deceased thereafter lit the matchstick and threw the burning matchstick on the person of the deceased as a result of which the deceased received burn injuries and he succumbed after six days viz. on 12-3-2007. Hence according to us, the act of appellant is culpable homicide amounting to murder. ( 34. on 12-3-2007. Hence according to us, the act of appellant is culpable homicide amounting to murder. ( 34. ) WE do not find any merit in the contention of learned counsel for the appellant that accused was of unsound mind at the time of trial and, therefore, by not examining the appellant not only the conviction is bad in law but the trial is also vitiated. On going through the application dated 22-6-2007 filed on behalf of accused by his counsel, it is revealed that as per the averments made in the application the accused is of unsound mind and is not in position to defend himself. Hence, the prayer was made to get him examined by the Medical Board. To us, this argument is nothing but an unsuccessful attempt to construct a mountain 9f sand having no base. On going through the order sheet dated 5-5-2007 it is revealed that the accused was produced before the learned Trial Judge from the jail and he expressed his inability to get himself represented through a counsel from his own expense as he was not having sufficient means to pay the fee to a counsel as a result of which a prayer was made by him to learned trial Judge that legal aid be provided to him. Not only this, appellant also stated to learned Trial Judge that the copies of the charge sheet which was provided to him in the committal Court has not been bought by him from the jail. This act, conduct and conversation with the learned Trial Judge indicates and proves that he is not a person of unsound mind but is a normal man. The case was listed before the learned Trial judge on 5-5-2007, 10-5-2007 and 5-6-2007, but nowhere it was complained about the mental condition of the accused. First time on 22-6-2007 when the case was fixed for evidence on that date, the application under Section 328 and 335 of Cr. P. C. was filed, the learned Trial Judge vide order dated 25-6-2007 rightly rejected the said application. The learned Trial Judge has assigned reasons that no medical record in respect to mental condition of the appellant has been placed in order in ascertain that he was earlier of unsound mind. P. C. was filed, the learned Trial Judge vide order dated 25-6-2007 rightly rejected the said application. The learned Trial Judge has assigned reasons that no medical record in respect to mental condition of the appellant has been placed in order in ascertain that he was earlier of unsound mind. The learned trial Judge also observed that the behaviour of the appellant is quite normal and if cannot be said that he is of unsound mind and, therefore, according to us the application was rightly rejected by the Trial Court. ( 35. ) WE do not find any substance in the statement of learned counsel for the appellant that the manner in which the accused has been arrested, the same is doubtful. The investigating Officer S. L. Chandraul (PW-10) has specifically stated that the accused was arrested vide arrest memo Ex. P/24 on the date of incident from the Medical college area. He was also hiding his presence and was arrested behind the building of medical College. We failed to understand that how and in what manner the arrest of accused is suspicious and even if the same is suspicious how it will dilute the case of the prosecution. ( 36. ) IT would be relevant to mention here that in 313 Cr. P. C. statement, while answering question No. 50 as to whether the accused was arrested behind the Medical college Campus vide Ex. P/24, the accused answered in affirmative and thus there remains no doubt in respect to the arrest of accused which was made behind the medical College campus and this argument of learned counsel for the appellant is also found to be meritless. ( 37. ) WE have given our anxious and bestowed consideration to the reasonings assigned by trial Judge holding accused to be guilty of the offence under Section 302 of ipc. According to us, the reasons assigned by learned Trial Judge are based on correct appreciation of oral and documentary evidence placed on record and no interference is warranted. Thus; we hereby affirm the finding of learned Trial Judge holding the appellant to be guilty of offence under section 302 of IPC. ( 38. ) THE question how require for consideration is to Whether the learned Trial judge was right in passing the capital sentence to the accused. Thus; we hereby affirm the finding of learned Trial Judge holding the appellant to be guilty of offence under section 302 of IPC. ( 38. ) THE question how require for consideration is to Whether the learned Trial judge was right in passing the capital sentence to the accused. The learned Trial judge has passed the death sentence to the accused holding the present case to be the rarest of the rare case. According to learned trial Judge, the deceased was ablaze in his office when he was discharging his official duty as a public servant. He was brutally killed by the accused by pouring kersone and setting the fire of no fault of his. The deceased was an innocent person and there was no enmity with the accused and therefore by placing reliance on the decision of supreme Court Gayasi v. State of U. P. AIR 1981 SC 1160 : 1981 Cri LJ 883 the learned trial Judge has come to the conclusion that the present case comes under the ambit and sweep of rarest of the rare case. According to us, if the offence under Section 302 IPC is proved, normal law is to award life imprisonment and passing of death sentence is an exception. There are severed factors and the mitigating circumstances not to award the death sentence. It is difficult to frame any straightjacket formula indicating therein that in a particular type of cases capital punishment should be passed and in other cases passing of sentence of life imprisonment would be sufficient. Each case should be tested on its facts, circumstances and the evidence. Some of the mitigating factors and reasons for not awarding the death sentence are that there having been no intention to commit murder the offence falling under the fourth clause of Section 300 IPC; the offence was committed under the influence of extreme mental or emotional disturbance; if the facts and circumstances of the case indicate that the accused believed that he was morally justified in committing the offence etc. In the present case, the incident had taken place because accused was under the impression that he is a patient of hiv and the deceased did not find him to be the patient of HIV. In the present case, the incident had taken place because accused was under the impression that he is a patient of hiv and the deceased did not find him to be the patient of HIV. However the accused was not agreeing with the opinion of the deceased and was insisting repeatedly to provide CD-4 medicine which is being provided to the hiv patient and the demand of the accused was negatived by the deceased and thus it can be inferred that in the "influence of mental or emotional disturbance the accused committed the offence. Thus the facts of the case in hand are totally Different from the facts of the decision of Gayasi (supra) which has been placed reliance by learned Trial judge. One should not forget that the Judges are never blood thirsty. One of the tests for imposition of death sentence is to find out whether the offender offers such traumatic threat to the survival of social order. Looking to the entire factual scenario, according to us, the present case being not a case of rarest of rare case and, therefore, we hereby alter the capital punishment of the accused to life imprisonment. The accused / appellant is hereby directed to suffer life imprisonment. ( 39. ) RESULTANTLY, Criminal Appeal No. 138/2008 filed on behalf of appellant is hereby allowed in part. The capital sentence awarded to him by the learned Trial Judge is hereby altered to life imprisonment. The death reference referred by learned Trial judge is hereby accordingly disposed of. Order accordingly.