JUDGMENT : Servesh Kumar Gupta, J. The conviction of the appellant Raees Ahmed for the offence under Section 302 IPC is under challenge. He was tried by learned Sessions Judge, Udham Singh Nagar in S.T. No.149 of 2007, titled as “State Vs. Raees Ahmed”, for the said offence pertaining to crime no.667 of 2007. Learned Judge has sentenced him appropriately. 2. The death of victim Hazra took place within one and a half year of her marriage with the accused on account of septicemia as a result of ante-mortem burn injuries. The incident occurred some time in the intervening night of 7th/8th March, 2007 when she was set ablaze by sprinkling kerosene oil upon her. This occurrence happened when she was in the house of her husband (accused). 3. Victim was admitted by the accused in the Community Health Centre, Sitarganj at 12:20 AM of 8.3.2007. The doctor, as disclosed by her husband, reported the case to be of ‘accidental burning’. It appears that Dr. J.C. Shakdhar (PW12), on duty as emergency medical officer in that intervening night, has examined the victim in a superficial manner. In his opinion, the burn injuries were only 40 percent. However, the injuries were opined to be grievous and fatal for life. PW12 referred the victim for Sushila Tewari hospital at Haldwani. The report given by him is Ex.Ka-14. 4. The victim was accordingly, admitted in the aforesaid hospital in the morning of 8.3.2007 where she remained till the date of her discharge i.e. 22.3.2007. Discharge slip (Ex.Ka-9) discloses that she was 80 percent deeply burnt. But in such a serious physical condition, the patient was got discharged from the hospital, as has been deposed by PW9 Dr. K.S. Sahni. The medical officer has made a specific mention in the discharge slip that the progress of the patient was very poor. It has nowhere been mentioned in hospital’s record that by whom she was got admitted or discharged. It is thus, not clear as to where she remained after being discharged from there. 5. On a perusal of Ex.Ka-11, it emerges out that she was again admitted in Community Health Centre, Khatima, District U.S. Nagar by her father Shaifi Ahmed (PW1) on 1.4.2007 at 7:30 A.M. There too, the doctor, who examined the victim, found her 80 percent intensely burnt. 5. On a perusal of Ex.Ka-11, it emerges out that she was again admitted in Community Health Centre, Khatima, District U.S. Nagar by her father Shaifi Ahmed (PW1) on 1.4.2007 at 7:30 A.M. There too, the doctor, who examined the victim, found her 80 percent intensely burnt. The said report also finds mention that she remained at Sitarganj for 11 days’ after taking discharge from Sushila Tiwari hospital at Haldwani. It can be noticed that her husband’s house is situated at Sitarganj, whereas her father resides in village Umrukhurd Islamnagar, within the territorial jurisdiction of P.S. Kotwali Khatima. 6. It appears that from this point of time, the police suo moto came into motion and moved an application (Ex.Ka-5) before the Sub Divisional Magistrate on 1.4.2007 seeking to record the statement of victim as it was foreseen that she probably may die soon. The SDM, Khatima, in turn, deputed PW6 A.H. Khan, Tehsildar for the job who came in CHC, Khatima and recorded her statement on the same day at about 12:05 PM in presence of Dr. Narendra Chandra (PW7). The said statement (Ex.Ka-4) was later on relied as victim’s dying declaration. The certificate (Ex.Ka-6) given by PW7 Dr. Narendra Chandra is appended with the said statement. PW7 has ratified that Smt. Hazra was fully conscious and her mental faculties were normal while giving dying declaration. PW6 A.H. Khan, Tehsildar has also proved this statement. 7. On considering the victim’s state to be quite critical, on 1.4.2007 itself, she was further referred from CHC, Khatima, through reference slip (Ex.Ka-12) for Soban Singh Jeena Base Hospital at Haldwani, wherein she was admitted accordingly. 8. Meanwhile, when PW1 came to know about the serious/critical condition of his daughter, he lodged the first information report on 3.4.2007 at P.S. Sitarganj wherein he made several allegations against his son-in-law Raees Ahmed (appellant) and six other members of in-laws family. Those allegations entailed the demand of Rs.50,000/- in cash as dowry. On failure to meet such demand, victim was physically tortured besides keeping her hungry. At last, she was set ablaze. This report is Ex.Ka-1. Chik report thereof is Ex.Ka-7. 9. On 4.4.2007, PW14 N.A. Bharney, who was the Superintendent of Police, and officiating as SHO of P.S. Sitarganj, got the statement of victim recorded by the government video recording device i.e. ‘Sony Handycam’. That statement is Ex.Ka-23. At last, she was set ablaze. This report is Ex.Ka-1. Chik report thereof is Ex.Ka-7. 9. On 4.4.2007, PW14 N.A. Bharney, who was the Superintendent of Police, and officiating as SHO of P.S. Sitarganj, got the statement of victim recorded by the government video recording device i.e. ‘Sony Handycam’. That statement is Ex.Ka-23. The said video statement was got converted into a compact disk (C.D.) at the police station. The memo of conversion of video statement of victim into the C.D. is Ex.Ka-22. 10. Since the report had already been lodged by the father of victim, the accused was arrested by the police on 5.4.2007. The Investigating Officer recovered one empty container of kerosene oil along with a stove from the spot. Memo of taking these things into possession is Ex.Ka-21. The victim, ultimately on 11.4.2007, succumbed to her injuries in the Base hospital at 12:35 PM. 11. The investigation, accordingly, culminated into submission of chargesheet (Ex.Ka-24) for the offence of Section 302 IPC against the appellant/accused. The other family members of in-laws house were not found to have any complicity in the crime, so they were not charge-sheeted. 12. On 8.8.2007, Charge was leveled against the appellant/accused accordingly. He abjured his guilt and claimed trial. 13. Prosecution has examined as many as 14 witnesses who are PW1 Shafi Ahmed (complainant), PW2 Smt. Bano (victim’s mother), PW3 Dr. M.S. Sharma, PW4 Zalil Ahmed, PW5 Shabbir Ahmad, PW6 A.H. Khan, Tehsildar (who recorded dying declaration), PW7 Dr. Narendra Chandra, PW8 HCP R.C. Bhatt, PW9 Dr. K.S. Sahni, PW10 ASI Amar Singh Adhikari, PW11 Dr. D.S. Negi, PW12 Dr. J.C. Shakdhar, PW13 S.I. V.K. Mishra and PW14 SHO N.A. Bharney (I.O. of the case). 14. Subsequent thereto, the statement of the accused was recorded u/s 313 Cr. P.C. He has replied that at the time of occurrence, he was in his shop. No oral or documentary evidence was led by him to support such averment. 15. The court below, accordingly, resulted the trial into the conviction of the appellant/accused, as afore-stated. 16. In this case, Shafi Ahmed, father of deceased, has been examined as PW1. He has stated in his examination-in-chief that his daughter Hazra was married with the appellant/accused about 1½ year before her death. His daughter died on 11.4.2007 in Base hospital, Haldwani. 15. The court below, accordingly, resulted the trial into the conviction of the appellant/accused, as afore-stated. 16. In this case, Shafi Ahmed, father of deceased, has been examined as PW1. He has stated in his examination-in-chief that his daughter Hazra was married with the appellant/accused about 1½ year before her death. His daughter died on 11.4.2007 in Base hospital, Haldwani. Although the witness has admitted that the report (Ex.Ka-1) was lodged by him, he was declared hostile in light of his deposition that his daughter had never made any complaint about the atrocious conduct of her husband. 17. PW2 is Smt. Bano, who is mother of deceased. She also did not support the prosecution story and thus, was declared hostile by the prosecution. 18. PW3 is Dr. M.S. Sharma who conducted autopsy on the dead body of Hazra. Autopsy report is Ex.Ka-3. He has opined the death due to septicemia as a result of ante-mortem injuries. The following ante-mortem injuries were found on her dead body: - “Superficial to deep burn noted on the body except head, face, neck and upper part of chest, anteriorly and posteriorly and some part at lumber, hips and soles as well as at some places of back of both lower legs along with at little places on the ventral tissues. On further exposure, a line of redness noted at the junctions of burnt and un-burnt area in the subcutaneous tissue.” 19. PW4 Jalil Ahmed and PW5 Shabbir Ahmed are allegedly the witnesses of recovery of empty container along with a stove from the spot. But they did not support the said recovery and thus, were declared hostile. 20. PW6 is A.H. Khan, Tehsildar who recorded the statement of victim on 1.4.2007 while she was struggling for life in CHC, Khatima. He has proved the dying declaration recorded by him. English translation of the said declaration is as follows: - “Stated on oath- My husband was having illicit intimacy with other girls. On my resistance, he became enraged and poured kerosene oil from a ‘PIPIYA’ (jerrycan) over me and set me ablaze. He used to drive me to go to my parents’ house along with the dowry fetched by me. But I did not go to my parental house. On my resistance, he became enraged and poured kerosene oil from a ‘PIPIYA’ (jerrycan) over me and set me ablaze. He used to drive me to go to my parents’ house along with the dowry fetched by me. But I did not go to my parental house. I had been set afire by my husband Raees Ahmed after sprinkling kerosene oil…………………… She further states that she was married almost a year ago but did not have any progeny”. 21. PW6 has further stated that no member of her native place or of in-laws house was present at the time of recording the statement. The statement was recorded by him on the written direction of SDM, Khatima, which is Ex.Ka-5. The order passed by the Magistrate is on the margin of application moved by S.I. Khatima, requesting the S.D.M. to arrange for the dying declaration of victim, as she was got admitted in the hospital about 90% burnt state. 22. PW7 is Dr. Narendra Chandra who has testified that the deceased was in a fit mental condition to make the dying declaration. He has certified that all through out her statement, victim’s mental faculty was normal. The certificate (Ex.Ka-6) given by the witness is appended with the dying declaration. 23. PW8 is the formal witness who noted the contents of the FIR in the case diary of the police station and issued Chik FIR. He has proved the same. 24. PW9 is Dr. K.S. Sahni who was on duty in Sushila Tiwari Hospital Haldwani on the relevant date. He has proved that the victim was admitted in the hospital on 8.3.2007 in the critical state of 80% deep burn injuries. She was treated in the hospital but got discharged by her kinsman on 22.3.2007 while the condition was still critical. 25. PW10 is A.S.I. A.S. Adhikari who was posted as a constable clerk on 13.4.2007 at P.S. Sitarganj. He converted the case in the police record for the offence of Section 304-B/498-A IPC r/w Section 3/4 of Dowry Prohibition Act after the death of victim on 11.4.2007. He performed the aforesaid task on the directions of superior officers. 26. PW11 is Dr. D.S. Negi, medical officer of CHC Khatima. He has proved that Hazra was got admitted on 01.04.2007 in the hospital in a state of 80% deeply burnt. He performed the aforesaid task on the directions of superior officers. 26. PW11 is Dr. D.S. Negi, medical officer of CHC Khatima. He has proved that Hazra was got admitted on 01.04.2007 in the hospital in a state of 80% deeply burnt. But on account of her serious state, she was referred to the higher center for rendering necessary treatment. 27. PW12 is Dr. J.C. Shakdhar who was posted as emergency medical officer in CHC Khatima. As afore-stated, after making superficial examination of the patient, he referred her to Sushila Tiwari hospital at Haldwani. 28. PW13 is S.I. B.K. Mishra who is the witness of inquest report Ex.Ka-15. After performing the inquest, he forwarded the dead body for the purpose of autopsy. In that way, he is a formal witness of the case. 29. PW14 N.A. Bharne is the officer of Indian Police Service who carried out the investigation. At the relevant time, he was working as an In-charge SHO of P.S. Sitarganj. He culminated the entire investigation into the submission of charge-sheet, as afore-stated. 30. We have heard learned amicus curiae for the appellant, learned State counsel and have gone through the evidence available on record as well. 31. On a careful perusal of the entire prosecution evidence, it now stands proved beyond any doubt that victim Hazra had caught fire in the intervening night of 7/8th March, 2007 while she was present in the house of her husband. This occurrence took place within 1½ years of her marriage. 32. Learned amicus curiae, appearing on behalf of the appellant, argued before us that the accused was not present in the house at the relevant time, as disclosed by him in his statement recorded u/s 313 Cr. P.C. The accused has stated his presence on his shop at that time. On receiving the information, the accused came home and shifted the victim to the hospital. 33. Even if the accused has made such a statement, then the onus was upon him to prove the same by adducing some reliable evidence. He did not do so. Although, the exact time of incident is not disclosed, either in the dying declaration or by the accused himself, but it appears that the incident took place when the night had become quite advanced. He did not do so. Although, the exact time of incident is not disclosed, either in the dying declaration or by the accused himself, but it appears that the incident took place when the night had become quite advanced. The presence of accused in his shop on those winter nights is not probable, inasmuch as, it was not an appropriate time, in a small town like Sitarganj, to keep the shop open in such a chilly hours. More so, burden was upon him to make the statement believable by producing some sort of evidence either oral or documentary. 34. That apart, distance between the shop and residence of accused is not on record. If the accused reached home after receiving the information about his wife’s burning, then the fact of shifting his wife in C.H.C., Sitarganj at about 12:20 AM, is not convincing, because the said place is a small city and the hospitals are not understandably located far ahead from the town. So, it can be inferred that the incident took place when the night had been quite advanced, and there was no occasion for the appellant/accused to keep his shop open at such a time. With the result, it is amply proved that he was present in the house when the occurrence took place. Moreover, it was the burden upon the appellant as per Section 106 of the Evidence Act to explain as to how the occurrence took place. 35. Fortiori, the above-quoted dying declaration of Hazra (deceased), recorded by the PW6 A.H. Khan, Tehsildar is well proved, which has further been corroborated by the video recording done on 4.4.2007 in presence of PW14 N.A. Bharney, who is an IPS Officer. In the given circumstances, there is no reason to disbelieve the dying declaration given by the victim Hazra. 36. It was lastly argued before us that the parents of deceased did not support the prosecution version. However, in the given facts and circumstances of the case, we are of the considered view that the same is not sufficient to absolve the accused/appellant from the crime, which has well been proved by the prosecution by adducing other reliable evidence. 37. Therefore, in view of what has been stated above, we find no illegality or infirmity in the finding of conviction, as recorded by learned Trial Judge. The punishment, so awarded, is also minimum one. 37. Therefore, in view of what has been stated above, we find no illegality or infirmity in the finding of conviction, as recorded by learned Trial Judge. The punishment, so awarded, is also minimum one. There is no reason to interfere with the impugned judgment and order. The appeal is thus, devoid of merits and liable to be dismissed. 38. Appeal is, accordingly, dismissed. Appellant Raees Ahmed is in jail. He shall serve out the remaining term of his sentence. 39. Let a copy of this judgment and order along with L.C.R. be sent to the court concerned.