Anil Kumar Sharma, J. Challenge in this appeal is to the judgement and order 28.01.2005 passed in S.T. No. 296 of 2002, State vs. Suraj Pal Rastogi and two others, under sections 498A, 304-B IPC, alternatively under section 302 IPC and 3/4 of Dowry Prohibition Act, Crime No. 340 of 2001, P.S. Bisauli, District Badaun, whereby the appellant had been convicted for the offence punishable under section 302 IPC and sentenced to undergo life imprisonment with fine of Rs. 10,000/-. In default he was directed to undergo further imprisonment for one year. However, the appellant u/s 304-B and 498-A IPC and ¾ Dowry Prohibition Act and other co-accused Suraj Pal Rastogi and Smt. Urmila Rastogi were acquitted for the offence punishable under section 498-A IPC and 3/4 Dowry Prohibition Act. 2. Facts germane to the appeal are that on 15.06.2001 complainant Hari Mohan Rastogi s/o Late Sri Gopi Chandra Rastogi, r/o B-206 Avas Vikas, Budaun submitted an application to C.O., Bisauli stating that his daughter Laxmi Rastogi was married with Shalu Kumar Rastogi s/o Suraj Pal Rastogi, r/o Kasba Bisauli, District Budaun on 25.02.1996, wherein Rs. Two lakhs were spent by him. However, in-law's of his daughter were not satisfied and they had also shown their dissatisfaction at the time of 'Tika' ceremony. They used to harass and torture his daughter physically and mentally. The complainant earlier on three occasions had given Rs. 20,000/- each purchasing peace and for the welfare of his daughter to them but the greed of accused persons was not satisfied, they continued to torture his daughter and did not deter with their misdeeds. On 04.06.2001 at about 4.30 P.M. accused Suraj Pal Rastogi and his wife Smt. Urmila Rastogi caught hold his daughter and their son Shalu Kumar poured a cane of five litres kerosene and set her ablaze and bolted her in a room in burning condition. When the fire did not extinguish her sister-in-law Laxmi Rastogi tried to save her by pouring water. The accused persons neither informed the police nor the family of the complainant and they took her to Sheel Hospital, Bareilly with 90% burns. When the fire did not extinguish her sister-in-law Laxmi Rastogi tried to save her by pouring water. The accused persons neither informed the police nor the family of the complainant and they took her to Sheel Hospital, Bareilly with 90% burns. On receipt of information on phone from Sheel Hospital, Bareilly about precarious condition of their daughter but before the complainant and his family members could reach Sheel Hospital, Bareilly Smt. Beenu Bahal, President, Vayapar Mandal, Bareilly got the statement of the daughter recorded through City Magistrate, Bareilly and informed the Inspector and C.O. Bisauli. The accused persons desired money for her treatment from complainant and protested their stay with the victim. When the wife of the complainant protested on 08.06.2001, accused persons tried to drove her out after beating in presence of Neelam Rastogi, Kamal Rastogi, Seema Rastogi and several patients. They also requested the accused persons to permit mother of the victim and her family members not to stop their stay in the hospital. Considering her serious condition the doctor of Sheel Hospital, Bareilly advised to take her to Safdarjang Hospital, Delhi on 13.06.2001 but the accused persons did not pay any heed while the complainant was busy in making arrangements for the treatment of her daughter, she succumbed to the injuries in the house of the accused on 14.06.2001 at 9.15 P.M., so he could not lodge the report earlier. On the basis of this application case at crime no. 340 of 2001, under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act was registered at police station Bisauli, investigation whereof was entrusted to C.O. Bisauli Sri Prakash Dwivedi, who on the same day recorded statement of Tehsildar Vinay Kumar Pathak, complainant Hari Mohan Rastogi, Smt. Chandra Kant Rastogi, Shivam Rastogi, Smt. Devki Devi, Sri Brij Raj Rastogi as also the witnesses of inquest report. At the instance of complainant site plan was prepared by him. Ere that on 15.06.2001 Vinay Kumar Pathak, Tehsildar, Bisauli conducted inquest on the cadaver of the deceased Smt. Laxmi Devi in her matrimonial home and after completing other formalities sent the same in sealed cover for post mortem examination along with usual papers. 3. Dr. Har Pal Singh conducted autopsy upon the corpse of the deceased on 15.06.2001 at 4.00 p. m. He found that 27-years old deceased was having average built body. Rigor mortis was present on all four limbs. 3. Dr. Har Pal Singh conducted autopsy upon the corpse of the deceased on 15.06.2001 at 4.00 p. m. He found that 27-years old deceased was having average built body. Rigor mortis was present on all four limbs. PM staining on dependent part was present. Eyes and mouth were half closed and scalp hairs were burnt. He found the following ante-mortem injuries on her person: Ante-mortem injury "Superficial to deep burn on all over the body except left side lower part of abdomen. Line of redness present. Blister at places present." In internal examination the doctor found that membranes, pleura, larynx, trachea, spleen, kidney and pericardium were congested. Carbon soothing particles were found in the larynx and trachea. 100 gram semi digested food was found in the stomach. Her uterus was non-gravid. In the opinion of the doctor the deceased suffered death due to shock as a result of ante-mortem burn injury. 4. On 17.06.2001 the Investigating Officer interrogated accused Shalu Kumar and on 22.06.2001 he went to the Court of C.J.M. Bareilly and perused the dying declaration of the deceased. On 26.06.2001 Hunny son of deceased was interrogated. After his transfer the investigation was taken over by C.O. Netra Pal on 28.07.2001. Earlier the Investigating Officer found that case against accused Suraj Pal and his wife Urmila Rastogi was made out only under section 498A IPC and 3/4 of Dowry Prohibition Act and accordingly charge sheets against the three accused including the present appellant Shalu Kumar were submitted. 5. After committal of the case to the Court of Session charge for the offence punishable under section 498-A, 304-B IPC and 3/4 Dowry Prohibition Act and alternative charge under section 302 IPC were framed against the accused-appellant. Against the co-accused Suraj Pal and Urmila Devi charge for the offence punishable under section 498A IPC and 3/4 of Dowry Prohibition Act were framed. The accused persons abjured their guilt and claimed trial. 6. In order to substantiate the charges levelled against the accused persons, the prosecution examined complainant Hari Mohan Rastogi PW-1, Brij Raj Rastogi PW-2, Shivam Rastogi PW-3, Dr. Harpal Singh PW-4, Constable Raj Rishi Sharma PW-5, Tehsildar Vinay Kumar Pathak PW-6, C.O. Netra Pal PW-7, C.O. Sri Prakash Dwivedi PW-8, Hunny PW-9, Dr. Pawan Agarwal PW-10 and A.D.M. Rameshwar Dayal PW-11. 7. Harpal Singh PW-4, Constable Raj Rishi Sharma PW-5, Tehsildar Vinay Kumar Pathak PW-6, C.O. Netra Pal PW-7, C.O. Sri Prakash Dwivedi PW-8, Hunny PW-9, Dr. Pawan Agarwal PW-10 and A.D.M. Rameshwar Dayal PW-11. 7. In his statement under section 313 Cr.P.C. accused-appellant has denied the prosecution story stating that at the time of alleged incident he was at his shop. His wife caught fire while cooking food on stove. They took her to Sheel Hospital, Bareilly for treatment and informed Hari Mohan Rastogi. Her condition deteriorated in Sheel Hospital, Bareilly and doctor asked them to take her from there immediately. He has further stated that he resides with his wife and children on the ground floor of the house and his parents and sister also resided there. As regards the statement of her son Hunny he has stated that he has been tutored by the complainant and his family members. He has admitted that Dr. Pawan Agrawal has medically treated his wife at Sheel Hospital, Bareilly. They brought her to Bisauli where she died. As regards the dying declaration of the deceased, accused Shalu Kumar Rastogi has stated that her statement was not recorded in their presence as he had gone to Bisauli for arranging money. 8. In defence the accused persons have examined S.I. Yashpal Singh as DW-1. 9. After hearing the parties counsel the learned Additional Sessions Judge through impugned judgement has convicted and sentenced the accused-appellant as indicated earlier. Aggrieved he has come up in appeal. 10. The bail application of the accused-appellant was rejected by this Court on 11.01.2010 and after preparation of paper book the appeal was listed for hearing. On the day of listing i. e. 20.12.2012 none of the two counsel appointed by the appellant in the appeal appeared, therefore, the Court appointed Sri Shamshul Islam, Advocate ( Registration No. 7429/2002) who was working in criminal side as Amicus Curiae to argue the appeal on behalf of the appellant. 11. We have heard the learned Amicus Curiae for the appellant and learned counsel for the State and perused the original record of the case carefully. 11. We have heard the learned Amicus Curiae for the appellant and learned counsel for the State and perused the original record of the case carefully. 12.Learned counsel for the appellant castigating the findings and conviction recorded by the trial Court has argued following points before us: i) That the FIR is delayed; ii) That the witnesses falsely depose against the appellant and Hunny PW-9 ( child witness) had been tutored; iii) That the dying declaration of the deceased has been fabricated; Per contra learned AGA has submitted that admittedly the deceased suffered death due to burn injuries in her matrimonial home, so the accused are required to explain the circumstances under which she sustained burns; that the FIR had been lodged by the complainant after cremation of the dead body of his daughter and ere that he was engaged in her treatment at Bareilly, that in the circumstances the delay in reporting the crime to the police is well explained; that the dying declaration of the deceased was recorded by PW-11 on the intimation sent by the police of Bareilly before the complainant and his family members could reach there. The voluntary statement was given by the deceased prior to her death in full conscious state of mind and Hunny PW-9 was not tutored but he was a child eye witness of the incident, his testimony has great importance and there is no reason why he would falsely depose against his father. He has concluded that the learned trial Court has recorded the conviction of the accused-appellant by giving cogent reasons and the prosecution has established the charge for the offence punishable u/s 302 IPC against the accused-appellant beyond all reasonable doubt, so the appeal is liable to be dismissed. 13. It has been argued by the learned counsel for the appellant that the incident took place on 4.6.2001 and the accused persons have taken the deceased in injured condition to Sheel Hospital, Bareilly and also informed the complainant, whose family also reached Bareilly hospital, but no report was lodged by the complainant till the death of Laxmi Devi. The inordinate delay of about 11-days in lodging the written report by the complainant speaks volume about his ill-intention in falsely implicating the accused. The inordinate delay of about 11-days in lodging the written report by the complainant speaks volume about his ill-intention in falsely implicating the accused. However, the learned counsel for the State has contended that no information about the incident had been given by any of the accused to the family members of the complainant, and they were informed by Sheel Hospital, Bareilly about the deceased having been admitted there for treatment. The AGA with reference to the statement of the complainant PW-1 has contended that he remained busy in the treatment of his daughter and also informed the police on 6.6.2001, but his report was not lodged. 14. Upon hearing the counsel for the parties it appears that the complainant has narrated the circumstances in which his report was lodged with the police on 15.6.2001. He has denied the suggestion that after return from Bisauli to Bareilly on 6.6.2001 his daughter desisted him to initiate any action and so he informed Inspector and C.O., Bisauli not to take any action in the matter. This suggestion is palpably false because in her dying declaration recorded by PW-11 on 5.6.2001, the deceased gave statement against the accused-appellant and charged him for setting her ablaze after pouring kerosene. The deceased struggled for life for about ten days and breathed her last on 14.6.2001 at about 9.15 p.m. It has come in the deposition of PW-1 that the accused persons did not cremate her body and none of their family member even participated in her last rites. In these circumstances, we find that the delay in reporting the crime to the police had been sufficiently explained by the complainant and the prosecution story cannot be doubted on this score. 15. Learned counsel for the appellant had also raised a finger about the admissibility of the testimony of Hunny PW-9 ( son of the accused and the deceased) on account of his tender age. His deposition was recorded by the trial Court on 10.12.2004 and on that day he had given his age as 8-years, the date of incident is 4.6.2001, thus he was about 4 years and 6 months' old at the time of incident. His deposition was recorded by the trial Court on 10.12.2004 and on that day he had given his age as 8-years, the date of incident is 4.6.2001, thus he was about 4 years and 6 months' old at the time of incident. On perusal of the record we find that before recording statement of Hunny PW-9 on 10.12.2004 i. e. about 3 years and 6-months after the incident, the Presiding Officer has asked 7-general questions to test the capacity and intelligence of child witness to testify before the Court, which are: Vw dksVZ & iz'u 1 % rqEgkjs ukuk dk uke D;k gS\ mRrj & Jh gjh eksgu jLrksxhA iz'u 2 % lwjt fdl rjQ fudyrk gS\ mRrj & iwjc esa fudyrk gSA iz'u 3 % >wB cksyuk vPNk gksrk gS ;k lp cksyuk\ mRrj & lp cksyuk vPNk gksrk gSA iz'u 4 % bl dejs dh Nr dk jax dSlk gS\ mRrj & lQsn g~okbV gSA iz'u 5 % lwjt fnu esa fudyrk gS ;k jkr esa\ mRrj & fnu esa lwjt fudyrk gSA iz'u 6 % rqEgkjh ekW thfor gS ;k ej xbZ\ mRrj & ej xbZ gSA iz'u 7 % vkt tks c;ku rqe nsus vk;s gks og viuh ethZ ls ;k vius ukuk ds dgus ls\ mRrj & viuh ethZ lsA After this question-answer session, the Presiding Officer has noted his satisfaction through the following note before recording statement of PW-9: "From the questions asked from the witness it is found that he is able to understand the question and gave rational answers of the questions. He is giving statement not under any pressure. He is giving statement as per his will." A child witness is competent to testify u/s. 118, Evidence Act. Tutoring cannot be a ground to reject his evidence. A child of tender age can be allowed to testify if it has intellectual capacity to understand questions and give rational answers thereto. Trial Judge may resort to any examination of a child witness to test his capacity and intelligence as well as his understanding of the obligation of an oath. If on a careful scrutiny, the testimony of a child witness is found truthful, there can be no obstacle in the way of accepting the same. Trial Judge may resort to any examination of a child witness to test his capacity and intelligence as well as his understanding of the obligation of an oath. If on a careful scrutiny, the testimony of a child witness is found truthful, there can be no obstacle in the way of accepting the same. [Vide - Pradeepan vs. State of Kerala, 2007 ( 57) ACC 293 ( SC), Ratan Singh vs. State of Gujarat, ( 2004)1 SCC 64 and Doryodhan vs. State of Maharashtra, 2003( 1) JIC 184 ( SC)]. 16. Hunny PW-9 has stated that he was playing at the hand-pump and his mother was washing dishes. His father brought a can of kerosene from the shop and poured it on his mother. She was drenched with it. She ran upstairs and the father followed him. He also reached there and tried to bolt from inside, but he opened it. Thereafter, his father lighted match stick from match box and set fire on the dhoti ( saree) of his mother. Then the bua poured hot water on her and she was saved by his father and the grand-father. At that time grand father and grand mother were also upstairs and they told him that his mother should burn and they would bring him new mother. The father did not say anything to the mother. Although in cross-examination this witness has stated that in the night yesterday and today morning his maternal grand-father told him about the statement, but it does not mean that he was tutored to give false evidence. Because had it been so, he would not have said that the mother was saved by father also along with grand-father. No suggestion had been given to this witness in cross-examination that his mother accidentally caught fire while boiling milk or cooking food on kerosene stove. We further find that the child witness had signed in English on his deposition recorded in the trial Court which shows his education and mental status. 17. The doctrine of dying declaration is enshrined in the legal maxim 'Nemo moriturus praesumitur mentire', which means 'a man will not meet his maker with a lie in his mouth'. We further find that the child witness had signed in English on his deposition recorded in the trial Court which shows his education and mental status. 17. The doctrine of dying declaration is enshrined in the legal maxim 'Nemo moriturus praesumitur mentire', which means 'a man will not meet his maker with a lie in his mouth'. The doctrine of Dying Declaration is enshrined in Section 3 2 of the Indian Evidence Act, 1872 ( hereinafter called as, 'Evidence Act') as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. Clause ( 1) of Section 3 2 makes the statement of the deceased admissible, which is generally described as a 'dying declaration'." It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The dying declaration, in fact, is the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. The law in this regard is very clear that if the dying declaration has been recorded in accordance with law, it would be reliable for providing a cogent and possible explanation of the occurrence of the events by the person. The dying declaration, therefore, can certainly be relied upon by the court and could form the sole piece of evidence resulting in the conviction of the accused. 18. In instant case, the deceased suffered burn injuries on 4.6.2001 at about 4.30 p.m. in her matrimonial home. There is eye witness account of the incident through Hunny PW-9, minor son of the deceased. The deceased was admitted in Sheel Hospital, Bareilly on 4.6.2001 due to 80% burn injuries of I and II degree and discharged from there on 13.6.2001. There is no medico-legal report of the victim. Her dying declaration was recorded on 5.6.2001 at 4.25 p. m. by PW 11 and thereafter she died on 15.6.2001 in the house of the accused-appellant. The deceased was admitted in Sheel Hospital, Bareilly on 4.6.2001 due to 80% burn injuries of I and II degree and discharged from there on 13.6.2001. There is no medico-legal report of the victim. Her dying declaration was recorded on 5.6.2001 at 4.25 p. m. by PW 11 and thereafter she died on 15.6.2001 in the house of the accused-appellant. Thus she remained alive for about ten days after the incident. Although she was severely burnt but the above facts show that her condition was not overtly critical or precarious when her dying declaration was recorded by PW 11. In this connection we may usefully refer to the case of Munnawar & Ors. v. State of Uttar Pradesh & Ors. ( 2010) 5 SCC 451 , wherein the Apex Court held as under: "that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration. That may be evidence to show that his condition was not overtly critical or precarious when the dying declaration was recorded." The dying declaration was recorded with the intervention of Sheel Hospital, Bareilly and police of out-post Avas Vikas, P. S. Prem Nagar, Bareilly by Addl. City Magistrate-I, Bareilly Rameshwar Dayal PW 11, who has no animus with the accused or affinity with the deceased or the complainant's family. City Magistrate-I, Bareilly Rameshwar Dayal PW 11, who has no animus with the accused or affinity with the deceased or the complainant's family. The dying declaration of the deceased recorded by PW-11 is reproduced as under: ^^ejht us vius gks'ksgokl esa nsus yk;d gSA le; g0 vifBr 5-6-2000 le; % 4%25 vijkUg c;ku Jherh y{eh ifRu 'kkyw dqekj vk;q 26 o"kZ fu0 chp dk dqaok] fclkSyh eq>s esjs vkneh us tyk;kA esjs vkneh dk uke 'kkyw dqekj gSA esjh yMk+ bZ gks x;h gSA eSa crZu ekat jgh FkhA yM+kbZ esa ckr esa rsy Mky fn;k vkSj tyk fn;kA ckdh fdlh dk dksbZ nks"k ugha gSA c;ku lqudj rlnhd fd;kA g0 vifBr 5-6-2001 ,0 lh0 ,e 1 ejht us vius gks'kks&gok'k esa c;ku fn,A g0 vifBr 5-6-2001 le; % 4%25 vijkUg** A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case.[vide Ravi Chander & Ors. v. State of Punjab, ( 1998) 9 SCC 303 ; Harjit Kaur V. State of Punjab ( 1999) 6 SCC 545 ; Koli Chunilal Savji &Anr. v. State of Gujarat, ( 1999) 9 SCC 562 ; and Vikas & Ors. v. State of Maharashtra, ( 2008) 2 SCC 516 .] 19. No doubt the prosecution could not locate the doctor of Sheel Hospital, Bareilly who had given certificate about the mental fitness of the deceased before and after recording of dying declaration, but in view of statement of PW-11 it is insignificant. Even Dr. Pawan Agarwal PW-10 of Sheel Hospital, Bareilly could not identify the signature of the doctor on the dying declaration of the deceased. In private hospitals/nursing homes there remain several doctors, who perform duty in shifts and it is not necessary that each doctor may be acquainted with handwriting and signature of the other. The deceased was an indoor patient suffering from 80% burn injuries. In private hospitals/nursing homes there remain several doctors, who perform duty in shifts and it is not necessary that each doctor may be acquainted with handwriting and signature of the other. The deceased was an indoor patient suffering from 80% burn injuries. She was mentally fit and was in condition to speak which is also proved by the testimony of SI Yashpal Singh DW-1, who had enquired into the memo received from Sheel Hospital, Bareilly on 4.6.2001 at 11.50 p.m. He has stated that he had enquired from Smt. Laxmi as to how she sustained burn injuries, wherein she stated that her parents-in-law are very good and yesterday while cracking joke she sustained burn injuries when she was heating milk on kerosene stove. However, she kept mum when she was asked by this witness about any complaint with the husband. The story of having burn injuries while cracking joke is belied by the statement of Dr. Harpal Singh PW-4 who had conducted autopsy on the corpse of the deceased on 15.6.2001. He has found that her scalp hairs were burnt. If the deceased sustained burn injuries while working on kerosene stove accidentally, then scalp hairs cannot be burnt in any situation. Thus we find that the dying declaration of the deceased has no legal infirmity at all and it is also consistent with the case of the prosecution. The deceased has spoken about the manner in which she sustained burn injuries at the hands of the accused. She had not implicated any other family member of the accused-appellant. The defence could not show that the dying declaration is the result of tutoring of Smt. Laxmi deceased in any manner. 20. The deceased has suffered burn injuries in her matrimonial home, where she along with her husband, children, parents-in-law and sister-in-law resided. In such a fact situation it was incumbent upon the accused to have explained the circumstances, in which the deceased sustained injuries. The law does not enjoin a duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on prosecution is to lead such evidence which is capable of leading having regard to the facts and circumstances of the case. The law does not enjoin a duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on prosecution is to lead such evidence which is capable of leading having regard to the facts and circumstances of the case. Here it is necessary to keep in mind the provisions of Section 106 of the Evidence Act which says that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparative of a lighter character. In view of s. 106 Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish it's case lies entirely upon the prosecution to offer any explanation. For this proposition we are guided from the cases of Daulatram vs. State of Chhattisgarh, 2008 ( 63) ACC 121, Trimukh Maroti Kirkan vs. State of Maharashtra, 2007 ( 57) ACC 938 ( SC) and Chankya Dhibar vs. State of W.B., ( 2004) 12 SCC 398. 21. The accused has not led any oral evidence in defence to explain the circumstances in which the deceased sustained burn injuries in her matrimonial home. In his statement u/s 313 Cr.P.C., the accused has stated that as under: LVksi ij [kkuk cukrs le; LVksi Hkcd x;k rks vkx yx x;hA fQj ge bykt dks 'khy vLirky ys x;s o gjheksgu dks lwpuk nhA However, the defence has suggested to PW-1 many circumstances leading to the incident. In his statement u/s 313 Cr.P.C., the accused has stated that as under: LVksi ij [kkuk cukrs le; LVksi Hkcd x;k rks vkx yx x;hA fQj ge bykt dks 'khy vLirky ys x;s o gjheksgu dks lwpuk nhA However, the defence has suggested to PW-1 many circumstances leading to the incident. It was suggested to him that the younger brother of deceased namely Shivam PW-3 was having love affairs with Neetu ( sister of the accused) and wanted to marry her and on this count there was scuffle between the accused and the deceased and so she poured kerosene herself and set ablaze. The relevant portion of the cross-examination is as under: eq>s esjh iq=h us ;g ugha crk;k Fkk fd esjs ifr o esjk f'koe o uhrw dh 'kknh ds lEcU/k esa fookn gqvk FkkA 'kkyw nqdku ij pyk x;k Fkk eSaus feV~Vh dks rsy Mkydj vkx yxk yh FkhA At other place, the defence counsel suggested to PW-1 in the following manner: ;g dguk xyr gS fd f'koe o uhrw ds voS/k lEcU/kks dks ysdj 'kkyw o y{eh nsoh esa fookn gqvk vkSj y{eh nsoh us Lao; feV~Vh dk rsy Mkydj vkx yxk yhA y{eh nsoh us ;fn dgha ;g dfFkr fd;k gS fd /kDdk eqDdh esa nq?kZVuk o'k ?kVuk ?kV xbZ] ;g xyr gSA It appears that during investigation or trial the accused and his family might have suggested to marry Neetu with Shivam in order to get rid of this case, which is apparent from the facts which have come in cross-examination of PW-1. The relevant portion of his cross-examination is as under: eSus mPp U;k;ky; esa izk0 i= fn;k Fkk fd ;fn esjk yM+dk f'koe 'kkyw dh cfgu ls 'kknh djrk gS rks esjh dksbZ ftEesnkjh ugha gSA vt [kqn dgk fd ml izk0 i= esa ekuuh; U;k;ky; ls vuqjks/k fd;k Fkk fd vfHk;qDrx.k vius vkidks nks"keqDr gksus ds mn~ns'; ls esjs yM+ds ij ek;ktky fcNkdj uhrw dh 'kknh djkuk pkgrs gSa tks eq>s Lohdkj ugha gS] tks fLFkfr vfHk;qDrx.k ds ?kj esa gqbZ Fkh og esjs ?kj esa Hkh mRiUu gks ldrh gSA iz'u & ?kVuk ls iwoZ 'kkyw dks ;g ckr irk yx xbZ fd f'koe uhrw ls 'kknh djuk pkgrs gSa\ mRrj & bldh eq>s tkudkjh ugha gSA blds ckjs esa ?kVuk ls iwoZ esjh e`rd iq=h us eq>s ugha crk;k FkkA vLirky esa Hkh esjh e`rd iq=h us eq>s ;g ugha crk;k Fkk fd f'koe o uhrw dh 'kknh ds lEcU/k esa dksbZ fookn gqvkA This statement of PW-1 clearly suggests that the defence has cooked up this false story only to get rid of this case. In this connection statement of Shivam Rastogi PW-3 is also relevant. In his cross-examination he has admitted that at the time of incident Neetu was not married and he did not deliver any love letter to her. He never disclosed either at home or to his friends to carry on talks for his marriage with Neetu. He has emphatically denied the defence suggestion that on account of his love affairs with Neeetu, scuffle took place between the deceased and her husband and on this count his sister has committed suicide by setting her ablaze after pouring kerosene. Even the accused in his statement u/s 313 Cr.P.C., as observed earlier, has not stated the manner of incident on these lines. He has not stated a single word about any love affair between Shivam and his sister Neetu or that the former wanted to marry his sister. Even the accused in his statement u/s 313 Cr.P.C., as observed earlier, has not stated the manner of incident on these lines. He has not stated a single word about any love affair between Shivam and his sister Neetu or that the former wanted to marry his sister. Therefore, it appears that in order to create false defence in the case the love angle has been introduced, for had it been true, the defence counsel could not have suggested to PW-1 in the following manner: esjh yM+dh us eq>s ;g ugha crk;k Fkk fd gaalh etkd esa esjs ij feV~Vh dk rsy dk duLrj fxj x;k FkkA As such we find that the defence is harping on one ground or the other to explain the circumstances in which the deceased has sustained burn injuries. It is important to note that had the deceased suffered burn injuries while cooking food or heating milk on kerosene stove, then her scalp hairs could not be burnt in this manner of incident. Thus, these circumstances unerringly point towards the guilt of the accuse and none other. 22. The statement of SI Yaspal Singh DW-1 is of no help to the accused-appellant as he has allegedly enquired about the deceased having sustained the burn injuries as he had conducted alleged enquiry in the absence of the complainant and at that time only the family of accused persons was there. Ijf the statement of this witness given in examination-in-chief, which is reproduced below is believed, even then it does not exonerate the accused-appellant from the charge. Ijf the statement of this witness given in examination-in-chief, which is reproduced below is believed, even then it does not exonerate the accused-appellant from the charge. This witness has stated : fnukad 4-6-2001 dks eSa crkSj pkSdh izHkkjh vkokl fodkl Fkkuk izseuxj cjsyh in ij dk;Zrj FkkA jiV ua0 58 le; 23-50 cts eq>s ctfj;s gksexkMZ et:ck tks 'khy vLirky cjsyh esa HkrhZ gqbZ Fkh dk izkIr gqvk FkkA ftl ij eSa ,l0 vkbZ0 tkap gsrq x;k rks et:ck us crk;k fd eSa o esjs ifr vyx lkl llqj ls jg jgs gSA esjs lkl llqj cgqr vPNs gSA dy etkd etkd esa ge nksauks ifr ifRu esa feV~Vh dk rsy LVkso ls nw/k xeZ djrs le; tyh iqu%@crk;k fd etkd&etkd esa ;g ?kVuk gqbZA ifr ls f'kdk;r dh ckcr iwNk rks pqi jg tkrh FkhA blfy, ekeyk lafnX/k ekywe iM+rk FkkA blhfy, eseks nkf[ky Fkkus ij gksus ij ,p0,e0 dqat fcgkjh 'kqDyk }kjk lacaf/kr eftLVsªV dks c;ku futkbZ gsrq fjiksVZ nh xbZA This statement of DW-1 clearly shows that all was not well with the deceased in her matrimonial home. Had the deceased sustained burn injuries in the accident, then there was hardly any occasion for Sheel Hospital to have sent the information to the police and after enquiry serious effort could not have been made by the Prem Nagar police to get her dying declaration recorded by an Executive Magistrate as is clear from the statement of DW-1. 23. For all the above mentioned reasons, the appeal lacks in merits and the same is dismissed. The accused is in jail and would serve out the remaining part of his sentence. 24. Sri Shamshul Islam, Amicus Curiae be paid Rs. 2,100/- by the State within a month for the services rendered by him in arguing the appeal on behalf of the accused-appellant. 25. Let certified copy of the judgement be sent to Court concerned and the Chief Judicial Magistrate, Budaun for compliance, which should be reported to this Court in 4-weeks.