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2015 DIGILAW 888 (CAL)

State of West Bengal v. Dipankar Ghosh

2015-10-15

ASHIM KUMAR ROY, MALAY MARUT BANERJEE

body2015
JUDGMENT : Ashim Kumar Roy, J. It is the case of the prosecution that the deceased Ashima Ghosh after her marriage with the appellant/convict Dipankar Ghosh, and other members of her matrimonial family, the mother-in-law, sister-in-law and brothers-in-law was residing at her matrimonial home situated at Bhajanghat Kalitala, Krishnaganj, Nadia. At the time of marriage although sufficient dowry was given but her husband and others were not happy with the same and she was regularly tortured by him for further dowry. Thereafter nearly 3½ years of her marriage at her matrimonial home, on November 24, 2012, at around 11 p.m. her husband, the appellant/convict, who was then in drunken state set her on fire. When other members of her matrimonial home extinguished the fire and on the same night removed her to Block Primary Health Centre, Krishnaganj, she was found to have sustained 70% burn injuries and was referred to Saktinagar Hospital. On November 26, 2012 from Saktinagar Hospital she was removed to Nilratan Sircar Medical College and Hospital and on December 4, 2012 she succumbed to her burn injury at that hospital. It is the further case of the prosecution after the incident she gave four dying declarations. Out of those four dying declarations, two dying declarations were oral and made to her mother PW/1 and one of her relation PW/5 at the hospital. The third dying declaration was made to the Investigating Officer of the case at Saktinagar Hospital and the same was reduced into writing by him. Similarly, the last dying declaration was recorded in the injury report by her attending doctor, on November 27, 2012 at Nilratan Sircar Medical College and Hospital. According to her mother (PW/1), relations (PW/5), they were told by the deceased that she was set on fire by her husband, the appellant/convict and by her mother-in-law. While in the two recorded dying declarations, she implicated only the appellant/convict, her husband for setting her on fire. 2. On November 25, 2012, while she was undergoing treatment at Saktinagar Hospital, her mother PW/1, Bela Rani Ghosh reported the incident to Krishnaganj Police Station and an FIR for alleged commission of offences punishable under sections 498A/326/307 IPC was registered against the appellant/convict and five others. The case was however ended in charge sheet under sections 498A/304B/302/34 IPC. 3. 2. On November 25, 2012, while she was undergoing treatment at Saktinagar Hospital, her mother PW/1, Bela Rani Ghosh reported the incident to Krishnaganj Police Station and an FIR for alleged commission of offences punishable under sections 498A/326/307 IPC was registered against the appellant/convict and five others. The case was however ended in charge sheet under sections 498A/304B/302/34 IPC. 3. The appellant/convict and five other co-accused's were then placed on trial before the Additional Sessions Judge, 3rd Court, Krishnanagar, Nadia to answer charges under sections 498A IPC, 304B/34 IPC, 302/34 IPC. 4. In the trial besides the appellant/convict, all other accused's were acquitted. However, he was convicted under sections 498A/302 IPC and was sentenced to death and to pay a fine of Rs. 1 lakh for his conviction under section 302 IPC. Against his conviction under section 498A IPC, the appellant/convict was sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/-. A default clause was attached against non-payment of fine. 5. Total 16 witnesses were examined by the prosecution to prove its case, whereas the defence examined none. Out of those witnesses PW/2 Biswanath Ghosh, PW/4 Swapan Ghosh denied their knowledge about the incident. The PW/3 Chanchal Ghosh and PW/9 Bishnu Ghosh were the seizure witnesses. PW/6 Ranjit Ghosh and PW/7 Purna Ghosh were declared hostile. PW/8 Goutam Ghosh was the scribe of the FIR. PW/1 Bela Rani Ghosh is the mother of the deceased and the informant of the case and PW/5 Tultul Ghosh is her relation. PW/11 Dr. Sushil Ranjan Ghosal was the doctor under whom the victim was admitted at NRS Hospital. PW/2 Biswanath Ghosh was her attending doctor. PW/13 Dr. Madan Mohan Mukherjee issued the death certificate and PW/14 Dr. Apurba Biswas held the post mortem. PW/16 Dr. Paromita Mondal was also a doctor who attended the victim for the first time at Krishnaganj Primary Health Centre. PW/10 Meghnad Mondal was a police personnel, who recorded the FIR and PW/15 Goutam Sarkar was the Investigating Officer of the case. None was examined from the side of the defence. It appears from the reply given by the appellant/convict to the questions put to him during his examination under 313 Cr.P.C., the defence case was one of denial and false implications. 6. None was examined from the side of the defence. It appears from the reply given by the appellant/convict to the questions put to him during his examination under 313 Cr.P.C., the defence case was one of denial and false implications. 6. Now, considering the evidence on record, we find the prosecution case that the appellant/convict killed the victim/housewife by setting her on fire, completely rests on the aforesaid four dying declarations. Two of those dying declarations were oral dying declarations and the remaining two were reduced into writing. One, by the Investigating Officer of the case while examining the victim under section 161 Cr.P.C. and another noted in the treatment documents by her attending Doctor. Both the said recorded dying declarations were exhibited during trial and marked with letter Ext.-8 and Ext.-4. We find the trial court disbelieved both the PW/1 and PW/7 and discarded their evidence on the question of dying declaration. 7. The learned counsel for the appellant vehemently contended the trial court was fully justified in refusing to give any reliance to the evidence of PW/1, Bela Rani Ghosh, the mother of the deceased, whose evidence in court is full of exaggeration and she has made a deliberate attempt to introduce a new story which receives no corroboration. According to him the evidence of PW/5, Tultul Ghosh, a relation of PW/1 was also very rightly rejected who admittedly never disclosed the factum of alleged dying declaration made to her, by the victim, during investigation to the police. He then added the PW/1, maker of the FIR, in the complaint nowhere mentioned about the fact she was told by the victim that before setting her on fire, the appellant tied both her hands from the back and the postmortem doctor also did not notice any corresponding marks of injury on the dead body. It is further submitted although the PW/1 claimed at the time when the victim told her all about those facts at Saktinagar Hospital, the doctor, nurse and police officer were present there but none of them came forward during the trial to support such contention. He then submitted that one very important point that may be noted that the victim was suffering from nervous system disorder and for which after marriage she remained at her matrimonial home for a year for her treatment as has come out from the cross-examination of the PW/1. 8. He then submitted that one very important point that may be noted that the victim was suffering from nervous system disorder and for which after marriage she remained at her matrimonial home for a year for her treatment as has come out from the cross-examination of the PW/1. 8. Coming to the dying declaration of the victim noted in the injury report, by the PW/12, Dr. Jayanta Biswas at NRS Hospital, it was vehemently contended the same has no evidentiary value and not at all reliable, since there is no contemporaneous note that at the time of making such statement, she was in a fit state of mind and capable to make coherent statement. In this regard he relied on two decisions of the Apex Court one reported in 2001 Cr LJ (SC) 3302, Smt Laxmi v. Om Prakash and Others, another AIR 2010 SC 408 , Sharda v. State of Rajasthan. It is then contended that in the injury report it was noted according to the victim the burn injuries were inflicted on her by her husband, but when appellant/convict was examined under section 313 Cr.P.C., it was put to him that the victim told PW/12 that the appellant/convict set her on fire. It is then vehemently contended "inflicting burn injury" is one thing and "setting on fire" is completely different. The first one is not the synonym of the second. The meaning of the aforesaid two words had different implications. He then contended it is mandatory for a trial court to put the exact incriminating materials available from the evidence against the accused in his examination under section 313 Cr.P.C. so as to give him the reasonable opportunity to explain the same and in absence of such compliance that piece of circumstance ought to be excluded from consideration. In this regard he relied on the decisions of the Hon'ble Apex Court reported in (2003) 12 SCC 528 , Kuldip Singh and Others v. State of Delhi and another reported in (2006) 12 SCC 306 , Vikramjit Singh @ Vicky v. State of Punjab. He then added PW/13 Dr. Madan Mohan Mukherjee issued the death certificate and PW/14 Dr. Apurba Biswas held the postmortem but none of them disclosed that burn injuries found in the body of the deceased were homicidal in nature. 9. He then added PW/13 Dr. Madan Mohan Mukherjee issued the death certificate and PW/14 Dr. Apurba Biswas held the postmortem but none of them disclosed that burn injuries found in the body of the deceased were homicidal in nature. 9. So far as the statement of the victim recorded under section 161 Cr.P.C. by the Investigating Officer and treated during trial as dying declaration, it was submitted that the story narrated therein is completely different from the prosecution case. It was vehemently contended according to such statement fire was ignited by using gas-lighter but it is a common knowledge that gas-lighter is only used to ignite a gas-oven but not to ablaze anything. There is no evidence that at the time of making such declaration the victim was mentally alert and physically fit and although such statement was recorded inside the female ward but at the time of recording, the presence of any doctor, nurse or any other staff was never secured. It was pointed out that PW/15, the Investigating Officer of the case who recorded such statement, admitted he made no attempt to get any certificate from the doctor that the victim was mentally fit to make such statement. No signature was obtained, no treatment document was seized from the Saktinagar Hospital. It was contended that although the victim survived for 10 days, no attempt was made to get her statement recorded by any Executive Magistrate. It was also contended the dying declaration cannot be the sole basis of conviction in absence of any corroborative materials. 10. Lastly it was contended that PW/16 Promila Mondal soon after the incident examined the victim at Krishnaganj Block Primary Health Centre and it was categorically noted in the medical document that she was used to consume anti-psychotic drugs and not in a position to speak. The learned counsel of the appellant submitted since no case punishable under section 302 IPC has been proved against the appellant/convict, he does not propose to make any submission on the point of sentence. 11. The learned Public Prosecutor however contended it is true that PW/1 Bela Rani Ghosh made certain exaggeration while narrating in court the dying declaration of the victim, but for the same her entire evidence cannot be discarded and if at all only the exaggeration part may be excluded from consideration. 11. The learned Public Prosecutor however contended it is true that PW/1 Bela Rani Ghosh made certain exaggeration while narrating in court the dying declaration of the victim, but for the same her entire evidence cannot be discarded and if at all only the exaggeration part may be excluded from consideration. He further submitted it cannot be disputed that at the earliest opportunity she disclosed to the police that it was the appellant/convict who set her on fire as was told by her daughter and that part of her evidence could not be shattered in any manner whatsoever. In this regard he relied on the decision of the Hon'ble Apex court in the case of Leela Ram v. State of Haryana reported in (1999) 9 SCC 525 . He further submitted merely because a witness has added something while deposing in court but not stated to the police that does not mean that his or her entire evidence to be rejected outright and at best court may exclude those facts subsequently disclosed. He submitted the most vital witness of the prosecution is Dr. Jayanta Biswas PW/12, who attended and treated the victim at NRS Hospital. He contended while deposing in court, PW/12 stuck to his claim that when he examined the victim, she was fully conscious and not only was able to speak but was in a position to speak coherently and the victim told him that it was her husband who inflicted burn injuries on her at about 12.05 a.m. on 25.11.2012, which he noted down in the treatment sheets. He further submitted the defence never questioned his neutrality. Lastly, he added a witness may lie but not a document. 12. So far as the Ext.-8 is concerned, it was contended by the learned Public Prosecutor that the same was recorded under section 161 Cr.P.C. and therefore non-recording of the same in presence of the doctor, nurse or any hospital staff is of no consequences as it was not required by the law. He further submitted when such statement of the victim contained the circumstances leading to her death, the same can very well be used as her dying declaration and must not be rejected on the ground raised from the side of the defence. He further submitted when such statement of the victim contained the circumstances leading to her death, the same can very well be used as her dying declaration and must not be rejected on the ground raised from the side of the defence. He submitted nothing could have been brought out from the cross-examination of the Investigating Officer that he was in any way interested in false implication of the appellant/convict. He then vehemently contended in all the aforesaid dying declarations, the victim implicated her husband and none else for setting her on fire, which shows its genuinity. 13. He lastly added the incident took place inside the matrimonial home of the victim and inside her bedroom, therefore, the appellant/convict, her husband is the best person to explain as to how she caught fire and his silence clearly indicates that it is none else than he, who set her on fire and caused her death and his conviction under section 302 IPC was fully justified. However, he submitted that this is not a case of death sentence. 14. We have considered the rival submissions made on behalf of the parties. Perused the materials on record and the case laws relied upon. 15. As earlier noted it is a case essentially based on the dying declaration of the victim/housewife which are four in numbers. Two of such dying declarations were oral, rest two have been reduced into writing by the persons to whom such declarations were made. The recorded dying declarations during the trial were exhibited and marked as Ext.-4 and Ext.-8 respectively. 16. Duty of the appellate court is co-extensive with that of the trial court in the matter of assessment, appraisal and appreciation of evidence and also to determine disputed issues. The court is to look into the evidence adduced and come to an independent conclusion as to whether such evidence can be relied upon and on the same prosecution case can be said to have been proved beyond all reasonable doubt. The appellate court like trial court has to be satisfied affirmatively that prosecution case is substantially true and the guilt has been proved beyond all reasonable doubt. It is not sufficient for the appellate court to look into the findings of the trial court and render its decision either by confirming or by striking out the same. 17. The appellate court like trial court has to be satisfied affirmatively that prosecution case is substantially true and the guilt has been proved beyond all reasonable doubt. It is not sufficient for the appellate court to look into the findings of the trial court and render its decision either by confirming or by striking out the same. 17. The evidence of both PW/1 Bela Rani Ghosh and PW/5 Tultul Ghosh on the question of dying declaration was not accepted by the trial court. The evidence of PW/1 on the issue was rejected on the ground of contradiction between the content of the FIR, the maker whereof was she herself and her substantive evidence in the court. The trial court found while in the FIR it was said that the victim told her that her husband (appellant/convict) poured kerosene oil and set her on fire but in court, it was her evidence that she was told by the victim at the hospital that her husband, (appellant/convict) tied both of her hands from back and burnt her and at that time she was in her room. There is no dispute that in her evidence-in-chief, PW/1 for the first time disclosed before the court that she was told by the victim that she was tied up by both of her hands from back by the appellant/convict, without referring such fact in the FIR. We are of the opinion the trial court, at least, should not have disbelieved PW/1 on the question that she was told by the victim that she was set on fire by the appellant/convict. The approach of the trial court is quite mechanical and erroneous. It is the duty of the trial court when confronting with such a situation to disengage truth from falsehood and to accept what is true and reject the untrue part. However, if the truth and falsehood are so inextricably mixed up that the entire fabric of narration becomes unbelievable the court can reject the evidence in to to. Exaggeration by a witness as to the part played by an accused in course of incident is quite common. In such a situation the court has to be circumspect in the appreciation of evidence, so that over emphasis does not cause either the innocent to be wrongly convicted or guilty to be wrongly acquitted. Because in either case justice would fail. In such a situation the court has to be circumspect in the appreciation of evidence, so that over emphasis does not cause either the innocent to be wrongly convicted or guilty to be wrongly acquitted. Because in either case justice would fail. In this regard plethora of decisions of the Apex Court can be referred but to avoid prolixity in our opinion it would be enough if we mention a few. AIR 1970 SC 219 , Kanbi Nanji Virji and Ors. v. The State Of Gujarat, (1974) 3 SCC 536 , Bhagwan Tana Patil v. State of Maharashtra, AIR 1974 SC 21 , Bhagwan Tana Patil v. State of Maharashtra, AIR 1980 SC 957 . Bhe Ram v. State of Haryana, AIR 1978 SC 1096 , Keshoram Bora v. State of Assam, 1971 (3) SCC 416 , Masji Tato Rawool and others v. State of Maharashtra. This is not such a case where the truth and falsehood are so intricately mixed up that it could not be possible for any court to unfasten the truth from the falsehood. 18. On consideration of the evidence of PW/1, we find in a case where her daughter sustaining 70% burn injuries was fighting with death at hospital, the PW/1 reported the incident to the police with utter promptitude which excludes any possibilities of making out a false story. Therefore the facts disclosed in the FIR cannot be discarded merely because in the court there was some exaggeration by the maker thereof. There is no valid reason to abandon the case of the informant made out in the FIR, when the same was corroborated in her substantive evidence in court and the defence in her lengthy cross-examination could not able to shatter her. We further find the postmortem doctor was never cross-examined by the defence whether during postmortem he has noticed or not, any marks of injury on the hands of the victim. However, according to the postmortem doctor PW/14, burn injuries with infected ulcer was present over the anterior surface of both of her forearms. We are, therefore, of the opinion that the evidence of PW/1 that at hospital the victim disclosed to her that her husband set her on fire can safely be acted upon and the trial court committed a clear mistake in rejecting the evidence of PW/1 as a whole. We are, therefore, of the opinion that the evidence of PW/1 that at hospital the victim disclosed to her that her husband set her on fire can safely be acted upon and the trial court committed a clear mistake in rejecting the evidence of PW/1 as a whole. Furthermore, FIR is not the encyclopedia of the prosecution case and detailed version of incident is not always necessary to refer therein. The whole object of the FIR is to disclose the facts constituting cognisable offence and to set the criminal law into motion. It is sufficient if FIR contains the material facts. The evidence of the PW/1 that she was told by the victim, her daughter, that she was set on fire by the appellant/convict is the very foundation of her evidence against the appellant/convict and on that prosecution case hinges. Merely because while deposing in court the witness disclosed that she was also told by the victim that at that time both her hands were tied from back, cannot be said to have reduced her entire evidence a contrived one brought into existence after due deliberation. So far as the evidence of PW/5 Tultul Ghosh on the question of dying declaration by the victim to her, since was not disclosed by her to the Investigating Officer of the case, when examined during investigation, we are in complete agreement with the trial court that such evidence of PW/5 must not be relied upon. 19. The next incriminating evidence against the appellant/convict relied upon by the prosecution is the statement of the victim recorded by the Investigating Officer of the case, at Saktinagar Hospital and having regard to the facts in her such statement the victim disclosed as to how she sustained burn injury, which finally resulted in her death, the same was treated as her dying declaration during the trial and was marked as Ext.-8. The trial court very much relied on this piece of evidence. Now the only question that arises for our consideration in this appeal whether the same can at all be acted upon or not. It is not the law that merely because a dying declaration has been recorded by a police officer that too, by the Investigating Officer of the case, the same is completely devoid of any probative value and is liable to be rejected. It is not the law that merely because a dying declaration has been recorded by a police officer that too, by the Investigating Officer of the case, the same is completely devoid of any probative value and is liable to be rejected. The acceptance of such dying declaration is essentially based on the same principle as in other case, that is on a finding, whether the same has a ring of truth or not. The learned Public Prosecutor contended that a man may lie but not a document and therefore the Ext.-8 must be acted upon. We do not find any substance in such submissions. We are not at all concerned with the document but really concerned with the question whether the content thereof can be safely acted upon. It be noted nothing could be highlighted that the Investigating Officer of the case has a prior animosity against the appellant/convict. Admittedly, the victim was examined by the Investigating Officer of the case at Saktinagar Hospital when she was being treated there. Before recording of her statement it was very much known to the Investigating Officer, PW/15 of the case that already she has disclosed to her mother PW/1 that she was set on fire by her husband, the appellant/convict herein. Therefore, it was incumbent upon the Investigating Officer before examining the victim at the hospital bed in a female ward to obtain prior permission of the hospital authority and to examine her in presence of her attending doctor or any medical staff. We find Ext.-8 is a lengthy document and runs into a full page containing many minute details. There were interpolations and additions with rider in the original. The exact time of recording of such statement was not noted. Although in case of recording of 161 statement of a witness, it is not necessary to record the time but in this case such necessity cannot be dispensed with. The Ext.-8 was not authenticated by any attesting witness. We however find no merits in the submissions of the learned counsel of the appellant/convict on the point that such statement did not bear the signature or LTI of the victim, except reminding, the same was a routine statement recorded under section 161 Cr.P.C.. However, due to the infirmities noted hereinbefore, we are of the opinion it would be always safe not to rely on the aforesaid dying declaration Ext.-8. 20. However, due to the infirmities noted hereinbefore, we are of the opinion it would be always safe not to rely on the aforesaid dying declaration Ext.-8. 20. The last and most vital incriminating materials against the appellant/convict is Ext.-4, the statement of the victim as to how she suffered burn injuries and noted in the injury report by her attending doctor. It is true the evidence of doctor is to be approached in the same manner as in case of other witnesses. It cannot be said that a doctor is always a witness of truth and there is no such presumption in law. The evidence of doctor is also required to be tested in the touchstone of cross-examination as in all criminal trial is done to determine the veracity of a witness. It is not disputed by the defence far less there was any challenge that on November 27, 2012 and on November 28, 2012, the victim was treated at NRS Hospital by the PW/12 Dr. Jayanta Biswas. In the continuation sheet for daily notes and advices relating to the treatments of the victim, at Nilratan Sircar Medical College and Hospital, Kolkata, we find there is a note recorded by the PW/12 in his own handwriting that she disclosed to him how she caught fire. The statement so recorded was very brief and goes like this ............patient was inflicted burn injuries by her husband on January 25, 2012 at approximately 12.05 a.m. The shortness of the statement is itself a guarantee of its veracity. It is true that the dying declaration was not recorded in question answer form and the time of recording was not noted. There is no statutory form prescribed for recording of dying declaration by the attending doctor. We, therefore, do not find any fault on the part of the attending doctor in the manner and mode in which the dying declaration was recorded. Mere non-mentioning of the time when the same was recorded is also quite insignificant. Furthermore, there were entries before and after the entry in which the dying declaration of the victim was noted and those entries contained the details of treatment provided to the victim. The entry against which the dying declaration was noted also contained the advice of the doctor regarding medication. At the same place her medical condition namely, blood pressure, pulse rate etc. also noted. The entry against which the dying declaration was noted also contained the advice of the doctor regarding medication. At the same place her medical condition namely, blood pressure, pulse rate etc. also noted. It is true there is no note that at the time when her statement was recorded, she was in a fit state of mind to make such statement. However, PW/12 in his substantive evidence before the court disclosed that she was conscious and was cooperative. In our opinion it is sufficient to accept that the victim was in a fit state of mind when she made her dying declaration. Much have been argued by the learned counsel of the defence that according to PW/12, when he treated the victim, on examination he found the patient was confused i.e. she could not give proper answer to his question and had tachycardia, i.e., rapid pulse rate and it was thus contended no reliance shall be placed on the alleged dying declaration Ext.-4. We are unable to accept such contention since both the words 'confused' and 'tachycardia' was noted against the entry of November 28, 2012, whereas her dying declaration was recorded by the doctor PW/12 on November 27, 2012. It further be noted the PW/12 was never suggested by the defence that the victim was not mentally fit to make such statement except drawing the attention of the doctor PW/12 that there was no note to that effect in the entry. Thus by no stretch of imagination it can be said that at the time of making dying declaration the victim was not in a fit state of mind. Thus, there is hardly any reason to disbelieve such dying declaration. 21. PW/6 Ranjit Ghosh and PW/7 Purna Ghosh are the local residents. Both of them were, however, declared hostile during the trial. Merely because a witness has been declared hostile that does not mean that his entire evidence would be effaced away. On the other hand the law permits to rely and act on such part of the evidence of a hostile witness which does not suffer from any contradiction. On close examination of the evidence of both the witnesses, we find according to them that incident in which the victim sustained burn injuries was taken place in her in law's house. On the other hand the law permits to rely and act on such part of the evidence of a hostile witness which does not suffer from any contradiction. On close examination of the evidence of both the witnesses, we find according to them that incident in which the victim sustained burn injuries was taken place in her in law's house. We find during the examination of the appellant/convict under section 313 Cr.P.C. two specific questions were put to him with reference to such evidence of PW/6 Ranjit Ghosh and PW/7 Purna Ghosh. Those questions are quoted below : Q.6. P.W. 6 Ranjit Ghosh has stated in his evidence that Ashima Ghosh died in your room after suffering a burn injury. What will you say in this regard? Q.7. P.W.7 Purna Ghosh has stated in his evidence that Ashima Ghosh died in your room after suffering a burn injury. What will you say in this regard? We find the appellant/convict has not disputed that the incident took place inside his house and in his room and he replied that the same to be "true". 22. The burden of proving, the guilt of an accused is of course on the prosecution but there may be certain facts relating to a crime that can be known only to the accused and are virtually impossible to the prosecution to prove the same. In this case as to how the victim caught fire inside her matrimonial house in her bedroom at midnight is a matter, which is exclusively within the special knowledge of the appellant/convict and it is he only who can explain the same. There are fair possibilities of her catching fire accidentally or of setting her on fire by someone else other than the appellant/convict, it was also quite possible that the appellant/convict had ablazed her. But when it was not the case of the appellant/convict that the victim caught fire accidentally or that she was set on fire by other than him, the only logical conclusion would be that it was the appellant/convict who set her on fire. This conclusion is clearly in consonance with the provisions of section 106 of the Evidence Act. But when it was not the case of the appellant/convict that the victim caught fire accidentally or that she was set on fire by other than him, the only logical conclusion would be that it was the appellant/convict who set her on fire. This conclusion is clearly in consonance with the provisions of section 106 of the Evidence Act. This failure on the part of the appellant/convict to explain how the victim caught fire inside her matrimonial home and in her bedroom, is a strong incriminating circumstance against the appellant/convict pointing towards his guilt and ought to be treated as an additional link in concluding that the appellant/convict himself and not anyone else set her on fire. 23. Having regard to the oral dying declaration made by the victim/housewife to her mother PW/1 and her dying declaration recorded by her attending doctor Ext.-4, coupled with the failure of the appellant/convict to explain how the victim caught fire inside her matrimonial home in her bedroom in his presence, we are of the opinion that the trial court was fully justified in convicting the appellant/convict under section 302 IPC and the order of conviction deserves no interference. Accordingly the same stands sustained. 24. Now, coming to the question of sentence it has already been noted that the learned Public Prosecutor never insisted that this is a rarest of rare case. We are in full agreement with the learned Public Prosecutor. We find this is not a fit case to award extreme penalty and consequently, the sentence of death is commuted to imprisonment for life. In the result, this appeal is allowed in part and the death reference is rejected. While the order of conviction is upheld, the sentence of death is reduced to imprisonment for life. Office is directed to send down the LCR together with the copy of the judgment to the court below at once. Urgent xerox certified copy of this order be given to parties, if applied for, as early as possible. Malay Marut Banerjee, J. - I agree.