ORDER : 1. List has been revised. None appears on behalf of the appellant to press this appeal, although, name of Sri A.K. Tiwari is printed in the cause list, as counsel for the appellant. 2. Record reflects that appellant-Raj Kumarwas enlarged on bail by this Court on 02.04.1992. However, when this appeal came up for hearing on 09.11.2016, case was called out in the revised list, but none appeared on behalf of the appellant to press this appeal. The following order was passed by us on 09.11.2016: “Case called out in the revised list. No one is present on behalf of the appellant to press this appeal. Sri Saghir Ahmad and Sri J.K. Upadhyay learned AGAs are present. Perused the order sheet. This appeal is of the year 1989. Record shows that the appellant is on bail. In view of above, issue non-bailable warrant against accused-appellant-Raj Kumar through Chief Judicial Magistrate, Varanasi returnable at an early date. In case the appellant surrender and/or is arrested, he shall be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the undertaking that he shall appear before this Court on the next date fixed. Chief Judicial Magistrate, Varanasi shall submit his report along with copy of bail bonds and sureties furnished by the appellant. List this case on 15th December, 2016.” 3. In response to the aforesaid order, C.J.M. Varanasi has forwarded his report dated 16.02.2017 to this Court, perusal whereof discloses that appellant-Raj Kumar had left his house-K23/38 Doodh Vinayak, Police Station-Kotwali, District Varanasi, where he was residing at the time of filing of this appeal more than 20 years before and his whereabouts were not known, accordingly an order was passed by us for proceeding against the appellant's sureties. 4. When this matter was listed on 23.03.2017, from the perusal of the report of Chief Judicial Magistrate, Meerut dated 18.03.2017, it transpired that Chief Judicial Magistrate, Varanasi could not proceed against the sureties of the appellant as the bail bonds furnished at the time of his being released on bail were not available in the office of Chief Judicial Magistrate, Varanasi as the same had been transmitted to this Court. We accordingly passed an order directing the office of this Court to trace out the bail bonds furnished by the sureties of the accused-appellant Raj Kumar and place the same on the record of this appeal. 5. Office report dated 29.03.2017 reveals that bail bonds of the sureties of the appellant were not found in the lower court record received by the office from District Judge, Varanasi. 6. Thus, in view of above, it is apparent that there is hardly any possibility or likelihood of the accused-appellant-Raj Kumar, who is absconding, being arrested and produced before this Court. It is apparent that neither the appellant nor Sri A.K. Tiwari, whose name has been printed in the cause list, as counsel for the appellant, are interested in the disposal of this appeal. 7. To cut a long story, we do not find any prospect of the accused-appellant-Raj Kumar, who is absconding, being traced out and produced before this Court. It is apparent that he is not interested in the disposal of this appeal and has abused the liberty of bail by failing to appear before this Court despite non-bailable warrants issued against him. The question, which arises before us, is that whether we are bound to wait till the accused-appellant is searched out, if at all, and produced before us and keep on adjourning the hearing of this appeal suo-motu perenially. 8. Faced with the aforesaid contingency and looking to the huge pendency of cases before this Court, we are not inclined to pass over this appeal. Under identical circumstances, the Apex Court, after a comprehensive analysis of previous decisions on the issue, has distilled the legal position into six propositions in paragraph 19 of its judgment delivered in the case of K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 : 19.1. That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2. That the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; 19.3. That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;” 19.4. That it can dispose of the appeal after perusing the record and judgment of the trial court; 19.5. That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;” 19.4. That it can dispose of the appeal after perusing the record and judgment of the trial court; 19.5. That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and 19.6. That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. 9. Thus, in view of the legal position propounded by the Apex Court in the case of K.S. Panduranga (Supra), we proceed to examine this appeal on merits with the help of Sri A.N. Mulla assisted by Sri Saghir Ahmad, Sri J.K. Upadhyay, Kumari Meena, learned A.G.As. and Smt. Manju Thakur, Sri Syed Hasan Shaukat Abidi and Sri Ravindra Mani Pal, learned brief holders for the State. 10. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 8thAugust, 1989 passed in Sessions Trial No.121 of 1987, State Vs. Raj Kumar arising out of Case Crime No.13, Police Station-Kotwali, District-Varanasi, whereby the accused-appellant-Raj Kumarhas been sentenced to undergo life imprisonment under Section 302 IPC. 11. The prosecution story, as unravelled by the first information report, reveals that a written report was moved with Police Station-Kotwali of District-Varanasi on 17.1.1987 at 11.05 P.M. by Changur Ram S/o Mahavir Prasad, proceeded against Raj Kumar with allegations that informant's daughter-Shail Kumari-was wedded to Prem Kumar (elder brother of accused-appellant Raj Kumar) s/o Basant Lal r/o House No. K-23/38-Mohalla Doodh Vinayak, Police Station-Kotwali, District Varanasi, seven months ago before the occurrence. On 16.01.1987 at about 3 P.M., Raj Kumar (younger brother of Prem Kumar), sprinkled kerosene oil on the informant's daughter-Shail Kumariand set her ablaze. The informant-Changur Ram took his daughter-Shail Kumari to Kabir Chauraha Hospital and was busy in taking care of his daughter, due to which, he could not come to the police station for lodging the first information report. The informant-Changur Ram took his daughter-Shail Kumari to Kabir Chauraha Hospital and was busy in taking care of his daughter, due to which, he could not come to the police station for lodging the first information report. Informant's daughter had fallen asleep, when he came to lodge this report. Request was made for lodging the report and taking appropriate action. The written report is Ex.Ka.1. 12. Entry of contents of written report was noted in the concerned check F.I.R. at 11.05 P.M. on 17.01.1987 by constable Acchey Lal at Case Crime No.13 of 1987 u/s 307 I.P.C., Police Station Kotwali, District-Varanasi, which is Ex.Ka.6. He has testified in his cross-examination that a memo was received at the Police Station on 16.01.1987 regarding Smt. Shail Kumari at 5.50 P.M., entry whereof was made in the concerned G.D. entry no.67 of Police Station-Kotwali, District-Varanasi marked as Ex.Kha.2. 13. On the basis of entry made in the check F.I.R., case was registered at the concerned G.D. on the same time and date under aforesaid case crime number against accused-Raj Kumar u/s 307 I.P.C., copy whereof is Ex.Ka.7. This G.D. has been proved by constable Shatrughan Mishra P.W.7. 14. Record further reflects that Smt. Shail Kumari was medically examined at S.S.P.G. Hospital, Varanasi on 16.01.1987 at 4.45 P.M. and it has been indicated in this medical examination report that she was brought by Sri Raj Kumar. Dr. P.D. Singh medically examined the then alive victim Smt. Shail Kumari, where he noted the following injuries on her person: “Superficial burn face, neck, front of chest, front of abdomen, front of pelvis and back, both arm, forearm and head, both buttocks, both thigh and legs. Caused by fire, kerosene oil smell coming out.” 15. This medical examination report is Exhibit-C 1. 16. Record further reflects that on 16.01.1987, after the injured was admitted to the hospital, her dying declaration was recorded by Murli Manohar Lal (P.W.2), who was Additional City Magistrate-I, Varanasi, on 16.01.1987 and before recording dying declaration, fitness certificate was given by Dr. P.D. Singh P.W.9, around 9.00 P.M. on 16.01.1987 and got marked left thumb impression of the injured on the dying declaration and has proved his certification as Ex.Ka.2(a). Dying declaration has been proved by Murli Manohar Lal P.W.2 as Ex.Ka.2. 17. Record further reflects that the deceased died in the morning of 21.01.1987. P.D. Singh P.W.9, around 9.00 P.M. on 16.01.1987 and got marked left thumb impression of the injured on the dying declaration and has proved his certification as Ex.Ka.2(a). Dying declaration has been proved by Murli Manohar Lal P.W.2 as Ex.Ka.2. 17. Record further reflects that the deceased died in the morning of 21.01.1987. Information of her death reached at the police station around 7.05 A.M. on 21.01.1987 and an entry was made in the relevant G.D. serial no.22 of date 21.1.1987 and the case was altered from Section 307 I.P.C. to one under Section 302 I.P.C. Relevant G.D. entry is Ex.Ka.8. 18. The investigation was taken over by S.I. Shubhash Chandra Tripathi P.W.6 on 18.1.1987 by order of Station Officer of Police Station-Kotwali on 18.01.1987. He noted contents of check F.I.R. and entry made in the G.D. and arrived at Kabir Chauraha Hospital, Varanasi. Shail Kumari was unconscious, therefore, he could not record her statement on 19.01.1987. He recorded statement of Changur Ram, the informant. On 21.01.1987, he obtained copy of dying declaration and thereafter made a note of the same in the case diary. He has also recorded statement of Selhu Ram, the prosecution witness. He has also prepared site plan of the place of occurrence, Exhibit- Ka.5. He has also made relevant entry in the concerned G.D. and case diary after the case was converted from Section 307 I.P.C. to Section 302 I.P.C. 19. Record reflects that as soon as the news of death of Shail Kumari reached the police station, constable Ram Jatan Ram P.W.8, along with S.I. R.R. Mishra, proceeded to S.S.P.G. Hospital, Kabir Chauraha, where inquest of deceased was held and he made his signature on the same. Since formal prove of inquest report Ex.Ka.9 was dispensed with and death was not disputed, the inquest was accepted as above. The dead body was sealed by S.I. Sri R.R. Mishra and relevant papers were also prepared for sending the dead body for postmortem examination and constable Ram Jatan Ram P.W.8 identified the dead body in the mortuary, whereupon, postmortem examination on the cadaver of deceased Shail Kumari was conducted by Dr. The dead body was sealed by S.I. Sri R.R. Mishra and relevant papers were also prepared for sending the dead body for postmortem examination and constable Ram Jatan Ram P.W.8 identified the dead body in the mortuary, whereupon, postmortem examination on the cadaver of deceased Shail Kumari was conducted by Dr. S.K. Tripathi P.W.3 on 20.01.1987 at 5.15 P.M., wherein the following ante-mortem injury was noted: “Dermo epidermal burn on all over body except upper ¾of the chest, back, adjacent neck on back, forehead, upper half of the face, both sole feet, scalp with hairs, sloughing all over the body except the trunk. Pus also present in sloughed area maximum on both thighs and hips. On internal examination, Dr. S.K. Tripathi found the brain congested. Pleura and trachea in thorax were also congested. Inside abdomen, peritoneum, gall bladder, pancreas, spleen and kidneys were also congested. In the stomach, greenish water 200 mls. with altered blood blackish red was found and large intestines contained altered blood and large intestines contained faecal matter with altered blood.” 20. In the opinion of doctor, death was caused due to the burn shock followed by septicaemic shock as a result of extensive burn on the dead body. This doctor has proved postmortem examination report as Ex.Ka.3. 21. In the meanwhile, Investigating Officer was changed and the investigation was taken over on 22.01.1987 by Dy. S.P. Vijay Kumar Agarwal P.W.5. He recorded statement of brother of accused-Prem Kumar and his father; after completing the investigation, charge-sheet was filed against the accused on 30.01.1987 as Exhibit- Ka4. He also recorded the statement of the accused in Jail on 6.3.1987 after the surrender of accused. 22. Record further reflects that the defence also got proved Ex.Kha.1. 23. Pursuant to the filing of the charge-sheet, proceeding of the case was committed to the court of Sessions. As a sequel to that, this case was made over for trial and disposal to the Court of SessionsVaranasi where it was numbered as S.T. No.121 of 1987, State Vs. Raj Kumar. The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case u/s 302 I.P.C. against the accused-appellant. Therefore, it framed charge against the accused-appellant under Section 302 IPC. Charge was read over and explained to the accused, who abjured the charge and opted for trial. 24. Raj Kumar. The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case u/s 302 I.P.C. against the accused-appellant. Therefore, it framed charge against the accused-appellant under Section 302 IPC. Charge was read over and explained to the accused, who abjured the charge and opted for trial. 24. The prosecution in order to prove the guilt of the accused examined as many as ten prosecution witnesses. Brief reference of the same is sketched herein below: 25. Changur Ram P.W.1 is the informant and father of the deceased (Shail Kumari) and he has lodged the first information report, Exhibit- Ka1. He has lodged the written report. 26. Murli Manohar Lal P.W.2 is the Additional City Magistrate-I, Varanasi, who recorded dying declaration of the deceased on 16.01.1987 and has proved the dying declaration as Ex.Ka.2. 27. Dr. S.K. Tripathi P.W.3 had conducted autopsy on the dead body of Smt. Shail Kumari on 20.01.1987 and has proved the postmortem report as Ex.Ka.3. 28. Selhu Yadav P.W.4 is witness of fact that at the relevant point of time when the fire caught the deceased, he was present in his house. He claims himself to be the landlord of Prem Kumar husband of deceased. 29. Vijay Kumar Agarwal P.W.5 is the second Investigating Officer. He conducted part of the investigation, which was started by S.I. Subhash Chandra Tripathi-P.W.6. He has filed charge-sheet against accused-Ex.Ka.4. Initially, the investigation was taken over by S.I. S.C. Tripathi P.W.6 and he has detailed the various steps, which he took towards his part of the investigation. 30. Constable Shatrughan Singh P.W.7 has proved entry made in the check F.I.R. Ex.Ka.6 at the relevant G.D. entry, case was registered against the accused. G.D. entry is Ex.Ka.7. He has also proved fact of alteration of case from Section 307 I.P.C. to one under Section 302 I.P.C. on 21.1.1987 and has proved the relevant G.D. entry of the date as Ex.Ka.8. 31. Constable Ram Jatan Ram P.W.8 has proved fact by filing affidavit that he in company with S.I. R.R. Mishra held inquest of deceased Shail Kumari and thereafter the dead body was brought and kept in the mortuary by this witness and the same was identified by him as well. 32. Dr. 31. Constable Ram Jatan Ram P.W.8 has proved fact by filing affidavit that he in company with S.I. R.R. Mishra held inquest of deceased Shail Kumari and thereafter the dead body was brought and kept in the mortuary by this witness and the same was identified by him as well. 32. Dr. P.D. Singh P.W.9 had conducted medical examination of deceased Shail Kumari (while alive) on 16.01.1987 and has also proved injury report of Shail Kumari as Ex.C1. He has also proved facts that he sent a memo to Police Station-Kotwali for recording the dying declaration of Shail Kumari by a Magistrate and carbon copy of the aforesaid memo has been proved by him as Ex.C2. He has also proved bed-head ticket as Ex.C3. He has stated in his testimony on page no.58 that Ex.C2 was in fact information given to the police station regarding death of deceased-Shail Kumari and fact regarding Ex.C2 was inadvertently given by him. The memo sent to the police station for recording dying declaration by a Magistrate has been proved as Ex.C4. This doctor has also issued certificate of fitness to the deceased at the time of recording of the dying declaration and has proved the same as Ex.Ka 2(a). 33. Constable Acchey Lal P.W.10 has proved check F.I.R. Ex.Ka.6 and G.D. at serial no.67 on 16.01.1987 at 5.50 P.M. as Ex.Kha.2. 34. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he termed his implication false and submitted that Shail Kumari used to go to her parental home of her own freewill and the accused used to ask her not to visit her parental home, due to which her father Changur Ram was inimical towards him. Some altercation also took place between accused and Changur Ram. On the day of the occurrence, 'daswa' ceremony (a ritual which takes place on the 10th day after the death of a person) of his mother was being performed. Changur's mother also came to attend the ceremony and admonished Shail Kumari and some altercation took place, whereupon, Shail Kumari started weeping. In the meanwhile, the elder brother of accused Raj Kumar and elder sister Ram Dhani also arrived. After grandmother of Shail Kumari had left and brother and sister of the accused also came out, Shail Kumari sprinkled on herself kerosene oil and put herself on fire. In the meanwhile, the elder brother of accused Raj Kumar and elder sister Ram Dhani also arrived. After grandmother of Shail Kumari had left and brother and sister of the accused also came out, Shail Kumari sprinkled on herself kerosene oil and put herself on fire. The fire was put off by the accused and the injured was taken to the hospital. Shail Kumari also wrote two letters regarding fire being caused to her, which are material Ex.3 and material Ex.4. Changur Ram, in order to save his own mother, has falsely got recorded dying declaration of the deceased-Shail Kumari by the Magistrate. Shail Kumari was unconscious and she never made any statement. The defence was asked to adduce its testimony, if any. Accused produced his elder brother-Prem Kumar (husband of the deceased) as D.W.1, who has deposed on various material aspects of the case. 35. The learned Sessions Judge after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction, under section 302 of Indian Penal Code and sentenced the accused-appellant to imprisonment for life. 36. Resultantly, this appeal. 37. Learned A.G.A. has claimed that the dying declaration of the deceased-Shail Kumari was recorded before the trial court, which forms basis of the conviction. Before recording the dying declaration by the Additional City Magistrate-I, Varanasi, fitness certificate was given by Dr. P.D. Mishra P.W.9, which certification was proved by him as Ex.Ka.2(a). In the dying declaration, the deceased herself described the incident as to how she was set ablaze by the accused and the accused having an evil eye on her and he tried to molest her. When resisted, the accused got infuriated and sprinkled kerosene oil on her and set her ablaze. The facts and circumstances of the case innocuously pointed to the guilt of the accused because no worthy motive was existing for falsely implicating the accused in this case. The accused has cleverly tried to save the situation by producing Prem Kumar as D.W.1 (husband of the deceased), but testimony of the husband-Prem Kumar is shaky and motivated and indicates that it has been given with a view to save the accused. Accused-Raj Kumar is the younger brother of D.W.1 (Prem Sagar). The dying declaration recorded by the Magistrate has been proved before the trial court. The dying declaration is in Question-Answer form. Accused-Raj Kumar is the younger brother of D.W.1 (Prem Sagar). The dying declaration recorded by the Magistrate has been proved before the trial court. The dying declaration is in Question-Answer form. No doubt can be expressed on it. Bare perusal of the dying declaration shows that it is voluntary and consistent and it rules out possibility of any tutoring from any source. The Magistrate, who recorded the dying declaration and the doctor who gave fitness certificate before recording of the dying declaration had no motive to falsely record the dying declaration of Shail Kumari. To say that the deceased was unconscious and was not in a position to utter words is against testimony on record. Changur Ram P.W.1, the father of the deceased, has proved fact that the deceased used to tell her parents about the evil design of the accused to molest her. 38. Learned A.G.A. next submitted that it is a case based on circumstantial evidence and obviously the death is admitted. Defence has furnished explanation in the form of suicide being committed by the deceased, whereas material Exhibits-Ex.Kha3 and Ex.Kha.4 as suicide notes have been cogently denied to be in the hand-writing of the deceased. Therefore, it is obvious that the accused has tried to create false evidence for his defence. The learned trial judge has rightly recorded conviction and passed just sentence. 39. We have considered the submissions advanced before us by learned A.G.A. The core consideration that crops up for adjudication of the appeal relates to fact whether the prosecution has been able to prove beyond reasonable doubt charge against appellant and the trial court has based its finding of conviction on evidence on record? 40. We have scrutinized carefully the entire testimony on record. Upon careful perusal of testimony of Changur Ram P.W.1, the father of the deceased, we come across fact that P.W.1 has testified to the ambit that his daughter-Shail Kumari was wedded to Prem Kumar. Prem Kumar was residing with Raj Kumar, his mother and his younger sister. They resided in Mohalla-Doodh Vinayak. Marriage of Shail Kumari with Prem Kumar took place about seven months prior to the incident. Shail Kumari visited her parental home after the marriage 4-5 times. Prem Kumar was residing with Raj Kumar, his mother and his younger sister. They resided in Mohalla-Doodh Vinayak. Marriage of Shail Kumari with Prem Kumar took place about seven months prior to the incident. Shail Kumari visited her parental home after the marriage 4-5 times. Prior to her death, Shail Kumari had told her father for arranging a separate house because Raj Kumar ('devar' of the deceased) was having evil design on her, therefore, she doesn't want to live with her 'devar' Raj Kumar. She told him that Raj Kumar had teased her. This witness (P.W.1) consoled his daughter and asked her to adjust in the circumstance. He has further testified that mother of Raj Kumar had died about ten days prior to the incident and on the day of the occurrence, 'daswa' ceremony was being performed at the 'Siliya Ghat'. Sister of Raj Kumar and Mohan were also present there. He also testified that wives of his close relatives had also attended the ceremony. Mother of this witness had gone to the house of Raj Kumar from 'Siliya Ghat' and this witness (P.W.1) also went to his house. He received telephonic information from Dr. Zafar. Information was given to the effect that his daughter-Shail Kumari has sustained burn injury and she has been admitted at Kabir Chauraha Hospital, Varanasi. The informant along with his brother rushed to the hospital and found his daughter in burnt condition. He asked about the matter from the father-in-law of the deceased, whereupon, he expressed his ignorance about burn injury. Thereafter, father-in-law went away from the hospital. Raj Kumar (accused) was also not present in the hospital. He had also stated that his daughter told him that sister of Raj Kumar had gone on the roof of the house, when nobody was there in the house, Raj Kumar tried to outrage her modesty. She resisted, then Raj Kumar poured kerosene oil on her and set her ablaze. He has also testified that her mother had left the house of Raj Kumar around 3.30 P.M. on the day of the occurrence. He (Changur Ram) has testified that he remained busy in care and treatment of her daughter at the hospital till 17.01.1987, when he lodged report in the night. This report was scribed by Baccha Lal in the hospital. This written report has been proved by him as Ex.Ka.1. He (Changur Ram) has testified that he remained busy in care and treatment of her daughter at the hospital till 17.01.1987, when he lodged report in the night. This report was scribed by Baccha Lal in the hospital. This written report has been proved by him as Ex.Ka.1. He has also testified that his daughter-Shail Kumari-expired in the morning of 20th January, 1987. 41. At this stage, we may observe that the incident had taken place in the evening of 16.01.1987, whereas the first information report was lodged on 17.01.1987 at 11.05 P.M. It cannot be said that there is delay in lodging the F.I.R. In this case, death is admitted to both the sides. The core consideration before us relates to fact whether the deceased committed suicide on her own freewill, as claimed by the accused, or she was set ablaze by accused Raj Kumar by pouring kerosene oil on her on 16.1.1987, which ultimately resulted into the death of the deceased in the early morning of 20.01.1987. 42. Critical scrutiny and analysis of testimony of Murli Manohar Lal P.W.2, the Additional City Magistrate, Varanasi, reveals that he recorded dying declaration of Shail Kumari in Kabir Chaura Hospital, Varanasi on 16.1.1987, after obtaining fitness certificate from Dr. P.D. Mishra P.W.9. He has testified in his examination-in-chief that Shail Kumari was admitted in the hospital. He found that Shail Kumari was in a condition to give statement and then obtained a certificate of fitness from the doctor and in the presence of doctor, recorded statement of injured Shail Kumari and after the statement was completed, thumb impression of the then injured Shail Kumari was obtained on it. The dying declaration has been proved as Ex.Ka.2. He has also testified that on that relevant point of time when he recorded the dying declaration, except himself and the doctor, no one else was present over there. 43. At this stage, it would be appropriate to take note of testimony of Dr. P.D. Mishra P.W.9, who, as per his testimony, gave fitness certificate regarding physical condition of the injured-Shail Kumari-for recording her dying declaration and has got it proved as Exhibit- Ka 2(a). 44. A perusal of dying declaration Ex.Ka.2 reflects that it was recorded at 9.00 P.M. on 16.01.1987 by Murli Manohar Lal, Additional City Magistrate-I, Varanasi P.W.2. It bears left thumb impression. Also, it is in Question/Answer form. 44. A perusal of dying declaration Ex.Ka.2 reflects that it was recorded at 9.00 P.M. on 16.01.1987 by Murli Manohar Lal, Additional City Magistrate-I, Varanasi P.W.2. It bears left thumb impression. Also, it is in Question/Answer form. As per content of this dying declaration, the injured/deceased has herself stated, when asked whether she is able to speak. She said 'Yes' and uttered the name of herself, her husband and told about her place of residence and her age. When asked about the incident, she has stated that her 'dewar' (brother-in-law) Raj Kumar (accused) was having an evil eye on her and he had teased her several times prior to this incident. When she resisted to such molestation attempt, then he poured kerosene oil on her and set her on fire. Before committing the offence, he (Raj Kumar) had asked her grandmother to go outside the house. At that time, her father inlaw and sister-in-law (Ramdhani) were at a nearby place. They tried to save her. Landlord, who resides at the upper portion of the house, also came to save her. At that time, her husband also arrived in the house, when she was set ablaze. She has also stated that Raj Kumar had in past tried to molest her several times but this fact was not known to her husband. When specifically asked by the Magistrate about the involvement of another person in the offence except the accused; she (Shail Kumari) stated in negative and stated that except Raj Kumar, no other person was involved in the incident. 45. Except as above, she did not state anything more. This dying declaration in Question/Answer form also contains all its material certifications appended by Dr. P.D. Singh P.W.9 that Smt. Shail Kumari aged 20 years w/o Prem Kumar R/o Mohalla Doodh Vinayak was fully conscious and was capable of giving her statement. 46. Now, we may look into the alleged suicidal attempt made by the victim and claimed by accused Raj Kumar. We have before us certain notings purportedly made by the deceased in a diary prior to her death, reference whereof has come forth in the testimony of Prem Kumar D.W.1, husband of the deceased. His testimony reflects that on the date of the occurrence when he reached to the spot, he saw Shail Kumari indulging in some verbal dispute with her grandmother. His testimony reflects that on the date of the occurrence when he reached to the spot, he saw Shail Kumari indulging in some verbal dispute with her grandmother. Grandmother was “ajia saas” of this witness thereafter went away from the scene. He and his family members went outside the room. After about ten minutes, he went inside the room, when he saw his wife writing something. When asked about the same, she asked him to go outside the room, whereupon, he came out of the room where his brother and sister were sitting. After about ten minutes, his wife poured kerosene oil on her and set herself ablaze and rushed out of the room crying. They doused the fire and took her to the hospital. He has specifically testified on page no.74 of the paper book that Shail Kumari used to write diary and was acquainted with the hand writing of Shail Kumari. This witness proved diary, as material Exhibit-1 and clarified that whatever has been written in the diary is in the hand writing of his wife Shail Kumari and the writing of this diary has been proved as material Exhibit- 2 to 4. He has also stated that he went to the hospital for admitting his wife along with brother Raj Kumar and his father and sister. He has also testified that Shail Kumari was unconscious after her admission in the hospital and she was unable to speak. He has been cross-examined, wherein he has stated that he has been running a tea shop for the last ten years and his wife had passed 6/7th class. About source of his information, he testified that his wife had told about the same. He could not spell the name of the school from where his wife had received education. He has stated that his wife wrote 6 to 7 stories in her diary. He came to know about this case against his brother after 2-3 days. Daroga Ji had inquired about the incident from him. He had shown his diary to Daroga Ji, who had obtained photocopy of the same and the diary was handed-over to him and he gave photocopy of the diary to Daroga Ji. He came to know about this case against his brother after 2-3 days. Daroga Ji had inquired about the incident from him. He had shown his diary to Daroga Ji, who had obtained photocopy of the same and the diary was handed-over to him and he gave photocopy of the diary to Daroga Ji. Further, he has testified on page no.78 of the paper book in his cross examination that he never told or wrote anything to the District Magistrate or the Superintendent of Police because he was perturbed. However, he did not tell anything about any altercation having taken place between his wife and paternal grandmother of his wife. He has been suggested that the writing purportedly written by the deceased was not her hand-writing, whereupon, he has denied the suggestion. He has also denied the suggestion that Raj Kumar had any evil design towards his wife. However, he has stated on page no.80 of the paper book that he remained there in the hospital and did not answer to nature's call during his stay in the hospital and maintained himself only on tea and biscuit and he had no knowledge about the fact that any Magistrate ever recorded any statement of his wife. He has denied the suggestion that he is falsely testifying just to save his brother. He has also denied suggestion that Shail Kumari was conscious when admitted to the hospital. He has also denied suggestion that after getting Shail Kumari admitted in the hospital, he himself along with his family members fled away from the hospital. 47. At this stage, we may observe testimony of Changur Ram P.W.1 the father of the deceased. His testimony in his cross-examination has substantial bearing on the writing of his daughter. He has testified on page no.20 of the paper book in his cross-examination that on 16.01.1987, he reached at the hospital at around 4.30 P.M. His daughter was lying in a bed in emergency department. One man was applying medicine on her person. Thereafter, his daughter was taken to the ward. He has denied the suggestion that Raj Kumar was present on that point of time. He had denied suggestion that his daughter never told him about molestation bid/attempt made on her. This witness has specifically stated on page no.22 of the paper book that his daughter had told about this fact in his presence to her mother. He has denied the suggestion that Raj Kumar was present on that point of time. He had denied suggestion that his daughter never told him about molestation bid/attempt made on her. This witness has specifically stated on page no.22 of the paper book that his daughter had told about this fact in his presence to her mother. He has also stated on the same page that her daughter had told her mother that her husband is a drug addict and he used to take 'herione'. Relevant testimony of this witness emerges on page no.24 of the paper book when he stated that Shail Kumari had studied up to 5th class and she was able to write diary. When this witness was shown the diary, material Ex.Kha.1 and Ex.Kha.2, he has stated categorically that these papers are not in the writing of his daughter. Similarly, he denied writing of material Ex.Kha.3 to be in the hand writing of his daughter and similar statement was given regarding material Ex.Kha.4, meaning thereby that all the so-called writing purportedly in the hand-writing of the daughter of this witness (father) have been denied to be in the hand-writing of Shail Kumari. No worthy evidence has been brought on record, which may establish the fact that material Ex.Kha.3 and Ex.Kha.4 were in fact in the hand-writing of the deceased. Therefore, the material Exhibit-don't give any advantage to the accused. 48. Now, the point is that the injury report of the deceased Ex.C1 in form of superficial burn face, neck, chest, abdomen, pelvis and back, both arm, forearm and head, both buttocks, both thigh and legs is self-explanatory of fact that this much of burn had been caused and as per testimony of D.W.1 Prem Kumar, he along with his other family members were sitting outside the room where the incident of burning took place, then how and why he failed to respond to the situation when his wife set herself ablaze and she sustained burn injury-almost all over her body, if they were present on the spot, then the fire could have been put off at the very initial stage of the incident and would not have engulfed the limbs of the body of the deceased. This factual aspect by itself shows that sufficient time had elapsed, when the victim was rescued and lot of burn injury had been caused. This factual aspect by itself shows that sufficient time had elapsed, when the victim was rescued and lot of burn injury had been caused. There is nothing on record to suggest that as to why the Magistrate would ever indulge in act of falsification and will create dying declaration against the accused. The Magistrate has categorically stated that he had inquired about the condition of the patient by asking her whether she can give statement, whereupon the injured (Shail Kumari) expressed her willingness to give her statement. Prior to the recording of dying declaration, fitness certificate was also given by Dr. P.D. Singh P.W.9. There is nothing to show that this dying declaration was either manufactured or outcome of tutoring or improvement. 49. Bare perusal of the entire facts and circumstances of the case lead us to unequivocal conclusion that this dying declaration inspires confidence and the same is clear, consistent and voluntary, therefore, theory of suicide advanced by the accused not only appears to be a false plea and excuse, but the same is under circumstances, a deliberate attempt to suppress the truth. 50. It is cardinal principle of criminal jurisprudence that dying declaration, if found to be consistent and voluntary, outcome of freewill of its author, then the same can form sole basis of conviction. Here, in this case, the dying declaration itself divulges the correct picture. Record is replete with facts that the husband of the victim was a man of weak physique and was addicted to drugs and was a feeble man, whereas, the accused was physically strong and was residing with the deceased and therefore, he tried to use the situation to his advantage by giving practical shape to his lust and he tried to molest his 'bhabhi' (sister-in-law) at a time, when he found her alone in the room. When resisted, he poured kerosene oil on her and set her ablaze. 51. At this stage, we may look to the cause of death as recorded in the postmortem examination by Dr. S.K. Tripathi P.W.3. He conducted postmortem examination on the dead body of the deceased on 20.01.1987 at 5.15 P.M.. He has also testified that Shail Kumari expired in the hospital at 4.40 A.M. on 20.01.1987. Except few parts of the body, the burn injury was noted extending all over the body by the doctor. S.K. Tripathi P.W.3. He conducted postmortem examination on the dead body of the deceased on 20.01.1987 at 5.15 P.M.. He has also testified that Shail Kumari expired in the hospital at 4.40 A.M. on 20.01.1987. Except few parts of the body, the burn injury was noted extending all over the body by the doctor. He has categorically stated about the cause of death on page no.34 of the paper book that the death was due to burn shock followed by septicemia shock and extensive burn. This postmortem report has been proved by doctor as Ex.Ka.3. Interesting to note that doctor has denied any possibility of deceased being unconscious on account of her sustaining burn injuries. 52. At this stage, we may also discuss testimony of Sellu Yadav P.W.4, who has not supported the prosecution case and has turned hostile. Sellu Yadav P.W.4 is landlord of house of accused where the deceased resided. He has testified in his examination-in-chief that all the persons were present inside the room and wife of Prem Kumar Shail Kumari-rushed out of the room up to the 'dalan' (courtyard). Raj Kumar was not present. However, he has testified in his examination-in-chief that Prem Kumar took his wife to hospital, whereas, testimony of Dr. P.D. Singh P.W.9 on page no.54 of the paper book reflects that the persons who brought the deceased at the hospital had disclosed their names to the doctor as Raj Kumar and Basant Lal. Obviously, name of the husband Prem Kumar is missing. When asked about identity of Raj Kumar as to how can he be sure that the person, who brought the patient to the hospital, was Raj Kumar, then he has testified in his cross-examination on page no.57 of the paper book that he does not know the person, who brought the deceased to the hospital. He only wrote the name of the person what he was told at that point of time. No mark of identification was noted by him and he has testified that doctor usually writes name as it is told to him. He has also testified on point that it is not necessary that fitness certificate should also be appended at the close of recording of the dying declaration. He testified that normally, fitness certificate is given before dying declaration is recorded. He has also testified on point that it is not necessary that fitness certificate should also be appended at the close of recording of the dying declaration. He testified that normally, fitness certificate is given before dying declaration is recorded. Doctor has testified on page no.58 of the paper book that he gave the fitness certificate after examining the patient and after discovering that patient is in fit condition to speak. This doctor has also proved the bed-head ticket and other relevant papers and he has categorically testified that the deceased was in a position to speak. Therefore, testimony of Sellu Yadav P.W.4 appears to be tainted on account of fact that he is trying to save the accused because he has been won over by him and he is not telling the truth and he is twisting and twirling his testimony for reasons best known to him. He has tried to mislead the trial court by stating that she (deceased-Shail Kumari) had set herself ablaze. However, he has stated that he is stating this fact before the trial court for the first time. This by itself shows clever mind of this witness that he is trying to improve the situation to the advantage of the accused. He is deliberately suppressing the truth. 53. We have already observed that the theory of suicide committed by Shail Kumari hardly finds force from the attendant facts and circumstances of the case. Even no clue has been collected during investigation, which may allude to any inference about theory of suicide being committed by the deceased. Albeit, that the deceased committed suicide, then why her brother-in-law ('devar') alone will be branded as accused by the informant is beyond our comprehension. Had it been so, then the mother-in-law, who stood as the main cause for committing the suicide would also have been involved as accused in this case along with her son (husband of Shail Kumari). Why the prosecution targeted only the accused-Raj Kumar-cannot be easily explained and understood. Upon investigation of this case, no other member of the family of the accused was found involved in this case. Why the prosecution targeted only the accused-Raj Kumar-cannot be easily explained and understood. Upon investigation of this case, no other member of the family of the accused was found involved in this case. These are the conspicuous circumstances of this case, which, when read with the voluntariness of the dying declaration Ex.Ka.2 makes out a case of murder being committed by the accused by pouring kerosene oil on the deceased on 16.01.1987, sometime around 3.30 P.M. and the deceased sustaining severe burn injuries, she was taken to the hospital gave her dying declaration before Additional City Magistrate-I, Varanasi and succumbed to her injuries at 4.40 A.M. on 21.01.1987. There is no strong cogent motive for falsely implicating the accused in this offence. Vague motive in its petty form has been ascribed for false implication of the accused, which motive by itself was not found to be of such magnitude that a Magistrate, in company with doctor, would ever try to falsely implicate the accused in collusion with the informant side. 54. Brother of the accused too has not come out fairly and has tried to put false theory of suicide being committed by the victim, whose testimony on the whole is contradictory and motivated to save the accused. D.W.1 being brother of accused has tried to save his brother. Obviously, he was a feeble man and could not give proper support to his wife and the situation was tried to be exploited by the accused by severely assaulting the victim. When he failed in his attempt, he set the victim to fire. 55. Surprisingly, he has denied recording of any statement of his wife in hospital by the Magistrate, which gesture on the face shows mala fide of D.W.1. He is not a reliable witness. 56. The above factual aspect proves and establishes beyond reasonable doubt the charge against accused u/s 302 I.P.C. 57. The learned Sessions Judge while considering the merits of the case has rightly recorded the conviction and rightly sustained validity of the truthfulness and voluntariness of the dying declaration of the deceased-Shail Kumari and has rightly based his finding of conviction against the accused and has passed just sentence, which judgment and order of conviction dated 8th August, 1989 passed in Sessions Trial No.121 of 1987, State Vs. Raj Kumar arising out of Case Crime No.13, Police Station-Kotwali, District-Varanasi is upheld by us. Raj Kumar arising out of Case Crime No.13, Police Station-Kotwali, District-Varanasi is upheld by us. Consequently, this appeal lacks force and the same is accordingly, dismissed. 58. Accused is at large and he is absconding. The Chief Judicial Magistrate, Varanasi shall explore all possible means to apprehend the accused at the earliest and to lodge him in jail to make him serve out the entire sentence pronounced against him. 59. Let a copy of this order/judgment be provided to the lower court for intimidation and follow-up action.