JUDGMENT : Heard Sri Yogesh Modi, learned Amicus Curiae appearing for the appellant and Mr. B.N. Ojha, learned A.P.P. 1. This appeal is directed against the judgment of conviction and order of sentence dated 28.02.2013 passed by Sri A.K. Singh “Ashok”, the then Additional Sessions Judge-I, Deoghar in connection with Sessions Case No. 88/2010, arising out of Madhupur P.S. Case No. 205/2009 corresponding to G.R. No. 480/2009 holding the appellant Suraj Sao @ Suraj Sah guilty of offence under Section 302 of the Indian Penal Code and thereby sentencing him to undergo imprisonment for life alongwith fine of Rs. 5,000/- and in default of payment of fine the appellant was further directed to undergo S.I. for six months. Appellant was acquitted for the offence under Section 304 B of the Indian Penal Code. 2. The prosecution case in brief is that on 26.10.2009 at about 03:30 P.M., the appellant and his wife Putul Devi (deceased) were in a room at her maike. Her niece Rakhi Kumari was present in the courtyard just outside their room. Rakhi Kumari saw smoke coming out from the room, on which she went inside and saw Putul Devi ablaze. The appellant was standing there with a kerosene container and a match box in his hand. She raised alarm, following which neighbours reached there. Appellant was apprehended and restrained by local persons. Putul Devi was taken to hospital where her fardbeyan was recorded. She died during the course of treatment. 3. Police after investigation found the occurrence to be true and submitted charge-sheet against the appellant. After Cognizance, learned S.D.J.M., Madhupur at Deoghar committed this case on 03.04.2010 as it was exclusively triable by a Court of Sessions. 4. Charge was framed against the appellant on 28.02.2011 under Section 304 B of the Indian Penal Code and also alternatively under Section 302 of the Indian Penal Code. When the charge was read over and explained to him in hindi he pleaded not guilty and claimed to be tried. 5. In order to prove its case the prosecution has adduced both oral and documentary evidence. Chote Lal (P.W.1) and Shambhu Prasad Sah (P.W.2) are the neighbours who saw the deceased Putul Devi in burnt condition. When the charge was read over and explained to him in hindi he pleaded not guilty and claimed to be tried. 5. In order to prove its case the prosecution has adduced both oral and documentary evidence. Chote Lal (P.W.1) and Shambhu Prasad Sah (P.W.2) are the neighbours who saw the deceased Putul Devi in burnt condition. Chote Lal (P.W.1) has proved his signature on the seizure list which has been marked as Exhibit-1, when he reached the place of occurrence, he saw that the appellant was restrained by the local people. Saraswati Devi (P.W.3), Radhy Shyam Sao (P.W.4) and Shashi Sao (P.W.5) are mother, father and brother of the deceased respectively. All have stated that on the date and time of occurrence they were in the clinic of a doctor. While there, they heard about the occurrence and rushed home. They found the deceased in burnt condition. Saraswati Devi (P.W.3) and Radhy Shyam Sao (P.W.4) have put their thumb impression and signature respectively on the fardbeyan of their daughter as witnesses. Signature of Radhy Shyam Sao (P.W.4) on fardbeyan has been marked as Exhibit-2. Radhy Shyam Sao has also identified his signature on the seizure list which has been marked as Exhibit 1/1. They have also stated that the appellant used to taunt the deceased for her dark complexion and wanted to leave her. Shashi Sao (P.W.5) has further stated that Rakhi Kumari (P.W.7) told him that appellant was present in the room holding a kerosene container and a match box while Putul Devi was ablaze. He has further stated that local people had restrained the appellant at the place of occurrence. Dr. Md. Arif (P.W.6) (wrongly mentioned as Dr. Md. Anif in the impugned judgment), Medical officer at PHC Madhupur had examined the deceased on 26.10.2009 at about 03:30 P.M, when she was admitted to the hospital for treatment of burn injuries. He has proved the injury report which has been marked as Exhibit-4. Dr. Satish Thakur (P.W.8) had performed the post-mortem on the dead body of deceased Putul Devi. According to this witness, Putul Devi died of deep burn injuries and its complications. He has proved the post-mortem report which has been marked as Exhibit-5. 6. Rakhi Kumari (P.W.7) niece of the deceased Putul Devi, has stated that she was present in the house at the time of occurrence. According to this witness, Putul Devi died of deep burn injuries and its complications. He has proved the post-mortem report which has been marked as Exhibit-5. 6. Rakhi Kumari (P.W.7) niece of the deceased Putul Devi, has stated that she was present in the house at the time of occurrence. She saw smoke coming out from the room where the appellant and deceased were present. She went inside and saw Putul Devi ablaze. The appellant was standing there holding a match box and a kerosene container. She raised alarm, following which neighbours came and apprehended the appellant. She is the sole witness who was present at the place of occurrence, at the time of occurrence. While cross examining her, defence has tried to discredit her testimony by suggesting that she was not present in the courtyard. She was also suggested that she was not present at Madhupur on the date and time of occurrence, rather she was in Giridih at her father’s house. Both the suggestions have been denied by her. Suryajit Prasad Singh (P.W. 9) is the Investigating Officer of this case he has recorded the fardbeyan of Putul Devi. He has proved the fardbeyan which has been marked as Exhibit 2/1. He has also proved the place of occurrence which is house of Radhy Shyam Sao (P.W.4) situated in Napitpara Meena Bazar at Madhupur. According to him the main entrance opens in a courtyard and there is a room adjacent to the courtyard in which occurrence had taken place. He has stated that when he reached at the place of occurrence he found that the appellant was apprehended and restrained by local people. He has seized a kerosene container and a match box from the place of occurrence. He prepared the seizure list and also proved the same which has been marked as Exhibit 1/1. He has been cross-examined at length. In his cross-examination he has stated that on 26.10.2009 at about 05:00 P.M, he recorded the fardbeyan of Putul Devi while she was fully conscious. However, her fardbeyan was not recorded in presence of the treating doctor. 7. Statement of the appellant was recorded under Section 313 of the Cr.P.C. on 05.07.2012. Defence is general denial of occurrence and false implications. 8. Appellant has examined himself as D.W.1. However, her fardbeyan was not recorded in presence of the treating doctor. 7. Statement of the appellant was recorded under Section 313 of the Cr.P.C. on 05.07.2012. Defence is general denial of occurrence and false implications. 8. Appellant has examined himself as D.W.1. According to him, he was not present at the place of occurrence on the date and time of occurrence and the deceased had committed suicide. He has also tried to rebut the imputed motive that he has murdered his wife because she was dark complexioned and he wanted to get rid of her. 9. On the basis of evidence, both oral and documentary, the learned Additional Sessions Judge held the appellant Suraj Sao @ Suraj Sah guilty of offence under Section 302 of the Indian Penal Code and sentenced him accordingly. Learned court acquitted the appellant from the charge under Section 304 B of the Indian Penal Code. 10. Mr. Yogesh Modi, learned Amicus Curiae has assailed the impugned judgment on the ground that the learned court below has wrongly come to a finding that the deceased Putul Devi was immolated to death by this appellant. According to him, defence has been able to show that Putul Devi had committed suicide. It was submitted that dying declaration of Putul Devi was not reliable at all as it was neither recorded in presence of the treating doctor, nor is there certificate of the doctor to the effect that at the time of recording of her fardbeyan she was both physically and mentally fit. It was also submitted that neither the appellant nor Rakhi Kumari (P.W.7) were present at the spot on the date and time of occurrence. On this ground it was submitted that judgment of conviction and order of sentence passed by the learned court below be set aside. 11. Learned A.P.P., appearing on behalf of the State has submitted that the dying declaration of Putul Devi has been corroborated by both the medical evidence and ocular account of Rakhi Kumari (P.W.7). As such the learned court below has rightly held the appellant guilty for offence under Section 302 of the Indian Penal Code and the sentence passed by the learned court below does not require any interference. 12. Now it has to be ascertained whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubt. As such the learned court below has rightly held the appellant guilty for offence under Section 302 of the Indian Penal Code and the sentence passed by the learned court below does not require any interference. 12. Now it has to be ascertained whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubt. In order to come to a finding that the prosecution has discharged its burden of proof, it has to be ascertained:- (i) Whether the appellant was present at the place of occurrence on the date and time of occurrence ? (ii) Whether witness Rakhi Kumari (P.W.7) was present at the place of occurrence on the date and time of occurrence ? (iii) Whether testimony of Rakhi Kumari (P.W.7) can be relied upon ? (iv) Whether dying declaration of deceased Putul Devi can be relied upon ? (v) Whether the deceased died a homicidal death ? (vi) If so, whether the appellant has committed her murder? 13. Defence has tried to discredit the testimony of Rakhi Kumari (P.W.7) recorded during the trial, on the ground that she was not present at the place of occurrence on the date and time of occurrence. 14. On perusal of the oral testimony of prosecution witnesses, it is evident that Rakhi Kumari (P.W.7) has stated that the occurrence took place two years. She has further stated that on the occasion of Chath Puja she had gone to the house of her maternal grandfather Radhy Shyam Sao (P.W.4). She was present in the courtyard just outside the room where the occurrence took place. Shashi Sao (P.W.5) has stated that the occurrence took place two years ago at about 03:30 P.M., he had gone to a doctor. While there, he came to know that his sister was immolated by the appellant, he rushed home and saw his sister lying in the room in burnt condition. The appellant was apprehended by local people. His niece, Rakhi Kumari told him that the appellant was fleeing after immolating the deceased. In his cross-examination at paragraph 10 he has stated that the niece who told him about the occurrence is 14-15 years old and her name is Rakhi Kumari. He has further stated that the maternal grand daughter of his uncle Satya Narayan Sao was sick and she was taken to the doctor by this witness and other family members. In his cross-examination at paragraph 10 he has stated that the niece who told him about the occurrence is 14-15 years old and her name is Rakhi Kumari. He has further stated that the maternal grand daughter of his uncle Satya Narayan Sao was sick and she was taken to the doctor by this witness and other family members. From the aforesaid oral testimonies of these two witnesses it transpires that Shashi Sao (P.W.5) has corroborated the statement of Rakhi Kumari (P.W.7) that she was present at the place of occurrence at the time of occurrence. Their statement on this point is further fortified by statement of Suryajit Prasad Singh (P.W.9), who in his cross-examination at paragraph-25 has stated that he had recorded the statement of Rakhi Kumari (P.W.7) on 26.10.2009 at about 07:00 P.M., i.e. on the same evening when the occurrence had taken place. Accordingly, it is evident that the prosecution has been able to establish the presence of Rakhi Kumari (P.W.7) at the place of occurrence on the date and time of occurrence. 15. Now the question is whether the uncorroborated statement of Rakhi Kumari (P.W.7) that the appellant was present in the room at the time of occurrence holding a kerosene container and a match box can be relied upon. Rakhi Kumari (P.W.7) in her cross-examination has very fairly admitted that she had not seen the appellant and deceased quarreling while they were inside the room. She has also admitted that she had not seen the appellant immolating the deceased. She is a girl of very tender age. She is aged about 14-15 years. Had she been a tutored witness, she could very well have stated that she had seen the deceased and the appellant quarreling and the appellant had poured kerosene on the deceased and immolated her. She has withstood the test of cross examination. Her statement is also corroborated by other material particulars of this case. Accordingly we come to a finding that the testimony of Rakhi Kumari (P.W.7) recorded during the trial can be very safely relied upon and read in evidence. 16. Defence had taken a plea of alibi that the appellant had gone to the doctor along with his in-laws at the time of occurrence. Accordingly we come to a finding that the testimony of Rakhi Kumari (P.W.7) recorded during the trial can be very safely relied upon and read in evidence. 16. Defence had taken a plea of alibi that the appellant had gone to the doctor along with his in-laws at the time of occurrence. In his statement recorded during the trial as D.W.1, he has stated that he had gone to the house of his in-laws on their invitation to attend Chath Puja. He wanted to return home after the Chath Puja but stayed behind at the request of his in laws. He has further stated that a girl child in the family was sick, he had accompanied his in-laws to the doctor along with the sick child. While there he came to know that his wife has committed suicide. He rushed to the place of occurrence and found that his wife was unconscious. He and his in-laws took her to the hospital from where he was arrested. On the contrary, Chote Lal (P.W.1) has stated that on coming to know about the occurrence he rushed to the place of occurrence, on seeing them the appellant tried to flee on which he was apprehended. Saraswati Devi (P.W.3) has stated that she had gone to doctor for treatment of her grand daughter, while there, she came to know about the occurrence, she rushed home and saw Putul Devi in burnt condition, the appellant was apprehended and restrained there by local people. Radhy Shyam Sao (P.W.4) has also stated that on the date and time of occurrence he had taken the grand daughter of his brother to the doctor, while there, he came to know about the occurrence, he rushed home and found his daughter in burnt condition, local people had apprehended and restrained his son-in-law. 17. Shashi Sao (P.W.5) has given a statement on the similar line that he had also gone to the doctor with a sick child. On coming to know about the occurrence, he rushed home, where Rakhi Kumari (P.W.7) told him that the appellant had immolated his sister. Local people had apprehended and restrained the appellant at the place of occurrence itself. Rakhi Kumari (P.W.7) has stated that the appellant was present with the deceased inside the room where she saw the deceased ablaze. On coming to know about the occurrence, he rushed home, where Rakhi Kumari (P.W.7) told him that the appellant had immolated his sister. Local people had apprehended and restrained the appellant at the place of occurrence itself. Rakhi Kumari (P.W.7) has stated that the appellant was present with the deceased inside the room where she saw the deceased ablaze. The appellant was standing there with a kerosene container and a match box in his hand. All the aforesaid witnesses have been consistent on this point in their cross-examination. They have corroborated each other that the appellant was present at the place of occurrence on the date and time of occurrence, from where he was apprehended and restrained. Though the appellant has stated in his testimony before the court as defence witness that he had gone to the doctor with his in laws from where he was arrested. However the statement of Suryajit Prasad Singh (P.W.9) at paragraph 3 of his deposition that the appellant was apprehended and restrained at the place of occurrence by local people from where he was formally arrested, also contradicts the statement of the appellant on this point. Accordingly, we come to the finding that the appellant was present at the place of occurrence at the date and time of occurrence from where he was arrested. 18. Defence has assailed the dying declaration of Putul Devi. The case of the prosecution is that the deceased was taken to hospital for her treatment. Suryajit Prasad Singh (P.W.9) had recorded her fardbeyan. Saraswati Devi (P.W.3) and Radhy Shyam Sao (P.W.4) have stated that Putul Devi died during the course of her treatment and her fardbeyan has been treated as her dying declaration. On perusal of fardbeyan of Putul Devi (deceased) which has been marked as Exhibit 2/1, it transpires that the fardbeyan has been recorded in the handwriting of the I.O. Suryajit Prasad Singh (P.W.9). This fardbeyan bears the signature of Radhy Shyam Sao (P.W.4) (Exhibit-2). Thumb impression of Saraswati Devi (P.W.3) is also on the fardbeyan, quite surprisingly, the thumb impression of Putul Devi is missing. Prosecution case is that she had put her thumb impression on her ferdbeyan. Dr. Md. Arif (P.W.6) who had examined Putul Devi soon after she was admitted to the hospital has stated that both her arms up to fingers were burnt. Prosecution case is that she had put her thumb impression on her ferdbeyan. Dr. Md. Arif (P.W.6) who had examined Putul Devi soon after she was admitted to the hospital has stated that both her arms up to fingers were burnt. This witness has not stated that at the time of her examination, she was mentally alert and was able to speak. The fardbeyan of Putul Devi has also not been recorded in presence of the treating doctor. Hon’ble Supreme Court of India in Sampat Babso Kale and Another v. State of Maharashtra 2019(4) SCC 739 held that “It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around.” In the present case, there is no endorsement of the treating doctor that the victim was not in a fit state of mind to make her statement. The occurrence is said to have taken place at 03:30 PM, the fardbeyan was recorded by the Investigating Officer in the Madhupur hospital at 05:00 P.M. There is a gap of one and half hour between the occurrence and recording of her fardbeyan. Dr. Md. Arif (P.W.6), Medical officer at PHC Madhupur had examined the deceased Putul Devi, on 26.10.2009 at about 03:30 P.M. She had sustained 95% burn injury. Possibility that she was given medication to reduce her pain cannot be ruled out. Possibility of her being in a state of delusion also cannot be ruled out. There is serious doubt whether the deceased was in a fit state of mind to make a statement. Absence of her thumb impression on the fardbeyan further brings it under the cloud of suspicion. 19. It has been submitted on behalf of the defence that deceased had committed suicide. The case of the prosecution is that the deceased was immolated by the appellant. Dr. Md. Arif (P.W.6) has stated that he had examined Putul Devi soon after she was admitted to the hospital and both her arms up to fingers were burnt. He has proved the injury report which is Exhibit 4. The case of the prosecution is that the deceased was immolated by the appellant. Dr. Md. Arif (P.W.6) has stated that he had examined Putul Devi soon after she was admitted to the hospital and both her arms up to fingers were burnt. He has proved the injury report which is Exhibit 4. From the perusal of injury report it transpires her entire body involving face, neck, front of chest, front of abdomen, back hips, inner thighs with external genital and both arms up to fingers were burnt. Smell of kerosene oil was also noticed. Dr. Satish Thakur (P.W.8) had performed the postmortem on the dead body of the deceased Putul Devi. He had found the following injuries:- External Findings There was a cannula long line in the right femoral vein. There were bandage all over the body. When the bandage was opened, there was a deep burn up to the dermis layer of skin from the face to below the umbilicus. Pubic regions were not burnt. Perineum region was also not burnt. Pubic hair was present. Bilateral upper limbs and lower limbs were burnt and dermis visible. Feet of both legs were spared. So burnt area was about 95%. The hair of the head was intact. Internal Findings Trachea, Oesophagus and great vessels of neck are intact. Bilateral lungs are intact. Right chamber of heart contained blood and great vessels of heart are intact. Spleen, liver, both kidneys, intact and normal. Both her ureter are intact and normal. Urinary bladder was normal containing no urine. There is a Foley’s catheter in urinary bladder. Uterus was normal in size. Stomach internally ulcerated. Dimension of ulcer is 3’’X 2’’ up to mucosa deep Small and large intestine are intact. Time of death within 24 hrs & holding P.M. examination. Cause of death- Deep burn and its complications. External injury were caused by burn. According to this witness cause of death of the deceased was due to deep burn and its complications. External injury were caused by burn. Chote lal (P.W.1), Shambhu Prasad Sah (P.W.2), Saraswati Devi (P.W.3), Radhy Shyam Sao (P.W.4) and Shashi Sao (P.W.5) all have stated that they had seen the deceased Putul Devi in burnt condition. Rakhi Kumari (P.W.7) saw the deceased ablaze. Deceased was hospitalized for treatment of her burn injuries and she died during the course of her treatment. Chote lal (P.W.1), Shambhu Prasad Sah (P.W.2), Saraswati Devi (P.W.3), Radhy Shyam Sao (P.W.4) and Shashi Sao (P.W.5) all have stated that they had seen the deceased Putul Devi in burnt condition. Rakhi Kumari (P.W.7) saw the deceased ablaze. Deceased was hospitalized for treatment of her burn injuries and she died during the course of her treatment. From the aforesaid oral and documentary evidence we come to a finding that the prosecution has been able to prove that the deceased had died due to burn injuries. 20. Defence has taken a plea that deceased had committed suicide. Dr. Md. Arif (P.W.6) had noticed smell of kerosene oil. Rakhi Kumari (P.W.7) has categorically stated that when she entered into the room, she found Putul Devi ablaze and the appellant was standing there with kerosene container and a match box. On seeing her he tried to flee, neighbours came and apprehended him. The Investigating Officer during the investigation seized the kerosene container and a match box at the place of occurrence. 21. We have already come to a finding that the appellant has failed to establish his plea of alibi. The presence of appellant at the place of occurrence stands proved. Accordingly, we come to a finding that the prosecution has been able to show that:- (i) The appellant was present in the room while his wife was ablaze holding match box and kerosene container. (ii) Witnesses have stated that the appellant used to taunt the deceased for her dark complexion. He also used to threaten her that he will leave her. From the aforesaid facts and circumstances, it is very much clear that the circumstances point towards the guilt of the appellant that it was the appellant who had immolated the deceased. 22. The chain of events has been successfully established so as to attract the application of Section 106 of the Evidence act. 23. Hon'ble Supreme court in Sabitri Samantaray v State of Odisha in Criminal Appeal No. 988 of 2017 held that 18. “Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. 23. Hon'ble Supreme court in Sabitri Samantaray v State of Odisha in Criminal Appeal No. 988 of 2017 held that 18. “Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a different intention then the facts are specially within his knowledge which he must prove” 19. Thus, although section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events.” 24. There is no eyewitness to the actual of occurrence. We have already come to a finding that the appellant was alone with the deceased when she was found ablaze by Rakhi Kumari (P.W.7) in a closed room. He was holding a kerosene container and a match box in his hand. Witness have also stated that the appellant tried to flee from the place of occurrence. Witnesses have also stated that the appellant was not happy as deceased was having a dark complexion and he wanted to leave her. 25. The appellant as D.W.1 had tried to rebut the aforesaid facts by stating that the deceased was not dark complexioned but she had a fair complexion. He has also stated that at the time of occurrence he was not present at the place of occurrence. As already discussed, this averment has been falsified by the statement of prosecution witnesses. Had the deceased committed suicide in presence of the appellant, his natural conduct should have been to raise alarm and to try to douse the fire. He has also stated that at the time of occurrence he was not present at the place of occurrence. As already discussed, this averment has been falsified by the statement of prosecution witnesses. Had the deceased committed suicide in presence of the appellant, his natural conduct should have been to raise alarm and to try to douse the fire. Instead he was found standing there with a kerosene container and a match box. He has also attempted to flee from the place of occurrence which in itself becomes an additional link in the chain of events. 26. Therefore, having regard to the above facts and circumstances and reasons stated therewith, it can be deduced that the entire sequence of events strongly point towards the guilt of the appellant, who has failed to offer any credible defence in this regard. Thus, we do not find any error in the impugned judgment passed by the learned court below. 27. Learned court below has rightly held the appellant guilty for the offence under section 302 of the Indian Penal Code. The judgment of conviction and order of sentence does not require any interference. 28. This appeal is accordingly dismissed.