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CASE NO.: Appeal (crl.) 887  of  1998

PETITIONER: ARVIND SINGH

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       26/04/2001

BENCH: Umesh C. Banerjee & K.G. Balakrishnan

JUDGMENT:

BANERJEE,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appeal  in question tell the tale of a  young  girl dying  out  of burn injuries.  Whereas the learned  Sessions Judge  convicted each of the accused being the husband,  the father-in-law,  the  mother-in-law  and  the  brother-in-law under  Section  304 B of the Indian Penal Code  and  498A/34 together  with  120B of the Indian Penal Code and  sentenced each of them to undergo imprisonment for life under 304B IPC and a further sentence of 3 years to each of the accused for an  offence  under  498A IPC and in view  of  the  sentences passed,  no need was felt to pass any sentence under Section 120  B  IPC.   The  appeal taken to the  High  Court  stands allowed  so far as the appellant Nos.1,2 and 4 are concerned upon  taking  into consideration of the facts under  Section 304  B read with Section 34 of the Indian Penal Code as also under  Section  120B  of  the   Code  though,  however,  the conviction  under  Section 498A read with Section 34 of  the Code  was confirmed.  Arvind Singh, the husband was however, found  guilty  for  murder of the wife Minta  Devi  and  his conviction  under 304 B was converted to Section 302 IPC and was  sentenced  to  undergo imprisonment  for  life  besides maintaining  the  conviction under Section 498A IPC.  It  is this conviction and sentence which stands challenged in this appeal.

   Before  adverting  to the contentions as raised  by  the appellant  the case of the prosecution can be briefly stated to  be  as  below:   On the basis of the  fardbeyan  of  the informant  Phulamati  the mother of the deceased,  that  the appellant alongwith other members of the family on the night of  6/7  March,  1991 had set her daughter on  fire  and  on having  such information the informant alongwith PWs 3,4 and 7  reached the Muhalla and found that the daughter was lying injured  due to burn injuries.  The First Information Report recorded  that the daughter of the informant disclosed  that her  husband, father-in-law, mother-in-law and other  family members  forcibly  poured  kerosene  oil  on  her  body  and lighted, on account of which her entire body was burnt.  The FIR  discloses  that  all the persuasions for removal  to  a

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hospital  by  reason  of  the   severe  burn  injuries  were negatived  by the in-laws and having failed to persuade  the in-laws,  the  parents family themselves wanted to take  her back  to  the  hospital but the attempt was  not  successful since the deceased succumbed to her injuries.

   Incidentally,  it  may be noted that two specific  cases have  been  made out in the FIR, firstly, the girl was  ugly looking  (though some of the witnesses have stated that  she has  been a really good looking girl) and secondly this is a case  of bride torture and demand of dowry to the extent  of Rs.10,000  and  a gold ring and since demands could  not  be fulfilled  the  accused  persons   conspired  together   and committed the offence which has resulted in the death of the girl.

   The factual disputes there are not many since the factum of  the death and the cause of death being burn injuries are admitted.   As regards the dowry death a specific submission was made before the High Court to the effect as below:-

   Mr.    Verma,  learned  counsel   appearing   for   the appellants  firstly contended that from a bare reference  to the  FIR  it would appear that the Investigating Officer  by making interpolation has added the allegation with regard to demand  of  dowry.   Because  the main reason  for  such  an occurrence  was  that  Minta  Devi was  an  ugly  lady  and, therefore,   accused  persons  used  to  torture   her   and ultimately committed her murder.  The allegation with regard to demand of dowry etc.  was virtually inserted in different hand writing at the end of the fact from which interpolation is  apparent.   Learned  counsel  appearing  for  the  State contended that true it is that the allegation with regard to demand  of dowry was inserted subsequently, but it cannot be alleged   that   such   an   allegation   was   made   after interpolation.

   The  High Court also in no uncertain terms recorded that the  statement  of Mr.  Verma stands justified by reason  of interpolation  on  the First Information Report.   The  High Court  also came to the conclusion that there is no evidence whatsoever  that prior to the date of occurrence, there  was any demand for dowry by the accused persons and it is on the basis  of  the  aforesaid  the  High  Court  set  aside  the conviction and sentence of Janardan Singh, Lilawati Devi and Navin  Kumar  Singh under Section 304 B read with 34 of  the Indian  Penal  Code as also under 120B of the  Indian  Penal Code.   The conviction of 498A however, read with Section 34 was  confirmed  and the bail bonds granted in favour of  the three  accused  noticed above were directed to be  cancelled and they were ordered to be taken into custody forthwith for serving  out  the  remaining sentences.  As  regards  Arvind Singh  the  husband, the High Court came to  the  conclusion that  his conviction ought to be converted from Section 304B to 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life besides the conviction and sentence of 3  years  under Section 498A of the IPC.  In the result  the criminal  appeal was partly allowed so far as the  appellant Nos.   1,2 and 4 were concerned but appellant No.3 being the husband  (Arvind  Singh)  subject  to  the  modification  of conviction  was  dismissed and hence the appeal before  this Court by the grant of special leave.

   Burn  injuries  are  normally   classified  into   three

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degrees.   The  first being reddening and blistering of  the skin  only;   second being charring and destruction  of  the full  thickness  of the skin;  third being charring  of  the tissues beneath the skin, e.g.  fat, muscle and bone.

   Be  it  noted here that if the burn is of a  distinctive shape  a  corresponding hot object may be  identified  being applied to the skin and thus abrasions will have distinctive patterns  but  in the event burn injury is a cause of  death 60%   cases   of   septicaemia  and   34%   cases   are   of bronchopneumonia.    Where  infection   was  by  Pseudomonas pyocyanea, spread to unburnt skin with ulceration may occur, and internal infection by this organism is especially liable to  damage the walls of blood vessels.  Gram-negative  shock may  also  occur.   The external examination in  the  normal cases  are  found  in the body being removed  from  a  burnt building  and in the event of so removal the cause of  death would  be  inhalation  of fumes rather than  septicaemia  as noticed  above.   In the event the body is not removed  from the  room and the same remains in situ an examination of the scene  must  be  attempted,  as  with  any  other  scene  of suspicious  death, note being taken as regards the  position of  the  body,  clothes remaining if  any  and  identifiable objects in the room and so on.  The examination of the burns is  also directed to ascertain their position and depth,  as to  whether they were sustained in life or not, and  whether their  situation  gives any indication of the path taken  by the flames or the position of the body when the fire started if the body is very severely burnt then all the skin surface may  be  destroyed, even sometimes make it rather  difficult for  identification of the body.  A body that is badly burnt assume  the  appearance known as pulgilistic attitude  and this  is  due  to  heat stiffening and  contraction  of  the muscles, causing the arms to become flexed at the elbows and the hands clenched, the head slightly extended and the knees bent.   The  appearance resembles the position adopted by  a person  engaged  in  a  fight and has  led  on  occasion  to suspicion that death has occurred during some violent crime. In  fact, of course, the body will assume this position when the  fire  started.  The other aspect of the burn injury  is the  heat ruptures may be produced.  These are splits of the skin,  caused  by contraction of the heated  and  coagulated tissues,  and  the  resultant breaches look  like  lacerated wounds.  They are usually only a few inches, but may be upto 1 or 2 ft in length.  Normally they lead to no difficulty in interpretation,  since  they only occur in areas  of  severe burning,  and  normally over fleshy areas of the body,  like calves and thighs, where lacerations are uncommon.  However, when  they  occur  in  the  scalp  they  may  cause  greater difficulties.  They can usually be distinguished from wounds inflicted  before  the body was burnt, by their  appearance, position  in  areas of maximum burning and on fleshy  areas, and  by  the  associated findings on  internal  examination. (See in this context Taylors Medical Jurisprudence)

   Although shock due to extensive burns is the usual cause of  death,  delayed death may be due to inflammation of  the respiratory tract caused by the inhalation of smoke.  Severe damage,  at least to the extent of blistering of the  tongue and  upper  respiratory tract, can follow the inhalation  of smoke.

   Prosecutions   definite  case  in   the  matter   under

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reference is kerosene was poured in all round and thereafter with  lighted match stick the girl was burnt to death alive. The  FIR  depicts  the case of torture in order  to  attract Section  498A  together  with ingredients  of  charge  under Section  304B which stands disbelieved by the High Court and we  in  the contextual facts accept the observations of  the High Court pertaining thereto having regard to the fact that the  High Court itself has looked into the original FIR  and found  it  to be so interpolated as contended and it  is  on this score that the High Court acquitted the accused persons under  Section 304B:  No exception thus can be taken to  the order  of  acquittal of the charge above and we also  record our concurrence therewith.

   The High Court however, has not delved into the issue of non-examination  of Investigating Officer.  We are at a loss to  find  such an omission on the part of the High Court  on such a vital issue.

   Mr.   Verma,  the  learned senior counsel  appearing  in support  of  the appeal contended that conversion of  charge under  Section 304B to 302, cannot by stretch be maintained. It  has  been  contended that the Court  having  recorded  a finding  that  the demand for dowry was  interpolated  and inserted  in the FIR, virtually in a different  handwriting, which  was  done subsequently  it is submitted that, it  is unsafe to rely on the informant PW5 and the Prosecution case is   fit  to  be  rejected   outright,  more  so,  when  the Investigating  Officer  has  been kept out  of  court.   Mr. Verma  contended that since the prosecution failed to  prove the  charges  against  any  of  the  accused  and  that  the conviction   and  sentence  under   the  aforesaid   charges including  that of the appellant having been set aside,  the conviction  of the appellant under Section 302 IPC is bad in law  and  untenable.  The charge under Section 302 IPC is  a major  charge  and  it  entails   more  severe  and  greater sentence,  being  death or imprisonment for life  and  fine, whereas   in  a  charge  under   Section  304B,   there   is imprisonment  for  7  years  which   may  extend  upto  life imprisonment and in that case the court having set aside the conviction  under Section 304B read with 34 and 120B IPC, it is  neither open nor permissible to punish the accused under Section  302 IPC which in all material particular amounts to enhancement  of  sentence and inflicting greater  punishment unless  the petitioner is given an opportunity to show cause without which the court shall not inflict greater punishment [refer  to  Section385 Cr.P.C.].  Mr.  Verma contended  here again  when a distinct offence under Section 302 IPC is made out,  charge  should  have been framed and read out  to  the accused  appellant  [refer  Section 216  Cr.P.C.]  to  avoid prejudice  and  in  that case the circumstances  brought  in evidence  should be put to accused in his examination  under Section  313 of the Cr.P.C.  which has not been done causing serious  prejudice  in  defence.  In any  event  Mr.   Verma contended  that the evidence on record does not justify such a  conversion  of  charge  There is therefore  neither  any legal nor even any evidentiary support to such a conversion. The  High  Court  in  introducing Section 302  in  place  of Section  304B,  it has been submitted not only  committed  a grave  error  of law but proceeded totally against even  the entire   tenor   of  the   evidence  on  record.    Criminal jurisprudence does not warrant such a conversion on facts of the matter under consideration.

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   Turning  attention  on  to the dying declaration  be  it noticed  at this juncture that the deceased was supposed  to have  spoken to the mother that there was a conjoint  effort of  all the accused to pour kerosene on all her body and lit the  fire   The burn injury resulting therefrom has  caused her  life to death.  Prosecution thus treated the same as  a dying declaration.

   Though  the earlier view of this Court in Ramnaths case [Ram  Nath Madhoprasad & Ors.  v.  State of Madhya  Pradesh: AIR  1953 SC 420] stands overruled by a five-Judges judgment in the case of Tarachand Damu Sutar v.  State of Maharashtra [AIR  1962  SC 130] but there is no denial of the fact  that dying  declaration ought to be treated with care and caution since  the maker of the statement cannot be subjected to any cross-examination.   The  same is the view taken in  a  case reported  in  AIR  1976 SC 2199 [Munnu Raja and  Another  v. State of Madhya Pradesh] wherein this Court stated:

   It is well settled that though a dying declaration must be  approached with caution for the reason that the maker of the  statement  cannot  be subjected  to  cross-examination, there  is neither a rule of law nor a rule of prudence which has  hardened  into a rule of law that a  dying  declaration cannot  be acted upon unless it is corroborated.  Thus Court must  not look out for corroboration unless it comes to  the conclusion  that  the  dying declaration suffered  from  any infirmity  by  reason of which it was necessary to look  out for corroboration.

   In  the  same  year  this  Court   in  the  case  of  K. Ramachandra  Reddy  & Anr.  V.  The Public  Prosecutor  [AIR 1976 SC 1994] observed:

   The  dying declaration is undoubtedly admissible  under Section  32  and not being a statement on oath so  that  its truth could be tested by cross- examination, the Courts have to   apply   the   strictest   scrutiny  and   the   closest circumspection  to  the  statement before  acting  upon  it. While  great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely  to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the  statement  of  the deceased being a  result  of  either tutoring  prompting  or a product of his  imagination.   The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity  to observe and identify his assailants and that he  was  making  the  statement  without  any  influence  or rancour.   Once  the  Court  is  satisfied  that  the  dying declaration  is  true and voluntary it can be sufficient  to found the conviction even without any further corroboration.

   A  dying  declaration  which  has  been  recorded  by  a competent  Magistrate in the proper manner, that is to  say, in  the  form  of  question  and   answer  and,  as  far  as practicable,  in the words of the maker of the  declaration, stands  on  a much higher footing than a  dying  declaration which  depends upon oral testimony which may suffer from all the  infirmities  of human memory and human  character.   In order  to  test the reliability of a dying declaration,  the Court  has  to  keep  in view  the  circumstances  like  the opportunity  of the dying man for observation, for  example, whether  there  was  sufficient  light   if  the  crime  was committed  at  night;   whether the capacity of the  man  to

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remember  the facts stated had not been impaired at the time he  was  making the statement, by circumstances  beyond  his control;  the statement has been consistent throughout if he had  several  opportunities  of making a  dying  declaration apart from the official record of it;  and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties AIR 1958 SC 22:  Rel.  on.

   Be  it  noted that the dying declaration herein has  not been  effected before any Doctor or any independent  witness but  to the mother who is said to have arrived at the  place only in the morning  the mother admittedly is an interested witness:   though  that  by itself would not  discredit  the evidence tendered in Court but the fact remains the Doctors evidence  considering  the  nature  of   the  burn  posed  a considerable  doubt as to whether such a statement could  be made  half  an hour before the death of the accused.  It  is not that the statement of the unfortunate girl was otherwise not  clear or there was existing some doubt as to the  exact words on the contrary the definite evidence tendered is that there  is  clear unequivocal statement from the daughter  of the  family  that the conjoint efforts of  putting  kerosene thereafter  with  lighted match stick has resulted the  burn injury.   The severity of the burn injury and its impact  on the  body  speaks  volume  by reason of  the  death  of  the deceased.  It is the reliance on such a dying declaration by the  High  Court  shall  thus have to  be  scrutinised  with certain degree of caution.

   Dying  declaration  in the instant matter thus  we  must confess  raised  certain amount of eyebrows and  Mr.   Verma also  with  his usual eloquence did put a strong protest  in regard  thereto.   The evidence of this declaration  depicts that  just  before a few minutes of her death, the  deceased would  make  a  declaration  quietly to  the  mother  naming therein  all the three relations along with the husband  who poured  kerosene to burn her alive.  This is not acceptable, more  so having regard to the declaration being made to  the mother  only.   In  any event, is it  conceivable  that  the husband   along  with   the  father-in-law,   mother-in-law, brother-in-law  would start pouring kerosene together on  to the girl  as if each was prepared with a can of kerosene to pour  simultaneously    This  not only  would  lead  to  an absurdity  but  reliance on such a vague statement would  be opposed  to  the  basic  tenets of law.  Further  it  is  in evidence  that the deceased had an extensive burn  including her  mouth, nose and lips  if any credence is to be allowed to  the  same, then and in that event, the evidence  of  the mother  about  the  confession   stands  belied  by  itself. Significantly,  the  doctors  evidence as is  available  on record  would  also go a long way in the unacceptability  of the  evidence  of the mother as regards confession.   In  no uncertain  terms the doctor, P.W.8 stated that the death may take  place at once and within ten seconds by reason of  the extensive  nature  of the burn and the deceased cannot  have survived  beyond 10 minutes.  Another redeeming feature that the  declaration of the deceased was made only to the mother but  before the arrival of the mother, the incident was made known to the Police authorities and, in fact, the Police was present  when  the  mother and the brother arrived.   It  is highly unlikely that the Police will not make any attempt to have  a  statement by the deceased but if it  was  otherwise possible immediately on its arrival rather than wait for the mother to arrive.  Two recent decisions of this Court may be

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of  some  assistance   the first in point of  time  is  the decision of a three judge Bench of this Court in the case of Paparambaka  Rosamma and Others v.  State of A.P.  (1999 (7) SCC  695) wherein this Court in no uncertain terms  observed that  there ought not to be any hesitancy in the mind of the Court  in regard to the truthfulness and voluntary nature of disclosure  of the incident.  In Rosammas case one Dr.   K. Vishnupriya  Devi  has stated in the Court that the  injured was  conscious but she has not deposed that the injured  was in  a fit state of mind to make a statement.  It did come on record  that the girl has sustained 90% burn injuries and it is in that perspective, this Court held that in the absence of  a  medical certification that the injured was in  a  fit state  of  mind  at the time of making the  declaration,  it would   be  very  much  risky   to  accept  the   subjective satisfaction of a Magistrate who opined that the injured was in  a fit state of mind at the time of making a declaration   the  medical certification, therefore, was felt to  be  a primary  element  in  the  matter  of  dying  declaration unfortunately we do not have any certification of whatsoever nature,  it  is  only the uncorroborated  testimony  of  the mother  to  whom the deceased was supposed to have made  the declaration  as noticed above.  In paragraph 9 of the Report in  Rosammas  case  (supra)  however, this  Court  had  the following to state:

   9.    It  is  true  that   the  medical   officer   Dr. K.Vishnupriya  Devi  (PW  10)  at   the  end  of  the  dying declaration  had  certified  patient   is  conscious  while recording  the  statement.  It has come on record that  the injured  Smt.   Venkata Ramana had sustained extensive  burn injuries  on her person.  Dr.  P.  Koteswara Rao (PW 9)  who performed  the  post-mortem  stated  that  the  injured  had sustained  90%  burn  injuries.   In  this  case  as  stated earlier,  the  prosecution case solely rested on  the  dying declaration.    It  was,  therefore,   necessary   for   the prosecution to prove the dying declaration as being genuine, true  and free from all doubts and it was recorded when  the injured  was  in a fit state of mind.  In our  opinion,  the certificate  appended to the dying declaration at the end by Dr.   Smt.  K.  Vishnupriya Devi (PW 10) did not comply with the requirement in as much as she has failed to certify that the  injured  was  in  a fit state of mind at  the  time  of recording  the  dying declaration.  The certificate  of  the said  expert at the end only says that patient is conscious while  recording the statement.  In view of these  material omissions,  it  would  not  be  safe  to  accept  the  dying declaration  (Ex.P-14) as true and genuine and as made  when the  injured was in a fit state of mind.  From the judgments of  the  courts below, it appears that this aspect  was  not kept  in  mind and resultantly they erred in  accepting  the said  dying  declaration (Ex.P-14) as true, genuine  and  as made  when  the  injured  was in a fit state  of  mind.   In medical  science two stages namely conscious and a fit state of  mind  are distinct and are not synonymous.  One  may  be conscious  but not necessarily in a fit state of mind.  This distinction was overlooked by the courts below.

   In  the similar vein, another three judge Bench of  this Court  in  Koli  Chunilal  Savji and another  v.   State  of Gujarat  (1999 (9) SCC 562) observed that in the absence  of the  Doctor  while recording a dying declaration,  the  same loses its value and cannot be accepted.  In paragraphs 6 and 7 of the Report, this Court observed:

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   6.   In view of the rival submissions made at the  Bar, two questions really arise for our consideration:

   (1) Whether the two dying declarations can be held to be true and voluntary and can be relied upon or can be excluded from  consideration  for the infirmities pointed out by  Mr. Keswani, appearing for the appellants.

   (2)  Whether the High Court exceeded its jurisdiction in interfering  with  the order of acquittal, recorded  by  the learned Sessions Judge.

   7.  Coming to the first question, the answer to the same would  depend upon the correctness of the submission of  Mr. Keswani,  that in the absence of the doctor while  recording the  dying declaration, the said declaration loses its value and  cannot  be accepted.  Mr.  Keswani in  this  connection relies  upon  the  decision  of this Court in  the  case  of Maniram  v.  State of M.P.  (1994 Supp (2) SCC 539).  In the aforesaid  case, no doubt this Court has held that when  the declarant was in the hospital itself, it was the duty of the person  who  recorded the dying declaration to do so in  the presence of the doctor and after being duly certified by the doctor  that  the declarant was conscious and in his  senses and  was in a fit condition to make the declaration.  In the said  case the Court also thought it unsafe to rely upon the dying  declaration on account of the aforesaid infirmity and interfered  with  the judgment of the High Court.   But  the aforesaid  requirements are a mere rule of prudence and  the ultimate  test is whether the dying declaration can be  held to  be a truthful one and voluntarily given.  It is no doubt true  that  before  recording the declaration,  the  officer concerned  must  find  that  the  declarant  was  in  a  fit condition  to  make  the  statement in  question.   In  Ravi Chander  v.   State of Punjab (1998 (9) SCC 303) this  Court has  held  that  for  not examining the  doctor,  the  dying declaration  recorded  by the Executive Magistrate  and  the dying  declaration  orally  made need not be  doubted.   The Court further observed that that the Executive Magistrate is a  disinterested  witness and is a responsible  officer  and there  is  no circumstance or material on record to  suspect that  the  Executive Magistrate had any animus  against  the accused  or  was  in any way interested in  fabricating  the dying   declaration   and,  therefore,   the   question   of genuineness  of  the  dying   declaration  recorded  by  the Executive  Magistrate to be doubted does not arise.  In  the case  of Harjit Kaur v.  State of Punjab (1999 (6) SCC  545) this  Court  has examined the same question and held:

   (SCC p.547, para 5)

   As regards the condition of Parminder Kaur, the witness has  stated  that he had first ascertained from  the  doctor whether  she was in a fit condition to make a statement  and obtained an endorsement to that effect.  Merely because that endorsement was made not on the dying declaration itself but on  the  application,  that  would   not  render  the  dying declartion suspicious in any manner.

   Dying  declarations shall have to be dealt with care and caution  and  corroboration thereof though not essential  as such,  but is otherwise expedient to have the same in  order to  strengthen  the  evidentiary value of  the  declaration. Independent  witnesses may not be available but there should

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be  proper  care and caution in the matter of acceptance  of such  a  statement  as trustworthy evidence.   In  our  view question of the dying declaration to the mother is not worth acceptance  and  the  High Court thus clearly fell  into  an error  in such an acceptance.  Significantly, the High Court has  set aside the conviction and sentence under Section 304 B read with Section 34 and 120 B of the Indian Penal Code so far   as  the  father-in-law,   the  mother-in-law  and  the brother-in-law   are   concerned   though   maintained   the conviction  under 498A.  So far as the husband is  concerned the High Court converted the charge from 304 B to 302 on the ground  that  the  only  motive  of  the  murder  could   be attributed  to  the  husband  who  must  be  interested  in committing  such  offence  so that he  can  perform  another marriage   This is rather a far-fetched assumption without any cogent evidence available on record.  Needless to record here  that  excepting  one  of the  very  keenly  interested witness,  the  episode of the applicant being married  again does  not  come  from any other witness and  the  factum  of marriage  also  though stated but devoid of any  particulars even  as regards the name, the date of marriage etc.  It  is on  record that on arrival of the mother and the brother  of the  deceased,  they  found an assembly of large  number  of mahalla people  but none of them were called to even have a corroboration  to  this part of the evidence of the  accused marrying  after  the death of the deceased:  No  independent witness  was thought of, though the factum of marriage could have  been  corroborated by an outside agency.  The FIR  and the  other oral evidence available if read together and full credence  is attributed to the same but that itself does not and  cannot  permit  the  High  Court to  come  to  such  an assumption.   The assumption is faulty and is wholly  devoid of  any substance.  As a matter of fact no special role  was even  ascribed to the appellant herein for apart leading any evidence  thereon.   Presumptions  and assumptions  are  not available  in criminal jurisprudence and on the wake of  the aforesaid  we  are  unable  to   lend  concurrence  to   the assumptions  of the High Court as recorded herein before  in this  judgment.   Significantly, even the dying  declaration whatever it is worth, has implicated all the four accused in the  manner  similar.   There  is  no  additional  piece  of evidence implicating the husband which would permit the High Court  to  convert  the  charge  of 304  B  to  302    True punishment of life imprisonment is available under 304 B but that  is  the  maximum available under the Section  and  for Section  302  the  same is the minimum available  under  the Section.   Though  discretion  to a  further  award  minimum cannot  be taken away from the Court.  Section 302 is a much more  heinous offence and unfortunately there is no evidence of such heinous activities attributable to the husband.  The factum  of  the  husband, if interested in  committing  such offence so that he can perform another marriage has not been put to the witnesses and in the absence of which, assumption to  that  effect,  cannot  be   said  to  be  an  acceptable assumption  since  without  any  evidentiary  support.   The assumption by itself in our view is untenable.

   Mr.   H.L.  Agrawal, learned senior Advocate ,  however, emphatically  contended that considering the hour of the day and  the  factum  of  the  wife being  burnt  and  no  other explanation  coming forth, question of the husband  escaping the  liability of murder does not and cannot arise.  We  are however  unable  to lend our concurrence to  the  aforesaid. While  it  is true that husband being the companion  in  the bedroom  ought to be able to explain as to the circumstances

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but there exist an obligation on the part of the prosecution to  prove  the  guilt of the accused beyond  all  reasonable doubt.   Criminal jurisprudential system of the country  has been  to that effect and there is neither any departure  nor any escape therefrom.

   The  defence  story of early morning/burst by reason  of warming up of milk from the kitchen has not been accepted as true  and plausible explanation for the injury by either  of the  courts  but does that mean and imply  that  necessarily therefore  the  husband  was guilty of murder   The  answer cannot  be in the affirmative.  As the experience goes  this unfortunate  trend has turned out to be a growing menace  in the society and does not warrant any sympathy whatsoever but that  does not however mean non adherence to even the basics of  the law.  When the parents arrived the girl was lying on the bed and without there being any evidence as the state of the  linen,  the  cot  and the  surroundings.   Is  this  an omission without having any impact on the entire prosecution case?

   Let  us, however, scrutinise the evidence in little more greater   detail:   the  mother   was  informed  about   the daughters burn injury at night  the parents arrived in the morning  finds  the daughter in the bed room with  excessive burn  injuries without however any mention of the impact  on the  surroundings    the deceased supposed to have  made  a statement  to the mother that the in-laws and the husband on a  conjoint  move  poured  kerosene on to her  and  threw  a lighted  match stick so as to cause burn injuries  last  of the  evidence  is that the deceased immediately  after  such communication  passed away without any medical assistance would  this evidence be sufficient to prove the charges even under Section 304B and 498A for apart the conversion thereof to 302 by the High Court?  We are afraid the evidence is not sufficient enough to reach an irresistible conclusion of the involvement  of  the husband as the murderer or  even  being charged with an offence under Section 304B IPC.

   We  do  feel it expedient to record that the  conviction and sentence as imposed against the husband-appellant cannot be  sustained.   The sentence of imprisonment for life  thus under  Section 302 stands set aside.  There is no  evidence, convincing,  so  as  to even render  the  accused  appellant suffer  such  a  conviction.  There is no challenge  by  the State  as  against  the order of acquittal  of  other  three accused  persons  under  Section  304B as such  we  are  not inclined to delve into the matter as regards the involvement of  the other three persons but the appellants  explanation of  stove-  burst  being the cause of the  event  cannot  be brushed aside.  It is undoubtedly a social and heinous crime to  have the wife burnt to death but without any proper  and reliable  evidence,  the  law court can not by  itself  also justify  its conclusion in the matter of involvement of  the husband:    Direct  evidence  may   not  be  available   but circumstantial  evidence with reasonable probity and without a  snap in the chain of events would certainly tantamount to a definite evidence about the involvement but not otherwise. What  is  the evidence available in the matter  To  put  it shortly, there is none!  The factum of burn injury cannot be doubted  and  the subsequent unfortunate death but  that  is about all.  Why was the Investigating officer not examined No answers are forthcoming even at this stage  but why not? Is  it  a lacuna?  We need not dilate thereon but  the  fact remains  there  is not a whisper in regard thereto!   Coming

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back  to Section 498A the requirement of the statute is acts of  cruelty by the husband of a woman or any relative of the husband.   The word cruelty in common English  acceptation denotes  a state of conduct which is painful and distressing to  another.  The legislative intent thus is clear enough to indicate that in the event of there being a state of conduct by the husband to the wife or by any relative of the husband which  can be attributed to be painful or distressing.   The same  would  be within the meaning of the Section.   In  the instant case there is no evidence whatsoever.  It is on this score  Mr.   Verma  contended that there  is  no  sufficient evidence  for even the dowry demand far less the evidence of cruelty  available  on record.  No outside person  has  been called  to give evidence and even the witnesses being in the category  of  interested  witnesses  also  restricted  their version to sufferings of burn injury and the purported dying declarations  to the matter as noticed herein before  apart therefrom  nothing more is available on record to  attribute any act or acts on the part of the husband or on the part of husbands  relatives  is that evidence sufficient to  bring home  the  charge under Section 498A?  The answer  obviously cannot   be  in  the  affirmative   having  regard  to   the non-availability   of   any   evidence    in   the   matter. Significantly  however,  upon  recording of the fact  of  no dowry  demand prior to the date of occurrence the High Court thought  it  fit  to record that charge under  Section  498A stands  proved  and  as such passed the  sentence.   We  are however unable to record our concurrence therewith - torture is a question of fact  there must be proper effort to prove that  aspect  of the matter, but unfortunately not  even  an attempt  has been made nor any evidence tendered to  suggest the  same excepting the bold interpolated allegations  which stand  disbelieved and ignored by the High Court, and in our view rightly.

   On  the wake of the aforesaid, charge under Section 498A also  cannot be sustained!  Both the learned Trial Judge and the  High  Court are clearly wrong in not  considering  this aspect  of the matter and thus fell into a serious and clear error.   In  that  view  of the matter  the  conviction  and sentence  stand  set  aside.    The  appeal  stands  allowed accordingly.   The appellant is acquitted.  The appellant be set at liberty forthwith unless required in any other case.

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