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PETITIONER: SMT. PANIBEN

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT13/03/1992

BENCH: MOHAN, S. (J) BENCH: MOHAN, S. (J) RAY, G.N. (J)

CITATION:  1992 AIR 1817            1992 SCR  (2) 197  1992 SCC  (2) 474        JT 1992 (4)   397  1992 SCALE  (1)655

ACT:      Indian Penal Code 1860:      Section 302-Bride burning-Conviction and  sentence-Duty of Court.      Section  32-Dying declaration-When can form sole  basis of  conviction-Plurality  of dying  declaration-Have  to  be accepted when trustworthy and reliable.      Penology      Sentencing-Bride   burning-Language  of  deterence   to speak.

HEADNOTE:      The appellant in the appeal was convicted under Section 302  of  the  Indian  Penal  Code,  and  sentenced  to  life imprisonment  by the High Court reversing the  acquittal  of the Trial Court.      The  Prosecution alleged  that deceased was married  to the son of the accused in the year 1972, and that there were frequent  quarrels between the  appellant-mother-in-law  and the  deceased-daughter-in-law.  On one occasion, on  account of a quarrel the daughter-in -law went away to her  parents’ house and on the assurance of her father-in-law that nothing would  go wrong, the deceased was sent to the house  of  the accused.  The accused, the deceased and her husband were all living in the same house.  Even after the return, there used to  be quarrels between the accused and the  deceased.   The accused developed a profound dislike for the deceased.      On  the  night of 7th May,1977,at about  midnight,  the deceased was sleeping all alone in the ‘osri’ of the  House. The accused went there,poured kerosene on her person,and  as the  deceased got up, the accused lit the fire and left  the ‘osri’.   The  deceased  shouted for help  and  hearing  her shouts,  her husband and other collected there and the  fire was  extinguished.  She was removed to the  hospital in  the cart.  In the cart, she told some witnesses that her mother- in-law had burnt her. later on. she was                                                         198 taken  to  the  Government hospital in a  taxi  in  a  burnt condition.  The police constable on duty informed the Taluka police  station and the Head Constable made an entry in  the police station diary, and another Head Constable went to the

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hospital  and recorded the statement of the deceased in  the early hours.  In that statement, she stated that her mother- in-law had burnt her.  The Head Constable wrote a ‘yadi’ for a dying declaration to the Executive Magistrate who  reached the  hospital at about 7.00 A.M. on 18.5.1977, and  recorded the  dying declaration Ex.29. In this declaration also,  the deceased  stated  that she was burnt by  the  accused.   The Police sub-Inspector who took up the investigations, went to the scene of occurrence, made the panchnama of the scene  of occurrence  and  recorded the  statement of  witnesses.   He also recorded a statement of the deceased on 19.5.1977.   In that  also,  the deceased stated that she was burnt  by  her mother-in-law.   The sub-Inspector arrested the  accused  on 18.5.1977.   The  deceased  succumbed  to  the  injuries  on 20.5.1977.  On completing the necessary investigations,  the accused was charge-sheeted and committed before the  Session Judge.      The  Sessions  Judge came to the  conclusion  that  the deceased  might  have committed suicide, that  it  was  also probable  that  someone  else might  have  burnt  her  alive, because  she had a grievance against her  mother-in-law  she implicated   her   in   dying   declaration.    The    dying declarations,  hence could not be accepted having regard  to this inherent infirmity.  On these findings it was held that the prosecution  had failed to prove that the  deceased  was burnt alive by the accused,  and the accused was acquitted.      The  State appealed to the High Court, and  a  Division Bench  considered  the circumstances under which  the  dying declarations  were  recorded.   It  found  that  the   dying declaration  Ex.24 clearly showed as to how  the  occurrence had  taken  place.  The second dying declaration  Ex.29  was recorded  in  a question and answer form that there  was  no scope  for  tutoring the deceased for giving  any  statement which would involve the accused, and that at that time,  the deceased was all right and she was in a position to give the dying declaration.  The  third dying declaration was made to the deceased’s father who was a truthful witness and clearly establishes that there was no scope of parents tutoring  the deceased in any way.  The findings of the Trial Court it was held  could  not be accepted with reference to  the  various aspects  like  enmity  between  the  mother-in-law  and  the deceased,  the  failure  of  the  deceased  to  narrate  the incident to her                                                        199 husband,  and was not prepared to believe that the  deceased attempted  to commit suicide and only for  revenge  involved the  accused falsely. In the result, the order of  acquittal was set aside, the accused was held guilty of the offence of murder  and  was  convicted  under  Section  302  I.P.C  and sentenced  to  imprisonment  for  life.   It  was,  however, recommended that the Government consider the case favourably on the aspect of remission of sentence under Section 432  of the Code of Criminal Procedure.      In  the  appeal  to this  Court, it  was  contended  on behalf  of  the  appellant  that  the  High  Court  was  not justified  in  convicting the accused purely  on  the  dying declarations  which  bristle with  many  contradictions  and improve  from stage to stage, and that having regard to  the fact that the relationship between the mother-in-law and the daughter-in-law,was far from cordial the deceased had  every motive  to  implicate   the  mother-in-law.   It  was   also contended  that the appellant was 58 years of age  and  that having spent more than a decade in jail,the appeal calls for interference on the ground of sentence.      Dismissing the appeal, and upholding the conviction and

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sentence, this Court      HELD 1. The situation in which a man is on death bed is so solemn and serene when he is dying the grave position  in which  he  is  placed, is the reason in law  to  accept  the veracity  of  his  statement.  It is  for  this  reason  the requirements  of  oath and cross-examination  and  dispensed with.  Besides, should the dying declaration be excluded  it will  result in mis-carriage of justice because  the  victim being generally the only eye witness in a serious crime, the exclusion  of the statement would leave the Court without  a scrap of evidence. [205E]      2.  Though  a dying declaration is  entitled  to  great weight,  it  is worthwhile to note that the accused  has  no power  of cross-examination.  Such a power is essential  for eliciting the truth as an obligation of oath could be.  This is  the  reason  the  Court  also  insists  that  the  dying declaration  should be of such a nature as to  inspire  full confidence of the Court in the correctness. [205F]      3.  The Court has to be on guard that the statement  of the  deceased  was not as a result of either tutoring  or  a product of imagination.  The Court must be further satisfied that the deceased was in a fit state of mind                                                  200 after  a  clear  opportunity to  observe  and  identify  the assailants. [205G]     4.Once  the Court is satisfied that the declaration  was true and voluntary. undoubtedly, it can base its  conviction without  any further corroboration.  It cannot be laid  down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The  rule  requiring  corroboration  is  merely  a  rule  of prudence. [205H]      5. If the plurality of dying declarations could be held to  be truthworthy and reliable, they have to  be  accepted. [207E]      In the instant case there four dying declarations.  The fist  dying  declaration  is  Ex.  24  recorded  by  a  Head Constable  who wrote down the statement as deposed   by  the deceased.  At that time, the deceased was   conscious.   The second  dying declaration is Ex. 29 and was recorded by  the Taluka Magistrate in question and answer form.  There was no possibility  of the deceased being tutored, prompted  as  to utter falsehood, so as to implicate the accused,  It is also clear  when she made the statement, she was in a fit  mental condition.  The third oral dying declaration was made by the deceased to her father  who has impressed the High Court  as a  truthful  witness.  The fourth  dying  declaration  Ex.34 recorded  by  the  police  sub-inspector  has  been  rightly rejected  by  the  High Court.  The  High  Court  was  fully justified  in accepting the dying declarations because  they answer every test which is required to be accepted for  such acceptance.                        [207E, H;208 D, E,G]      In  the  instant case, the theory of suicide  has  been rightly rejected by the Court. A tender lass after only five years  of married life with and affectionate husband  and  a young  daughter to foster could not have resorted   to  that rash act merely because there  were quarrels between her and her mother-in-law. In every house it is proverbial that such quarrels   do take place. It is impossible to  contend  that the deceased was so much  frustrated in life so as to commit suicide. [208H-209D]      6.  It would be a traversity of justice if sympathy  is shown  when  such a cruel act is committed.   it  is  rather strange that the mother-in-law who herself is a woman should

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resort to killing another woman.  It is hard to fathom as to why  even the "mother" in her did not make her feel.  It  is tragic  ,deep rancour should envelop her reason  and   drown her finer feelings. The                                                     201 language  of  deterrance  must speak in that  it  may  be  a conscious reminder to the society.  Undue sympathy would  be harmful  to the cause of justice. It may even undermine  the confidence in the efficacy of law. [209C-D]      7.  Merely  because the accused has spent more  than  a decade  in  jail is no justification to show  any  leniency. [209E]      Mannu  Raja v. State of M.P., [1976] 2 SCRR 764;  State of  M.P. v. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati  Devi v.  State  of Bihar, AIR 1983 SC 164; Ram Chandra  Reddy  v. Public Prosecutor, AIR 1976 S.C. 1994; Rasheed Beg v.  State of  Madhya Pradesh, [1974] 4 S.C.C. 264; Kake Singh v.  Sate of  M.P.,  AIR  1982  SC 1021;  Ram  Manorath  v.  State  of H.P.,1981   SCC   (Crl.)  531;  State  of   Maharashtra   v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617; Surajdeo Oza v. State of Bihar,AIR 1979 SC 1505; Nanahau Ram and  another v. State,AIR 1988 SC 912; State of H.P. v. Madan Mohan,  AIR 1989  S.C.  1519;  Mohan lal v. State  of  Maharashtra,  AIR 1982,S.C. 839, referred to.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION : Criminal  appeal  No. 487 of 1980.      From  The  Judgment and Order dated 17/18-4-80  of  the Gujarat High Court in Crl. A. No. 885 of 1978.      Vimal Dave for the Petitioner.      R.N. Sachthey and Anip Sachthey for the Respondent.      The Judgment of the Court was delivered by      MOHAN,  J.  Everytime a case relating  to  dowry  death comes up, it causes ripples in the pool of the conscience of this  Court. Nothing could be more barbarous, nothing  could be more heinous than this sort of crime.  The root cause for killing  young  bride  or daughter-in -law  is  avarice  and greed.   All tender feelings which alone make  the  humanity noble  disappear  from  the heart.  Kindness  which  is  the hallmark of human culture is buried.  Sympathy to the fairer sex, the minimum sympathy   is not even shown.  The seedling which  is  uprooted  from its original soil  and  is  to  be planted in another soil to grow and bear fruits is  crushed. With this prefatory note, we pass on to the matrix of facts.      The criminal appeal is directed against the  conviction of the appellant                                                        202 under Section 302 of Indian Penal code and sentencing her to life  imprisonment  reversing the acquittal  by  the  Tribal Court.  The case of the Prosecution shortly is as under:      Bai  Kanta was married to Valji Savji sometime  in  the year 1972. Accused is the mother-in-law of Bai Kanta.  There were  frequent  quarrels between the mother-in-law  and  the daughter-in-law.  Once Bai Kanta on account of quarrel  went away  to her parent’s house.  Accused went to the  house  of Bai Kanta to bring her back.  The father-in-law of Bai Kanta gave  an  assurance that nothing would go  wrong.   On  this assurance, Bai Kanta was sent to the house of Accused.   The accused,  Bai Kanta and her husband were all living  in  the same  house.   Even  after  the return,  there  used  to  be quarrels  between  the accused and Bai Kanta.   The  accused developed  profound dislike for Bai Kanta.  On the night  of

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7th May, 1977 at about 12 mid night, Bai Kanta was  sleeping all  alone  in the ’osri’ of the house.   The  accused  went there,  poured kerosene on her person.  Bai Kanta got up  as she  felt  the kerosene was being poured and  meanwhile  the accused lit fire and left the ’osri’. Bai Kanta shouted  for help.   Hearing the shouts, the husband and other  collected there and the fire was extinguished.  She was removed to the hospital  in the cart. In the cart, she had  told  witnesses Ratnabhai, Savji Dahya, Shantaben, Valji Ben and others that her mother-in-law had burnt her.  Up to the Gadhka  village, she  was  taken in the cart.  Later on, she was  brought  to Rajkot  Government  hospital in a taxi in  burnt  condition. The police constable on duty at the hospital informed Taluka police  station about Bai Kanta having been brought  to  the hospital  in  burnt  condition.  So,  Head  Constable  Kanji Ukabhai  who  was in-charge of the police  station  made  an entry  in  the  police  station  diary.   He  directed  Head Constable Abhal Mamaiya to go the hospital and enquire  into this matter.  Accordingly Head Constable Abhal Mamaiya  went to  the hospital and recorded the statement of Bai Kanta  in the  early hours.  It was stated by her that the  mother-in- law  burnt  her.   Abhal  Mamaiya wrote  a  yadi  for  dying declaration  to the Executive Magistrate which was  received by him at 6 a.m. Abhal Mamaiya, thereafter filed a complaint on  the  strength of the statement of the deceased  and  the investigation started.  The Executive Magistrate reached the hospital  at about 7.10 a.m. on 18.5.1977.  He recorded  the dying  declaration  Ex. 29.  In that declaration  also,  Bai Kanta  stated  she was burnt by the  accused.   Police  Sub- Inspector Tavde of Rajkot Taluka police station took up  the investigation;  went  to the seen of  occurrence;  made  the panchnama of the scene of occurrence; recorded the                                                        203 statement  of  witnesses.  He arrested the  accused  in  the evening.   He  also recorded the statement of Bai  Kanta  on 19.5.1977.  In that also, Bai Kanta stated, she was burnt by her  mother-in-law,  the accused.  The  Sub-Inspector  Tavde arrested  the accused at about 6.45 p.m. on 18.5.1977.   Bai Kanta succumbed to the injuries on 20.5.1977 at 0045  hours. Thereafter, post-mortem was carried out.      On completing the necessary investigation, the  accused was chargesheeted and after committal, she was tried by  the learned Sessions Judge of Rajkot in Sessions Case No. 34  of 1977.      On consideration of the evidence, the learned  Sessions Judge  came to the conclusion that the deceased  might  have committed  suicide.   Besides,  it was  also  probable  that someone else might have burnt her alive.  Because she had  a grievance   against   her  mother-in-law,   in   the   dying declaration   she   implicated  her.    Hence,   the   dying declaration  could  not  be accepted having  regard  to  the inherent  infirmity.   Accordingly,  it was  held  that  the prosecution has failed to prove that the deceased was  burnt alive by the accused.  Thus it ended in acquittal.      The State took up the matter in Criminal Appeal No. 885 of  1978 to the High Court of Gujarat.  The  Division  Bench considered   the   circumstances  under  which   the   dying declaration   were  recorded.   It  found  that  the   dying declaration Ex.24 clearly shows as to how the occurrence had taken place.      The  second dying declaration Ex.29 which was  recorded in question and answer form.  There was no scope of tutoring the  deceased for giving any statement which would   involve the accused.  At that time the deceased was allright and she was in a position to give the dying declaration.

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    The  third  dying declaration made  by  the  deceased’s father Jadav who was a truthful witness, clearly establishes there  was no scope of parents tutoring the deceased in  any way.      It  was  further held that the findings  of  the  Trial Court  could not be accepted with reference to  the  various aspects  like  enmity  between the  mother-in-law  and  the deceased, the appreciation of the statement of deceased, the failure of the deceased to narrate the incidence to her husband.                                                        204      The  High Court considered the legal  position  whether the  accused  could  be  convicted on  the  basis  of  dying declaration   in  the  light  of  relevant  case  law.    It ultimately held that the deceased was young girl aged  about 18 years who had a married life of only 5 years to her share with all hopes of living a happy married life in future with her husband who was affectionate towards her.  She had  also a  young  daughter  aged  about 2  1/2  years.   Except  the relationship  with her mother-in-law, she was  quite  happy. There was no possibility of her coming to a conclusion  that she  must  end her life.  There was no indication  that  the deceased was so harassed as to have lost her self-control so as to commit suicide.  Thus, the High Court was not prepared to believe that the deceased attempted to commit suicide and only for the revenge, she involved the accused falsely.   In the  result,  the  order of acquittal  was  set-aside.   The accused  was held guilty of the offence of murder.  She  was convicted  under  section  302  of  Indian  Penal  Code  and sentenced  to  imprisonment  for  life.   However,  it   was recommended   to  the  Government  to  consider   her   case favourably on the aspect of remission of her sentence  under Section 432 of the Code of Criminal Procedure.      Special  leave petition was directed to be  treated  as petition of appeal by an order dated 6.8.1980 passed by this Court.  Under these circumstances, the criminal appeal comes before us.      The learned counsel for the appellant vehemently  urged that  the  High Court was not justified  in  convicting  the accused  basing purely the dying declaration which  bristles with  so many contradictions and improvements from stage  to stage.  Having regard to the fact that relationship  between the mother-in-law and the daughter-in-law far from  cordial, the  deceased had every motive to implicate  the  mother-in- law.   Normally speaking deceased would not have  failed  to narrate  this incidence to her husband who was  affectionate to her.  Besides, there were also several other  infirmities pointed out by the learned Sessions Judge who had  acquitted the accused.  That acquittal should not have been interfered with.      In  any event, the accused at the time of the  judgment of  the High Court itself was 58 years of age.   She  having spent  more  than  a decade in jail, the  appeal  calls  for interference on sentence.      The learned counsel appearing for the respondent  State submits: the High Court has considered fully each and  every aspect  after administering to it the caution that an  order of acquittal cannot be interfered with lightly.                                                        205 It  analysed the three dying declarations.  There again,  it had  forefront the law that it could not be safe to hold  an accused  guilty  solely on the basis of  dying  declaration. After doing so, it found that the implication of the mother- in-law who was real offender was not on account of  enimity. It considered the other aspect as to why the husband was not

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informed  and the so called infirmities pointed out  by  the Sessions Court.  In the light of the decision of this Court, it was found that the dying declaration ought to be accepted and rightly convicted the accused.      Having regard to the drastic nature of the crime,  even on sentence, no sympathy can be shown.      This  is  a case where the basis of conviction  of  the accused  is the three dying declarations. The  principle  on which  dying  declarations  are  admitted  in  evidence   is indicated in legal maxim.          "nemo moriturus proesumitur mentiri-a man will  not          meet his Maker with a lie in his mouth".      The  situation  in which a man is on death  bed  is  so solemn  and  serene when he is dying the grave  position  in which  he  is  placed, is the reason in law  to  accept  the veracity  of  his  statement.  It is  for  this  reason  the requirements  of  oath and cross-examination  are  dispensed with.  Besides, should the dying declaration be excluded  it will  result in mis-carriage of justice because  the  victim being generally the only eye witness in a serious crime, the exclusion  of the statement would leave the Court without  a scrap of evidence.      Though a dying declaration is entitled to great weight, it  is worthwhile to note that the accused has no  power  of cross-examination.  Such a power is essential for  eliciting the  truth as an obligation of oath could be.  This  is  the reason  the  Court also insists that the  dying  declaration should be of such a nature as to inspire full confidence  of the Court in its correctness.  The Court has to be on  guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination.  The  Court must  be  further satisfied that the deceased was in  a  fit state  of  mind  after a clear opportunity  to  observe  and identify  the assailants.  Once the Court is satisfied  that the declaration was true and voluntary, undoubtedly, it  can base  its conviction without any further corroboration.   It cannot  be  laid down as an absolute rule of  law  that  the dying declaration                                                        206 cannot  form  the  sole basis of  conviction  unless  it  is coroborated.   The rule requiring corroboration is merely  a rule  of  prudence.   This Court has laid  down  in  several judgments the principles governing dying declaration,  which could be summed up as under:          (i)  There is neither rule of law nor  of  prudence          that dying declaration cannot be acted upon without          corroboration.  Mannu Raja v. State of M.P., [1976]          2 SCR 764.          (ii)  If  the  Court is satisfied  that  the  dying          declaration  is  true  and voluntary  it  can  base          conviction on it, without corroboration.  State  of          M. P. v. Ram Sagar Yadav, AIR 1985 Sc 416; Ramavati          Devi v. State of Bihar, AIR 1983 SC 164.          (iii)  This  Court  has  to  scrutinise  the  dying          declaration  carefully  and must  ensure  that  the          declaration   is  not  the  result   of   tutoring,          prompting   or  imagination.   The   deceased   had          opportunity to observe and identify the  assailants          and  was  in a fit state to make  the  declaration.          Ram  Chandra Reddy v. Public Prosecutor,  AIR  1976          S.C. 1994.          (iv)  Where  dying  declaration  is  suspicious  it          should  not  be acted  upon  without  corroborative          evidence.   Rasheed Beg v. Sate of Madhya  Pradesh,          [1974] 4 S.C.C. 264.

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        (v)  Where the deceased was unconscious  and  could          never make any dying declaration the evidence  with          regard  to  it is to be rejected.  (Kake  Singh  v.          State of M. P.., AIR 1982 S.C. 1021)          (vi)   A  dying  declaration  which  suffers   from          infirmity  cannot  form the  basis  of  conviction.          (Ram  Manorath  v. State of U.P.  1981  SCC  (Crl.)          531).          (vii)  Merely because a dying declaration does  not          contain the details as to the occurrence, it is not          to   be   rejected.   (State  of   Maharashtra   v.          Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).          (viii)  Equally,  merely  because  it  is  a  brief          statement,   it  is  not  be  discarded.   On   the          contrary,  the  shortness of the  statement  itself          guarantees truth.  Surajdeo Oza v. State of  Bihar,          AIR 1979                                                        207          SC 1505)          (ix) Normally the court in order to satisfy whether          deceased was in a fit mental condition to make  the          dying  declaration look up to the medical  opinion.          But  where  the  eye  witness  has  said  that  the          deceased  was in a fit and conscious state to  make          this dying declaration, the medical opinion  cannot          prevail.  (Nanahau Ram and another v. State, AIR Sc          912)          (x) Where the prosecution version differs from  the          version as given in the dying declaration, the said          declaration  cannot be acted upon.  (State U.P.  v.          Madan Mohan, AIr 1989 S.C. 1519)      In the light of the above principles, we will  consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying  declaration made by the deceased Bai Kanta.  This Court in Mohan Lal  v. State of Maharashtra, AIR 1982, S.C. 839 referred to held:      "Where there are more than the statement in the  nature of  dying  declaration, one first in point of time  must  be preferred".      Of course, if the plurality of dying declarations could be  held  to be truth worthy and reliable, they have  to  be accepted.     The  first dying declaration is Ex 24.  It was  recorded by Head Constable Abhal Mamaiya.  At that time, the deceased was  conscious.  He wrote down her statement as  deposed  by her.  That clearly shows that when the deceased was sleeping in  the Osri at night, her mother-in-law, her  father-in-law and others were sleeping in the pali, at about 12 mid-night, the  accused poured kerosene and ignited her.   Because  the deceased shouted, people from round about  gathered and fire was  extinguished.  Therefore, her  father-in-law,  maternal aunt-in-law and sister-in-law and 2 to 3 other persons  took her  in  a  cart.  It is admitted by  Head  Constable  Abhal Mamaiya  in cross-examination that while  recording  the statement, he did not call the Medical Officer.      The  second  dying  declaration  is  Ex.  29.  This  is recorded  by  Taluka  Magistrate  Bhachandra   Prabhashanker Trivedi.   He reached the hospital at 6.35 a.m.  He  reached the  hospital at 6.35 a.m.  He ascertained from  the  Doctor whether  Bai Kanta was conscious.  The Doctor  examined  her and found her to be conscious.  Thereafter, only                                                        208 the Medical Officer was allowed to remain the room and  the other  persons  were  sent  out.   He  recorded  the   dying declaration  in  question and answer  form.   The  Executive

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Magistrate  wrote  down the answers given by  the  deceased. This  was completed by 7.10 a.m. This declaration  makes  it clear  that the deceased was sleeping alone in  the  ’osri’, someone came  near her, poured kerosene  whereupon she  woke up.   At  that  time, she found out the  person  who  poured kerosene  on  her,  was  her  mother-in-law,  the   accused. According  to  this statement, the accused  poured  kerosene because  there  was dispute in the house for 8  to  10  days prior  to  the date of the occurrence,   during  which  time frequent quarrels took, place and the mother-in-law  rebuked her since Bai Kanta did not do work.      It is important to note to the specific question as  to whether she was sleeping alone or someone else was also with her,  she replied that her husband had gone to the wadi  and she was sleeping alone.      It is equally important to note that the parents of the deceased  reached  the hospital only round about  7.30  a.m. Hence there is no possibility of she being tutored, prompted as  to utter falsehood, so as to implicate the accused.   It is also clear that at that time when she made the statement, she was in a fit mental condition to make the statement.      The  third  oral  dying declaration  was  made  by  the deceased  to her father Jadav.  The deceased told  him  that her  mother-in-law had burnt her.  Jadav impressed the  High Court  as a truthful witness because he did not want to  fall in  line  with the narration of the police  in  which  minor details  were attributed to him.  We also on  going  through the evidence of Jadav are fully impressed with the same.      As  rightly  held by the High Court  the  fourth  dying declaration  Ex.  34  stated to have been  recorded  by  the police  Sub-Inspector Tavde has to be discarded.   Thus,  we are  clearly  of  the  opinion  the  High  Court  was  fully justified  in accepting the dying declaration  because  they answer  every test which is required to be applied for  such acceptance.      We concur with the High Court in reversing the findings of  the Learned Sessions Judge as to why the deceased  could not  try to run and catch the miscreant and allow her  cloth to burn.  Equally, we agree with the High Court with  regard to  the  other  infirmities  including  not  informing   the husband.  The theory of suicide has been rightly rejected by the High                                                        209 Court.   As  was pointed out a tender less after  only  five years  of  married life with an affectionate husband  and  a young  daughter  to foster could not have resorted  to  that rash act merely because there were quarrels between her  and her mother-in-law. In every house it is proverbial that such quarrels  do take place.  It is impossible to  contend  that the deceased was so much frustrated in life so as to  commit suicide.      In  the result, we have no hesitation in upholding  the conviction.      Turning to the sentence; sympathy is what is pleaded at our hands.  We are clearly of the opinion that it would be a traversity  of justice if sympathy is shown when such  cruel act is committed.  It is rather strange that the  mother-in- law who herself is a woman should resort to killing  another woman.  It is hard to fathom as to why even the "mother"  in her did not make her feel. It is tragic deep rancour  should envelope  her  reason  and drawn her  finer  feelings.   The language  deterrance must speak in that it may be  conscious reminder to the society.  Undue sympathy would be harmful  t the  cause of justice. It may even undermine the  confidence in the efficacy of law.

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    Merely because the accused has spent more than a decade in  jail, we see no justification to show any leniency.   Of course,  we are aware the High Court itself had  recommended for  remission  under  Sec.  432 of  the  Code  of  Criminal Procedure,  in view of the accused being 58 years of age  at that  time.  Whether of the counsel in favour or  opposition have  informed us as to what had happened whether  remission was granted or not.  However, we leave it at that.      In the result, we dismiss the appeal. N.V.K.                                  Appeal dismissed.                                                      210