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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: KISHORE

DATE OF JUDGMENT:       27/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMAD SAGHIR S. (J) G.B. PATTANAIK (J)

CITATION:  JT 1996 (2)   595        1996 SCALE  (2)462

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. RAMASWAMY, J.:      Leave granted.      Despite issuance of non-bailable warrant and attachment of the  properties, Presence  of the respondent could not be secured for  executing the  warrants as it was reported that his whereabouts  were not known. Consequentially, as per the directions of  the Court,  the Legal  Aid Committee assigned Shri S.K.  Pasi to  assist the  Court as  a counsel  for the respondent. After  hearing the counsel for the State and the respondent, we  had reserved  the judgment  on  January  30, 1996. However,  on February  2,  1996,  the  respondent  was brought and his counsel Shri Sushil Kumar Jain requested the Court to  give an  opportunity for  hearing. Accordingly  we heard the  matter again.  This case also indicates avoidance on the  part of  the people like the respondent to delay the disposal of the appeal in this Court. When the attempts were found to  be unsuccessful,  he made  appearance in the Court which gave us an insight to adopt such appropriate procedure for  securing   presence  for   early  disposal   to   avoid miscarriage of justice.      On June  21, 1984, PW. 6, Station House Officer, Sodala Police Station  in Jaipur,  Rajasthan State  had received  a telephonic message,  recorded under Ex.P-22, that Guddi, the deceased was  burnt of  injuries and  was  admitted  in  the hospital. After  its entry  in the 6.D., he proceeded to the hospital and  recorded her  statement Ex.P-16,  came back to the  police   station,  issued   the  F.I.R.   and  set  the investigation in  motion. PW.8  took over the investigation, went to  the deceased  and recorded  her  statement  Ex.P-19 under  Section  161  of  the  Code  of  Criminal  Procedure, [Cr.P.C.] and  sent  the  requisition  Ex.P7  to  the  Chief Judicial Magistrate,  Jaipur to  record her declaration. The latter directed PW.1, the Addl. Chief Judicial Magistrate by name Hari  Singh Punia to proceed to the hospital and record

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the statement.  Accordingly, PW.1 on receipt of the order at 9.45 p.m. proceeded to the hospital and reached the hospital at about 10.10 p.m. on June 21, 1984. He sent a nurse to get the doctor  for his  proceeding with  the recording  of  her statement. He  waited till  10.50 p.m.  but no doctor turned up. Consequentially, he proceeded to record her statement by way  of  questions  and  answers  under  Ex.P-8.  He  put  8 questions in  all. Relevant questions are: Question Nos.1, 2 and 3. They along with answers read as under:      "1. Question - What was the time of      incident?      Answer -  It was  2 O’Clock at day.      After  pouring  kerosene  oil,  lit      match-box.      2.Question -  Who were  present  at      your house at that time?      Answer - My mother - in - law, four      sisters-in-law  and   my   daughter      Sisters-in-law  are  Suman,  Guddi.      Wanchuki, Sampat.      3.Question - How did you get burnt?      Answer  -   In  the   morning,   my      motherin-law poured kerosene oil on      me but  I did  not get burnt. After      this, my  husband come for lunch at      noon and my mother-in-law asked him      to lit  match-box on  me.  Then  my      husband after  pouring kerosene oil      on me, lit match-box and my husband      came out  of the  house. My mother-      in-law kept on watching."      The other questions are not relevant for the purpose of this case;  hence omitted.  She died on June 22, 1984 due to 80 per  cent burn  injuries. The  crime  was  covered  under Section 302,  Indian Penal  Code  [IPC].  PW.7,  the  doctor conducted autopsy  and issued post-mortem certificate, Ex.P- 21. At  the trail,  prosecution had  examined as  many as  8 witnesses including  PW.3 and PW.4, the immediate neighbours and PW.2,  brother of the deceased to prove motive. PW.3 and PW.4 turned  hostile. The  Sessions Judge  relied  upon  the three dying  declarations and  he has  given primacy  to the dying declaration  recorded by the Judicial Magistrate under Ex.P-8 and  held that  the charge under Section 302, IPC was proved  against  the  respondent  and  convicted  him  under Section  302   and  sentenced   him  to   undergo   rigorous imprisonment for  life.  But  he  acquitted  the  deceased’s mother-in-law, Pushpa.      The State did not file any appeal against the acquittal of the  mother-in-lay. The  respondent filed  appeal in  the High ’Court.  The  Division  Bench  of  the  High  Court  in Criminal appeal  No.116 of  1986 by order dated May 13, 1988 has acquitted the respondent. Reasons in support thereof are that: the  Judicial Magistrate  had not recorded heir mental condition; he  did not  get any  confirmation of  the mental condition of  the deceased before recording the declaration; the articles  seized at  the scene  of the  offence were not sent for chemical examination; the hair of the deceased sent for chemical  examination  did  not  contain  the  smell  of kerosene oil;  doctors would  normally be  available in  the ward; the Judicial Magistrate without waiting for the doctor and without  obtaining from  him proper  certificate of  the mental  condition   or   the   deceased,   recorded   Ex.P-8 declaration which  would be  highly irregular on the part of the Magistrate  to record  such statement;  the deceased was under agony  with 80  per cent  of burn injuries. Therefore,

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the story  set up  by the  prosecution is not genuine and is shrouded with  doubts. The  prosecution, therefore,  has not proved the  case beyond  reasonable doubt.  Accordingly, the Division Bench  acquitted  the  respondent  giving  him  the benefit of doubt.      It is  contended for  the State  that the view taken by the High  Court is  unjustified on  the facts  of this case. PW,1, the  Judicial Magistrate  waited for the doctor for 40 minutes near  the deceased before recording the statement of the  deceased,   which  has  now  turned  out  to  be  dying declaration, but no one had turned up. Therefore, he thought it  expedient   to  proceed   with   recording   the   dying declaration. He  put questions and elicited answers from the deceased. The  answers given  by her  clearly  indicate  her mental condition. Therefore, the absence of certificate from the doctor  does not  cast any  cloud on the correctness  of the declaration by the deceased. They get corroboration from the F.I.R. Ex.P-16 and Section 161  statement, Ex.P-19 which consistently  spoke   of  the    offence  committed  by  the respondent, The  omission on   the part of the investigation officer  to  have  the  seized  clothes  sent  for  chemical examination is  a lapse  on the  part of  the  investigation officer but  that does not cast any doubt on the prosecution case. In  view of  the evidence  on record  that  after  the deceased was  burnt her  clothes were  changed and the burnt clothes were  found under the Panchnama showed that evidence of offence  was destroyed.  In view of the doctor’s evidence that she  died  due  to  80  per  cent  burn  injuries,  the conclusion would  be that  the cause of the death was burns. The omission to find kerosene oil smell on the hair sent for chemical examination  also does  not cast  any doubt  on the prosecution case.  The statement  of the deceased, Ex.P-8 is clear  and   unequivocal  that  the  respondent  had  poured kerosene on  her and  set to  fire and  consequentially  she sustained 80  per cent  burn injuries and died due to shock. The offence, therefore, of murder, has been made out. Though Pushpa, mother-in-law of the deceased was wrongly acquitted, the acquittal does not cast any doubt on the veracity of the declaration, Ex.P-8.      Shri Pasi, learned counsel with his through preparation has  contended   that  the  High  Court  was  right  in  its conclusion that  the prosecution  has not  proved  the  case beyond  doubt.   There  is   inconsistency  in  the  timings mentioned in  Ex.P-16, F.I.R. and Ex.P-8, dying declaration. therefore, whereas  under Ex.P-8,  according to the deceased the occurrence  had taken  place at  2 p.m., as per Ex.P-16, the occurrence  had taken  place at  about 5  p.m. and death must be only subsequent to 2 p.m. which might necessarily be due to  accident  or  suicide.  It  is  evident  from  these statements that  the deceased  made an  attempt to  rope  in Pushpa, her  mother-in-law  attributing  her  unsuccessfully attempting to  set the  deceased on  fire in the morning. It would  be   unlikely  that   the  deceased  might  not  have complained to  the neighbors  or  escaped  From  the  house. Therefore, the  possibility of  the deceased setting herself to fire  by pouring  kerosene  oil  to  commit  suicide  and falsely implicating  the respondent and his mother cannot be ruled out, Obviously for that reason the seized clothes were not sent for chemical examination, The witnesses who came to the scene  and spoke  under Section  161 that the respondent prevented them  to get  into the room, had not supported the prosecution case  which obviously  is false. The Magistrate, before recording the statement, had not secured the presence of the  duty doctor  who would  always be  available in  the hospital, to  testify the  mental condition  of the deceased

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who had  admittedly suffered  80 per  cent burn injuries. No certificate even  thereafter was  appended by the doctor. It is, therefore,  unlikely that  the deceased would have given such a  lengthy statement  in  the  form  of  answers  to  8 questions  put  to  her  in  that  agony.  The  High  Court, therefore,  was   not   prepared   to   accept   the   dying declarations. If the dying declaration are excluded there is no other  evidence  to  establish  the  culpability  of  the respondent beyond reasonable doubt.      Shri S.K.  Jain contended  that in  all the three dying declarations, the  deceased attributed  major  role  to  her mother-in-law which  was found  by the  Division Bench to be false and  accordingly it  acquitted the  mother-in-law.  In other words,  part of the dying declarations was disbelieved by the  courts.  Consequently,  it  is  difficult  to  place implicit reliance  on the dying declarations of the deceased without any  corroboration from independent evidence. S.M.S. Hospital at  Jaipur is  a big  hospital  where  hundreds  of doctors including  the doctor on medical jurisprudence would always be  available but  none were brought at the time PW.1 recorded the  dying declaration,  Ex.P-8. PW.1 admitted that he did  not read the dying declaration after he had recorded the same. In none of the three dying declarations any motive was  attributed   to  the   respondent.  PW.1   without  any identification of  the deceased had recorded the declaration in  the  hospital  where  several  other  persons  similarly injured were  admitted. There  was no  identification of the deceased when  PW.1 had  recorded the  statement.  The  case sheet of  the deceased  from the  hospital was  not produced either to identify the deceased or to know the nature of the treatment given  before PW.1  recorded the statement Ex.P-8. The deceased  was married  to the respondent about 8-9 years ago and  there was  no previous ill-feelings or estrangement between the  respondent and  the deceased.  The name  of the respondent was  not specifically mentioned in the first part of Ex.P-8, the statement. There is a considerable time lapse as mentioned by the deceased herself of different timings in her successive statements. The hair of the deceased sent for chemical examination did not emit smell of kerosene oil. The clothes belonging  to the deceased seized by the police were not  sent  for  chemical  examination.  These  circumstances clearly indicate  that there  are strong suspicious features to disbelieve  the prosecution case. It being a case of pure appreciation of  evidence and the High Court having had gone into that  question and  recorded the findings, it would not be safe to reverse those findings.      From  the  evidence  on  record,  the  prosecution  has established that  the deceased  died of  80  per  cent  burn injuries on  June 22, 1984 and she sustained the same in the afternoon of  June 21,  1984. The  question, therefore,  is: whether she  died  of  suicide  or  homicide?  There  is  no clinching evidence  regarding the  previous mental condition of the  deceased to  show any tendency to commit suicide. In view of  the finding by the doctor under Ex.P 21, postmortem certificate that  she died  due to shock of 80 per cent burn injuries, if it is proved to have been committed by any one, indisputably it  would be  a murder punishable under Section 302, I.P.C.      The  primary   question,  therefore,  is:  whether  the prosecution has  established the case against the respondent beyond reasonable  doubt? The evidence in this case consists of three  successive  dying  declarations  of  the  deceased Guddi.  She   principally  attributed   the  acts   to   the respondent, her  husband, and abetment by her mother-in-law, Pushpa who  stood acquitted.  The  question,  therefore,  is

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whether  the   dying  declaration  are  reliable  pieces  of evidence? Section  32(1)  of  the  Evidence  Act  brings  an exception to the rule of hearsay evidence when the statement is made  by a  person as  to the cause of his death or as to any of  the circumstances of the transaction which result in the death, in cases in which the cause of the person’s death comes into  question. Therefore,  under Section 32(1) of the Evidence Act,  if the  statement of Guddi as to the cause of her death  is believable as a reliable peace of evidence, it would form  basis  to  convict  the  accused-respondent.  In Khushall Rao  v. The  State of  Bombay [1958  SCR 552], this Court had  held that  it is  not an absolute rule nor even a rule of  prudence that  has ripened  to a  rule of  law that dying declaration  to sustain  the order of conviction, must be corroborated  by other  independent evidence. The rule of corroboration  requires   that  the   dying  declaration  be subjected to  close scrutiny  since the evidence is untested by cross-examination.  The  declaration  must  be  accepted, unless such  declaration can  be shown not to have been made in expectation  of death  or to be otherwise unreliable. Any evidence adduced fore this purpose can only detract from its value but  does not  affect  its  admissibility.  The  dying declaration, therefore,  may be tested as any other piece of evidence. Once  the court  reaches the  conclusion that  the dying declaration  is true,  no  question  of  corroboration arises. The  dying declaration  cannot be placed in the same category as evidence of an accomplice or a confession.      It is  settled law by series of judgments of this Court that the  dying declaration,  if after  careful scrutiny the court is  satisfied that it is true and free from any effort to induce  the deceased  to make a false statement and if it is coherent  and consistent,  is no legal impediment to form such dying  declaration the  basis of  conviction,  even  if there is  no corroboration  vide Tarachand Damu Sutar v. The State of  Maharashtra [(1962)  2 SCR  775]; Kusa  & Ors.  v. State of Orissa [(1980) 2 SCC 207> Meesala Raoji v. State of A.P. C  ) 4  SCC 181];  Goverdhan Raoji  Ghyare  v.State  of Maharshtra [(1993)  Supp. 4  SCC 316]  and Gangotri Singh v. State of U.P. [(1993) Supp. 1 SCC 327.      We have  scanned the  dying declaration recorded by the Magistrates PW.1  under Ex.P-8.  Therein the  first question put was  to ascertain  the time  of  occurrence  the  second question put  was as  to the  place of  occurrence  and  the persons present  and the  third question  was as  to who was responsible  for  causing  the  burns  to  her;  the  fourth question related to the participation of her sisters-in-law; the fifth  question related  to the persons who extinguished the  fire;  the  sixth  question  was  regarding  her  burnt clothes; seventh  question related  to the identification of the persons  who brought her to the hospital; and the eighth question related  to the previous hostility between herself, mother-in-law and her husband, i.e., the motive. The learned Judicial Magistrate put these questions and elicited answers given by her were written in her own language and translated English version is placed on record. These questions are not only germane  but also  absolutely relevant and pertinent to the cause of the occurrence and circumstances leading to the occurrence. The  deceased had  suffered  80  per  cent  burn injuries;  yet   her  answers   are  coherent,   clear   and unequivocal. In his evidence PW.1 has stated that he reached the hospital  at 10.10  p.m., went to the victim Guddi, sent the nurse  to call  the doctor and he waited till 10.50 p.m. for the  doctor to  turn up but no doctor had come. There is nothing  intrinsic  for  the  Magistrate  to  speak  falsity against the  inaction on  the part of the doctor. It is also

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not uncommon that the deceased being a poor lady, no one was there to  care to  attend to  her all  the while.  It is not uncommon  that   in  the  general  hospital  such  a  shabby treatment is  meted out  to the  poor patients.  Under these circumstances, having wasted for 40 minutes and finding that no doctor had turned up, he discharged the duty of recording the statement of the deceased. He did not record verbatim of what she  has stated.  He put questions and answers given by her were recorded in her own language.      A perusal of the answers clearly indicates and inspires us to  believe that  she was conscious and had given cogent, coherent and  direct answers  to the  questions put  by  the Magistrate from  which it  could easily be inferred that she was in  a mentally  fit condition  at that  time to give the statement. Nothing  has been  elicited from  the post mortem conducted by  the doctor  P.W.7 and  no contra  evidence was brought on  record that  the deceased  was not in a mentally fit condition  to give  the statement either prior to PW.1’s going to  the hospital  or thereafter.  As a fact no one had attended on her. She was alone left in the bed. There was no occasion for anybody to induce her to make a false statement against her  husband and  mother-in-law, Admittedly, she had 80 per  cent burn injuries and it is obvious that she was in expectation of  her death  due to  burns. She would not have willingly excluded  the real culprits and implicated falsely the innocent.  As a  fact, she  did not  make any attempt to implicate her  sisters-in-law or  father-in-law though their presence at  the time of occurrence was spoken by her in the declaration. That  would clearly  indicate that  she was not interested to  falsely  implicate  anyone  except  the  real culprits, viz., her husband and mother-in-law. PW.1 obtained her thumb  impression on  Ex.P-8. It  is neither in evidence nor elicited  from PW.7, the doctor or PW 1 that her fingers were burnt  and she  was not  in a position to put her thumb impression. Therefore,  no doubt can be cast on her capacity to give  the statement or on her putting thumb impression on the statement  under Ex.P-8.  The declaration  reflects  the true state  of affairs  at the  time of  occurrence and  her statement is a truthful version and is reliable one.      The tenor  of reasoning  by the  High Court  was solely directed  to  criticize  the  Magistrate,  PW  .1  which  is uncalled for  in the circumstance. Therefore, the High Court was not right in doubting Ex.P-8, dying declaration recorded by a  Judicial Magistrate.  It is  seen that  Ex P-16 is the F.I.R. Which reached the court at the earliest. It contained an elaborate statement given by Guddi, the deceased to PW.6, the S.H.O.  The only variation between Ex.P-8 and Ex.P-16 is as regards  the timing.  It  must  be  remembered  that  the deceased was an innocent illiterate poor lady and was not so much  conscious  of  the  time  factor.  It  would  be  only approximate and  could  not  be  accurately  described.  The difference of  the timings  in this  case is not of material consequence since,  admittedly, she  hall the burn injuries. At what  point of time the injuries were sustained would not be of material consequence. Even the witness PW.4 who turned hostile mentioned the presence of the respondent at the time of occurrence.  Ex.P-19, Section  161 statement  recorded by PW.8, the  investigating officer is very simple and specific It is  not as  elaborate as  the F.I.R. It is PW 8 that sent the requisition  Ex.P-7 to  the Chief Judicial Magistrate to record the  statement of the deceased pursuant to which PW.1 had come  and recorded  the statement  Ex.P-8. One important factor which  cannot be  lost sight  of is  that no  one was present with the deceased at the time of recording Ex.P-8 to tutor her  to give  any  false  statement  or  to  implicate

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falsely anyone.  As a  fact, all  the three declarations are spontaneous. That  would lend reliability to her declaration coupled with  the brutally  frank  statement  given  by  the deceased Guddi  to PW.1 accusing only the respondent and her mother in-law  which inspires  us  to  believe  that  Ex.P-8 contains all  grains of  truth and  is a  reliable statement made by  Guddi, the deceased in expectation of her death due to extensive  80 per cent burn injuries. Therefore, it would by itself  form  basis  for  conviction.  If,  at  all,  any corroboration is  needed, Ex.P-16,  FIR  and  Ex.P-19  would corroborate her evidence.      It is  true as  contended by Shri S.K. Jain that S.M.S. Hospital is a big institute but it is not uncommon that to a poor and  lonely patient like the deceased, the doctor after attending on  her and giving treatment had not turned up, in spite of PW.1’s sending the nurse to bring the doctor. It is equally true that PW.1 admitted that he did not read out the statement again  after  recording  the  declaration  of  the deceased but  the tenor  of the  questions put  and  answers given and  recorded in  her own  language  appears  to  have persuaded PW  .1 to feel that there was no necessity to read once over  the statement to the deceased. It is equally true that the  bad case sheet in the hospital of the deceased was not produced.  The nature  of the  treatment  given  to  the deceased before PW.1 recorded the statement is not available on record  but that  lapse does  not create any doubt on the capacity of  the deceased  or on her mental condition at the time of  giving the  statement. It  is already seen that the statement of  the deceased  is clear, coherent and specific. There is  no inkling  of any  vacillation or  doubt when the deceased had  given answers to the questions put by PW.1. It is seen  that to  question No  .2 though  the  deceased  had mentioned the  presence of the mother-in-law and sisters-in- law of  the deceased,  she did  not mention  the name of the husband the  respondent but  to the  third question  she had clearly put  the nail of blame on the husband and mother-in- law. The  omission to mention his name in question No.2 does not create  any doubt since a major role was attributed only to the  respondent. The  omission to attribute motive to the respondent is  not a  material consequence since it was done at the instigation to his mother.      In the  Meesala Ramakrishnan’s case [supra], this Court had accepted  the dying declaration on the basis of gestures not only  as admissible  but  also  possessing  evidentially value. The  statement was  recorded by  the Magistrate and a certificate of  mental condition  was appended by the doctor who had  stated that  the nods  given by  the deceased  were effective and  meaningful. So  the dying  declaration formed sole basis  for conviction. In Ganpat Mahadeo Mane vs. State of Maharashtra  [(1993) Supp.  2 SCC  242], there were three dying declarations regarding burning by the accused in bride burning case,  viz., one  recorded by the doctors another by police constable  and the  third by the Executive Magistrate and they  were held  sufficient to  prove  the  offence  and result in  conviction. Though  answers were  not elicited by way  of  questions  and  answers  and  the  declaration  was recorded verbatim, the dying declaration were accepted to be truthful and  as such  they formed  basis for conviction. In Govardhan Raoji Ghyare’s case [supra], the minor discrepancy in two  dying declarations by the deceased-bride was held to be not  of material  consequence. Both the declarations were similar in  material particulars.  The  minor  discrepancies were held  to be inconsequential. The two dying declarations were accepted  to  be  admissible  to  form  the  basis  for conviction. In  Jose &  State of  Kerala [(1994) Supp. 3 SCC

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1], the dying declaration recorded by the doctor in the form of  questions  and  answers  was  accepted  by  this  Court. Similarly the  declaration recorded by the police officer in his own words by way of statement under Section 161, Cr.P.C. was  held  to  corroborate  the  other  statement.  It  also corroborated evidence  of direct witnesses. It was held that dying declaration  recorded  by  the  doctor  could  not  be discarded  on   the  ground   that  there   were  two  dying declarations  with  variations.  In  Gansotri  Singh’s  case [supra], the  dying declaration  recorded by  the Magistrate shortly after the occurrence was accepted in spite of bitter enmity between the accused and the deceased. In Kundula Bala Subrahmanyam &  Anr, vs.  State of  Andhra Pradesh [(1993) 2 SCC  684],   the   dying   declaration   relating   to   the circumstances  leading  to  the  death  was  accepted  being consistent with  other evidence. In State of Maharashtra vs. Rajendra Garbad  Patil [(1992)  Supp. 3  SCC 55],  the dying declaration recorded  within an  hour of  the occurrence and made by  the injured  without being influenced by others was held reliable  and conviction could be ordered on that basis alone.      It  is   true  that  Pushpa,  mother  of  the  accused- respondent was  acquitted  by  the  Sessions  Court  of  the offence under  Section 302  read with  Sections 109  and 34, I.P.C. and  the State  did not  file any  appeal against the acquittal. The  acquittal may  be wrong but it does not cast any doubt on the veracity of the statement under Ex.P-8. The law  does   not  make  any  distinction  between  the  dying declaration in  which  one  person  is  named  and  a  dying declaration in  which several persons are named as culprits. The dying  declaration may  well be false when it implicated only one  person while dying declaration implicating several persons may  be true.  If just  one of  the many  persons is mentioned as  culprit by a person claiming to be the witness in the  evidence adduced  before the court, the court has to take care  to scrutinize  the evidence and decide whether he has spoken  falsely or has made a mistake about any of them, Therefore,  when   dying  declaration   mentions  number  of culprits that by itself is not suspect. As stated earlier it requires careful scrutiny of the declaration in the light of the facts  and circumstances  of each case, in particular if the accused  did not  have the  opportunity to cross-examine the declarant.  It is added duty of the court to subject the statement to  careful scrutiny  and if  it is  found  to  be credible and  believable, mere  fact that  number of persons were named  as culprit  but were  not at all charged or were acquitted,  does  not  render  the  declaration  suspect  or untrustworthy.  In   Kuse’s  case   [supra],  in  the  dying declaration, apart  from the  accused, others  also had been named as culprits but no charge-sheet was laid against them. This Court  had held that merely because some other persons, though  named   in   the   dying   declaration,   were   not chargesheeted, would  not by  itself prove  falsity  of  the declaration. It  is, therefore, clear that though co-accused Pushpa was  wrongly acquitted  of the  charge of  murder, it does not  cast any doubt on the veracity of the statement of the deceased  under Ex.P-8 nor can it be suspect to act upon the  self-same   evidence  against   the  respondent.  Every suspicion is  not  a  doubt.  Only  reasonable  doubt  gives benefit to  the accused  and not  the doubt of a vacillating Judge.      It is  equally true that the investigating officer PW.8 committed grave  irregularity in  omitting to send the burnt clothes  and   other  incriminating  material  for  chemical examination to lend corroboration to the evidence. Mere fact

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that the  investigating officer  committed  irregularity  or illegality during  the course of the investigation would not and  does  not  cast  doubt  on  the  prosecution  case  nor trustworthy and  reliable evidence  can  be  cast  aside  to record acquittal on that account. It is seen from the Panchnama recovery  of the  incriminating material  from the scene of  offence that  there was  an attempt  to screen the offence by  destroying the  evidence. Others  were prevented from entering  the room. That by itself indicates an attempt on the part of the accused to destroy the incriminating evidence and  to prevent  others from saving the life of the deceased. Therefore, the absence of smell of kerosene oil on the hair  sent for  chemical examination does not render the dying declaration  of the  deceased  suspect  nor  would  it become unbelievable. The High Court, therefore, has not considered the  evidence in the proper and legal perspective but felt  it doubtful  like Doubting Thomas with vacillating mind to  accept the prosecution case for invalid reasons and wrongly gave to the respondent the benefit of doubt.      The  reasons,  therefore,  are  clearly  erroneous  and unsustainable to a close and careful scrutiny and meticulous examination of  the evidence  and circumstances in the case. The evidence  proves the  prosecution case beyond reasonable doubt that  the respondent  had poured  kerosene oil  on the deceased, lit  the fire with match-stick causing 80 per cent burn injuries  to the  deceased which resulted in her death. Thereby, the offence of murder punishable under Section 302, IPC  has  been  established  beyond  reasonable  doubt.  The Sessions Court,  therefore, rightly  recorded the conviction under  Section   302,  IPC  and  sentenced  him  to  undergo imprisonment for life.      The appeal  is allowed.  The order  of acquittal of the High Court  is set  aside and  that of  the  conviction  and sentence by  the Sessions  Court is restored. The respondent who is  presently consigned  in Central Jail, Jaipur, as per our order  dated February  2, 1996,  should undergo rigorous imprisonment for life.      The appeal is accordingly allowed.