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PETITIONER: TARACHAND DAMU SUTAR

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 04/05/1961

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SUBBARAO, K. HIDAYATULLAH, M. SHAH, J.C. DAYAL, RAGHUBAR

CITATION:  1962 AIR  130            1962 SCR  (2) 775  CITATOR INFO :  F          1980 SC 559  (11)  R          1983 SC 274  (8)  RF         1992 SC 891  (8)

ACT: Appeal-Charge  of  murder-Convietion by Sessions  Judge  for culpable  homicide  not amounting to  murder-High  Court  on appeal convicting for murder and passing sentence of  death- Right  of appeal-Acquittal, Meaning of-Practice  in  appeal- Constitution of India Art. 134 (1) (a),

HEADNOTE: The  appellant was tried for an offence under s. 302  Indian Penal  Code  for  the  murder of  his  wife.   The  evidence consisted mainly of the uncorroborated dying declaration  of the  wife.   The Sessions judge accepted  the  evidence  but convicted  the  appellant under s. 304 Part 1  Indian  Penal Code.   On appeal by the State the High Court convicted  the appellant  of an offence under s. 302 Indian Penal Code  and sentenced him to death.  The appellant contended that he had a  right of appeal to the Supreme Court under Art.  134  (1) (a) of the Constitution and that his conviction was bad. Held,  that  the  appellant had a right  of  appeal  to  the Supreme  Court under Art. 134 (1) (a) of  the  Constitution. The  conviction of the appellant under S. 304 Part 1 of  the Indian  Penal  Code  by the Sessions judge  amounted  to  an acquittal of the offence under s. 302 and the High Court had reversed this order of acquittal and sentenced the appellant to death.  The word "acquittal" in Art. 134 (1) (a) did  not mean that the trial must have ended in a complete  acquittal of  the  charge, but acquittal of the  offence  charged  and conviction  for  a minor offence was included  in  the  word "acquittal". Kishan Singh v. The King Emperor, (1928) L. R. 55, I.A.  390 relied on. Per  Kapur,  Subba  Rao and Shah,  JJ.   The  appellant  was rightly  convicted and sentenced by the High Court.  it  was legal  to  found a conviction on  the  uncorroborated  dying declaration.  The dying declarations had been accepted  both

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by  the Sessions judge and by the High Court and  there  was nothing  in the evidence on the record which detracted  from the findings of-those courts in regard to the correctness or the propriety of this dying declaration. 776 Khushal  Rao  v.  The State of Bombay,  (1958)  S.C.R.  552, referred to. Per Hidayatullah and Dayal, JJ.  In an appeal under Art. 134 (1)  (a)  of’ the Constitution the  Supreme  Court  assessed afresh  the  evidence  on  record and  did  not  follow  the practice  in  appeals by special Leave under Art.  136  that concurrent findings of the Courts below could be  interfered with.  only  when  special circumstances  existed.   In  the circumstances of the present case it was not safe to rely on the  dying declaration and the appellant was entitled to  be acquitted.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 341  of 1960. Appeal  by special leave from the judgment and  order  dated July 20, 1960, of the Bombay High Court in Criminal  Appeals Nos. 488, 426 of 1960 with Review Application.  Nos. 555 and 641 of 1960. G. C. Mathur, for the appellant. B.R.L. Iyengar and D. Gupta, for the respondent. 1961.  May 4. The Judgment of Kapur, Subba Rao and Shah, JJ. was delivered by Kapur, J., and the judgment of Hidayatullah and Dayal JJ., was delivered by Dayal, J. KAPUR,  J. This is an appeal against the judgment and  order of  the High Court of Bombay imposing the sentence of  death in  appeal  by  the State against the order  passed  by  the Sessions Judge, Dhulia.  The facts of the appeal are these: The appellant, in about 1950, married Sindhubai the daughter of Chandrabhagabai.  Sindhubai who is the deceased had  read up  to the 7th Standard.  The appellant and  Sindhubai  were residing in a one room tenement in a house belonging to  one Tavar pleader in which there ’are in all 12 to 15 tenements. The tenement of the appellant was not very far from’ that of the  appellant’s cousin Shantabai who was residing with  her husband Pandu Genda and the house of                             777 Cliandrabhagabai  was about a furlong away from that of  the appellant.   The  relations between the  appellant  and  the deceased were normal for sometime but about two years before the  occurrence  differences  had  arisen  and  there   were frequent quarrels between them.  A child of the marriage was born about 1-1/2 years before the occurrence.  The  deceased was  a frequent visitor to her mother’s house to  which  the appellant took objection.  The appellant bad stopped  giving her the necessities of life including foodgrains etc.  About a week before Diwali the appellant gave her a beating.   The deceased  used  to have her meals with her  mother  and  the appellant with his cousin Shantabai and the daughter of  the marriage  Urmila  stayed  with the mother  of  the  deceased during the day time.  The occurrence was on the Bhaubij  day i.e.  November  2,  1959  between  1.30  and  3.30  in   the afternoon.  After having her meals at her mother’s house the deceased  returned to her husband’s house and went to  sleep in the afternoon.  It is stated that while she was  sleeping the  appellant  gave  her a  beating  and  after  sprinkling Kerosene oil on her clothes, set fire to them.  The deceased with her clothes burning went in the direction of the  house

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of  Shantabai  but fell down in front of it and  was  almost naked when some body covered her body with a dhoti. Chandrabhagabai received information, it is stated, from her nice  Suman about this fact and Chandrabhagabai ran  to  the spot,  and found her body burnt.  The cousin, Shantabai  and her  husband  Pandu  Genda also arrived and  on  enquiry  by Chandrabhagabai  the deceased told her that her husband  had set  fire  to her clothes after sprinkling kerosene  oil  on her.   By this time a police constable informed  the  Police Station  which was nearby and an ambulance car was sent  and the  deceased  was taken to the Civil  Hospital,  Dhulia  at about 4-15 P.m. She was examined by Dr. Javeri who 778 treated  her and on his enquiry the deceased told  him  that her  husband  had set fire to her clothes  after  sprinkling kerosene  oil on her clothes.  Dr. Javeri then informed  the police and advised that a dying declaration be recorded.  At about  5-30  P.m.  a  Magistrate  Mr.  Mhatre  recorded  the statement of the deceased but she died at 8-15 P. M. on  the same day in the hospital. The  defence of the appellant was that of alibi, in that  he was  at work on the house of Mulchand Rajmal at Nehru  Nagar which  was being built and that he was entirely innocent  of the  offence.   The  trial  court  found  that  it  was  the appellant  who had set fire to the clothes of  the  deceased after  sprinkling kerosene oil; that the appellant  had  the intention  of causing such bodily injury to the deceased  as was  likely  to cause death and it therefore  convicted  the appellant  of an offence under s. 304 Part 1  and  sentenced him to three years’ rigorous imprisonment and a fine of  Rs. 100/-.   The  learned judge accepted the  testimony  of  the mother Chandrabhagabai as to the dying declaration and  also that  of  Dr.  Javeri  and finally  he  accepted  the  dying declaration recorded by the Magistrate which was in the form of questions and answers.  In all her dying declarations the deceased  had accused the appellant of setting fire  to  her clothes and thus causing her severe bums. The  State took an appeal to the High Court which  convicted the appellant of an offence under s. 302, Indian Penal  Code and sentenced him to death.  Against that judgment and order the  appellant  applied for certificate to  appeal  to  this Court under Art. 134 (1) (a) but the certificate was refused and  this  Court gave special leave under Art.  136  of  the Constitution. The first question for decision is whether the appellant had a right of appeal to this Court under Art.  134 (1) (a)  and the decision of that must depend 779 upon the construction to be put on the language used in that Article the relevant portion of which is as follows:               134  (1) ""An appeal shall lie to the  Supreme               Court  from  any  judgment,  final  order   or               sentence  in a criminal proceeding of  a  High               Court  in the territory of India if  the  High               Court.-               (a)   has  on  appeal  reversed  an  order  of               acquittal  of an accused person and  sentenced               him to death." If  the  High  Court reverses an order of  acquittal  of  an accused  person and sentences him to death an  appeal  shall lie  as  of  right to this Court  under  the  Article.   The argument  raised on behalf of the appellant was that as  the appellant  was  acquitted of the offence of s. 302  and  was convicted under s. 304 Part 1 it was a case of reversing  an order of acquittal.  The argument on behalf of the State was

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that  the  word  acquittal meant  complete  acquittal.   The decision  of this must depend upon the construction  of  the word  "acquittal".  If a person is acquitted of the  offence charged  and  is convicted of a lesser offence,  as  in  the present  case, can it be said that he was acquitted and  the High  Court had on appeal reversed the order of  acquittal." In our opinion the word "acquittal ? does not mean that  the trial must have ended in a complete acquittal of the  charge but  acquittal of the offence charged and conviction  for  a minor offence (than that for which the accused was tried) is included  in  the  word ",’acquittal".  This  view  has  the support of a judgment of the judicial Committee of the Privy Council-  in Kishan Singh v. The King Bmperor (1).  In  that case an accused person was tried by the Sessions Judge under s.  302 of the Indian Penal Code on a charge of  murder  but was  convicted  under  s.  304  for  culpable  homicide  not amounting to murder, the Court having power to do that under s. 238 (2) of the Criminal Procedure Code.  He was sentenced to (1)  (1928) L.R. 55 I.A. 390. 780 five  years’  rigorous imprisonment.  No  acquittal  of  the charge  under s. 302 was recorded.  There was no  appeal  to the High Court by the then local Government but, it  applied for revision under s. 439 on the grounds that the  appellant should  have been convicted of murder and the  sentence  was inadequate.   The  High  Court convicted  the  appellant  of murder  and sentenced him to death.  On appeal to the  Privy Council it was held that the finding of the trial court  was to  be regarded as an acquittal on the charge of murder  and that  under  s.  439 (4) Criminal Procedure  Code  the  word "acquittal"  did not mean complete acquittal.  At  page  397 Sir Lancelot Sanderson observed:               "Their   Lordships,  however,  do   think   it               necessary to shy that if the learned Judges of               the High Court of Madras intended to hold that               the  prohibition  in s. 439 sub-s.  4  refers’               only to a case where the trial has ended in  a               complete  acquittal of the accused in  respect               of  all charges or offences, and not  to  case               such  as  the present, where the  accused  has               been  acquitted of the charge of  murder,  but               convicted  of  the minor offence  of  culpable               homicide  not  amounting  to  murder,’   their               Lordships  are unable to agree with that  part               of their decision.  The words of the  sub-sec-               tion are clear and there can be no doubt as to               their meaning.  There is no justification  for               the qualification which the learned Judges  in               the cited case attached. to the sub-section." We  are in respectful agreement with the interpretation  put on  the-word  "acquittal" by the Judicial Committee  of  the Privy  Council and the word "acquittal" therefore  does  not mean that the trial must have ended in a complete  acquittal but  would also include the case where an accused  has  been acquitted of the charge of murder and has been convicted  of a lesser offence.  In that view of the matter the  appellant was entitled, to a  certificate 781 under Art. 134 (1) (a) as a matter of right and this  appeal must  be  treated as if it is under that  provision  of  the Constitution. The  facts  of  this appeal have been  set  out  above.   In support  of  the  prosecution the evidence  mainly,  if  not solely, consists of the dying declarations.  The first dying

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declaration  was made to the mother Chandrabhagabai as  soon as  she came to the place where the deceased was- lying  and in answer to her question "as to who had done it," the reply was that "it was done by her husband., also that the husband had  set  fire  to her clothes."  In  cross-examination  she stated that at the time when this statement was made by  the deceased Shantabai and her husband Pandu Gonda were present. A  suggestion was made to her that the  deceased  implicated the  appellant  at the instance of Chandrabhagabai  but  she repudiated this suggestion and both the trial court and the. High  Court  have  accepted the correctness  of  this  dying declaration and also that it was not prompted by the  mother Cbandrabhagabai.   Beyond  a mere suggestion in  the  cross- examination  there is no material to support the  contention of prompting by the mother. A  similar statement accusing the appellant of setting  fire to her was made by the deceased to the Doctor (Dr.   Javeri) who  asked the deceased as to how she got the burns and  her reply was that her husband had sprinkled kerosene oil on her and  bad  applied  a  match  stick  to  her  clothes.   This statement was also accepted by the High Court and we find no reason  to  differ from that conclusion.   The  third  dying declaration was made in the presence of and was recorded  by Mr. Mhatre, a Magistrate at about 5-30 P.M. in the  presence of  Dr. Javeri who certified that the deceased was in a  fit state  of mind to make the statement.  The Magistrate  asked her  certain  questions which are set out in detail  and  he took down the answers and his evidence is that the  deceased understood the questions and replied to them.  He 782 made  a record of the questions and answers but that  record was  not signed by her nor her thumb impression taken on  it because  her hands were badly burnt.  This examination  took about an hour.  This dying declaration was held by the trial Court  to have been made without the help or  prompting  ’of anybody and according to Chandrabhagabai she was not present at  the time.  The learned Trial Judge held that  the  dying declaration  was  "freely  given without  the  influence  of anybody.   It was not made under influence of  any  personal feelings."  The High Court Also accepted the correctness  of this  dying  declaration  and there is no  evidence  on  the record  which would in any way detract from the  finding  of the  trial  Court  or of the High Court,.in  regard  to  the correctness or the propriety of this dying declaration. The  argument  raised before us was two fold: (1)  that  the appellant was not present at the place of occurrence at  all and (2) that it was a case of suicide.  There are no  cogent grounds  which  would  lead  to  the,  conclusion  that  the deceased wanted to commit suicide nor have any circumstances been  shower to us which would lead to any such  conclusion. Even  though it may be true that the relations  between  the husband  and  the wife, were strained so much  so  that  the husband had almost refused to maintain the deceased and  was not  prepared to give her even food there is  no  indication that the deceased was so worked up as to have lost her self- control   so   as   to  commit   suicide.    Certain   other circumstances  as to the absence of any kerosene oil on  the clothes  of the appellant or the absence of kerosene oil  on the  bedding have been pointed out but in the  circumstances of  this  case those circumstances are of  no  significance. Both the trial court and the High Court have found that  the deceased had died as a result, of burns ’caused by the  fire set  to  her  clothes by the  appellant  who  had  sprinkled kerosene oil on her,                             783

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This  is  supported by the dying  declarations  against  the correctness  of which no cogent reasons have been  given  or suggested  and a conviction based on such evidence has  been held  to be sustainable by this Court in khushal Rao v.  The State of Bombay (2). The plea of alibi was sought to be supported by the evidence of  Gangaram  Sitaram a co-worker of the appellant  but  his testimony was rejected by both the trial Court and the  High Court and having gone through it we find no reason to differ from that opinion. In the result this appeal fails and is dismissed. RAGHUBAR DAYAL, J.  We agree that the appellant had a  right of  appeal under Art. 134 (1) (a) of the  Constitution,  but regret  our  inability  to  agree with  the  view  that  the conviction  of  the  appellant under s.302,  I.  P.  C.,  be maintained. In  appeals  preferred  under  Art.  134  (1)  (a)  of   the Constitution-,  we  are to assess afresh the  value  of  the evidence  of record, and do not follow the practice of  this Court  in appeals, by special leave, under Art. 136  of  the Constitution,  that  the concurrent findings of  the  Courts below be not interfered with, ordinarily, but be  interfered with only when special circumstances exist. We  are of opinion that it is not safe in this case to  base the  conviction  of  the  appellant  solely  on  the   dying declarations  made  by the deceased, even though  in  law  a conviction can lawfully be based on dying declaration  alone if  the Court feels fully satisfied about its giving a  true version of the incident. The first dying  declaration was made to her mother, by  the deceased.   It  was  certainly natural  for  the  mother  to question  her  daughter as to how she got burnt.   But  that does not really mean that (2)  (1958) S. C. R. 552. 784 the  daughter  did state all what the mother  deposes.   Two points arise there, and they are : (a) Did the mother  speak the truth ? and (b) Did the daughter ,speak the truth ?  The mother, P.W. 1, admittedly, has not good relations with  her son-in-law.   She made discrepant statements.  The  Sessions Judge  has remarked, in paragraph 12 of his  judgment,  that there  were lot of discrepancies in the statements  of  this witness.  Reference may be made to her stating at one  place that  when she used to request the accused not to  beat  the daughter, the result was adverse and denying the correctness of  this  statement when  questioned  in  cross-examination. According to her, only she was sent away from the room  when the  Magistrate  recorded  the  dying  declaration  of   the deceased  in the hospitals indicating that the  accused  and some others continued to remain in the room.  This statement is  not borne out by Dr. Javeri or by the  Magistrate.   She expressed  ignorance about the deceased making a  statement. to  the  police.  The Sub-Inspector and Dr.  Javeri  deposed about her making such a statement.  She could not have  been ignorant about it. She  deposes  that  the  accused  came  to  the  spot  where Sindhubai,  the  deceased, lay injured, about  five  minutes after  her  arrival,  She  knew that  he  had  set  fire  to Sindhubai’s clothes after pouring kerosene oil on her.   She did  not question him about it.  She did not reprimand  him. She  did not abuse him.  She did nothing which  could  have, been normally expected of a mother knowing that the, accused bad burnt her daughter The explanation that she was  sorrow- strike, lacks the ring of truth.  Grief striken she must be, but that would not have made her mute.

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According to her Sindbubai made this  dying declaration when Shantabai,  cousin  of the accused, and  her  husband  Pandu Genda were present.  These witnesses have not been  examined by the prosecution to corroborate her statement.                             785 The  other dying declaration relied on by the  Courts  below was  made  by the deceased to Dr. Javeri,  on  his  casually questioning the deceased as to how she got injured.  It  may be  natural, but we have our doubts, for the Doctor  to  put such  questions to the patient in agony, which had  no  real connection  with  his  duties as a  medical  man,  and  such questioning cannot be said to have any comforting effect  on the  patient.   Such  questioning can be  nothing  but  idle curiosity which a Doctor in that position should not evince. Any way, it would not be a good precedent to rely on such  a statement  to  the Doctor in such  circumstances,  when  the Doctor makes no record about it, even if it be not  required to be noted in the medico-legal register.  We would consider it  safe not to rely upon such a statement made to a  casual question  by the Doctor, the details of which statement  are not clear. The  dying declaration made to the police has been  ignored, the Sessions Judge considering that it was not made at  all, or  not made at the time the Sub-Inspector deposed  to  have got   the   dying  declaration  from   the   deceased.    No significance attaches to this dying declaration in any  case when  it was recorded after the deceased had made  a  formal dying declaration to the Magistrate. The  dying declaration to the Magistrate has certainly  been recorded  with care.  The relevant statements made  in  this dying declaration are the following               "I  am  suffering  injuries  of  burning.   My               husband is my enemy.  My husband has burnt me.               Kerosene  was poured over my body and a  match               stick  was  lighted.  I was  sleeping  in  the               house.  He, i.e., my husband, beat me and then               burnt me.  I shouted, but nobody came.  He was               ill treating me.  He was harassing me and  was               causing me starvation for               786               the last 8 days.  I had complained about it to               Pandu Genda and Shanta Pandu.  I did not  send               any  information  to  my  parents  about   the               starvation. The High Court has stated several times in its judgment that Sindhubai  was  sleeping when the accused set  fire  to  her clothes.   The panchnama Exhibit No. 14. prepared about  the room,  does not show that the bedding had any oil  sprinkled over  it  or  that it got burnt.  Quite a  number  of  other clothes  were  burnt,  which  need  not  have  caught  fire. Absence  of  oil on the bedding is not consistent  with  her statement that she was sleeping in the house when the  thing happened.   This statement is also not consistent  with  the next  statement  made by her that her husband beat  her  and then  burnt  her.   Her statement that nobody  came  on  her shouts because the door of the house was shut, does not  fit in  with her statement to the police in Exhibit 19 that  the accused  ran  away on his work after he had set  fire.   The probability  too is that if the accused had set fire to  her clothes  he  would run away just after setting  fire  as  he could expect that the victim would shout and that her shouts would  attract neighbours and persons passing by.   Even  if the  door  was  latched  for some  time  while  the  accused remained there because he did go subsequently, that does not explain the non-arrival of any person.

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The  persons could have come and could have knocked  at  the door.   It  is  really remarkable that in this  case  not  a single  witness  of  the neighbourbood has  come  to  depose anything  in support of the prosecution case.  There  is  no evidence  at all from an outside source.  The  investigation seemed to have revealed nothing whatever., There is  nothing inthe case to lend assurance to any circumstance. Surely, this cannot be the result of the accused’sinfluence    on the witnesses or the result of a general inclination not  to speak the truth in the interests of justice, even when the                             787 accused  committed the dastardly act of setting fire to  his own wife.  Their absence from the witness box may be due  to their  not standing what they knew to be untrue or  did  not consider to be true. It is always a difficult question to speculate why  deceased accused  a certain person of committing the crime, or why  a witness  deposes  against  a  person with  whom  he  has  no ostensible  cause  of  enmity  or why  the  police.  in  the discharge  of  its public duty should influence  persons  to make   inaccurate  statements,  when  Courts  come  to   the conclusion  that  the accusation or the  evidence  does  not appear to be true and that there are reasons to suppose that the.  police  had  influenced the  testimony  of  witnesses. Anyway, the same difficulty occurs in the present case.  But it  is  clear that the relations between the  wife  and  the husband  were strained to such an extent that, according  to the prosecution, the accused not only starved her, but  also set  fire  to her clothes with the intention  to  cause  her death.   Such a conduct of the husband cannot be on  account of ordinary domestic unpleasantness, but must be the  result of  a very acute feeling of desperation and a desire not  to live  any  more with his wife.  If such were  the  relations which  one  is inclined to infer from what  the  prosecution wants  the Court to believe, it should not be  difficult  to imagine  that  the wife’s motives in  charging  the  husband falsely  may be equally strong.  She too must have been  fed up  with  the misery of her life and  might  have  committed suicide  and  put  an end to her life, but  when,  as  often happens,  she  was questioned, she accused  her  husband  of setting fire to her clothes, not with a view to save herself from  a  conviction for attempting to  commit  suicide,  but either  on  account  of her feeling  that  her  husband  was responsible  for  all her troubles and  that  her  disparate action was also due to the same cause or out of malice.  Any way,  a  dying  declaration is not  to  be  believed  merely because no possible reason 788 can- be given for accusing the accused falsely. It, can only be believed if there are no grounds for doubting it at all. Apart from the above considerations indicating that implicit reliance   cannot be placed on the dying declaration,  there are  other  circumstances  which  add  to  the  feeling   of uncertainty  about the truth of the accusation made  in  the dying  declaration.  The panchnama of the room shows that  a few  shirts  and old trousers and pieces of two  sarees  lay near  the southern wall of the room in a wet and half  burnt condition  There is no explanation why such  clothes  should have been burnt.  There was no point in the accused  pouring kerosene oil on these clothes even if they just lay  huddled near  the  wall.   If Sindhubai fell on  the  clothes  lying there,  that  may burn some of them, but  will  not  explain their getting wet.  There is no suggestion that anybody  had poured water over the ’burnt clothes in order to  extinguish the  fire,  because  none  came  there  at  all.   In  fact,

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Ranganath  Sitaram, P.W. 6, one of the Panchs,  states  that the  burnt clothes were also giving smell of rock oil.   The panchnama further notes :               "On the eastern wall, two feet height from the               ground there is a black spot caused due to the               burning of the clothes and the same is  recent               one." There is no explanation why such a mark should be there. Sindhubai  could not have stood opposite the wall and,  even if  she did, there should have been marks of  burning  along the length of her body beside the wall and not at a  certain spot  only.  These two observations can be  consistent  only with  somebody deliberately setting fire to the clothes  and keeping some burning clothes beside the wall- for a,  little time, The appellant, or whoever                             789 set  fire  to her clothes, would not have done  this  as  he would have made a very quick exit after drenching  Sindhubai with   kerosene  oil  and  setting  fire  to  her   clothes. Sindhubai does not make any statement about such a conductor the  accused in her dying declaration.  The  only  inference then  possible  is  that  she  herself  (lid  all  this,  in accordance with her own inclinations.  Why she did this, one cannot say. Sindhubai  returned  to her house with  her  daughter  after taking her mid-day meal at her mother’s house and sent  back the daughter with Usha.  This is according to the  statement of  her mother.  She brought the child, when,  according  to her mother’s statement, she expected her husband to come  to the house after taking his meal at his cousin’s place.   The conduct is unusual, as, ordinarily, the child used to remain with  her maternal grand-mother during the day time, as  for some reason the accused probably felt aversion to her.   The conduct  can  ’be consistent with her  intention  to  commit suicide.  She brought the child to her place to fondle  with her for the last time and then sent her back to her mother. Sindhubai’s  running  towards the house  of  Shantabai,  her husband’s  cousin,  and  not running  towards  her  mother’s place, also appears to be unnatural.  It may be that in such troubles moments one need not be absolutely logical, but  it is  expected  to  be instinctive that when  in  trouble  one thinks   of   one’s  relations  who  are  expected   to   be sympathetic,  and  helpful, on the occasion.  It is  in  the statement  of  her  mother that the route to  her  house  is different  from the passage to the house of  Shantabai.   It may be that the accused did not go to the house as expected, and went away to his job from his cousin’s place.  It was  a day  of  festival.  Sindhubai might have felt  this  conduct badly set fire to her clothes, and then run towards 790 Shantabai’s house where she might have expected her  husband to be present. The time of the incident though said to be between 1-30  and 3-30 P.m., appears to have been near about 3 O’ clock.   The mother states to have got information about that time.  Tile police got information at about 3-45 P.m., and the ambulance took Sindhubai to the hospital at 4-15 P.M. The accused  was not expected to be at his house at 3 P.m. The learned Judges of the High Court did not believe the defence evidence about the  accused  working at the house of Mulchand  Rajmal  from about  2  P.m. and to have gone to his  house  on  receiving information  from one Daga because Daga was.  not  examined, the  Munim  of  the house-owner was  not  examined  and  the register  of workers was  not produced.  It is  however  the case for the prosecution that the accused used to go to work

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at 7 A.M., to return at 12 O’clock and again go for work  at 2  P.m., and then return at 6 P.m. Chandrabhaga, the  mother of  the  deceased, deposes so.  There is therefore  no  good reason ’to think that the accused did not go to his duty  at 2 P.M., that day as deposed to by D.W. I. Sindhubai herself stated in her statement to the police that the  accused,  after setting her on fire, ran  away  to  his work.   If the time of the incident be calculated  from  the time  the  police was informed, i. e., from 3-45  P.m.,  the incident would have taken place some time between 3 and 3-30 P.m.,  and the accused would not have been at his  house  at that  time.  In fact, it appears to us that it is  to  avoid this  difficulty that at Rome stage an attempt was  made  to time the incident at about 1-30 P.m. The incident could  not have   taken  place  before  2  P.m.,  as,  in  that   case, information  to the police would be very belated and in  the normal  course of events, it is not expected that  Sindhubai would have tarried in the room for long or that the  persons who must                             791 have  collected after her running towards Shantabai’s  place and falling down there, Would not have taken steps to inform the police without any undue delay. The mother’s statement that Sindhubai used to tell her  that if   the  ill-treatment  continued,  she  would  sever   her connection  with the accused and would earn her  own  living would support the view that she had really got tried of  her living  with the accused and that this could  have  prompted her to attempt suicide. If  Sindhubai was not actually asleep when the kerosene  oil was  poured  on her, it does not stand to  reason  that  she would  not  have  made  any attempt  to  run  away  and  the possibility of the accused successfully setting fire to  her clothes in the course of the struggle, would be remote,  and even  if  he succeeded, it is a moot point  whether  he  too would not have been singed, if not burnt. Those  are  the various considerations which  make  us  feel doubtful  about the truth of the dying declaration and  take the view that the appellant’s conviction on the basis of the dying declaration should not be maintained. It  appears from the High Court judgment that the  case  put before it was "sometime after 1.30 P.m., the accused latched the  room  from inside and while Sindhubai was  sleeping  he poured a large quantity of kerosene oil on her person.   Her clothes  became  wet with that kerosene oil and  before  she could  struggle  and get up he searched for a  match  stick, lighted  it and set Sindhu’s clothes on fire’.  Such a  case could not be made out from the dying declaration recorded by the  Magistrate.   Sindhubai  had  said  at  first  she  was sleeping  when it happened, but, in answer to the very  next question, she said that her husband beat her and then  burnt her.  If the burning followed the beating, there could be no question of throwing kerosene oil on 792 her  while asleep.  No reason for this conduct  was  stated. The, Magistrate who cleared the doubt  full points failed to elicit why this deed was perpetrated. Further,  the searching for a match box is  very  improbable thing.  If the accused had decided to set fire to his  wife, he  would have got, a match box handy and if he  did  forget about  it  and  had  to  search  for  it,  that  would  give sufficient time to Sindhubai to make good her escape. The  aversion of Sindhubai to tell the name of  her  husband could not have been on account of any tender feeling for her husband,  but was the natural act of a Hindu  married  woman

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not  to tell her husband’s name.  This aversion to tell  the name  of  her husband is no guarantee of the  truth  of  her subsequent statement accusing her husband of the crime. We   do  not  find  any  justification  for  the   following observation of the High Court, when considering the  defence evidence :               "The accused has led evidence and his case  is               that he was not responsible for this murder at               all.  But in fact he was in the house when the               incident took place." The High Court had made the latter statement as a  statement of  fact,  though there was no evidence to support  it.   Of course, on the basis of a dying declaration, the High  Court had  already  held before discussing the  defence  evidence, that the accused was responsible for the murder of his wife. If  the defence evidence is to be adjudged on the  basis  of the final finding of the Court, there is no use for  defence evidence.   It  has to be taken  into  consideration  before arriving at a final finding. The  conduct  of  the  accused in  travelling  in  the  same ambulance car and in remaining in the                             793 hospital  is in-his favour and is against  the  prosecution. The  accused  stated  in his examination that  he  paid  the charges for the ambulance car. We  would like to remark that the learned Judges  who  heard the appeal should not have heard it when they, at the,  time of  admitting it, felt so strongly about the  accused  being wrongly acquitted ’of the offence of murder that they  asked the  Government Pleader to look into the papers to find  out whether  it  was a case where the Government would  like  to file  an appeal against the acquittal, under s. 302,  I.P.C. Government did file an appeal against that acquittal.  We do not know whether it was at the suggestion of the  Government Pleader or not.  But, in these circumstances, it would  have beep  better exercise of discretion if this  appeal  against the acquittal had not been heard by the same Bench which, in a  way, suggested the filing of the Government  appeal.   In fact,  to  make  such  a  suggestion,  appears  to  be  very abnormal. We  are therefore of opinion that it is  not  satisfactorily proved  that the appellant committed the murder of his  wife by setting fire to her clothes.  We would therefore  allow-- the  appeal.,  set aside the order of the  Court  below  and acquit the appellant of this offence. By  COURT.  In accordance with the opinion of the  majority, this appeal fails and is dismissed. 794