Mehtab S. Gill, J.

1. This appeal has been filed by the Appellant against the judgment dated November 19, 1996 passed by Sessions Judge, Bathinda, whereby he convicted and sentenced the Appellant to undergo rigorous imprisonment for life and to pay a fine of Rs. 2 lacs. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a period of two years for an offence punishable under Section 302 of the Indian Penal Code. However, he was acquitted of the charge under Section 449 of the Indian Penal Code. Co-accused Hamir Singh was acquitted by the trial Court under Sections 302 and 449 of the Indian Penal Code by giving him the benefit of doubt.

2. Story of the prosecution is unfolded by Kirpal Singh (deceased) in his dying declaration, Exhibit PQ. He has stated that he is residing in Mohalla Guru Nanak Pura, Bathinda. He has five children. He is employed as a Home Guard and is posted at Kotwali Bathinda. On December 12, 1995 at 9.30 P.M., he came to his house from Police Station Kotwali Bathinda, after he had finished his work. After putting away his uniform, he went to the kitchen for taking his meals. His wife Mohinder Kaur and daughter Pinki were present in the kitchen. Manjit Singh son of Santa Singh and Hamir Singh, who is the brother- in-law (sisters husband) of Manjit Singh and one more person, who he could not identify, came to his house. They came to the kitchen and sprinkled kerosene oil on him. Hamir Singh set him on fire. He and his wife made a noise. Appellant Manjit Singh along with others, ran away. Sheela Kaur, wife of Manjit Singh, had borrowed a sum of Rs. 72,000/- in cash. On demand of this amount, Appellant quarreled with the deceased. Due to this quarrel, the police had also bound down both the parties under Sections 107/151 of the Code of Criminal Procedure.

3. Prosecution, to prove its case, brought into the witness box Dr. K.S. Brar (PW-1), Dr. Kasturi Lal (PW-2), Gurcharan Singh (PW-3), Mohinder Kaur (PW-4), Pinki (PW-5), Dr. O.P. Aggarwal (PW-6), Sub Inspector Dharam Pal (PW- 7), Shri A.S. Virk, Judicial Magistrate I Class, Bathinda (PW-8), Constable Pawan Kumar (PW-9) and Gian Singh (PW-10).

4. Learned Counsel for the Appellant has assailed the case of the prosecution on several grounds. He has stated that there is an unexplained delay in lodging of the First Information Report. Occurrence had taken place on December 12, 1995 at 9.30 P.M. Kirpal Singh was taken to the Civil Hospital, Bathinda by Karnail Singh, his neighbor. They reached the Civil Hospital at 10.30 P.M. Medico-legal Report, Exhibit PA, was prepared at 11.15 P.M. Ruqa. Exhibit PB was sent to the Station House Officer, Police Station Kotwali, Bathinda on December 12, 1995 at 11.00 P.M. by the doctor. Daily Diary Report, Exhibit PF, was recorded at 00.50 A.M. on December 13, 1995. Investigating Officer, Sub Inspector Dharam Pal moved an application, Exhibit PC, at 1.30 A.M. on December 13, 1995 before the Doctor In charge, Civil Hospital, Bathinda, to record the statement of Kirpal Singh. As he was not fit to make a statement, the doctor refused to grant him permission to record his statement. The Investigating Officer then went to the house of Kirpal Singh at 2.00 A.M., but no one was present there. Dharam Pal, Sub Inspector, came back to the Civil Hospital, Bathinda at 11.10 A.M. on December 13, 1995, where he recorded the statement of Kirpal Singh. First Information Report was registered initially under Sections 307/452/436/34 of the Indian Penal Code. The offence was converted into under Section 302 of the Indian Penal Code, after the death of Kirpal Singh. Learned Counsel has stated that there is a delay of 13.30 hours in registering the First Information Report and delay of 08 hours in sending the special report to the Magistrate. There is a total delay of 20 hours between lodging the First Information Report and the special report reaching the Ilaqa Magistrate. This delay has gone unexplained. The distance between the place of occurrence, hospital and the Police Station Kotwali Bathinda is within a radius of 02 to 03 K Ms. Learned Counsel has further stated that the Investigating Officer has wrongly stated that in the Civil Hospital at Bathinda, neither any eye-witness, nor any such person, who could have shed light on the occurrence, was present.

5. The next contention raised by the counsel for the Appellant is that the occurrence did not take place in the kitchen, but some where outside the house of the deceased. The size of the kitchen is 5 x 5 feet. Meals were being cooked on a gas. It is not believable that three persons came and after pouring kerosene oil on the deceased, he was set on fire, even though his wife and daughter were present in the kitchen. They did not make any attempt to extinguish the fire. When the Investigating Officer reached the kitchen, he did not notice any burning sign on the floor. There was no kerosene smell. No match-box or any other item, was taken into possession, which the Appellant must have used to put the deceased on fire. It is strange that though the wife and daughter of the deceased had witnessed the occurrence, they did not accompany the deceased to the Civil Hospital, Bathinda. He was taken to the Civil Hospital, Bathinda by his neighbor Kamail Singh. Karnail Singh has not been brought into the witness box for the reasons best known to the prosecution.

6. Dying declarations Exhibits PQ and PF, one recorded by Sub Inspector Dharam Pal (PW-7), and the other recorded by Shri A.S. Virk, Judicial Magistrate I Class, Bathinda (PW-8) are contradictory. In the dying declaration, Exhibit PQ, the names of the wife and daughter of the deceased figure, but in Exhibit PF, it is not mentioned, as to who were present in the house at the time of the occurrence.

7. Pronote, Exhibit PH/1, by which the deceased was claiming Rs. 72,000/- from the Appellant, has glaring discrepancies. Pronote is signed by Sheela Kaur, wife of Appellant Manjit Singh, and the receipt is signed by one Harjit Singh. No civil suit was filed for the recovery of this amount, as the complainant-party knew that it was a forged document. Sheela Kaur had signed on a blank pronote.

8. Learned Counsel for the State has stated that there is no delay in lodging the First Information Report. Occurrence had taken place in the night. Police came into action at 00.50 A.M. on December 13, 1995, after receiving ruqa, Exhibit PB. Statement of Kirpal Singh could not be recorded in the night, as the night, as the doctor opined that he was not fit to make a statement. Thereafter, the Investigating Officer went to the house of the deceased at 2.30 A.M. No body was present there. On the next day, i.e., December 13, 1995, the doctor gave him the permission to record his statement. His statement, Exhibit PQ, was recorded. Delay has been adequately explained, as the statement of Kirpal Singh, Exhibit PF, was recorded by Judicial Magistrate I Class, Bathinda at 11.45 A.M. on December 13, 1995. Though the Special Report reached the Ilaqa Magistrate at 7.30 P.M. on December 13, 1995, the version of the complainant was in the hands of the Judicial Magistrate at 11.45 A.M. It has come in evidence that Mohinder Kaur (PW-4) wife of the deceased, did not accompany Kirpal Singh, as she was in a state of shock. It is correct that second time dying declaration, Exhibit PF, recorded by Shri A.S. Virk, Judicial Magistrate I Class, Bathinda (PW-8), does not mention the names of the witnesses present. This dying declaration, Exhibit PF, is in the form of questions and answers. The Magistrate recording the dying declaration, Exhibit PF, did not put any question to. the deceased, as to who were present in his house, at the time when he was attacked.

9. Burning marks could not have been found in the kitchen, as it has come in evidence that water was poured on the deceased to extinguish the flames. The deceased was demanding Rs. 72,000/- back from the Appellant, which the Appellant was refusing to pay. Proceedings under Sections 107/151 of the Code of Criminal Procedure, had been initiated between both the parties. This itself shows that there was tension between the deceased and the Appellant on repayment of the amount of Rs. 72,000/-.

10. We have heard the learned Counsel for the parties and perused the record with their assistance.

11. Dying declaration, Exhibit PQ, recorded by Dharam Pal, Sub Inspector, which is the basis of the First Information Report, mentions the names of Manjit Singh son of Santa Singh, Hamir Singh and another accused, who the deceased could not identify. It has been further stated in this dying declaration that along with the deceased, the other persons present in the kitchen were his wife Mohinder Kaur and daughter Pinki. He had four sons and a daughter. From this statement, one can safely presume that at 9.30 P.M., (Night time), if not all the five children, some must have been present in the house. The second dying declaration, Exhibit PF, recorded by Shri A.S. Virk, Judicial Magistrate I Class, Bathinda, was recorded at 11.45 A.M. on December 13, 1995. Application, Exhibit PF, was moved before the Chief Judicial Magistrate, Bathinda, whereby as per endorsement, Exhibit PF/3, Shri A.S. Virk, PCS, Judicial Magistrate I Class, Bathinda was asked to record the statement of Kirpal Singh. Vide endorsement, Exhibit PF/1, the doctor opined that the patient was fit to make a statement. This statement, Exhibit PF, was put in the form of questions and answers. Answer to question No. 5 was the same, as recorded in the dying declaration, Exhibit PQ, which is reproduced as under:

Q: "How the fire caught your body

A. The previous night at 9.30 P.M. I had come to my house after performing my duty in Police Station, Kotwali Bathinda. Yesterday, there was a sit-in-strike of Markfed employees and we got free from, sit-in-strike at 4.00 P.M. After taking off my uniform, I went into the kitchen for taking meals, when Manjit Singh and two more persons all of sudden poured kerosene oil and the body accompanying Manjit Singh set me on fire. I wailed. They ran away. 1 became unconscious. I dq not know who has brought me to the hospital.

Manjit Singhs name has been mentioned in this dying declaration also. The motive of borrowing of Rs. 72,000/- by the Appellant was also put to the deceased. On being questioned, as to who was accompanying Manjit Singh, he gave the name of Hamir Singh, the brother-in-law of the Appellant. He has stated that he has five children. PW-8 Shri A.S. Virk, Judicial Magistrate I Class, Bathinda (PW-8), while recording his statement, slid not put this question to him, as to who were the other persons of his family present in the house along with him at the time of occurrence. As the dying declaration, Exhibit PF, is in the form of questions and answers, deceased Kirpal Singh was not expected to voluntarily add anything qua the occurrence. There is no discrepancy between the two dying declarations. Exhibits PQ and PF. The name of the Appellant has been given in both the dying declarations. Occurrence had taken place at 9.30 P.M. on December 12, 1995. In the month of December, the days are short and 9.30 P.M., members of the family are generally at home. The deceased has categorically stated in his dying declaration, Exhibit PQ, that his wife Mohinder Kaur and Pinki were present. Mohinder Kaur (PW-4) and Pinki (PW-5) have come into the witness box. They have corroborated the dying declarations. Mohinder Kaur (PW-4) has stated in her testimony that she did not accompany her husband to the hospital, as she was in a state of shock. The contention of the learned Counsel for the Appellant that there are no signs of burning on the floor, where the occurrence had taken place, is devoid of any force. It has come in the statement of Mohinder Kaur (PW-4) that she along with Pinki poured water on Kirpal Singh to put out the flames. This statement is corroborated by medical evidence, as burn injuries on the person of the deceased were 62%. If water was not put on Kirpal Singh, the percentage of burn injuries on his body would have been much more. Investigating Officer, Sub Inspector Dharam Pal (PW-7) visited the place of occurrence on the next day, i.e., December 13, 1995, after a lapse of more than 12 hours of the occurrence.

12. Learned Counsel for the Appellant has tried to shatter the case of the prosecution by arguing that there is an unexplained delay of 20 hours. Occurrence in this case had taken place at 9.30 P.M. on December 12, 1995. Kirpal Singh deceased reached the Civil Hospital, Bathinda at 10.35 P.M. Medico-legal Report, Exhibit PA, was recorded at 11.15 P.M. ruqa, Exhibit PB, was sent at 11.00 P.M. and the Investigating Officer reached the Civil Hospital, Bathinda at 1.30 A.M. on December 13, 1995, but found that no member of the family of the deceased was present there. He wanted to record the statement of Kirpal Singh. He moved an application, Exhibit PC before the doctor. The doctor opined that Kirpal Singh is not fit to make a statement. The Investigating Officer then returned on the next day, i.e., December 13, 1995 at 11.00/11.10 A.M. and recorded the statement, Exhibit PQ, of Kirpal Singh. Special Report, Exhibit PR, reached the Ilaqa Magistrate on December 13, 1995 at 7.30 P.M. Shri A.S. Virk, Judicial Magistrate I Class, Bathinda (PW-8) recorded the statement of Kirpal Singh at 11.45 A.M., after taking opinion from the doctor. While recording the statement of Kirpal Singh,-doctor Kasturi Lal was also present. Version of the deceased was in the safe hands of a Judicial Officer at 11.45 A.M. Adequate explanation has been given by the prosecution qua the statement of Sub Inspector Dharam Pal (PW-7), where he tried to record the statement of Kirpal Singh in the night, but as the doctor did not permit him to do so, he could not go any further. At the time, when he reached the Civil Hospital, Bathinda, no relations of Kirpal Singh were present. Kamail Singh could not have given his statement, as he had not witnessed the occurrence. It is on the next day, i.e. December 13, 1995 that the two dying declarations, Exhibit PQ, and Exhibit PF were recorded at 10.35 A.M. and 11.45 A.M. respectively.

13. The medical evidence gives corroboration to the two dying declarations. Dr. Q.P. Aggarwal (PW-6), who conducted the post-mortem on the dead body of Kirpal Singh on January 6, 1996 at 7.00 P.M., has stated in his testimony that the cause of death was due to secondary shock and septicaemia due to burns. All the burns were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. There were superficial to deep burns on the chest, abdomen, left arm, right upper arm, middle side of both eyes, private parts and the back. Singeing of the scalp was present. Peeling of the skin and burned area was there at many places on the body. He has further stated that he did not observe any smell of combustible material because it would not be possible for the smell to remain after a long gap. Smell of kerosene is not always present in all burning cases on the dead bodies.

14. Dr. K.S. Brar (PW-1), has stated that on December 12, 1995 at 11.15 P.M., he conducted medico-legal examination of Kirpal Singh. He was brought to the Civil Hospital by Kamail Singh son of Dhunna Singh. He found the following injuries on the person of Kirpal Singh:

Superficial to deep burns on the face, chest, abdomen, left arm, right upper arm, including hand, both middle of the thigh and genital area and both hips. Singeing of hair of scalp on the frontal region was present. Remnants of burning clothes, i.e., Banian and Kachha, were present on the body.

Injuries were dangerous to life. Duration of injuries probably was within six hours. All the injuries were burn injuries and could be possible if kerosene oil. had been sprinkled on the deceased.

15. Sheela Kaur wife of Manjit Singh was also admitted in the Civil Hospital at 12.15 A.M. She had a lacerated wound on the upper part of her fore-head. Counsel for the Appellant has stated that the injuries inflicted on Sheela Kaur, wife of the Appellant, were inflicted by the brothers of Mohinder Kaur. Sheela Kaur, in her statement appearing before the Court as DW-1, stated that her husband returned home at 10.00 P.M. She told him that on December 12, 1995 at 9.00 P.M., when she was present in the bed room, Kirpal Singh (deceased) came to her house and attempted to rape her. She pushed him to protect herself. Apart from the statement of Sheela Kaur, there is nothing on record to show that an attempt to rape her was made or that the injuries inflicted on her body were inflicted by the brothers of Mohinder Kaur. In her statement, Exhibit DJ, before the police, she has stated that Mohinder Singh inflicted injuries on her head with a hockey stick. It is strange that, as to on one side, she says that Kirpal Singh came to rape her and in the same testimony, she says that four persons, namely, Joginder, Mohinder, Darshan, Surjit and Rinku, who are the brothers-in-law of Kimal Singh, came to her house and one of them Mohinder Singh inflicted injuries on her. If they did have a grievance against her that she was enticing Kirpal Singh, their brother-in-law, they would have, at the heat of that moment also, inflicted injuries on Kirpal Singh. Dr. K.S. Brar (PW-1) has stated that the possibility of injuries on the person of Sheela Kaur, cannot be ruled out due to fall on a hard surface.

16. As per above discussion, appeal of the Appellant fails and is dismissed.

17. Since we do not find any infirmity in the judgment dated November 19, 1996 passed by Sessions Judge, Bathinda, Criminal revision filed by Mohinder Kaur complainant, wife of deceased Kirpal Singh, against the order of acquittal of co-accused Hamir Singh, is dismissed.