Gujarat High Court
Bachubhai Valjibhai vs State Of Gujarat on 8 October, 1999
Equivalent citations: (2001)2GLR1504
Author: R.R. Tripathi
Bench: R.R. Tripathi
JUDGMENT M.R. Calla, J.
1. This Criminal Appeal under Section 374 of the Cr.P.C.
is directed against the order of conviction and sentence passed against the appellant in Sessions Case No. 89 of 1988 on 12-3-1990 whereby the appellant herein, namely, Bachubhai Valjibhai was convicted under Section 302 of the I.P.C. and sentenced to life imprisonment by the Addl. Sessions Judge, Surendranagar.
2. The case of the prosecution is that the present-appellant Bachubhai Valjibhai married one Baluben about 10 years prior to the date of the incident i.e. 5-8-1988. No child was born out of this wedlock and while the couple was residing at village Ratanpar, Taluka Wadhwan, District Surendranagar on 5-8-1988 at about 10.30 P.M. to 11.00 P.M. when the appellant's mother and sister namely Ratanben and Paluben were not in the house and had gone to the appellant's other sister's house, and while the appellant's wife Baluben was asleep, the appellant poured kerosene upon her and set her ablaze and ran away. When Baluben raised an alarm Arvind Valjibhai i.e. brother of the appellant and some other persons reached the spot. Having noticed that Baluben was under fire, he was able to push his hand inside the room through the space between the two doors and opened the bolt and noticed that Baluben was under fire and crying and was rubbing her body with the mattress. Said Arvind Valjibhai and one Pravin took Baluben to the Government Hospital in the burnt condition. Dr. Parmar was on duty in the said Government Hospital. At that time Baluben was fully conscious and was able to speak, Dr. Parmar recorded the declaration of Baluben wherein she disclosed that about half an hour back her husband Bachubhai Valjibhai had poured kerosene over her and burnt her. At that time her clothes were giving smell of kerosene and only little portion of the cloth was left on her body as rest of the clothes had already burnt. Except the skin of the head and the bottom of her feet, the entire body had been burnt and thus she had suffered the burn upto 98%, but the burn injuries were not deep. She was admitted as an indoor patient in the Government Hospital of Surendranager and the Doctor informed the Police Station, Joravarnagar.
Dt : 11-10-1999
3. Dr. Parmar recorded the declaration of Baluben as above and obtained her thumb impression thereon at 11.55 P. M. Dr. Parmar also put his signatures. This declaration Exh. 10 is also signed by Dr. G. P. Kotecha. This dying declaration Exh. 10, which is the first dying declaration in the point of time, shows that deceased Baluben had stated in clear terms that while she was asleep her husband Bachubhai Valjibhai poured kerosene over her and set her to fire. She has also stated that this had happened an hour before, that she was literate but was not able to sign (because of burns), and therefore, she was putting her thumb impression and the thumb impression of her right hand, as was put on this declaration, has been attested by Dr. Parmar and Dr. Kotecha as the Medical Officers of Mahatma Gandhi Government Hospital, Surendranagar. The deceased has also stated therein at the very beginning that she was making this declaration with full consciousness. The police reached the Hospital thereafter at about 12 O'clock ('0' hours) and the police persons were taken to the deceased by Dr. Parmar. The Head Constable of Joravarnagar Police Station also recorded the declaration of deceased Baluben in presence of Dr. Parmar vide Exh. 37, which bears the date of 6-8-1988. In this declaration she has stated that she was married about 10 years back and prior to last three months, she was living at her father's house out of annoyance and while being at Ahmedabad, she used to go on labour work with her father wherefrom she was brought at Ratanpar. She has also stated that on the date of the incident her father-in-law and mother-in-law had gone to her sister-in-law Ratan's house and she was sleeping in the house. Between 10.30 and 11.00 P.M. her husband Bachubhai Valjibhai poured kerosene on her and set her to fire by throwing a matchstick. She has stated that at that time there was no one else in the room (orda) where she was sleeping except her husband, that her mother-in-law Paluben and sister-in-law Ratan used to torture her off and on, they used to abuse her and were also not giving food, for the reason that she had no issues. She has also verified that whatever was recorded in this declaration had been correctly and truly recorded as given out by her. This statement also bears the thumb impression of the right hand of the deceased and the same is signed by Police Head Constable, Joravarnagar Police Station. Whereas Joravarnagar Police had informed the Executive Magistrate, he also came down to the Hospital to record the dying declaration of the deceased and according to the Executive Magistrate, he had gone to the Hospital to record the declaration of the deceased. Dr. Parmar had taken the Executive Magistrate to the deceased and he was told that the deceased was conscious. The Executive Magistrate also verified and recorded that deceased was conscious, and thereafter, recorded the dying declaration as given out by the deceased from 00.30 hours to 1.00 A.M. on 6-8-1999 (Exh. 17). The Executive Magistrate recorded this dying declaration in his own hand-writing and obtained the thumb impression of the deceased, after the same had been read over and admitted to be correct by the deceased. In this dying declaration she has stated that on the night of 5-8-1988 she was sleeping in her room (orda). She had no issues although she was marred 10 years earlier; because she had no issue her husband used to come drunk and beat her. On that day i.e. 5-8-1988 while she was asleep her husband Bachubhai Valjibhai between 10.30 to 11.00 P.M. poured kerosene on her and set her to fire by throwing a match-stick, that no one other than her husband could come to that orda and only her husband had done this, that her mother-in-law and sister-in-law used to torture her daily, would not give food and abuse her. She has referred to some of her gold and silver ornaments and had stated that they may be handed over to her father and mother. She has also requested for appropriate action against her husband and that 'my parents may not be harassed'. At the end of this dying declaration it was recorded by the Medical Officer Dr. Parmar as under :-
"Pt. is fully conscious and able to answer the questions.
00 = 30 AM to 1=00 AM Dt. 6-8-1988 M.O.S'nagar."
This dying declaration Exh. 17 bears the signature of the Executive Magistrate.
4. The case was registered under Section 302 I.P.C. at Police Station and next day accused No. 1. i.e. Bachubhai Valjibhai was arrested. Later on, on 26-8-1988 accused No. 2 Ratanben and accused No. 3 - Paluben were also arrested and case under Section 498A read with Section 34 of I.P.C. was also registered against them. It is the case of the prosecution that deceased was subjected to mental torture and scolding in past by accused No. 1 and she had also been deserted. It is alleged that although the marriage had taken place about 10 years back, they had lived together hardly for a period of six months and for that reason she lived at her father's house at Ahmedabad wherefrom accused No. 1 voluntarily brought her to Ratanpar and done her to death in the manner as aforesaid. After completing the investigation, charge-sheet was tiled in the Court of Chief Judicial Magistrate where Criminal Case No. 3026 of 1988 was registered. Thereafter, the case was committed for trial in the Court of Addl. Sessions Judge, Surendranagar in Sessions Case No. 89 of 1988. The charges were framed as per Exh. 3 and on denial of the charges, the trial was conducted. The trial has resulted into the acquittal of accused Nos.2 and 3 i.e. Ratanben and Paluben respectively and the conviction of accused No. 1., namely, Bachubhai Valjibhai for an offence punishable under Section 302 I.P.C. After hearing the accused No. 1 on the question of sentence, he was sentenced to life imprisonment by the Addl. Sessions Judge, Surendranagar by his judgment and order dated 12-3-1990.
5. The conviction under Section 302 as has been recorded and the sentence of life imprisonment, as has been awarded to Bachubhai Valjibhai, has been assailed by the learned Counsel for the appellant Mr. Malik on the following grounds :-
(1) That there is no evidence that there was sufficient light so as to enable the deceased to identify the present appellant at the time of the commission of the offence between 10.30 to 11.00 P.M. in the room where the deceased was sleeping;
(2) That the door of this room (orda) was closed from inside, which is a fact, which has come on record in the evidence of Arvind Valji i.e. brother of the accused, who was examined as P.W.6;
(3) That no independent witness has been examined; (4) That there are more than one dying declarations and none of these dying declarations withstand the test of Section 32 under the Evidence Act.
6. In the facts and circumstances of this case, we find that there are three dying declarations and dying declaration Exh. 10 is the first dying declaration recorded at 11.55 P.M. on the same date i.e. 5-8-1988 i.e. within about an hour's time from the time of the incident and the same was recorded by Dr. Parmar and the thumb impression of the deceased on this dying declaration has been attested by Dr. Parmar as well as Dr. G. P. Kotecha. P.W.1 Dr. Parmar Mangalsingh has been examined and he has proved this document Exh. 10. He has categorically stated that Baluben was brought to him for treatment by Arvind Valji without any Police Yadi in the Hospital. At that time, Baluben was fully conscious. She was able to speak and on the asking of this witness, she had replied that before she was brought to the Hospital about an hour back she had been set to fire by her husband after pouring kerosene on her. She was giving the smell of kerosene. Only a little portion of cloth remained on her body. She had 98% burns and except the skin on the skull and bottom of the feet, she was burnt all over, but was able to speak normally, the burn injuries are only superficial, she was admitted as an indoor patient and Joravarnagar Police Station was informed on telephone. He has deposed that he had recorded the dying declaration of Baluben. At that time, none of her relatives was present. Thumb impression of Baluben was obtained on the dying declaration, the same was also verified by Dr. Kotecha and he has appended his signatures in token of the same. The Police came at about 12 O'clock and met him. He took the police personnel to Baluben, the Constable recorded her dying declaration in his presence and at that time also Baluben was in a position to speak. He has further stated that the condition of Baluben went on deteriorating, that despite treatment given to her she died at about 3 O'clock on the intervening night. He has also proved the certificate issued by him at Exh. 12, which shows that it was a case of burns.
7. The second dying declaration, the one which has been recorded by Head Constable, i.e. Exh. 37, was recorded immediately after the recording of the dying declaration Exh. 10. This declaration was so recorded in his presence by Head Constable and according to this declaration also the assailant, who poured kerosene on the body of the deceased and set her to fire, is the present appellant. It also bears the thumb impression of the deceased and signature of the concerned Constable.
8. Yet another and 3rd dying declaration is Exh. 17, recorded by the Executive Magistrate between 00.30 A.M. to 1.00 A.M. on 6-8-1988 and it also bears the verification by the Doctor who has been examined, and he has categorically stated that deceased was fully conscious and was able to answer the questions. At the time, when the dying declaration was recorded by the Executive Magistrate, she was fully conscious. In this dying declaration also, she has named the appellant as the person who poured kerosene upon her when she was asleep and set her to fire.
9. Thus, there are in all three dying declarations and we have to examine as to whether the three dying declarations, as aforesaid, or any of them could be said to be admissible in view of the provisions of Section 32 of the Evidence Act. In this context, Mr. Malik has also cited before us a decision of the Supreme Court i.e. Paparambaka Rosamma v. State of Andhra Pradesh, reported in 1999 (7) Supreme 640 decided on 13-9-1999.
Dt : 12-10-1999
10. In the facts of the present case there are three dying declarations to which reference has already been made hereinabove. Dying declaration Exh. 10 was recorded at 11.55 P.M. on 5-8-1988 within a period of about an hour by Dr. Parmar Mangalsingh, who has been examined as P.W.1 vide Exh. 8 at page 41 of the paper book. The second dying declaration, which has also been treated as the First Information Report to the Police, is recorded by Head Constable Maganbhai. This dying declaration Exh. 37 at page 143 has been proved by Head Constable Maganbhai, P.W.10 at page 139 of the paper book vide Exh. 36. This dying declaration Exh. 37 bears the date of 6-8-1988, after the recording of the first dying declaration and before the recording of the third dying declaration. Third dying declaration Exh. 17 is the one recorded between 00.30 A.M. to 1.00 A.M. of 6-8-1988 at page 75 of the paper book. It was recorded by the Executive Magistrate who has been examined as P.W. No. 3 at page 69 to 71 vide Exh. 15. All these three dying declarations have been proved by the corresponding persons who recorded the same. We find that there is no inconsistency in any of these three statements and in all the three declarations, the deceased Baluben has consistently stated the basic fact that on 5-8-1988 while she was asleep in the orda between 10.30 P.M. to 11.00 P.M. her husband Bachubhai Valjibhai poured kerosene on her and set her to fire by throwing the match-stick. Thus, so far as the assailant is concerned, the statement of the deceased is consistent in all the three declarations. Merely because there was some addition in the two subsequent declarations recorded by Head Constable and the Executive Magistrate, it cannot be said that these dying declarations should not be believed. If we appreciate the contents of these dying declarations in the context of the allegations of torture, to which she was subjected to by her husband, because she had no issues, we do not find any reason to disbelieve the statement made by the deceased in these dying declarations that it was her husband who poured kerosene on her and set her to fire by throwing the match-stick. The cases of maltreating the women in case they are not able to bear and beget any child are not unknown and in the present case we find that the deceased had consistently deposed against her husband - the appellant and thus we do not find any reason to disbelieve the version of the deceased. Even if for arguments sake the two declarations i.e. Exh. 37 and Exh. 17 made before the Police Head Constable and the Executive Magistrate are kept out of consideration, the case against the appellant stands proved by the first dying declaration Exh. 10 itself, which was recorded at 11.55 P.M. by P.W.1 i.e. Dr. Parmar and this dying declaration recorded by Dr. Parmar is also signed by other Doctor at the same Hospital i.e. Dr. Kotecha, who has appended his signature in token of the execution of the thumb impression of the deceased. The argument of the learned Counsel for the appellant Mr. Malik that in this dying declaration Exh. 10 Doctor has not recorded that the declarant was conscious and in fit mental state so as to make the declaration, and therefore, this declaration should not be believed and that it does not withstand the test of Section 32 of the Evidence Act, cannot be accepted in the facts of this case for the simple reason that the declarant has stated at the very threshold that she was absolutely conscious and was making the declaration with full understanding. Even if it was a case of 98% burns, she would certainly be in a position to give that declaration within one hour of the time when she was put to fire. This declaration bears her thumb impression and the signatures of two Medical Officers of the Government Hospital, Surendranagar. We find that this dying declaration is fully trustworthy and it cannot be said to be inadmissible in evidence according to the requirements of Section 32 of the Evidence Act. The same has also been proved by the concerned Doctor who has been examined as P.W.1 and there is no reason to disbelieve this witness P.W.1 when he has deposed before the Court that although she was under shock, she was fully conscious and was in a position to speak and that the declaration had been recorded, as had been answered by the deceased on query being made by him. The post mortem report Exh. 14 also shows that it was a case of 100% superficial burn all over the body except skull and feet and the cause of death has also been given as shock due to extensive burns on her body. What is found to be correct on the basis of the dying declaration Exh. 10 is also supported by dying declaration Exh. 37 proved by P.W.10 - Head Constable Maganbhai and the third dying declaration Exh. 17 at page 75 i.e. by Executive Magistrate P.W.3 Bhikhubhai. The dying declaration Exh. 17 also shows that even at the time i.e. 00.30 A.M. to 1.00 A.M. on 6-8-1988 the Doctor had recorded that the patient was fully conscious and was able to answer the questions. There is no reason to disbelieve any of these three witnesses i.e. P.W.1, P.W.10 and P.W.3 corresponding to the dying declarations Exh. 10, Exh. 37 and Exh. 17 and we find that the version of the deceased has throughout been consistent with regard to the commission of the offence against the present appellant.
11. The case of Paparambaka Rosamma v. Stare of Andhra Pradesh (supra), as has been relied upon by Mr. Malik, was a case in which 90% burn injuries had been sustained. The case solely rested on the dying declaration and the Court noticed the omission on the part of the concerned Doctor to record that the injured was in a fit state of mind. The Supreme Court opined that the certificate appended to the dying declaration at the end by the Doctor P.W.10 did not comply with the requirements inasmuch as she had failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration, the certificate of the said expert at the end only says that the patient is conscious while recording the statement. In view of this material omission, the Supreme Court did not find it safe to accept the dying declaration Ex.P-14 as true and genuine or that it was made when the injured was in a fit state of mind. This judgment is of no avail to the appellant in the facts of the present case inasmuch as the declaration by deceased Baluben was given with full understanding as per Exh. 10 and even in Exh. 17, what has been recorded by Doctor, is not only that the patient was fully conscious but also that she was able to answer the questions. The ability to answer the question is a clear indicator to the fit state of mind. Dr. Parmar P.W.1 has also stated that she was able to speak and we do not find any reason to disbelieve the testimony of the three witnesses, who had proved each of these three dying declarations. Thus, the aforesaid decision of the Supreme Court in the case of Paparambaka Rosamma v. State of Andhra Pradesh (supra) is of no help to the appellant.
12. Besides this, the learned Addl. P. P. Ms. B. R. Gajjar has relied upon the case of Lallubhai Devchand Shah v. State of Gujarat, reported in 1972 SCC (Cri.) 13. In this case, the Supreme Court considered the evidentiary value of the dying declaration and the conviction based on dying declaration without independent corroboration was sustained. In this case of Lallubhai Devchand Shah (supra) before the Supreme Court the principle evidence consisted of the dying declarations made from time to time. It is also a case of death as a result of burn of the entire body with kerosene. The first dying declaration was recorded by Sarpanch and signed by not less than 14 persons. The second was when the Doctor questioned the deceased. Deceased had made a statement that her father-in-law, mother-in-law and brother-in-law had sprinkled kerosene on her and set her on fire. Third dying declaration was in the statement of the Head Constable who had stated that when he asked the deceased as to what had happened, she told him that her husband had contracted a second marriage and her mother-in-law, father-in-law and brother-in-law had burnt her after sprinkling kerosene on her. The second and third declarations have been proved by Doctor and the Head Constable respectively and the case papers had also been produced by the Doctor. While the first dying declaration was prepared by the neighbours, who had come to the house on hearing cries and about 6 persons out of 14 persons who were signatories to this statement were examined. The Court found that the deceased was not only conscious and able to speak, but had made the statement voluntarily. The facts of the case before the Supreme Court are very nearer to the facts of the present case. The Supreme Court upheld the conviction and sentence.
13. In 1994 Cri. LJ. 3454 (Mongat Ram v. State), the Delhi High Court considered the authenticity of dying declaration made by the deceased separately before Doctor, Police and Magistrate that her husband poured kerosene oil and set her on fire, There was no material difference in her versions and same appeared to be voluntary and without pressure.
14. In 1977 SCC (Cri.) 181 (Bhayani Luhana Radhabai v. State of Gujarat) the Supreme Court has laid down that a dying declaration stands on same footing as any other evidence and it is to be judged in the surrounding circumstances and with reference to the principles governing the weighing of evidence. In order to test the reliability of a dying declaration, the Court must keep in view circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control, whether the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it and whether the statement has been made at the earliest opportunity and was not the result of tutoring by interested parties?
15. In the case of Harbans Lal v. State of Haryana, reported in AIR 1993 SC 819, there were two dying declarations; one was recorded by Doctor in presence of two other Doctors stating that she was burnt by her mother-in-law and husband and the second dying declaration was recorded by a person attested by Sarpanch supporting that deceased committed suicide. Second dying declaration was not proved by competent witness and the same was not relied upon. Conviction of the accused under Section 302 read with 34 I.P.C., as was based on dying declaration recorded by Doctor, was sustained.
16. In the case of Suresh v. State of Madhya Pradesh, reported in AIR 1987 SC 860, the dying declaration was recorded by a Doctor and the testimony of Doctor that deceased was capable of deposing and was in senses at the time of recording of statement and the conviction was held as not liable to be interfered with.
17. In the case of Rabi Chandra Padhan v. State of Orissa, reported in 1980 SCC (Cri.) 211 the Supreme Court held that if the dying declaration refers to a truthful version of the occurrence, even in the absence of any independent corroboration a conviction can be founded thereon.
18. In the case of Kusa v. State of Orissa, reported in 1980 SCC (Cri.) 389 it has been laid down that where the dying declaration is believed by the Court, a conviction can be based upon it without any corroboration and further that merely because the deceased was in a state of shock, the declaration would not become unreliable.
Dt : 13-10-1999
19. What evidentiary value is to be attached to the dying declarations would depend upon the satisfaction as to the state of mind of the declarant, capacity of victim to make declaration and to screen the dying declarations on norms, as aforesaid, within the meaning of Section 32 of the Evidence Act when there are more than one dying declarations on the basis of the decisions, to which reference has been made hereinabove. the following principles are discernible :-
(i) When a dying declaration is recorded, the person who records the statement, must be satisfied that the person who makes the statement is consciously making the statement, understanding the implications of the words he uses; (ii) In a given case if the Doctor fails to certify on the dying declaration itself that the deceased was in a fit mental state to give the statement, it would only be an irregularity, which may be cured by the deposition made by the Doctor before the Court along with any other deposition in support thereof made before the Court;
(iii) Where a deceased in her dying declaration clearly implicates the accused as having set her on fire, even if there are 100% burns, when they are generally superficial and she was then fully conscious as certified to by the Doctor, the veracity of her dying declaration could not be doubted even if the Doctor has not certified that she was in a fit condition to make the declaration;
(iv) When the dying declaration is challenged on the ground that deceased was in a state of shock but the Doctor is not cross-examined as to the fact whether or not despite the shock, the deceased had retained his mental faculties and on the other hand there is coherent and consistent statement made by the deceased clearly revealing the fact that the deceased was fully conscious and was not suffering from any confusion, the challenge to the dying declaration has to be held to be without force.
(v) Merely because a Magistrate does not put a direct question to the deceased as to whether she was in a fit state of mind to make the statement and where before and after recording the dying declaration the Magistrate obtains certificate from the doctor that the deceased was in a fit state of mind to make the statement, the dying declaration cannot be discarded; (vi) In cases of intensive burns when it is deposed by the Executive Magistrate that he had satisfied himself that the deceased was in a perfect fit condition to make a statement and the Police Officer also supports his version and there are no interpolation and no apparent inconsistency and the version set up in the dying declaration is found to be consistent with the version given in earlier declaration, non-obtaining of the Doctor's endorsement regarding fitness of the patient on the dying declaration is capable of acceptance and may be relied upon;
(vii) The mere fact that the deceased had 100% burn injuries of 2nd and 3rd degree, does not lead to the presumption that the deceased was not physically and mentally fit to give the dying declaration;
(viii) When the Doctors attending the deceased as well as the Executive Magistrate depose that the victim was conscious and was in a position to make the dying declaration at the time when it was made, the same may be relied upon;
(ix) Before a conviction can be based on a dying declaration it must inspire confidence so as to make it safe to act upon it;
(x) When there are more than one dying declarations, earliest of several dying declarations would normally be taken to be truthful and it may be relied upon;
(xi) In case of more than one dying declarations, the one made first in point of time is to be preferred to any of the subsequent declaration;
(xii) The existence of two dying declarations of the deceased does not automatically and invariably mean that the earlier statement should be accepted and the latter be necessarily rejected;
(xiii) In assessing the credibility of the dying declaration, the Court has to apply the ordinary rules;
(xiv) If there is no ground to discard the dying statement, the same may form the basis for conviction;
(xv) When the first dying declaration is very short but recorded immediately on arrival at Hospital while the declarant is in great pain and agony is found to be "nothing but truth" and the second declaration contains more details and particulars of the occurrence, it does not effect the validity or the weight of the first declaration which by itself was sufficient to sustain the conviction;
(xvi) When in all the dying declarations the deceased implicates the accused, the evidence of the persons related to the deceased cannot be rejected if it is corroborated otherwise;
(xvii) Where there are more than one dying declarations made within a short spell of time i.e. 3 to 4 hours and the same are found to be consistent and corroborated by ocular as well as medical evidence, the challenge to the conviction cannot be sustained.
20. If we apply the aforesaid principles on the facts of the present case, where there are three dying declarations, we find that all the three dying declarations could be relied upon and so far as the first dying declaration is concerned, the same can be safely relied upon so as to sustain the conviction, as has been recorded in the instant case.
21. So far as the question with regard to the presence of the accused at the time of the commission of the offence and his identity is concerned all that has been argued by the learned Counsel for the appellant is that there was no light at all so as to make it possible for the deceased to identify the accused and that the offence was committed between 10.30 and 11.00 P.M. in an ordi i.e. closed room, and therefore, deceased could not have identified and known that it was the accused who set her to fire. Whether light or no light, the manner in which the incident had taken place itself takes care of these objections. Even if we assume that there was no external source of light, the very fact that kerosene is sprinkled and then a matchstick is thrown on the deceased, the fire which is generated by the burning of the cloth itself is sufficient to create such amount of light so as to enable the victim to watch and identify as to who was the person who had thrown the matchstick after pouring kerosene and in the present case when the accused is the husband and the victim is the wife, the victim could not have taken any time so as to place that it was her husband. This is besides the factual position that except the appellant there was no one else in the house, and therefore, there could not be any one else to set her to fire.
22. The argument, which has been raised that the door was closed from inside, does not impress us at all in view of the statement made by the brother of the accused, namely, Arvind Valji P.W.6, who has categorically stated that he had pushed his hand through the space between the doors to open the bolt and if it was possible for him to open the bolt from outside, it could be well nigh possible for the accused also to close the door from outside by pressing in his hand in the same manner and leave that place after committing the offence, and therefore, this argument raised by the learned Counsel for the appellant is not at all convincing to disbelieve the case of prosecution.
23. The defence, which has been taken by the appellant in the facts of the present case, is the weakest possible defence i.e. the plea of alibi when he says that he had gone to movie at the relevant time. This plea cannot be accepted in the facts of the present case. No documentary evidence (counterfoil of the ticket etc.) has been produced and we do not find that there is any merit in this plea of alibi pleaded by the appellant.
24. The argument that no independent witness has been examined is of no consequence in the facts of the present case when there is evidence of sterling worth as discussed above for the purpose of sustaining the conviction and when we find that the prosecution has established the guilt against the appellant to the hilt.
25. For the reasons aforesaid, we do not find any merit in this Appeal. The conviction and sentence awarded to the appellant is hereby sustained. Appeal is hereby dismissed.
26. Appeal dismissed.