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In Flat No. 9-B there was a small kitchen where a gas operated stove along with a cylinder was kept. A small portion of the open space in the courtyard by the side of the kitchen had been covered with asbestos sheets. There also cooking used to be done with the held of a kerosene stove as the kitchen was small. Certain other household materials, including smock of kerosene in tins were kept there.

A little after 9 P.M. On December 1, 1980, a shout was heard from Flat No. 9-B. lt was a lady's voice crying 'Bachao Bachao' (save O save). On hearing the cry neighbours like Jaspal Singh, P.W. 1, Satish Chopra, P.W.2 Ishwari Devi, P.W. 4 ran to the flat and P.W. 5 Tarsem Jain who was near about also came there. P.W. 1 saw Laxman standing at the entrance door and was attempting to close it while Subhash was standing with his hand on the latch of the door which opened to the courtyard. He and others who had collected forced their way inside and saw Sudha in a standing position but aflame. The neighbours attempted to extinguish the fire first by pulling out the saree from the body of the lady, put a gunny bag lying nearby on the burning body and when Satish Chopra brought a blanket, the same was wrapped around her body. After extinguishing the fire they brought Sudha to the room where Shakuntala was standing. According to the prosecution case, Sudha, on seeing the mother-in-law, made a statement to the effect that it was she who had set her on fire after pouring kerosene on her body. Soon a taxi was brought and the three members of the family (respondents here) took Sudha for treatment to the hospital. On the way they picked up P.W.3 and her husband. Initially the accused persons had decided to take Sudha to Hindu Rao Hospital but on P.W. 3 suggesting that Sudha may be taken to St. Stephen's Hospital where she was being looked after for her pre-maternity care, she was ultimately taken there.

Sudha died in the early hours of December 2, 1980. After due investigation the respondents were prosecuted on a charge of murder. There is no eye witness to testify to the act of setting fire to Sudha which is the prosecution case, or to the fact of Sudha's saree catching fire accidentally as alleged by the defence. Prosecution has sought to rely upon the oral testimony of witnesses who ran to the spot soon after hearing the cries of Sudha, the statements made by Sudha to the various witnesses implicating the accused persons as the perpetrators of the crime, the conduct of the accused persons as deposed to by the witnesses when Sudha's clothes were aflame, the alleged torture of Sudha for some time preceding the occurrence over demands for cash and goods in kind, and other circumstances available on record.

20) was a formal witness from the Police Malkhana.

According to the defence version, Sudha while trying to lit the kerosene stove for heating up milk for one of the children of Subhash who was feeling hungry had her saree lit up by the stove fire which led to the incident. Laxman was away as he had accompanied Sudha's sister up to the bus stand. Subhash and Shakuntala took reasonable care to put off the fire. To prove this defence, they have examined five witnesses being DW.1, the doctor at the hospital, DW.2 (same person as PW.18), Record Keeper of the Hospital, DW.3, a neighbour, DW. 4, the driver of the taxi and DW.5, the wife of Subhash. They have also relied upon certain documents.

The evidence also indicates that there was a gas stove in the kitchen and the same was in order. It is the defence version that PW. 5 had gone to Barot on November 30, 1980, and respondent Shakuntala had come the previous day along with Subhash. When Subhash returned to the house a few minutes before 9 at night, Sudha wanted to warn up the cooked food for being served to him. At that point of time, the child of Subhash (the other had gone with the mother) cried for milk, Shakuntala wanted the milk to be heated up for the child and asked Sudha to give the milk first for the crying child and then attend to Subhash. It is at that point of time that Sudha wanted to light the kerosene stove. The kerosene stove was in the open space. Judicial notice can be taken of the fact that around 9 P.M. of December it would be unbearably cold outside the house in Delhi. To work the kerosine stove would take sometime and if milk for the crying child was immediately necessary, the kerosene stove would not be the proper heating medium. On the other hand, the gas stove would have served the purpose better. Not much of gas was likely to be consumed for heating the milk, nor even for heating up the food for Subhash. We have to take note of the position that Sudha did not have any warm clothings on her person and as the evidence shows, she had only a nylon saree. Being a pregnant lady at an advance stage she was expected to keep properly robed to avert getting ill from exposure to cold. It is, therefore, not likely that she would have ventured going out to operate the kerosene stove. There is another feature which also must be taken note of. She being in an advanced stage of pregnancy would have found it very difficult to squat on the floor for operating the kerosene stove which was on the floor itself. It is the defence version that the gunny bag was being used for Sitting purposes for operating the stove. That is a conjecture accepted by the High Court. There is no evidence worth the name to explain why the gas stove was not used. In the absence of an explanation as to why the gas stove was not being operated for this purpose and in the setting of events which we have indicated it would be natural human conduct for Sudha to have gone to the gas stove in preference to the kerosene stove. In these circumstances we agree with counsel for the appellants that the defence version explaining the manner in which Sudha's saree caught fire is not acceptable. Once the explanation advanced by the defence that Sudha's saree caught fire from the kerosene stove is discarded, on the premises that the same had not been lighted, the prosecution story that fire was set to her saree is the only other way in which she must have been burnt.