ORDER

1. Whether the death was homicidal or accidental is the question that falls for determination in this appeal. The Court of Session has held it to be homicidal, convicted the appellant and imposed on him life imprisonment.The High Court confirmed the conviction and sentence of the appellant by dismissal of the criminal appeal that was filed by the appellant. The correctness of the judgment of the High Court has been challenged in this appeal. The case rests on circumstantial evidence.

2. The appellant (accused) was 22 years old at the time of the occurrence. The deceased was 32 years of age. She was married and had 5 children. Her husband, PW 14, was working at Abu Dhabi. As a result of bum injuries received by the deceased on 18-11-1980 at about 4.30 p.m. she was admitted in a hospital and died on 19-11-1980. The accused and the deceased were near relatives, their mothers being real sisters. According to the case of the prosecution, the accused used to render help in construction ofbungalow on the plot owned by the husband of the deceased who used to send money for the purpose of construction from Abu Dhabi. The motive for the crime, as per

the prosecution case, is illicit relations between the accused and the deceased and also extraction of money by the accused from the deceased. The burning incident had taken place in the kitchen of the house of the deceased. In the hospital DW 1,Head Constable on police duty in the hospital recorded the e statement of the deceased at about 9.00 p.m., according to which accidentally the deceased received bum injuries while she was preparing tea on a stove in her kitchen and when she was removing the vessel with the edge of her sari which suddenly caught fire. She was wearing a nylon sari. But, according to the prosecution, the dying declaration was recorded by the Head Constable to help the accused. It was not a genuine document. The husband of the f deceased made a complaint dated 15-5-1981 complaining that the investigation had not been properly conducted. On the basis of the said complaint the matter was inquired into and ultimately on 8-1-1984 a case for offence under Section 302 was registered against the appellant. The appellant was arrested on 9-1-1984. The appellant has been found guilty of offence under Section 302 and that finding has been confirmed in appeal as earlier 9 noticed.

3. The prosecution relied upon the following circumstances:

"(a) Motive - ill-treatment to the deceased to extract money from her and illicit intimacy. Statement of Paulad (PW 5) that 4-5 months prior to the incident while passing on the road, he had seen the accused catching the deceased Akhtarbanu and taking her inside the house.

(b) Door of the house of the deceased was found closed from inside and when it was broke open, the accused was seen in the company of the deceased and the deceased was found engulfed in flames.

(c) Kerosene tin and matchbox were lying on the floor of the kitchen and the floor was smelling of kerosene.

(d) Residue of kerosene was found on chemical analysis of the clothes of the deceased.

(e) Burn injuries on the hand of the accused speak for his presence at the scene of offence.

(f) The accused had not opened the door though it was knocked by the persons who came to extinguish the fire. He had not raised hue and cry, nor he took any steps to give medical aid to the deceased."

4. Before we examine the aforesaid circumstances which have been held to be proved by the prosecution and the conviction of the appellant based thereupon, it would be appropriate to first deal with the aspect of the dying declaration above-referred. The dying declaration recorded by DW 1 reads as under:

"Date: 18-11-1980

I, Akhtarbanu, w/o Babubhai Pathan, age 32, r/o Shrirampur, near government godown state that I am residing at the abovementioned place. I have total five issues, out of them three are daughters and two sons. My husband is serving at Dubai since 4 months. My elder brother Ekbal Babakh