JUDGMENT [ENTITY], J.
1. This appeal is directed against the judgment and order dated 23-5-1997 passed by Sri [ENTITY], the then Addl. Sessions Judge, Mahoba whereby he having convicted the appellant under [SECTION], [ACT] [SECTION], [ACT] has sentenced him to undergo one year's rigorous imprisonment under [SECTION], [ACT] and Life imprisonment under [SECTION], [ACT]
2. The prosecution case, succinctly put, is that Smt. [ENTITY], the victim, is the wife of the appellant. She had four issues, two male and two female, at the time of her death. The appellant was an addict of wine and gambling. The uncle of the father of the appellant-[ENTITY] was issueless and he had given his properties to Smt. [ENTITY]. The appellant used to pressurise his wife Smt. [ENTITY] to sell the landed property in her name and bring cash from her father and brother to meet out his requirement and he also often used to torture and beat her. It was [ENTITY] on 16-3-1995. It is said that the appellant had beaten Smt. [ENTITY] on that day whereupon the elder son of Smt. [ENTITY] P.W. 1 [ENTITY] had gone to village Dhanaur to fetch his maternal grand father. It is further alleged that on the evening of that very day when the victim Smt. [ENTITY] was cooking meal, a quarrel again took place between the deceased and the appellant whereupon the appellant poured kerosene oil upon the victim and taking out a burning piece of wood from the stove, set her on fire which was extinguished by [ENTITY] and [ENTITY], respectively, father and elder brother of the appellant, who arrived on the scene on hearing the alarm. It is said that on arrival of his father and elder brother, the appellant ran away from his house. [ENTITY] elder brother of the appellant took Smt. [ENTITY] to medical college Jhansi and admitted her there for her treatment, where she died on 21-3-1995. On 22-3-1995 P.W. 3 [ENTITY] father of the victim came to learn about the death of his daughter. He on 25-3-1995 gave a written report to the Superintendent of Police, Mahoba on the basis of which a case at Crime No. 29 was registered at Police Station, Panwari and investigation followed resulting into submission of charge-sheet under [SECTION] [SECTION], [ACT] against the appellant, which culminated into his trial.
3. The appellant pleaded his innocence and attributed his false implication to enmity. His case was that he had got properties of [ENTITY] transferred in the name of his wife. His brother was demanding half share in that property and he had also illicit relations with his wife, who too wanted to give half of the property which she had received from [ENTITY] to him. He further stated that he had caught his elder brother in compromising position with his wife two days before the occurrence, as a consequence of which his wife committed suicide and he has been falsely involved in this case.
4. The prosecution in support of its case examined P.W. 1 [ENTITY], P.W. 2 Km. [ENTITY] respectively son and daughter of the appellant, P.W. 3 [ENTITY], father of the deceased, P.W. 4 [ENTITY], the Investigating Officer and P.W. 5 Dr. [ENTITY], who had conducted autopsy on the dead body of the victim. The appellant did not lead any evidence in defence.
5. Learned trial Court on appraisal of the evidence held the appellant guilty of the charges under [SECTION] [SECTION], [ACT] and convicting him of the same sentenced him as aforesaid, dis-satisfied from which the appellant has come up in this appeal.
6. We have heard Sri [ENTITY], learned Amicus Curiae and the learned A.G.A. at length and have gone through the materials on record.
7. It is not disputed that the deceased Smt. [ENTITY] died an unnatural death as a result of ante-mortem burns, which she had received in village Bharwara Police Station, Panwadi District Mohaba, where she was residing with her husband and children. According to Dr. [ENTITY], who conducted the autopsy on the dead body of the deceased on 22-3-1995 at 3.00 p.m., the deceased had degree I and it superficial burns all over the body except below the knees. Dr. [ENTITY] has also opined that the deceased had died due to shock by extensive ante-mortem burns.
8. The fact that the deceased had ante-mortem burns and died of it has also not been disputed by the defence. The appellant in his statement under [SECTION], [ACT] has stated that the deceased had committed suicide by setting herself on fire. Thus it is crystal clear that the deceased died of ante-mortem burns.
9. Now the sole question that remains to be seen is whether the deceased herself had set fire on her or it was the appellant who set her on fire as is the prosecution case. To prove the factum of incident the prosecution has examined three witnesses. They include P.W. 1 [ENTITY], son of the appellant, P.W. 2 Km. [ENTITY], daughter of the appellant and P.W. 3 [ENTITY], father-in-law of the appellant who are either the eye-witnesses of the incident or the witnesses of the motive. P.W. 1 [ENTITY] has stated that on the fateful day of the incident, his father had beaten up his mother and he had gone to village Damaur, the place of his maternal grandfather, to fetch him. He has also stated that his father was addict of wine and gambling and wanted that his mother should sell the property in her name. He is thus not a witness of fact but has deposed about the motive. His evidence finds corroboration from the evidence of P.W. 3 [ENTITY], who too has stated that his daughter used to complain about the appellant pressurising her to bring money from him and her brother. P.W. 3 [ENTITY] has also stated that the appellant had earlier demanded money from him whereupon he had advised him to get rid of his addiction of wine and gambling. There is then direct evidence of P.W. 2 Km. [ENTITY] on the manner of incident. She is aged about 6 to 8 years and has deposed that it was evening time when her father after having poured kerosene oil on her mother set her on fire. She has also stated that the appellant had threatened her with dire consequences in case she raised an alarm. The evidence of all the three aforesaid witnesses inspires confidence and there is nothing in their statements to make their depositions incredible. It would be found that the family of the appellant at the time of occurrence consisted of only six members. Besides the deceased and the appellant, there were four children, two sons and two daughters. P.W. 1 [ENTITY] had already gone to village Daumar to fetch his maternal grandfather, who could intervene in the quarrel between the appellant and his mother. Thus besides the appellant and the deceased, only three minor children including P.W. 2 Km. [ENTITY] were present at the house, when the incident is said to have been taken place. Km. [ENTITY] was eldest amongst the three and she has given an eye account of the incident. She has stated that the appellant asked her mother to dispose of the landed property whereupon her mother replied that if she sold the property wherefrom her children would be brought up. Besides Km. [ENTITY], [ENTITY] and her sister [ENTITY] too though were present, but Km. [ENTITY] at that time was a small baby living on mother's milk and her other brother [ENTITY] though his age is not borne out from the evidence appears to have been too young to take note of things that had happened. P.W. 2 Km. [ENTITY] was thus the only witness who could have seen the incident and she has deposed about the same and the role of her father in it.
10. It is not digestible as to why P.W. 2 Km. [ENTITY] the only sensible eye-witness present on the scene of the occurrence would give an incorrect account of the incident. The appellant it would be found too does Hot dispute his presence at the time of incident in which the victim received her burn injuries. He has stated in his statement under [SECTION], [ACT] that because of her having been caught in compromising position with his elder brother, the victim had herself set on fire overtaken by the sense of moral compunction. The conduct of the appellant, however, of his neither making any effort to extinguish the fire or providing medical aid to the victim and instead running away from the spot, on the arrival of his father and elder brother run counter to his stand unerringly pointing towards his guilt. It would also be worth while to point out that being the only adult member in the family having seen the alleged attempt of suicide by his wife, the burden of proving that fact in view of [SECTION] of the [ACT] rested with the appellant but he has not only failed to discharge that burden, but is found to have conducted himself in such a manner which speaks of his mala fide intention. In this perspective the evidence of Km. [ENTITY] his own daughter on the role played by him in the incident strikes the conscience most and we have no hesitation to conclude that the learned trial Court on proper appraisal of the evidence has found the motive as also the complicity of the appellant in the incident fully proved.
11. The learned Amicus Curiae has also not seriously disputed the correctness of the finding of the trial Court on merit, but pointing out certain mitigating factors has urged that the case of the appellant falls under [SECTION], [ACT] as there does not appear any intention on his part to cause the death of the victim. Referring to the statements of P.W. 1 [ENTITY] and 2 Km. [ENTITY], he has vehemently argued that the appellant used to take due care of the children as also of the victim as the evidence shows that he used to bring fruits and sweets for them and also used to arrange consumable articles on the occasions when the victim used to observe fast showing his love and affection towards the children and the victim. He has also urged that the evidence of P.W. 2 Km. [ENTITY] shows that the appellant had consumed liquor on the fateful date of the incident and it was not unlikely that he might not have had control over himself. He has thus tried to show that from the facts and circumstances it does not appear that the appellant had either premeditation or any intention to kill the deceased. He has also urged that it appears that some quarrel had taken place between the deceased and the appellant on the date of incident and the appellant on being provoked by some act of the deceased had set her on fire. Placing reliance on the law laid down in [PRECEDENT]; [PRECEDENT] and [PRECEDENT], he tried to persuade us to take a lenient view in the matter. Having given our anxious thoughts to the arguments raised and the citations referred to above, we, however, do not find ourselves in agreement with the learned amicus curiae. None of the citations applies to the facts and circumstances of the present case found proved.
12. The appellant, having consumed the intoxicant of his own Will cannot be absolved of the consequences of his act in view of [SECTION] of the [ACT]. His conduct as discussed above also does not justify drawing of an inference about the absence of his intention to kill the victim. The evidence of P.W. 2 Km. [ENTITY] shows that on arrival of [ENTITY], his elder brother and [ENTITY] father, on the scene of the incident the appellant had fled therefrom. There is, thus, nothing to show that after setting the victim on fire, the appellant did make any effort to extinguish the fire and save her. Thus from the facts and circumstances of the present case, we are of the view that the learned trial Court has rightly concluded about the charges under [SECTION], [ACT] and [SECTION], [ACT] having been fully proved against the appellant had we see no reason whatsoever to interfere either with the conviction of the appellant or with the sentences awarded to him on both the counts.
13. Before, however, we part with this case we feel inclined to place on record our appreciation for Sri [ENTITY], learned amicus curiae for his valuable assistance in the disposal of this appeal.
14. In the result this appeal being devoid of merit is hereby dismissed. We, however, direct that the sentences awarded to the appellant on both counts shall run concurrently.
15. Sri [ENTITY] will get Rs. 1000=00 (Rs. One thousand only) as his fee.