JUDGMENT 1. (Oral) - This is a State appeal against the acquittal of respondent Chunnilal of the charge under Section 302 1. P. C. and respondent Smt. Nihaldevi, the wife of . Chunnilal of the charge under section 302 read with Section 109 I. P. C. and respondent No. 3 Narbadeshwar Tripathi of the charge under Section 302 read with Section 114 I. P. C. 2. Respondent Chunnilal is a tenant of the house which belongs to the brother of the deceased Madanlal. The prosecution case is that Madanlal used to realise rent from the accused Chunnilal. The further prosecution case is that on the night of 14-4-1971 the deceased demanded rent from the respondent Chuunilal in the presence of Tripathi. This was not liked by the respondent, who asked the deceased to go and sleep. The further story is that the deceased then went away and while he was sleeping in the lawn outside his house at about 12 or 12. 30 a. m. in the night he found himself burning and got up and saw Chunnilal, his wife Smt. Nihaldevi and respondent Tripathi and also saw Chunnilal's wife bringing a glass full of oil which Chunnilal is said to have sprinkled on him. He started shouting and the respondents are said to have run away inside the house. His shouting brought forth people near about. P W 9 the Inspector of Police was also said to have come there, who rang up the fire brigade and the police station. The deceased was thereafter removed to the hospital. A dying declaration Ex. P/8 which formed the first information report, was recorded by Raghuveer Singh, the prosecution witness, at about 10 30 a. m. A subsequent dying declaration was also recorded, which is Ex. P/3, by the Magistrate P. W. 2 at about 12 or 12. 40 in the after-noon. The deceased died after 5 days on 10. 4. 1971. After investigation the police sent up all the three accused for trial. . - 3. Respondent No. 3 Tripathi in his statement under Section 342 Cr. P.C/ denied that he was present at the time of the quarrel. According to him, he had gone Chunnilal's house when he did not turn up for work and having found that he had been taken to the Police Station he went there and was detained by the police. Respondent No. 3 Tripathi in his statement under Section 342 Cr. P.C/ denied that he was present at the time of the quarrel. According to him, he had gone Chunnilal's house when he did not turn up for work and having found that he had been taken to the Police Station he went there and was detained by the police. Chunnilal denied, having any hand in the crime. According to him, he came oh hearing noise outside, but did not even see Madanlal and that thereafter he was going to the Police Station to lodge a report because he had been told that Madanlal had been burnt. The trial court found itself unable to accept the dying declarations or the oral evidence given in support of it and has acquitted all the three respondents. The State has thereafter come up in appeal to this Court. 4. Though the appeal was filed against ail the three respondents, it appears that service has not been effected on Tripathi, respondent No. 3. This Court vide its order dated January 7, 1974 has directed that the appeal against respondent No. 3 be consigned to the record. The appeal has, therefore, been argued before us by Mr. Tikku and Mr. Chatterjee on behalf of the other two respondents. 5. In the earlier dying declaration Ex. P/8 recorded by PW Raghuveer Singh it has been stated by the deceased that at about 12. 30 in the night he found fire on his body and got up with a shout, and started shouting and tore out his clothes and when he found that nobody had come he rolled himself on the lawn. He has also stated that immediately His body got fire, he saw Chunnilal and his family running inside. 6. Thereafter the neighbours started gathering round. He has further stated that he saw, when he was burning, Chunnilal's wife respondent No. 2 bringing a glass full of oil which was sprinkled by Chunnilal on him by which the fire got still more furious. 6. Thereafter the neighbours started gathering round. He has further stated that he saw, when he was burning, Chunnilal's wife respondent No. 2 bringing a glass full of oil which was sprinkled by Chunnilal on him by which the fire got still more furious. In the second dying declaration recorded before the Magistrate Ex, P,/3, which is comparatively a shorter one, it is stated that while he was sleeping Chunnilal sprinkled something on him and put on the match and the wife of Chunnilal brought a glass full of oil which was sprinkled by Chunnilal on him and the fire got more furious and thereafter the people gathered round on hearing his shouting. The dying declaration names all the three i. e. Chunnilal, his wife and Tripathi as ones who have committed the act of burning the deceased. Oral evidence was also led by the prosecution to support the dying declaration made by the deceased. The broad story put by the various witnesses was that on hearing the shout of the deceased they went to the spot and there the deceased is said to have named the respondents as having been responsible for burning him. The trial court discussed the case of each of the accused separately and found the evidence insufficient to convict the accused persons. Before we discuss individual case it would be necessary to deal with the main arguments which have been addressed by the counsel for the appellants that the dying declaration Ex. P/3 and Ex. P/8 are so inconsistent with each other that no reliance can be placed upon them. Evidently if this argument is sustainable, the conviction of the respondents obviously could not be made on the basis of the oral evidence given by the other witnesses as to what the deceased had said. The main infirmity which the trial court seems to find in the dying declarations is that according to it in Ex. P/8 it is now where disclosed as to who was the person who set Madanlal to fire initially, while in the dying declaration made before the magistrate Ex. P/3 Chunnilal is named as the person, who was responsible for setting him on fire. The trial court, therefore, assumed that this was an improvement as the person Chunnilal has been named as having set fire in the subsequent dying declaration. P/3 Chunnilal is named as the person, who was responsible for setting him on fire. The trial court, therefore, assumed that this was an improvement as the person Chunnilal has been named as having set fire in the subsequent dying declaration. We find that this conclusion of the trial court is based on the complete Mis-appreciation and misreading of the dying declarations. A reference to both these dying declarations Ex. P/3 and Ex. P/8 would show that the version given by the deceased is not merely substantially but basically the same in both the dying declarations. Even in the earlier dying declaration it is mentioned that the deceased suddenly finding his body on fire got up and immediately as his body had caught fire, he found Chunnilal and his family running away from there and thereafter mentioned the incident of Chunnilal's wife having brought a glass full of oil and the same having been sprinkled on him by Chunnilal. No doubt in Ex. P/3, which, as has been said before, is a shorter version, in the first instance when the deceased found himself burning it is mentioned that Chunnilal had sprinkled something on him and had also struck the match and the fire had got furious and thereafter of a glass full of oil having been brought by the wife of Chunnilal and the same having been sprinkled on him. What is sought to be urged by the counsel for the appellants is that when the deceased was sleeping it was impossible for him to have seen or known as to who had set fire on him. It is maintained that in the first dying declaration it had not been specially stated that Chunnilal had set fire on him in the first instance, but it was only at the subsequent stage at the suggestion of his brother that the implication of Chunnilal of having set fire on the deceased in the first instance has been improved upon and added in the subsequent dying declaration and thus the dying declaration became unreliable. This is evidently what the trial court seems to have accepted while not placing any reliance on the dying declarations. In our view the trial court is really tearing the words of the dying declaration out of context to hold that the deceased had not seen the person who had set fire to him in the first instance. This is evidently what the trial court seems to have accepted while not placing any reliance on the dying declarations. In our view the trial court is really tearing the words of the dying declaration out of context to hold that the deceased had not seen the person who had set fire to him in the first instance. From the statement of the deceased that immediately on his body getting fire and on his seeing Chunnilal going inside, the only reasonable inference available is that the deceased was implicating Chunnilal as having set fire to him. There is no other logic or explanation for mentioning Chunnilal's running away immediately the fire had caught deceased body excepting on the premise that the deceased was naming Chunnilal as the person who set fire on him. We thus do not find on a comparison of the Ex. 0/3 and Ex. P/8 that they are by themselves so per se contrary and in consistence so as to be ruled out. 7. The next objection to the acceptance of the dying declaration is stated to be that the deceased was not in a fit condition to make the statement. For that purpose reliance is placed on the evidence of PW 6, the brother of the deceased Kishanlal that the deceased had become unconscious at 1.30 a.m., that Madanlal was not in senses at 9.30 a.m. and that when he had gone to the hospital and when he had returned at about 12 or 12.30 Madanlal had not got back his consciousness and that he had been given injection at late in the night at the hospital and that he had remained in that unconsciousness state. In order to find further support for this statement of PW 6 the trial court did a rather unusual thing. It sent for the bed-head ticket of Madanlal and examined it by itself. The trial court stated in its judgement that the bed-head ticket disclosed that 660 ml. of morphine was injected into the body of Madanlal, intra muscular at 10.50 a.m. and that it can, therefore, be safely assumed that the injection must have induced narcosis and that at 12.15 p. m. on 15.4.1971 he could not have been in a position to make a statement of the type. It may be mentioned that the dying declaration was recorded by the Magistrate PW2. It may be mentioned that the dying declaration was recorded by the Magistrate PW2. after a certificate had been given by the doctor at 12.15 p. m. that the deceased was in a position to give a statement. It is unfortunately true, a point made by the counsel for the respondents, that the prosecution did not examine the doctor in support of the certificate given by him. We also feel that it is rather unfortunate that the doctor could not have been examined and it is of course, rather unusual that in a case where a certificate had been obtained from a doctor, the latter should not have been produced as a prosecution witness. We, however, do not know the reason why it was not done and whether the doctor was available or not. In our view, however, no infirmity can be attached to the dying declaration Ex P/3 in view of the fact that this was recorded by the City Magistrate. He has stated in his evidence that on receipt of a request from the police that a statement was to be recorded in the S. M. S. Hospital he had gone to the hospital and requested the incharge. S.M.S. Hospital that he had come to record dying declaration and had asked for verification whether the patient was in a position to give the statement. He had also proved the doctor's certificate at A to B on Ex. P/4 to the effect that the patient concerned is in a position to give the statement. He has stated that he had recorded the statement of the deceased in the same manner in which he had dictated and that he had also read out the same to the deceased. He has also stated that when he was taking the statement of the deceased the police was hot in the ward. There was no serious cross-examination to the effect that the deceased was not in a fit condition to make the statement and the statement recorded by him i. e. Ex. P/3 did not represent the version given by the deceased. We have no reason to disbelieve the statement of the Magistrate that the dying declaration Ex. P/3 was made by the deceased and recorded by him in the manner in which it was related. P/3 did not represent the version given by the deceased. We have no reason to disbelieve the statement of the Magistrate that the dying declaration Ex. P/3 was made by the deceased and recorded by him in the manner in which it was related. The trial court has in a very summary manner brushed aside the evidence of P W.2 without giving any reason at all as to why a responsible person like a City Magistrate should be disbelieved. The only reason given by the trial court is because of the statement made by PW 6 Kishanlal, brother of the deceased and the bed-head, ticket. We can hardly appreciate how a bed-head ticket, even if it mentioned that morphine had been given, could be conclusive of the fact whether at the time when the statement was alleged to have 'been given by the deceased he was in a fit condition to make it or not, more especially when the Magistrate has stated that he was in a fit condition to give the statement. PW Kishanlal's statement that his brother remained not in full senses does not tali of the period when the statement was recorded by the Magistrate, which was recorded certainly not in the presence of PW Kishanlal. There was thus no reason at all for which the trial court, should have disbelieved the version of the dying declaration (as to what weight to be given to it is a separate matter, but the trial court misconceived itself when it cast doubt on the veracity of the dying declaration. Actually his doubt-on the dying declaration cast a serious infirmity in the reasoning by the trial court on the appreciation of its contents. We have already mentioned that so far as both the dying declarations are concerned, we find that they not only substantially but mainly give the same version. 8. We may at this stage note that after the matter had been heard" for a day or so an application has been put in dated 20.4.1977 by respondents in which it is prayed that the bed-head ticket of Madanlal be summoned and the doctor be examined by this Court. We find that this application is highly belated considering that the appeal was filed in 1971. We find that this application is highly belated considering that the appeal was filed in 1971. We also find that the purpose, which it is stated in the application, is to show whether the deceased was in a lit condition to make the statement before the Magistrate. As we have said the bed-head ticket could only give us an indication that the morphine was given to the deceased and whether the deceased was in a fit condition to make a statement when he made it before the Magistrate. Even the doctor could only give evidence with reference to the certificate which he had given at A to B on Ex. P/3 or whether in what quantity the morphine was given. In either case there could be no personal re-collection of what transpired over almost six years back. Moreover, as we have already noticed that there is direct evidence of PW 2 the Magistrate that the deceased was in a fit condition to make the statement and had actually made the statement Ex.P/3, We therefore, do not find that any useful purpose should be served by the ceiling either the bed-head ticket or the doctor. We, therefore, reject the application. 9. Then another reason for not relying on the dying declaration against Chunnilal was said to be that the dying declarations Ex. P/3 and Ex. P/8 are also inconsistent with the evidence given by the oral witness and, therefore, no reliance could be placed. We, however find that there was no discussion by the trial court when dealing with the case of Chunnilal as to how and in what manner the oral testimony differ from the version given of Chunnilal's part in Ex. P/3 and Ex. P/8. The trial court had discussed the oral evidence while dealing with the case of the other two accused. We shall presently discuss that evidence with reference to the case of Chunnilal's wife. But it is surprising that while discussing the case of Chunnilal this broad observation Should have been made by the trial court that Ex. P/3 and P/8 also do not tally with Story given by the different eye witnesses about the part played by Chunnilal PW 3 has stated that when he on hearing the noise went to the house he found the deceased shouting that Chunnilal and Tripathi had burnt him and had run away. P/3 and P/8 also do not tally with Story given by the different eye witnesses about the part played by Chunnilal PW 3 has stated that when he on hearing the noise went to the house he found the deceased shouting that Chunnilal and Tripathi had burnt him and had run away. Of course, he had not mentioned the name of Tripathi in his police statement. Similarly PW 4 Smt. Rampyari had also stated that when on hearing the noise she went, deceased was shouting that Chunnilal bad burnt him and had run away. PW 9, who was a Inspector of Police had also stated that when he came back after telephoning the police he heard the deceased shouting that Chunnilal, Tripathi and his wife had burnt him. Of course, his evidence was challenged by the counsel for the respondents by saying that it was strange that this witness had not bothered to and the name of the persons who had set fire to deceased before he went to phone. We do not find anything unusual in this context. It is in evidence that there were large number of persons near-about the deceased and evidently the first instinct of the witness would be to ring up the police and to fire brigade. He had also named Smt Rampyari PW 4 and Shambhunath PW 3 as also being present near the deceased. There is thus undoubted evidence of PW 3, PW 4 and PW 9 that when they reached near the deceased they heard him shouting-the name or Chunnilal as the person who had set fire on him. Their evidence is consistent in naming Chunnilal as the person who was being mentioned by the deceased. The dying declarations also attribute the act of burning to Chunnilal. The trial court while discussing the Chunnilal's case has not at. ail referred to this oral evidence, which further supports the dying declaration implicating Chunnilal. The only reasons mentioned by him are that PW 3 had stated that deceased was wearing a bush-shirt and a Janghia, while the deceased bad said that he was wearing a `Jangot'. The trial court has discredited PW 9's evidence by saying that he stated that the deceased was naked and his clothes were seen burning in the compound. The only reasons mentioned by him are that PW 3 had stated that deceased was wearing a bush-shirt and a Janghia, while the deceased bad said that he was wearing a `Jangot'. The trial court has discredited PW 9's evidence by saying that he stated that the deceased was naked and his clothes were seen burning in the compound. It seems to us that the reasons given by the trial court are completely unacceptable and have no relevance to determine the veracity of .these witnesses. To make a great issue out of as to whether witnesses stated Janghia or Langot to be worn by the deceased or whether deceased was in a naked condition or had some sort of clothes, which had obviously been tom away by the deceased himself and, therefore, he was not completely naked is to twist the argument and not to make an effort- of appreciation of evidence. The trial court has also given one of the reasons for not accepting the statements that the clothes and articles which had been burnt had not been produced. We feel that it would have been a pointless exercise in sessions trial to produce the clothes which were obviously burnt and also we do not see what purpose could have been served by producing clothes which could not have been identified. The fact that the deceased met his death by burning was not even disputed before the trial court and, therefore, the non-production of clothes could not be an adverse circumstance against prosecution, as their production could only show that the deceased met his death by burning and this point was not even in issue before the trial court or even before us. 10. Another reason given by the trial court is that Madanlal. was sleeping and he mould not have seen who set fire to him. It is true that he was sleeping but actually the first burn of the fire would waken the deceased and it was only on seeing Chunnilal that the deceased shouted that Chunnilal. had Set fire to him, and had also sprinkled a glass full of oil on him and, therefore, it cannot be said that Madanlal was not in a position to see the person who had given him the burns. had Set fire to him, and had also sprinkled a glass full of oil on him and, therefore, it cannot be said that Madanlal was not in a position to see the person who had given him the burns. 'It must be appreciated that the whole thing took place in a very short time not even a couple of minutes and it is a pointless exercise to try to split up the incident as separate incidents. The whole thing was really one. When the deceased got up because of fire lie immediately saw Chunnilal and also saw him sprinkling oil, it cannot be said that it was a mere surmise, as the trial court has said. Here was a deceased immediately seeing Chunnilal throwing oil and also causing burns to him. On what reasoning could such direct evidence have been ignored. 11. Counsel had also urged that it was not proved that there was sufficient light by which the deceased could have identified Chunnilal. Apart from the fact that there may have some light due to burning, Chunnilal and the deceased are living in the same house and are known to each other for a very long time and, therefore, there can hardly be any argument that he could not have been able to recognise a person in such close proximity. The deceased was familiar with Chunnilal and could not have mistaken him at such close quarters. 12. Deorao v. The State of Maharashtra (1967 CAR 280) lays down that where different persons are mentioned in dying statement and those mentioned by witnesses it is unsafe to convict on the sole basis of dying statement. State of Punjab v. Sucha Singh & Others (1973 CAR 393) lays down that if two views are possible Supreme Court will not set aside an acquittal recorded by the High Court. Rasheed Beg and others v. State of Madhya Pradesh (1974 CAR 63) only lays down that if there are infirmities in the dying declaration conviction without corroboration would be risky. Balak Ram and Another v. State of U.P. ( AIR 1974 SC 2165 ) lays down that if dying declaration was recorded in the presence of friends and admirers, its evidentiary value is reduced. The propositions are unexceptionable. Each case depends on its own fact and circumstances. Balak Ram and Another v. State of U.P. ( AIR 1974 SC 2165 ) lays down that if dying declaration was recorded in the presence of friends and admirers, its evidentiary value is reduced. The propositions are unexceptionable. Each case depends on its own fact and circumstances. We have already shown that there was no difficulty for the deceased to identify the accused Chunnilal. We have also given reasons as to why in our opinion the dying declarations are consistent and there was no reasonable explanation given by the trial Court on the basis of which it could have ignored the veracity of the dying declarations. We are aware that we are sitting in an appeal against acquittal. We are also aware that normally an acquittal is not to be set aside if there are two views possible and that presumption of innocence is heightened by the acquittal by the trial Court. But as our discussion above shows that the trial Court has, on a complete mis-appreciation of position of law and misreading of documents ignored the dying declaration and thus ignored the most relevant evidence which it was incumbent on him to consider. We are, therefore, left with no alternative and we have no manner of doubt that the case against Chunnilal has been proved beyond reasonable doubt. No doubt, Chunnilal and others had given vague suggestions that the deceased was addict to drinking and that he was involved in a case under Section 107 Cr. P. C. and may have committed suicide. These were wild suggestions for which there were no material on record. His brother PW 6 has denied that the deceased was even addicted to drink . As a result we find ourselves unable to uphold the acquittal of Chunnilal. We would, therefore, reverse the judgement of the trial Court so far as acquittal of Chunnilal is concerned and find that the charge under Section 302, IPC is proved against him and we, therefore, convict respondent Chunnilal under section 302, IPC. 13. We have after so holding heard the learned counsel for the respondents as to the quantum of sentence. Considering that the incident is of 1971 and that he was acquitted by the trial Court and we are reversing the acquittal, we are not inclined to impose the extreme penalty of death. We would, therefore, sentence the respondent Chunnilal to imprisonment for life. 14. Considering that the incident is of 1971 and that he was acquitted by the trial Court and we are reversing the acquittal, we are not inclined to impose the extreme penalty of death. We would, therefore, sentence the respondent Chunnilal to imprisonment for life. 14. As regards the wife of Chunnilal, Smt. Nihaldevi, no doubt in the dying declaration she has also been named as a person who had brought glass full of oil which Chunnilal had taken and sprinkled on the deceased. We. however, find that all the witnesses who are said to have gone to the deceased on hearing the noise. Though they say that the deceased was shouting the name of Chunnilal on having learnt him, they do not say that the deceased had mentioned the name of Mst. Nihaldevi. Thus PW 1 does not name her as a person who was being mentioned by the deceased as having set fire to him. Similarly, PW 4 Smt. Rampyari does not name Smt. Nihaldevi. PW/6 Kishanlal also does not name Mst. Nihaldevi as having been mentioned by the deceased. This lack of corroboration of the mention of the name of respondent Smt. Nihaldevi by the witnesses though does not make the dying declaration false or unreliable, yet makes the setting aside of acquittal unsafe. Counsel for the respondents had vehemently urged that if the dying declaration is to be believed the part attributed to Mst. Nihaldevi of bringing a glass full of oil which was sprinkled by Chunnilal on the deceased must also be believed, and if Chunnilal is to be convicted on its basis, she also should be convicted along with him, or both should be acquitted. We cannot agree. It is correct that the dying declaration as such does suggest that a glass full of oil was brought by Chunnilal's wife, but the dying declaration itself shows that sprinkling was done by Chunnilal. This may show the presence of Smt. Nihaldevi on the spot, but unless some over tact: was also found to have been committed by her and also deposed to by the eye-witnesses, we feel that it is not a case in which acquittal of her by the trial Court can be set aside. This may show the presence of Smt. Nihaldevi on the spot, but unless some over tact: was also found to have been committed by her and also deposed to by the eye-witnesses, we feel that it is not a case in which acquittal of her by the trial Court can be set aside. It is not the law that because we feel that the implication of Nihaldevi in dying statement, as it is not corroborated by oral evidence, is not sufficient to set aside her acquittal, it amounts to making the dying statements unreliable. It only means that we want more reassurance before her acquittal can be set aside. That reassurance is available in the case of Chunnilal and that is why we have not upheld his acquittal. As a result we are in agreement with, the trial Court so far as acquittal of Smt. Nihaldevi is concerned and the appeal against her is, therefore, dismissed. 15. In the result, the appeal is allowed in part. The acquittal of Chunnilal respondent by the trial Court is set aside and he is convicted for offence under Section 302, IPC and is sentenced to imprisonment for life. The appeal against respondent Smt. Nihaldevi is dismissed. 16. The Chief Judicial Magistrate, Jaipur City is directed to cause the attendance of respondent Chunnilal and send him to jail to serve out the imprisonment awarded to him; *******