By the Court- Death Reference No.9 of 1987 made by the learned XIIIth Additional Sessions Judge, Patna, for conformation of sentence death imposed upon Sardar Swaroop Singh, the condemned prisoner, by judgment and order dated 11-9-1987 passed in Session Trial No.382 of 1986 and Criminal Appeal No.484 of 1987 filed by the aforesaid condemned prisoner against the judgment and orders of sentence passed by the trial court have been heard together and they are being disposed of by this judgment. Hence for the condemned prisoner shall be referred to as the appellant. The appellant has been convicted under section 302 of the Indian Penal Code and has been sentenced to death. 2. The relevant facts leading to the case are that according to the case of the prosecution deceased, Sharda Devi, had a house known as Sharda Bhawan is Mohalla Khan Mirza under sultanganj Police Station in which appellants was residing as a tenant besides other tenants. The appellant was then working as Nayak Subedar A/C J C 128988, NCC 1st Battalion, Patna. The other tenants were also residing in different rooms in the said house. Deceased, Sharda Devi was residing in the same room in which this appellant was living. On 30-7-1985 at about 3 p.m. the attention of the neighbours, some of whom are witnesses, was drawn to the rising smoke on the 1st floor of the said building. P.W.1 (Sarwari) P.W.2 (Md. Rajjan), P.W.4 (Md. Sami) and other rushed to the 1st floor and founds a stove in flames and Sharda Devi burnt. . 3. P.W.10 (Sarvendra Nath Tripathi) S.I. of Police, Sultanganj Police Station on the same day on 30-7-1985 at 4 p.m. heard some rumour that in Mohalla Khan Mirza the Sardar tenants were burning and assaulting the house lady. On the basis of this information he get Station Diary Entry No.677 dated 30-7-1985 recorded at 4 p.m. by Mokhtar Shukla, a literate constable. Station Diary Entry Nos. 677 to 682 have been marked as Exts 3 to 3/5. After receiving the aforesaid information P.W.10, Sarvendra Nath Tripathi, S.I. of Police, went to Sharda Bhawan situated in Mohalla Khan Mirza and found burn injuries on Shards Devi who was near the entrance door of the Sharda Bhawan in restless condition. People of the mohalla were also collected nearby. He (P.W. 10) also went upstairs and after going to the Ist floor he saw the accused. People of the mohalla were also collected nearby. He (P.W. 10) also went upstairs and after going to the Ist floor he saw the accused. Sardar Swaroop Singh, in burnt and drunken condition. He was not speaking. In the meantime the Officer Incharge, Gulshan Kumar, S.I. Dadan Singh alongwith a constable also reached there P.W.10 who is the Investigating Officer also of the case, took Sharda Devi after directing the S.I. Dadan Singh to bring Sardar Swaroop Singh the appellant, to the hospital. She was taken to Emergency section of the Patna Medical College and Hospital where the reached at 5.30 p.m. and was attended any P.W.9, Dr. Birendra Kumar Sinha who was officer on duty in the emergency ward at that time. 4. The Fardbeyan (Ext.4) was recorded by P.W.10 Sarvendra Nath Tripathi, who was then posted as sub-Inspector of police at Sultanganj Police station on 30-7-1985 at 5.45 p.m. on the statement of Sharda Devi (deceased) of Mohalla Khan Mirrza, P.S. Sultanganj, in District-Patna, in Emergency Ward of patna Medical College and Hospital. The allegations as contained in the aforesaid Fardbeyan are that the deceased had one more house in village-Janipur under Phulwari Police Station She had gone there. Her daughter Krishna was in the house at Mohalla Khan Mirza with his son, Sadan Sing. Yesterday, i.e. a date prior to the date of recording of the Fard beyan at 12 noon she returned from her house at Janipur. On return she learnt about the illicit connection of her daughter Krishna with a tenant Sardar Swaroop Singh (appellant) of her house. Her daughter used to sleep and sit with the appellant and used to take meal with him. Besides Sardar Swaroop Singh, there were other sardar tenants in the 1st floor of her house. On the date of occurrence i.e. 30-7-1985 at 3 p.m. when she (deceased) went to the 1st floor to persuade her daughter and Sardar Swaroop Singh she saw her daughter and Sardar Swaroop in objectionable compromising position. Seeing this she scolded and when she wanted to persuade them her daughter Krishna asked Sardar Swaroop Singh (appellant) to finish her (deceased) and went outside after partly shutting the door. Thereafter Sardar Swaroop Singh closed the door and said that he would cut her (deceased) and began to sprinkle liquid substance on her body. Seeing this she scolded and when she wanted to persuade them her daughter Krishna asked Sardar Swaroop Singh (appellant) to finish her (deceased) and went outside after partly shutting the door. Thereafter Sardar Swaroop Singh closed the door and said that he would cut her (deceased) and began to sprinkle liquid substance on her body. She (deceased) wanted to come out but the appellant did not allow her to do so and he burnt match stick and set fire to her body. The clothes of her body started burning and simultaneously she was also put to flames. She wanted to run wanted to run away after opening the door crying out but Sardar Swaroop Singh caught hold of her and threw her on the ground, At last after some time on her cry when people of mohalla collected she came down stairs any how. Her daughter had run away with her son from there. Her daughter with lover Sardar Swaroop singh had burnt her with the intention to kill. It has further been stated in the Fardbeyan that she got the statement read over and explained in presence of the witnesses and she found it correct. The L.T.I. of the deceased on the Fardbeyan was attested by P.W.9 Dr. Birendra Kuamr Sinha. On that very day the appellant was also brought to the hospital and was admitted. The endorsement of the attestation has been marked as Ext. 2. Although this Doctor, P.W.9 has not stated in his evidence in court about the injuries found by him on the person of the deceased lady but he has deposed regarding the injuries of the appellant. They were as follows : He had superficial burn 15% It was distributed as the following. 1. Right upper arm-3% 2. Left upper arm-3% 3. Fingers of both the hands 3% total 4. Upper part of the back left side 3R 5. Upper part of the back right side 3R hairs of the chest were burnt. Identifies the accused as Sardar Swaroop Singh. Nature of injuries was simple caused by dry flame. The injury report of the appellant has been marked as Ext 8 P.W.10, the investigating Officer in the hospital arrested the appellant and deputed constable to guard him. Upper part of the back right side 3R hairs of the chest were burnt. Identifies the accused as Sardar Swaroop Singh. Nature of injuries was simple caused by dry flame. The injury report of the appellant has been marked as Ext 8 P.W.10, the investigating Officer in the hospital arrested the appellant and deputed constable to guard him. The aforesaid fardbeyan was forwarded to the Officer Incharge, Sultanganj Police Station for institution of case and subsequently formal F.I.R, (Ext.5) was drawn up at the Sultanganj Police Station and the case under sections 307, 324 and 497 of the Indian Panel Code was registered. 5. P.W. 10 also took down subsequent statement of Sharda Devi which is recoded in paragraph-11 of the case diary and has been marked as Ext 6 Then he (P.W.10) went to Sharda Bhawan and inspected the place of occurrence Sharda Bhawan was brick built two storyed building. There were two rooms towards the north in the ground floor of it. There was a rasta in between there two rooms through the entrance door. There was one more rooms which faces east and other room was facing towards were. Thus two rooms were separate from the former two rooms. The tenants were military personnel residing in the east and west facing rooms. Students resided in the north facing former two rooms. There was another room and contiguous east of the 5th room there was latrine and bath rooms. By the side of the latrine there was stair case for going upstairs. On the 1st floor in the north facing room from the south a military man was residing. After that on the north there was one east facing rooms in the west in which a chauki was fond. P.W.10 also found toshak, pillow and mosquito not spread over this chauki. He found a toshak with cover a bit burnt at one place. He also found one tope of blue mosquito not also burnt. Uniform etc. of the appellant, wine bottle, house hold articles and other articles meant for the female use, pass book in the name of the deceased Sharda Devi were found in the room. A cheque book was also found in which the name of the deceased Sharda Devi was written. The investigating Officer seized these articles in presence of the witnesses and prepared seizure list. Ext. A cheque book was also found in which the name of the deceased Sharda Devi was written. The investigating Officer seized these articles in presence of the witnesses and prepared seizure list. Ext. 7 There was Verardah in front of the room. He found one brass store adjacent north of that room. He also found floor weighing k.g. soaked with water in aliuminium thali, tawa, wooden chouki, beina, and cooked in vegetable, saucepan by the side of the store. After that verandah there was west facing room. He found chouki in that room also. That room was occupied by another military named Dilbagh Singh whose name was written on the box kept in the room. He found burnt spot near the northern and of the western wall of this room, some pieces of burnt sari on the floor. One white military towel by its side and one bed sheet of cheque design. He found also one burnt calendar on the wall. One N.C.C. chair the plastic knitting of which, was burnt was also found and by the side of it seromobil tin containing about two litres. Kerosene oil and water kept in the bucket were also found. There were other rooms which were locked. The Investigating Officer seized the articles kept in the room of Dilbag Singh. The seizure list with respect to that has been marked as Ext. 7/1 Accordingly, the Investigating Officer (P.W. 10) also seized the store etc. and the seizure list with respect to those articles has been marked as Ext.7/2. he examined witnesses, namely Sarwasi khatoon (P.W.1) Md. Rajjan (P.W. 2) and others. It appears that P.W.10 thereafter again returned back to the hospital and took the statement of the appellant. 6. It further appears that Sharda Devi died in the Patna Medical College and Hospital in the night been 30th and 31st July. 1985 Inquest was hold over her dead body by a Police Officer of Pirbahore Police Station. Carbon copy of the inquest report has been marked as Ext. 8, Inquest report was usually forwarded to the Sultanganj Police Station who had jurisdiction over the P.O. It further appears that P.W. 6, R.K. Pd. 1985 Inquest was hold over her dead body by a Police Officer of Pirbahore Police Station. Carbon copy of the inquest report has been marked as Ext. 8, Inquest report was usually forwarded to the Sultanganj Police Station who had jurisdiction over the P.O. It further appears that P.W. 6, R.K. Pd. Singh, who was posted as Asistant Professor, forensic Medicine Department of Patna Medical College and Hospital held post mortem examination on the dead body of Sharda Devi on 31st July 1985 which was of a female aged about 45 years and found the following injuries : 1, Derms epidermal burn with line of redness present at most of the place and antenorten blister were found on the face involving the following regions over the body. (a) Scalp hair partly burnt (b) Face (c) Neck (d) Chest (e) Abdomen (f) Fudenda (Genetal organs) (g) Back of chest and abdomen (h) Both superior extremities and (i) both anterior extremities (thigh to leg except soles). II. The left ankle was found bandaged. On removal it was found surgically cut wound stitched half inch in length on medical aspect of the left lowest part of the leg. Surgically cutting done for intraveness infusion of fluid. Time since death within 36 hours Death was due to burn injury The post mortem examination report has been marked as Ext.1 The information regarding the death of Sharda Devi was sent by Pirbahore Police Station to Sultanganj Police Station alongwith the copy on inquest report. After completing the investigation P.W.10, S.I. of police, submitted the charge sheet against the appellant. After cognizance and commitment the appellant was put on trial. 7. In the trial court the accused was charged under section 302 of the Indian Penal Code for having committed murder of Sharda Devi by intentionally and knowingly causing her death. The appellant, however, pleaded not guilty to the charge. 8. in order to support its case the prosecution produced 10 witnesses out of whom P.W. 8 (Md. Mustaque), P.W.4 (Md. sami) and P.W. 5 (Md. Nesan Khan) were tendered and rest were tendered and rest were examined. P.W.7 is Dadan Singh, a Police Officer who had taken Sardar Swaroop Singh, appellant, from the place of occurrence to Patna Medical college and Hospital. P.Ws. Mustaque), P.W.4 (Md. sami) and P.W. 5 (Md. Nesan Khan) were tendered and rest were tendered and rest were examined. P.W.7 is Dadan Singh, a Police Officer who had taken Sardar Swaroop Singh, appellant, from the place of occurrence to Patna Medical college and Hospital. P.Ws. 1 and 2 are the neighbours of the deceased and the appellant who had come to the P.O. soon after the occurrence after hearing the halla. A reference has already been made with the respect to other witnesses. The appellant was examined under section 318 of the Code of Criminal Procedure. However, no witness on his behalf has been examined. The case of the defence as appears from the different suggestions given to the witnesses appears to be that the appellant was innocent and he had not committed the crime in question as alleged. It, however, appears to be the case of the defence witnesses that Sardar Swaroop Singh at the time of occurrence was at the tea shop and had come in the place of occurrence after Sharda Devi had already got burnt as a result of accidental fire due to the burning of the above. Further that the S.I. of Police, S.N. Tripathi, had illicit connection with the deceased and she was a corrupt lady and the S.I. of police, P.W.10 maneuvered the dying declaration of Sharda Devi and falsely implicated the appellant. 9. The learned trial court at the conclusion of the trial rejected the defence plea and relying on the Fard-beyan (Ext 4) which has subsequently been treated as the dying declaration of the deceased held that the appellant had committed the offence as alleged by the prosecution and the learned trial court, accordingly, convicted the appellant, acting on the basis of the statement contained in the dying declaration i.e. the fard beyan, as stated in the very outset. 10. The learned counsel appearing for the appellant who has appeared in the death reference as well as in the appeal on behalf of the condemned prisoner, the appellant has submitted that the conclusion and the findings of the learned trial court is absolutely unjustified improper since it is not based on proper appreciation of evidence. 10. The learned counsel appearing for the appellant who has appeared in the death reference as well as in the appeal on behalf of the condemned prisoner, the appellant has submitted that the conclusion and the findings of the learned trial court is absolutely unjustified improper since it is not based on proper appreciation of evidence. Obviously, the finding of the trial court holding the appellant guilty under section 302 of the Indian penal Code is solely based on the dying declaration (Ext 4) which was initially recorded as Fard-beyan of the deceased lady-It can be safely stated that except the aforesaid dying declaration there is absolutely no evidence on the record to fasten the guilt upon the appellant. 11. The learned trial court for coming to the conclusion that the dying declaration is the correct and truthful version of the statement made by the deceased lady has placed much reliance on the evidence of P.W.9 which on proper scrutiny does not appear to be quite justified. The aforesaid dying declaration which is the basis of conviction suffers from several infirmities. First of all it is to be seen whether the deceased lady at the time when she is said to have made the statement contained in the Fard beyan i.e. dying declaration (Ext.4) was in a fit state of mind and body to make the aforesaid statement. For this purpose we can refer to the medical evidence. From the evidence of P.W. 6 who held the post mortem examination on the dead body of Sharda Devi which has already been stated it would appear that in cross examination he has stated that the burn injuries on the person of the deceased were about 90%. The Doctor has further stated in the cross-examination that 20% burn injury is sufficient to cause shock and more than 50% burn is sufficient to cause death. So, in view of the evidence of this doctor it is obvious that the must be at the verge of her after receiving injury as stated by the doctor. From the evidence of the two doctors P.W. 9 who attended her at the earliest opportunity and the doctor P.W. 6 who held post mortem examination it will be clear that almost the whole body of the lady except the sole was burnt. From the evidence of the two doctors P.W. 9 who attended her at the earliest opportunity and the doctor P.W. 6 who held post mortem examination it will be clear that almost the whole body of the lady except the sole was burnt. From the treatment chart which has been brought on the record by the defence and has been marked as Ext. A and is under the signature of P.W. 9, it appears that on examination he found that degree of burn was 100% Patient’s condition was poor. She was pulseless and blood pressure was unrecordable and condition delirious. So form this finding one can easily come to the conclusion that the lady was neither in a fit stage of body or mind to make coherent statement but from the reading of the Fard Beyan which is in a great detail it appears that complete narration of the events have been stated by the informant which does not appear probable in face of the injuries sustained by her. In the Fard Beyan the deceased lady had given all the details including the date, time, place where it was being recorded, details regarding her house at Phulwari and other thing which is not expected from a person who had received injuries as found by the doctor. Besides, the aforesaid dying declaration has to be locked with great suspicion since there is nothing to indicate its authenticity except the same was recorded by the Officer Incharge of the Police Station against whom the defence has alleged that he himself was entangled with the deceased lady. The conduct of the Investigation Officer i.e. P.W. 10 who has recorded this Fard beyan also does not appear to the above board. After looking to the condition of the deceased who was then alive in ordinary course it was expected that first of all he would have taken steps for getting the dying declaration recorded by a Magistrate, if the condition of the lady was as serious that P.W. 10 did not consider it proper to wait for the Magistrate. Several doctors were there including P.W. 9 in the Patna Medical Collage and Hospital. The value which is attached with the dying declaration is expected to be known to the Investigating Officer. Several doctors were there including P.W. 9 in the Patna Medical Collage and Hospital. The value which is attached with the dying declaration is expected to be known to the Investigating Officer. In that circumstance at least the Investigating Officer, i.e. P.W.10 could have get the statement of the deceased lady recorded by the doctor But instead from the evidence of P.W.10 as well P.W.9 it would appear that P.W.10 simply got the L.T.T. of Sharda Devi attached by the doctor B.K. Sinha who was attending her. P.W.9, Dr. B.K. Sinha, has categorically stated in the evidence that the deceased lady has not made statement in his presence. In his presence only thumb impression was taken. The learned counsel appearing for the state in this connection has referred to the evidence of P.W.9 where he ahs stated that the deceased lady who was then alive was making some statement but, in out view, that evidence of the doctor will not improver the case and add to the value of the dying declaration in view of the fact that the same does not indicate that the statement which the lady had made had been truthfully and correctly recorded by P.W.10 in Ext.4 Except the endorsement of the doctor with respect to the attestation of the left thumb impression of the deceased on Ext.4 there is none also to support the statement as contained in the Fard-beyan which has been used as dying declaration (Ext.4) that this document contained the true version of the statement made by the lady. There was no death of witnesses in the hospital and the Investigating Officer, P.W.10 should have been wise enough to get the statement of the lady recorded in presence of some witnesses which he has failed to do so for the reasons best known to him. P.W.10 has no where stated has as to why he did not try to have the witnesses to the recording of the dying declaration. 12. Apart from the circumstances mentioned above there are other circumstances which make the allegations in the dying declaration suspicious. The major parts of the story as disclosed in the dying declaration has been found not to be correct by the Investigating Officer himself. 12. Apart from the circumstances mentioned above there are other circumstances which make the allegations in the dying declaration suspicious. The major parts of the story as disclosed in the dying declaration has been found not to be correct by the Investigating Officer himself. We so say because from the dying declaration it would appear that Sharda Devi the deceased when went upstairs to persuade her daughter, Krishna and this appellant not to indulge themselves in a nefarious activities, she was burnt by the appellant But surprisingly enough neither any other witness examined on behalf of the prosecution nor P.W.10 the Investigating Officer him self done about the presence of Krishna the daughter of the deceased lady. From the reading of the whole evidence, the story that Krishna was living with Sardar Swaroop Singh i.e. the appellant appears to be absolutely false. The conduct of the Investigating Officer appears to be suspicious from this fact also that although in the Fard beyan the name of Krishna and role played by her indicates that she was also a participant in the commission of the crime in the manner that she had instigated the appellant to kill the deceased but she has not been named in the formal F.I.R. i.e. Ext.5 as an accused. On the other hand from the evidence of P.Ws. 1, 2 and other witnesses it will appear that Krishna was not living there but she was living in her sasural Thus, the very genesis of the occurrence and disclosed in the dying declaration i.e. the Fardbeyan stands falsi fied. On the other hand it has come in evidence that P.W.1 who has neither been declared hostile by the prosecution nor has been challenged by the prosecution has stated that Sharda Devi, the deceased and the appellant were residing in the same room. According to the dying declaration i.e. the Fardbeyan some liquid was sprinkled over the body of the deceased. i.e., Sharda Devi and thereafter appellant had not body but P.W.10 the Investigating Officer, while inspecting the place of occurrence did not find any inflammable fluid spread over the ground or the smell of the same Almost all the neighours who have been produced in court, i.e., P.Ws. 1 to 5 they have stated that Sharda Devi got burnt due to the bursting of the stove. 1 to 5 they have stated that Sharda Devi got burnt due to the bursting of the stove. P.W.1 has stated in her evidence that her house was just in front of the house of Sharda Devi. She saw some smoke coming out from the house of the deceased and also some crying sound. She went over the roof of the deceased and saw the stove was burning in flame and Sharda Devi also burnt. She asked from the deceased lady who was then alive that how did she get burnt whereupon she replied that she caught fire. So from the evidence of P.W.1 it will appear that it was a case of accidental fire in which deceased lady got burnt. Likewise, P.W.2 who has been declared hostile has also practically rejected repeated the same story as narrated by P.W.1 and has categorically stated that Sharda Devi got burn injury from the stove. It also appears from the evidence of P.W.2 that at the time of occurrence the appellant was at tea stall and after hearing halla he ran to the place of occurrence and while trying to extinguish the fire which was burning in order to save the deceased the appellant also to burn injury. It has also come in evidence that this Sharda Devi was living alongwith the appellant and was a corrupt lady was addicted to wine etc. Regarding P.W.10 some witnesses have stated that he used to visit the place of Sharda Devi and P.W.4 has stated that Daroga ji used to visit the place of Sharda Devi and used to drink wine. He has a tempo and had taken Sardar Swaroop Singh i.e. the appellant from the place of occurrence to the hostile before. He has further stated that Sardar Swaroop Singh had brought the deceased lady in burnt condition from upstairs Ist floor to ground floor and placed her in the tempo and took her to the hospital. From the evidence of P.W.4 it also appears that Sardarji also got burn injury while he was trying to extinguish the fire from which the deceased lady was burning and this appears also quite natural in view of the prosecution evidence that Sardar Devi the deceased lady was living in the same room with the appellant and having illicit connection amongst themselves. Thus naturally the appellant would have tried to save the deceased lady. Thus naturally the appellant would have tried to save the deceased lady. Hence the presence of burn injury on the person of the appellant can not be a circumstance against him. Apart from the evidence referred to above the evidence of P.W.10, the Investigation Officer, it also appears that when he visited the place of occurrence, he found stove, flour soaked with water in alluminium pot, cooked vegetable etc. which indicates that food were being prepared and this supports the defence version of the occurrence. Thus, from the above discussion of evidence it is obvious that there is absolutely no evidence on the record with respect to the occurrence except the statement of Sharda Devi alleged to have been made in the Fardbeyan. On the contrary there is evidence on record which can also be treated as dying declaration which has come in evidence through the mouth of P.W.1 that she was burnt due to fire and this statement was made before P.W.1 at the earlier opportunity. To this is the earlier version of the occurrence and the manner as to how the deceased got burnt injury. If really she was in apposition to make statement and the allegation against the appellant which has been leveled in the Fardbeyan would have disclosed the same before P.W.1 at the earliest opportunity. The finding of the Investigating Officer also does not support the prosecution version of the occurrence. On the other hand it supports the defence case. So, in view of the fact that the material parts of he so called dying declaration having been not found correct it will not be safe to base the conviction of the appellant solely on Ext. 4, the dying declaration, of the deceased i.e. Sharda Devi. For the reason stated above we are unable to upheld the judgment, orders of conviction and sentence Passed by learned trial court. 13. In the result the reference made by the learned trial court for confirmation of death sentence imposed by it against the appellant is hereby rejected and the appeal is allowed. The judgment, orders of conviction and sentence are hereby set aside. The appellant is acquitted of the charge leveled against him. The appellant shall be set at liberty forthwith if not wanted in any other case. Reference rejected- Appeal allowed.