JUDGMENT S. K. Dubey, J.- 1. This judgment snail also govern disposal of Criminal Appeal No. 152/1985 (Halki bai alias Hakkobai v. State of M.P.) and Cr. Appeal No. 173/1985 (Nallu v. State of Madhya Pradesh). 2. All the three appellant, aggrieved of their conviction and sentence under section 302/34, Indian Penal Code, passed in Sessions Trial Nos. 70 of 1984 and 107/1984. by the Sessions Judge, Guna., on 30-7-1985, who sentenced them for imprisonment for life foe committing the murder of Vijayram, have preferred these appeals. 3. The prosecution case, in brief, is that on 10-12-1983 between 10 and 11 p.m., in village Nasirpur, the deceased Vijayram was sleeping in his house, coffered by a quilt. The three appellants, acquitted accused, Gangaram and one Jwala, a juvenile, came to the house of Vijayram in furtherance of their common intention to kill Vijayram. Appellant Kallu put his legs on the neck of Vijayram, appellant Ram Bai caught hold of his legs and appellant Halkibai alias Hakkobai, after pouring kerosene oil on the body of Vijayram, set him on fire. Upon this, Vijayram cried for help. Nathuram(PW.4) younger brother of the deceased and Rajaram (PW.7) son of Nathuram reached the house. There they saw all the accused persons fleeing from the house of Vijayram. The body of Vijayram was completely burnt above the knee. On the next day morning, 11-12-1983, Vijayram was taken in a bullock• cart to police outpost Ukavad, where deceased Vijayram lodged a report (Ext. p-7) while lying in tile bullock-cart. An offence under section 307/34, IPC was registered at Crime No. 041/83. After the report, Munshi Singh (PW.3), Assistant Sub-Inspector of Police, outpost, Ukavad, recorded the statement (Ext. P-8) of complainant Vijayram in the shape of dying declaration. Vijayram was taken with this report to police station, Jamner, which was having territorial jurisdiction for taking cognizance of the offence. There also. a first information report (Ext P-19) Was recorded, and a case under section 307/34, IPC, at crime No. 189/83 was registered against all the accused persons. Vijayram was sent for medical examination. Dr. S.K. Jain (PW.1) examined injuries of Vijayram at 2.00p.m. on 11-2-1983 and found 8 burn injuries on the body of Vijayram. Burnt blisters were found to be ruptured. The injury report is Ext. P-1•A. In the evening at about 5 p.m. Vijayram died. Vijayram was sent for medical examination. Dr. S.K. Jain (PW.1) examined injuries of Vijayram at 2.00p.m. on 11-2-1983 and found 8 burn injuries on the body of Vijayram. Burnt blisters were found to be ruptured. The injury report is Ext. P-1•A. In the evening at about 5 p.m. Vijayram died. In between this, the concerning Police Station requested Tahsildar Makusudanghah to record the dying declaration of Vijayram. Bhagirath Jatav(PW.11)Naib Tahsildar of Maksudangarh, district Guna, after verifying from Dr. S.K. Jain (PW. 1) about the state of health and the condition of Vijayram, recorded dying declaration (Ext. p.2). It would be worthwhile to mention here that Ext. p-2, so recorded, is not in the form of questions and answers, but it is a statement of deceased Vijayram. Autopsy on the dead body of the vijayram was performed by Dr. S. K. Jain (PW.1), the post-mortem report is Ext. p-6. The Docter found that the body above knee was completely burnt and there were 60% burns. After completing the investigation, the 'challan' was filed against the appellants and acquitted accused Ganga ram and Jwala, who was tried in Juvenile Court. 4. It is not in dispute that Halkibai alias Hakkobai, who was a married woman, was kept as a concubine by deceased Vijayram. Kalla and Jwala are the sons of Halkibai from her first husband Kashiram. Both these sons were also staying with Halkibai in the house of Vijayram. Rambai is the mother of Halklbai. Nathuram (PW. 1) and Rajaram (PW 7) were not residing with Vijayram in the village, but they were residing separately in the same village. 5. The prosecution in its case alleged that Halkibai used to demand from Vijayram half share in the property of deceased Vijayram and for this a panchayat was also held, but no share was given to her in the landed property, which included agricultural lands and a house. Therefore, Halkibai, her two sons and Rambai started living separately about 11/2 years back from the date of occurrence. All the accused persons were not residing with the deceased at the time of occurrence. 6. The defence of the accused persons was that they have been falsely implicated because of party faction and election of panchayat in the village wherein sabusingh (PW 10) lost. 7. The prosecution to prove its case led oral and documentary evidence. All the accused persons were not residing with the deceased at the time of occurrence. 6. The defence of the accused persons was that they have been falsely implicated because of party faction and election of panchayat in the village wherein sabusingh (PW 10) lost. 7. The prosecution to prove its case led oral and documentary evidence. Tae accused persons also examined two witnesses in their defence. At the trial, Nathuram (PW 4) and Rajaram (PW7) did not support the prosecution case. Ramesh (PW 6) was disbelieved by the trial Court. The trial Court also did not place any reliance on the dying declaration (Ext. p-7), recorded by Munshi Singh (PW 3), Assistant Sub-Inspector of Police, Police outpost, Ukavad. The trial Court, after placing reliance on the dying declaration(Ext. p-2) and also on the burnt articles seized by the investigating officer, convicted the appellants and sentenced them, as stated in para 2 above, but it acquitted accused Gangaram holding that he was not present nor was involved in the crime in question. 8. Smt. Kusum Sharma, learned counsel for the appellants, contended before us that the dying declaration (Ext.p-2) cannot be made basis for sustaining the conviction, as from the medical evidence and also from the evidence of Bhagirath Jatav (PW 11), it is evident that the burn injuries were of third degree and there were 60% burns, mouth was in a precarious condition the general condition was not good, therefore, the deceased was not capable of giving any statement or declaration. Moreover, the dying declaration was not recorded at the earliest opportunity and the circumstances show that there was enough opportunity for the maker of the dying declaration to be tutored. It was also contended that it has come in the evidence that Nathuram (PW 4) remained with the deceased right from the time of lodging of the first information report till the dying declaration was recorded. Therefore, no reliance can be placed on such a dying declaration learned counsel also contended that dying declaration was not recorded in the form of the questions and answers hence, it deserves to be discarded. Smt. Kusum Sharma placed reliance on a recent Division Bench decision of this Court in Barda and another v. State of M.P. 1989 Cr. Therefore, no reliance can be placed on such a dying declaration learned counsel also contended that dying declaration was not recorded in the form of the questions and answers hence, it deserves to be discarded. Smt. Kusum Sharma placed reliance on a recent Division Bench decision of this Court in Barda and another v. State of M.P. 1989 Cr. LJ 1058, and two decisions of the Apex Court in State (Delhi Administration) v. Laxman Kumar AIR 1986 SC 250 , and Balak Ram v. State of U.P. AIR 1974 SC 2165 . Learned counsel also contended that Dr. S.K. Jain (PW 1) has admitted that smell of alcohol was coming from the body of the deceased and it has also come in the evidence that where the deceased was sleeping a chimney was burning, and it is likely that the deceased caught fire from the chimney while he was sleeping and he was drunk. Learned counsel also took us through the evidence of defence to show that the appellants have been implicated because of election rivalry and also because the appellants may not get any share in the property of the deceased. On the other hand, Shri Govind Singh, learned Government Advocate for the State, supported the conviction. Learned counsel submitted that the deceased was capable of giving his declaration and that the declaration so recorded by the Naib-Tahsildar is a valid one, it does not suffer from any infirmity and the same has been rightly relied on by the trial Court, after giving reasons, for convicting the appellants. Shri Govind Singh placed reliance on 3 decisions of the Apex Court in State of U.P. v. Ramsagar Yadav AIR 1985 SC 416 . Thurukanni Pompioh v. State of Mysore AIR 1965 SC 639 . and Khushal Rao v. State of Bombay AIR 1988 SC 22. 9. It is, no doubt, true that the conviction is based only on the dying declaration. Therefore, we have to judge, in the facts of the case, whether the dying declaration so recorded can be placed reliance for sustaining the conviction or not, and if not whether there is any other corroborating evidence to sustain the conviction. 9. It is, no doubt, true that the conviction is based only on the dying declaration. Therefore, we have to judge, in the facts of the case, whether the dying declaration so recorded can be placed reliance for sustaining the conviction or not, and if not whether there is any other corroborating evidence to sustain the conviction. In respect of dying declaration, the law is well settled that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court bas come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. The necessity of corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities. (See Khushal Rao's case) Ramsagar Yadav's case (supra) and K. R. Reddy v. Public Prosecutor AIR 1976 SC 1994 . 10. When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it. Hence, it is to be found out also that the declaration while making the declaration was in B fit state of mind and body and was capable of making the declaration relating to the circumstances which resulted in his death. (See Darshan Singh v. State of Punjab AIR 1983 SC 554 ; Laxman Kumar's case and Barda's case (supra). Hence, it is to be found out also that the declaration while making the declaration was in B fit state of mind and body and was capable of making the declaration relating to the circumstances which resulted in his death. (See Darshan Singh v. State of Punjab AIR 1983 SC 554 ; Laxman Kumar's case and Barda's case (supra). It is also settled that a dying declaration, recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than the dying declaration. recorded in any other manner. (See K. Ramachandra Reddy's case (supra) and Rabi Chandra v. Slate of Orissa AIR 1980 SC 1738 . 11. Keeping in view the above principles, we have closely scrutinised the dying declaration (Ext. P-2) and we are of opinion that it cannot be placed reliance for sustaining the conviction and sentence passed by the trial Court. A bare look at Ext. P-2 shows that it is a statement of the deceased recorded at about 2 p. m. on 11-12-1983. It is like a statement recorded wherein the prosecution case has been stated. Unfortunately, the dying declaration is not in question and answer form, and a bare look at it also shows that there was no proper questioning to elicit full inform on Besides the above infirmity, though Dr. S. k. Jain (PW 1) has stated that the deceased was conscious and was in a position to give statement, from the post-mortem report it is seen that the body above was completely burnt, the mouth was completely burnt and there were 60% burn injuries. Dr. S. K. Jain (PW 1) in para 9 of his statement before 'the -Court has admitted that he was not in a position to find out radial brachial and tibial nerves so as to record blood pressure. The general condition of the deceased was not good. The post-mortem report (Ext. Petitioner-6) shows that burns were present in the mouth and there were two ruptured blisters on the left and right maxilla; one blister on forehead above lateral angle of left eye and one ruptured blister on tip of nose. There was blackening of skin of anterior surface of neck due to burn. The post-mortem report (Ext. Petitioner-6) shows that burns were present in the mouth and there were two ruptured blisters on the left and right maxilla; one blister on forehead above lateral angle of left eye and one ruptured blister on tip of nose. There was blackening of skin of anterior surface of neck due to burn. The whole of chest and abdomen was burnt with multiple ruptured blisters extending from anterior surface of both shoulders up to the level of pubic symphysis below. Left and right upper limbs were also burnt having ruptured blisters. Right lower limb and left lower limb were also burnt up to the surface in middle 1/3rd of calf. It has also come in evidence that the first information report at Police Outpost, Ukavad, was recorded by Munshi Singh (PW 3), Assistant Sub-Inspector of Police, while the deceased remained lying in the bullock-cart. Looking to the burn injuries and ruptured blisters on the face, on chest and abdomen, in the mouth and other parts of the body, in our opinion the deceased who was suffering from the burn injuries for more than 16 hours, was not in a position to move and speak. He died about 2-1/2 hours after giving his so-called declaration (Ext. p-2), and was not physically fit for giving any dying declaration. The trial Court has not carefully examined this aspect to dispel all doubts of the same being concocted. The trial Court merely placed reliance on the statement of Dr. S. K. Jain (PW 1), but it has not referred to the injuries on the body of the deceased, which he suffered. From the medical evidence itself, it is evident that the victim was in a precarious critical condition while making the statement. Therefore, the declaration so recorded, in our opinion, after careful examination, cannot be placed reliance. Even if the finding of the trial Court is accepted that the deceased was in a physically fit condition to speak, the dying declaration cannot be placed reliance for the reason that it was not recorded in the form of questions and answers and that there was possibility of the victim being tutored by Nathuram (PW 4), brother of the deceased. who was present with the deceased right from immediately after the occurrence till the time of recording the dying declaration. 12. who was present with the deceased right from immediately after the occurrence till the time of recording the dying declaration. 12. It is proved from the evidence of the prosecution that right from immediately after the occurrence till the dying declaration was recorded Nathuram (PW 4) remained with the victim throughout. (See the statement of PW 11, para 5). Dr. S.K. Jain (PW 1) was also present at the time of recording the dying declaration. Though the investigating officer took precaution to keep the Doctor present, but as Nathuram (PW 4), younger brother of the deceased, was also present when the declaration was recorded, the possibility of the victim being tutored cannot be ruled out. Such a dying declaration can have hardly any evidentiary value so as to base a conviction on it. (See Balak Ram v. State of U. P. AIR 1974 SC 2165 . Therefore, though a dying declaration without corroboration can be made basis for conviction, in the facts and circumstances of the case, in our opinion, the dying declaration (Ext. Petitioner-2) cannot be acted upon without any corroboration, as it suffers from the infirmities pointed out by us above. 13. Now coming to the other evidence, Nathuram (PW 4) and Rajaram (PW 7), who are respectively the younger brother and nephew of the deceased, have not supported the prosecution. We have scrutinised their statements. They are inconsistent and contradictory to each other about the point of time when they reached the spot after hearing the cries of the deceased and also on the point of seeing the accused persons running away from his house Rajaram (PW 7) has not seen the accused persons running from their face side but he saw them running from their back side, though he stated that he saw them from a distance of 8 to 10 paces and identified them from their back in the moon-lit night. No article belonging to the accused persons was seized from the spot. The accused persons were not residing in the house of the deceased at the relevant time, but they were residing separately since about 1-1/2 years back. The testimony of Ramesh (PW 6) has been discraded by the trial Court, as his statement under section 161 Cr. P. C. was recorded by the police about 20-22 days after the incident, and the prosecution has Dot explained the delay. The testimony of Ramesh (PW 6) has been discraded by the trial Court, as his statement under section 161 Cr. P. C. was recorded by the police about 20-22 days after the incident, and the prosecution has Dot explained the delay. Jagannath Singh (PW 9) is said to have reached the spot after hearing the cries, where he found Nathuram (PW. 4) already present, and on a question being asked by him to Vijayram as to who set him on fire, Vijayram named the accused persons. But surprisingly this witness has not seen any of the accused persons on the way running away or fleeing from the spot. Another witness examined is Kailash (PW 8). who reached the spot after Jagannath Singh (PW 9). His statement also does not help the prosecution to connect the accused/appellants with the crime. In such circumstances, when the dying declaration (Ext. P-2) has been discarded by us, there is no convincing and corroborating evidence to connect the accused persons with the offence. In this view of the matter, we need not deal with the evidence of defence. In our opinion, the prosecution has Dot made out the case beyond doubt against the accused persons, as a result of which the appellant/accused persons deserve the benefit of doubt. 14. In result, the appeals succeed and are allowed. The conviction, and sentence under section 302/34, Indian Penal Code, awarded by the Sessions Judge to the appellants is set aside and they are acquitted for the offence of committing the murder of Vijayram. They shall be set at liberty forthwith.