Judgment G. K. SHARMA, J, J. ( 1 ) THIS appeal is derected against the judgment dated 13-11-87, by which the appellants were convicted under section 302 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 500/-, in default of payment of fine to undergo one years R. I. ( 2 ) SITA was married to appellant Surendera Singh 17-18 years ago from the date of occurrece. Surendra Singh was in the habit of drinking liquor and illtrated Sita and after spoke to marry second time. Shankar Lal brother of decease Sita submitted a written report of the S. H. O. Chirawa on 2-6-85 stating that on this date at 2. p. m. Nemi Chand Jat resident of village Sari came to him and informed that his sister Sita has been burnt by pouring kerosing oil by Surendra and Chandrapati wife of Vinod Kumar. He came to village Sari and found Sita lying in her house in burnt condition. People of mohalla were collected there. He then took Sita in jeep to hospital. On this report a case under Section 307 of the Indian Penal Code was registered at the police Station Chirawa. Shri Shashi Kumar Pareek munsif and Judicial Magistrate recorded the dying declaration of Mst. Sita Later on Sita died on 10-8-1985 i. e. after more than two months of the occurrence. Her postmortem was done by a Board of Doctors. In their opinion the cause of death was hypoprolecumia and toxamica due to long standing burns of about 56 percent of total body surface. After completing the usual investigation the police submitted challan against appellant Surendra Singh. Later on Mst. Chandrapati was also made accused in this case. The Trial court framed charge against the accused persons under Section 302 of the Indian Penal Code. Both the accused pleaded not guilty completing the trial found that case has been established against the accused persons and he convicted and sentenced them as mentioned above. ( 3 ) THE learned Counsel for the appellant argued that the entire case depends on the dying declaration of Mst. Sita. This was recorded on 2-6-85 by the Munsif and judicial Magistrate, Chirawa. In this statement she had stated that when shew came out in burning condition Mst. Basanti wife of Rang Lal, Chando wife of Nemi Chand and Kartar Singh came there. Sita. This was recorded on 2-6-85 by the Munsif and judicial Magistrate, Chirawa. In this statement she had stated that when shew came out in burning condition Mst. Basanti wife of Rang Lal, Chando wife of Nemi Chand and Kartar Singh came there. They tried to extinguish the fire and then she became unconscious. So according to this dying declaration Ex. P. 3 Basanti Chando and kartar Singh are very material witnesses. It was also argued that while extinguishing the fire Mst. Basanti also received burns on her body and she was also medically examined by the doctor. Her injury report is Ex. P. 2. According to this injury report she had two burns injuries. So the argument was that looking to the injury report Ex. P. 2 the presence of Mst. Basanti cannot be disputed. She has been haned in the dying declaration Ex. P. 3 by Mst. Sita and the injury report Ex. P. 2 proves that Mst. Basanti was present when Mst. Basanti and Kartar Singh have not been examined by the prosecution witnesses. Both these witnesses appeared in the defence and they have not corroborated the prosecution story. Mst. Chando is the only witness who can be said to be an important witness and her statement is most unreliable. It was also argued and the entire prosecution evidence is unreliable and the learned Trial Court has not correctly appreciated the statements of the witnesses. ( 4 ) WE have gone through the entire record of this case. Shankar Lal informant (P. W. 3) is not an eye-witnesses. He was informed by Nemi Chand about this incident. He has stated that on 2-6- 1985, Nemi Chand told him that Surendra Singh and Chandrapati had burnt Sita. When he came to the house of Sita his aunt Chando was sitting by her side and on enquiring from her she told that Surendra Singh and Chandrapati had burnt Sita. In the cross examination he has stated that when he came to village Sari Sita was unconscious. Then at about 5. 15 - 5. 30 p. m. Sita came in conscious. She gained consciousness before their departure for hospital. In the way while taking Sita to hospital Shankar Lal had talked with her. But he has not stated that at that time Sita told him that she was burnt by Surendra Singh and Chandrapati. This is an unbelievable statement. 15 - 5. 30 p. m. Sita came in conscious. She gained consciousness before their departure for hospital. In the way while taking Sita to hospital Shankar Lal had talked with her. But he has not stated that at that time Sita told him that she was burnt by Surendra Singh and Chandrapati. This is an unbelievable statement. Shankar Lal is the brother of deceased Sita. When he was taking Sita to hospital she gained consciousness and it cannot be believed that Shankar Lal would not ask Sita as to who had burnt her. Then according to his statement Nemi Chand and Mst. Chando told him that Surendra Singh and Chandrapati had burnt her. Nemi Chand was not present when this incident had taken place and how he got this information is to be seen. ( 5 ) NEMI Chand (P. W. 4) has stated that Sita was the daughter of his brother-in-law. His wife told him that Sita has burnt so inform her parents. In the cross-examination he has stated that his wife only told these words that Sita has burnt and he should inform her parents. He then went to Shankar Lal and only told these words that Sita has burnt. So Nemi Chand has not stated that he informed Shankar Lal that Surendra Singh and Chandrapati had burnt Sita. Nemi Chand was informed by his wife but his wife also did not name the persons who had burnt Sita. Therefore the statement of Shankar Lal becomes false. ( 6 ) CHANDO (p. w. 7) wife of Nemi Chand has been examined. She has stated that in the noon she was in her house when she heard noise Bale Balet. This was Sitas voice. She came to the house of Sita who was burnt. Mst. Basanti and Kartar Singh also came running there. The lower portion of Sita was burnt. She tried to extinguish the fire and changed the clothes of Mst. Sita and then she was made to lie on a coat. She told Surendra to take her to Chirawa. Surendra left for Chirawa leaving Sita there. She then told her husband that Sita has been burnt and her parents be informed So Chando also did not name to her husband Nemi Chand as to who had burnt Sita. Therefore, there was no question of telling the names of accused persons by Nemi Chand to Shankar Lal. Surendra left for Chirawa leaving Sita there. She then told her husband that Sita has been burnt and her parents be informed So Chando also did not name to her husband Nemi Chand as to who had burnt Sita. Therefore, there was no question of telling the names of accused persons by Nemi Chand to Shankar Lal. Chando has further stated that in the way Sita gained consciousness and she was admitted in the hospital. In the hospital she was told by Mst. Sita that Surendra poured kerosine oil on her and Chandrapati litted fire. So for the first time Chando (P. W. 7) came to know about the names of the accused persons. She was cross-examined at length. She has stated that from the time they left the village with Mst. Sita upto Chirawa she Ramni was and Shankar Lal did not talk to Sita. At her house Sita did not tell her as to who had burnt her. She also did not ask Mst. Sita about this fact. Basanti and Kartar Singh also did not ask Sita and Sita also did not tell about this incidence. This is also unreliable statement when they reached at the house of Sita, who was burning at that time she was in consciousness. The natural course was to ask about the cause of this incident. It cannot be believed that the person will not ask Sita or that Sita will not tell those persons that she was burnt by the accused-persons. So not disclosing the names of the accused-persons creates doubt in the correctness of the dying declaration Ex. p. 3. In this dying declaration Ex. p. 3 she has specifically stated that Surendra Singh poured kerosine oil and Chandrapati litted the fire. This dying declaration was recorded the Magistrate. So the genuineness of this dying declaration cannot be disputed. It cannot be said that it was not correctly recorded But the question is whether the statement given by Sita is a correct statement or not. For this purpose the other evidence is to be scrutinised it cannot be believed as mentioned above that Sita will not say to Basanti Chando and Kartar Singh that she was burnt by Surendra Singh and Chandrapati. These persons are not stranger but they are relative of Smt. Sita. For this purpose the other evidence is to be scrutinised it cannot be believed as mentioned above that Sita will not say to Basanti Chando and Kartar Singh that she was burnt by Surendra Singh and Chandrapati. These persons are not stranger but they are relative of Smt. Sita. ( 7 ) CHANDO (P. W. 7) in her statement stated that when she reached at the house of Mst. Sita she saw Chadrapati going from that house to her house. She wanted to prove the presence of Chandrapati at the time of incident but in the Police Statement Ex. D. 4 she has stated that when she reached at the house of Sita there was nobody except Surendra. She has not stated that Chandrapati was also present there. This shows that she made improvement in the Court and stated that Chandrapati was going from the house of Sita to her own house. This is a false statement and in order to implicate Chandrapati she has stated in the Court like this. She has very specifically stated in the cross-examination that in the hospital Sita named the accused-persons and before that she had no knowledge as to who had burnt Sita. Thus after going through minutely and after scrutinising the statement of Mst. Chando (P. W 7), we are of this opinion that she is not a reliable witness. She does not know as to who had burnt Mst. Sita. It is also ubelivable that Sita gave her the name of the accused -persons. ( 8 ) NEMI Chand (P. W. 4) and Mst. Chando (P. W. 7) both have falsified and contradicted the report Ex. p. 7. In this report Ex. p. 7 Shankar Lal mentioned that Nemi Chand informed him that Surendra and Chandrapati burnt her sister. This fact is incorrect. Nemi Chand did not say like that. Mst. Chando did not tell to her husband the names of the accused-persons. Chando even did not tell to Shankar Lal that accused-persons had burnt Sita. So the report Ex. p. 7 is a pre-determined report. There is no basis for mentioning in the report that Surendra and Chandrapati had burnt Sita. Therefore, there is doubt in the correctness of this report Ex. p. 7. ( 9 ) ANOTHER material aspect of this case is that according to dying declaration Ex. So the report Ex. p. 7 is a pre-determined report. There is no basis for mentioning in the report that Surendra and Chandrapati had burnt Sita. Therefore, there is doubt in the correctness of this report Ex. p. 7. ( 9 ) ANOTHER material aspect of this case is that according to dying declaration Ex. p. 3 Basanti and Kartar Singh also arrived at the house of Sita. Both these witnesses are very material witnesses. They have been named in the list of the witnesses by the prosecution but later on, they have been given up. Why both the witnesses were not examined by the prosecution, the reason is best known to them. These witnesses were produced in defence by the accused-persons. Kartar Singh D. W. 1 has stated that he came at the spot and Bansanti tried to extinguish the fire. His wife in his presence asked Sita the cause of her burning and Sita told that her husband is drunkard, used to harass her and thinking that her husband will improve himself and leave drinking habit, she burnt herself. Similar is the statement of Basanti D. W. 3. She asked Sita about this incident and Sita told her that in order to deter her husband she herself let fire on her clothes. Both these witnesses have been cross-examined hut we do not find any infirmity in their statements. There is no ground to disbelieve the statements of these witnesses. Basanti who presence is not disputed by the prosecution because she also had some burning injury as is clear from Ex. p. 2. Kartar Singhs presence is not disputed by the prosecution. Therefore both these witnesses have falsified the entire prosecution case. Their statements are trustworthy statements and they not only falsifies the report Ex. P. 7 but also falsifies the dying declaration Ex. p. 3. ( 10 ) THE learned Public Prosecutor and the counsel for the complainant argued that even on the basis of dying declaration Ex. P. 3 the accused persons can be convicted. Their argument is that why this dying declaration be not believed. This m was recorded by the Magistrate in presence of the doctor who has certified that Mst. Sita was in senses and in good condition to give her statement. There is an endorsement on the dying declaration Ex. P. 3 by the doctor to this effect. Their argument is that why this dying declaration be not believed. This m was recorded by the Magistrate in presence of the doctor who has certified that Mst. Sita was in senses and in good condition to give her statement. There is an endorsement on the dying declaration Ex. P. 3 by the doctor to this effect. So the argument that the statement recorded by the learned Magistrate in presence of the doctor who had certified that Sita is in a fit condition to give the statement there is no reason to discard the dying declaration. There is no reason that the learned Magistrate would write incorrect statement of Mst. Sita. We do not dispute about this fact that the learned Magistrate had rightly written the dying declaration Ex. P. 3. Whatever written in the dying declaration Ex. P. 3 by the learned Magistrate was correctly recorded by him and there is no doubt in this aspect. But the question is whether the content in this dying declaration. Ex. P. 3 are true. The point is whether Mst. Sita had stated correctly and whether her statement is believable. ( 11 ) THE learned Counsel for the complainant argued that there is no necessity to corroborate the dying declaration. Even conviction can be based on the basis of uncorroborated dying declaration. In Kusa and ors. v. State of Orissa their Lordships have observed that dying declaration if found to be true can be acted upon without any proof. 12. In TI Mst. Kesar v. State of Rajasthan2 it has been observed as under: The shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes and circumstances leading to his death which are absolutely fresh in his mind or are untainted or discoloured by any other consideration except speaking the truth and, therefore special sanctity should be attached to a to dying declaration. ( 12 ) IN Munna Raja and anr. ( 12 ) IN Munna Raja and anr. v. State of Madhya Pradesh3 their Lordships observed as under: It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it becomes to the conclusion that a dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration. ( 13 ) WHILE referring the above cases it was argued on behalf of the complainant and the State that though corroboration to dying declaration is not necessary but even there is corroboration to this dying declaration by the statement of (P. W. 5) Rajendra singh and (P. W. 7) Mst. Chando and also from the conduct of the accused The statement of Rajendra Singh (P. W. 5) has been perused who has stated that he came to village Chirawa for purchasing goods and there he saw a crowd in front of the hospital where he was informed that one woman has been burnt. He went inside the hospital and saw Sita admitted there. He asked Sita who told him that Surendra Singh poured the kerosine oil and Chandrapati litted the match: After perusing his statement we are of this opinion that he is a complete made out witness. There was no occasion for him to go to hospital and talk to Sita. Apart from this his presence has not been stated by Mst. Chando or Shankar Lal. The statement of Chando (P. W. 7) has been discussed and we found her also an unreliable witness. On the point of conduct of the accused-persons reliance has been placed on the base of Smt. Laxmi Devi v. State of Rajasthan4. ( 14 ) THE learned Counsel for the accused has relied on 1984 S. C. C. (Cr.) 487 and 1979 S. C. C. 652 H. M. Jesha v. State of Gujarat. After seeing the case-laws cited by both the learned Counsel there is no dispute that conviction can be based on a dying declaration. ( 14 ) THE learned Counsel for the accused has relied on 1984 S. C. C. (Cr.) 487 and 1979 S. C. C. 652 H. M. Jesha v. State of Gujarat. After seeing the case-laws cited by both the learned Counsel there is no dispute that conviction can be based on a dying declaration. It is also settled principle by Honble Supreme Court that there is no rule of law that a dying declaration cannot be acted upon unless it is corroborated. So it is not necessary to look into the corroboration of a dying declaration but it was necessary to look out whether this dying declaration suffer from any infirmity by reason of which it was necessary to look out for corroboration. Keeping this principle in mind we have gone through the dying declaration Ex. p. 3 and we find that there is infirmity in it. In the dying declaration she has narrated the entire background of this burning. She has also stated that when she came out of the house in burning condition Basanti Chando and Kartar Singh came there and they extinguished the fire but she has not stated that she told these persons as to who had litted the fire or as to who had burnt her. It cannot be believed that Mst. Sita will not say to the persons who had come to rescue her as to who had burnt her. In the beginning she has stated that, maternal-uncle of her husband Shiv Prasad her Devar Vinod, wife of Vinod (Devrani) and her husband at 12 Oclock burnt her with chimeny. Then she has developed the story of previous day and stated that Surendra poured kerosine oil and Chandrapati lit the match. So the dying declaration itself contradictory and the persons named in this dying declaration have not been examined by the prosecution but on the other hand they have been examined by the accused- persons, and we see no reason to disbelieve their testimony. Therefore, on the basis of dying declaration Ex. p. 3, it is not safe to convict the accused-persons. ( 15 ) AS discussed above we are of this opinion that the prosecution has failed to establish its case beyond reasonable doubt and the benefit of doubt is given to the accused-persons. ( 16 ) IN the result the appeal is accepted. p. 3, it is not safe to convict the accused-persons. ( 15 ) AS discussed above we are of this opinion that the prosecution has failed to establish its case beyond reasonable doubt and the benefit of doubt is given to the accused-persons. ( 16 ) IN the result the appeal is accepted. The appellants are not found guilty of the offence under Section 302 of the Indian Penal Code and both are acquitted from this charge. The appellant Smt. Chandrapati is on bail. Her bail-bonds are cancelled. She need not surrender. Appellant Surendra Singh is in jail. He be released forthwith if not required in any other case. Appeal allowed.