JUDGMENT 1. - This appeal is directed against the judgment dated 26-11-1984 by which the learned Additional Sessions Judge, Raisinghnagar convicted appellant Nathuram and sentenced him to imprisonment for life Under Section 302, IPC. 2. Briefly stated the prosecution story is that Nathuram Appellant and his wife deceased Meera were married about six years prior to 2-5-1983 the date of the incident of Meera getting burnt. On 2-5-1983 at about 8 a.m. there was quarrel between Meera and her mother-in-law Devi Bai because of Devi Bai alleging illicit relations between Meera and her father-in-law Rochumal. At about 11 a.m. Nathuram, a peon in the Irregation Dept. returned home. By that time Meera had not prepared food foor him and when Meera complained of the allegations levelled by her mother-in-law, the appellant man handled her. When she threatened to complain to Dwarka Nath, Sarpanch, the appellant poured kerosene oil from a tin and set fire. That, the appellant before doing so, asked his mother to shot up the doors. When on getting brunt, Meera started crying. the appellant poured pot of water on her and extinguished the ore. Meera got burnt on face, chest, stomach and hands, Her husband the appellant, then made her lie in side theroom. About half an hour thereafter, Pummy alias Surendra Kaur (PW 2) came there and applied ointment on her wounds. Thereafter, a number of persons of the village Jetsar reached there and the appellant took his wife Meera to Vijaynagar Hospital in a jeep. Dr. Sahi Ram (PW 9), Officer-in-charge Vijaynagar Hospital, examined her injuries at 2.45 p.m. and found first and second degree burns on her body. There were 35-40% burns. The injury report is Ex. P. 6. The doctor sent information Ex. P. 7 to the concerned Police Station. Maniram (PW 13), SHO, Police Station, Vijaynagar, reached the Government Hospital where Meera was admitted. He recorded her statement Ex. P.5. Hs went to the Police Station and on the basis of that statement of Meera chalked the formal FIR Ex. P. 13. The SHO then went to the site and prepared the site plan and the site inspection memo. He recovered one tin of kerosene oil containing three bottles of kerosene oil. Burnt clothes of Meera were also recovered from the site. During the course of investigation statements of the witnesses were recorded. Meanwhile, Meera's condition not being good, Dr. P. 13. The SHO then went to the site and prepared the site plan and the site inspection memo. He recovered one tin of kerosene oil containing three bottles of kerosene oil. Burnt clothes of Meera were also recovered from the site. During the course of investigation statements of the witnesses were recorded. Meanwhile, Meera's condition not being good, Dr. Shai Ram (PW 9) referred her to Ganganagar Hospital. Nathuram took Meera to Ganganagar Hospital where she was admitted as indoor patient. On 3-5-1987, apprehending the deterioration in the condition of the patient, ASI, Anil Khanna recorded her statement which is Ex. D. 6. Judicial Magistrate Shri Brij Mohan Bansal also recorded her statement on the same day which is Ex. D. 7. Meera succumbed to the burn injuries sustained by her at 5.30 am. on 6-5-1983. Dr. Rajendra Kumar Gupta (PW 14), Medical jurist, Government Hospital, Sri Ganganagar conducted the autopsy over the dead body. On receiving the information of death of Meera from the Medical Jurist Dr. Rajendra Prasad Gupta, Ved Prakash (PW 4), ASI, Sri Ganganagar Police Station, went to the hospital and prepared the Panchnama of the dead body Ex. P. 2. The dead body was entrusted to Hari Prasad (PW 7), brother of the deceased. Maniram SHO, proceeded with the investigation and recorded the statements of witnesses. 3. Upon completion of the investigation, charge-sheet was filed against the appellant Under Section 302 and his mother Devi Bai Under Section 302 read with Section 34, IPC in the Court of Munsif and Judicial Magistrate, Anoopgarth. The learned Magistrate committed the case to the court of Additional Sessions Judge, Raisinghnagar. On being chargesheeted, the accused denied the indictments and trial proceeded. To substantiate its case, prosecution examined 14 witnesses in all. The appellant and the co-accused denied the allegations levelled against them. Ths appellant stated that his wife got burnt from stove while cooking food and when she came out, he extinguished the fire by pouring pot of water on her. That, the Sub-Inspector by treat got her signatures on the paper. Magistrate Brij Mohan Bansal and ASP Anil Khanna were examined as defence witnesses, The learned Judge did not hold the prosecution case proved against Devi Bai and acquitted her of the charge. The case against the appellant was how ever, held to be proved and he was: convicted and sentenced by the judgment Under appeal. Magistrate Brij Mohan Bansal and ASP Anil Khanna were examined as defence witnesses, The learned Judge did not hold the prosecution case proved against Devi Bai and acquitted her of the charge. The case against the appellant was how ever, held to be proved and he was: convicted and sentenced by the judgment Under appeal. 4. We heard Shri Doongar Singh, learned Counsel for appellant and Mrs. Sumitra Chouhan, learned Public Prosecutor and perused the record of the case. 5. The learned Counsel for the appellant strenuously contended that the eye witnesses and the circumstance of oral dying declaration of Meera at her house before Pummy and others having been disbelieved by the learned Judge, Ex. P. 5 the alleged dying declaration recorded by SHO, Maniram, without there being any attestation by the doctor about her fitness to give statement, should not have been made basis of the conviction especially when the dying declaration Exs. D. 6 and D. 7 recorded by the ASP and Judicial Magistrate respectively did not implicate the appellant in the commission of the crime. It has also been stressed by the learned Counsel that prosecution has tried to implicate the appellant in the case show how or other by introducing Hari Devi as an eye witness and Awadhesh Kumari in support thereof whose statements the learned trial court had disbelieved. 6. The learned Public Prosecutor controverting these submissions, contended that the earliest recorded dying declaration of the patient is Ex. P. 5 recorded by SHO Maniram in which she has categorically stated about her husband burning her with kerosene oil and the subsequent statements recorded by the ASP and the Magistrate at Sri Ganganagar might have been given by the lady Under the influence of her husband who was attending her through out and also for the reason that she had the apprehension of her child not being reared up well in case she would narrate the true facts against her husband and he being published. 7. The prosecution has tried to establish its case by direct as well as circumstantial evidence. The direct evidence is that Hari Devi who has stated that at about 11 a.m. when she was going to purchase soap, she heard the cries of Meera Bai, wife of Nathuram and saw from the holes of the door Nathuram beating her with kicks and fist blows. The direct evidence is that Hari Devi who has stated that at about 11 a.m. when she was going to purchase soap, she heard the cries of Meera Bai, wife of Nathuram and saw from the holes of the door Nathuram beating her with kicks and fist blows. Nathuram then poured, kerosene oil from the tin and set fire with match stick. That, Nathu's mother was standing in the Varenda at that time. That, on hearing the cry, a number of men and women reached there and knocked the door. Nathu opened the door and ran away. She along with others went inside and found oil and water spread on the ground. Meera was lying on the cot. Pummy also reached the site. That, she had also seen Avdesh Kumari on that day. The witness accompained the injured to the hospital Avdhesh Kumari '(PW 10) has stated about Hari Devi being there outside the house of Nathuram and peeping, through the holes. 8. The learned trial Judge has disbelieved both these witnesses because of their unnatural conduct in not telling the facts to the police till 11-5-1983 when their statements were recorded. The learned Judge has taken into consideration the version of the witness in cross examination regarding the location of the deer which is inoonsistent with the facts mentioned in the site plan Ex. P. 8. 9. Hari Bai bas also been disbelieved for the reason that according to her Nathu had run away where as the prosecution case is that it was Nathu who exinguished the fire and had taken his wife to Vijanagar Hospital in the Jeep and remained with her throughout. The witness has also been disbelieved because despite her accompanying Meera Bai to the hospital and returntng with the police to the village she did not tell anybody about her seeing the occurrence. The explanation of Maniram for not recording the statement of the witness till nine days after the occurrence because of her not being available, is totally false because Hari Devi was there at her house on the date of occurrence and also subsequent thereto. It is pertinent to note that Hari Devi had accompanied the patient to the hospital and was there at the time of the Police Investigating the site. 10. It is pertinent to note that Hari Devi had accompanied the patient to the hospital and was there at the time of the Police Investigating the site. 10. The witness to the dying declaration at home is Pummy She has stated that when she was applying ointment, Meera on being asked in the presence of Had Devi and others told that her husband had burnt her. Hari Devi has not stated about Meera telling anything in her presence though according to her she had gone inside as soon as the door was opened and Pummy also came there. Pummy has stated about her and Hari Devi going inside the house together. 11. The learned Judge has discussed in detail the statements of Dwarka Das, Parsu Ram, Charan Das and Kashmiri Lal on this point and has given good reasons for discarding the prosecution story of dying declaration by Meera at her house and we agree with that opinion. 12. We are now left with the three recorded dying declarations of Meera; Ex.P 5 by SHO Maniram (PW 13), Ex.D 6 by ASP Anil Khanna (DW 2) and Ex D 7 by Judicial Magistrate Brij Mohan Bansal (DW 1). This is a case of peculiar type where facts brought on record point out inclination of the burnt lady initially to implicate her husband in the commission of the crime and after the lapse of 24 hourse she making such statements that the incident may be taken to be the result of accidental fire. 13. The learned Public Prosecutor attached great importance to Ex. P. 5, the Parcha Bayan because that was taken to be the First Information Report, and at that time the declarant was not Under any body's influence and there was apprehension of death in her mind and a dying person mostly tells the truth. The subsequent statements according to the learned Public Prosecutor were Under the influence of the husband and should not be given more weight than Ex. P. 5. It has also been emphasised that Ex. P. 5 bears the signatures of Nathuram appellant, Charan Das, Dwarka Nath and Parsu Ram witnesses and in case the SHO would not have recorded the version of Meera correctly, why these persons would have appended their signatures on it. P. 5. It has also been emphasised that Ex. P. 5 bears the signatures of Nathuram appellant, Charan Das, Dwarka Nath and Parsu Ram witnesses and in case the SHO would not have recorded the version of Meera correctly, why these persons would have appended their signatures on it. According to the learned Public Prosecutor there being only 30 to 40 percent burns the patient must have been fit to give the statement and as such there was no necessity of any certificate by the doctor and the SHO not obtaining the certificate of the doctor will not undervalue the dying declaration Ex. P. 5. The learned Public Prosecutor argued that the subsequent dying declarations might have been given by Meera to save her husband, either because she wanted her husband to bring up the child or because of her excusing him for his act at his instance. The argument is based on the fact that if Ex. P. 5 would not have been true and genuine, Parsu Ram Charan Das, Dwarka Nath and Nathuram would not have appended their signatures thereupon. 14. Maniram (PW 13), SHO, has stated that the statement of Meera Ex. P. 5 was written of his subordinate officer in his presence and he appended his signatures at portion I to J on it. That scribe has not been examined. 15. Parsu Ram being the Dharambhai of the mother of the deceased Meera happened to be her uncle. The witness has stated that he was given a slip for purchasing edicines and has gone out for that purpose, and when he returned he found the statement being recorded. This shows that this statement was not recorded in the presence of this witness. Apart from it the witness has also stated that Meera had told the story of her burning to the doctor on interrogation. Neither the doctor has been produced, nor is this the case of the prosecution and therefore the signatures of this witness do not establish that the statement Ex. P. 5 was the exact version of Meera. 16. Charan Das (PW 11) is another signatory to Ex. P. 5, the alleged statement of Meera. His attention was drawn to his Police statement Ex. D. 5 where he bas not stated about Meera stating anything in his presence about her husband burning her by pouring kerosene oil. 17. P. 5 was the exact version of Meera. 16. Charan Das (PW 11) is another signatory to Ex. P. 5, the alleged statement of Meera. His attention was drawn to his Police statement Ex. D. 5 where he bas not stated about Meera stating anything in his presence about her husband burning her by pouring kerosene oil. 17. PW 12, Dwarka Nath, another signatory to Ex. P. 5 has been declared hostile by the prosecution. According to the witness he had appended his signatures on Ex. P. 5 as be was asked by the police to do so. 18. So far as signature of Nathuram is concerned, Parsu Ram's statement is that at the time of recording the statement he was asked to go out. The witness has further stated that somebody caught hold of him and he was kept standing outside. No question has been asked to Nathuram appellant in his statement Under Section 313 Cr. PC regarding his signatures on Ex. P. 5 to enable him to give any explanation. In view of this type of evidence, it is clear that the Ex. P. 5 cannot be said to be genuine simply because it bears so many signatures. There is force in the contention of the learned Counsel for the appellant that when the doctor was there, the SHO, before getting the statement recorded from his subordinate officer should have obtained the certificate from the doctor regarding the physical and mental state of the patient to give statement. In reply to this argument, the learned Public Prosecutor contended that if the patient could give statement at Ganganagar on 3-5-83, she being in a better condition on 2-5-1983, the certificate for fitness to give statement was not required. 19. The statement at Vijayanagar hospital was recorded immediately after taking the patient there and there is no evidence on record to show as to whether the condition of the patient on 2-5-83 was better than what it was on 3-5-83. It is to be noted that because of her condition being serious she was referred to Sri Ganganagar Hospital by Dr. Sahi Ram Dr. Sahi has categorically stated that sub-inspector did not ask him for the certificate that whether she was in a fit condition to give statement or not The doctor has also stated that before sending Ex. It is to be noted that because of her condition being serious she was referred to Sri Ganganagar Hospital by Dr. Sahi Ram Dr. Sahi has categorically stated that sub-inspector did not ask him for the certificate that whether she was in a fit condition to give statement or not The doctor has also stated that before sending Ex. P. 7 to the police he interrogated her but he did not recollect what she had told. If there would have been any serious allegation by Meera against any body, the doctor would have certainly noted it. In order to appreciate the rival contention regarding Ex. P. 5, the statement implicating the appellant, it would be necessary to consider the two other recorded dying declarations namely Ex. D. 6 and D 7. It is pertinent to note that despite the fact of these statements being recorded by the ASP, an officer senior to Maniram SHO and the Judicial Magistrate, the SHO did not record their statement nor were they examined from the prosecution side during the course of trial. It gives the impression that prosecution had not brought true picture before the Court. Recording of those two statements has not been disputed by the prosecution nor has it been argued that they were not as statement by the patient. The line of argument rather, as stated earlier, is that Meera had given those statements Under the influence of her husband who had accompanied her to the hospital and was looking after her treatment. It has also been argued that even at Ganganagar Hospital, Meera had told the true fact, alike the one contained in Ex.P 5, to her brother Hari Prasad (PW 7). 20. Dr. Rajendra Kumar Gupta (PW 14), the Medical Jurist, has stated that on 3-5-1983, he had informed the police vide Ex. D. 8 to record the dying declaration of the patient. Magistrate was sent for and meanwhile ASP Anil Khanna recorded the statement Ex. D-6. On the dying declaration Ex. D-7 recorded by the Judicial Magistrate, Sri Ganganagar, there is the endorsement by the doctor that the patient was conscious and fit to give statement. D. 8 to record the dying declaration of the patient. Magistrate was sent for and meanwhile ASP Anil Khanna recorded the statement Ex. D-6. On the dying declaration Ex. D-7 recorded by the Judicial Magistrate, Sri Ganganagar, there is the endorsement by the doctor that the patient was conscious and fit to give statement. The version given in those two statements before the ASP and the Judicial Magistrate, as stated by Meera, is that at 11 a.m. she cooking food on stove At that time her child came there and in order to remove the child away from the burning stove she turned and took the child away and at that time her 'Chunni' caught fire. That, as the 'Chunni' was enwrapped, her whole body caught fire. Than, on her raising the cry her husband, who was in the other room came and tried to extinguish the fire and took her to Vijaynagar hospital in the jeep. 21. The two statements are very-very brief in comparison to the lengthy-statement Ex.P. 5 and this raises a suspicion as to whether Meera, immediately after the incident of her serious burns, would have been in a position to give, such a detailed statement. 22. The learned Public Prosecutors submitted that the dying declarations of the ASP and the Judicial Magistrate should be overlooked because when there was already a recorded dying declaration, these dying declarations, should not have been recorded. 23. There may be a number of dying declarations if the circumstances so require. If the Medical Jurist, Dr. Rajendra Prasad Gupta found it necessary to inform the Police to get the dying declaration recorded and the Magistrate was sent for, there was nothing wrong in it. Rather it shows the sense of duty and alertness on the part of the doctor. The ASP has recorded the statement of Meera by way of abundant caution that if there was any delay in the Magistrate reaching the hospital, the patient may not pass away without her statement being recorded. The fitness of the patient to give statement has been certified by the doctor and the circumstances of her surviving for two days more thereafter also shows that she was in a fit condition to give statement. 24. Ex. P-7 is the forwarding letter from Vijaynagar hospital to Ganganagar hospital while sending the patient there for treatment. Ex. D. 8. The fitness of the patient to give statement has been certified by the doctor and the circumstances of her surviving for two days more thereafter also shows that she was in a fit condition to give statement. 24. Ex. P-7 is the forwarding letter from Vijaynagar hospital to Ganganagar hospital while sending the patient there for treatment. Ex. D. 8. is the letter of the Medical Jurist to SHO Kotwali, Sri Ganganagar wherein it has been mentioned that the treating surgeon has advised to record dying declaration of Meera. That, in the referred slip from Vijaynagar it has not been mentioned whether statement had been recorded or not and therefore inquiry may be made. When there was no information with the doctor at Ganganagar about the statement of Meera having been recorded, he was expected to be vigilant on the point and the Police Officer Ganganagar was also right in calling the Judicial Magistrate and meanwhile recording the statement. 25. The case on hand is a peculiar one where if all three dying declarations are taken to be correct, it gives an impressions that the lady initially wanted to implicate her husband but subsequently wanted to shield him for the reasons best known to her. We have already discussed in detail Ex. P-5, the statement recorded by SHO Maniram at Vijaynagar hospital and were not impressed about its genuineness. However, before taking the statements Ex. D.6 and D-7, the statements of the declarant, the argument of the learned Public Prosecutor regarding the tense relations between the appellant and the deceased and the conduct of the appellant are to be taken note of. 26. Virendra Singh (PW3) has stated about there being Panchayat at Jetsar at the house of Sarpanch Mool Chand in connection with the relations between the appellant and his wife Meera and the Panchas asking them to live with love and affection. The witness stated that Nathuram wanted to keep his wife but she was not willing to live with him. According to this witness it was decided that till the arrival of her parents, she would be kept at the house of Parsu Ram. Parsu Ram has not stated anything about it. He has rather stated that Meera used to visit his house but had never gone there for a stay. According to this witness it was decided that till the arrival of her parents, she would be kept at the house of Parsu Ram. Parsu Ram has not stated anything about it. He has rather stated that Meera used to visit his house but had never gone there for a stay. Hari Prasad, brother of Meera has also stated about this compromise and further stated that Meera then went to her husband's house. It is pertinent to note that the compromise even if any was three years prior to the incident. The approximate time of compromise falls some where in the beginning of the year 1981. At the time of the incident Meera was having one son aged two years and was also pregnant. 27. When the two dying declaration stating the incident to be an accidental one were recorded by responsible persons, the prosecution introduced Hari Prasad to negative their truthfulness Hari Prasad, brother of Meera has stated that on receiving the information from Farsa, he went to Sri Ganganagar Hospital on 4-3-1983. His sister told him that Nathu had burnt her by pouring kerosene oil on her body and that she had given the statement before the Magistrate due to fear and helplessness. He admitted that he did not tell about it to anybody. 28. A very important factor pointed out by the learned Counsel for the appellant is that the Panchnama and inquest report prepared on 6-6-1983 by ASI Virendra Singh (PW 4) bears the signatures of Hari Prasad. Parsu Ram and Nathuram along with two others namely Kishanlal and Murlidhar. ASI, Virendra Singh has stated that Hari Prasad was the brother of the deceased. At portion C to D in Ex. P. 2 it is written that all the Panchas after discussion with each other expressed that the death of Meera, wife of Nathuram, was due to accident on account of burns by stove He also stated that he had read over the Panchnama to the Panchas. This falsifies the version of Hari Prasad that Meera told him that Nathuram had burnt her and it was because of fear and helplessness that she bad given the statement before the Magistrate. Apart from it, the subsequent-conduct of Hari Prasad also proves him to be a false witness. This falsifies the version of Hari Prasad that Meera told him that Nathuram had burnt her and it was because of fear and helplessness that she bad given the statement before the Magistrate. Apart from it, the subsequent-conduct of Hari Prasad also proves him to be a false witness. His statement was recorded after two months of the incident and the reason given by him was that he had filed the application to the higher authorities and then his statement was recorded. Maniram has stated that Hari Prasad was not available and his statement could not be recorded. Hari Prasad has deposed that two or three days after the incident, he remained at the house of Parsu Ram. Parsu Ram has also stated so. Hari Prasad has cetegorically stated that during those days police did not record his statement and that he was called by the police after two months of the incident and statement was recorded. 29. Before arriving at a conclusion as to which dying declaration should be preferred to the other, we find it necessary to look to the investigation on because the learned Counsel for the appellant has tried to raise suspicion on the fairness of the investigation. 30. The Investigating Officer has not cared to get the opinion of the doctor before recording the statement of Meera. Despite Hari Devi, Pummy and Avdhesh Kutnari being available when the Investigating Officer reached the site, their statements were not recorded till 11-5-1983 and this has led to logical argument by the learned Counsel for the appellant that in order to give strength to Ex.P. 5 the Investigating Officer has implanted these three witnesses after eight or nine days of the occurrence. It is significant that if from Ex. P.5 Maniram, SHO had came to know that appellant was guilty and was responsible for the burns of Meera and was thus an accused in the case, he should have arrested him then and there instead of allowing, him to go to Ganganagar with his wife. The appellant was arrested as late as on 9-5-1983, three days after the death of his wife and seven days after the incident. 31. From the discussion we feel inclined to consider the version in Ex D. 6 and D.7 the statement recorded by the ASI and Judicial Magistrate as genuine and true. The appellant was arrested as late as on 9-5-1983, three days after the death of his wife and seven days after the incident. 31. From the discussion we feel inclined to consider the version in Ex D. 6 and D.7 the statement recorded by the ASI and Judicial Magistrate as genuine and true. Assuming for the sake of argument that Meera had given different versions at different stages then conviction cannot be based on a version given at one time and changed subsequently. In a criminal case if two conclusions are possible then the one in favour of the accused is to be preferred so that the risk of innocent person being convicted may be ruled out. As such, in the present case, in view of the statements of Meera Ex.D. 6 and 7, the position of burns showing the possibility of her getting burnt because of her Chunni' getting fire and the conduct of the appellant in extinguishing the fire and taking his wife immediately to the Vijaynagar Hospital and then to Sri Ganganagar Hospital and remaining with her and being particular for her treatment we find no justification in the conviction of the appellant. 32. Consequently, the appeal of Nathuram is allowed. His conviction and sentence passed by the learned Judge are set aside and he is acquitted of the charge. Appellant is in jail. He shall be set at liberty forthwith if not required in any other case.Appeal allowed. *******