JUDGMENT 1. U. K. Varma, J. Convicting Fakir Chand and Smt. Santosh under Sections 302, read with Section 34 of the Indian Penal Code and sentencing Fakir Chand to death and Smt. Santosh to imprisonment for life, Sri V. M. Joshi, the VII Additional Sessions Judge has made a reference for the confirmation of the death sentence of Fakir Chand under Section 366 of the Code of Criminal Procedure. Aggrieved by his judgment and order, the appellants have come up in appeal. 2. The investigation of this case had been ordered on the complaint of Surendra Kumar submitted to the Director-General of Police but passed on to the Deputy Inspector General of Police, Meerut Range. It is dated 9-5-85 and is marked Ex Ka. 1. It transpires there from that on 12-3-85 the date of incident, the complaint had gone out of Meerut. On his return Chandra Bhushan Sharma informed him that kerosene oil had been sprinkled upon his brother Narendra Kumar and he was burnt. He rushed immediately to Doctor Manvendra Sharma for treatment The complainant immediately reached the clinic of Dr. Manvendra Sharma and from there took his brother Narendra Kumar to the medical college alongwith Sri Ram, the compounds of Dr. Sharma as advised by him. Narendra Kumar was admitted in the medical college but when his condition did not improve, he was withdrawn and got admitted in the Bhopal Nursing Home, There, his dying declaration was recorded on 14-3-85 by Sri Shyam Singh Addl. S. D. M. which translated into English is as follows : "my name is Narendra Kumar Sharma. I am the son of Laxmi Narain. I have full mental faculty and what I am saying is well throughout, I got burnt on Wednesday between 10. 30 and 11. 00 p. m. on 13-5-85. Fakir Chand resident of 362, Noor Nagar, Siyani district Ghaziabad, sprinkled kerosene oil on me from a can. Santosh Kumari ignited the fire by a match stick. I was clad in white terricot clothes and had Rs. 365 in my pocket. I came running to the clinic of Dr. Manvendra Sharma while burning. The doctor quenched the fire. In the way too a few persons tried to pacify the fire. The compounder of Dr. Manvendra Shanna had taken me to the medical college. I was clad in white terricot clothes and had Rs. 365 in my pocket. I came running to the clinic of Dr. Manvendra Sharma while burning. The doctor quenched the fire. In the way too a few persons tried to pacify the fire. The compounder of Dr. Manvendra Shanna had taken me to the medical college. " Surendra Kumar further mentioned in the complaint that the copy of the above dying declaration could be procured by him only on 27-4-85 and came to know that his brother Fakir Chand had been murdered by his wife Smt. Santosh Kumari and her brother. The Inspector of the concerned police station did not permit his report to be recorded and so he submitted an application on 29-4-85 to the S. P. Rural Meerut. He directed the Inspector to register the report and investigate but being under the influence of the accused Smt. Santosh Kumari and Narendra Kumar, he did not carry out his directions. The G. D. Entry No. 47 made at 11. 35 p. m. on 12-3-85 shows that the Sub-Inspector A. S. Chauhan was appointed to enquire and report about the incident but he did not do so. The Inspector and Sub- Inspector had taken huge sum of money by way of illegal gratification and so had shelved the matter. The relation between his brother Narendra Kumar and his divorced wife Smt. Santosh Kumari, were estranged. Narendra Kumar had served her with a notice on 6-8-82. Smt. Santosh Kumari had instituted proceedings under Section 125 of the Code of Criminal Procedure against Narendra Kumar and her brother had filed a false complaint against him under Sections 323/504/506 of the Indian Penal Code. The Mawana Police previously too had been siding with Smt. Santosh Kumari and Fakir Chandra. 3. The fact that Narendra Kumar died as a result of burn injuries on 16-3-85 has not been controverted. His post mortem report, which is Ext ka 16 on record duly proved by Dr. S. M. Sharma PW 7 shows that he had died as a result of the burn injuries all over his body excepting the inner side of the right leg and foot and left lower extremity below middle of the left thigh. His post mortem report, which is Ext ka 16 on record duly proved by Dr. S. M. Sharma PW 7 shows that he had died as a result of the burn injuries all over his body excepting the inner side of the right leg and foot and left lower extremity below middle of the left thigh. It is also admitted to the parties that Smt. Santosh had instituted proceedings under Section 125 of the Code of Criminal Procedure for maintenance and had prosecuted Narendra Kumar deceased for bigamy under Section 494 of the Indian Penal Code when Narendra Kumar married another lady and that Fakir Chand appellant had been doing Pairvi for her sister in these cases. 4. The prosecution examined Chandra Bhushan Sharma PW 1 and brought on record the dying declaration of Narendra Kumar Ext Ka 18 proved by Shyam Singh Yadav Deputy Collector, PW 4 to bring home the guilt of the accused to him. The fact that the dying declaration had been given by Narendra Kumar in a fit state of mind had been corroborated by Dr. S. M. Sharma PW 7. Chandra Bhushan Sharma PW 1 stated that when after taking his meals at about 10. 30 p. m. he was going for a stroll towards Priya Cinema Hall, Mawana, he saw that Narendra Kumar who had his house nearby, was coming out of it crying that ms brother-in-law and wife had burnt aim. The accused Fakir Chandra and Smt. Santosh Kumari also emerged from the same house and heading towards the above Cinema Hall disappeared in a lane. He went towards the clinic of Dr. Manvendra Sharma behind Narendra Kumar. It was there that he met Surendra Kumar complainant PW 2 who told him the whole story. Dr. Manvendra gave first aid to Narendra Kumar and advised that he should be taken to the medical college. Narendra could not be saved. Jai Deo, Mahendra and Jeeyut had also heard the [cries of Narendra Kumar. In the cross-examination he deposed that it was not a fact that his shop closed at 6. 00 p. m. every day. He admitted that earlier Tuesday was a closed day for shops but later the shops started closing on Wednesday. He could not tell whether the incident took place on Tuesday or Wednesday. In the cross-examination he deposed that it was not a fact that his shop closed at 6. 00 p. m. every day. He admitted that earlier Tuesday was a closed day for shops but later the shops started closing on Wednesday. He could not tell whether the incident took place on Tuesday or Wednesday. He admitted that he did not know either the accused Santosh or the accused Fakir Chand; from before the date of the incident. When he had first noticed Narender Kumar there were many others following him, Jai Deo and Mahendra Kumar were amongst them. The clinic of Dr. Manvendra was at a distance of 300 yards from the place where he first saw Narendra. He had reached the clinic of Dr. Manvendra after 10. 00 p. m. but did not remember the exact time. He did not go to lodge the first information report. Narendra had been treated by the compounder of Dr. Manvendra named Sri Ram. The doctor was not present there. He from Dr. Manvendra's clinic returned to his shop. He knew Narendra and Surendra because they used to purchase their grains from his shop on their ration cards. He had not gone to appear as a witness in any case for Narendra. He denied that he had been doing illicit trade with Surendra Kumar as his partner. 5. The counsel for the appellants argued that the statement of Chandra Bhushan Sharma could not be availed of by the prosecution to fix the guilt upon the appellants for they had not been put up for identification although on the own admission of this witness, he did not know them from before. This contention, there could be no doubt was not liable to brushed aside. Besides it is unintelligible as to how the complainant Surendra Kumar had alleged that he came to know of the involvement of the appellants in the crime only on 27-4-85 if he had a talk with Chandra Bhushan Sharma immediately after the incident on 12-3-85. Chandra Bhushan Sharma admitted that he lived in Meerut and had been going to Mawana for transacting business in the fair price shop. Chandra Bhushan Sharma admitted that he lived in Meerut and had been going to Mawana for transacting business in the fair price shop. The Mawana Market, he admitted, remained closed on Tuesday, Although Surendra Kumar after making the above state ment tried to show that during the days about the date on which the incident took place, shops had been remaining closed on Wednesday, his statement does not inspire confidence. Chandra Bhushan Sharma's narration that at the time when Narendra was rushing to the clinic of Dr. Manvendra Sharma, there were many other persons running behind him looks funny. Had it been so, the appellants if they would have committed the crime not run in the same direction to escape as was suggested by him. The complainant admittedly is the customer of Chandra Bhushan Sharma. Even if it was believed that he had no illicit trade in common with the complainant, although so suggested on behalf of the accused, it does appear to us that Chandra Bhushan has friendly relationship with the complainant and he agreed to be witness of the incident although he had not really seen it. 6. We next proceed to examine whether the dying declaration of Narendra Kumar (Ex ka 18) recorded by Addl. S. D. M., Shyam Singh could be relied upon. This dying declaration had been made in the Bhopal Nursing home on 14-3-85. The incident therein is shown to have taken place a day before on WEdnesday, the 13 of March, 1985. It is admitted to the prosecution itself that the incident had not taken place on Wednesday, the 13th of March, 1985 but on Tuesday the 12th March, 1985, two days before the statement of Narendra Kumar had been recorded by the Addl. S. D. M. WE had summoned A. S. Chauhan, Sub-Inspector who as noted in the G. D. (Ex ka 2) had made an enquiry on receiving information about the burn injuries of Narendra Kumar. He gave out that he had made efforts to gather his report alongwith the statements recorded by him but could not get the 'dariyaft Hall file' and the admission record of Narendra Kumar in the medical college, Meerut. A. S. Chauhan denied his alleged statement under Section 161, Cr. P. C. and pointed that the evidence gathered by him indicated that it was a case of attempted suicide. A. S. Chauhan denied his alleged statement under Section 161, Cr. P. C. and pointed that the evidence gathered by him indicated that it was a case of attempted suicide. The statement of A. S. Chauhan that pursuant to a direction he had made an enquiry and to him the incident appeared to be a case of suicide looks to be quite probable. The non-availability of the admission sheet and the bed head ticket of Narendra Kumar could as well be the result of manipulation at the instance of his near and dear one's for might be, in the admission sheet Narendra Kumar had indicated the cause of his burn injuries. It is not ruled out that Narendra Kumar was removed from the Medical College to a private nursing home out of for that the police might on tracing him prosecute him under Section 309 of the Indian Penal Code if he survived. The alleged dying declaration made by Narendra Kumar perhaps was for his own defence as evident from the testi mony of Dr. Manvendra Sharma that Narendra Kumar had told him that fed up with life he had burnt himself with the aid of kerosene oil. He had also pointed that Narendra Kumar when asked as to why he had done so, told him that he need not be bothered about it but had merely to treat him. Dr. Manvendra Sharma admitted that it was he who had sent the information Ex ka 12 to the police. In the cross-, animation he had admitted that he had not mentioned the name of the burnt person in Ex ka 12 but that could only be to save him from attempted suicide if adequate interest was not taken by the police for tracing him out as in this case soon after. In the complaint also it has not been shown by Surendra Kumar PW 2 that Narendra Kumar had disclosed to him at the clinic of Dr. Manvendra Sharma or in the Medi cal college that his wife Smt. Santosh and his brother-in-law Fakir Chand had burnt him. On the other hand Surendra Kumar as already indicated above, had pointed that he came to know of their complicity in the crime only after having got the copy of the dying declaration of Narendra Kumar. Surendra Kumar PW 1 on his showing had returned from Meerut at 10. On the other hand Surendra Kumar as already indicated above, had pointed that he came to know of their complicity in the crime only after having got the copy of the dying declaration of Narendra Kumar. Surendra Kumar PW 1 on his showing had returned from Meerut at 10. 30 p. m. when he learnt of his brother's burn injuries. The counsel for the appellants argued that Surendra Kumar could not have returned from Meerut in just two to three hours when he had to unload and load the truck. The name of Surendra Kumar was also not given out as the person who had accompanied Narendra Kumar to the hospital. The statement of Surendra Kumar about his having met Narendra Kumar at the clinic of Dr. Manvendra Sharma does not appear to us to be correct. The fact none the less on the prosecution's own showings that Narendra Kumar prior to his dying declaration Ex ka 18 had not told either Surendra Kumar or his other brothers or any other relative or friend that the appellant had burnt him although he was in a position to do so. This circumstance certainly further reduces the worth of the dying declaration Ex ka 18. The deying declaration, we are satisfied, was tutored and given with the motive to save himself and defeat the claim of Smt. Santosh Kumari for maintenance. The Additional Sessions Judge was not right in recording this finding that Smt. Santosh and Fakir Chand appellants had committed the murder of Narendra Kumar and were guilty under Section 302 of the Indian Pena1 Code. Narendra Kumar, it appears to be more probable had committed suicide. The appeal is allowed. The judgment and order of Sri V. M. Joshi VII Addl. Sessions Judge dated 7-3-89 convicting the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentencing Smt. Santosh Kumari to imprisonment for life and Fakir Chand to death, are set aside. The reference for confirmation of the death sentence consequently being ill founded, is also refused. Fakir Chand is in jail. He be released forthwith if not wanted in any other case. Smt. Santosh Kumari is on bail. She need not surrender to her bail bonds which are discharged. Appeal allowed and Reference refused.