D. G. KARIA, J. U. MEHTA, J. ( 1 ) CRIMINAL Appeal No. 1206 of 1985 is filed by the appellants-accused against the judgment and order rendered by the learned Addl. Sessions Judge Himatnagar dated 8/11/1985 in Sessions Case No. 50 of 1984 convicting the appellants-accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing each of them to undergo simple imprisonment for life. ( 2 ) PROSECUTION-CASE in brief is that at about 19 hours on 14/04/1984 accused No. 1- Lila and her aunt accused No. 2-Ditu alias Ditali caused death of Dilip who was to be husband of accused No. 1- Lila by sprinkling kerosene oil on him and by setting him on fire as the deceased Dilip doubted that Lila met her companion when she went to collect Mahuda. ( 3 ) P. W. 1 Shanta Ishwarbhai Exh. 16 sister of deceased Dilip deposed that accused No. 1-Lila and Dilip were in love. Deceased was residing with Lila at village Chitaria from where mother of Lila had brought both of them to Ganbhirpura and thereafter Dilip was residing at the place of Lilas parents at Gombhirpura as husband of Lila though marriage ceremony was yet to take place. Shanta also resided at village Ganbhirpura with her husband. ( 4 ) ACCORDING to the evidence of Shanta at about 6 p. m. on 14/04/1984 accused No. 2-Ditali came running to Shantas place and informed her that deceased Dilip sprinkled kerosene oil on himself and burnt. She asked Shanta to come running. Therefore Shanta immediately ran to the place of Lilas parents. On reaching there she saw that the deceased Dilip was being taken in a jeep by Mangaji father of accused No. 1-Lila. Shanta also went in the jeep to Bhiloda where the deceased Dilip was taken for treatment. Shanta went running to the place of parents of accused No. 1 when she was informed by accused No. 2 that the deceased was burnt. If accused No. 2-Ditali had any motive or guilty conscience to cause burns to deceased Dilip she would not have immediately rushed to the place of Shanta. Shanta deposed that her brother Dilip told her in the dispensary at the time of his treatment that accused No. 1-Lila sprinkled kerosene and accused No. 2 Ditali applied burning lamp (Chimni) on him. Shanta deposed that her brother Dilip told her in the dispensary at the time of his treatment that accused No. 1-Lila sprinkled kerosene and accused No. 2 Ditali applied burning lamp (Chimni) on him. In the next breath she says that Lila and Ditali both sprinkled kerosene oil and applied Chimni. She says that there was intense love between deceased Dilip and accused No. 1- Lila. She stated that her brother had not any suspicion on accused No. 1- Lila nor Dilip had talked anything in respect of Lila to her. She admitted that there existed a well in the field of Trivedi Shankerlal Krishnalal. She stated that she did not know if her brother had gone to fall in the well in the field of Shankerlal at about 6-45 p. m. on the day of the incident. She stated that the said talk took place in the dispensary of Dr. Manubhai. In fact no treatment was given in the dispensary of Dr. Manubhai. She stated in her police statement that deceased Dilip had suspicion on accused No. 1-Lila as she used to meet her companion while going to collect Mahuda. However she denied the suspicion in the cross-examination. This contradiction is duly proved in para 12 of the deposition of P. W. 14 Manharprasad Nagardas Patel the Investigating Officer at Exh. 49. She of course denied the suggestion that her brother committed suicide. However on close scrutiny of evidence of Shanta it becomes clear that she had changed the story in her deposition and as such her evidence become doubtful. It is also not clear as to which accused sprinkled kerosene and who applied the lamp. There is therefore inconsistency regarding the occurrence of the actual incident in evidence of Shanta. Suspicious circumstances and infirmities in evidence with regard to the dying declaration and evidence of Bai Shanta raise reasonable doubt as to the guilt of the accused persons. The learned Addl. Sessions Judge has also recorded that there was no intention on the part of the accused persons to cause death of the deceased Dilip. ( 5 ) DILIP was taken to the dispensary of P. W. 5-Dr. Manubhai Hiralal Joshi Exh. 25 at Bhiloda. Dr. Manubhai testified that the deceased was not conscious when he was brought to his dispensary. He therefore immediately phoned the police. ( 5 ) DILIP was taken to the dispensary of P. W. 5-Dr. Manubhai Hiralal Joshi Exh. 25 at Bhiloda. Dr. Manubhai testified that the deceased was not conscious when he was brought to his dispensary. He therefore immediately phoned the police. He also phoned the Mamlatdar for the purpose of recording his dying declaration. The prosecution however declare this witness as hostile. ( 6 ) SIMILARLY the prosecution also declared P. W. 6-Chunilal Kanjibhai Gameti Exh. 27 who is the Compounder of Dr. Manubhai as hostile. P. W. 6 Chunilal has deposed that the deceased did not make any statement in presence of Dr. Manubhai as to who had burnt him. He denied the suggestion that both the accused having sprinkled kerosene oil on the person of the deceased had burnt him. ( 7 ) THE deceased Dilip was then immediately taken to Cottage Hospital at Bhiloda. P. W. 9.- Dr. Govindbhai Purushottamdas Patel was incharge of the Cottage Hospital. He has deposed aiexh. 33 that at about 9-25 p. m. on 14/04/1984 deceased Dilip was brought to Cottage Hospital. He was conscious at that time. The deceased stated to Dr. Govindbhai that accused No. 1-Lila and her aunt-accused No. 2 Ditali sprinkled kerosene oil on the deceased and had burnt him. Thereafter the Mamlatdar had come there and he recorded the dying declaration of the deceased. We shall refer to dying declarations and evidence relating thereto later. Dr. Govindbhai admits that he did not make any attestation on the dying declaration recorded by the Mamlatdar. He produced the case-papers at Exh. 34 at the instance of the defence. The deceased Dilip remained at Cottage Hospital only for ten minutes. He also admits that he did not give any certificate in writing about the state of mind of the deceased to Mamlatdar who recorded his dying declaration. He has stated that the injuries of burn were to the extent of 95 percent on the person of deceased Dilip. Be it noted at this stage that the case-papers Exh. 34 are merely produced by Dr. Govindbhai P. Patel and contents thereof are not proved according to law. It is also not clear from his evidence as to at whose instance the case-history was recorded in the case papers. We have perused the original case-papers at Exh. 34. It appears that there are some additions made therein consequently. 34 are merely produced by Dr. Govindbhai P. Patel and contents thereof are not proved according to law. It is also not clear from his evidence as to at whose instance the case-history was recorded in the case papers. We have perused the original case-papers at Exh. 34. It appears that there are some additions made therein consequently. The learned Additional Public Prosecutor has also conceded this fact. In the case-papers the history of burns smell of kerosene and the patient being conscious are stated but the said contents are not proved by substantive evidence. Besides the name of the village names of the accused persons and such other details are not necessary to be recorded in case-papers. One would fail to understand as to why and at whose instance such details which are not normally noted in medical case-papers have been recorded. The case-papers read as a whole do not appear to be made at the time when the deceased Dilip was brought at the Cottage Hospital. ( 8 ) MR. K. V. Shelat learned Additional Public Prosecutor argued that the case-papers Exh. 34 have been got produced at the instance of the defence and therefore the same should be treated as proved. We are at loss to conceive as to why the prosecution did not produce and prove the case-papers. However we cannot accept submission of Mr. Shelat for Section 51 of Evidence Act provides to prove contents of documents by primary on secondary evidence. There is no evidence with respect to proof of contents of the case-papers. ( 9 ) DECEASED Dilip was thereafter brought to the Civil Hospital at Himatnagar at about 10-45 night on 14/04/1984 P. W. 7- Dr. Naresh Joitaram- Exh. 30 who was on duly at the Civil Hospital Himatnagar deposed that the deceased Dilip was burnt on his whole body except the chest-part. He was conscious. On inquiry by the doctor the deceased had told the docter that his wife Lila and aunt Ditali had sprinkled kerosene oil on him and had burnt him. He recorded the said fact on case-papers which are produced at Exh. 31. He also informed the police to record the dying declaration of the deceased. Deceased Dilip died at 6-30 morning on 15/04/1984 In his cross-examination Dr. Naresh has admitted that the deceased was burnt to the extent of 95 %. He recorded the said fact on case-papers which are produced at Exh. 31. He also informed the police to record the dying declaration of the deceased. Deceased Dilip died at 6-30 morning on 15/04/1984 In his cross-examination Dr. Naresh has admitted that the deceased was burnt to the extent of 95 %. He also admitted that deceased Dilip was sinking when he was brought to him. He admitted that if there is congestion in larynx the person cannot speak. He has also admitted that if there is congestion in the lungs the blood would not reach brain and brain would stop working. He has admitted to have administered pathedrine injection at 10-45 p. m. on 14/04/1984 ( 10 ) THE Prosecution examined P. W. 8-Dilip Kumar Savjibhai Asari at Exh. 32. He deposed that the dead body of deceased Dilip was brought to him at about 12-0 5/04/1985 for its post-mortem. On examination he found that the brain of the deceased was congested. The larynx and trachea of the deceased were also congested. The right lung of the deceased was also congested. He stated that the left lung was in the same condition as that of the light one. He opined that death was caused due to extensive burn injuries and shock. He produced the post-mortem report at Exh. 10 wherein the aforesaid facts are stated. He has stated that the process of congestion would be gradual. He stated that 90 degree burns were on the person of the deceased. He also stated that on account of larynx and trachea being congested person cannot speak. ( 11 ) WE may now deal with dying declarations on record. P. W. 10 Motilal Lallubhai Parmar Exh. 35 who was the Executive Magistrate of Bhiloda at the relevant time has recorded dying declaration of the deceased. The dying declaration is at Exh. 36. According to this witness the deceased Dilip was conscious. He recorded the dying declaration of the deceased as stated by the deceased. According to his substantive evidence and dying declaration Exh. 36 the deceased had a quarrel with his wife Lila and hence his wife Lila and her aunt Ditali sprinkled kerosene from a tin of four litre kerosene oil and threw a burning lamp on him and as a result he was burnt. The deceased then came running out of the house and started lolling in the compound. 36 the deceased had a quarrel with his wife Lila and hence his wife Lila and her aunt Ditali sprinkled kerosene from a tin of four litre kerosene oil and threw a burning lamp on him and as a result he was burnt. The deceased then came running out of the house and started lolling in the compound. He stated that accused No. 1 Lila poured water on him to extinguish the fire. ( 12 ) THE learned Addl. Sessions Judge relying upon the at aid dying declaration Exh. 36 convicted both the accused persons for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. ( 13 ) THERE is another dying declaration Exh. 48. That is recorded by P. W. 13. Somabhai Kayabhai a Police Head Constable. The deceased Dilip is said to have stated before the Police Head Constable that accused No. 1- Lila asked him to go and take bath but the deceased did not do so. And Lila sprinkled kerosene oil on him and Lila and Ditali both brought burning lamp and applied it on him at 7 p. m. on the day of incident. The deceased was burnt he raised shouts but none saved him and he had burns on his whole body as Lila and Ditali both poured kerosene oil and set fire on him. Reasons of causing fire assigned by the deceased is that accused No. 1- Lila had gone to collect Mahuda without asking him so he asked her as to why she had gone without talking to him; and so he was set on fire by pouring kerosene oil on him by both the accused. ( 14 ) THERE is also no certificate by the Doctor Naresh Joitaram Exh. 30 as this dying declaration Exh. 48 that the deceased Dilip was conscious and was in a fit state of mind and body to give dying declaration. Besides there are material infirmities in both the aforesaid dying declarations. Police Head Constable Somabhai Exh. 47 says that he recorded dying declaration Exh. 48 at 10-45 p. m. on 14/04/1984 Medical case-papers Exh. 31 read that the deceased Dilip was admitted in the hospital at 10-45 p. m. on day of incident -. Dr. Naresh deposes that he administered pathedrine injection to Dilip at 10 p. m. on that night. Police Head Constable Somabhai Exh. 47 says that he recorded dying declaration Exh. 48 at 10-45 p. m. on 14/04/1984 Medical case-papers Exh. 31 read that the deceased Dilip was admitted in the hospital at 10-45 p. m. on day of incident -. Dr. Naresh deposes that he administered pathedrine injection to Dilip at 10 p. m. on that night. Apart from this time-confusion it is difficult to believe that the wife would be so enraged on either cause that (1) her husband did not go to take bath or (2) that he asked her as to why she went to collect Mahuda without his permission that Lila accused No. 1 would go to the extent of causing death by setting him on fire. However no cause is assigned by deceased Dilip nor any motive is attributed in dying declaration-Exh. 36. The learned Addl. Public Prosecutor has rightly conceded that dying declaration - Exh. 48 does not imspire any confidence and cannot be taken into consideration to conclude that accused persons committed such ghastly acts. ( 15 ) IT is also not believable that the deceased Dilip would silently surrender to the acts of pouring kerosene oil on him and setting fire inasmuch as prosecution does not say anything about any attempt for escaping or defending himself to conceive that he would sit silently and allow such ghastly acts being committed on him without any act of defence. ( 16 ) AT this stage say of the accused be seen. On the day of the incident deceased had gone to fall in well situated in the field of Shankerlal Krishnalal Brahmin. Accused No. 1-Lila went after him and brought him back. The defence has examined in this connection D. W. 1 Maganbhai Kalabhai at Exh. 57 who deposed that the deceased Dilip was going to fall in the well at Chanchiwada and his wife Lila stopped him. Lila saidthat the Police had recorded his statement. However the prosecution did not examine him as its witness. By Exh. 55 both the accused persons have given their statements in writing that they are innocent and the day of the incident between 6-45 and 7-00 p. m. Dilip has gone to fall in the well in the field of Shankerlal. However he was persuaded and was brought back by accused No. 1-Lila. Thereafter Dilip committed suicide by burning himself. 55 both the accused persons have given their statements in writing that they are innocent and the day of the incident between 6-45 and 7-00 p. m. Dilip has gone to fall in the well in the field of Shankerlal. However he was persuaded and was brought back by accused No. 1-Lila. Thereafter Dilip committed suicide by burning himself. Accused No. 2 stated that she was falsely implicated in the case. ( 17 ) THE crucial question that arises for consideration is whether the deceased committed suicide by burning himself on account of emotion and alleged suspicion on character of accused No. 1 or whether he was burnt to death by both the accused persons. There is no direct evidence to prove either of these two vital versions. As stated aforesaid the defence tried to substantiate suicide theory. The learned Addl. Sessions Judge has entirely based his Judgment and findings on dying declaration Exh. 36. Does the dying declaration at Exh. 36 inspire any confidence? The dying declaration Exh. 36 is not certified by Dr. Govindbhai P. Patel though he was present there. There is nothing in the evidence of Mamlatdar Motilal Lallubhai Parmar Exh. 35 and the dying declaration at Exh. 36 to establish that the deceased Dilip was in fit state of mind and body to give dying declaration. We are unable to conceive why a doctor though present there did not record his certificate that the deceased Dilip was in a fit state of mind to give dying declaration. The dying declaration Exh. 36 is also not read over to the deceased Dilip after its recording was completed. Having regard to the attendant circumstances and medical evidence dying declaration Exh. 36 becomes doubtful and it is unsafe to rely on it to warrant a conviction for the offence punishable under Section 302 of the Indian Penal Code. In view of evidence of Dr. Dilip Kumar Savjibhai Asari-Exh. 32 and post-mortem report at Exh. 10 and other medical evidence or record it is difficult to believe that the deceased -was in a fit state of mind and body to make any kind of coherent and credible statement relating to the circumstances which resulted in his death. The deceased did not assign any cause nor attributed any motive to either of the accused in dying declaration Exh. 36. The causes stated in dying declaration Exh. The deceased did not assign any cause nor attributed any motive to either of the accused in dying declaration Exh. 36. The causes stated in dying declaration Exh. 48 are too trivial and trifle to cause death by burns of the husband by his wife. According to P. W. 1 Shanta there was intense love between Lila and the deceased. It is general principle that a dying person would not falsely implicate any person but having regard to the attendant circumstances and particularly when no motive is substantiated it is hazardous to accept that mind of deceased Dilip was free from feeling which afflict the generality of human beings. The deceased Dilip having 6 degree burns could not possibly have been able to make any kind of intelligible statement. Therefore his dying declaration cannot be relied upon inasmuch as it does not inspire any confidence in view of the attendant circumstances. ( 18 ) THERE is no direct evidence of acceptable value with regard to motive for commission of the crime. Having regard to the facts and circumstances of the case question of motive becomes quite material. Motive behind the crime which is punishable under Section 302 of the Indian Penal Code is relevant fact and evidence should have been adduced therefor. No such evidence is on the record. On the contrary evidence of P. W. No. 1 Shanta nullified alleged motive of suspicion on character of Lila. So far as accused No. 2-Ditali is concerned there is no allegation whatsoever in regard to motive for causing such extensive burns to the deceased Dilip. The absence of motive being proved the accused cannot be said to have committed the crime. There is no proof nor even allegation that there was common intention of the accused in furtherance of which the crime was committed. ( 19 ) THE learned Additional Sessions Judge appears to have lost sight of the following conduct on the part of the accused: (1) Accused No. 1 Lila immediately poured water on Dilip to extinguish fire. (2) Accused No. 2 soon went running to house of Dilips sister Shanta and informed her that Dilip was burnt and told Shanta come running. (3) Immediately after the incident Mangaji father-in-law of Dilip sent for jeep from Bhiloda and shifted the deceased for medical treatment. ( 20 ) THE aforesaid conducts are relevant under Section 8 of the Evidence Act. (3) Immediately after the incident Mangaji father-in-law of Dilip sent for jeep from Bhiloda and shifted the deceased for medical treatment. ( 20 ) THE aforesaid conducts are relevant under Section 8 of the Evidence Act. If accused had intended to cause death of Dilip they would not have acted in the way they have behaved. Their conducts are natural and probable in view of the incident. The said conducts have not been dealt with on discussed in the impugned judgment. In our opinion suicide-story appears to be more probable. In view of the above conducts of accused and Mangaji Dying declarations are not truthful so as to inspire confidence. We have perused map Exh. 50 and Panchnama Exh. 20 in respect of scene of offence. The incident does not appeal to have taken place as is alleged by the prosecution. Panchnama Exh. 51 shows that there were no signs of injury or burns on any of the accused persons. It appears that there may be some quarrel or difference of mind between accused No. 1 and deceased Dilip. Unfortunately there is no proper and just investigation with regard to such quarrel and the reason why Dilip had gone to fall in the well. There is no propel and adequate proof with regard to motive. Investigating Officer should have taken finger prints on the tin from which kerosene oil is alleged to have been sprinkled or poured on the deceased. Having regard to the evidence on record the defence case that deceased committed suicide cannot be ruled out. In any view of the matter it raises reasonable doubt as to the guilt of the accused persons. Both the accused are therefore entitled to the benefit of doubt. . ( 21 ) IN the result Criminal Appeal No. 1206 of 1985 is allowed. The impugned judgment and order of conviction and sentence rendered by the learned Addl. Sessions judge are set aside. Both the accused are acquitted of the offences with which they were charged. They are ordered to be set at liberty forthwith if not required in condition with any other offence. ( 22 ) CRIMINAL Appeal No. 45 of 1988 filed by the State for conversion of simple imprisonment awarded to the accused into rigorous imprisonment does not survive in view of the fact that Criminal Appeal No. 1206/85 is allowed by us today. ( 22 ) CRIMINAL Appeal No. 45 of 1988 filed by the State for conversion of simple imprisonment awarded to the accused into rigorous imprisonment does not survive in view of the fact that Criminal Appeal No. 1206/85 is allowed by us today. Criminal Appeal No. 45 of 1988 is therefore dismissed. ( 23 ) SIMILARLY Misc. Criminal Applications No. 2540 and 2541/85 filed by the accused for converting the simple imprisonment awarded to them into rigorous imprisonment for the purpose of getting remissions furlough leave etc. also do not survive and therefore no order is passed thereon. Rule in each of the said Misc. Criminal Applications is discharged. Order accordingly. (ISS) Order accordingly. .