P. K. BAHRI ( 1 ) AN Additional Sessions Judge, Delhi, vide his judgment dated March 28, 1992, has convicted appellants Mohd. Ari fand Mohd. Chunna of an offence punishable under Section 302 read with Section 34 of Indian Penal Code for having caused the murder of Sultana by causing burn injuries to her on April 22,1990 and vide separate order of the even date, he has sentenced both of them to undergo rigorous imprisonment for life each and to pay fine of Rs. 500. 00 and in default to undergo rigorous imprisonment for one month each. Mohd. Arif has fiied the appeal (Cr. A. 84/ 92) and Mohd. Chunna has filed the appeal (Cr. A. 104/92) challenging their convictions and the sentences. ( 2 ) DECEASED Sultana was aged about 15/16 years at the time of the occurrence. She was daughter of Public Witness-3 Razia and Public Witness-5 Mohd. Umar Din. The family was living in house No. G-4, Sheesh Mahal, Chandni Mahal, Delhi. Mohd. Arif @ Baboo, appellant, is real younger brother of Mohd. Umar Din while appellant Mohd. Chunna admittedly was a close friend of appellant Mohd. Arif. ( 3 ) mohd. ARIF was not having any good relations with his elder brother Mohd. Umar Din and there had taken place some criminal proceedings earlier between them. Documents Ex. Public Witness. H/a, Public Witness. 12/a and"public Witness. 12/b, which are the daily diary reports at Police Station Turkman Gate and a calandra under Section 107 and 151 of the Criminal Procedure Code, show that on January 13,1990, Mohd. Arif and Mohd. Azam were found quarelling with Mohd. Umar Din at his shop and they were also threatening him to teach him a lesson and thus the police was called and they were challaned under Sections 107 and 151 Cr. P. C. The cause of real trouble between the brothers is not very clear in evidence. ( 4 ) BE as it may, the story of the prosecution proceeds that Sultana having received the burn injuries at her residence was got admitted in L. N. J. P. N. Hospital on April 18, 1990 at 1. 45 P. M. by a neighbour namely Iqbal, Public Witness-7 and M. L. C, Ex. ( 4 ) BE as it may, the story of the prosecution proceeds that Sultana having received the burn injuries at her residence was got admitted in L. N. J. P. N. Hospital on April 18, 1990 at 1. 45 P. M. by a neighbour namely Iqbal, Public Witness-7 and M. L. C, Ex. Public Witness-4/a was prepared in which it was recorded that Sultana was conscious and she gave the history herself of having been burnt by someone but she did not disclose the name of the person who had done it. She was having about 90% burns. ( 5 ) CONSTABLE Balbir Singh, Public Witness-9, who was then posted in the said hospital, on telephone at about 2. 30 P. M. gave the information to the Police Station Chandni Mahal about Sultana having been got admitted by Iqbal having received the burn injuries. This report was recorded at daily diary No. 14/a, copy of which is Public Witness. 1/a. S. I. Om Prakash, Public Witness-16, accompanied by Constable Santosh Kumar, had reached the hospital and did not find any eye witness present at the said hospital and he obtained the M. L. C. and contacted the doctor for recording the statement vide endorsement Public Witness. 15/a on the M. L. C. itself she was declared unfit to give statement S. i. Om Prakash then came to the place of occurrence where he met Razia, mother of the girl, and proceeded to record her statement which is Ex. Public Witness. S/a and he made the endorsement, Ex. Public Witness. 16/a and initially got the case registered under Section 309 I. P. C. and vide F. I. R. No. 59/90 the case was registered at 4. 30 P. M. as it was considered to be the case of attempt to commit suicide on the part of the said girl. ( 6 ) RAZIA, in the said First Information Report, disclosed that she had five sons and a daughter and daughter was the eldest and in the morning her husband had gone to attend to his business at his shop and she along with her five children was present in the house and at about 1. ( 6 ) RAZIA, in the said First Information Report, disclosed that she had five sons and a daughter and daughter was the eldest and in the morning her husband had gone to attend to his business at his shop and she along with her five children was present in the house and at about 1. 30 P. M. Sultana had gone to the latrine for urinating and she heard her shrieks and saw Sultana coming out of the latrine and she was in flames and had reached upto the kitchen of the house and she was crying raising an alarm that she be saved and on her query, Sultana disclosed that she had burnt herself out of fear of Baboo Chacha and Kalaaadmi, It is then mentioned that many persons of the neighbourhood had collected which included Iqbal, Ehsan, Nadeem and Sarro who extinguished the fire by putting a blanket and a dan over her and thereafter she was taken to hospital in the rickshaw. She further disclosed that her brother-in-law Mohd. Arif @ Baboo was resident of Turkman Gate and was a vagabond as he was not earning anything and used to demand money from her husband and in case of refusal, he used to pick up quarrel and also some time gave beating to her husband and a report to the police in this respect was also lodged earlier. She went on to narrate that he had also been threatening them earlier frequently to kill them and make her daughter a prostitute. She referred to the visit of Mohd. Arif to her husband 4/5 days earlier at about 7 P. M. accompanied by another person, brother of Fazita, who was having some black spots on his face who resided in jhuggis of Nehru Hill and whom she also knew very well and at that time he had tried to molest her daughter and had tried to drag her in order to outrage her modesty and had also torn her clothes and on hearing her shrieks, she had come and they had then run away from the spot. She further mentioned that at that time her daughter had disclosed that her uncle and his companion had tried to outrage her modesty and had torn her clothes but she did not disclose these facts to any other member of the familyin order to preserve the honour of the family. She further mentioned that at that time her daughter had disclosed that her uncle and his companion had tried to outrage her modesty and had torn her clothes but she did not disclose these facts to any other member of the familyin order to preserve the honour of the family. She further mentioned that from that day onward, her daughter used to become sick and was always in fear of those persons and whenever their names used to be mentioned, she used to get unconscious and that on account of this mental torture, her daughter had attempted to commit suicide by setting herself ablaze by pouring kerosene oil on her person. ( 7 ) FROM the place of the incident, a torn piece of cloth of salwar of the deceased, one match-box containing unburnt match-sticks and two burnt match-sticks lying on the spot besides a plastic can containing some kerosene oil were taken into possession. The plastic can was lying in the latrine where the occurrence had taken place. The 1. 0. had recorded the statements of other witnesses, Iqbal as well as of Umar Din and he contacted the S. D. M. on telephone so that the statement of Sultana could be got recorded from the S. D. M. but Sh. R. S. Tandon, SDM did not come to the hospital for recording the statement on that day and subsequently he had contacted the S. D M. in his office but he declined to record her statement on the ground that Sultana was not a married girl and facts disclosed indicated that it was case of attempt to commit suicide. ( 8 ) IT appears that on 19th April 1990, at about 4. 40 A. M, Dr. Vikas Mahajan made an endorsement on the M. L. C, Public Witness. 15/c declaring the patient fit for statement and a report was sent to Police Station Chandni Mahal which was recorded at serial No. 4-A, copy of which is EX. Public Witness. 16/c at 4. 20 A. M. mentioning that Umar Din had informed on telephone from the hospital that his daughter Sultana had been declared fit to give a statement and some police officer be sent for recording the statement. S. I. Om Prakash, on receiving this information, reached the hospital and proceeded to record thestatement of Sultana which is Ex. Public Witness. 20 A. M. mentioning that Umar Din had informed on telephone from the hospital that his daughter Sultana had been declared fit to give a statement and some police officer be sent for recording the statement. S. I. Om Prakash, on receiving this information, reached the hospital and proceeded to record thestatement of Sultana which is Ex. Public Witness. 5/a which was got thumb impressed from Sultana and which was attested by none other than the father of the girl namely Mohd. Umar Din. In this statement, she gave out a totally different version as has been recorded in the F. I. R. and disclosed that the appellants, at that time and place, had come and had poured kerosene oil on her and they had set her ablaze by throwing a lighted match-stick on her. ( 9 ) ACCORDING to the prosecution, on April 20, 1990, the S. D. M. was then persuaded to come to the hospital but by the time S. D. M. reached the hospital on 20th April 1990, at about 2. 50 P. M, the doctor, vide an endorsement, Ex. Public Witness. 15/b declared Sultana as unfit to give statement and on the following day also on 21st April 1990, Sultana was declared unfit for giving statement. Sultana had succumbed to the injuries on 22nd April 1990 at about 6. 15 A. M. ( 10 ) INQUEST papers were prepared and post-mortem was performed on the dead body of the girl and vide Post-Mortem Report, Ex. Public Witness. 17/a, the doctor declared that cause of death was septicemia consequent upon infected burns which were ante- mortem of three to four days age and were caused by flames. ( 11 ) IT is not indeed disputed before us that the girl had met her end on account of receiving burn injuries on that day and at that time and place. The only question which has to be determined in the present case is whether it was a case of a suicide or was a case of murder. As already noticed, the first version given to the police was that it was a case of suicide. Law is well-settled that a conviction can be safely based on a dying declaration provided it is free from bias and infirmities and dying declaration commands acceptance at the hands of the Court. (See State of U. P. Vs. As already noticed, the first version given to the police was that it was a case of suicide. Law is well-settled that a conviction can be safely based on a dying declaration provided it is free from bias and infirmities and dying declaration commands acceptance at the hands of the Court. (See State of U. P. Vs. Shishupal SIngh, A. I. R. 1994 Supreme Court 129) ( 12 ) THE Supreme Court in case of Dalip Singh Vs. State of Punjab, A. I. R. 1979 Supreme Court 1173 has also laid down that although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Evidence Act in view of the exception provided in sub-section 2 of Section 162, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor. . The Supreme Court held that the practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. This is not to suggest that such dying declarations are always untrustworthy but what has to be emphasised is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by a police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. It was furtehr held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available to record the dying declaration. In the said case, the dying declaration was not relied upon as it contained a statement which was a bit doubtful. ( 13 ) THE Supreme Court in case of K. Ramachandra Reddy VS. The Public Prosecutor, A. I. R. 1976 Supreme Court 1994 had laid down that the dying declaration is undoutedly admissible under Section 32 and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. It was emphasised that once the Court is satisfied that the dying declaration is true and voluntary, it can be sufficient to found the conviction even without any further corroboration. It was also laid down in this very judgment that the dying declaration ought to be, as far as possible, recorded in the form of question and answers and as far as possible, in the words of the maker of the declaration. ( 14 ) BEFORE we deal with the statement of Razia, who has also committed summersault from what she had stated in the First Information Report by now coming out to be an eye witness of having seen the appellants present in the house soon after she had seen her daughter in flames and appellants making their escape from the house, we would first examine whether a dying declaration allegedly given by Sultana can be relied upon or not. ( 15 ) WE have no reason to doubt the testimony of Sub Inspector Om Prakash that he had made genuine efforts to get the dying declaration recorded from the S. D. M. on 18th April 1990 as this fact stands corroborated from the entry made by him in the daily diary, copy of which is Ex. Public Witness. 16/da. However, there have appeared certain inherent infirmities with regard to recording of the so-called dying declaration by the Investigating Officer. It has come out that on receipt of the copy of the daily diary report, Ex. Public Witness16/c, recorded at 4. 20 A. M. by which Mohd Umar Din had informed the police station that the patient was fit to give the statement. It has come out that on receipt of the copy of the daily diary report, Ex. Public Witness16/c, recorded at 4. 20 A. M. by which Mohd Umar Din had informed the police station that the patient was fit to give the statement. the Investigating Officer claims to have gone to the hospital and after recording the dying declaration, reached back the police station at 5. 30 A. M. and recorded in daily diary that he, on getting the report, reached the ward and inquired about the condition of the injured from the doctor on duty who mentioned that the patient was fit to give statement and thereafter he informed the S. D. M Sh. R. C. Yadav on telephone from the hospital and requested him to come to the hospital for recording the statement but S. D. M. refused to come and record the statement on being told the facts of the case and thereafter he had moved an application before the S. D. M. for getting the statement recorded but S. D. M. had refused to record the statement and then he had recorded the statement of Sultana and hadconverted the case from Section 309 I. P. C. to Section 307 read with Section 34 l. P. C. ( 16 ) IT is significant to mention that even in his report recorded in the said daily diary, the investigating officer does not say that he had requested the doctor concerned to record the statement of the patient. He does not say that even the doctor was present when he proceeded to record the statement of Sultana. He does not say that he had made any efforts to have any other independent witness to be present while he proceeded to record the statement of Sultana. He had not claimed to have taken any precautions to see that Sultana made a voluntary and truthful statement uninfluenced from her parents and other relations. Surprisingly and strangely, he recorded the statement in presence of Sultana s father. It is also clear that it was Sultana s father who obtained the endorsement from the doctor at 4. 40 A. M. declaring Sultana fit to give statement and he informed the police station on telephone and thereafter the Investigating Officer had come to the hospital. It was obviously Mohd. It is also clear that it was Sultana s father who obtained the endorsement from the doctor at 4. 40 A. M. declaring Sultana fit to give statement and he informed the police station on telephone and thereafter the Investigating Officer had come to the hospital. It was obviously Mohd. Umar Din who was moving in the matter so that a dying declaration of her daughter is recorded. ( 17 ) IN the present case, the possibility of Sultana being influenced and being tutored by her father, particulary before she made a dying declaration, cannot be at all over-ruled. This fact is present in all prominence in this case. We should not lose sight of the fact that there was clear enmity between him and his brother, appellant. Even in the First Information Report, Razia had imputed certain acts to appellant which make it obvious that the family was not very happy with the conduct of appellant on different occasions. The enmity obviously goes both ways. The same could provide as a provocation to the person to commit an offence, on the other hand, the same can also furnish as a good ground for falsely implicating the enemy in a case. ( 18 ) APART from these deficiencies, the 1. 0. has not stated that he had obtained any endorsement from the doctor, after coming to the hospital, that Sultana was fit to give statement. It must be remembered that Sultana was declared unfit for statement on being admitted in hospital and was declared unfit for statement on subsequent dates i. e. on 20th April 1990 as well as on 21st April 1990. It appears that she became fit for statement only for some period at 4. 40 A. M. but there is no opinion expressed by the doctor that she was fit for statement at the time the investigating officer came to the hospital and recorded the statement of Sultana. ( 19 ) THE I. O. states that he had met the doctor and had found out from him as to whether Sultana was fit for giving statement. ( 19 ) THE I. O. states that he had met the doctor and had found out from him as to whether Sultana was fit for giving statement. If that is so, it is not understood why the investigating officer did not insist upon the doctor to give the endorsement and write down the time for that purpose so that it could be ensured that Sultana was in a fit condition to give the statement at the moment the investigating officer had come to the hospital and recorded her statement. ( 20 ) THE investigating officer does not say on oath that he had made any request to the doctor that doctor should himself record the statement. Rather, he has come out with a strange deposition in Court that the doctor had told him that he had already recorded the statement of Sultana and that he would produce the same in Court if required. If that was the true state of facts, we do not see any reason why no efforts were made by the I. 0. either to collect that statement by persuading the doctor or to force the doctor to hand over that statement after requesting the higher authorities in order to give directions to the doctor that he should not withhold such a piece of evidence from the I. 0. No efforts were made even to examine that important doctor in Court as a witness. ( 21 ) THE practice of recording statements of clerks of the hospital in order to prove the endorsement and signatures of the doctors appearing in the M. L. Cs should be resorted to only as a last resort after making sincere efforts to procure the presence of the doctors in the Court for giving the statements. ( 22 ) WE are not satisfied that any such efforts were made by the prosecution agency so that Dr. Vikas Mahajan, the all important witness, could be examined in Court. It is well-known fact that doctors employed in the hospitals have their permanent addresses recorded in the hospital but the record does not show that any such address was collected by the prosecution or any summons were issued to such doctor at his permanent address. Vikas Mahajan, the all important witness, could be examined in Court. It is well-known fact that doctors employed in the hospitals have their permanent addresses recorded in the hospital but the record does not show that any such address was collected by the prosecution or any summons were issued to such doctor at his permanent address. Be as it may, the facts clearly show that Sultana could have been influenced by her father for giving any version which may be put in her mouth by her father. So, it is evident that possibility that Sultana was duly tutored by her father, who was a moving spirit for getting her statementrecorded, cannot be completely over-ruled. ( 23 ) IT was urged before us by the learned counsel for the State that in the history given by Sultana, when she was admitted in the hospital, she had mentioned that she was burnt by someone. So,it is sought to be urged that dying declaration given by her subsequently is in consonance with the said history. ( 24 ) AT this stage, we may mention that attempt to commit suicide was an offence at the relevant time and it is common knowledge that the persons, who attempt to commit suicide and are got admitted in hospital, their relations and other friends always try to influence the patient to give such a statement that it may not be inculpable that in case fortunately patient survives, he may not face the criminal trial of having attempted to commit suicide under Section 309 of the Indian Penal Code. So, nothing turns on this particular fact recorded in the M. L. C. and no corroboration could be available to the dying declaration from such a fact recorded in the M. L. C. In case the appellants were the culprits, there could be no reason as to why Sultana would not have given their names as she knew them very well, one of them being her real uncle. ( 25 ) THE I. 0. had not even made any statement in Court that he had tried to have a dying declaration witnessed by any independent witnesses i. e. the doctor or any other person present in the Ward or outside the Ward at that time. It would not be, in our view. safe to place any reliance on this dying declaration which has been recorded in very suspicious circumstances. It would not be, in our view. safe to place any reliance on this dying declaration which has been recorded in very suspicious circumstances. ( 26 ) AS far as the testimony of Razia is concerned, she had committed a complete summersault and the facts which she had stated in Court are at total variance with the facts stated by her in the First Information Report. No reliance could be placed on her testimony for bringing home the offence to the appellants. ( 27 ) MOHD. UMAR Din has also been confronted with his first statement made to the police which is again at variance as to what he had deposed in his subsequent statements. He admits having been present all along with his daughter in the hospital and his having obtained the endorsement of the doctor on the M. L. C. and having given the information to the police and also being present when allegedly the I. 0. recorded the statement of his daughter. ( 28 ) WE are not prepared to place any reliance on such shaky testimony of prosecution witnesses which do not stand corroborated from any independent material or evidence. ( 29 ) THE learned Additional Sessions Judge, in our view, was not right in placing implicit faith in the said so-called dying declaration of the deceased. We are not - satisfied that the statement given by Sultana was voluntary in any manner. Hence, we hold that conviction of the appellants is not well based. ( 30 ) WE allow the appeals and set aside the convictions and the sentences of the appellats and acquit the appellants of the charge. The appellants be released forthwith if not required to be detained in any other case.