JUDGMENT 1. - The present appeal has been filed by the accused appellants against the judgment dated 9.9.1997 passed by the learned Additional Sessions Judge, Rajgarh in Sessions Case No. 75/96. 2. The accused appellants were charged under Sections 147, 148, 364, 323/149, 342 and 302 read with Section 149 I.PC. and tried by the learned Additional Sessions Judge, Rajgarh. 3. The prosecution was initiated on the basis of F.I.R. No. 139/96 lodged on 8.5.1996 at Police Station, Rajgarh. This report was based on a statement recorded by the police of Ashok Kumar deceased. In this statement, the deceased Ashok Kumar stated that six years before, he was married to Sunita daughter of Subhash Sharma. Some times after the marriage, his wife Sunita, father in-law Subhash, mother-in-law Kamla and maternal uncle of his wife Govind Ram started accosting the deceased that he should sell out his land and join them at Rajgarh and live with them. He should contribute his earnings to them. On 9.5.1996 his brother in-law Raj Pal was going to be betrothed. All of them said to him that since the betrothal is to take place, therefore, he has to give money. The deceased said that he declined, because he was having no money. It has further been stated in the statement that since he was working as a private vaidya in a village Chainpura Chhota, therefore, he come to Sidhmukh on 8.5.1996. There maternal uncle of his wife Govind Ram met him and enquired as to whether he has brought the money or not. when he declined, Govind Ram came to him in the bus and started quarrelling with him. At that time in the bus Shiv Kumar and Prakash Singh of his village were in the bus who tried to intervene but Govind Ram did not spare him and then he was taken to Rajgarh. At Rajgarh Rajpal also met and Rajpal and Govind Ram brought the deceased to his in-laws' place. From there he was brought to the first floor of Randhir Fauzi's room where his wife, father in-law, mother in-law, maternal uncle of his wife and brother in-law Rajpal also came. All of them poured kerosene oil on him and Rajpal lit the match stick. After that all of them made their escape good. He came down stairs with difficulty. People took him to hospital. All of them poured kerosene oil on him and Rajpal lit the match stick. After that all of them made their escape good. He came down stairs with difficulty. People took him to hospital. Having come down stairs he started rolling on the land. Neighbours extinguished the fire by putting sand. He also alleged that he was made to sign certain blank papers. 4. After recording of this statement the same was sent for recording the F.I.R. Formal F.I.R. Ex.R 10 was recorded and the investigation commenced. The investigating agency considering there grave situation asked the Judicial Magistrate, Rajgarh to record the statement of the deceased. He recorded the statement of deceased Ashok Kumar at 4.25 PM. on 8.5.1996. Ashok Kumar succumbed to his injuries around about 6.30 PM. while he was being shifted to Churu for further treatment on 8.5.1996 itself. During the investigation various statements were recorded. After that challan was presented against the five accused appellants. Another named accused Randhir Singh Fauzi was not challaned because he could not be apprehended by the police and he is still at large. A report under Section 173(8) Cr.P.C. was presented against him. 5. At the trial, the prosecution examined 29 witnesses and produced 54 documents. In defence no statements were recorded and only 3 statements of the witnesses were got exhibited. 6. After the trial, the learned Additional Sessions Judge considered the case of the prosecution and concluded that the accused had been pressurising the deceased Ashok Kumar to part with money. To get separated from his family and sell his share of the property and join them at Rajgarh. The learned Additional Sessions Judge further found that the accused had been pressurising the deceased that a F.D. of Rs. 25,000/- be also made in the name of Sunita. On being refused the accused was threatened. While Sunita was being taken by her relations she had also threatened that she knows how to take her share. She knows people who can even kill Ashok Kumar or take her share. 7. The learned trial court took note of Ex.R 24 a letter written by the deceased to his father who produced the same before the investigating agency. In this letter, the deceased has written that his in-laws including his mother-in-law, father-in-law, wife, brother-in-law and maternal uncle of his wife Govind Ram have made his life miserable. 7. The learned trial court took note of Ex.R 24 a letter written by the deceased to his father who produced the same before the investigating agency. In this letter, the deceased has written that his in-laws including his mother-in-law, father-in-law, wife, brother-in-law and maternal uncle of his wife Govind Ram have made his life miserable. They are planning to kill him. He has further noted from Ex.R 24 wherein the deceased has expressed his apprehensions that God alone knows what is going to happen with him when his own wife is the enemy of his life. He expressed doubt whether he will remain alive or not. The happiness and reputation of the family had gone to dust. The learned trial court has drawn corroboration from this letter that a difficult situation was created by his in-laws. 8. The learned trial court has also noticed that the dying declaration recorded by the learned Magistrate is a truthful account as to what has happened and he believed the version given out by the deceased in his statement. The defence argument that no body had seen the accused taking the deceased to first floor, burning the deceased was repelled by the learned trial court. It was observed that Randhir Fauzi took the deceased to first floor and all the accused reached. When he was taking meal. After pouring kerosene and burning accused left the place of occurrence. As deposed by the deceased in his statement, soon after the burning accused had left the place of occurrence. Therefore, it was not accepted that in a busy market the people will take notice of the fact that some one going upstairs and down stairs, without there being any reason. The accused made their escape good before notice of situation was taken. The neighbours have only seen the deceased burning on the ground and nothing turns out from the fact that no neighbour has been able to depose about the presence of the accused at the scene of occurrence. Every body has seen the burning deceased on the ground after the accused had left the place of occurrence. Therefore, there was no question of presence of the accused being noticed at the scene of occurrence. 9. Every body has seen the burning deceased on the ground after the accused had left the place of occurrence. Therefore, there was no question of presence of the accused being noticed at the scene of occurrence. 9. In the above back-ground the learned trial court has recorded a finding that all the accused persons had formed a common object of killing the deceased Ashok Kumar and, therefore, they were held guilty under Section 302 read with Section 149 I.P.C., 147, 342 and 323 read with Section 149 I.P.C. and sentenced to life imprisonment under Section 302/149 I.P.C. and to pay a fine of Rs. 2,000/- and in default to 6 months S.I., one year S.l. under Section 147 I.P.C., six months S.l. under Section 342 I.P.C. and six months S.I. under Section 323/149 I.P.C. The accused were however not held guilty under Sections 148 and 364 I.P.C. by giving benefit of doubt. 10. Being aggrieved by the aforesaid conviction and sentence the present appeal has been filed by the accused appellants. 11. The case of the accused appellants is that the basis of conviction is the dying declaration Ex.R 2 is not that kind of statement which can inspire confidence. In this statement it has been stated at the initial stage that all the accused have burnt the deceased. Whereas in the later portion of the statement at page 4 the deceased has stated that either Randhir or maternal uncle of his wife poured oil and the other one lit the match stick. Thus, the deceased was not sure as to who actually burnt him. This statement was different from the statement Ex.P. 11 recorded by the police wherein in portion G to H it was stated that all poured oil on him and Rajpal lit, the fire. There being a clear variance in the two dying declarations, the dying declaration should not be made the basis of conviction of the accused appellants. 12. Learned counsel for the appellants has placed reliance on a judgment of the Hon'ble Supreme Court in the matter of Shakuntala v. State of Punjab 1994 SCC (Cr.) 1781 , wherein the Hon'ble Supreme Court has held that to base a conviction on the basis of dying declaration, the court must satisfy that it is wholly reliable and it should not suffer from any major infirmity. If there are some infirmities then the court should examine whether they are fatal or whether there is any corroborating evidence which supports the prosecution case and renders the dying declaration acceptable. In this case, the Hon'ble Supreme Court observed that all the documents also go to show that the deceased was not in a fit condition to make a statement. Under these circumstances, the dying declaration was rejected by the Hon'ble Supreme Court. 13. Learned counsel for the accused appellants has further relied upon another judgment of the Hon'ble Supreme Court in the matter of Jagga Singh v. State of Punjab AIR 1995 SC 135 , wherein the Hon'ble Supreme Court has observed that the dying declaration which was made the basis of conviction was not certified by the doctor that the deceased was in a fit condition to give the statement. The Hon'ble Supreme Court also found the statement to be improbable. An important factor regarding the attempted rape which was incorporated in the dying declaration was not supported by the deposition of the brother, the neighbours also did not support the case of attempted rape. Thus, the dying declaration was not found supportable on material counts and the Hon'ble Supreme Court did not accept the dying declaration. 14. The dying declaration Ex.R 2 requires to be gone into in detail.The incident is alleged to have taken place at 2.45 PM. The dying declaration Ex.R 2 was recorded by the learned Magistrate at 4.25 PM. In this statement the learned Magistrate has taken the report of the doctor attending the deceased that the deceased was in a fit state of giving statement. Such certificate of the doctor has been recorded as I to J on the requisition of the police, to the learned Magistrate, for recording the statement. Learned Magistrate has further noted that no police official or relation of the deceased was permitted to remain present at the time of recording of the statement. Learned Magistrate has recorded the statement in question answer form wherein the deceased has said that the incident took place about one or one and half hour before the statement. The incident occurred in the kitchen which is situated on the first floor of Balaji Kambal Bhandar, behind Post Office, Rajgarh. Learned Magistrate has recorded the statement in question answer form wherein the deceased has said that the incident took place about one or one and half hour before the statement. The incident occurred in the kitchen which is situated on the first floor of Balaji Kambal Bhandar, behind Post Office, Rajgarh. The burning took place by kerosene oil and burning was done by his wife Sunita, mother in-law Kamla, father in-law Subhash Gaur, Fauzi Randhir Singh who is the owner of the shop, maternal uncle of the wife of the deceased Govind Ram and his brother in-law Rajpal. 15. On being asked as to why this was done, it has been reported by the deceased that they all said that you sell out your share and come to Rajgarh and do your practice here in a nearby village. It is further stated in the statement that it is the fourth year of marriage and during this period a sum of about Rs. 30,000/- has been taken from him by his wife and given to her parents. His father in-law used to say that he should bring money otherwise they will not send their daughter. Whatever ornaments were given by his father to his wife, she had given them to her parents. 16. On being asked as to what happened today, the deceased replied that day before yesterday his brother in-law and Randhir Fauzi came to his place at Bhinai to escort his wife Sunita to Rajgarh, on account of betrothal ceremony of Rajpal. He did not send his wife alongwith them. He said that the betrothal ceremony is on 9th and on 8.5.1996 he will come alongwith Sunita. At that time he was threatened by them that either he should send her otherwise they will come with 10 persons (gundas). In the evening maternal uncle and aunty of his wife came and at that time he sent his wife alongwith them. 17. Today, while he was going to Chhota Chainpura by bus, where he used to work, then maternal uncle of his wife met him at the bus stand. First he asked him from the window whether he brought the money. He replied that from where he would bring the money and he further said that, he cannot bring the money. Govind Ram came inside the bus and started giving him beating. First he asked him from the window whether he brought the money. He replied that from where he would bring the money and he further said that, he cannot bring the money. Govind Ram came inside the bus and started giving him beating. At that time Shiv Kumar Sharma and Onkar Singh Rathore intervened but he did not leave him. In this quarrel one window pane of the bus was also broken by his head. Till the bus reached Rajgarh bus-stand he was being given beating. 18. He was not permitted to go to Chhota Chainpura. At Rajgarh bus stand Rajpal who is a vendor there also met. He and maternal uncle of his wife Govind Ram forcibly took him to the place of his in-laws. There every body scolded him and he was frisked there. He had Rs. 3,350/- on his person which he had to pay Berasariya Medical Store. This amount was taken away by them. 19. Thereafter he was taken to the upper room of the shop of Fauzi Randhir Singh. There he was made to eat one Chapati. Before that at the house of in-laws few blank papers were also get signed from him. Thereafter mother in-law, father in-law, his wife, brother in-law Rajpal every body assembled there in the kitchen where he was eating chapati, then oil was poured either of the two Randhir Singh or maternal uncle of his wife and the other one lit the fire. After lighting the fire they ran away downwards. He did not permit them to close the door on him. In this state of burning he came down stairs and there the neighbours extinguished the fire. This statement of the deceased is the subject matter of scrutiny of this Court. 20. Learned counsel for the accused appellants has stated that none of the persons who saw the deceased burning had deposed that any one of the accused burnt the deceased. Only Subhash was seen there or Randhir Singh was seen there. Subhash has escorted the deceased to the hospital. The presence of other accused persons have not been deposed by any of the witnesses. Therefore, the version given in the dying declaration Ex.R 2 cannot be relied upon for conviction of the accused appellants. 21. Only Subhash was seen there or Randhir Singh was seen there. Subhash has escorted the deceased to the hospital. The presence of other accused persons have not been deposed by any of the witnesses. Therefore, the version given in the dying declaration Ex.R 2 cannot be relied upon for conviction of the accused appellants. 21. Learned counsel for the accused appellants has further stressed that it could be an accidental fire and that is why the gas cylinder was put down and the deceased taking advantage of accidental fire has tried to implicate the accused persons against whom he had nursed a grudge. 22. Learned counsel for the accused appellants has further stressed that it is not only improbable but also impossible that so many persons will connive to commit an act as has been alleged by the prosecution. May be that the deceased who was subjected to humiliation has committed suicide. The manner of occurrence as stated by the prosecution is improbable and the occurrence had taken place in some different manner. Unless the prosecution comes with the true story no reliance can be placed thereon. No specific role has been assigned to each accused person and, therefore, no conviction can be recorded against the accused appellants. Leanred counsel has further stressed that had the accused been present they must have been noticed by the witnesses. 23. Learned Public Prosecutor assisted by Mr. Sahu appearing for the complainant has stressed that the dying declaration Ex.P 2 and Parcha Bayan Ex.R 11 both form a substantial piece of evidence for conviction of the accused appellants. Both the statements which are in detail have given the precise sequence of the events. The contradictions indicated by the learned counsel for the appellants are not in terms contradictions but are only descriptive lapses and, therefore, they cannot be termed to be contradictions. When a story is narrated time and again lapses occur. Such lapses did not cut across each other but were rather supplemental to each other. 24. Ex.R 2 statement was recorded by the learned Magistrate after taking all due formalities. The learned Magistrate has taken a certification of the doctor regarding the fitness of the deceased for giving statement. Every police official or person close to the deceased was not present before statement Ex.R 2 was recorded. 24. Ex.R 2 statement was recorded by the learned Magistrate after taking all due formalities. The learned Magistrate has taken a certification of the doctor regarding the fitness of the deceased for giving statement. Every police official or person close to the deceased was not present before statement Ex.R 2 was recorded. The deceased could not be subjected to any tutoring because there was no person there who could have briefed him or prompted him to name the accused persons. Thus all those infirmities, which could be looked for in a dying declaration, for discarding it does not find place in the dying declaration Ex.P 2. 25. Further the dying declaration finds corroboration from the circumventing circumstances, inimical relations between the deceased and family of the in-laws of the deceased were deposed by the father of the deceased. He in his statement has given a graphic picture of the incident which took place a few days before the occurrence and what has been said by the deceased finds corroboration from the statement of PW. 26 before the incident. 26. In the cross-examination nothing has been brought which shakes the testimony of this witness regarding the previous events which includes liaison between the wife of the deceased and Randhir Singh and asking for separation from the family and making a deposit in the name Of Sunita, threats for getting share and threat by Sunita that she knows as to how to get her share and her declaration that she has league with people who could kill Ashok. Thus, the statement of father of the deceased in terms corroborates the story of the deceased given in the statement Ex.R 2. 27. What clinches the issue is Ex.R 24 a letter written by the deceased to his father which was produced by the father of the deceased before the investigating officer which records that Ashok had apprehended a danger to his life at the hands of his in-laws. The bus conductor and the driver PW. 4 Raj Kumar and P.W. 23 Salim respectively have deposed that there had been a quarrel in his bus. P.W. 3 Onkar Singh a co-passenger has also deposed about the quarrel being initiated by one of the accused and beating was given to the deceased. The bus conductor and the driver PW. 4 Raj Kumar and P.W. 23 Salim respectively have deposed that there had been a quarrel in his bus. P.W. 3 Onkar Singh a co-passenger has also deposed about the quarrel being initiated by one of the accused and beating was given to the deceased. Though the name of the deceased or accused has not Come but in the statement of P.W. 25 Hidayat Khan and P.W. 15 Vinod Kumar it has come that around 12, the matter was reported to the police that one man has been escorted by two persons while beating. Thus, escorting of the deceased by the accused to his in-laws house has broadly been hinted from the statements of these witnesses also. The amount which the deceased has given in his statement has been deposed to be outstanding against him by witness P.W. 22 Mahesh who has stated that there was an out-standing against the name of the deceased regarding which a letter was written to the father of the deceased which is Ex.R 12. The prosecution has tried to get sufficient corroboration from this letter to the version given by the deceased in his statement Ex.R 2. 28. Learned counsel for the State has placed reliance on Supreme Court decision reported in 1998 Cr.L.J. SC 300 Babu Ram and others v. State of Punjab and has said that where deying declaration has been found reliable, the conviction can be based on the same. He has further relied on Supreme Court decision reported in 1997 Cr.L.J. SC 140 (Rattan Singh v. State of Himachal Pradesh) where again words of the deceased soon before the death were held admissible under Section 6 of the Evidence Act. That statement was made the basis of conviction. 29. We have heard learned counsel for the parties and perused the record. 30. Dying declaration (Ex.R 2) and statement of the deceased (Ex.R 11) recorded by the police, have to be seen, whether they can be made basis of conviction. In Ex.P 11 the deceased has given sequence of events leading to his persecution by his in-laws. He has clearly named every accused in this statement. Whatever he has stated in Ex.P 11 has been in detail deposed by him in Ex.P 2 Both the statements except for minor variation in details remained the same. In Ex.P 11 the deceased has given sequence of events leading to his persecution by his in-laws. He has clearly named every accused in this statement. Whatever he has stated in Ex.P 11 has been in detail deposed by him in Ex.P 2 Both the statements except for minor variation in details remained the same. As the statement of deceased goes the perusing of Govind Ram, is established from the bus. At the Bus Stand Rajpal joined him and deceased was taken to the house of his in-laws, From there, he was taken to the first floor of room of Randheer where all the accused persons joined collectively. All the accused persons pressurised the deceased and then kerosene was put over him and match stick was lighted. 31. The accused had been convicted with the aid of Section 149 IPC. The object of all of them in joining to persecute the deceased is very obvious from the sequence of events and in this back ground, individual part played by the accused looses significance. A collective reading of Ex.P. 11 and P. 2 lends assurance to our mind that these statements were truthful enough to be believed. 32. The grounds on which the statement recorded of a dying man could be rejected are that if the deceased was not in a fit state to give the statement or there were attempts to tutor. None of these ingredients were made out in the present set of circumstances. The deceased was certified to be in perfect mental health and no family member of the deceased had any occasion to meet him before the statements were recorded. Thus in absence of these possible eventualities, no suspicion can be seen in the statement made by the deceased. The Supreme Court cases relied upon by the defence are distinguishable on facts. 33. Further, the statement appears to be probable as circumstances -narrated in the dying declaration finds corroboration from the various set of witnesses produced by the prosecution. P.W. 3 Onkar Singh has stated about the events which had taken place in the bus where the accused Govind Ram had given beating to the deceased. 33. Further, the statement appears to be probable as circumstances -narrated in the dying declaration finds corroboration from the various set of witnesses produced by the prosecution. P.W. 3 Onkar Singh has stated about the events which had taken place in the bus where the accused Govind Ram had given beating to the deceased. P.W. 4 and P.W. 9 conductor and driver of the bus have corroborated that some quarrel took place in their bus and therefore, that part of the dying declaration was established that from the bus itself, the accused were pressurising the deceased. 34. A letter written by the deceased, Ex.P. 24 has expressed all the doubt of his being done away with by the accused persons. This document written in hand writing of the deceased has been produced by his father. This document was written before his death and in terms speak volumes about the conduct of the accused persons in persecuting the accused. 35. The statement of P.W. 26 Mayachand corroborates the statement of deceased in Ex.R 2 and Ex.R 11 in great detail. He has stated about asking of separation and demand of share by Sunita. He has also deposed about the threat to the life of deceased by Sunita. There was no effective cross-examination on these points. Thus, in fact these allegations levelled reminded unchallenged. Further, figure of money quoted by the deceased in his statement is also supported by this witness and P.W. 22 to whom money was to be paid. 36. The argument of learned counsel for the appellant that all the accused were not seen at the seen of occurrence, can be explained simply for the reason that an explanation has been given by the deceased in his dying declaration Ex.R 2 that after burning, the accused left, he was tried to be bolted in side the room which he could avoid. Since he was burning and had burnt 99%, he took time in getting down from first floor. During this period, the accused made their escape good and when the accused had already left before the deceased came down from stairs. Not noticing of the accused by the persons around, cannot therefore dilute the prosecution case. 37. The deceased had been shouting that he had been burnt. During this period, the accused made their escape good and when the accused had already left before the deceased came down from stairs. Not noticing of the accused by the persons around, cannot therefore dilute the prosecution case. 37. The deceased had been shouting that he had been burnt. Thus, before Ex.P. 2 and Ex.P. 11 were recorded, culpable act has been deposed by the deceased even to those persons who had tried to extinguish the fire. A reference in this regard can be made to the statement of the P.W. 10 who has stated that burning man had stated that he has been burnt, therefore, any hint which the prosecution had tried to make that it could be an accidental burn is also ruled out from the possibility. 38. The defence of the accused is of total denial. Govind Ram had suggested in his statement that deceased had committed suicide by burning himself which is not supported from any circumstances obtaining on record. Even the accused Sunita also stated that deceased had burnt himself which again is unsupported by any of the circumstances. Accused Subhash Chand had also taken same plea that deceased has burnt himself. No supportive circumstances are obtaining on record to this effect. 39. To our mind, the statements Ex.R 11 and Ex. 2 are truthful statements which cannot be impugned on the possible grounds of judicial scrutiny i.e. probability, tutoring or possibility of recording the statements. In this background, we are persuaded to believe them. Once these statements are believed, then no fault can be found with the findings recorded by the learned Addl. Sessions Judge. When no fault can be found with the findings recorded by the learned Sessions Judge, it would be difficult for us to accept the argument of the learned counsel for the appellants and consequently, we are in agreement with the findings recorded by the learned Addl. Sessions Judge and findings of the learned Addl. Sessions Judge in accepting the dying declaration and convicting the accused appellants under Section 302 read with Section 149 IPC. are perfectly justified. The common object of the accused in persecuting the accused, threat of wife given earlier show a definite intention of her and her associates to do away with the life of deceased and in this background, we do not find any force in the appeal of the accused. are perfectly justified. The common object of the accused in persecuting the accused, threat of wife given earlier show a definite intention of her and her associates to do away with the life of deceased and in this background, we do not find any force in the appeal of the accused. Similar is the situation in relation to other offences as held proved by the learned Addl. Sessions Judge.Consequently, appeal of accused persons is dismissed, having no force. Conviction and sentence awarded to the accused persons are therefore maintained.Appeal Dismissed. *******