JUDGMENT 1. - This appeal is directed against the judgment dated 26.7.1996 passed by the learned Additional Sessions Judge No. 1, Jodhpur, convicting the appellant of the offence u/s. 302 IPC and sentenced to undergo imprisonment for life. 2. Briefly stated the prosecution case is that on 11.12.1995 at about 10.30 p.m., PW-8 Omprakash submitted a written report at Police Station, Mahamandir, Jodhpur, stating inter alia that his sister Smt. Pani Devi was married to appellant Champalal about twenty five years back. Out of their wedlock, five girls and one boy were born. His sister used to earn livelihood and maintain children. Appellant Champalal used to go for earning casually. Appellant Champalal used to demand money from her for consuming liquor. Appellant also used to harass and beat her. On the fateful day, when she returned from her job, appellant was consuming liquor. He (appellant) abused his sister Pani Devi saying that she was keeping number of paramour and she used to stay with them during day hours " rwus nl ekVh cuk j[ks gS] fnu Hkj muds lkFk jgrh gSA " He locked the children in one room. Thereafter, the appellant poured kerosene on her and with intention to kill her, threw a burning matchstick. His sister made hue and cry, which attracted number of people including PW-7 Pappu Ram. Having seen the incident, Pappu Ram rushed to his house and narrated the incident. At that time, his cousin PW-6 Doonger Singh was also sitting with him. They rushed to the house of appellant Champalal and found that his sister Pani Devi was burning and lying in a pit. She was taken out of the pit by PW-18 Prakash, brother of appellant Champalal. The fire was extinguished. On enquiry, deceased Pani Devi narrated the incident. She was taken for treatment to the M.G. Hospital. On this information, police registered a case for the offence u/s. 307 IPC and proceeded with investigation. At 10.40 p.m., PW-20 Joga Ram, SHO Police Station, Mahamandir, Jodhpur recorded the statement of Smt. Pani Devi in the M.G. Hospital in the presence of PW-13 Dr. M.K. Parihar. She died on 12.12.1995 at 4.10 a.m. The Police prepared the site plan, inquest report and sent the dead body for post mortem. The post mortem was conducted by a Board of three doctors. The Board found it to be a case of hundred percent burn. M.K. Parihar. She died on 12.12.1995 at 4.10 a.m. The Police prepared the site plan, inquest report and sent the dead body for post mortem. The post mortem was conducted by a Board of three doctors. The Board found it to be a case of hundred percent burn. In the opinion of the Board, the cause of death was shock due to extensive burns. After usual investigation, police laid charge-sheet against the appellant for the offence u/s. 302 IPC. 3. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined twenty one witnesses. The appellant in his statement u/s. 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. The trial Court relying on the dying declaration Ex.P/9 corroborated by the medical evidence, convicted and sentenced the appellant in the manner noticed above. 4. Assailing the conviction, it is argued by Mr. M.L. Garg, learned counsel for the appellant, that the trial Court has committed gross error in convicting the appellant solely on the basis of dying declaration Ex.P/9, which has been admittedly recorded by the Investigating Officer. It is submitted that the practice of recording dying declaration by an investigating officer has been deprecated in catena of decisions of the Apex Court and this Court. It is also submitted that the dying declaration Ex.P/9 cannot be acted upon for the reason that there is no certification of the doctor to the effect that deceased was in the fit mental condition to give statements. Learned counsel has placed reliance on a Division Bench judgment of this Court in Bashir Shah v. State of Rajasthan, reported in 1994 Cr.L.R. (Raj.) 610 . On the other hand, learned Public Prosecutor has supported the judgment of the trial Court. It is submitted by the learned Public Prosecutor that there is no requirement of law that dying declaration must necessarily be made to a magistrate. He has placed reliance on a decision of the Apex Court in Ramawati Devi v. State of Bihar, reported in AIR 1983 SC 164 . 5. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. Before we proceed to deal with the. contentions of the respective parties, we may indicate the evidence produced by the prosecution before the trial Court. 6. 5. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. Before we proceed to deal with the. contentions of the respective parties, we may indicate the evidence produced by the prosecution before the trial Court. 6. PW-1 Hajari Mal, PW-2 Surya Prakash, PW-3 Khinv Raj, PW-4 Bhanwarlal, PW-5 Mohanlal, PW-14 Hanuman Singh and PW-19 Virendra Singh are the formal witnesses. PW-6 Doonger Singh is the son of deceased Pani Devi's brother. He has stated that at 9.00 p.m. of the fateful day, he was sitting at the house of his uncle PW-8 Omprakash. At that time, PW-7 Pappu arrived and informed that his aunty Pani Devi (Bhua) has been set ablazed by appellant Champalal. He alongwith Omprakash rushed to the spot. He found Mst. Pani Devi screaming in a burnt condition and uttering words " cyw js & cyw js " On enquiry, she disclosed that at about 6.00 p.m. when she returned from the job, her husband was consuming liquor. He abused her as a prostitute keeping ten paramours. She also stated that appellant poured kerosene and ablazed her. The witness took her to the hospital. In the cross examination, this witness denied the suggestion that he was interested in getting the daughters of Pani Devi married to a place of his choice, which was being objected by appellant Champalal and, therefore, he was giving false evidence against accused. Nothing has been elicited to discredit the testimony of this witness. 7. PW-7 Pappu Ram is the neighbour. He has stated that at about 9.00 p.m. shrieks of Pani Devi " cyw js & cyw js " attracted him. He rushed to the house of Champalal and found that Mst. Pani Devi was burning. In the compound, children were making hue and cry. Appellant Champalal was standing nearby. The girls were asking their father as to why he burnt their mother. The appellant told them "let her burn". He also stated that at that time, Champalal had consumed liquor. He immediately informed about the incident to PW-8 Omprakash. Within no time, Omprakash reached on the spot. In his presence, Mst. Pani Devi disclosed to PW-8 Omprakash that appellant Champalal poured kerosene and set her ablaze. She also stated that appellant-Champalal abused her. Nothing has been elicited to discredit the testimony of this witness. 8. PW-9 Phool Chand is the neighbour. Within no time, Omprakash reached on the spot. In his presence, Mst. Pani Devi disclosed to PW-8 Omprakash that appellant Champalal poured kerosene and set her ablaze. She also stated that appellant-Champalal abused her. Nothing has been elicited to discredit the testimony of this witness. 8. PW-9 Phool Chand is the neighbour. He has stated that he had seen appellant Champalal quarrelling with his wife. He also stated that he had seen Champalal pouring kerosene on Pani Devi and throwing burning matchstick on her. He further stated that the neighbours arrived and extinguished the fire. PW-10 Heera Chand is also a neighbour. His statement is almost in the line of Phool Chand. 9. PW-11 Miss Rekha aged 15 years, PW-12 Miss Santosh aged 14 years and PW-17 Miss Sushila aged 10 years are the daughters of appellant Champalal and deceased Pani Devi. All the three have preferred to oblige their father. They have not supported the prosecution case and as such, they have been declared hostile. PW-18 Prakash is the brother of appellant Champalal. He has also not supported the prosecution case and, as such, he has been declared hostile. 10. PW-13 Dr. M.K. Parihar has stated that on the request of the Incharge, Police Station, Mahamandir, the statement of Pani Devi was recorded in his presence by PW-20 Joga Ram. He has also proved his signatures on Ex.P/9. 11. PW-21 Dr. V.K. Malhotra has stated that he was one of the members of the Board, which performed the post mortem of the dead body of Smt. Pani Devi. The Board noted the external appearance of the dead body as follows : "Well built & well nourished. Eyes close. Mouth partly open. Eyebrows & eyelashes burnt. There is signaling of scalp hairs ant. Superficial burns .present all over the body. Mark of venesection present over both legs." He has proved the postmortem report Ex.P/21. In the opinion of the Board, it was found to be a case of 100% burn. In the opinion of the Board, the cause of death was shock due to extensive burns. 12. Superficial burns .present all over the body. Mark of venesection present over both legs." He has proved the postmortem report Ex.P/21. In the opinion of the Board, it was found to be a case of 100% burn. In the opinion of the Board, the cause of death was shock due to extensive burns. 12. The Division Bench of this Court in Bashir Shah's, case (Supra) after noticing number of decisions of the Apex Court and this Court, laid down the following test of reliability of the dying declaration by the Courts of law : "A. Ordinarily, whenever an injured is in a precarious condition, the investigating officer should requisition the services of a Magistrate for recording the dying declaration. In fact, the investigating officers are naturally interested in the success of investigation and practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. ( AIR 1976 SC 2199 ) B. There is neither rule of law nor a prudence that the dying declaration cannot be acted upon without corroboration. ( AIR 1976 SC 2199 ) C. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. V.S. Mour v. State of Maharashtra, AIR 1978 SC 519 ). D. For this purpose, the Court has to apply strictest scrutiny and has to be on guard to ensure that the declaration is not the result of tutoring, prompting or imagination and that the deceased had opportunity to observe and identify the assailants and was in fit state of mind to make declaration. (AIR 1976 SC 2194) E. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. ( AIR 1974 SC 332 ) F. In a criminal case, much less a murder case, the investigation should be conducted in such a manner that there is no room for entertaining a doubt about a fair investigation. The fair investigation is a fundamental principle which may enhance the reliability of a dying declaration and may reduce its reliability if Court is not satisfied about its fairness. The fair investigation is a fundamental principle which may enhance the reliability of a dying declaration and may reduce its reliability if Court is not satisfied about its fairness. G. Suspicion about truthfulness should never be substituted as evidence in case of dying declaration keeping in view the fact that the statement of the deceased made in the precarious condition of his health is made in the absence of the accused appellants, who had no opportunity of testing the veracity of the statement called in legal terminology as "dying declaration by cross-examination". H. While making the dying declaration, the sole basis of conviction and sentence by the Courts of law, it must be kept in view that the prosecution story may not only be true but it must be true and between may be true and must be true, there is a large gap, which is to be travelled by the prosecution agency by adducing unimpeachable and reliable evidence. I. The Rajasthan Police Rules, 1965 are quite elaborate in laying down the procedure for recording the FIR and consequent investigation. Under these Rules, Chapter V of the Rules of 1965 prescribes for recording of the FIR, Chapter VI deals with investigation. Chapter VII deals with arrest, escape and custody. Chapter VIII deals with prosecution and Court duties, Similarly, in Chapter VI of the Rules of 1965, a complete procedure is given as to how the dying declaration is to be recorded. The relevant Rules regarding dying declaration find place in Chapter VI of the Rules of 1965, which are being reproduced below : Rule 6.22 - Dying Declaration : (1) A dying declaration shall, whenever possible be recorded by a Magistrate. (2) The person making the declaration shall, if possible be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (3) If no Magistrate can be obtained the declaration shall, when a Gazetted Police Officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (4) If no such witnesses can be obtained without risk of the injured-person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (4) If no such witnesses can be obtained without risk of the injured-person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (5) A dying declaration made to a police officer should, u/s. 162, Code of Criminal Procedure, be signed by the person making it." 13. It is unfortunate that in the instant case, PW-20 Joga Ram, Incharge, Police Station, Mahamandir and the Investigating Officer, has not bothered even to follow the procedure provided in R. 6.22 of Chapter VI of the Rajasthan Police Rules, 1965 in the matter of recording the dying declaration. It is of-course true that the statement of the deceased was recorded in the presence of the doctor but no certificate has been obtained by the doctor to the effect that injured, whose death was imminent, was physically and mentally in a fit condition to make lucid statement. As per the aforesaid Rules of 1965, dying declaration should ordinarily be recorded by a magistrate, except in exceptional circumstances. Even in the circumstances, when it is not possible to obtain the services of a magistrate, the dying declaration should be recorded in the presence of two or more reliable witnesses, unconnected with the police department and with the parties concerned. Even if such witnesses are not available, dying declaration is to be recorded in the presence of two or more police officers. In the cross examination, PW-20 Joga Ram has simply stated that inspite of best efforts made, he could not obtain the services of any magistrate for recording statement. In our view, simply saying that he had made the efforts to obtain services of a magistrate, is not sufficient. He reached at the hospital at 10.40 p.m. and the victim died at 4.10 a.m. There was sufficient time to arrange for executive or judicial magistrate, more particularly at a place like jodhpur. In these circumstances, we do not consider it safe to uphold the conviction of the appellant solely on the basis of dying declaration recorded by the Investigating Officer. In these circumstances, we do not consider it safe to uphold the conviction of the appellant solely on the basis of dying declaration recorded by the Investigating Officer. Our view is nurtured by the decision of the Apex Court in Munna Raja v. The State of M.P., reported in AIR 1976 SC 2199 , the relevant observations of the Apex Court are extracted as follows : "We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration. Ex.P/2, which is said to have been made by the deceased in the hospital. The Investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration. Investigating officers arc orally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have therefore excluded from our consideration the dying declaration, Ex.P/2 recorded in the hospital." 14. There is no other reliable evidence to connect the appellant Champalal with the crime. Accordingly, we give benefit of doubt to appellant. In these circumstances, the conviction recorded by the trial Court against the appellant for the offence u/s. 302 IPC is not sustainable. 15. Consequently, this appeal is allowed and conviction & sentence re-corded by the learned Additional Sessions Judge No. 1, Jodhpur of the offence u/s. 302 IPC by his judgment dated 26.7.1996 is hereby quashed and set aside. The appellant is acquitted of the said offence. Appellant Champalal is in jail. He shall be set at liberty forthwith, if not required in any other case.Appeal allowed. *******