Judgment A.K.Sinha, J. 1. Both these appeals were heard together as they arise out of the same judgment. The appellants, namely, Annach Kumahar, Munarik Kumahar and Dwarik Kumahar of Cr. Appeal No. 213 of 1997 have been convicted under Secs. 302/34 of the Indian Penal Code read with sec. 498-A of the Indian Penal Code and appellant, namely, Lal Matiya Devi of Cr. Appeal No. 239 of 1997 has been convicted u/s. 302 of the Indian Penal Code (simpliciter) The appellants of Cr. Appeal No. 213/97 were sentenced to undergo rigorous imprisonment for life under Secs. 302/34 of the Indian Penal Code, 1860 and were further sentenced to undergo rigorous imprisonment for two years u/s. 498-A of the Indian Penal Code, 1860 whereas, the appellant Lal Matiya Devi was sentenced to undergo rigorous imprisonment for life u/s. 302 of the Indian Penal Code, 1860 . 2. The Fardbeyan of Mina Devi (deceased) was recorded on 13.4.1996 at 12.40 a.m. by ASI Ramesh Singh of Ambe Police Station in the clinic of doctor Bishwanath Singh. The deceased informant gave her Fardbeyan to the effect that her husband Dwarik Kumahar had developed illicit relationship with his sister-in-law Lal Matiya Devi which was protested by her. On thursday i.e. a day before the occurrence she was stacking Puwal which was objected by her Bhaisur, namely, Munarik Kumahar and he along with her father-in-law, namely, Annach Kumahar and Lal Matiya Devi assaulted her with Danda on this issue. The informant further stated that she went to Deo Police Station but her husband brought her back from the Police Station and after reaching her house, she slept in her room located in the southern portion of the house. It is further alleged that all the four accused entered into the room and appellant Maunarik Kumahar started assaulting her with Danda. Thereafter, her Gotni sprinkled kerosene oil on her body and set fire and father-in-law and Bhaisur also joined her, as a result of which, the deceased suffered burn injuries. Thereafter, all the accused appellants boarded the deceased on the rickshaw of Jimidar Bhuian who left her near a canal situated towards west of her maternal village. Thereafter, her Gotni sprinkled kerosene oil on her body and set fire and father-in-law and Bhaisur also joined her, as a result of which, the deceased suffered burn injuries. Thereafter, all the accused appellants boarded the deceased on the rickshaw of Jimidar Bhuian who left her near a canal situated towards west of her maternal village. Thereafter, the informants brothers, namely, Anil Prajapati, Binod Prajapati, Rajeshwar Prajapati and cousin brothers Gohi Prajapati and Ram Chandra Prajapati and uncle Badri Prajapati and Rarn Pravesh Mehra and other came and brought the informant to Amba Hospital for treatment where the Fardbeyan was recorded. It has been alleged that the accused-persons set fire on the body of the informant with an intention to kill her. The statement was recorded in presence of Anil Kushwaha who has not been examined and Rajeshwar Prajapti (P.W. 5) and both of them signed as witnesses on the Fardbeyan recorded by the ASI. 3. The police registered a case under Secs. 323, 341 and 498-A of the Indian Penal Code, 1860 but after completing the investigation charge-sheet was submitted against the accused appellants under Secs. 302, 201/34 of the Indian Penal Code, 1860 and the cognizance was taken under the aforesaid counts. The case was committed to the Court of Sessions and the Trial Court framed charges under Secs. 498-A/306 and 201 of the Indian Penal Code, 1860 against all the four accused. Charges were also framed against all the accused under Secs. 302/34 and 201 of me Indian Penal Code, 1860 It may be pertinent to state here that the Trial Court acquitted the accused persons of the charges under Sections 306 and 201 of the Indian Penal Code, 1860 . 4. In order to prove the charges, the prosecution examined altogether 12 witnesses out of which P.W. 1 Bilash Prajapati PW 2 Tuleshwar Kumahar, P.W. 3 Rohan Bhuian, P.W. 5 Rajeshwar Prajapati, PW 7 Badri Prajapati, P.W. 8 Mushan Kumar, PW 9 Jimidar Bhian were declared hostile by the prosecution. P.W. 11 Kesho Kumahar was tendered for the cross-examination. PW 4. In order to prove the charges, the prosecution examined altogether 12 witnesses out of which P.W. 1 Bilash Prajapati PW 2 Tuleshwar Kumahar, P.W. 3 Rohan Bhuian, P.W. 5 Rajeshwar Prajapati, PW 7 Badri Prajapati, P.W. 8 Mushan Kumar, PW 9 Jimidar Bhian were declared hostile by the prosecution. P.W. 11 Kesho Kumahar was tendered for the cross-examination. PW 4. Suryadeo Prajapati is the father of the deceased informant, P.W. 6 Bishwanath Singh is the doctor who had examined the informant at Amba Hospital, P.W. 10 Bholi Pas wan is the I.O. of the case and P.W. 12 Ramesh Singh is the ASI who recorded the Fardbeyan of the deceased informant which according to the prosecution was the dying declaration of the deceased. 5. The defence version, as would appear from the trend of the cross-examination is that the deceased was a lady of easy virtue and her paramours had burnt her due to which she died and her dead body was made traceless by them. It is further the case of the defence that the deceased was not in a position to give her statement and the Fardbeyan is a fabricated one. 6. It may be stated at the very outset that there is no eye-witness to the alleged occurrence and the conviction of the appellants has been based on so called dying declaration of the informant. It has, therefore, to be carefully scrutinised from the evidence and the attending facts and circumstances of the case that how far the Fardbeyan-cum-dying declaration of the informant is credible and trustworthy. 7. It would appear from the Fardbeyan (Ext. 3) that it was recorded in presence of the witnesses, namely, Anil Kushwaha and Rajeshwar Prajapati who signed as attesting witnesses on it. The prosecution did not examine Anil Kushwaha who was non-else than the brother of the deceased informant and the other witness namely, Rajeshwar Prajapati (P.W. 5) has been declared hostile by the prosecution as he did not support the prosecution case. In para 2 of his evidence PW 5 has stated that the deceased had not stated anything to him near the canal on 12.4.1996 and volunteered to say that she was unconscious. In para 2 of his evidence PW 5 has stated that the deceased had not stated anything to him near the canal on 12.4.1996 and volunteered to say that she was unconscious. He has denied to have stated before the police that while he was carrying the deceased for her treatment she had disclosed about the alleged occurrence on the way, as stated in the Fardbeyan of the deceased. P.W. 5 has further stated that he had seen the injuries on the person of the deceased and found burn injury only on her both hands. There was no other injury on her body. This statement of P.W. 5 who is brother of the deceased and one of the attesting witnesses on the Fardbeyan-cum-dying declaration contradicts the evidence of P.W. 6 Dr. Bishwanath Singh who found burn injuries on both upper limbs on front and back besides burn injuries on the abdomen below umbilicus, genital region and both thigh. P.W. 5 who is one of the attesting witnesses has not supported the story as depicted in the Fardbeyan and the other attesting witness, namely, Anil Kushwaha has not been examined to support the Fardbeyan and both of them were very important witnesses of the case to prove the genuineness of the Fardbeyan-cum-dying declaration. 8. The next important witness is P.W. 12 Ramesh Singh who had recorded the Fardbeyan of the deceased. P.W. 12 has admitted that the Fardbeyan of the deceased informant was recorded in the private clinic of Dr. Bishwanath Singh but he did not obtain the signature of the doctor on the Fardbeyan nor he obtained any certificate from him that Mina Devi (informant) was in fit physical condition to make her statement. He also did not make any effort to get the statement recorded in presence of the BDO and CO although, he admits that BDO and CO were posted at Amba where the Fardbeyan was recorded. The reason assigned by him is that the condition of Mina Devi was not serious. This witness has stated that there were about 20 to 25 persons present in the doctors clinic and he sat beside the informant while recording her statement but he did not notice any smell of kerosene oil coming from the body or cloth of the informant. This witness has stated that there were about 20 to 25 persons present in the doctors clinic and he sat beside the informant while recording her statement but he did not notice any smell of kerosene oil coming from the body or cloth of the informant. The fact remains that the occurrence took place on 12.4.1996 (although exact time has not been mentioned in the Fardbeyan) and the informant was examined on 13.4.1996 at 2.40 a.m. i.e. few hours after the alleged occurrence. But, it is surprisingly that P.W. 12 could not notice any smell of kerosene oil. 9. P.W. 6 Dr. Bishwanath Singh stated that if the kerosene oil is sprinkled on ones body its smell vanishes after 24 hours, so in all probabilities smell of kerosene oil should have been noticed by PW 12 if at all he had actually recorded the statement of the deceased at 12.40 a.m. on 13.4.1996 because certainly 24 hours had not elapsed till that time. It is a matter of common experience that in cases of burning normally the police officer who records the statement of the injured obtains signature of the doctor if recorded in his presence and also obtains a certificate to the effect that the injured is in perfect state of mind to give the statement but P.W. 12 did not obtain either nor assigned any reason for not obtaining the signature and certificate from the doctor. 10. The learned defence Counsel vehemently argued that the Fardbeyan is a fabricated document because according to the evidence of PW 6 Mina Devi had suffered serious burn injuries affecting her both upper limbs on front and back as also on abdomen, genital region and both thigh front and back and the injury report (Ext. 1) shows that the doctor found the injuries as grievous. Coupled with this, PW 5 has stated that when he met his sister near bridge on 12.4.1996, his sister did not disclose anything about the occurrence as she was unconscious. In cross-examination also P.W. 5 has stated that Mina Devi was unconscious from much before he proceeded from the canal. There is absolutely no evidence on the record which may show that when Mina Devi regained her consciousness. PW 6 Dr. In cross-examination also P.W. 5 has stated that Mina Devi was unconscious from much before he proceeded from the canal. There is absolutely no evidence on the record which may show that when Mina Devi regained her consciousness. PW 6 Dr. Bishwanath Singh has also not stated that when he examined Mina Devi, she was conscious and was in a position to make statement nor he stated that any police officer had actually recorded the statement of Mina Devi in his clinic. 11. The learned Counsel appearing for the appellants further argued that PW 4 Suryadeo Prajapati who is the father of the deceased has tried to blow hot and cold in the same breach by making contradictory statements, inasmuch as in his examination-in-chief he supports the prosecution story as depicted in the Fardbeyan but in his cross-examination he has stated that on the alleged date of occurrence on the request of his Samdhi (refer to Annach Kumahar) he had gone to his house to pacify the quarrel and remained there till 5.00 p.m. He has clearly stated that he noticed simple burn injury on both hands of his daughter. He further admitted that he made statement before the police that when he made inquiry from his daughter after taking her in confidence she disclosed that since Munarik Prajapati and her husband had assaulted her, she sprinkled Kerosene oil on her body and set fire. This statement made by P.W. 4 gives a go-bye to the story as set forth in the Fardbeyan P.W. 4 further stated that after five to six days of the occurrence he came to see his daughter in the hospital at Aurangabad and noticed that there is improvement in her condition and she was recovering and when he met his daughter before the alleged occurrence, his daughter did not complain against any ill-treatment at the hands of her in- laws, Bhaisur and Gotni. It would, therefore, appear that P.W. 4 has given a different version which belies the statements made in the Fardbeyan. I have already discussed above the evidence of P.W. 5 Rajeshwar Prajapati, the own brother of the informant who has been declared hostile and he has also given a different version. He has stated that he did not make any statement before the police. I have already discussed above the evidence of P.W. 5 Rajeshwar Prajapati, the own brother of the informant who has been declared hostile and he has also given a different version. He has stated that he did not make any statement before the police. As such, it would appear that two important witnesses P.W. 4 and 5 have made innumerable contradictory statements affecting the very root of the prosecution case. 12. The next important witness is P.W. 10 Bholi Paswan who is I.O. of this case. It would appear from his evidence that he had not conducted the investigation in proper way and the Trial Court has also found several infimities in the investigation. P.W. 10 has admitted that Mina Dev died on 17.5.1996 and she was treated at Aurangabad State Dispensary from 2.5.1996 to 16.5.1996. He has proved the letter of the Deputy Superintendent of Sadar Hospital, Aurangabad (Ext. 2) which goes to show that the deceased was treated at Sadar Hospital at Aurangabad from 2.5.1996 to 16.5.1996. There is absolutely no evidence on the record to show that what treatment was actually given to Mina Devi between 2.5.1996 to 16.5.1996. The prosecution failed to examine the doctor of Sadar Hospital, Aurangabad nor produced any other documentary evidence regarding the treatment given to the deceased during the aforesaid period and this is a serious lacunae in the prosecution. In cross-examination the I.O. has admitted that he did not record the statement of the informant because she was not in a position to give her statement. There is evidence on record to show that the deceased was brought back to her parents house after seven to eight days of treatment at Amba Hospital and P.W. 4 has stated that her condition had improved and she was recovering but the I.O. faild to record her statement. The alleged occurrence took place on 12.4.96 and the deceased died on 17.5.1996 i.e. after one month and five days and during this period she came back to her fathers place and was again taken by her husband for treatment and she was admitted at Sadar Hospital at Aurangabad where she remained for 15 days. So, it cannot be presumed that she was not in a position to make statement but the I.O. did not record her statement. So, it cannot be presumed that she was not in a position to make statement but the I.O. did not record her statement. As a matter of fact, the I.O. had proceeded on long leave and he recorded the statements of the witnesses after the death of the deceased on 31.7.1996 when he learnt about the death of the deceased on 16.7.1996. The I.O. also admitted in para 20 that when he returned back after long leave, he was informed by the Officer Incharge of the police station that Mina Devi died one month ago and her dead body has been cremated. It would, therefore, appear that the I.O. was most negligent in making the investigation of the case so much so, that after one month of the death of Mina Devi he learnt about her death. The I.O. has further admitted that when he visited the place of occurrence he did not find any sign of burning nor he noticed the smell of kerosene oil although he visited the place of occurrence on the next day of the alleged occurrence. He further admitted that after examining the records of the State Dispensary of Amba he learnt that Mina Devi was admitted in the State Dispensary, Amba in the intervening night of 12.4.1996/13.4.1996 at 12.40 a.m. and she was referred to Sadar Hospital, Aurangabad on 20.4.1996. This is another contradiction because the Fardbeyan shows that the statement of the deceased was recorded in the private clinic of Dr. Bishwanath Singh situated at Deo Road. In my view it is a material contradiction in the prosecution which renders the Fardbeyan of the deceased doubtful. 13. P.W. 6 Dr. Bishwanath Singh has denied to have made statement before the I.O. that 3 to 4 unknown yongsters used to visit the deceased and talk with her and on being asked Mina Kevi disclosed to him that they belong to village Katri and are known to her and due to this reason he became fed up and referred the injured to Sadar Hospital, Aurangabad. The attention of the I.O. was drawn and he has stated that P.W. 6 had made such statement before him. The attention of the I.O. was drawn and he has stated that P.W. 6 had made such statement before him. The learned Counsel for the appellants strongly argued that the case of the defence that the deceased was a lady of easy virtue and her paramours are responsible for her death has been supported by the I.O. who has admitted that the doctor had made statement before him to the effect that 3 to 4 youngsters used to visit and talk with Mina Devi while she was under his treatment and he. became fed up on that score and referred Mina Devi to Sadar Hospital, Aurangabad. The I.O. further admitted in para 18 that he wrote in para 16 of the case diary that Mina Devi was a characterless lady and when her husband used to chastise her she used to fight with him. It was further submitted that this fact has been supported by PW 2 Tuleshwar Kumahar also who has stated that Mina Devi was beautiful lady and she had many lovers. 14. There is yet another doubtful circumstance in this case which is the injury report (Ext. 1) granted by Dr. Bishwanath Singh (P.W. 6) The doctor has written in his report that the age of injuries found by him was within 48 hours. In his evidence P.W. 6 has admitted that he did not mention the colour of the injury in his report but the colour of the injury changes after every six hours. He clearly admitted that the colour of injury remains red for 24 hours and then the colour changes and it became violet after 24 hours. It was pointed out that if the doctor would have found the colour of the injury as red, he must have mentioned the age of the injury within 24 hours but he had written in his report that the age of the injury was within 48 hours which means that the colour of injury was not red and it was violet and since the colour changes after 24 hours and the doctor found the colour of the injury was violet so he wrote in his injury report that the age of the injury was within 48 hours. P.W. 6 deposed that he had examined the deceased on 13.4.1996 at 12.30 a.m. which means that he had examined the deceased within 24 hours of the alleged occurrence, but his report is otherwise and this circumstance renders his report doubtful. 15. The learned Counsel for the appellants submitted that the Fardbeyan of the deceased informant which is otherwise doubtful cannot be treated as dying declaration for the simple reason that the death occurred after one month and five days and during this period the deceased was treated at Sadar Hospital, Aurangabad from 2.5.1996 to 16.5.1996 and there is no medical evidence on the record for the treatment received by the deceased at Sadar Hospital, Aurangabad and it is possible that the deceased might have died due to some other reason while she was admitted at Sadar Hospital at Aurangabad for which the prosecution has not adduced any evidence. As such the actual cause of the death of the deceased has not been proved by the prosecution so that it can be said that the cause of the death of the deceased was due to burning as alleged in the Fardbeyan. So, in this view of the matter, the Fardbeyan cannot be treated as dying declaration of the deceased. 16. On careful consideration of all the facts and circumstances of the case, I am of the view that the so called dying declaration as contained in the Fardbeyan of the informant is not only doubtful, rather, it cannot be treated as dying declaration of the deceased as it does not actually disclose the cause of death of the deceased who admittedly died after one month and five days and just before her death she was treated at Sadar Hospital, Aurangabad between 2.5.1996 to 16.5.1996 for which the prosecution has not adduced any evidence. That apart, I find that the prosecution story has not been supported by the material witnesses who gave innumerable contradictory statements affecting the very root of the prosecution version. The conduct of the I.O. further renders the prosecution as doubtful since several infirmites and discrepancies have been found in the investigation of the case which have been pointed out above. There is discrepancy in the medical evidence also which is not consistent with the ocular version of the witnesses. 17. The conduct of the I.O. further renders the prosecution as doubtful since several infirmites and discrepancies have been found in the investigation of the case which have been pointed out above. There is discrepancy in the medical evidence also which is not consistent with the ocular version of the witnesses. 17. Having considered all the facts and circumstances of the case, I am of the definite view that the prosecution has not proved the respective charges against the appellants beyond reasonable doubts. Accordingly, the appeals are allowed and the appellants are acquitted of the charges framed against them. The appellants of Criminal Appeal No. 213 of 1997 who are in jail are directed to be released from jail custody forthwith, if not required in any other case and appellant of Criminal Appeal No. 239 of 1997, namely, Lal Matiya Devi who is on bail is discharged from the liability of her bail bonds. B.K.Jha, J. 18 I agree.