JUDGMENT 1. - This appeal has been filed by Yusuf S/o Shri Rahim Bux, Resident of village Nimaz, Police Station, Jaitaran, District Pali against the judgment of the Additional Sessions Judge, Sojat Camp, Jaitaran dated 30.03.1996 whereby the appellant Yusuf has been found guilty Under Section 302 of the I.P.C. and has been awarded a sentence of life imprisonment with a fine of Rs. 5,000/- and in default in payment of fine further additional rigorous imprisonment for a period of one year. 2. It is not in dispute that on 25.2.1986 at about 11.00 a.m. Smt. Sugra (wife of appellant) received burns and was taken to the Govt. Hospital situate at Nimaz where her statement Ex.P/13 was recorded on 25.2.1986 at 3.20 p.m. by PW/22 Dhanwan Chand Bhandari, Sub-divisional Magistrate, Jaitaran. Soon after the S.H.O. Police Station, Jaitaran PW/29 Rajendra Singh recorded her statement Ex.P/30 at 3.50 p.m., on that very day and a case Under Section 307 of the I.P.C. was registered against the appellant. Next day on 26.2.1986 the statement of Smt. Sugra was recorded Under Section 161 of Cr.P.C. Thereafter she was referred to the Hospital at Beawar on 27.2.1986. After getting information from the Hospital PW/4 Dinesh Kumar, S.H.O., Police Station Beawar recorded her statement Ex.P/4 at 11.15 a.m. and on its basis recorded the F.I.R. Ex.P/5, which was sent to Police Station, Jaitaran. At 11.50 a.m. on 27.2.1986 the statement Ex.P/23 of Smt. Sugra was recorded by the Additional Chief Judicial Magistrate, Beawar. 3. In the statements Ex.P/13, Ex.P/30, Ex.P/4 and Ex.P/23 Smt. Sugra broadly stated to the effect that her husband, the appellant, was not happy with her and was bent upon ejecting her from his house whereas she was not prepared to leave the house and ultimately on 25.2.1986 the appellant poured Kerosine on her, while she was sitting in the kitchen and then ignited her with the help of a match-stick. She shouted for help and fell into the lap of her grand-mother-in-law, who was sitting out-side. Certain ladies who were living in the neighbourhood poured water over her and she was immediately taken to the Government Hospital at Nimaz where the treatment started and her aforesaid statements were recorded. However, in her statement recorded Under Section 161 of the Cr.P.C. she implicated other persons also. Certain ladies who were living in the neighbourhood poured water over her and she was immediately taken to the Government Hospital at Nimaz where the treatment started and her aforesaid statements were recorded. However, in her statement recorded Under Section 161 of the Cr.P.C. she implicated other persons also. According to the statement her father-in-law Rahim Bux, his two daughters Smt. Khatun and Smt. Meharunisha, Meharunisha's husband Mohd. Ali, Khatun's husband Saddique and Smt. Khurshida all joined together, called her names and told her to leave the house. They all instigated the appellant to put her to fire and at their insistence and instigation the appellant poured the Kerosine over her and thereafter put her to fire with the help of a lighted match-stick. The deceased further stated that she was divorced by the appellant but she was not leaving the house in view of the fact that she was pregnant. She further stated that on the previous day i.e. on 24.2.1986 the appellant, in the evening, gave her severe beating with stick and thereafter left the house. On 25.2.1986, he returned to the house and the incident narrated above took place. 4. Twenty Five days later on 20.3.1986 Smt. Sugra died on 20.3.1986 during treatment in the Hospital at Beawar. Consequently challan was filed against seven accused persons viz. Rahim Bux, Saddique S/o Jamal, Mohd. Ali, S/o Lalif, Smt. Khatun W/o Saddique, Smt. Meharunisha W/o Mohd. Ali, Smt. Khurshida W/o Firdos and the appellant Yusuf in the court of the Judicial Magistrate, Jaitaran from where it was committed to the Court of Sessions Judge, Pali, who transferred the same to the said trial Court. The appellant Yusuf was charged for the offence Under Section 302 I.P.C. and the other six accused persons were charged for the offence Under Section 302r/w 120-B of the I.P.C. All the seven pleaded not guilty. The prosecution side examined as many as 29 witnesses in support of its story and DW-1 Rajendra Gurjar was examined as defence witness by the accused persons. DW-1 Rajendra Gurjar has stated that he lives in the neighbour-hood and on 25.2.1986 while he was returning from his field to his house, he saw Smt. Sugra soon after she received the burns and it was he who do used the fire by putting water and a blanket on her. DW-1 Rajendra Gurjar has stated that he lives in the neighbour-hood and on 25.2.1986 while he was returning from his field to his house, he saw Smt. Sugra soon after she received the burns and it was he who do used the fire by putting water and a blanket on her. According to the witness Smt. Sugra told him that she herself had put her to fire and it was her father who was responsible for the same. According to the witness the appellant was not present in the village. 5. Thereafter the learned trial Court heard the arguments and delivered the judgment dated 30.3.1996. The co-accused Saddique, Mohd. Ali, Smt. Khatun, Smt. Khurshida and Smt. Meharunisa were acquitted of the charge Under Section 302/120-B of the I.P.C. No judgment was delivered in respect of the accused Rahim Bux on account of his mental illness. The appellant Yusuf was found guilty and was sentenced in the aforesaid manner against which he has preferred this appeal. 6. It would be appropriate to make a brief mention of the prosecution evidence which has come on record. 7. PW/1 Chander Ram and PW/2 Mool Chand are "Motbir" witnesses, who allegedly were the witnesses of the site plan Ex.P/1, Ex.P/2 and Ex.P/3 and both have turned hostile and have denied that any such documents were prepared in their presence. 8. PW/3 Saddique is the father of the deceased. He has stated that Sugra was married to the appellant some 18-20 years back and as she was suffering from "tuberculousis" the appellant was bent upon getting rid of her and he received a written communication at his village-Kushalpura to the effect that she has been divorced by the appellant. He has further stated that at that point of time Smt. Sugra had a pregnancy of three months and since the Muslim law does not permit divorce during pregnancy, he had made protest to the community in village-Nimaz. Regarding the incident the witness states that on the previous day Sugra's daughter Sultana (PW/9) gave him an information that all the seven accused persons were bent upon throwing Sugra out of the house and on 24.2.1986 Smt. Sugra was belaboured by the seven accused persons. After receiving this information he reached Nimaz on 25.2.1986 and learned, from certain persons that Sugra was in the hospital. After receiving this information he reached Nimaz on 25.2.1986 and learned, from certain persons that Sugra was in the hospital. According to the witness Sugra told him, in the Hospital, that she was put to fire by her husband in the presence of the other six accused persons. 9. PW/4 Dinesh Kumar, S.H.O. Police Station, Beawar has stated that on 27.2.1986 he received a message from the Hospital at Beawar about the admission of Sugra and recorded her statement Ex.P/4. According to the witness he recorded a numberless formal F.I.R. Ex.-P/5 on the basis of the statement Ex.P/4 and the same was dispatched to Police Station, Jaitaran which had the jurisdiction in the matter. PW/5 Roop Singh, Head Constable, Police Station, Beawar has stated to the effect that on 20.3.1986 Smt. Sugra died in the hospital at Beawar and "Panchnama" Ex.P/9 of the dead body was prepared by him. PW/7 Husain and PW/16 Kadar Bux are "Motbir" witnesses of Ex.P/9. PW/6 Vijay Kumar is a Head Constable of Police Station, Jaitaran, who has stated that he along with constable Prabhu Singh and Sikandar Khan was passing through the area and learned, from some urchins, that a woman had received burns whereupon they all the three, reached on the spot and took Smt. Sugra on a two wheeler to the Hospital at Nimaz. According to the witness Smt. Sugra told him that her husband was responsible for putting her to fire. PW/8 Dr. Rakesh Kumar Sharma has stated that on 25.2.1986, S.H.O., Police Station, Jaitaran gave him a letter Ex.P/12 to find about the fitness of Smt. Sugra in order to record her statement and after his endorsement on Ex.P/12 the Sub-divisional Magistrate, Jaitaran recorded her statement Ex.P/13 which bears his signature and endorsement on it. 10. PW/9 Sultana is the 16 years old daughter of the appellant and the deceased. She has deposed about the incident which allegedly took place on 24.2.1986. According to the witness on 24.2.1986 at about 10 p.m. her father (the appellant) gave a severe beating to Smt. Sugra and told her to leave the house. According to the witness the other six accused persons instigated the appellant to throw Smt. Sugra out of the house and the appellant issued a clear threat that in case Sugra does not leave the house, of her own, she will be put to fire. According to the witness the other six accused persons instigated the appellant to throw Smt. Sugra out of the house and the appellant issued a clear threat that in case Sugra does not leave the house, of her own, she will be put to fire. The witness has stated that she left the house in the morning and informed her maternal grand-father (PW/3 Saddique) about the incident. PW/10 Anwar is an uncle of the deceased and his testimony is similar to the testimony of his brother PW/3 Saddique. PW/11 Ishaq, PW/12 Moinudeen, PW/13 Kalu, PW/15 Kareem Bux and PW/18 Mohammed are said to be the witnesses of convening a "Panchayat" prior to the incident but none of them has supported the story and all have been declared hostile. PW/17 Dhagla Ram, according to the prosecution story, is a witness, who was allegedly sent by the appellant with the written "Talak-nama" to the house of PW/3 Saddique but this witness, has not supported the said version and has denied, that he carried any such letter. PW/19 Sakina is the mother of the deceased, who has stated that the daughter of the deceased Sultana came to her house and told that her father (appellant) gave beating to the deceased Smt. Sugra the previous night. PW/20 Mohd. Iqbal Khan denied that the relations between deceased and the appellant were strained and was declared hostile. 11. PW/21 Dr. Kailash Chand Mathur has stated that on 20.3.1986, he was a member of the Medical Board which conducted the autopsy on the dead body of Smt. Sugra and prepared the Post-Mortem report Ex.P/22, according to which the cause of death was toxemia, on account of extensive burns. Dr. Mathur has further stated, that on 27.2.1986 the statement Ex.P/23 of Smt. Sugra was recorded by the Additional Chief Judicial Magistrate, Ram Swaroop Solanki in his presence. PW/22 Dhanwan Chand Bhandari, Sub-divisional Magistrate, Jaitaran has stated that on the request of the Police on 25.2.1986 he recorded the statement Ex.P/13 in the Hospital at Nimaz. PW/23 Narpat Singh denied that the accused- appellant on 25.2.1986 visited his shop at 7.00 a.m. and was declared hostile. 12. PW/24 Smt. Jainam W/o Dildar Khan, according to the prosecution story, was the person to whom the deceased approached in a burning condition but the witness turned hostile and did not support the prosecution case on this point. PW/23 Narpat Singh denied that the accused- appellant on 25.2.1986 visited his shop at 7.00 a.m. and was declared hostile. 12. PW/24 Smt. Jainam W/o Dildar Khan, according to the prosecution story, was the person to whom the deceased approached in a burning condition but the witness turned hostile and did not support the prosecution case on this point. Similarly PW/25 Fatma denied that she saw Smt. Sugra in a burning condition and was declared hostile. 13. PW/26 Smt. Jannat is the person, who allegedly doused the fire by putting water upon Smt. Sugra, but she also did not corroborated the story and was declared a hostile witness. PW/27 Navratan Mal, A.S.I, has stated that he recorded the statements of certain witnesses Under Section 161 of the Cr.P.C. PW/28 Dhirendra Kumar Khichi, Dy. Superintendent of Police has stated that he arrested the accused Saddique vide the arrest memo Ex.P/17 on 21.3.1986. PW/29 Rajendra Singh, S.H.O., Police Station, Jaitaran has stated that on 25.2.1986 he went to the Hospital at Nimaz and recorded the statement Ex.P/30 of Smt. Sugra, on the basis of which a case Under Section 307 was registered at the Police Station. The witness further stated that he went to the spot and prepared the site plan and recovered the half burnt clothes of Smt. Sugra and other material. 14. We have heard the learned Counsel for the appellant and the learned Public Prosecutor for the State and have perused the record of the trial Court. The learned trial Court in his judgment has recorded that there was no eye witness of the incident other than the deceased Smt. Sugra and the conviction has been based on her various statements/dying declarations, which were allegedly recorded by various persons as narrated in the beginning. The learned Counsel for the appellant has vehemently argued that the alleged statements of the deceased (Ex.-P/13, Ex.-P/30, Ex-P/4 and Ex.-P/23) cannot be termed as dying declarations as at that point of time, the deceased was no where near her death nor was she under any fear of death. According to the learned Counsel she was highly annoyed with the appellant and his near relations and was not at all motivated to tell the truth and was burning with a desire to some how harm the appellant as well as his relations. According to the learned Counsel she was highly annoyed with the appellant and his near relations and was not at all motivated to tell the truth and was burning with a desire to some how harm the appellant as well as his relations. According to the learned Counsel there is no bar, under the law, to base conviction solely on account of a dying declaration if, in the circumstances of the case, the Court feels that the statement so recorded was of sterling worth and there was no reason to suspect the truthfulness of the same. In the instant case, it is more than obvious that Smt. Sugra was not telling the truth. According to the learned Counsel she was telling the things which were false to her on knowledge and in this way uncrossed statements of Smt. Sugra cannot be made the basis of any conviction. The learned Public Prosecutor, on the other hand, has supported the conclusions drawn by the learned trial Court and has stated that Smt. Sugra was a wife of the appellant for the last 20 years and there is no reason she should implicate her own husband falsely. 15. After hearing the two sides and perusal of the record of the trial Court we are of the view that the contentions raised on behalf of the appellant are acceptable and the conclusions drawn by the learned trial Court against the appellant are not sustainable. 16. It was not a case, in which there were no other persons, near the vicinity of the scene of occurrence, other than the victim and the accused. From the evidence which has unfolded it stands established that apart from the grand-mother-in-law of the deceased, PW-24 Smt. Jenam, PW-25 Smt. Fatma and PW-26 Smt. Jannat were the other persons who were present in the immediate vicinity of the scene of occurrence and had the opportunity of having the first hand knowledge about the incident, of their own, or from whatever was told to them by the victim. The grand- mother-in-law has not been produced in evidence. Her name does not find place in the calendar of witnesses. The other three viz. PW-4 Jenam, PW-5 Fatma and PW-6 Jannat do not support the prosecution story against the accused, in any manner, and all the three have been declared hostile. The grand- mother-in-law has not been produced in evidence. Her name does not find place in the calendar of witnesses. The other three viz. PW-4 Jenam, PW-5 Fatma and PW-6 Jannat do not support the prosecution story against the accused, in any manner, and all the three have been declared hostile. Thus, there is nothing more than the alleged dying declarations and as pointed out earlier the learned trial court has based the conviction believing the various statements which allegedly were made by the deceased and were recorded by PW-22 Dhanwanchand Bhandari, PW-29 Rajendra Singh S.H.O., PW-4 Dinesh Kumar S.H.O. and Ram Swroop Solanki (ACJM, Beawar). The defence contention in respect of the said dying declarations is to the effect that none of them can be termed as a dying declaration because at the time when they were recorded Smt. Sugra was no where near her death or fear of death and her burn injuries, as per the injury report Ex.D/4, were simple in nature. Further, it is submitted that since the ACJM, Beawar, Ramswaroop Solanki was not examined, hence, the statement Ex.P/23 has not been proved as it ought to have been proved. In respect of the statement Ex.P/4 it is submitted that it was neither recorded in the form of questions and answers nor was recorded in the language used by the person making the statement. Our attention has been drawn towards the fact that Smt. Sugra was an illiterate lady and her mother-tongue was 'Marwari' whereas the statements have been recorded in chaste Hindi which she was incapable to speak. Our attention in this respect has been drawn towards the testimony of Dr. Rakesh Kumar (PW-8) who has stated, in unambiguous terms, that Smt. Sugra was speaking in 'Marwari' at the time of recording of her statement. Regarding the statements Ex.P/30 and Ex.P/4, it is argued that they were prepared by police personnel and were literal copies of the statements Ex.P/13 and Ex.P/23 respectively. Regarding the statement Ex.P/4 it is further argued that the S.H.O. Beawar, Dinesh Kumar (PW-4) was under no obligation to record the statement because earlier on 25.2.1986 her statement stood already recorded by the SDM, Jaitaran as well as by the SHO, Jaitaran. 17. Regarding the statement Ex.P/4 it is further argued that the S.H.O. Beawar, Dinesh Kumar (PW-4) was under no obligation to record the statement because earlier on 25.2.1986 her statement stood already recorded by the SDM, Jaitaran as well as by the SHO, Jaitaran. 17. We are of the view that even without going into the above contentions, raised on behalf of the appellant, we find it to be a case in which conviction, on the sole basis of the said statements, could not have been based. We find that even if the statements in question were recorded as per the version narrated by Smt. Sugra the same cannot be termed as reliable and it cannot be concluded that Smt. Sugra was stating the truth without any rancour. The learned trial Court was faced with two clear-cut possibilities. Either it was a case of murder by the appellant by putting her wife to fire consciously or it was a case of suicide as has been suggested in the testimony of DW-1 Rajendra Gurjar and argued by the learned Counsel for the appellant. As pointed out earlier the contention of the learned Public Prosecutor is to the effect that there is no reason to disbelieve the various statements of the deceased which were recorded between 25.2.1986 to 27.2.1986. The learned Counsel for the appellant, on the other hand, contends that Smt. Sugra was a middle aged woman, suffering from tuberculosis and was face to face with the dire eventuality of ejectment from the house Where she was living for the last over 20 years as she stood divorced by the appellant. From the testimony of her father PW-3 Saddique and his statement Ex.D/1 (recorded Under Section 161 of Cr.P.C.) it is more than evident that the appellant was very keen that Smt. Sugra should leave his house forthwith and Sugra's father was doing his best to prevent it by convening the 'Panchayat' of the Muslim community. In such a situation, according to the learned Counsel for the appellant, the deceased was well aware that at the most she could stay for 40 days (period of Iddat) and thereafter she would be homeless. In these circumstances, according to the learned Counsel for the appellant, out of frustration she committed the suicide and since the appellant was the sole cause of her discomfiture she implicated him by making the various statements. In these circumstances, according to the learned Counsel for the appellant, out of frustration she committed the suicide and since the appellant was the sole cause of her discomfiture she implicated him by making the various statements. The learned counsel further argues that not happy with implicating the appellant alone on 26.2.1986 during her statement Under Section 161 Cr.P.C, she implicated six more persons who were relatives of her husband and who had to face the trial on account of the said statement. 18. We are of the view that the contentions raised by the learned Counsel for the appellant cannot be termed as groundless or unacceptable. Although there is no bar in placing reliance on a dying declaration and convicting the accused on its basis but at the same time it is to be seen that the statement in question is reliable and free from any infirmity. In the instant case it cannot be said that Smt. Sugra was truthful and was stating without any rancour. This is not in dispute now that she stood divorced by her husband and on this account the appellant was insisting that she should vacate his house. Strangely enough, in none of her statements, she admits the factum of divorce. In the first statement Ex.P/13 she neither states about the divorce nor she states that she was pregnant. In her next statement Ex.P/30 she does not admit that she was a divorced wife. She states that the appellant was threatening her that he is going to divorce her. Similarly, in Ex.P/4 or Ex.P/23 she does not make any mention of her divorce. Her father PW-3 Saddique in his examination-in-chief has deposed that at the time of the incident Smt. Sugra was in the family way and was carrying a pregnancy of three months. As pointed out earlier Smt. Sugra in her statement recorded Under Section 161 made a clear mention that since she was pregnant, she could not leave the inlaws' house after a divorce. But from the testimony of Dr. Kailash Chand Mathur (PW-21) and from the postmortem report Ex.P-22, it is clear that the allegation about her pregnancy was untrue. Dr. Mathur has stated on oath that she was found not pregnant at the time of her death. In this way it becomes clear that Smt. Sugra was making the statements, which to her own knowledge, were false. Kailash Chand Mathur (PW-21) and from the postmortem report Ex.P-22, it is clear that the allegation about her pregnancy was untrue. Dr. Mathur has stated on oath that she was found not pregnant at the time of her death. In this way it becomes clear that Smt. Sugra was making the statements, which to her own knowledge, were false. It is not in dispute that her burn injuries were found to be simple as per the Injury Report Ex.D/4 and in this way she was under no fear of death when the statements in question were made. 19. It is also clear from the four statements given by her and described as dying declarations and her statement Under Section 161 Cr.P.C. that she has been consistently improving her version to implicate her husband somehow or the other. The statement does not appear to be simple truth coming out of any mortal fear of death in mind and it betrays a desire to put her husband and members of his family to harm for divorcing her after long period of marriage when she is not in good health. To convict a person, solely on such a statement, which has not been tested with cross examination, without credible corroboration does not receive judicial recognition. 20. In these circumstances the statements in question cannot be accepted with the sanctity to which an innocent and truthful dying declaration is entitled to. Regarding her two daughters, PW-9 Sultana and Rehmat, Smt. Sugra, in her so called dying declarations, has stated that both were not with her at the time of the incident as both had gone to visit a fare. On the other hand her daughter PW-9 Sultana, in her deposition, has stated that on 24.2.1986 at 10 PM the appellant came and gave a severe beating to Smt. Sugra and it was Sugra, at whose direction, she went to PW-3 Saddique in the morning of 25.2.1986. PW-3 Saddique, his wife PW-19 Sakeena both have stated to the effect that they learnt from PW-9 Sultana that on the previous night on 24.2.1986 Smt. Sugra was severely beaten by the appellant. However, neither any injuries of beating were found on 25.2.1986, at the time of preparation of the injury report Ex.D/4 nor Smt. Sugra has stated, in any of her statements, that any beating was given on 24.2.1986. However, neither any injuries of beating were found on 25.2.1986, at the time of preparation of the injury report Ex.D/4 nor Smt. Sugra has stated, in any of her statements, that any beating was given on 24.2.1986. This goes to show that PW-3 Saddique, PW-9 Sultana and PW-19 Sakeena are not truthful witnesses and are capable of telling lies on oath. 21. In this way we find that there is no corroboration of the story from the witnesses PW-24 Jenam, PW-25 Smt. Fatma and PW-26 Smt. Jannat who were admittedly present near the scene of the occurrence, nor the various statements (Ex.P/13, Ex.P/30, Ex.P/4 and Ex.P/23) have passed the test of reliability and in the circumstances narrated above no conviction can be passed on their basis alone. The testimony of PW-3 Saddique, PW-9 Smt. Sultana, PW-10 Anwar and PW-19 Sakeena is also not of sterling worth and the appellant cannot be connected with the crime on the basis of their deposition. 22. Consequently, the appeal is allowed and the judgment of the trial court finding the appellant guilty is set aside. The appellant is acquitted of the charge. He shall be set free forthwith if not wanted in connection with any other case. The amount of fine if deposited by the appellant shall be refunded.Appeal allowed. *******