Judgment ( 1. ) APPELLANT has been convicted under section 302 of the Indian Penal Code for committing murder of his wife anita @ Sukbariya by setting her ablaze and has been sentenced to imprisonment for life and a fine of Rs. 5,000/-, with default stipulation. ( 2. ) SUCCINCTLY put the prosecution case is that Anita was married to the appellant 6-7 years ago prior to the date of incident. After marriage behaviour of appellant and his family members was not congenial with her. On the 9th night intervening and 10th of May, 1994, Anita suffered burn injuries in the house of her husband. She was taken to Gandhi Medical Hospital, Rewa, in the morning of 10th May, 1994. On 11-5-1994 Dr. Deepak sharan Kapoor (PW-12) sent a written intimation (Ex. P/11) to police outpost of Gandhi Medical College, Rewa, with a request that arrangement be made for recording her dying declaration. Shri Rajeev Shrivastava, Naib tahsildar (PW-11) went to Gandhi Medical College, Rewa, on 12-5-1994 at about 7. 10 P. M. and after obtaining the report of concerned doctor that Anita was fit to give her statement, recorded her dying declaration (Ex. P/10 ). In the said dying declaration Anita disclosed that she was set ablaze by her husband Dinesh. She stated that her father-in-law and sons of uncle-in-law did marpeet with her. At that time her husband was at Allahabad. When he returned from Allahabad, he also beat her. They had tried to turn her out of the house, but when she did not leave the house, she was burnt while she was asleep. At the time of occurrence hands of Dinesh also got burnt. On her screeming, her father-in-law came down to the spot and poured water on her. Her husband, his elder brother and sons of uncle-in-law carried her to hospital. On 16-51994 at about 2. 45 P. M. Anita Bai succumbed to her injuries. Intimation in this regard was sent from the hospital to the police station whereupon a marg under section 174 of the Code of Criminal Procedure was registered by Police Station " Laur. On receipt of marg intimation (Ex. P/7), Sub-Inspector Om Shankar Shukla (PW-10) recorded the first information report (Ex. P/8) on 16-5-1994. Intimation in this regard was sent from the hospital to the police station whereupon a marg under section 174 of the Code of Criminal Procedure was registered by Police Station " Laur. On receipt of marg intimation (Ex. P/7), Sub-Inspector Om Shankar Shukla (PW-10) recorded the first information report (Ex. P/8) on 16-5-1994. During the investigation he recorded the case diary statements Sukhlal (P. W. 1), Chandrabhan (PW-2), sumitri (PW-3) respectively the father, brother and mother of Anita Bai, besides the statements of other witnesses and after completion of investigation filed charge sheet against the appellant under section 302 of the Indian Penal Code. ( 3. ) DURING trial, appellant abjured his guilt and pleaded false implication. According to his statement recorded under section 313, Cr. P. C. Anita Bai had set fire to herself. He alongwith other persons had taken her to hospital. After 3-4 days when her parents came to hospital, some inimical people of his village prompted them to make allegation against him of burning Anita. It was also stated that after the occurrence Anita had remained unconscious till her death. ( 4. ) TRIAL Court essentially relying upon the evidence of dying declaration (Ex. P/10) recorded by Naib Tahsildar rajeev Shrivastava (PW-11) and the oral dying declaration made by Anita to Sukhlal (PW-1), chandrabhan (PW-2), Sumitri (PW-3) and Dadai (PW-7), convicted the appellant for committing murder of Anita bai by setting her on fire. ( 5. ) LEARNED counsel for the appellant submits that the dying declaration (Ex. P/10) recorded by Naib-Tahsildar as well as the alleged oral dying declaration made by deceased to her relatives are wholly unreliable. He submits that non-lodging of the first information report by the father and brother of Anita Bai despite knowing that she was burnt by the appellant indicates that the accusation made against the appellant is after thought. When the alleged incriminating dying declaration (Ex. P/10) was made to Naib Tahsildar Rajeev Shrivastava (PW-11) on 12-5-1994, it is suspicious that no offence was registered by the police at that time. He submits that the deceased was a characterless woman; she was seen in a compromising position with Bihari Loniya for which she was admonished. Feeling ashamed, she committed suicide by setting fire to herself. Learned counsel drew our attention to the case diary statements of Kandiya, Shyamlal Sharma, Manti, Babadin and harihar Prasad, filed with the charge sheet. He submits that the deceased was a characterless woman; she was seen in a compromising position with Bihari Loniya for which she was admonished. Feeling ashamed, she committed suicide by setting fire to herself. Learned counsel drew our attention to the case diary statements of Kandiya, Shyamlal Sharma, Manti, Babadin and harihar Prasad, filed with the charge sheet. ( 6. ) CONTRARILY, learned counsel for the respondent/state submits that the dying declaration recorded by Naib tahsildar and the evidence of oral dying declaration made by deceased to her parents and brother are trustworthy. According to him, the case diary statements of witnesses, who were not examined before the trial Court, could not be looked into by the Court. He justifies the judgment of the Court below by adopting the reasonings given by the learned trial Court. ( 7. ) WE have heard the arguments of the counsel of both the sides and perused the material on record. ( 8. ) THE Apex Court in State of Maharashtra vs. Sanjay D. Rajhans ( AIR 2005 SC 97 ) has held that " It is not the plurality of the dying declarations, that adds weight to the prosecution case, but their qualitative worth is what matters. It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full confidence of the Court in its truthfulness and correctness (vide the observations of five-Judge Bench in Laxman v. State of Maharashtra (2002) 6 SCC 710 ). Inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker. "great caution must be exercised in considering the weight to be given to this species of evidence". When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record. " ( 9. ) ACCORDING to the dying declaration (Ex. P/10)recorded by Naib Tahsildar Rajeev Shrivastava (PW-11), deceased stated that her husband Dinesh had set fire to her. On the same day, prior to the occurrence her fatherin-law and sons of uncle-in-law had beaten her while her husband had been out to Allahabad. He returned from there in the night, then he also beat her. At about 12-1 oclock in the night while she was asleep, Kerosene was poured on her and she was burnt. On the same day, prior to the occurrence her fatherin-law and sons of uncle-in-law had beaten her while her husband had been out to Allahabad. He returned from there in the night, then he also beat her. At about 12-1 oclock in the night while she was asleep, Kerosene was poured on her and she was burnt. Hands of her husband had also got burnt. On hearing her cries, her father-inlaw and other inmates of the house rushed and doused her with water. She was taken to hospital by her husband and sons of uncle-in-law. Since both hands of Anita were burnt, she could not put her thumb impression on the dying declaration. ( 10. ) RAJEEV Shrivastava (PW-11) testified that he had recorded the statement of Anita at 7. 10 P. M. He had obtained the report from the doctor that she was in fit condition to give the statement and that he had recorded her verbatim statement. He stood firm in the cross-examination. Nothing could be brought out to discredit him. He categorically deposed that at the time when her statement was recorded, she was fit and was giving rational and appropriate answers to the questions put to her. In our opinion, the evidence of Rajeev Shrivastava (PW-1) is quite trustworthy. ( 11. ) SUKHLAL (PW-1), father of Anita Bai testified that the behaviour of appellant and his family members was not cordial with Anita Bai. They used to manhandle her. When he came to know that Anita Bai was burnt by her in-laws, he went to hospital at Rewa. Anita Bai was talking, she informed him that her husband had set fire to her. At that time appellant was also present in the hospital and was looking after her treatment. He deposed that he had seen both the hands of appellant in burnt condition. The evidence of Sukhlal (PW-1) is substantially corroborated by the evidence of chandrabhan (PW-2) and Sumitri (PW-3 ). Dadai (PW-7), a cousin of Sukhlal, has also testified that Anita had told him that appellant had set her blaze. It is to be noted that the appellant, in the cross examination, put suggestions to witnesses that in order to escape ignominy, Anita Bai immolated herself, but they were denied by Sukhlal (PW-1) and Dadai (PW-7 ). ( 12. ) FROM the evidence of Dr. It is to be noted that the appellant, in the cross examination, put suggestions to witnesses that in order to escape ignominy, Anita Bai immolated herself, but they were denied by Sukhlal (PW-1) and Dadai (PW-7 ). ( 12. ) FROM the evidence of Dr. V. K. Sharma (PW-13) it has been established that Anita Bai had died of burn injuries. ( 13. ) ON close scrutiny of the evidence of dying-declaration (Ex. P/10) recorded by Naib Tahsildar Rajeev shrivastava (PW-11) and the evidence of oral declaration made to Sukhlal (PW-1), Sumitri (PW-3) and Dadai (P. W. 7) we are satisfied that Anita Bai had made the aforesaid dying-declaration and Ex. P/10 was correctly recorded by Rajeev Shrivastava (PW-11 ). In view of the above evidence we are convinced that the appellant had set fire to Anita Bai. ( 14. ) HOWEVER, when we turn our attention to the contents of the dying-declaration (Ex. P/10), we find that anita Bai was beaten up by her father-in-law and sons of her uncle-in-law in the day time, prior to the incident. At that time appellant was at Allahabad. In the evening inmates of the house also tried to turn her out of the house. The incident of her burning took place at about 12 oclock in the night when appellant returned from allahabad while she was asleep. It has also been admitted by her that hands of appellant were also got burnt and that the appellant and sons of her uncle-in-law had taken her to hospital. It has also been deposed by sukhlal (PW-1), Sumitri Bai (PW-3) and Dadai (PW-7)that appellant remained present in the hospital throughout and took care of the treatment of Anita Bai. There is absolutely nothing on record, including the dying-declaration (Ex. P/10), to give a clue as to why father-in-law and sons of uncle-in-law of Anita Bai assaulted her when appellant was out at Allahabad. It is suspicious that after returning from Allahabad in the night appellant too beat her. It is still more suspicious that though police came to know about the occurrence on 11-5-1994, dying declaration (Ex. P/10) was recorded on 12-5-1994 and parents of deceased had reached the hospital long before the death of Anita Bai, yet no first information report was lodged before 16-5-1994. It is still more suspicious that though police came to know about the occurrence on 11-5-1994, dying declaration (Ex. P/10) was recorded on 12-5-1994 and parents of deceased had reached the hospital long before the death of Anita Bai, yet no first information report was lodged before 16-5-1994. No doubt the suggestions put to Sukhlal (PW-1) and Dadai (PW-7) that Anita Bai set fire to herself in order to save her from ignominy were denied but at the same time, in the above circumstances they create suspicion of some serious misconduct on the part of Anita Bai. ( 15. ) LEARNED counsel for the appellant drawing our attention to the case diary statements of Kandiya, Manti and Babadin argued that Anita Bai had developed illicit relations with Bihari Loniya and that she was seen in a compromising position with him by Kandiya. This rumour was spread in the village and probably feeling aggrieved by the profligacy of Anita, appellant set her to fire or she herself committed suicide. We are afraid that the statements recorded by police during investigation cannot be used for any other purpose except provided in section 162 of the Code of Criminal Procedure, according to which, when any witness is called for the prosecution in inquiry or trial, whose statement had been reduced in writing during investigation, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court by the prosecution to contradict such witness in the manner provided by section 145 of the Indian Evidence Act. It has been specifically provided in sub-section (1) of section 162, Cr. P. C. that no statement recorded under section 161 or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. In view of this legal position it is not possible for us to take into consideration the statements of aforesaid witnesses recorded by the police during investigation. However, in view of the fact that there is total lack of evidence on record as to under what circumstances family members of appellant and appellant himself mal-treated Anita Bai, the genesis of the occurrence remains shrouded in obscurity. However, in view of the fact that there is total lack of evidence on record as to under what circumstances family members of appellant and appellant himself mal-treated Anita Bai, the genesis of the occurrence remains shrouded in obscurity. These facts lead us to think and especially the complete silence of the deceased of any motive for appellant to suddenly ignite her, that when appellant came back to his house from Allahabad in the night, there would have very probably occurred some serious altercation in the course of which without any premeditation in the heat of passion suddenly appellant lost control of himself and set fire to anita Bai. This view of ours further finds support from the immediate subsequent conduct of appellant of taking her to the hospital for necessary treatment. In this view of the matter we feel persuaded to bring down the offence of the appellant from the first degree murder to culpable homicide not amounting to murder. ( 16. ) WE, therefore, alter the conviction of the appellant from section 302 to Section 304 Part-I of the Indian penal Code and impose a sentence of rigorous imprisonment for 10 years on him. Sentence of fine under section 302 of the Indian Penal Code is set aside. It has been pointed out that appellant has remained in custody fore more than 14 years. He shall be released forthwith, if not required in any other case.