Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 16. 05. 2000 passed by learned Sessions Judge, raisen in Sessions Trial No. 173/1998 convicting the appellant No. 1 ram Singh under Section 302 IPC and appellant No. 2 Tara Bai under Section 302/109 IPC and thereby sentencing them to suffer imprisonment of life, this appeal has been preferred by the appellants under Section 374 (2) of the Code of Criminal Procedure, 1973. ( 2. ) IN brief the case of prosecution is that Sushila Bai (hereinafter referred to as the deceased) was wife of appellant No. 1 Ram Singh and daughter-in-law of appellant no. 2 Tara Bai. According to prosecution, when deceased used to arrive at the house of the parents she happened to state the maltreatment of her by the appellants. It is said that on 02. 06. 1998 at 9:00 p. m. the deceased was cooking the meals in the house of appellants and appellants were talking to each other. It is said that appellant No. 2 Tara Bai told her son (appellant no. 1) that he is paying much heed to the deceased. On this, appellant No. 1 Ram Singh poured the kerosene on the deceased and took out a burning fuel-wood from Chulha, but, the father-in-law of the deceased caught hold the burning fuel-wood, hence appellant Ram Singh threw Chimni on the person of the deceased, as a result of which, she caught fire and received burn injuries. ( 3. ) IT is the further case of the prosecution that appellant No. 2 tara Bai tried to snatch the burning Sari of the deceased and her brother-in-law tried to douse the water to extinguish the fire. On hearing the scream of the deceased, Guddi Bai and gauri Bai who are the neighbours of the deceased came to the house of appellants to whom deceased narrated the entire incident. According to the prosecution, appellant Ram Singh and his brother brought deceased in the hospital in a Jeep. On receiving the information regarding the incident by inspector D. S. Thakur on wireless, he proceeded towards the place of occurrence, however, on the way, he found appellants and his family members carrying the deceased to the hospital. ( 4. According to the prosecution, appellant Ram Singh and his brother brought deceased in the hospital in a Jeep. On receiving the information regarding the incident by inspector D. S. Thakur on wireless, he proceeded towards the place of occurrence, however, on the way, he found appellants and his family members carrying the deceased to the hospital. ( 4. ) AFTER the investigation was over, a charge sheet was submitted in the committal court and the said court committed the case to the Court of Session where appellants were tried. ( 5. ) THE learned trial Judge framed charge under Section 302 IPC against appellant No. 1 Ram Singh while appellant No. 2 Tara bai was charged under Section 302/109 IPC. Needless to emphasize, both the appellants denied the charges and requested for trial. ( 6. ) IN order to bring home the charges, prosecution examined as many as 12 witnesses and placed Ex. P-1 to Ex. P-18 the documents on record. The defence of the appellants is of false implication and the same defence they set forth in their statement recorded under Section 313, Cr. P. C. In support of their defence, they examined Naib Tahsildar Babu Khan (DW-1) who recorded the first dying declaration of the deceased immediately after the incident on 03. 06. 1998. ( 7. ) THE learned trial Court on the basis of evidence placed on record came to hold that charge under Section 302 IPC against appellant No. 1 Ram Singh and the charge under Section 302/109 against appellant No. 2 Tara Bai are proved and eventually convicted them and passed the sentence to suffer life imprisonment. ( 8. ) IN this manner, the present appeal has been filed by the appellants assailing the impugned judgment of their conviction and order of sentence. declaration of the deceased recorded by Naib Tahsildar Babu khan (DW-1) for the simple reason that the same was in favour of the accused persons. By highlighting the testimony of Naib tahsildar Babu Khan (DW-1), it has been argued by learned counsel that this witness has proved the dying declaration of the deceased Ex. D-1 and if the testimony of Babu Khan (DW-1) and the first dying declaration of the deceased Ex. By highlighting the testimony of Naib tahsildar Babu Khan (DW-1), it has been argued by learned counsel that this witness has proved the dying declaration of the deceased Ex. D-1 and if the testimony of Babu Khan (DW-1) and the first dying declaration of the deceased Ex. D-1 is considered in proper perspective, it can safely be said that appellants have not committed any offence for the simple reason that the deceased voluntarily gave her dying declaration that when she was cooking the meals, at that juncture, there was no electric light and the chimni which was kept behind her fell because all of a sudden her hand was struck to the said Chimni, as a result of which her clothes caught the fire. ( 10. ) THE next contention of the learned counsel is that the second dying declaration (Ex. P-15) was recorded on 05. 06. 1998 in hamidiya Hospital, Bhopal and the same was recorded by naib Tahsildar Ramesh Chandra Dubey (PW-12 ). But, if the testimony of the parents of the deceased namely Dharamdas (PW-3) and Ginda Bai (PW-4) is considered in its stricto sensue, it would reveal that second dying declaration has been given by the deceased as she was tutored by her parents. ( 11. ) BY inviting our attention to the testimony of Investigating officer D. S. Thakur (PW-9), it has been argued by learned counsel that one Mullu was present at the time of incident and he was an eyewitness but why he has not been examined, there is no explanation of the prosecution in this regard. It has also been put forth by him that the case diary statement of Girja Bai and Tej Singh were not submitted along with the charge sheet because they were proving the innocence of the appellants and in this regard para 11 of the evidence of the Investigating Officer may be seen. ( 12. ) THE contention of the learned counsel is that in these facts and circumstances no credence should be given to the second dying declaration (Ex. P-15) which was admittedly recorded after two days of recording of the first dying declaration (Ex. D-1 ). ( 13. ) ON the other hand, Shri G. P. Singh, learned Deputy government Advocate argued in support of the impugned judgment. ( 14. P-15) which was admittedly recorded after two days of recording of the first dying declaration (Ex. D-1 ). ( 13. ) ON the other hand, Shri G. P. Singh, learned Deputy government Advocate argued in support of the impugned judgment. ( 14. ) AFTER having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. ( 15. ) THE incident took place in the night of 02. 06. 1998 and in between 4 to 4:30 a. m. on 03. 06. 1998 the first dying declaration of the deceased was recorded by Naib Tahsildar Babu Khan (DW-1)which is Ex. D-1. According to us, it was bounden duty of the prosecution to file this dying declaration along with the charge sheet even though the same goes against the prosecution. Deliberately, this important piece of evidence, which throw sufficient light on the controversy, was concealed by the prosecution and was filed only during the cross examination of the investigating Officer D. S. Thakur (PW-9 ). According to us, the criteria and the act of the prosecution is wholly unwarranted under the law. On going through the testimony of Investigating Officer d. S. Thakur (PW-9) para 10, it is revealed that the same was filed in the trial Court by this witness during the cross examination. Not only this, the prosecution did not examine Babu Khan who recorded the first dying declaration (Ex. D-1) and he was examined only by the accused persons in their defence. According to Babu khan (DW-1), he recorded the dying declaration (Ex. D-1) of the deceased. Before taking the dying declaration the doctor who was attending the deceased put his note that deceased was conscious to give dying declaration. This witness has specifically stated that before recording the statement of the deceased the persons who were present there were directed to go away and this witness recorded the dying declaration in presence of the doctor. In cross examination this witness stated that he can not say whether the parents of the deceased were present or not. The suggestion given by Public Prosecutor to this witness that under the influence of the appellants dying declaration (Ex. D-1) was recorded by him, has been firmly denied by him. ( 16. ) THE second dying declaration of the deceased was recorded on 05. 06. 1998 which is Ex. The suggestion given by Public Prosecutor to this witness that under the influence of the appellants dying declaration (Ex. D-1) was recorded by him, has been firmly denied by him. ( 16. ) THE second dying declaration of the deceased was recorded on 05. 06. 1998 which is Ex. P-15 and this dying declaration was recorded by Naib Tahsildar Ramesh Chandra Dubey (PW-12 ). In cross examination, this witness has admitted that he did not put any question to the deceased whether she is giving her statement according to her own wishes and will. Admittedly, the second dying declaration was recorded two days after the recording of the first dying declaration and if we consider the evidence of Dharamdas (PW-3) who is the father of the deceased as well as Ginda Bai (PW-4) mother of the deceased, it can be inferred that the deceased must have been tutored. Dharamdas (PW-3) specifically in para 3 is saying that he went to Hamidiya Hospital at Bhopal and had a talk with the deceased but deceased told him to call her mother. Thereafter when again he went to the hospital along with his wife deceased asked him that appellants be directed to go outside the ward. Thereafter deceased told that on the date of incident appellant Tara Bai told his son Ram Sngh that he is paying much heed to the deceased. Thereafter appellant Ram Singh uplifted a container having kerosene and took out a burning fuel-wood as a result of which her father-in-law caught hold the hand of appellant ram Singh and thereafter Ram Singh threw burning Chimni on her as a result of which she caught fire. In cross examination para 15 he has admitted that when the statement of the deceased was recorded he was accompanied by the police persons and, therefore, he did not state about the factum of lighting the fire by the accused persons to the deceased. According to us, when this witness came to know that appellant Ram Singh subjected his daughter to fire and police persons were there, he should have stated all these facts to the police. ( 17. ) IF we examine the evidence of mother of deceased Ginda Bai (PW-4), it is revealed that when this witness met the deceased at bhopal in the evening in the Hospital and enquired about the incident, her daughter did not say anything on that day. ( 17. ) IF we examine the evidence of mother of deceased Ginda Bai (PW-4), it is revealed that when this witness met the deceased at bhopal in the evening in the Hospital and enquired about the incident, her daughter did not say anything on that day. On the next day when she again came to the hospital, at that juncture, deceased told that on the instigation of her mother-in-law, her husband subjected her to fire. In cross examination this witness has admitted that on 5th her statement was recorded and he narrated entire incident to the police. According to us, there were the ample opportunity to the parents of the deceased tutoring the deceased to give altogether another dying declaration accusing the appellants. It has come in the evidence of the parents that earlier to the incident the deceased was maltreated by her husband and, therefore, there are chances to implicate the appellants falsely and in this regard the parents must have tutored the deceased as a result she gave altogether dying declaration (Ex. P-15) on 05. 06. 1998. Otherwise, the deceased could have stated against the appellants when her first dying declaration was recorded on 03. 06. 1998 after few hours of the incident particularly when the same was recorded by the Naib Tahsildar in presence of doctor and none else were present. ( 18. ) APART from this, on going through the statement of the evidence of Investigating Officer D. S. Thakur (PW-9), it is gathered that at the time of incident one Mullu was present but why the said eyewitness was not examined, we fail to understand. Similarly, it has come in the evidence of Investigating Officer in para 11 that the case diary statement of Girja Bai and Tej Singh were not filed along with the charge sheet because they were proving innocence of the accused persons. According to us, the prosecution was duty bound to file entire relevant documents with the charge sheet and because they were against the prosecution, would in itself is no ground to conceal those documents. ( 19. ) FOR the reasons stated hereinabove, we are not placing reliance on second dying declaration of the deceased dated 05. 06. 1998 Ex. P-15 since it is not trustworthy. The first dying declaration of deceased Ex. D-1 proves the innocence of the appellants. ( 19. ) FOR the reasons stated hereinabove, we are not placing reliance on second dying declaration of the deceased dated 05. 06. 1998 Ex. P-15 since it is not trustworthy. The first dying declaration of deceased Ex. D-1 proves the innocence of the appellants. Since the eyewitness Mullu has not been examined by the prosecution, we are drawing adverse inference against the prosecution. ( 20. ) FOR the reasons stated hereinabove, we are unable to uphold the conviction accorded by the learned trial Court. Accordingly the appeal succeed and is hereby allowed. The judgment of conviction and order of sentence passed against appellants is hereby set aside. The appellants are acquitted from all the charges. Appellant no. 2 is on bail, her bail bonds are discharged. Appellant No. 1 is in jail. He be directed to set at liberty forthwith if not required in any other case.