J.P. Singh, J. 1. The appellants have been convicted, and sentenced to imprisonment for life and fine of Rs.10,000/- , under Section 302/34 RPC, and, to imprisonment for one year, under Section 447 RPC, by the Additional Sessions Judge, Reasi, vide judgment and order of March 15, 2008, for the murder of Ms. Kishi Devi, their aunt, by setting her on fire pouring kerosene, in the Arak, i.e. fodder growing field, situated at village Thanole, Tehsil Reasi, at about 5 p.m. on October 23, 2003, where she had gone for mowing grass. 2. They have questioned the conviction and sentence by their Criminal Appeal No. 08/2008. 3. Additional Sessions Judge, Reasi, too, has made Reference for confirmation of appellants sentence. 4. Facts giving rise to the Appeal and Confirmation Reference, may, in brief, be stated, thus:- Ms. Kishi Devi, wife of PW-2 Chamel Singh, died of burn injuries on October 23, 2003 at Village Thanole. 5. Her statement was recorded by PW-18 Head Constable Abdul Rashid, posted at State Police Post, Thanole on the same day. 6. The statement reveals that, finding Kishi Devi alone, the appellants trespassed the field where she had gone for mowing grass. Appellant, Mohinder Singh was carrying a Tiffin-case and Puran Singh, a plastic bottle. Appellant, Bhajan Singh caught hold of her and Balwant Singh gagged her mouth with cloth. Mohinder Singh, and Puran Singh poured kerosene from the Tiffin-case and the plastic bottle, And Balwant Singh set her on fire. The dry grass lying around, too, caught fire. To save her life, she suddenly fell down, while trying to run therefrom. PW-7 Taro Devi, her sister-in-law, extinguished the fire and she was brought home injured by number of persons who had gathered there on hearing noise. The appellants had set her on fire by pouring kerosene with the intention to commit her murder. 7. After making statement to PW-18, Kishi Devi succumbed to the burn injuries at her house. 8. First Information Report No. 123/2003 was accordingly registered at Police Station Reasi, on the basis of the Communication EXPWAR, sent by Head Constable Abdul Rashid in this behalf, which inter alia contained the statement aforementioned of Kishi Devi deceased. 9. 7. After making statement to PW-18, Kishi Devi succumbed to the burn injuries at her house. 8. First Information Report No. 123/2003 was accordingly registered at Police Station Reasi, on the basis of the Communication EXPWAR, sent by Head Constable Abdul Rashid in this behalf, which inter alia contained the statement aforementioned of Kishi Devi deceased. 9. Pursuant to the investigation carried out in the FIR by the Head constable, a Final Police Report was laid before the Judicial Magistrate 1st Class (Munsiff) Reasi, who, on finding that one of the offences indicated in the report, was exclusively triable by the Court of Sessions, committed it to Additional Sessions Judge, Reasi on December 22, 2003. 10. Pleading `Not Guilty to the charge, framed by the learned Additional Sessions Judge, Reasi, the trial Court, under Sections 302,447/34 RPC, the appellants claimed trial. 11. The prosecution examined thirteen out of nineteen witnesses enlisted in the Final Police Report. 12. The trial court has convicted and sentenced the appellants relying on the statement of Kishi Devi, made immediately before her death, finding it to have been proved and supported by the evidence which the prosecution had produced in the case. 13. We have heard appellants learned counsel as also the learned Additional Advocate General appearing for the State and considered their submissions, in the light of the evidence which the prosecution and the defence had led before the Trial Court and which we perused during the hearing of the appeal with the assistance of learned counsel for the parties. 14. Before proceeding to consider the submissions of learned counsel for the parties, brief reference to the statements of the prosecution witnesses, needs to be made. 15. PW-2 Channel Singh, is the husband of Kishi Devi deceased. According to him, he was at his house and his wife Kishi Devi had gone along with his daughter Kailash Devi to the Arak for mowing grass. On hearing noise at about 5 p.m, on October 23, 2003, he ran towards the place from where he had heard noise and saw his wife in flames. He had also seen the appellants running towards their houses. On reaching there, he found PW-7, Taro Devi, extinguishing fire and putting her own Shawl over Kishi Devi, who had been rendered naked because of the burning of her clothes. He had also seen the appellants running towards their houses. On reaching there, he found PW-7, Taro Devi, extinguishing fire and putting her own Shawl over Kishi Devi, who had been rendered naked because of the burning of her clothes. He managed a cart from PW-4, Krishan Singhs house and brought her home. The police reached his house on hearing the cries, and recorded her statement. Kishi Devi was unconscious, but had regained senses when given water. 16. According to him Kishi Devi had told the police that she was forcibly caught hold by appellant-Bhajan Singh. Mohinder Singh and Puran Singh had brought kerosene in plastic bottle and Steel Tiffin-case and Balwant Singh, after gagging her mouth with the cloth had set her ablaze pouring kerosene. 17. PW-5 Mohammad Yousuf has not supported the prosecution saying that he had not seen the occurrence as he had gone to attend a marriage. 18. PW-4 Krishan Singh is the brother-in-law of the deceased. On hearing noise and seeing smoke arising from the fields, he reached there to see that some people were carrying home Kishi Devi, his brothers wife. Police reached on spot and recorded her statement wherein she had narrated that the appellants caught hold of her and burnt her after pouring kerosene. He had signed EXPWKS, Kishi Devis statement, made to PW-18, as a witness. He .was, however, declared hostile and during his cross-examination by the Public Prosecutor, stated that Kishi Devis statement was recorded in presence of Chamel Singh, Abdul Haq, Sita Ram and Zarifa Begum. While under cross-examination, he disclosed that Kishi Devis statement was recorded where he had seen her. Kishi Devi had made statement in Dogri dialect. After her statement, she was carried home, where she died after about ten minutes. According to him, Chamel Singhs son had called the police. He denied as Incorrect, his statement recorded under Section 161 of the Code of Criminal Procedure by the police, where he is stated to have said that Kishi Devis statement was recorded at her house. According to the witness, his wife was not present when Kishi Devis statement had been recorded by the police. 19. PW-7 Taro Devi, is the wife of PW-4 Krishan Singh. According to her, the appellants had informed her that Kishi Devi, their aunt had died of burns. According to the witness, his wife was not present when Kishi Devis statement had been recorded by the police. 19. PW-7 Taro Devi, is the wife of PW-4 Krishan Singh. According to her, the appellants had informed her that Kishi Devi, their aunt had died of burns. On reaching the place of occurrence, she, however, found her alive, though in flames. She extinguished fire when the deceased told her that the appellants had burnt her. Kishi Devi was thereafter carried home, but she had not accompanied her. In her cross-examination, she stated that only Mohinder Singh and Puran Singh had informed her about the death of Kishi Devi and that she had not seen the other appellants on spot. The dry grass present on spot too had caught fire. She had not seen the police on spot which had later come at Chamel Singhs house. 20. PW-3 Abdul Haq too has not supported the prosecution. He, however, says that Kishi Devi had died on way to her house. 21. PW-6 Sita Ram, while admitting his signatures on EXPWKS, the Dying Declaration of Kishi Devi, has stated that Kishi Devi had not made any such statement in his presence, as is recorded in EXPWKS, because he had been sent by the police to get the people who were cutting grass near the place of occurrence. Police had obtained his signature on a blank piece of paper. 22. PW-10 Mohammad Akram too has not supported the prosecution. 23. PW-12 Nain Singh, is the son of the deceased. According to him, he along with Kishi Devi, his mother and Kailash Devi, his sister, had gone to the Arak for mowing grass. On hearing noise, he came home but nobody was present there. He thereafter proceeded towards the place from where he had heard noise. He met PWs-Abdul Haq, Krishan Singh & his father Chamel Singh who were carrying his mother who had been burnt. His sister told him that the appellants had burnt their mother. The Police recorded his mothers statement at their house where she had narrated as to how had the appellants burnt her. The witness, disclosed in the cross-examination that his mother had not died at their house but had died on the way to the house. His mother had made statement in Dogri. The Police recorded his mothers statement at their house where she had narrated as to how had the appellants burnt her. The witness, disclosed in the cross-examination that his mother had not died at their house but had died on the way to the house. His mother had made statement in Dogri. He subsequently denied as incorrect, his earlier statement that Kishi Devi had died on her way to their house. 24. PW-17 Dr. Leela Devi, Assistant Surgeon, Health Centre Pouni, has testified conducting the autopsy of Kishi Devi who was found to have received 80% burns. 25. PW-16 Pritam Singh is the Executive Magistrate who had resealed the articles which the police had seized from the place of occurrence. 26. PW-15 Abdul Rashid is the Patwari of the Area who has testified that the field, recorded as Arak indicates the owners to be in possession thereof. 27. PW-18 Head Constable Abdul Rashid says that after recording Kishi Devis statement at her house he had sent Docket EXPWAR to Police Station, Reasi for registration of case. During the course of investigation, he had prepared the site plan, seized grass, some clothes from the place of occurrence and thereafter sent these to the Forensic Science Laboratory. While under cross-examination, he states that Kishi Devis house is situated at a distance of half a kilometer from the Police Camp at Thanole and he had been informed about the occurrence by PW-Nain Singh, Kishi Devis son. In his report to the police station, he had not mentioned about Kishi Devis sons information about the occurrence, to him and had recorded Kishi Devis statement outside her house. He had not got her medically examined before recording her statement. Neither does the statement indicate about the time when it was recorded nor does it indicate about Kishi Devis medical condition at the time of the recording of statement. Zarifa, Taro Devi, Abdul Haq, Krishan Singh and Sita Ram were present when Kishi Devis statement was recorded. He had not indicated in Docket, EXPWAR as to whether or not the deceased was capable of making statement. Kishi Devi had died within ten minutes of his reaching her house. He had not sent Sita Ram to get the people who were cutting grass around the place of occurrence. He had not indicated in Docket, EXPWAR as to whether or not the deceased was capable of making statement. Kishi Devi had died within ten minutes of his reaching her house. He had not sent Sita Ram to get the people who were cutting grass around the place of occurrence. According to him, Taro Devi had indicated in her statement that she reached on spot on hearing Kailash Devis cries. 28. Besides the oral evidence referred to hereinabove, the prosecution has placed reliance on the following documents/material too:- 1. EXPW-KS- The Dying declaration of deceased Kishi Devi. 2. EXPW-AR-I-The Site plan of the place of occurrence. 3. EXPW-CS- The Seizure memo of the clothes of deceased Kishi Devi. 4. EXPW-CS-I-The Seizure memo of ash. 5. EXPW-CS-2-The Seizure memo of steel Tiffin case. 6. EXPW-CS-3-The Seizure memo of kerosene mixed Soil. 7. EXPW-CS-4-The Seizure memo of soil. 8. EXPW-CS-5-The Seizure memo of grass. 9. EXPW-CS-6-The Pla cing of Ring, used for sealing, on the Superdnama of Chamel Singh. 10. EXPW-CS-7- The Seizure memo of dead body. 11. EXPW-CS-8-The Memo of receipt of the dead body. 12. EXPW-M- The Post mortem examination report of Kishi Devi. 13. EXPW--AR- The Copy of Khasra Girdawari of khasra nos. 271, 241 and 171, and 14. EXPW-AR-1 The Site plan prepared by Patwari Halqa Jij indicating place of occurrence. 29. Denying the circumstances appearing in the prosecution evidence against them, the appellants examined DW-1 Gania and DW-2 Sobha Ram in their defence. 30. According to DW-1 Gania, while putting dry grass on fire, Kishi Devi had caught fire. He had called the appellants, Mohinder Singh and Puran Singh, as also PW-Taro Devi, who were cutting grass nearby to reach on spot to help the deceased. 31. DW-2 Sobha Ram has supported appellant-Balwant Singhs plea of alibi saying that Balwant .Singh had gone to Rud Pattian at his maternal aunts house and returned only in the evening. 32. Above is the brief resume of the prosecution evidence arid the material it relies upon to supports its case, and the evidence which the appellants had led to project their innocence. 33. 32. Above is the brief resume of the prosecution evidence arid the material it relies upon to supports its case, and the evidence which the appellants had led to project their innocence. 33. We would now proceed to consider and deal with the appellants learned counsels submissions projecting appellants innocence, on the ground that the Dying Declaration EXPWKS had been fabricated after the death of Kishi Devi who had succumbed to the burn injuries before the police reached at her house and that there was no sustainable evidence on records to justify the appellants conviction, and the State counsels plea that no interference in the judgment of the trial court was warranted because the conclusion reached at by the trial court is supported by the reliable Dying declaration of Kishi Devi and other prosecution evidence on records. 34. Although, PWs-2 to 10 have been shown in the Final Police Report to be eye witnesses to the occurrence, yet their deposition in the Court does not indicate it to be so, And the prosecution case rests solely on the statement of Kishi Devi, the Dying Declaration EXPWKS, which she is stated to have made to PW-18 Abdul Rashid immediately before her death. 35. Before coming to the conclusion as to whether or not the appellants conviction and sentence was justified, it is required to be ascertained as to whether Kishi Devi was in a fit state of mind to make statement, and that EXPWKS was the Dying Declaration which Kishi Devi had made to PW-18 Abdul Rashid, before her death. 36. In the event of finding the answers to the aforementioned questions, in the affirmative, it will have to be seen whether the other evidence and material on records does not in any way contradict the version of the occurrence indicated in the Dying Declaration EXPWKS. 37. Admittedly, there is no evidence on records about the state of mind of Kishi Devi at the time when her statement is stated to have been recorded. PW-18 Abdul Rashid is categoric in saying that he had not recorded anywhere about Kishi Devis condition before recording her statement and as to whether or not she was in a fit frame of mind to make statement. 38. The evidence further indicates that Kishi Devi had made her statement to PW-18, in Dogri. 39. PW-18 Abdul Rashid is categoric in saying that he had not recorded anywhere about Kishi Devis condition before recording her statement and as to whether or not she was in a fit frame of mind to make statement. 38. The evidence further indicates that Kishi Devi had made her statement to PW-18, in Dogri. 39. Perusal of EXPWKS, however, indicates it to have been recorded in Urdu and that too in typical police style incorporating the words which one would usually find in FIRs, Police Challans etc. The actual words which according to some of the prosecution witnesses, Kishi Devi had spoken, in Dogri, are not there in EXPWKS. 40. According to PW-18, he had been informed by PW-12 Nain Singh, about the occurrence, at a distance of about half a kilometer from Kishi Devis house, at Police Camp, Thanole. Kishi Devi is stated by him to have expired within ten minutes of his reaching her house. 41. Taking the aforementioned admitted facts emerging from the prosecution evidence, into consideration, particularly that of Kishi Devis death within ten-fifteen minutes of her reaching home, it becomes hard to believe that she was in a fit state of mind to make statement to PW-18 who had reached, on spot only after being informed by PW-12 Nain Singh, her son, at a distance of about half a kilometer from Kishi Devis house. 42. Presence of PW-18 in Kishi Devis house before her death, becomes highly doubtful, because the distance between the Police Camp and the house of Kishi Devi could not probably have been covered by PW-18 before Kishi Devis death at her house. 43. Recording of Kishi Devis statement at her house by PW-18 too becomes further doubtful in view of the statements of some of the prosecution witnesses who have categorically stated that Kishi Devi had died while on her way to the house from the place of occurrence. 44. That apart, Kishi Devi is stated to have made statement to PW-18 in Dogri and there is nothing on records to indicate that PW-18 knew Dogri language for its translation into Urdu. EXPWKS, too does not indicate the time of its recording or any endorsement or certificate of its having been read over and explained to Kishi Devi in her language. 45. EXPWKS, too does not indicate the time of its recording or any endorsement or certificate of its having been read over and explained to Kishi Devi in her language. 45. In view of the above discussion, we, therefore, conclude that the prosecution has failed to prove that Smt. Kishi Devi was in a fit state of mind and EXPWKS was the statement which she had made to PW-18 before her death. 46. The prosecution evidence on records, is not consistent about the presence of all the appellants on spot. Although PW-2 Chamel Singh is stated to have seen all the appellants running away towards their houses yet according to PW-7 Taro Devi, who had reached on spot before the arrival of Chamel Singh, she had seen only two appellants who had informed her that Kishi Devi had burnt herself. In such view of the matter, it becomes difficult to believe the statement of PW-Chamel Singh about the presence of all the appellants on spot at the time of the occurrence. 47. Absence of traces of kerosene in the Tiffin-case and the plastic bottle seized from the place of occurrence by the police, as is evident from the Forensic Science Laboratory Report, negates the prosecution story that Kishi Devi had been burnt after pouring kerosene on her. 48. Yet another factor which needs notice, in the case, is that the whole case has been investigated by PW-18 Head Constable Abdul Rashid, who himself was the complainant in the case. 49. Although, he had indicated in EXPWAR to the Police Station for deputing some experienced officer for the investigation of the case, yet the SHO concerned appears to have ignored the request leaving him free to investigate the case. 50. Being a complainant in the case, on whose docket the case had been registered, PW-18 should not have investigated the case because such a course suspects fair and impartial investigation from which the present case too suffers. 51. 50. Being a complainant in the case, on whose docket the case had been registered, PW-18 should not have investigated the case because such a course suspects fair and impartial investigation from which the present case too suffers. 51. There being no eye witness to the occurrence indicating appellants involvement in setting her ablaze after pouring kerosene, the Forensic Science Laboratorys Report, proving absence of kerosene traces either in the Tiffin-case or in the plastic bottle, stated by the prosecution to have been used by the appellants for the commission of murder, or for that matter, in any of the articles / material seized from the place of occurrence, and the factum of recording of Dying Declaration EXPWKS, having been found to be highly doubtful, besides the Dying Declaration suffering from various infirmities, And there being no evidence on records indicating that Kishi Devi was in a fit state of mind to make the Dying Declaration immediately before her death, leads us to come to the conclusion that the prosecution has failed to prove appellants involvement in the murder of Kishi Devi. 52. For all what has been said above, we would allow the appellants appeal and set aside the trial Courts judgment and order of October 23, 2003, declining confirmation reference no. 02/2008. 53. Acquitting the appellants, it is directed that they be set to liberty forthwith.