Judgment ( 1. ) THE, appellants have challenged by filing this Appeal the legality of the judgment and order dated 5/10/2005 passed in S. T No. 143/2003 by learned Sessions Judge, Jhabua whereby convicted the appellants U/ ss. 147,302,302/149 and 343 of the IPC and sentenced each appellant to undergo one year R. I, R. I for fife with fine of Rs. 2000/- in two counts and one year R. I in respective counts. In default of payment of fine each appellant was further directed to undergo RI of six months in two counts. However, the substantive jail sentences have been directed to run concurrently. ( 2. ) LACONICALLY the prosecution case as unfurled before the trial Court is that deceased Smt. Belabai fell in love with her brother-in-law deceased Tansingh because of which she eloped with Tansingh after leaving her husband and children to Bhopal and from Bhopal to Bharuch (Gujarat) and working as labourer. Prior to the date of incident they stayed at the. house of Thavari, sister of Tansingh in village Khal Khandvi and at the house of Savita (PW. 6), sister of deceased Belabai in village Chainpura. On receiving information about presence of Tansingh and belabai in village Chainpura, appellant Ralu, brother of Tansingh, Chimanlal, ramesh and other 2-3 persons brought Belabai and Tansingh forcibly to village lohariya and confined them in the hut of Metabai (PW. 2 ). On 30/9/2002 in the morning at 3-4 a. m, Belabai and Tansingh ran away but they were caught by the appellants and brought back to the hut. Appellants sprinkled kerosene oil on their person and set them on fire. Metabai (PW. 2) tried to extinguish fire and sustained burn injury. Tansingh and Belabai were taken to Kalyanapura police station in a tractor by accused persons. Belabai lodged the report (Ex. P. lo) recorded by Sub inspector Shri Munish Rajoria (PW. ll ). Both injured were sent immediately to primary Health Centre, Kalyanpura where Dr. Ashwin Bhagwat (PW. 12) recorded their dying declaration (Ex. P. 23 of Belabai and Ex. P. 24 of Tansingh) and also issued medico legal certificate (for short MLC) of Tansingh and Belabai vide ex. P. 13-A and P. 14-A, respectively. Thereafter he referred them for further treatment to District Hospital, Jhabua. On the same day in District Hospital, jhabua Executive Magistrate N. K. Barole (PW. 9) recorded their dying declaration vide Ex. P. 24 of Tansingh) and also issued medico legal certificate (for short MLC) of Tansingh and Belabai vide ex. P. 13-A and P. 14-A, respectively. Thereafter he referred them for further treatment to District Hospital, Jhabua. On the same day in District Hospital, jhabua Executive Magistrate N. K. Barole (PW. 9) recorded their dying declaration vide Ex. P. 6 (Tansingh) and P. 7 (Belabai ). During the course of investigation, statements of Tansingh and Belabai were also recorded by Sub Inspector Munish rajoria (PW. ll) vide Ex. P. 11 of Tansingh and Ex. P. 12 of Belabai. On 4/10/ 2002 Tansingh had died, information whereof was sent to police station, Jhabua and Jhabua police prepared his inquest report. Postmortem on the body of Tansingh was performed by Dr. O. P. Agrawal (PW. 13 ). The postmortem report is Ex. P. 25. Belabai died on 22/12/2002 in her house situated in village Khal Khandvi. After receiving information, police prepared inquest report and sent her dead body for postmortem examination which was conducted by Dr. Smt. K. B. Chaturvedi (PW. 10) and issued postmortem report (Ex. P. 9 ). Spot map (Ex. P. 15 and P. 34)were prepared by Investigating Officer. He also effected seizure of burnt clothes,. earth mixed with kerosene and controlled earth, kerosene cane from the spot and sent the same to FSL and its report is Ex. P. 38. On due investigation, charge sheet was filed by the police against six accused persons. ( 3. ) APPELLANTS abjured the guilt and pleaded their false implication. They did not examine any witness in defence whereas prosecution has examined as many as 18 witnesses and adduced 38 documents to prove its case. The learned trial court, finding the appellants guilty, while acquitting co-accused Kalsingh, convicted the appellants as indicated herein above. ( 4. ) WE have heard the learned counsel for parties and also taken through the record. . ( 5. ) LEARNED counsel for appellants has submitted that deceased were not in a condition to give statement and their all the statements were concocted. It is also submitted that the contents of all the seven dying declarations are contradictory to each other, therefore, no reliance should have been placed by the trial Court for convicting the appellants and all the appellants deserves to be acquitted. It is also submitted that the contents of all the seven dying declarations are contradictory to each other, therefore, no reliance should have been placed by the trial Court for convicting the appellants and all the appellants deserves to be acquitted. The learned counsel has placed reliance on Supreme Court judgments and judgment rendered by this Court in following cases; [1] Rasheed Beg and others Vs. State of MP [ air 1974 SC 332 ], [2] K. Rdmchdndra Reddy and another Vs. The Public Prosecutor [ air 1976 SC 1994 ], [3] Chandrasen and another Vs. State of M. P [ 1983 JLJ 73 ], [4] Anna Appa Sutar Vs. State of Maharashtra [1987 (1) Crimes 96], [5] Smt. Kamla Vs. State of Punjab [ air 1993 SC 374 ], [6] Girdhar shankar Tawade Vs. State of Maharashtra [2002 SCC (Cri) 971], [7] Leila srinivasa Rao Vs. State ofandhra Pradesh [ air 2004 SC 1720 ], [8] Chinnamma vs. State of Kerala [ air 2004 SC 2816 ], [9] State of Maharashtra Vs. Sanjay D. Rajhans [ air 2005 SC 97 ], [10] Sanjay Vs. State of Maharashtra [ air 2007 SC 1368 ], [u]amol Singh Vs. State ofm. P [2008 (2) SCC (Cri.) 637], [\2]mehiboobsab abbasabi Nadifvs. State of Karnataka [2009 (1) SCC (Cri.) 287]. ( 6. ) IN oppugnation, learned counsel for State has submitted that right from the fir (Ex. P. 10) lodged by deceased Belabai, names of all the appellants were mentioned and Belabai died after more than two and a half months which shows that she did not suffer serious injuries. It is also submitted that the dying declarations were recorded by Doctor and Executive Magistrate who were the independent persons and there is absolutely no evidence on record regarding tutoring of the deceased, therefore, the learned trial Court has not committed any error in relying on all the dying declarations and rightly convicted the appellants. ( 7. ) THE key question for consideration before us is whether all or any one of the aforesaid dying declaration is reliable for basing conviction of the appellants. In all the aforesaid Supreme Court pronouncements, it is held that conviction can be based only on the basis of dying declaration if the same is given voluntarily and truthfully and need of corroboration is not requirement of law but as matter of prudence;, looking to the facts. In all the aforesaid Supreme Court pronouncements, it is held that conviction can be based only on the basis of dying declaration if the same is given voluntarily and truthfully and need of corroboration is not requirement of law but as matter of prudence;, looking to the facts. and circumstances of the case, corroboration may be sought. It is also held by the Supreme Court that when there are multiple dying declarations and there are several inconsistency therein, the same cannot be relied upon for basing conviction. Keeping in view these legal prepositions, now we proceed to appreciate the contents of all the aforesaid dying declarations. ( 8. ) THE incident occurred in the intervening night of 29th and 30th September, 2002 and FIR was lodged on 30th September, 2002 at 7. 3 0 am by deceased Belabai recorded by Sub Inspector Munish Rajoria (PW. 11 ). The contents of the FIR are admissible as dying declaration of the deceased because it relates to the cause of death of the deceased, as per provision U/s. 32 (l) of the Evidence Act which reads as under:- "section 32 (1):- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question". In view of the above provision, contents of the dying declaration of one deceased cannot be considered for the death of other deceased. ( 9. ) SAME is the position about statements of deceased persons (Ex. P. 11 of tansingh and Ex. P. 12 of deceased Belabai) recorded by Shri Rajoria. Shri Rajoria (PW. ll) has proved the FIR (Ex. P. lo) as well as statements Ex. P. ll and P. 12. In all these three statements (dying declarations) of the deceased persons, there is no inconsistency about presence and participation of the present appellants. It. P. 11 of tansingh and Ex. P. 12 of deceased Belabai) recorded by Shri Rajoria. Shri Rajoria (PW. ll) has proved the FIR (Ex. P. lo) as well as statements Ex. P. ll and P. 12. In all these three statements (dying declarations) of the deceased persons, there is no inconsistency about presence and participation of the present appellants. It. is clearly mentioned in these dying declarations that deceased Belabai fell in love with his brother-in-law (husbands younger brother) and both left their house and went to Bhopal, thereafter to Bharuch and earning their livelihood by working as labourer. They returned to village Khal Khandvi and resided with the sister of deceased Tansingh and thereafter for one day in the house of sister of deceased belabai in village Chainpura. Through Dhirji, appellant Ralu came to know about their whereabouts and they were brought by appellants Ralu, Chiman and ramesh to village Loharia and confined in the house of appellant Kaliya. They were telling them that they will not allow them to enter into marriage. On the date of incident, in the morning at about 4. 00 a. m they were running away but trapped by the appellants and appellants, after pouring kerosene oil on their person, ablazed them, thereafter appellants Balu, Ramesh,chiman and others brought them in tractor to police station. In all three dying declarations (Ex. P 10, P. 11 and p. 12) almost all the same facts are available. Names of all the appellants with acquitted co-accused Kalsingh as perpetrator of the crime are mentioned. There are no inconsistencies or contradictions in these statements on material particulars. Sub Inspector Shri Rajoria (PW. ll) proved all these three dying declarations as per provisions U/ss. 67 and 80 of the Evidence Act. He proved his handwriting and signature as per provision U/s. 67 of the Evidence Act and he was authorised officer to record FIR as well as statement as per provision U/ss. 154 and 161 of the Cr. P. C and contents therein are admissible in evidence as per provision u/s. 80 of the Evidence Act. In his cross examination, nothing substantial has come which may throw doubt on the veracity of these three dying declarations. ( 10. ) BOTH the deceased were immediately referred by police to Primary Health centre, Kalyanpura, District Jhabua and attended by Dr. Arvind Bhagwat (PW. 12 ). Dr. In his cross examination, nothing substantial has come which may throw doubt on the veracity of these three dying declarations. ( 10. ) BOTH the deceased were immediately referred by police to Primary Health centre, Kalyanpura, District Jhabua and attended by Dr. Arvind Bhagwat (PW. 12 ). Dr. Bhagwat, on examination of deceased Tansingh, found 70% burn injury as stated in his statement -He also proved MLC report of Tansingh (Exrp. 13-A ). On the person of deceased Bela, wife of Khuman, 45% burn injury was found. Her MLC report proved is Ex. P. 14-A. Dr. Bhagwat has. nowhere stated that deceased were unconscious. According to MLC reports, they were examined on 30/9/2002 at 8. 00 am and 8. 10 am, respectively. ( 11. ) DR. ASHWIN Bhagawat (PW. 12) recorded the dying declaration (Ex. P. 23) of deceased Belabai and stated specifically in para seven of his statement that Belabai was conscious and in a condition to give statement whereas Tansingh was not in a position to speak and he was giving answer only in saying word YES therefore, he read out the statement of Belabai to him and he gave positive answer saying yes. Dr. Bhagwat was cross examined by defence counsel at length but nothing adverse has come in his statement to detract the contents of dying declaration (Ex. P. 23) of deceased Belabai. In para 15 of cross examination, he has specifically stated that he was resident of District, Indore and able to understand tribal language up to the extent to know the condition of the patient and as per necessity he was also posted in Kalyanpura Primary Health Centre since last one year and belabai was giving answer in mixed language tribal and Hindi. He has also stated that he had not written questions put to her but he put interrogatory questions i. e. What happened, How happened, When occurred, Who committed etc. On perusal of statement Ex. P. 23 of deceased Belabai, we are of the considered view that it is completely in line with dying declarations (Ex. P. 10, P. 11 arid P. 12) except omissions of name of acquitted co- aceused Kalsingh and we find absolutely no contradictions and inconsistency in the dying declaration Ex. P. 23 of Belabai recorded by Dr. Bhagwat. P. 23 of deceased Belabai, we are of the considered view that it is completely in line with dying declarations (Ex. P. 10, P. 11 arid P. 12) except omissions of name of acquitted co- aceused Kalsingh and we find absolutely no contradictions and inconsistency in the dying declaration Ex. P. 23 of Belabai recorded by Dr. Bhagwat. She sustained only 45% burn injury and immediately lodged the report as well as attended by Doctor and she was in fit state of mind to give statement. There is no reason exist to discard the statement Ex. P. 23 (dying declaration) of Belabai in which names of all the appellants are mentioned. ( 12. ) DR. ASHWIN Bhagwat (PW. 12), after recording dying declaration, referred belabai and Tansingh for further treatment to district Hospital, Jhabua where their dying declarations (Ex. P. 6 and P. 7) were recorded by Executive Magistrate n. K. Barole (PW. 9 ). These statements were also recorded on the same day i. e. 30/9/2002. Before recording dying declaration, certificate of fitness was taken by him from concerned Doctor. On dying declaration (Ex. P. 6) of Tansingh and after recording dying declaration he took right thumb impression on the dying declaration. Same procedure was adopted by him for recording dying declaration of deceased Bela (Ex. P. 7 ). He also proved the certificate given by Doctor before recording dying declaration that both the deceased were in a condition to give statement at place "b to B" in Ex. P. 6 and P. 7. In cross examination, para seven he has stated specifically that he was posted in Jhabua since 1998 and he was able to understand language of tribals of Jhabua district and he translated the answer given by both the deceased in Hindi. In dying declaration (Ex. P. 6) deceased tansingh has given same story and named appellants Balu, Siman (Chiman) and kaliya for ablazing him and Belabai after pouring kerosene oil. He did not mention the names of appellant No. 1 Ramesh and No. 3 Ralu. In dying declaration (Ex. P. 7), deceased Belabai mentioned the names of Siman (Chiman) and Dheerji. Dheerji is not the accused in this case. In Ex. P. 7 Bela has also given the same story and mentioned the name of Chiman. She has deposed only about of pouring kerosene oil and not stated about lifting fire. In dying declaration (Ex. P. 7), deceased Belabai mentioned the names of Siman (Chiman) and Dheerji. Dheerji is not the accused in this case. In Ex. P. 7 Bela has also given the same story and mentioned the name of Chiman. She has deposed only about of pouring kerosene oil and not stated about lifting fire. These facts shows the genuineness of both these dying declarations (Ex. P. 6 and P. 7) and it cannot be said by any stretch of imagination about any kind of tutoring to deceased and manipulation, otherwise in both the dying declarations names of all the accused persons would have been mentioned. ( 13. ) THE last dying declaration of deceased Tansingh was Ex. P. 6 recorded on the same day and that too by Executive Magistrate. In this dying declaration, he mentioned the names of three appellants i. e. Appellant No. 2 Chiman, appellant no. 4 Kaliya and appellant No. 5 Balu and there is absolutely no circumstance to discard his this statement which is sufficient to prove the guilt of these three appellants to the hilt for commission of murder of Tansingh. On the basis of the dying declaration (Ex. P. 7) of deceased Bela since he has deposed only up to the extent of pouring kerosene and no statement was given by her about litting fire as well as she mentioned only name of Chiman. Dying declaration of Tansingh (Ex. P. 6) finds corroboration on all material particulars by dying declarations (Ex. P. lo, P. 11, P. 12) as well as statement of Executive Magistrate N. K. Barole (PW. 9) and Dr. Ashwih Bhagwat (PW. 12), therefore, we are of the view that prosecution has proved its case beyond reasonable doubt against appellant No. 2 chiman, appellant No. 4 Kalia and appellant No. 5 Balu for committing homicidal death amounting to murder of deceased Tansingh. Dying declarations of Tansingh would be relevant as per provision U/s. 32 (l) of the Evidence Act only for his cause of death and not for cause of death of Bela. ( 14. ) THE dying declaration (Ex. P. 7) of Bela recorded by Executive-Magistrate is not disclosing the fact of setting fire to her by any of the appellants and confined only up to pouring kerosene oil. We have given precedent over other dying declarations/statements to dying declaration (Ex. ( 14. ) THE dying declaration (Ex. P. 7) of Bela recorded by Executive-Magistrate is not disclosing the fact of setting fire to her by any of the appellants and confined only up to pouring kerosene oil. We have given precedent over other dying declarations/statements to dying declaration (Ex. P. 7) because it was recorded by by Executive Magistrate after taking certificate of fitness and contents thereof are sufficient to establish that statements of deceased persons were recorded fairly, otherwise in this statement also the names of other appellants with specific overtact of setting fire would have been mentioned. In this view of the matter, prosecution has failed to prove its case beyond reasonable doubt against the appellants regarding homicidal death of deceased Bela, hence all the appellants are entitled to be acquitted for commission of murder of Bela. ( 15. ) IN the instant case, there are several dying declarations but there is no inconsistency on material facts and same story has been narrated in all the dying declarations. It is not a case where in initial dying declarations or some of the dying declarations story of accidental death or suicidal death was mentioned and in some dying declarations story of commission of murder by accused persons is mentioned. In all the dying declarations consistently it is mentioned by deceased persons that they were ablazed by the appellants after pouring kerosene oil because they had run away and started living together as husband-wife whereas Bela was already married with brother of the deceased Tansingh and was sister-in-law (Bhabhi) of deceased Tansingh. We are extending benefit of doubt to appellant no. l Ramesh and appellant No. 3 Ralu because their names are not finding place in the dying declarations (Ex. P. 6) of Tansingh but there is consistency about commission of murder of Tansingh by pouring kerosene oil and litting fire by appellant No. 2 Chiman, appellant No. 4 Kalia and appellant No. 5 Balu in all the dying declarations of Tansingh. ( 16. ) IN the wake of aforesaid marshaling of evidence and on consideration of law relating to appreciation of dying declarations, we allow this appeal in part. Conviction and sentence of appellant No. l Ramesh and No. 3 Ralu on all counts are hereby set aside, They are on bail. Their bail bond and surety bond stand discharged. ( 16. ) IN the wake of aforesaid marshaling of evidence and on consideration of law relating to appreciation of dying declarations, we allow this appeal in part. Conviction and sentence of appellant No. l Ramesh and No. 3 Ralu on all counts are hereby set aside, They are on bail. Their bail bond and surety bond stand discharged. Conviction and sentence of appellant No. 2 Chiman, No. 4 Kalia and no. 5 Balu so far as death of Bela is concerned, are hereby set aside but their conviction and sentence for commission of murder of Tansingh are hereby affirmed as passed by the learned trial Court. ( 17. ) THE appeal is allowed in part in the term indicated herein above. Office is directed to send a copy of this judgment along with the record to the trial Court immediately. Appeal partly allowed.