Yatindra Singh, J. - Love and family honour are strange bedfellows. They often go together yet are not together. This appeal is reminder of the same THE FACTS 2. An incident happened in the night intervening 27/28.5.2004. In this incident, five persons received burn injuries: Sangita (aged about 10 years) and Reshmi (aged about 5 years) died on the spot; the other three, Awadhesh, Anil, and Shrikant were admitted in the hospital. Awadhesh suc­cumbed to his burn injuries in the night intervening 2-3.6.2004 at 00:45 a.m. the other two survived. 3. Chandrawali Prasad (the Infor­mant), father of Awadhesh and grand fa­ther of deceased Sangita and Reshmi, lodged the FIR at 7:30 am on 28.5.2004. It was registered as case crime No. 274 of 2004 under sections 302, 436 and 326, IPC, Police Station Mohammdabad, District Mau. 4. The pedigree of the Informant's side is as follows: Chandrawali = Surati Asha Devi Anil (injured)= Hausla Devi (injured) Awadhesh (killed) Sunanda Priyanka Sangita (killed) Rani (killed) Shrikant (injured) 5. Randhey and Sanjay were named accused in the FIR. They are the Informant's neighbours, living across the road. However, their house is in village Malo whereas the house of the Informant's side is in chak Jafri. 6. The relevant pedigree of the accused side is as follows: Dhopa Shiv Kumar (DW-1) Shashikala I Ram Niwas Girja Devi = Marhu (DW-2) Sanjay (AppeUant-2) Randhey (Appellant-1) Poonam Kanchan Nirmala Monu Son 7. Poonam and Shashikala were of marriageable age. Their gauna ffifi) was on 25.5.2004 and 27.5.2004. According to the defence version the incident happened between 9:00 to 11:00 p.m. on 27.5.2009 whereas the prosecution claims that it hap­pened later in the early hours of 28.5.2004 at 2:30 am. 8. The allegations in the FIR are as follows: (i) In the night, the Informant was sleeping outside the door whereas the other members of the Infor­mant's family were sleeping in the rooms as well as in the verandah. A bulb was lighted at the door; (ii) At about 2:30 a.m., the Informant got up for urination and saw that: • Randhey (Appellant-1) and Sanjay (Appellant-2) sprinkling petrol with a jerrican on the informant's sons Anil, Awadhesh and grand­children Shrikant, Sangita and Rani; • Thereafter, they lit the fire and ran away; (iii) In this incident, Informant's grand daughters Sangita and Rani died on title spot. Anil, Awadhesh, and Shrikant received serious bum in­juries. Anil, Awadhesh, and Shrikant received serious bum in­juries. They have been admitted in the District Hospital Mau; (iv) The Informant's family members had got up when the assailants were running away after the inci­dent. The Informant and his family members chased them but they es­caped. The assailants were seen and recognised in the electric light when they were running away; (v) Some time ago, there was alterca­tion between the accused and Awadhesh regarding their aunt (fan) Girija and they had threat­ened Awadhesh. 9. The police investigated the case and submitted the charge sheet. It was numbered as ST No. 205 of 2004, The Ad­ditional Sessions Judge, Mau, Court No. 3 (the ASJ) framed charge on 4.1.2005. Ac­cused Randhey and Sanjay were charged under sections 302,436 and 326, IPC. 10. 9. The police investigated the case and submitted the charge sheet. It was numbered as ST No. 205 of 2004, The Ad­ditional Sessions Judge, Mau, Court No. 3 (the ASJ) framed charge on 4.1.2005. Ac­cused Randhey and Sanjay were charged under sections 302,436 and 326, IPC. 10. Among others, the prosecution filed the following documents: • Written report dated 28.5.2004 (Ex Ka-1); • Statement of Anil dated 28.5.2004 (Ex Ka-2); • Post mortem report of deceased Sangita dated 28.5.2004 (Ex Ka-3); • Post mortem report of deceased Reshmi dated 28.5.2004 (Ex Ka-4); • Injury report of Hausia dated 28.5.2005 (Ex Ka-5); • Parcha dated 28.5.2004 of Primary Health Centre district Mau in re-1 spect to Hausia (Ex Ka-6); • Post mortem report of Awadhesh dated 30.6.2004 (Ex Ka-7); • Injury report of Awadhesh dated 28.5.2004 (Ex Ka-8); • Injury report of Anil dated 28.5.2004 (Ex Ka-9); • Injury report of Shrikant dated 28.5.2004 (Ex Ka-10); Dying declaration of Awadhesh Kumar dated 28.5.2004 (Ex Ka-11); Statement of Shrikant dated 28.5.2004 (Ex Ka-12); Chick FIR dated 28.5.2004 (Ex Ka-13); GD report No. 18 dated 3.6.2004 of Police Station Lanka, Varanasi in respect to receipt of dead body of deceased Awadhesh from BHU, Varanasi (Ex Ka-16); Inquest of deceased Awadhesh dated 3.6.2004 (Ex Ka-17); Police form No. 13 in respect to de­ceased Awadhesh dated 3.6.2004 (Ex Ka-19); Police form No. 379 in respect to deceased Awadhesh (Ex Ka-20); Inquest of deceased Sangita dated 28.5.2004 (Ex Ka-21); Police form No. 13 in respect to de­ceased Sangita dated 28.5.2004 (Ex Ka-22); Police form No. 379 in respect to deceased Sangita dated 28.5.2004 (Ex Ka-23); Report dated 28.5.2004 of PS Mohammdabad sent to CMO Mau (Ex Ka-24); Report dated 28.5.2004 of PS Mohammdabad sent to Rl Mau (Ex Ka-25); Inquest of deceased Reshmi dated 28.5.2004 (Ex Ka-26); Police form 13 in respect to Reshmi dated 28.5.2004 (Ex ka-27); Police form 379 dated 28.5.2004 (Ex Ka-28); Report of PS Mohammadabad sent to Rl in respect to deceased Reshmi dated 28.5.2004 (Ex Ka-29); Report of PS Mohammadabad sent to CMO Mau in respect to de­ceased Reshmi dated 28.5.2004 (Ex Ka-30); Site Plan with the index (Ex Ka-32); Recovery of memo of half burnt quill (Ex Ka-33); Recovery of memo of Ash (Ex Ka-34); • Letter of the Investigating Officer (the 10) to the DM dated 28.5.2004 to record dying declaration (Ex Ka-35). 11. 11. The prosecution examined the following witnesses: • Chandrawali Prasad (PW-1): In­formant, eyewitness; • Anil Kumar (PW-1): Injured, eyewitness; • Dr. Wasimuddin Jamali (PW-3): Doctor, conducted the post mortem of Sangita and Reshmi; • Dr. Taufeeq Ahmad (PW-4): Doctor Primary Health Centre, examined injuries of Hausia; • Dr. A.K. Tripathi (PW-5): Doctor, conducted post mortem of Awad­hesh; • Dr. Mangla Singh (PW-6): Doctor, examined injuries of Awadhesh, Anil, and Shrikant; • Dr. S.P. Ram (PW-7): Doctor, gave certificate before recording dying declaration; • Akhilesh Pathak (PW-8): Head Constable, prepared the chik; • Kedar Singh (PW-9): Constable, re­ceived information about the death of deceased Awadhesh at Sir Sundar lal Hospital, BHU, Varanasi and conducted his in­quest; • Devesh Kumar Gupta (PW-10): Naib Tehsildar, recorded dying declaration; • Aftab Ahmad Khan (PW-11): In­vestigating Officer (the I.O.); • Asha Devi (PW-12): Eyewitness. 12. The statements of the accused un­der section 313 CrPC were recorded on 1.8.2009. They denied their involvement in the incident and stated that: • Sunanda daughter of Asha Devi (PW-12) was having love affair with one Pradeep son of Rajendra. This was objected to by deceased Awadhesh. There was altercation with Awadhesh and his family members. The Deceased had taken out a country made pistol also; • There was also altercation between Pradeep Kumar and Rajendra on the one side and Awadhesh on the other side due to this affair and they had threatened Awadhesh. • The incident in the night interven­ing 27/28.5.04 was result of the same; and • The accused have been falsely implicated. 13. Among others, the defence filed some letters. They are said to be love letters between Sunanda and Pradeep. In the in­dex filed alongwith these letters it is men­tioned that letters were written by Sunanda to Pradeep or by Pradeep to Sunanda. However, they were not proved and not exhibited. • Letter of Sunanda written to Pradeep Kumar Paper No. 22 Kha; • Letter of Pradeep Kumar written to Sunanda paper No. 23 Kha; • Letter of Sunanda written to Pradeep Kumar Paper No. 24 Kha; • Letter of Sunanda written to Pradeep Kumar Paper No. 25 Kha; • Letter of Sunanda written to Pradeep Kumar Paper No. 26 Kha. 14. 14. The defence also examined the following witnesses: • Shiv Kumar (DW-1): Brother of the grand father of accused, deposed about love affair between Sunanda and Pradeep; • Girija Devi (DW-2): Aunt (Bum) of the accused, denied her love en­tanglement with Awadhesh. 15. The ASJ by his judgement and or­der dated 24.10.2009 convicted the accused and awarded the following sentence to them on 28.10.2009: • Death penalty under section 302 IPC; • Imprisonment for life under section 436 IPG and fine of Rs. 10,000/-with default stipulation of two years; • Ten years rigorous imprisonment under section 326 IPC and fine of Rs. 5,000/- with default stipulation of two years. 16. The ASJ sent reference registered as Reference No. 13 of 2009 before this Court for confirmation of death penalty. The accused also filed Criminal Appeal No. 6610 of 2009 against the same. POINTS FOR DETERMINATION 17. We have heard Sri Dileep Kumar, Sri Rajrshi Gupta for the Appellants and Sri D.R. Chaudhary, GA, Sri Arunendra Ku­mar Singh and Sri Anand Tiwari, AGA for the State.1 18. The following points arise for de­termination: (i) Whether the FIR was ante-rimed: (ii) Was there any light on the spot? (iii) Whether there were other dying declarations. Should an adverse in­ference be drawn against the prosecution for not filing the same? (iv) Whether the dying declaration was concocted; (v) Whether the deceased was in posi­tion to make the statement; (vi) What was the time of the incident? (vii) Whether the incident was an acci­dent or happened in the process of dacoity or theft; (viii) Whether the Appellants are guilty under section 436 IPC; (ix) Whether the Appellants are guilty under section 302 and 326 IPC; (x) In case the appellants are guilty of the crime then, what punishment should be awarded. 1st POINT: FIR NOT ANTE-TIMED 19. The Informant (PW-1) deposed that: • Sunil had taken Shrikant and Anil on motor cycle to doctor Sahib at Karha and deceased Awadhesh was taken on a rickshaw to Dr. Hans Nath at 3:15 a.m.; • Dr. Hans Nath asked them to take the injured to the Government hospital as it was a case of burning; 1. We are thankful to the Counsel appearing in the case for correcting a part of the judge­ment under the heading (THE FACTS and POINTS FOR DETERMINATION), Appen­dix, and the injuries mentioned in the judgement. Hans Nath asked them to take the injured to the Government hospital as it was a case of burning; 1. We are thankful to the Counsel appearing in the case for correcting a part of the judge­ment under the heading (THE FACTS and POINTS FOR DETERMINATION), Appen­dix, and the injuries mentioned in the judgement. Yet, if there are any mistakes, they are ours. • The injured were then taken to District Hospital Mau on a Jeep. They reached there at about 5:30am. (In the District Hospital Mau, the time recorded for their admission was 6:00 a.m.); • Thereafter, the Informant had gone to a shop in the market where he wrote an application regarding the incident and lodged the FIR (In the FIR the time of lodging the same is mentioned as 7:30 a.m.). 20. The Counsel for the Appellants submitt: (i) The FIR was ante-timed; and (ii) It is clear from the inquest report of Sangita (Ex Ka-21) and Reshmi (Ex Ka-26) where the following things are missing: • The time of starting and finishing of the inquest; • Name of the accused or title of the criminal case that shows name of atieast one of the accused; • The details of the documents sent alongwith inquest to the doctor for post mortem. 21. In the inquest reports neither the time of starting and finishing of the inquest is mentioned nor the name of the accused have been mentioned. Nevertheless, the date and time of lodging of the FIR is men­tioned. The case crime number is also men­tioned. 22. Normally in an inquest report, the list of the documents that are sent along­with the inquest report are also indicated. They are sent back alongwith post mortem report. In this case, it is not so indicated. However, this does not mean that no documents were sent alongwith the inquest report. 23. The post mortem reports of Sangita (Ex Ka-3) and Reshmi (Ex Ka-4) are on the record. They indicate that alongwith the post mortem reports, nine enclosures were sent back. This shows |that nine documents were sent alongwith inquest reports for the post mortem. 24. The I.O. (PW-11) deposed that he prepared four documents each on the spot for two dead bodies namely chalan nash (dead body), photo nash, report to CMO, and report to Rl (Ex Ka-22 to Ka-30) and they were sent alongwith inquest reports. This shows |that nine documents were sent alongwith inquest reports for the post mortem. 24. The I.O. (PW-11) deposed that he prepared four documents each on the spot for two dead bodies namely chalan nash (dead body), photo nash, report to CMO, and report to Rl (Ex Ka-22 to Ka-30) and they were sent alongwith inquest reports. In these documents crime number has been mentioned. 25. Dr. Wasimuddin Jamali (PW-3) conducted the post mortem of Sangita and Reshami. He deposed that: • The constable had brought 9 enclo­sures each alongwith dead bodies; • There documents were signed by him and thereafter sent back alongwith post mortem report. 26. The post mortem reports indicate that nine documents were sent back by the doctor. They are on the record of this case. They are signed by the doctor who had conducted the post mortem. The details of these documents are Appendix-1 to this judgement. These documents include photo copy of the FIR. 27. This shows that the copy of the FIR was also sent alongwith inquest report to the doctor. It shows that the FIR was al­ready lodged at the time when the inquest reports were sent alongwith dead bodies for the post mortem. 28. In case there was any doubt whether copy of the FIR was sent along­with Inquest report or not then defence should have put a suggestion or question to the doctor or to the I.O. Neither any sug­gestion has been given to them nor any question has been asked in the cross-examination. 29. In our opinion, • The copy of the FIR was sent to the doctor alongwith inquest reports and dead bodies for the post mor­tem; • The FIR is not ante-timed. 2nd POINT: THERE WAS LIGHT 30. The site plan prepared by the I.O. is Ex Ka-32. The Informant (PW-1) has de­posed about topography of his house and where different persons were sleeping. He deposed as follows: • There are two rooms: one is pakka and other is kachcha, The pakka room is on the northern side of the house. In this room the Informant's wife Surati Devi, his daughter Asha, and his grand daughter Pri-yanka were sleeping; • Towards south of this pakka room was the verandah. The opening of the pakka room is on the southern wall of this room towards veran­dah • In the southern side of verandah there were two takhtas. In this room the Informant's wife Surati Devi, his daughter Asha, and his grand daughter Pri-yanka were sleeping; • Towards south of this pakka room was the verandah. The opening of the pakka room is on the southern wall of this room towards veran­dah • In the southern side of verandah there were two takhtas. In one tak-hta Awadhesh and his brother Anil were sleeping and on other takhta Sangita, Reshmi and Shrikant were sleeping; • The kachcha room is towards east of pakka room and the verandah. The kachcha room was connected to the verandah through a door in the eastern wall of the verandah; • Hausala Devi wife of Anil was sleeping in the kachcha room. This is also deposed by Anil Kumar (PW-2). There is no dispute so far as this topography of the Informant's house is concerned or who was sleeping where. 31. According to the prosecution case and oral evidence, there was a clock over he door in the eastern wall of the verandah leading to kachha room. There is no sugges­tion to any prosecution witness that there was no clock on the top of the door. In our opinion, a clock was there. However, there is dispute whether there was an electric bulb or not and whether it was lighted. 32. The Counsel for the appellants submitted that: • There is contradiction regarding electric connection; • There was no electric connection and there was no light; • In any case, the recovery memo of the bulb was not made and it can­not be said that there was any bulb. 33. The Informant (PW-1) deposed that the connection was not in his name whereas Anil (PW-2) and Asha Devi (PW-12) deposed that the connection was in lie name of their father. There is some contra­diction in the oral evidence regarding in whose name electric connection was but there is no contradiction whether there as bulb or not. All the eyewitnesses deposed that there was an electric bulb on the door in the eastern wall of the verandah and it was lighted. 34. There is no suggestion to any prosecution witness that there was no bulb. The only suggestion to Asha Devi (PW-12) was that the bulb was not lighted. 35. The recovery memo is normally made of a weapon or of moveable things. 34. There is no suggestion to any prosecution witness that there was no bulb. The only suggestion to Asha Devi (PW-12) was that the bulb was not lighted. 35. The recovery memo is normally made of a weapon or of moveable things. The bulb is already fixed on the wall and it is for this reason the I.O. might not have made the recovery memo. In any case, this suggestion or question ought to have been put by the defence to the I.O. They having failed to do so, cannot get any benefit of the same. In any case, short coming of not making the recovery memo of the bulb is not of such nature so as to cast a doubt in the investigation. 36. In our opinion, there was a bulb at the top of the door and was lighted. 3rd POINT: NO ADVERSE INFERENCE 37. The Counsel for the Appellants submitted that: (i) There were three dying declara­tions: • The first was before the doctor; • The second was before the Magis­trate; and • The third before the I.O. (ii) The prosecution filed only one dy­ing declaration; and (iii) An adverse inference should be drawn against the prosecution. 38. The prosecution case is that there were only two dying declarations: • The Magistrate recorded the state­ment of three injured namely Anil Kumar, Awadhesh and Shrikant, (ending at 12:00, 12:30, and 12:45 hours respectively). This was re­corded by Naib Tehsildar (PW-10). Subsequently, Awadhesh Kumar died and his statement is treated as a dying declaration; • The other statement was recorded by the 10 (PW-11). The time of this recording has not come in evidence but it appears to have been re­corded some time in the evening of 28.5.2004 when the I.O. reached the District Hospital. 39. The prosecution has filed the statements recorded by Naib Tehsildar that was done at about noon time. When the statements recorded by the Magistrate in­cluding the dying declaration were filed then neither there was any necessity to file statement recorded by the I.O. that could be treated as dying declaration nor any ad­verse inference can be drawn on this ground. 40. The Counsel for the appellants brought to our notice the depositions of Informant (PW-1) and Anil Kumar (PW-2) where they have deposed that the state­ments of tine injured (including of Awad-hesh) were recorded by the doctor. 40. The Counsel for the appellants brought to our notice the depositions of Informant (PW-1) and Anil Kumar (PW-2) where they have deposed that the state­ments of tine injured (including of Awad-hesh) were recorded by the doctor. He submitted that the doctor had also re­corded the statements and that should have been filed. 41. The injured were admitted in the District Hospital Mau in the morning on 28.5.2004. At that time Dr. Mangia Singh was the doctor. He examined the injuries and admittedly did not record any state­ment of any injured witness. In fact, Awadhesh was not in a position to speak at that time. 42. Anil Kumar (PW-2) deposed that the statement was recorded between 12:00 to 13:00 hours. At noon time, Dr. SP Ram (PW-7) was in the District Hospital Mau. He has also given certificate that the in­jured were in a position to make their statements. He deposed that the statements were recorded in front of him by the Magis­trate. 43. Anil Kumar (PW-2) is a villager. Informant (PW-1) was a police constable but was not in the service for more than twenty five years, when his oral testimony was recorded. Doctors wear white coats and can be easily recognised. The police officers also wear uniform and are easily recognised. However, Magistrates do not wear any uniform and are difficult to rec­ognise. 44. Dr. S.P. Ram (PW-7) gave a certifi­cate that the injured were in a position to give statement. He was also present at the time when Naib Tehsildar Devesh Kumar Gupta (PW-10) recorded the statements. The statements were recorded in front of the Magistrate as well as doctor; It was in front of both of them. It is for this reason that the Informant (PW-1) and Anil Kumar (PW-2) might have deposed that the In­jured had given their statement before the doctor. 45. In any case suggestion should have been put to the doctor (PW-7) or he should nave been cross-examined. No such suggestion or question was put to him. The defence cannot take any benefit or advan­tage of the same. 46. In our opinion, there was no third dying declaration and there was no neces­sity of filing it. No adverse inference can be drawn. 4th POINT: DYING DECLARATION - NOT CONCOCTED 47. Among the three injured, the statement of Anil Kumar was recorded first. His statement ended at 12:00 hours. 46. In our opinion, there was no third dying declaration and there was no neces­sity of filing it. No adverse inference can be drawn. 4th POINT: DYING DECLARATION - NOT CONCOCTED 47. Among the three injured, the statement of Anil Kumar was recorded first. His statement ended at 12:00 hours. Thereafter statement of deceased Awad­hesh was recorded, it ended at 12:30 hours and then statement of Shrikant was re­corded, it ended at 12:45 hours. This is mentioned in their statements. The certifi­cates given by the doctor are also men­tioned in the statements. 48. The Counsel for the Appellants brought to our notice the distance of the place of incident to the police station (9 km - see FIR Ex Ka-13) and from place of inci­dent to the district head quarter (35 km -see police form No. 13 in respect to de­ceased Sangita and Reshmi Ex Ka-22 and Ka-27) and submitted: • The I.O. (PW-11) sent the letter to the District Magistrate to record the statement of the injured from the place of incident at 11:00 am. Thereafter the order was passed by the District Magistrate and then Naib Tehsildar had gone to the hospital; • It was not possible for the constable to reach head quarter and thereaf­ter Naib Tehsildar to reach the hospital so as to record and end the first statement ending at 12:00 hours; • No dying declaration was recorded in front of the Magistrate; • The alleged dying declaration is concocted one. 49. The letter was sent by the I.O. from the spot. The Carbon copy of this let­ter has been proved and is Ex Ka-35. The original letter sent by the I.O. is also on rec­ord. It is paper No. 16 Kha. In this original, the order of the District Magistrate is also recorded for Naib Tehsildar to get the dy­ing declaration recorded. It is in pursuance of this order that the Naib Tehsildar had gone to the hospital and recorded the statement. 50. Dr. S.P. Ram (PW-7), gave certifi­cate to the injured that their statements can be recorded. He deposed that: • He was present at the time when the statements were recorded; • The statements were recorded by the Magistrate. 51. Devesh Kumar Gupta (PW-10) is the Naib Tehsildar, who recorded the statements. He deposed that he had gone to the hospital to record the statements. 52. He deposed that: • He was present at the time when the statements were recorded; • The statements were recorded by the Magistrate. 51. Devesh Kumar Gupta (PW-10) is the Naib Tehsildar, who recorded the statements. He deposed that he had gone to the hospital to record the statements. 52. The doctor and Naib Tehsildar are government servants. They do not have any mala fides against the appellants. There is no reason for them to depose falsely. The time on which the dying decla­ration was recorded is not disputed. How­ever, the same cannot be said about the deposition made by the I.O. regarding the time when he sent the letter through con­stable to record the statements. 53. There is neither any evidence how constable had gone, nor any written record at what time the constable left alongwith letter to the D.M. to get the dying declara­tion recorded. The incident took place on 28.5.2004. The statement of the I.O. was recorded on 24.2.2009, approximately after five years of the incident. In absence of any record, it is not expected from him to re­member the exact time the letter was sent. It is possible that he deposed to the later time in his oral testimony due to lapse of memory: this does not mean that Naib Tehsildar had not gone to the District Hospital to record the statements. 54. The prosecution case in the FIR is that only two persons namely Randhey (Appellant-1) and Sanjay (Appellant-2) had come and sprinkled petrol and thereafter lit the fire. However, in the statements there are different versions; • In the dying declaration of Awad­hesh apart from the names of ap­pellants, it is mentioned that there were 2-3 unknown persons; • In the statement of Anil Kumar (PW-2) apart from the name of ap­pellants, it is mentioned that there were 3-4 unknown persons; • In the statement of Shrikant it is mentioned that he did not recog­nised the persons who committed the crime. 55. There is some difference in these statements as well as with the prosecution case in the FIR. Had these statements or dying declarations concocted then this dif­ference would not have been there. The prosecution would have seen that there was no contradiction amongst them or with the prosecution case in the FIR. The fact that it is there, shows that they are genuine and not concocted. 56. In. Had these statements or dying declarations concocted then this dif­ference would not have been there. The prosecution would have seen that there was no contradiction amongst them or with the prosecution case in the FIR. The fact that it is there, shows that they are genuine and not concocted. 56. In. our opinion, • The I.O. has sent a letter to the District Magistrate to get dying declaration recorded; • The Naib Tehsildar had gone the District Hospital to record the statement of the accused; • The dying declaration is not con­cocted on this ground. 5th POINT: DECEASED WAS IN A PO­SITION TO MAKE STATEMENT 57. The Counsel for the appellants submitted that: • The injury report of Awadhesh showed 80% burn injury and in the post mortem report the ante mor­tem burn injuries were 90%; • At the time of admission, he was not in a position to speak; • Awadhesh was not in a position to make statement; • His palms were burned and he could not sign; and • the dying declaration is not reli­able. 58. Injuries mentioned in the injury report of Awadhesh (Ex Ka-8) are as fol­lows: Flame burn on the area of left leg and chest, face and back. Burn is sub­cutaneous to sub-epidermis layer. Burn is about 80%. 59. The ante mortem injuries of the Awadhesh mentioned in the post mortem report are as follows: Dermaepidermal bum with pus sloughs early and granulation tis­sues found all over body except head hair area and partly the front of abdominal wall. Bum is mostly dermal deep. Total burn area is about 90%. In the opinion of doctor cause of death was due to septicaemic and bum shock due to extensive burn injury. 60. Dr. Mangla Singh (PW-6) had ex­amined the injuries of Awadhesh at the time of admission in the hospital. He de­posed that: • Awadhesh was not in a position to speak; • His palm was burned. 61. The statement of the Awadhesh was not recorded at 6:00 a.m. when he was examined by Dr. Mangala Singh (PW-6). His statement was recorded later and at that time Dr. SP Ram (PW-7) was the doc­tor and had examined him. He had given fitness certificate and thereafter the state­ment of Awadhesh was recorded by the Naib Tehsildar. 62. The certificate states that Awad­hesh was fully conscious and was able to give vocal response. Dr. Mangala Singh (PW-6). His statement was recorded later and at that time Dr. SP Ram (PW-7) was the doc­tor and had examined him. He had given fitness certificate and thereafter the state­ment of Awadhesh was recorded by the Naib Tehsildar. 62. The certificate states that Awad­hesh was fully conscious and was able to give vocal response. Dr. S.P. Ram (PW-7) deposed that vocal response means that he could ask a question and answer a ques­tion. He has denied the suggestion that Awadhesh was not in a position to give his statement or his statement was not re­corded. 63. The doctor (PW-7) is best person to depose about mental condition of the deceased. He has deposed that Awadhesh was in the condition to give his statement. There is nothing in the cross-examination to show that at the time when his statement was recorded Awadhesh was not in a position to make any statement. There is noth­ing to doubt the veracity of PW-7's deposi­tion. 64. It is correct that palms were burned but this does not mean that the Awadhesh could not sign: it depends on the extent that his palm was burned. The signature on the dying declaration shows that it was signed with difficulty. In any case this suggestion should have been given to the doctor or he should have been cross-examined on this point. There is nothing in his cross-examination. The de­fence cannot take any benefit or advantage out of it. 65. In our opinion, Awadhesh was in a position, to make the statement, sign his dying declaration and in fact signed the same. 6th POINT: TIME OF INCIDENT - 2:30 A.M. 66. The defence has produced two witnesses: • Shiv Kumar (DW-1), brother of grand father of the appellants; and • Girija Devi (DW-2), aunt (f3TT) of the appellants. They deposed that the Informant's house caught fire between 9 to 11 p.m. on 27.5.2004 (DW-1 stated about 9:00 to 10:00 p.m. whereas DW-2 stated about 10:00 to 11:00 p.m.). According to them, the incident took place much before 2:30 a.m., the time of the incident according to the prosecution case. However, their evidence is of hearsay nature on this point. They deposed that they had heard about the incident. 67. We have held that there was a clock on the door (see discussion on the second point). The time could be ascer­tained by the eyewitnesses or Awadhesh. 68. However, their evidence is of hearsay nature on this point. They deposed that they had heard about the incident. 67. We have held that there was a clock on the door (see discussion on the second point). The time could be ascer­tained by the eyewitnesses or Awadhesh. 68. The prosecution has examined the Informant (PW-1), Anil Kumar (PW-2) and Asha Devi (PW-12). Anil Kumar (PW-2) received burn injuries in the incident. His presence cannot be denied. Asha Devi is daughter of the Informant. She was living with the Informant at that time. There is no challenge by the defence that she was not in the house at the time of the incident. All three of them deposed that incident took place at about 2:30 a.m. on 28.5.2004. 69. There is also dying declaration of Awadhesh (Ex Ka-11). In the dying decla­ration, the time of the incident is mentioned as, 2:30 a.m. 70. In our opinion, the incident tock place at about 2:30 a.m. on 28.5.2004 and not between 9:30 to 11:00 p.m. on 27.5.2004 as suggested by the defence. 7th & 8th POINT: INCIDENT NOT AN ACCIDENT - NOT GUILTY U/S 436IPC 71. There are three eyewitnesses of the incident. There is also dying declara­tion. There may be some doubt whether all of them could recognise the assailants or not (this will be discussed in the next point) but there is no contradiction in their state­ment or in the dying declaration that it was done by some assailants. 72. The ante-mortem injury of Sangita and Reshmi are as follows: Ante mortem injuries of deceased Sangita Superficial to deep burn (almost hun­dred percent) involving whole body hairs burnt-(singing present), charring present at many places, line of redness present at places. In the opinion of doctor cause of death was due to shock as a result of ante mortem burns. Ante mortem injuries of deceased Reshmi About hundred percent superficial to deep burn on whole body charring present at many places, line of redness present at places singing of hairs present (hairs burnt). In the opinion of doctor cause of death was due to shock as a result of ante mortem burn. 73. The burn injury of Anil Kumar (PW-2) was 60% whereas that of deceased Awadhesh was 80 - 90%. 74. In the oral evidence, it has come that the deceased and injured were sleep­ing over rajai -gadda etc. In the opinion of doctor cause of death was due to shock as a result of ante mortem burn. 73. The burn injury of Anil Kumar (PW-2) was 60% whereas that of deceased Awadhesh was 80 - 90%. 74. In the oral evidence, it has come that the deceased and injured were sleep­ing over rajai -gadda etc. They were also burned. The recovery memo Ex Ka-33 shows that they are not fully burned but are only half burned. In the oral evidence it has also come that takhta was partly burned. 75. The body burns were more than burned quill or takhta, on which victims were sleeping. This indicates that the fire started from the body and went downwards. There is nothing to indicate that it was an accident. 76. The Counsel for the appellants submitted that: • The appellants were charged and convicted under section 436 IPC; • This indicate that the house was also burned; and • The case of accidental fire cannot be ruled out. 77. Merely because the appellants are charged under section 436 IIPC does not mean that the house was set on fire. There is no evidence that the house was burned or there was any intention to destroy the house. 78. The oral evidence is that assailants sprinkled petrol and thereafter lit fire. The house itself was never lit in the fire. There was no intention to destroy any building or the house; no part of the house was de­stroyed. 79. There is also no evidence that any attempt to commit dacoity or theft was made. The motive and purpose was to kill. 80. In our opinion, • The incident was not an accident; • The crime was not to commit da­coity or theft or to burn the house but was to commit the murder; • The appellants are not guilty under section 436 IPC. 9th POINT: GUILTY U/S 302,326 IPC Motive for the Crime 81. Girija Devi (DW-2) is an aunt (faff) of the appellants. She is married to Marhu and has a son. The prosecution case is: • Awadhesh was entangled with Girija. It was objected by the family members; • Some days ago, the appellants had threatened Awadhesh in an alter­cation; • This was motive for the murder. 82. Girija Devi (DW-2) is an aunt (faff) of the appellants. She is married to Marhu and has a son. The prosecution case is: • Awadhesh was entangled with Girija. It was objected by the family members; • Some days ago, the appellants had threatened Awadhesh in an alter­cation; • This was motive for the murder. 82. The Counsel for the Appellants submitted that: • The evidence regarding altercation and threatening Awadhesh was hearsay; • The motive for the crime was not proved; • Even if it be taken to be proved, it was too week to commit such crime. 83. The Informant (PW-1) and Anil Kumar (PW-2) deposed that some time ago there was altercation between the appel­lants and Awadhesh regarding this matter. However, it is admitted that this altercation did not take place before them. In our opinion, there is merit in the objection of the Counsel for the appellants that this part of their oral evidence is hearsay and is not admissible. 84. Girija Devi (DW-2) was examined by the defence. She has denied any love affair with Awadhesh. 85. The love affair between Girija and deceased Awadhesh is deposed by the In­formant (PW-1), Anil Kumar (PW-2) and Asha Devi (PW-12). The houses of accused and the Informant are in different villages but are across the road. The house of the accused is towards western side of the In­formant's house. Anil Kumar (PW-2) de­posed that Girja Devi lives in her parent's house across the road. 86. Anil Kumar (PW-2) is younger than Awadhesh. He was already married and had three children. His elder daughter Sangita was 10 years old at the time of in­cident. 87. Awadhesh was elder and not married. The reason for his not marrying is also deposed by the Informant (PW-1). He deposed that Girija Devi often used to send word to the prospective bride's side about the affair. 88. Anil Kumar (PW-2) has also de­posed that on 27.5.2004 there was gauna of Shashikala daughter of Shiv Pujan but they had not gone there for food as they were not on visiting term. This indicates that there was some tension between two fami­lies. The Informant (PW-1) Anil Kumar (PW-2) and Asha Devi (PW-12) have sug­gested that the reason for tension was the love affair between Awadhesh with Girija Devi. 89. The Informant (PW-1) and Anil Kumar (PW-2) have deposed that they had scolded Awadhesh. This indicates that there was some tension between two fami­lies. The Informant (PW-1) Anil Kumar (PW-2) and Asha Devi (PW-12) have sug­gested that the reason for tension was the love affair between Awadhesh with Girija Devi. 89. The Informant (PW-1) and Anil Kumar (PW-2) have deposed that they had scolded Awadhesh. Asha Devi (PW-12) deposed that she had also tried to explain the matter to Awadhesh but he was not ready to end the affair. There is no other reason for tension between the families ex­cept this one. It is such a matter that every­one knows; talks in private, but no one ever admits or openly talks about. 90. In our opinion, this could be the motive for the crime. Dying Declaration, Oral Evidence of PW-2, PW-12 - Not Reliable for Identification 91. The prosecution case is that: • The appellants sprinkled petrol and thereafter fire was lighted; • Sangita and Reshmi died on the spot and later on Awadhesh died in the hospital; • Anil and Shrikant were also in­jured. Informant (PW-1), Anil Kumar (PW-2), and Asha Devi (PW-12) deposed the same. This in substance is also the dying declara­tion. 92. The Counsel for the appellants submitted that: • Anil Kumar (PW-2), Asha Devi (PW-12), and Awadhesh could neither see the assailants, nor could recognise them; • They named the appellants, on the basis of information received from the Informant; • Their oral evidence or dying decla­ration was not reliable so far as identity of the assailants was con­cerned. 93. Asha Devi (PW-12) and Anil Ku­mar (PW-2) deposed that the Informant (their father) got up at 2:30 a.m. for urina­tion; and then saw the appellants sprin­kling petrol and lighting fire. 94. Asha Devi (PW-12) was sleeping inside packka room. There was wall be­tween the room and the verandah. She could only see the assailants after coming out to verandah. She got up and came to verandah after the noise was raised. She could only see the assailants when they were running away. 95. Anil Kumar further.deposed that he did not know as to how the crime was committed as he was sleeping. He recog­nised the appellants when they were running away. It is relevant to note that ac­cording to his statement before the Naib Tehsildar 5-6 assailants were there whereas the prosecution case is that only two assail­ants were there. 96. 95. Anil Kumar further.deposed that he did not know as to how the crime was committed as he was sleeping. He recog­nised the appellants when they were running away. It is relevant to note that ac­cording to his statement before the Naib Tehsildar 5-6 assailants were there whereas the prosecution case is that only two assail­ants were there. 96. The prosecution case in the FIR is that the Informant's family members saw and recognised the assailants only when they were running away. 97. At the time of running only the back of the assailants could be seen by the persons in the verandah. There is no other source of light except the bulb on the top of the door in the verandah. In such a situa­tion, we are doubtful whether they could recognise the assailants. In our opinion, the oral evidence of Asha Devi (PW-12) and Anil Kumar (PW-2) cannot be relied upon regarding identity of the assailants. 98. Awadhesh, if not worse, then at-least in the similar position as Anil Kumar (PW-2). If PW-2 could not see the assailants properly then same would be the case with Awadhesh. Both of them were lying on the same takhta. Awadhesh received more burn injuries than PW-2. As is the case with PW-2, there is difference in number of assail­ants in his statement that is being treated as the dying declaration and the prosecution case. In case oral evidence of Anil Kumar (PW-2) is not reliable for fixing the identity of the assailants then it is doubtful whether dying declaration can be relied regarding identity of the assailants. 99. The question is, if the dying decla­ration, deposition of Anil Kumar (PW-2) and Asha Devi (PW-12) is ignored so far as identity of the assailants are concerned, then has the prosecution proved its case beyond reasonable doubt against the appel­lants by any other evidence or not. Prosecution Case - Proved 100. The Informant (PW-1) deposed: (i) He was sleeping in front of veran­dah under the Neem tree; (ii) He got up at about 2:30 a.m. for urination; (iii) He saw that: • Randhey was sprinkling petrol on his sons and grand children from jerrican; • Thereafter, Sanjay lighted fire with the matchstick. 101. The Informant (PW-1) was aged about 57 years at the time of the incident. People of this age normally get up in night for urination. 101. The Informant (PW-1) was aged about 57 years at the time of the incident. People of this age normally get up in night for urination. He was in a position to see and recognise the assailants. They were his neighbours, living across the road; they were well known to him. In such a situa­tion, his oral testimony regarding their Identification cannot be questioned.1 102. The Counsel for the appellants submitted that: (i) The use of jerrican is doubtful as it was never found; (ii) It is doubtful whether petrol was used as its traces were not found; (iii) There is contradiction between the statement under section 161 CrPC and the deposition given by the In­formant (PW-1) in the Court; (iv) The Informant has improved his case during trial. His oral evidence is not credible; (v) The appellants' suggestion is that the crime might have been commit­ted by Pradeep and his father Ra-jendra and this creates doubt in the prosecution case. (i) Jerrican not Found - No Effect 103. It is correct that jerrican was not found but does it affect the credibility of oral testimony of the Informant? 104. It was not the prosecution case that jerrican was thrown on the spot or on the way, when the assailants were running away. There was gauna in the house of the accused side. In such a situation, the appel­lants would normally be keeping petrol or any other inflammable at their residence. The assailants were never arrested on the spot. The jerrican could have been kept at any place. The fact that jerrican was not found does not affect the oral testimony of the Informant. 1. See Kedar Singh v. State of Bihar. 1998 SCC (Cri) 907 (para-3); Bhola Singh v. State of Pun­jab: 1994 SCC (Cri) 410 (Para-7) = 1994 (31) ACC 105; State of UP v. Anil Singh: 1989 SCC ' (Cri) 48 (Para-23); Rakesh Kumar v. State of Haryana: 1987 SCC (Cri) 256 (Paras 7 to 10). (ii) Petrol was Used 105. The 10 (PW-11) deposed that smell of petrol was coming from the half burned quill and gadda. However, this fact was not mentioned in the recovery memo (Ex Ka-33). In absence of the same, it is difficult for him to remember it after about five years whether there was any smell of petrol or not. 106. The 10 (PW-11) deposed that smell of petrol was coming from the half burned quill and gadda. However, this fact was not mentioned in the recovery memo (Ex Ka-33). In absence of the same, it is difficult for him to remember it after about five years whether there was any smell of petrol or not. 106. The smell of petrol was neither mentioned in the injury report nor in the post mortem report. The doctor also did not depose that the smell of petrol was coming. However, absence of smell of pet­rol does not mean that the petrol was not used. 107. Burn injuries were severe. Sangita and Reshmi had 100%, burn injuries. Dr. Wasimuddin Ahmad (PW-3) conducted post mortem of Sangita and Reshmi. He deposed that their dead bodies were in 'Pugilistic attitude'. This is also indicated in their post mortem reports. 108. Modi's Medical Jurisprudence and Toxicology (twenty-third edition) under Chapter 20, 'Injuries from Burns, Scalds, Lightning and Electricity' page 635 explains pugilistic attitude as follows: "When a body has been exposed to great heat, it gets cooked and be­comes so rigid with the limbs flexed, arms fixed and fingers hooked like claws that it assumes an attitude of defence, called the 'pugilistic' or 'fencing' posture. This stiffening is due to the coagu­lation of its aluminous constitu­ents, more in the flexor muscles than the extensors.'. 109. This shows that heat was im­mense. This indicates use of some inflam­mable substance. This is also borne out from the burn injuries of others. 110. Awadhesh had 80-90% bum ju­ries. Anil (PW-2) had 60% burn/'injuries. The fact that the burn injuries were severe indicates that some kind of inflammable substance was used. 111. The injuries of Shrikant ate as fol­lows: Flame burn on the left side, face and left leg sub-epidermal to epidermal layer. Burn on the left hand extending over left elbow joint.' In the opinion of doctor burn was about 20%. 112. They are severe but not to such an extent as of the others. There is reason for that. 113. Shrikant was sleeping on the ex­treme eastern side. It is for this reason that his body was not burned to the extent and he was also saved by his mother Smt. Hausala. In that process Smt. Hausala was also injured. 114. Petrol is highly inflammable. There is reason for that. 113. Shrikant was sleeping on the ex­treme eastern side. It is for this reason that his body was not burned to the extent and he was also saved by his mother Smt. Hausala. In that process Smt. Hausala was also injured. 114. Petrol is highly inflammable. It is possible that entire petrol was burned or evaporated by the time the I.O. reached the spot. The oral testimony of the Informant cannot said to be unreliable, merely be­cause no smell of petrol was found by the I.O. or the doctor. 115. We had held that the oral testi­mony of Anil Kumar (PW-2), Asha Devi (PW-12) and dying declaration to be not reliable so far as assailant's identities are concerned but not for anything else. They were present on the spot. They have de­posed or stated about use of petrol. It was easy for them to remember petrol because of its smell. Their evidence and dying dec­laration support the Informant's testimony that petrol was used and we hold accord­ingly. (iii) & (iv) No Improvement Regarding Identity 116. It is correct that there is some im­provement in the deposition of the Infor­mant (PW-1) before the Court. He had not stated some information in the statement under section 161 CrPC. However, this in­formation related to the question whether the other eyewitnesses namely Anil Kumar (PW-2) and Asha Devi (PW-12) could have seen the assailants or not and not whether he could recognise the assailants or not. 117. We have already not placed any reliance on the oral testimony of aforesaid two witnesses regarding identity of the as­sailants. Nothing more requires to be said in that regard. The important point in the oral testimony of the Informant is that there is neither any contradiction nor improve­ment in his testimony so far as identification of the assailants is concerned. The oral testimony of the Informant regarding identity of the assailants can not be ig­nored. (v) Suggestion - Does not Create Doubt in Prosecution Case 118. The Counsel for the appellants submitted: • Sunanda is the daughter of Asha Devi. She was having affair with one Pradeep Kumar. Their letters were caught by deceased Awadhesh who objected and scolded them; • This was not liked by Pradeep Kumar and his father Rajendra Kumar. There was some altercation between them and the deceased; • This was the reason for the crime. 119. She was having affair with one Pradeep Kumar. Their letters were caught by deceased Awadhesh who objected and scolded them; • This was not liked by Pradeep Kumar and his father Rajendra Kumar. There was some altercation between them and the deceased; • This was the reason for the crime. 119. The defence filed certain letters alleged to have been written by Sunanda and Pradeep Kumar to each other. Infor­mant (PW-1) and Asha Devi (PW-12) have deposed that they know the hand writing of Sunanda and denied being written by her. They have also denied about the love affair. These letters are neither addressed to anyone nor signed by anyone. There were no indication that they were written by Su­nanda to Pradeep Kunte'" or vice versa. There is nothing to show that letters filed by defence were written by Sunanda and Pradeep to each other. 120. The Counsel for the appellants submitted: • Sunanda may be summoned; • Her hand writing should be taken; and • It should be compared with writing in the letters that are said to be Written by Sunanda to Pradeep. 121. An application to this effect was also filed before the Court below on 22.8.2009. However, it was rejected on 31.8.2009. : 122. These letters are neither addressed to anyone nor there is anything to indicate by whom they were written. There is no explanation as to how these letters came in the hands of the appellants. Unless some explanation is given how the defence got these letters, there is no justification to call Sunanda as the Court witness. 123. Even if it is taken that these letters were written by Sunanda, then it neither means that the crime was committed by Pradeep and his father Rajendra nor it cre­ates any doubt in the prosecution case. We have already discussed the evidence on record. The Informant has deposed the crime being committed by the appellants. We see no justification to summon Su­nanda. 124. There is no enmity or tension be­tween the family except the affair men­tioned under the heading 'Motive for Crime'. There is no reason for the Infor­mant to falsely implicate the appellants. There is nothing to doubt veracity of the Informant's oral testimony on the point of identification of the assailants. 125. In our opinion, the prosecution has proved beyond reasonable doubts that the appellants are guilty under sections 302 and 326IPC. There is no reason for the Infor­mant to falsely implicate the appellants. There is nothing to doubt veracity of the Informant's oral testimony on the point of identification of the assailants. 125. In our opinion, the prosecution has proved beyond reasonable doubts that the appellants are guilty under sections 302 and 326IPC. 10th POINT: APPROPRIATE PUNISH­MENT - IMPRISONMENT FOR LIFE 126. The appellants burned to death three persons and injured two others while they were sleeping. This is heinous but the motive should also be seen. 127. The motive alleged by the prose­cution is illicit love affair of Awadhesh with one of their family member. Awad­hesh was not blemish less in the episode. He had no business to carry on an affair with a married lady. 128. It has come in evidence that gauna of Poonam sister of appellants was on 25.5.2004 and gauna of Shashikala daughter of Shiv Kumar (DW-1) was on 27.5.2004. Their relations would surely be there. It is possible that in the gathering some com­ments were made, that touched the family honour: it is sensitive issue; it can easily invoke emotion to commit any crime. This might have been the case here. 129. The appellants were young man aged about 20 and 23 years at the time of the incident (calculated from the age given in the statements under section 313 CrPC). They could have lost their cool, committed the blunder, and in that process, took lives of two young ones too, who were unaware about the complexities of the life and the ground realities, 130. Considering the entire circum­stances, it will not be proper to accept the reference and award death penalty. Im­prisonment for life is appropriate punish­ment in this case. CONCLUSIONS 131. Considering the entire circum­stances, it will not be proper to accept the reference and award death penalty. Im­prisonment for life is appropriate punish­ment in this case. CONCLUSIONS 131. Our conclusions are as follows: (i) The FIR was not ante-timed; (ii) The incident happened at 2:30 am and there was a lighted bulb in the verandah that was lighted; (iii) There were only two dying decla­ration, one was recorded by the Naib Tehsildar, the other was re­corded by the I.O. No adverse in­ference can be drawn merely be­cause dying declaration of the I.O. was not proved; (iv) The deceased Awadhesh was in a position to make statement and his dying declaration is not concocted; (v) The incident was not an accident and the motive for the crime was not to burn or destroy any house; Appendix-1 Paper sent with the dead body of Sangita for post mortem after conducting the in­quest report. (vi) The appellants are not guilty under section 436 IPC. However, the prosecution has proved its case be­yond reasonable doubt under sec­tion 302 read with section 326 IPC; (vii) Death penalty is not appropriate punishment in this case. The appel­lants are awarded following sen­tences: • Imprisonment for life under section 302 IPC; • Five years rigorous imprisonment under section 326 IPC. 132. In view of our conclusions, the reference is not accepted. The appeal is partly allowed and the sentence is modi­fied. The appellants are convicted under sections 302 and 326 IPC but are acquitted under section 436 IPC. They are awarded imprisonment for life under section 302 IPC and five years rigorous imprisonment un­der section 326 IPC. The appellants are al­ready in jail. They will serve out the sen­tence. Appeal Partly Allowed. Encl. No. 1 2 3 to 5 7 8 9 Papers Details Chiththi to CMO Chiththi to RI 6 Inquest report (three page) Form 13 chalan Nash Namuna Mohar Photo copy FIR Exhibit No. Ka-24 Ka-25 Ka-21 Ka-22 Ka-23 - - Paper No. 16-Ka/1 16-Ka/2 13-Ka/1 to Ka/3 14-Ka/1 15-Ka/1 18-Kha/2, Kha/3 21-Kha/1 Paper sent alongwith the dead body of Reshmi alias Rani for post mortem after conducting the inquest report Encl. No. 1 2 3 to 5 6 7 8 9 Papers Details Chiththi to El Chiththi to CMO Inquest report (three page) Form 13 Chalan Nash Namuna Mohar Photo copy FIR Exhibit No. Ka-29 Ka-30 Ka-26 Ka-27 Ka-28 - - Paper No. 16-Ka/3 16-Ka/4 13-Ka/4 14-Ka/2 15-Ka/2 18-Kha/1 to5 21-Kha/2