JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 8.7.2005 passed by learned Special Judge (Atocities) and Additional Sessions Judge, Morena, in Speccial Case No. 159/2003 convicting appellant under sections 449 and 302 of IPC and thereby sentencing him to suffer imprisonment as mentioned in the impugned judgment, the appellant has knocked the doors of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that on 10.3.2003 at 7:35 p.m., a Dehati Nalishi was lodged by Poona Bai that she alongwith her grand daughter Badami (hereinafter referred to as the deceased) was in the home. At about 4 p.m. appellant entered in their house by carrying a Katti (container) baving kerosene in it and poured kerosene on the deceased and thereafter set her on fire in order to kill her. On seeing the incident, this witness screamed, as a result of which, appellant fled from the place of occurrence. On hearing her shriek, neighbours and other family members assembled in her house. Further, it has been stated in the said Dehati Nalishi that 12 days earlier to the incident, Raju, who is the son of appellant, committed rape over the deceased and the matter was reported by her son Ramvaran in Police Station Dini. Basing this enmity, the appellant has subjected the deceased to fire. 3. On lodging of Dehati Nalishi, the criminal law was set in motion. A case under sections 307, 450 of IPC as well as under section 3(2)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short the Act) was registered against the appellant and Dehati Nalishi was sent for formal registration of the FIR in the police station. The deceased, who was alive at that time, was sent for treatment in District Hospital at Morena where her dying declaration was recorded by Executive Magistrate/Naib Tahsildar Anil Singh Raghav. However, at 8:30 p.m. the deceased succumbed to burn injuries in District Hospital at Morena. On the death of the deceased, the case was altered to section 302 of IPC. The dead body of the deceased was sent for post-mortem. 4. However, at 8:30 p.m. the deceased succumbed to burn injuries in District Hospital at Morena. On the death of the deceased, the case was altered to section 302 of IPC. The dead body of the deceased was sent for post-mortem. 4. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by learned Special Judge for the trial. 5. The learned Special Judge on the basis of allegations made in the charge-sheet, framed charges punishable under sections 449 and 302 of IPC as well as under section 3(2)(x) of the Act. Needless to say, the appellant abjured his guilt and pleaded complete innocence. 6. In order to bring home the charges, prosecution examined as many as 18 witnesses and placed EX.P-1 to Ex.P-24, the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement recorded under section 313 of CrPC and in support of his defence, he also examined two witnesses, they are Harswaroop Joshi (DW1) and Dr. S.B. Agrawal (DW2). 7. The learned Special Judge on the basis of evidence placed on record, came to hold that charge under section 3(2)(x) of the Act is not proved against the appellant, eventually acquitted him from the said charge. However, learned Special Judge came to hold that charge under sections 449 and 302 of IPC have been proved against the appellant, as a result of which, he has been convicted under sections 449 and 302 of IPC and has been sentenced as mentioned in the impugned judgment. 8. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 9. The contention of Shri R.K. Sharma, learned counsel for the appellant, is that the entire case of prosecution is concocted. The contention of learned counsel is that eye-witness to the incident Poona Bai (PW 10), who is the grand-mother of the deceased, has been disbelieved by trial Court in para 41 of its judgment. Even otherwise, learned counsel submits that if the testimony of this witness is considered in proper perspective, it would be as clear like a noon day that appellant has not committed any offence and he has been falsely implicated. Even otherwise, learned counsel submits that if the testimony of this witness is considered in proper perspective, it would be as clear like a noon day that appellant has not committed any offence and he has been falsely implicated. By putting a deep dent on the dying declaration (Ex.P-13) ,recorded by Anil Singh Raghav (PW8), it has been argued that this witness himself has stated that the deceased was not in a position to speak properly, and therefore, it would be hazardous to place reliance on the dying declaration (Ex.P-13). By inviting our attention to the document of dying declaration, it has been submitted by learned counsel that the parentage, address, etc. of the appellant has not at all been mentioned in the dying declaration, and therefore, it is difficult to infer that appellant is the same Ramveer who committed the offence because eye-witness Poona Bai (PW10), who is also the author of Dehati Nalishi (Ex.P-7), herself had admitted that there are several persons having name Ramveer who set up the fire 011 the deceased. In support of ,his contention, learned counsel has placed heavy reliance on a decision of Supreme Court Gopal Singh and another v. State of M.P and another [ AIR 1972 SC 1557 ]. Learned counsel has also placed reliance on a Division Bench decision of this Court Bhagatram Patidar and others v. State of M.P [ 1990 JLJ 329 = 1990 MPLJ 770 ]. 10. It has also been pointed out by learned counsel that in dying declaration nowhere it has been mentioned that after recording the same it was read over and explained to the deceased and after hearing the contents thereof she admitted the contents to be true. In support of his contention, learned counsel has placed heavy reliance on the decision of Supreme Court Jai Karan v. State of NCT Delhi [ AIR 1999 SC 3512 ]. 11. By putting a deep dent on oral dying declaration given by the deceased to Mungobai (PW12) and Kamlabai (PW15), it has. been submitted that oral dying declaration waS given in presence of the author of Dehati Nalishi Poona Bai, but the factum ,of giving oral dying declaration has not been mentioned in the Dehatri Nalishi, and therefore, it creates a heavy doubt about the hallmark an~ authenticity of oral dying declaration. been submitted that oral dying declaration waS given in presence of the author of Dehati Nalishi Poona Bai, but the factum ,of giving oral dying declaration has not been mentioned in the Dehatri Nalishi, and therefore, it creates a heavy doubt about the hallmark an~ authenticity of oral dying declaration. Learned counsel further submits that oral dying declaration is concocted and afterthought for the simple reason that Investigating Officer ASI Janved Singh (PW6) in his statement has categorically stated that till Dehati Nalishi was lodged, he did not know how the incident had taken place, while Poona Bai (PW10), the author of Dehati Nalishi (Ex.P-7), has categorically stated that she narrated the entire episode to the said Investigating Officer when he arrived at her home, and therefore, the story set up by the prosecution of oral dying declaration is having no base. 12. By inviting our attention to the testimony of author of Dehati Nalishi Poona Bai (PW10), it has been submitted that if her testimony is considered in proper perspective, it can be gathered that earlier to the Dehati Nalishi, one more report was lodged at the place of occurrence by this witness, but the same has been suppressed by the prosecution for the best reasons known to it, and therefore, adverse inference should be drawn against the prosecution. In support of his contention, learned counsel has placed heavy reliance on, the decision of Supreme Court Sevi and another v. State of Tamil Nadu and another [ AIR 1981 SC 1230 ] On these premised submissions, it has been submitted by learned counsel that learned trial Court erred in convicting the appellant, and therefore, by allowing this appeal, the impugned judgment of conviction and order of sentence t e set aside an~ the appellant be acquitted from all the charges. 13. On the other hand, Shri Khedkar, learned Public Prosecutor, argued in support of the impugned judgment. 14. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 15. In the present case, Poona Bai (PW19) has been cited by the prosecution as sole eye-witness to the incident. Indeed, this witness is also the author of Dehati Nalishi (Ex.P-7). 14. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 15. In the present case, Poona Bai (PW19) has been cited by the prosecution as sole eye-witness to the incident. Indeed, this witness is also the author of Dehati Nalishi (Ex.P-7). True, learned trial Court has disbelieved the evidence of this witness in para 41 of its judgment, but in order to take out the grain from the chaff, we would like to x-ray the testimony of this witness and further if we keep the testimony of this witness in juxtaposition to the evidence of Investigating Officer Janved Singh (PW6), Mungobai (PW12) and Kamlabai (PW15), we find that the reality has been concealed. True, in examination-in-chief para 2 this witness has categorically stated that appellant by carrying a container full of kerosene entered in her house and poured it on the deceased and thereafter lit the matchstick, as a result of which, the deceased was burnt, but this would not end the matter because in cross-examination para 12; this witness has admitted that the police party arrived in the village and after inquiry, her thumb impression was obtained and thereafter the deceased, who was alive at that juncture, was carried in a jeepapd this witness as well as her daughter-in-law (Mango Bai) accompanied with the police. We would like to quote that part which reads thus: ^^xkao esa iqfyl us eq>ls iwNrkN dh Fkh ,oa esjk vaxwBk djok;k FkkA fQj blds ckn eq>s esjh yM+dh vkSj cgq dks thi esa fcBkdj iqfyl eqjSuk xbZA eqjSuk vkus ds nks ?kaVs ckn yM+dh ej xbZ FkhA lk{kh us Lor% dgk fd c;ku ns xbZA eqjSuk vLirky esa nks ?kaVs ds vanj gekjs ?kj ds vkneh vk x, ,oa eqjSuk esa [kcj yx xbZ rks lekt ds vkneh Hkh vk x, FksA** Thereafter again in para 13 a question was put to this witness that her family members as well as the persons who assembled persuaded her to lodge a separate report in the hospital. In reply to this question, affirmative answer was given by this witness and we would like to reproduce the question and answer which reads thus: ^^iz’u % eqjSuk vLirky esa rqEgkjs ?kjokyksa us ,oa bdV~Bk gq, vknfe;ksa us ncko Mkydj rqels nwljs fjiksVZ fy[kokbZ\ 16. In reply to this question, affirmative answer was given by this witness and we would like to reproduce the question and answer which reads thus: ^^iz’u % eqjSuk vLirky esa rqEgkjs ?kjokyksa us ,oa bdV~Bk gq, vknfe;ksa us ncko Mkydj rqels nwljs fjiksVZ fy[kokbZ\ 16. Undisputedly, Dehati Nalishi (Ex.P-7) has been lodged in District Hospital at Morena; and therefore, we have. no scintilla of doubt in order to hold that Dehati Nalishi (Ex.P-7), which was lodged by this witness, is not the outcome of reality, and therefore, the foundation of the case of prosecution is very weak and is based on the report which in the realm is not the outcome of true version. If we read paras 12 and 13 of the testimony of this witness conjointly, we find that one more report was lodged in the village to the police and this witness also put her thumb impression on it, but that report has been suppressed by the prosecution. The decision of Supreme Court Sevi and another (supra), placed reliance by learned counsel for the appellant governs the field. 17. At this juncture, we would like to scan the testimony of Investigating Officer Janved Singh (PW6) who has categorically admitted in para 6 of his testimony that when he arrived in the village, it was a mystery that how the deceased had died, not only this, in para 1 of his examination-in-chief, this witness has stated that he was accompanied by Poona Bai to District Hospital at Morena. In para 6 of his cross- examination, this witness has admitted that on the way to District Hospital also, nobody told him that how the deceased was subjected to fire, but as per the evidence of Poona Bai the entire episode was told to the Investigating Officer. In these state of affairs, according to us, the case of prosecution becomes highly doubtful. 18. So far as the testimony of Mungobai (PW12) and Kamlabai (PW15) is concerned, we would like to mention here that these witnesses are mother: and aunt respectively, of the deceased. It has come in the testimony of Kamlabai (PWl5) that when the deceased gave oral dying declaration to this witness, at the juncture; Poona Bai (PW 10) was also present, but this fact has not at all been mentioned in Dehati Nalishi (Ex.P-7). It has come in the testimony of Kamlabai (PWl5) that when the deceased gave oral dying declaration to this witness, at the juncture; Poona Bai (PW 10) was also present, but this fact has not at all been mentioned in Dehati Nalishi (Ex.P-7). Hence, according to us, the oral dying declaration of the deceased given to these witnesses becomes highly doubtful. At this juncture, we would again like to scan the testimony of Investigating Officer Janved Singh (PW6) wherein he has categorically stated in para 6 that till the deceased was brought to District Hospital, Morena, it was a mystery that how the incident had taken place. If oral dying declaration was already given by the deceased to these two witnesses, certainly this fact would have been stated to the Investigating Officer. However, according to the Investigating Officer, in the village he was not told and informed that how the deceased was subjected to fire and not only this, till the deceased was brought to District Hospital at Morena and Dehati Nalishi wlas lodged, it was not disclosed by anybody that how the incident had taken place and for this another reason also the oral dying declaration cannot be said to be worth reliable and it creates a heavy doubt about the authenticity of the same. 19. So far as the dying declaration (Ex.P-13) given by the deceased in the Hospital to Executive Magistrate/Naib Tahsildar Anil Singh Raghav (PW8) is concerned, we would like to mention here that Mungobai (PW12) has categorically admitted in cross-examination para 3 that when the dying declaration of the deceased was recorded in the Hospital, her mother-in-law viz. Poona Bai and she herself was present and she also told the officer that how the incident had taken place. She has further admitted that to the officer it was also told by this witness on behalf of the deceased that how the incident had taken place. The factum of presence of this witness has also been affirmed by Anil Singh Raghav (PW8) although he has denied the suggestion that the family members of the deceased told how the incident had occurred. True the conviction can be accorded solely on the basis of dying declaration, but it is equally true that it should be clear, cogent and trustworthy. True the conviction can be accorded solely on the basis of dying declaration, but it is equally true that it should be clear, cogent and trustworthy. On x-raying the testimony of Anil Singh Raghav (PW8), we find that nowhere this witness has stated that on seeing the physical condition of the deceased he was satisfied that she was mentally and physically fit to depose the dying declaration, on the contrary, we can infer that he was depending upon the report of the doctor. According to this witness, doctor told that firstly dying declaration should be recorded, thereafter he will certify the physical condition of the deceased: as a result of which, he recorded the dying declaration. On going through paras 4 and 5 of the testimony of this witness, we find that the vocabulary 'of the deceased was not clear and whatever she was saying, this witness was unable to understand and we would like to quote that portion of para 5 of his cross-examination in which he has admitted this fact which reads thus: ^^tyh gqbZ efgyk dh cksy&pky dh Hkk”kk le> esa vkus ;ksX; ugha gSA** Therefore, in these state of affairs, it will be highly unsafe to place reliance on the dying declaration (Ex.P-13) recorded by this witness. 20. Another reason to disbelieve the dying declaration recorded by this witness is that on being asked by this witness to the deceased that how the incident had occurred, she told that oil (kerosene) was poured. But again this witness is saying that he cannot say what is the meaning of pouring kerosene and whether it amounts to pouring by the deceased herself or by other person. Dr. A.K. Gupta (PW13), who was present at the time of recording dying declaration; in cross-examination has also admitted that the pronunciation of the deceased was not clear. The dying declaration was recorded by Naib Tahsildar and he is the only person who can say that what was being actually spoken by the deceased. According to the Executive Magistrate Anil Singh Raghav (PW8), the pronunciation of the deceased was not clear and he was unable to understand the vocabulary of the deceased. This is the another reason to disbelieve the dying declaration (Ex.P-13) recorded by Executive Magistrate/Naib Tahsildar Anil Singh Raghav (PW8). 21. According to the Executive Magistrate Anil Singh Raghav (PW8), the pronunciation of the deceased was not clear and he was unable to understand the vocabulary of the deceased. This is the another reason to disbelieve the dying declaration (Ex.P-13) recorded by Executive Magistrate/Naib Tahsildar Anil Singh Raghav (PW8). 21. One important fact which cannot be marginalized and blinked away is that after reducing the dying declaration in writing it has not been mentioned that dying declaration was read over and explained to the deceased and after hearing the contents thereof, she admitted the dying declaration to be true. According to us, it was mandatory on the part of the officer who was recording the dying declaration. The decision of Supreme Court Jai Karan (supra), is quite relevant on this point. Yet there is another decision of Supreme Court Shaikh Bakshu and others v. State of Maharashtra [ (2007)11 SCC 269 ], in which in para 13 it has been categorically held by the apex Court that if such a note is not put in the dying declaration, the dying declaration cannot be accepted. Hence, for this additional reason also the dying declaration (Ex.P-13) cannot be said to be reliable. 22. We may further add that Dr. A.K. Gupta (PW13) has himself admitted that the deceased was not in a position to speak in clear language and this fact has also been mentioned in the document of dying declaration (Ex.P-13). ASI Janved Singh (PW6) has also admitted that condition of the deceased was very much serious and she was unable to speak. Admittedly, the deceased was admitted in the Hospital at 7:25 p.m. and she succumbed to burn injuries at 8:30 p.m. which would mean that she survived only for 65 minutes. In these state of affairs and the manner and fashion in which the dying declaration was recorded, it will be highly unsafe to place reliance on it. 23. For the reasons stated hereinabove, we are unable to uphold the impugned judgment of conviction and order of sentence passed by learned trial Court. Ex. consequenti, this appeal succeeds and is hereby allowed and the impugned judgment of conviction and order of sentence passed by learned trial Court is hereby set aside. The appellant is acquitted from all the charges. The appellant is in jail, he be released forthwith if not 'required in any other case. Ex. consequenti, this appeal succeeds and is hereby allowed and the impugned judgment of conviction and order of sentence passed by learned trial Court is hereby set aside. The appellant is acquitted from all the charges. The appellant is in jail, he be released forthwith if not 'required in any other case. The amount of fine, if deposited be refunded to him.