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2012 DIGILAW 11 (SIK)

ASHOK POKHREL v. STATE OF SIKKIM

2012-06-28

PERMOD KOHLI, S.P.WANGDI

body2012
Judgement S P Wangdi, J [1] This Appeal is directed against the judgment dated 10-09-2010 passed by the Learned Sessions Judge, South and West Sikkim at Namchi in S. T. Case No. 12 of 2006 by which the Appellant, Ashok Pokhrel, was convicted and sentenced under Section 302 of the Indian Penal Code (in short ?IPC?) for having committed the murder of his wife, Sushila Sharma, on 07-03-2006. [2] (a). Shorn of all details, the case of the prosecution is that, on 09-03-2006 a FIR was lodged at Gangtok Sadar Police Station by one Jai Narayan Bhattarai, P. W. 1, resident of Lower Samdong, East Sikkim, stating that his daughter Sushila married to one Ashok Pokhrel of Hee Bermiok, West Sikkim, who is the Appellant herein, was set on fire after being poured with kerosene oil over her body by her husband in the bamboo grove nearby her home causing serious burn injuries to her and was admitted at the CRH, Tadong, East Sikkim. Sadar P. S. Case No. 33 of 2006 dated 09-03-2006 under Sections 307/498A IPC was registered against the Appellant and transferred to the Kaluk Police Station, West Sikkim where Kaluk P. S. Case No. 4 of 2006 dated 09-03-2006 under Sections 307/498A IPC was registered against the Appellant and the case taken up for investigation. (b) Investigation revealed that the victim Sushila Sharma and the Appellant Ashok Pokhrel were married for 2 years, both unemployed, had a son aged about 6 months old and lived at Central Martam, West Sikkim. The relation between them became strained when the victim learnt of the Appellant having illicit relationship with a girl from the locality resulting in frequent quarrels between them. On 07-03-2006, the Appellant returned home at about 1000 hrs. after collecting fodder for the cattle and had his lunch and after some rest went towards the field at about 1300 hrs. to tend to his cattle asking his wife, the victim, to follow him for collecting firewood. After finishing her household chores, the victim left for their dry field below a bamboo grove situated at a distance of about 600-700 feet from their house at about 1430 hrs. carrying a =doko' (a bamboo basket) where she collected firewood. When she was returning home carrying the firewood loaded in the =doko', she met the Appellant on the way who asked her to rest for a while. carrying a =doko' (a bamboo basket) where she collected firewood. When she was returning home carrying the firewood loaded in the =doko', she met the Appellant on the way who asked her to rest for a while. He then asked her to accompany him to the bamboo grove where he over-powered her and after pouring kerosene oil over her body set her on fire which also caught on the dried leaves that caused the fire to spread in the jungle. The Appellant then went to his house to give an impression that he was at home during the time of the incident. After about 10- 15 minutes, one 11 years old boy, Rajen Chettri, P. W. 24, informed the Appellant's mother, Durga Devi Sharma, P. W. 12, about the fire presence of the Appellant. The Appellant feigning ignorance of the incident proceeded for the spot and on the way met Amrit Kumar Chettri, P. W. 4, who followed the Appellant. When they reached the spot they found the severely burnt victim standing with the help of a bamboo. Leaving the Appellant at a distance of about 12 feet away from the victim P. W. 4, Amrit Kumar Chettri, left the place to call others for help. The villagers who later arrived at the place arranged for a vehicle and evacuated the victim to hospital and was given first aid at Jorethang PHC at about 2030 hrs. From there she was referred to Namchi Hospital but her relatives chose to take her to CRH, Tadong, where she was immediately admitted. The Appellant did not bother to accompany the victim and remained at home. (c) Investigation further revealed that on 03-03- 2006 the Appellant had purchased a bottle of kerosene oil from the shop of one Nanda Ram Chettri, P. W. 5, at Martam, which was the first time that the Appellant had made such a purchase. As requisitioned by the Investigating Agency, the SDM, Gangtok, Kincho Doma Lepcha, P. W. 14, recorded the statement of the victim under Section 32 of the Indian Evidence Act, 1872, (in short ?the Evidence Act?) in which she stated that her husband, the Appellant, had tried to kill her by pouring kerosene oil over her due to the frequent quarrel between them and that he was planning to have a second wife. Later the victim succumbed to her injuries leading to the case being converted to one under Sections 302/498A IPC. (d) Having found sufficient material against the Appellant for committing an offence under Sections 302/498A IPC charge-sheet was accordingly filed against him. [3] (a). The Learned Trial Court also framed charges against the Appellant under Sections 302/498A IPC having found that a prima facie case had been made out against him for having committed the offences to which the Appellant pleaded not guilty and claimed trial. (b) After the trial in which 28 witnesses out of 31 were examined by the prosecution, three having been tendered by the prosecution for cross-examination, the Learned Trial Court found the Appellant guilty of the offence under Section 302 IPC and convicted him by the impugned judgment and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 10,000/-. The charge under Section 498A IPC was dropped on the basis of the concession made by the Learned Public Prosecutor of there not being sufficient material on that account. [4] It is relevant to note that on 13-03-2012 during the course of hearing it was brought to the notice of this Court by Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, that the report of the C. F. S. L. though received by the Investigating or Prosecuting Agency in the month of August, 2010, could not be produced before the Learned Trial Court for some reason and in the meantime the judgment came to be delivered by the Learned Trial Court. The Learned Additional Public Prosecutor submitted that since those reports were relevant for the purpose of the case it was essential for those to be brought on record and accordingly sought for leave of this Court to do so. In view of this, the Learned Additional Public Prosecutor was permitted to make a proper application which we later allowed directing the Learned Trial Court to take necessary steps in that regard and submit a report. Upon receipt of the report the matter was taken up for further hearing on 19-06-2012. [5] (a). Appearing on behalf of the Appellant as Legal Aid Counsel, Mr. Upon receipt of the report the matter was taken up for further hearing on 19-06-2012. [5] (a). Appearing on behalf of the Appellant as Legal Aid Counsel, Mr. A. K. Upadhayaya, Learned Senior Advocate, submitted that there was a delay in filing the FIR in as much as although the incident took place on 07- 03-2006 it was lodged only in the morning of 09-03-2006 at 11.45 a. m. at Sadar P. S. Gangtok. This delay is significant and quite fatal in view of the fact that it is in the evidence of P. W. 1, Jai Narayan Bhattarai, that he was first informed of the incident by his youngest brother, Khemlall Bhattarai, P. W. 9, by telephone at about 1 a. m. on 08-03-2006 but, the FIR was lodged only on 09-03- 2006 implicating the Appellant admittedly after discussions amongst the family members at the Manipal Hospital. The mala fide in lodging the FIR accusing the Appellant could be inferred from the fact that none out of the 5 persons, namely, P. W. 2, Harilall Sharma, P. W. 3, Mitralall Sharma, P. W. 4, Amrit Kumar Chettri, P. W. 6, Data Ram Sharma and, P. W. 10, Kharananda Sharma, who had met the victim first and had rescued her from the place of occurrence, had been told by her that the Appellant had set her on fire. As per Mr. Upadhayaya, P. W. 21, Smt. Indra Sharma, had in fact deposed that the deceased on her way to Jorethang PHC had informed them that she had sustained the burn injuries on her own. Similarly P. W. 18, Dr. Leona Sonam Lepcha, who first attended her at the Jorethang PHC was told by the victim that she got burnt by a forest fire. It was submitted that the statement of the deceased made to P. W. 18 ought to have been treated as the first dying declaration and that even if it was not to be treated so, the statement, having been made to P. W. 18 shortly after the incident, would fall within the ambit of the principle of res gestae under Section 6 of the Evidence Act. Mr. Upadhyaya cited the decisions of Chhotka vs. The State, 1958 AIR(Cal) 482 (paragraph 23) and Sukhar vs. State of U. P., 1999 9 SCC 507 in support of this contention. (b) It was the submission of Mr. Mr. Upadhyaya cited the decisions of Chhotka vs. The State, 1958 AIR(Cal) 482 (paragraph 23) and Sukhar vs. State of U. P., 1999 9 SCC 507 in support of this contention. (b) It was the submission of Mr. Upadhyaya that the dying declaration, Exhibit 6, recorded on 09-03-2006 at 9.55 a. m. at the Manipal Hospital after meeting her parents and other relatives who were inimical to the Appellant, could be reasonably inferred as being rendered on being tutored and, therefore, quite unreliable. It was then submitted that there was no reason for the Appellant to have committed the offence as alleged, there being ample evidence on record to show that far from there being a history of discord between them the Appellant and the victim used to have a harmonious relationship and very much in love with each other. Evidence rather showed that the parents of the victim had no liking for the Appellant and had been against his marriage with the victim. It is further submitted that the dying declaration, Exhibit 6, was unreliable also for the reason that there was no medical certificate certifying the state of the mind of the deceased at the time of its recording when it was established that the victim had suffered 90% to 95% burn injuries as evident from the Wound Certificate, Exhibit 19. Reference was made to the decision of Paparambaka Rosamma and Others vs. State of A. P., 1999 7 SCC 695 in this regard. (c) As all the prosecution witnesses, namely, P. W. 1, Jai Narayan Bhattarai, father of the victim, P. W. 7, Chandra Prakash Sharma, P. W. 8, Narbada Bhattarai and, P. W. 9, Khemlall Bhattarai, who had given incriminating evidence against the Appellant were closely related to the victim, their evidence required close scrutiny and great caution and care ought to have been exercised before accepting them. Mr. Upadhayaya went on to submit that the prosecution had failed to prove any motive against the Appellant for him to have killed the victim. The allegation that the Appellant wanted to have a second wife has not been established by any reliable evidence. Mr. Upadhayaya went on to submit that the prosecution had failed to prove any motive against the Appellant for him to have killed the victim. The allegation that the Appellant wanted to have a second wife has not been established by any reliable evidence. On the contrary, it is in the evidence of the defence witnesses, namely, D. W. 1, Sabitri Sharma and D. W. 2, Hemlata Sharma, both being co-villagers and familiar with both victim and the Appellant, that the Appellant had no relationship with any other woman and used to love his wife. These witnesses who are independent persons have also stated categorically that at the time of the occurrence the Appellant was at home and that both of them had accompanied him to the place of occurrence. Although, they had been put to rigorous cross-examination by the prosecution they remained firm and their statements stood undemolished. It was then submitted that from the facts and circumstances emerging from the evidence, the circumstances against the Appellant have not been proved beyond any reasonable doubt and that even otherwise two conclusions are possible to be drawn from those circumstances thereby entitling the Appellant the benefit of doubt. Reference on this was placed in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, 1984 4 SCC 116 . [6] (a). Mr. Karma Thinlay Namgyal, the Learned Additional Public Prosecutor, on the other hand submitted that there was no error in the Learned Trial Court convicting the Appellant. As per him, the point raised on behalf of the Appellant as regards the delay in filing the FIR cannot be sustained as P. W. 1, Jai Narayan Bhattarai, has explained as to why the FIR was lodged on 09-03- 2006 when the incident had taken place on 07-03-2006. Relying upon the case of Amar Singh vs. Balwinder Singh and Others, 2003 2 SCC 518 it was submitted that there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. Whether such a delay would be fatal for the prosecution case would be dependent upon facts and circumstances of each case. As per the Learned Additional Public Prosecutor when the informant, P. W. 1, was first informed of the incident at 1 a. m. of 08-03-2006 by his brother he did not take the matter seriously. Whether such a delay would be fatal for the prosecution case would be dependent upon facts and circumstances of each case. As per the Learned Additional Public Prosecutor when the informant, P. W. 1, was first informed of the incident at 1 a. m. of 08-03-2006 by his brother he did not take the matter seriously. But later when he was informed by his wife P. W. 8, Narbada Bhattarai, that the condition of his daughter was serious he went to visit her in the same evening and reached CRH, Tadong, East Sikkim at 7 p. m. and, lodged the FIR on seeing the condition of her daughter at 11.45 a. m. of 09- 03-2006. As per him, there was no delay at all in lodging the FIR and, even if there had been a delay, it has been sufficiently explained. (b) It was then contended that the case being made out on behalf of the Appellant that the deceased had got burnt in a forest fire has been belied from the evidence of various witnesses appearing on the record. Specific reference were made by him to the following:- Harilall Sharma, P. W. 2 "Out (sic) attention was first drawn towards the crying man who was found to be the accused. At a distance of about 12 feet away from him we saw the victim laid on a blanket with serious burn injury on her person. Besides the victim the driver Maila and Amrit Kumar Chettri were also found present. The victim was found to be the wife of the accused. The victim Sushila was asking for water. We also noticed that the accused was wielding on his waist and i sugested (sic) Amrit Kumar Chettri to take away his Khukuri as he could do any untoward incident in that situation. There was no clothes found on the body of the deceased Sushila. All clothes were found burn (sic). The place of occurrence on reaching the spot was found to be between the cardamom field and the bamboo grove. We found the victim as well as the accused in the cardamom field when we reached there. The accused was lying prosted (sic) on the ground and was also crying and the victim was smelling of Kerosene Oil. The place of occurrence on reaching the spot was found to be between the cardamom field and the bamboo grove. We found the victim as well as the accused in the cardamom field when we reached there. The accused was lying prosted (sic) on the ground and was also crying and the victim was smelling of Kerosene Oil. We all decided to carrying the victim in the same blanket to the house of the accused" X. X. X. By the accused through ld. counsel Shri T. B. Chettri "The blanket was also having the smell of kerosene" Mitralall Sharma, P. W. 3 "I also saw the victim Sushila Sharma about ten feet away where the accused was lying on the ground. She was found completely burnt and holding a bamboo. Her clothes were completely burnt and her outer portion of herbody (sic) was completely burnt. I also saw fire burning about 200 feet away from the place where the victim Sushila Sharma was standing. The place where the fire was burning was also bamboo grove belonging to the accused person" Data Ram Sharma, P. W. 6 "I suggested my son Mitra Lall to rush to the place of occurrence anticipating that somebody must have been in trouble" The said Amrit Kumar Chettri rushed to the place of occurrence carrying the blanket with him" Thereafter I, Shri H. L. Sharma(PW-2) and oneKharananda (sic) left for the place of occurrence. It was about 5.00 p. m. On reaching the place of occurrence. I was the first person to reach the place of occurrence among three of us. I saw the victim lying on the blanket. The accused was weeping with his face towards the ground about ten feet away from his wife. A little above there was a fire burning which was a bamboo groove (c) It was submitted that the evidence extracted above established that the fire had taken place in a bamboo grove but the victim and the Appellant were found some distance away in a cardamom field and the victim had been moved and made to sit in a blanket. It also stood established that the Appellant was already present at the place of occurrence before anyone else. It also stood established that the Appellant was already present at the place of occurrence before anyone else. Referring to the evidence of P. W. 6, Data Ram Sharma, it was stated that it was he who reached the spot first amongst those who had gone there, i. e. , himself, P. W. 2, Harilall Sharma, P. W. 10, Kharananda Sharma but not with either P. W. 3, Mitralall Sharma or P. W. 4, Amrit Kumar Chettri. As per him, even otherwise, there had been no report of forest fire in that area and none of the witnesses have stated that there had been such a fire. He further contended that emphasis laid on the evidence of P. W. 4, Amrit Kumar Chettri, on behalf of the Appellant was mis-placed as he was an unreliable witness having been declared hostile by the prosecution. The statement of this witness that ?it is true that I and the accused went together towards the place of occurrence. At that time we saw fire was burning. It is true that when accused called his wife =Kanchi, Kanchi' she replied that she was there? cannot be believed as the fire was already raging at that time and it was not possible for the victim who was engulfed in flame to have given such a reply. P. W. 4 admittedly did not go to the place of occurrence but rather saw the victim burning. For all these reasons, it was the submission of the Learned Additional Public Prosecutor that the plea being raised on behalf of the Appellant that the victim got burnt in a forest fire cannot be sustained. (d) It was then submitted that it is in the evidence of P. W. 2, Harilall Chettri, that the victim and the blanket upon which she was sitting were smelling of kerosene oil and in the evidence of P. W. 10, Kharananda Sharma, that he had seen the accused crying and that there was a faint smell of kerosene oil. (d) It was then submitted that it is in the evidence of P. W. 2, Harilall Chettri, that the victim and the blanket upon which she was sitting were smelling of kerosene oil and in the evidence of P. W. 10, Kharananda Sharma, that he had seen the accused crying and that there was a faint smell of kerosene oil. That these witnesses have been corroborated by P. W. 31, the Assistant Director, Explosives, CFSL, DFS, MHA, Government of India, Kolkata, who deposed that some higher boiling fractions of petroleum hydrocarbon residues resembling as that of kerosene oil were detected in the content of each of the Exhibits in the Chemistry Division of CFSL, Kolkata, and that such residue was also found in the blanket, burnt pieces of bra, MO-IV and burnt pieces of necklace (pothay), MO-V. That it is necessary to consider the evidence of these witnesses with that of P. W. 5, Nanda Ram Chettri, the Grocery Shop Owner, revealing the uncontroverted fact of the Appellant having purchased a bottle of kerosene oil in the evening of 03-03-2006. As per the Learned Additional Public Prosecutor this circumstance, the fact of the severely burnt victim found at the place of occurrence, the presence of the Appellant with her and the attendant circumstance of the victim, her wearing apparels and blanket smelling of kerosene oil form an unbroken chain leading to the only conclusion of the Appellant having sprinkled kerosene oil on the victim and setting her on fire. (e) Replying to the assertion made on behalf of the Appellant of the dying declaration, Exhibit 6, as being a result of tutoring, the Learned Additional Public Prosecutor submitted that such a plea was totally unsustainable as the dying declaration had been proved by the prosecution as being reliable from the evidence of the various witnesses including that of P. W. 14, the SDM and the doctor, P. W. 25. Emphasis was laid by him to the following portions of the various witnesses:- Kincho Doma Lepcha, P. W. 14 "Before I recorded the statement of victim Sushila Sharma I consulted the attending physician Dr. Bhim Pd. Dahal, Associate Professor as towhether (sic) the victim was in a state of fit state of mind to make a statement. The doctor Bhim Pd. Bhim Pd. Dahal, Associate Professor as towhether (sic) the victim was in a state of fit state of mind to make a statement. The doctor Bhim Pd. Dahal informed me as the victim was in a fit state of mine (sic) to give her statement As to the cause of the injury the victim stated that her husband i. e. the accused sprinkled kerosine (sic) oil on her body and set her on fire. She also disclosed the name of her husband was Ashok Sharma of Martam, West Sikkim. Exbt-6 is the dying declaration recorded by me in my hand writing at Central Referral Hospital, Tadong on 9.3.2006 at about 9.55 a. m After recording the dying declaration Exbt-6 I read over the same to victim who stated that the statements were correctly recorded XXX BY THE ACCUSED THROUGH LD. LEGAL AID COUNSEL MISS NIMKIT LEPCHA. "It is not a fact that as to the cause of injury the victim did not state that her husband sprinkled kerosine (sic) oil on her body and set her on fire. It is not a fact that she did not disclose that her husband name is Ashok Sharma who is the resident of Martam, West Sikkim It is not a fact that Dr. Bhim Pd. Dahal was not present while recording the dying declaration of the victim. It is not a fact that after recording the dying declaration the same was not read over to the victim and who also did not state that her statement was not correctly recorded Dr. Bhim Prasad Dahal, P. W. 25 I examined the patient Sushila Sharma before her dying declaration was recorded. She was conscious, oriented, cooperative exhibit- 6/b is the LTI of the victim Sushila Sharma. The dying declaration was recorded in question and answer form. The answers of the victim was recorded within my hearing. By the accused through ld. Bhim Prasad Dahal, P. W. 25 I examined the patient Sushila Sharma before her dying declaration was recorded. She was conscious, oriented, cooperative exhibit- 6/b is the LTI of the victim Sushila Sharma. The dying declaration was recorded in question and answer form. The answers of the victim was recorded within my hearing. By the accused through ld. Legal Aid Counsel Miss Nimkit Lepcha It is true that relative of the victim were present in the hospital while recording dying declaration but they were not inside the ICU with us at the time of recording the dying declaration It is not a fact that before the dying declaration was recorded I was not requested to examine the patient in order to ascertain the mental status of the patient as to whether she was in a fit state of mind to make a dying declaration It is not a fact that necessary formalities were not observed while recording dying declaration of the victim. It is not a fact that Exhibit- 6 is not the same dying declaration that was recorded by the SDM, Gangtok in my presence. It is nota (sic) fact that the ansers (sic) of the patient were not recorded within my hearing C. P. Dhakal, P. W. 29 On the said date i. e on 9.3.2006 in the morning at about 7 a. m I had gone to Central Referral Hospital, Tadong to see my office peon, Shri Man Bdr. Gurung who was admitted in the I. C U ward of the said hospital At the relevant time the said lady patient with burned (sic) injuries was speaking to some one sitting nearby. Being in the same I. C U ward I went near the said lady patient. Finding the accused sitting nearby the said lady patient with burn injuries I asked him as to who he was. To this the accused himself said that he was the husband of the lady patient. I heard the accused asking the lady patient as to how she had sustained burn injuries on her person. I also heard the lady patient replying to the question of the accused that he(accused) had set her on fire. At the relevant time I had also noticed that her face was also completely burnt as a result she was not able to open her mouth fully. I also heard the lady patient replying to the question of the accused that he(accused) had set her on fire. At the relevant time I had also noticed that her face was also completely burnt as a result she was not able to open her mouth fully. She was opening her mouth little and was uttering her words. I also heard the accused telling the lady victim that she had sustained burn injuries due to jungle fire at ShiruBhari Bhasghari. I also heard the lady patient denying the statement of the accused and said that it was the accused who had sprinkled kerosene oil on her body and set her on fire. Seeing the accused repeatedly questioning the lady patient I felt that the patient was being tortured and I asked the accused not to ask repeated question in the manner he was asking her (f) It was then submitted that the victim had disclosed of the Appellant having set her on fire after sprinkling kerosene oil on her after meeting her parents and relatives in the CRH, Tadong and, that she has remained consistent on this. That the victim has stated in her dying declaration that the Appellant wanted to get rid of her as he wanted to marry another girl. The dying declaration as per the Learned Additional Public Prosecutor is unimpeachable having been recorded by the SubDivisional Magistrate, P. W. 14 in presence of the doctor, P. W. 25, and there can be no reason as to why these witnesses should be doubted. (g) Relying upon the decision in Ravi and Another vs. State of T. N., 2004 10 SCC 776 it was submitted that a dying declaration can be the sole basis of conviction, if found credible and cogent and it does not require any corroboration, whatsoever, in law. That there was no reason as to why the deceased should have implicated her husband. Even the evidence of P. W. 21, Smt. Indra Sharma, as per Learned Additional Public Prosecutor, cannot be relied upon being inconsistent which is apparent from the fact that in her examination-in-chief she states that she was informed by one girl that the deceased had sustained burn injury as a result of jungle fire but, in her cross-examination, she has stated that the victim sustained burn injury on her own. Apart from this, the witness being the sister-in-law of the Appellant, was obviously an interested witness and, therefore, unreliable. (h) It was finally submitted that there are two other circumstances appearing against the Appellant and they are: (a) the Appellant did not attempt to douse the fire that had engulfed his wife/the victim which would have been the normal reaction if she had indeed been accidently caught in the jungle fire and, (b) the Appellant did not accompany the victim to the Hospital but did so only on 09-03-2006 when she breathed her last. (i) For the reasons aforesaid, it stands established that it was the Appellant who had set the victim on fire contrary to the case of the Appellant that the victim had got burnt in a jungle fire. [7] (a). We have given anxious consideration to the rival submissions of the Learned Counsels and have carefully considered the evidence on record. From a perusal of the impugned judgment we find that the Learned Trial Court has based the conviction of the Appellant primarily upon the dying declaration, Exhibit 6, of the victim. It is quite evident that the Learned Trial Court has found the dying declaration unimpeachable as being corroborated by the evidence of P. W. 7, Chandra Prakash Sharma, P. W. 8, Narbada Bhattarai, P. W. 10, Kharananda Sharma and P. W. 5, Nanda Ram Chettri. Reliance has also been placed by the Learned Trial Court upon the evidence of SDM, P. W. 14, who recorded the dying declaring, Dr. Bhim Prasad Dahal, P. W. 25, Mr. Norzang Lepcha, P. W. 27, Mrs. Manita Pradhan, P. W. 28 and Mr. C. P. Dhakal, P. W. 29. (b) It is no doubt trite that a dying declaration if found to be reliable can form the basis of conviction. This is based on principle that ?a man will not meet his maker with lie on his mouth?. However, it is also a settled law that where conviction is solely based on dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration and the evidence of the witnesses supporting it. We may refer in this regard to the case of Panchdeo Singh vs. State of Bihar, 2002 1 SCC 577 . We may refer in this regard to the case of Panchdeo Singh vs. State of Bihar, 2002 1 SCC 577 . We have also been cautioned in the case of K. Ramachandra Reddy and Another vs. The Public Prosecutor, 1976 AIR(SC) 1994 that a Court must be on guard that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. (c) Keeping the above position of law in view, we have thought it appropriate to examine the evidence available on the records carefully. On doing so, we find that Exhibit 6, the dying declaration recorded by the SDM, P. W. 14 in presence of Dr. Bhim Prasad Dahal, P. W. 25, is not the sole statement given by the victim. We find that P. W. 18, Dr. Leona Sonam Lepcha, Medical Officer, Jorethang PHC, who first attended to the victim has stated in her recross-examination that the victim ?was conscious and was talking to us and upon enquiry the patient herself stated that she caught fire due to forest fire. ? Then there is P. W. 21, Smt. Indra Sharma, the sister-in-law of the Appellant, who has made two significant statements in her deposition which reads as ?in the meantime one girl came running and informed us that the victim sustained burn injury as a result of jungle fire? and in her crossexamination ?it is true that the deceased while on the way to Jorethang PHC she informed us that she sustained burn injury on her own?. In our view, these two statements assume great significance and are material for consideration as they were the first statements made by the victim soon after the incident on the same day. The provision of Section 32 of the Evidence Act is wide enough for those statements to fall within its ambit. We may reproduce the relevant part of Section 32 of the Evidence Act below:- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. , is relevant. The provision of Section 32 of the Evidence Act is wide enough for those statements to fall within its ambit. We may reproduce the relevant part of Section 32 of the Evidence Act below:- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. , is relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) when it relates to cause of death. 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 person's 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 (d) We are, therefore, faced with more than one dying declaration, i. e. , ones made on 07-03-2006 and the other on 09-03-2006, both conflicting and inconsistent. It is obvious that in her first statements made to P. W. 18 and P. W. 21 the victim has not implicated the Appellant. It is only in the second one being Exhibit 6 that she has in most categorical terms accused the Appellant. There are plethora of decisions which lay down that in the event of there being multiple dying declarations which are mutually inconsistent, the benefit of doubt ought to be given to the accused. It is only in the second one being Exhibit 6 that she has in most categorical terms accused the Appellant. There are plethora of decisions which lay down that in the event of there being multiple dying declarations which are mutually inconsistent, the benefit of doubt ought to be given to the accused. However, in the case of Nallam Veera Satyanandam and Others vs. Public Prosecutor, High Court of A. P., 2004 AIR(SC) 1708 it has been held as under: If the trial Court was making the second dying declaration as the basis to reject the first dying declaration as incorrect then also in our opinion, the trial Court has erred because in the case of multiple dying declarations each dying declaration will have to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there are more than one dying declaration, it is the duty of the Court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. ? (e) By way of abundant caution, we have deemed it appropriate to follow the above principle and have considered each of the dying declarations independently on its own merit to assuage their evidentiary value without rejecting the subsequent one being Exhibit 6. In order to convince ourselves in either of the two statements and satisfy ourselves as to which of those statements reflects the true state of affairs, it was felt essential to consider the oral evidence on the record and we have accordingly done so. Upon such examination, we find that there are two distinct sets of evidence that are relevant for analysing the cause of the fire resulting in the victim getting burnt. They are (i) those pertaining to the time immediately after the incident on 07-03-2006 and (ii) after the victim had met her relatives in the Manipal Hospital on 09-03-2006. (f) The first set of evidence are found in the depositions of Harilall Sharma, P. W. 2, Mitralall Sharma, P. W. 3, Amrit Kumar Chettri, P. W. 4, Data Ram Sharma, P. W. 6, Kharananda Sharma, P. W. 10 and Master Rajen Chettri, P. W. 24. These are apart from the defence witnesses, Savitri Sharma, D. W. 1 and Hemlata Sharma, D. W. 2. These are apart from the defence witnesses, Savitri Sharma, D. W. 1 and Hemlata Sharma, D. W. 2. Since the evidence of these prosecution and defence witnesses are found to be eminent, relevant portions of their depositions are reproduced below for convenient discussions on the evidence later:- Harilall Sharma, P. W. 2 on 7.3.2006 in the afternoon at about 5.00 p. m. I was returning home from Schook (sic) and on the way I dropped in the house of one Data Ram Adhikari. We were having tea in his house. In the meantime the wife of Shri Data Ram Adhikari informed us that there was a column of smoke was coming out from the forest down below her house and also heard a male person crying for help. She also asked us to see it. Thereafter we also went to some distance from the house of Data Ram and looked towards it with attention. We also saw the smoke and heard a male voice coming from the said place. We therefore left for the place of occurrence thinking that someone must be in trouble. I, along with Data Ram Adhikari, his son Mitra Lall Adhikari proceeded towards place of occurrence. In the meantime one Kharananda Parajuli also arrived there and join us. We asked Mitra Lall Adhikari to rush as he was young and told him that we would follow him. In the meantime we saw one Amrit Kumar coming up and going towards the house of the accused person. Data Ram Adhikari called the said Amrit Kumar Chettri who informed us that the wife of the accused received burn injuries in jungle fire (Darelo) on her person and was lying down below in the jungle in a serious condition Out (sic) attention was first drawn towards the crying man who was found to be the accused. At a distance of about 12 feet away from him we saw the victim laid on a blanket with serious burn injury on her person. Besides the victim the driver Maila and Amrit Kumar Chettri were also found present We found the victim as well as the accused in the cardamom field when we reached there. The accused was lying prosted (sic) on the ground and was also crying and the victim was smelling of Kerosene Oil. Besides the victim the driver Maila and Amrit Kumar Chettri were also found present We found the victim as well as the accused in the cardamom field when we reached there. The accused was lying prosted (sic) on the ground and was also crying and the victim was smelling of Kerosene Oil. We all decided to carrying the victim in the same blanket to the house of the accused X. X. X. By the accused through ld. counsel Shri T. B. Chettri I cannot say as to how the fire broke out or who set the fire. It is true that Amrit told me that ashok's wife has been burnt by fire in the jungle It is true that I did not find or had occasion to smell the odur (sic) of Kerosene Oil from the accused Mitralall Sharma, P. W. 3 I was at my residence I heard my co-villager Amrit Kumar Chettri calling me saying = Maila Daju, Maila Daju'. At the relevant time I was going to the cowshed to give cattle feed to my cattle. On hearing the said Amrit Kumar Chettri I ran towards the place from where the said Amrit Kumar Chettri was calling me in a nervous condition. I saw the said Amrit Kumar Chettri in the bamboo grove near Cardamom field of the accused person. I also saw the accused person crying lying on the ground. I also saw the victim Sushila Sharma about ten feet away where the accused was lying on the ground. She was found completely burnt and holding a bamboo. I asked the said Amrit Kumar Chettri to rush to my house and bring a blanket immediately. Within a period of 10/15 minutes the said Amrit Kumar Chettri brought a blanket at the place of occurrence. Thereafter I asked the victim to sit on it and in the meantime the other persons mainly Shri H. L. Sir (PW-2), my father Data Ram Sharma, Kharanananda Sharma also arrived there X. X. X. by the accused through learned Legal Aid Counsel Shri T. B. Chettri I am not aware how the police managed to write statement in my name. It is truemthat (sic) we are called in Kaluk Police Station for at least ten times. It is truemthat (sic) we are called in Kaluk Police Station for at least ten times. I went with Amrit 5 times to the Police Station It is true that when I reached the place of occurrence Amrit Kumar Chettri and the accused were present at the place of occurrence. It is true that we did not ask anything to the deceased and the accused about the incident Amrit Kumar Chettri, P. W. 4 Before I ate it my mother asked me to go in search of my said dumb sister. Thereafter I ran down in search of my dumb sister. While I was going down in search of my sister the accused present in the dock was also going down. He also accompanied me. After going for some distance the accused called his wife saying =Kanchi, Kanchi'. In the meantime his wife (victim) replied that she was there X. X. X. By the Learned P. P. Shri J. B. Rai I stated the entire facts recorded under Section 161 Cr. P. C except the fact that the accused was at the bamboo groove (sic) and the fact that he called me to the place where he was standing. The Investigating Officer also did not record the fact that the accused called his wife that is the victim saying =Kanchi, Kanchi'. My statement was read over to me by the Investigating Officer. Exhibit =X' is my statement recorded by the Investigating Officer under Section 161 Cr. P. C. The contents of the same are my true statement except the fact stated above. It is not a fact that I stated to the I. O that the accused was standing in his bamboo groove (sic) belong his paddy field and that he called me when he saw me going down in order to help the accused who is my co-villager. X. X. X. by the accused through ld. Legal Aid Counsel Shri T. B. Chettri I was assaulted by the Second Officer-InCharge while he was recording my statement. The I. O told me that other than called by the accused you have no other statement to make? I was also detained twice in the Kaluk Police Station. I was medically examined for the injury I sustained due to assault by the I. O. and the medical certificate has been kept by the C. I Saheb. The I. O told me that other than called by the accused you have no other statement to make? I was also detained twice in the Kaluk Police Station. I was medically examined for the injury I sustained due to assault by the I. O. and the medical certificate has been kept by the C. I Saheb. It is true that I and the accused went together towards the place of occurrence. At that time we saw fire was burning. It is true that when accused called his wife =Kanchi, Kanchi' she replied that she was there. I have not seen who set out the fire, and so the deceased burning. It is true that I was not asked by the accused to bring the blanket, It was Mitra Lall Sharma PW- 3 who asked me to bring the blanket, and also told me to intimate H. L. Sir and to bring one vehicle. And the deceased was evacuated in the said vehicle. I was called to Kaluk Police Station for five times and my statement was read over to me for five times. For my assault by the police my father had made acomplaint (sic) to the Officer-InCharge, Kaluk Police Station but the matter was settled by the Officer-In-Charge along with the local Panchayat Member and the second OfficerIn-Charge, Madhu Lall Tamang of Kaluk Police Station who had assaulted me while recording my 161 statement gave Rs. 4000/- to my father towards my medical treatment. It is true that I was forced to be a witness. ? Data Ram Sharma, P. W. 6 While we were having tea in my house we heard a mail (sic) crying voice coming from jungle below the house of the accused person. I also heard somebody shouting saying = Maila Daju, Maila Daju' from the said direction. Both of us i. e. H. L. Sharma and I came out of the house to the courtyard and listen (sic) attentively towards the site from where the sound of weeping /crying was coming. At the relevant time Shri H. L. Sharma had returned from Central Martam School where he is posted as Headmaster. We also noticed a column of smoke coming from the jungle below the house of the accused person from where the crying sound was coming. At the relevant time Shri H. L. Sharma had returned from Central Martam School where he is posted as Headmaster. We also noticed a column of smoke coming from the jungle below the house of the accused person from where the crying sound was coming. In the meantime my son Shri Mitra Lall who is also called as driver Maila arrived at the place of occurrence. I suggested my son Mitra Lall to rush to the place of occurrence anticipating that somebody must have been in trouble. In the meantime Amrit Kumar Chettri came to the place where we were sitting. He stated that the wife of the accused was completely burnt at the place of occurrence and that he was advised by Mitra Lall Sharma @ driver Maila to bring a blanket from my house to carry the victim to hospital. My wife handed over a blanket to the said Amrit Kumar Chettri. Amrit Kumar Chettri further said that he was asked by Mitra Lall Sharma to make a phone call to Jiwan and to bring his vehicle in order to take the victim to the hospital. The said Amrit Kumar Chettri rushed to the place of occurrence carrying the blanket with him. Shri H. L. Sharma (PW-2) made a phone call to Shri Jiwan to send his vehicle. Thereafter I, Shri H. L. Sharma(PW-2) and oneKharananda (sic) left for the place of occurrence. It was about 5.00 p. m. On reaching the place of occurrence. I was the first person to reach the place of occurrence among three of us. I saw the victim lying on the blanket. The accused was weeping with his face towards the ground about ten feet away from his wife. A little above there was a fire burning which was a bamboo groove (sic). My son Mitra Lall and Amrit Kumar Chettri were also found standing nearby Kharananda Sharma, P. W. 10 It was about 4.30 p. m. The accused was available in his house. Onmy (sic) request for the G C I sheets the accused informed me to contact his mother who inturn (sic) asked me to contact her 4th son. As there was no intention of giving the GCI sheets I went to nearby house of Data Ram Sharma(PW-6) where the Headmaster PW-2 Shri H. L. Sharma was also sitting. Onmy (sic) request for the G C I sheets the accused informed me to contact his mother who inturn (sic) asked me to contact her 4th son. As there was no intention of giving the GCI sheets I went to nearby house of Data Ram Sharma(PW-6) where the Headmaster PW-2 Shri H. L. Sharma was also sitting. Both of them informed about the burning incident down below their house. We three of us proceeded to the spot. It was a bamboo grove where we saw the victim sitting on a blanket with burnt injuries on her person. At about 10-12 feet away we saw the accused was crying. Kerosene oil was also stinking faintly. We all removed the victim on the road and sent the victim to Hospital by a vehicle Master Rajen Chettri, P. W. 24 It is true when I reached the house of the accused on the relevant day I saw that the accused was at his home with his mother and was drinking tea and cleaning the vegetables. ? Savitri Sharma, D. W. 1 While passing by the house of the accused I saw the accused sitting in the courtyard of his house along with his mother. He had before him one ?Nanglo? of Daal and Saag. My friend Hemlata Sharma was with me and while passing by the accused told us that his child was crying and his wife had gone to look for fire wood and requested us to inform her to return home early. When we reached the place where the victim was which was at a distance of about half and hours (sic) walk from the house we passed on the message of the accused to her and continued to nearby place to collect fodder. After sometime i. e after about 10 minutes we saw a fire where the victim was and we heard the accused coming from his house toward (sic) the fire calling out to the victim by name The accused accompanied by one Amrit took the victim to the house after which they took her to the vehicle on the road. I did not get any smell from victim. It is true that the police had recorded my statement in connection with the instant case at Kaluk P. S. and Gyalshing P. S. The police did not accept our statement at Gyalshing P. S Cross-examination by the Ld. I did not get any smell from victim. It is true that the police had recorded my statement in connection with the instant case at Kaluk P. S. and Gyalshing P. S. The police did not accept our statement at Gyalshing P. S Cross-examination by the Ld. P. P. Sri J. B. Rai for the State We saw the accused running towards the fire from his house from the place where we were collecting fodder and we followed them Hemlata Sharma, D. W. 2 On the relevant day we went to collect fodder at around 4.30 p. m. The accused was in his house along with his mother who was carrying his child in her arms. The accused told us to inform the victim to return home early as the child was crying. My friend Sabitri who was with me informed the victim accordingly. We went for our work across the path from where the victim was working after about 10 minutes we saw a fire in the jungle where the victim had been working. The accused and one Amrit came from the house towards the fire. We can see people on the path from where we were collecting fodder. I did not see any one at the P. O other than the victim before the fire. We saw the victim burnt at the P. O and she was evacuated to their home by the accused and others. I had given the same statement which I have stated before this Court today to the police at Kaluk P. S (g) On a close scrutiny and careful consideration of the prosecution and defence evidence reproduced above, we find that the allegation that the Appellant had poured kerosene oil over the body of the victim and set her ablaze appear to be most improbable. It is clear from the sequence of events set out by the witnesses that the Appellant was in his house when the victim was engulfed by fire and had rushed to the place of occurrence to rescue the victim accompanied by P. W. 4, Amrit Kumar Chettri. These facts stand fully established by the evidence of P. Ws. 2, 3, 4, 6, 10 and 24 apart from the categorical evidence of the two defence witnesses. These facts stand fully established by the evidence of P. Ws. 2, 3, 4, 6, 10 and 24 apart from the categorical evidence of the two defence witnesses. (h) No doubt we find that P. W. 4, Amrit Kumar Chettri, was declared hostile by the prosecution but, in our view, that would not diminish the value of his evidence. We find that he has remained unshaken and firm in his cross-examination. He has in most categorical terms stated that on the fateful day when he was on his way in search of his sister he met the Appellant who was also heading in the same direction and that he had accompanied him and after going for some distance the Appellant had called out for his wife which was responded to by her. In his cross-examination on being declared hostile he was confronted with his statement recorded under Section 161, Criminal Procedure Code, to which he has admitted as those having been made by him except the portion where he was alleged to have stated that the Appellant was in the bamboo grove and had called the victim to the place where he was standing. Worse still is his statement that ?The Investigating Officer also did not record the fact that the accused called his wife that is the victim saying =Kanchi, Kanchi'. ? It, therefore, stands established that the Appellant was not at the place of occurrence when the incident took place. (i) Contrary to what have been urged by the Learned Additional Public Prosecutor we find that P. W. 4, Amrit Kumar Chettri, has been well corroborated (i) by P. W. 2, Harilall Sharma when he has stated ?in the meantime we saw one Amrit Kumar coming up and going towards the house of the accused person. Data Ram Adhikari called the said Amrit Kumar Chettri who informed us that the wife of the accused received burn injuries in jungle fire (Darelo) on her person and was lying down below in the jungle in a serious condition?; (ii) By the evidence of P. W. 3, Mitralall Sharma when he stated that ?I was at my residence I heard my co-villager Amrit Kumar Chettri calling me saying = Maila Daju, Maila Daju'. On hearing the said Amrit Kumar Chettri I ran towards the place from where the said Amrit Kumar Chettri was calling me in a nervous condition. On hearing the said Amrit Kumar Chettri I ran towards the place from where the said Amrit Kumar Chettri was calling me in a nervous condition. I saw the said Amrit Kumar Chettri in the bamboo grove near Cardamom field of the accused person. I also saw the accused person crying lying on the ground. I also saw the victim Sushila Sharma about ten feet away where the accused was lying on the ground. She was found completely burnt and holding a bamboo I asked the said Amrit Kumar Chettri to rush to my house and bring a blanket immediately?; (iii) By the evidence of P. W. 6, Data Ram Sharma when he stated that ?While we were having tea in my house we heard a mail (sic) crying voice coming from jungle below the house of the accused person. I also heard somebody shouting saying = Maila Daju, Maila Daju' from the said direction. Both of us i. e. H. L. Sharma and I came out of the house to the courtyard and listen (sic) attentively towards the site from where the sound of weeping /crying was coming In the meantime my son Shri Mitra Lall who is also called as driver Maila arrived at the place of occurrence. I suggested my son Mitra Lall to rush to the place of occurrence anticipating that somebody must have been in trouble. In the meantime Amrit Kumar Chettri came to the place where we were sitting. He stated that the wife of the accused was completely burnt at the place of occurrence and that he was advised by Mitra Lall Sharma @ driver Maila to bring a blanket from my house to carry the victim to hospital Thereafter I, Shri H. L. Sharma(PW-2) and oneKharananda (sic) left for the place of occurrence. It was about 5.00 p. m. On reaching the place of occurrence. I was the first person to reach the place of occurrence among three of us. I saw the victim lying on the blanket. The accused was weeping with his face towards the ground about ten feet away from his wife. A little above there was a fire burning which was a bamboo groove (sic). I was the first person to reach the place of occurrence among three of us. I saw the victim lying on the blanket. The accused was weeping with his face towards the ground about ten feet away from his wife. A little above there was a fire burning which was a bamboo groove (sic). My son Mitra Lall and Amrit Kumar Chettri were also found standing nearby?; (iv) By the evidence of P. W. 10, Kharananda Sharma when he stated that ?I went to nearby house of Data Ram Sharma(PW-6) where the Headmaster PW-2 Shri H. L. Sharma was also sitting. Both of them informed about the burning incident down below their house. We three of us proceeded to the spot. It was a bamboo grove where we saw the victim sitting on a blanket with burnt injuries on her person. At about 10-12 feet away we saw the accused was crying?; (v) By the evidence of P. W. 24, Master Rajan Chettri when he stated that ?It is true when I reached the house of the accused on the relevant day I saw that the accused was at his home with his mother and was drinking tea and cleaning the vegetables?; (vi) By the evidence of D. W. 1, Savitri Sharma when she stated that ?While passing by the house of the accused I saw the accused sitting in the courtyard of his house along with his mother My friend Hemlata Sharma was with me and while passing by the accused told us that his child was crying and his wife had gone to look for fire wood and requested us to inform her to return home early. When we reached the place where the victim was which was at a distance of about half and hours (sic) walk from the house we passed on the message of the accused to her and continued to nearby place to collect fodder. After sometime i. e after about 10 minutes we saw a fire where the victim was and we heard the accused coming from his house toward (sic) the fire calling out to the victim by name The accused accompanied by one Amrit took the victim to the house after which they took her to the vehicle on the road. After sometime i. e after about 10 minutes we saw a fire where the victim was and we heard the accused coming from his house toward (sic) the fire calling out to the victim by name The accused accompanied by one Amrit took the victim to the house after which they took her to the vehicle on the road. I did not get any smell from victim?; and (viii) By the statement of D. W. 2, Hemlata Sharma when she stated that ?The accused was in his house along with his mother who was carrying his child in her arms. The accused told us to inform the victim to return home early as the child was crying. My friend Sabitri who was with me informed the victim accordingly. We went for our work across the path from where the victim was working after about 10 minutes we saw a fire in the jungle where the victim had been working. The accused and one Amrit came from the house towards the fire. We can see people on the path from where we were collecting fodder. ? (j) Analysing and setting briefly the sequence of events leading to the discovery of the severely burnt victim near the bamboo grove as clearly emerging from the above, we find as follows:- (i) On 07-03-2006 P. W. 4, Amrit Kumar Chettri, while in search of his sister heard the Appellant calling out for his wife and met him on his way proceeding in the same direction; (ii) D. W. 1, Savitri Sharma and D. W. 2, Hemlata Sharma, had first seen the Appellant in his house and then later rushing towards the fire calling out the name of the victim and, that he was accompanied by P. W. 4, Amrit Kumar Chettri; (iii) On 07-03-2006 late in the afternoon at about 4/5 p. m. , P. W. 2, Harilall Sharma, was in the house of P. W. 6, Data Ram Sharma (Adhikari) having tea; (iv) They heard a male voice calling out. When they came out of the house to inquire, they saw smoke rising from the jungle below the house of the Appellant from which direction also the male voice was heard; (v) In the meantime, P. W. 3, Mitralall Sharma, known also as =Maila Daju', arrived at the place where P. W. 2, Harilall Sharma and P. W. 6, Data Ram Sharma, were standing; (vi) P. W. 6, Data Ram Sharma asked P. W. 3, Mitralall Sharma to rush to the place of occurrence; (vii) After some time P. W. 4, Amrit Kumar Chettri, arrived at the place where P. W. 2, Harilall Sharma and P. W. 6, Data Ram Sharma, were and informed them of the victim sustaining burn injuries. He was on his way to collect a blanket as suggested by P. W. 3, Mitralall Sharma, who in turn had obviously reached the place of occurrence as directed by his father, P. W. 6, Data Ram Sharma (Reference may be to the statement of P. W. 4 which reads as ?It was Mitra lall Sharma PW- 3 who asked me to bring the blanket, and also told me to intimate H. L. Sir read with that of P. W. 3 which reads as ?I asked the said Amrit Kumar Chettri to rush to my place and bring a blanket immediately. ?); (viii) P. W. 10, Kharananda Sharma, who also arrived there, was informed of the fact and accompanied P. W. 2, Harilall Sharma and P. W. 6, Data Ram Sharma, to the place of occurrence (reference P. W. 2, Harilall Sharma and P. W. 3); (ix) P. W. 6, Data Ram Sharma, the first amongst the three (i. e. , P. W. 2, Harilall Sharma, P. W. 10, Kharananda Sharma and himself) to reach the place of occurrence, saw the victim lying on the blanket and the accused weeping with his face towards the ground and his son P. W. 3, Mitralall Sharma and P. W. 4, Amrit Kumar Chettri, standing nearby; (x) P. W. 6, Data Ram Sharma, also saw a fire in the bamboo grove; and (xi) The victim was evacuated to hospital in a vehicle of one Jiwan Chettri arranged by P. W. 2, Harilall Sharma and driven by P. W. 3, Mitralall Sharma. These witnesses fully corroborate each other on all material facts free of any contradiction and, being direct witnesses to the facts deposed by them, their evidence would fall within the ambit of Section 60 of the Evidence Act. (k) In any case it is well-settled that merely because a witness is declared hostile his evidence cannot be treated as effaced from the record and can be relied on in part. In the case of Sat Paul vs. Delhi Administration, 1976 1 SCC 727 after referring to several decisions on the point, it was held: 52. even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such crossexamination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the judge should, as a matter of prudence, discard his evidence in toto. ? (l) In Gura Singh vs. State of Rajasthan, 2001 2 SCC 205 it was held: 11. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of the fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. It is for the court of the fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy. ? (m) Considering the quality of the evidence of Amrit Kumar Chettri, P. W. 4, its consistency and its corroboration by the other prosecution and defence witnesses, we have no hesitation in accepting it as reliable. (n) No doubt there is evidence of existence of smell of kerosene on the body of the victim and her wearing apparels emerging from the depositions of P. W. 2, Harilall Sharma and P. W. 10, Kharananda Sharma. It is, however, a mystery as to how the fire took place, who sprinkled the kerosene on the body of the victim, if at all, and who removed the victim away from the fire. There is, of course, also the evidence of P. W. 5, Nanda Ram Chettri, that the Appellant had purchased a bottle of kerosene on 03-03-2006 but, considering the overall evidence we find it too remote to draw a nexus between the two incidents, i. e. , smell of kerosene and the fire, with the Appellant. It is a settled law that suspicion cannot take the place of proof and an accused cannot be convicted solely based on suspicion. In our view, it would be unsafe and fraught with risk to rely on such evidence in the face overwhelming evidence to the contrary and accordingly find it fit to discard them as unreliable. (o) We have noticed with a great deal of concern that the two defence witnesses, although had been interrogated by the Police, were not arrayed as prosecution witnesses. Their evidence that their statements were not accepted by the Investigating Officer during the investigation have neither been controverted nor demolished by the prosecution. We also find from the uncontroverted and unshaken evidence of P. W. 3, Mitralall Sharma and P. W. 4, Amrit Kumar Chettri, that they had been detained in the Police Station and assaulted by the Police during investigation. We also find from the uncontroverted and unshaken evidence of P. W. 3, Mitralall Sharma and P. W. 4, Amrit Kumar Chettri, that they had been detained in the Police Station and assaulted by the Police during investigation. Even during the trial child witness, P. W. 24, Master Rajen Chettri, whose evidence was quite crucial for the prosecution, was surprisingly tendered for cross-examination by the prosecution. These facts, apart from reflecting poorly on the fairness of the investigation, lead us unhesitatingly to draw an adverse presumption against the prosecution under Section 114(g) of the Evidence Act. (p) From what have emerged in the evidence discussed above, we find that the evidence of P. W. 18, Dr. Leona Sonam and P. W. 21, Smt. Indra Sharma, before whom the victim had first given the information that she has sustained the burn injury due to forest fire on her own, appear to be more probable and consistent. (q) Considered in another light, even if we do not take the statement of the victim made to P. W. 18, Dr. Leona Sonam Lepcha and P. W. 21, Smt. Indra Sharma, as dying declarations, it would certainly fall within the provisions of Section 6 of the Evidence Act as it is almost contemporaneous with the incident having been rendered in close proximity of the time of the incident. Section 6 of the Evidence Act is reproduced below for convenience:- 6. Relevancy of facts forming part of same transaction. ?Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, thought A may not have been present at all of them. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, thought A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. ? (r) In Sukhar it has been held as under:- 6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus: Under the present Exception (s) We find that their Lordships in the above case have referred to and relied upon earlier decisions of the Apex Court while re-emphasising the ratio underlying Section 6 of the Evidence Act. We do not find any reason as to why the evidence of P. W. 18 and P. W. 21 should not fall under Section 6 of the Evidence Act also. (t) The other set of evidence are that of P. W. 1, Jai Narayan Bhattarai, the father of the victim, P. W. 7, Chandra Prakash Sharma, the paternal uncle of the victim, P. W. 8, Narbada Bhattarai, the mother of the victim, P. W. 9, Khemlall Bhattarai, another paternal uncle of the victim, P. W. 27, Mr. Norzang Lepcha, the Area MLA of Rakdong Tintek Assembly Constituency, P. W. 28, Mrs. Manita Pradhan, Chairperson of the Sikkim State Commission for Women and P. W. 29, C. P. Dhakal. Norzang Lepcha, the Area MLA of Rakdong Tintek Assembly Constituency, P. W. 28, Mrs. Manita Pradhan, Chairperson of the Sikkim State Commission for Women and P. W. 29, C. P. Dhakal. These witnesses have corroborated the dying declaration, Exhibit 6 recorded on 09-03-2006 by P. W. 14 in presence of P. W. 25. On a perusal of Exhibit 6 there is no manner of doubt that there is complete transformation in the version of the victim as compared to her statements made at the initial stage to P. W. 18 and P. W. 21. We find that the version contained in Exhibit 6 came into existence only after the father, P. W. 1 and her relatives met her in the morning of 09-03-2006 in the CRH, Tadong. We have also noticed that in the evidence of P. W. 1, Jai Narayan Bhattarai, that when he was first informed by his youngest brother P. W. 9, Khemlall Bhattarai, at 1 a. m. after midnight of 07-03-2006 it was only stated that his daughter Sushila, the victim, had received burn injury on her person as a result of jungle fire and admitted in the Manipal Hospital at Tadong, East Sikkim and P. W. 9 had in turn been informed by the fourth elder brother of the Appellant of the incident. Similar is the statement of P. W. 8, Narbada Bhattarai, the mother of the victim. The deposition of these witnesses as regards Exhibit 6 is strangely in verbatim. Considering the other aspect of the evidence that the parents of the victim had a dislike for the Appellant as revealed from the evidence of D. Ws 1 and 2, we find it difficult to rule out the possibility of the dying declaration, Exhibit 6, having been made as a result of tutoring and, therefore, quite unreliable. This can also be reasonably inferred from the fact that there was no history of discord between the Appellant and the victim as revealed from the evidence of P. W. 8, Narbada Bhattarai, P. W. 21, Smt. Indra Sharma, P. W. 22, Bal Krishna Sharma and P. W. 22, Master Rajen Chettri. (u) It is in the foregoing context that the question of delay in filing the FIR raised on behalf of the Appellant assumes relevance. (u) It is in the foregoing context that the question of delay in filing the FIR raised on behalf of the Appellant assumes relevance. It is a settled position of law that delay in lodging the FIR depends upon facts and circumstances of a particular case. A considerably long delay in one case may not fall within the mischief of delay while in another even delay of hours may be considered as fatal. In the case at hand, it is an admitted position of P. W. 1, Jai Narayan Bhattarai, the father of the victim, that although it was, at 7 p. m. on 08-03-2006, that he was informed by the victim of the Appellant's hand in her getting burnt, strangely the FIR was lodged by him only on the next day, i. e. , 09-03-2006 that too at 11.45 a. m. The complete conflict in the victim's version of the incident narrated to P. W. 18, Dr. Leona Sonam Lepcha and P. W. 21, Smt. Indra Sharma, on one side and the other allegedly after meeting the father, P. W. 1, her uncles and other witnesses in the morning of 09-03-2006, renders the delay as being fatal to the prosecution case since it was during the intervening period that her version of the incident had altered. (v) There is yet another aspect of the matter which we find quite striking making the prosecution story doubtful. It is in the evidence of P. W. 2, Harilall Sharma, that on reaching the place of occurrence he noticed that the accused was wielding a =khukhuri' (a sharp aged weapon) tied to his waist. If the Appellant indeed intended to kill the victim he could have done so by the use of this =khukhuri' in complete secrecy and silence instead of creating confusion and hue and cry by resorting to pouring of kerosene over the victim and setting her ablaze in broad daylight under the gaze of neighbours. The version appears to be improbable also for the reason, and as noticed earlier, that there was no history of discord between the Appellant and the victim and to the contrary they were in love with each other with a six months' old infant male child out of their wedlock. The version appears to be improbable also for the reason, and as noticed earlier, that there was no history of discord between the Appellant and the victim and to the contrary they were in love with each other with a six months' old infant male child out of their wedlock. All these appear to be incongruous and conflicting to the charge made in the dying declaration, Exhibit 6, relied upon by the prosecution against the Appellant. (w) Keeping in view the overall evidence discussed above, the evidence of P. W. 29, C. P. Dhakal, pales into insignificance as it is obviously hearsay and quite presumptuous which is apparent when he stated that ?I do not know whether the accused at the relevant time was putting questions on his wife in order to hear the correct reply from her?. It is of relevance to note that he had visited the hospital only in the morning of 09-03-2006 when the victim had already been visited by her father, P. W. 1, Jai Narayan Bhattarai, the night before and, as revealed from his deposition, also by her maternal uncle. (x) The Learned Additional Public Prosecutor has sought to rely upon selected portions of the depositions of witnesses in support of his contentions but we find that they are far divorced from the other material portions. Contrary to his submission, the evidence of P. Ws. 2, 3, 4, 6, 10 and 24 along with D. Ws. 1 and 2 extracted above in extenso, indubitably establish that the Appellant was at home when the fire broke out and on coming to know of it he called out for his wife and rushed for her rescue accompanied by P. W. 4, Amrit Kumar Chettri. The evidence of these witnesses on this is firm and consistent which lend support to the evidence of P. W. 18, Dr. Leona Sonam Lepcha and P. W. 21, Smt. Indra Sharma, to whom the victim had stated that she had got burnt on her own due to forest fire. We have already noted that the version appearing in the dying declaration, Exhibit 6, emanated only after the victim's father and uncles had met her in the morning of 09-03-2006. Leona Sonam Lepcha and P. W. 21, Smt. Indra Sharma, to whom the victim had stated that she had got burnt on her own due to forest fire. We have already noted that the version appearing in the dying declaration, Exhibit 6, emanated only after the victim's father and uncles had met her in the morning of 09-03-2006. If indeed the father, P. W. 1, had met her at 7 p. m. in the evening of 08-06-2006 when, as per him, the victim had disclosed of the Appellant having set her on fire, it is not understood as to why he did not lodge the FIR at that very time and chose to wait till 11.45 a. m. of 09-03-2006 to do so. This circumstance clearly adds to the incredulity of the version contained in dying declaration, Exhibit 6 and, therefore, unreliable. The principle of law laid down in the decisions cited by the Learned Additional Public Prosecutor that a dying declaration can be the sole basis of conviction is wellsettled but the fiat, that the truthfulness or otherwise of the dying declaration should be unimpeachable inspiring confidence of the Court, is also equally laid down and common to all those decisions. We have already discussed as to why we do not find the dying declaration, Exhibit 6, as one inspiring our full confidence and, therefore, need not be repeated. In the case of Ranjit Singh and Others vs. State of Punjab, 2006 13 SCC 130 it has been held as under:- 13. It is now well settled that conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards correctness or otherwise of the said dying declaration, the courts in arriving at the judgment of conviction shall look for some corroborating evidence. It is also well known that in a case where inconsistencies in the dying declarations, in relation to the active role played by one or the other accused persons, exist, the court shall lean more towards the first dying declaration than the second one. ? [8] This is a case based upon circumstantial evidence amongst which the only evidence of some value is the dying declaration, Exhibit 6. ? [8] This is a case based upon circumstantial evidence amongst which the only evidence of some value is the dying declaration, Exhibit 6. In cases of such nature burden is heavy upon the prosecution to prove each of the circumstances beyond any reasonable doubt and those circumstances ought to form an unbroken chain leading to the only conclusion of an accused having committed the offence charged against him. In the present case, none of the circumstances appears to have been satisfactorily proved and, from what have been discussed before, the circumstances that have emerged, quite vague as they are, do not lead to the sole hypothesis of the guilt of the Appellant but we rather find that there is a strong possibility of a second hypothesis of the Appellant being not guilty. [9] Under such circumstances, we hold that the prosecution has failed to prove the charge against the Appellant beyond any reasonable doubt. [10] The Learned Trial Court appears to have overlooked the overwhelming evidence alluded to by us and has fallen in error in passing the impugned judgment and in convicting the Appellant solely based upon the dying declaration, Exhibit 6. We accordingly quash and set aside the impugned judgment. [11] In the result, the Appeal is allowed. Resultantly, the Appellant stands acquitted of the charges. [12] No order as to costs. [13] Let a copy of this judgment along with the original records of the case be transmitted to the Learned Trial Court forthwith for compliance. Appeal allowed.