JUDGMENT 1. - This Criminal appeal under Section 374(2) Cr.P.C. has been filed against the judgment dated 31.10.2003 passed by the Addl. Sessions Judge, (Fast Track) No. 2, Jhunjhunu in Sessions Case No. 27/2003 (66/2003), whereby the present appellant has been convicted and sentenced as under: Section 302 IPC: Life Imprisonment and a fine of Rs. 100/-, in default of payment of fine further undergo seven days simple imprisonment. Section 456 IPC: One year simple imprisonment and a fine of Rs. 100 in default of payment of fine further undergo seven days simple imprisonment. 2. The short facts of the case are that on the statement Ex. P-10 of Smt. Savita wife of Badruram, Ex. P/11 First Information Report No. 146/2002 has been registered for the offences under Sees. 456, 307 and 323 IPC. During investigation Smt. Savita had died and the case has been converted for the offences 302 IPC. Savita had stated in Ex. P/10 (Paracha Bayan) that she was married to Badruram 20 years' back and they were having share of two bighas of land in ancestral property. Her husband are five brothers, four are elders and one is younger. Jeetaram, Devaram and her husband are living in the village where Chandgiram is serving at Pilani and Shankar and Pappu went abroad. Jeetaram and Devaram are not having good relations, two days back, they have assaulted her husband Badruram with Kulhari and iron rod but he was saved by villagers. Today i.e. on 20.09.2002, her husband was at the well, she was sleeping with her three children, at about 3 am in the night, her husband's elder brother Devaram and two persons Narsinghram and Subhash came to her house. They assaulted her and by catching hold of her mouth, some liquid like medicine was poured in her mouth by them. She fainted and on hue and cry of her child, all three ran away. Neighbours came there, her husband was called and she was shifted to Hospital. 3. After investigation, charge sheet has been filed only against present appellant Devaram for the offences under Sees. 456, 302 and 323 IPC. Case was committed to the Sessions Judge and transferred to Additional Sessions Judge (Fast Track) No.2 Jhunjhunu. 4. Charges were framed against present appellant for the offences under Sections 456, 302 and 323 IPC. 5. Prosecution examined 16 witnesses namely P.W.-1 Banwari, P.W.-2 Dr. 456, 302 and 323 IPC. Case was committed to the Sessions Judge and transferred to Additional Sessions Judge (Fast Track) No.2 Jhunjhunu. 4. Charges were framed against present appellant for the offences under Sections 456, 302 and 323 IPC. 5. Prosecution examined 16 witnesses namely P.W.-1 Banwari, P.W.-2 Dr. Natthu Singh, P.W.-3 Hajari Lai, P.W.-4 Banarashi Devi, P.W.-5 Vinod Kumar P.W.-6 Dr. Pratap Singh P.W.-7 Surendra Pal, P.W.-8 Badruram, P.W.-9 Pawan Kumar, P.W.-10 Baby, P.W.-11 Mahaveer Singh P.W.-12 Rameshwarlal P.W.-13 Sushila P.W.-14 Sawai Singh, P.W.-15 Narendra Kumar and P.W.-16 Dr. Ananandilal Agarwal to support its case and also relied upon documents Ex. P/1 to Ex. P/12. Accused appellant was examined under Section 313 Cr.P.C. and defence witness D.W. 1 Nandlal has been examined. Reliance has been placed on Ex. D/1 to Ex. D/8 by the defence. 6. After conclusion of the trial, present appellant has been convicted as above, hence this appeal. 7. The contention of the present appellant is that whole case is false and concocted one. It is not in dispute that the present appellant and the husband of the deceased were having inimical relations. Deceased has consumed aldrin believing the same to be as medicine which was accidental. This accidental incident has been used to implicate the appellant falsely. Deceased was examined by P.W.-2 Natthusingh for the first time whom it has been stated that she has consumed aldrin believing the same to be medicine and when Savita has died this false story has been concocted to falsely implicate the appellant. Dying declaration of Savita is not reliable one and cannot be relied upon as it does not inspire confidence, it has been fabricated to implicate the present appellant. Dying declaration has not been recorded by the Magistrate and the Investigating Officer has not made any effort to call the Magistrate, dying declaration has been fabricated by the family of the deceased with the connivance of the Investigating Officer. Pawan Kumar P.W.-9 who is son of the deceased is a designed witness he was admittedly residing in another village with her maternal uncle. Other son of the deceased Sushil who was admittedly in the house at the time of incident has not been examined and purposely withheld by the prosecution. Pawan Kumar P.W.-9 who is son of the deceased is a designed witness he was admittedly residing in another village with her maternal uncle. Other son of the deceased Sushil who was admittedly in the house at the time of incident has not been examined and purposely withheld by the prosecution. The whole story has been concocted by the husband, brother and other relatives of the deceased and Pawan Kumar who was residing with his maternal uncle was in influence of Hajariram hence he has been designed eye witness whereas Sushil has been withheld. Dr. Natthu Singh P.W.-2 and Dr. Pratap Singh P.W.-6 who have examined the deceased Savita when she was alive have categorically stated that she was not in a position to speak. P.W.-6 Dr. Pratap Singh has stated that patient was in lost condition was not knowing her whereabouts or where she is. She was examined by Dr. Pratap Singh at 9 am and dying declaration Ex. P/10 has been recorded at the same time which clearly shows that at the time of recording of dying declaration the deceased was not in a condition to speak but Ex. P-10 reveals that graphic description has been stated as regard properties, relations and manner of the incident and when dying declaration is not reliable there is no evidence on which conviction of the present appellant could be rest upon. Other witnesses are interested witnesses and they have improved their versions before the Court significantly hence the conviction is bad and present appellant be acquitted of the offences. 8. Per contra contention of learned Public Prosecutor is that there is no infirmity in the reasoning and conclusion of the Court below. Dying declaration of the deceased is reliable one taken by the responsible Police Officer which has been further corroborated by the evidence of P.W.-9 Pawan Kumar who is an eye witness of the incident was present at the house of the deceased at the night of the incident and other witness Badruram P.W.-8, Baby P.W.-10 who is sister in law of deceased and other witnesses have also stated that deceased has categorically alleged against the present appellant when she was taken to the Hospital, hence there is no infirmity in the impugned judgment. 9. Heard learned counsel for the appellant and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 10. 9. Heard learned counsel for the appellant and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 10. Prosecution has relied mainly on the evidence of dying declaration recorded by P.W.- 15 Narendra Kumar. He has stated that he has recorded the statement of Savita Ex. P-10 and the case of the prosecution is that statement is reliable one and the conviction can be recorded on the uncorroborated dying declaration whereas the contention of defence is that it is true that dying declaration is entitled to great weight but at the same time, an obligation has been placed on the Court to see that the dying declaration should be of such nature so as to inspire full confidence to its correctness. The Court must be satisfied that the deceased was in a fit state of mind and undoubtedly the statement should be voluntarily and without any concoction and tutoring. Here in the present case, P.W.-15 Narendra Kumar has stated that he recorded the statement at 9 am, on Ex. P/10 statement, no time has been mentioned but on proceeding before the police time has been mentioned as 8.30 am and Doctor has signed it at 8.35, meaning thereby that at about 8.30 the dying declaration has been taken by P.W.-15 Narendra Kumar. Dr. Anandilal Agarwal P.W.-16 has certified the condition of Savita that she is able to give statement and P.W.-16 has stated that after going to bed of the injured he has certified about the condition of injured but at the same time prosecution has also examined P.W.-6 Dr Pratap Singh who has examined injured at 9 am and prepared the report Ex P-3. Dr Pratap Singh has categorically stated that the patient was in a lost condition she was not knowing about her whereabouts and about where she is. He has stated that she was unconscious but could feel pain. P.W.-6 has stated that condition of the injured was so critical that she could not know about her whereabouts. In the light of above, the statement Ex P-10 which gives the graphic details of the incident seems to be unreliable and the concocted one. Apart from this P.W.-2 Dr. He has stated that she was unconscious but could feel pain. P.W.-6 has stated that condition of the injured was so critical that she could not know about her whereabouts. In the light of above, the statement Ex P-10 which gives the graphic details of the incident seems to be unreliable and the concocted one. Apart from this P.W.-2 Dr. Natthusingh has also stated that he examined the injured at about 4.30 in the morning at that time she was not capable to say anything it clearly suggests that after the incident of taking aldrine about 3 am the injured Savita was not in a condition to speak which clearly reveals from the evidence of P.W.-2 Dr Natthusingh and P.W.-6 Dr. Pratap Singh. 11. At the same time the other fact which casts doubt on the genuineness of the dying declaration is that P.W.-15 has stated that he reached the Hospital at about 7.30 in the morning after receiving the information of the offence and he recorded the statement of injured after one hour. He did not make any effort to call Magistrate, the S.D.M., Chief Judicial Magistrate and Tehsildar who were available at about one kilometer from the Hospital and they could be called in one or two minutes, in spite of this, Magistrate has not been called and even no efforts were made to take the Assistance of the Magistrate which is suspicious fact goes in favour of the present appellant and reliance has been placed on 2007(15) SCC 718 Mohd. Islam v. State, (N.C.T.) of Delhi . 12. P.W. 16 Dr Anandilal Agarwal has verified that injured is in a fit condition to depose and he has also signed the Ex. P/10- dying declaration but he has very categorically stated that he has not examined the injured and at the time of recording of statement of Savita, her husband and brother were not present there but Ex. P/10 reveals otherwise and it contains specific averment that at the time of recording of statement, Hajariram and Badruram who are respectively the brother and husband of the injured were present, hence possibility of tutoring or prompting could not be ruled out in view of the matter that Badruram was having established inimical relation with the present appellant. P/10 reveals otherwise and it contains specific averment that at the time of recording of statement, Hajariram and Badruram who are respectively the brother and husband of the injured were present, hence possibility of tutoring or prompting could not be ruled out in view of the matter that Badruram was having established inimical relation with the present appellant. It has been stated that two days ago present appellant has assaulted the husband of the deceased but this fact has not been corroborated by any of documentary evidence. It has also been stated that the present appellant and two other persons have assaulted the deceased but P.W.-6 Dr. Pratap Singh has stated that there were no struggle marks on the body of deceased and specific mention has been made in Post Mortem Report Ex. P/4 of the same fact. Savita has not received any external or internal injuries which fact also goes contrary to the dying declaration. 13. The contention of the learned Public Prosecutor is that conviction can be based solely on dying declaration. There is no doubt about it but condition precedent is that the statement should be true and voluntarily. Reliance has been placed by the defence on 2010 (4) SCC (Cr.) 496 Panneerselam v. State of Tamil Nadu , wherein it has been held: "Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. 14. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. 14. Here in the present case, the dying declaration is not trust worthy. It does not inspire confidence to its correctness as it had not been recorded by the Magistrate in spite of the fact that there was ample opportunity for the Investigating Officer to have the Assistance of the Magistrate which was only one to two kilo meters away from the Hospital. He has taken the statement after delay of one hour but still he has not made any effort to call the Magistrate. Injured was in a fit state of mind has not been proved. Per contra, statement of Pw-6 clearly reveals that the injured was not even in a position to speak and was not in a composed position, hence no reliance can be placed on such a dying declaration. The Court below erred in convicting the present appellant on the basis of unreliable dying declaration. 15. The prosecution has also relied upon the evidence of P.W.-9 Pawan Kumar to corroborate the dying declaration. He has stated that on hearing of cries of her mother, he saw that Naresh was holding the feet of her mother and Subhas was holding her hands and the present appellant was pouring poison from a bottle in her mouth. Savita has not narrated the manner of the incident as narrated by Pawan Kumar. This graphical description has not been stated in previous statement Ex. D-6 of the present witness recorded under Section 161 Cr.P.C. This witness has significantly improved his version in the Court. 16. It has also been stated that bangles have been broken by holding hands of her mother which were fall down on the spot but admittedly at the time of inspection of site, no broken bangles were found at the place of occurrence and furthermore description of dead body has been prepared as Ex/P/5 wherein it has been mentioned that dead body was bearing 5-5 bangles in each hand hence this fact also disproves the story of the prosecution. 17. 17. No bottle containing poison has been recovered from the scene of occurrence or at the instance of present appellant. 18. The other interesting factor which reveals from the record of EX. P/10 that admittedly according to prosecution it was written when Savita was alive but in K to L portion she has been described as died and M to N portion case has been registered under Section 302 IPC and thereafter corrections have been made and at the place of 'deceased' the 'injured' and at the place of 302' IPC 307' IPC have been corrected. The Investigating Officer P.W.-12 has denied these facts but from bare eyes it could be seen from dying declaration Ex. P/10 which also suggests that after the death of Savita, to implicate the present appellant Investigating Officer has fabricated the dying declaration and P.W. 9 Pawan Kumar who was in the influence of his maternal uncle as he was residing with him has been made a false eye witness. Material witness Sushil who was admittedly present at the time of incident has been withheld by the prosecution and no explanation has been given for his non production. 19. One other set of evidence has also bean produced by the prosecution is that Savita has made oral dying declaration on way to the Jhunjhunu Hospital, in the way she narrated the incident to her mother and other relatives. P.W.-4 Banarshidevi mother of the deceased, P.W.-5 Vinod Kumar P.W.-10 Baby P.W.-13 Sushila have stated so in their Court statements but nothing of the nature has been stated in their statements recorded under Section 161 Cr.P.C. and they all have improved from their previous statements. P.W.-3 Hajarilal brother of deceased, has not testified about dying declaration on the way to Hospital. Admittedly these all witnesses are not the eye witnesses of the incident and prosecution has tried to put them to prove oral dying declaration but these witnesses are not reliable witnesses as all these witnesses are having established enmity with the present appellant and they improved their versions. The Court below has erred in placing reliance on the testimony of these witnesses. 20. The Court below has erred in placing reliance on the testimony of these witnesses. 20. One other material fact which goes to the root of the case is that P.W.-2 Natthusingh by whom Savita has been medically examined for the first time has stated that Savita was brought to him by 4-5 persons and they were saying that Savita has taken aldrin believing the same to be a medicine. P.W.-6 Dr. Pratap Singh has also stated that when he examined Savita and prepared the Examination Report, Ex. P/3 persons who brought the injured have stated that she has taken some poisonous substance which clearly suggests that the deceased has taken poison accidentally. As the family was having strained relation with the present appellant, the whole incident has been used to falsely implicate the present appellant. 21. Prosecution has tried to develop a case that enmity between the parties was the motive for the crime but this stand of the prosecution is groundless as no fruitful purpose could be served by the death of the Savita as the dispute was in regard to ancestral property for which Savita's death is inconsequential. 22. The incident has taken place at about 3'o clock in night which also supports the fact that in influence of sleep deceased has taken poison accidentally believing same to be medicine. 23. Dying declaration is not reliable one. Sushil has been withheld by the prosecution. Dying declaration has been taken by the Investigating Officer in suspicious circumstances and other prosecution witnesses have significantly improved their versions from their previous statements. Scene of occurrence and condition of dead body do not support the case of the prosecution about struggle or forcibly Administration of poison. 24. Hence looking from any angle, the evidence adduced is not reliable and prosecution has utterly failed to prove the offences against the present appellant beyond reasonable doubt and hence finding and conclusion recorded against the present appellant is liable to be set aside. 25. In view of above discussion this appeal deserves to succeed and is accordingly allowed. The judgment of conviction and sentence recorded by the learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu in Sessions Case No. 27/2003 (66/2003) dated 31.10.2003 is set aside. 26. 25. In view of above discussion this appeal deserves to succeed and is accordingly allowed. The judgment of conviction and sentence recorded by the learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu in Sessions Case No. 27/2003 (66/2003) dated 31.10.2003 is set aside. 26. Accused appellant Deva Ram S/o. Geega Ram Saini R/o Nagadiyon Ki Dhani, near Makhar Police Station Bagar, District Jhunjhunu is acquitted of the charge for the offences under Sections 302 & 456 IPC. He is in jail for about eleven years. If not required to be detained in connection with any other case, he may be released forthwith. *******