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2014 DIGILAW 1403 (ALL)

State of U. P. v. Hanifa Khursheed

2014-04-30

KALIMULLAH KHAN, RAKESH TIWARI

body2014
JUDGMENT Kalimullah Khan, J. 1. This Government Appeal under Section 378 , Cr.P.C. has been filed by the State of U.P. Against accused Smt. Hanifa Khursheed W/o. Khursheed Kamal R/o. Ghazipur Lodge, Sir Sayeed Naigar, P.S. Civil Lines, District Aligarh against the impugned judgment and order dated 16.12.1981, delivered by the then Sessions Judge, Aligarh in Sessions Trial No. 530 of 1980 under Section 302 , I.P.C., P.S. Civil Lines, District Aligarh, whereby he has acquitted aforesaid accused/respondent. The impugned judgment and order has been challenged on the ground that learned Sessions Judge erred in disbelieving the evidence of Nizam Uddin, P.W. 1, Bhullan, P.W. 2 and Khem Singh, P.W. 3. He further erred in not placing reliance on the dying declaration made by Jamil (deceased) in which he has stated that accused Smt. Hanifa Khursheed had burnt him alive after sprinkling kerosene oil on him. The judgment impugned is based on conjecture and surmises and learned Sessions Judge wrongly held that it was a case of accidental fire which is against the weight of evidence on record and, therefore, the impugned judgment is bad in law which has resulted in miscarriage of justice. 2. According to prosecution case, accused-respondent Smt. Hanifa Khursheed was a lecturer in Abdullah College, Aligarh. She was residing in Ghazipur Lodge on Dodhpur Street in the City of Aligarh during the relevant period. Jamil S/o. Noora aged about 14-15 years was working as her boy servant. At about 12:00 o'Clock (noon) on 4th July, 1979, he was severely burnt in the aforesaid residential accommodation of the accused in an incident of fire. Some Irani students got him admitted in Jawahar Lal Nehru Medical College, Aligarh. Iqbal Ahmad, Causality Record-Keeper of the aforesaid medical college, informed the police of police station Civil Lines at 2:00 p.m. The aforesaid information was entered into G.D. Dated 4.7.1979, vide rapat No. 21 on the same day, accused Smt. Hanifa Khursheed lodged the written report at police station that during her absence, an incident of fire took place in her house in which her property worth Rs. 12,000/- was damaged and Jamil, her boy servant had sustained burn injuries who had already been admitted in the hospital before her arrival at her house. She came to know about the incident when she returned home from duty. 12,000/- was damaged and Jamil, her boy servant had sustained burn injuries who had already been admitted in the hospital before her arrival at her house. She came to know about the incident when she returned home from duty. The aforesaid information of accused Smt. Hanifa Khursheed was registered in the G.D. dated 4.7.1979 at 14:25 hours, vide G.D. rapat No. 22 at police station civil lines, District Aligarh. 3. After the admission of Jamil, information was sent to P.S. Civil Lines for recording his dying declaration which was recorded by Sri. R.K. Sharma, the then S.D.M., Koil on the same evening at 15:50 hours at Jawahar Lal Nehru Medical College which has been proved as Exhibit Ka-15. Jamil died in the next morning on 5.7.1979 at 7:30 a.m. After the information of his death, police converted the case under Section 302 , I.P.C. vide G.D. rapat No. 22 at 1:30 p.m. Exhibit Ka-12 is a true copy thereof. Inquest was conducted and after observing necessary formalities and preparing necessary papers, the dead body was despatched under sealed cover through constable (i) Sarnam Singh, CP No. 1071 and (ii) Mahendra Singh, CP No. 1007 for postmortem examination. Dr. M.U. Khan, P.W. 5 conducted the post-mortem examination at 3:00 p.m. on 5.7.1979 on the body of Jamil, hereinafter called 'deceased'. Following ante-mortem injuries were noticed at his body: (i) Superficial extensive burns present all over the body, chin above face not burnt. (ii) Line of redness and vesication present. (ii) Surgical wound with one stich on left ankle which is surgically dressed. 4. Internal examination disclosed that brain and membraces, right and left lungs were congested. Right side heart was full and left side empty stomach contained two 2 Oz. Semi-digested food. Mucus membranes were normal. In the opinion of Dr. Khan, the death was due to shock resulting from extensive thermal burns described. Post-mortem report is on record. 5. Investigation was started. Sri. S.R. Sahra, S.I., P.W. 4 continued the investigation who did nothing. Investigation was concluded by Sri. Udaivir Singh, S.I., P.W. 6. He visited the spot and interrogated the people but nothing material could be obtained by him. However, he took into police custody the burnt clothes from the house, sealed them and prepared recovery memo Exhibit Ka-4. He prepared the site plan Exhibit Ka-5. Investigation was concluded by Sri. Udaivir Singh, S.I., P.W. 6. He visited the spot and interrogated the people but nothing material could be obtained by him. However, he took into police custody the burnt clothes from the house, sealed them and prepared recovery memo Exhibit Ka-4. He prepared the site plan Exhibit Ka-5. He made his endeavour to contact Irani students who are said to have removed Jamil from the scene of incident to the medical college soon after the incident but his attempts were futile and he could not contact the Irani students namely S.M. Raja and M. Tariq Siddiqui, Sir Sayeed Nagar, P.S. Civil Lines, District Aligarh. This S.I. had prepared the inquest report and connected papers Exhibits Ka-9 to 15. He is said to have interrogated Nizam Uddin, P.W. 1, Bhullan, P.W. 2 and Khem Singh, P.W. 3 in the month of September, 1979 after 2 1/2 months of the incident of fire. After completing investigation, he submitted the charge-sheet Exhibit Ka-16 against the accused. 6. Learned Sessions judge framed charge under Section 302 , I.P.C. against the accused-respondent Smt. Hanifa Khursheed who pleaded not guilty and claimed her trial. 7. In order to prove its case, prosecution examined Nizam Uddin, P.W. 1, Bhullan, P.W. 2 and Khem Singh, P.W. 3, S.R. Sahra, S.I., P.W. 4, Dr. M.U. Khan, P.W. 5, Udaivir Singh, P.W. 6, Constable Sarnam Singh, P.W. 7, Constable Hari Mohan, P.W. 8, Dr. H.C. Arora, P.W. 9 and R.K. Sharma, the then S.D.M., P.W. 10 in support of its case. 8. Accused was examined under Section 313 , Cr.P.C. She challenged the prosecution evidence and attributed her false implication in this case. She stated that soon after completing her studies, she got an employment with the University which became an eyesore to certain persons especially one of her colleagues Smt. Najma Akhtar. The sister and brother-in-law of said Najma Akhtar were already there in the medical college during the relevant days. She suspected that Smt. Najma Akhtar had connived in procuring this false dying declaration at the medical college. She further stated that she was on her duty as usual on the day of the incident. She was in her college when deceased sustained burn injuries at her house. When she returned at 2:00 p.m., she noticed a fire-brigade and a number of people there. She further stated that she was on her duty as usual on the day of the incident. She was in her college when deceased sustained burn injuries at her house. When she returned at 2:00 p.m., she noticed a fire-brigade and a number of people there. She learnt that Jamil had been shifted to medical college. She informed the police about the incident and went to the medical college but she was not permitted to see Jamil there in the medical college. 9. She was called upon to enter into her defence. She examined Dr. Mohd. Tariq Siddiqui, D.W. 1 of her neighbourhood residing in the same Ghazipur Lodge and Miss. Sajida Navi, D.W. 2, a lecturer in Abdullah College. 10. Having heard learned D.G.C. (Criminal) and learned counsel for the accused and after making appraisal of the evidence on record, learned trial court did not find prosecution case proved beyond all reasonable doubt and he accordingly recorded findings of acquittal in favour of the accused vide impugned judgment and order dated 16.12.1981. 11. Feeling aggrieved, this criminal appeal has been filed by the State of U.P. 12. We have heard Sri. D.I. Faridi, learned A.G.A. and Sri. N.I. Jafri, learned counsel for the accused-respondent. Perused the record. 13. Learned A.G.A. has submitted that the impugned judgment is against the weight of evidence on record and it has resulted in miscarriage of justice. He has further contended that there is a dying declaration against the accused respondent, which is uncorroborated by any other evidence, but there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. However, he has conceded that the court must be satisfied that dying declaration is true and voluntary. If the court finds it true and voluntary, then there is no impediment in basing conviction on it without corroboration. He has further conceded that it is the duty of the court to scrutinize the dying declaration carefully and must ensure that dying declaration is not the result of tutoring, prompting or imagination. If the court finds it true and voluntary, then there is no impediment in basing conviction on it without corroboration. He has further conceded that it is the duty of the court to scrutinize the dying declaration carefully and must ensure that dying declaration is not the result of tutoring, prompting or imagination. He submitted that since deceased has made specific accusation against the respondent that it was she, who had set him on fire, therefore, there is nothing to disbelieve the aforesaid dying declaration and the conviction in this case, under the facts and circumstances, is only possible view and the learned trial court has wrongly disbelieved and discarded the evidence of Khem Singh (P.W. 3) and the dying declaration recorded by the Executive Magistrate (P.W. 10). 14. Per contra, Shri. N.I. Zafri, learned counsel for the accused respondent, submitted that witnesses of fact, Nizamuddin (P.W. 1), Bhullan (P.W. 2) and Khem Singh (P.W. 3), are chance witnesses; their presence at the spot is improbable; they are the residents of distant places; they were the bullock-cart men and the place of incident does not fall in their way, therefore, there was no occasion of their attraction towards the scene of incident. Their evidences are contrary to each other. P.Ws. 1 and 2 do not support the dying declaration, whereas P.W. 3 supports the same, but his claim that the hands and feet of the deceased were tied with a rope to the bed is missing in the dying declaration recorded by the Executive Magistrate. Deceased is not said to have made such accusation that he was tied up to the bed before setting him ablaze after pouring or sprinkling kerosene oil upon him. None of these witnesses stated that there was any smell of kerosene either in the room or on the body of the deceased. Undisputedly, they were unknown persons for the people of the locality, therefore, their identity could not be known to the I.O. and still they were contacted by I.O. after 2-1/2 months of the incident; I.O. does not disclose the source of information that these three witnesses are the witnesses of oral dying declaration. The aforesaid link evidence is missing, therefore, the chain of circumstances is incomplete. Apart from it, a number of other links are missing in this case. The aforesaid link evidence is missing, therefore, the chain of circumstances is incomplete. Apart from it, a number of other links are missing in this case. The bed head ticket and the injury report of the deceased have been withheld by the prosecution, therefore, the medicines practiced upon him before recording the dying declaration, are not known to the court, and as to whether or not he was conscious enough having mental alertness at the time of recording the dying declaration is a mystery in the womb of prosecution. No record of the Medical College viz. admission as outdoor patient or indoor patient or his admission in the I.C.U. have been produced by the prosecution. The Irani boys, S.M. Raja and M. Tariq Siddiqui, have also not been examined by I.O. They have not been produced in the court. The claim of P.Ws. 1, 2 and 3 that they found the door locked from outside is belied from their own evidence. P.W. 1 (Nizamuddin) says that the door was locked in the kunda. He pushed the door, hence the door was opened, but kunda was intact. His aforesaid version is contradicted by the evidence of P.W. 2 and P.W. 3, who say that kunda had come out and was not intact. P.W. 1 and P.W. 2 stated to I.O. that all the aforesaid three persons were interrogated simultaneously at a time by I.O., while P.W. 3 says that he was not interrogated with P.Ws. 1 and 2. P.W. 1, Nizamuddi in says that deceased had told him that he was cooking food and thereafter he kept silence and said nothing but P.W. 3 says that he made oral dying declaration before them, but P.W. 1 and P.W. 2 denied such a dying declaration against the respondent. 15. Shri. N.I. Zafri, learned counsel for the respondent, next contended that the appellant (State of U.P.) wants to get the judgment of acquittal reversed on the basis of dying declaration, but the said dying declaration is full of suspicion. It is doubtful on the ground that Executive Magistrate had not taken proper precaution while recording the dying declaration; no question was put to the victim regarding his willingness and voluntariness to give his statement to him. The statement so recorded by him was not read over to the deceased to satisfy the correctness of his statement. It is doubtful on the ground that Executive Magistrate had not taken proper precaution while recording the dying declaration; no question was put to the victim regarding his willingness and voluntariness to give his statement to him. The statement so recorded by him was not read over to the deceased to satisfy the correctness of his statement. As per the prosecution case, the victim was in great pain, having superficial extensive burn injuries. The doctor, who issued the certificate, had not treated the victim. He expressed his ignorance as to what medicines was practiced on him and within all probability morphine injection must have been given to him in a stage of highly hallucination and confusion and in the backdrop, the threat extended by the accused to kill him by burning, which must have been reminded and this might have led him to make incorrect statement of setting him on fire by the accused. No implicit reliance can be placed on the dying declaration, which is fully uncorroborated. No kerosene smell or kerosene container was noticed in the room. He submitted that statement made in the dying declaration is a weak type of evidence as its veracity has not been tested in the cross-examination. The general rule is that the statements of the witnesses are completed only after the cross-examination. The inspection note and the evidence of I.O. prove that it was a terrible fire (bhishan Aag) due to the burning of the clothes and goods of the accused respondent in this accidental fire, she sustained a loss of about 12,000/- in the year 1979, wherein the deceased appears to have sustained burn injuries, which is not kerosene burn injuries. The respondent, who is a lecturer and well educated, cannot be supposed to act in such a foolish manner as alleged by the prosecution. He further submitted that the site plan shows that if the lock at Point-A, which is the main gate, is opened even then P.Ws. 1, 2 and 3 could not reach to the deceased, who was inside the room because at Point-C, the door was closed from inside with a shackle, therefore, the claim of prosecution that deceased had climbed on the rotiondan (skylight) from where he was raising hue and cry is belied. 1, 2 and 3 could not reach to the deceased, who was inside the room because at Point-C, the door was closed from inside with a shackle, therefore, the claim of prosecution that deceased had climbed on the rotiondan (skylight) from where he was raising hue and cry is belied. That door was not locked, at all, from outside as the persons of the locality had stated to I.O. Therefore, the claim of Nizamuddin that he is a witness of oral dying declaration falls to the ground and his evidence is unworthy of credence and the learned trial court has rightly rejected his evidence. Lastly, he submitted that in case of an appeal against acquittal, the appellate court should be slow and cautious in upsetting the judgment impugned unless reasonings given by the trial court are perverse. However, according to him, in this case, there is nothing to intervene and reverse the impugned judgment and order of acquittal. The Government appeal lacks merit and deserves to be dismissed. 16. In the case in hand, there is no direct evidence of the incident. The case rests purely on circumstantial evidence including alleged dying declaration made by the deceased before the Executive Magistrate in presence of Doctor who had certified that the deceased was in a fit state of mental condition and he was able to make declaration as well as the evidence of Khem Singh, P.W. 3 who has deposed that soon after the incident when he along with Bhullan, P.W. 2 and Nizam Uddin, P.W. 1 reached at spot, deceased had stated to them that accused Smt. Hanifa Khursheed after tying his hand and feet sprinkled kerosene oil at him and set him ablaze inside the room and thereafter slipped away from the house after locking the door from outside. However, Bhullan P.W. 2 and Nizam Uddin, P.W. 1 have not supported the prosecution case which distinctly relates to the statements of deceased disclosing the perpetration of accused Hanifa Khursheed in causing the burn injuries to the victim. 17. However, Bhullan P.W. 2 and Nizam Uddin, P.W. 1 have not supported the prosecution case which distinctly relates to the statements of deceased disclosing the perpetration of accused Hanifa Khursheed in causing the burn injuries to the victim. 17. In Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 343 , the Hon'ble Supreme Court observed, "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstance from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused." 18. In Padala Veera v. State of A.P., 1991 SCC (Criminal) 407 : ( AIR 1990 SC 79 ), the Hon'ble Supreme Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 19. In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 SCC (Criminal) 487 : ( AIR 1984 SC 1622 ), it was held by Hon'ble Supreme Court "the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacunae in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established. (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explanable on any other hypothesis except that the accused is guilty'. (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved and; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 20. In State of U.P. v. Ashok Kumar Srivastava, 1992 SCC (Criminal) 241 : ( AIR 1992 SC 840 : 1992 All LJ 1115), it was pointed out by the Hon'ble Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 21. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 21. In Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 3 SCC (Criminal) 512 : ( AIR 2006 SC 1656 ), the Hon'ble Supreme Court while reiterating the settled legal position, observed, "It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence." 22. The aforesaid legal position settled in its earlier judgments by the Hon'ble Supreme Court, has been reiterated in Sattatiya alias Satish Rajanna Kartalla v. State of Maharashtra, ((2008) 1 SCC (Criminal) 733 : AIR 2008 SC 1184 ) and also in case law Krishnan v. State represented by Inspector of Police, 2009 (64) ACC 228 : (AIR 2008 SC (Supp) 2010). 23. The motive in case of circumstantial evidence is an important circumstance. It is also true that it is not necessary for prosecution to allege any motive. However, when motive is suggested, it must be proved by the prosecution because it becomes relevant to enquire whether the Pattern of the crime fits in the motive so in absence of satisfactory proof is liable to cast a grave doubt as to the correctness of prosecution version. This view has been considered in Jumma v. State of U.P., 1992 A.C.R. Allahabad Criminal Ruling 313 by the Division Bench of this Court after following the view of Hon'ble Supreme Court cited in 1975 SCC (Criminal) 145 : ( AIR 1975 SC 573 ), Bishan Das v. State of Punjab and Darbara Singh v. State of Punjab. 24. Similar view has been expressed in 1998 CAR (SC) 55 : ( AIR 1998 SC 249 : 1998 All LJ 82), Omwati v. Mahendra Singh and others. 24. Similar view has been expressed in 1998 CAR (SC) 55 : ( AIR 1998 SC 249 : 1998 All LJ 82), Omwati v. Mahendra Singh and others. It was held therein that no doubt proof of motive is not necessary for conviction, but when prosecution brings forward a motive that should be proved by prosecution because motive is a corroborative circumstance. 25. The Division Bench of this Court held in 2004 (2) Allahabad Criminal Ruling 1276, State of U.P. v. Surendra Singh and another that motive, though no evidence but it satisfies judicial mind about authorship of crime. The Privy Council had held that in an appeal from acquittal the High Court has full power to review the entire evidence upon which the order of acquittal is founded and then to come to its own conclusion. No limitation can be placed on that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon facts, the High Court should and will always give proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The Supreme Court in Sanwat Singh's case ( AIR 1961 SC 715 ) affirmed these principles. In actual application, keeping in consideration these four matters must mean that the High Court should find such reasons which may be termed compelling and substantial reasons or which may be deemed to be clinching and conclusive before it would be justified in upsetting an order of acquittal. It would not be so justified merely because it, after considering the criterion of the Sessions Judge and his views, feels that a different view should be taken for reasons which are not so strong as to be classed into substantial or compelling reasons, which seems to be at par with such reasons against which practically nothing can possibly be said. It has been held that unless the findings of a trial Court are unreasonable and perverse, the High Court need not interfere with the order of acquittal. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court may be summarised as under 1. In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. 2. The High Court has the power to reconsider the whole issue, reappraise the evidence, and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse. 3. Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal. 4. In reversing the finding of acquittal, the High Court had to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court. 5. If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. 6. The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box. 7. The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused. 8. Unless the High Court arrives at definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective. 9. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused. 8. Unless the High Court arrives at definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective. 9. The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 26. The paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial Court, which may not be disturbed in the appeal, is such a view, which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial Court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. The High Court would be justified in setting aside the acquittal when it is based upon surmises, conjectures and assumed contradictions. 27. Recently, the Full Bench of Hon'ble Supreme Court in Prem Singh v. State of Haryana 2013 (3) JIC, 857 SC : (AIR 2013 SC (Cri.) 2194) has discussed the principles in detail considering the powers of High Court in hearing the appeal against the acquittal which is contained in para 5 of the aforesaid judgment which reads as under "5. Having regard to the fact that in the instant case the High Court had thought it proper to reverse the order of acquittal passed by the learned Trial Court, it will be appropriate to notice, though very briefly, the virtually settled position in law with regard to the power of the Appellate Court to reverse an order of acquittal passed by a Trial Court. In a recent decision in Murugesan v. State Through Inspector of Police (2012) 10 SCC 383 : ( AIR 2013 SC 274 ), this Court had the occasion to consider the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure, 1973. The summary of the relevant principles of law set out in para 21 of the judgment may be extracted hereinunder: "21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup v. King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227 (2) is to be found in para 42 of the Report in Chandrappa v. State of Karnataka (2007) 4 SCC 415 : (AIR 2007 SC (Supp) 111). The same may, therefore, be usefully noticed below: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: i. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. ii. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. iii. Various expressions, such as, "substantial and compelling reasons', "good and sufficient grounds', "very strong circumstances', "distorted conclusions', "glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. iv. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. v. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." (Emphasis Supplied) 28. It is in the light of the above principles of law that reasoning and conclusions of the trial court will have to be analyzed by us so as to determine the correctness of the view taken by the learned trial court in the present case. To facilitate the aforesaid exercise, the manner in which the trial court had arrived at its conclusions in the matter may be usefully noticed in the first instance. 29. Learned trial court has disbelieved the prosecution story against accused-respondent and recorded findings of acquittal on the following grounds:- i. That the people of locality, vicinity and neighbourhood did not support the prosecution story during the investigation; ii. That the deceased did not disclose to anyone of the locality that he was set on fire by accused after sprinkling kerosene oil upon him; iii. That there was no kerosene smell either on the body of the deceased or in the rooms of the accommodation (lodge) of the accused; iv. That post-mortem report does not speak that any smell or odour of kerosene oil was noticed by the doctor who conducted the autopsy; v. That no kerosene oil container was found at or near the spot; vi. That the prosecution witnesses Nizam-uddin (P.W.-1), Bhullan (P.W.-2) and Khem Singh (P.W.-3) are got up witnesses of the police. They are the residents of distant places. They are not residents of the vicinity. They are the chance witnesses even as per their own claim who are labour class people; vii. Their presence on the spot was improbable in view of the fact that the lodge in question was not in their way if they go straightway with their cart loaded with soil to put it to the Kothi of Dr. Sami Hamid as stated by them; viii. Their presence on the spot was improbable in view of the fact that the lodge in question was not in their way if they go straightway with their cart loaded with soil to put it to the Kothi of Dr. Sami Hamid as stated by them; viii. That the aforesaid three witnesses P.W.-1, P.W.-2 and P.W.-3 claimed themselves to enter into the premises and took out the deceased from the spot but Nizamuddin (P.W.-1) and Bhullan (P.W.-2) did not support the prosecution story that the deceased had made any accusation against accused Hanifa Khursheed to set him on fire. Both the aforesaid witnesses deposed that the deceased had not stated before them that the accused has set him on fire after sprinkling kerosene oil at him and tying his hands and feet with the bed. Still the claim of Khem Singh (P.W.-3) that deceased made aforesaid accusation against accused does not inspire confidence especially when these three witnesses were interrogated by the Investigating Officer after two and half months. ix. That the link evidences are missing and the chain of circumstances is not complete to fasten the guilt with the head of the accused; x. That the Investigating Officer failed to interrogate Irany boys who are said to have taken the deceased to J.N. Medical College and got him admitted there. They were the best persons who might have thrown some light as to whether deceased was in a position to speak and in fact whether or not he made any disclosure to them, as to whether or not accused Hanifa Khursheed was the author of the injuries sustained by the deceased. They could tell as to whether or not they carried the deceased/injured from the spot to Medical College and whether or not the deceased was admitted in the Medical College dead or alive; xi. That the alleged dying declaration (Exhibit Ka-15) does not pass the test of strict judicial scrutiny, truthfulness and the reliability and that is not free from any effort to prompt the deceased to make such statement and it is not coherent and consistent for reasons more than one. Dying declaration of the deceased (in its translated form in English) reads as under "My name is Jamil, I got burnt at my place of employment. I used to work at the place of Smt. Hanifa, a teacher in Abdullah College. She has roasted me. Dying declaration of the deceased (in its translated form in English) reads as under "My name is Jamil, I got burnt at my place of employment. I used to work at the place of Smt. Hanifa, a teacher in Abdullah College. She has roasted me. Hanifa tied my hands and feet and burnt me. She had sprinkled kerosene oil on me. This happened at about 12 noon. There was no one elseat that time. I was slow worker and she had given threat day before yesterday that she would roast me. Today Hanifa tied my hands with a rope string and burnt me. She lives by the side of Bhaiyaji's Kothi on Marris Road." a) That the aforesaid address of the residents of accused is wrong. Admittedly, she does not reside on that address nor the deceased is said to have received burnt injuries there on the aforesaid address which by itself suggests that at the time of his alleged dying declaration, his mental condition was not normal. (In fact Smt. Hanifa/respondent was residing in Ghazipur lodge, Dodhpur, Sir Sayyed Nagar, P.S.- Civil Lines, Aligarh); b) That the deceased has stated in the aforesaid dying declaration that he was a slow worker and, therefore, accused was not pleased with him. She threatened two days earlier to injure him by fire. If deceased was lazy worker, his employment could have been terminated by accused without inviting any trouble for her. It is common experience that unwilling boy servants are turned out if they fail to satisfy the master; c) That if the accused had extended a threat of setting him on fire two days before the incident, it would have rung the bell of alarm in him and he would not permit the lady to tie his hands and feet; d) That learned trial court observed that he had the advantage of seeing the accused in the dock throughout the trial and noticed that she was a frail woman. It is difficult to believe that a 14-15 years old boy of average physique (as mentioned by Dr. It is difficult to believe that a 14-15 years old boy of average physique (as mentioned by Dr. M.U. Khan, P.W.-5) could be subdued into getting his hands and feet tied up by this woman and the moment the accused would try to sprinkle kerosene oil on him, Jamil (deceased) would let loose hell with his cries and wailing and attract the entire neighbourhood; e) That it does not appear probable that the accused would do all this and set the boy on fire and after locking the room would slip away without putting any gag in the mouth of the victim. No piece of cloth was found in his mouth at any moment of time to stifle cries. Dr. M.U. Khan has noted in the post-mortem examination report (Exhibit Ka-1) that the face of the deceased above chin was not burnt at all; f) That it is said that the deceased in an injured condition was admitted in the medical college at 1:00 p.m. on 4.7.1979. He died at 7:30 a.m. the next day, i.e. on 5.7.1979. If it is so, his injuries must have been examined in the medical college during his lifetime and bedhead-ticket must have been maintained containing the entries of the treatment given to him. Prosecution does not say that he was not medically examined during his lifetime or he was not admitted in the medical college or his bed-head-ticket was not maintained there rather prosecution withheld all the aforesaid material documents, therefore, the only inference that can be drawn is that these documents were unpalatable to the prosecution and, therefore, they were not produced; g) That Modi in his famous treaties Medical Jurisprudence and Toxicology Eighteenth Edition has mentioned at page 182 that "burns caused by kerosene oil are usually very severe and are known from its characteristic odour and the sooty blackening of the parts". No such medical evidence has been tendered, nor is there any mention about these things in the post-mortem report of Dr. M.U. Khan. Kerosene oil must have fallen on the ground also and it is common experience that it leaves very great odour for a sufficiently long time. No such medical evidence has been tendered, nor is there any mention about these things in the post-mortem report of Dr. M.U. Khan. Kerosene oil must have fallen on the ground also and it is common experience that it leaves very great odour for a sufficiently long time. No such thing was detected by the persons who visited the spot, just after the incident or even by the Investigating Officer; h) That if Jamil's hands and feet had been tied up with a rope as alleged by him, the instinct of self-preservation reigns supreme at such moments and Jamil would try to get knots quickly burnt so as to extricate himself for seeking help. Remnants of the rope strings could have also been found in the room. However, none were found by the Investigating Officer; i) That as per the statement of witnesses P.Ws.-1, 2 and 3, Investigating Officer as well as D.W.-1, the residential portion of the accused was on fire and even Fire Brigade have been called to put out the same. A lot of burnt articles were noticed by the Investigating Officer. Some articles were completely burnt and could not be recognised, therefore, it was a foolish approach on the part of the accused to leave the house and her assets exposed to fire while accused could have easily washed her hands clean off Jamil by turning him out of her house as well as employment, rather than indulging in all this and jeopardising her entire life and career as well as property simply for having the sadistic momentary pleasure of roasting the boy. After all, it was not a case of killing for dowry or the roasting of inmates by dacoits for knowing the whereabouts of valuables; j) That the investigation of the case is faulty; k) That it is common experience that terelene and terrycot fabrics (which were usually worn during the days of incident) catch fire very quickly. Even a little carelessness on the part of Jamil while smoking bidi and cigarette or cooking something could have resulted such accidental fire and his getting burnt. Dr. M.U. Khan (P.W.-5) has admitted in his cross-examination that these burn injuries could be caused to Jamil on account of accidental fire; l) That the accused examined Dr. Md. Tariq Siddiqui, who happens to be a neighbour of the accused. His clinic was in a nearby mohalla Dodhpur. Dr. M.U. Khan (P.W.-5) has admitted in his cross-examination that these burn injuries could be caused to Jamil on account of accidental fire; l) That the accused examined Dr. Md. Tariq Siddiqui, who happens to be a neighbour of the accused. His clinic was in a nearby mohalla Dodhpur. He has deposed that when he came home at about 1:30 p.m. for lunch, he saw that a large crowd had collected on the ground floor of the house of the accused. It was learnt that a boy had been burnt. The doctor went upstairs. He saw that the room was open and the boy who gave out his name as Jamil had sustained lot of burn injuries. The adjoining room was aflame and the room in which Jamil was lying was also full of smoke. He and his two companions brought Jamil downstairs and placed him on a cot belonging to Sri. Stanley, who resided on the ground floor. The doctor went to fetch a rickshaw with the idea of taking Jamil to the medical college, but when he returned along with rickshaw, he learnt that the boy had already been shifted by some Irani students to the medical college. The witness has further deposed that Jamil did not disclose to him that anybody had deliberately roasted him. The accused was not at home at that time. There is no compelling reason to disbelieve this witness especially as his statement had been recorded by the Investigating Officer under Section 161 , Cr.P.C.; m) That the testimony of D.W.-1 which is wholly reliable belies the deposition of Khem Singh (P.W.-3) that the deceased had disclosed the complexity of the accused in causing the injury to him; n) That the evidence of Miss Sajida Nabi (D.W.-2), a colleague of the accused, is also reliable who proves the presence of the accused in Abdullah College since 8:30 a.m. to 1:30 p.m. On 4.7.1979; O) That witness D.W.-2 further deposed that the house of the accused in Ghazipur Lodge was about 2 km. away from the Kothi of Bhaiyaji on the Marris Road. The aforesaid evidence of this lady (D.W.-2) is unchallenged which falsifies the part of the dying declaration that the accused lived by the side of Bhaiyaji's Kothi in Marris Road; p) That Dr. away from the Kothi of Bhaiyaji on the Marris Road. The aforesaid evidence of this lady (D.W.-2) is unchallenged which falsifies the part of the dying declaration that the accused lived by the side of Bhaiyaji's Kothi in Marris Road; p) That Dr. Harish Chandra Arora (P.W.-9) who gave the certificate (Exhibit Ka-13) at the time of recording dying declaration has admitted in cross-examination that usually nonnarcotics are given in burn cases to alleviate pain but he did not know what sort of treatment was given to the boy. He is, however, clear on the point that Jamil was in acute pain when the Magistrate had come to record his dying declaration. The doctor has admitted that he had not noted the pulse rate and temperature of the body. Modi has referred at Page Nos. 179-180 that severe pain and marked fluid loss from extensive burns cause shock and produce a feeble pulse, pale and cold skin, hypotension and collapse resulting in death instantaneously or within 24-48 hours. In children, it may lead to stupor and insensibility deepening into coma and death due to primary shock within 48 hours. He has further suggested that in order to avoid suggestion that coma was due to the drug, it is advisable not to administer opium in any form for the alleviation of the pain; q) That the relevant documents after the admission of the boy in the medical college have been suppressed by the prosecution; r) That Sri. R.K. Sharma, Magistrate (P.W.-10) admits that he did not put any question to Jamil (deceased) to verify his mental condition and just felt satisfied with the doctor's certificate; s) The doctor concerned has not even checked the pulse rate and the temperature of the victim before issuing certificate of the fitness of the victim to record his dying declaration. He has admitted in his deposition that he did not inquire as to what medicine was practiced to the victim before his dying declaration and he has admittedly not examined his vitals to ascertain as to whether he is in a fit state of mind to give true statement or not; t) That the wrong location of the house of the accused occurred in the statement of deceased that she lives by the side of Bhaiyaji's Kothi at Merris Road is patently wrong. By itself it is suggestive fact that Jamil was not in a fit state of mind and he was suffering from confusion and hallucination; u) that the admission of the doctor Sri. H.C. Arora (P.W.-9) that at the time of making dying declaration, the deceased was in a severe pain is sufficient to create doubt of mental fitness of the victim; v) That Dr. H.C. Arora (P.W.-9) in his examination-in-chief deposed that he had examined the victim before recording his dying declaration, but when the aforesaid statement was tested on the anvil of cross-examination, he stated that he did not look and note the temperature of Jamil. It belies his evidence that he had examined Jamil before issuing certificate because the pre-requisite of issuing certificate is the examination of pulse rate, temperature and the level of consciousness of the victim which had not been done by the doctor. 30. Now, we have to judge as to whether the view taken by learned trial court in recording a finding of acquittal is not a possible view and the judgment impugned is perverse. To come to a logical conclusion, a fresh appraisal of the evidence on record by us is essential. 31. Three witnesses Nizamuddin (P.W.-1), Bhullan (P.W.-2) and Khem Singh (P.W.-3) have been examined in this case. Prosecution had examined them to establish the fact that when they reached at the residence of the accused on the cry of the deceased, they found the door locked from outside. They pushed the door and got it opened and then they noticed that deceased was lying on the ground in an injured condition. Deceased stated to them that he was a slow worker as a boy servant of accused Hanifa Khursheed, therefore, she was not pleased with his services. Two days prior to the incident, she had threatened to burn him alive and on the day of incident at about 12:00 noon, she tied up his hands and feet with a rope along with the bed in a room, sprinkled kerosene oil and set him on fire and thereafter, she slipped away from the residence after locking the door from outside. On hue and cry raised by the deceased, dozens of the people of locality were attracted there. On hue and cry raised by the deceased, dozens of the people of locality were attracted there. The aforesaid three witnesses Nizamuddin (P.W.-1), Bhullan (P.W.-2) and Khem Singh (P.W.-3) are cartmen who used to put soil from one place to the house of needy persons reached there and all the three witnesses went on the upper storey of the lodge, they got the door pushed and entered into house where injured/deceased boy Jamil stated that his Malkin Hanifa Khursheed has set him on fire. Khem Singh (P.W.-3) has proved the aforesaid fact. But his testimony is contradicted by the evidence of Nizamuddin (P.W.-1) and Bhullan (P.W.-2). Neither Nizamuddin nor Bhullan supported the testimony of Khem Singh that injured Jamil had ever accused Hanifa Khursheed to have set him on fire. They were chance witnesses. They were not the residents of that locality or the vicinity. Their arrival at the scene is quite unnatural and improbable in view of the fact that as per their own statement, if they would have followed the straight route to reach at their destination concerned, i.e. the Kothi of doctor Sami Hamid, Ghazipur Lodge would not have fallen in their way. They claim that the concerned lodge fell on their way because they opted a zig-zag way in reaching their destination. Their aforesaid claim does not inspire confidence. Possibility of their making such a claim to suit the purpose cannot be ruled out. These are the persons who claimed that they brought the injured from upper story to the ground story and thereafter, they left the scene of the incident as some Irany students had taken the boy to the medical college. There is no evidence on record that people of the vicinity gathered there were either pre-acquainted with these three witnesses or these witnesses disclosed their identity with their name, parentage and address to either of the people present there. Still their interrogation by the I.O. under Section 161 , Cr.P.C. after a period of two and half months from the date of incident casts a serious doubt for want of link evidence as to who disclosed their names and address to the I.O. 32. Still their interrogation by the I.O. under Section 161 , Cr.P.C. after a period of two and half months from the date of incident casts a serious doubt for want of link evidence as to who disclosed their names and address to the I.O. 32. Their claim that they were the persons who first broke open the main door and then reached to the deceased is belied by the fact that even after opening the main door, they could not reach to the deceased because another door leading to the room in which deceased was found burnt was closed from inside by shackle at point 'C shown in the site plan. They do not claim that they had broken open the said door or shackle as well. In the C.D. inspection note, the I.O. has mentioned that the said shackle was also found broken. Meaning thereby that these P.Ws.-1, 2 and 3 might have reached to the boy Jamil after the arrival of several other persons including Dr. Mohd. Tariq Siddiqi (D.W.-1) who has said that he along with two others brought the injured on the ground floor and when they entered into the room wherein fire had caught and the goods and Jamil were burnt, the doors were already opened. Hence, the claim of P.W.-3, Khem Singh that he along with P.W.-1 and P.W.-2 were the persons who entered in the room in question first of all and that Jamil made oral dying declaration proves to be false because the aforesaid shackle was broken by some other persons prior to the arrival of P.W. 1, P.W. 2 and P.W. 3. The theory of main door being locked from outside by the accused is not proved. 33. That when the accused was brought on the ground floor, about 80 persons were already collected there before arrival of P.Ws.-1, 2 and 3 as claimed by them but neither of them claims to have opened the door nor they claim that the deceased made any dying declaration or made any accusation against the accused to have set him on fire. 34. For the aforesaid reasons, evidence of P.W. 3, Khem Singh, has rightly been held by trial court to be unworthy of credence. He is wholly unreliable witness. Missing Links 1. 34. For the aforesaid reasons, evidence of P.W. 3, Khem Singh, has rightly been held by trial court to be unworthy of credence. He is wholly unreliable witness. Missing Links 1. The important link missing in this case is as to how the I.O. came to know the name, parentage and address of Nizamuddin, Bhullan and Khem Singh prosecution witnesses. It is not the case that all these three witnesses approached the I.O. to be examined and to acquaint him with the factum of oral dying declaration rather it is the I.O. who went to them to record their statement under Section 161 , Cr.P.C. The question is not only that these witnesses were examined by the I.O. on a highly belated stage, i.e. after two and half months and no explanation whatsoever is coming forward to explain this inordinate delay which creates a grave doubt in the veracity of their evidence, rather the important question is as to what was the source of knowledge of the name, parentage and address of these witnesses to enable the I.O. to interrogate them. Prosecution has not proved this link. Hence, this important link of the chain of circumstances is missing and it cannot be said that the chain of circumstances is complete. 2. Likewise, the Irany students namely S.M. Raza and M. Tariq Siddiqui, residing in Sir Sayyed Nagar, Aligarh were the witnesses who could throw light on the fact as to whether or not the deceased had made any dying declaration before them. They had ample opportunity since beginning to end up to his alleged admission in the medical college with whom the deceased could share his grievances and would have disclosed the name of the accused if at all she was responsible for setting him ablaze. It is the constant case of prosecution that these Irany students removed the injured from the spot to the hospital. P.Ws.-1, 2 and 3 have deposed that Irany students took/carried the deceased to the medical college. Their address is given on the admission form. Prosecution appears to have not proved the aforesaid admission form for the reason best to known to it. Their non-interrogation and non-examination tells heavily against prosecution. The inference is had they been examined, they would not have supported the prosecution case otherwise there is no reason to withhold them. Their address is given on the admission form. Prosecution appears to have not proved the aforesaid admission form for the reason best to known to it. Their non-interrogation and non-examination tells heavily against prosecution. The inference is had they been examined, they would not have supported the prosecution case otherwise there is no reason to withhold them. There appears substance in the contention of learned counsel for accused respondent that probably Mohd. Tariq Siddiqui (one of the alleged Irani boy) is none else other than D.W. 1, who does not support the prosecution case and this possibility cannot be ruled out that probably this is the reason that prosecution did not prove the admission card, which contains his name as well. This is another missing link as to whether deceased was in a fit state of mind during his transit from the spot to the medical college. 3. The third link that in what mental condition deceased was admitted in the hospital could have been ascertained by his bed head ticket and injury report. Prosecution case is that deceased had 100 per cent extensive burn injuries. If this was the position then he would not have been in a position to utter anything at all. The concealment or non-production of injury report and the bed head ticket is again fatal to the prosecution because these were the documents maintained in the medical college which could have disclosed as to which kind of medicine was practiced upon the deceased and what kind of treatment was given to him before recording his dying declaration. As per the evidence of Dr. H.C. Arora (P.W.-9), deceased was in an acute pain and suffering at the time of his dying declaration before the Executed Magistrate. It is not denied by the prosecution that under the facts and circumstances of the case where deceased had received 100 per cent kerosene oil burn injuries and the rooms in which fire was caught was full of smoke, congestion was inevitable. In the post-mortem report, it has been mentioned that minds, memberance, skull, both the lungs of the deceased, gallbladder were congested. Under the scenario of the facts Larynx and Trachea as well as Bronchi must have been congested and existence of smoke particles therein was inevitable. In the post-mortem report, it has been mentioned that minds, memberance, skull, both the lungs of the deceased, gallbladder were congested. Under the scenario of the facts Larynx and Trachea as well as Bronchi must have been congested and existence of smoke particles therein was inevitable. But the doctor conducting the post-mortem has noted the Larynx, Trachea and Bronchi as N.A.D. which is not easily graspable in the facts and circumstances of the case. However, the doctor's evidence is only opinion evidence and nothing more. Court is expert of experts and it does not stand to reason that having 100 per cent kerosene burn injury with acute and unbearable pain deceased was in a fit state of mental alterness to give his dying declaration. It is one thing and issuance of certificate that the deceased was in a fit state of mind to give dying declaration is quite different thing. When the doctor himself admits that he did not examine the blood pressure, the pulse rate and the temperature of the deceased, who was suffering with acute pain then how could he issue certificate that deceased was in a fit state of mind to give dying declaration puts a sign of interrogation on the sanctity of his certificate and trial court appears to have rightly disbelieved the veracity of such a type of certificate issued by such a doctor who without examining the condition of accused, issued a fitness certificate. The Executive Magistrate who has recorded the dying declaration has admitted in clear terms that he did not talk to the victim before recording his dying declaration. Meaning thereby that before the recording of dying declaration he himself had not tried to find out as to whether or not the victim was in a fit state of mind to make dying declaration. The perusal of the dying declaration shows that it was recorded in Devnagari scripts but the Executive Magistrate has appended certificate in English at its bottom that he had reduced it to writing in his own hand. There was hardly any reason for appending such a type of certificate by him in a language other than the script in which he recorded the dying declaration. It further creates doubt on a veracity of such a dying declaration allegedly recorded in his own handwriting. Undoubtedly, Dr. There was hardly any reason for appending such a type of certificate by him in a language other than the script in which he recorded the dying declaration. It further creates doubt on a veracity of such a dying declaration allegedly recorded in his own handwriting. Undoubtedly, Dr. H.C. Arora who issued the certificate had not appended any certificate at the bottom of the dying declaration that the deceased was in a fit state of mind throughout till the end of his declaration. 4. Admittedly, the said dying declaration was not read over to the declarant before putting his thumb impression thereon. Since it was a case of 100% burn, therefore, the ridges of his thumb impression would not have appeared in the said impression and then it cannot be said that as to whose declaration it was. 5. Non-presence of kerosene odour on the body of the deceased or in the rooms in question is further missing link to complete the circumstantial chain. 6. Another important missing link in the circumstantial chain is that there is no evidence on record as to who send the information to call for the Magistrate. 7. Whether the said information was oral or in writing, there is no evidence. If it was written information then that should have been brought on record but there is no such information on record. 8. Who had carried the information from the hospital to the executive Magistrate to record Dying Declaration is also a missing link of this case for want of evidence. 9. At which time the information was sent to the doctor, this link evidence is also missing on record. 10. At which point of time the deceased was admitted in the hospital is also a missing link in the circumstantial chain for want of any documentary evidence to this effect. The admission card is on record but that has not been proved by the prosecution to establish as to who got the patient admitted in the medical college especially when Mohd. Tariq Siddiqui interrogated by I.O. but examined as D.W. 1 does not support the prosecution story. 11. Non-examination of Irani boys under the circumstances, lends support to the defence contention that prosecution has foul played. 12. The alleged information (written) of the admission of deceased in the J.N. Medical College, to police is not on record. 13. Tariq Siddiqui interrogated by I.O. but examined as D.W. 1 does not support the prosecution story. 11. Non-examination of Irani boys under the circumstances, lends support to the defence contention that prosecution has foul played. 12. The alleged information (written) of the admission of deceased in the J.N. Medical College, to police is not on record. 13. There is no documentary evidence on record that deceased was admitted in I.C.U. 35. It has already been discussed that bed head ticket and medical examination report has been withheld by the prosecution for the reason best known to it and, therefore, the finding of learned trial court that these important documents were deliberately withheld by the prosecution because they were disproving the prosecution case that the mental condition of the deceased at the time of his dying declaration was fit. 36. It is settled that a valid and well reasoned judgment of the trial court is seldom set aside unless there is some perversity or it is not based on correct law. 37. From the materials available, there is absolutely no case to presume that the death of the deceased occurred at the hands of the respondent especially, when the dying declaration is shrouded by suspicious circumstances, and contrary to the claim of the prosecution particularly when the deceased was alleged to have 100% burn injuries and was constantly in acute pain and sufferings and is said to have been admitted in I.C.U., although the documentary medical evidence has been suppressed by the prosecution. In such a situation, he could not be expected to make a statement at a stretch without asking any question. Admittedly, the Executive Magistrate did not put any question and recorded his answers. 38. Though, there were number of neighbours, co-tenants in the same premises, the statements of some of them were recorded by the I.O. but none supported the version of the prosecution that deceased has made any oral dying declaration to anybody that accused respondent had set him on fire. The perusal of the case-diary shows that a quite good number of persons of the locality were interrogated by I.O. Their statements are there in the case-diary and none of them even whispered that deceased has made any statement to the effect that Smt. Hanifa Khursheed has tied his hands and feet and set him on fire. Even Dr. Mohd. The perusal of the case-diary shows that a quite good number of persons of the locality were interrogated by I.O. Their statements are there in the case-diary and none of them even whispered that deceased has made any statement to the effect that Smt. Hanifa Khursheed has tied his hands and feet and set him on fire. Even Dr. Mohd. Tariq Siddiqui (D.W. 1) has also been interrogated by I.O. and he did not support the prosecution case so far as it distinctly relates to the accusation allegedly made against the respondent that she put the deceased on fire. But for the reasons best known to the prosecution, the aforesaid doctor was not examined as P.W. He was a very important witness, who claims to have brought the deceased from the premises in question with the assistance of two other persons and had put him on the cot of Shri. Stanley living on the ground floor and he went to fetch out a rickshaw. But when he came back he was told that some Irani students removed the deceased for medical college. However, respondent has examined him as D.W. 1, wherein he has denied the fact that deceased had assigned any role to respondent for setting him on fire. Learned trial court has rightly believed his evidence and given clean-chit to the respondent. There does not appear any drawback in the reasoning given by learned trial court to accept the evidence of aforesaid doctor. None of the persons of the locality, who were interrogated by I.O., has been produced although all of them supported the statement of Dr. Tariq Siddiqi, subsequently, examined as D.W. 1, which are available in the case diary that it was Dr. Tariq Siddiqi, who has brought the deceased on the ground floor. As it has already been stated above that the alleged Irani boys, who took the injured from spot to medical college, have neither been interrogated by I.O. nor they have been examined before the court. They were the best witnesses to disclose as to whether or not the deceased, having 100% burn injuries was unconscious throughout the transit or during and at the time of his admission in the medical college or he had already died on the way. They were the best witnesses to disclose as to whether or not the deceased, having 100% burn injuries was unconscious throughout the transit or during and at the time of his admission in the medical college or he had already died on the way. Not only this, since these Irani boys were there with the injured for a considerable length of time, therefore, probability of the alleged dying declaration, being an outcome of tutoring, prompting or imagination, cannot be ruled out and it cannot be said that dying declaration in question is true and voluntary especially when no certificate to this I effect has been appended by the Executive Magistrate, who has recorded the dying declaration and there is no documentary medical evidence to support that the declarant was in a conscious state of mind except the disputed certificate given by the doctor (P.W. 9), who even had not attended or treated the patient at any moment of time before issuing the said certificate. Doctor, Harish Chandra Arora (P.W. 9), did not claim that he was present throughout with the patient during the course of recording of the dying declaration. This doctor had admitted in his cross-examination that when the temperature of the fever comes to 106 to 107 degree, the mental condition of the patient becomes disturbed still he says that he did not check the temperature of the patient before issuing the certificate. He expressed his ignorance as to what medicines had been given to the patient. He has gone to the extent of saying that he cannot say as to when the patient was admitted. No certificate has been appended by him at the bottom of the dying declaration that during the relevant period of recording his dying declaration, patient was throughout conscious and normal, having mental alertness. Undisputedly, the deceased had received 100% burn injury. His thumbs were also burnt then it is difficult to believe that deceased put his thumb impression on the dying declaration. There is no evidence on record that the alleged dying declaration was read over and explained to the deceased. There is no mention in the dying declaration that it was read over and explained to the deceased. For want of aforesaid evidence and mention in the dying declaration, the court cannot presume that it was read over and explained to him. There is no mention in the dying declaration that it was read over and explained to the deceased. For want of aforesaid evidence and mention in the dying declaration, the court cannot presume that it was read over and explained to him. The Division Bench of Hon'ble Supreme Court in Shaikh Bakshu and others v. State of Maharashtra (2008) SC Cri. R 574 : (2007 AIR SCW 4120) held that the view of the trial court as well as of the High Court that even though it is not mentioned in the dying declaration that it was read over and explained to the deceased, it has to be presumed that it was read over and explained, is clearly unacceptable view. There is no mention of outdoor ticket on postmortem report. The treatment-sheet of the burn injuries has also not been produced. The admit card has not been proved. The medical record of the condition of patient till her death was withheld by the prosecution. 39. Under the aforesaid facts and circumstances of the case, learned trial court has rightly discarded the implicit reliance on the alleged dying declaration. 40. Learned counsel for the respondent has relied on case law Surindra Kumar v. State of Haryana, (2012) 1 SCC (Criminal) 230 : (AIR 2012 SC (Cri.) 276). The case in hand is squarely covered by the aforesaid case law, wherein the Hon'ble Supreme Court has held in para 28 of its judgment, which reads as under "28. Though there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal." 41. As per the dying declaration, the deceased was not pleased with the behavior of the respondent. It is said that respondent was not providing him food and was not happy with his services. When, she used to go outside the house, she took the deceased (servant) with her or after keeping him inside the house, she used to lock the door from outside. Therefore, the possibility of nurturing grudge by deceased against respondent (Malkin) cannot be ruled out and it might have otherwise persuaded him to falsely implicate the lady to make her life miserable when he was leaving for abode, if at all, he had made any dying declaration as such. We cannot presume that if the lady respondent was not satisfied with the services of the deceased then within all human probability, she would prefer to burn him alive instead of terminating his services, therefore, the motive alleged against her does not fit in the pattern of the prosecution case. Her conduct is not consistent with the hypothesis of her motive as held in the case of Meera v. State of Rajasthan (2005) Supreme Court Criminal Rulings ( AIR 2004 SC 1879 ). No such presumption u/s. 113-A of Indian Evidence Act is available to the court to hold the respondent guilty, under the charge u/s. 302, IPC. In absence of such presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidence is not such, which point out only to the guilt of the accused. We are, therefore, of the opinion that it is a fit case where the applicant is entitled to the benefit of doubt and learned trial court has rightly extended her the benefit of doubt by recording a finding of her acquittal. 42. We are, therefore, of the opinion that it is a fit case where the applicant is entitled to the benefit of doubt and learned trial court has rightly extended her the benefit of doubt by recording a finding of her acquittal. 42. The aforesaid view is fully supported by the Hon'ble Supreme Court held in P. Mani v. State of Tamil Nadu (2006) SCCrR 487 : ( AIR 2006 SC 1319 ), relied on by learned counsel for the respondent. Para 14 of this judgment reads as under "14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the appellant has been charged under Section 302 of Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In the absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused." 43. Viewed from the angle of the aforesaid factual and legal position of the case, the findings of acquittal of accused Smt. Hanifa Khursheed recorded by the learned trial court cannot be said to be a "not possible" view. 44. Viewed from the angle of the aforesaid factual and legal position of the case, the findings of acquittal of accused Smt. Hanifa Khursheed recorded by the learned trial court cannot be said to be a "not possible" view. 44. The impugned judgment and order dated 16.12.1981, is neither perverse nor against the weight of evidence on record. The government appeal lacks merit, and therefore, it is dismissed.