JUDGMENT 1. - This appeal is preferred to challenge the judgment and order dated 7.2.2005 passed by learned Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No.40/2004 convicting accused appellant Smt. Jenab for the offence punishable under Section 302 I.P.C. and the accused Mohd. Ismile for the offence punishable under Section 302/34 I.P.C. Both the accused have been sentenced to undergo life term imprisonment with a fine of Rs. 2000/- each and further to undergo three months' rigorous imprisonment in the event of default in payment of fine. 2. The facts relevant for adjudication of this appeal are that as per document (Exh.P-12A), a telephonic information was received at 11:50 am at Police Station, Nagaur about admission of Smt. Shahzad at Government Hospital in burnt condition, thus, the same was entered in 'rojnamcha' and the police-party proceeded towards hospital. 3. Shri Shanti Lal (PW-8) Sub-Inspector, on arriving to hospital recorded statement of Smt. Shahzad, that is available on record as Exh.P-13 and as per that, Smt. Sahjad had some quarrel with her husband at about 11:30 pm on 15.8.2004, her husband Mohd. Ismile being desirous to send her to her parental house. Mohd. Ismile under influence of Smt. Jenab, grand maternal mother-in-law of Smt. Sahjad, gave beating to Shahzad. Jenab poured kerosene on Sahjad and ablazed her. At that time, Mohd. Ismile was not in room as he went for urination. He came in room after five minutes and made an effort to save her by pouring water. No information of the incident was given and in morning, father-in-law and mother-inlaw of Sahjad on knowing about the incident called her parents, who took her to hospital. Smt. Jenab was annoyed with Shahzad for the reason that Mohd. Ismile used to give her money. There was no issue with regard to dowry. 4. After getting this statement recorded, a written report (Exh.P-5) was also given by Shri Mohd. Shaffi (father of Smt. Shahzad) and as per that on 3.1.2003, Shahzad entered into wedlock with Mohd. Ismile and was having a girl child of about ten months. The grand maternal mother of Mohd. Ismile Smt. Jenab was also residing with Shahzad and Mohd. Ismile. On 16.8.2004 at about 8:00 am Abdul Kareem and his wife Rabia proceeded for the house of Shahzad and Mohd. Shaffi also went there with his wife. At the house of Mohd. Ismile and was having a girl child of about ten months. The grand maternal mother of Mohd. Ismile Smt. Jenab was also residing with Shahzad and Mohd. Ismile. On 16.8.2004 at about 8:00 am Abdul Kareem and his wife Rabia proceeded for the house of Shahzad and Mohd. Shaffi also went there with his wife. At the house of Mohd. Ismile Shahzad was lying in a room in burnt condition. On asking about the incident, Shahzad started weeping. She was then taken to hospital. She stated that she had a quarrel with her husband in night at about 11:00 pm due to certain tutoring by Smt. Jenab. Her husband Mohd. Ismile then went out and Smt. Jenab burnt his daughter by pouring kerosene. On the basis of this written report (Exh.P-5), a criminal case was registered and the investigation commenced for offence punishable under Section 307 I.P.C. 5. Looking to serious condition of Smt. Shahzad, she was referred to Mahatma Gandhi Hospital, Jodhpur for further treatment, where she died on 25.8.2004. Her corpus was subjected to autopsy and as per its report (Exh.P-16), the cause of death was septicaemic shock due to burns. The burns were found ante-mortem and were sufficient to cause death in ordinary course of nature. 6. After death of Smt. Shahzad, the Investigating Agency made investigation for the offence punishable under Section 302 I.P.C. against Smt. Jenab and under Section 302/34 I.P.C. against Mohd. Ismile. After completion of investigation, a police report was filed and after providing an opportunity of hearing, charge was framed against Smt. Jenab for commission of offence punishable under Section 302 I.P.C. and for commission of offence punishable under Section 302/34 I.P.C. against accused Mohd. Shaffi. On denial of the same, the trial commenced as desired. 7. The prosecution supported its case by getting testimony of 12 witnesses examined and by exhibiting several documents. An opportunity was also given to the accused persons to explain adverse and incriminating circumstance available in prosecution evidence against them. The accused persons termed the entire evidence false and pleaded their innocence. Accused Mohd. Ismile stated that in the night of 15.8.2004, he and his wife Shahzad were sleeping on roof-top of the house. He came down with his daughter, who was weeping and at that time Shahzad went to get milk for their daughter. While warming milk, she caught fire and received burns. Accused Mohd. Ismile stated that in the night of 15.8.2004, he and his wife Shahzad were sleeping on roof-top of the house. He came down with his daughter, who was weeping and at that time Shahzad went to get milk for their daughter. While warming milk, she caught fire and received burns. She was taken to hospital in morning at about 8:00 am. He remained at the hospital and also took Shahzad to Jodhpur being referred for further treatment. He also applied to have ambulance to carry Smt. Shahzad at Jodhpur Hospital. He remained at Jodhpur Hospital during the course of treatment and also participated in cremation of Shahzad. He was arrested on 27.8.2004. His grand maternal mother Smt. Jenab was not residing with him. 8. Smt. Jenab while giving explanation as per provisions of Section 313 Cr. P.C., stated that she was not residing with Mohd. Ismile, but came to his house in the night on which the incident took place. On that day, Mohd. Ismile was standing out carrying his daughter, who was weeping. She heard screams of Shahzad, who got burnt while warming milk. 9. In defence, statements of DW-1 Abdul Kareem and DW-2 Dr. Mohd. Aslam were recorded and certain documents were exhibited, including discharge-ticket (Exh.D/5), discharging Smt. Shahzad from Government Hospital, Nagaur for getting further treatment at Jodhpur. 10. The learned trial court after examining the evidence available on record and considering the arguments advanced by learned Public Prosecutor and counsel for defence, held the accused appellants guilty for the charges levelled, accordingly, recorded their conviction. 11. In appeal the argument advanced by learned counsel for the appellants is that the conviction is solely based on dying declaration (Exh.P-13), said to be made before the Sub-Inspector Shri Shanti Lal (PW-8), but that is not trustworthy on several counts. According to learned counsel the incident took place in the night of 15.8.2004., Smt. Shahzad was admitted at hospital on 16.8.2004 at 10:05 am and her statement was reduced in writing by Sub- Inspector Shri Shanti Lal (PW-8) at 12:05 pm, though as per the discharge ticket (Exh.D/5), Smt. Shahzad was discharged at 11:45 am. It is also submitted that FIR was lodged at 1:15 pm on 16.8.2004, but the dying declaration (Exh.P-13) was not sent to Police Station alongwith the written report (Exh.P-5), that creates a huge doubt about its existence at the relevant time. It is also submitted that FIR was lodged at 1:15 pm on 16.8.2004, but the dying declaration (Exh.P-13) was not sent to Police Station alongwith the written report (Exh.P-5), that creates a huge doubt about its existence at the relevant time. Much emphasis is given by learned counsel that looking to all the circumstances aforesaid, necessary corroboration should have been their with regard to the facts averred in document (Exh.P13), that is conspicuously absent in the present case. An argument is also advanced that the incident took place in night of 15.8.2004 and Smt. Shahzad died on 25.8.2004 at Jodhpur, thus, in the intervening period sufficient time was available with the Investigating Agency to get the dying declaration of Smt. Shahzad recorded by a competent Magistrate, but that was not done intentionally just to implicate the accused appellants falsely in the case in-question. It is also urged that the dying declaration was not recorded as per the procedure given under Rule 6.22 of the Rajasthan Police Rules, 1965.12-13. While opposing the appeal, learned Public Prosecutor submits that the deceased Smt. Shahzad on 16.8.2004 itself stated true version of facts before Shri Shanti Lal, Sub-Inspector after having proper certification from treating doctor. No reason, thus, exists to disbelieve the same, as such, the conviction recorded deserves affirmance.14. The conviction of accused persons is solely based on dying declaration (Exh.P-13), said to be made by Smt. Shahzad before the Sub-Inspector Shri Shanti Lal (PW-8). Before coming to the factual aspect of the matter, it shall be appropriate to mention that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the accused had no opportunity to testify veracity of the statement by cross-examination. But once the court come to the conclusion that the dying declaration was truthful version as to the circumstances of the death and culprit of the crime, there is no need of further corroboration. A corroboration of dying declaration shall be necessary if that suffers from infirmity. In the same case, it was also held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction, unless it is corroborated. A corroboration of dying declaration shall be necessary if that suffers from infirmity. In the same case, it was also held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction, unless it is corroborated. Each case is to be determined on its own facts keeping in view the circumstances in which the dying declaration is made. Hon'ble Supreme Court in Atbir v. Government of N.C.T. of Delhi, reported in (2010) 9 SCC 1 summed up the factors governing the evidence relating to dying declarations under:- 22. The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) 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. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration." 15. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration." 15. We are required to determine strength of the evidence relating to dying declaration in the instant matter by applying the law laid down by the Apex Court as noticed above.16. In the case in hand, the following facts are admitted:- - The incident of burn took place in the night of 15.8.2004. - Even as per the prosecution, accused Mohd. Ismile was not present at the spot of occurrence, when Smt. Shahzad was ablazed. - Accused Mohd. Ismile on reaching at the place of incident poured water on Smt. Shahzad and made an attempt to save her. - Smt. Shahzad was taken to hospital in the morning of 16.8.2004 and was admitted for treatment at 10:05 am. - A discharge certificate was issued by Government Hospital, Nagaur at 11:45 am, discharging Smt. Shahzad for further treatment at Mahatma Gandhi Government Hospital, Jodhpur. - A written report (Exh.P-5) was submitted at Police Station, Nagaur by Shri Mohd. Shaffi about the incident at 1:05 am on 16.8.2004, on basis of which, a formal FIR was registered. - Alongwith document Exh.P-5, document Exh.P-13 was not sent, as there is no reference of the same in the official notings made under the document (Exh.P-5) and further in the formal FIR. - Smt. Shahzad remained under treatment at Mahatma Gandhi Hospital, Jodhpur uptil her death on 25.8.2004. In the intervening period, no effort was made by the Investigating Agency to get recorded dying declaration of Smt. Shahzad by a Magistrate. - The accused Smt. Jenab was arrested on 19.8.2004 and accused Mohd. Ismile was arrested on 27.8.2004. 17. The facts stated above clearly indicates that even upto 27.8.2004, the Investigating Agency, did not found any role of accused Mohd. Ismile in the crime in-question. He was arrested only after the death of Smt. Shahzad. It is also the position admitted that no specific participation of accused is shown in the crime in question. Accused Mohd. 17. The facts stated above clearly indicates that even upto 27.8.2004, the Investigating Agency, did not found any role of accused Mohd. Ismile in the crime in-question. He was arrested only after the death of Smt. Shahzad. It is also the position admitted that no specific participation of accused is shown in the crime in question. Accused Mohd. Ismile for the first time was connected with crime in furtherance of 'common intention' and for that purpose reliance is placed on the quarrel said to have taken place with the deceased in the night of 15.8.2004.18. It is sell settled that a heavy burden lies on prosecution to prove that actual participation of more than one person for commission of a criminal act was done in furtherance of common intention. Normally, it is difficult to have direct proof of common intention and that can only be inferred from the circumstances appearing in the settled facts. The common intention may be prearranged by pre-meeting of minds and that may also be developed at the spur of moment. It is always required to be kept in mind that mere proved participation of the accused in crime is not sufficient to arrive at a conclusion of having common intention, but the need is to examine common intent shared by the participants of the crime through adequate appreciation of evidence.19. In the case in hand, the sole evidence available on record in this regard is the document Exh.P-13, which is termed as dying declaration given by Smt. Shahzad before Shri Shanti Lal, Sub- Inspector. In this document, a specific statement is made that at the time of putting Smt. Shahzad ablaze, Mohd. Ismile was not present. It is further stated that on arriving at the place of incident this accused made an effort to save Smt. Shahzad by pouring water on her. From reading of this document, it is apparent that even as per the prosecution, actual participation of this accused in the crime in question was not there. The document nowhere indicates any common intention shared by this accused in burning Smt. Shahzad. On the contrary, his effort to save Smt. Shahzad is accepted. This accused uptil his arrest on 27.8.2004, was also not under the clouds of suspicion, thus, he was permitted to remain with Smt. Shahzad till her death. The document nowhere indicates any common intention shared by this accused in burning Smt. Shahzad. On the contrary, his effort to save Smt. Shahzad is accepted. This accused uptil his arrest on 27.8.2004, was also not under the clouds of suspicion, thus, he was permitted to remain with Smt. Shahzad till her death. If Smt. Shahzad or even per parents would have any doubt about conduct and role of this accused in commission of crime, then he would have not been permitted to stay nearby. No other material is also available to infer common intention of Mohd. Ismile in killing of Shahzad. Instant one is a case of no evidence, at least, to arrive at the conclusion that accused Mohd. Ismile was sharing common intention with Smt. Jenab to kill Smt. Shahzad. His conviction, therefore, under Section 302/34 I.P.C. is absolutely ill-founded.20. So far as other accused Smt. Jenab is concerned, the document (Exh.P-13) i.e. dying declaration said be recorded by Shri Shanti Lal, Sub-Inspector requires minute consideration. As already stated, the incident took place in the night of 15.8.2004 and Smt. Shahzad was admitted to hospital on 16.8.2004 at 10:05 am. Shri Shanti Lal, Sub-Inspector (PW-8) recorded statement of Smt. Shahzad in presence of Dr. Deepak at 12:05 am. Prior to it, Smt. Shahzad was under treatment at hospital and she was brought to hospital by Shri Mohd. Shaffi, her father. Shri Mohd. Shaffi submitted a written report at 1:05 pm at Police Station, Nagaur, i.e. subsequent to recording of the statement as per Exh.P-13. We fail to understand as to why the statement recorded at 12:05 pm was not attached with the written report (Exh.P-5) and the FIR registered on the basis of that. In fact, the first narration of facts was only as per document Exh.P-13, and not as given by Mohd. Shaffi under Exh.P-5. An important aspect of the matter is that Smt. Shahzad was discharged from Government Hospital, Nagaur at 11:45 am and her statement was taken at that very hospital subsequent thereto at 12:05 am. The statement so taken was not in presence of two or more reliable witnesses unconnected with the police department as required under Rule 6.22 of the Rajasthan Police Rules. True it is, that Dr. Deepak was present there but the Investigating Agency would have availed presence of one more independent person there. The statement so taken was not in presence of two or more reliable witnesses unconnected with the police department as required under Rule 6.22 of the Rajasthan Police Rules. True it is, that Dr. Deepak was present there but the Investigating Agency would have availed presence of one more independent person there. Beside the above, we also fail to understand that why the Investigating Agency did not choose to get the dying declaration of Smt. Shahzad recorded before a Magistrate as required uptil 25.8.2004. A very unique feature of the case is that the details of the incident are mentioned in document (Exh.P-13) but such details are not given in the document (Exh.P-5) i.e. the written report given by Shri Mohd. Shaffi. Smt. Shahzad must have mentioned all these details to her father also, who not only brought her to the hospital but also remained with her at Government Hospital, Nagaur. The totality of circumstances create a reasonable doubt about the reliability of document (Exh.P-13) in absence of adequate corroboration. The benefit of doubt deserves to be extended to the accused.21. Accordingly, this appeal deserves acceptance, hence is accepted. The judgment impugned dated 7.2.2005 passed by learned Additional Sessions Judge (Fast Track), Nagaur recording conviction of accused Smt. Jenab for the offence punishable under Section 302 I.P.C. and of accused Mohd. Ismile for the offence punishable under Section 302/34 I.P.C. is set aside. The sentence awarded to the accused persons is also set aside. The accused are acquitted from the charges levelled against them. Let the accused Smt. Jenab be released from State custody, if not, required in any other case. The accused Mohd. Ismile is already availing suspension of sentence, thus, the bail-bonds executed by him are hereby discharged.Appeal allowed. *******