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2016 DIGILAW 2123 (ALL)

RAJESH SHARMA v. STATE OF U. P.

2016-05-31

PRATYUSH KUMAR, VIKRAM NATH

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JUDGMENT : Hon'ble Vikram Nath, J. Hon'ble Pratyush Kumar, J. These two appeals, filed on behalf of the accused-appellants under Section 374(2) Cr.P.C., are directed against the judgment and orders dated 12.10.2011 passed by Sri A.K. Ganesh, Additional Sessions Judge, Court No.7, Mathura in Sessions Trial No. 510 of 2008 (State Vs. Rajesh Sharma and another) and Sessions Trial No. 888 of 2008 [State Vs. Sonu @ Mukesh], whereby the appellants were convicted and punished as under: In Criminal Appeal No. 6133 of 2011, the appellants Rajesh Sharma son of Chaturbhuj Sharma and Shiv Kumar son of Rajesh Sharma have been convicted and sentenced as under: U/s 302/34 IPC Life Imprisonment with fine of Rs.15,000/- each. In default of payment of fine 6 months RI each. In Criminal Appeal No. 6322 of 2011, the appellant Sonu @ Mukesh son of Hari Bahu has been convicted and sentenced as under: U/s 302/34 IPC Life Imprisonment with fine of Rs.15,000/- each. In default of payment of fine 6 months RI each. Since both the appeals arise out of the same judgment and orders dated 12.10.2011 passed in Sessions Trial No. 510 of 2008 (State Vs. Rajesh Sharma and another) and Sessions Trial No. 888 of 2008 [State Vs. Sonu @ Mukesh], they have been heard together and decided by a common order. Facts giving rise to the present appeals may be summarized as under: That on 01.05.2008 at 11.30 AM, Pawan Sharma gave a written report at outpost Krishna Nagar police station Kotwali Mathura stating therein that on that day his father Munna Lal Sharma had left the house in the morning to visit Krishna Janam Bhoomi for worshiping, from there he proceeded to Bhuteshwar on the way in front of Shriji Baba Ashram, he was intercepted by Rajesh Sharma and his two sons Shiv Kumar and Punit, those three came on motorcycle and at about 10.00 AM, forced his father to sit on the motorcycle and took him to their house. Near their house they poured kerosene oil on the head of his father and burnt him, whole body of his father was burnt, about which he received information on mobile, thereupon he along with his brother Varun Sharma and Arun Sharma reached Agrasen Nagar and saw their father was tossing around in pain on the road. Near their house they poured kerosene oil on the head of his father and burnt him, whole body of his father was burnt, about which he received information on mobile, thereupon he along with his brother Varun Sharma and Arun Sharma reached Agrasen Nagar and saw their father was tossing around in pain on the road. They took him to the District Hospital, on enquiry his father told him that he was forcibly taken by Rajesh Sharma (father-in-law of Varun Sharma) and his two sons and near their house he was burnt with the help of kerosene oil. On this check FIR was scribed, Case Crime No. 288 of 2008, under Section 307 IPC was registered and investigation was entrusted to Sub Inspector Sunil Kumar Sharma, who immediately recorded the statement of scribe of check FIR and the first informant, he also recorded the statement of injured Munna Lal Sharma, inspected the spot, took into his possession burnt clothes of Munna Lal Sharma. He started searching for the accused persons, thereafter investigation was transferred to Inspector Kotwali Sri C.L. Sharma, who conducted the further investigation and found the involvement of Sonu @ Mukesh in the crime also. During treatment injured Munna Lal Sharma died at Agra, after completion of investigation charge-sheet against three named accused was submitted, thereafter separate charge-sheet against Sonu @ Mukesh was submitted. The case of Rajesh Sharma, Shiv Kumar and Punit was committed to the Court of Session on 01.07.2008 and case of Sonu @ Mukesh was committed to Court of Session on 23.10.2010. The case of Punit @ Pramendra was separated on 7th October, 2008 for enquiring about his juvenility to the Juvenile Justice Board, Mathura. The present appellants stood for trial before the Court of Session, whereby they were charged under Sections 302/34 IPC, they denied the charge and claimed to be tried. In order to prove the charges on behalf of the prosecution documentary evidence was filed and in the oral evidence 14 witnesses were examined. Thereafter statements of the appellants were recorded under section 313 of the Code of Criminal Procedure. In the defence two witnesses were examined. After conclusion of the trial, counsel for both the parties were heard and by the impugned judgment the appellants were convicted and sentenced as above. Thereafter statements of the appellants were recorded under section 313 of the Code of Criminal Procedure. In the defence two witnesses were examined. After conclusion of the trial, counsel for both the parties were heard and by the impugned judgment the appellants were convicted and sentenced as above. In the opinion of the trial court there was motive for commission of the crime and there was dying declaration made by the deceased, it was found to be trustworthy. Heard Sri Rajul Bhargava, learned Senior Advocate, assisted by Sri Chandra Kumar Singh, Advocate, appearing for the appellants Rajesh Sharma and Shiv Kumar, Sri Tripathi B.G. Bhai, learned counsel for the appellant Sonu @ Mukesh, Sri Saghir Ahmad, learned Additional Government Advocate, appearing for the State-respondent and Sri K.P. Pandey, Advocate, appearing for the complainant Pawan and perused the record. On behalf of the appellants it has been contended that the learned trial Judge has not appreciated the evidence in proper perspective. There was no eye witness account and only on the basis of dying declaration appellants have been convicted. Sri Rajul Bhargava, learned Senior Advocate, assisted by Sri Chandra Kumar Singh, learned counsel appearing for the appellants has submitted that in the present case there are three dying declarations, first is oral as claimed in the FIR, second is the statement allegedly recorded by the Investigating Officer and 3rd is the dying declaration recorded by the Magistrate at Agra. He further submits that none of the dying declaration is above board, in the first two dying declarations the name of Sonu @ Mukesh does not find place, in the 3rd dying declaration his name was added, all the dying declarations were fabricated on the behest of first informant and Varun P.W.2, who are sons-in-law of appellant Rajesh Sharma and against both of them litigations are pending between the daughters of appellant Rajesh Sharma and sisters of other two appellants. He attacked against the credibility of dying declaration recorded by the Magistrate on the ground that injured Munna Lal Sharma was not mentally fit to give correct account of the occurrence, on account of pressure of his sons he made the statement. Learned counsel for the appellants further submits that Munna Lal Sharma sustained burn injuries accidentally, taking advantage of the alleged incident these two brothers (sons of the deceased) have manufactured a false case against the appellants. Learned counsel for the appellants further submits that Munna Lal Sharma sustained burn injuries accidentally, taking advantage of the alleged incident these two brothers (sons of the deceased) have manufactured a false case against the appellants. The second ground raised in support of the appeals is that the investigation was not fairly conducted and Investigating Officer in collusion with the first informant due to enmity with the appellants chargesheeted them. In support of the second ground Sri Bhargava submits that FIR was anti timed, statements of the injured alleged to be recorded by the Investigating Officer is fabricated one. On behalf of the State-respondent these arguments have been repelled and it has been submitted that dying declaration recorded by the Magistrate has been found to be true by the learned trial Judge. He recorded findings after taking into consideration the facts and circumstances of the case and law about dying declarations, thus, the findings are well substantiated from the record, they need no interference and appeals are without substance. Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. In this regard, we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below: "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." Before entering into the arguments advanced on behalf of the respective parties, we would like to place on record substance of the prosecution evidence and also of the defence. The substance may be noticed as under: Pawan Sharma PW.1 P.W.1 is the first informant and son of the deceased. He has fully supported the facts mentioned in the first information report with the addition that when he asked his father he was also naming Sonu @ Mukesh incoherently. Sonu @ Mukesh is his brother-in-law, he has proved written report Ext. Ka-1 and further stated that two daughters of appellant Rajesh were married to his younger brothers Arun and Varun, sometime after the marriage these girls were planning to live separately, when his brothers did not succumb to their pressure, they were falsely prosecuted under Section 498-A IPC, his wife and these girls are living in their Mayke, they had got themselves bailed out in the criminal cases. His father used to do pairvi in those cases, on account of this enmity the appellants murdered his father. According to him, Investigating Officer recorded statement of his father at Mathura and his father named all the four accused persons, according to him, burnt clothes of his father were taken into possession by the Investigating. Varun Sharma P.W.2 P.W.2 has stated that Parul Sharma and Dolly, both daughters of Rajesh Sharma were married to him and Varun. They are living in their Mayke, they have falsely implicated them in false case of dowry, thereafter he reiterated the facts stated in the FIR. Varun Sharma P.W.2 P.W.2 has stated that Parul Sharma and Dolly, both daughters of Rajesh Sharma were married to him and Varun. They are living in their Mayke, they have falsely implicated them in false case of dowry, thereafter he reiterated the facts stated in the FIR. According to him, his father had died on 03.06.2008 (03.05.2008) at Siddhi Vinayak Nursing Home, earlier he was treated at S.N. Medical College, Agra. He has proved Supurdagi of dead body Ext. Ka-2. Constable Saudan Singh P.W.3 P.W.3 is the scribe of the check FIR, he has proved the check FIR Ext. Ka-3, copy of the report of the general diary Ext. Ka-4. Inspector P.L. Sharma P.W.4 P.W.3 is the third Investigating Officer, he gave details of steps taken in the course of investigation, he has proved charge-sheet submitted against Rajesh Sharma, Shiv Kumar and Punit, Ext. Ka-5. Dr. Surendra Pathwar P.W.5 P.W.5 is the Doctor, who on 03.05.2008 at 2.00 PM performed the autopsy on the dead body of the deceased Munna Lal Sharma, who had died on 03.05.2008 at 3.00 AM at Siddhi Vinayak Nursing Home. According to him, there were superficial to deep burns on whole of the body excluding head and face, most part of both arms, perineum region and sole and both feet. According to him, during internal examination he found brain and its membrane and lungs were congested. In the small intestine he found semi digested food and the large intestine was filled with gases and faecal matter. He has proved postmortem report Ext. Ka-6. In his opinion cause of death was shock as a result of ante mortem burns. Constable Suresh Kumar P.W.6 P.W.6 is the scribe of reporting police outpost Krishna Nagar, he has altered case crime no. 288 of 2008 under Section 307 IPC into 302 IPC, he has proved copy of the report of the general diary Ext. Ka-7. Dr. R.L. Sharma P.W.7 P.W.7 was posted at the relevant time as Chief Medical Officer, Emergency Department of S.N. Medical College, Agra on 01.05.2008. He has deposed that at 1.30 PM Munna Lal Sharma aged 70 years was brought by Raj Kumar his son, the patient had 94% burns, his condition was very low, he has proved the entries in the original register and filed the certified copy thereof Ext. Ka.8. He has deposed that at 1.30 PM Munna Lal Sharma aged 70 years was brought by Raj Kumar his son, the patient had 94% burns, his condition was very low, he has proved the entries in the original register and filed the certified copy thereof Ext. Ka.8. During examination he has stated that statement of injured Munna Lal Sharma was recorded by the Executive Magistrate on that day at 5.30 PM, the injured was fit for giving statement, his condition remained stable, during the statement he has proved certificate Ext. Ka-9. Sub Inspector Padm Singh P.W.8 P.W.8 is the Police Officer, who conducted the inquest proceedings on 03.05.2008, he has proved inquest report and other accompanying papers with the dead body Ext. Ka-10 to Ka-14. Constable Satya Ram P.W.9 P.W.9 is the bearer of the dead body from Siddhi Vinayak Hospital, Hariparwat, Agra to Mortuary. Sub Inspector Guru Prasad P.W.10. P.W.10 was the second Investigating Officer, he had arrested Rajesh Sharma, Shiv Kumar and Punit. Mr. Achche Lal Singh Yadav P.W.11. P.W.11 was the Additional City Magistrate-II, Agra on 01.05.2008, he has proved dying declaration Ext. Ka-9, according to him, after obtaining fitness certificate from the Doctor, he recorded the statement of the injured Munna Lal Sharma. Inspector D.N. Verma P.W.12 P.W.12 is the fourth Investigating Officer. He gave details of the steps taken in the course of investigation. He has proved charge-sheet submitted against Sonu @ Mukesh Ext. Ka-15. Dr. Ashok Sharma P.W.13 P.W.13 on 02.05.2008 at 2.00 PM admitted Munna Lal Sharma in the seriously burnt condition in Siddhi Vinayak Hospital, Hariparwat, Agra. He has proved the original BHT and filed its photostat copy under his certificate. He has proved the certificate Ext. Ka-16. Sub Inspector Sunil Kumar Sharma P.W.14. P.W.14 is the first Investigating Officer, he gave details of steps taken in the course of investigation. He has proved site plan Ext. Ka-17, memo of taking clothes of injured Munna Lal Sharma Ext. Ka-18. He has identified them, which are exhibited as material Ext. 1 to 3. The appellants in their statements recorded under Section 313 of the Code of Criminal Procedure have denied the facts stated by the prosecution witnesses. According to them, on account of criminal prosecution under Sections 498-A, 307 IPC initiated by the daughters of Rajesh Sharma they were all falsely prosecuted and for this reason witnesses have given false testimonies. The appellants in their statements recorded under Section 313 of the Code of Criminal Procedure have denied the facts stated by the prosecution witnesses. According to them, on account of criminal prosecution under Sections 498-A, 307 IPC initiated by the daughters of Rajesh Sharma they were all falsely prosecuted and for this reason witnesses have given false testimonies. In the defence two witnesses were examined. Dr. Rakesh Bansal D.W.1 was the Medical Officer on 01.05.2008 at District Hospital, Mathura, on that day from 8.00 AM to 2.00 PM he was on emergency duty and at 10.45 AM he admitted Munni Lal Sharma in burnt condition. According to him, except sole of feet all over body there were superficial to deep burns, he has proved the original BHT and entry in accidental register and filed certified photostat copies which are exhibited as Ext. Kha-1 and Kha-2. Dr. Richa Jegan D.W.2 Assistant Professor, S.N. Medical College, Agra, she had treated Munna Lal Sharma on 01.05.2008 along with Dr. Ritesh Kumar Singh, she has proved details of treatment given to him and proved Ext. Kha-3. According to her whereabouts of Dr. Ritesh Kumar Singh were not known. She has proved the entry contained in the hospital of the patient to the effect that the injuries were sustained due to kerosene stove as disclosed by son of the injured Raj Kumar. So far as statements of Pawan Sharma P.W.1 and Varun Sharma P.W.2 are concerned, out of them, Pawan Sharma P.W.1 is the first informant, he has been examined to prove enmity, oral dying declaration, lodging of FIR, finding of his father in burnt state in Agrasen Nagar. During cross-examination it has come out that they are four brothers, eldest is Raj Kumar, all of them are married but only wife of Raj Kumar is living with him, wife of this witness Anita, wife of Varun, Parul and wife of Arun, Dolly are living in their Mayke, all three brothers are facing cases for maintenance and dowry. He could not tell who informed him on mobile. According to him, he and his brother took their father on motorcycle to District Hospital, Agra. Thereafter he left his father in the care of his brother at the hospital and lodged the first information report at Krishna Nagar outpost. He could not tell who informed him on mobile. According to him, he and his brother took their father on motorcycle to District Hospital, Agra. Thereafter he left his father in the care of his brother at the hospital and lodged the first information report at Krishna Nagar outpost. Though he has admitted that on the way Kotwali is situated but admitted that he did not go there and proceeded towards Krishna Nagar outpost. What we find important is the fact that first information report was lodged at 11.30 AM. According to him, he gave the report at 10.00 AM, according to Dr. Rakesh Bansal D.W.1 patient was admitted at 10.35 AM, thus, sequence of events narrated by the witness and the time given by him are disparate with the entries made by the police officers and the Doctor. On the point of motive his statement is unconvincing and his bonafide of lodging FIR at reporting outpost Krishna Nagar also becomes doubtful for the reasons given herein after. Varun Sharma P.W.2 is the other brother who took his father from Agrasen Nagar, he is also facing criminal prosecution launched by his wife. According to him, name of Sonu @ Mukesh was also told by his father on the way but he could not tell that why this name does not find place in the statements recorded by the Investigating Officer. It is not disputed that Munna Lal Sharma died due to shock as a result of anti mortem burns, his death took place on 03.05.2008 and he sustained burn injuries on 01.05.2008. The only controversy is that whether Munna Lal Sharma was kidnapped by the appellants and he was burnt by the appellants or in the morning hour he sustained burn injuries due to kerosene oil stove and died as a result thereof. On this point the appellants have been convicted on the basis of dying declaration Ext. Ka-9. Before proceeding further we would like to notice the case laws referred on behalf of the appellants during the arguments. The details of these case laws are as under: 1. State of U.P. v. Ram Sagar Yadav and others [AIR 1985 416]. The relevant para is quoted: "It is well-settled that, as a matter of law, a dying declaration can be acted upon without corroboration. The details of these case laws are as under: 1. State of U.P. v. Ram Sagar Yadav and others [AIR 1985 416]. The relevant para is quoted: "It is well-settled that, as a matter of law, a dying declaration can be acted upon without corroboration. There is not even a rule of prudence which has harden d into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort Or the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only If the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration. The instant case. is a typical illustration of that class of cases in which the Court should not hesitate to act on the basis of an uncorroborated dying declaration The circumstances leave no doubt that the dying declaration made by the deceased to the Judicial Magistrate to the effect that he was beaten by Darogah and the constables at the Police Station is rue in every respect and it is safe to accept the same. [628F; G; 629A-B] Khushal Rao v. The State of Bombay, [1958] SCR 552, Harbans Singh v. State of Punjab, [1967] Supp. ISCR 104 and Gopalsingh v. State of M.P, [1972] 3 SCC 268." 2. Paniben (Smt.) Vs. State of Gujarat [1992 SCC (Cri) 403)]. Reliance has been placed on the observation made in para-18 of the report quoted herein below: 18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in the correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary. undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja V. State of M.P.[ 1976 (3) SCC 104 ] (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.[State of U.P. v. Ram Sagar Yadav, Ramawati Devi V. State of Bihar, 1985 (1) SCC 552 ] (iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. [K. Ramachandra Reddy v. Public Prosecutor, 1976(3) SCC 618 ] (iv). Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [Rasheed Beg v. State of M.P., 1974(4) SCC 264 ] (v). Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [Kake Singh v. State of M.P., 1981 Supp SCC 25] (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction [Ram Manorath v. State of U.P., 1981 (2) SCC 654 ] (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.[State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455] (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza v. State of Bihar, 1980 Supp SCC 769] (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. [Nanahau Ram v. State of M.P., 1988 Supp SCC 152] (x) Whee the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan, 198 (3) SCC 390] 3. Laxmi (Smt) Vs. Om Prakash and others [2001 SCC (Cri) 993)]. Reference has been made to the observations made in para-29 of the report which reads as under: "29.A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of heresay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances. [see Tapinder Singh Vs. State of Punjab - 1971 (1) SCJ 871]. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborate evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das Vs. In Bhagwan Das Vs. State of Rajasthan - AIR 1957 SC 589 the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh @ Surendra Singh Vs State of M.P.- AIR 1982 SC 1021 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh Vs. State of Punjab - AIR 1983 SC 554 this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or any one else present." 4. Bhajju alias Karan Singh Vs. State of Madhya Pradesh [ 2012(4) SCC 327 ]. Reliance has been placed on para-26 of the report, quoted as below: "26.The law is well-settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction." 5. Rafique @ Rauf and others Vs. State of U.P. [2013 Law Suit (SC) 525]. Para-16 of the report has been relied on which may be gainfully referred and quoted below: "16. The author Phipson in his 9th Ed., of the book on Evidence made the following observations: "......The deceased then signed a statement implicating the prisoner, but which was not elicited by question and answer, and died on March 20. It was objected that being begun in that form, it was inadmissible:- Held (1) the questions and answers as to his state of mind were no part of the dying declaration; (2) that even if they were, they only affected its weight, not its admissibility; and (3) that the declaration was sufficient, without other evidence, for conviction R. v. Fitzpatrick, (1910) 46 Ir. L.T. 173 (M)." From the prosecution version and evidence adduced to substantiate the same, it transpires that prosecution had not examined any witness who had seen the actual occurrence. This case at the best rests on circumstantial evidence, in order to prove the charges in case of circumstantial evidence the prosecution is required to satisfy the court that all links in the chain of circumstantial evidence have been proved by the cogent and credible evidence. In the celebrated case of Sharad Birdhichand Sarda AIR 1984, SC, 1622, the Hon'ble Supreme Court has lucidly described when the circumstantial evidence can be treated to be conclusive. The relevant observation reads here under: "152. In the celebrated case of Sharad Birdhichand Sarda AIR 1984, SC, 1622, the Hon'ble Supreme Court has lucidly described when the circumstantial evidence can be treated to be conclusive. The relevant observation reads here under: "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) 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 explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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." "153.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." We have given anxious consideration while re-examining and re-assessing the prosecution evidence. Before we proceed further we would like to notice the circumstances, on the basis of which, prosecution seeks our affirmation of the finding of guilt recorded against the present appellants. These circumstances may be noticed as below: 1. Before we proceed further we would like to notice the circumstances, on the basis of which, prosecution seeks our affirmation of the finding of guilt recorded against the present appellants. These circumstances may be noticed as below: 1. On 01.05.2008 at 10.00 AM when deceased Munna Lal Sharma after visiting Krishna Janam Bhumi was proceeding towards Bhuteshwar, on his way near Shriji Baba Ashram he was kidnapped by the appellant Rajesh Sharma, his two sons Shiv Kumar and Punit on a motorcycle. 2. First informant/complainant received information on his mobile that his father was taken near the house of those appellants and after pouring kerosene oil he was burnt and he was lying in burnt condition on the road. 3. First informant and his two brothers Varun and Arun reached there and took him to Government Hospital. 4. On 03.05.2008 injured Munna Lal Sharma had died at Siddhi Vinayak Hospital, Agra due to shock as a result of ante mortem burn. 5. On 01.05.2008 at 5.20 PM dying declaration of the injured Munna Lal Sharma was recorded by the Magistrate at S.N. Medical College Agra, wherein all the appellants were named. 6. Deceased Munna Lal Sharma was doing pairvi on behalf of his sons Pawan Sharma, Varun and Arun in the cases instituted by their estranged wives and the appellants are their near and dears. As advised by the Apex Court in the observations quoted above, it is our obligation to see whether these circumstances could be proved by the prosecution by cogent evidence which is reliable and trustworthy. First lacuna in the prosecution case is that none who had seen the alleged forcible kidnapping near Shriji Baba Ashram has been examined by the prosecution. In this regard the only evidence remains the dying declaration recorded by the Magistrate. The second lacuna is that the prosecution has not examined any person, who is resident of Agrasen Nagar, where the alleged place of incident situate or any passerby who had seen pouring the kerosene oil on Munna Lal by the appellants and putting him on fire. On this point the only evidence is of dying-declaration of the deceased. The second lacuna is that the prosecution has not examined any person, who is resident of Agrasen Nagar, where the alleged place of incident situate or any passerby who had seen pouring the kerosene oil on Munna Lal by the appellants and putting him on fire. On this point the only evidence is of dying-declaration of the deceased. On behalf of the appellants in the defence a specific case has been put during the trial, according to that the deceased Munna Lal Sharma sustained burn injuries from Kerosene oil stove in his house, he was taken by his sons to the District Hospital, thereafter due to enmity on account of their prosecution by their wives, Pawan Sharma P.W.1, Varun P.W.2 and Arun concocted a false story and gave a report at reporting outpost Krishna Nagar where they had some connection. It is further asserted by the defence that burn injuries of Munna Lal Sharma were extensive, he was taken for advance treatment to S.N. Medical College, Agra by his fourth and eldest son Raj Kumar, where he was hospitalized, after the remaining sons of Munna Lal Sharma reached there with their concocted story, they tutored their burnt and aged father Munna Lal Sharma and forced him to give false account of the occurrence. In the present matter first we will place on record the facts and evidence supporting the prosecution version and side-by-side we would also place on record the evidence supporting the defence version. According to learned Additional Government Advocate there are three dying declarations, first which finds place in the FIR, second is statement of injured Munna Lal Sharma recorded under Section 161 Cr.P.C. by the Investigating Officer and the 3rd one is Ext. Ka-9 recorded by Sri Achchey Lal Singh Yadav, the then Additional City Magistrate-II, Agra P.W.11. The probity and intrinsic value of the first alleged dying-declaration is dependent upon the bonafide of lodging the FIR by Pawan Sharma P.W.1. It is a specific case of the defence that police station Kotwali, Mathura was near the District Hospital from where Pawan Sharma P.W.1 had proceeded to lodge the FIR and reporting outpost Krishna Nagar was further away and at a distance greater than to police station. It is relevant to mention here that the area falling in reporting outpost Krishna Nagar is also part of police station Kotwali, Mathura. It is relevant to mention here that the area falling in reporting outpost Krishna Nagar is also part of police station Kotwali, Mathura. This plea of the defence finds support from the admission made by Pawan Sharma P.W.1 during cross-examination wherein he said that at the hospital he left his father in the care of his brothers and he straightway went to Krishna Nagar reporting outpost though police station Kotwali was in between these two places but while taking deserted route he came to Krishna Nagar reporting outpost. Perusal of check FIR Ext. Ka-1 shows that the check FIR was scribed at the reporting outpost Krishna Nagar, the noticeable point is that written report Ext. Ka-1 has been addressed to Inspector Incharge police station Kotwali, Mathura but Pawan Sharma P.W.1 does not say that he first went to police station Kotwali, Mathura from where he was directed to approach reporting outpost Krishna Nagar. From this fact learned counsel for the appellants submits that Pawan Sharma P.W.1 had acquaintance with Sub Inspector Incharge reporting outpost Krishna Nagar. There is one more plea of the defence that FIR was lodged with delay and it was anti timed. This plea is based upon the fact that check FIR has been lodged at 11.30 AM whereas the account given by Pawan Sharma P.W.1 does not admit possibility of taking one and half hour in lodging the FIR. Learned counsel for the appellants has drawn attention of the Court toward the discrepant statement made by Pawan Sharma P.W.1. At one place, he claimed to have lodged the report at 10.00 AM and claimed that he had returned to the hospital at 11.00 AM and at another place he claimed that he had lodged the FIR at 11.30 AM. According to this witness that after reference his father had been taken to Agra and reached there at 1.30 PM. According to learned counsel for the appellants if FIR was lodged at 11.30 AM it was lodged after due deliberation and there is no explanation for the delay of one and half hour, during which he claims possibility of concoction of a false story. Oral dying-declaration is always examined with greatest possible care. According to learned counsel for the appellants if FIR was lodged at 11.30 AM it was lodged after due deliberation and there is no explanation for the delay of one and half hour, during which he claims possibility of concoction of a false story. Oral dying-declaration is always examined with greatest possible care. Since the prosecution has not explained for what reasons, for one and half hour FIR was not lodged but we infer from the fact that written report was addressed to Inspector Incharge Kotwali but it was handed over at reporting outpost Krishna Nagar; that version of the first informant Pawan Sharma P.W.1 narrating the sequence of events in reference to lodging of FIR is not a true account for what happened in between 10.00 AM to 11.30 AM on the fateful day, we are of the view that the statement of Pawan Sharma P.W.1 about the dying-declaration made by his father while he was taken from the alleged place of occurrence to the hospital does not inspire confidence. The second dying-declaration is the statement recorded by the first Investigating Officer Sunil Kumar Sharma P.W.14, the witness has stated that he has recorded the statement of injured Munna Lal Sharma. This statement has not been recorded in accordance with Para-115 of the Uttar Pradesh Police Regulations. For ready reference Para-115 of the U.P. Police Regulations is extracted below: Para-115 of the U.P. Police Regulations. "The officer investigating a case in which a person has been so seriously injured that he is likely to die before he can reach a dispensary where his dying declaration can be recorded should himself record the declaration at once in the presence of two respectable witnesses, obtaining the signature or mark of the declarant and witnesses at the foot of the declaration." In this reference learned Additional Government Advocate has submitted that when the statement was recorded, it was recorded as the statement of the injured and for this reason compliance with the aforesaid condition is not necessary. It is not disputed that the deceased Munna Lal Sharma had received extensive burn injuries, the Doctor Rakesh Bansal D.W.1, who admitted him has said that injured was hospitalized at 10.45 AM, except sole of his feet there was superficial to deep burns. It is not disputed that the deceased Munna Lal Sharma had received extensive burn injuries, the Doctor Rakesh Bansal D.W.1, who admitted him has said that injured was hospitalized at 10.45 AM, except sole of his feet there was superficial to deep burns. In his opinion he had received 95% burn, he has also proved BHT wherein physical condition of the injured was noted as extremely critical. When examined in the light of these facts, we are unable to accept the arguments submitted by learned Additional Government Advocate that it was mere statement recorded under Section 161 Cr.P.C. The police officer must have perused the medical papers, BHT and seeing the condition of the injured, in such a situation, due to non compliance with the provisions contained in aforequoted para we do not think any reliance can be placed on the alleged statement. The third dying-declaration Ext. Ka-9 has been recorded at Agra by the Magistrate. On behalf of appellant this dying declaration has been impeached on various grounds. The first ground is that at 10.45 AM on 01.05.2008 though the deceased Munna Lal Sharma was brought to District Hospital, Mathura in burnt condition and Pawan Sharma P.W.1 was knowing that he was burnt by appellants, even then burn injuries of Munna Lal Sharma were entered into register for accidental injuries. Photostat copy of this register has been proved by Dr. Rakesh Bansal D.W.1 Ext. Kha-2. Learned counsel for the appellants has also drawn attention of the Court towards the statement of Dr. Richa Jegan D.W.2 in whose presence Munna Lal Sharma was admitted in the emergency department at S.N. Medical College, Agra. She has stated that BHT of Munna Lal Sharma was prepared under her directions by Dr. Ritesh Kumar. At the time of her statement whereabouts of Dr. Ritesh Kumar were not known. She has proved history of the patient written on her direction by Dr. Ritesh Kumar. In the history in the relevant column, following words find place "due to kerosene oil stove", further an endorsement finds place that "this information was communicated by attendant Raj Kumar son of the patient". It will not be out of place to mention here that out of four sons of the deceased only Raj Kumar is peacefully living his matrimonial life. It will not be out of place to mention here that out of four sons of the deceased only Raj Kumar is peacefully living his matrimonial life. Wives of his other three brothers were living in their Mayke and litigation between their husbands along with other relatives were going on. On the strength of these two entries learned counsel for the appellants submits that while three brothers were conspiring to manufacture a false case, it was Raj Kumar, who took the deceased to Agra but after arrival of these three brothers they pressurized their aged ailing father and procured false statement by him. The second ground for impeaching the trustworthiness of the dying declaration is that according to dying declaration of Munna Lal Sharma, his statement Ext. Ka-9 reveals that at the time of recording of the statement Munna Lal Sharma was not well oriented, he has disclosed the name of his wife about the sons and took name of elder son Raj Kumar. Achche Lal Singh Yadav P.W.11 during the cross-examination has said that he has not asked the names of the wife of the declarant or of his sons or name of his eldest son. According to him, these sentences were uttered by the declarant on his own, though he has denied that at the time of giving statement declarant was not fit for giving the statement. It is true that before recording the dying declaration the witness had obtained a certificate of the doctor that the patient was in condition to give statement and besides this certificate at the close of the statement the doctor again gave a certificate that condition of the declarant during statement remained stationary. These statements are conspicuous by their reticence about the mental fitness of the patient, rather in its place the doctor had written he was in condition to give statement, whether his condition was physically or mentally fit had been left for the Court to speculate. These certificates were given by Dr. R.L. Sharma P.W.7, who has admitted in the cross-examination that in the BHT it has not been mentioned whether the patient was conscious or unconscious but he has admitted that his condition was extremely critical. At this juncture we would like to refer Ext. Kha-3 and statement of Dr. These certificates were given by Dr. R.L. Sharma P.W.7, who has admitted in the cross-examination that in the BHT it has not been mentioned whether the patient was conscious or unconscious but he has admitted that his condition was extremely critical. At this juncture we would like to refer Ext. Kha-3 and statement of Dr. Richa Jegan D.W.2 that in reference to illness entry was made on the basis of information furnished by the son of patient Raj Kumar shows patient was not even in a condition to tell about his illness. Now coming back to Dr. R.L. Sharma P.W.7, who during cross-examination in the Court has owned two certificates appended with the dying declaration Ext. Ka-9 but he admitted that he had not treated the patient and before giving certificate he had not consulted Doctor treating the patient. He has also admitted that during statement he was not present. On oath he merely deposed that patient was in a condition to give the statement and his condition remained stable during the statement. We doubt that Dr. R.L. Sharma P.W.7 was confident that mental condition of the declarant was fit. Ext. Ka-9 is the basis of conviction of the appellants. Keeping in view the principles discussed herein above we are required to subject the dying declaration Ext. Ka-9 to close scrutiny because the appellants had no opportunity to cross-examine the declarant. Before we made up our minds we have also taken into consideration provisions contained in the Evidence Act about the burden of proof though the prosecution is required to prove its case beyond reasonable doubt but the defence can not be saddled with such amount of proof, defence is only required to show by preponderance of probability that there is reasonable doubt about the truthfulness of the prosecution evidence. If the defence is successful in creating a doubt about the veracity of the evidence, the accused persons are entitled to be acquitted. When considering in this factual and legal scenario we find that plea of defence that due to kerosene oil stove an accident had occurred with Munna Lal Sharma and on account of matrimonial disputes the FIR was lodged against the appellants, who happened to be relatives of the girls, who were prosecuting their husbands. Entry of the injuries sustained by Munna Lal Sharma at District Hospital finds place in the register meant for accidental injuries and Ext. Entry of the injuries sustained by Munna Lal Sharma at District Hospital finds place in the register meant for accidental injuries and Ext. Kha-3 are enough to create doubt that dying declaration Ext. Ka-9 may not be a true account of the occurrence. We are also fortified in our conclusion from the fact that Investigating Officer could not find any sign of pouring kerosene oil at the alleged place of occurrence, no local witness of the alleged occurrence or at the place of alleged kidnapping was examined. The FIR was lodged under suspicious circumstances with delay and prosecution has not given any explanation for the same. The learned trial Judge while appreciating the evidence has ignored these material points, he failed to appreciate the evidence in the manner prescribed by law. For this reason, findings recorded by the him, are erroneous, appeals have substance. Accordingly, both the appeals are allowed and the judgment and orders dated 12.10.2011 passed as also conviction and sentences awarded to the appellants by learned Additional Sessions Judge, Mathura in Sessions Trial No. 510 of 2008 (State Vs. Rajesh Sharma and another) and Sessions Trial No. 888 of 2008 [State Vs. Sonu @ Mukesh] arising out of Case Crime No. 288 of 2008, under Section 302 I.P.C., P.S. Kotwali, District Mathura are hereby set aside. The appellants are acquitted from the charges levelled against them. The appellants Shiv Kumar Sharma and Sonu @ Mukesh are on bail. They need not surrender. The appellant Rajesh Sharma is in jail. He be released forthwith, in case, he is not wanted in some other case, provided he files a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A CrPC. Office is directed to certify this order to the court concerned forthwith for compliance and to send back the lower court record.