JUDGMENT : Gopal Krishan Vyas, J. In this criminal appeal filed under Section 374 (2) Cr.P.C. the appellants are challenging judgment dated 23.2.2013 passed by the learned Addl. Sessions Judge, Sujangarh, District Churu in Sessions Case No. 2/2009 whereby learned Trial Court convicted the accused appellants for offence under Section 302/34 I.P.C. and passed sentence, of life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo six months Rl. 2. The brief facts of the case are that on 20.10.2008 Smt. Santosh wife of Pema Ram (accused appellant) gave her statement (Ex.P-1) to the SHO Police Station Sandwa at 10.30 am in the burn unit of PBM Hospital, Bikaner in which it is stated by her that she got married with accused appellant Pema Ram 13 years back and her mother-in-law and father-in-law both died within one year from marriage and her husband is youngest son of her father-in-law late Parasdas out of his 7 sons. It is stated by Smt. Santosh that her husband is working in the RAC as Constable and at the time of marriage he was posted at Tonk where he was living alone. After the marriage, till her father-in-law alive she lived in the village, but after death of her father-in-law she went to Tonk and lived with her husband for 5-6 months. According to the allegation made by the deceased Smt. Santosh, the accused appellant Pema Ram usually consuming liquor and giving beatings to her, therefore, for the said reason, she came back to the village and lived in the house of her in-laws. All the brothers of her husband were living separately but till 2004 her husband usually come to the village Girwarsar from Tonk and regularly consuming liquor and assaulting her. It is also alleged that as and when demand was made by her for domestic expenses, not a single penny was given by him and he was asking that your parents did not give anything to me, therefore, asked your parents to give money. Due to the said attitude, she reported everything to her brothers and father and regularly demanded money for regular domestic expenses of house. The deceased Smt. Santosh further stated that only for the peace and need of the family she did not take any action against her husband and suffered regular beatings of her husband. Due to the said attitude, she reported everything to her brothers and father and regularly demanded money for regular domestic expenses of house. The deceased Smt. Santosh further stated that only for the peace and need of the family she did not take any action against her husband and suffered regular beatings of her husband. In the year 2004 her brothers managed transfer of her husband from Tonk to Bikaner where she went to live with her husband. At Bikaner she lived for two and half years with her husband but during that period also her husband used to consume liquor and gave beatings to her, therefore, she again come back to the village Girwarsar. According to Smt. Santosh she was having 3 daughters Priyanka, Moni and Ashoka but as and when her husband comes from Bikaner regularly consuming liquor and assaulting her. The elder brothers of her husband Shreeram and Surjadas and son of elder brother Babu Lal insisted him for her.It is alleged that on 11.10.2008 at about 10.30 am my husband Pema Ram was in the house, Babu Das S/o elder brother of her husband came with liquor and sit along with my husband in the house and take liquor. The accused Babu Das said to her husband that your wife is bad, why you are not killing her upon insisting my husband called me in the open space of house abuse like anything. According to the allegation of Smt. Santosh Babu Das catch hold her hairs and her husband poured kerosene upon her lying in the plastic cane and pushed her on stove (Chhulha) where food is being prepared. Due to pushing she fell down and her cloth were burned due to kerosene poured upon her. Upon crying Babu Das run away from the place of occurrence and one Gopal Master, Mooldas and Sumitra immediately came on spot. Mooldas entered in the house after jumping from the wall because door was closed from inside and all the three persons rescued her. So many villagers also came on spot and taken her to the hospital at Bikaner in the jeep but she is not knowing who has brought her in the hospital for treatment. Mooldas entered in the house after jumping from the wall because door was closed from inside and all the three persons rescued her. So many villagers also came on spot and taken her to the hospital at Bikaner in the jeep but she is not knowing who has brought her in the hospital for treatment. It is further alleged that my husband and Babu Das, son of the husband's brother poured kerosene upon my body and made attempt to commit offence of murder and the elder brother of her husband Shreeram and Surjadas also insisted her husband to beat her regularly, therefore, action may be taken against them. 3. Upon aforesaid statement (Ex.P-11) recorded by SHO, Police Station, Sandwa at PBM Hospital, Bikaner F.I.R. No. 108 dated 20.10.2008 was registered under Sections 498A and 307/34 I.P.C. against four persons namely Pema Ram, husband of the deceased, Shreeram, Surjadas and Babu Das. 4. After registration of F.I.R. the regular investigation was commenced. The Investigating Officer obtained injury report (Ex.P-13) dated 20.10.2008 from the office of the Medical Jurist, PBM Hospital, Bikaner and arrested the accused appellant Pema Ram on 26.11.2008 and during investigation Santosh died, therefore, on completion of investigation police filed challan against the accused appellant Pema Ram and Babu Das under Sections 498A and 302 I.P.C. and accused appellant Babu Das was absconded, therefore, challan was filed against him under Section 299 of the Cr.P.C. in the Court of Judicial Magistrate No. 2, Sujangarh. 5. Later on accused appellant Babu Das was arrested on 17.2.2010 vide Ex.P-16 and produced before the Court from where he was sent to the judicial custody for trial. 6. The learned Trial Court after hearing charge arguments of the Counsel for the accused appellant framed charge under Sections 498A; 302 I.P.C. and in the alternative under Section 302/34 I.P.C. against Pema Ram and against accused appellant Babu Das @ Babu Lal under Sections 498A, 302/114 and under Section 302/34 I.P.C. on 31.3.2010, both the accused appellants denied the charges and prayed for trial. In the trial statements of 20 prosecution witnesses were recorded and 19 documents were exhibited. After recording evidence of prosecution, statements of the accused appellants under Section 313 Cr.P.C. were recorded by the learned Trial Court. In the trial statements of 20 prosecution witnesses were recorded and 19 documents were exhibited. After recording evidence of prosecution, statements of the accused appellants under Section 313 Cr.P.C. were recorded by the learned Trial Court. The appellants denied all the allegations levelled by the prosecution witnesses and accused appellant Pema Ram said that I have not poured any oil upon my wife deceased Smt. Santosh. The deceased Smt. Santosh accidently fell down upon fire place where food is preparing in the house and I made efforts to extinguish the fire, at that time, my daughter Priyanka was at school. According to him Santosh was burned for the reason that she fell down upon the stove (chhulha) where wood were burning, therefore, the allegation of prosecution witnesses are totally false. Babu Das stated that I was not present in the house. I was called by Gopal Master, therefore, went on spot in the vehicle of Ram Pratap Jat along with Kailash, Ram Pratap and in the said vehicle I, Pema Ram, Ram Pratap, Gopal Master and other took Smt. Santosh for treatment at Bikaner, therefore, the allegations made by the prosecution against him are totally false. In defence 5 witnesses were produce namely DW-1 Gopala Ram, DW-2 Ram Pratap, DW-3 Kailash, DW-4 Posa Das and DW-5 Moola Ram and 9 documents were exhibited in defences. 7. The learned Trial Court after hearing final arguments convicted the accused appellants for offence under Section 302/34 I.P.C. while acquitted them from the charge under Section 498A I.P.C. and passed the sentence mentioned above. 8. In this appeal, the accused appellants are challenging the finding of guilt recorded by the learned Trial Court on various grounds. 9. Learned Counsel for the appellants submits that the entire prosecution story is false because as per prosecution case the incident took place on 10.10.2008, but no F.I.R. was filed by any of the family members or the persons who brought the deceased Santosh to the hospital till 20.10.2008. The F.I.R. was registered on the basis of statement of deceased Santosh recorded by the SHO Police Station Sandwa at PBM Hospital, Bikaner on 20.10.2008 after ten days and there is no explanation for delay of 10 days for registration of the F.I.R. 10. The F.I.R. was registered on the basis of statement of deceased Santosh recorded by the SHO Police Station Sandwa at PBM Hospital, Bikaner on 20.10.2008 after ten days and there is no explanation for delay of 10 days for registration of the F.I.R. 10. According to the learned Counsel for the appellants if deceased Santosh was admitted in the PBM Hospital, Bikaner on 11.10.2008 then it was duty of complainant party to brought on record documents like admit card and other documents with regard to treatment of deceased Santosh, but on such documentary evidence including admit card is produced on record by the prosecution, therefore, the whole prosecution story became false. 11. The learned Counsel for the appellants submits that as per principles of law if any person is admitted in the hospital in burn condition then it is the duty of hospital authorities to inform Medical Jurist or police but Dr. Sanjay Dhankar PW-20 who was working as Resident Doctor on 11.10.2008 in the PBM Hospital, Bikaner stated in his statement that deceased Santosh W/o Pema Ram was admitted in the burn unit at bed No. 4 of the PBM Hospital and he gave opinion to the SHO Police Station Sandwa upon his letter (Ex.P-9) submitted by the SHO that she is not in position to give statement. According to statement of PW-20 Dr. Sanjay Dhankar after 10 days on 20.8.2008 (sic 20.10.2008) SHO Police Station Sandwa again submit a letter (Ex.P-10) to ascertain whether Smt. Santosh is in position to give statement or not, Dr. Sanjay Dhankar gave his opinion that she is in position to give statement, but this doctor did not disclose the fact that any information was given by the deceased Santosh to him with regard to allegation of burn in her statement, therefore, it is a case in which the SHO recorded statement of deceased after 10 days that too in absence of doctor and other witnesses, therefore, it cannot be said that the statement of the deceased were recorded by the SHO is trustworthy which can be taken into consideration against the accused appellants so as to held them guilty. While inviting attention towards the cross-examination of statement of PW 20 Dr. Sanjay Dhankar it is submitted that the said doctor stated on oath that Smt. Santosh was admitted in the unit of Dr. While inviting attention towards the cross-examination of statement of PW 20 Dr. Sanjay Dhankar it is submitted that the said doctor stated on oath that Smt. Santosh was admitted in the unit of Dr. Sita Ram Dodwal but MLC cases are to be governed by the medical jurist and no information was given by him to medical jurist at the time of admission, therefore, it cannot be said that the prosecution has proved the fact that from 11.10.2008 to 20.10.2008 the condition of deceased was not good. The learned Counsel for the appellants submits that statement of PW-1 Sumitra Swami is Ex-Sarpanch of the village Girwarsar were recorded by the investigating Officer on 20.10.2008 in which for the first time it is stated by her that on 11.10.2008 when I was cleaning the Veranda of her house, Babu Das came there and entered in the house of Pema Ram. After some time she heard noise of Santosh "Bal Diya Bal Diya" then she immediately went in the house of accused appellants Pema Ram and saw that Santosh was burning and Babu Das was not inside the house. He may be run away from the place of occurrence, at that time, Ram Niwas, Ram Pratap, Kailash, Moola Ram and other residents of the village came on spot and poured water for extinguishing the fire upon the body of Santosh and I lifted the cloths from the body of the deceased and after putting ointment prepared in the house gave dress to her and took her in the vehicle with Mool Das, Deepa Ram, Kailash, Ram Partap, Ram Niwas to the PBM Hospital for treatment. It is stated by her that both the accused appellants Pema Ram and Babu Das also went to the hospital along with injured. 12. In the Court statement Smt. Sumitra PW-1 stated that after hearing noise of Santosh she went to the house of Santosh where Pema Ram was standing with plastic cane and Babu Das jumped from the wall and run away, thereafter, she took Santosh along with Mool Das, Deepa Ram Jat, Kailash, Ram Pratap, Ram Nilwas and admitted her in the PBM Hospital for treatment. She made allegation that Pema Ram and Babu Das both lit fire upon Santosh. She made allegation that Pema Ram and Babu Das both lit fire upon Santosh. As per her statement Santosh died after two months of the incident and after registration of the F.I.R. police came on spot and prepared site plan (Ex.P-1) upon which I put my signatures. In the cross-examination a question was put to her why she did not inform the police it is replied by her that I am not having mobile phone, but having landline phone of Tata company and I cannot use telephone, therefore, I did not inform the incident to anybody because all the villagers were already knowing the incident. In the cross-examination further stated that when she took deceased Santosh to the hospital the accused Babu Das and Pema Ram were also with her along with other persons, but no information was given to the police till registration of the F.I.R. upon statement of the deceased Santosh in the hospital on 20.10.2008, therefore, PW-1 Smt. Sumitra cannot be treated to be reliable witness but the learned Trial Court completely relied upon her testimony erroneously to hold accused appellants guilty for offence. While inviting attention towards the statement of PW-2 Ram Gopal it is argued that Ram Gopal is the real brother of the deceased Santosh, after receiving information, he went to the PBM Hospital, Bikaner and remained there during treatment but no F.I.R. was filed by him till the statement of deceased Santosh were recorded after ten days of incident. Although he has stated in the examination-in-chief that after 3-4 days from 11.10.2008 Santosh became conscious and informed him that my husband Pema Ram and his nephew Babu Das poured kerosene upon me and pushed upon stove (Chhulha) and lit fire, therefore, she burned and became unconscious, but it is very strange that no information was given to the police even though occurrence was reported to him by the deceased Santosh just after 3-4 days in the hospital from 11.10.2008. The said witness is accepting the fact that after receiving phone call no information was given to the police that my sister has been murdered by the accused appellants. 13. PW-3 Shankar Lal turned hostile and did not support the prosecution case. The said witness is accepting the fact that after receiving phone call no information was given to the police that my sister has been murdered by the accused appellants. 13. PW-3 Shankar Lal turned hostile and did not support the prosecution case. The learned Counsel for the appellants submits that as per prosecution case the deceased Santosh was taken to the hospital by PW-1 Sumitra with Deep Ram, kailash, Pram Pratap, Ram Niwas and accused appellants Pema Ram and Babu Das but to prove this fact no witness was produced in support of above allegation but in defence the accused appellants produce 5 witnesses namely DW-1 Gopala Ram, DW-2 Ram Pratap, DW-3 Kailash, DW-4 Poosa Das and DW-5 Moola Ram. All these witnesses stated before the Court that they took deceased Santosh to the PBM Hospital for treatment but no allegations are levelled by them against accused appellants that they poured kerosene upon the deceased and pushed her upon fire. 14. Learned Counsel for the appellants submits that although as per the prosecution case all the defence witnesses went to the hospital along with PW-1 Sumitra and both the accused appellants but no other witness produced in the trial because they were knowing correct facts to disprove the prosecution story. Therefore, it is a case in which prosecution has fabricated story so as to indulge the accused appellants in the false case. 15. Learned Counsel for the appellants submits that the so called statement of deceased Santosh were recorded after 10 days of incident in the burn unit of PBM Hospital, Bikaner, therefore, that statement cannot be treated dying declaration because before recording said statement no information was given to the Medical Jurist by the doctors, no documentary evidence of hospital has been produced for the period commencing from 11.10.2008 to 20.10.2008 with regard to the treatment. More so, as per statement of PW-10 Dr. More so, as per statement of PW-10 Dr. Sanjay Dhankar he was not present at the time of recording statement by the SHO in the hospital nor other person were present at the time of recording statement of deceased, so also, the F.I.R. was sent to the concerned Magistrate after delay of 14 days, therefore, it is a case in which prosecution has fabricated false story against accused appellants, The delay is not explained, dying declaration was not recorded as per the law, both the accused appellants were present through out, but accused appellant Pema Ram was arrested when he was on duty in RAC. All these facts loudly speaks that the evidence of prosecution is not reliable or true, therefore, the judgment impugned may kindly be quashed. 16. After hearing the learned Counsel for the parties we have thoroughly examined the entire evidence of the case and perused the finding given by the learned Trial Court. 17. To prove the prosecution case statements of 20 prosecution witnesses were recorded in the trial. Out of 20 witnesses PW-1 Sumitra Swami, Ex-Sarpanch is said to be the eye witness of the incident. PW-3 Shankar Lal and PW-7 Bhanwar Singh though were produced as eye witness by the prosecution but they turned hostile and did not support the prosecution case. The finding of the learned Trial Court is based upon statement of PW-1 Sumitra Swami, Ex-Sarpanch and statement of deceased Ex.P-11 recorded on 20.10.2008 by the SHO PW-13 Vishnu Khatri. 18. As per prosecution case the incident took place on 11.10.2008 but no information was given by any of the family members to the police, but as per statement of PW-13 SHO Police Station, Sandwa at 3.30 pm on 11.10.2008 Parbat Singh, Head Constable Incharge of Police Chowki, PBM Hospital, Bikaner gave telephonic information that Dr. OP Seni, Medical Jurist of PBM Hospital informed that Santosh W/o Pema Ram, resident of Girwarsar is admitted in burn condition in the causality ward of the hospital. The SHO stated that upon receiving such information he went to the PBM Hospital, Bikaner and gave letter Ex.P-9 in writing to the medical officer to ascertain whether she is in position to give statement or not. The doctor gave in writing that she is not in position to give statement today. The SHO stated that upon receiving such information he went to the PBM Hospital, Bikaner and gave letter Ex.P-9 in writing to the medical officer to ascertain whether she is in position to give statement or not. The doctor gave in writing that she is not in position to give statement today. After 9 days on 20.10.2008 the SHO Vishnu Khatri again went to the hospital for recording her statement Ex.P-11. This fact speaks that no information was given by any of the family member of deceased Santosh till 20.10.2008 SHO recorded statement of Santosh in the PBM Hospital, Bikaner for the incident took place on 11.10.2008. There is no explanation on record from the prosecution side why F.I.R. was not filed soon after the occurrence by the family members and PW-1 Sumitra Swami Ex-Sarpanch. 19. We have considered the statement of PW-1 Sumitra Swami eye witness of the incident. The witness Sumitra Sawmi is Ex-sarpanch of the village. It is stated by her that on the date of incident upon hearing hue and cry of her neighbor Smt. Santosh she immediately went to her house and saw that door was closed from inside and from the right side of temple, saw that Santosh was burning and Prem Das was standing there with plastic cane and Babu Das run away from the place of occurrence, at that time one Shanker Das was also already standing there and Mool Das and Gopal came on spot and they entered in the house and opened the door from inside. We have made all our efforts to extinguish the fire. Further, it is stated by her that the cloths of the deceased were burn, therefore, fresh cloths were given to her for wearing. After that, I, Mool Das, Deep Ram Jat, Kailash, Ram Pratap and Ram Niwas took Santosh for treatment to the PBM Hospital, Bikaner. She made allegation that Pema Ram and Babu Das lit fire. 20. Before discussing the reliability of her testimony it is necessary to observe that neither Mool Das nor Gopal are produced as witness to support the allegation of PW-1 Sumitra Swami and so called eye witness PW-3 Shanker Lal turned hostile and did not support the allegation levelled by the eyewitness PW-1 Sumitra Swami. 21. 20. Before discussing the reliability of her testimony it is necessary to observe that neither Mool Das nor Gopal are produced as witness to support the allegation of PW-1 Sumitra Swami and so called eye witness PW-3 Shanker Lal turned hostile and did not support the allegation levelled by the eyewitness PW-1 Sumitra Swami. 21. Upon perusal of Cross-examination of PW-1 Sumitra Swami it is revealed that the said witness has specifically stated in her cross-examination that ^^eSaus ?kVuk ds ckjs esa vLirky esa MkWDVj dks ugha crk;k ml le; ckrsa crkus dk le; ugha Fkk bZykt djkus dh t:jr FkhA esjs jgrs larks"k ds HkkbZ vLirky esa vk x;s FksA eSaus larks"k ds HkkbZ;ksa dks ?kVuk ds ckj esa crk fn;k FkkA eSaus mlds HkkbZ;ksa ls ;g ugha dgk fd iqfyl dks lwpuk dj nks ml fnu iqfyl vLirky chdkusj esa ekStwn Fkh ysfdu iqfyl lkaMok dh Fkh ;k dgka dh Fkh eq>s irk ugha gSA eSa ml ,d jkr chdkusj jgh vkSj eSa jgh rc rd larks"k csgks'k Fkh eSa nwljs fnu vk xbZ FkhA eSaus chdkusj vLirky esa iqfyl dks ugha crk;k eSaus rks ekSds ij ?kVuk ds ckn iqfyl us ?kj ij c;ku fy;s rc ?kVuk ckcr iqfyl dks crk;k FkkA** 22. Upon perusal of the above statement it is clear that this witness took deceased Santosh to the hospital on 11.10.2008 but neither informed the police nor asked anything to the doctor in the hospital when Santosh was admitted but after 10 days when her statements were recorded under Section 161 Cr. P.C. she made the above allegation against the accused appellants. To prove the fact that who has opened the door from inside it is stated by her that ^^;g dguk xyr gS fd Jhjkenkl dh nhokj dwn dj xksiky ekLVj us njoktk [kksyk gks cfYd ewynkl us eafnj dh rjQ okyh lkbZM dh nhokj dwn dj xsV [kksykA igys ewynkl dwnk Fkk o xsV [kksyk FkkA xksikth ocSjk ckn esa vk;s FksA** It is very strange that neither Gopal Das nor Mool Das appeared before the Court to prove the fact that who has opened the door from inside, more so, in the cross-examination PW-1 Sumitra Swami accepted that both the appellants went to the hospital with her and said that ^^;g lgh gS fd mlh xkM+h esa gekjs lkFk eqyfte ckcwnkl o izsenkl nksuksa chdkusj x;s FksA** 23. With regard to presence of accused Babu Das it is specifically said by the eye witness PW-1 Sumitra Swami in her statement recorded under Section 161 Cr.P.C. (Ex.P-1) that ^^rkjh[k 11-10-2008 dks lqcg 10-30 cts dh ckr gSA eSa cjkens esa >kMq fudky jgh Fkh rc ckcqnkl S/o lqjtnkl Lokeh ckgj ls vk;k o izsenkl ds ?kj ds vUnj pyk x;kA izsenkl o mldh vkSjr igys ls vius ?kj esa FksA yM+fd;ka Ldqy pyh xbZ Fkh djhc 10&15 feuV ckn izsenkl dh vkSjr lUrks"k us cky fn;k 2 dk jksyk epk;k rc eSa Hkkxdj njoktk [kksydj izsenkl ds ?kj xbZ ns[kk rks lUrks"k vius vkaxu esa ty jgh Fkh ckcwnkl vUnj ugha Fkk fd/kj ls Hkkxk irk ugha og lk;n fiNs fd fnokj ds mij ls Hkkx x;kA** 24. On the one hand the said witness stated that Babu Das ran away from the place of occurrence and on the other hand she herself specifically stated in the Court that Babu Das and Pema Ram both were accompanied them, when Smt. Santosh was taken to the PBM Hospital, Bikaner in the same vehicle in which injured Santosh was taken to the hospital. In our opinion, due to above major contradiction and upon the fact there is no corroboration of the allegation levelled by witness PW-1 Sumitra Swami, the Trial Court has wrongly relied upon the testimony of this witness because prosecution has failed to produce two witnesses Mool Das and Gopal Das who were said to be present at the time of incident took place. The other eye witness Shanker Lal turned hostile and did not support the prosecution story. In view of the above consideration the finding of the learned Trial Court while relying upon the testimony of PW-1 Sumitra Swami is not sustainable in law because there is no corroboration of her allegation. It is also beyond imagination that how the Ex-sarpanch will not give information to the police. On the basis of above facts, we have no hesitation to hold that PW-1 Smitra Swami is planted witness. 25. PW-2 Ram Gopal is the brother of the deceased. According to him he was not present in the house where alleged occurrence took place on the date of incident, but the said witness specifically stated in his statement that no information was given by him to the police. 25. PW-2 Ram Gopal is the brother of the deceased. According to him he was not present in the house where alleged occurrence took place on the date of incident, but the said witness specifically stated in his statement that no information was given by him to the police. The police was already there, I remained in the hospital for 3-4 days and on 14.10.2008 when my sister became conscious it was informed by her that Babu Das and Pema Ram after pouring kerosene pushed her upon stove (Chulha). Due to said reason I was burned. The witness PW-2 Ram Gopal specifically stated in the cross-examination that ^^xyr gS fd mldks igyh ckj gks'k 20&21 rkjh[k dks vk;k gksA iqfyl us 14&15 dks dksbZ dk;Zokgh ugha dh bldh lwpuk eSaus mPpkf/kdkfj;ksa dks ugha dh eSa rks bykt esa yxk gqvk FkkA tc esjh cgu us esjs ls ckr djh vkSj crk;k rc dksbZ MkWDVj dEikm.Mj dks ;s ugha dgk fd eqfYteku us esjh cgu dks tyk fn;k gS D;ksafd ;s ckr esjs fnekx esa ugha vkbZA** 26. It is very strange that witness PW-2 Ram Gopal is real brother of deceased Santosh but no information was given by him to the police, in spite of the fact that after 3-4 days from the date of occurrence the deceased Santosh became conscious and informed that after pouring kerosene accused Babu Das and Pema Ram pushed her upon the stove (Chhulha) and due to said reason she burned. In our opinion, the testimony of this witness is also seriously doubtful because no real brother can keep mum and never informed the police with regard to incident reported by his sister. The learned Trial Court was under legal obligation to consider this aspect of the matter while deciding the question of delay in registration of F.I.R., but the learned Trial Court did not consider the very important fact that real brother of deceased did not inform the police or the doctors in the hospital that accused appellants poured kerosene and lit fire to the body of his sister, therefore, testimony of PW-2 Ram Gopal became doubtful. 27. PW-3 Shanker Lal so called eye witness turned hostile and did not support the prosecution case. 27. PW-3 Shanker Lal so called eye witness turned hostile and did not support the prosecution case. PW-4 Hanuman Parsad was also not present at the time of occurrence, but he is the witness who has specifically stated that my sister Santosh was admitted to the hospital in serious condition and became conscious after 3-4 days but no information was given by this witness to the police. 28. PW-5 Ganesha Ram stated before the Court that two and half or three years back Hanuman Prasad resident of Malaksar came and said that accident took place with my sister and she is admitted in the hospital in burn condition, therefore, I went to the hospital along with Hanuman Prasad. The said witness stated before the Court that after 3-4 days when Santosh became conscious she informed that my husband Pema Ram and nephew Babu Das poured kerosene upon her and lit fire. Meaning thereby, the said witness accepted in the Court that he was informed by the deceased that accused appellant poured kerosene and lit fire, but it is very strange that real brother of deceased Hanuman Prasad PW-4 stated before the Court that an information was given by the deceased to him that Pema Rama and Babu Das poured kerosene upon her and pushed upon stove (Chhula), therefore, I was burned. Both these witnesses did not give report the incident to the police or the authorities of hospital. A specific question was put to him whether you have informed the police when she became conscious it is stated by the witness Ganesha Ram that ^^eSaus lUrks"k ds gks'k esa vkus dh lwpuk lk.Mok iqfyl dks ugha nhA eSaus ;g lwpuk MkWDVj dks Hkh ugha nh fd iqfyl dks [kcj djksA** 29. PW-6 Rukma Devi is the mother of deceased. The said witness stated that marriage of my daughter was solemnized 16 years back with the accused Pema Ram. He was not maintaining her properly and using filthy words and many times assaulted her but she is not eye witness nor her allegations are corroborative. 30. PW-7 Bhanwar Singh and PW-8 Sugna Ram are the eye witness also turned hostile and did not support the prosecution case. 31. We have perused statement of PW-9 Gen Das. This witness was not present at the time of occurrence took place. 30. PW-7 Bhanwar Singh and PW-8 Sugna Ram are the eye witness also turned hostile and did not support the prosecution case. 31. We have perused statement of PW-9 Gen Das. This witness was not present at the time of occurrence took place. More so, he said that I was informed by my children that Pema Ram lit fire to his wife. Now she has been taken to the hospital at Bikaner. The said witness is husband of PW-1 Sumitra Swami. He said that when I reached to the house of deceased Gopal Das and Mool Das opened the door from inside and, thereafter, they entered into the house and made efforts for rescue. 32. PW-10 Hunta Ram is the witness before whom Ex.P-2 Panchayatnama, Ex.P-6 the possession of dead body were prepared. PW-11 is Shiv Karan. He said that I was informed telephonically by one Hanumandas Swami that my sister Santosh married with Pema Ram in village Girwarsar, who is admitted in the hospital in burnt condition and as per his information her husband Pema Ram and his nephew Babu Das after pouring kerosene lit fire, but it is very strange that witness Hanumandas not produced before the Court to prove the allegation of this witness. 33. PW-12 is Priyanka, Daughter of the deceased. It is stated by her that on the date of incident my cousin brother Babu Das came to the house and straightway went in the room of my father. He was having one bottle of liquor he threatened me to go the school. It is also stated by her that my brother Babu Das was using filthy words towards my mother, when I came back from the school, I was informed that father Pema Ram and Babu Das lit fire upon my mother due to that she has been admitted to the hospital. Meaning thereby, she is not eye witness of the incident. 34. PW-13 Vishnu Khatri is the Investigating Officer. As per his statement on 11.10.2008 an information was received by him on telephone that one lady Santosh is admitted in the hospital in burned condition and I went there for recording her statement, but upon letter Ex.P-9 it is informed by the doctor that she is not in a position to give statement. Thereafter, I again went on 20.10.2008 for recording her statement. Thereafter, I again went on 20.10.2008 for recording her statement. It is true that F.I.R. was registered on the basis of statement of deceased Santosh (Ex.P-11), but this Court cannot lose sight of the fact that as per brother of the deceased PW-2 Ram Gopal and PW-4 Hanuman Prasad the deceased became conscious just after 2-3 days and informed them that accused appellant poured kerosene upon her body, but PW-2 Ram Gopal stated that my sister deceased Santosh informed me that after pouring kerosene upon her they pushed her upon burning stove (Chulha), whereas PW-5 Ganesha Ram stated before the Court that ^^vkt ls <+kbZ ikSus rhu lky igys dh ckr gSA esjs ikl guqeku izlkn fuoklh ekydlj vk;k rFkk mlus crk;k fd esjh cgu ds lkFk nq?kZVuk gks xbZ gS tks tyh gqbZ gkyr esa chih,e vLirky chdkusj esa HkrhZ gSA vki esjs lkFk pyksA** 35. The said witness stated that when I reached hospital, she was not conscious, therefore, I returned back and after 2-3 days again went to the hospital to make query from her how you burned. According to the witness Ganesha Ram both the accused appellants poured kerosene upon her and lit fire Meaning thereby there is contradiction with regard to litting of fire because two witnesses PW-2 Ram Gopal and PW-4 Hanuman Prasad stated that they were informed by the deceased that she was pushed upon the stove (Chulha) whereas PW-5 Ganesha Ram stated that he was informed by the deceased that fire was lit by the accused appellants. We have also perused the statement (Ex.P-11) dated 20.10.2009 (sic), wherein the deceased said that ^^ckcqyky us esjs cky idM+ fy, o esjs mij ,d IykfLVd dh ihih ls rsy Mky fn;k fQj esjs ifr us eq.s pqYgs ij /kdk ns fn;k ftlls esjs 'kjhj ij vkx yxkbZ eSa cky fn;k] cky fn;k dk jksyk djus yxh rks ckcqyky fiNs dh fnokj dqndj Hkkx x;kA** 36. In view of the above evidence, it is obvious that prosecution has not proved its case beyond reasonable doubt how fire took place. The deceased said that I was pushed upon stove (Chulha) whereas other witness gave contrary statement in the Court. 37. Now the question arose whether the statement (Ex.P-11) were recorded in presence of doctor of the PBM Hospital or in presence of any independent person. We have considered the entire evidence in this regard. 38. The deceased said that I was pushed upon stove (Chulha) whereas other witness gave contrary statement in the Court. 37. Now the question arose whether the statement (Ex.P-11) were recorded in presence of doctor of the PBM Hospital or in presence of any independent person. We have considered the entire evidence in this regard. 38. Upon perusal of (Ex.P-11) it emerges that it does not bear signature of the doctor or certificate that she is in position to give statements or statement were recorded in his presence. As per our consideration if the statement (Ex.P 11) of deceased Santosh were recorded in the PBM Hospital, Bikaner then obviously it was to be recorded in the presence of doctor or any documentary evidence was necessary to prove the fact that deceased was in position to given statement. In this connection, we have considered the statement of PW-17 Dr. Sumant Dutta who conducted post mortem of the deceased Santosh and gave its report (Ex.P-17) and statement of PW-18 Dr. Manoj Garg who prepared the injury report Ex.P-13 of deceased Santosh. 39. Upon perusal of the statements it is clear that there is no documentary evidence on record to prove the fact that Ex.P-11 was recorded by the SHO in the presence of any Independent witness or in presence of doctor. It is also worthwhile to observe that as per statement of PW-17 Dr. Suman Dutta deceased Santosh died on 19.12.2008 after more than 2 months from the date of incident in the SMS Hospital, Jaipur. We have perused the statement of PW-20 Dr. Sanjay Dhanker. The said witness was PG Resident Doctor working in the PBM Hospital on 18.10.2008, on that date, the deceased was admitted. Suman Dutta deceased Santosh died on 19.12.2008 after more than 2 months from the date of incident in the SMS Hospital, Jaipur. We have perused the statement of PW-20 Dr. Sanjay Dhanker. The said witness was PG Resident Doctor working in the PBM Hospital on 18.10.2008, on that date, the deceased was admitted. The said witness categorically stated in his cross-examination that ^^;gh lgh gS fd ;s dSl ,e,ylh dsl FkkA eq>s ;g ;kn ugha gS fd ml ihch,e vLirky esa esfMdy T;qfj"V dkSu FkkA ml fnu cuZ ;qfuV dk dksbZ gSM gksrk ugha gSA et:ck MkW0 lhrkjke xksBokyk dh ;qfuV esa HkrhZ FkhA ;g lgh gS fd ,e,ylh dSlst esfMdy T;qfj"V ds }kjk gh xoZu gksrs gSaA izn'kZ ih0 18 is'k gksus ij eSaus esfMdy T;qfj"V dks lwfpr ugha fd;k Fkk vt[kqn dgk fd ftl fnu is'ksaV HkrhZ gksrk gS] mlh fnu esfMdy T;qfj"V vkSj iqfyl dks lwpuk nsrs gSaA mlds ckn ckj&ckj lwpuk ugha nsrs gSaA izn'kZ ih0 18 nLrkost dks eSaus esjs fjdkMZ esa ntZ ugha fd;kA izn'kZ ih0 18 ds vykok eSaus vU; dksbZ izek.k i= tkjh ugha fd;kA vt[kqn dgk fd eSa izek.k i= tkjh dj gh ugha ldrkA iqfyl ds iwNus ij eSaus et:ck dks c;ku nsus ds dkfcy gksuk crk;k FkkA ftl le; iqfyl us et:ck ds c;ku fy,] eSa ml le; ekStwn ugha FkkA ;g lgh gS fd c;kuksa ij esjk dksbZ ,UmkslZesaV ugha gSA ;g lgh gS fd izn'kZ ih0 18 esa ;g ugha fy[kk gSA fd et:ck ekufld :i ls c;ku nsus ;ksX; gSA ;g lgh gS fd tc iqfyl us esjs ikl izn'kZ ih0 18 is'k fd;k] rc eSaus mUgsa ;g ugha dgk fd esfMdy T;qfj"V ls QkjoMZ djokdj ykvksaA** This witness is neither the Medical Jurist nor the statement of the deceased (Ex.P-11) were recorded in his presence, therefore, the evidence discussed above loudly speaks that prosecution has failed to prove its case beyond reasonable doubt. 40. 40. On the basis of above discussion, we are of the opinion that on following reasons, the prosecution story became seriously doubtful: (a) Admittedly, incident took place on 11.10.2008 but in spite of the fact that deceased became conscious just after 2-3 days as per the statement of real brother PW-2 Ram Gopal and PW-4 Hanuman Prasad on information was given by them to the police for recording her statement nor written complaint or information was given by the family members to the police for the alleged incident. The delay of 10 days in registration of F.I.R. creates serious doubt. (b) Upon perusal of site plan also no kerosene cane/tin was recovered by the Investigating Officer. The incident took place on 11.10.2008 and F.I.R. was registered on the basis of statement of deceased Smt. Santosh (Ex.P-11) recorded on 20.10.2008 that too, in absence of Medical Jurist or any other doctor or even in the presence of PG Resident Doctor PW-20 Dr. Sanjay Dhankar, therefore, whole prosecution story become doubtful. (c) PW-1 Sumitra Swami categorically stated before the Court that she is Ex-Sarpanch and the door of the house of the deceased was closed from inside when she reached on spot and it was opened by Mool Das and Gopal Das from inside, but both the witnesses not produced before the Court to prove the said fact. Further, the said Ex-Sarpanch accepted in her statement that no information was given by her to the police or to the doctors in the hospital with regard to the incident. For the first time, she disclosed the said fact before the police when her statement were recorded under Section 161 Cr.P.C., that too, after registration of the F.I.R., therefore, the story of prosecution became seriously doubtful. (d) As per prosecution case the incident took place on 11.10.2008 and deceased died on 19.12.2008 after more than 2 months. In between said period, no efforts were made by the Investigating Officer for recording dying declaration of deceased under Section 164 Cr.P.C. by the Magistrate. This fact itself sufficient to say that prosecution story is seriously doubtful, therefore, it is not proper to relied upon the prosecution case based on the statement (Ex.P-11) of the deceased recorded by SHO after 10 days on 20.8.2008 (sic 20.10.2008) in absence of doctor or any independent person to convict the accused appellants for the allegation of murder. This fact itself sufficient to say that prosecution story is seriously doubtful, therefore, it is not proper to relied upon the prosecution case based on the statement (Ex.P-11) of the deceased recorded by SHO after 10 days on 20.8.2008 (sic 20.10.2008) in absence of doctor or any independent person to convict the accused appellants for the allegation of murder. (e) It is also very important aspect of the matter that right from the date of admission, the accused appellants were present in the hospital and PW-1 Sumitra Swami herself stated in her statement that the vehicle in which the injured deceased Santosh was taken to the hospital both the accused appellants were accompanied and they were present when she was admitted in the PBM Hospital and till 20.10.2008 none of the family members levelled allegations against accused appellants and all of sudden after 20.10.2008 a story was reported in which allegations were levelled against the accused appellants. (f) Upon assessment of entire evidence, we have no hesitation to say that there is no evidence of motive on record so as to hold accused appellants guilty for offence under Section 302 I.P.C. because marriage was solemnized 16-17 years back and appellant Pema Ram was having 3 issues from the wedlock with deceased, the Trial Court acquitted the appellants from the charge under Section 498A I.P.C., therefore, it is obvious that in absence of any evidence of motive it cannot be said that conviction of the accused appellants is proper. 41. 41. In view of the above discussion, we are of the opinion that prosecution has failed to explain why none of the family members and eye witness Smt Sumitra Swami and others did not give report to the police when deceased Smt Santosh was admitted in the hospital in burned condition and thereafter no efforts were made by the Investigating Office for recording the statement of deceased by the Magistrate in spite of the fact that she alive for more than two and half months from the date of occurrence, which is 10.8.2008 (sic 10.10.2008) till she died on 29.12.2008 and learned Trial Court erroneously relied upon the statement Ex.P-11 of deceased Santosh recorded by the SHO in absence of Medical Jurist or any other person, so also, there is no evidence to prove the fact that there was any motive in existence with the accused appellants, more so learned Trial Court acquitted the accused appellants from the charge levelled against them under Section 498A I.P.C. 42. In view of the above, we have no hesitation to hold that prosecution has failed to prove its case beyond reasonable doubt. Consequently, the instant criminal appeal is hereby allowed. The judgment of conviction and sentence dated 23.2.2013 passed against the accused appellants Pema Ram and Babu Das by the learned Addl. Sessions Judge, Sujangarh, District Churu in Sessions Case No. 2/2009 is hereby quashed and set aside and the accused appellants are hereby acquitted from the charges levelled against them. The accused appellants be released forthwith if not required in any other case.