JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—By way of instant criminal appeal, appellant-Shivram @ Sukhai s/o Har Narain, r/o- Katkari P.S. Nadigaon, District Jalaun at Orai has challenged judgment and order of conviction dated 30.3.2005 passed by III- Additional Sessions Judge, Jalaun at Orai in Sessions Trial No. 105 of 2003, State v. Parshuram and others, under Sections 147, 452, 302 IPC, Police Station- Nadigaon, District- Jalaun arising out of Case Crime No. 100/2001, whereby appellant- Shivram @ Sukhai- has been sentenced to one year rigorous imprisonment under Section 452 IPC and imprisonment for life under Section 302 IPC. Both the sentences to run concurrently. 2. Heard Sri Amit Tripathi, learned counsel for the appellant and Sri A.N. Mulla, Sri Saghir Ahmad, Sri J.K. Upadhyay and Kumari Meena, learned AGAs for the State and perused the record of this appeal. 3. A report was lodged against several persons including the appellant by informant- Sheetal Kumar s/o Laxman Singh at Police Station- Nadigaon, District- Jalaun alleging that some dispute exists with Parshuram and others for installing door. In the morning of 25.10.2001, informant- Sheetal Kumar- alongwith his father had gone to work in their field and his mother- Girja Devi was at home. Accused persons- Parshuram s/o Chuttan, Pappu @ Govind Narain s/o Parshuram, Shivram @ Sukhai s/o Har Narain, Ram Sharan s/o Har Narain, Sudama s/o Har Narain and Smt. Munni Devi w/o Shivram @ Sukhai entered in the house of informant- Sheetal Kumar and caught informant’s mother- Smt. Girja Devi, who was brooming floor of the Courtyard of the house, and with intention to kill, Shivram @ Sukhai poured kerosene oil on his mother and put her afire. Informant’s mother raised alarm when Shyam Sundar s/o Amrit Singh, Vimal s/o Raghav Ram and Ramkesh s/o Chatur Singh, who were sitting in front of the house, came to her rescue after breaking open the door, which was locked from inside, when they found informant’s mother lying on the ground in burnt condition. They also saw the assailants fleeing away through the roof of the house. This report is Ext. Ka-1. 4. Contents of report were noted in the check F.I.R. No. 53/2001 at 8:45 a.m. on 25.10.2001 at Case Crime No. 100/2001, under Sections 147, 452, 307 IPC, Police Station- Nadigaon, District- Jalaun. The check F.I.R. is Exhibit Ka-4. They also saw the assailants fleeing away through the roof of the house. This report is Ext. Ka-1. 4. Contents of report were noted in the check F.I.R. No. 53/2001 at 8:45 a.m. on 25.10.2001 at Case Crime No. 100/2001, under Sections 147, 452, 307 IPC, Police Station- Nadigaon, District- Jalaun. The check F.I.R. is Exhibit Ka-4. On the basis of entry made in the check FIR, relevant entry was made in the concerned GD and a case was registered against the accused persons including the present appellant at aforesaid case crime number on 25.10.2001 at Case Crime No. 100/2001 under aforesaid sections of Indian Penal Code at Police Station- Nadigaon. The GD entry is Exhibit Ka-5. 5. After registration of the case, investigation was taken over by S.I. Chandra Prakash Chaturvedi P.W.9. He recorded contents of Check FIR, GD entry and statement of the informant in the case diary and proceeded to the spot and after inspection of the spot, he prepared site plan, Exhibit Ka-15. Besides, he also collected some plastic containers, burnt pieces of sari and clothes, match-box and broken pieces of bangles and made a memo of all these articles, Exhibit Ka-16. 6. At this stage, the investigation was taken over by another Investigating Officer. Record shows that the investigation was also conducted by Rajendra Bahadur Singh D.W.1, who after receiving order dated 12.11.2001 of Superintendent of Police, Jalaun (Orai), took over investigation on 13.11.2001 and he also prepared site plan and has proved the same, as Exhibit Kha-2. He has also proved several other aspects regarding the proceeding undertaken by him. After completing the investigation, he filed final report Paper No. 26 Ka, in the case, and proved it as Exhibit Kha-3. 7. We also gather from record that Smt. Girja Devi(the then injured) was taken to C.H.C.- Konch where her medical examination was conducted around 9:15 a.m. by Dr. Rajesh Tripathi PW-7, who after examination of her person noted condition of the patient : “General condition was low, pulse 90 per minute, conscious, B.P.- 100/70, R/R- 16 per minute. Singeing of hair present.” 8. In the estimation of the doctor, the percentage of burn was 90%. Dr. Rajesh Tripathi- PW-7 has proved the medical examination report of Smt. Girja Devi, as Exhibit Ka-13. 9. Singeing of hair present.” 8. In the estimation of the doctor, the percentage of burn was 90%. Dr. Rajesh Tripathi- PW-7 has proved the medical examination report of Smt. Girja Devi, as Exhibit Ka-13. 9. Record further reflects that dying declaration of victim- Smt. Girja Devi- was also recorded, the very same day - between 11:15 a.m. to 11:30 a.m. on 25.10.2001 by the then Naib Tehsildar of Tehsil- Konch- Sri Prabuddh Singh PW-4. He has testified that he took statement of Girja Devi on 25.10.2001 at 11:15 a.m. and after recording the statement, thumb impression of Girja Devi was also obtained on it. The condition of the patient was certified fit by the doctor at the commencement of recording of dying declaration and also at the closure of the dying declaration. Certificate of fitness for recording statement was given by Dr. Rajesh Tripathi PW-7, as Exhibit Ka-11 and Exhibit Ka-12. Sri Prabuddh Singh PW-4 has proved that he in fact recorded the dying declaration and has proved the same as Exhibit Ka-3. 10. It is further reflected that due to serious condition of injured- Girja Devi, she was referred to Medical College Jhansi by Dr. Rajesh Tripathi (PW-7) for better treatment at 10:40 a.m. on 25.10.2001. She was taken to the Medical College, Jhansi where she succumbed to her injuries during course of treatment at 3:15 p.m. on 27.10.2001. The information was sent to the concerned police outpost at 4:40 p.m. Thereafter, S.I. N.K. Tiwari PW-6 proceeded to the mortuary of Medical College Jhansi at 10:30 a.m. on 28.10.2001 and after appointing inquest witnesses, who were family members and co-villagers, held inquest and completed the same around 11:45 a.m.(28.10.2001) In the opinion of inquest witnesses and N.K. Tiwari PW-6, it was suggested that post-mortem examination of dead body be conducted for ascertaining real cause of death, therefore, relevant papers like letter to R.I., letter to C.M.O., challan dead body, photo nash were also prepared, which are paper No. Exhibit Ka-7, Ka-8, Ka-9 and Ka-10, respectively and the dead body was sent for post-mortem examination. 11. Post-mortem examination on the cadaver of deceased- Girja Devi- was conducted by Dr. D.K. Garg P.W.3 at the mortuary of Medical College, Jhansi on 28.10.2001 at 1:30 p.m., wherein, the doctor noted following ante-mortem injuries on the body : 12. 11. Post-mortem examination on the cadaver of deceased- Girja Devi- was conducted by Dr. D.K. Garg P.W.3 at the mortuary of Medical College, Jhansi on 28.10.2001 at 1:30 p.m., wherein, the doctor noted following ante-mortem injuries on the body : 12. Superficial to deep burn present all over the body except waist line, palms and soles. Red line of demarcation is present. Stain is peeled off at places. Hairs in axilla, eyebrow, eye lash and above the forehead are singed. Cut open is present in both ankles. 13. This post-mortem examination report has been proved as Exhibit Ka-2 by Dr. D.K. Garg PW-3. 14. Record further reveals that during course of proceeding, several Investigating Officers were changed and directed to investigate into the case. One of such Investigating Officers was Rafeek Khan PW-8. He took over the investigation at the command of Superintendent of Police and recorded afresh statement of witnesses. Since, some contradictions appear in the statement of witnesses given to C.O.- Jalaun and S.O.- Nadigaon, therefore, statement of witnesses were got recorded under Section 164 Cr.P.C. on 2.2.2002. In the process, statement of witnesses- Vimal, Ram Kesh, Shyam Sundar, Bhagwan Singh, Mathura Prasad, Shiroman etc. were recorded. The Investigating Officer also took several steps for ensuring arrest of the accused persons and, thereafter, on 4.5.2002, the investigation of the case was transferred by order of Superintendent of Police to S.I.S Branch. 15. In the course of proceeding, the investigation was taken over by Sri R.N. Gautam P.W.10 on 21.7.2002. As per his statement, this case was investigated into previously by several Investigating Officers and he has specified the period. S.I. Ram Gopal Diwakar investigated into the case from 5.11.2001 to 12.11.2001. Deputy Superintendent of Police R.B. Singh investigated into the case from 12.11.2001 to 9.12.2001. Deputy S.P. Rafeek Khan investigated into the case from 10.1.2002 to 4.5.2002 and thereafter, S.I. Sri P.N. Pandey investigated into the case from 7.6.2002 up to 15.7.2002. Thereafter, S.I. Sri R.N. Singh also investigated into the case from 15.7.2002 to 19.7.2002 and thereafter, R.N. Gautam PW-10 investigated into the case from 21.7.2002 onwards til its completion. 16. He after collecting the entire testimony found sufficient evidence against the accused persons, therefore, submitted charge-sheet Exhibit Ka-17 in the aforesaid case crime number. Thereafter, S.I. Sri R.N. Singh also investigated into the case from 15.7.2002 to 19.7.2002 and thereafter, R.N. Gautam PW-10 investigated into the case from 21.7.2002 onwards til its completion. 16. He after collecting the entire testimony found sufficient evidence against the accused persons, therefore, submitted charge-sheet Exhibit Ka-17 in the aforesaid case crime number. Thereafter, committal proceeding took place and the case was transferred to the concerned trial Court of Additional Sessions Judge, who after hearing both the sides on point of charge, was prima facie satisfied with the case against the accused persons under Sections 452, 302 and 147 IPC. The charges were read over and explained to the accused, who abjured charges and opted for trial. 17. Prosecution produced in all 10 witnesses; a brief sketch of the same is ut infra: 1. Sheetal Kumar PW-1 is the informant. He has proved the written report Exhibit Ka-1. He has also testified on various aspects of the case. 2. Vimal Kumar PW-2 claims himself to be an eye-witness of the occurrence. 3. Dr. D.K. Garg PW-3 has conducted post-mortem examination on the cadaver of the deceased on 28.10.2001 at mortuary of Medical College, Jhansi and he has proved the post-mortem examination report Exhibit Ka-2. 4. Sri Prabuddh Singh PW-4 is the Naib Tehsildar, who recorded dying declaration of Girja Devi on 25.10.2001 between 11:15 p.m. to 11:30 p.m. and has proved it as Exhibit Ka-3. 5. Constable Suresh Kumar P.W.5 has noted relevant entry in the concerned check FIR and GD and has proved the same as Exhibit Ka-4 and Ka-5, respectively. 6. S.I. N.K. Tiwari PW-6 held inquest of deceased at the mortuary of Medical College, Jhansi on 28.10.2001 and has proved the same, as Ext. Ka-6. Besides, he has also proved relevant papers Exhibit Ka-7, Ka-8, Ka-9 and Ka-10. 7. Dr. Rajesh Tripathi P.W.7 has conducted medical examination of the deceased and has proved the same as Exhibit Ka-13 and he has also proved Exhibit Ka-11 and Ka-12, as the endorsement made on dying declaration to the effect that Girja Devi was fit for giving the statement and pursuant to his certification, dying declaration was recorded by Naib Tehsildar. 8. Rafeek Khan PW-8 is the Investigating Officer. He took over the investigation at subsequent stage and has ensured recording of statement of various persons under Section 164 Cr.P.C. and has proved the process. 9. 8. Rafeek Khan PW-8 is the Investigating Officer. He took over the investigation at subsequent stage and has ensured recording of statement of various persons under Section 164 Cr.P.C. and has proved the process. 9. Previously, the investigation was initiated after registration of the case by S.I. Chandra Prakash Chaturvedi P.W.9 on 25.10.2001 and he has proved preparation of site plan Exhibit Ka-15 and preparation of memo of plastic containers, burnt saree, match box and pieces of broken bangles as Exhibit Ka-16. 10. During course of investigation, the investigation was also conducted by Sri R.N. Gautam PW-10. He took over the investigation on 21.7.2002 and after completing the investigation, filed charge-sheet against accused persons including present appellant and has proved the charge-sheet as Exhibit Ka-17. 18. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, he termed his implication false on ground of enmity and stated that one day prior to the incident, some compromise was facilitated by the intervention of police between the informant side and himself due to which, the deceased felt humiliated and she herself set afire (on her) and the informant side tried to extract money by falsely registering a case against the appellant. In its turn, the defence led testimony of three witnesses : 19. Rajendra Bahadur Singh DW-1 was entrusted investigation by order of Superintendent of Police, Jalaun dated 12.11.2001 and he started investigation on 13.11.2001 and took several steps, prepared site plan of the occurrence and proved the same as Exhibit Kha-2. He has also proved filing of final report in the case as Exhibit Kha-3. 20. Keshav Das DW-2 is witness of fact that Girja Devi had sustained burn injuries around 8:00 a.m. At that time, Laxman Singh and son of deceased were away from home and he did not enter the house when the incident took place. He is also witness of fact that when he went inside the house, he saw Laxman Singh banging his head against the door. He has denied involvement of accused in the incident. 21. Raj Kumar DW-3 is also witness of fact that some dispute took place between Laxman Singh, and Shivram on point of construction of wall and installation of door. Shivram had opened door and Laxman Singh had a constructed wall. He has denied involvement of accused in the incident. 21. Raj Kumar DW-3 is also witness of fact that some dispute took place between Laxman Singh, and Shivram on point of construction of wall and installation of door. Shivram had opened door and Laxman Singh had a constructed wall. Police came to the spot and then some compromise was arrived at in the police station. Wall was demolished and door was closed. 22. Thereafter, the trial Court after affording opportunity of hearing to both the sides, passed aforesaid verdict, and acquitted all the accused, except the present appellant- Shivram @ Sukhai and convicted him under Sections 452 and 302 IPC and sentenced to one year rigorous imprisonment and life imprisonment, respectively, under aforesaid sections. 23. Consequently, this appeal. 24. It has been vehemently claimed on behalf of the appellant that he has been falsely roped in, in this case on account of animosity and as a measure of blackmailing him by the informant side. No such incident ever took place, as alleged by the prosecution. There was no occasion for him to commit such offence. The fact is that prior to the incident, some dispute arose between both the sides regarding installation and construction of door and wall by both the sides and a report was made to the police, and after its intervention, some compromise was arrived at between the parties. This compromise included terms that the wall raised by Laxman Singh, husband of deceased, shall be destroyed and was eventually destroyed, which was taken seriously by the deceased, who, out of humiliation and as a gesture of opposition to the terms of compromise, set herself on fire. After the fire was detected, it was an opportune moment to falsely name the appellant, as culprit and things were managed by giving false testimony. During the course of investigation, one of the Investigating Officers took stock of the evidence and filed final report, which was rejected and a number of Investigating Officers were changed by the Superintendent of Police for deliberately collecting sketchy evidence. In the process, a “managed dying declaration” was got recorded through the agency of Naib Tehsildar. During the course of investigation, one of the Investigating Officers took stock of the evidence and filed final report, which was rejected and a number of Investigating Officers were changed by the Superintendent of Police for deliberately collecting sketchy evidence. In the process, a “managed dying declaration” was got recorded through the agency of Naib Tehsildar. The dying declaration, on its plain reading, does not appear to be natural and voluntary statement of an illiterate lady, but her statement is so systematically ordained that it contains meticulous particulars of date, time and name of persons, who indulged in the act. Even in this dying declaration, it has emerged out that the deceased had no dispute with the assailants and she cannot say why the culprit set her on fire. 25. Learned counsel further added that statement of various witnesses of fact is inter-se contradictory in substance. Their testimony, on the whole, does not inspire confidence. Instead, it creates lot of doubts about their being present on the spot and happening of any such occurrence, as claimed. The version of FIR is not supported by the informant and the witnesses in their ocular version. The fact is that the informant side wanted to extract money and tried to encash the act of suicide by deceased- Girja Devi. The prosecution has not been able to prove its case beyond reasonable doubt. 26. The trial Court while appreciating facts and evidence on record- qua circumstances of the case- miserably failed to take wholesome view of the incident and adopted parochial approach and erroneously convicted the appellant and awarded the sentence. 27. Learned AGA has retorted to aforesaid contention and submitted that it is a case where independent testimony of culpability is amply proved by dying declaration of the victim herself and it is on the face truthful, consistent and voluntary. Dying declaration becomes an independent piece of evidence apart from any other testimony. A number of witnesses arrived on the spot and they saw the accused committing the crime. Fortunately, the victim survived for sometime and she herself narrated the incident in her dying declaration recorded shortly after the incident. Witnesses of fact have proved the incident. Investigation of the case has been properly conducted and involvement of the accused is exorbitantly proved. A number of witnesses arrived on the spot and they saw the accused committing the crime. Fortunately, the victim survived for sometime and she herself narrated the incident in her dying declaration recorded shortly after the incident. Witnesses of fact have proved the incident. Investigation of the case has been properly conducted and involvement of the accused is exorbitantly proved. We know in such cases some contradictions are bound to occur in the testimony of witnesses, but these contradictions alone are not the sole ground for throwing away case of the prosecution, because the incident and involvement of the accused in committing the crime has been reasonably proved. It is prerogative of Superintendent of Police of a District that he may order for change of investigation, if he comes to conclusion that better result can be obtained. Mere change of Investigating Officers will ipso facto not make a case that things have been tried to be managed in a particular way to the detriment of the accused. The testimony, on the whole, inspires confidence and the trial Court has taken correct view of the testimony and facts of the case and has justifiably recorded conviction against the accused. 28. We have considered the rival submissions and also considered the rival claim made by both the parties. In view of above, the point for determination of this appeal relates to fact whether the prosecution has been successful in proving charges against the appellant beyond reasonable doubt? 29. The genesis of the prosecution case is reflected from perusal of the First Information Report which, iner-alia, contains facts in form of allegation that the appellant- Shivram @ Sukhai alongwith certain other co-accused persons entered in the house of first informant on 25.10.2001 when Smt. Girja Devi was brooming the floor of her Courtyard. It was around 8:00 a.m. The accused picked up plastic containers kept in the Courtyard filled with kerosene oil, poured it on victim Girja Devi, and set her on fire by use of matchstick. Informant’s mother raised alarm when Shyam Sundar, Vimal and Ram Kesh rushed inside the house after breaking open the door where they saw informant’s mother- Girja Devi- in burnt condition and fallen on the ground and they also saw the assailants fleeing away from the scene through the staircase of the house and onto the roof. Informant’s mother raised alarm when Shyam Sundar, Vimal and Ram Kesh rushed inside the house after breaking open the door where they saw informant’s mother- Girja Devi- in burnt condition and fallen on the ground and they also saw the assailants fleeing away from the scene through the staircase of the house and onto the roof. Informant’s father and family members took her to the hospital at Konch. A report was lodged at the Police Station- Nadigaon at 8:45 a.m. The distance between the place of occurrence- from Village Katkari up to the Police Station- Konch was 6 kms. 30. We come across testimony of Dr. Rajesh Tripathi PW-7 to the effect that he medically examined the victim Girja Devi at C.H.C.- Konch at 9:20 a.m. on 25.10.2001, wherein, he found condition of patient conscious, B.P.- 100/70, pulse 90 per minute. Singeing of hair present. In his opinion, degree of burn was 90% caused by flame. 31. It is case of defence that some dispute took place between the parties qua written report was moved before the Police Station- Nadigaon on 23.10.2001, which related to fact that the accused side have destroyed wall of house of Laxman Singh and are trying to forcibly open door at that place. Copy of such report is on record, as Exhibit Kha-1. 32. It has further been claimed by the appellant that some compromise was also entered into between the parties at the police station (Nadigaon) and copy whereof was obtained by the Investigating Officer- Rajendra Bahadur Singh DW-1 and he has testified to that effect in his examination-in-chief before the trial Court and lastly, Girja Devi felt humiliated due to aforesaid compromise, thus, she herself committed suicide. 33. We have to scrutinise testimony of witnesses of fact qua claim of the appellant. At this stage, we may analyse various vital aspects of this case and one of the most vital aspects of this case is the dying declaration; because it is trite law that dying declaration forms independent piece of testimony and to be tested on its own merit and dying declaration, if found to be truthful, consistent and voluntary, then the same can be the basis of conviction apart from other testimony. Therefore, we will take note of dying declaration from that view point. Therefore, we will take note of dying declaration from that view point. But before we discuss the same, it would be appropriate and relevant to take note of oral testimony of witnesses of fact and other attendant circumstances. It is obvious that this case was also investigated by R.B. Singh, the Investigating Officer C.O.- Jalaun and a final report was submitted, which has been proved by him as Exhibit Kha-3. 34. It is quite startling that the prosecution did not come out with true facts about conduction of the entire investigation. We can’t understand the reason for withdrawing the Investigating Officer of this case- R.B. Singh, as prosecution witness, who was produced by the defence as D.W.1. We will be failing in our duty, if, we don’t take account of such a situation- like the present one. If an investigation was conducted previously by any Investigating Officer and he collected certain material during course of investigation and submitted final report, then that part of the investigation must have been made conspicuous by the prosecution itself because omission to put entire record before Court throws doubt on the intention of the prosecution and this adversely affects ultimate interest of justice. It is bounden duty of the prosecution to bring truth before the Court. May be, that the material placed before the Court is favaourable or unfavourable to either of the two sides, but it should never be suppressed and shielded from arms of the Court as that would be against interest of justice- which we all are duty bound to respect in all eventuality. 35. The version of the FIR and the testimony of PW-1- the informant- Sheetal Kumar son of the deceased- Girja Devi on overall reading affects that he was not present at the time of the occurrence, but he was informed about the incident while he was working in his field around 8:00 a.m. on 25.10.2001. However, he has testified in his examination-in-chief that some dispute took place between the accused and himself, prior to the incident, on point of installation of door and the police took the accused to the police station and this act (of taking away to the police station) was taken by him as against his prestige and informant’s mother had stopped the accused from installing door and this incident, as per testimony, took place on 24.10.2001. Although, he has denied fact that it is incorrect to say that his father and he himself were raising some wall on the spot. On page- 26 of the paper book, PW-1 has testified to the fact that the compromise deed- Paper No. 24A/1 is in the hand-writing of his father and Paper No. 24A/2, which also contains seal of the police station is the paper, whereon it has been written that the wall, which has been constructed by Laxman Singh, will be destroyed and the door installed in the wall by Parshuram shall be removed and situation restored. Thus, it is obvious that prior to the incident, a compromise had been arrived at between the parties and the overall outcome of the compromise was in terms aforesaid. 36. Although, at various places in his cross-examination- Sheetal Kumar PW-1 has tried to avoid the ‘write up’ appearing in the compromise Paper No. 24A/2. He has also been confronted on various aspects by the defence about availability of kerosene oil in his home and he has stated on page No. 24 of the paper book that the plastic containers filled with kerosene oil were not possessed by him. This witness was again confronted by suggesting that he had written in his report that plastic container, with kerosene oil was picked up by Shivram, whereupon, he has denied the fact. However, he could not assign any reason as to how this has been written in his report. He has twisted things in such a particular manner that the kerosene oil was brought by the accused from his house but that assertion has not been established as is evident from the language of the First Information Report. A reasonable man after reading of the report will normally gather immediate impression that the kerosene oil was already kept in the plastic containers in the Courtyard of informant and it was not carried over by the accused. Although, this witness has also testified on page No. 29 of the paper book that the Investigating Officer C.O.- Jalaun R.B. Singh (D.W.1) came to the spot and had prepared site plan and also inquired from the witnesses. Although, this witness has also testified on page No. 29 of the paper book that the Investigating Officer C.O.- Jalaun R.B. Singh (D.W.1) came to the spot and had prepared site plan and also inquired from the witnesses. He has been confronted on page No. 31 of the paper book that report contains fact that the witnesses arrived at the spot only after breaking open the door of the house, whereupon, he has stated that no such thing was written in the First Information Report and if, it is so, then it is incorrect. 37. Here also, we come across language of the F.I.R., which describes in clear-cut terms, that certain persons broke open the door, which was bolted from inside and then entered into the house. P.W.-1 has also stated in his cross-examination that he wrote the report at the instance of her mother and of his own. He has also stated on page No. 32 of the paper book that at the time of occurrence, his wife was away from home. He has also been suggested by the defence that his mother was a very stubborn lady and had previously tried to commit suicide. 38. Now, we may switch over to the testimony of eye-witness of the occurrence- Vimal Kumar- PW-2. He is stated to be eye-witness of the occurrence. As per his testimony in cross-examination, it is obvious that Sheetal Kumar P.W.1 arrived on the spot only after the incident had taken place. As per his testimony on page-36 of the paper book, Bhagwan Singh, Laxman Singh arrived at the place of occurrence only when accused had already left the place of occurrence. Therefore, we are left with only testimony of this witness and we have to test veracity of his testimony. He has stated in his examination-in-chief that at the relevant point of time he was sitting on the chabutra of Laxman Singh alongwith Ramkesh and Shyam Sunder when some shriek of deceased was heard from her house, whereupon, all the three persons rushed inside the house where they saw Govind Narain @ Pappu, Shivram @ Sukhai, Sudama, Ram Sharan and Munni Devi present in the midst of Courtyard of the house and deceased- Girja Devi was inflames in the Courtyard. This witness has been put to specific question, as to what was being possessed by the accused at that point of time. This witness has been put to specific question, as to what was being possessed by the accused at that point of time. Reply has come to the extent that Shivram @ Sukhai was possessing plastic container, Pappu possessing danda and Munni Devi possessing matchbox. Parshuram, Ram Sharan and Sudama were empty handed. On being challenged by the witnesses, the accused persons fled away from the scene, then they put off flames on the person of deceased- Girja Devi- and after sometime Bhagwan Singh, Laxamn, Mathura and Shiromani also arrived. Victim- Girja Devi was taken to the Hospital. He has been cross-examined by the defence, whereupon, he has stated that they arrived at the place of occurrence and they were standing near to the accused persons, then the accused persons fled away. 39. Again, he has testified that the accused persons were fleeing in a line one after the another and Munni Devi was at the end of the line. This witness (P.W.2) and others did not intervene and intercept the accused persons. However, he has also stated on page-36 of the paper book that grand-mother of Sheetal Kumar (P.W.1) was also present inside the house. It has also emerged in his testimony that after the assailants had left the scene, they (accused) went to their adjoining home. Here springs question that no one from among witnesses tried to pursue them (accused) nor any gesture was made in that regard. On the same page, he has stated that his aunty (victim) remained in stationary position/condition at the same place while she was in flame. This sort of testimony sans normal course of conduct generates doubt, if taken on its face value. 40. How can it be expected that a lady, who has been set ablazed remained stationary in burning condition at the same place in standing posture and the burnt percentage has been assessed to be of magnitude 90%. This factual aspect is hard to believe as stated by the witness, because in normal course of human behaviour that conduct is highly improbable on the part of the victim- Girja Devi. She will always try to save herself and will move from her original position. This particular testimony gives rise to a situation that the witness (P.W.2) was neither present on the spot nor did he see the actual incident of burning. 41. She will always try to save herself and will move from her original position. This particular testimony gives rise to a situation that the witness (P.W.2) was neither present on the spot nor did he see the actual incident of burning. 41. Next, if the accused had already fled away from the scene, then after arrival of informant (P.W.1) Laxman Singh and others they did not acted in retaliation and they did not react to the cruel behaviour of the assailants, though next door neighbour, is also highly improbable conduct on the part of the informant side. This also generates doubt whether the accused persons were in fact sighted at the scene or not? 42. In the backdrop of aforesaid evidentiary evaluation of ocular testimony of both the witnesses PW-1 and PW-2 Sheetal and Vimal respectively, now, we advert to the point of recording of dying declaration, its evidentiary value and the attendant circumstances, under which the dying declaration was recorded. Dying declaration is Exhibit Ka-3 and the same has been proved by Naib Tehsildar Prabuddh Singh PW-4. He has testified that on 25.10.2001, he was posted as Naib Tehsildar of Konch Tehsil and he went to record statement of Girja Devi w/o Laxman Singh. He saw Girja Devi in good condition and she was checked by Dr. Rajesh Tripathi P.W.7 before him and after checking, doctor had declared her fit for recording statement and the statement was recorded around 11:15 a.m. and has proved the dying declaration as Exhibit Ka-3. However, on page No. 46 of the paper book in his cross-examination, he has stated that no one recorded his statement about the proceeding he undertook. Further, he testifies that he was satisfied with the condition of the victim after he asked her about name of her husband. However, reference of asking any question with the victim was not recorded by him on the dying declaration. He has also stated on page No. 46 of the paper book that the victim was fluently answering to question put to her. Her whole body was burnt, except the two palms. He has also testified fact that he has not identified the thumb impression appended on the dying declaration. This testimony has got relevance and is to be read conjointly with the testimony of Dr. Her whole body was burnt, except the two palms. He has also testified fact that he has not identified the thumb impression appended on the dying declaration. This testimony has got relevance and is to be read conjointly with the testimony of Dr. Rajesh Tripathi PW-7, who medically examined the victim prior to her death at 9:15 a.m. at C.H.C.- Konch. He has stated in his examination-in-chief that the deceased was brought in burnt condition at C.H.C. Konch and he had certified her physical fitness before and after recording of the dying declaration. He has stated that she (Girja Devi) was in fit condition to give statement at that point of time. He has identified his signature declaring fitness of the victim prior to and after recording of the dying declaration both at 11.15 a.m. and 11.30 a.m. on 25.10.2001, respectively and the same has been proved as Exhibit Ka-11 and Ka-12. However, he has been cross-examined, wherein, he has testified that he did not talk about general condition of the victim. He has been cross-examined on page-54 of the paper book, wherein, he has specifically stated that looking to the serious condition of the patient, he referred the patient for Medical College, Jhansi at 10.40 a.m. and at that point of time, dying declaration or any statement of the victim had not been recorded. It signifies that the condition of the victim had already deteriorated around 10.40 a.m. on 25.10.2001 and doctor Rajesh Tripathi P.W.7 was himself the person, who after examining the victim had referred her for Medical College, Jhansi from C.H.C. Konch, then obviously, the point is that after the condition of the victim had deteriorated to such an extent that she was referred for better treatment at the Medical College, Jhansi then after 10.40 a.m. where was she staying till 11.30 a.m. and for what and under what circumstance the dying declaration was managed/recorded and at whose instance it was managed, has not been clarified properly and the circumstances allude to inference that during this span of time gap from 10.40 a.m. upto 11.30 a.m. why the victim was not sent for treatment, as per reference, once her (Girja Devi) condition was serious, is shrouded in mystery. A patient, who is carrying 90% burn injury and her condition has become serious, and has been referred to medical college can hardly be expected to be under such a condition to speak fluently and give statement. Doctor Rajesh Triapthi has himself stated that he had not examined general condition of the victim and the certification given by the doctor declaring the victim fit for recording statement also does not specify exact physical condition and we cannot ignore this particular aspect, in the face of unassailable testimony, that the whole body was burnt- except the palms. Therefore, this particular aspect creates doubt on the actual physical condition of the victim at the time when her statement was recorded. It is quite surprising that a patient was referred at 10.40 a.m. for better treatment, once her condition had deteriorated and become serious still after 35 minutes of reference at 11.15 a.m. statement of victim was recorded, but who managed the situation between this duration of 10.40 a.m. to 11.15 a.m. for facilitating recording of dying declaration and under what circumstance, remains a black hole, which creates doubt on the recording of dying declaration. Not only this, we also have serious doubts on the language and manner of the dying declaration, in which, it has been recorded. Obviously, the victim is illiterate lady and the language and the seriatim, in which the dying declaration is shown to have been ordained smacks of tutoring of any outsider. It starts quite surprisingly- ^^cgyQ c;ku djrh gWw^^ . The point is such a starting cannot be expected of an illiterate lady, whose condition is serious and that, too, after sustaining 90% burns all over the body, except palm. The dying declaration then proceeds on after disclosing fact ‘date 25.10.2001’. This is also quite surprising that it was already the same day when the occurrence took place even then it contains description ‘fn0 25.10.2001’ and then it describes the occurrence in the manner that Shivram @ Sukhai poured kerosene oil on her and set her ablazed and the parentage of other accused has also been described (as the dying declaration proceeds on). This manner and style, under circumstances, cannot be expected to be natural outcome and cannot be thought of a rustic lady, whose condition is admittedly serious. Even the doctor, who gave fitness certificate has only stated that the patient is fit for giving statement. This manner and style, under circumstances, cannot be expected to be natural outcome and cannot be thought of a rustic lady, whose condition is admittedly serious. Even the doctor, who gave fitness certificate has only stated that the patient is fit for giving statement. But once the doctor had already referred the patient at 10.40 a.m.- 35 minutes prior to the recording of the dying declaration- then how and when and under what circumstance the occasion arose for recording this statement becomes a vacuum without explanation. 43. Here, circumstances, denote that the dying declaration was perhaps obtained with some ulterior motive and it is established law in matter of dying declaration that it must be truthful version, consistent and voluntarily and in case, it appears that it is neither consistent nor voluntarily, then the same cannot be relied upon. The doctor has worked perfunctorily and he did not specify the general condition of the patient at the time of recording of dying declaration. This much was not sufficient that he wrote that patient is fit for giving statement. Even Prabuddh Singh- Naib Tehsildar- P.W.4 is so clever that he himself is silent in his testimony in examination-in-chief itself, as to how he came to record dying declaration and at whose instance. It appears that the Naib Tehsildar has cleverly evaded explanation in his examination-in-chief for which none but the prosecution alone is to be blamed. It was upto the prosecution to have come out with real and existing facts and circumstances under which Prabuddh Singh- Naib Tehsildar- P.W.4 arrived on the spot and recorded statement (of the victim). 44. Above analysis of specific circumstance and testimony on record establishes obviously that the dying declaration, Exhibit Ka-3 is neither voluntary nor truthful version and it appears to have been tutored and outcome of deliberation of some person. As such, the same cannot be relied on and read against the appellant. 45. Learned trial Judge while appreciating facts and evidence on record miserably failed to take proper stock of facts and evaluation of testimony and consequently committed error in recording conviction against the appellant. 46. As such, the same cannot be relied on and read against the appellant. 45. Learned trial Judge while appreciating facts and evidence on record miserably failed to take proper stock of facts and evaluation of testimony and consequently committed error in recording conviction against the appellant. 46. Before parting with the judgment, it would be quite relevant to mention that the prosecution has not come with clean hands and has not produced Sri Rajendra Bahadur Singh D.W.1, as one of the Investigating Officers of this case as prosecution witness so as to bring on record true and correct facts. It was sincere efforts of the appellant, which brought his testimony on record in shape of D.W.1 and his testimony goes to show that the prosecution witnesses have been vacillating in making statement. Not only this, Rafeek Khan P.W.8, one of the Investigating officers of this case has also stated in his examination-in-chief that because of apparent contradictions emerging in the statement of prosecution witnesses, he was compelled to facilitate recording of statement of prosecution witnesses under Section 164 Cr.P.C. This also goes to show that the Investigating Officers were not fair in their approach and they had only one idea and that was of availing conviction of the accused after imputing culpability on the appellant. 47. Our discussion makes it apparent that the prosecution witnesses of fact Sheetal Kumar P.W.1 and Vimal Kumar P.W.2- both are vacillating and improving gradually in their testimony and they have not come with correct story of the occurrence. Their presence on the spot, their natural behaviour at the time of occurrence conduct and post occurrence conduct is highly improbable and their statement given to the Investigating Officers at different level of investigation also shows their gradual improvement and shift in describing the manner and style of the incident, therefore, their testimony on the whole does not inspire confidence and their testimony is unworthy of credence. 48. It is cardinal principle of criminal jurisprudence that prosecution has got to prove its charge beyond reasonable doubt against the accused and it has to stand on its own legs and in case, any doubt is created in the testimony, facts and attendant circumstances of the case that the offence was infact committed by the accused concerned, then the charge cannot be said to have been proved beyond reasonable doubt. 49. 49. Discussion made herein above goes to show that the argument advanced by the learned counsel for the appellant carries force, and the same are to be accepted by us, accordingly, the appeal is allowed and judgment and order of conviction dated 30.3.2005 passed by Additional Sessions Judge, Jalaun at Orai in Sessions Trial No. 105 of 2003, State v. Parashu Ram and others, under Sections 452, 302 IPC, Police Station- Nadigaon, District- Jalaun arising out of Case Crime No. 100/2001 is hereby set aside and the accused-appellant- Shivram @ Sukhai is exonerated of all charges. 50. Appellant- Shivram @ Sukhai is in jail. He will be released forthwith, if he is not wanted in connection with any other case. 51. However, we direct that the appellant will ensure compliance of provisions of Section 437A Cr.P.C. by appearing before the concerned trial Court at the earliest. 52. Let a copy of this order/judgment be certified to the Court below for necessary information and follow up action.