JUDGMENT Vinit Kumar Mathur, J. - The instant appeal under section 374(2) of Cr.P.C., 1973 has been preferred by the appellants against the Judgment dated 15.12.2011 passed by the Additional Sessions Judge (Fast Track) No. 1, Bhilwara in Sessions Case No. 17/2010 whereby while acquitting the accused-appellants under Section 326 of I.P.C., the accused-appellant Nos. 1, 3 & 4, namely, Bholu @ Bhola Ram, Prahlad and Mukesh, respectively, were convicted under Sections 450, 302/34 & 323/34 of IPC and the accused-appellant No. 2 - Kishan @ Kishanlal was convicted under Section 450, 302 & 323/34 of I.P.C. and they were sentenced as under :- Offence Sentence U/s 450 I.P.C. 05 years R.I. and fine of Rs. 5,000/-, in default of payment of fine to further undergo 6 months S.I. U/s 302 or 302/34 I.P.C. Life Imprisonment and fine of Rs. 10,000/- U/s 323/34 I.P.C. 01 months' S.I. 2. Briefly stated, the prosecution case emanates from the Parcha Bayan of Rakesh recorded on 24.12.2009 wherein it was stated that while he was at his home at around 9.30 P.M., his neighbour Bholaram and his brothers Kishan, Mukesh and Prahlad Balai came to his residence and started quarrelling with him and were demanding for liquor. When he refused to accede the demand, Bholu and his companions started abusing and assaulting him with the sticks. He somehow managed to run inside the house. Thereafter, all the accused persons followed him. Kisna (brother of Bholu) poured kerosene on him and with an intention to kill, ignited fire to it. Immediately thereafter, all the four accused persons left the place. His mother, namely, Laxmi Bai raised a hue and cry and she too was assaulted by the accused persons. After hearing the shouts raised by Laxmi Bai, the neighbours came to their house and doused the fire. Laxman Singh Bhati, Sonu Jain, Nicky Sansi brought a tempo and took him to Mahatma Gandhi Hospital, where he was admitted for treatment. His entire body and clothes were burnt. This statement was recorded by Gomaram, S.H.O. Police Station Pratap Nagar, Bhilwara who read over and explained the same to him in presence of his mother Smt. Laxmi Bai. 3. Laxman Singh Bhati, Sonu Jain, Nicky Sansi brought a tempo and took him to Mahatma Gandhi Hospital, where he was admitted for treatment. His entire body and clothes were burnt. This statement was recorded by Gomaram, S.H.O. Police Station Pratap Nagar, Bhilwara who read over and explained the same to him in presence of his mother Smt. Laxmi Bai. 3. On this parcha bayan, an F.I.R. No. 631/2009 was registered at Police Station Pratap Nagar, Bhilwara for the offences under Sections 143, 452, 323 & 307 of I.P.C. During the course of investigation, the victim Rakesh expired and therefore, the police added Section 302 I.P.C. in the matter. 4. After conclusion of investigation, the police filed chargesheet against the accused appellants for the offence under Sections 450, 302, 326 & 323/34 of I.P.C. 5. Learned trial court framed, read over and explained the charges for the offences under Sections 450, 302, 302/34, 326, 326/34 & 323/34 of I.P.C. to the accused appellants who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 23 witnesses and 49 documents were exhibited and in defence, 04 documents were got exhibited as Ex.D/1 to Ex.D/4. 7. The accused-appellants were examined under section 313 of Cr.P.C., 1973 and they were confronted with the evidence adduced against them during the course of trial to which they denied and stated that they had not burnt the deceased Rakesh and he had sustained accidental burn injuries from the kitchen stove. Because of enmity, their entire family had been falsely implicated in the present case. They never went to the house of the deceased and were innocent. 8. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellants as above vide judgment dated 15.12.2011. Hence this appeal. 9. We have heard learned counsel for the appellant and the learned Public Prosecutor. 10. Learned counsel for the appellants vehemently argues that there is stark difference between Ex.P/38A and Ex.P/37, which are two distinct dying declarations of the deceased Rakesh, one recorded by the police officer, namely, Gomaram (P.W. 22) and another recorded by Alka Gupta, Civil Judge (Junior Division) & Judicial Magistrate, West, Bhilwara (P.W.13). 10. Learned counsel for the appellants vehemently argues that there is stark difference between Ex.P/38A and Ex.P/37, which are two distinct dying declarations of the deceased Rakesh, one recorded by the police officer, namely, Gomaram (P.W. 22) and another recorded by Alka Gupta, Civil Judge (Junior Division) & Judicial Magistrate, West, Bhilwara (P.W.13). He took us to both the dying declarations and submits that Ex.P/37 was recorded by the Judicial Magistrate after taking the certificate of fitness (Ex.P/36) from the duty doctor, whereas, the police official recorded the statement in presence of mother of the victim i.e. P.W. 4 - Laxmi Bai without taking any certificate of fitness from the duty doctor. 11. He further submits that the dying declaration Ex.P/38A appears to be a tutored one as the possibility of tutoring cannot be ruled out as P.W. 4 - Laxmi Bai (mother of deceased Rakesh) was present throughout and at least before and during his statement was recorded by the police official. He further submits that if the statement of P.W. 4 -Laxmi Bai is seen in the light of the dying declaration (Ex.P/38A), it is evidently clear that both are almost on the same lines and in these circumstances, he argues that the possibility of the theory of tutoring gets strengthened. 12. In Ex.P/37, which is in question and answer form and quite elaborate does not give particulars and names of the accused persons other than Bholu and the version set out therein is totally contradictory and poles apart from what has been recorded in the dying declaration Ex.P/38A. Learned counsel argues that Ex.P/37 was recorded by the Judicial Magistrate after satisfying herself and after securing a certificate of fitness from the duty doctor about the fitness of the victim, which is more credible and of sterling worth. He further submits that the appellants are not named in the dying declaration (Ex.P/37) and a close reading of the same shows that the present appellants have been falsely implicated on the strength of Ex.P/38A, which is worth no credence and appears to be concocted and tutored. 13. Learned counsel further submits that none of the independent eye-witnesses, namely, P.W. 1 - Sonu Jain, P.W. 2 - Laxman Singh Bhati, P.W. 3 - Nicky, P.W. 5 -Mahaveer, P.W. 6 - Shiv Singh and P.W. 7 - Shanker Lal supported the prosecution story and have been declared hostile. 13. Learned counsel further submits that none of the independent eye-witnesses, namely, P.W. 1 - Sonu Jain, P.W. 2 - Laxman Singh Bhati, P.W. 3 - Nicky, P.W. 5 -Mahaveer, P.W. 6 - Shiv Singh and P.W. 7 - Shanker Lal supported the prosecution story and have been declared hostile. He further submits that neither in the statement of P.W. 4 - Laxmi Bai nor in the testimony of any other prosecution witnesses, it has come on record that the accused persons were carrying the Jerry Can/container filled with the kerosene to the house of the deceased. Therefore, it is highly improbable for a prudent man to understand that the accused persons went inside the house of the deceased Rakesh knowing the fact that a container of kerosene was lying in the house, which could be used for setting the victim afire. 14. Learned counsel further submits that as per medical evidence i.e. statement of P.W. 21 - Dr. Gyan Prakash, postmortem report (Ex.P/43) and Ex.D/4 which is bed head ticket, the burn injuries are shown to be thermal burns and there is no indication or specified remark apart the smell of kerosene which belies the story of the prosecution that Rakesh was burnt to death by pouring kerosene by the appellants. On the strength of these arguments, he submits that the prosecution was not able to prove the allegations levelled against the appellants beyond reasonable doubt and therefore, the trial court committed a grave error while convicting and sentencing the appellants vide Judgment dated 15.12.2011. 15. Per contra, learned public prosecutor submits that there is ample evidence on record, which clearly brings out the allegations leveled against the appellants for the alleged offences to have been proved beyond all reasonable doubt. He further submits that as per the dying declarations recorded by the police and the Judicial Magistrate, it is amply clear that the appellants were involved in burning the deceased Rakesh after assaulting him in his house. He further submits that there is no reason to discard the testimony of P.W. 4 - Laxmi Bai (mother of the deceased), who in her statement categorically named the appellants as the assailants. He further submits that the postmortem report clearly corroborates the dying declarations and the statement of P.W. 4 - Laxmi Bai for proving the offences alleged against the present appellants. He further submits that the postmortem report clearly corroborates the dying declarations and the statement of P.W. 4 - Laxmi Bai for proving the offences alleged against the present appellants. He further submits that the trial court has correctly appreciated the testimony of the prosecution witnesses and both dying declarations while passing the judgment of conviction in the present case. He further submits that no interference is warranted in the judgment of the trial court as the prosecution was able to prove its case against the appellants beyond all reasonable doubt. 16. We have considered the submissions made at the bar and closely scanned the record of the trial court. 17. For better appreciation of facts in the present case, it will be worthwhile to reproduce two dying declarations in vernacular as the entire case hinges upon these two dying declarations i.e. Ex.P/38A and Ex.P/37. 18. A close reading of these two dying declarations clearly projects that both are not even remotely identical and similar to each other. The material particulars of the names of the accused in Ex.P/37 are conspicuously missing, whereas, in Ex.P/38A, names of the accused appellants are mentioned. Secondly, the certificate of fitness (Ex.P/36) which was taken before recording Ex.P/37 is not taken while recording the dying declaration (Ex.P/38A). The certificate or the satisfaction that a person is fit to give the statement is a relevant and important consideration. Thirdly, we find that Ex.P/38A is having a shade of the statement of P.W. 4 - Laxmi Bai i.e. they are almost on the same lines and it is an admitted position that while Ex.P/38A was being recorded, P.W. 4 - Laxmi Bai (mother of the deceased Rakesh) was present throughout. Therefore, the possibility of tutoring cannot be ruled out when the dying declaration Ex.P/38A was recorded and thus, the same does not inspire our confidence. 19. So far as Ex.P/37 is concerned, we find it worthy of credence and more reliable in the circumstances of the present case as it has been recorded by the Judicial Magistrate after obtaining the certificate of fitness (Ex.P/36) and the same is in the question and answer form elaborately questioning the victim to come out with his version and divulge the truth. A close reading of Ex.P/37 shows that the appellants have not been named much less the name of Bholaram is there but no overt act has been attributed to anybody. In Question No. 9 of this dying declaration (Ex.P/37), the victim Rakesh stated that faces of all the accused persons were covered with a cloth. Therefore, in these circumstances, to identify the appellants by name in Ex.P/38A on the face of it appears to be a case of false implication. Thus, the entire theory of assaulting and burning comes under serious doubt. 20. Further, we find that as per the statement of P.W. 4 - Laxmi Bai, when the appellants went inside the house and poured kerosene on Rakesh, she made no attempt to save her son or raise an alarm for calling the neighbours for saving her son Rakesh. This appears to be an unnatural conduct. We also find the testimony of this witness is swayed in favour of the prosecution falsely implicating the appellants and in our opinion, it will not be safe to rely upon the testimony of this witness for convicting the appellants in the present case. Further, the possibility of giving such statement to rope in the present appellants being an interested witness cannot be ruled out. 21. P.W. 21 - Dr. Gyan Prakash in his statement stated that he prepared the injury report of Rakesh and while doing so, he neither smelt kerosene from his body nor burn injuries were found to be of kerosene. This fact further gets corroborated from the bed head ticket of the victim (Ex.D/4) wherein it is recorded that the thermal burn injuries are due to the stove. The registration number of this ticket is 54675. The same registration number finds mention on the postmortem report which establishes that Ex.D/4 is a genuine document and therefore, there is no reason to disbelieve the same. This document is certified copy issued under the seal and signatures of Incharge Medical Officer, Record Room, Maharana Bhupal Government Hospital, Udaipur and there is no reason for us to disbelieve the same. Besides this, it was duty of the prosecution to have placed on record this document but having not placed the same on record, the prosecution has failed in its duty to bring on record the relevant and important document before the trial court. 22. Besides this, it was duty of the prosecution to have placed on record this document but having not placed the same on record, the prosecution has failed in its duty to bring on record the relevant and important document before the trial court. 22. Even, as per the statement of P.W. 23 - Dr. Manish Kumar Sharma, the veracity or the authenticity of the document (Ex.D/4) is not questioned. He only stated that the bed head ticket was not issued under his signatures and therefore, he could not make any comment over the same. 23. We also note that the victim Rakesh expired on 08.01.2010 i.e. after almost 15 days of the incident. Therefore, even if there was any doubt about the dying declaration (Ex.P/37) or the prosecution was not confident about the version of the victim in the same, it was open for the prosecution to get recorded a fresh statement of victim in this time-frame as victim Rakesh expired as late as on 08.01.2010. 24. In view of the above discussion, we are of the view that the trial court was not justified in discarding the document Ex.D/4 and at the same time, the trial court fell into error by not relying upon the dying declaration (Ex.P/37) and holding that the contents of Ex.P/37 and Ex.P/38A are almost the same. We are of the considered opinion that the dying declaration (Ex.P/37) is the only dying declaration which is worthy of credence and the trial court should not have relied upon Ex.P/38A. 25. Thus, in view of whatever stated above, the judgment dated 15.12.2011 passed by the trial court is not sustainable and deserves to be quashed and set aside. 26. Resultantly, the appeal is allowed. The impugned judgment dated 15.12.2011 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara in Sessions Case No. 17/2010 is quashed and set aside. The accused are acquitted of the charges for the offences under Sections 450, 302, 302/34 and 323/34 IPC. The accused Kishan @ Kishanlal is in custody. He be released forthwith if not wanted in any other case. The accused Bholu @ Bholaram, Prahlad and Mukesh are on bail. Their bail bonds are discharged.