JUDGMENT : 1. The appellants herein stand convicted and sentenced as below vide judgment dated 11.08.2011 passed by learned Additional Sessions Judge No. 1, Udaipur in Sessions Case No. 24/2010:- Name of the appellant Offence for which convicted Sentence awarded 1. Karan Singh 302 IPC Life term imprisonment and a fine of Rs. 5000/- and in default of payment of fine, further to undergo six months' simple imprisonment 2. Ram Singh 302/120-B IPC Life term imprisonment and a fine of Rs. 5000/- and in default of payment of fine, further to undergo six months' simple imprisonment 3. Gopal Singh 4. Smt. Ganeshi Kunwar 2. Being aggrieved by their conviction and the sentences awarded, the appellants have preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein-below. Indar Singh (deceased) was admitted to Maharana Bhupal Government Hospital, Udaipur on 20.05.2010 at 11.25 p.m. in a burnt condition. On receiving this information, Shri Kaluram Meena, Head Constable posted at the Police Station Sukher, reached the hospital and took certificate of the resident doctor Dr. Liyakat Hussain regarding Indar Singh being fit to give a statement. Thereafter, he recorded the Parcha Bayan of Indar Singh, wherein, he alleged that after completing his labour job at Udaipur, he had reached near his house at the Village Sare Kala. His neighbours Karan Singh S/o Ram Singh, Gopal Singh S/o Ram Singh, Ram Singh and Smt. Ganeshi Kunwar W/o Ram Singh, accosted him on the way going to his house. Karan Singh, who was having a kerosine container in his hand, threatened Indar Singh that he would set to fire, to which, Indar Singh retorted that he may do so. On hearing this, Karan Singh immediately poured the can of kerosine on the person of Indar Singh and set him afire. The informant alleged that no one was present around the place of incident and that the attackers had perpetrated the incident because of a pre-existing land dispute with his father. 4. On the basis of this Parcha Bayan (Ex.P/11), which was received at the Police Station Sukher at 2.15 a.m. FIR No. 143/2010 was registered for the offence under Section 307 IPC and investigation was commenced. Shri Gordhan Singh, Sub-Inspector, took charge of the investigation. 4. On the basis of this Parcha Bayan (Ex.P/11), which was received at the Police Station Sukher at 2.15 a.m. FIR No. 143/2010 was registered for the offence under Section 307 IPC and investigation was commenced. Shri Gordhan Singh, Sub-Inspector, took charge of the investigation. A request was forwarded to the Chief Judicial Magistrate, Udaipur for recording the dying declaration of Indar Singh. However, since the victim was not found to be in a position to give the statement, his statement could not be recorded by the Magistrate. The victim passed away while undergoing treatment at the hospital on 20.05.2010 at 5.00 a.m., whereupon the offence under Section 302 IPC was added to the case. The dead body of Indar Singh was subjected to autopsy by the doctors at the Maharana Bhupal Government Hospital, who issued the postmortem report (Ex.P/24) opining that the cause of death of Shri Indar Singh was shock due to antemortem burn injuries, which were sufficient in the ordinary course of nature to cause death. The accused appellants were arrested and after conducting the usual investigation as per law, a charge-sheet was filed against the accused appellant Karan Singh for the offences under Sections 302 and 120-B IPC and against the remaining three accused appellants for the offences under Sections 302/34 and 120-B IPC. Since the offences were Sessions triable, the case was committed to the Court of Sessions Judge, Udaipur, from where the same was transferred for trial to the Court of Additional Sessions Judge No. 1, Udaipur. 5. The trial court framed charges against the accused appellants for the above offences. They pleaded not guilty and claimed trial. The prosecution examined as many as 19 witnesses and exhibited 24 documents and 2 articles to prove its case. Upon being confronted with the prosecution allegations in their statements under Section 313 Cr.P.C. the accused denied the same and claimed to have been falsely implicated. One witness Dungar Kanwar was examined and 6 documents were exhibited in defence. 6. After hearing and considering the submissions advanced by the prosecution and the defence and after appreciating the evidence available on record, the trial court proceeded to convict and sentence the accused appellants as above. Hence, this appeal. 7. Learned counsel Mr. Chakarvarti Singh Rathore, appearing for Mr. Pradeep Shah, representing the appellants, vehemently and fervently urged that the entire case of the prosecution is false and fabricated. Hence, this appeal. 7. Learned counsel Mr. Chakarvarti Singh Rathore, appearing for Mr. Pradeep Shah, representing the appellants, vehemently and fervently urged that the entire case of the prosecution is false and fabricated. He contended that the dying declaration (Ex.P/11) is a totally false and fabricated document. He urged that the scribe of the document, i.e. Kaluram Meena (PW-13), gave a totally contradictory version when he stepped into the witness box narrating a totally different story far from the one noted in the Dying Declaration (Ex.P/11). The witness stated that Indar Singh divulged to him that Ram Singh and Gopal Singh stopped him and threatened that he would be burnt. Upon Indar Singh stating that they may do as they liked, Gopal Singh, who was having the kerosine container in his hand, poured the fuel on his person. Mr. Chakravarti Singh urged that in this statement of Shri Kalu Ram, neither is any case set up that Indar Singh narrated before Shri Kaluram, the scribe of Dying Declaration (Ex.P/11), that the accused appellant Karan Singh poured kerosine on his body of nor is it recorded that any of the accused set him to fire. He, thus, urged that the dying declaration (Ex.P/11), scribed by the Head Constable Kaluram, is a fabricated document and not worth reliance. He further submitted that the testimony of the prosecution witness Kesar Singh S/o Kishan Singh (PW-6) further discredits the version as recorded in the dying declaration (Ex.P/11). He pointed out that Kesar Singh, in his sworn testimony categorically stated that Indar Singh S/o Dungar Singh came out from a room of his house engulfed in flames when the witness saw him. Thereafter, the villagers Nathu Singh, Dungar Singh etc. came around, the ambulance was called and Indar Singh was taken to the hospital. He further urged that even Kesar Kunwar (PW-8), being the mother of Indar Singh, who reached at the place of incident soon after hearing the cries of Indar Singh, did not state that Indar Singh made any disclosure before her that the accused appellants had set him to fire. He drew the court’s attention to the cross-examination of Kesar Kunwar, in which the witness stated that on the fateful day, Indar Singh, Prem Singh and Dungar Singh returned from their labour jobs and consumed food prepared by her. He drew the court’s attention to the cross-examination of Kesar Kunwar, in which the witness stated that on the fateful day, Indar Singh, Prem Singh and Dungar Singh returned from their labour jobs and consumed food prepared by her. Whilst the others went to sleep in the fields, Indar Singh was watching T.V. and left for his house later. He, thus, submits that the story set out in the dying declaration that Indar Singh was returning from his labour job and that the accused came across him and indulged in the arson on the road is totally false and fabricated. 8. He further submitted that evidence of Kesar Singh (PW-12) S/o Lal Singh is also concocted and unbelievable and the theory put forth in the evidence of this witness that he reached the hospital at about 11:00-11:30 p.m. and talked to Indar Singh, who allegedly told the witness that he had been set to fire by Ram Singh and his two sons Karan Singh and Gopal Singh and wife Ganeshi Kunwar cannot be believed in light of the fact that when this conversation is said to have transpired, Indar Singh was under intensive treatment for his burns and there was no possibility that the doctors would have allowed the witness to come near Indar Singh. Learned counsel pointed out that another witness of oral dying declaration allegedly made by Indar Singh, namely, Doongar Singh S/o Udai Singh (PW-3), did not support the prosecution story and was declared hostile. Regarding the statement of Nirbhay Singh (PW-4), the contention of Mr. Chakarvarti Singh Rathore was that this witness has set out a totally distorted story in his evidence because he claimed that Indar Singh told him that he had been set to fire by Ram Singh, Gopal Singh, Karan Singh and Ganeshi Kunwar. He submits that the prosecution has not come with a case that the deceased told anyone that he had been set to fire by all the four accused persons. Learned defence counsel also drew the Court’s attention to the statement of Doongar Singh S/o Sultan Singh (PW-5), who also stated that he and Indar Singh came back from their labour jobs on the same motorcycle at about 7:00-7:15 p.m. Indar Singh took food at the house of his mother Kesar Kunwar. Learned defence counsel also drew the Court’s attention to the statement of Doongar Singh S/o Sultan Singh (PW-5), who also stated that he and Indar Singh came back from their labour jobs on the same motorcycle at about 7:00-7:15 p.m. Indar Singh took food at the house of his mother Kesar Kunwar. He submits that most of the prosecution witnesses, who are related to the deceased, admitted that the accused Karan Singh had registered a criminal case of beating and assault against the deceased Indar Singh. He urged that Indar Singh set himself to fire for reasons which the prosecution has deliberately concealed and that the prosecution witnesses have connived together to fraudulently throw the blame upon the accused because of prior enmity. He also drew the Court’s attention to the Site Inspection Plan (Ex.P/7), as per which, the Investigating Officer noted the marks of burning just near the Aangan of the house of the deceased. He pointed out that in this entire site plan, the houses of the accused are nowhere visible and thus manifestly, the prosecution is guilty of shifting the place of occurrence as well. On these grounds, he implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused-appellants. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the learned defence counsel and submits that prosecution has available to it ample, foolproof and reliable evidence to establish that the accused-appellants were the perpetrators of the offences attributed to them. He relied upon the Indar Singh’s dying declaration (Ex.P-11) recorded by Kalu Ram Meena (PW-13) and the statements of Dalpat Singh (PW-5), Nirbhay Singh (PW-4), Doongar Singh S/o Sultan Singh (PW-5), Kesar Singh S/o Kishan Singh (PW-6), Kesar Kuwar W/o Doongar Singh (mother of deceased) (PW-8) and Keshar Singh S/o Lal Singh (PW-12), who gave evidence that the deceased made an oral dying declaration in their presence implicating the accused for the act of arson and urged that these material pieces of evidence are clinching and sufficient to implicate the accused for the offences alleged and to affirm their conviction as recorded by the trial Court. On these grounds, learned Public Prosecutor implored the Court to dismiss the appeal and affirm the impugned judgment. 10. On these grounds, learned Public Prosecutor implored the Court to dismiss the appeal and affirm the impugned judgment. 10. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available on record. Though, the witnesses Dalpat Singh (PW-5), Nirbhay Singh (PW-4), Doongar Singh S/o Sultan Singh (PW-5), Kesar Singh S/o Kishan Singh (PW-6), Kesar Kuwar (PW-8) and Keshar Singh S/o Lal Singh (PW-12), on whose statements the prosecution relied upon, gave evidence that the deceased made an oral dying declaration in their presence implicating the accused appellant, but it cannot be disputed that the prosecution case hinges principally upon the dying declaration (Ex.P/11) of Indar Singh recorded by Kalu Ram, Head Constable at the Burn Unit of Maharana Bhupal Govt. Hospital, Udaipur which is reproduced herein below for the sake of ready reference:- ^^bl oDr ,pŒlhŒ Jh dkyqjke uEcj 1764 e; thi pkyd ds cgokys jiV la[;k 696 jkstŒ vke dk x;k gqvkA gkftj vk;k Fkkus ls jokuk gks lhŒvkjŒ igqapkA x'r Áksxzke esa vkenk Quist dh ikyuk esa ,eŒchŒthŒ,pŒ gkLihVy cuZ okMZ igqap et:gA Jh bUæflag iq= Mwaxjflag th jktiwr mez 20 o"kZ fuoklh ljsdyk ¼dSyk'kiqjh½ ihŒ,lŒ lq[ksj us c;ku dj ceqdke cuZ okMZ ,eŒchŒ gkLihVy csM uEcj 8 us crk;k dh vkt 'kke 9 cts dh ckr gS fd eSa mn;iqj etnwjh dj vius vius ?kj ljsdyk ?kj ds ikl igqapkA tgka esjk iM+kslh dj.kflag iq= jkeflag] xksikyflag iq= jkeflag o jkeflag iq= uoyflag] x.ks'khckbZ jktiwr fuoklh ljsdyk esjs ikl jkLrs esa feysA dj.kflag us dgk vkt rq>s tyk nwaxk rks eSus dgk tyk nsA brus esa dj.kflag mlds ikl dsjkslhu dh fiih Fkh esjs Åij mM+sy nh vkx yxk nhA ekSds ij dksbZ ns[kus okyk ugha FkkA igys esjs firkth ds lkFk bUgksaus tehu fookn dh jaft'k j[k eq>s tyk;k gSA** 11. What comes out from prominently this dying declaration is that Indar Singh claimed that he had just reached near to his house after completing his labour job at Udaipur at about 9 o’clock on 19.05.2010. On the way, the accused accosted him. Karan Singh threatened that he would be killed. Indar Singh allegedly retorted that he may proceed, whereafter, Karan Singh poured kerosene on the body of Indar Singh and set him to fire. On the way, the accused accosted him. Karan Singh threatened that he would be killed. Indar Singh allegedly retorted that he may proceed, whereafter, Karan Singh poured kerosene on the body of Indar Singh and set him to fire. Thus, the sequence of events as per this document is that Indar Singh claimed that he was just returning from his job and he had not even reached his house when the incident took place. On the other hand, Doongar Singh S/o Sultan Singh (PW-5), being the father and Kesar Kunwar (PW-8), being the mother of the deceased, both stated that Indar Singh returned home after doing the labour job at about 7 o’clock. He consumed food prepared by Kesar Kunwar and started watching T.V. He left for his house a little later. 12. On a perusal of the statement of Kesar Singh S/o Kishan Singh (PW-6), it is apparent that the witnesses ran to the house of Indar Singh on hearing the fervent cries of Kesar Kunwar. On reaching near the place of occurrence, he saw Indar Singh just outside his house engulfed in flames. Manifestly thus, the case set up in the Dying Declaration of Indar Singh that he was returning home from Udaipur after completing his labour job and that he was set to fire by the accused Karan Singh on the way to his house is totally falsified from these material circumstances as emerging from the statements of the witnesses referred to supra. There is another very significant fact which completely discredits the Dying Declaration (Ex.P/11). The scribe of the dying declaration (Ex.P/11) is none other than Head Constable Kalu Ram (PW-13). If we peruse the statement of this witness, manifestly, the entire prosecution case is destroyed. The witness categorically stated in his examination-in-chief that that he recorded the statement of Indar Singh in the presence of his family members, who stated that Ram Singh and Gopal Singh accosted him and threatened him that he would be burnt. Indar Singh retorted that they may do as they like. Gopal Singh was having a kerosene can in his hand, which he poured on the person of Indar Singh. Indar Singh retorted that they may do as they like. Gopal Singh was having a kerosene can in his hand, which he poured on the person of Indar Singh. Strangely enough, even though the witness gave a narrative totally different from what he recorded in the dying declaration (Ex.P/11) scribed by him, but neither did the Public Prosecutor take care to confront the witness with his own handwriting nor did the Court act with due diligence and subject him to court questions while recording the evidence of this witness. Be that as it may. Sworn testimony given by Kaluram about the dying declaration of Indar Singh is completely contrary to what was recorded in written document (Ex.P/11) and thus, it becomes totally unsafe to act upon the Parcha Bayan/ Dying Declaration as a reliable piece of evidence. 13. Another fact which convinces us that the theory put forth in this Parcha Bayan/Dying Declaration is unconvincing is the tenor of the statement itself. If this statement is to be believed, manifestly, Indar Singh did not make any attempt to save himself from the accused and rather, when the accused expressed their intention to burn him, he challenged them to go ahead with their evil design. This conduct of the accused in declaring their intention and the bravado shown by Indar Singh does not stand to logic and reasoning and is totally contrary to the expected human behaviour. It is totally inconceivable that the assailants, who were out to kill the victim by immolation, would declare their intent and the victim would readily accept the suggestion and offer himself to be set ablaze. Manifestly, thus, we are of the firm view that the genesis of the occurrence has been concealed by the prosecution witnesses and what has been portrayed regarding the manner in which the incident happened in the dying declaration (Ex.P/11) and in the statements of the witnesses Dalpat Singh (PW-5), Nirbhay Singh (PW-4), Doongar Singh S/o Sultan Singh (PW-5), Kesar Kuwar (PW-8) and Keshar Singh S/o Lal Singh (PW-12), who gave evidence about oral dying declaration of the deceased is totally cooked up and concocted. The deposition of PW-6 Kesar Singh also creates a great doubt about the veracity of the prosecution version. The deposition of PW-6 Kesar Singh also creates a great doubt about the veracity of the prosecution version. If his testimony is seen, manifestly, when he reached near the place of occurrence on hearing the fervent cries of Smt. Kesar Kunwar, he saw her son Indar Singh coming out from a room inside his house engulfed in flames. Thus, as per the testimony of this witness, the incident must have happened inside the house of the deceased and the theory put up by the prosecution that the deceased was set ablaze on the way to his house is totally falsified. The reason for this fabrication is writ large from the testimony of the prosecution witnesses named supra, who admitted that prior enmity existed and litigation was also going on between the parties. 14. In view of the discussion made hereinabove, we are convinced that the prosecution has failed to bring home the charges against the accused by leading cogent and convincing evidence and rather, the prosecution appears to be guilty of fabricating the dying declaration of the deceased and also of concealing the true genesis of the occurrence. Neither the written dying declaration (EX.P/11) of the deceased can be considered to be reliable and inspiring confidence in view of the fact that its scribe Kaluram (PW-13) has given totally contradictory evidence belying the sanctity of the document nor the statements of eyewitnesses who deposed about the oral dying declaration of the deceased are worthy of reliance. Other than this, there is no other substantive evidence whatsoever on the record of the case which can connect the accused with the alleged crime. 15. In view of the discussion made hereinabove, we are of the firm opinion that the trial court erred on fact while appreciating the evidence and holding in the impugned judgment that the prosecution was able to bring home the accused by leading clinching and convincing evidence against the accused. 16. Resultantly, the appeal is allowed. The judgment dated 11.08.2011 passed by learned Additional Sessions Judge No. 1, Udaipur in Sessions Case No. 24/2010 is set aside. The appellants herein are acquitted of the charges under Sections 302 and 302/120-B IPC. The accused-appellants Ram Singh, Gopal Singh and Smt. Ganeshi Kanwar are on bail. Their bail bonds are discharged. The accused-appellant Karan Singh is in custody. The judgment dated 11.08.2011 passed by learned Additional Sessions Judge No. 1, Udaipur in Sessions Case No. 24/2010 is set aside. The appellants herein are acquitted of the charges under Sections 302 and 302/120-B IPC. The accused-appellants Ram Singh, Gopal Singh and Smt. Ganeshi Kanwar are on bail. Their bail bonds are discharged. The accused-appellant Karan Singh is in custody. He shall be released from prison forthwith, if not wanted in any other case. 17. However, keeping in view the provisions of Section 437-A Cr.P.C. the accused- appellants are directed to furnish a personal bond in the sum of Rs. 15,000/- each and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.