JUDGMENT : BHUWAN GOYAL, J. 1. The appellant-State has preferred this D.B. Criminal Appeal, aggrieved by the judgment dated 20.07.2002 passed by learned Additional District & Sessions Judge, No. 4, Kota, whereby accused-respondent was acquitted of offence under Section 302 IPC. 2. The brief facts of the case are that on 05.06.2001, Smt. Hema gave Parcha Bayan (Ex.P/19) to the Police alleging therein that she solemnized marriage with the accused-respondent four years ago. She also stated that her husband was in the habit of consuming liquor. She further stated that in the night of 04.06.2001 at about 10:30 P.M. her husband was consuming the liquor. When she stopped him from consuming the liquor, her husband became angry. He poured kerosene on her body and set her on fire. The gate of the room was closed from inside and after setting her on fire, her husband ran away from the backside gate. After setting her on fire, when she shouted, her neighbours Ramphool, Prahlad and other men and women of the locality came there, who broken the gate and poured water to douse the fire. Thereafter, the police has reached there and got her admitted in the hospital. She further stated that her husband set her on fire with intention to kill her. She sustained burn injuries on her face, chest, both hands, stomach and both legs. On the basis of said Parcha Bayan, an FIR No. 197/2001 came to be registered at Police Station Mahaveer Nagar, Kota City for the offences under Sections 307 & 324 of IPC. During investigation, Smt. Hema died while undergoing treatment, upon which, the police added Section 302 IPC in the matter. After due investigation, the charge-sheet against accused-respondent Shiv Narain @ Guddu for the offence under Section 302 of IPC was filed before the court below. The court below framed charge of offence under Section 302 IPC against the accused-respondent, upon which, he pleaded not guilty and sought trial. Thereafter, the prosecution in support of its case, produced as many as 14 witnesses and exhibited 24 documents. Thereafter, explanation of the accused-respondent was recorded under Section 313 Cr.P.C. wherein he denied the accusation stating that the prosecution evidence was wrong. He stated that he along with Prahald and Ramphal were sitting outside. On hearing the shouting of Hema, they went running there. Thereafter, explanation of the accused-respondent was recorded under Section 313 Cr.P.C. wherein he denied the accusation stating that the prosecution evidence was wrong. He stated that he along with Prahald and Ramphal were sitting outside. On hearing the shouting of Hema, they went running there. The gate of the house was closed, which was broken and they saw that Hema was burning. He tried to extinguish the fire and sustained burn injuries. In his defence, accused-respondent examined D.W. 1 - Dr. Ashok Mundra and exhibited Ex.D-1 to D-3 documents. 3. Learned court below after hearing the parties and evaluating the evidence on record, passed the judgment and order dated 20.07.2002, acquitting the accused-respondent for the offence under Section 302 IPC. Aggrieved by same, the present appeal has been filed by the appellant-State. 4. Heard learned counsel for the parties. 5. Learned Additional Government Advocate appearing for the appellant-State has contended that the prosecution has produced ample evidence against the accused-respondent in order to prove the charge against him beyond all reasonable doubt. He further contended that specific allegation of beating and setting on fire to the deceased have been levelled against the accused-respondent in the parcha bayan as well as dying declaration of the deceased, which have been proved in the evidence. He has also contended that deceased sustained 70% burn injuries in the said incident, on account of which she died while undergoing treatment. This fact would be proved from the postmortem report. But the court below has erred in not appreciating the oral as well as documentary evidence available on record and acquitted the accused-respondent for the offence alleged against him. He has, therefore, prayed that appeal of the appellant - State may be allowed and the accused-respondent may be convicted and sentenced for the offence alleged against him. 6. On the other hand, learned counsel appearing for the accused-respondent while supporting the judgment and order impugned, has contended that the court below after appreciating entire material as well as evidence on record has rightly passed the judgment impugned which does not warrant any interference. There is no iota of evidence available on record to convict the accused-respondent for the alleged offence. The prosecution witnesses viz. PW-1 Madanlal, PW-7 Ramphool and PW-8 Prahlad Kumar do not support the prosecution story and they have been turned hostile. 7. There is no iota of evidence available on record to convict the accused-respondent for the alleged offence. The prosecution witnesses viz. PW-1 Madanlal, PW-7 Ramphool and PW-8 Prahlad Kumar do not support the prosecution story and they have been turned hostile. 7. Learned counsel has further contended that as per the statements of P.W.2 - Arjun and P.W.5 - Smt. Santara Bai, who are parents of the deceased, there were cordial relations between the husband and wife. Therefore, there was no motive on the part of the accused-respondent to kill his wife. 8. It is also contended that there are contradictions in the parcha bayan (Ex.P/19) and dying declaration of the deceased (Ex.P/21). The statement given by the deceased in her parcha bayan (Ex.P/19) is contrary to the site plan (Ex.P/9). As per parcha bayan, accused after pouring the kerosene set his wife on fire and ran away from the backside gate, whereas, as per site plan (Ex.P/9), backside gate of the house was closed from inside. He further contended that it has come in the cross examination of PW-12 Heeral Lal, the Investigating Officer, that after the parents of Hema Bai came, he recorded her parcha bayan. He further stated that firstly, he recorded the statement and then Magistrate recorded her statement. It shows that parcha bayan and dying declaration of the deceased were recorded in the presence of her parents, hence, possibility of tutoring and giving statement under the influence of her parents cannot be ruled out. He has further submitted that no certificate as to whether deceased Hema Bai was in a fit state to give statement, was obtained by the Magistrate from the treating Doctor before recording the statement of the deceased. He has, therefore, contended that dying declaration is not reliable. 9. It is further contended that in the incident the accused-respondent himself sustained 30% burn injuries. As per prosecution story, if the accused-respondent would have poured kerosene and set his wife on fire, then he must not have received burn injuries. It shows that deceased poured kerosene and put herself on fire and when the accused-respondent tried to save her, he received burn injuries. He has, therefore, prayed that appeal of the appellant - State may be dismissed. 10. It shows that deceased poured kerosene and put herself on fire and when the accused-respondent tried to save her, he received burn injuries. He has, therefore, prayed that appeal of the appellant - State may be dismissed. 10. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through impugned judgment and have minutely sifted through the evidence available on record. 11. In the present case, the incident took place at around 10:30 P.M. on 04.06.2001, in which deceased Hema Bai sustained 70% burn injuries and on the basis of her parcha bayan (Ex.P/19), the F.I.R. was registered. As per the parcha bayan (Ex.P/19), neighbours Ramphool (P.W.7) and Prahlad (P.W.8) reached the spot on hearing the shouting of Hema Bai and rescued her. Both the witnesses have not supported the prosecution story and turned hostile. Except the above two witnesses, there is no other eye witness in the present case. Thus, now the entire case of the prosecution rests upon the circumstantial evidence and parcha bayan as well as dying declaration of the deceased. 12. It has been consistently laid down by the Hon'ble Apex Court and reiterated in the case of Ramesh Bhai and Others vs. State of Rajasthan (Criminal Appeal No. 868-869 of 2004) that where a case rests squarely on circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 13. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 13. The Hon'ble Apex Court in the case of State of Gujarat vs. Jayrajbhai Punjabhai Varu, AIR 2016 SC 3218 , has held as under: “(10) The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. In the case on hand, there are two sets of evidence, one is the statement/declaration made before the police officer and the Executive Magistrate and the other is the oral dying declaration made by the deceased before her father who was examined as PW-1. On a careful scrutiny of the materials on record, it cannot be said that there were contradictions in the statements made before the police officer and the Executive Magistrate as to the role of the respondent herein in the commission of the offence and in such circumstances, one set of evidence which is more consistent and reliable, which in the present case being one in favour of the respondent herein, requires to be accepted and conviction could not be placed on the sole testimony of PW-1. A number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.” 14. It is to be noted that there is no doubt that conviction of an accused can be based solely on circumstantial evidence as well as on the basis of dying declaration when it appears to the Court that such circumstantial evidence and the dying declaration is reliable. Thus, we have to examine as to whether the chain of circumstances, if taken cumulatively, is completed and whether parcha bayan as well as dying declaration of the deceased are reliable to convict the accused respondent for the offence alleged against him. 15. In the instant case, it reveals from the record that parcha bayan of the deceased Hema Bai (Ex.P/19) was recorded by the police at 01:10 A.M. on 05.06.2001 and thereafter, her dying declaration (Ex.P/21) was recorded by the Judicial Magistrate, First Class No. 1, Kota (South) at 01:10 A.M. on 05.06.2001. It is neither understandable nor possible that as to how the parcha bayan and the dying declaration of the deceased could be recorded at the same time i.e. at 01:10 A.M. on 05.06.2001 by two different persons. Thus both the statements looses its credibility. 16. On perusal of the statement of PW-12 Heera Lal, the Investigating Officer, it also reveals that from the time of receiving the information at 11:20 P.M. till 01:05 A.M. he did not record the parcha bayan of the deceased. He recorded the statement of the deceased after the parents of Hema Bai came to the hospital, which clearly creates doubt in the prosecution story and in such circumstances, the possibility of tutoring the deceased and giving statement under the influence of her parents cannot be ruled out. He recorded the statement of the deceased after the parents of Hema Bai came to the hospital, which clearly creates doubt in the prosecution story and in such circumstances, the possibility of tutoring the deceased and giving statement under the influence of her parents cannot be ruled out. Thus, it brings the parcha bayan and dying declaration of the deceased under the clouds of doubt and does not complete the chain of circumstances. 17. On perusal of parcha bayan (Ex.P/19) coupled with the dying declaration of the deceased (Ex.P/21), it reveals that there is contradiction between both the statements. In the parcha bayan, it was stated that after pouring the kerosene, accused with intention to kill, set her on fire and ran away from the backside gate, whereas, no such statement was made by the deceased in her dying declaration. It is pertinent to note here that as per site plan (Ex.P/9), another gate i.e. backside gate of the house was shown to be closed from inside. It shows that parcha bayan of the deceased does not find corroboration from the site map (Ex.P/9). 18. On perusal of the dying declaration coupled with the statement of PW-13 Madhusudan Mishra, the then Judicial Magistrate No. 1, Kota (South), who recorded the dying declaration of the deceased, it also reveals that he did not obtain certificate of treating doctor regarding the condition of the deceased to give statement in writing and only obtained oral opinion of the treating doctor Shri Hemant Gupta. This witness in the cross examination has specifically stated that before recording the statement of the witness, he satisfied himself that she was giving the statement without any influence and fear but he did not make any endorsement to this effect in Ex.P/21. This witness in the cross examination has specifically stated that before recording the statement of the witness, he satisfied himself that she was giving the statement without any influence and fear but he did not make any endorsement to this effect in Ex.P/21. It is pertinent to note here that in the present case, the treating doctor Shri Hemant Gupta, who is stated to have given oral opinion regarding fit state of the deceased has not been produced and it is also not in dispute that deceased sustained 70% burn injuries and thus, in absence of the certificate of fit state of the deceased in writing or any endorsement regarding his own satisfaction to this effect made on Ex.P/21 and the fact that the treating doctor was not produced in the witness box, it is doubtful as to whether the deceased was in a fit state to give statement or not at the time of recording of her statement. Thus, it further brings the dying declaration of the deceased under the clouds of doubt and does not complete the chain of circumstances. 19. It is pertinent to note that both the palms of deceased were also not found to be burnt in the present case. On perusal of P.M.R. (Ex.P/5), it also reveals that there is no mention that both the palms of the deceased were burnt. PW-13 Madhusudan Mishra in his cross examination has stated that both the palms of deceased were not burnt. 20. The Hon'ble Apex Court in the case of Pawan Kumar Parasnath Trivari vs. State of Gujarat, 1999 SCC (Cri.) 352, has held as under: “8. After giving our careful consideration to the facts and circumstances of the case and the submissions made by learned counsel for the parties, it appears to us that there are some disturbing features in this case which require to be carefully considered. It is the specific case of the prosecution, as disclosed in the dying declaration recorded by the learned Magistrate, that she was dragged by the accused inside the house and thereafter threatening to kill her, kerosene was poured on her body and she was set on fire. It has however transpired from the evidence of PW 4 Jilu that there were a number of persons collecting water almost in front of the house of the accused. It has however transpired from the evidence of PW 4 Jilu that there were a number of persons collecting water almost in front of the house of the accused. If the deceased, an able-bodied person was attempted to be forcibly dragged inside the house, it was quite natural that she should shout and raise a voice of protest, more so, when she was taken inside the house and the door was bolted and she was threatened to be killed. There is no evidence that anybody had heard any shout for help. Even when she was set on fire, nobody heard her screams or any appeal for help. When PW 4 being requested by the accused entered the house and was told by the accused that the deceased was burning, even then she did not hear any scream or shout for help. According to the evidence of PW 4, the deceased silently came out from the room and after sitting in the “wada” she only requested Jilu to bring curd for being applied on her body. Such conduct appears to be quite unusual and does not conform to the case of being forcibly dragged into the house and thereafter being set on fire by pouring kerosene. On the contrary, such a case reasonably justifies a case of committing suicide as contended by the accused. We may also note here that the doctor who held an autopsy has also stated that such burning was also possible if somebody would commit suicide. It may be indicated here that Mr. Sushil Kumar, the learned counsel for the appellant has also submitted that both the palms of the deceased were not burnt. Such a fact indicates that she had committed suicide because in that event, the palms were not likely to be affected. In a case of homicidal burning by pouring kerosene on the body by another person, the palms along with the other parts of the body will get burnt. We may also indicate here that the dying declaration of the victim as recorded by the Magistrate runs counter to the deposition of PW 4. Though in her dying declaration, the deceased stated specifically that she shouted for help, Jilu (PW 4) deposed that she did not hear any such shout for help. We may also indicate here that the dying declaration of the victim as recorded by the Magistrate runs counter to the deposition of PW 4. Though in her dying declaration, the deceased stated specifically that she shouted for help, Jilu (PW 4) deposed that she did not hear any such shout for help. It also appears to us that the mother of the deceased, shortly after the incident, reached the place of the occurrence and when Banraj had left the place, she was there. It is not unlikely that at that point of time, barring the accused, no other person was present along with the deceased. There is evidence that the mother had remained with the deceased all the time and when the dying declaration was recorded by the Magistrate, the mother was also present and she also put a thumb impression on the dying declaration. Her conduct in being a party to a fabricated piece of dying declaration recorded by the police constable which was rightly discarded by the courts below cannot be overlooked. In the aforesaid circumstances, in our view, there is justification for the trial court to proceed on the footing that reliance should not be placed on the dying declaration. In the aforesaid facts, the view taken by the trial court for giving the benefit of doubt in favour of the appellant cannot be held to be absolutely without any basis and against the weight of evidence adduced in the case. Hence, in our view, there was no occasion to interfere with the order of acquittal passed in favour of the appellant. We, therefore, allow this appeal and set aside the conviction and sentence passed against the appellant. The appellant is in jail. He should be released forthwith, if he is not wanted in connection with any other criminal case.” 21. Applying the ratio of law laid down in the case of Pawan Kumar Parasnath Trivari (supra), the facts in the present case indicates that deceased Hema Bai had committed suicide by pouring kerosene on herself and that is why her palms were not affected. In a case of homicidal burning by pouring kerosene on the body by another, the palms along with the other parts of the body will get burn. Thus, the possibility of deceased committing suicide by pouring kerosene on herself and setting herself on fire cannot be ruled out. In a case of homicidal burning by pouring kerosene on the body by another, the palms along with the other parts of the body will get burn. Thus, the possibility of deceased committing suicide by pouring kerosene on herself and setting herself on fire cannot be ruled out. This aspect gets strength from Ex.D/2A - Injury Report of Shiv Narain @ Guddu (accused-respondent). As per Ex.D/2A, the accused-respondent himself received 30% burn injuries. The accused-respondent in his explanation under Section 313 of Cr.P.C. has stated that he along with Prahald and Ramphal were sitting outside. On hearing the shouting of Hema, they went running. The gate of the house was closed, which was broken and they saw that Hema was burning. He tried to extinguish the fire and sustained burn injuries. This fact would be fortified from the statement of P.W.7 - Ramphool, wherein he has stated that on hearing the shouting of deceased, He, Prahlad and Guddu went there and saw that Hema was burning from all sides. They started to extinguish the fire, then Hema hugged Guddu. It is pertinent to mention here that as per site plan (Ex.P/9) the backside gate of the house was shown to be closed. Therefore, the chain of circumstance in the present case is not complete. 22. On perusal of the statements of P.W.2 - Arjun, who is father of the deceased and P.W.5 - Smt. Santara Bai, who is mother of the deceased, it reveals that her daughter liked Shiv Narain and wanted to reside with him and that both husband and wife were having cordial relations. Thus, in the present case, the motive of the accused-respondent to kill his wife has also not been established. 23. In view of the above, we are of the considered opinion that the learned court below has not erred in acquitting the accused-respondent for the offence under Section 302 of I.P.C. therefore, we deem it proper to dismiss this appeal. 24. Accordingly, the instant criminal appeal is dismissed and the judgment and order dated 20.07.2002 passed by the court below is upheld. 25. The record of the court below be sent back forthwith.