JUDGMENT : ANIL KUMAR UPMAN, J 1. Appellants have preferred this appeal against the judgment of conviction and sentence dated 17.07.2019 passed by Additional Sessions Judge No.2, Bandikui, District Dausa (Rajasthan) (hereinafter referred to as "trial Court") in Sessions case B.T. No.146/2018 (30/2013). By this judgment, learned trial Court convicted them for the offence under Section 147 and 302/149 IPC. For the offence under Section 147 IPC they were sentenced to undergo 2 years simple imprisonment along with a fine of Rs.5,000/- each, and in default of payment of fine, 3 months simple imprisonment was ordered. For the offence under Section 302/149 IPC they were sentenced for imprisonment of life along with fine of Rs.10,000/- each, and in default of payment of fine, 6 months simple imprisonment was ordered. 2. Criminal proceedings were set on motion when (PW-1) Rahim Khan received a telephone call on mobile on 09.03.2013 in respect of the fact that, a lady named Geeta Devi has been brought in CHC, Sikrai in burnt condition by her family members. On this information, he along with constable Pooran reached at CHC, Sikrai. He issued written direction to doctor for medical treatment. Thereafter, he found that Geeta Devi was in condition to give her statement. In presence of Dr. Babu Lal, he recorded her statement (Parchabayan Ex.P-1) wherein she stated that she is resident of village Hingwa. At about 11:00 P.M. when she was sleeping, Pappu, Babulal, Vinod, Satyaveer and Ramotar came there and dragged her out and told that what her husband is doing and that they are taking possession of their land. They came with a canister (pipi) filled with some substance about which she had no idea and poured upon her and lit her on fire with a matchbox and afterwards all those persons ran away. Her family members brought her to the hospital. On the basis of this Parchabayan, an FIR No.58/2013 was registered at Police Station Manpur, District Dausa on 10.03.2013 for the offences under Section 143 & 307 IPC. On account of serious condition she was referred to SMS Hospital, Jaipur and on 10.3.2013 at about 2:20 A.M. she was admitted in SMS Hospital, Jaipur. Vide Ex.P-26, a request letter was issued by the SHO Police Station, Manpur to the Chief Judicial Magistrate, District Jaipur to depute a Judicial Magistrate to record statement of Geeta Devi. On account of serious condition she was referred to SMS Hospital, Jaipur and on 10.3.2013 at about 2:20 A.M. she was admitted in SMS Hospital, Jaipur. Vide Ex.P-26, a request letter was issued by the SHO Police Station, Manpur to the Chief Judicial Magistrate, District Jaipur to depute a Judicial Magistrate to record statement of Geeta Devi. On this request, Additional Civil Judge (JD) and Judicial Magistrate No.3, Jaipur Metro was directed to record the statement according to law. Learned Magistrate on dated 10.03.2013 reached the burn ward of SMS Hospital, Jaipur. Before recording the statement, a certificate was taken from the duty doctor about fitness of mind and doctor certified that Geeta Devi is fit for giving her statement. Thereafter her statement (Ex.P-27) was recorded in question-answer form and was read over to her. She admitted the same as correct and thumb impression of her right hand was put on the statement. 3. Smt. Geeta Devi succumbed to the burn injuries in the hospital on 10.03.2013. On receiving of this information from the Hospital, Shri Surendra Singh (PW-11) conducted the inquest proceedings. On same day at 3:15 P.M. autopsy was conducted and it was opined by the medical expert that cause of death is shock brought about as a result of ante-mortem dry heat flame burn which is sufficient to cause death in ordinary course of nature. 4. On her death, Section 302 IPC was added and finally police filed charge-sheet against 3 accused persons namely Pappu @ Ramjilal, Babulal and Ramotar for the offences under Section 143 & 302 IPC in the court of concerned Magistrate whereas, investigation against appellants-Vinod and Satyaveer was kept pending under Section 173(8) Cr.PC. 5. On presentation of this charge-sheet, learned Magistrate took cognizance and committed the case to the Court of Sessions. Session judge entrusted this case to the trial Court for adjudication. 6. On 25.09.2013 charges were framed against the accused-appellants namely Pappu @ Ramjilal, Babulal & Ramotar for the offences under Section 147, 302 and 302/149 IPC. All the above 3 appellants denied the charges and claimed trial. 7. On 23.02.2014, police filed the final report and mentioned that accused Satyaveer and Vinod were not found involved in the crime. On 29.6.2017, learned trial Court passed an order on application under Section 319 Cr.PC to summon the accused Satyaveer and Vinod as an additional accused. All the above 3 appellants denied the charges and claimed trial. 7. On 23.02.2014, police filed the final report and mentioned that accused Satyaveer and Vinod were not found involved in the crime. On 29.6.2017, learned trial Court passed an order on application under Section 319 Cr.PC to summon the accused Satyaveer and Vinod as an additional accused. On finding sufficient grounds to summon them as an additional accused, they were summoned through warrant of arrest. On appearance aforesaid 2 accused-Satyaveer and Vinod were also charged for the offences under Section 147, 302 and 302/149 IPC. Both of the appellants denied the charges and claimed trial. 8. In support of the case, prosecution examined as many as 15 witnesses and documentary evidence as Ex.P-1 to Ex.P-29 were also exhibited. 9. Accused-appellants were examined under Section 313 Cr.PC and they stated that prosecution evidence is wrong and on account of enmity and land dispute, they have been falsely roped. It was further stated by Pappu @ Ramjilal, Babulal & Ramotar that husband of Geeta Devi was habitual of liquor and he himself poured Kerosene on her, due to which she sustained grievous burn injuries and later on, she died. Accused-Satyaveer & Vinod have stated that they are innocent and they have not committed any offence. Accused-Satyaveer further stated that on the date of incident he was in college in Jaipur and in police investigation he was not found in Village at the time of incident. His phone location was also found in Jaipur. Accused-Vinod stated in his statement that he is a student and pursuing studies in Bandikui and in investigation his mobile location was found in Bandikui at the time of incident. 10. In defence, as many as 6 witnesses were produced by the accused-appellants and certain documentary evidence as Ex.D-1 to Ex.D-12A were exhibited. 11. After hearing both the parties, learned trial Court recorded conviction of all the appellants and sentenced them as mentioned hereinabove. 12. Being dissatisfied from the judgment and sentence, this appeal has been presented before this Court. 13. In order to assail the conviction, learned counsel for the appellants submits that the learned trial Court has committed grave illegality in convicting the accused-appellants on the basis of dying declaration (Ex.P-27). 12. Being dissatisfied from the judgment and sentence, this appeal has been presented before this Court. 13. In order to assail the conviction, learned counsel for the appellants submits that the learned trial Court has committed grave illegality in convicting the accused-appellants on the basis of dying declaration (Ex.P-27). Learned counsel for the appellants argued vehemently and with ability that the dying declaration, purported to be recorded by the Magistrate (PW-15) necessarily has to be ignored because he has totally negated the basic principles for recording the dying declaration. He further submits that there is no endorsement on the dying declaration that Geeta Devi was fully conscious and fit for giving her statement. He further submits that the learned Magistrate has not recorded his own satisfaction as to whether Geeta Devi was in a position to give her statement. It is also argued by him that as per dying declaration, kerosene was poured on the person of the deceased by the appellants, but there was no smell of kerosene present. It has also been argued that the thumb impression of the deceased Geeta Devi on the Parchabayan as well as on dying declaration has been obtained, but existence of thumb impression on these vital documents create serious doubt about veracity of these documents. As per the testimony of experts namely Dr. Premchand (PW-4) & Dr. Babu Lal Meena (PW-12) there was 84 % to 86% burn on the person of the deceased. According to PW-4, both of the hands of the deceased were fully burnt, so thumb impression of the deceased on these aforementioned documents were not possible at all. It has also been argued that independent witnesses were intentionally withheld by the investigating officer. It has also been argued that husband of the deceased (PW-2) is not a reliable witness as he was not present at the place of incident and it was not possible for him to identify the assailants in night. It was further argued that brother of the deceased (PW-3) has not supported the prosecution case and was declared hostile. Recovery of kerosene canister is also not proved as the same was not recovered in presence of independent witnesses. Further prosecution failed to produce this canister during the course of the examination of recovery witnesses. It was further argued that brother of the deceased (PW-3) has not supported the prosecution case and was declared hostile. Recovery of kerosene canister is also not proved as the same was not recovered in presence of independent witnesses. Further prosecution failed to produce this canister during the course of the examination of recovery witnesses. It is also argued that there is no evidence that alleged place of recovery was in exclusive possession or ownership of appellants. It was further argued that the appellants namely Satyaveer and Vinod were not found involved in the crime and they were not charge-sheeted by the investigating agency. So far appellants- Pappu @ Ramjilal, Babulal & Ramotar are concerned they were also not present at the place of incident, rather they were present in the temple where satsang was going on. 14. Learned State counsel as well as counsel for the complainant, on the contrary, supported the impugned judgment. They submits that the learned trial Court rightly recorded the conviction of the appellants relying upon both the dying declarations. They further submit that from the evidence available on record it is established that deceased was in a fit state of mind to make the statement and she has in very clear terms implicated the appellants. 15. In order to appreciate the contentions advanced by the counsels for both the parties, we have perused the entire record and appreciated the evidence. 16. First submission of the counsel for the appellants is that at the time of recording of Parchabayan (Ex.P-1) as well as dying declaration (Ex.P-27), recorded by the Magistrate, she was not conscious and was not fit for giving statement. We appreciated the evidence in this regard and found that Parchabayan (Ex.P-1) was recorded soon after the incident at 12:15 A.M. on 10.03.2013. Before recording this Parchabayan, at 12:10 A.M. Dr. Babu Lal (PW-12) certified vide Ex.P-23 that Geeta Devi was fit for giving statement. We have perused the testimony of Dr. Babu Lal and found that vide Ex.P-23 his opinion was sought and after due examination of injured, he found her fit for giving statement. He further stated that in his presence, Parchabayan was recorded. From his testimony it is also evident that he himself informed Chowki incharge Rahim Khan (PW-1) through mobile that a lady has been brought to hospital in burnt condition. He further stated that in his presence, Parchabayan was recorded. From his testimony it is also evident that he himself informed Chowki incharge Rahim Khan (PW-1) through mobile that a lady has been brought to hospital in burnt condition. On this information Rahim Khan reached the hospital and obtained certificate about fit condition of injured from Dr. Babu Lal. Thereafter he recorded her statement in presence of Dr. Babu Lal and he verified the same. Both the witnesses were discharging their official duty and there is nothing on record to suggest that they had any enmity with the appellants, so chance of false implication do not arise. In view of the above, we do not find any infirmity in Parchabayan. 17. Another dying declaration which has been relied upon by the prosecution is Ex.P-27 which is recorded by the Magistrate. From bare perusal of this dying declaration, it appears that it was recorded in question-answer form. It also appears that before recording the statement, duty doctor certified that Geeta Devi was fit for giving statement. However, duty doctor was not produced by the prosecution in evidence but this does not affect the prosecution case as signature of duty doctor was proved by the Magistrate. We examined the testimony of PW-15 wherein he has stated that on 10.03.2013 he was posted as Judicial Magistrate No.3, Jaipur Metro. On that day Ex.P-26 was produced before him by which he was directed by Chief Judicial Magistrate to record the statement of one Geeta Devi who was admitted in Burn Unit of SMS Hospital, Jaipur. In order to comply with the order, he reached to the Burn Unit of the Hospital and obtained fitness certificate of the injured from the duty doctor and recorded the statement of injured in question-answer form which is Ex.P-27 which is running in 4 pages. On each paper at place X, thumb impression of Geeta Devi was taken. Each paper was signed by him and there is endorsement made by the doctor at C to D place with regard to the fit state of the mind of the injured. In crossexamination, he clearly stated that he orally recorded his own satisfaction also. In cross-examination, he further stated that when he reached the hospital, he did not find any relative of the injured nearby. In crossexamination, he clearly stated that he orally recorded his own satisfaction also. In cross-examination, he further stated that when he reached the hospital, he did not find any relative of the injured nearby. From his testimony, we find that statement of injured was recorded by the Magistrate in discharging his official duty and all precautions were taken by him. Before recording the statement, he orally recorded his satisfaction also and fitness certificate was also obtained by him from duty doctor. Signature of doctor was also identified by him as the same was made before him. So non-production of the duty doctor by the prosecution does not make dying declaration doubtful. 18. Next submission of the learned counsel for the appellants is that there was 84% to 86% burn on the person of the deceased and her both hands were fully burnt so thumb impression on Parchabayan (Ex.P-1) as well as on dying declaration (Ex.P-27) was not possible at all. It was further submitted by counsel for the appellants that absence of smell of kerosene also creates doubt on the veracity of dying declaration. We have considered the submissions and do not find any force in the submissions of the counsel for the appellants. From bare perusal of the postmortem report (Ex.P-9), it is revealed that there is no mention that both of her hands including thumb were fully burnt. From bedhead ticket also, it is also not reflected that both hands of the injured were fully burnt. From the evidence of medical experts also, it is not established that thumb impression of the injured was not possible on the dying declaration. Another submission that medical expert did not find any smell of kerosene from the person of the deceased has to be rejected for the reason that postmortem was conducted after 40 hours of the incident. She had been under treatment before she succumbed to the injuries. It is, therefore, nothing unusual that at the relevant time (PW-4) Dr. Premchand conducting the post-mortem on the person of the deceased and did not find traces of kerosene oil. A fact which cannot be ignored is that from the place of the incident, ashes and some pieces of burnt clothes were recovered vide Ex.-P-6 & 7. It is also evident from the site plan (Ex.P-5) that some traces of ash and burnt clothes were present at the place of the incident. A fact which cannot be ignored is that from the place of the incident, ashes and some pieces of burnt clothes were recovered vide Ex.-P-6 & 7. It is also evident from the site plan (Ex.P-5) that some traces of ash and burnt clothes were present at the place of the incident. Admittedly, death occurred on account of burn injuries and we have already noticed herein above that dying declaration do not suffer from any basic legal infirmity. 19. A dying declaration which is purported to have been made by the deceased is made admissible in evidence and is one of the exceptions to the general rule applicable in India that the evidence has to be direct and the person so stating must be subjected to cross-examination. But the said principle has been made applicable because making the statement of the deceased relevant is based on doctrine of necessity. As mentioned above to general rule is that of oral evidence must be direct if it refers to a fact which could be seen then it must be the evidence of the witness who says he saw it. 8 Clauses of Section 32 of the Evidence Act are exception to this rule and one of them is dying declaration made by the deceased just before his death. 20. Supreme Court in the case of Tarachand Damu Sutar vs. The State of Maharashtra AIR 1962 SC 130 had categorically held that a conviction based on dying declaration against the correctness of which no possible reason have been given is sustainable in law. In the case of Munnu Raja and Anr. vs. The State of Madhya Pradesh (1976) 3 SCC 104 the Supreme Court reiterated the same view and observed that it is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. 21. In State of Uttar Pradesh vs. Ramsagar Yadav and others AIR 1985 SC 416 , Apex court held that the primary effort of the court must be to see that the dying declaration is authentic there is no need for further corroboration. 21. In State of Uttar Pradesh vs. Ramsagar Yadav and others AIR 1985 SC 416 , Apex court held that the primary effort of the court must be to see that the dying declaration is authentic there is no need for further corroboration. Again Apex court has established broad principles in respect of dying declaration in the case of Atbir vs. Govt of N.C.T of Delhi AIR 2010 SC 3477 which read as under:- “(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.” 22. The contention of the counsel for the appellants that recovery of kerosene canister is not proved is also without basis as recovery was made vide Ex.P-16, in furtherance of the information given by the appellant-Pappu under Section 27 of the Evidence Act vide Ex.P-21. The contention of the counsel for the appellants that recovery of kerosene canister is not proved is also without basis as recovery was made vide Ex.P-16, in furtherance of the information given by the appellant-Pappu under Section 27 of the Evidence Act vide Ex.P-21. Both witnesses namely Hitish Kumar and Rajesh Kumar have proved the factum of the recovery of canister. 23. Now we shall consider the case of appellants-Satyaveer and Vinod, who were summoned as an additional accused under the exercise of powers of Section 319 of the Cr.PC. Both the appellants have submitted that at the time of alleged incident they were not present in the village, so they were not charge-sheeted. We have examined the record in this regard and found that specially on the strength of the mobile location, both the appellants were not found involved in the crime by the investigating officer, but no such call details or location has been placed on record and burden was on both accused-appellants to prove this fact beyond reasonable doubt. Both appellants were residing hardly at a distance of 100 kms. and in view of this fact, their presence at the place of incident cannot be ruled out. 24. Now as far as the case of appellant- Vinod is concerned we find that in the statement recorded by the learned Magistrate (PW15) name of appellant (Vinod) is not appearing and in very clear terms injured has mentioned the names of rest of 4 appellants, who were responsible for her injuries. She did not utter any word about appellant-Vinod. So in view of the fact, that in the dying declaration recorded by the Magistrate there is no allegation against appellant-Vinod, thus he is entitled of benefit of doubt. In view of the above, we are of the view that appellant-Vinod deserves to be acquitted from the charges levelled against him. 25. In view of the fact that appellant-Vinod is entitled to be acquitted as discussed above, rest of the four appellants cannot be convicted for the offences under Sections 147 IPC and Section 302 IPC read with Section 149 IPC but their conviction is liable to be converted from Section 302/149 IPC to Section 302/34 IPC. 25. In view of the fact that appellant-Vinod is entitled to be acquitted as discussed above, rest of the four appellants cannot be convicted for the offences under Sections 147 IPC and Section 302 IPC read with Section 149 IPC but their conviction is liable to be converted from Section 302/149 IPC to Section 302/34 IPC. We have already discussed, that all 4 appellants actively participated in the commission of the offence and in the dying declaration in very clear terms it was stated by the deceased that all 4 persons are responsible for her injuries. 26. We fortify our view from the law laid down by the Hon'ble Apex Court in case Karnail Singh Vs. State of Punjab AIR 1954 SC 204 . In this case it was held that:- “Then the next question is whether the conviction of the appellant under S. 302 read with S. 34, when they had been charged only under S. 302 read with S. 149 was illegal. The contention of the appellants is that the scope of S. 149 is different from that of S. 34, that while what S. 149 requires is proof of a common object, it would be necessary under S. 34 to establish a common intention and that therefore when the charge against the accused is under S. 149, it cannot be converted in appeal into one under S. 34. The following observations of this Court in-Dalip Singh v. State of Punjab, AIR 1953 SC 364 AT P. 366 (C) were relied on in support of this position:"Nor is it possible in this case to have recourse to S. 34 because the appellants have not been charged with that even in the alternative and the common intention required by S. 34 and the common object required by S. 149 are far from being the same thing." It is true that there is substantial difference between the two sections but as observed by Lord Summer in- Barendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 (D), they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is the subject-matter of the charge under S. 149 does not necessarily involves a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34, then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter.” 27. In view of what we have discussed hereinabove we dispose of the instant appeal in the following terms:- (i) We allow the appeal filed by appellant No.5-Vinod and set aside his conviction under Sections 147 & 302/149 IPC. The impugned judgment dated 17.07.2019 qua the appellant No.5 Vinod is quashed. We acquit him from the said charges. He is on bail, thus his bail bonds stands discharged. (ii) While partly allowing the appeal of the appellants No.1 to 4- Pappu, Babulal, Ramotar and Satyaveer, we convert their conviction from Section 302/149 IPC to Section 302/34 IPC and sentence them to suffer imprisonment for life and fine of Rs.10,000/-, in default of payment of fine, to further suffer 6 months simple imprisonment, but acquit them from charge under Section 147 IPC. The impugned judgment dated 17.07.2019 qua the appellants No.1 to 4-Pappu, Babulal, Ramotar and Satyaveer is accordingly modified. Accused appellant-Satyaveer is on bail, his bail bonds are cancelled. He is directed to surrender before the trial Court to serve out the remaining sentence. Trial Court is also directed to take necessary steps to take him in custody. 28. Record of the trial Court be sent back forthwith. 29. Accordingly, criminal appeal qua the appellants No.1 to 4- Pappu, Babulal, Ramotar and Satyaveer is accordingly partly allowed and the criminal appeal qua the appellant No.5 Vinod is allowed. 30. Trial Court is also directed to take necessary steps to take him in custody. 28. Record of the trial Court be sent back forthwith. 29. Accordingly, criminal appeal qua the appellants No.1 to 4- Pappu, Babulal, Ramotar and Satyaveer is accordingly partly allowed and the criminal appeal qua the appellant No.5 Vinod is allowed. 30. The appellant (Vinod) is directed to furnish a personal bond of Rupees 50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.PC before the Deputy Registrar (Judicial) within three weeks from today to the effect that in the event of filing Special Leave Petition against the judgment for grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bonds will remain in force for a period of six months