JUDGMENT Per : Justice Gajendra Singh 1. This Criminal Appeal under section 374(1) of the Cr.P.C. is preferred challenging the conviction and sentence in Session Case No.79/2012 by the Special Judge, Barwani, District Barwani wherein vide judgment dated 21.8.2014 the sole appellant/accused Chhagan @ Chhaganya has been convicted under section 302 & 307 of the IPC for committing the murder of his wife Rangli Bai, 2 months old daughter Rekha @ Babita and attempting the murder of his 5 years old daughter Gayatri Bai. 2. The prosecution case was that on 18.2.2012 at around 05:00 PM Rangli Bai was preparing the information regarding the office of Anganwadi as Rangli Bai was working as Anganwadi Karyakarta in village Morani, Dudwa Faliya, Police Station - Rajpur, District Barwani. At that time, a two year old daughter Rekha @ Babita was in the lap of Rangli Bai. The appellant/accused entered into the house and started abusing Rangli Bai. When, Rangli Bai objected to the abusive words, appellant/accused Chagan @ Chaganya took the cane filled with kerosene oil and poured on Rangli Bai and lit the fire and burnt Rangli Bai alongwith Rekha @ Babita. When Gaytri, aged 5 years came in contact with her mother then she also caught fire. The appellant/accused thereafter extinguished the fire by pouring the water and thereafter left the house. Elder brother of appellant/accused namely Mangilal and his wife Gaura Bai came to the spot and shifted the Rangla Bai, Rekha @ Babita & Gaytri to the Govt. Hospital, Rajpur. In the hospital, Ramesh (PW-1) brother of Rangli Bai also reached. All the injured persons were referred to District Hospital, Barwani after primary treatment at Community Health Centre, Rajpur, District Barwani. The Executive Magistrate (PW-4) recorded the dying declaration of Rangli Bai after getting the certificate of Dr. Rajneesh Patidar (PW-3) at Community Health Centre, Rajpur. A Dehati Nalishi (Exhibit-P/11) was recorded by Inspector - Rajeev Uikey (PW-6). Spot map (Exhibit-P/12) was prepared and materials found at the place of incident were seized as per Exhibit-P/13. The appellant/accused was arrested as per Exhibit-P/14. During treatment Rekha @ Babita died on 19.2.2012 and Rangli Bai died on 24.2.2012 at M.Y. Hospital, Indore. An autopsy was conducted and final report was submitted. 3. Charges under section 302 and 307 of the IPC were framed against the appellant/accused. The appellant/accused abjured the guilt and claimed for trial. 4. The appellant/accused was arrested as per Exhibit-P/14. During treatment Rekha @ Babita died on 19.2.2012 and Rangli Bai died on 24.2.2012 at M.Y. Hospital, Indore. An autopsy was conducted and final report was submitted. 3. Charges under section 302 and 307 of the IPC were framed against the appellant/accused. The appellant/accused abjured the guilt and claimed for trial. 4. To bring home the guilt, prosecution examined as many as 12 witnesses including Ramesh (brother of deceased Rangli Bai) as PW-1, Dr. Rajneesh Patidar, who examined all the injured first time at Community Health Centre, Rajpur as PW-3, the Executive Magistrate, K.S. Gautam as PW-4, who recorded the dying declaration of deceased Rangli Bai, the Sub-Inspector, Rajeev Uikey as PW-6, who recorded the dying declaration of Rangli Bai in the form of Dehati Nalishi (Exhibit-P/11), the Medical Officer, Joseph Sulya as PW-9, who conducted the autopsy of Rekha @ Babita, aged 2 years and Dr. Pawan Kumar Mourya, Demonstrator, Department of Forensic, MGM Medical College, Indore as PW-12. 5. In the examination under section 313 of the Cr.P.C., the appellant/accused either denied or expressed ignorance of the facts and circumstances appeared against him in the evidence and took the defence of false explanation. He did not examine any witness in his defence. 6. Appreciating the evidence, the trial Court recorded the findings that on 18.2.2012, the appellant/accused caused the murder of Rangli Bai and Rekha @ Babita by pouring kerosene oil and litting the fire and attempted the murder of Gaytri and sentenced for life imprisonment for the murder of Rangli Bai with fine of Rs.1,000/-, sentenced for life imprisonment for murder of Rekha @ Babita with fine of Rs.1,000/- and for attempting the murder of Gayatri sentenced for 10 years R.I. with fine of Rs.1,000/-. All the sentences were ordered to run concurrently. In default of payment of fine, simple imprisonment was also ordered. 7. Challenging the conviction and sentence, this appeal has been preferred on the ground that there is not a single eyewitness of the said incident and all the witnesses are hearsay witness. No one is present at the crime spot when the incident took place. Ramesh (PW-1) is the brother of the deceased Rangli Bai and he has admitting having prior animosity with the present appellant. The trial Court committed error on relying the dying declaration as the same was not corroborated by any documentary evidence. No one is present at the crime spot when the incident took place. Ramesh (PW-1) is the brother of the deceased Rangli Bai and he has admitting having prior animosity with the present appellant. The trial Court committed error on relying the dying declaration as the same was not corroborated by any documentary evidence. Even, if the categorical statements of dying declaration are considered as gospel truth, the present appellant can only be punished for the offence under section 304 II of the Indian Penal Code and no offence is made out under section 302 of the IPC. The trial Court had grossly erred in not properly considering the fact that there was no mens rea of the present appellant going by the categorical statement of deceased to commit murder. The trial Court had grossly erred in not properly considering the fact that the present appellant even has been wrongly charged for the offences punishable under section 307 of the IPC, 1860. 8. Learned Additional Advocate General has supported the conviction and sentence. Heard the learned counsel for the parties & perused the record. 9. The testimony of Dr. Rajesh Patidar (PW-3), Medical Officer, Community Health Centre, Rajpur, District Barwani, the Medical Officer, Joseph Sulya (PW-9) and Dr. Pawan Kumar Mourya (PW-12) proves that on 18.12.2012 Rangli Bai got 70% to 80% burn injuries that was caused by pouring kerosene & thereafter causing burn injuries and Rekha @ Babita got 60% to 70% burn injuries in the same manner and Gaytri sustained 40% burn injuries and Rekha @ Babita succumbed to injuries on 19.2.2012 and Rangli Bai succumbed to injuries on 24.2.2012 at 1:45. 10. Involvement of the appellant/accused in the incident has been proved through dying declaration recorded on 18.2.2012 at 18:15 PM at Community Health Centre, Rajpur by Sub-Inspector, Rajeev Uikey as Exhibit-P/11 and Executive Magistrate, K.S. Gautam (PW-4) on 18.2.2012 at 06:40 pm in the ambulance of CHC, Rajpur and oral dying declaration of Rangli Bai to his brother Ramesh (PW-1) at CHC, Rajpur. 11. The Medical Officer, Dr. 11. The Medical Officer, Dr. Rajneesh Patidar has certified on ExhibitP/8 that at the time of statement deceased Rangli Bai was fit for statement and the statement was recorded in his presence and prior to the statement he endorsed on 'A to A' part of Exhibit-P/8 and after the statement on 'C to C' part of the Exhibit-P/8 and he signed the document Exhibit-P/8 at 'D to D'. Nothing has been elicited in his cross-examination that deceased Rangli Bai was not fit to gave her statement. Even, the appellant/accused has submitted that if dying declaration is taken as whole, the offence does not constitute the mens rea to commit the offence of murder as he himself try to save her wife through pouring water and in this attempt he also sustained burn injuries which are mentioned in Column No.7 of his memo of arrest Exhibit-P/14 prepared on 19.2.2012 at 20:00 PM. 12. The conduct of the appellant that he wrapped in the influence of liquor and thereafter he left the home and that he poured the water on Rangli Bai and his both daughters took extinguish the fire are mentioned in para 72 of the judgment with an observation that the appellant was intoxicated and he committed the incident in the influence of that liquor. 13. 13. For proper appreciation of the finding of the trial Court, this Court is reproducing the dying declaration (Exhibit-P/8) as verbatim:- ^^d¢Œ,lŒ x©re dk;Zikfyd eftLVªsV ,oa rglhynkj] rglhy {ks= jktiqj ej.klu dFku LFkku & 'kkldh; fpfdRlky; jktiqj dh ,Ecwysal okgu d¢ vanj fnukad ,oa le; & 18-02-12] 06%42 ihŒ,eŒ MkWDVj lkgc Ñi;k ;g Vhi fy[kus dk d"V djsa fd ejht iwoZ g¨'k gokl esa g¨dj Ò;u nsus dh fLFkfr esa gS fd ugÈ%& The mentioned patient was conscious, oriented to time , place & person & was able to give her statement: ç'u Øekad 1 %& rqEgkjk uke] ifr dk uke] mez fuokl LFkku D;k gSA mÙkj %& esjk uke jaxyhckà ifr Nxu mez 30 o"kZ] fuoklh xzke e¨jkuh rglhy jktiqj gSA ç'u Øekad 2 %& rqEgsa D;k gqvk gSA mÙkj %& eSa vius Äj esa lk;adky djhc 5 cts vkaxuckM+h d¢Uæ ls lacafèkr tkudkjh cuk jgh Fkh] fd esjs ifr 'kjkc d¢ u'ks esa Äj esa vk, o eq>s xUnh&xUnh xkfy;k¡ nÈ rFkk feV~Vh d¢ rsy ls Òjh d¢u esjs Åij Mky nh eSaus chp cpko fd;k r¨ Òh djhc 3 yhVj esa ls vkèkk d¢j¨lhu esjs 'kjhj esa Mky fn;k] esjs cPps j¨us yxs r¨ eSaus N¨Vh cPph d¨ mBk;k blh chp esjs ifr Nxu yky us ekfpl tykà og xanh&xanh xkfy;ka nsus yxk fd eSa rq>s vÒh vkx yxk nsrk gw¡A esaus chp cpko fd;k r¨ vpkud esjs lkM+h esa vkx yx xà r¨ esjs ifr Nxu us ckYVh ls ikuh Mkydj esjh vkx cq>kÃ] os esjk ifr nk: d¢ u'ks esa j¨; o Äj ls ckgj pyk x;k] blh chp esjs tsB eaxhyky o tsBkuh x©jkckà n©M+dj vkà esjh n¨ ekg dh cPph cchrk d¨ Òh vkx yx xà rFkk esjh cM+h cPph xk;=h mez 7 o"kZ eq>ls fyiV xà FkhA ftlls og Òh vkx esa tyus yxhA esjk iq= dkyw mez 5 o"kZ Äj ls ckgj j¨dj Òkx x;k ftlls og cp x;kA ç'u Øekad 3 %& ;g vkx rqEgsa dSls yxh gSA mÙkj %& esjs ifr Nxu 'kjkc d¢ u'ks esa Fks mlus xyh xy©p dh og d¢j¨flu dh d¢u ls vpkud feV~Vh dk rsy esjs 'kjhj esa Mky fn;k og ekfpl tykà chp cpko esa vpkud vkx yx tkus ls eSa tyus yxh r¨ esjk ifr j¨; fpYyk;k rFkk esjs 'kjhj esa ikuh Mkydj vkx cq>kÃA ç'u Øekad 4 %& rqEgsa v©j dqN dguk gSA mÙkj % esjs ifr Nxu 'kjkc ihdj u'ks dh gkyr esa Äj vk, o ges'kk dh rjg esjs lkFk xkyh xy©p dhA ÄklysV dh d¢u eq> ij Mky nh] ysfdu og eq>s Mjk jgs Fks] ckj&ckj ekfpl dh rhyh tyk jgs Fks] chp cpko esa vpkud esjs 'kjhj esa vkx yx tkus ls eSa ty xà og esjh os cfPp;k¡ Òh fyiV tkus ls ty xà gSa] eq>s tsB] tsBkuh o Äj okys bykt d¢ fy, vLirky yk, gSaA eq>s v©j dqN ugÈ dguk gSA^^ 14. In the light of above, oral dying declaration brought on record through Ramesh (PW-1) that Rangli Bai snatched the match box two times but appellant/accused took the match box from somewhere and lit the fire is not proved specially in the light of para 8 and 14 of his statement. 15. Considering the answer to question Gos.2, 3 and 4 in dying declaration (Exhibit-P/8), the act of the appellant/accused does not constitute the requisite mens rea to commit the death of his wife and children. His act is covered the section 304 Part-I of the IPC and not under section 302 of the IPC regarding death of Rangli Bai and Rekha @ Babita and section 308 of the IPC for the injuries to Gayatri. 16. In view of the foregoing discussion, this appeal is partly allowed. The conviction of the appellant under section 302 of the IPC for committing the murder of Rangli Bai & Rekha @ Babita is set aside and he is convicted for the offence under section 304 Part-I (2 counts) of the IPC and conviction of the appellant under section 307 of the IPC is also set aside and he is convicted for the offence under section 308 of the IPC regarding injuries of Gayatri. 17. The appellant/accused has been in custody since 20.2.2012 till date and he has undergone 12 years 11 months and 15 days as all the sentences run concurrently. So, the appellant/accused is sentenced to undergo the period already undergone i.e.12 years 11 months and 15 days. The appellant be released from the custody forthwith subject to payment of the fine amount and if not required in any other cause. 18. Record of the Court below along with a copy of this order be sent forthwith for information and compliance.