C.V. Sirpurkar, J.
1. Criminal Appeals No. 1645/2003,1885/2003 and 18/2004 arose from the same judgment dated 28.08.2003 passed by Shri Mohammad Shameem, Additional Sessions Judge, Ashta, District- Sehore in Sessions Trial No. 186/2002 (State Vs Gajraj Singh), whereby learned Additional Sessions Judge has convicted the appellant Gajraj Singh under Section 302 of I.P.C. on four counts and on each count, has imposed a sentence of rigorous imprisonment for life and a fine in the sum of Rs. 20,000/- in default whereof, he was directed to undergo further rigorous imprisonment for a term of 2 years; and under Section 436 of I.P.C. and imposed a sentence of rigorous imprisonment for a period of 10 years and a fine in the sum of Rs. 10,000/-, in default whereof he was directed to undergo further imprisonment for a period of one year.
2. Criminal Appeals No. 1645/2003 and 1885/2003 have been preferred under section 374 (2) of the Code of Criminal Procedure, 1973, by accused Ambaram against the conviction and sentence; whereas criminal appeal no. 18/2004 under section 377, has been preferred by the State for enhancement of sentence. Since, both these criminal appeals arose from the same judgment, they are being decided by this common judgment.
3. In nutshell, the prosecution case may be stated thus: Deceased Ambaram was Sarpanch of Village-Khachrod, P.S.- Siddikganj, District-Sehore. He was on inimical terms with accused Gajraj Singh, who was a neighbour, on account of the fact that some lands in possession of accused Gajraj Singh, were allotted to other persons and accused Gajraj Singh held deceased Ambaram responsible for the same. At around 2.00 am on 08.06.2002, Ambaram was sleeping in a room with his wife Soram Bai and two minor children Rahul and Narendra. First inofrmant Shaitanbai, who is mother of the deceased Ambaram, was in adjoining room. As she was unable to sleep, she sat on her cot. At that time, she heard a sound of foot-falls in the Veranda. Suddenly, there was smell of oil and a bright light in the room in which Ambaram was sleeping. Shaitanbai got up and tried to open the door of her room but it was bolted from outside. In the adjoining room, her son Ambaram, daughter in law Sourambai and grandchildren Rahul and Narendra were screaming " Bachao Bachao" ("save us, save us.). At that time, accused Gajraj Singh called out from the veranda: " Jalo, tum logo ko koi nahi bacha sakta hai." (Burn, nobody can save you people.). Then, there was sound of his running away from the place. By that time, people from neighourhood had gathered and they opened the door of the Shaitanbai's room from outside. Shantanibai came out and saw that the adjoining room was locked from outside. Mansingh, Badri, Bheema and Narayan broke open the lock and brought Ambaram, Sourambai, Narendra and Rahul out in burnt condition. There was very strong smell of petrol emanating from the room, in which Ambaram and his family were sleeping. Bedding clothes and documents were also burnt in the fire. By that time, someone had brought Jeep of Rajesh Jat. They took deceased Ambaram, Souram Bai and their children to the hospital at Ashta.
4. Shaitan Bai lodged Dehati Nalishi of the incident at around 6.40 am in her home. In the hospital at Ashta, deceased Ambaram made a dying declaration to the doctor, to the effect that accused Gajraj Singh set his house afire by using petrol. Though he did not see the accused Gajraj Singh doing it; yet, he heard him say "Jal Jao". Subsequently, deceased Ambaram and his family members were taken to Hamidia Hospital, Bhopal where they succumbed their injuries. During investigation, evidence was collected regarding procurement of kerosene from Fair Price Shop by appellant Gajraj Singh. At his instance, key to the lock used for locking the door of the room of Ambaram was recovered. Before his arrest and after the incident, accused Gajraj Singh made a extra judicial confession to one Ramesh Chandra. Subsequently, charge-sheet was filed under sections 436 and 302 of I.P.C.
5. Learned trial Court framed the charge for aforesaid offences. against the accused appellant. The appellant abjured guilt and claimed to be tried. In his examination under Section 313 of Cr.P.C., he stated that he has been falsely implicated in the case. He belonged to a prosperous family and studied at Sehore; therefore, witnesses were envious of him. He further stated that he had quarrel with Bherulal and Hemraj, who were god brothers of deceased Ambaram and also contended that both Gopilal and Madhosingh are cousins of deceased Ambaram; therefore, they did tell lies.
6. After trial, learned Additional Sessions Judge concluded that the prosecution was able to prove the guilt of the appellant/accused beyond reasonable doubt and convicted and sentenced him, as stated above. The learned Additional Sessions Judge concluded that the prosecution was able to prove that the death of deceased Ambaram, Souram Bai, Narendra and Rahul was homicidal in nature; they succumbed to the burn injuries sustained by them when their room was set afire by accused Gajraj Singh. Learned trial Court also concluded that the guilt of the accused was proved on the basis of the facts that Shaitan Bai (PW-1) saw accused Gajraj Singh pouring kerosene/petrol in the room in which Ambaram was sleeping with his family and setting it on fire. The learned trial Court also concluded that the prosecution was able to prove that deceased Ambaram made a dying declaration to the effect that he heard accused Gajraj Singh saying "Jal Jao" (burn). Learned trial Court also recorded a finding that it was proved that key to the lock used for locking the door of the room of Ambaram from outside, was recovered at the instance of accused Gajraj Singh and it was further proved that accused made an extra-judicial statement before prosecution witness Ramesh Chandra Parmar, confessing to the crime.
7. The conviction of accused Gajraj Singh under section 436 and 302 of the Indian Penal Code was assailed mainly on the ground that as per prosecution case, Shaitan Bai (PW-1) was not an eye-witness to the incident. She had only identified the accused on the spot on the basis of his voice; whereas, in the Court she turned into an eye- witness. As such, her statement cannot be given any credence. It has also been contended that deceased Ambaram had suffered 98% burns in the incident, as such, it was highly unlikely that he would be in a position to make a reliable dying declaration. As per prosecution story, he to is said to have identified accused Gajraj Singh on the basis of his voice. As per defence, identification of voice alone is not a reliable piece of evidence. It has also been argued that alleged recovery of the key at the instance of accused Gajraj Singh was not supported by Panch witnesses. In any case, it was recovered from a place which was outside the house of Gajraj Singh. It has also been contended that extra-judicial confession is a very weak piece of evidence and it is highly unlikely that any person would confess to having committed four murders to a rank stranger.
8. Now the Court shall deal with each argument one by one.
9. The main ground against the prosecution case taken by the accused/appellant Gajraj Singh is that there are serious contradictions and omissions in the Court statement of Shaitan Bai (PW-1) vis-a-vis her police statement. It has also been argued that Shaitan Bai being mother of deceased Ambaram, had proceeded to Bhopal with injured persons and stayed there for next two days. As such, she could not have lodged the Dehati Nalishi at Khachrod at the time at which it was said to have been recorded. It has also been argued that identification of the accused merely on the basis of his voice was highly unsafe and therefore could not have been relied upon.
10. In the light of aforesaid arguments, we shall first examine as to whether any ocular evidence is available in the case? In her Court statement Shaitan Bai has stated that her sleep was disturbed because her goat was crying; therefore, she was awake. She heard accused Gajraj Singh's voice. Gajraj Singh bolted the door of her room and that of her son Ambaram from outside. She saw accused Gajraj Singh scale the wall of Ambaram's room. When accused was scaling the wall she shouted loudly for about an hour. She saw Gajraj Singh remove tiles from above the tin sheet forming the roof of Ambaram's room. She saw him pour oil in the room of Ambaram from a can. She also saw Gajraj Singh setting the room on fire. Shaitan Bai also claimed that by that time 15-20 people from the neighbourhood had gathered on the spot. They also saw Gajraj Singh atop the room of Ambaram. They shouted and asked Gajraj Singh as to what he was doing? Whereafter accused jumped down and ran away from the spot. In paragraph No.17 of her cross-examination Shaitan Bai (PW-
1) has also stated that she actually saw accused lit a match stick and throwing it in the room. She has also stated that after climbing down from the roof of Ambaram's room, he entered the room and poured oil upon Ambaram, Souram Bai and their children Rahul and Narendra while they were sleeping and set them afire with a match stick. After that he ran away. She saw accused pouring oil on four injured persons from a distance of about 4-5 steps.
11. Thus, we see that there are dramatic improvements and wild exaggerations in the evidence of Shaitan Bai before the Court over her statement as given to the police. When asked to explain these improvements and omissions, she simply stated that she had told these facts to the police as well. However, the fact that Shaitan Bai actually saw accused pouring oil in the room of Ambaram and setting the room a fire, that is to say, she was really an eyewitness to the entire incident are missing from Dehati Nalishi and her statement under section 161 of the Cr.P.C. When she was asked that in her statement to the police she merely stated that she had identified the accused only from his voice. She stated that she did not identify accused from his voice but she actually saw accused performing all those acts. The aforesaid contradictions and omissions have converted Shaitan Bai from a witness of voice identification to an ocular witness. Such discrepancies cannot be brushed aside lightly. Thus, there are material omissions amounting to contradictions that go to the root of the matter. Therefore, we do not share the view of the learned trial Court that aforesaid contradictions are not material. These omissions and contradictions shake the credibility of the statement of Shaitan Bai (PW-1). In these circumstances, Shaitan Bai can not be treated as an eyewitness because it was never the prosecution story that she saw the accused on the spot. Since she denied before the Court that she had identified the accused on the spot by his voice, she cannot even be treated as a witness of identification of accused by his voice.
12. If we assume for the sake of argument that she had identified accused by his voice, even as per the prosecution case, there was no conversation between this witness and the accused. The accused is said to have uttered only one sentence during the entire incident and that was "Burn, nobody can save you." With regard to voice identification, Supreme Court in the case of Inspector of Police, T.N. vs. Palanisamy @ Selvan, (AIR 2009 SC 1012) has observed that where the witnesses were not closely acquainted with the accused and claimed to have identified the accused from short replies given by him, evidence of identification by voice is not reliable. Supreme Court has also observed in the case of Nilesh Dinkar Paradkar vs. State of Maharashtra, [(2011) 4 SCC 143 at page 153] that evidence of voice identification is at best suspect, if not wholly unreliable. Accurate voice identification is much more difficult than visual identification. Though, this observation was made by Supreme Court with reference to identification of voice on the basis of recorded conversation; yet, the principles apply with slightly less force to the identification of live voice as well.
13. In the case at hand, witness Shaitan Bai was locked inside her room, had no opportunity to actually see the accused. There is no evidence to the effect that there was something like a window or a ventilator through which she could see or hear the accused. There was no conversation between the accused and the witness. Accused is said to have shouted only one sentence. So. at best, Shaitan Bai might have heard the perpetrator shouting a solitary sentence, wherefrom she deduced that it was accused Gajraj Singh who perpetrated the crime, rest of her statements consist clearly of her imagination. The identification by voice, if there was any, is in fact a very weak piece of evidence, which in the opinion of this Court, cannot be relied upon in the circumstances of the case, without some independent corroboration.
14. Now we shall examine whether any independent corroboration is forthcoming? Shaitan Bai (PW-1) had stated in her cross- examination that at least 15-20 persons had gathered on the spot and they saw the accused atop of the roof of Ambaram's room. Prosecution has examined eight witnesses namely PW-5 Jagannath, PW-9 Bhim Singh, PW-10 Badrilal, PW-11 Narayan, PW-12 Man Singh, PW-14 Hemraj Singh, PW-28 Gopilal and PW-29 Madho Singh who had heard the cries emanating from the house of deceased and had gathered on the spot. Badrilal (PW-10) and Man Singh (PW-
12) admitted that night was very dark. None of them claimed that they actually saw or even heard the voice of accused on the spot. It is clear from their statements that perpetrator of the crime had escaped from the scene before their arrival. In these circumstances, it is obvious that none of the witnesses including first informant Shaitan Bai was an eyewitness in the real sense. Nobody actually saw accused pouring petrol/kerosene in the room of deceased and set it on fire. Thus, no independent corroboration of the voice identification by Shaitanbai is available.
15. In this connection, there is one more circumstance that goes against the prosecution. Dehati Nalishi (Ex.P/1) is said to have been recorded at 6:40 a.m. on 8.6.2002, that is about 4 hours 40 minutes after the incident, at the residence of PW-1 Shaitan Bai; however, Shaitan Bai has admitted in her cross-examination that she had ac- companied her injured family members in the tractor from Kachrod to Ashta and from Ashta to Bhopal. It was most natural for to have done so. Dying declaration of Ambaram (Ex. P-24) was recorded at Ashta at 4.55 a.m. Thus it is clear that the party must have left Kha- chrod before 4.00 a.m. Shaitanbai further stated that she had lodged the report of the incident after returning from Bhopal in police station Siddikganj District Ashta. As per murg intimation (Ex.P/45), Am- baram expired at around 7:20 a.m. and his wife Souram Bai expired on 1:45 p.m. on the on 8.6.2002 in Hamidiya hospital, Bhopal. It is highly improbable that Shaitanbai would leave bedside of her son and the daughter-in-law while they were still struggling for life and would rush back to to Kachrod to lodge Dehati Nalishi. The Court can also take note of the fact that the entry regarding time of lodging of Dehati Nalishi in Ex.P/1 "8-6-02 ke 06=40 baje" is in different ink; though, in the handwriting of the same person. These circum- stances bring Dehati Nalishi, wherein the accused was said to have been named for the first time, under the realm of suspicion, as being ante-timed. and throws further doubt on the prosecution case.
16. The second piece of evidence which is adduced by the prosecution against the accused is the dying declaration made by deceased Ambaram. In this regard, Dr. G.D. Soni, Medical Officer of Civil Hospital, Ashta (PW-24) has stated that he had examined deceased Ambaram at around 4:55 a.m. on 8.6.2002. Keeping in view the health status of Ambaram, he had advised recording of a dying declaration. However, since the Magistrate was not available and the condition of deceased Ambaram was very serious, he proceeded to record the dying declaration (Ex.P/24) himself. He had recorded the statement in question-answer form. Ambaram had told him that Gajraj Singh had burnt him. When he asked Ambaram whether he actually saw Gajraj Singh doing it, Ambaram answered by saying 'no' but added that he said "Jal Jao". He also stated that Gajraj Singh poured petrol on his house and set it afire. In the dying declaration Ambaram also disclosed that Gajraj did it on account of old enmity relating to the post of Sarpanch. PW-24 Dr.G.D.Soni had also stated that since Ambaram was unable to sign the dying declaration or affix his thumb impression thereto, no signatures or thumb impression could be taken. The witness further stated that he recorded the dying declaration as per the statement made by Ambaram. Thereafter, he had informed police station Ashta by an intimation (Ex.P/25) regarding recording of dying declaration.
17. The aforesaid dying declaration has been assailed by appellant Gajraj Singh on several grounds. The first exception taken to the dying declaration is that Ambaram had suffered 98% of burns.
Therefore, it was impossible for him to have made a dying declaration.
18. A perusal of dying declaration (Ex.P/24) reveals that there is no certificate of the examining doctor appended thereto stating that at the time of making the dying declaration, the deceased was in a fit state of mind and body; however, Dr. G.D.Soni (PW-24) has stated in paragraph No.10 of his deposition that deceased Ambaram was understanding the questions being put to him and was answering those questions. Dr. G.D. Soni has further stated that at that point of time Ambaram was capable of making a statement.
19. A constitution bench of the Supreme Court in the case of Laxman vs. State of Maharashtra, [(2002) 6 SCC 710] affirming the full bench judgment of the Supreme Court in the case of Koli Chunnilal Savji vs. State of Gujarat, (1999) 9 SCC 562 held that if the person recording the dying declaration is satisfied that the declarant was in fit mental condition to make the dying declaration then such dying declaration would not be invalid solely on the ground that doctor had not certified as to the condition of the declarant to make the dying declaration.
20. Dr. G.D.Soni is an independent witness. He had no motivation to tell a lie or concoct evidence. In these circumstances, there is no reason to disbelieve the fact that deceased Ambaram made a dying declaration as recorded in the document (Ex.P/24).
21. However, the question remains whether the information disclosed in the dying declaration can be believed and it can form basis of conviction of accused?
22. Apex Court in the case of Ravi Kumar vs. State of Tamilnadu, (2006(1) ANJ SC 305), Paniben vs. State of Gujarat [(1992) 2 SCC 474], Uka Ram vs. State of Rajasthan, [(2001) 5 SCC 254] and many other cases has held that the Court has always to be on guard to ensure that the dying declaration was not a product of imagination. The Court has also to ensure that the declarant had opportunity to observe and identify the assailant. Normally; therefore, in order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the Court has to look for medical opinion.
23. When we examine the prosecution evidence on the point in the light of aforesaid principles, we find that prosecution witnesses Bherulal (PW-4), Jagannath (PW-5), Hemraj (PW-14), Gopilal (PW-
28) and Madho Singh (PW-29) are said to have been present when the dying declaration was made. There are some discrepancies as to the exact spot in the premises of the hospital at Ashta at which the dying declaration was made; however, even if we ignore these discrepancies, we find that Shaitan Bai has admitted in her cross- examination that Ambaram, Souram Bai, Rahul and Narendra had died even before reaching Ashta. It is true that they did not die before reaching Ashta but the fact remains that they had become so serious before reaching Ashta that Shaitan Bai believed that they had actually died. Bherulal had stated that all the four persons were badly burnt, however, they were in their senses till Ashta. This fact has been corroborated by Jagannath (PW-5) and Badrilal (PW-10). Narayan (PW-11) had stated that they made Ambaram and kids drink some water, which brought them to senses and they started writhing in pain. The witness has further stated that Ambaram was shouting a lot and was getting up and running away. Rajesh (PW-13) had stated that Ambaram was unable to speak. At that time he was merely shouting because of the burning sensation. Whatever he was shouting was not intelligible. Hemraj (PW-14) had stated that Ambaram was very restless.
24. In view of the aforesaid prosecution evidence, it is obvious that Ambaram was in a very poor physical and mental condition. Even if he was able to understand questions and make rational answers, his mental equilibrium must have been disturbed.
25. At the time of incident, deceased Ambaram was sleeping peacefully with his wife and children. He had no idea as to what was in store for him. Suddenly at 2:00 p.m., a mixture of petrol and kerosene was poured into his room and the room was set on fire. The door of the room was locked from outside so he had no escape route. As a result he was burnt to the extent of 98%. In these circumstances, it was very difficult for him to identify accused on the basis merely of his voice. As per Ambaram, he did not see Gajraj Singh but only heard him saying "Jal Jao". The aforesaid stated principles of voice identification also apply to the voice identification said to have been made by Ambaram. In fact the evidence of voice identification is further weakened in the case of Ambaram because he was not available to the defence for cross-examination. Moreover, he claims to have identified accused Gajraj Singh only on the basis of aforesaid two words uttered by him. In the aforesaid circumstances, even if we assure that he was not consciously telling a lie, it is clear that he was in no position to observe and identify the accused properly. The possibility that he was imagining the role of accused in the incident on the basis of previous enmity, cannot be ruled out. Thus, in the facts and circumstances of the case, it is probable that the dying declaration was a product of deceased's imagination. Thus, in the absence of independent corroboration, this piece of evidence against the accused can also not be relied upon.
26. Now we come to the extrajudicial confession alleged to have been made by accused to PW-17 Ramesh Chandra Parmar. He has stated in his deposition that he was acquainted with deceased Ambaram. On the day next to the incident, he was returning to his village Buranakhedi from Siddikganj. When he reached river Parvati, accused Gajraj Singh motioned him to stop. The accused came near him. At that time, accused had shaved his head clean and was in a frightened state of mind. The accused told him that he wanted to meet Gopilal, Sarpanch of village Govindpura. He asked the accused, where does he live? The accused replied that he is resident of Kachrod and his name is Gajraj; whereupon, the witness asked the accused that in Kachrod Sarpanch Ambaram was burnt the previous night, the accused replied that he was author of the incident. The accused further asked what happened? Whether they were saved or not ? To which the witness replied that he had heard that all of them had died. When the witness asked accused as to why he did it, the accused replied that he had not thought that all would die. Thereafter, the accused said that he wanted to meet Gopilal, whereon the witness told him that Gopilal had gone to Nanukheda.
27. Now the question arises whether any reliance can be placed upon the extrajudicial confession alleged to have been made by accused to PW-17 Ramesh Chandra ? Ramesh Chandra has admitted in his cross-examination that accused had met him at about 12:00 p.m. on the date of the incident. He has further admitted that before the incident he was not acquainted with accused Gajraj Singh. On his visit to Siddikganj he had learnt that accused Gajraj Singh had killed Ambaram by burning him and that he was absconding. He had also learnt as to how Gajraj Singh looked; yet, after meeting the accused in person, he did not take the accused to police station, nor did he inform the police immediately. The witness stated that two hours after the incident the head constable of Ashta police who is a Sikh, had met him with another policeman. He disclosed the fact of extrajudicial confession to those two policemen. Before that he had made a telephone call to the police station but the station house officer was not available only a constable was available; therefore, he did not deliberately disclose aforesaid fact to the constable.
28. The Supreme Court in the case of Sahadevan and anr. vs. State of Tamilnadu - AIR 2012 SC 2435 has laid down following principles for considering whether an extrajudicial confession is admissible in evidence and capable of forming basis of conviction:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evid- entiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent im- probabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
29. Thus, it is clear that extrajudicial confession is inherently a weak piece of evidence. In the case at hand, Ramesh Chandra (PW- 17) has admitted that he was not previously acquainted with the accused. The extrajudicial confession is usually made either to a close confident to relieve the mental burden and seek advise or to an influential person or a person in authority to solicit help. It is highly improbable that a person who is alleged to have murdered four persons of a family, including two children by setting their house on fire, would confess to having committed such a crime to a rank stranger who had met him by the road side. In any case the accused had nothing to gain from making confession to this witness. The credibility of this witness is further weakened by the fact that he did not immediately inform the police either about the factum of extrajudicial confession or regarding whereabouts of the accused, though, he very well knew that accused was on the run after having committed such a heinous crime. He disclosed the same to police only two hours later, when policemen came to him. Had the police not come to him, he would probably have taken longer still, to disclose the fact to police.
30. In this regard reference may be made to the case of Inspector of Police, T.N. vs. Palanisamy @ Selvan (supra) wherein the former President of village Panchayat, to whom the extrajudicial con- fession was made a week after the incident, had informed about the confession to the police after many hours; therefore, the confession was not held to be reliable. In somewhat similar circumstances in this case also the extrajudicial confession said to have been made by accused to Ramesh Chandra (PW-17) cannot be said to be reliable.
31. The last circumstance relied upon by the prosecution against the accused is that the lock used to confine Ambaram and his family to his room at the time of incident and which was broken open by the witnesses to secure release of the deceased and his family members from his room, was recovered pursuant to information given by ac- cused to police in custody under section 27 of the Evidence Act.
32. In this regard, prosecution witnesses Bhim Singh (PW-9), Bad- rilal (PW-10) and Narayan (PW-11) had stated that when they reached the spot, the room in which Ambaram was sleeping with his family was locked from outside. They broke open the lock and re- leased Ambaram and his family members. Investigating Officer Sub Inspector M.S.Jat (PW-32) has stated that he had seized a broken lock which was lying outside Ambaram's room at around 4:30 p.m. on 8.6.2002 and had prepared a seizure memo (Ex.P/5). Investigating Officer M.S.Jat has further stated that he had arrested the accused on 11.6.2002 and had prepared the arrest memo on 13.6.2002. Accused Gajraj Singh had disclosed in the presence of witnesses and in custody of police that the key to the lock which was put on the door of room of Sarpanch was hidden by him in a pit hole in the alley way behind his house. On the basis of information disclosed by the accused he had prepared a memo under section 27 of the Evidence Act (Ex.P/7). Thereafter, he had seized a key at the instance of accused and had prepared seizure memo (Ex.P/8). Ambaram (PW-6) who is said to be a panch witness to the memorandum under section 27 of the Evidence Act and seizure memo of the lock has completely turned hostile and stated that he was called to the police station and asked to sign the documents Ex.P/7 and P/8. In his presence, the ac- cused gave no information to the police nor any seizure was made. Bherulal (PW-4) has also turned hostile and stated that in his presence, accused Gajraj Singh had given no information to the police regarding any article. He has also specifically denied that any key was recovered from behind the house of Gajraj Singh. As such, the re- covery of any key at the instance of accused Gajraj Singh becomes doubtful. Moreover, investigating Officer M.S.Jat (PW-32) has cat- egorically admitted in his cross-examination that he did not ensure during investigation that key recovered at the instance of accused was connected with the lock seized from outside Ambaram's room. In these circumstances, not much weight can be attached to alleged seizure of a key at the instance of accused Gajraj Singh.
33. The prosecution have examined witness to demonstrate that prior to the occurrence, accused had purchased kerosene and petrol; however, these being articles of daily use, no significance can be at- tached to purchase of kerosene and petrol in a moderate quantities and it can not be presumed that kerosene and petrol were purchased in order to facilitate perpetration of the crime.
34. The prosecution also examined witnesses Nazir (PW-19) and Tulsiram (PW-23) who have stated that they were landless labourers and the land earlier in possession of accused Gajraj Singh, was allot- ted to them; however, they have categorically stated in their cross-ex- amination that they had no dispute or quarrel with regard to the allot- ment of land with the accused. Moreover, a Sarpanch is not compet- ent to allot land. In any case, mere enmity or motive, in the absence of cogent evidence that accused has committed the crime carries no meaning.
35. On the basis of aforesaid discussion, this Court is of the view that prosecution has failed to prove beyond reasonable doubt that it was accused-appellant Gajraj Singh who had set the room of de- ceased Ambaram on fire after pouring oil therein. The trial Court failed to properly appreciate and analyze the evidence available on record and glossed over many facts and circumstances which dented the prosecution story and raised several doubts with regard to guilt of the accused. The benefit of those doubts must go to the accused. It is true that this is a case of heinous murder of 4 persons including 2 minor children by burning; however, in the absence of cogent evid- ence, the Court cannot allow itself to be swayed by gravity of the of- fence and refrain from critically analyzing the evidence.
36. As such, Gajraj Singh is entitled to benefit of doubt and the conviction and sentence of accused-appellant for the offence under sections 436 and 302 (on four counts) of the I.P.C. cannot be sus- tained.
37. Consequently, Criminal Appeals No. 1645/2003 and 1885/2003 are allowed and conviction and sentence of appellant/ac- cused Gajraj Singh under sections 436 and 302 (on four counts) of the I.P.C. and the sentence imposed upon him is set aside.
38. In the result, Criminal Appeal No.18/2004 for enhancement of sentence filed by the State fails and is hereby dismissed.
39. The appellant Gajraj Singh be set at liberty forthwith, if not required in connection with any other case.