Dipak Misra, J.
1. In this criminal appeal preferred under Section 374 of the Code of Criminal Procedure (in short 'the Code') three appellants, namely, Bhagirath, his wife Dulari and his son Komal have called in question the defensibility of the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Khurai, District Sagar in S. T. No. 312/90.
2. It is relevant to mention here that the appellant Nos. 1 and 2 have been convicted of the offence punishable under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life and the appellant No. 3 has been convicted under Section 302 of I.P.C. and sentenced to undergo rigorous imprisonment for life. Further he has been convicted under Section 436 of I.P.C. and sentenced to suffer R.1. for ten years.
3. Shorn of unnecessary details the prosecution story is that Laxmibai was the wife of Madhav Singh and Raj Bai was her daughter. Komal is the elder brother of Madhav Singh. The other accused persons, namely, Bhagirath and Dulari are the parents of said Madhav Singh. Deceased, Laxmibai was staying with her husband and five year old daughter Rajbai separately from the accused persons for last five years prior to the date of occurrence. On 26-1-90 at about 5 p.m. when Laxmibai and Rajbai were in their residence their house was set on fire. Immediately the mother and the child were taken to the police station at Barodiya wherefrom they were taken to Government hospital where they were referred to the District Hospital, Sagar. Before Rajbai was admitted in the hospital she breathed her last. Laxmibai was admitted and despite treatment she expired at 7 a.m. on 27-1-1990. It has been alleged that on the date of occurrence when Laxmibai was sitting with her daughter Rajbai in her house, Komal, Dulari and Bhagirath came there and cast an aspersion that she was the concubine of one Karan Lodhi. They abused her, accused Komal caught hold up of her face, gagged her mouth and poured kerosene oil on her body and as well as on Rajbai. The other two accused persons instigated him to set Laxmibai ablaze. Komal lit a match stick and set fire on Laxmibai and Rajbai and thereafter put the whole house into fire. Deceased, Laxmibai was able to remove the cloth from her mouth and screamed and sought help so that her husband or some other persons may come and rescue them. As has been stated earlier Laxmibai and Rajbai were carried to the police station at Barodia. Laxmibai lodged the FIR which has been brought on record as Ex. P-11. It is the case of the prosecution that Rajbai was examined at 8:10 p.m. Dr. B.D. Sharma, PW-19 had found, as per Ex. P-29 that she had suffered 95% burn injuries and an effort was made to record her dying declaration but it could not be done as she was in a state of total unconsciousness. Dr. B.D. Sharma recorded the dying declaration of Laxmibai at 8:20 p.m. The said witness found Laxmibai had sustained 96% burn injuries and she was burnt by pouring of kerosene. The report has been brought on record as Ex. P-28. While being treated at the District Hospital at Sagar at about 2:45 a.m. a dying declaration was recorded by the Naib Tehsildar, G.C. Paliwal, PW-16. The said dying declaration is Ex. P-24. After her death on 27-1-1990 post-mortem was done by a team of doctors and the said report has been brought on record as Ex. P-6, Similarly the post-mortem was carried on the body of Rajbai and report has been brought on record as Ex. P-25. On the basis of Ex. P-11 investigation continued and the investigating agency prepared the spot map, seized burnt cloth belonging and ornaments belonging to the deceased, kerosine oil and many other articles. The seizure list is Ex. P-4. Thereafter in due course of time the accused persons were taken to custody and certain witnesses were examined under Section 161 of the Code. The seized articles were sent for chemical examination to the forensic laboratory at Sagar and eventually after completing all the formalities a charge-sheet was placed before the competent Court which in turn committed the matter to the Court of Session.
4. The accused persons abjured their guilt. Plea of Dulari and Komal was that at the time of occurrence they were two kms. away in their garden busy in plucking vegetables when Madhav Singh, the husband of Laxmibai informed them about the burn injuries sustained by the wife and the daughter whereafter they reached the spot. Their further plea was that they have been falsely implicated. Accused Bhagirath took the plea that he is lame and unable to walk without assistance of a stick and his written defence was that both the deceased got ablazed when food was being cooked by Laxmibai.
5. The prosecution in furtherance of its case examined as many as 20 witnesses. PW-1, Madhav Singh is the husband of the deceased Laxmibai, PW-2, Ramcharan, PW-3, Madhav Singh, son of Baijnathsingh, PW-4, Umesh, PW-5, Ramdin Yadav and PW-10 Sudama Prasad are witnesses who had been assigned some role by the prosecution in the witnessing of the lodging of FIR by the deceased, Laxmibai and recording of her statement but all these witnesses including the husband of the deceased have turned hostile. PW-6. Pahlwan Singh, PW-13 Kedar Tiwari and PW-15, Krishna Kumar are the formal witnesses. PW-7, Harchand is the father of the deceased Laxmibai, PW-9 Suresh is the brother. PW-12 is the Dr. M. C. Jain who had initially examined the de-ceased PW-17 Dr. Arvind Goswami who had examined the deceased at Sagar. PW-18, Shalendra Shukla in whose presence the dying declaration Ex. P-4 was recorded and PW-19, Dr. B.D. Sharma, was the doctor at the primary health centre who had recorded the dying declaration of the deceased, Laxmibai vide Ex. P-1. Other witnesses are connected with the investigation of the crime.
6. On behalf of the defence seven witnesses have been examined to prove the plea of alibi and false implication.
7. The learned trial Judge discussed the oral evidence brought on record and adverted to dying declarations recorded at various time and came to the conclusion that the accused persons were guilty of the commission of the crime and accordingly, convicted them.
8. Mr. Shamim Ali Khan, learned counsel who is appearing on behalf of the appellant, has contended that the learned trial Judge has fallen into grave error by relying on certain aspects of the oral testimony of the witnesses when the main witnesses had turned hostile and did not lend any support to the version of the prosecution. It is urged by him that the only evidence against the accused persons are that the dying declarations including the FIR which has been treated as dying declaration of Laxmibai and if all the dying declarations are appreciated in a studied manner it is perceptible that attaching sanguineness and genuineness to the dying declarations would tantamount to the travesty of justice. It is propounded by him that if the medical examination reports are scrutinised it would be clear as day that the deceased Laxmibai was not in a position to give any statement and, therefore, the conviction cannot be founded on such dying declaration which has the suspicion at its base. It is his further submission that the condition of Laxmibai deteriorated with the passage of hours of the night and in the absence of any evidence that her condition improved at any point of time to make the dying declaration, a dent or doubt is created in the testimony of the witnesses who have supported the story of the prosecution on the bedrock of dying declaration.
9. Mrs. Chanchal Sharma, learned counsel for the State, on the contrary, has submitted that there is ample material on record that the death of Laxmibai and her daughter occurred as both of them sustained more than 95% burn injuries. There is material on record to show that there was smell of kerosene oil and, therefore, the recording of guilt of the accused persons by the learned trial Judge cannot be found fault with. It is contended by her that nothing has been elicited in the cross-examination of doctor who had recorded the dying declaration in presence of the Executive Magistrate and there is no reason to disbelieve their testimony in regard to the recording of dying declaration. It is canvassed by her that the minor discrepancies in the various dying declarations do not mar the quality of evidence and hence, the conviction is absolutely flawless.
10. At the very outset we must clearly state that there is no dispute that the death of the two deceased Laxmibai and Rajbai is homicidal in nature. The evidence is absolutely clear and cogent that both of them sustained burn injuries and succumbed to the same. It is worth noting here that the PW-19 B.D. Sharma was, cross-examined about the nature of the burn injuries and the report was prepared by him. But the attempt, in our considered opinion is a feeble one and does not really create any kind of concavity in the case put forth by the prosecution as far as sustaining of burn injuries by the deceased persons is concerned. Thus, it can safely be concluded that both the deceased expired because of the burn injuries.
11. The hub of the matter is whether the accused persons had caused the burn injuries or instrumental in causing the burn injuries to both the deceased. The learned trial Judge did believe the version of the doctor and Investigating Officer and placed reliance on the dying declaration. The gravamen of the contention of the learned counsel for the appellants is that the dying declarations, Exs. P-1, P-11 and Ex. P-24 do not project sanguinity to be totally relied upon.
12. Before we proceed to scrutinise the reliability of the dying declaration it is appropriate to refer to certain decisions in the field. It is settled in law that the Court has to see that the statement of deceased was not as a result of either from tutoring or a product of imagination. It is also settled in law that there is neither any rule nor law stipulating that the dying declaration cannot be acted upon without corroboration. It is also settled that mere fact that entire thing is not recorded by way of separate question and answer form does not destroy the value of the dying declaration.
13. In this context we may profitably refer to the decision rendered in the case of Uka Ram v. State of Rajasthan, (2001) 5 SCC 254 wherein their Lordships ruled thus :
'It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the Court to insist that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement.'
14. At this juncture, we think it appropriate to refer to the Constitution Bench, decision rendered in the case of Laxman v. State of Maharashtra, 2002 AIR SCW 3479 : (2002 Cri LJ 4095). In the said case the Apex Court overruled the decision rendered in the case of Paparambaka Rosamma v. State of Andhra Pradesh, (1999) 7 SCC 695 : (1999 Cri LJ 4321) wherein it has been held that in the absence of a medical certificate that the injured was in a fit state of mind at the time of making the statement, it would be very risky to accept the same. Their Lordships approved the decision rendered in the case of Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 562 : (1999 Cri LJ 4582) wherein it had been held that if the materials on record indicate that the deceased was fully conscious and was able of making a statement the dying declaration of the deceased cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind to make a statement of the question. In the aforesaid case the Constitution Bench held as under :
'The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Court insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate is absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.'
Thereafter their Lordships proceeded to state as follows :
'........It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. ........'
15. Keeping the aforesaid pronouncement of law in view we think it appropriate to scrutinise the dying declarations which have been brought on record. Exhibit P-11 is the FIR lodged by the deceased, Laxmibai. There is no thumb impression of the deceased. As far as Ex. P-11 is concerned after the death of Laxmibai it has the status of dying declaration. It is interesting to note that PW-8 Gyanchand who is a private doctor was present at the police station. It is in his evidence that no doctor had made any query from Laxmibai. He has also stated that query was made from Rajbai and she could not answer. He is a signatory of Ex. P-5. Dr. B.D. Sharma has also signed on Ex. P-5. The prosecution has not declared these witnesses hostile. Thus on a perusal of these witnesses it is quite clear that Dr. B.D. Sharma had not put any question to the deceased Laxmibai.
16. The second dying declaration is Ex. P-1, the said dying declaration has been recorded by Dr. B.D. Sharma, PW-19. The said witness has deposed that he had examined the deceased Laxmibai at 8.20 p.m. and had found 96% injuries on her. He has admitted that he had not taken the thumb impression of Laxmibai. It is also in her testimony as the thumb of Laxmibai got burnt he had not taken the thumb impression. It is also stated in the cross-examination that the condition of the patient was bad but she was able to speak. He has also answered the query that the patient must have suffered from immense pain because of the injuries. Exhibit P-1 has been signed by the husband of the deceased Laxmibai and another person but all these witnesses have turned hostile and not supported the story of the prosecution.
17. Dr. B.D. Sharma has admitted that the condition of Laxmibai was quite serious and he has mentioned it in Ex. P-20. He himself has admitted in the cross-examination that he had mentioned that Laxmibai sustained 100% burn injuries.
18. The next dying declaration is Ex. P-24. It has been recorded by the Executive Magistrate. The time is mentioned as 2.45 a.m. It is worthwhile to mention here that the said witness has stated that doctor had given the certificate that the patient was in a fit condition to give her statement. The said witness has not been able to say the name of the doctor. The doctor who had given the certificate had not been examined. Ordinarily that would not have weighed with us but there is mention in the Exhibit P-27, the head bed ticket of Laxmibai that she was not fit to give the statement at that moment. The said document also indicates that there was 100% burn injuries. At 11.55 p.m. it was recorded that the patient was drowsy. Ex. P-24, as has been indicated earlier had been recorded at 2.45 a.m. Though it has been mentioned that the patient was fit, the same has to be appreciated in juxtaposition of Ex. P-27. Keeping cumulatively it is difficult to accept the prosecution version. There is no evidence on record that the condition of the patient improved after 11.55 p.m. In fact she expired next day morning at 7.00 a.m. It is worthwhile to mention here that on Ex. P-24 there is a thumb impression. Dr. B.D. Sharma, who had recorded Ex. P-1, could not take the thumb impression as the thumb was burnt. There is no thumb impression in the FIR but it, is there in the Ex. P-24. In the absence of any evidence that the condition of the patient had improved for some time, in view of the fact that the patient was unconscious, not in a fit condition to make a statement and in the middle of the night she was drowsy and expired next day morning it is quite difficult to accept that the dying declaration is free from suspicion and inspires that degree of confidence to record the conviction. In our considered opinion though three dying declarations have been recorded the same do not inspire confidence. The circumstances are such that it is difficult to give credence to the same in toto. It is worth mentioning here that in the FIR, Ex. P-11 there is mention of one Puran Lodhi whereas in Ex. P-24 the executive Magistrate mentioned the name of one Shobha Ram. Though this does not create any concavity in the dying declaration but when the same is appreciated keeping in view the totality of surrounding circumstances and the condition of the patient we are disposed to think that the de-ceased was not in a position to make dying declaration. We may also state here that had the thumb impression was taken in the earlier dying declaration that could have been matched with the later one. In this context we may profitably refer to the decision rendered in the case of Raj Kumar v. State of M. P., (2001) 1 MPJR 138 wherein this Court held as under :
'6. Taking the FIR (Ex. P/11) first, it may be noted at the outset that normally a FIR is not a substantive piece and its evidentiary value is only of corroborative nature. However, in the instant case, it has been treated as dying declaration of the deceased relied upon heavily by the prosecution as also by the trial Court as substantive piece of evidence to hold the appellants guilty for the said murder. Legally, such a report by a deceased person can be relied upon, even without corroboration, as a substantive evidence Under Section 32 of the Evidence Act, of the cause of death of its maker. However, the legal position remains unaltered that such a dying declaration should be scrutinised very carefully, keeping in view the attending circumstances and can be acted upon only if the Court is satisfied that it was wholly true being from any kind of doubt.'
We have referred to the aforesaid decision only to show that the FIR which is treated as a dying declaration cannot be regarded free from doubt.
19. Appreciating the factual scenario in entirety we are of the considered opinion that the dying declarations are not free from doubt and we are compelled to think that it is not a fit case where the conviction can be based solely on the dying declaration. Resultantly, the judgment of conviction is set aside. The appellants 1 and 2 are already on bail. Hence, they may be discharged of their bail bonds. The appellant No. 3 who is in custody shall be released if his detention is not required in any other case.
20. Resultantly the appeal is allowed.