JUDGMENT Rajendra Saxena, J.
1. This appeal has been, directed against the judgment dated 16.11.94 passed by the learned Sessions Judge, Jhunjhunu, whereby he convicted the appellant for offences under Sections 302 and 498A, IPCand sentenced her to undergo life imprisonment on the first count and to suffer rigorous imprisonment for two years and a fine of Rs. 1,000/-in default of payment of fine, to further undergo imprisonment for three months on the second count. He also directed that both the substantive sentences shall run concurrently.
2. Briefly, the prosecution case is that deceased Smt. Raisa aged 18 years resident of Sikar was married to PW 11 Idris r/o Jhunjhunu about 3 years prior to the ill-fated incident, which occurred at about 430 fun. on 31.3.94 at her husband’s house, it is alleged that just two days prior to the incident, PW 3 Sugra mother of the deceased had come to Jhunjhunu and left the latter at her in-law’s house. It is alleged that at the time of the incident fee deceased engulfed in flames, came running out of her house. PW 9 Sarfu and other neighbours threw sand on her in order to put off the fire. Pieces of her burnt apparels were also removed. Smt. Raisa was immediately taken to B.D.K. Government Hospital, Jhunjhunu, where at 5.45 p.nu she was admitted as an indoor patient. PW 12 Dr. S.K. Chhabra, prepared her out-door patient ticket Ex. P 3 and in-door patient ticket Ex. P 4 and gave treatment to her. At that time, her pulse and blood presure were not recordable and due to extensive burns including mouth bums she was unable to speak. However, she was fully conscious. The attendants who had brought Smt. Raisa to the hospital informed the said doctor that the latter while cooking inside the hut, had caught fire. Smell of kerosene was present on her appards.
3.. At about 6 p.m. Dr. Chhabra telephonically informed P.S. Kotwali, Jhunjhunu about the said incident and also requested Jagdish FC, who was in the hospital to arrange for recording her dying declaration. PW 15 Hulsaram SHO, P.S. Kotwali directed Bhagwan Singh ASI to go to the hospital, where the latter at 6.25 p.m. recorded ‘Parcha Bayan’ Ex. P 8 of Smt. Raisa. She stated therein that at about 4.30 p.m. her grand-mother-in-law had caught hold of her, that her mother-in-law sprinkled kerosene oil and set her ablaze. She further stated that they wanted to kill her because she did not do the domestic work and used to tell that they also used to ask her to bring Rs. 10,000/- from her parents. She further stated that they had also threatened to kill her if she disclosed those facts to any other person. She also stated on her Parcha Bayan Ex. P 8 that at the time of the said incident, her husband was not present there and that she had cordial relations with him who never harassed her, and that though she was married three years ago but she did not give birth to any child.
4. On the basis of ‘Parcha Bayan’ Ex. P 8, PW 15 Hulsaram drew formal First Information Report Ex. P 9 and registered a case against the appellant and grand mother-in-law of the deceased for offences under Sections 307, 498A and 324, IPC.
5. PW 7 Dr. S.C. Vyas, Medical Jurist, B.D.K. Hospital, Jhunjhunu examined Smt. Raisa on 31.3.94 at 5.55 p.m. found dermo-epidemical burns from 1st to 3rd degree present on whole of her body, masking scalp, hair burn, face, neck, both limbs and trunk except the perinaeum portions. Her hairs were singed, and skin was red. The doctor noticed smell of kerosene oil present on her body. However, there was no cloth over her body, but mud particles were present on her perineal region. He opined that 90% of total body surface area was burnt, that Smt. Raisa was conscious and that she had received burn injuries by flames, which were dangerous to life. He prepared MLR Ex. P1 and advised for her dying declaration by the Judicial Magistrate.
6. It appears that on the request of the police on the same day at 7.15 p.m. PW 14 Rajendra Kumar, Judicial Magistrate, Jhunjhunu recorded dying declaration Ex. P 6 of Smt. Raisa in presence of Dr. S.K. Chhabra (PW 12). In her dying declaration Ex. P 6 Smt. Raisa stated that she was married to Idris about three years ago, that at about 4.30 p.m. she was in her house situated in Bantwaran Mohallah, Jhunjhunu, that at that time her husband had gone outside for cutting the wood, that she did not give birth to any child, that she did not used to perform the domestic work and, therefore, her mother-in-law Smt. Jaini and grand mother-in-law Smt. Bismillah had set her ablaze. She stated that her grand mother-in-law had caught hold of her while her mother in-law Smt. Jaini poured oil on her and by lighting a match stuck torched her to fire. She also stated that Smt. Jaini used to ask her to bring ten thousand rupees from her parents, that she used to harass her in the past also that her husband Idris was a mason and that she did not have any complaint against him. She further told that when she was put to fire, she ran outside the house, where persons, threw sand over her body to extinguish the fire but she did not know their names.
7. Smt. Raisa, however, succumbed to her injuries at 11.05 p.m. on the same day.
8. The Medical Board consisting of Dr. S.C. Vyas (PW 7) and other two doctors who conducted post-mortem examination and prepared post-mortem report Ex. P 2. The Board found that her scalp hairs were partially burnt in length, and that membranes, brain spinal cord were congested. The Board also noticed following injuries:
“Dermo-epidemical burns from 1st to 3rd degree, masking the face, neck, chest from both sides, trunk from both limbs upper and lower on both sides, except perinaeum portion. Burn is covering about approx. 95% of the total body surface area. Skin blackish. Hair singed. Scalp hair partially burnt. Scattered blisters present on burnt surface. Superficial skin folded at places. Mouth angle as also tongue burns were present and swollen. Uterus was enlarged having foetus of about 12 weeks size with placenta. Burns were ante-mortem in nature.”
The Board was of the opinion that the cause of death was shock due to extensive burns of body.
9. On 1.4.94 Hulsaram (PW 15) conducted autopsy and prepared memo of dead body of Smt. Raisa Ex. P10. He also seized pieces of burnt Salwar from her left leg vide seizure memo Ex. P12. He inspected the site, prepared site plan Ex. P 13, and seized remaining portion of the burnt Salwar lying underneath the thatchet of her house vide seizure memo Ex. P14. A tin containing small quantity of kerosene oil and a match box from the place of occurrence were also seized vide Ex. P15. He seized two partially burnt ‘Loogras’ from the room just appurtenant to the thatchet oide seizure memo Ex. P16. Smt. Jainiwas arrested on 2.4.94 vide arrest memo Ex. P17. However, the said grandmother in-law Smt. Bismillah could not be apprehended. After completion of the investigation, on 29.6.94 the police submitted challan against Smt. Jaini and the investigation against Smt. Bismillah was kept pending under Section 173(8) Cr. P.C However, till this date neither Smt. Bismillah has been arrested nor any challan has been filed against her.
10. The learned Chief Judicial Magistrate committed the case to the learned Sessions Judge, who framed charge against the appellant for offences under Sections 498A and 302, IPC. The appellant denied the indictment and claimed trial. To prove its case, the prosecution examined as many as 15 witnesses. The appellant in her plea recorded under Section 313, Cr.P.C. denied all the circumstances appearing against her in the prosecution evidence and categorically asserted that due to animosity the witnesses have deposed against her that she has been falsely implicated and that at the time of the incident, she had gone to the shop of one Majid for purchasing chillies and spices, that Smt. Neelam had come there and informed her that Smt. Raisa had set fire to herself and that thereupon, she rushed to her house. However, no witness was examined in defence.
11. The learned trial Judge held that death of Smt. Raisa was homicidal due to burns. He placed reliance on the dying declarations (Ex. P8 and P6) and her alleged Oral dying declaration made to PW 1 Nijamuddin, PW 2. Mohd. Rafiq, PW3 Smt.Sugra, PW 4 Moinuddin, PW 5 Yusuf and PW 6 Ramzan, who are parental relatives of the deceased and who upon receiving a telephonic message about the incident had come from Sikar to Jhunjhunu and the trial Judge held that the dying declaration Ex. P 6 recorded by the Magistrate was natural, truthful and shorn of any turtoring or coaching. However, hexlid not place any reliance on the testimony of neighbours namely, PW 8 Neelam, PW 9 Sarfu Khan, PW 10 Sakoor, and PW11 Idris on the ground that they were interested witnesses. He, therefore, by his impugned judgment convicted and sentenced the appellant in the mariner indicated above. Hence this appeal.
12. We have heard Mr. M.R. Mitruka, the learned Counsel for the appellant and Mr. M.L. Goyal, learned Public Prosecutor at length and carefully perused the record of the Trial Court in extenso.
13. It has been strenuously canvassed by Mr. Mitruka that the learned trial Judge has failed to discuss and appreciate the sworn testimony of eye witnesses (PWs 8 to 11), who have been examined and relied by the prosecution and who have not deposed any thing against the appellant to prove her complicity in the alleged crime. On the contrary, these witnesses have unequivocally stated that the appellant was not present at the scene of occurrence, that she had gone to the shop of Majid for purchase of the chillies and spices and that Smt. Raisa had ablazed herself; that, these witnesses have neither been declared hostile by the prosecution nor their testimony has been challenged nor impeached. Those witnesses also threw dust on burning Smt Raisa to extinguish her fire. According to Mr. Mitruka, the teamed trial Judge without closely scanning- and assessing their evidence has disbelieved them simply on the ground that they were related/ interested witnesses; and has thus gravely erred in brushing aside their sworn testimony.
14. Mr. Mitruka has next contended that the ‘Parcha Bayan’ Ex. P 8 which was recorded by Bhagwan Singh ASI has not been proved at all because, the prosecution did not care to examine Bhagwan Singh nor any other witness has proved the same. According to him, it is borne out from the evidence on record that immediately after the incident. PW 11 Idris had telephonically informed his in-laws at Sikar and that thereupon PW 3 Smt. Sugra alongwith her son and other relatives reached Jhunjhunu within an hour or so by 530 p.m. and, therefore, this possibility cannot be ruled out that they had tutored Smt. Raisa to falsely implicate the appellant. Mr. Mitruka has asserted that the dying declaration Ex. P 6 was not at all truthful and that it was inconsistent with the sworn testimony of PWs 8 to 11; that the dying declaration was not recorded by the Judicial Magistrate in the form of question and answer as also in the language of Smt. Raisa; and that the facts mentioned therein have not been proved by any oral or circumstantial evidence. He also urged that the learned trial Judge has ignored material facts mentioned in the dying declaration and made out a new case; that it also stands well-established that the grand mother-in-law of the deceased had died long back 14-15 years prior to the incident; and that on this count also a new case has been invented by the learned trial Judge that Smt. Bismillah might be the grand aunt- in-law of the deceased. Mr. Mitruka has further contended that the Investigating Officer did not apprehend Smt. Bismillaha nor filed any challan against her; and that as per dying declaration Ex. P 6, the grand mother-in-law had caught hold of the deceased while the appellant poured kerosene oil over her and set her to fire, but the presence of Smt. Bismillah has not been proved at all. Besides this, the learned trial Judge in the charge framed against the appellant did not mention any alleged act of Smt. Bismillah regarding catching hold of the deceased, and simply mentioned that the appellant after pouring the kerosene oil set ablaze the deceased and committed her murder. According to him, for this material omission in the charge, a serious prejudice has been caused to the appellant.
15. Mr. Mitruka has urged that prosecution story is highly improbable, that the evidence in respect of causing harassment to the deceased or the alleged demand of dowry is also vague, incomplete, inconsistent and unreliable. According to him, it has been well-proved that prior to the alleged incident, Smt. Raisa was staying with her parents for 9-10 months, where she had developed illicit intimacy with one Raju r/o Sikar and that she was carrying a pregnancy, of about 12 weeks, that only two days prior to the alleged occurrence, Smt. Sugra, mother of the deceased had come to Jhunjhunu to leave the deceased there, that the deceased herself had committed suicide and that the appellant has been falsely implicated in this case.
16. On the other hand, Mr. M.L. Goyal, the learned Public Prosecutor has urged that the dying declaration Ex. P 6 is not at all suspicious, false, tutored or fabricated but the same is natural and truthful. As regards the testimony of PW 8 Smt. Neelam, PW 9 Sarfu, PW 10 Shakoor and PW 11 Idris has candidly conceded that though these witnesses did not support the prosecution story, they have not been declared hostile. However, he has asserted that they are close relatives of the appellant and, therefore, they are not truthful witnesses. As regards the charge framed against the appellant, the submission of the learned Public Prosecutor is that since Smt. Bismillah was not apprehended nor any challan was filed against her, it was not necessary to mention about her overtact in the charge and, therefore, neither the charge is defective nor any prejudice has been caused to the appellant. Mr: Goyal has supported the impugned judgment and reiterated the reasonings given by the learned trial Judge.
17. We have given our most anxious and earnest consideration to the rival submissions made before us. First of all, we embark upon to briefly examine, scan and evaluate the evidence recorded in this case. PW 1 Nijamuddin, PW 2 Mohd. Rafiq and PW 3 Smt Sugra are real brothers and mother respectively of the deceased. PW 4 Moinuddin, PW 5 Yusuf and PW 6 Ramzan are relatives of the deceased. All these six witnesses are resident of Sikar. They have stated that on receiving telephonic information about the burning of Smt. Raisa, they immediately left Sikar and reached Jhunjhunu, where in the hospital, Smt. Raisa told them that her grand mother in-law had caught hold of her and that her mother-in-law after pouring kerosene oil over her set her to fire by lighting a match. They have further stated that Smt. Raisa was married to Idris about 3 three years prior to the incident; that as and when she used to come to Sikar, she used to tell them that her mother- in-law demanded dowry. All these witnesses have admitted that Smt. Raisa did not like to stay at her in-law’s house. PW 3 Smt. Sugra has clearly deposed that through a telephonic message received at about 4 p.m. from Jhunjhunu they came to know that Smt. Raisa has been burnt, that immediately thereafter she chartered a jeep and came to Jhunjhunu Hospital at about 5.30 p.m., at that time, the police and doctor were present there and that none of the family members of the deceased’s in-laws was present there. She admitted that Smt. Raisa was pregnant, but refuted the suggestion that the latter had illicit relations with one Raju r/o Sikar from whom she had conceived. She also denied the suggestion that it was for this reason that she had left the deceased at her in-law’s house just two days prior to the incident. PW 4 Mohinuddin stated that he had reached Jhunjhunu hospital at 5.45 p.m. alongwith Ishraf and Ramzan. He stated that since he was an elder member of the family, he talked to Smt. Raisa, who told him that her grand mother-in-law had caught hold of her and then her mother in-law set her to fire by lighting a match stick. He stated that thereafter Smt. Raisa stopped speaking. He specifically admitted that PW 1 Nizamuddin, PW 2 Rafiq and PW 3 Sugra reached Jhunjhunu earlier than him. He stated that he had informed PW 6 Ramzan and PW 9 Moinuddin about the oral dying declaration made by Smt. Raisa to him. He also stated that he met the SHO, who had told him that he would record the statement of Smt. Raisa. Therefore, from the testimony of Smt. Sugra (PW 3), Moinuddin (PW 4) it stands well-established that on the day of incident PWs 1 to 6 had reached Jhunjhunu hospital at about 5.30 – 5.45 p.m. and that by that time, the police had not recorded the ‘Parcha Bayan’ Ex. P 8 of Smt. Raisa.
18. As per the prosecution case, on that day Bhagwan Singh AS1, who has not been examined by the prosecution, had recorded the Parcha Bayan Ex. P 8 of Smt. Raisa at 6.45 p.m., whereupon a case was registered vide FIR Ex. P 9. But as per statement of PW 12 Dr. S.K. Chhabra, he had attended Smt. Raisa in the hospital and admitted her as indoor patient at about 5.45 p.m. and that at that time, she was unable to spjeak due to mouth burns. PW 11 Idris the husband of the deceased in his examination-in-chief deposed that immediately after the incident, he had telephoned to his in-laws and informed them that Smt. Raisa had caught fire. None of the prosecution witnesses has challenged or contradicted this statement of Idris. PW 11 Idris has also not been declared hostile by the prosecution. No question was put to him in cross-examination ‘to impeach his testimony on this count. In such circumstances, there is no vatfd reason to disbelieve the statement of PW 11 Idris to the effect that immediately after the incident he had phoned from Jhunjhunu to Sikar and. informed his in-laws that Smt. Raisa had caught fire and that on receipt of the said message, Smt. Sugra, brothers and other relatives of the deceased i.e. PWs 1 to 6 had reached Jhunjhunu hospital within an hour around 5.30 p.m. and that by that time, Parcha Bayan’ Ex. P 8 of Smt. Raisa was not recorded nor her dying declaration Ex. P 6 was recorded by the Judicial Magistrate. From the statements of PWs 1 to 6 it is also amply borne out that they had talked to Smt. Raisa. Thus, this possibility cannot be ruled out that there was sufficient opportunity for them for tutoring or coaching her before her Parcha Bayan Ex. P 8 and later on dying declaration Ex. P 6 were recorded. The testimony of PWs lto 6 in respect of the alleged harassment mal-treatment and demand of dowry alleged to have been made to her by the appellant to the deceased is quite vague, inconsistent and unworthy of credence. These witnesses have admitted that Smt. Raisa knew to read and write Urdu. But the prosecution has not produced any letter written by the deceased to her parents. Had she been subjected to harassment and mal-treatment by the appellant for the alleged demand of dowry in natural course of conduct, she could have written some letters to her parents/relatives. Therefore, non-production of any such letter also raises an adverse inference against the prosecution. The statements of PWs 1 to 6 regarding the oral dying declaration of the deceased are also replete with material contradictions and significant inconsistencies. Each one of these prosecution witnesses has claimed that the deceased had made oral dying declaration before him/her and that he or she had conveyed the same to others. These witnesses have, also given out different versions about the alleged oral dying declaration made by Smt. Raisa. If Smt. Raisa had informed these witnesses that her grand mother-in-law had caught hold of her and that her mother-in-law (appellant) poured kerosene oil over her body and set her to fire by lighting a match stick, then in natural course of human conduct, it was imperative on the part of these witnesses to have lodged a report about the incident immediately at the Police Station but they did not do so. On the other hand, as per the prosecution case, Bhagwan Singh had recorded the Tarcha Bayan’ Ex. P. 8 of Smt. Raisa at 6.45 p.m. and whereupon a case was registered. This fact manifestly reflects the hollowness of the claim of these witnesses that the deceased had made oral dying declaration to them regarding the incident at about 5.30 p.m. on that day. In our considered opinion, the learned trial Judge has conveniently ignored this material factor and glaring inconsistencies and contradictions in the statements of these witnesses and has committed a grave illegality in placing reliance on their testimony.
19. PW 7 Dr. S.C. Vyas, Medical Jurist, B.D.K. Hospital, Jhunjhunu stated that on 31.3.94 at 5.45 p.m. he had examined injuries of Smt. Raisa, who was brought by SHO, Kotwali, Jhunjhunu and that he found 90% burn injuries on the body surface and prepared M.L.R. Ex. P.1. On the other hand, PW 15 Hulsaram, SHO, PS Kotwali deposed that he had received a telephonic message from the hospital to the effect that Smt. Raisa has been admitted in the hospital with burn injuries, and thereupon he asked Bhagwan Singh ASI to proceed to the hospital, where the latter recorded Tarcha Bayan of Smt. Raisa. Thus, the statements of these two witnesses are clearly contradictory with each other. PW 12 Dr. S.K. Chhabra deposed that on 31.3.1994 his duty was in the Emergency Ward and that at about 5.45 p.m. he admitted Smt. Raisa having bum injuries on her body in the hospital after preparing out door patient ticket Ex. P. 3 and indoor patient ticket Ex. P. 4 and that thereafter at about 6 p.m. he informed the Police Kotwali about it on phone. If Hulsaram had received informatipn at 6 p.m. there was no occasion for him to have referred Smt. Raisa to the Medical Jurist at 5.45 p.m. Thus, statements of PW 7 Dr. S.C. Vyas, PW 12 Dr. S.K. Chhabra and PW 15 Hulsaram on this count are inconsistent and contradictory to each others. There is no reason to disbelieve the testimony of PW 7 Dr. S.C. Vyas and PW 12 Dr. S.K. Chhabra. Thus it is abundantly apparent that PW 15 Hulsaram, SHO, PS Kotwali had the information about burning case of Smt. Raisa prior to 5.45 p.m. On the other hand, the prosecution has claimed that Parcha Bayan Ex. P. 8 was recorded at 6.25 p.m. on that day, and FIR Ex. P. 9 was drawn at 7.15 p.m. Thus, it is abundantly clear that the prosecution has suppressed material facts in respect of the initial version of the incident.
20. PW 12, Dr. S.K. Chhabra proved contents of the indoor Patient ticket Ex. P. 4 and in particular its portion E to F. “Patient is unable to speak due to mouth burning”, and portion G to H “patients’ attendant giving history of burn while cooking and fire caught by hut (Chhaan)”. In such circumstances, the story of the alleged dying declaration made by Smt. Raisa implicating the appellant becomes shrouded in mystery.
21. It may also be pointed out here that PW 12 Dr. S.K. Chhabra has not proved his endorsement on ‘Parcha Bayan’ Ex. P. 8 recorded by Bhagwan Singh ASI testifying that Smt. Raisa was conscious when her Parcha Bayan Ex. P. 8 was being recorded. As mentioned earlier, the prosecution has not cared to examine Bhagwan Singh ASI. In such circumstances ‘Parcha Bayan’ Ex. P. 8 has also not been proved at all in accordance with law and contents thereof cannot be relied upon.
22. PW 7 Dr. S.C Vyas in his cross-examination has specifically admitted that dying declaration of Smt. Raisa had been written before, he had prepared M.L.R. Ex. P. 1 of Smt. Raisa at 5.45 p.m. but this is apparently wrong because the ‘Parcha Bayan’ Ex. P. 8 of Smt. Raisa i.e. the alleged first dying declaration was recorded at 6.45 p.m. If the statement of doctor is to be believed then the dying declaration of Smt Raisa alleged to have been recorded before 5.55 p.m. on 31.3.94 has not been filed by the prosecution.
23. PW 8 Neelam aged 35 years deposed that her house is situated just opposite to the house of appellant, that on the day of occurrence she got her wood cut by Idris, that it was about 4.30 p.m., that after her wood was dismembered, she went inside the house of Idris to place his axe and that at that time, she saw Smt. Raisa running out from her hut engulfed in flames, that thereupon she shouted and informed Idris that Smt. Raisa had caught fire and asked him to run. Thereafter, Idris came there and they threw sand on Smt Raisa to extinguish fire, that by that time Sakur had also come there. Smt. Neelam further deposed that she also went to call appellant Smt. Jaini, who was purchasing chillies and spices from the shop of Majid, and kiformed her that her daughter in-iaw had caught fire and that thereupon the appellant came running to her house and became unconscious. She further deposed that besides Idris, Sakur, Moinuddin and other inhabitants of the colony had assembled there to extinguish the fire, that Sagir brought the tempo wherein the appellant, Idris, Sagir and Ors. took Smt Raisa to the hospital. She specifically stated that Smt Raisa had caught fire herself and that she was not set ablaze by any other person and that at the time of incident no other person was present inside the house. She deposed that when she saw Smt. Raisa engulfed in flames, the latter was standing near the opening of her thatchet. It is surprising to note that the prosecution has neither declared this witness hostile, even though she did not support the prosecution version nor any question was put to this witness to discredit her testimony In such circumstances, the unchallenged and unimpeached testimony of Neelam cannot be held to be unreliable and untrustworthy. The learned trial Judge has not given any reason to disbelieve the testimony of PW8 Neelam. In our considered opinion, Smt. Neelam’s testimony has remained unshattered and there is no cogent and credible reason to disbelieve her.
24. PW 9 Sarfu Khan aged 61 years deposed that on the ill-fated day at about 4 p.m. while going to offer “Narnaf’ he stopped at the shop of his brother Gafoor, that at that time, PW 11 Idris, his father Shakoor and 4-5 ladies were throwing sand on Smt. Raisa, who was engulfed in flames, that he also threw sand over her to extinguish the fire, that in order to save the deceased both hands of Idris as also his bushirt were also burnt and that thereafter Sagir brought a tempo wherein Smt. Raisa was taken to the hospital. He stated that at that time Smt Raisa was unconscious and was not speaking. He specifically stated that he did not see the appellant there. He told that the mother of Sakur i.e. grand mother in-law of Smt. Raisa had died about 15-16 years ago. He further told that the parents of deceased Smt. Raisa were informed on telephone about the incident. Again this witness has also not been declared hostile by the prosecution, nor question has been put to him to shake or discredit his testimony. There is not a fringe of evidence to show that this witness is an interested witness. In such circumstances, the finding of the learned trial Judge that PW 9 Sarfu is not a reliable witness is against the record and perverse.
25. PW10 Shakur is the father-in-law of the deceased. He is a shepherd. He stated that on the ill-fated day at about 4.30 p.m. he returned to his house after grazing his cattle and at that time, his son Idris and daughter-in-law Smt. Raisa were sitting underneath the thatchet, that after placing his bag inside the hut, he went away to draw water from a pit and that Idris came out and started dismembering the wood. He deposed that Smt. Raisa was all alone inside the house, that after sometime, Neelam (PW 8) shouted that his daughter-in-law had caught fire and that thereupon, he alongwith Idris and other inhabitants of the colony came running there and started throwing sand over her in a bid to put off the fire. He specifically stated that at the time of incident her wife (the appellant) had gone to the shop of Majid far purchasing of chillies and pices, that Neelam went to Majid’s shop and fetched the appellant, who seeing the site with extensive burns/ appellant became unconscious. He told that thereafter they sent for a tempo, wherein Smt. Raisa was taken to the hospital. He further told that Idris had informed the parents of Smt. Raisa on phone and that after about one and half hours, Smt Sugra and others had come to hospital in a jeep. He specifically deposed that Smt. Raisa had set fire to herself and that no other person had burnt her. He stated that his mother had died about 16-17 years ago. In his cross examination, PW 10 Shakur deposed that in the past Smt. Raisa after mixing the powder of glass pieces into milk has given the same to his son Idris, and then they had called Smt. Sugra and informed her about the said event. He also stated that even prior to the incident, Smt Raisa had earlier tried to burn herself after sprinkling kerosene oil and that thereafter, the deceased was staying with her parents, for last 8-10 months prior to the incident, where she became pregnant; and that is why Smt. Sugra hand left Smt. Raisa at this house just two days prior to the incident. He deposed that Smt. Raisa had committed suicide as she had conceived from some other person. PW 10 Shakur has also not been declared hostile by the prosecution nor his testimony has been impeached in any manner. Simply because, he is husband of the appellant, his sworn testimony cannot be brushed aside without any valid and sound reason. This witness in his police statement recorded Under Section 161 Cr. P.C. had also stated likewise. Therefore, we do not find any cogent and convincing reason to discard his testimony which stands corroborated by unimpeached testimony of PW, 8 Neelam and PW 9 Sarfu.
26. PW 11 Idris is the husband of the deceased and son of the appellant. He deposed that on the ill-fated day, at about 4.30 p.m. Smt. Raisa was cooking meat. A perusal of the site plan Ex. P. 13, which has been duly proved by PW 15 Hulsaram Investigating Officer reveals that at the time of inspection of the site, a ‘Degachi’ (Cauldron) containing meat and water was found on the ‘Chulaha’ underneath the thatchet, where the alleged incident had occurred. This fact corroborates the testimony of Idris that the deceased was cooking meat at that time.Idris further deposed that at the time of incident, he was dismembering the wooden sticks of PW8 Smt. Neelam outside his house and that his father was drawing water from the pit. He stated that Smt. Neelam went inside his house to keep his axe there and that immediately after she came out running and informed him that his wife Smt. Raisa had caught fire. He, thereupon, tried to extinguish the fire, where he got burn injuries on his both hands and that his bushirt was also burnt. He desposed that at that time, the appellant had gone to the shop of Majid to purchase chillies and spices. He told his father had also assisted him in putting off the fire. He specifically stated that Neelam went away and called the appellant, who seeing that ghastly scene became unconscious. Thereafter he alongwith his father and others took Smt. Raisa in a tempo to the hospital. He deposed that he had immediately telephoned the parental relatives of Smt. Raisa and informed them about the incident and that, he had also lodged a report at the Police Station. It may be mentioned here that the prosecution has not filed that report in the Court. This also explains and corroborates the statement of PW 7 Dr. S.C. Vyas, who deposed that on the requisition of the SHO, PS. he had examined the injuries of Smt. Raisa at 5.55 p.m. on that day. It is, therefore, apparent that the prosecution has deliberately withheld the report lodged by Idris, and suppressed the initial version of the incident, which raises a strong suspicion against the prosecution. In his cross-examination, PW 11 Idris stated that Smt. Raias used to write letters to her parents and that prior to the incident she was staying at her parents’ house for about last 8-10 months, where she got herself conceived by one Raju and, therefore, her mother-in-law Smt. Sugra had left her at his house just two days prior to the incident This witness has also neither been declared hostile nor has been re-examined by the prosecution. In our considered opinion, the learned trial Judge was not at all justified in rejecting the sworn testimony of PW 11 Idris without any rhyme or reason.
27. In the case on hand, the prosecution has thus produced two sets of witnesses, one set consisting of PWs 8 to 11, who were present at the place of occurrence immediately after the incident and had brought Smt. Raisa to the hospital, and another set of witnesses PWs 1 to 6 were kith and kin of the deceased, who had come from Sikar and reached Jhunjhunu oh the same day at about 5.45 p.m. after receiving the telephonic message of Idris. PWs 1 to 6 had ample opportunity to tutor the deceased before her ‘Parcha Bayan’ Ex. P. 8 and dying declaration Ex. P. 6 were recorded. The finding of the learned trial Judge that PWs 8 to-11 are not truthful witnesses does not have any legal basis and the same is also not founded on the evidence on record. In our considered opinion, the learned trial Judge has not correctly discussed, analysed, and evaluated statements of these witnesses in right perspective and committed a patent illegality in discarding their testimony. From the statements of these witnesses, it stands firmly established that at the time of the incident Smt. Raisa was all alone in the house, that she caught fire herself and that at that time, the appellant was not present there and had gone to the shop of Majid to purchase chillies and spices. The version given out by PWs 8 to 11 is completely at par and consistent with defence theory. In other, words, it probablises the defence version. It is well crystallised principle of appreciation of evidence that where there are two sets of versions in the statements of the prosecution witnesses, one which is favourable to the accused should be accepted. The testimony of PWs 8 to 11 also stands substantially established by the facts and circumstances of this case. PW 8 Neelam has nowhere stated that she had not gone inside thatchet, where the incident had taken place. Her statement is that when she had gone inside house of Idris to place his axe, she saw that Smt. Raisa was coming out engulfed in flames and that at that time, the appellant had gone to the shop of Majid. This fact also gets fully corroborated from the dying declaration Ex. P. 6, wherein Smt. Raisa had stated that at the time of incident, her husband had gone outside the house for dismembering the wood sticks.
28. PW 13 Narainlal Jat Dy. S.P. stated that he recorded statement of PWs 5 Shakur, Idris and Neelam and had mentioned therein whatever was stated by them. These witnesses have also not been contradicted by their previous police statements. PW 14 Rajendra Kumar Munsif and Judicial Magistrate deposed that on the requisition Ex. P. 5 of the Police Station Kotwali, he went to the B.D.K. Hospital and recorded dying declaration of Smt. Raisa at 7.15 p.m. in the presence of Dr. S.K. Chhabra, who had testified that she was in a fit state to give statement. This witness stated that he did not remember as to whether Smt. Raisa was speaking in Marwari language or not. He deposed that whatever the deceased was speaking, he could understand the same and had written likewise. He also admitted that he recorded statement of the deceased and had also asked her as to what had happened to her. He admitted that he had simply put the said question to Smt. Raisa, and that whatever she stated was recorded by him in Ex. P. 6. The dying declaration Ex. P. 6 mentions about a definite version about the occurrence, in these words, “my grand mother in-law caught hold of her and mother-in-law poured oil and by lighting a match stick, mother-in-law set me ablaze…” As per the statement of PW 10 Shakur, his mother i.e. grand mother-in-law of the deceased had died about 16-17 years prior to the incident. Sharfu (PW 9) has also deposed likewise. The Investigating Officer has deliberately concealed this glaring fact that the grand mother-in-law of the deceased had died long back and was not alive on the date of the incident. On the other hand the Investigating Officer has worked on the hypothesis that it might be other lady by name of Smt. Bismillaha, who might be her aunt in-law. He however, did not apprehend Smt. Bismillaha and submitted charge sheet against the appellant only mentioning therein that the investigation against Smt. Bismillaha was in progress under Section 173(8), Cr. P.C. As per the information given by the learned Public Prosecutor so far, the police has neither arrested Smt. Bismillaha nor filed any supplementary charge- sheet against her. The learned trial Judge in para 20 of the impugned judgment has observed as under:
“XXX XXX XXX XXX XXX XXX XXX”
29. Apparently, it was not at all the prosecution case that it was some other adult member of the family of the deceased by name of Bismillaha, who had caught hold of the deceased to enable the appellant to pour kerosene oil and then light a match stick and set her ablaze. There is not a fringe of evidence on record to establish that an adult female member by name of Bismillaha was in the family of the appellant. On the other hand, there is positive evidence that besides the appellant, other adult family members were Shakur and Idris only. Thus, it is abundantly apparent that the trial Judge by his ingenuity and on the basis of his imagination, surmises and conjectures, has invented a new version by substituting grand mother-in-law to an adult member so far as the alleged act of catching hold of the deceased was concerned, which cannot be accepted to be true. The finding of the learned Trial Judge is against the record and patently perverse. The learned Trial Judge has also wrongly held that the fact that there was no “Dadisasu”, does not have any bearing on the act of the appellant, who had poured kerosene oil and set the deceased ablaze. It is also perverse because had there been no other adult lady by the name of Bismillaha to catch hold of the deceased, appellant Smt. Jaini alone could not in any probability have cumulatively performed all the acts-firstly catching hold of the young lady, secondly pouring kerosene oil on her and thirdly lighting the match stick and setting her ablaze single handed. This is such a fact which cannot be termed as highly probable as contemplated by Section 11 of the Evidence Act. The aged lady like the appellant cannot catch hold of a young lady like the deceased and then by pouring kerosene oil and lighting match stick, cannot set her ablaze because, in such a contingency, the victim shall run away or try to run away while the oil being poured on her. It is common experience that to light a match stick one has to use his/her both the hands. If in fact kerosene oil was poured by the appellant on the body of the deceased and the appellant had lit the match stick to set her ablaze then the moment of time, the appellant lit a match stick the deceased could have run away as the thatchet had no door and it was an open place. Therefore, in such circumstances, the contents of the dying declaration Ex. P. 6 do not get any corroboration either by the oral evidence or circumstantial evidence. On the other hand, the sworn testimony of PWs 8 to 11, it stands firmly established that at the time of the alleged incident, the appellant was not present inside thatchet and that she had gone to Majid’s shop to purchase some chillies and spices. The learned trial Judge has conveniently ignored these material facts and inconsistencies in the dying declaration. To our mind, PWs 1 to 6 had ample opportunity to tutor the deceased and this possibility cannot be ruled out. The dying declaration Ex. P. 6 also does not appear to be natural and truthful. It has been emphatically brought on record that the deceased was staying with her parents for about 8-10 months prior to the incident, where she had conceived herself with one Raju and was carrying pregnancy and that is why, Sugra mother of the deceased had left the deceased at her husband’s house just two days prior to the incident. PW 7 Dr. S.C Vyas, who conducted the post-mortem of the deceased vide post mortem report Ex. P. 2 found that she was carrying pregnancy of about 12 weeks. The deceased in her statement had also admitted that since she did not want to work, the appellant was not happy with her.
30. In Khushal Rao v. State of Bombay, (AIR 1958 SC 22) their Lordships of the Supreme Court held that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. The Apex Court then held that once, the Court has come to conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration, and further that if, on the other hand,, the Court, after examining the dying declaration in all its aspects, and testing its veracity, comes to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.
31. In Ramawati v.State of Bihar, AIR1983 SC 164, it has been held that there is no requirement of law that dying declaration must necessarily be made to a Magistrate, that what evidentiary value of weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case and that in a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. If the Court finds that a dying declaration is not true and voluntary or is the result of tutoring, prompting or coaching and that the material facts in the dying declaration stand uncorroborated and contradicted by the established facts and circumstances of the case, or that the truthfulness of the dying declaration is not beyond suspicion then such a dying declaration cannot be acted upon and based for conviction because it must be kept in view that the prosecution story may not only be true but must be true also and between “must be true” and “may be true” there is a large gap, which has to be travelled and filled in by the prosecution agency by adducing a clear and cogent, unimpeachable and reliable evidence.
32. Similarly in Kalawati v. State of Rajasthan, 1994 (3) WLC 224, the prosecution failed to rule out possibility of dying declaration being tutored. It was held that the onus did not lay on the accused to prove that there was tutoring or prompting of the dying declaration. In that case, the possibility of committing suicide on the part of the deceased could not be ruled out and the accused by giving benefit of doubt was acquitted of the offence under Sections 302/34, IPC.
33. In State of U.P. v. MadanMohan, AIR 1989SC 1519, the prosecution version about occurrence differed from version in dying declaration. It was held that on the basis of such a dying declaration, the accused could not be convicted for offence under Section 302, IPC.
34. Keeping in view all the facts and circumstances of the case and evidence on record, we are of the considered opinion that in view of the afore-mentioned infirmities and unchallenged sworn testimony, PW 8 Neelam, PW 9 Sarafu, PW 10 Shakur and PW 11 Idris, the dying declaration Ex. P. 6 does not appear to be voluntary or truthful. On the other hand, the possibility of prompting and turtoring the deceased by PWs 1 to 6 before her dying declaration was recorded, cannot be ruled out. Therefore, the learned trial Judge has committed serious illegality in convicting the appellant on the basis of the dying declaration Ex. P. 6. As mentioned earlier. Ex. P. 8 has also not been proved at all and the same cannot be made the basis of conviction. The learned trial Judge has applied double standards in assessing and evaluating the statements of PW 1 to PW 6 on the one hand and those of PWs 8 to 11 on the other hand. As per the prosecution case, one Smt. Bismillaha had caught hold of the deceased while the appellant had sprinkled kerosene oil and after lighting match stick, put her to fire. But, curiously enough, the learned trial Judge has omitted the alleged act of Smt. Bismillaha in the charge and it has been mentioned therein that on 31.3.94 at 4.30 p.m. the appellant after mal-treating and harassing the deceased in connection with the demand of dowry, poured oil on her and set her ablaze, with the result, the deceased died on the same day. The appellant was charged for offence under Section 302, IPC. Thus, as per the charge, the appellant alone had set the deceased ablaze. Without mentioning the role of the said grand mother-in-law Smt. Bismillaha, the learned trial Judge has distorted the prosecution version and charged her for offence under Section 302, IPC. This has also caused great prejudice to the appellant and resulting into miscarriage of justice and on this count also, the conviction of the appellant cannot be upheld for offence under Section 302, IPC.
35. The evidence in respect of offence under Section 498A, IPC is also replete with material contradictions and inconsistent. In dying declaration Ex. P. 6 as also ‘Parcha Bayan’ Ex. P. 8 it was stated by the deceased that an amount of Rs. 10,000/- was demanded as dowry but PW1 Nizamuddin, PW 2 Mohd. Rafiq, PW 3 Smt. Sugra have deposed that the appellant had demanded Rs. 4,000/- only. Besides this, no necessary details of the alleged harassment or mal-treatment in connection with the demand of dowry have been stated by PWs 1 to 6. In our considered opinion, the learned trial Judge has also misread the evidence on this count and committed illegality of fact as also of law in convicting the appellant for offence under Section 498A, IPC.
36. No other point was pressed before us.
37. Hence, for the reasons mentioned above, this appeal succeeds and the same is hereby allowed. The conviction and sentences passed by the learned Sessions Judge, Jhunjhunu by impugned judgment dated 16.11.11994 against appellant Smt. Jaini are set aside and she is acquitted of the said offences. She is at present lodged in Central Jail, Jaipur and be released forthwith if not required in any other case.