BABUBHAI LAXMANBHAI v. STATE OF GUJARAT

of which suddenly there was a fire following blaze. Deceased and Urmilaben sustained serious burn injuries due to the fire. Both of them raised shrieks for help. When they were trying to open the doors of their house, they found that the doors were shut from outside. It is the case of the prosecution that as the deceased and Urmilaben raised shrieks, all the accused ran away from the loft.

4.6(cid:9)Coincidently, at that time two police persons i.e. P.W.3 Valliuddin Usnuddin, Police Constable and P.W.4 Ashokbhai Rajaram were on night petrolling duty by moving in Jeep and when they were passing on the road abutting to Saribujrang Gram Panchayat Office. They saw that one house had caught fire. P.W. 3 Valliuddin got their vehicle halted then and there and both police persons went running towards that house. Constable Ashokbhai was trying to open the doors of that house. Valli Uddin and driver of that jeep tried to call the persons residing nearby. The driver of that jeep informed the Police Station by giving wireless message. Meanwhile, one Firebrigade Van came there. Police Constable Ashokbhai broke opened that doors of the house. That police persons saw that on doors being broken, one lady first came out from that house and following her, one male person was coming out of the house. Both were burning by fire. As per the case of the prosecution, that lady who first came with burn injuries, was P.W.2 Urmilaben wife of the deceased Govindbhai, whereas the male person who followed her was the deceased Govindbhai. They had sustained severe burn injuries. #. It appears from the record that as a result of information given by the Jeep driver on wireless message, Head Constable Gamanbhai Gulabbhai of Amalsad Out Post sent a Yadi ex.20 to P.S.I. Gandevi. On receipt of that Yadi, Entry No.2/95 in Police Station Diary was made in Gandevi Police Station at about 4-00 a.m. on 10/2/1995. As per the evidence of P.W. 3 Valliuddin, he immediately took Govindbhai and Urmilaben, by taking them in Jeep, to Primary Health Center, Amalsad. They reached Primary Health Center, Amalsad at 3-00 a.m. As per the case unfolded by the prosecution, P.W.7 Dr. Dipakkumar Mohanlal Patel was on duty as Medical Officer of Primary Health Center at Amalsad. As per his evidence, at about 3-00 a.m. one police person had brought one lady and one male person to him and both had sustained burn injuries. As P.W.7 Dr. Dipakkumar found that both had sustained severe burn injuries, he immediately referred that two persons to Mengusi General Hospital at Bilimora. Thereupon, P.W.3 Valliuddin immediately shifted Govindbhai and Urmilaben to Mengusi General Hospital at Bilimora. At Mengusi General Hospital at Bilimora, it was told that these two persons had sustained severe burn injuries, and therefore, they should be taken to Navsari Civil Hospital. From record, it appears that a 'refer note' Ex.42 prepared by Medical Officer of Mengusi General Hospital, Bilimora and addressed to Chief Medical Officer, Navsari Civil Hospital, Navsari was given to P.W. 3 Valliuddin. Immediately thereafter, two injured persons were shifted to the Civil Hospital at Navsari. As per record, they reached civil Hospital at Navsari at about 5-00 a.m. At that time, P.W.8 Dr. Ajaykumar Jankiprasad Sharma who was a Medical Officer was present on duty in the Civil Hospital at Navsari. As per evidence of Dr. Sharma, at 5-00 a.m. on 10/2/1995, Urmilaben and Govindbhai who had sustained burn injuries were brought by police to him along with a reference note of Medical Officer of Mengusi General Hospital, Bilimora. Dr. Sharma examined both the persons one by one. As per deposition of Dr. Sharma, Govindbhai told Dr. Sharma that he was burnt by his elder brother, while Urmilaben informed him that the elder brother of her husband had burnt her. They both also informed him that their hut was set on fire. As per evidence of Dr. Sharma, he immediately prepared the medical case papers wherein he noted down history given by deceased Govindbhai and Urmilaben. Dr. Sharma immediately started to give medical treatment to both the injured persons. Meanwhile, Dr. Sharma informed P.S.O. of Navsari Town Police Station by telephonic message at about 7-25 hrs. Thereupon, P.S.O. of Navsari Town Police Station made entry No.5/95 in the Station Diary at 7-25 a.m. on 10/2/1995. Immediately, thereafter P.S.O. of Navsari Town Police Station wrote a Yadi Ex.50 to the Executive Magistrate of Navsari. Simultaneously, P.S.O. of Navsari Town Police Station informed P.W.9 P.S.I. Henri Jullius Kin by giving him a Vardhi, as a result of which, P.W. 9 Henri immediately rushed to the Civil Hospital, Navsari and he recorded a complaint Ex.47 of injured Govindbhai Laxmanbhai in the Hospital at about 8-15 a.m. That complaint was sent to P.S.O. of Navsari Police Station for its registration. That complaint came to be registered for offences punishable under Secs. 307-114 of I.P.Code. As the offences took place within the jurisdiction of Gandevi Police Station, that complaint was sent to Gandevi Police Station where it was registered as CR.No. I 11/95 at 14-20 hrs. From record it appears that the Yadi Ex.50 was first taken to Dr. Sharma. Dr.Sharma put an endorsement in margin of the Yadi Ex.50 to the effect that the patient was conscious and could speak. That Yadi was received by P.W.9 Mohanbhai Kikabhai Mistry, Deputy Mamlatdar-cum-Executive Magistrate of Navsari at about 9-15 a.m. on 10/2/1995. He, by taking him with said Yadi Ex.50, rushed to the Civil Hospital, Navsari. He contacted the Doctor in the Hospital and collected information as to whether Urmilaben and Govindbhai were conscious or not. Doctor informed him that both the patients were conscious and their dying declarations could be recorded. Hence P.W.9 Mohanbhai who was the Executive Magistrate, first recorded dying declaration of Urmilaben Exh.51 during the period from 9-20 a.m.to 9-35 a.m. Thereafter, he recorded dying declaration of deceased Govindbhai Ex.52 during the period between 9-40 a.m. and 10-10 a.m. #. P.S.O. of Gandevi Police Station entrusted the investigation to P.W.10 P.S.I. Navinchandra Vitthalbhai Desai. He first went to the Civil Hospital, Navsari and recorded further statements of the complainant, Urmilaben and other witnesses. He thereafter went to village Sari Bujrang and drew a panchnama of scene of offence. He also drew a panchnama of damage caused to the property. During the treatment, complainant Govindbhai Laxmanbhai died at 4-10 a.m. on 12/2/1995. Therefore, the Investigating Officer drew an Inquest Panchnama Ex.17 during the period from 9-45 a.m. to 10-15 a.m. Thereafter, the Investigating Officer wrote a yadi to the learned J.M.F.C. Gandevi requesting him to add an offence punishable under Sec.302, I.P.Code in the FIR registered at CR.No.I 11/95. He further conducted investigation of the case and ultimately he arrested all the accused on 13/2/1995. He sent muddamal articles seized from the scene of offence along with forwarding letter Ex.55 to the Forensic Science Laboratory for analysis. On receipt of the report Ex.56 of Forensic Science Laboratory, he filed the chargesheet in the Court of the learned J.M.F.C., Gandevi on 3/5/1995. That chargesheet came to be registered as Criminal CaseNo.694 of 1995. Thereafter, on 3/11/1995, the learned J.M.F.C. Gandevi passed committal order under Sec.209, Cr.P.C. and committed the case to the Court of Sessions, Valsad at Navsari. On receipt of the papers along with muddamal articles, the learned Sessions Judge, Valsad at Navsari registered the case as Sessions Case No. 136 of 1995. #. The learned Judge of the trial Court framed charge Ex.9 on 18/12/1996. On recording plea of the accused, they have not pleaded guilty to the charge and claimed to be tried. Hence, the prosecution has examined following 11 witnesses to prove the guilt of the accused: (1) P.W. 1 Arvindbhai Jinabhai Patel (Panch Witness) at Ex.27. (2) P.W.2 Urmilaben Govindbhai Champaneria at ex.30 (victim and injured person). (3) P.W.3 Head Constable Valliuddin Usnuddin at Ex.33 (4) P.W. 4 Police Constable Ashok Rajaram at Ex34. (5) P.W.5 Dhansukhbhai Maganbhai (Panch Witness) at Ex.35. (6) P.W.6 Dr.Jagdishprasad Ramsing Gupta at Ex.37. (7) P.W.7 Dr. Dipakkumar Mohanlal Patel at Ex.39. (8) P.W.8 Dr.Ajaykumar Jankiprasad Sharma at Ex.40. (9) P.W.9 Henari Jullius Kin (P.S.I. of Navsari Police Station) at Ex.46. (10) P.W.9 (P.W.10) Mohanbhai Kikabhai Mistry (Executive Magistrate) Ex.49. (11) P.W.10 (P.W.11) Navinchandra Vitthalbhai Desai (P.S.I. Gandevi Police Station) at Ex.54. #. The prosecution has also produced following important documentary evidence along with other documents in support of its case: (1)(cid:9)Panchnama of scene of offence Ex.28. (2) Panchnama of assessment of damage caused to property Ex.29.(cid:9) (3) Copy of dying declaration of Urmilaben Govindbhai, got produced by accused at Ex.31. (4) Sketch with explanatory note of scene of offence and surrounding properties Ex.36. (5) Certificate of injuries sustained by accused No.1 Babubhai Laxmanbhai Ex.38. (6) A bunch of medical case papers of Urmilaben Govindbhai Ex.41. (7) A refer note of Medical Officer, Mangusi General Hospital, Bilimora issued to C.M.O. Civil Hospital, Navsari along with a bunch of medical case papers of deceased Govindbhai, Ex.42 collectively. (8)(cid:9)Post Mortem Notes Ex.43. (9) Certificate with regard to cause of death of deceased Govindbhai Ex.44. (10) Original complaint Ex.47. (11) Yadi of P.S.O. Navsari Town Police Station addressed to Executive Magistrate Ex.50. (12) Dying declaration of injured Urmilaben Ex.51 produced and proved by Executive Magistrate. (13) Dying declaration of deceased Govindbhai Ex.52. (14) Forwarding letter addressed to Forensic Science Laboratory Ex.55. (15) Report of Forensic Science Laboratory Ex.56. #. On evidence of prosecution being declared as closed, the learned Judge of the trial Court recorded further statements of each accused separately. Circumstances appearing against the accused were brought to the notice of and explained to each accused in their respective further statements recorded under Sec.313, Cr.P.C. ##. All the accused have mechanically denied the case of the prosecution. Still however, they have admitted following facts in their further statements: (1) Accused No.1 is an elder brother-in-law of Urmilaben and accused Nos. 2,3 and 4 are the son, wife and daughter-in-law of accused No.1. (2) Urmilaben was residing with her husband in their own house situated in village Sari-bujarang and their house was adjacent to house of the accused. (3) The house in which Urmilaben, her husband -deceased and accused were residing, was of the ownership of Laxmanbhai -father of the deceased and accused No.1. (4) Urmilaben and deceased had sustained bodily burn injuries but it is their defence that they sustained such injuries in the accident. (5) At about 2-00 a.m. in the early morning of 10/2/1995, witness Police Constable Ashokbhai in company of other police persons was on night petrolling duty and when they were passing near corner of "Teachers' Society", they saw that one hut had caught fire from its top portion, and therefore, that police persons halted their vehicle at that place. At that time, there was one bang and they heard cries of one woman and one male person for help, from inside the hut. Thereupon, they went near the gate of that hut and tried to open the doors of the hut but they found that one wire was wounded-up in front portion of the gate. They opened the wire and on opening the doors of the hut, first one lady came out from the hut and by following her, one male person who had sustained burn injuries came out from the hut. (6) It is their common defence that deceased and Urmilaben were keeping enimical relations with them (accused) and therefore, Urmilaben has given a false evidence. (7) Accused Nos. 1 and 3 have in their own defence stated in their further statements that they are residing in their own separate house and that they had no dispute whatsoever with deceased Govindbhai. They have also stated that their son Aswin and Anitaben (Aswinbhai's wife) are staying separately from them in Gayatri Society and Aswinbhai is carrying on his own business. (8) When accused No.1 was heard on point of quantum of sentence, he has stated "He is an aged old person having disease of laprocy. (9) Accused Nos. 2 and 4 have in their defence stated that they are residing separately from accused Nos. 1 and 3, in Gayatri Society since 1/5/1987 and that accused no.2 is doing his own business. (10) Accused have submitted their written arguments at ex.59. ##. After hearing the arguments of learned Advocates for both the parties and after analysing and appreciating evidence led by the prosecution, the learned Judge of the trial Court came to a conclusion that the deceased Govindbhai died culpable homicidal death and because of pouring petrol on the deceased Govindbhai and Urmilaben and by throwing on them an ignited match-stick by accused no.1, deceased Govindbhai sustained severe bodily burn injuries and as a direct result of these burn injuries, Govindbhai died and therefore, accused No. 1 has committed an offence punishable under Sec.302, I.P.Code. He has further come to a conclusion that because of aforesaid acts of accused No.1, Urmilaben sustained such severe bodily burn injuries which were in ordinlary course of nature sufficient to cause her death but because of timely treatment, she has survived, and therefore, accused No.1 has committed an offence punishable under Sec.307, I.P.Code. He has also come to a conclusion that because of aforesaid acts, the house and household articles of deceased and Urmilaben caught fire and in that fire, the house and household articles were heavily damaged and destroyed, and therefore, he has committed an offence punishable under Sec. 436, I.P.Code. By appreciating the evidence, he has come to a conclusion that accused Nos.2 to 4 have not abetted the accused No.1 in committing the aforesaid offences punishable under Secs. 302-307 and 436 of I.P.Code, and therefore, the learned Judge of the trial Court has, by rendering judgment Ex.60 dated 19/6/1997, convicted the accused No.1 and inflicted sentences as referred to in Para. 2 hereinabove. Simultaneously, by not holding accused Nos. 2 to 4 guilty for the offences for which they were charged, the learned Judge of the trial Court has acquitted the accused Nos. 2 to 4 of offences of abetment in committing the offences committed by accused No.1. ##. Being aggrieved against and dissatisfied with aforesaid judgment of conviction and sentence, accused No.1 has preferred Criminal Appeal No. 745 of 1997, while the State of Gujarat has preferred an appeal being Criminal Appeal No. 1137 of 1997 against accused Nos. 2 to 4. ##. We have heard Mr.P.M.Vyas, learned Advocate for the appellant (original accused No.1) in Criminal Appeal No. 745 of 1997 and Mr. D.R.Bhatt, learned Advocate for the respondents (original accused Nos. 2 to 4) in Criminal Appeal No. 1136 of 1997 and Ms. B.R.Gajjar, learned APP for the State in both the appeals in detail at length. ##. Mr.P.M.Vyas, learned Advocate for the appellant (original accused No.1) in Criminal Appeal No. 745 of 1997 has taken us through the oral as well as documentary evidence on record and the impugned judgment challenged in these appeals. Mr. Vyas, learned Advocate for the convict accused No.1 has argued that the learned judge of the trial Court has not appreciated the evidence in its proper and correct perspective manner and that he has come to a wrong conclusion, and therefore, the order of conviction passed against the accused No.1 is erroneous and bad in law. He has further argued that story advanced in the complaint is highly improbable and in view of probability factor with regard to nature of incident, the deposition of Urmilaben cannot be accepted as true and credit-worthy. He has further argued that the prosecution has changed the story from one stage to another by advancing the case that accused poured petrol on deceased and Urmilaben and lateron they have changed the story by saying that Kerosene was poured, and therefore, the case has become doubtful. He has further argued that looking to the facts and circumstances of the case, the dying declaration on which the learned Judge of the trial Court has placed reliance for convicting accused No.1, is far from truth and unreliable. It cannot be said to be genuine, reliable and trustworthy. He has further argued that in view of this, if the dying declarations are taken out from the evidence, then there is no evidence against the accused No.1 and therefore, the appeal preferred by accused No.1 deserves to be allowed and accused No.1 who is a patient of leprosy, be acquitted. ##. Mr. P.M.Vyas has placed reliance on following authorities in support of his submissions. They are: (1) Thanedarsing Vs. State of U.P. reported in 2002 SCC (Cri.) 153; (2) Kajal Sen and others Vs. State of Assam, 2002 SCC (Cri.) 452 = 2002 (2) SCC 551. (3) Hasmukh Devji Khavasa Vs. State of Gujarat, 1997 (1) GCD 305 (Guj). (4) Dilip Vs. State of Maharashtra, 1996(1) (Crimes) 483 (Bombay). (5) Surendra Pratap Chauhan Vs. Ram Naik and others, (2001) 9 SCC 266. (6) Kalyan and others Vs. State of U.P. (2001)9 SCC

632. (7) Laxmi (Smt) Vs. Om Prakash and others, (2001) 6 SCC 118. (8) Swapan Patra and others Vs. State of W.B. 1999 SCC (Cri) 1153. ##. Ms. B.R.Gajjar, learned APP for the State has supported judgment of conviction qua accused No.1. She has argued that there is ample evidence against accused No.1 for holding him guilty for an offence punishable under Secs. 302-307-436 of I.P.Code. She has further argued that the learned Judge of the trial Court has properly appreciated the evidence on record in its correct perspective and has rightly convicted accused No.1. Still however, as Counsel for the State representing the appellant in Criminal Appeal No. 1137 of 1997, she has argued that the learned Judge of the trial Court has not properly and correctly appreciated the evidence of two dying declarations and oral evidence of P.W. Urmilaben and the learned Judge of the trial Court has, though he accepted two dying declarations to be acceptable and trustworthy statements, acquitted the accused Nos. 2 to 4 by misreading the evidence on record. She has argued that looking to the dying declaration of the deceased Govindbhai and oral evidence of Urmilaben who is an injured eye-witness, it can certainly be said that the judgment of acquittal in favour of accused Nos. 2 to 4 is palpably wrong and it is unsustainable and the judgment of acquittal rendered in favour of accused Nos.2 to 4, is required to be reversed by this Court by convicting accused Nos. 2 to

4. She has cited following three authorities in support of her submissions: (1) State of Maharashtra Vs. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617. (2) Sheelam Ramesh & another Vs. State of Andhra Pradesh, AIR 2000 SC 118. (3) Shamu Balu Chaugule Vs. State of Maharashtra, AIR 1976 SC 557. ##. Shri D.R.Bhatt, learned Advocate appearing for respondents (Original accused Nos. 2 to 4) in Criminal Appeal No. 1137 of 1997 has taken us through certain portions of oral evidence of witnesses and documentary evidence. He has supported the judgment of acquittal rendered in favour of accused Nos. 2 to 4. He has argued that Criminal Appeal No. 1137 of 1997 is an acquittal appeal filed by the State of Gujarat and considerations for such acquittal appeals are totally different than the considerations which can be taken into account while dealing with the conviction appeals. He has cited following two authorities: (1) Ramesh Babulal Doshi Vs. State of Gujarat, 1996(2) GLH 206 (SC). (2) Solanki Chimanbhai Ukabhai Vs. State of Gujarat, AIR 1983 SC 484. (3) Smt. Kamla Vs. State of Punjab, AIR 1993 SC

374. ##. We have considered the submissions advanced at the Bar. We have carefully examined the evidence on record and re-appreciated the same in light of submissions made by both the parties. ##. General principles with regard to appreciation of evidence and Court's approach are restated by Hon'ble Supreme Court in case of Harijan Thirupala and others Vs. Public Prosecutor, High Court of A.P. Hyderabad, reported in (2002) 6, SCC 470. (cid:9)In our administration of Criminal justice, an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further, if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the Court entertains a reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of the accused. At the same time, the Court must not reject the evidence of the prosecution taking it as false, untrustworthy, or unreliable on fanciful grounds or on the basis of conjuctures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence, the approach of the Court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the Court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities its intrinsic value and the animus of witnesses. It must be added that ultimately and finally, the decision in every case depends upon the facts of each case. ##. This is a case in which deceased Govindbhai and injured Urmilaben who were sleeping on cot covered with Mosquito-net in their house, caught fire and sustained serious bodily burn injuries. Incident took place at about 2-00 a.m. in the mid-night. Under the circumstances, there cannot be a direct evidence of any third party as an eye-witness. The whole case rests on dying declarations and complaint. (1) Oral dying declarations made to P.W.8 Dr.Ajaykumar Jankiprasad Sharma by both the injured witnesses. That Dr. Sharma reduced that statements as a history given, by them, into writing by preparing medical case papers. (2) Complaint Exh.47 lodged by deceased Govindbhai to P.W. 9 P.S.I. Henri Jullius Kin. (3) Dying declaration Ex.52 of deceased Govindbhai recorded by Executive Magistrate Mohanbhai Kikabhai Mistry (Ex.49). ##. Before we start to discuss the evidence led by the prosecution, it is necessary to know as to how and under what circumstances, incident took place on fateful day of 10-02-1995.

21.1(cid:9)P.W. 2 Urmilaben and her husband Govindbhai both were having their own house. Their house was nothing but one of the two parts of house. They were residing in northern part. Partition of galvanized iron sheets was there in between two parts of house. The southern part, as a result of such partition, was in use of the accused Nos. 1 and 3. Both the portions have a common loft. Both the portions have their outlets on western side. The southern portion which was being used by accused nos.1 and 3 has its another outlet on eastern side, also. These two portions are made from one big room. Each such part is of area of 11' x 6.1/4'. Towards east of this big room, there is one another room having its gate towards eastern side. This second room towards east is also in possession of the accused. As per story unfolded by P.W.2 Urmilaben, the house in which they were residing was of ownership of her father-in-law. She has deposed in her evidence that accused wanted to snatch the possession of their house in which they were residing and for that they (accused) were threatening to kill them. So, on the point of motive, the prosecution has given the history that the deceased Govindbhai and his wife Urmilaben both were residing in northern portion of room of the house and except this premises, they had no other premises as their shelter. They have no child except one daughter to whom they have got married and she is residing with her husband abroad in Africa. Under these circumstances, it is a case of the prosecution that accused have their premises on southern portion of that premises on northern side which is in possession of deceased as well as another house on eastern side adjacent to that house, and therefore, they wanted to snatch the possession of the house from the deceased. As per evidence of Urmilaben, when they were sleeping in their house, at about 2-00 a.m. in the mid-night they heard some noise from the loft and her husband saw with the help of torch light, inside the loft and they saw all the four accused who were present in the loft and they poured petrol over the deceased Govindbhai and Urmilaben and thereafter they threw an ignited match-stick on them, as a result of which they caught fire and they sustained serious bodily burn injuries. As per the case of the prosecution, deceased Govindbhai had sustained more severe burn injuries and therefore, during the course of medical treatment in the Civil Hospital at Navsari, Govindbhai expired on 12/2/1995. As stated earlier, it is clear from further statements of the accused that the accused have no dispute with regard to fact of burn injuries sustained by Urmilaben and her husband while they were in their house. It is only their defence that they caught fire as a result of accident. It is their say that because of dispute with regard to property, deceased Govindbhai and injured Urmilaben were keeping enimical relations with them and therefore both have given their names in their dying declarations. It is an admitted fact that after incident, P.W. 3 Valiuddin shifted injured Urmilaben and injured Govindbhai first to Government Dispensary at Amalsad, but Doctor of Government Dispensary, Amalsad referred that two injured persons to Mengusi General Hospital at Bilimora and from there they were further referred to Civil Hospital, Navsari. They were admitted in Civil Hospital, Navsari. Urmilaben took medical treatment as an indoor patient for the period upto 26/4/1995. It is not in dispute that injured Govindbhai - husband of Urmilaben died during the course of medical treatment at 4-10 a.m. on 12/2/1995. As per the case of the prosecution, inquest panchnama Ex.17 was drawn on 12/2/1995 during the period from 9-45 a.m. to 10-15 a.m. by P.W.9 Mr. Henri Jullius Kin, Police Sub Inspector, Navsari Town Police Station. Deceased Govindbhai had sustained burn injuries on his head portion, face, two ears, two arms, right waist portion, right thigh, left thigh, right knee etc. As per evidence of P.W.8, Dr. Ajaykumar Sharma who examined Urmilaben and Govindbhai, both were brought to him in Civil Hospital, Navsari at 5-00 a.m. on 10/2/1995. He has produced a bunch of five medical case papers at Ex.42. As per his deposition, Govindbhai had sustained following burn injuries: "2nd and 3rd degree burns on face, scalp, abdomen, rear portion of body, both arms and on both palms." During treatment, deceased Govindbhai died and this very Dr. Sharma performed Post Mortem of the deceased. He has produced and proved Post Mortem Notes Ex.43. As per his evidence, following were the external injuries found on the body of the deceased: "2nd and 3rd degree burns over scalp, whole of face, front and back of neck, upper part of front of chest. Both upper limb front & back, whole of part of chest and abdomen. Right side of frontal chest and abdomen. Lateral aspect of left thigh upper half." He has given cause of death as follows: "Cardio respiratory arrest produced by septicaemic shock due to burns". This Doctor has given a separate death certificate stating cause of death at Ex.44. Thus looking to aforesaid evidence of P.W.8 Dr. Sharma read with Post Mortem Notes Exh.43, the prosecution has ably proved that deceased Govindbhai died a homicidal death. The only defence taken by the accused is to the effect that when Govindbhai and Urmilaben were inside the hut, hut suddenly caught fire by accident and in that accidental fire, both had sustained injuries. They have advanced their case that though the death of Govindbhai is a homicidal death, it cannot be said to be a culpable homicidal death because he met with an accident which took place as hut caught fire by accident, and thus, in this case, there is no serious dispute about homicidal death of deceased Govindbhai. ##. This takes us to a point for determination as to how Govindbhai sustained bodily burn injuries. As per the case of the prosecution, accused poured petrol on Govindbhai and Urmilaben and threw an ignited match-stick on them, while they were sleeping in hut. As against this, it is the defence of the accused that they are not involved in any way in the incident and merely because, deceased and Urmilaben were keeping enemical relations, with regard to property dispute, deceased having animosity has given false complaint against the accused. As per their case, hut caught fire by accident, and therefore, as per defence of accused, this is a case of accidental death and not a culpable homicidal death. ##. On making our careful examination of evidence on record and submissions made by the learned Advocates for both the parties, it is revealed that the prosecution mainly relies on three dying declarations of deceased Govindbhai and oral testimony of P.W. 2 Urmilaben. Prosecution indirectly relies on a so called dying declaration Exh.51 of Urmilaben recorded by the Executive Magistrate. We have not considered socalled dying declaration of Urmilaben recorded by Executive Magistrate because Urmilaben is surviving and has given evidence before the trial Court, and therefore, at the best that statement of Urmilaben recorded by the Executive Magistrate is nothing but a previous statement under Sec.157 of the Indian Evidence Act. In view of this, first we will consider the evidence of dying declaration of Govindbhai. ##. There are three dying declarations of deceased Govindbhai and they can be arranged in Chronological order of time as follows: (1) Page 3 of Ex.42 which is in form of history given by Govindbhai to P.W.8 Dr. Sharma at 05-15 a.m. on 10-02-1995. (2) Complaint Ex.47 recorded by P.W.9 P.S.I. Mr. Kin who is examined at Ex.46, at about 08-15 a.m. on 10-02-1995. (3) Statement Ex.52 recorded by Mr.Mistry, Executive Magistrate who is examined at Ex.49 during the period between 09-45 a.m. and 10-05 a.m. on 10-02-1995. ##. Thus, the prosecution relies on aforesaid three dying declarations of deceased Govindbhai. Hence there are more than one dying declarations on record. Before we discuss the evidence of the dying declarations with regard to its acceptability and reliability, we would like to place on record legal position with regard to dying declarations. It is well settled principle of law that a dying declaration, whether oral or written, is a relevant piece of evidence under Sec.32(1) of the Indian Evidence Act. Dying declaration is made relevant piece of evidence on the basis of well-known maxim "nemo moriturus mentire- no one at the point of death is presumed to lie. A man will not meet his Maker with a lie in his mouth"is the philosophy in law underlying admittance in evidence of dying declaration. ##. A dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court as obligation to closely scrutinise all the relevant attendant circumstances. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case of circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming a safe basis for conviction. ##. One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it. ##. It is not the number of dying declarations which will weigh with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand, if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent. ##. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by an investigating officer has been discouraged and the Supreme Court has urged the investigating officers to avail the services of a Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer. ##. A law relating to dying declaration has been well-discussed by the Hon'ble Supreme Court in the case of Khushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22. This is a pioneer case on dying declaration. In Para 16, the Hon'ble Supreme Court has come to certain conclusions as follows: (cid:9)"On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time of he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. ##. Thereafter, in case of Smt. Paniben Vs. State of Gujarat, reported in AIR 1992 SC 1817, the Hon'ble Supreme has made a compilation of principles with regard to dying declarations laid down in different cases before it. It has been held in Para 17 as follows: (cid:9)Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit statement of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under : (i) There is neither rule of law nor of prudence that ding declaration cannot be acted upon without corroboration. (Mannu Raja v. State of U.P. (1976) 2 SCR 764):(AIR 1976 SC 2199). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.(State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416: Ramavati Devi v. State of Bihar, AIR 1983 SC 164). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994). (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.(Rasheed Beg v. State of Madhya