IMPORTANT POINT
Conviction cannot be sustained on the basis of dying declaration, which causes suspicion.

Judgment

K. JAYACHANDRA REDDY, J.:- This is an appeal against the order of the High Court of Gujarat acquitting the two respondents from the charge of murder. Both were tried under S. 302 read with S. 34, I.P.C. for offence of murder of one Lilaben. The learned City Sessions Judge, Ahmedabad convicted them under S. 302, I. P.C. and sentenced them to suffer imprisonment for life and on appeal the High Court set aside their conviction and sentence. Hence this appeal by the State pursuant to the leave granted by this Court.

2. The prosecution case is as follows. The family of the accused consists of the father of accused No. 1, his mother, his younger brother Manubhai and the deceased was Manubhais wife. All of them were living in a residential block in Maghaninagar locality. Accused No. 1 was a widower having two sons before he married accused No. 2. There is an age gap between accused Nos. 1 and 2. It is alleged that Manubhai, the younger brother of accused No. 1 and the husband of the deceased was having illicit relationship with accused No. 2. The deceased was objecting to the same and she also complained to her mother. Accused No. 1 was, however, not very mindful of it. Accused No. 1, however, was a hot-tempered man and that at the time of the birth of the first son of the deceased, the expected Kariyavar (gift) was not received by him and his father from the family members of the deceased and he was giving threats not only to the deceased but also to her father. The deceased was not allowed to go to her parents place on account of this. On the day of occurrence i.e. 26-10-76 at about 8.30 p.m. there was some commotion in the house. P.W 2 and other neighbours came hearing the shouts and in one of the room he found flames of fire and saw accused No. 2 standing near the entrance door. He also found the deceased lying on the floor and a mattress over her person was burning and accused No. 1 pressing his leg over the mattress while standing. He also saw accused No. 1 having burns. P. W. 2 switched on the light and took accused No. 1 out. P.Ws. 5, 12 and 13 also entered the room. P.W 2 removed the mattress from the body of the deceased and found her to be conscious. She was in burnt condition and there was smell of kerosene and smoke in the whole room. The deceased and accused No. 1 were removed to the Hospital. The Doctor P.W 10 examined both of them and the cause of the burns was noted to be due to accident and it was accordingly noted in the case-sheet. The Doctor also put questions to the deceased but she did not reply. The deceased was admitted as an in-patient. Another Doctor P.W 19, the Surgeon examined her and on his questioning the deceased told him that her husbands elder brother poured kerosene and set fire. The father of the deceased, P.W. 1 on coming to know about the incident went to the Hospital and he questioned the deceased and it is alleged that she also told him that husbands elder brother was responsible. P.W. 23 the Police Officer received the information, went to the Hospital and he recorded a statement Ex.P. 58 in the presence of Dr. Kapadia and Dr. Bhatt, P.W. 7. Both of them attested the dying declaration. They also testified that the deceased was conscious at the time when she made the dying declaration. The post-mortem was conducted and the accused were arrested and after completion of the investigation, the charge-sheet was filed. The accused denied the offence.

3. Ex.P. 58 is the important dying declaration from the prosecutions point of view. According to the prosecution P.W 23 sent for the Executive Magistrate for recording the dying declaration of the deceased but before he could reach the Hospital he found that the deceased was becoming more serious and, therefore, he thought it proper to record the dying declaration. The deceased implicated accused Nos. 1 and 2. It is stated that accused No. 1 came from behind and poured kerosene while accused. No. 2 caught hold of her and accused No. 1 lighted a ma