JUDGMENT

HANSARIA, J. :- The extremely shocking nature of the case as put forward by the prosecution and accepted by the High Court- the same being attempted rape on a young girl which is protested, followed next day by setting of the girl to fire by pouring kerosene on her and on rescue effort being made to bolt the door from outside because of which the burn injuries ultimately lead to her death; and all these by taking undue advantage of the fiduciary capacity as the father of the girl, a tenant of the accused, had left her and his young boy in the care and custody of the latter during formers temporary absence led us to issue a notice of enhancement in this appeal as the sentence awarded for the conviction under section 302 of the Indian Penal Code by the High Court, on reversing the order of acquittal passed by the trial court, was imprisonment for life, whereas we felt that, if the prosecution case be true, the sentence to be awarded should be the extreme visualised by Section 302, i.e. the sentence of death. But having heard learned counsel for the parties we have come to the conclusion that far from enhancing the punishment, the appellant deserves to be acquitted.

2. We have come to the aforesaid conclusion because it is the dying declaration of Nihalo deceased containing the above facts which shocked our conscience. But then from what is being stated later, it would appear that the dying declaration does not inspire confidence. Not only this, we entertain reasonable doubt if the appellant was the person who had set Nihalo to fire, and it is because of this that we propose to acquit him.

3.As it is the dying declaration which had prevailed with the High Court in convicting the appellant, let it be seen as to why we are disinclined to place reliance on it. The first reservation of ours is that the allegation about attempted rape on Nihalo which finds place in the statement is one about which we entertain serious doubt in as much as even the brother of Nihalo, Ram Pal (PW 9), who has deposed about seeing her sister in burning condition, which was on the night of 4-10-1980, has not deposed about the attempted rape the previous night. We are conscious of the fact that Ram Pal is a child witness and was aged about 12 years when he gave evidence; but then having deposed about the incident of 4th October and having stood cross-examination well, Ram Pal is a witness, who, despite being only 12 years old is one whose evidence inspires confidence as he gave a good account of himself in the witness-box.

4. The aforesaid is not only the reason of our disbelieving the prosecution story relating to attempted rape on Nihalo in as much as even PW 10, Devi Chand, has not said anything regarding this part of the prosecution case, despite the fact that Nihalo had been brought to his house by his wife a day earlier to the occurrence. Now, if any rape would have been attempted on Nihalo, she would have definitely stated about the same, if not to Devi Chand at least to his wife. But Devi Chands wife does not come forward to depose about the same, nor does Devi Chand say anything about it.

5. Our second reservation about the correctness of the statements as recorded in the dying declaration relates to that part in which it has been stated that after Nihalo had been set on fire, which was in the court-yard, she rushed to her room which was bolted from outside by the appellant. PW. 10 Devi Chand who is a close neighbour and who had heard an alarm in the house of the appellant, in which Nihalos father was a tenant, hearing which he peeped into the house and scaled over the wall, which was about 5 ft. in height, saw Nihalo in a burning condition in the court-yard of the house. This witness (or, for that matter, Ram Pal) does not say anything about Nihalo rushing into the room, which as per the dying declaration, was bolted from outside by the appellant. Shri Ujjagar Singh, learned Sr. Advocate appearing for the appellant has also submitted in this