JUDGMENT 1. - Appellants, Murarilal & Smt. Mohani alias Jethi, have come up in this appeal against their conviction under Section 302, IPC, & sentence of life imprisonment with a fine of Rs. 500/- (in default, 6 months S. I.) awarded by the learned Additional Sessions Judge Sikar in sess. No. 35/86. 2. On the basis of a statement (Parcha Bayan) of Smt. Kusum wife of Murarilal (accused-appellant) recorded by the police on 1-5-1986 at 7.40 p. m., a case for the offence under Section 307, IPC, was registered at police station Sikar. In Parcha Bayan (Ex. P. 16), it had been alleged that on 1-5-1986 at 4 p. m. Smt. Kusum had been brought from her father's house situated in Nawalgarh to her husband's house at Sikar by her husband, Murarilal. Immediately on her arrival there, her husband and her mother-in-law sprinkled Kerosene oil on her and set her ablaze by striking a match stick. Her mouth was gagged with cloth. According to the Parcha Bayan, Smt. Kusum has been married only one months prior to the incident, and her husband after setting her a flame threw upon her a bucket full of water. Thereafter her husband's younger brother placed her in an auto rickshaw and got her admitted in the Government hospital. Immediately thereafter at 7.55 p.m. dying declaration of Smt. Kusum was recorded by Shri Prithvi Raj Judicial Magistrate, Sikar. The case was registered against the present appellants for the offence under Section 307, IPC, at 8.20 p. m. Usual investigation commenced. Site was inspected but unfortunately, after her medical examination Smt. Kusum died on 2-5-86 at 9.30 p. m. Therefore, the case was converted for the offence under Section 302, IPC. Her dead body was subjected to autopsy. Her burnt and half burnt clothes were taken in police custody. Floor scrapings were taken into custody from the scene of occurrence. Inquest report of the dead body was prepared and after completion of the investigation and arresting the accused-appellants, a regular challan was filed in the concerned court against both the appellants. Learned Magistrate committed the accused to face trial in the Court of Sessions Judge Sikar from where the case was transferred to the Court of Additional Sessions Judge, Sikar. Inquest report of the dead body was prepared and after completion of the investigation and arresting the accused-appellants, a regular challan was filed in the concerned court against both the appellants. Learned Magistrate committed the accused to face trial in the Court of Sessions Judge Sikar from where the case was transferred to the Court of Additional Sessions Judge, Sikar. The learned Additional Sessions Judge, after recording the statements of the prosecution witnesses so also of the defence witnesses in addition to the accused-appellants' under Section 313, Cr. P. C., heard the arguments and passed the impugned judgment. 3. A broad narration of significant features condensed from the evidence brought on record will help delineate the forensic controversy. 4. Eighteen witnesses were examined by the prosecution whereas three witnesses were produced in defence. Suresh Kumar (PW 1) did not at all support the prosecution and was declared hostile. Vimal Kumar (PW 2) brother of appellant, Murarilal & son of appellant, deposed that at about 4 p. m. his sister in-law (Bhabhi) came from Nawalgarh to Sikar alongwith his brother, Murari and went up stairs, and at that time his mother had gone to the place of her sister, Narbada Bai and was not in his house. Immediately after arrival of Smt. Kusum in her room at the first floor, the witness deposed, he heard cries; thereupon he also went up stairs and found that Smt. Kusum was burning. His aunt, Narbada who was there in the house, brought a bucket full of water and the water was dropped on the body of Kusum. At that time, his second brother, Pavan also arrived there. An autorickshaw was hired and Smt. Kusum was taken to hospital. According to the statement of this witness, at the time when Smt. Kusum was burning, Murari had gone to market so as to purchase vegetables and there, his aunt and he, himself were only the persons present in the house. The witness also stated that he asked Smt. Kusum as to how had it happened to which reply was that she burnt herself. The witness also stated that he asked Smt. Kusum as to how had it happened to which reply was that she burnt herself. In cross-examination, the witness deposed that earlier Smt. Kusum had married to one in Bombay then in Nawalgarh and thereafter she married to his brother, Murarilal, third time, and that, Shri Gopal Somani, Madanlal Somani, Narsingh Prasad also came at the scene of occurrence and asked Smt. Kusum as to who did she burn to which she replied that in her in-laws house, all are insolvent so, she herself set on fire. 5. Pavan Kumar (Pw 3), another brother of Murarilal (appellant) and son of Mohani (appellant), deposed that after getting information about burning of his sister-in-law (Bhabhi) he reached to his house and saw that his sister-in-law was burning, and his aunt, Narbda and brother, Vimal Kumar were dropping water on the body of Smt. Kusum (his Bhabhi). 6. Govind Sharma (Pw 4) whose shop is said to situate near house of Murarilal (appellant), simply stated that the parties are known to him; at the relevant time, he was busy in his business and on harking that a lady burned, large number of people flocked at the house of the appellants, therefore, he also went there and saw that the wife of Murarilal was being brought down stairs duly wrapped in a guilt and then was taken to the hospital in a taxi. The witness further stated that he is not in a position to say as to what reason was given by Kusum about her burning. In cross-examination the witness disowned the portion quoted below - " HkhM+ ns[kdj eSa Hkh eqjkjh ds edku ij x;k Fkk eqjkjh dh vkSjr mij dejs esa tyh gqbZ Fkh og dg jgh Fkh eq>s vLirky ys pyksA " 7. From the above police statement of the witness (Pw 4), it cannot be inferred that Smt. Kusum was burnt by the appellants but, it can be inferred that when the prosecution places reliance upon such statement then prosecution case certainly becomes doubtful, because in case the aforesaid statement of the witness is correct then apparently, the deceased did not implicate the present appellant. This part of the police statement of the witness (Pw 4) was relied upon by the prosecution and that is why he was cited as a witness and has been produced to corroborate the aforesaid facts stated in the police statement. However, in view of the police statement it can, therefore, be said that at one time, the prosecution claimed that cause of burning of Kusum was homicidal whereas the said statement of the witnesses before the police shows that either it was a case of accident or suicidal. Though the said statement of Govind Sharma (Pw 4) is not at all helpful for the prosecution but certainly it makes the prosecution case doubtful. 8. Kamalkishore (Pw 5) whose shop is said to be adjacent to the house of the appellants, deposed that on the fateful day when he was on the shop, he saw large gathering flocked at the house of Murarilal and somebody from gathering was quothing that wife of Murarilal has burnt. Smoke was coming off from the house. The people were bringing down stair Smt. Kusum in a burning condition from the first floor, and most of the assembled persons were saying that she committed suicide. At the time when Smt. Kusum was brought down stair, Murarilal was not in the house and he at that time came from outside house and when Murarilal came inside his house, seeing his wife in a burnt condition, he started weeping. The witness further deposed that wife of Murarilal was taken to hospital by Murarilal and his brothers. In his cross-examination, the witness deposed that the people who assembled there at the house of Murarilal were saying that Smt. Kusum got herself burnt. This witness therefore appears to be directly fortifying the accused appellants' defence and verily, did not at all support the prosecution version. 9. Prithviraj (Pw 10), Judicial Magistrate, who recorded dying declaration of Smt. Kusum, in his cross-examination, deposed that before and after recording the statement of Smt. Kusum, Dr. Vinod Kumar was with him throughout, Smt. Kusum was loudly saying that she has been burnt and her mental condition was not like an ordinary woman. 10. 9. Prithviraj (Pw 10), Judicial Magistrate, who recorded dying declaration of Smt. Kusum, in his cross-examination, deposed that before and after recording the statement of Smt. Kusum, Dr. Vinod Kumar was with him throughout, Smt. Kusum was loudly saying that she has been burnt and her mental condition was not like an ordinary woman. 10. Ramavtar (Pw 11), neighbour of Satya Narain father of Smt. Kusum, deposed that at the time when Murari came to Nawalgarh to take his wife (Smt. Kusum) and it was said by him that wordy discussion took place in between his wife and mother. According to him, the witness (Pw 11) also heard about the incident in the manner that her in-laws have burnt Smt. Kusum. On harking the said mishap, the witness is said to have come to Sikar alongwith Anil Kumar & Jugal, and gone to hospital where they saw Smt. Kusum alive groaning. The witness also stated that at the time of their arrival at the hospital, Smt. Kusum was not conscious and after an hour, she demanded water and was given water and at that time after sitting nearby her they asked her about the incident to which she replied that her mother-in-law and husband had burnt her after sprinkling kerosene oil on her body. According to him, the witness is an attesting witness of inquest report - during the preparation of which, he did not disclose the fact about the oral dying declaration said to have been made before him. In his cross-examination, the witness also stated that oral dying declaration was made by Smt. Kusum next day of the incident at about 9 or 9.30 P.M. but, in the second breathe, he quoted that it was made at about 9 or 9.30 O'clock in the morning. 11. Gopal (Pw 13) who is also attesting witness of Panchayatnama, in his examination-in-chief, clearly deposed that Smt. Kusum died at her own. The witness has neither been declared hostile nor has been confronted with his police version. Satya Narain (Pw 14), father of Smt. Kusum, has given a very natural version and apparently did not implicate any of the accused. Gopal (Pw 13) who is also attesting witness of Panchayatnama, in his examination-in-chief, clearly deposed that Smt. Kusum died at her own. The witness has neither been declared hostile nor has been confronted with his police version. Satya Narain (Pw 14), father of Smt. Kusum, has given a very natural version and apparently did not implicate any of the accused. He stated that his daughter was married to Murari who brought her from Navalgarh to Sikar and further more, on the day, when Murari took Smt. Kusum to Sikar, he (witness) also left for Bombay where he had received a telephonic call from his brother that condition of Smt. Kusum was serious. Thereupon, the witness is said to have gone to Sikar and found that Smt. Kusum died. In the earlier part of the Court statement, the witness (Pw 14) stated that when he left Sikar for Bombay, Murarilal (appellant) and Smt. Kusum (deceased) had come at the Sikar station to see him off. According to his statement appearing in examination-in-chief before the Court, he was unable to say as to in what condition Smt. Kusum was living at her in-laws house; and no dowry was ever demanded by the appellant nor any dispute arose or raised at the instance of in-laws of Smt. Kusum in respect of taking any thing nor any counteract appeared in between-in-laws of Smt. Kusum or with her, inasmuch as after her marriage, Kusum did not make any complaint to him. 12. Madan Gopal (Pw 15), attesting witness of the various memoes in his examination-in-chief, deposed that at the time of incident he also went to the house of Murarilal where a large number of persons were flocking and most among them were asking Smt. Kusum about the incident and at that time, she quothed that she, herself sprinkled kerosene oil on her body and burnt himself. 13. Vishamber Dayal (Pw 16), was S.H.O. P.S. Kotwali (Sikar) and Hari Prasad Sharma (Pw 17) was Circle officer at Sikar on the day of incident. Ram Swarup (Pw 18) was A.S.I. at police out-post Kalyan Circle in Sikar, who recorded Parcha Bayan (Ex. P 25) given by Smt. Kusum (deceased). Dr. Prakash Chand Soni (Pw 12) examined the injuries on the person of Smt. Kusum and wrote a letter (Ex. Ram Swarup (Pw 18) was A.S.I. at police out-post Kalyan Circle in Sikar, who recorded Parcha Bayan (Ex. P 25) given by Smt. Kusum (deceased). Dr. Prakash Chand Soni (Pw 12) examined the injuries on the person of Smt. Kusum and wrote a letter (Ex. P. 18) to Incharge Police Out-post Kalyan Circle, and according to him, this was a case of 90% burns. Dr. Vinod Kumar Khanna (Pw 6) was one of the members of the Medical Board which conducted the autopsy on the dead body of Smt. Kusum. In his cross examination, the witness admitted that in case of 90% burns, the patient remains conscious only for short span but, mental condition remains normal but afterwards, condition of the burnt patient becomes deteriorated and distressed and his mental condition becomes abnormal. 14. Having benefited from the enlightments (ut supra) derived from the entire evidence on record, in our opinion, there is no direct/indirect evidence muchless no circumstantial convincing evidence regarding commission of the offence of uxoricide by appellant, Murarilal and of murder by appellant, Mohani. And, the prosecution case rests entirely on dying declarations said to have been made by the screaming bride. Moreover the circumstances as catalogued by the trial court fell short of establishing beyond doubt the appellants' participation in the murder and some vital factual components of these circumstances which were pointers towards the guilt of the appellants had not been established. That apart, circumstantial evidence relied upon by the prosecution and listed by the trial court, are incomplete and capable of explanation of any other hypothesis than that of the alleged guilt of the accused. The dying declarations of Smt. Kusum in the facts and circumstances of the case cannot be taken into account as it suffers from serious infirmities. 15. However, the following pieces of unimpeachable evidence make a complete chain inevitably which are axiomatic, so as to discard the dying declaration and the entire prosecution evidence as it leads to conclude that the prosecution utterly failed to bring home the peccant to the appellants beyond doubt; and that atleast the appellants were not the perpetrators of the ghastly crime but, the deceased, herself, was responsible for burns. 16. Infirmities & defects appeared in the evidence of Anil Kumar (Pw 8) & Ramavtar regarding oral dying declaration said to have been made by the deceased before them, have already been pointed out supra. 16. Infirmities & defects appeared in the evidence of Anil Kumar (Pw 8) & Ramavtar regarding oral dying declaration said to have been made by the deceased before them, have already been pointed out supra. Ramavtar (Pw 11) at one time stated that facts of the incident were narrated by the deceased in their presence at 9/9.30 p. m. but in second breathing, the witness stated that it was given at 9.30 O'clock in the morning. This shows that the witnesses in their anxiety to go whole hog to support the charge are prone to exaggerate matters. Moreover, his statement has not at all been corroborated by Anil Kumar (Pw 8), brother of the deceased, who has given out different version on the point of oral dying declaration. The evidence of both these two witnesses (Pw 8 and Pw 11) is further belied by the statement of Jugal Kishore (Pw 9) who was admittedly with the afore-named witnesses (Pw 8 & Pw 11). Jugal Kishore (Pw 9) nowhere stated that he had also gone to the hospital where Smt. Kusum was admitted, and he did not speak a single word with regard to any oral dying declaration. Further, both, the witnesses (Pw 8 & Pw 11) in their statements deposed that they are resident of Nawalgarh where they were told that Kusum has been burnt, meaning thereby they tried to make out a case of homicidal but, unfortunately, none of the persons who are said to have informed this trioka (Pw 8, Pw 9 & Pw 11) about the so-called homicide in produced. 17. Thus, the alleged oral dying declaration by Kusum before Anil Kumar (Pw 8) & Ram Avtar (Pw 11) does not inspire confidence while there is contemporaneous statement of Anil (Pw 8) that Kusum had been unconscious throughout and the oral dying declaration was made only when the deceased had been regaining consciousness in part. Ramavtar (Pw 11) stated that Smt. Kusum regained consciousness after one hour of their arrival at the hospital. Therefore, there are incongruities regarding time of the alleged dying declaration before the aforenamed witnesses. Moreover, Ramavtar (Pw 11) was signatory to inquest report, and, therefore, at the time of preparation of the inquest report, he could have quothed the factum of dying declaration but that too in missing. 18. Letters (Arts. Therefore, there are incongruities regarding time of the alleged dying declaration before the aforenamed witnesses. Moreover, Ramavtar (Pw 11) was signatory to inquest report, and, therefore, at the time of preparation of the inquest report, he could have quothed the factum of dying declaration but that too in missing. 18. Letters (Arts. 1 & 2) have wrongly been relied upon by the trial Judge Authorship of these letters have not been duly proved or established. The words, "Aaj Peechhe Koi Taqleef nahi doonga" is not suffice to mean that the author thereof had the motive to take the life of the deceased and that alone is not suffice to bring home the peccant to the appellants beyond doubt. 19. Furthermore, no inference can be drawn against the appellants from the contents of the letters, ibid, so as to connect them with the crime rather its contents show that financial condition of appellant, Murarilal was not so sound and was hand to mouth. This may be the circumstances of embarrassment to both Murarilal (appellant) and Smt. Kusum (deceased), and, therefore, it cannot be ruled out that the circumstances of hunger might lead to commit suicide by either spouse. 20. Learned trial Court fell in error in drawing presumption against the appellants by the presence of kerosene oil and match box. The presence of kerosene oil and match box is natural factor in a family, and so no adverse inference can be drawn. 21. Medical evidence does not rule out possibility of cause of suicide. Dr. V. K. Khanna (Pw 6) in his statement admitted that from the nature of burns it could not have been ascertained whether it was a case of suicide or homicide. Pertinently, learned Magistrate after recording dying declaration (Ex. P. 16) had got affixed right thumb impression of the deceased upon the same. It signifies that her hand or atleast her thumb had not been burnt. Non-burnings of palm and thumbs is suggestive of suicide. 22. The cloth with which mouth of the deceased is said to have been gagged, was not placed in court. Absence of recovery of the material with which mouth is said to have been gagged is an important circumstance so as to cast a speck on the story, because significant link in the chain of material circumstances in case of missing is fatal to the prosecution. Absence of recovery of the material with which mouth is said to have been gagged is an important circumstance so as to cast a speck on the story, because significant link in the chain of material circumstances in case of missing is fatal to the prosecution. Similarly, a bucket with which water is said to have been dropped on the body of Smt. Kusum, has also not been produced in evidence. 23. In K.R. Reddy v. Public Prosecutor, AIR 1976 SC p. 1994 , the Apex Court observed that, "The dying declaration is undoubtedly admissible under Section 32 and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make file statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration." Even after applying the principles laid down in the cited decision (supra), a dying declaration can be relied upon only when truthfulness of it is not doubtful. 24. As discussed earlier, all the prosecution witnesses, except, Pw 8, Pw 9 & Pw 11 and other formal witnesses have deposed that just after the incident they reached at the scene of occurrence and they asked Smt. Kusum as to what had happened and the reply was that she burnt herself. So, as against oral and written dying declarations, parallel evidence of contradicting the allegation made in the dying declaration is there. 25. Therefore, second set of evidence adduced by the prosecution is not supporting rather exonerating the appellants. Moreover, number of witnesses for the prosecution have deposed that at the relevant time, i.e. incident day, both the appellants were not there in the house. 25. Therefore, second set of evidence adduced by the prosecution is not supporting rather exonerating the appellants. Moreover, number of witnesses for the prosecution have deposed that at the relevant time, i.e. incident day, both the appellants were not there in the house. Only, Suresh Kumar (Pw 1) has been declared hostile but, none of other witnesses who did not support the prosecution has been declared hostile. It is thus clear that these witnesses have not been disowned by the prosecution and have not been cross-examined on the point which in their statements, was unbelievable and unfavourable to the prosecution. In these circumstances, there is nothing to disbelieve the testimony of these witnesses who did not support the prosecution especially when the prosecution has not disowned and cross-examined them, on the points which were unfavourable to the prosecution. According to the decision in Harchand Singh v. State of Haryana, AIR 1974 SC p. 344 , in a case where the prosecution leads two sets of evidence, each one of which contradicts the other, it is difficult to found the conviction of the accused. 26. The contention of the learned Public Prosecutor cannot be rejected that there is no necessity to corroborate truthful dying declaration and the conviction can be based on the basis of such uncorroborated dying declaration because, similar view has been taken by the Apex Court in Kusa v. State of Orissa, AIR 1980 SC 559 . However, in the cited decision, ibid, it has been observed that dying declaration if found to be true can be acted upon without any corroboration. It is thus clear that the dying declaration should be free from any infirmity, doubt and untruthfulness. If it is not above suspicion in that situation it is necessary to look into corroboration. 27. In the instant case, two written dying declarations have been brought on record. First dying declaration (Ex. P. 25) was recorded by A S.I. - on the basis of which F. I. R. (Ex. P. 24) has been chalked out and the second one (Ex. P. 16) was recorded by Prithviraj (Pw 10) Magistrate. 28. Looking to the entire facts and circumstances of the case and after perusal of the record, we are of the opinion that there is nothing on record to show that the dying declarations (Ex. P. 16 & Ex. P. 24) has been chalked out and the second one (Ex. P. 16) was recorded by Prithviraj (Pw 10) Magistrate. 28. Looking to the entire facts and circumstances of the case and after perusal of the record, we are of the opinion that there is nothing on record to show that the dying declarations (Ex. P. 16 & Ex. P. 25) have not been recorded or that the same have been fabricated. Here, only question which arises for consideration of these dying declaration is as to whether the facts narrated therein are true and above suspicion. 29. We have carefully scrutinised and examined these dying declarations in the instant case, as is required in view of the principles laid down in K.R. Reddy v. Public Prosecutor (supra). We are of the opinion that both these dying declarations as stated earlier, do not inspire confidence. Dying declaration appearing in Ex. P. 25 appears to be false as at one point of time, Smt. Kusum stated that Murarilal and her mother-in-law, Mchani, had set her ablaze whereas contemporaneously, she alleged that a bucket full of water was dropped on her body by them which axiomatically explains contradictions. If the intentions were to take her life, surprisingly, why should appellant Murarilal have tried to extinguish fire from the body of the deceased by dropping water from a bucket, and why should the appellants have made prompt attempt to render medical aid to the deceased taking her immediately to the hospital after the incident. Dying declaration (Ex. P. 16) recorded by the Magistrate also contains lot of incongruities and improbabilities. Smt. Kusum in Ex. P. 16 stated that she did not know name of mother-in-law. She also alleged that her mouth was gagged with cloth and thereafter both the appellants hurriedly sprinkled kerosene oil and set her aflame and ran down stairs. She also blurted out that she raised an alarm, hearing which outsiders came there and throw water on her burnt body. She does not assign any reason for setting her on fire. She specifically denied the demand of any dowry. She alleged that the husband was unable to earn and therefore, had burnt her. But, on the other hand, voluminous record is there to show that Murarilal used to go for working as `Paledari' and was earning his livelihood. She does not assign any reason for setting her on fire. She specifically denied the demand of any dowry. She alleged that the husband was unable to earn and therefore, had burnt her. But, on the other hand, voluminous record is there to show that Murarilal used to go for working as `Paledari' and was earning his livelihood. It is thus clear that genesis of the offence given out by Smt. Kusum in her dying declarations is without any foundation and is absolutely false. 30. When we read two written dying declarations (Ex. P. 25 & P. 16), contemporaneously it appears that patent falsities are there. They are self contradictory in nature. In one dying declaration it has been stated that the water was dropped on her burnt body by the appellant (Murarilal) and some outsider but, in other dying declaration, stated that water was thrown by her brother-in-law, Vimal Kumar. In one, she stated that she was gagged but in other, she alleged that she made hue and cry and after hearing the same, outsiders came and they threw water on her body. If one of the dying declaration is held to be true then other becomes absolutely false because after gagging mouth, she would not have been able to make any hubbub and could not have attracted the outsiders. 31. Looking to the entire evidence of the case, it cannot be over-looked that number of persons had not assembled at the residence of the appellants. A question arises as to how the people assembled there because, none of the prosecution witnesses have deposed that they made any hue and cry which attracted the outsiders. Only the statement is of Smt. Kusum who deposed that she attracted the outsiders by making hullabaloo. But, if this part of her statement are believed that she was gagged with cloth, then other part of her statement absolutely casts a speck on the veracity of her statement. 32. Learned Public Prosecutor contended that the lady was over-powered by the accused-appellants and unless regular pouring of the kerosene is there 90% burns could not have been caused. In these circumstances, learned Public Prosecutor contended that both the appellants actively participated in the burning of Smt. Kusum. 32. Learned Public Prosecutor contended that the lady was over-powered by the accused-appellants and unless regular pouring of the kerosene is there 90% burns could not have been caused. In these circumstances, learned Public Prosecutor contended that both the appellants actively participated in the burning of Smt. Kusum. We are unable to accept this contention because, even if the position given out by the learned Public Prosecutor would have been there, then in that situation also, the appellants atleast should have also sustained burns. When the fire was there then it was quite impossible for either of the appellants not to have poured with kerosene and in these circumstances, it is plausible that they could not sustain any burn injuries moreso when according to the learned Public Prosecutor, the appellants had over-powered the victim and regularly poured kerosene on the body of Smt. Kusum, resulting in 90% burns on her body. The dying declaration recorded by the Magistrate is in the narrative form and not in the question and answer form. 33. From the letter (Art. 2) it appears that the deceased was in a state of mental disorder and looking to the entire facts and circumstances of the case, it appears that she was a frustrated lady. That apart, it has also come on record that appellant Murarilal was a poor person and he was not in a position to maintain his wife in a rich manner. 34. The circumstances apparent from the record also show that Smt. Kusum was coherent lady and was not in a position to give straightway statement. Her memory was fellable. She in her dying declaration did not give correct dates of important happenings such as their marriage, and even at one point of time, she stated that she did not know name of her mother-in-law. Under these circumstances, it cannot be said with certainty that she could have given out correct facts about the incident. The dying declaration further becomes doubtful due to the reason apparent from the circumstances stated therein that she was brought by her husband in a fraud manner on the pretext that his mother was ill. By this statement, Smt. Kusum tried to create circumstances against the appellants and it raises a suspicion that she was biased in favour of the prosecution or ill-disposed towards the accused. By this statement, Smt. Kusum tried to create circumstances against the appellants and it raises a suspicion that she was biased in favour of the prosecution or ill-disposed towards the accused. But, unfortunately, this part of her statement could not have been corroborated by her own father and brother appeared in the witness box. Her father has given out cordial atmosphere as he deposed that her daughter, Kusum was taken and fetched by Murarilal happily. It, therefore, appears that Smt. Kusum tried to falsely implicate the present appellants. And, her statement does not disclose a picture of straight-forwardness and forthrightness. 35. There cannot be any dispute that the reliability of the dying declaration should be subjected to a close scrutiny considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. 36. Adopting from the declaration in Mada Singh v. State of Rajasthan, 1985 Cr.L.R. Raj. p 73 , the Courts are required to closely scrutinise the deposition of the dying man in the light of checks available on record and not taking the dying declaration as a gospel truth on the assumption that the departing man would not commit the sin of fabricating false statement against innocent person. 37. As already stated, evidently from the statement of Dr. Vinod Kumar Khanna (Pw 6) and other prosecution witnesses, the condition of injured Smt. Kusum (deceased) was critical because of 90% burns of her person. Thus, it should be evident from the dying declaration that the person recording it had satisfied himself about the fitness of the deponent to give the statement. On perusing Ex.P. 16 & Ex.P. 25 we did not find any material to suggest that the Magistrate had satisfied himself about the fitness of the injured to give statement prior to recording the statement. Other prosecution witnesses appeared in the witness box stated that Smt. Kusum was groaning due to serious burns; and had been unconscious throughout and the oral dying declaration was recorded only when the deceased had been regaining consciousness in part. Other prosecution witnesses appeared in the witness box stated that Smt. Kusum was groaning due to serious burns; and had been unconscious throughout and the oral dying declaration was recorded only when the deceased had been regaining consciousness in part. That apart, there is a statement of Dr. Vinod Kumar Khanna (Pw 6) to the effect that in case of 90% burns, the patient remains conscious only for a short span and mental condition remains normal but because of 90% burns afterwards, condition of the burnt patient becomes deteriorated and distressed in addition to becoming mental condition abnormal. From this statement it can easily be inferred that life was ebbing fast in the patient. There is no verification elsewhere to the effect that the injured was fit to give statement. The term `fit to give statement' means the fitness of the deponent physical as well as mental. A person may be unconscious but mentally he may not be in a fit state to understand what he deposed or the implications of his utterance. It is the verification of fitness of the deponent as evident from the written dying declaration which is of importance and not the subsequent statement of the person recording the statement or present at the time. 38. Looking to the critical condition of the deceased because of burns on her body and to the circumstances appearing in the prosecution evidence on record, it can precisely be deduced that the deceased was not fit to give statement. That apart, as stated earlier, there are inconsistencies between two dying declaration recorded at different times by different authorities, which too do not tally with each other and differ on material points indicated above and they raise a suspicion regarding their genuineness and truthfulness, muchless the subsequent improvement in the second dying declaration constrain us to discard the second dying declaration also. 39. The reasons for basing the conviction against the appellants dispelled by the trial court in its judgment under appeal before this court are manifestly untenable. Indeed, they are no reasons and were mere frivolities simulated as `reasons'. These reasons were again figments of imagination, phantoms conjured out of Very nothing. 40. In our opinion, the approach of the learned trial Judge could and cannot be said to be a judicial approach. Indeed, they are no reasons and were mere frivolities simulated as `reasons'. These reasons were again figments of imagination, phantoms conjured out of Very nothing. 40. In our opinion, the approach of the learned trial Judge could and cannot be said to be a judicial approach. Prepossessed by suspicion, he smelled something sinister in the evidence of each and every witness examined by the prosecution. Instead of logical ratiocination, he depended for his conclusions on speculation and conjectures. We want to say no more. Suffice it to say that the view of the evidence taken by the learned trial Judge was not reasonably possible. 41. In view of the above discussion, we feel hesitant to uphold the conviction based mainly on the testimony in the form of the two infirm dying declarations recorded in the circumstances raising a doubt about their genuineness and truthfulness. This being the state of affairs, the judgment of the learned Additional Sessions Judge under challenge in this appeal cannot be sustained and the appellants deserve to be acquitted. 42. Consequently, this appeal is allowed. The judgment of conviction and sentence passed against the appellants is set aside, and Murarilal alongwith Mohani, both the appellants herein, are acquitted of the charge levelled against them. Murarilal is in jail and shall be set at liberty forthwith if not required in any other case. Mohani is on bail. She need not surrender. Her bail bonds stand cancelled.Appeal allowed. *******