JUDGMENT 1. Learned Additional Sessions Judge No. 3 Kota, has convicted the accused appellant Pushpa Bai, mother in-law of deceased Brij Kanwar, vide his judgment dated 25-1-1992, under section Indian Penal Code and sentenced her to undergo life imprisonment and to pay a fine of Rs. 100/-; in default of payment of fine, to further undergo R.I. for 10 days. 2. The facts of the case are short and lie in narrow compass. The marriage, of deceased Brij Kanwar had taken place with Hanuman son of the accused-appellant Pushpa Bai, about 9.10 years prior to the date of the occurrence. On 7-12-1990, the deceased Brij Kanwar is said to have been done to death by the accused-appellant Pushpa Bai her mother-in-law and as per the prosecution case, the deceased hid gone to the house of her parents without permission of the accused appellant mother-in-law and at this the accused appellant became enraged. When the deceased Brij Kanwar returned to the house. the accused appellant scolded her and on the day of the occurrence, at about 5 p.m. first she give beating to the deceased with 'Dhovana' (an instrument of wood to wash clothes) and then sprinkled kerosene on her and with the help of a match stick set fire to her clothes, as a result of which she died. PW 1 Abdul Rehman was ASI posted then at Police Station Kaithuni Pole, Kota and at the time of occurrence was also In-charge of the Police Station and at about 5 p.m. Bajrang Lal, husband of the accused appellant and father in law of the deceased Brij Kanwar, informed him (Abdul Rehman) that his daughter-in-law Brij Kanwar had died on account of burn; in the house and he should accompany to the house and take necessary proceedings He made report in the police station and along with Dhannalal, Prahlad, Surajmal and Ghanshyam reached the house of the accused appellant and saw that many neighbours had assembled there and the deceased Brij Kanwar was lying in a room in the first floor with severe burns and was crying Water was lying in the room and there was smell of kerosene. A small tin (Pipi) of kerosene was lyine there. She was taken to the hospital and was admitted in the Surgical Ward 'A' in M.B.S. Hospital. Kota. There, the Station House Officer, Police Station Kaithuni Pole. A small tin (Pipi) of kerosene was lyine there. She was taken to the hospital and was admitted in the Surgical Ward 'A' in M.B.S. Hospital. Kota. There, the Station House Officer, Police Station Kaithuni Pole. Kota is said to have recorded her dying declaration (Ex. P. 1) Parcha Bayan in the presence of Dr. Rajendra Singh Panwar (PW-11), Medical Jurist, M.B.S. Hospital, Kota who attested the thumb mark of the deceased Brij Kanwar. The Parcha Bayan was taken as an FIR. 3. The doctor conducted the autopsy on the dead-body of the deceased Brij Kanwar and he did not find any external injury on her person but found that there was smell of kerosene on the clothes as well as burns. There were 100% burns. In the opinion of the doctor, the deceased died due to shock as a result of extensive burns. However, he preserved the tissues for chemical examination. 4. The accused was arrested and thereafter a charge sheet was filed against her. The police during investigation had taken possession of the Bed Head Ticket and other record. After the close of the prosecution evidence, the accused appellant was examined under section 313 Criminal Procedure Code to explain the circumstances appearing against her. She took a bare plea of denial. According to the appellant, she was on the ground floor of the house whereas the deceased was on the first floor and when she went to the first floor, she saw that the deceased was burning and water was taken in a bucket and attempts were made to extinguish the fire. Defence examined as many as four witnesses including DW 4 Dr. Jambu Kumar Patni who is said to have examined the deceased in Surgical Ward 'A' at M.B.S. Hospital, Kota and be has proved the entry in the Bed Head Ticket. 5. DW-3 is Ramkanya Bai a tenant residing in the same house of the accused appellant, in which the deceased was residing and she has been examined to prove that the relations of the accused appellant and the deceased were cordial. 6. Learned Addl. Sessions Judge placed reliance on the evidence of dying declaration and convicted and sentenced the accused appellant as aforesaid. 7. Learned counsel for the appellant contended that the only evidence is of dying declaration and that too made to PW-1 Abdul Rehman. ASI. 6. Learned Addl. Sessions Judge placed reliance on the evidence of dying declaration and convicted and sentenced the accused appellant as aforesaid. 7. Learned counsel for the appellant contended that the only evidence is of dying declaration and that too made to PW-1 Abdul Rehman. ASI. He contends that the statement of PW 1 Abdul Rehman or the Parcha-Bayan (Ex P.1) cannot be relied upon because according to the learned counsel, there is no evidence on record that when the dying declaration (Ex.P. 1) is said to have been recorded, the deceased was in a fit state of mind. Rather, according to the learned counsel, there were 100% burns on the body of the deceased and therefore, she could not have been in a fit stale of mind to make any statement. No attempt was made by PW 1 Abdul Rehman to get a certificate from the doctor or the Ward In-charge to the effect that the deceased was in a fit state of mind to give her statement Learned counsel contends that a bare look at the thumb mark of the deceased on the Parcha Bayan (Ex.P,1) would show that thumb was in burnt condition and if she would have been in a fit state of mind, the thumb impression should have been clear. Learned counsel further contends that there was no motive for the crime. The marriage had also taken place about 9-10 years ago. Therefore, there was no occasion for the accused-appellant for causing death of her daughter-in-law Brij Kanwar. Learned counsel contends that it is a case of no evidence. As per the evidence of PW 2 Indra Kumar Saxena and PW 3 Shabir Hussain, the deceased had told them that she was preparing tea at about 4 p.m. on stove. The police also found that there was a stove in the room where the dead body of the deceased was lying The case rests entirely on the dying declaration (Ex.P.1) said to have been made to Abdul Rehman (PW 1). Abdul Rehman (PW 1) as per his statement had reached the house of Bajrang Lal, husband of the accused-appellant after Bajrang Lal had informed him that his daughter-in-law was lying in the house in burnt condition. After making an entry to this effect, PW 1 Abdul Rehman is said to have reached the place of occurrence, accompanied by Dhana Lal, Prahlad, Surajmal and Ghanshyam. After making an entry to this effect, PW 1 Abdul Rehman is said to have reached the place of occurrence, accompanied by Dhana Lal, Prahlad, Surajmal and Ghanshyam. According to the statement of PW 1 Abdul Rehman, both Munna Saxena and Sahbir Ali were present when the deceased is said to have made oral dying declaration at the house on the first floor when he reached there and the deceased was in senses but surprisingly the prosecution has not examined any of them and if examined, they could have corroborated as to whether or not the deceased had made any oral dying declaration, as alleged by PW 1 Abdul Rehman Even these persons have not been named in the calendar of witnesses. It has come in the statement of PW 1 Abdul Rehman that other persons were also present, rather a number of persons were present, when they reached the house of accused appellant but none has come forward to support the case of the prosecution that the deceased had made any oral dying declaration to PW 1 Abdul Rehman. In cross examination. PW 1 Abdul Rehman stated that about 10-15 males and females as also children were at the house when he had reached there but he was unable to disclose the names of those persons except two persons 8. As stated above, the prosecution case rests on the oral dying declaration (Ex.P. 1). PW 1 states that since the condition of the deceased was serious. she was rushed to hospital in a Jeep and was admitted in the hospital. He gave a written requisition to the Medical Officer and the Medical Officer said that the deceased was in a fit state of mind to give her statement, but no such requisition to the doctor or the certificate that the deceased was in a fit state of mind and that her condition was good enough to make a statement, has been filed. It is a settled law that before the dying declaration can be relied upon, it is the duty of the prosecution to satisfy the court that at the time when the dying .declaration is said to have been made the maker of it was in a fit state of mind and could have made the statement and further that the statement was made voluntarily and without influence of anybody. A look at Ex.P. 1 would show that it appears to have been recorded on 7-9-90 at 5:40 p.m. in M B.S. Hospital, Female Surgical Ward, Kota. Medical Jurist made attestation at 5:50 p.m. on the Parcha Bayan (Ex. P 1) and he has not even said that the deceased was in a fit state of mind to give her statement PW 11 Dr Rajendra Singh Panwar was neither In-charge of the Surgical Female Ward where the deceased had been admitted as an indoor patient nor had been called by the doctor in-charge of that Ward but he was the Medical Jurist in the Hospital. He has stated that an officer from the Police Station Kaithunipole came to him and asked him that there is a serious burn case in the Female Surgical Ward and that he should accompany and examine her and should tell him as to whether she is in a fit sate of mind to give statement. He accompanied the police officer at about 5 p m. and saw that the woman had 100% burns on her body and her condition was serious but she was in a fit state of mind to give statement; and in his presence, the police officer recorded statement of the deceased. He has stated that the statement is Ex P. I and he had attested it. Even Dr. Y.K Sharma (PW 10) has stated that there were 100% burnt on the body of the deceased. Mere attestation does not mean that it is the certificate in respect of the physical and mental condition of the patient who is confined in hospital or whose dying declaration is recorded. A look at the Bed Head Ticket along with the statement of DW 4 Dr Jambu Kumar Patni is necessary Some of the entries on the Bed Head Ticker are in the handwriting of DW 4 Jambu Kumar Patni DW 4 has stated that he had examined Brij Kanwar at 5:40 p.m and he found that she had 100% burns on her body. He was unable to get the vein for administering drip or injunction and therefore, the vein of the feet was taken out for giving injunction etc.He states that the patient was under shock and her general condition was bad and he has mentioned her condition in the Bed Head Ticket from A to D under instructions of the Head of the Department, Dr. Sharma. He had taken about 10-15 minutes to examine her and at that time, no other doctor or the police officer was present. He is unable to say as to whether or not she was in a fit state of mind to give statement. Therefore, from his statement it can be said that at 5:40 p.m. he had examined the deceased and the examination took place for about 10:15 minutes. If the dying declaration (Ex. P 1) would have been recorded at 5:40 p m. as is purported to have been recorded, then. Dr DW 4 should have been present there. Therefore, it cannot be said on the basis of the record that the dying declaration was recorded at 5:40 p m. as alleged by PW-1 Abdul Rehman. A look at the Rajasthan Police Rules, 1965 is necessary at this stage Rule 6.22 of the Raj Police Rules of 1965 provides as to how the dying declaration should ordinarily be recorded. It provides the dying declaration shall be recorded by a Magistrate It further provides that the person making dying declaration shall if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement and if no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the Police department and with the parties concerned in the case. And if no such witness can be obtained without risk of the injured person dying before his statement can be recorded. it shall be recorded in the presence of two or more police officers It can therefore be said that the dying declaration should ordinarily be recorded by a Magistrate and if there is no sufficient time to call a Magistrate it can also be recorded by a police officer in the presence of two or more witnesses. it shall be recorded in the presence of two or more police officers It can therefore be said that the dying declaration should ordinarily be recorded by a Magistrate and if there is no sufficient time to call a Magistrate it can also be recorded by a police officer in the presence of two or more witnesses. It will depend upon on the facts of the case and situation of the case as to whether or not dying declaration can be recorded by an ASI. The court must be satisfied about the truth of the dying declaration and about the fact that the maker of the dying declaration was possessed of his reason to make a lucid statement and was in senses to make the dying declaration. In the instant case, we are unable to say that when the dying declaration is said to have been made, the deceased was or could have been in a fit state of mind to make dying declaration, when there were 100% burns on the body and when the vein was not available and injunction could not be given and a vein from her feet was taken out. The certificate about the fit state of mind of the maker of the dying declaration should have been ordinarily of the doctor of the Ward. Mere attestation, as said above, cannot be the certification that the deceased who is said to have made dying declaration, was in full senses or possessed of reason to make a lucid statement. That apart, we have already said that there should have been independent witnesses when the oral dying declaration is said to have been made but in the absence of any corroboration, oral dying declaration appears not to have been made. The defence theory is that the deceased died while preparing tea as a result of bursting of stove. Even utensils were found at the place of occurrence. thus, in the instant case, the Possibility of the death being accidental as per the case of the defence, is probable. Consequently, we are unable to place reliance on the dying declaration (Ex.P.1). There is no other evidence to show that it was the accused appellant who caused death of the deceased. 9. Consequently, we hereby allow this appeal. thus, in the instant case, the Possibility of the death being accidental as per the case of the defence, is probable. Consequently, we are unable to place reliance on the dying declaration (Ex.P.1). There is no other evidence to show that it was the accused appellant who caused death of the deceased. 9. Consequently, we hereby allow this appeal. set aside the judgment dated 25-1-1992 passed by the Additional Sessions Judge No 3, Kota and acquit the appellant of the charge under section 302 Indian Penal Code. She is in jail. She shall be released forthwith if not required in any other case. The record of the case be sent back to the trial court.Appeal allowed. *******