Honble GUPTA, J. – Smt. Chhawari Kanwar having been convicted by the learned Additional Sessions Judge No. 1, Jodhpur vide judgment dated 20.10.1994 under Sec. 302 IPC has preferred this appeal. (2). The prosecution story, in brief, is this. On 5.5.1989 at about 3.15 p.m. the S.H.O., Police Station Shastri Nagar, Jodhpur received a telephonic message that one Smt. Sharda (aged 20 years) resident of Bhagat-ki-kothi, Jodhpur has been admitted in the hospital as a burn case. On this, Bhanwarlal, ASI was sent to the hospital and he thereafter approached Shri Kailash Chand Joshi, ACJM No. 3, Jodhpur for recording dying declaration of Smt. Sharda. Shri Joshi recorded her statement at 11.45 p.m. Smt. Sharda could not survive and dies on 6.5.1989 at 10.35 p.m. The post-mortem examination of the body of Smt. Sharda was conducted by PW 14 Dr. V.K. Malhotra. Thereafter, the police registered a case under Sec. 302 IPC. After the completion of investigation, the police submitted the challan against the accused appellant. The learned Sessions Judge framed a charge under Sec. 304-B IPC. An alternative charge under Sec. 302 IPC was also read over to the accu- sed. The prosecution examined PW 1 Hira Lal, PW 2 Ramesh, PW 3 Jugraj, PW 4 Bhanwarlal, PW 5 Shankar Lal, PW 6 Chhagan, PW 7 Om Prakash, PW 8 Moolchand, PW 9 Chandrakanta, PW 10 Gaindi Devi, PW 11 Pukhraj, PW 12 Jai Ram, PW 13 Bhanwarlal, PW 14 Dr. V.K. Malhotra, PW 15 Shri Kailash Chand Joshi, PW 16 Rajendra Kumar Joshi, PW 17 Smt. Prabha Tak and PW 18 Naval Kishore. Accused in her statement recorded under Sec. 313 Cr. P.C. stated that the witnesses have given false statements against her and that she neither harassed Sharda nor did she make a demand of dowry nor did she cause her death. Accused examined DW 1 Harjiram. DW 2 Premraj, DW 3 Ramchandra, DW 4 Shivraj and DW 5 Heeralal in defence. The learned Sessions Judge after hearing the parties acquitted Smt. Sharda under Sec. 304-B, but convicted her under Sec. 302 IPC and sentenced her to undergo imprisonment for life and pay a fine of Rs. 100/- Hence, this appeal. (3). The arguments of learned counsel for the appellant and learned Public Prosecutor have been heard and the record perused. (4). The contention of Mr. 100/- Hence, this appeal. (3). The arguments of learned counsel for the appellant and learned Public Prosecutor have been heard and the record perused. (4). The contention of Mr. Soni, learned counsel for the appellant was that the learned trial Court has committed error in relying on the dying declaration Ex. P.17 as the prosecution had failed to prove that Smt. Sharda was in fit state of mind to give such a statement. Mr. Soni, inviting our attention to this fact that it was a 100% burn case, contended that she could not give such a coherent statement as has been recorded by Shri Joshi. Taking us through the evidence, he tried to show that Smt. Sharda was unconscious all the time and was also under the effect of sedatives and therefore, she could not give statement. He further submitted that the defence case that Smt. Sharda caught fire all of a sudden while preparing tea on the stove should have been believed. Mr. Soni also submitted that the learned trial Court has disbelieved the prosecution version that the deceased was being harassed for dowry and, therefore, there could not be any motive for the accused to kill Sharda. He has placed reliance on the cases of K. Ramchandra Reddy vs. Public Prosecutor (1), Kishore vs. State of Raj. (2) and Deepak Baliram Bajaj vs. State of Maharashtra (3). (5). On the other hand, the contention of the learned Public Prosecutor was that Shri Joshi, Munsif Magistrate had no reason to record incorrect statement of the deceased and, therefore, it should be presumed that Sharda was in a fit state of mind and she had given the statement Ex. P.17. It was contended that even if the doctor who had certified that Smt. Sharda was in a fit state of mind to give statement was not examined, it should profound proved that Sharda was in fit state of mind to give the statement. It was further pointed-out the learned Public Prosecutor that Smt. Sharda had also given similar statement to her mother and father and, there- fore, it should be found proved that the accused had poured kerosene on Sharda and had burnt her. (6). We have carefully considered the arguments advanced on behalf of the parties. (7). It was further pointed-out the learned Public Prosecutor that Smt. Sharda had also given similar statement to her mother and father and, there- fore, it should be found proved that the accused had poured kerosene on Sharda and had burnt her. (6). We have carefully considered the arguments advanced on behalf of the parties. (7). The Honble Apex Court in the case of K. Ramchandra Reddy (supra) has held that one of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the accused was in a fit state of mind. The first point therefore that arises for our consideration is as to whether Smt. Sharda was in a fit state of mind when her dying declaration Ex. P. 17 was recorded. The statement of Shri Joshi (PW 15) is to this effect that when he reached at the hospital, Dr. Jitendra Kumar certified that Sharda was in a position to give a statement and that Bhanwarlal had identified Sharda. He has further stated that on the application Ex. P.5 are the signatures of Dr. Jitendra. It may be pointed out that this doctor Jitendra Kumar has not been examined by the prosecution for the reasons best known to them. Ex. P. 15 is the application given by Bhanwarlal, ASI addressed to ACJM No. 2 Jodhpur. On this application certainly the words ``patient is fit to give statement are written and thereafter, there are initials purported to have been made by Dr. Jitendra Kailash Chand Joshi only deposed that M to N are the signatures of Dr. Jitendra. Kumar. He has not stated that Dr. Jitendra had put these signatures in his presence. Since full name of Dr. Jitendra is recorded below the Signatures, any body can say that these are the signatures of Dr. Jitendra. However, it cannot be made out from the statement of Shri Kailsh Joshi that Dr. Jitendra had put M to N signatures in his presence. Shri Joshi has also not deposed that the Certificate was recorded by Dr. Jitendra in his presence or that this Certificate is in the hand writing of Dr. Jitendra. It is thus clear that the certificate regarding fitness of State of mind is not proved by any legal evidence on record. Shri Joshi has also not deposed that the Certificate was recorded by Dr. Jitendra in his presence or that this Certificate is in the hand writing of Dr. Jitendra. It is thus clear that the certificate regarding fitness of State of mind is not proved by any legal evidence on record. It may also be mentioned that even in the endorsement I to J Shri Joshi did not record that Dr. Jitendra Kumar had written the Certificate in his presence. That being so, the said certificate of Dr. Jitendra or his signatures are not proved on record. It may also be noted that Shri Joshi has not deposed that Dr. Jitendra told him that Smt. Sharda was in a fit state of mind to give statement. When the witness was available and has not been examined and no reasons have been assigned, it certainly goes against the prosecution. Not only this, even Bhanwar Lal PW 13 has not stated that he had identified the patient Smt. Sharda before the Magistrate and had recorded a note of identification. Resultantly, there is no medical evidence on record to hold that when Smt. Sharda is said to have given statement Ex. P. 17 she was in a fit state of mind. Even the bed head ticket has not been proved on record, which could atleast given an idea of the condition of Smt. Sharda. The doctors who treated her have also not been examined. There is thus not an iota of medical evidence to say that Smt. Sharda was in fit state of mind to give statement. (8). Now, we shall see if this fact that Smt. Sharda was in a fit state of mind is established by any other evidence on record. (9). Shri Kailash Chand PW 15 has not deposed that he had asked some ques- tion to Smt. Sharda to ascertain if she was in fit state of mind to give statement. What he has deposed is that after obtaining the Certificate from the doctor, which we have held not proved on record, he proceeded to record the statement of Smt. Sharda. Shri Joshi has admitted that when he recorded the statement Ex. P. 17, Smt. Sharda was suffering pain. It has come on record that Smt. Sharda had 100% burns on her body. A perusal of the post mortem report Ex. Shri Joshi has admitted that when he recorded the statement Ex. P. 17, Smt. Sharda was suffering pain. It has come on record that Smt. Sharda had 100% burns on her body. A perusal of the post mortem report Ex. P/16 shows that it was a case of 100% burns. In the application Ex. P.15 submitted by Bhanwarlal to the ACJM also it was recorded that Smt. Sharda was in 100% burnt condition. It is difficult to believe that Smt. Sharda could give such coherent statement as has been recorded by Shri Joshi in such a condition. It is significant to point out that Bhanwarlal, ASI PW 13 who had reached the hospital immediately after receipt of information at 3.15 p.m. and also was present at the time Shri Joshi recorded statement Ex. P. 17, has deposed that Smt. Sharda was not in a position to give a statement and so long he remained in the hospital, Sharda did not come in senses and hence he could not record her statement. It is, thus, clear that Smt. Sharda never came into senses and she was not in a position to give any statement. Here we may also look into the statement of Gaindi Devi (PW 10) was has deposed that she and her husband had reached the hospital at about 10.00 p.m. and that at that time Sharda was unconscious. She has further deposed that the medicine was being administered to Smt. Sharda by drip and she had tubes in her nostrils. These circumstances clearly go to show that Smt. Sharda could not be in such a condition to give statement much less a coherent statement like the one Ex. P. 17. Shri Joshi has avoided the reply of question, relevant to the condition of Smt. Sharda by saying he did not remember. Atleast those facts could not be forgotten as to whether the patient was having tubes in her nostrils and injectable medicines were being given by drip. The facts of the case of `Kishore (supra) were almost similar. In that case also, there was no endorsement of the doctor on the statement recorded by the Magistrate that the patient was in fit condition to give statement or that the Magistrate had also not recorded that she was in fit condition to give statement. The facts of the case of `Kishore (supra) were almost similar. In that case also, there was no endorsement of the doctor on the statement recorded by the Magistrate that the patient was in fit condition to give statement or that the Magistrate had also not recorded that she was in fit condition to give statement. As already found, in the instant case, the prosecution has not examined the doctor and the so called Certi- ficate regarding fit state of mind to give statement is not proved on record and also there is no endorsement on the statement Ex. P. 17 by the Magistrate that he was satisfied with the condition of Mst. Sharda and she was in a fit condition to give statement. It is, therefore, not possible to place reliance on the dying declaration Ex. P. 17. It is relevant to state here that the Bombay High Court in the case of `Deepak Bali Ram Bajaj (supra) observed that in 100% burn case, it is difficult to believe that the patient would be in a position to give the detailed statement and the dying declaration of extra ordinary nature. Consequently, it is not safe to maintain the conviction of the appellant on the basis of the dying declaration Ex. P. 17. (10). PW 10 Gaindi Devi (mother of the deceased) and PW 1 Mool Chand (father of the deceased) have deposed that Sharda had told them that her mother-in-law burnt her. It is not irrelevant to state here that the statements of these witnesses were recorded by the police after one month of the occurrence and no reasons for not interrogating them immediately after the occurrence have been assigned. Moolchand and Gaindi Devi have deposed that there was a demand of dowry from the side of the accused and she used to torture Sharda. They have further deposed that there was a demand of hot-plate and as it was not given, the accused was annoyed with their daughter. The learned trial Court has not believed this part of the prosecution story that the accused ever made a demand of anything including the hot-plate or that she tortured or harassed the deceased in order to procure dowry. Admittedly, the parents did not report the matter before the death of Sharda anywhere that the in-laws were harassing Sharda for dowry. The learned trial Court has not believed this part of the prosecution story that the accused ever made a demand of anything including the hot-plate or that she tortured or harassed the deceased in order to procure dowry. Admittedly, the parents did not report the matter before the death of Sharda anywhere that the in-laws were harassing Sharda for dowry. These two witnesses kept quiet for about one month and did not approach the police or any authority to state that there was demand of dowry and Sharda was murdered because of the dowry. In the circumstances, it is difficult to place reliance on their testimony. It is significant to point out that Chandrakanta PW 9 who was also present along with her mother at the time she met Sharda in the hospital has not stated that Sharda had told that the accused poured kerosene on her and burnt her. Her this statement that she did not know as to how her sister got burnt goes to show that even her parents did not tell her about what Sharda had told them that she was burnt by her mother-in-law even after Sharda had died. The conduct of the parents in not telling their grown up daughter about pouring kerosene and letting fire by the accused is far from natural. This shows that probably Smt. Sharda had not stated such facts to her parents. It is relevant to state that Gaindi Devi (PW 10) in her statement Ex. D/1 recorded during investigation had state that when Sharda told her that the accused had burnt her, Chandrakanta was also present. She has denied to have given such statement before the police for the obvious reason that Chandrakanta (PW 9) had already been examined in Court before the statement of Gain- di Devi was recorded and Chandrakanta had not deposed that Sharda had told something about the incident. It may also be stated here that according to Gaind Devi (PW 10) when Sharda told her about the incident, she was all alone and even her husband was not there. As against this, PW 8 Moolchand had deposed that in his presence Sharda had informed about the incident to his wife. These contradic- tions in the statements go to show that these witnesses have given false statements and as a matter of fact Sharda had not told them about the incident. As against this, PW 8 Moolchand had deposed that in his presence Sharda had informed about the incident to his wife. These contradic- tions in the statements go to show that these witnesses have given false statements and as a matter of fact Sharda had not told them about the incident. As already stated according to Gaindi Devi (PW 10) when they reached at 10 p.m. at hospital, Sharda was unconscious and she had tubes in her nostrils and the glucose was being administered by drip. She has also deposed that immediately after Sharda told her about the incident she became unconscious and did not speak thereafter. In these circumstances, it has to be found that Sharda was not in a position to speak and being unconscious was not in a position to tell her parents about the occurrence. Thus, the dying declaration is also not proved on record. (11). It is also not insignificant to state that the facts stated in the dying decla- ration Ex. P. 17 do not appear to be true. In the statement Ex. P.17, it is stated that the accused had poured kerosene by a bottle. However, site inspection memo Ex. P. 8 indicates that a bottle filled by kerosene upto its 3/4 capacity was found lying at the spot. The fact that so much quantity of kerosene was found in the bottle itself goes to show that the kerosene was not poured by the bottle. The site inspection memo Ex. P. 8 further shows that there was a tin lying at the spot and it was empty and was giving smell of kerosene. The I.O. had also found a stove and a `Bhagoni thereon having the signs of boiled tea, which was spreading on the floor. These circumstances go to show that kerosene was not poured by the bottle, but it appea- rs that the kerosene container which was lying at some place higher in level fell down all of a sudden and as the stove was burning there was fire all around and this caused the accident. (12). The defence case is that Sharda was preparing tea and all of a sudden she came crying from the kitchen in burnt condition and fell down in the lap of the accused. This fact has been deposed by PW 4 Bhanwarlal, who is father-in-law of the deceased and husband of the accused. (12). The defence case is that Sharda was preparing tea and all of a sudden she came crying from the kitchen in burnt condition and fell down in the lap of the accused. This fact has been deposed by PW 4 Bhanwarlal, who is father-in-law of the deceased and husband of the accused. True it is, this witness should be interested in the acquittal of the accused. However, there is other enough material on record to hold that the relations of the deceased and the accused were cordial and there could not be any occasion for the accused to have thought of causing death of her daughter-in-law. Bhanwar Lal has deposed that when Sharda cried for help, his neighbours Ramchander Kumhar, Harji Bishnoi, Kamla and Narayani came there and they helped in putting off the fire. The prosecution has not examined any of these witnesses. It cannot be denied that they were the most material witnesses in this case. They being neighbours, their presence at the house of Bhanwarlal was natural. Only they could say as to what was the earliest version of Sharda about the incident. Harji Ram DW 1, Shiv Raj DW 4 and Heeralal DW 5 all have deposed that when they reached the house of Bhanwarlal, Sharda was having burns and was crying `Bujhao Bujhao and on their asking she told that when she was preparing tea her clothes caught fire. Heeralal has deposed that he had gone to the kitchen and found that the tea had boiled and was spreading on the floor. Same is the version of Shiv Raj (DW 4) and Heera Lal (DW 5). It is significant to point out that Naval Kishore (PW 18) I.O. has admitted that he had interrogated Hari Ram, Heeralal and Shivraj. It appears that they had supported the defense version and, therefore, the prosecution withheld them. PW 6 Chhagan and DW 3 Ramchander who are neighbours of Bhanwarlal have also deposed that the accused and the deceased never quarrelled. There is thus clear evidence on record that the relations of the deceased and the accused were not strained and there could not be any reason for the accused to have thought of causing death of Sharda. (13). It has come in the evidence that the accused had also got burns. The medical Certificate of the accused has not seen the light of the day. (13). It has come in the evidence that the accused had also got burns. The medical Certificate of the accused has not seen the light of the day. It seems that in the process of putting off fire the accused sustained burn injuries on her hands and fore- arm. (15). As already stated, the learned trial Judge has held that this was not a case where there was a demand of dowry or cruelty on account of dowry. There could not be any motive for the accused to have caused the death of her daughter-in-law. In view of the circumstances which have appeared on record, only it can be inferred that it was a case of accident and charge against the accused is not proved on record. The learned trial Judge has committed error in convicting the accused on the basis of unreliable and impeachable evidence. (15). Consequently, this appeal succeeds. The conviction and sentence are set-aside. The appellant is acquitted of the offence under Sec. 302 IPC. She is in custody. She shall be released forthwith if not required in any other case.