JUDGMENT 1. - The appellants herein Lalita and Sarti along with two others namely Raja Ram son of appellant No. 2 Sarti and Chandra Prakash husband of appellant No. 1 Lalita had been charged for the offences under Sec. 302 and Sec. 498A read with Sec. 120-B of the Indian Penal Code and were tried by the Addl. Sessions Judge, Alwar for the aforesaid offences, who was pleased to acquit Raja Ram and Chandra Prakash of all the charges but was pleased to convict the two ladies -Appellants herein under Sec. 302, IPC and sentenced them to undergo Imprisonment for life along with a fine of Rs. 1,000/- and in default of payment of fine to undergo further three months rigorous imprisonment. The appellants being aggrieved with the judgment and order of the Addl. Sessions Judge No. 2, Alwar have preferred this appeal for setting aside the impugned judgment and order of conviction and sentence. 2. Before stating the prosecution case in its entirety it may be relevant to state that a young lady named Shashi Gupta, who died along with her daughter Shaloo, aged one year after sustaining severe burn injuries was related to the appellant No. 1 Smt. Lalita as sister-in-law since her husband Chandra Prakash and Raja Ram-husband of the deceased are full brothers. Appellant No. 2 Sarti is the mother-in-law of the deceased. As already indicated herein above, the husband of the deceased Raja Ram and his brother Chandra Prakash i.e. brother-in-law of the deceased have been acquitted of all the charges levelled against them. 3. The story of the prosecution originated when one Shri Phool Chand Gupta son of Chhotelal Gupta lodged a report on 27.3.1993 at 1 a.m. with regard to an Incident alleged to have taken place in the intervening night of 26th and 27th March, 1993 stating therein that the informant Phool Chand's daughter Shashi Gupta had been married to Raja Ram-Son of Ramjilal Gupta three years back. Raja Rams father Shri Ram Gupta had built a house at Joda, Alwar where his two sons Raja Ram and his brother Chandra Prakash had been living along with their families, Shashi, wife of Raja Ram had given birth to a daughter an year before and ever since the daughter was born, her mother-in-law Sarti (appellant herein), her husband Raja Ram, brother-in-law Chandra Prakash and his wife Lalita (appellant herein) continuously taunted her for giving birth to a daughter and they told her that she should have given birth to a son. The report further states whenever Shashi came to her fathers place she complained that persons in her in-laws house spoke sarcastically for giving birth to a daughter. On 26.3.1993 at 10 p.m. In the night, Raja Ram son-in-law of the informant along with another person, who was not known to the informant came to his house and told him that his daughter Shashi had been taken ill and was suffering from diarrhoea and vomiting and he should reach his place Immediately. On receiving this information he along with nephew Narendra reached Joda, Alwar, where they found that his daughter Shashi was lying burnt on a mat and his grand daughter Shako also had been lying in a burnt condition. Raja Ram, the husband of the deceased along with his brother Chandra Prakash, his wife Lalita and mother-in-law Sarti were present there, from whom the informant enquired as to how all the incident happened. But they did not disclose anything. After that, he brought a tempo (autoriskshaw) and carried Shashi in the burnt condition to the Government Hospital, where they were admitted for treatment. The report further states that the informants grand daughter was already dead and his daughter Shashi was lying in a serious condition. He further categorically stated in the written report that he suspects that members of the family of Shashis in-laws harassed her and killed her after sprinkling oil on her. He further stated that on the same day Shashi had quarrelled with them during the day time. He also stated that Shashi was aged 23-24 years and was educated upto IXth class. 4. He further stated that on the same day Shashi had quarrelled with them during the day time. He also stated that Shashi was aged 23-24 years and was educated upto IXth class. 4. The police on the basis of this report drew a First Information Report under Sec. 302 and 498 A, IPC against the four accused persons named in the FIR i.e. the appellant Smt. Lalita, Smt. Sarti and Raja Ram along with Chandra Prakash (since acquitted). According to the prosecution case, prior to the registration of the FIR, a Magistrate Shri K.S. Rathore, PW 15 recorded the dying declaration of the deceased Smt. Shashi Gupta after a request was sent to him by the police for such recording. In her dying declaration, the deceased Shashi Gupta stated that she had been married to Raja Ram son of the appellant No. 2 Sarti three years back and on 26.3.1993, since morning her husband Raja Ram, her mother-in-law Sarti and sister-in-law Lalita quarrelled and beat her up throughout the day. On the same night on 26.3.1993 at 8.00 O'clock she had been watching a programme chitrahar on television. She has stated that at that time, her mother-in-law and sister-in-law were in the house. Thereafter both the accused locked her up in a room where there was a full size steel trunk where two-three bed sheets were lying. She was dumped into that box and thereafter from an iron container kerosene oil was sprinkled on her. She has stated that at that time her one year old daughter was also on her lap. Therefore her mother-in-law lit a match stick and burnt her and thereafter she started shouting after which she was not aware whether any one from the neighbourhood reached there or not. She has further stated that her husband and her mother-in-law were all the time troubling her complaining why the daughter was born. She ought to have give birth to a son. She further stated that her husband had left for the shop at 3 O'clock. It is not known to her when he came back. The deceased after her dying declaration was recorded at mid-night on 26th and 27th March, 1993 died at 6.40 a.m. on 27.3.1993. 5. The police thereafter started the investigation of the incident and prepared the site-plan of the place of the occurrence. It is not known to her when he came back. The deceased after her dying declaration was recorded at mid-night on 26th and 27th March, 1993 died at 6.40 a.m. on 27.3.1993. 5. The police thereafter started the investigation of the incident and prepared the site-plan of the place of the occurrence. Some articles were also seized from the site of the Incident and statements of the witnesses under Sec, 161 Cr.PC were also recorded. The post-mortem on the body of the deceased Shashi and her daughter Shaloo was also conducted and prior to that injury reports-were also prepared. All the four persons named in the FIR were arrested thereafter. 6. The police after completion of the investigation submitted charge-sheet against all the four persons named in the FIR under Sec. 302,120-B and 498A, IPC and the learned Judicial Magistrate thereafter committed the case to the Court of Sessions at Alwar, which was later on transferred to the Court of Addl. Sessions Judge No. 2, Alwar, where the charges were framed against the accused Raja Ram under Sec. 120-B and 498-A, IPC and against Chandra Prakash under Sec. 302, IPC simpliciter and against the two ladies Sarti Devi and Lalita Devi charges were framed under Sec. 302,120-B and 498-A read with Sec. 302, IPC. 7. All the accused persons denied the charges and the statement of the accused ladies were recorded under Sec. 313, Cr.PC. It has been specifically, stated therein by the appellant Sarti Devi that the deceased along with her daughter were in the house and her elder daughter-in-law Lalita Devi, who has also three daughters had gone to the temple. Appellant Lalita was her elder daughter-in-law, who was carrying pregnancy of 8 months who later on gave birth to a son in the jail. The accused-appellants denied to have taunted Shashi for giving birth to a daughter. She denied that she along with Lalita killed Shashi by burning her. She has further stated that the deceased Shashi was short tempered by nature and on the date of the occurrence she had closed the door of the room and thereafter what she did is not known to her. She further states that on her shouting persons from the neighbourhood reached there and got the door opened. The other appellant Lalita Devi in her statement under Sec. 313, Cr.PC also gave similar statements. She further states that on her shouting persons from the neighbourhood reached there and got the door opened. The other appellant Lalita Devi in her statement under Sec. 313, Cr.PC also gave similar statements. Both the accused ladies, thus, denied the charges and claimed to be tried which trial was held along with the two co-accused Chandra Prakash and Raja Ram. 8. That, although, the prosecution examined 15 witnesses in support of its case, none of the witnesses are eye-witnesses which would be clear from the following description. PW 1 Phool Chand is the informant and father of the deceased but was informed about the incident by his son-in-law Raja Ram along with an unknown person only after the occurrence, PW 2 Prem Gupta, sister-in-law (Bhabhl) of the deceased. PW 3 Narendra Gupta is the cousin of the deceased; PW 5 Pradeep Kumar Gupta is also a cousin of the deceased and all these witnesses admittedly came to know of the incident only at a subsequent stage. They had, however, been examined on the fact that the deceased had complained of sarcastic remarks of her in-laws and her husband due to the reason that she gave birth to a daughter. 9. However, PW 12 Hari Ram son of Prahlad and PW 13 Hari Ram son of Chiranjilal have been examined, who are the neighbours and first of all reached at the place of occurrence on hearing the cries of the old lady Sarti, the mother-in-law of the deceased. It may be stated that although the two witnesses have not supported the prosecution case, they have not been declared hostile as such they were not cross-examined by the defence. PW 8 Dr. N.K. Gupta is the Doctor, who had conducted the post- mortem of the deceased. PW 14 Ram Dayal is the investigating officer of the case. These are the material witnesses in support of the prosecution case, but are not eye-witnesses. The left-over witnesses are the formal witnesses viz. PW 17 Chlranjilal is the malkhana Incharge. PW 9 Narendra Sharma is the photographer, who took the photograph of the deceased Harnam Singh is the site-plan witness and PW 11 Khemchand is a Constable. Shri K.S, Rathore is the Addl. District Magistrate City, Alwar, who recorded the dying declaration of the deceased Shashi Gupta. 10. As already stated above, the learned Addl. PW 9 Narendra Sharma is the photographer, who took the photograph of the deceased Harnam Singh is the site-plan witness and PW 11 Khemchand is a Constable. Shri K.S, Rathore is the Addl. District Magistrate City, Alwar, who recorded the dying declaration of the deceased Shashi Gupta. 10. As already stated above, the learned Addl. Sessions Judge No. 2, Alwar was pleased to convict the mother-in-law and sister-in-law of the deceased, who are appellants herein under Sec. 302, IPC and sentenced them as indicated herein above and was pleased to equit Raja Ram and Chandra Prakash of the charges. 11. Learned counsel for the appellants Shri Bajwa stated at the outset and rightly so that the case of the prosecution hinges on the genuineness and admissibility of the dying declaration as there is admittedly no eye-witness to the actual occurrence.In this regard, learned counsel for the appellants submitted that the dying declaration cannot stand the scrutiny of any prudent man when the same is read with the circumstantial evidence which naturally assumes importance in absence of any eye-witness account of the occurrence. He has, therefore, pointed out a number of circumstances in order to prove that the dying declaration is wholly unreliable and conviction should not be based on such dying declaration, which does not stand the scrutiny of the attending circumstances. 12. On going through the evidence on record, we find sufficient force in this contention and, the moot question, obviously arises whether the dying declaration is fit to be accepted as genuine and in order to test its truth, the circumstantial and suggestive evidence have become predominant factors in order to judge the prosecution case. 13. In this context, it first of all strikes us that even according to the informant it was the husband of the deceased Raja Ram, the son-in-law of the informant who first of all, came to inform him that his daughter had been lying ill and, even according to the informant he had mere suspicion that his daughter Shashi had been done to death by her husband and three other relatives, although by that time her dying declaration disclosing that she had been done to death by her mother-in-law and sister-in-law had already been recorded. The date of the written report and the time of recording of the dying declaration is mid-night of 26th and 27th March, 1993. The date of the written report and the time of recording of the dying declaration is mid-night of 26th and 27th March, 1993. It is hard to comprehend that if the written report on the basis of which the first information report was registered and lodged at 1 a.m. on 27.3.1993 after recording of the dying declaration then what was the reason for the informant merely to suspect the relatives that they had killed the deceased although the dying declaration alleging the names of the in-laws in the killing had already been disclosed by that time. Still further, the fact that the deceased had got her declaration recorded does not find place either In the written report or in the first information report which was registered much later after the recording of the dying declaration. 14. In this regard, we further examined the evidence of Dr. M.K. Gupta, who certified that the deceased was in a gift mental condition to get her dying declaration recorded and from his deposition, we have gathered that he was in fact not the Doctor, who treated the deceased when she was brought to the hospital. He, however, later conducted the post-mortem on the body of the deceased. We have, therefore, found substance in the contention that although PW 8 Dr. M.K. Gupta is said to have certified that the deceased lady Shashi Gupta was mentally fit to get her dying declaration recorded, but the same is wholly tainted as the exact time of the said certificate has not been indicated, and it has merely been written that the said certificate was given in the mid-night of 26th March, 1993. This has been challenged as most untrustworthy since non-mention of the exact time creates doubt about the condition of the deceased. Admittedly, Dr. Gupta was not the Doctor who actually had treated the deceased when she was brought to the hospital as the Doctor himself has deposed that he was not in a position to state as to which Doctor attended to the deceased when she was admitted to the hospital and what medicines were given to her. Admittedly, Dr. Gupta was not the Doctor who actually had treated the deceased when she was brought to the hospital as the Doctor himself has deposed that he was not in a position to state as to which Doctor attended to the deceased when she was admitted to the hospital and what medicines were given to her. If this Doctor, who has certified about the fitness of the deceased is not in a position to elicit any information about her actual state when her dying declaration was recorded, then mere endorsement that she was mentally fit to give statement before her death does not inspire confidence so as to infer that she was able enough to give statement especially when the Doctor who admitted Shashi Gupta and gave her the first aid or the duty Doctor of the ward who could have, in fact, proved that Shashi Gupta was in a fit condition to give her statement, has been withheld. 15. It has been further pointed out, which is not without substance, that the prosecution has withheld the immediate document i.e. bed head ticket of the deceased Shashi which naturally creates doubt about the correctness of the prosecution version. Still further it has been pointed out, which cannot be brushed aside as inconsequential that on the dying declaration Ex.P 47 the signature of the Doctor is missing and the endorsement of the Doctor about the mental fitness of the deceased is on a different sheet of paper which is the application by which the Doctor is said to have been summoned and not on the sheet on which the dying declaration was recorded. It has been further commented upon the evidence of PW 8 Dr. M.K. Gupta, who deposed that the Magistrate had recorded the dying declaration of Shashi Gupta in the form of questions and answers, whereas a perusal of the same indicates otherwise. For all these reasons, it has been submitted that the deceased Shashi who admittedly suffered 90% burn injuries on her mouth and other parts of the body when she was brought to the hospital, it is highly improbable that she would have been in a position to get her statement recorded. Hence, the contention that the dying declaration appears to be a forged document and creates doubt about the fairness of the investigating agency cannot be rejected outright. 16. Hence, the contention that the dying declaration appears to be a forged document and creates doubt about the fairness of the investigating agency cannot be rejected outright. 16. Commenting upon other circumstantial evidence pointing towards improbability of the prosecution story, it has been further submitted that apart from the doubt about the genuineness of the dying declaration, the learned Addl. Sessions Judge has not appreciated in proper perspective the situation of the place of occurrence which raises question about credibility of the prosecution story. It has been pointed out that the site-plan Ex.P. 7 shows that the bolts of the door from inside the room was broken on one side and separated from the door and on the outer portion of the door, the bolts were loose. It has been submitted that this fact stands corroborated by the evidence of PW 13 Hari Ram Sharma and PW 12 Hari Ram son of Prahlad, PW 10 Harnam Singh and PW 18 Ram Dayal, from which the logical inference emerges/that the door of the room where the deceased died was bolted from inside by the deceased herself, otherwise the door could not have been found closed from inside since the accused persons admittedly were not found inside the room when it was broken open. 17. There are yet other impediments in accepting the prosecution case solely on the basis of the dying declaration said to have been given out by the deceased, as another incriminating circumstance catches the attention of this Court that according to the Informant Phool Chand, he had reached to the house of his daughter Shashi Gupta the deceased, soon after the incident and, it is he who had carried the deceased and Shaloo in a burnt condition to the hospital, which means that he was with the deceased all through; yet the deceased did not disclose anything to her father about the incident which is evident from perusal of his deposition. This, in our option, is the most unnatural conduct on the part of a daughter who was not in the habit of concealing anything from her parents and her relatives from the parents side, as deposed by the prosecution witnesses themselves, but went to the extent of giving a dying declaration. This, in our option, is the most unnatural conduct on the part of a daughter who was not in the habit of concealing anything from her parents and her relatives from the parents side, as deposed by the prosecution witnesses themselves, but went to the extent of giving a dying declaration. This compels us to reasonable conjecture that had she been really in a fit mental state to get her dying declaration recorded, then she definitely would have blurt out or disclosed at least something about the manner of the incident to her father Phool Chand PW 1. But even according to Phool Chand no such disclosure was made to him. In sequence, it may further be emphasised even at the cost of repetition that although the father of the deceased lodged the First Information Report much after the recording of the dying declaration and he was accompanying the deceased all through at the hospital yet there is no mention about recording of the dying declaration either in the written report or in the First Information Report. 18. Still another unnatural aspect of the case is that the husband of the deceased Raja Ram had himself gone to his father-in-law to inform him that his daughter was not well. Had the incident taken place in the manner alleged, it is most unnatural that the husband of the deceased Raja Ram himself would have gone to inform the father of the deceased as the normal psychology of persons who commit a heinous crime is to hush up the matter in such a situation. It is highly improbable that the son of the accused who was himself alleged to have participated in the incident and was an accused prior to his acquittal would inform his father-in-law to accompany his daughter and allow her the opportunity to disclose about the unnatural death of his daughter who in any case failed to disclose anything to her own father, but is claimed to have given a dying declaration to others. 19. According to the dying declaration, the deceased Shashi Gupta had been watching the TV when she along with her one year old daughter on her lap was pushed into the steel trunk kept in another room which means that she must have been dragged by the two accused women into the other room forcibly who dumped her into the steel box. It cannot be missed that the accused Smt. Sarti is an old lady aged more than 65 years and the accused Lalita was carrying pregnancy of 8-1/2 months whereas the deceased Shashi was a young lady aged about 23-24 years. It is inconceivable that the deceased could be dragged into the other room along with an year old daughter and pushed into the steel box without any resistance or scuffle by the deceased allowing the accused to sprinkle Kerosene on her and light match stick so as to burn her. It is not the case even according to the dying declaration that the mouth of the deceased had been gagged so that she could not raise hue and cry when she was dragged into the other room. It, therefore, does not appeal to sensible reason that she meekly submitted to the dictates of the two accused women so as to lie in the steel trunk along with her daughter and allow the accused persons to complete the job. If, in fact, the story of dying declaration were-true, a commotion was bound to take place and, in such a situation it is most unlikely that the neighbours would not have arrived and come to know of the incident. In fact, PW 12 and PW 13 who claimed to have reached at the place of occurrence on hearing the shouts of Smt. Sarti, on the contrary have stated that it was Sarti, who raised hue and cry when PW 12 and PW 13 reached the place of occurrence and noticed smoke coming out of the room after which the door was broken open. In fact, even according to the dying declaration it was Sarti, who shouted after the incident, but it has been stated that she started to shout after lighting the match stick. If the dying declaration is accepted as true, the unanswered question emerges as to where was accused Lalita at that time as the prosecution witnesses who reached immediately at the place of occurrence have not mentioned about Lalita's presence at the scene of occurrence. 20. The motive which has been attributed to the two accused ladies for killing the deceased also does not inspire us to accept its credibility. The cause of the incident is said to have been the birth of the daughter to Smt. Shashi Gupta. 20. The motive which has been attributed to the two accused ladies for killing the deceased also does not inspire us to accept its credibility. The cause of the incident is said to have been the birth of the daughter to Smt. Shashi Gupta. It cannot be forgotten that the accused Lalita herself was having three daughters and it is hard to digest that a lady would condemn another lady so much so that she would go to the extent of killing her when she herself had given birth to three daughters. It is no doubt true, that it is difficult to analyse human mind and behaviour in a given situation yet it is equally difficult in the situation of this case to accept the motive attributed to the accused strong enough which could compel the accused to commit the crime for the most heinous nature. We are, therefore, inclined to accept the contention raised on behalf of the appellants that the incident alleged to have taken place in the manner alleged is most improbable and the dying declaration appears to be highly tainted, surrounded by circumstances which smacks of suspicion. 21. The question, therefore, now arises whether the conviction of the accused-appellants should be upheld only on the basis of the dying declaration merely because it has been recorded by a Magistrate although it does not stand the test of judicial scrutiny when examined in the light of other telling circumstantial evidence. In this context, it would be relevant to recollect the Stephen's History of the Criminal Law in England which has dealt with Indian conditions also in regard to reliance to be placed on dying declaration, wherein it has been observed that although it is absolutely necessary for the protection of the society that dying declaration should normally be received and relied upon, for otherwise premium would be held out for the commission of the crime and it must occur that quite often the only direct testimony against the accused is to be found in the dying declaration, but at the same time the courts have to receive this evidence with a certain degree of caution and, hence its correctness has to be judged on the basis of the circumstances surrounding under which it was made and, hence, it becomes almost a question of fact as to whether it should be relied upon or not. Learned counsel for the appellants has relied on a number of decisions of the Supreme Court as also of this Court to drive home the point that if the dying declaration smacks of suspicious circumstances, then the same should not be the sole basis for the conviction of the accused. Attention of this Court has been invited to a decision of the Supreme Court delivered in the case of State of Uttar Pradesh v. Shishupal Singh reported in 1992 Suppl. (3) SCC 60 , wherein although the dying declaration had been recorded by a Magistrate in the presence of a Doctor, their Lordships were pleased to hold that a dying declaration impregnate with suspicious circumstances which creates doubt about its genuineness is not an unimpeachable document for safely basing the conviction. Similar view had been taken in the matter of State of U.P v. Madah Mohan vide AIR 1989 SC 1519 by the Supreme Court and Bashir Shah & Ors. v. State of Rajasthan, 1994 Cr.LR (Raj.) 610 , besides a catena of other decisions. 22. Learned Public Prosecutor Shri Goyal in support of the prosecution version also cited 1995 Cr.LR (Raj.) 111 Sohan Singh v. State of Rajasthan and 1977 RCC Vol. II 166 State of Rajasthan v. Chunnilal & Ors., besides certain other rulings and contended that the dying declaration should not be rejected as untrustworthy. But a perusal of these decisions clearly establishes that the dying declaration in all these cases were accepted under the facts and circumstances of those cases where the deceased was found to have given the declaration in a mentally sound condition and, thus, there was no reason to discard or discredit such testimony. 23. Judging the correctness of the dying declaration under the facts and circumstances of the instant case, we feel that the counsel for the appellants has succeeded in assigning convincing reasons not to uphold the conviction merely on the basis of the dying declaration which has left a volume of questions unanswered compelling this Court to disbelieve the prosecution version regarding the genesis and manner of occurrence. 24. Consequently, for the reasons discussed herein above, we consider it just and proper that the appellants herein be acquitted of the charges as the alternative theory suggested impliedly by the defence that the deceased committed suicide and, it was not the case of homicide cannot be ruled out. 24. Consequently, for the reasons discussed herein above, we consider it just and proper that the appellants herein be acquitted of the charges as the alternative theory suggested impliedly by the defence that the deceased committed suicide and, it was not the case of homicide cannot be ruled out. Accordingly, this appeal is allowed and the appellants are ordered to be set at liberty if not required in any other case. *******