SALDANHA, J. ( 1 ) AN interesting aspect of the law has fallen for determination in this appeal preferred by the mother of the original A-2 Rajesab Mastansab Nadaf who incidentally is the mother-in-law of the deceased-wife Mehboob Bi Rajesab Nadaf. ( 2 ) THIS is one more of the wife burning cases, the death having been occurred within two years of the marriage i. e. , at the beginning of June, 1994. The incident had taken place about 10 days earlier at the matrimonial home and the prosecution alleges that on 29-5-1994 the deceased was preparing to heat the water when the mother-in-law A-1 is alleged to have thrown kerosene on her clothes and set fire to her. Mehboob Bi ran out screaming with her clothes on fire and the neighbours extinguished the flames after which she was taken to the hospital as she had sustained extensive burn injuries about 40% of her body. Her parents were informed and they lodged the complaint with the police on 30-5-94 at about 10-30 p. m. alleging foul play. Thereupon the police arrested the two accused for the offences punishable under Secs. 498-A and 304-B of the I. P. C. and Sec. 304 of the Dowry Prohibition Act. It is necessary for us to record that the parties are relatively poor and as is customary the exchange of some money and ornaments had taken place at the time of marriage, but the allegation of the parents of the deceased is that the husband and his mother were harassing and torturing their daughter to get one tola of gold which they were unable to give her. According to them, this was the reason why their daughter was seriously ill-treated and was ultimately set on fire. Since the condition of Mehboob Bi was rather bad, the Magistrate was requested to record her dying declaration which was done on 31-5-94 and the same is Ex. P-26. This is the central piece of evidence in this appeal and we shall deal with it presently. Mehboob Bi's condition deteriorated and she died about one week later. The investigation was completed and the two accused were charge-sheeted and the learned trial Judge at the conclusion of the trial acquitted A-2 of all the charges and convicted the mother A-1 for the offence punishable under Sec. 302, I. P. C. and sentenced her to rigorous imprisonment for life. The investigation was completed and the two accused were charge-sheeted and the learned trial Judge at the conclusion of the trial acquitted A-2 of all the charges and convicted the mother A-1 for the offence punishable under Sec. 302, I. P. C. and sentenced her to rigorous imprisonment for life. The present appeal is directed against this conviction and sentence. ( 3 ) AT the hearing of the appeal, learned advocate Sri V. M. Sheelavant who represents the appellant submitted that the learned trial Judge has wrongly drawn the presumption that arise under Sec. 304-B, I. P. C. and Sec. 113-B of the Evidence Act. He submitted that it is condition precedent, irrespective of the 7 years' time factor that there must be cogent evidence on record before a Court records presumptions that arise in law under these provisions and his contention is that it is condition precedent that there must be dowry related evidence. Analysing the material on record, learned advocate submitted that the learned trial Judge has overlooked this basic premise and has straightway drawn an adverse inference against the accused. He points out to us that the deceased-Mehboob Bi's clothes did in fact catch fire and that she ran out of the house screaming when the neighbours extinguished the flames after which she was taken to hospital. At that time she had sustained about 40% burns but she was conscious and in a position to speak and the learned advocate places heavy reliance on the entries made at the time of admission to the hospital, wherein the deceased herself has summarised the cause of the injuries by mentioning that her clothes accidentally caught fire while she was cooking. Learned advocate points out to us that this was the version at the earliest point of time and he has also relied on the evidence of the neighbours PWs 1 and 3 who are totally silent with regard to any allegation regarding dowry harassment. More importantly, learned advocate points out to us that if this was the cause for the incident, Mehboob Bi would have most certainly mentioned it to the neighbours who are independent persons and even if for any reason they had suppressed it, that the hospital record would have reflected that position. More importantly, learned advocate points out to us that if this was the cause for the incident, Mehboob Bi would have most certainly mentioned it to the neighbours who are independent persons and even if for any reason they had suppressed it, that the hospital record would have reflected that position. He has very emphatically contended that apart from this being the earliest point of time, that more importantly, when a question was put to Mehboob Bi by a person in authority viz. , the doctor that she would not have given a version that was incorrect and that therefore, the Court must rely very heavily on this evidence. We need to mention here that the learned Addl. S. P. P. tried very hard to convince us, that Mehboob Bi was a poor orthodox Indian house wife who had been tortured and terrorised and that, therefore, for her own self-protection she would have given a guarded version not having the courage to implicate either the husband or his mother. We find it difficult to uphold this explanation because there is nothing on record to indicate that any such pressures would have been used on Mehboob Bi and the record in fact indicates that the husband was not even present and the same applies to the mother. On the other hand, the Courts need to take judicial notice of the fact that when the incidents such as these take place, there is a tendency to involve and implicate those to whom one is hostile, even if there is no ground and under these circumstances, if there was any justification or truth with regard to the alleged harassment and torture over the one tola of gold there can be no doubt about the fact that Mehboob Bi would have squarely implicated both her husband and his mother. She had undergone a traumatic experience, she was in great pain and if at all there was any truth in the allegation she would never have spared those two persons. This is an important aspect of the case and the appellant's learned advocate is justified in advancing the legal submission, that before the presumptions under Secs. 304-B, I. P. C. and 113-B of the Evidence Act can be held against an accused, that it is condition precedent that there must be unimpeachable evidence in relation to the dowry harassment. This is an important aspect of the case and the appellant's learned advocate is justified in advancing the legal submission, that before the presumptions under Secs. 304-B, I. P. C. and 113-B of the Evidence Act can be held against an accused, that it is condition precedent that there must be unimpeachable evidence in relation to the dowry harassment. That evidence is lacking in the present case and the observations of the trial Court, therefore, with regard to such presumptions are unjustified and are liable to be set aside. ( 4 ) WE need to clarify that in the dying declaration dated 31-5-94 there is a reference to such a demand and to the fact that immolation of Mehboob Bi was a sequel to it. We have not referred to that aspect of the matter so far because we propose to deal with this head of evidence separately, but suffice it to say that there is a serious challenge to the veracity of the dying declaration from the learned advocate for the appellant on various substantial grounds most of which require to be upheld and it is for this reason we have omitted this head of evidence. The case papers clearly indicate that when the police originally desired to record the dying declaration, the doctor has clearly refused the permission on the ground that the patient was heavily sedated, that she was drowzy and that she was generally not in a condition to make a proper statement. This had happened hardly 24 hours before the dying declaration came to be recorded. A perusal of the case papers indicates that the condition of Mehboob Bi was only worsening and that she ultimately died. The appellant's learned advocate points out to us that it is now well-settled law that a Court must very rigorously examine the important aspect viz. , the condition in which the deceased was at the point of time when the dying declaration was recorded for the purpose of independently satisfying itself that both physically and mentally the senses of the person were not impaired. We have already referred to the fact that on the earlier occasion the doctor has refused permission and that hardly one day later the Magistrate has recorded the dying declaration. The original document is in his handwriting and is generally in question and answer form. We have already referred to the fact that on the earlier occasion the doctor has refused permission and that hardly one day later the Magistrate has recorded the dying declaration. The original document is in his handwriting and is generally in question and answer form. It is true that it is not in the language in which Mehboob Bi was speaking, but this would not be a fatal infirmity. What in our considered view is a virtually incurable defect as far as the dying declaration is concerned is the fact that the doctor who has merely attested the dying declaration has not certified that the patient was in a fit condition to make the statement. This is vital, because the patient was certified as not being in such a condition on the previous day and the papers indicate that she was being continuously sedated for the pain and being a case of burns, infection had set in. The pain would, therefore, have only been greater and the condition worse and one important factor had intervened viz. , that her parents had by then arrived on the scene and were with her. This last factor would not have given rise to suspicion except for the fact that within less than 48 hours there is a radical change in the version given by her vis-a-vis what she stated when she was brought to the hospital. This is what the learned advocate has heavily relied upon, when he contended that there was every possibility of the parents having brain-washed Mehboob Bi and that was why she implicated the accused. Apart from the veracity aspect, we are more concerned with the safety requirements in so far as it is now well-settled law that the doctor is required to certify on the dying declaration itself and not several months or years later when the doctor steps into the witness box and gives evidence even it is on the basis of the case papers. The Courts need to take cognizance of the fact that the dying declaration can form the sole basis of a conviction and that the accused is virtually helpless in the face of a dying declaration because the person is no longer available for cross-examination and if the dying declaration passes the various tests of scrutiny, that evidence alone can result in a conviction under Sec. 302, I. P. C. It is, therefore, very crucial that the Courts must rigorously examine this piece of evidence before basing a conviction on it. ( 5 ) MR. Koti submitted that the evidence of the doctor indicates that the condition of Mehboob Bi was sufficiently stable and he relies on the statement recorded by the Magistrate in the dying declaration itself. We do not dispute the fact that the Executive Magistrate has done the duty of recording the statement, but it is equally essential for us to hold that he is not a competent authority to certify about the over-all condition of the patient and above all whether it is satisfactory or not. It is now well-settled that the administration of drugs particularly sedatives not only cause various physical reactions but that they have a serious adverse effect on the mind and it is therefore very essential that the exact condition of the patient be certified by the doctor on the certificate at that point of time. If this is not done, it affects the evidentiary value of that document and in the present case it is virtually the main and essential evidence on the basis of which the conviction is based. In our considered view it would be unsafe to base a conviction on that document even if one does not reject it. This again is a facet of law that needs to be seriously borne in mind because it has become customary to get over the infirmity of not having obtained the doctor's certificate on the dying declaration by examining the doctor and even though at one stage the Courts were of the view that this is permissible, we need to hold that it is an incorrect procedure and one which will not be readily sanctioned by the Courts hereinafter. ( 6 ) THE last aspect of the matter that was urged on behalf of the defence was that in cases of the present type, the Courts need to heavily rely on secondary evidence and the appellant's learned advocate pointed out to us that even though the allegation is to the effect that the clothes of Mehboob Bi were doused in kerosene, that one does not find any reference to even the smell of kerosene oil from any of the witnesses and more importantly from the case papers which have described her condition on admission at the hospital immediately after the incident. The learned advocate was equally particular to draw our attention to the fact that the kerosene oil has a strong and characteristic smell and that even the panchanama of the scene of offence does not indicate anything to this effect nor is there even a remote reference even with regard to the clothes of the deceased. Appellant's learned advocate submits that this is a tell-tale circumstance which supports the defence theory that the allegations are fabricated. On the other hand, the learned Addl. S. P. P. submits that the kerosene being highly inflammable, that it has obviously been burnt. The last explanation is unacceptable because using kerosene oil for immolation has unfortunately become one of the common method and in every one of such cases the Court finds repeated and direct reference to the presence of kerosene oil and the odour. We have dealt with this aspect of the case in some detail because while it may be true that a dying declaration can even form the solitary basis of conviction provided the dying declaration is absolutely unimpeachable, it is equally necessary for the Courts to test the veracity of a version on the basis of secondary evidence of the type referred to by us. This again is an aspect of the law that needs to be highlighted particularly in cases of this type. ( 7 ) WE have indicated at the beginning of this judgment that the conviction virtually hinges on the dying declaration and in our considered view for the reasons set out by us, it would be unsafe to rely on the dying declaration in the facts and circumstances of this case. Once that evidence is eliminated, it would be impossible to sustain the conviction. The appeal accordingly succeeds. Once that evidence is eliminated, it would be impossible to sustain the conviction. The appeal accordingly succeeds. The conviction and sentences recorded against the appellant are set aside. We direct that the appellant be set at liberty forthwith if not required in any other case. ( 8 ) THE appeal accordingly succeeds and stands disposed of. Appeal allowed. --- *** --- .