( 1 ) STATE of Gujarat has filed this appeal against the judgment and order dated 24. 6. 88 passed by learned Additional Sessions Judge, Ahmedabad Rural recording acquittal of respondents of the charges under sections 302 read with sec. 114, 211 and 306 and 498-A read with sec. 114 of I. P. C. in Sessions Case No. 32 of 1987. ( 2 ) FACTS of the prosecution case, precisely stated, are as under:-DECEASED Kailasben was married with respondent no. 2 Girishbhai in the year 1984. Jyotsanaben, sister of deceased, was also married with respondent no. 3, brother of respondent no. 2, simultaneously in the same year. Respondent no. 1 is the mother of respondent nos. 2 and 3 and the mother-in-law of deceased Kailasben. Respondent no. 4 is the sister of respondent nos. 2 and 3 and sister-in-law of deceased Kailasben. Married life of both the sisters was not going well. Both the sisters were alleged to be rustic villagers, not able to suit in the urban atmosphere of the city like Ahmedabad and they were given taunts that they do not know anything and are foolish. According to them, they were not permitted to take bath in bathroom. They were not properly treated. They were alleged to be rustic and were alleged that they do not know how to light gas stove. Sister of deceased had already left the in-laws house on the alleged torture and ill-treatment a week or so before the date of the incident. On 6. 12. 86, by about 9. 00 A. M. deceased had gone to throw out ash of the furnace on road. Respondent no. 1, mother-in-law, took up quarrel with her, saying that why have you thrown ash on the road. Respondent no. 3 and 4 also joined their mother, respondent no. 1, and they also quarrelled with her. Respondent no. 3, brother-in-law of deceased, gave two slaps on her cheek, alleging that why did she spoke against his mother. As deceased intended to complain of the same to her grand-mother-in-law Shardaben, she was caught hold of by respondent no. 3 and door was closed by respondent no. 4 so that she may not go and complain to their grand-mother Shardaben. Respondent no. 3 told her at that time to die by burning with kerosene. Respondent no. 3 had then left for his job. Then, by about 11. 3 and door was closed by respondent no. 4 so that she may not go and complain to their grand-mother Shardaben. Respondent no. 3 told her at that time to die by burning with kerosene. Respondent no. 3 had then left for his job. Then, by about 11. 30 A. M. , respondent no. 1, her mother-in-law, told her that why do you not die by burning by sprinkling kerosene. She, therefore, got instigated and in anger, she poured kerosene on herself from a stove lying on grill in the room of the house. By this time, respondent no. 1, her mother-in-law, was standing beside her and she lit her. Deceased raised shouts for help and came out of the house. Someone residing in the neighbourhood came in and covered her with quilt to extinguish fire. Neighbours had gathered and she was removed to V. S. Hospital, where it appears that she reached by about 11. 40 A. M. She was first admitted in emergency ward, wherefrom it appears that she was removed to Jain Ward. On her reaching V. S. Hospital, Medical Officer Dr. R. S. Desai informed of the said incident to Constable Sitaram, buckle No. 3267, who was on duty, who, in his turn, informed Naranpura Police Station. Police Sub Inspector K. P. Dindor of Naranpura Police Station was informed in writing of the same at 12. 15 noon and he rushed to the V. S. Hospital. In V. S. Hospital, he recorded the statement of injured Kailasben and simultaneously informed the Executive Magistrate to record her dying declaration. On the basis of the statement recorded by P. S. I. Dindor, he registered the case before Naranpura Police Station, where the case was registered against all the accused, being Crime Register No. 577/86. Offence was registered under sections 302, 201 and 114 of I. P. C. On completion of the investigation, respondents were chargesheeted before Chief Judicial Magistrate, Narol, who, in his turn, committed the case to the Court of Sessions and the case, being Sessions Case No. 32/87, was posted for hearing before Additional Sessions Judge, Narol. ( 3 ) LEARNED Additional Sessions Judge initially framed the charge under sec. 302 against accused no. 1 and 302 read with sec. 114 of I. P. C. against accused nos. ( 3 ) LEARNED Additional Sessions Judge initially framed the charge under sec. 302 against accused no. 1 and 302 read with sec. 114 of I. P. C. against accused nos. 2,3 and 4 (who are respective respondents here in this appeal and they will be referred to as accused hereinafter ). Learned Additional Sessions Judge also framed charge under section 201 read with sec. 114 against all the accused. Accused pleaded not guilty and evidence was recorded. However, after examination of prosecution witness no. 5. learned A. P. P. there gave an application at Ex. 21 to amend the charge and to frame in alternative charge against the accused under sec. 306 and 498a both read with sec. 114 of I. P. C. against all the accused. Learned Additional Sessions Judge, after hearing the parties, allowed that application and framed charge under section 306 and 498a read with 114 of I. P. C. also, however in alternative against all the accused. After framing the charge in alternative, learned Additional Sessions Judge had allowed all the witnesses to be recalled for further cross-examination, as desired by the defence counsel. ( 4 ) AFTER completion of the evidence for prosecution and hearing learned A. P. P. and learned Advocate for defence, learned Additional Sessions Judge acquitted the accused of the charges levelled against them. This order of acquittal is challenged in this appeal. ( 5 ) LEARNED A. P. P. Mr. S. T. Mehta contended that the reasons assigned by learned Additional Sessions Judge are neither true nor correct and the conclusion arrived at is unjust and improper. Learned Additional Sessions Judge has erred in not reading properly the dying declaration, which is not one in number but there are as many as three, and they are all consistent and supporting each other. Mr. Mehta contended that if the evidence as on record led by the prosecution is read properly, only inference of guilt can be reached. Judgment and order of the learned Additional Sessions Judge is based on unwarranted inferences and the conclusion arrived at is not warranted by evidence on record. Mr. Mehta further contended that simply because Dr. Vania was not examined to prove the fact that deceased was conscious and oriented at the time when her dying declaration was recorded, that by itself cannot be a ground to reject other two dying declarations. Mr. Mr. Mehta further contended that simply because Dr. Vania was not examined to prove the fact that deceased was conscious and oriented at the time when her dying declaration was recorded, that by itself cannot be a ground to reject other two dying declarations. Mr. Mehta further contended that, however, that lapse of not examining Dr. Vania has now been cured and it is now established on record that deceased was conscious and oriented at the time when all the three dying declarations were recorded and in particular one recorded by Executive Magistrate Mr. Yohaswa P. W. 6. Mr. Mehta further contended that from the evidence on record, prosecution has been able to establish guilt of the accused under sec. 498a of I. P. C. Mr. Mehta further contended that this is a fit case where the court should interfere with the order of acquittal and pass necessary order on holding the accused guilty of the offences charged. Mr. Mehta also contended that initially the accused were charged under sec. 302 and in the alternative they were charged under sec. 306 I. P. C. Both these charges do not contradict each other and in particular in the facts and circumstances of the present case. In the present case, Mr. Mehta contended that it is the case of the prosecution that deceased herself poured kerosene on her, as she was harassed and treated cruelly. Short question that will remain to be considered by the court from the evidence on record is : who lit the match-stick - who lit the deceased ? Whether the deceased lit herself after pouring kerosene or accused no. 1 had lit the deceased, who had poured kerosene on herself ? Mr. Mehta contended that even if the case of the defence is accepted that deceased had lit herself, then also the case is made out by the prosecution under sec. 306 read with 114 of I. P. C. Defence and prosecution are travelling together till the stage to light and the short question would be who lit the deceased. Even if the deceased had lit herself, the circumstances were so created by the accused persons that they shall be held responsible for the same. Mr. Mehta, therefore, contended that alternative charge is not going to prejudice the case of the defence in any manner whatsoever. Mr. Even if the deceased had lit herself, the circumstances were so created by the accused persons that they shall be held responsible for the same. Mr. Mehta, therefore, contended that alternative charge is not going to prejudice the case of the defence in any manner whatsoever. Mr. Mehta further contended that evidence of P. W. 1, P. W. 3 and P. W. 6 ought to have been accepted by learned Additional Sessions Judge and held the accused guilty of the offences charged. In view of these facts, the appeal should be allowed and accused be held guilty of the offence under sec. 302 or under sec. 306 read with sec. 114 and also under sec. 201 and 498a read with sec. 114 of I. P. C. and they be sentenced accordingly. ( 6 ) LEARNED counsel Mr. Barot contended before the court that it is erroneous to say that the inferences drawn by the learned Additional Sessions Judge are not warranted by the evidence on record. Mr. Barot further contended that there are two views possible and the one favourable to the accused is required to be accepted, which has been accepted by learned Additional Sessions Judge and this court should not interfere with the same. Mr. Barot also contended that the reasons and conclusion arrived at by learned Additional Sessions Judge cannot be said to be perverse so as to justify interference. Even otherwise, the story put forward by the prosecution is improbable and it cannot be believed that accused no. 1 ignited the deceased. Mr. Barot contended that there is no independent witness to support the case of the prosecution. Mr. Barot contended that the case advanced by the prosecution is that she died of burns of kerosene and no smell of kerosene is noticed on the person of the deceased either in inquest report or by the doctor, who performed post-mortem examination. Mr. Barot further contended that the doctor who certified deceased to be conscious is not examined before the trial court and, therefore, the conclusion of the learned Additional Sessions Judge based on no evidence of doctor, cannot be interfered with. Mr. Barot further contended that examination of that doctor before the appellate court by itself suggests that the view taken by the learned Additional Sessions Judge was not incorrect. Mr. Barot contended that evidence of Dr. Mr. Barot further contended that examination of that doctor before the appellate court by itself suggests that the view taken by the learned Additional Sessions Judge was not incorrect. Mr. Barot contended that evidence of Dr. Vania before this court, even if it establishes that the patient was conscious, does not establish that the patient was orientated. To accept the dying declaration, it is not only that the patient should be conscious, but patient should also be oriented. Patient to be oriented means patient had all the relevant mental faculty working at the relevant time. However, the same was absent in the present case. Mr. Barot contended that Central Nervous System Condition directly reflects and suggests whether the injured was oriented or not. Mr. Barot contended that Dr. Vania had admitted in his evidence that orientation can be certified after examination of Centre Nerves System and in absence of any mention about Centre Nerves system condition in the case papers, it is hazardous to accept that the patient or injured was oriented. Mr. Barot, therefore, contended that at least benefit of doubt on this aspect should go to the accused and this will lead to refuse to accept any of the dying declarations. Mr. Barot contended that in absence of any evidence as to dying declarations, there is no other evidence worth the name to hold the accused guilty of the offences charged. Mr. Barot also contended that when two hypotheses are possible, one which is in favour of the accused is required to be accepted is a settled law. This court, therefore, should not interfere with the order. Mr. Barot, therefore, contended that the appeal be dismissed. ( 7 ) WE will first consider the powers of the court to interfere with the order of acquittal. The present appeal by the State is filed under sec. 378 of Criminal Procedure Code ("code" for short ). A similar provision was there in the old Act in sec. 417. As back as in 1934, Privy Council in the case of Sheo Swarup (AIR 1934 P. C. 227) has specified the powers and duties of High Court in appeal against acquittal and mode of exercise. This judgment has been reaffirmed till date by several other judgments of Supreme Court. 417. As back as in 1934, Privy Council in the case of Sheo Swarup (AIR 1934 P. C. 227) has specified the powers and duties of High Court in appeal against acquittal and mode of exercise. This judgment has been reaffirmed till date by several other judgments of Supreme Court. Lord Russel of Killowen of the Privy Counsel repudiated in 1934 the view that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court had ostinately blundered or has through incompetence, stupidity or perversity reached such distorted conclusions as to produce a positive miscarriage of justice, or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. It was held there that sections 378 and 386 gave to the High Court full power to review at large the evidence upon which the acquittal was founded and to reach the conclusion that the order of acquittal should be reversed. Thus, on reading sec. 378 of the Code, there is no limitation upon the power of the court to interfere with the order of acquittal. However, before exercising that power to interfere with the acquittal, Privy Counsel in Sheo Swarups case (Supra) has held that proper weight and consideration should always be given to the following facts, viz. (1) the view of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. Keeping in mind the above four factors, we will now consider whether the order of acquittal based on the prosecution evidence as led together with the evidence led in appeal calls for any interference or not. ( 8 ) PROSECUTION case is based on two sets of evidence, namely, (i) dying declarations; and (ii) oral evidence in particular as to cruelty. ( 8 ) PROSECUTION case is based on two sets of evidence, namely, (i) dying declarations; and (ii) oral evidence in particular as to cruelty. Before we appreciate that part of evidence pertaining to dying declaration, we have in our mind certain questions, which now-a-days are staring while deciding the criminal appeals. Should court be helpless against the lapses, be it innocent or deliberate, in investigation by the investigating officer and in trial by learned A. P. P. ? These lapses may also be because of inefficiency and/or mala fide. Should administration of justice suffer for no fault on its part and indirectly encourage the concerned authority to indulge into such lapses for certain ulterior motive or purpose ? In our opinion, it is now time to exercise strictly in accordance with law the powers whereby the court can interfere with the order of acquittal and in particular when such lapses are found. Any lapse on the part of investigating officer or the Prosecutor, if it directly benefits the accused, it cannot be considered due to inadvertence or without ulterior motive. It should be the endeavour of the court to see that administration of justice never suffers by any conclusion or decision based on such material. At least a message should not go to the society that the investigating agency or the prosecutor, if they act jointly or individually, they can make the mockery of administration of justice and make the society suffer. Keeping this anguish in mind, we will first consider what was the reason for the investigating officer not to cite Dr. Vania as a witness and instruct learned A. P. P. to examine him as a witness, even if his name did not appear in the chargesheet. Why did it not strike learned A. P. P. , after reading the cross-examination of P. W. 1, to examine Dr. Vania, as a witness ? We hope that the learned A. P. P. must be knowing that a witness can be examined even if the investigating officer has not recorded the statement or is not cited as a witness in the chargesheet. Why did learned A. P. P. not exercise such powers and move the court to allow the prosecution to examine Dr. Vania ? ( 9 ) EVIDENCE in the present case consists of three dying declarations. Why did learned A. P. P. not exercise such powers and move the court to allow the prosecution to examine Dr. Vania ? ( 9 ) EVIDENCE in the present case consists of three dying declarations. First is by way of statement before P. W. 1, who, in his turn, has lodged a complaint based on that statement. Second is a dying declaration recorded by Executive Magistrate P. W. 6, who reached the hospital on receipt of yadi from Naranpura Police Station and the third is an oral statement to Subhadraben P. W. 3, maternal aunt of the injured, whom injured replied on her enquiry as to what had happened. When there are more than one dying declarations, Supreme Court in the case of Kamla (Smt.) Vs. State of Punjab ( (1993) 1 SCC 1 ) has held that in a case where there are more than one dying declarations and if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies, namely, whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation,the court has to examine the same in the light of the various surrounding facts and circumstances. Supreme Court has also held in the case of Goverdhan Raoji Ghyare vs. State of Maharashtra (1994 SCC (Cri.) 15) kamla (Smt.) Vs. State of Punjab ( (1993) 1 SCC 1 ) that minor discrepancies in the two dying declarations were not sufficient to invalidate either of the two. If one is rejected, the other one may be taken into consideration, if it inspires confidence. Supreme Court has also in the case of Radhey Shyam (Capt.) vs. State of U. P. ( (1994) 1 Crimes 207 ) has held that where there are more than one dying declarations of the same person, they have to be read as one for proper appreciation of the value and if they differ from each other on material aspects, the effort should be made to see if they can be reconciled. For this reconciliation, the author of the statement is not available and the court may go ahead with certain reasonable assumptions. If no assumption can explain the difference, the statements might become unworthy of credit but if one is possible , the position may be different. For this reconciliation, the author of the statement is not available and the court may go ahead with certain reasonable assumptions. If no assumption can explain the difference, the statements might become unworthy of credit but if one is possible , the position may be different. Bearing in mind this position of law as settled by the Supreme Court, we will now appreciate all the three dying declarations of the deceased. ( 10 ) ONE of the variance in two dying declarations, namely, before P. S. I. and the Executive Magistrate, is the reason ascribed by the injured for not signing the same. In the dying declaration before P. S. I. , the reason assigned for not signing the same is blurred vision of the injured while the reason assigned by the Executive Magistrate is burns on both the hands. It is in evidence of the doctor P. W. 10, who has performed post-mortem examination that on both the hands, there were 18% burns and he has proceeded on the assumption that because of percentage prescribing the maximum, both hands must have been burnt. Reason assigned by P. S. I. for not signing the dying declaration, in our opinion, cannot be said to be contradictory to one assigned by Executive Magistrate. When a person who has to sign complains seriously about the vision, it cannot be said that otherwise one could have signed despite injuries on hand. Question about burns on the fingers would only arise when the question to sign the dying declaration arises. P. S. I. has recorded statement of the deceased at 1. 00 PM and Executive Magistrate has completed the recording of dying declaration at 14. 30 hours, which is practically 1 1/2 hours after the P. S. I. P. W. 1 recorded the statement, which amounts to dying declaration. Before the Executive Magistrate, injured has stated that she has studied upto 4th standard, but she is not able to sign as she has burns on both the hands. However, she has given a thumb impression after her dying declaration is read over to her. Before P. S. I. , injured has stated that she can sign, but as she is not able to see properly, she put her right thumb mark below the same. In our opinion, both the reasons assigned by the injured are not contradicting or destroying each other. Before P. S. I. , injured has stated that she can sign, but as she is not able to see properly, she put her right thumb mark below the same. In our opinion, both the reasons assigned by the injured are not contradicting or destroying each other. Both the reasons may exist simultaneously without damaging each other and, therefore, the reason assigned for the one, cannot be said to be destroying or affecting the credibility of the statement recorded by P. S. I. P. W. 1 or Executive Magistrate P. W. 6. Therefore, we do not find any reason not to accept the dying declarations because of variance in reason for not signing the dying declaration and putting thumb mark below the same. We may make it clear that there is no law that a dying declaration must be signed or marked by the injured. Learned Additional Sessions Judge has taken this circumstance as one of the important one to make the dying declarations before P. S. I. P. W. 1 and Executive Magistrate P. W. 6 a suspicious one. This, in our opinion, is neither warranted by facts nor by law. So far as this aspect is concerned, there is no question of two inferences, one in favour of the accused and other in favour of the prosecution required to be drawn. ( 11 ) TO appreciate evidentiary value of the dying declarations, namely, Ex. 14, Ex. 25 and the oral dying declaration before P. W. 3, it is necessary to know what is a dying declaration ? The statement, written or verbal, of relevant facts made by a person, who is dead, is called a dying declaration and the same has been made relevant under sec. 32 of the Indian Evidence Act, 1872 as an exception to a rule that hear-say evidence is not admissible. The principles on which dying declarations are admitted is indicated in the maxim of the law - nemo moriturous proesumitur mentiri - a man will not meet his maker with a lie in his mouth. From the very beginning of the judicial system, it is believed that a man on his death bed never tells a lie. The principles on which dying declarations are admitted is indicated in the maxim of the law - nemo moriturous proesumitur mentiri - a man will not meet his maker with a lie in his mouth. From the very beginning of the judicial system, it is believed that a man on his death bed never tells a lie. Ordinarily, a person on the verge of his passing away from this world, however, desperate, criminal or lier he may be throughout his life, but where his/her end is in sight under the constraints of his conscience to speak out the truth, he will not lie so as to falsely frame up and get convicted and sentenced an innocent person. For such a dying person, bidding good-bye to the world, truth is the last lightening flash, flicker on his/her dying lips or, so to say, the last exotic fragrance of his spirit that by uttering the truth while passing away would be leaving behind. Great sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies, provided the court is satisfied that the deceased was in a fit state of mind to make the statement. Religious and moral ethics presumes the truth sits on the lips of a dying man. According to Hindu Mythology, when one comes under the shadow of Yamraj (messenger of death), he can speak nothing except truth. Even under Mohammedan law, certain death bed transactions and acknowledgments are respected. This maxim represents the psychic effect of death on the person of all religions. Shakespeare expressed this common feeling in the following words:"have I not hideous death within my view, Retaining but a quantity of life, Which bleeds away, even as a form of wax Resolveth from his figure gainst the fire ? What in the world should make me now deceive, Since I must lose the use of all deceit ? Why should I then be false, since it is true, That I must die here and live hence by truth ? (King John-vide Act V, Scene IV: 25- The Arden Edn ). ( 12 ) WOODROFFE and Ameer Ali in their book "law of Evidence in India" (16th Edn. 1996, Vol. Why should I then be false, since it is true, That I must die here and live hence by truth ? (King John-vide Act V, Scene IV: 25- The Arden Edn ). ( 12 ) WOODROFFE and Ameer Ali in their book "law of Evidence in India" (16th Edn. 1996, Vol. II at page 1075), published by The Law Book Company (P) Ltd. , Allahabad, state -"when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity, and, therefore, the tests, oath and cross- examination are dispensed with under such circumstances. Besides, if dying declarations are excluded, there would be miscarriage of justice in many cases, since, the victim being generally the only eye witness in serious crimes, the exclusion of his statement would leave us without a scrap of evidence". ( 13 ) THE human mind is so constituted as to be inclined to attach a very high degree of importance to a dying declaration. ( 14 ) BESIDES religious, moral and legal belief, there is a psychological aspect too of dying declaration. It is found that the psychology of a man who is near death works in a particular way. In that state of mind, he only thinks in respect of those circumstances which are going to result in his death. Due to this background of thinking, he cannot leave at least the real culprits and falsely implicate wrong persons, though possibility of false implication in some cases cannot be ruled out. ( 15 ) HOWEVER, before relying on a dying declaration, what is to be considered and what is to be ruled out for acceptability of the same is that injured was conscious; that the injured was oriented; that the injureds statement is not tampered with; that the injured is not influenced either because of motive or vanity or vengeance to involve someone wrongly and such other circumstances in the facts and circumstances of each case. If the dying declaration is found cleared of all such circumstances, then, in our opinion, it is the best evidence to act even without any corroboration. There is no law; nor rule which requires that the dying declaration cannot be accepted without corroboration. If the dying declaration is found cleared of all such circumstances, then, in our opinion, it is the best evidence to act even without any corroboration. There is no law; nor rule which requires that the dying declaration cannot be accepted without corroboration. Dying declaration should be by a conscious man, meaning thereby that the one who is making a statement must know that what he or she is stating and what would be the consequences of such statements. Whether a person is conscious or not, can be gathered by the doctor on clinical examination and also by an independent person by way of interrogation. If answers to questions put are rational, then the person can be said to be in fit state of mind. ( 16 ) WE will now deal with each dying declaration separately. P. W. 1 Kanjibhai, who was in the investigating squad of Naranpura Police Station, was communicated in writing by about 12. 15 of the noon that a woman named Kailasben Girishbhai is admitted in burnt condition in V. S. Hospital in Jain ward. On receipt of the vardhi, he immediately reached Jain ward and by 1. 00 PM he recorded the statement Ex. 14 of the injured. We will refer to the statement later on. However, we will refer to the evidence of this Kanjibhai P. W. 1 to find out as to what was the physical and mental condition of the injured. P. W. 1 has deposed that he reached the Jain ward by about 12. 50 noon where a woman named Kailasben was there in a burnt condition. She was conscious. He, therefore, called Dr. Vasantbhai Vania. He enquired of the name from injured and he was replied that her name is Kailasben Girishbhai Valand. Vardhi which he received mentions the name as Kailasben Kiritbhai. However, on enquiry, he found that there was no person like Kailasben Kiritbhai there and he, therefore, realised that name kiritbhai is written by mistake. He took the statement of Kailasben, as she was conscious. He took the statement because her condition was serious and it was recorded as per her say. He has recorded the statement in narrative form on his asking questions and her giving the replies. He completed the recording of the statement at 1. 25 P. M. Thereafter, her thumb mark was placed in his presence. He took the statement because her condition was serious and it was recorded as per her say. He has recorded the statement in narrative form on his asking questions and her giving the replies. He completed the recording of the statement at 1. 25 P. M. Thereafter, her thumb mark was placed in his presence. Doctor was also present at that time and he had also signed the same in his presence. In the cross-examination, he has stated that when he went to Kailasben, there was none with her. None of her relations was there. However, a nurse was present there. When he reached near Kailasben, Kailasben was burnt. However, she was shouting of pain. He had seen burns on her eyes and chest. She was shouting for some time and keeping quiet for some time. Ward Doctor was standing there. In the beginning, he enquired about the name of Kailasben. A doctor was called from outside and thereafter statement was recorded and the doctor signed the same. Doctor was present at the time when the statement was recorded. He has denied that right thumb mark on the dying declaration is taken after Kailasben has died. He has denied that accused no. 1 was present in another cot in that very Jain ward room no. 3. He has admitted that after recording statement, he and doctor came out of the ward. After the charge was amended, the witness was recalled and submitted for further cross-examination and in that further cross examination, he has reaffirmed that at the time of recording statement of Kailasben, except doctor and himself, none was present. ( 17 ) REFERRING to this evidence, Mr. Barot contended that by this evidence it is not clear that injured was conscious and oriented. So far as Kanjibhai P. W. 1 is concerned, on reaching the hospital, he had enquired about the name of the injured and in the presence of doctor, he has recorded the statement. Doctor has in the vardhi specifically stated that patient was conscious. No doubt, the words conscious and oriented may technically convey different meanings and condition of the injured, but when doctor wanted to convey that the patient is conscious, more particularly when it is enquired for the purpose of recording her statement, the reply of the doctor about the consciousness must also be considered for patient being oriented. No doubt, the words conscious and oriented may technically convey different meanings and condition of the injured, but when doctor wanted to convey that the patient is conscious, more particularly when it is enquired for the purpose of recording her statement, the reply of the doctor about the consciousness must also be considered for patient being oriented. There is a technical difference between conscious and oriented and that difference can only be known by the doctor and not by an ordinary man. Ordinarily, what is oriented is conscious, meaning thereby if anything is asked and enquired from the injured, injured would reply to it. If a patient is not oriented or suffers from some imagination or hallucination, it will immediately be reflected in the statement. One thing is made clear that Kanjibhai P. W. 1 on receipt of vardhi from P. S. I. of Naranpura Police Station, has reached V. S. Hospital to the bed of injured. Kanjibhai P. W. 1 was not knowing anything except the fact that a woman named Kailasben is admitted in the hospital and she is injured of burns. In that state of situation, how such a detailed statement can be recorded by P. W. 1, if not replied to by the injured. There are facts stated in the statement at Ex. 14, which could only be known by injured and her family members who are involved in the incident. How this witness Kanjibhai P. W. 1 would know about such details of facts and reflect them in the statement ? Substance of the statement at Ex. 14 recorded by him is as under:-THAT the injured was married since three years and was residing with her husband jointly with mother-in-law, father-in-law, brothers-in-law and sister-in-law. She has given the names of her father-in-law, mother-in-law, sister-in-law and brothers-in-law. It is also stated that since last week, there were quarrels between mother-in-law, sister-in-law and brothers-in-law pertaining to household work. Cause of quarrel of the day of incident is that she had gone outside her house to throw away ash of the furnace and she threw the same on the road. A quarrel was picked up by her mother-in-law, saying that why the same is thrown on the road. All the three, namely, mother-in-law, sister-in-law and brother-in-law Ramesh, quarrelled with her and saying why she spoke against his mother, brother-in-law Ramesh gave two slaps on her cheek. A quarrel was picked up by her mother-in-law, saying that why the same is thrown on the road. All the three, namely, mother-in-law, sister-in-law and brother-in-law Ramesh, quarrelled with her and saying why she spoke against his mother, brother-in-law Ramesh gave two slaps on her cheek. She, therefore, wanted to inform her grand mother-in-law Shardaben. However, she was not allowed to go and the door was pressed, meaning thereby that she was not allowed to go. She was caught hold by her brother-in-law Ramesh and was told " You die on sprinkling kerosene. " He had then left. She had, therefore, an anger and she poured kerosene on her person and her mother-in-law, who was standing there, lit her. ( 18 ) THIS statement contains certain personal facts and names, which would only be known to the family members. Names of brothers-in-law, sister-in-law, mother-in-law, father-in-law; cause for quarrel; name of the grand mother-in-law; and the reason for giving slaps and she being prevented from complaining to her grand mother-in-law, are such that it would be beyond capacity of P. W. 1 Kanjibhai to concoct the same. Therefore, the facts in the statement recorded by P. W. 1, in our opinion, has a ring of truth therein and there is no reason to accept the say of the defence that the statement was taken down after her death and the thumb mark was taken of a dead person. From this suggestion of the defence, one fact emerges is that the thumb mark taken on the statement is not disputed to be of the deceased. Question is whether the thumb mark was taken on her statement when she was alive or dead? We do not find any reason to disbelieve Kanjibhai P. W. 1, who had no axe to grind against any of the accused, and in particular when there are no allegations about the axe to grind against the accused. We, therefore, accept the version of Kanjibhai P. W. 1. Statement of the injured was recorded by Kanjibhai P. W. 1 after enquiring from doctor as to whether she was conscious. ( 19 ) DR. VANIA was not initially examined at the time of trial. However, Dr. Vania is examined by this court and Dr. Vania has stated in his deposition at Ex. 46 that on physical examination, on general appearance, patient was conscious. ( 19 ) DR. VANIA was not initially examined at the time of trial. However, Dr. Vania is examined by this court and Dr. Vania has stated in his deposition at Ex. 46 that on physical examination, on general appearance, patient was conscious. She was obeying his verbal orders on vital data. He has further deposed that in his presence, Police enquired from the patient and has recorded dying declaration. It is Ex. 14. Same bears his signature also. At that time, patient was conscious. He was present throughout the period when the Police recorded the said dying declaration. He has further deposed that in the statement recorded by the Police, thumb mark of the patient was taken in his presence. In the cross examination, it is tried to show that as C. N. S. (Central Nerves System) condition is not recorded, the patient was not oriented, though she may be conscious. The doctor has denied the same. To a specific question that there is a distinction between person being conscious and the person being oriented, the reply given by the doctor is that conscious person is oriented to time and place. The defence wanted to suggest that orientation can be certified only after examination of C. N. S. and the reply given is in the affirmative and in the present case, admittedly no record is maintained to show C. N. S. condition. However, doctor has denied that in the case papers, there is no mention of C. N. S. condition. When the injured was first admitted in the Emergency Ward, history recorded is burns at 10. 00 AM with kerosene. Immediately from that Emergency Ward, injured is admitted as an indoor patient and there the history recorded by the doctor is that burns with kerosene and flamed by family members, as patient says. Therefore, this history in the indoor department case papers is recorded by the doctor, as narrated by the injured. It is also mentioned that on physical examination, patient is conscious and obey verbal orders. At that time i. e. at about 11. 45 AM, temperature was normal; pulse were 120 per minute; respiration normal; B. P. 100/70 and all other systems were found normal. Therefore, keeping in mind this evidence of Dr. Vania recorded before this court, there is no reason to believe that injured was not oriented when first statement was recorded, which is Ex. 45 AM, temperature was normal; pulse were 120 per minute; respiration normal; B. P. 100/70 and all other systems were found normal. Therefore, keeping in mind this evidence of Dr. Vania recorded before this court, there is no reason to believe that injured was not oriented when first statement was recorded, which is Ex. 14 on record. Therefore, in our opinion, statement at Ex. 14 is sufficient to rely upon. Learned Additional Sessions Judge has erred in not accepting the same. ( 20 ) SECOND dying declaration is recorded by Executive Magistrate P. W. 6 at Ex. 25. P. W. 6 received the vardhi at 13. 40 hours, informing him to go to V. S. Hospital and record the dying declaration. On receipt of the same, he immediately proceeded to V. S. Hospital, Jain Ward, Room No. 3. He went to the hospital in Government vehicle, where he reached by about 14. 00 hours. According to him, he directed all her relations to go out of the ward and called for Dr. Vasantbhai, who was treating her. This P. W. 6 has taken an endorsement below the vardhi Ex. 24 to show that the patient is conscious, meaning thereby a dying declaration can be recorded. The witness has stated that inspite of the opinion of the doctor, he himself also verified about the consciousness of the injured and then he started recording dying declaration. He was asking questions and injured was replying the same. This dying declaration is recorded in question and answer form and the same is at Ex. 25 on the record. In the cross-examination, this witness P. W. 6 has stated that he did enquire from the doctor as to whether Kailasben is conscious or not, as her dying declaration was to be recorded. Doctor asked the name of Kailasben to verify whether she is conscious or not and on being satisfied, he endorsed that injured is conscious. Doctor did ask the injured that Executive Magistrate has come for recording the dying declaration, but the patient had not given any reply. The Executive Magistrate P. W. 6 was informed that injured is conscious and he may proceed to record dying declaration. Certain questions are put in the cross-examination about the physical condition of the injured, but that, in our opinion, suggests consciousness of the injured. The Executive Magistrate P. W. 6 was informed that injured is conscious and he may proceed to record dying declaration. Certain questions are put in the cross-examination about the physical condition of the injured, but that, in our opinion, suggests consciousness of the injured. If an injured is conscious, then he may feel pain and if it becomes unbearable, the injured may shout. Suggesting that the injured was shouting, in our opinion, is suggestive of the consciousness of the injured. He has taken the right thumb mark. He denies to have seen thumb of the left hand. We may state at this juncture that right thumb mark is also taken by P. W. 1 below Ex. 14. This witness has specifically stated that when he reached the hospital, he asked all the family members to go out of the room and the doctor was there, who certified that she was conscious. Keeping this in mind, we may look into the dying declaration at Ex. 25 recorded by P. W. . 6. This dying declaration does not refer to the fact of cause of quarrel on that very day, namely, that she had gone out to throw ash and her mother-in-law picked up quarrel, saying why ash is thrown on the road. However, the fact remains that she herself poured kerosene on her person and mother-in-law lit her. Sister-in-law and brother-in-law Ramesh were present when quarrel took place. An additional fact is stated in this dying declaration that when she was burnt, she has caught hold of the hand of her mother-in-law and she is also burnt. There is no dispute of the fact that mother-in-law has burn injuries of that very day and very time. Explanation of accused no. 1, mother-in-law, is that she got burn injuries because she tried to extinguish fire on the person of the deceased. Therefore, again a question that will be required to be determined is whether accused no. 1 got burns while extinguishing fire on the person of the deceased or deceased caught hold of accused no. 1 when she tried to light her. It should be borne in mind that the burn patient just feel calm down after some time, despite the fact that his/hers health might be deteriorating. The fact remains that injured was conscious at the time when her dying declaration was recorded by P. W. . 6. 1 when she tried to light her. It should be borne in mind that the burn patient just feel calm down after some time, despite the fact that his/hers health might be deteriorating. The fact remains that injured was conscious at the time when her dying declaration was recorded by P. W. . 6. We are not able to find any answer or statement in this dying declaration, which may suggest that injured was not oriented also. Thus, this dying declaration is also duly recorded when injured was conscious and in her full sense. She was in fit state of mind and we are not able to find anything from the evidence of P. W. 6 even to feel that there was a probability of injured being unconscious at the relevant time. Thus, we do not find any reason not to accept the evidence of this witness. We fail to understand why the evidence of this witness is not accepted by learned Additional Sessions Judge. Evidence of this witness does not create a dilemma about the consciousness of the injured and, therefore, the conclusion not to accept the evidence of this witness by learned Additional Sessions Judge is erroneous one. . ( 21 ) THERE is a third dying declaration. However, the same is an oral one. P. W. 3 Subhadraben, maternal aunt of the injured, who resides in Jamalpur area, was informed of the incident by noon of that day. She was informed that her niece is burnt and admitted in V. S. Hospital. She accordingly informed other two nieces and all the three went to V. S. Hospital by about 3. 30 P. M. , where they found Kailasben in a burnt condition. At that time, mother-in-law of injured was there. She was also burnt. Both i. e. injured and her mother-in-law, were in the same room and injured told her i. e. P. W. . 3 that her brother-in-law assaulted her and she got angry and, therefore, sprinkled kerosene on herself and her mother-in-law lit her and, therefore, she is burnt. In her cross-examination, this witness P. W. 3 has stated that injured was conscious upto 4. 00 to 5. 00 PM. Cots of Kailasben and that of her mother-in-law were at a distance of about 4 and a chair was lying in between the two cots. In her cross-examination, this witness P. W. 3 has stated that injured was conscious upto 4. 00 to 5. 00 PM. Cots of Kailasben and that of her mother-in-law were at a distance of about 4 and a chair was lying in between the two cots. Evidence of this witness is challenged by the defence on the ground that that as Kailasben was burnt, this witness was in anger and, therefore, she is wrongly roping in these accused persons. ( 22 ) ON reading of the three dying declarations, namely, Ex. 14, Ex. 25 and the oral dying declaration made before Subhadraben P. W. . 3, it is clear that in all these statements amounting to dying declarations, injured has stated that she poured kerosene on her person and her mother-in-law lit her and at the time when mother-in-law lit her, she caught hold of hand of her mother-in-law i. e. accused no. 1, and is burnt. Accused no. 1 had burn injuries on her hand. Accused no. 1 was admitted in the hospital. Ex. 12 is the certificate to that effect, wherein history stated by accused no. 1 reads as under:-"alleged history of burns while she was trying to save her daughter -in-law, who also got burn at the same time. Burns percentage left upper arm 2%. There is a foot note that patient insisted for operation (word appears to be a mistake for admission)"2% burns on the upper arm would not normally be a case for admission in the hospital. The same can be treated as an outdoor patient and patient or injured can be straightway discharged. However, patient here insists for admission. We say that the word operation is a mistake, as there would be no question of operation in case of burns and in particular when the burns are at the upper arm to the extent of 2% only. It is not shown what was the degree of burns. In our opinion, insistence for admission as an indoor patient by itself suggests that accused no. 1 does not want to leave injured alone, which may create problem for her. This is why she wanted to stay in the hospital with the injured. If we look at all the three dying declarations, they cannot be said to be inconsistent with each other. In Ex. 1 does not want to leave injured alone, which may create problem for her. This is why she wanted to stay in the hospital with the injured. If we look at all the three dying declarations, they cannot be said to be inconsistent with each other. In Ex. 14, cause of quarrel is shown to be throwing of ash on the road, which is absent in the dying declaration recorded by the Executive Magistrate and also before P. W. 3. In the Police statement, which is a dying declaration Ex. 14, there is absence of the fact that injured caught hold of the hand of her mother-in-law and she was also injured, but these omissions, in our opinion, do not amount to contradiction to damage the substantial say that she herself poured kerosene on her person and her mother-in-law lit the same. ( 23 ) IT will be pertinent to note that when a quarrel takes place in a family, wife is on one side and rest of the members of the family, being brothers, sister, mother and father of the husband of the injured, are on the other front/side. It is difficult for the wife to get support to her say. In this hostile state of atmosphere, evidence of injured should be given highest importance without contravening the principle of appreciation of evidence in criminal law. Evidence of injured should not be rejected on flimsy grounds, unless there is substantial evidence to destroy her evidence. In the instant case, there is no material not to accept her say, either before Kanjibhai P. W. 1 or before Yahaswa P. W. 6 or before Subhadraben P. W. 3. ( 24 ) DEFENCE has not challenged the fact that she was burnt, but disputes burns by kerosene. An attempt is made by the defence to say that no smell of kerosene by which she is alleged to have burnt herself is found either on her person or at the place where she was burnt. It will be relevant to state at this juncture that the place where she was burnt appeared to have been washed and cleaned out and so far as her person is concerned, no clothes were found on her person except few burnt cloth pieces collected by the investigating agency while drawing panchnama of the scene of offence. It will be relevant to state at this juncture that the place where she was burnt appeared to have been washed and cleaned out and so far as her person is concerned, no clothes were found on her person except few burnt cloth pieces collected by the investigating agency while drawing panchnama of the scene of offence. It is unfortunate that the panchas, P. W. 7 and P. W. 8, of the scene of offence have turned hostile. Simply because the panchas have turned hostile, it does not mean that the alleged place is not the scene of offence. Even the defence has not disputed that injured was burnt in the house and then she came out and fell down on ota. This part is supported by the evidence of Puspaben P. W. 5, who has also turned hostile. Puspaben P. W. 5 has stated that while she was standing on ota, she saw injured coming out of the house in burning condition. What she has added in her evidence which required the prosecution to declare her hostile, is that she was at the relevant time standing with Hiraben, accused no. 1, and on seeing Kailasben coming out in burning condition, Hiraben rushed to save her. This is altogether a new case made out by her than that of before the Police. She has stated that she was standing with Hiraben, when Kailasben came out of the house in burning condition. Evidence of this witness P. W. 5 suggests that Kailasben came out of the house in a burning condition. Whether deceased has died of burns by kerosene or not, in our opinion, is not a relevant fact to be decided. However, except saying that there is no smell of kerosene anywhere. nothing has been suggested by the defence. Accused no. 4 was in the house. Accused no. 1 claims to be sitting on ota of the neighbouring house at the relevant time from where she rushed and tried to extinguish fire. If deceased has not burnt by kerosene, they very well knew how she was burnt. They are not coming forward with the say as to how she burnt. Case of the prosecution that deceased has burnt with kerosene is established by the evidence of Forensic Science Laboratory, where some burnt pieces of cloth were sent for analysis. They found hydrocarbons, remains of kerosene, vide Ex. 41. They are not coming forward with the say as to how she burnt. Case of the prosecution that deceased has burnt with kerosene is established by the evidence of Forensic Science Laboratory, where some burnt pieces of cloth were sent for analysis. They found hydrocarbons, remains of kerosene, vide Ex. 41. Seizure of this burnt pieces of cloth, in our opinion, is duly proved by the evidence of investigating Officer P. W. 12. Thus, it is duly established by the prosecution that deceased has died of burns of kerosene in her house and the fact is established from all three dying declarations that she was lit by her mother-in-law, accused no. 1. We are not able to appreciate how the learned Additional Sessions Judge has come to a different conclusion. According to learned Additional Sessions Judge, two dying declarations Ex. 14 and Ex. 25 are suspicious ones, as prosecution has not examined Dr. Vania, who had certified her to be in conscious state of mind. We have examined that doctor before this court and it is proved that she was in fit state of mind to give dying declarations. Learned Additional Sessions Judge has also not accepted the dying declarations, alleging that the same might have been tampered with by the presence of P. W. 3. Dying declaration Ex. 14 is recorded at 13. 00 hours. Dying declaration at Ex. 25 is recorded at 14. 30 hours and it is not disputed in evidence of P. W. 3 that she reached hospital by 15. 30 hours. Another fact which requires consideration is that according to the defence, accused no. 1 was there in the hospital in that very ward in an adjoining bed, where the injured was lying. Accused no. 1 was there in the ward with the injured and yet we are asked to accept the tutoring of the injured against her and others. We do not think that she will not protest for all the time when the injured is speaking against her and her family members, which has very serious implications. ( 25 ) HERE, in the instant case, P. W. 1 had been putting questions and the injured was replying the same and at no point of time, P. W. . 1 has felt that the replies given were not rational so as not to accept whatever statement is made by the injured. ( 25 ) HERE, in the instant case, P. W. 1 had been putting questions and the injured was replying the same and at no point of time, P. W. . 1 has felt that the replies given were not rational so as not to accept whatever statement is made by the injured. So also is the case with P. W. 6. Both of them have stated that the injured was in a fit state of mind and they are corroborated by Medical Officer on this point. Simply because certain record is not maintained in the hospital, that by itself does not entitle one to say that person was not in a fit state of mind. According to defence, unless Central Nerves System is operative and in good state, injured will not give proper replies to call it rationale. In the instant case, from the evidence of P. W. 1, P. W. 6 and of Dr. Vania recorded before this court, it is clear that injured was conscious and oriented also. Defence has not been able to show as to which of the relations of the injured from her paternal or maternal side were in the hospital before 3. 30 P. M. when for the first time P. W. 3 had reached the hospital and which of those relations of the injured were there and have tampered with the investigating agency, who were recording statements to be called as dying declarations. There is no suggestion that any of the relation of the deceased was in the hospital, when P. W. 1 and P. W. 6 were recording statements. On the contrary, injured was taken to the hospital by her husband and his relations and in particular accused no. 1 was in the hospital and wanted to be admitted, despite the fact that she had a minor injury, not calling for admission as an indoor patient in the hospital. So defence has not been able to suggest or make out any tampering of dying declaration and, therefore, dying declaration is free to be accepted on this count. ( 26 ) DYING declaration if required to be accepted, should also be free of influence of anyone adverse to the accused. There is nothing on record to show that anyone had influenced the injured so as to wrongly involve the accused persons. ( 26 ) DYING declaration if required to be accepted, should also be free of influence of anyone adverse to the accused. There is nothing on record to show that anyone had influenced the injured so as to wrongly involve the accused persons. Except the complaint of her being harassed by her in-laws, there is no other motive to wrongly involve them. There cannot be any vanity on her part to teach them a lesson; nor there would be any vengeance against the accused persons. Alleged complaint of harassment, in our opinion, cannot be said to be of such a degree of vanity or vengeance to motivate her to lead to involve them wrongly when anyone of her breath was going to be the last. Fortunately, she survived from 10. 00 Oclock morning after injury till 8. 00 Oclock in the evening. Any breath during this period could have been the last and that appears to have been proved by the evidence of P. W. 3. It is stated that when the last breath of a person comes, person gets a solemn sense to understand what is the truth and after understanding the same, a person would not dare to tell a lie. In view of these facts, and in view of the above factual background, we do not find any infirmity in any of the dying declarations, namely, Ex. 14, Ex. 25 and oral dying declaration before P. W. . 3. ( 27 ) THE dying declarations before P. S. I. and Executive Magistrate are challenged on the ground of improbabilities by the defence and the learned Additional Sessions Judge has accepted the same. In our opinion, learned Additional Sessions Judge has erred in considering that it was improbable for either P. S. I. or Executive Magistrate to reach the hospital and record the statements. Ex. 14 is recorded at 13. 00 hours. P. W. 1, who has recorded the same, has stated that he was informed by Police Station Officer of Naranpura Police Station at 12. 15 hours and in that vardhi, it is specifically stated that the injured is admitted in V. S. Hospital in Jain Ward, Room No. 3. He has reached the hospital by 12. 50 hours and has recorded the statement Ex. 14, which is now treated as dying declaration, at 13. 0o hours. He has completed the same at 13. 25 hours. He has reached the hospital by 12. 50 hours and has recorded the statement Ex. 14, which is now treated as dying declaration, at 13. 0o hours. He has completed the same at 13. 25 hours. Learned Additional Sessions Judge has considered this aspect of reaching from Naranpura Police Station to V. S. hospital an improbability. The Police Officer, if moves in a Police vehicle at 12. 30 noon of the day, when practically there is no traffic on the road, can very swiftly reach the hospital and the place, as it was specified in the vardhi. In our opinion, we do not find any improbability so far as the timings are concerned. This dying declaration is also challenged on the ground that P. S. I. himself has overacted in introducing the answer to the last question. Last question is whether injured wanted to say anything and the reply recorded is "my mother-in-law had taken away my ornaments yesterday on picking quarrel". Learned counsel for the defence has contended that this answer is introduced by P. S. I. with a view to bring the case within the purview of offence for demand of dowry. The question of taking away ornaments is not referred to in the dying declaration before the Executive Magistrate, but that by itself is not a ground to reject the dying declaration at Ex. 14. For all the time, case of the prosecution is that injured was meted with cruelty, torture and taunts reflecting on her understanding and intelligence. It is nowhere the case of the prosecution that there was a demand for dowry and that was pressed. This apart, what earthly reason can there be for P. S. I. to introduce such fact, if not stated by the injured. There is no suggestion to make out a case under Dowry Prohibition Act. Thus, when dying declaration at Ex. 14 is given by the injured when she was conscious and oriented and there is no proof that the same is either tampered with or influenced for motive, vanity or vengeance, there can be no reason not to accept the same and it cannot be said that it was improbable for the P. S. I. to rush to the hospital and record the statement. ( 28 ) SUCH an argument is also advanced for the dying declaration Ex. 25 recorded by the Executive Magistrate. ( 28 ) SUCH an argument is also advanced for the dying declaration Ex. 25 recorded by the Executive Magistrate. Executive Magistrate P. W. 6 received vardhi from Naranpura Police Station to reach V. S. Hospital, Jain Ward, Room No. 3, and record the statement of one Kailasben. Though the name of the husband of the injured was stated as Kiritbhai instead of Girishbhai, the same was verified, but person with correct name being the same, he has to record the dying declaration of that very lady. Person referred in vardhi and one whose statement is recorded being the same is not disputed by the defence. On reaching the hospital by 14. 00 hours, he has immediately called for the doctor and started recording dying declaration and he has completed the same at 14. 30 hours i. e. within 30 minutes. The aspect that the dying declaration is required to be recorded of the person, who is in a state of apprehension of death on account of his/her physical condition, injuries, etc. must be known to this executive magistrate. Therefore, it appears that the Executive Magistrate has given topmost priority to that work and with utmost sincerity and efficiency, he has completed the same as early as he can as he very well knew that a person, who is in the state of apprehension of death may give up the breath anytime and his sincere labour may not be lost. So, if the Executive Magistrate has completed the recording of dying declaration within 30 minutes, in our opinion, it should be appreciated instead of looking upon with doubt to affect credibility of the dying declaration. Defence has challenged this dying declaration on the ground of improbability also. Police Officer of Naranpura Police station has informed the Executive Magistrate sitting in Collectors office at Gheekanta, who has then reached V. S. Hospital within 30 minutes and the dying declaration is recorded within next 30 minutes. It was contended before the learned Addl. Sessions Judge that it was humanly improbable for the Executive Magistrate to reach V. S. Hospital within such a short period. P. W. 6 has, in his evidence, admitted that on receipt of the yadi, he immediately proceeded to V. S. Hospital in Police vehicle. V. S. hospital is at a distance of about 5 to 7 kms from his office. P. W. 6 has, in his evidence, admitted that on receipt of the yadi, he immediately proceeded to V. S. Hospital in Police vehicle. V. S. hospital is at a distance of about 5 to 7 kms from his office. At noon time, there is always scanty traffic and more particularly traffic does not obstruct much Police vehicles when they are on duty. Thus, it is not improbable for the Executive Magistrate to reach from his office to V. S. Hospital within 30 minutes i. e. by 14. 00 hours and commence recording dying declaration. It was not necessary for the Executive Magistrate to search for the patient, as in the yadi served on him the full address was disclosed and was accompanied by a Police, who served him the yadi. Thus, recording of this dying declaration Ex. 25 also cannot be said to be improbable. Learned Additional Sessions Judge, in our opinion, has erred in holding that it was improbable to record dying declaration within such a short span of time. Any fact may not be accepted if it would be impossible to happen, but improbabilities do not necessarily lead to impossibilities. In our opinion, each of the dying declaration is independently sufficient to be acted upon and also they can be collectively acted upon. Learned Additional Sessions Judge, in our opinion, has wrongly refused to accept the said evidence. ( 29 ) SUPREME Court in the case of Tarachand Damu Sutar vs. State of Maharashra (A. I. R. 1962 SC 130) in its majority view has held that the conviction based on dying declaration was sustainable. Relevant observation in para 8 reads as under:-" (8) The argument raised before us was twofold: (1) that the appellant was not present at the place of occurrence at all and (2) that it was a case of suicide. There are no cogent grounds which would lead to the conclusion that the deceased wanted to commit suicide nor have any circumstances been shown to us which would lead to any such conclusion. Even though it may be true that the relations between the husband and the wife were strained so much so that the husband had almost refused to maintain the deceased and was not prepared to give her even food, there is no indication that the deceased was so worked as to have lost her self-control so as to commit suicide. Even though it may be true that the relations between the husband and the wife were strained so much so that the husband had almost refused to maintain the deceased and was not prepared to give her even food, there is no indication that the deceased was so worked as to have lost her self-control so as to commit suicide. Certain other circumstances as to the absence of any kerosene oil on the clothes of the appellant or the absence of kerosene oil on the bedding have been pointed out, but in the circumstances of this case, those circumstances are of no significance. Both the trial court and the High Court have found that the deceased had died as a result of burns caused by the fire set to her clothes by the appellant, who had sprinkled kerosene oil on her. This is supported by the dying declarations against the correctness of which no cogent reasons have been given or suggested and a conviction based on such evidence has been held to be sustainable by this court in Khushal Rao vs. State of Bombay, 1958 0 SCR 552 ; ( AIR 1958 SC 22 )". ( 30 ) IN a minority view in that case, it is held that a dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely. It can only be believed if there are no grounds for doubting it at all. ( 31 ) FROM this judgment of the Supreme Court, it is clear that if any doubt can be cast on the correctness or independence of dying declaration, the same cannot be believed. In our case, there are as many as three dying declarations and each can be acted independently and the same cannot be doubted. Any doubt raised by the defence about the correctness of the dying declaration should not be based on flimsy grounds. It must be a doubt of a reasonable man leading to give some weight or importance to that doubt, leading to infer that some foulplay is played in recording the same. Such a doubt is absent in the present case with regard to any of the dying declarations. ( 32 ) IN the case of K. Ramachandra Reddy and another vs. Public Prosecutor (A. I. R. 1976 S. C. 1994), supreme Court has held in para 6 as under:-"6. Such a doubt is absent in the present case with regard to any of the dying declarations. ( 32 ) IN the case of K. Ramachandra Reddy and another vs. Public Prosecutor (A. I. R. 1976 S. C. 1994), supreme Court has held in para 6 as under:-"6. The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext P 2. The dying declaration is undoubtedly admissible under section 32 of the Evidence Act 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 on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent 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 the 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. 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. The law on the subject has been clearly and explicitly enunciated by this court in Khushal Rao vs. State of Bombay, 1958 0 SCR 552 ( AIR 1958 SC 22 ), where the court observed as follows:- "on a review of the relevant provisions of the Evidence Act and on the decided cases in the different High Courts in India and in this court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony, which may suffer from all the infirmities of human memory and human character; and (6) that in order to test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. " ( 33 ) THE above observations made by this court were fully endorsed by a Bench of five Judges of this court in Harbansingh vs. State of Punjab 1962 Supp. (1) SCR 104 - ( AIR 1962 SC 439 ). In a recent decision of this court in Tapindersingh vs. State of Punjab 1971 (1) SCR 599 - ( AIR 1970 SC 1566 ) relying upon the earlier decision referred to above, this court observed as follows:-"it is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused, but a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principles of necessity. The weak points on a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances". In Lallubhai Devchand Shah vs. State of Gujarat (1971) 3 SCC 767 - ( AIR 1972 SC 1776 ), this court laid special stress on the fact 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 deceased was in a fit state of mind and observed as follows:- " The court, therefore, blamed Dr. Pant for not questioning Triloksingh with a view to test whether Triloksingh was in a fit state of mind to make the statement. The fit state of mind referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding". The fit state of mind referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding". From this judgment, it is clear that if the statement of dying man is made without any influence or rancour and it is found to be true and voluntary, no corroboration is required to act upon it. ( 34 ) IN the case of Somappa Vamanappa Madar Shankarappa Ravanappa Kaddi vs. State of Mysore ( AIR 1979 SC 1831 ), it is held that the opinion of the doctor is not conclusive on a question of ability of the deceased to talk immediately after the occurrence. There, the Supreme Court has held in para 12 as under:-"12. Added to these infirmities, learned counsel appearing for the appellants, Mr. Jhavali, pointed out that the prosecution cannot rely on Ex. P. 9 as FIR, as the statement of P. W. 5 was recorded at the Police Station at about 9. 00 PM long after the investigation commenced. It is common ground that on receipt of information regarding the occurrence at about 8. 00 PM, P. W. 38 the Police Officer went to the scene, saw the injured, sent him to the hospital and also arrested the accused and seized his clothes long before the statement was recorded from P. W. 5. The statement from P. W. . 5 will, therefore, be statement recorded during investigation and no reliance can be placed on it, except as a statement recorded by the Police during investigation. The learned counsel also read to us the extracts from Ex. P 9 and pointed out the meticulous manner in which the particulars of the accused and the deceased are given with their names, surnames, fathers names and the names of the villages and submitted that the entire document is suspicious, leading to the conclusion that the document was prepared after considerable deliberation. We agree with the learned counsel that the statement recorded from P. W. 5 cannot be used as FIR. We agree with the learned counsel that the statement recorded from P. W. 5 cannot be used as FIR. So far as his comment on the particulars given regarding the deceased and the accused is concerned, we feel that as they were recorded during investigation, it is probable that the particulars were obtained when the accused who was in custody was questioned. The rejection of Ex. P. 9 as FIR would not detract the testimony of the eye witnesses, which will have to be assessed on its own merits. The learned counsel submitted that it is evident that the eye witnesses were too anxious to exaggerate when they speak of the dying declaration as having been given by the injured person, when they saw him after the attack by the accused. According to the learned counsel, the deceased was so badly injured that he could not have been in a position to speak. He further relied on the circumstances that the Police Officer did not question the injured and when the injured was produced before the doctor. The doctor is very clear that he (the injured) was not in a position to speak. He also relied on the conclusion arrived at by the trial court on this aspect. The trial court observed that P. W. 32 stated that when he was brought to the dispensary, his power of speech was affected. The doctor also stated that his sensory area of the brain which is at the parietal region was affected. We have gone through the testimony of the doctor and we are not satisfied that his evidence is sufficient to come to the conclusion that the deceased would not have been in a position to talk immediately after the occurrence. No doubt, the doctor would state that there would have been instantaneous shock, but that would not rule out the possibility of the deceased speaking for a while. P. W. 18 Madanappa, the doctor, who conducted the post-mortem, was of the view that the deceased might have been conscious and might have been able to speak for some time, even though he was not able to say how long he would have been conscious. According to P. W. 18, the centre of speech was not affected. P. W. 18 Madanappa, the doctor, who conducted the post-mortem, was of the view that the deceased might have been conscious and might have been able to speak for some time, even though he was not able to say how long he would have been conscious. According to P. W. 18, the centre of speech was not affected. In the cross-examination of P. W. 32, questions of general nature were put to the doctor and the doctor expressed his view generally in the following manner:- the speech depends upon the coordinate activities of the sensory and cystic motor area. Apart from the statement that power of speech of the deceased was affected, he stated that the patient was under shock and looking at the injuries it must have been instantaneous shock. The evidence of P. W. 32 which is at variance with the evidence of P. W. 18 who conducted the post mortem, is not sufficient to rule out the possibility of the deceased having made the dying declaration to the eye witnesses. The High Court rightly commented on the evidence of the experts and expressed its view that whether the shock had actually set in on Basangouda Patil when he sustained injuries could be narrated by the persons who had seen him at that point of time and the doctor who examines an injured later would not be in a position to provide a satisfactory answer to such a question. The opinion of the doctor that looking to the injuries he was of the view that the shock would have been instantaneous cannot be conclusive on a question of ability of the deceased to talk. We agree with the conclusion arrived at by the High Court". We are of the opinion that immediately after the incident when the injured has informed to eye witnesses about the occurrence, expert evidence, whether this can happen or not, is of no significance. To accept this, it is necessary that the ocular evidence should be acceptable one. In this case, there are as many as three dying declarations recorded one after another and every time, except with last oral dying declaration, the doctor was there, who has certified that injured was conscious and the statement was made in fit state of mind. To accept this, it is necessary that the ocular evidence should be acceptable one. In this case, there are as many as three dying declarations recorded one after another and every time, except with last oral dying declaration, the doctor was there, who has certified that injured was conscious and the statement was made in fit state of mind. ( 35 ) IN the case of Bolum Bhaskara Rao and another vs. State of A. P. ( 1985 Criminal Law Journal 32), andhra Pradesh High Court has also taken an identical view and that view is also based on Supreme Court judgments in the case of K Ramachandra Reddy (Supra) and Somappa (Supra ). ( 36 ) THUS, the latest legal position is that the evidence of dying declaration can be the sole basis for conviction without any corroboration if the dying declaration is not tainted by any of the infirmities, namely, of mental fitness, probability of the same being tampered with; declarant being influenced either by motive, vanity, vengeance or by some relations present there and there appears no tinge of any zeal or over act on the part of recording officer. The dying declarations are required to be accepted in the instant case, as they stood all the concerned tests. Therefore, in our opinion, the learned Additional Sessions Judge has erred in not accepting the evidence of dying declaration. ( 37 ) THIS brings us to the question whether the accused were prejudiced by two alternative but contradictory charges levelled against them. Initially, the accused were charged under section 302 I. P. C. and later on the charge was amended and the accused are also charged in the alternative under sec. 306 of I. P. C. Admittedly and undisputedly, sec. 306 of I. P. C. i. e. abetment to commit suicide, is not a minor offence of sec. 300 of I. P. C. i. e. murder. Homicide is killing of a human being by a human being. Suicide is self killing. In the present case, few facts at the cost of repetition are required to be stated again. Deceased was harassed on a question of household work. There used to be quarrels since a week prior to the incident with more gravity. In the morning of the day of incident at about 9. 00 AM, accused no. Suicide is self killing. In the present case, few facts at the cost of repetition are required to be stated again. Deceased was harassed on a question of household work. There used to be quarrels since a week prior to the incident with more gravity. In the morning of the day of incident at about 9. 00 AM, accused no. 1 - mother-in-law picked up quarrel on the question of throwing ash on the road and when deceased replied to her mother-in-law, accused no. 3 took side of accused no. 1, his mother, and gave two slaps to the deceased. When the deceased tried to complain about the same to her grand mother-in-law, she was forcibly prevented by accused nos. 3 and 4. Annoyed with this, deceased appears to have decided to commit suicide and in furtherance thereof, she sprinkled kerosene on her person. However before she could light herself, accused no. 1 lit her and the deceased was burnt. Deceased caught accused no. 1 and she was also burnt on her hand. It is not the case of the defence or any suggestion that after sprinkling kerosene on herself, she herself lit her. There is nothing on record to show that she had the match stick when she sprinkled kerosene on herself. Fact remains that she is burnt and had died of burns. Short question is who lit the deceased ? Accused no. 1 or deceased herself. If it is proved that it is accused no. 1 who has lit the deceased, then the offence would be of murder under sec. 300 and if it is proved that deceased herself lit her, then it would be an offence under sec. 306 I. P. C. , as it is her say that the quarrels and the slaps given by accused no. 3, were the last straw to lead her to or instigate her to commit. The question then would remain is which of the accused will be responsible for the same. Defence is silent as to how she was burnt. She came out from the house in burning condition and then fell on the ota from where she was removed to the hospital. The question then would remain is which of the accused will be responsible for the same. Defence is silent as to how she was burnt. She came out from the house in burning condition and then fell on the ota from where she was removed to the hospital. ( 38 ) IN view of the above facts, short question that arises is: if deceased had lit herself, why could she not have stated that being annoyed and angered with the behaviour of her in-laws, she lit herself. If we accept the say of the defence that version of the deceased injured in the dying declaration is not voluntary and true, we may be doing injustice not only to the deceased, but to the society as human psychology says that he tells the truth when he knows that be breathes the last. None of her statements or any part thereof suffers from inconsistency or incoherence and she was fully conscious and did not suffer from confusion or hallucinations. Therefore, in view of these facts, the question to be decided is whether by the alternative charge, accused are prejudiced and if so, how prejudiced in fact. In our opinion, accused have initially defended themselves against a charge under sec. 302. Charge under sec. 306 was added only at a stage when two of the dying declarations were proved. Evidence, which remained to be recorded, was of panch witnesses and some evidence as to cruelty to prove charge under sec. 498a. Witnesses were recalled and cross-examined after the charge was amended. Even the evidence of the Executive Magistrate was recorded after the charge was amended. The facts for charge under sec. 306 were already there on record. As stated earlier, sprinkling kerosene on the deceased by herself is not disputed by defence. Short question was who lit the deceased. Therefore, in our opinion, in view of the facts of the present case and when sufficient opportunity was given to the accused to meet with the alternative charge, simply because of the alternative charge appear to be contradictory or conflicting does not prejudice the accused. ( 39 ) MR. Short question was who lit the deceased. Therefore, in our opinion, in view of the facts of the present case and when sufficient opportunity was given to the accused to meet with the alternative charge, simply because of the alternative charge appear to be contradictory or conflicting does not prejudice the accused. ( 39 ) MR. BAROT, relying on a judgment in the case of Sangaraboina Shreenu vs. State of Andhra Pradesh Judgment Today 1997 (5) S. C. 47, contended that when learned A. P. P. has specifically stated before the learned Additional Sessions Judge that he does not press for charge under sec. 302 I. P. C. , then accused also cannot be convicted under sec. 306 I. P. C. Supreme Court has, by short order, held as under:-"1. The appellant was put up for trial before the Sessions Judge, Warrangal for uxoricide. The accusation against him was that on May 13,1987 at or about 9. 30 PM, he poured kerosene oil on the body of his wife and set her on fire. The trial court convicted the appellant under sec. 302 I. P. C. , but in the appeal preferred by him, High Court set aside his above conviction and convicted him under sec. 306 I. P. C. The above judgment of the High Court is under challenge in this appeal. 2. This appeal must succeed for the simple reason that having acquitted the appellant of the charge under sec. 302 I. P. C. , which was the only charged framed against him, the High Court could not have convicted him of the offence under sec. 306. It is true that sec. 222 Cr. P. C. entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried, but sec. 306 I. P. C. cannot be said to be minor offence in relation to an offence under sec. 302 I. P. C. within the meaning of sec. 222 Cr. P. C. for the two offences are of distinct and different categories. While the basic constituent of an offence under sec. 302 I. P. C. is homicidal death, those of sec. 306 I. P. C. is suicidal death and abetment thereof. 3. For the foregoing reason, the appeal is allowed and the conviction of the appellant under sec. 306 I. P. C. is set aside. While the basic constituent of an offence under sec. 302 I. P. C. is homicidal death, those of sec. 306 I. P. C. is suicidal death and abetment thereof. 3. For the foregoing reason, the appeal is allowed and the conviction of the appellant under sec. 306 I. P. C. is set aside. The appellant who is on bail is discharged from his bail bonds". The above judgment, in our opinion, is not relevant for the purpose of this case. There, Supreme Court has set aside the conviction under sec,306 of I. P. C. on the ground that there was no charge at all under sec. 306 I. P. C. and accused was acquitted of offence charged under sec. 302. It is held by the Supreme Court that sec. 306 is not a minor offence in relation to an offence under sec. 302 in terms of sec. 222 of Criminal Procedure Code. Therefore, in our opinion, this judgment is not relevant for our purpose, as here in this case accused are charged under sec. 306 of I. P. C. in alternative. ( 40 ) SUPREME Court in the case of Lakhjit Singh and Anr. Vs. State of Punjab ( 1994 Supp. (1) SCC 173) has held in para 9 that in absence of any prejudice to the accused, such an alternative charge can be framed and accused can be convicted. Para 9 reads as under:-"9. The learned counsel, however, submits that since the charge was for the offence punishable under sec. 302 I. P. C. , the accused were not put to notice to meet a charge also made against them under sec. 306 I. P. C. and, therefore, they are prejudiced by not framing a charge under sec. 306 I. P. C. and, therefore, presumption under sec. 113a of Indian Evidence Act cannot be drawn and consequently a conviction under sec. 306 cannot be awarded. We are unable to agree. The facts and circumstances of the case have been put forward against the accused under sec. 313 Cr. P. C. and when there was a demand for dowry, it cannot be said that the accused are prejudiced because the cross-examination of the witnesses as well as the answers given under sec. 313 of Cr. P. C. would show that they had enough of notice of the allegations which attract sec. 306 I. P. C. also. 313 Cr. P. C. and when there was a demand for dowry, it cannot be said that the accused are prejudiced because the cross-examination of the witnesses as well as the answers given under sec. 313 of Cr. P. C. would show that they had enough of notice of the allegations which attract sec. 306 I. P. C. also. That apart, what all section 113 A of Evidence Act says is that the court, having regard to the other circumstances of the case can presume. Therefore, the circumstances in this case would show that the accused have been demanding dowry even within a short period after the marriage and the deceased had also to live in her parents house and it is the husband who went and brought her back. The deceased followed him and unfortunately, the incident has taken place. Since there is no direct evidence regarding administration of poison to the deceased as such, the only course left is to hold that the prosecution has proved only suicide. In these circumstances, sec. 306 is attracted. For these reasons, the conviction of the appellant under sec. 302 and sentence of imprisonment for life are set aside. Instead, they are convicted under sec. 306 I. P. C. and each of them is sentenced to undergo Rigorous imprisonment for five years and sentence of fine of Rs. 2000. 00 with default clause are confirmed. Subject to this modification, the appeal of is disposed of. If the appellants had already served out the sentence of five years, they need not be sent to jail again". . ( 41 ) IN this case, the charge is there under sec. 306 of I. P. C. , be it subsequently and in alternative. All opportunity to cross-examine all the witnesses on this charge is provided to the accused. Accused had further opportunity to explain circumstances proving this charge by way of cross-examining witnesses and making further statement. This apart, it is not shown how and what prejudice is caused to the defence by alternative charge. Hence, there is no substance in the contention that alternative charge has caused prejudice. ( 42 ) IN view of the above discussion, the question required to be considered is whether accused or which of the accused is guilty of and if so what offence. Hence, there is no substance in the contention that alternative charge has caused prejudice. ( 42 ) IN view of the above discussion, the question required to be considered is whether accused or which of the accused is guilty of and if so what offence. ( 43 ) IT is very clear from the evidence of P. W. 4 that when he went in the morning to the house of Bhavanbhai, who resides near the house of the accused, there was quarrel in the house of Kailasben. Except this part of evidence, no other part of evidence of this witness is acceptable, as he has turned hostile for the rest. Therefore, in the morning of the day of incident i. e. 6. 12. 86, there was quarrel in the house of Kailasben and that fact is further corroborated by her dying declarations before P. W. 1 Kanjibhai and P. W. 6 Yohaswa. Quarrels were going on and the matrimonial life of deceased was at rock because of the other family members, namely, accused nos. 1, 3 and 4. Accused no. 3 had married with the sister of deceased and their matrimonial life is also spoiled. From the evidence of Jyotsanaben, wife of accused no. 3, they are not able to pull on well and subsequent to the incident, she had filed an application for maintenance. It is clear from the evidence of father of the deceased Keshavlal that there were quarrels in the house of the deceased. It is also clear from the evidence of P. W. 11, brother of the deceased, that there used to be quarrels in the house. Thus, fact is that there were quarrels and the said quarrels have led to this occurrence. ( 44 ) TO answer the question as to who lit the deceased, an attempt is made on the part of accused no. 1 that when the deceased came out burning from the house, she was sitting on the ota of her neighbour Puspaben P. W. 5. As she was in menses, she had sat outside the house. Puspaben P. W. 5 has stated that accused no. 1 was sitting at her ota and when they saw Kailasben coming out in burning condition from the house, accused no. 1 rushed to save her and, therefore, her hand was burnt. Burn injury on the person of accused no. As she was in menses, she had sat outside the house. Puspaben P. W. 5 has stated that accused no. 1 was sitting at her ota and when they saw Kailasben coming out in burning condition from the house, accused no. 1 rushed to save her and, therefore, her hand was burnt. Burn injury on the person of accused no. 1 by itself conclusively suggests that she was present at the time of incident, but does not resolve whether the said burn injuries were caused while extinguishing fire of Kailasben or when Kailasben was put on fire, she caught hold of her. Puspaben has turned hostile. Hiraben, accused no. 1, was in the house. Jyotsanaben, sister of deceased and wife of accused no. 3, had left her matrimonial home before a week because of quarrels. All these facts suggest that there were quarrels and it was not a happy home. Adding insult to the injury, the incident of giving slaps was the last straw, which instigated her to commit suicide, but before she could complete the act of suicide, mother-in-law, accused no. 1, lit her. Therefore, we are of the opinion that it is the accused no. 1 who lit her and it was accused nos. 3 and 4, who instigated the deceased to sprinkle kerosene on herself and a set of situation was exploited by accused no. 1 and, therefore, accused no. 1 is guilty of offence punishable under sec. 302. ( 45 ) QUESTION is what offence would be committed by accused nos. 2,3 and 4. As per the dying declarations, there is no role played by accused no. 2. All said and done is by accused nos. 1, 3 and 4. Question will arise as to how sec. 114 is attracted. It is accused nos. 3 and 4, who have by their act created a situation in the background of the family quarrels, to lead deceased to sprinkle kerosene on herself to commit suicide. It is in evidence that accused no. 3 after giving slaps immediately left the house, but accused no. 4 had remained in the house and there was no attempt on her part to save the situation or deceased. Despite this, they cannot be said to have committed offence of murder i. e. sec. 302 read with sec. It is in evidence that accused no. 3 after giving slaps immediately left the house, but accused no. 4 had remained in the house and there was no attempt on her part to save the situation or deceased. Despite this, they cannot be said to have committed offence of murder i. e. sec. 302 read with sec. 114 I. P. C. ( 46 ) THIS will bring us to other charge of cruelty under sec. 498a of I. P. C. Relevant part of sec. 498a of I. P. C. reads as under:-"498a - Husband or relative of husband of a woman subjecting her to cruelty - Whoever be the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation: For the purpose of this section, "cruelty" means - (a) and wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or xx xxxit is in evidence that accused nos. 1, 3 and 4 and even the husband, accused no. 2, used to taunt and insult the deceased, saying that she is a rustic villager; she has a black complexion and she does not know even to lit the gas stove. Quarrels of this nature took place every day. In addition thereto, she was not permitted to take bath in the bath room and was required to take bath in open with cold water. This was the day-to-day harassment and the last incident was on the day of incident, when accused no. 1 picked up quarrel on the question of throwing ash on the road. Even her ornaments were taken away by her mother-in-law, accused no. 1. This fact is proved from the evidence of P. W. 2, P. W. 9 and P. W. 11. Unless there is a last straw, a person normally will not take the last step to end life. The harassment has then resulted into the stage of sprinkling kerosene on herself i. e. preparing for commission of suicide, and accused no. 1 lit her. So, in our opinion, accused nos. Unless there is a last straw, a person normally will not take the last step to end life. The harassment has then resulted into the stage of sprinkling kerosene on herself i. e. preparing for commission of suicide, and accused no. 1 lit her. So, in our opinion, accused nos. 1, 2, 3 and 4 being mother-in-law, husband, brother-in-law and sister-in-law, subjected her to cruelty, as defined in clause (a) of Explanation to sec. 498a of I. P. C. Therefore, accused nos. 1, 2, 3 and 4 are held guilty of offence punishable under sec. 498a read with sec. 114 of I. P. C. ( 47 ) ACCUSED no. 1 is held guilty of offence punishable under sec. 302 I. P. C. Accused no. 2,3 and 4 are acquitted of the charge under Sec. 302,ipc. All accused i. e. accused nos. 1,2,3 and 4 are also held guilty of offence punishable under sec. 498a read with sec. 114 of I. P. C. ( 48 ) AFTER declaring the above order of conviction , we have heard the learned Advocate Mr. Barot for the respondents on the question of sentence. Mr. Barot contended before us that respondents are facing this music of trial since 6th December, 1986,the day of incident and they also face social stigmatisation since then. Respondent no. 4 who was unmarried at the relevant time is now married and has a child of a year and a half. Respondent no. 1 is mother of respondents nos. 2,3 and 4. It is contended that if a liberal view is taken, purpose of conviction would be served. So far as charge of murder is concerned, minimum may be imposed on respondent no. 1 who is held guilty of the same. Keeping all these factors and lapse of time in recording conviction, we are also of the view that a liberal view may be taken which may serve the purpose of conviction and the intention and object of the legislature to add Sec. 498a in the statute book. We, therefore, pass the following order: ( 49 ) RESPONDENT no. 1/accused no. 1 is ordered to undergo rigorous imprisonment for life for offence punishable under Sec. 302,ipc. Respondents nos. 1 to 4 each is ordered to undergo simple imprisonment for one month and shall also pay fine of Rs. 500. 00, in default, 15 days S. I. Order accordingly. We, therefore, pass the following order: ( 49 ) RESPONDENT no. 1/accused no. 1 is ordered to undergo rigorous imprisonment for life for offence punishable under Sec. 302,ipc. Respondents nos. 1 to 4 each is ordered to undergo simple imprisonment for one month and shall also pay fine of Rs. 500. 00, in default, 15 days S. I. Order accordingly. Bail bonds stand cancelled. ( 50 ) LEARNED Advocate for the respondents seeks time of six weeks to surrender. After hearing the learned P. P. with A. P. P. we are of the view that time should be granted. Respondents are granted time to surrender for six weeks from today. .