JUDGMENT 1. - This is a jail appeal under Section 374 Cr. P.C. preferred against the judgment dated 31.8.96 of the learned sessions Judge, Ajmer, convicting the appellant under Section 302 I.RC. and sentencing him to imprisonment for life and a fine of Rs. 500/-. 2. The short facts of the case are these. Deceased Geeta was married to appellant Girdhari Lal more than 10-12 years before the alleged occurrence. Kesri (since acquitted) was her mother-in-law. It is alleged that the relations of husband and wife were not smooth. The cause is said to be the habit of appellant Girdhari to take liquor and beat Geeta. The unfortunate incident occurred on 7.6.1994, though in the charge framed against the accused, this is a clerical mistake and the date 8.6.1994 has been mentioned. The case was registered under Section 307 I.RC. on the basis of the statement of Geeta recorded at 12.30 a.m. in the hospital by Brahma Ram, A.S.I. RW. 11 wherein she is said to have stated that when she was sitting out side her house at about 8 or 8.30 p.m., accused Girdhari, who was drunk, started abusing her and Kesri instigated him to set her to fire. On which it is alleged, Girdhari went inside the house, brought a bottle full of kerosene oil, poured the same on Geeta and applied a lighted match stick. Geeta, it is stated, while burning cried for help, whereupon the neighbours reached there and came to her rescue. During the course of investigation, Geeta succumbed to the burn injuries in the morning of 8.6.1994, hence Section 302 IPC was added. It is stated that prior to her death,1'RW. 13 Shri N.K. Karnani, Judicial Magistrate had recorded the statement of Geeta between 11 p.m. & mid-night. The autopsy was performed by Dr. L.N. Singhesh RW. 7. After the completion of the investigation, the police submitted a challan against Girdhari appellant and Kesri. 3. The trial Court framed a charge under Section 302 IPC against Girdhari and under Section 304/108 IPC against Kesri. In order to prove the charges, the prosecution examined 13 witnesses. They are RW. 1 Shakuntala, RW. 2 Narendra Singh, RW. 3 Ram Khiladi, P.W. 4 Rajesh, RW. 5 Neelkanth, RW. 6 Dr. RK. Saraswat, RW. 7 Dr. L.N. Singhesh, RW. 8 Jai Ram, P.W. 9 Gyan Chand, RW. 10 Janki Devi, RW. 11 Brahma Ram, RW. In order to prove the charges, the prosecution examined 13 witnesses. They are RW. 1 Shakuntala, RW. 2 Narendra Singh, RW. 3 Ram Khiladi, P.W. 4 Rajesh, RW. 5 Neelkanth, RW. 6 Dr. RK. Saraswat, RW. 7 Dr. L.N. Singhesh, RW. 8 Jai Ram, P.W. 9 Gyan Chand, RW. 10 Janki Devi, RW. 11 Brahma Ram, RW. 12 Durga Ram and P.W. 13 Nand Kishore Karnani. Accused Girdhari in his statement under Section 313 Cr. P.C. denied accusation. He came out with the case that he wanted to live with his mother but Geeta did not like it and she used to quarrel with him and earlier she had tried to commit suicide by jumping in a 'Bawari' and she had even consumed some poisonous substance. He stated that his wife used to threaten him that she would die and implicate him and his mother. The accused did not examine any witness in defence. 4. The learned Sessions Judge held that Geeta had died of the burn injuries suffered by her. Relying on the two dying-declarations in part, he held that the charge against Girdhari was fully established. He, however, disbelieved the dying declarations against Kesri and acquitted her. The State has not challenged the acquittal of Kesri. 5. Mr. Gupta, learned Amicus Curiae for the appellant, contended that the trial court has erred in placing reliance on the two dying declarations Ex.P. 12 and Ex.R 18. Pointing out that before recording the dying declarations the certificate of the medical officer, that the deceased was in fit state of mind had not been obtained, he contended that the dying declaration can not be made basis of conviction. In support of his contentions, he cited the cases of Paparambaka Rosamma & Ors. v. State of A.P. (JT 1999(6) SC 585) , Jai Karan v. State of N.C.T. Delhi (JT 1999(7) SC 514 ), Paramjit Singh v. State of Punjab and others JT 1997(1) (S.C.) 336 , State of Punjab v. Gyan Kaur (1998 S.C.C.(Cr.) 942 ). Pointing out that Geeta had 100% burns and was unconscious throughout, he canvassed that there could not be any possibility of Geeta to give statement and put her thumb mark on the statement. 6. On the other hand, Mr. Pointing out that Geeta had 100% burns and was unconscious throughout, he canvassed that there could not be any possibility of Geeta to give statement and put her thumb mark on the statement. 6. On the other hand, Mr. Satish Purohit, learned Public Prosecutor, contended that the dying declaration Ex.R 18 was recorded by the Judicial Magistrate and there could not be any cause for him to fabricate false evidence against the accused. He submitted that without the certificate of the medical officer, they dying declaration can be made a basis of conviction. In support of his contention he cited the cases of Koli Chunilal Savji and another v. State of Gujarat (1999 Cr.L.J. 4582 ), Jai Prakash and others v. State of Haryana 1999 Cri. L.J. 837 , Harjit Kaur etc. v. State of Punjab 1999 Cri. L.J. 4055 and Ram Bihari Yadav v. State of Bihar and others 1998 Cri. L.J. 2515. 7. We have given our thoughtful consideration to the submissions made by learned counsel for the parties. It is not in dispute that Geeta had suffered burn injuries on 7.6.94 and she had died of extensive dry burns on 8.6.94. The prosecution had relied on the following items of evidence to prove charge against Girdhari:- (i) Direct Evidence (ii) Dying Declaration 8. As to the first item of evidence, it may be stated that the alleged eye witnesses have not supported the prosecution story. RW. 4 Rajesh is the son of the deceased and appellant Girdhari. He has disclosed his age as 18 years. He deposes that when he returned in the evening, food was not cooked and, therefore, he complained to his father. He, however, does not support further the prosecution version that in his presence the accused had poured kerosene on Geeta and set her fire. The witness has been declared hostile. The other persons who are said to have reached the house of the deceased immediately after the occurrence are RW. 1 Shakuntala, RW. 2 Narendra Singh and RW. 3 through their statements that the accused used to beat his wife and that he had set ablaze to Geeta but they too have not supported the prosecution version and have been declared hostile. It is thus obvious that the first item of evidence is not proved against the appellant. 9. 1 Shakuntala, RW. 2 Narendra Singh and RW. 3 through their statements that the accused used to beat his wife and that he had set ablaze to Geeta but they too have not supported the prosecution version and have been declared hostile. It is thus obvious that the first item of evidence is not proved against the appellant. 9. Now we switch over to the two dying declarations alleged to have been made by the deceased. It is thus obvious that the first item of evidence is not proved against the appellant. 9. Now we switch over to the two dying declarations alleged to have been made by the deceased. The statement of Geeta said to have been recorded by the Magistrate is reproduced hereunder:- xhrk iRuh fxj/kkjhyky tkfr tkVo mez 36 o"kZ fuoklh meyk ckoM+h] xat] vtesj is'kk ?k: /kU/kk us 'kiFkiwoZd c;ku fd;k fd eq>s vkt 'kke vkB lk<+s vkB cts ds chp tyk;kA ml le; esa ?kj ds ckgj cSBh FkhA rks eq>s esjs ifr fxj/kkjh us 'kjkc ihdj dsjkslhu Mkydj tyk fn;kA igys Hkh 3&4 ckj mlus ,slk djus dh dksf'k'k dh FkhA esjk ifr esjs ls 'kjkc ihdj jkstkuk >xM+k djrk gSA esjh lkl dsljh us esjs ifr dks mdlk;k fd ' lkyh dks tyk nks ' rks esjs ifr us eq>s dsjksflu Mkydj tyk fn;kA ml le; esjs isVhdksV] Cykmt o lkM+h igus gq, FksA esjh 'kknh gq, 13 lky gks pqds gSa tks vtesj esa gqbZ FkhA esjs ,d yM+dh o ,d yM+dk gSA yM+dk ihgj esa gSA esjk ifr esjs ls 'kjkc ds fy;s] ngst de ykus ds fy;s ges'kk >xM+rk FkkA vHkh eSa vLirky esa gwWaA esjk ifr tykus ds ckn Hkkx x;k] lkl vUnj tkdj cSB x;hA fQj eSa csgks'k gks x;h] ;gkWa eq>s dkSu yk;k eq>s irk ughaA esjs ifr us nks nQk igys esjs ij ?kklysV Mky fn;k Fkk] tyk;k ughaA eSaus vius ifr dks >xM+k djus ij igys Hkh iqfyl esa cUn djok fn;k FkkA nk: dh cksry esa esjk ifr dsjksflu rsy ysdj vk;k] eSaus cksry dks idM+k Hkh] ysfdu mlus esjs ij dsjksflu Mkydj eq>s ekfpl ls tyk fn;kA esjk ifr fxj/kkjhyky ew<+s cukrk gSA lkl dsljh dqN ugha djrh gSA esjh lkl ml le; ikl gh FkhA vM+kslh&iM+ksfl;ksa us esjh vkx cq>k;hA yM+dk o yM+dh nksuksa i<+rs gSaA eSa vui<+ gwWaA esjk ihgj tkojk esa gS tks jryke ds ikl gSA esjs firkth dk uke izsepUn gSA esjs ifr o lkl dks bl dk;Z ds fy;s ges'kk ds fy;s ltk ns nksA esjs vkneh ds yD[ku [kjkc gS] blfy;s cPps fiV jgs gSaA fu0v0 xhrk vkj0 vks0,.M0,0lh0 g0 uanfd'kksj djukuh 7-6-94 ,V 11-50 ih0,e0ts0,y0,u0 gkWLihVy] vtesj Qhesy lftZdy okMZ , ,.M ch csM ua0 11 10. In the instant case, it is admitted position that Geeta had 100% burns on her body when she was admitted in the hospital on 7.6.1994. Dr. L.N. Singhesh P.W. 7 who had performed autopsy deposes on the basis of the bed-head ticket that at the time Geeta was admitted in the hospital, her pulse rate was 120 p.m. which was indicative of the fact that she was in serious condition. He deposes that the B.P of Geeta could not be recorded, and that on the bed-head ticket, it is no recorded that at any time after the admission of Geeta, her pulse rate came down from 120. His categorical statement is that from the time Geeta was admitted in the hospital and till she died, she remained unconscious and that it is not recorded on the bed head ticket that at any time Geeta had regained consciousness. It has also come in his evidence that when Geeta was admitted in the hospital, Fortwin Injection was administered and it was repeated after eight hours. 11. According to Dr. Singhesh, the For twin injection cause sedation and the patient remains in the condition of sleep. Making the position clear. Dr. Singhesh says that there was possibility of unconsciousness because Geeta had suffered 100% burns. By the statement of Dr. Singhesh, which is based on the entire recorded on the bed-head it is fully established that Geeta was unconscious when she was admitted in the hospital and she remained unconscious till she died. 12. Now the question that arises for consideration is whether RW. 11 Brahma Ram recorded the statement of deceased Geeta, wherein she is said to have stated that accused Girdhari had poured kerosene oil on her and lit her by a match stick. In our considered view, on the basis of the facts which have appeared in the statement of Dr. Singhesh, it can not be believed that Geeta deceased could give the statements like Ex.R 12 and Ex.R 18. A patient with 100% burns and more so when she was kept in sedation, in our opinion, could not be in a position to give such details of the occurrence which have been mentioned in the two statements. 13. Singhesh, it can not be believed that Geeta deceased could give the statements like Ex.R 12 and Ex.R 18. A patient with 100% burns and more so when she was kept in sedation, in our opinion, could not be in a position to give such details of the occurrence which have been mentioned in the two statements. 13. It is significant to point out that the prosecution has come out with a case that the statement of Geeta was recorded after the medical officer had certified that she was in a fit state of mind to give statement, but it has not proved, the medical certificate, said to have been given by the doctor. Mr. Karnani, RW. 13 deposes that he had given a letter to Mr. RK. Saraswat inquiring him whether Geeta was in a position to give statement on which Mr. Saraswat had certified that she was in a position to give her statement. This important document containing the certificate of the medical officer regarding the mental condition of Geeta has not seen the light of the day. No explanation what-so-ever has been given for with-holding this important document. Mr. Karnani, P.W. 13 in his statement admits that the letter which he gave to the medical officer was not available on the file. It is rather surprising that even after that fact came to the notice of the Public Prosecutor steps were not taken by the prosecution to bring the certificate on record. In this connection, it is relevant to state that Dr. RK. Saraswat RW. 6 no where says that Mr. Karnani, Magistrate ever gave him a letter requiring him to certify the mental condition of Geeta and he had recorded his opinion thereon. Dr. Saraswat even does not say that Geeta was in fit state of mind at any time after she was admitted in the hospital. He is the person who had prepared the injury report Ex.R 8 at the time Geeta was admitted in the hospital. The report Ex.R 8 which was prepared at 10.10 p.m. indicates that there were 100% burns on the body of Geeta and she was in shock. By this medical evidence, it becomes all the more clear that Geeta could not be in a position to give statement to Mr. Karnani between 11 and 12 in the night. The statement of Dr. By this medical evidence, it becomes all the more clear that Geeta could not be in a position to give statement to Mr. Karnani between 11 and 12 in the night. The statement of Dr. Karnani that he had obtained a certificate as to the mental condition of Geeta from Dr. Saraswat is not corroborated by the testimony of Dr. Saraswat RW. 6 and, therefore, it is difficult to accept that Geeta was in fit state of mind to give any statement. 14. Apart from that, it is evident from the statement of Mr. Karnani RW. 13 that Dr. Saraswat had not examined Geeta in his presence. On the statement' Ex.P. 18 also, there is no note indicating the presence of the doctor at the time of the same was recorded. It has, therefore, to be accepted that before recording the statement Ex. 18, the Magistrate had not obtained a certificate from the Medical Officer as to the mental condition of Geeta. 15. Mr. Karnani RW. 13 however, deposes that Geeta was in position to give statement. His statement is to the following effect:- " esjs irk ugha fd xhrk dk jDrpki ukih ijh{k.k ml le; fjdkWMZ djus ;ksX; ugha Fkk ijUrq og c;ku nsus dh fLFkfr esa FkhA ;g eq>s irk ugha fd tyus dh pksVksa ds dkj.k xhrk ml le; cspSuh dh gkyr esa FkhA og v/kZewPNkZ dh fLFkfr esa ugha Fkh u c;ku nsus dh fLFkfr esa FkhA " 16. The question for consideration is whether the statement of Shri Karnani should be believed and whether on this part in can be found that Geeta was in fit mental condition go give her statement.Firstly, it may be stated that there is no note recorded by Mr. Karnani on the statement of Ex.P. 18, that he had himself and he was satisfied that Smt. Geeta was in a position to give statement. Therefore, this part of his statement, that she was in a position to give statement can not be believed. It may be stated at the cost of repetition that according to the medical record Geeta was unconscious for all the time, and, therefore, there could not be any cause for the satisfaction of Mr. Therefore, this part of his statement, that she was in a position to give statement can not be believed. It may be stated at the cost of repetition that according to the medical record Geeta was unconscious for all the time, and, therefore, there could not be any cause for the satisfaction of Mr. Karnani that Geeta was in a position to give statement, and such a statement in which she would narrate not only all the details of the occurrence, but also the past history.Secondly, there is not material on record on which it can be said that Geeta was identified by any person before Mr. Karnani. We have already seen that Dr. Saraswat does not say that the Magistrate had recorded the statement of Geeta in his presence. RW. 12 Durga Ram who had requested the Magistrate to record the statement of Geeta also does not say that he was present and he had identified the lady as Geeta whose statement was recorded by Mr. Karnani. In such circumstances, the contention of Mr. Gupta, that it is possible that Mr. Karnani recorded the statement of some other lady who gave statement at the instance of the police pretending her to be Geeta and stating the facts as were told to her by the Investigating Officer, cannot be said to be without substance. 17. The important question that requires for consideration is whether without the certificate of the Medical Officer, the dying declaration Ex.R 18 can be acted upon for upholding the conviction of the appellant. In this connection, two cases of the Apex Court have been cited by the learned counsel for the parties. While the learned Public Prosecutor placed reliance on the case of Koli Chunilal. Savji and another (a three Judge Bench decision), the appellant's counsel placed reliance on the case of Paparambaka (another three Judge Bench decision). 18. In this connection, two cases of the Apex Court have been cited by the learned counsel for the parties. While the learned Public Prosecutor placed reliance on the case of Koli Chunilal. Savji and another (a three Judge Bench decision), the appellant's counsel placed reliance on the case of Paparambaka (another three Judge Bench decision). 18. In the case of Paparambaka (supra) their lordships have observed that in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making declaration.It is significant to point out that in that case there was a certificate of the Medical Officer at the end of the statement which was recorded in question and answer form saying "the patient is conscious while recording the statement", and the Magistrate himself had recorded a certificate that the patient was in conscious state and was in sound of mind to give her statement, and she understood about the contents of the dying declaration. Yet their lordships refused to act upon the dying declaration observing that in medical science, there are two stages viz. conscious and fit state of mind and they are distinct and not synoymous. It was further observed that one may be conscious but not necessarily in a fit state of mind. 19. The position, in the instant case, is all the more worse. There is neither the certificate of Shri Karnani Magistrate on the statement Ex.R 18 that he was satisfied as to the mental condition of Geeta, nor there is a certificate of Dr. Saraswat that Geeta was conscious. Keeping in view the dictum in the case of Paparambaka (supra) it would be highly unsafe to uphold the conviction of the appellant on the basis of the dying declaration Ex.R 18. 20. As regards the case of Koli Chunilal (supra) it may be stated that in that case it was in evidence of the Magistrate that the Medical Officer had introduced the deceased to him and the doctor had categorically stated that the patient was in a conscious condition. Not only, that there was an endorsement of the doctor on the Police Yadi that the patient was fully conscious. Not only, that there was an endorsement of the doctor on the Police Yadi that the patient was fully conscious. It is in these circumstances that their lordships held that the dying declaration could be acted upon even without the certificate of the Medical Officer on the statement of the deceased as to her mental condition. Moreover, in that case, the question of identity of the person, whose statement was recorded, was also not in dispute. That being so, the case of Kili Chunilal (Supra) does not help the prosecution. 21. In the case of Harjit Kaur (supra) their lordships have held that the endorsement by the doctor, as to the fit condition of the deceased to make statement, recorded on the application and not on the dying declaration, would not render the dying declaration suspicious. As already stated, in the case in hand, no certificate of the Medical Officer, on whatever document, has been produced. As such, that case does not help the prosecution. In the other cases cited by the Public Prosecutor, there was certificate of the medical officer about the mental condition of the deceased. 22. It seems, in the instant case, neither the Magistrate has recorded any certificate that he was satisfied from the preliminary questions put to the patient that she was in a fit state of mind to give statement nor there is the certificate of the Medical Officer as to the mental condition of the patient. Therefore, it can not be safe to act upon the dying declaration Ex.R 18. 23. The prosecution has also relied on the statement of Geeta Ex.R 12 recorded by RW. 11 Brahma Ram, which has been treated as F.I.R. This statement indicates that Geeta had given all the details of the occurrence including, as to the vocation of her husband, as to his addiction to liquor, as to the living of her children and the manner of the occurrence. As already stated, the medical evidence shows that right from the moment Geeta was admitted in the hospital, she was unconscious and she did not regain consciousness. As such, there could not be any possibility of Geeta giving the statement Ex.R 12. It is relevant to state the Bramaharam did not get Geeta identified by any one. As already stated, the medical evidence shows that right from the moment Geeta was admitted in the hospital, she was unconscious and she did not regain consciousness. As such, there could not be any possibility of Geeta giving the statement Ex.R 12. It is relevant to state the Bramaharam did not get Geeta identified by any one. He was not the Investigating Officer of the case and he had gone to the hospital on the basis of the information received from there. There was no doctor in the ward when he had recorded the alleged statement of Geeta. It has appeared in his cross-examination that both the hands of the lady were burnt and, therefore, he did not obtain her thumb mark or the signatures on the statement Ex.P. 12, Though in his examination-in-chief he had stated that Geeta had put her thumb mark 'X' on the statement Ex.P. 12. But the learned Public Prosecutor did not get the matter clarified by putting questions in his re-examination. The fact remains that according to the testimony of Brahma Ram, the whole of the body of the lady was burnt and her hands were also burnt and, therefore, she was not in a position to put her thumb mark. It has, therefore, to be held that the statement Ex.P. 12 does not bear the thumb mark of deceased Geeta. The trial Court has tried to meet the contention of the defence counsel in this manner that by mistake Brahma Ram deposes that he had not obtained the thumb mark of the lady. There may be thumb mark on the statement but when, Brahma Ram admits that her both the hands were burnt and he had not obtained the signatures or thumb mark of the person, whose statement he had recorded, it has to be found that the statement Ex.P. 12 does not bear the thumb mark of Geeta deceased. 24. That being so, it is highly unsafe to uphold the conviction of the appellant on the basis of the two dying declarations relied on by the prosecution. 25. It is significant to point that the trial court itself has not believed the two dying declarations against the accused Kesri and State has not challenged her acquittal. This is again a ground which persuades us that it will not be safe to act upon the dying declarations. 26. 25. It is significant to point that the trial court itself has not believed the two dying declarations against the accused Kesri and State has not challenged her acquittal. This is again a ground which persuades us that it will not be safe to act upon the dying declarations. 26. The motive for the crime as disclosed in the two statements of the deceased is that the appellants used to cause cruelty to the deceased in relation to the demand of dowry. Rajesh, the son of the deceased was 17 years when the occurrence had taken place. It is difficult to believe that 17 years after the marriage there could be an occasion of causing cruelty for the dowry. It appears that there was not conversation between the deceased and the appellant as she had not cooked food for their son on which the deceased took the extreme step of ending her life. The appellant can not be held guilty of causing her death. It is significant to point out that Dr. Singhesh does not rule out it to be a case of suicide. 27. Consequently the appeal succeeds. The conviction of the appellant and sentence passed against him are hereby set-aside and he is acquitted of the charge. The appellant is in jail. He is directed to be released forthwith. If not required in any other case.Appeal allowed. *******