JUDGMENT R.L. Khurana, J.:- The appellant, Bhim Singh, hereinafter referred to as the accused, has come up in appeal before this court against the judgment dated 20.3.1999 of the learned Additional Sessions Judge, Mandi, in Sessions Trial No. 29 of 1997, whereby he has been convicted for the offences under Section 302 and 298-A, Indian Penal Code, and sentenced as under:- Offence 302,Indian Penal Code 408-A, Indian Penal Code Sentence imposed.- Rigorous imprisonment for life and fine of Rs. 5000/-.In default of fine, simple imprisonment for two years. Rigorous imprisonment for a period of six months 2. The two substantive sentences of imprisonment were ordered to run concurrently. 3. The prosecution story briefly may be stated thus. Smt. Banti Devi daughter of PW 6 Lekh Ram was married to the accused sometime in the year 1990 and since after her marriage she started living with the accused and other members of her in-laws family in village Chowk, Tehsil Sundernagar of District Mandi. A son and a daughter was born to Smt. Banti Devi. Smt. Uma Devi is the mother while Smt. Urmila Devi is the sister-in-law (brothers wife) of the accused. 4. On 17.4.1997 at about 9.35 PM Smt. Banti Devi was brought to the Sub- Divisional Hospital, Sundernagar by the accused and other persons with burn injuries. She was having 85% to 90% burn injuries on her person. PW 13 Dr. D.S. Verma, the then Medical Officer on duty telephonically informed the police about Smt. Banti Devi having been brought to the hospital with burn injuries. On the basis of such information, PW 19 Inspector Hans Raj went to the hospital and moved an application Ex. PW 13/A before PW 13 Dr. D.S. Verma for an opinion if Smt. Banti Devi was fit to make a statement. PW 13 vide his certificate Ex. PW 13/C opined that Smt. Banti Devi was fit to make a statement. PW 19 Inspector Hans Raj then recorded the statement Ex. PW 13/D of Smt. Banti Devi under Section 154, Code of Criminal Procedure, to the following effect:- "Stated that my marriage took place with Bhim Singh about five years back. My parental house is in village Veena. Lekh Ram is my father. He stays at home. Yesterday I had gone to my parents. Today my brother Ramesh Chand has come with me to my in-laws house. My husband always used to abuse me. My parental house is in village Veena. Lekh Ram is my father. He stays at home. Yesterday I had gone to my parents. Today my brother Ramesh Chand has come with me to my in-laws house. My husband always used to abuse me. I have two children, Ghanshyam and Krishna Devi. My mother-in-law is also quarreling with me always. My husband and mother in law have been quarreling with me on petty matter. Today also a quarrel took place between me and my husband. My husband always acts as per the dictates of my mother-in-law. 1 sprinkled about two litre of kerosene contained in a can on my person and then had set myself on fire with the help of a match stick. My husband was present there. My mother-in-law was not present at home then as she was lying admitted in the hospital for the past 2/3 days. At that time my brother-in-law (husbands elder brother) Chaman and sister-in-law (husbands brothers wife) Urmila were also present in my house. My brother who had accompanied me to my house had asked my husband as to why beatings were being given to me." 5. On the basis of such statement, a case for the offence under Section 498-A, Indian Penal Code came to be registered at Police Station, Sundernagar vide FIR No. 100 of 1997. 6. Smt. Banti Devi was referred to Zonal Hospital, Mandi for further treatment and management. She was brought to such hospital on the mid-night of 17/18.4.1997. She died due to the extensive burn injuries at about 7.10 AM on 22.4.1997. The post mortem examination was carried out by PW 12 Dr. L.D. Vaidya in whose opinion the death was caused due to extensive burns involving 85% of the body area resulting in septicaemic shock and related complications. 7. During the course of investigation it was revealed that Smt. Banti Devi, hereinafter referred to as the deceased, was being treated well by the accused and other members of his family for about three four years of her marriage. Thereafter the deceased was being treated with cruelty by the accused. The deceased continued tolerating the cruelties of the accused with a hope that the conduct of the accused towards her would improve. Thereafter the deceased was being treated with cruelty by the accused. The deceased continued tolerating the cruelties of the accused with a hope that the conduct of the accused towards her would improve. Smt. Uma Devi, mother and Smt. Urmila Devi, sister-in-law respectively of the accused have been instigating the accused for the cruelties to which the deceased was being subjected to. 8. The investigation also revealed that the accused on the evening of 25.2.1997 had picked up a quarrel with the deceased on the pretext that the food cooked by her was not of his taste. He gave beatings to the deceased and tried to strangulate her. The deceased saved herself by running away from her matrimonial house along with her daughter, who was of about two years of age. She took shelter in the house of PW 9 Smt. Mathura Devi, a resident of the same village. She stayed in the house of PW 9 Mathura Devi on the night of 25.2.1997. 9. In the meanwhile, since the deceased failed to return home, a search was carried out for her by the accused, his brother and other relatives/friends. DW 2 Chaman Lai, a brother of the accused, was deputed to go to the house of the parents of the deceased to find out regarding her whereabouts. PW 3 Smt. Phoolan Devi and PW 6 Lekh Ram, the mother and father of the deceased, on coming to know that the deceased was missing from her matrimonial home also started looking out for the deceased. Having failed to locate the deceased, PW 6 Lekh Ram reported the matter to PW 5 Dina Nath, Pradhan 6f Gram Panchayat, Luakhar. On 26.2.1997, PW 3 Smt. Phoolan Devi PW 5 Dina Nath and PW 6 Lekh Ram came to the house of the accused. The accused was not at home at that time. By that time the deceased had returned to her matrimonial house from the house of Smt. Mathura Devi. PW 2 Changu Ram, the Pradhan of Gram Panchayat of the village of the accused was called for. In the presence of the two Pradhans, namely PW 2 Changu Ram and PW 5 Dina Nath, the deceased, on being asked by her parents, told them as to what had happened on the previous day. PW 2 Changu Ram, the Pradhan of Gram Panchayat of the village of the accused was called for. In the presence of the two Pradhans, namely PW 2 Changu Ram and PW 5 Dina Nath, the deceased, on being asked by her parents, told them as to what had happened on the previous day. Since, the accused was not present at home at that time, DW 2 Chaman Lai and Smt. Uma Devi (brother and mother respectively of the accused) who were present at home, were not ready and willing to take the responsibility qua the safety and well being of the deceased. As a result the deceased and her daughter was taken to her parental home in village Kathwar by her parents. The deceased and her father PW 6 Lekh Ram also consulted a lawyer, that is, PW 14 Rajinder Kumar Sharma, Advocate of Sundernagar for advice as to the course of legal action, if any, required to be taken. On the instructions of the deceased PW 14 issued a notice Ex. PW 5/B to the accused on 26.2.1997, complaining therein about the cruelties to which the deceased was being subjected to. On the receipt of such notice, the accused is alleged to have gone to the house of PW 6 Lekh Ram. He was accompanied by certain persons, including PW 2 Chhangu Ram. The differences between the deceased and the accused were patched up. The accused assured and undertook not to treat the deceased with cruelty in future. Consequently upon such patch up, the deceased returned to her matrimonial home. As per the prosecution, the conduct and behaviour of the accused towards the deceased did not change even thereafter. On 17.4.1997 at about 9 PM the accused picked up a quarrel with the deceased and during such quarrel, he picked up a can containing kerosene. He then poured kerosene on the person of the deceased and set her on fire in order to kill her. When the deceased cried for help, the accused bolted the room from inside. He then threw a quilt Ex. P 1 on the burning body of the deceased. He also threw one sack Ex. P 2 on her person. The door of the room was then opened by the accused. DW 2 Chaman Lal came into the room. When the deceased cried for help, the accused bolted the room from inside. He then threw a quilt Ex. P 1 on the burning body of the deceased. He also threw one sack Ex. P 2 on her person. The door of the room was then opened by the accused. DW 2 Chaman Lal came into the room. The cries of the deceased had attracted PW 11 Sanjay and his brother Ramesh (since dead) to the spot. They found the deceased completely burnt. PW 11 Sanjay asked the accused as to what had happened. The accused told him that the deceased should be shifted to the hospital immediately and that it was not the time to find out the cause of fire. The deceased was accordingly taken to the hospital by the accused, DW 2 Chaman Lal and PW 11 Sanjay. 10. Further case of the prosecution is that while on way to the hospital, the accused, his brother DW 2 Chaman Lal and PW 11 Sanjay (who is a cousin of the accused) had impressed upon the deceased that she should make a statement favourable to them to the police otherwise she would not be got treated medically. It was under these circumstances that statement Ex. PW 13/D cume to be mude by the deceased to PW 19 Inspector Hans Ruj. 11. On 20.4.1997 while the deceased was lying admitted in Zonal Hospital, Mandi, PW 18 ASI Des Raj moved an application Ex. PW 7/A to PW 7 Dr. Renu Behl stating that the deceased intended to make a fresh statement. He, therefore, sought the opinion of PW 7 if the deceased was fit to make a statement. PW 7 Dr. Renu Behl certified that the deceased was fit to make a statement. PW 18 ASI Des Raj thereafter recorded the statement Ex. PW 7/C of the deceased in the presence of PW 7 Dr. Renu Behl on 20.4.1997 at about 3.45 PM. Such statement reads:- "Stated that it was Friday. My husband had threatened that in case I tell the truth, he would not take me to the hospital and that I should state that I was cooking meals when the stove got bursted and I caught fire. That is why I had made a wrong statement earlier before the police and the doctor at Sundernagar. My husband had threatened that in case I tell the truth, he would not take me to the hospital and that I should state that I was cooking meals when the stove got bursted and I caught fire. That is why I had made a wrong statement earlier before the police and the doctor at Sundernagar. On that day a quarrel had taken place between me and my husband before meals since my husband was telling his sister-in-law Urmila that he would not keep me as his wife. On quarrel on this issue, I brought the can contianing kerosene from the verandah to the room. Both the children were sleeping at that time. My husband seized the kerosene can from my hands. He then sprinkled kerosene on me and after lighting a match stick threw the same on me. I started burning. Then I cried. The children also woke up. But my husband had bolted the door from inside. He did not open the same till the fire came to an end. Then he opened the bolt of the door, when Ramesh son of Lesar and Sanjay son of Ldasar came inside the room. Both of them asked as to what had happened. My husband replied that it was not the time for asking anything and that I should be carried and taken to the hospital. When these persons were carrying me in a van, Ramesh asked me to make a correct statement so that I may not implicate my husband. This fact was whispered by Ramesh in my ear. Then my husband told • me to make a statement that while I was cooking, the can containing the kerosene had fallen due to which I had caught fire. I cannot sign." 12. After having recorded the above statement, PW 18 ASI Des Raj on the following day, that is, on 21.4.1997 moved an application Ex. PW 4/A before the Sub Divisional Magistrate, Mandi, with a prayer for recording of the statement of the deceased. The Sub Divisional Magistrate on the same day directed the Assistant Commissioner (LR) to record the statement of the deceased by recording an order on Ex. PW 4/A in the following terms: "AC (LR) for needful.PI record the statemet of Smt. Banti Devi as requested. Ad/- SDM 21.4.1997." 13. The Sub Divisional Magistrate on the same day directed the Assistant Commissioner (LR) to record the statement of the deceased by recording an order on Ex. PW 4/A in the following terms: "AC (LR) for needful.PI record the statemet of Smt. Banti Devi as requested. Ad/- SDM 21.4.1997." 13. PW 4 N.C. Nazuk, the then Assistant Commissioner-cum-Exective Magistrate, Mandi, went to Zonal Hospital, Mandi, accompanied by PW 18 ASI Des Raj on the same day and at about 5 PM PW 18 ASI Des Raj recorded the statement Ex.PW 4/B of the deceased in his presence and in the presence of PW 5 Dina Nath and one Nand Lal. 14. The Statement Ex. PW 4/B reads:- I Banti Devi wife of Shri Bhim Singh, resident of Naulakha do state that on Friday i.e. five-seven days back I had a quarrel with my husband Bhim Singh. He abused me filthily. I asked him to take his meal but he did not take his meal. It was around 9/9.30 p.m. at that time. Then he started giving me beatings, when he did not listen to all my pleadings, I took out a knife from almirah gave it to him and asked him to kill me. He said that he would not kill me with this knife but would do so by some other method. Thereafter, he brought kerosene oil, I had also gone in verandah to bring the kerosene oil. Kerosene oil was in a can which was lying in the verandah. I lifted the can firstly, which he snatched from me and sprinkled the kerosene oil on me. Thereafter, he set me on fire with a match stick. 1 cried a lot, but there was none present. My elder brother-in-law and sister-in-law were in their room which is close by. When they came, the fire had come to a end, but I was in my senses and I have seen them. They both called out for the neighbours and two boys, namely, Ramesh and Sanju sons of Leasar came over there. After their arrival, my husband told them said that instead of looking around, I should be removed to hospital immediately. Firstly, I was carried by Ramesh, up to some distance then I was handed over to my husband. Thus after carrying me for about five minutes each I was brought up to the road head. After their arrival, my husband told them said that instead of looking around, I should be removed to hospital immediately. Firstly, I was carried by Ramesh, up to some distance then I was handed over to my husband. Thus after carrying me for about five minutes each I was brought up to the road head. From there I was taken to hospital in a taxi. I was conscious till I reached in the hospital. Ramesh asked me to make correct statement. While on the way, my husband asked me to give a statement that while I was cooking food, a can containing kerosene oil had fallen down and consequently I had caught fire. I have made statements earlier also in which I had stated that I had a quarrel with my husband and after pouring kerosene oil on myself I had set myself on fire. 1 had made this statement at the instance of my husband. The said statement of mine may be treated as incorrect statements as the same was made at the behest of my husband. My husband had threatened me that if I did not state as per his desire, he would not take me, to the hospital. In addition to this, my mother- in-law and sister-in-law (husbands elder brother wife) also used to quarrel with me at home. My husband used to act as per the dictates of my mother-in-law. Except this I do not have anything else to state. I also state that 1 have made my above statement solemly and correctly and nothing has been concealed therein." 15. During the course of investigation, quilt Ex. P.l, sack Ex.P2, Can Ex,P3, match box and three burnt matchsticks Ex.P4, pieces of bangle Ex.P5 and burnt pieces of clothes Ex.P6 were taken into possession from the spot by PW 19 Hans Raj. Patches of Skin of the deceased were found sticked to the quilt Ex.Pl and burnt pieces of clothes Ex.P.6. 16. After the completion of investigation, the accused was sent up for trial for the offence under Section 302 and 498-A, Indian Penal Code Sml. Uma Devi and Urmila Devi, the mother and sister-in-law respectively, of the accused were also sent up for trial for the offence under Section 498-A, Indian Penal Code. 17. On having been so charged, the accused, his mother and sister-in-law pleaded not guilty and claimed trial. Uma Devi and Urmila Devi, the mother and sister-in-law respectively, of the accused were also sent up for trial for the offence under Section 498-A, Indian Penal Code. 17. On having been so charged, the accused, his mother and sister-in-law pleaded not guilty and claimed trial. The case of the accused in defence is that the deceased while cooking food had caught fire accidently and that he had tried to save her. He further stated in his statement under Section 313, Code of Criminal Procedure, that Ramesh, PW 11 Sanjay and DW 2 Chaman Lai had rushed to the spot on hearing the cries of the deceased. Smt. Uma Devi (mother of the accused) and Smt. Urmila Devi (sister-in-law of the accused) in their respecitve statements under Section 313, Code of Criminal Procedure, have simply denied having subjected the deceased to cruelty. 18. The prosecution in support of its case examined nineteen witnesses in all. Three witnesses were examined by the accused in his defence. 19. The learned Additional Sessions Judge on consideration of the evidence led before him acquitted the mother and sister-in-law of the accused of the offence under Section 498-A, Indian Penal Code. He, however, convicted and sentenced the accused for the offences under Sections 302 and 498-A, Indian Penal Code, as aforesaid. 20. Be it stated that the acquittal of Smt. Uma Devi and Urmila Devi, the mother and sister-in-law, respectively of the accused as recorded by the learned Additional Sessions Judge, has not been assailed by the state by was of an appeal under Section 378, Code of Criminal Procedure. Such acquittal has thus become final. 21. We have heard Ms. Rama Mehta, the learned counsel for the accused and Shri M.S. Guleria, the learned Deputy Advocate General for the State and have also gone through the record of the case. 22. The case of the prosecution primarily is based on the dying declarations Ex. PW 7/C and Ex. PW 4/B alleged to have been recorded by PW 18 ASI Des Raj, respectively on 20.4.1997 at 3.45 PM and 21.4.1997 at about 5 PM. The third statement Ex. PW 13/D, which is in fact the first in point of time and on the basis of which the present case came to be registered, was recorded on 17.4.1997 at about 10.35 PM, that is, immediately after the occurrence, by PW 19 Inspector Hans Raj. The third statement Ex. PW 13/D, which is in fact the first in point of time and on the basis of which the present case came to be registered, was recorded on 17.4.1997 at about 10.35 PM, that is, immediately after the occurrence, by PW 19 Inspector Hans Raj. As stated above, in such first statement Ex. PW 13/D, the version put forth by the deceased was that she had set herself on fire after having sprinkled kerosene on her person. 23. It is by now well settled that dying declaration is admissible in evidence and can form the basis for conviction, if found to be reliable. While, it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. This premise, which is based on the maxim "A man will not meet his maker with alie in his mouth", is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying delcaration may form the sole basis for conviction without need for independent corroboration, it must be shown that person making it had the opportunity of identifying the person implicated and it is thoroughly reliable and free from blemish. If, on the facts and in the circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court, on strict scrutiny, finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence should not be acted upon unless it is corroborated. A dying declaration by itself is an independent piece of evidence and can be acted upon, without seeking any corroboration, if it is found to be otherwise true and reliable. 24. A dying declaration made by a victim in a fit mental condition and on the verge of death, has a special sanctity. At the solemn moment, a person is most unlikely to make a false statement. 24. A dying declaration made by a victim in a fit mental condition and on the verge of death, has a special sanctity. At the solemn moment, a person is most unlikely to make a false statement. The shadow of impending death is itself the guarantee of the truth of his declaration as to the cause(s) and circumstances leading to his death. A dying declaration is almost sacroscant. 25. Dealing with the question of evidentiary value to be attached to a dying declaration, the Supreme Court in Kundula Bala subrahmanyam and another v. State of Andhra Pradesh 1993(2) SCC 684, has held: "Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that persons death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called by dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinise all the dying declaratons to find out if each one of these passes the test of being trustworthy. The court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same..." 26. In the light of the above principles, we now proceed to examine the dying declaration Ex.PW 7/C and Ex. PW 4/B relied upon by the prosecution. 27. Taking the dying declaration Hx.PW4/B first. This dying declaration is alleged to have been recorded by PW 18 Assistant sub Inspector Des Raj on 21.4.1997 at about 5 P.M. in Zonal Hospital, Mandi, in the presence of PW 4 Shri N.C. Nazuk, an Executive Magistrate of Mandi, PW 5 Dina Nath and one Nand Lal. The deceased died at about 7.10 A.M. on 22.4.1997 that is, about 14 hours of the alleged making of the dying declaration Ex. PW 4/B. 28. This dying declaration Ex. PW 4/B can be ignored simply on the ground that the prosecution has failed to establish that the deceased, before she made the dying declaration, was in a proper mental condition to make the statement. This dying declaration, shown to have been recorded in the presence of an Executive Magistrate, by itself is neither a proof of the fact that the deceased was in a fit mental state to make a statement. This dying declaration in order to earn acceptability has to pass the test of scrutiny of the court. 29. PW 18 Assistant Sub Inspector Des Raj, who is alleged to have recorded the dying declaration Ex.PW 4/B has deposed:- "In the presence of PW 4, the Medical Officer had certified Smt. Banti fit for statement and thereafter in the presence of PW 4 Sh. N.C. Nazuk, PW Dina Nath and PW Nand Lal had recorded the statement Ex. PW 4/B of Smt. Banti Devi......The statement Ex.PW 4/B had been recorded by me as per the version of Smt. Banti Devi." 30. In his cross-examination, PW 18 Assistant Sub Inspector Des Raj has further stated that "PW 4 Sh. N.C. Nazuk had been questioning Smt. Banti Devi and Smt. Banti Devi had been giving answer to the questions and I had recorded the answers". 31. In his cross-examination, PW 18 Assistant Sub Inspector Des Raj has further stated that "PW 4 Sh. N.C. Nazuk had been questioning Smt. Banti Devi and Smt. Banti Devi had been giving answer to the questions and I had recorded the answers". 31. PW 18 Assistant Sub Inspector Des Raj in his statement has nowhere given the name of the Medical Officer who had certified in the presence of PW 4 Shri N.C. Nazuk that the deceased was fit to make a statement. Nor any other evidence has come on the record to show if any Medical Officer of Zonal Hospital, Mandi had certified the deceased to be fit to make a statement on 21.4.1997 when dying declaration Ex. PW 4/B is shown to have been recorded. 32. As against the version of PW 18 Assistant Sub Inspector Des Raj, PW 4 Shri N.C. Nazuk, the Executive Magistrate in whose presence the dying declaration Ex. PW 4/B is shown to have been recorded has deposed:- "On 21.4.1997 in my presence the police had interrogated Smt. Banti Devi. The police had recorded statement Ex.PW 4/B of Banti Devi in my presence. I had attested this statement. The police had recorded this statement as per version given by Banti Devi. At that time, one Pardhan had been present He had also attested this statement. Apart from Pradhan one other witness had also attested the statement Ex.PW 4/B." 33. PW 4 Shri N.C. Nazuk again at a subsequent stage of his examination-in-chief, has stated:- "I had read over and explained statement Ex. PW 4/B to Smt. Banti Devi. She had thumb marked the same. Banti Devi had been in a 111 state of mind. When she had been examined by me. The police was also present when I had examined Banti Devi andhad recorded her statement Ex. PW 4/B." 34. In his cross examination, PW 4 Shri N.C. Nazuk has stated in the following terms:- "I had not consulted the Medical Officer on duty before recording the statement of Banti Devi. I was informed that before recording the statement Ex. PW 4/B, in the presence of the Medical Officer as well some statement had been recorded on the same day. Again said, I cannot say if the statement in the presence of Medical Officer had been recorded on the same day or on some other day. I was informed that before recording the statement Ex. PW 4/B, in the presence of the Medical Officer as well some statement had been recorded on the same day. Again said, I cannot say if the statement in the presence of Medical Officer had been recorded on the same day or on some other day. I cannot say who had informed me that statement in the presence of the Medical Officer had also been recorded. I had myself asked Banti Devi and she had informed me that her statement also stood recorded previously as well.... I had not tried to send for the Medical Officer before recording her statement." 35. A bare reading of the statement of PW 4 Shri N.C. Nazuk shows thati no opinion of any Medical Officer was obtained before recording of the dying! declaration Ex. PW 4/B to the effect that the deceased was fit to make a statement. PW Shri N.C. Nazuk also does not state that the dying declaration Ex. PW 4/B was recorded by PW 18 Assistant Sub Inspector Des Raj Though at one stage he stated that the statement Ex. PW 4/B was recorded by the police in his presence, at another subsequent stage of his examination-in-chief he has stated that he had examined the deceased and had recorded her statement. 36. PW 5 Dina Nath is the Pradhan of Gram Panchayat Luakhar, that is, the village of the father of the deceased. He also happens to be related to the deceased as a cousin brother. His mother and the mother of the deceased are sisters. PW 5 Dina Nath is a witness to the dying declaration Ex. PW 4/B. He has deposed as to the making of dying declaration Ex. PW 4/B in the following words :- "Smt. Banti Devi stood admitted in Zonal Hospital. In my presence and in the presence of Nand Lal, PW 4 Executive Magistrate had recorded the statement Ex. PW 4/B of Smt. Banti Devi at the Zonal Hospital. The statement Ex. PW 4/B had been read over and explained to Banti Devi and she had admitted the same correct and had thumb marked the same. Nand Lai had been present at that time. Nand Lai and myself had attested the statement Ex. PW4/B. Banti Devi had been in fit state of mind when she had given the statement Ex. PW 4/B. (Emphasis supplied). 37. Nand Lai had been present at that time. Nand Lai and myself had attested the statement Ex. PW4/B. Banti Devi had been in fit state of mind when she had given the statement Ex. PW 4/B. (Emphasis supplied). 37. During the course of cross-examination PW 5 Dina Nath has deposed as under:- "PW 4 had recorded the statement Ex. PW 4/B in the evening shift. The men from the side of the parents of Banti Devi had been present when PW 4 had recorded the statement of Banti Devi. PW 4 had interrogated Banti Devi in my presence. PW 4 had asked the name and other particulars of Banti Devi and she had also stated that she was in a fit state of mind. PW 4 had been questioning Banti Devi and an official accompanying PW 4 had been recording the answer. Banti Devi had been answering the questions in Hindi as also in local dialect." (Emphasis supplied) 38. PW 5 Dina Nath thus contradicts both PW 4 Shri N.C. Nazuk as well as PW 18 ASI Des Raj as to the scribe of the statement Ex. PW 4/B. 39. It is the case of the prosection that the two dying declaratons Ex. PW 4/B and Ex. PW 7/C were recorded by PW 18 ASI Des Raj. However, a bare perusal of these two dying declarations shows that the same are written with different hands. The only conclusion is that, either, one of the two dying declarations is in the hand of PW 18 ASI Des Raj (though there is nothing on the record to suggest as to which one of the two dying declarations is in the hand of PW 18 ASI Des Raj), or, none of these two dying declarations is in the hand of PW 18 ASI Des Raj. 40. In any event, in the absence of specific and positive evidence to show \ that the deceased was fit to make a statement when PW 4/B is shown to have j been recorded, no reliance can be placed thereon. A grave error has been committed by the learned Additional Sessions Judge in placing reliance thereon. 41. In Kanchy Komuramma v. State of A.P. 1995 Supp. A grave error has been committed by the learned Additional Sessions Judge in placing reliance thereon. 41. In Kanchy Komuramma v. State of A.P. 1995 Supp. (4) SCC 118, where there was no evidence to show that the deceased, before she made the dying declaration, was in a fit state, it was held: "As a matter of fact, the failure of the prosecution to establish that the deceased before she made the dying declaration, was in proper mental condition to make the dying deceleration detracts materially from the reliability of the dying declaration and it would not be safe to rely upon it.” It was further observed: "....There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before according the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosectuion must prove that opinion at the trial in the manner known to law. These safeguards have not been observed in the present case...." 42. Again in Paparambaka Rosamma and others v. State of A.P. 1999(7) SCC 695, the certificate appended to the dying declaration at the end by the doctor stated that "patient is conscious while recording the statement". It was held that in medical science two stages, namely, conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. In the absence of a 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 the declaration. 43. Next comes the dying declaration Ex. PW 7/C, which is alleged to have been recorded by PW 18 ASI Des Raj on 20.4.1997 at about 3.45 PM at Zonal Hospital, Mandi, in the presence of PW 7 Dr. Renu Behl. 44. 43. Next comes the dying declaration Ex. PW 7/C, which is alleged to have been recorded by PW 18 ASI Des Raj on 20.4.1997 at about 3.45 PM at Zonal Hospital, Mandi, in the presence of PW 7 Dr. Renu Behl. 44. PW 18 ASI Des Raj has deposed with regard to the recording of the dying declaration Ex.PW 7/C as under:- "I had taken up the investigation of case FIR No. 100/97 on 20.4.1997. I had visited the Zonal Hospital on 20.4.1997 and had filed application Ex. PW 7/A before the Medical Officer. I had requested the Medical Officer to certify whether or not Smt Banti Devi was fit to give statement. The Medical Officer Dr. Renu Behl had certified smt. Banti Devi fit for statement as per endorsement Ex. PW 7/B. Thereafter in the presence of Dr. Renu Behl, I had recorded statement Ex. PW 7/C of Smt. Bann Devi . Statemet Ex. PW 7/C had been recorded as per the version of the patient Smt. Banti Devi." 45. During the course of cross-examination, PW 18 ASI Des Raj has further stated: :I had visited Z.H. at Mandi on 20.4.1997 during the day time. I cannot say the time of my arrival at Z.H. Mandi on 20.4.1997. I had filed the application Ex. PW 7/A before the Medical Officer immediately on arrival at Z.H. Mandi. / had not met Smt. Banti Devi or her attendants before filing application Ex. PW 7/A before the Medical Officer." (Emphasis supplied) 46. To the suggestion specifically put to him on behalf of the accused that he had consulted the attendants of Smt. Banti Devi before making the application Ex. PW 7/A, PW 18 ASI Des Raj has categorically stated and denied in the following terms:- "It is incorrect to suggest that I had consulted the attendants of Smt. Banti Devi in the first instance and had thereafter instituted application Ex. PW 7/A before the Medical Officer." 47. The recitals made in the application Ex.PW 7/A belies the story put forth by PW 18 ASI Des Raj that he had neither met Smt.Banti Devi nor her attendants before making the application. 48. The application Ex. PW 7/A reads: "It is submitted that aforesaid Smt. Banti Devi has been admitted to the hospital on 17.4.1997 after having sustained burn injuries. 48. The application Ex. PW 7/A reads: "It is submitted that aforesaid Smt. Banti Devi has been admitted to the hospital on 17.4.1997 after having sustained burn injuries. The aforesaid case has been registered on the basis of her statement which has been attested by Shri Dharam Singh Verma, Medical Officer, Sundernagar. Now she intends to make afresh statement. Kindly give your opinion as to whether she is in a position to give statement or not. In case she is fit to give state met, any M.O. may be deputed to associate himself with police so that her statement could be recorded as per procedure." (Emphasis supplied). 49. If PW 18 ASI Des Raj had not met the deceased Smt. Banti Devi and/or her attendants in the hospital before making the application Ex. PW 7/A as stated by him, how he could have come to know that the deceased intended to make a fresh statement. The only inference is that PW 18 ASI Des Raj must have been asked to record the statement of the deceased afresh by some interested party. Even otherwise, nothing has come on the record to show as to why a necessity was felt by PW 18 ASI Des Raj to again record the statement of the deceased. It is not the case of the prosecution that statement of the deceased was recorded by PW 18 ASI Des Raj under Section 161, Code of Criminal Procedure, which has come to be treated as a dying declaration. The statement of the deceased Ex. PW 13/D stood recorded on 17.4.1997 under Section 154, Code of Criminal Procedure. It is also not the case of the prosecution that the deceased had expressed her desire to make a statement. Under these circumstances statement Ex. PW 7/C is highly doubtful and suspicious. 50. It was contended by the learned Deputy Advocate General that the necessity to record the statement, Ex PW 7/C of the deceased arose since her first statement Ex. PW 13/D was found to have been made under the influence of the accused and other members of his family. In support, the learned Deputy Advocate Genral has referred to the statement of DW 2 Chaman Lal, a brother of the accused, who has admitted as under:- "The accused person Bhim Singh had taken Banti to the hospital in a van. In support, the learned Deputy Advocate Genral has referred to the statement of DW 2 Chaman Lal, a brother of the accused, who has admitted as under:- "The accused person Bhim Singh had taken Banti to the hospital in a van. Sanju and Ramesh had also taken Smt. Banti to the hospital. After some time, I had also reached the Civil Hospital, Sundernagar. We had taken Smt. Banti to the Zonal Hospital. It is correct that Ramesh had asked Banti to state before the police that she had suffered burns accidently and she had been asked not to implicate the members of the family. It is correct that the accused person Bhim Singh had asked his wife to state before the police that can containing kerosene oil had accidently fallen on her." 51. We do not find force in the contention of the leearned Deputy Advocate General that the statement Ex.PW 13/D was made by the deceased under the influence of and on being torture by the accused and other members of his family. Assuming that the deceased was asked by the accused and Ramesh (a cousin of the deceased) not to implicate the accused and/or his family members and to state that she got burnt accidently, the deceased never made a statement to that effect. In fact she went on to make a statement that she had poured kerosene on her person herself and had set herself on fire. In other words, she made a statement that she tried to comit suicide. Nothing prevented her from making a statement that she caught fire accidently. Therefore, the possibility that the accused and his family members wanted to save the deceased from possible prosecution for the offence of attempt to commit suicide that they had advised her to state that she got burnt accidently, cannot be ruled out. 52. It is in the statement of PW 19 Inspector Hans Raj, who had recorded the statement Ex.PW 13/D of the deceased, that the accused was not present in the room when the statement Ex.PW 13/D of the deceased was recorded by him. He has further deposed that though DW 4 Leasar Singh and PW 11 Sanjay Kumar were present in the hospital, the statement of the deceased Ex. PW 13/D was not recorded in their presence. At the time of recording of such statement only PW 13 Dr. D.S. Verma was present. He has further deposed that though DW 4 Leasar Singh and PW 11 Sanjay Kumar were present in the hospital, the statement of the deceased Ex. PW 13/D was not recorded in their presence. At the time of recording of such statement only PW 13 Dr. D.S. Verma was present. Therefore, it cannot be said that the statement Ex. PW 13/D was made by the deceased under the influence of the accused and/or the members of his family. 53. It has come on the record that the accused accompanied by PW 11 Sanjay Kumar and one Ramesh had immediately after the incident carried the deceased to the hospital. The conduct of the accused in shifting the deceased to the hospital without delay points out towards his innocence. He had not even wasted any time in telling PW 11 Sanjay Kumar, even on being specifically asked, as to what had happened. 54. The accused was arrested on 18.4.1997. It is in the evidence of PW 3 Smt. Phulan Devi (mother of the deceased), PW 5 Dina Nath (a cousin brother of the deceased). PW 6 Lekh Ram (father of the deceased), PW 8 Beasa Devi (maternal aunt of the deceased) and PW 10 Khem Chand (mothers sisters husband of the deceased) that the parents of the deceased and their other relations remained present in Zonal Hospital, attending upon the deceased right from the time of her admission to such hospital till her death. Therefore, they had all the opportunity and occasion to talk to the deceased and tutor her about the statement to be made. 55. There is yet another significant aspect of the case. There are material \ contradictions in the three declarations, Ex. PW 13/D, PW 7/C and PW 4/B as to how the occurrence had taken place. In the first declaration Ex. PW 13/D the deceased has person and had set herself on fire. In the second declaraton, the stand taken by the deceased is that on a quarrel having taken place between her and the accused she had brought the can containing kerosene to the room from the verandah. The accused had then seized the can from her hands and after sprinkling kerosene on her had set her on fire. She further stated that the accused had bolted the door from inside and did not open the same till the fire came to an end. The accused had then seized the can from her hands and after sprinkling kerosene on her had set her on fire. She further stated that the accused had bolted the door from inside and did not open the same till the fire came to an end. In her third declaration Ex. PW 4/B, she went on to state that after a quarrel started between her and the accused, she was given beatings by the accused. She then took out a knife from the almirah and offered the same to the accused and asked him to kill her. The accused told her that he would not kill her with the knife but would do so by some other method. He then went out. She followed him to the verandah from where she picked up the can containing the kerosene. The can was snatched from her. The accused sprinkled kerosene on her and set her on fire. There is no mention in such declaration that the accused had bolted the room from inside. 56. In State of Gujarat v. Khumansingh Karsan Singh and others AIR 1994 SC 1641, there were three dying declarations by the deceased. In the first dying declaration recorded by a Head Constable, the deceased had implicated her mother-in-law alone. She did not implicate her husband at all. The second dying declaration was made by the deceased to her father wherein she implicated both her husband and her mother-in-law. The third declaration was recorded by an executive Magistrate, wherein she implicated both her husband and mother-in-law. Evidence came on the record to show that the subsequent declarations were made after the deceased had met her father. Taking note of the inconsistency between the first dying declaration and the subsequent two dying declarations, which betrayed the possibility of her being amenable to tutoring, it was felt unsafe to base the conviction of the accused therein merely on the aforesaid three dying declarations. The accused were accordingly acquitted in the absence of some assurance from any other independent evidence. 57. In the present case also, the deceased did not implicate anyone in her first declaration Ex.PW 13/D. In her second declaration Ex.PW 7/C, which was made after she had met her parents and other relations and was being constantly looked after and attended upon by them, she implicated the accused only. 57. In the present case also, the deceased did not implicate anyone in her first declaration Ex.PW 13/D. In her second declaration Ex.PW 7/C, which was made after she had met her parents and other relations and was being constantly looked after and attended upon by them, she implicated the accused only. In the third declaration Ex.PW 4/B, which was admittedly recorded in the presence of her parents and other relatives, she has implicated her husband, mother-in-law and sister- in-Law. It is the admitted case of the prosecution that the relations of the deceased with her husband, mother in law and sister-in-law were strained. Therefore, the possibility of false involvement cannot be ruled out. Besides, as pointed out above, the manner in which the dying declaration Ex. PW 7/C has been recorded also is not free from doubt. The learned Additional Sessions Judge has, thus, committed an error in relying upon the dying declaration Ex. PW 7/C. 58. If the subsequent two declarations Ex .PW 7/C and PW 4/B are taken out of consideration, there is no other evidence to show that the deceased was set on fire by the accused. The first declaration Ex. PW 13/D completely Absolves and exonerate the accused. 59. The next offence for which the accused stands convicted and sentenced is the one under Section 498-A, Indian Penal Code. 60. Even if it be assumed that the deceased was being ill-treated and subjected to cruelty by the accused, it is the admitted case of the prosecution that all differences between the parties were sorted out and settled on a compromise having arrived at about a week after 26.2.1997 when the accused had gone to the parental house of the deceased and she had returned to her matrimonial house along with the accused. No evidence has come on the record to show that the deceased was subjected to cruelty at anytime after that. 61. The quarrel between the deceased and the accused on the day of occurrence, as projected by the prosecution, cannot be termed as cruelty within the meaning of section 498-A, Indian Penal Code. It is the case of the prosecution that the brother of the deceased was present when a quarrel^ is alleged to have taken place between the deceased and the accused. It is the case of the prosecution that the brother of the deceased was present when a quarrel^ is alleged to have taken place between the deceased and the accused. Such brother of the deceased, who is an eye-witness, has not been examined to prove either the cause or the quarrel. An adverse inference, therefore, will have to be drawn. 62. In State of Maharashtra v. Ashok Chotelal Shukla AIR 1997 SC 3II1. the parties, namely, husband and wife after having sunk their differences on an apology having been tendered by the husband for the past acts of cruelty, had started living together. There was no evidence as to any incident of ill-treatment of the wife by the husband after such compromise between the parties. The acquittal of the husband for the offence under Section 498-A, Indian Penal Code, as recorded by the High Court of Bombay, was upheld by the Honble Apex court. It was held that before a person can be convicted under Section 498-A, Indian Penal Code, the prosecution has to prove that he committed acts of harassment or cruelty as contemplated by that section. 63. Considering the evidence coming on record in its totality, we are, therefore, of the opinion that the prosecution has not been able to prove its case against the accused beyond all reasonable doubts. The accused is entitled to acquittal. 64. Resultantly, the present appeal is allowed. The conviction and sentence of the accused as recorded by the learned Additional Sessions Judge, Mandi, are set aside. The accused is acquitted of the offences under Section 302 and 498-A, Indian Penal Code. 65. The accused, who is presently lodged in Jail undergoing sentence, shall be set at liberty forthwith, if not required in any other case. The amount of fine, if already deposited, shall be refunded to the accused. Cr. M.P. 6/2001. 66. During the course of hearing, the learned counsel for the accused, did not press the present application and the same is dismissed accordingly. -