JUDGMENT Honble Allah Raham, J.—This is an appeal against the judgment and order dated 21-1-2005 passed by Additional Sessions Judge, Lucknow in Session Trial No. 993 of 2002, under Sections 302/34 and 504 IPC, P.S. Husainganj, district Lucknow whereby accused appellants Mohd. Kaleem, Mohd. Azam and Smt. Salma were found guilty under Section 302/34, IPC and sentenced to undergo imprisonment for life and a fine of rupees one thousand each. In default of payment of fine, simple imprisonment for one month was also awarded. 2. The prosecution story as it appears from the statement of witnesses and the record is that deceased Shahana and accused appellant Mohd. Kaleem alias Kammu were in love with each other. Subsequently their marriage was solemnized in December, 1999. Appellant Mohd. Azam is elder brother of Mohd. Kaleem, while Smt. Salma is the wife of Mohd. Azam. 3. Mohd. Mobin P.W. 1, brother of deceased Shahana has stated that on 3-6-2002 at about 11.00 a.m. he was standing outside Shahana’s house. His own house is also nearby. He heard some shrieks from Kammu’s house. He could make out that it was Shahana’s voice. He immediately reached Shahana’s house where neighbours Chand, Chanda and Shahan etc. had also arrived. He saw Abdul Halim, Kammo, Mohd. Azam and Salma were holding Shahana and the clothes of Shahana had caught fire and she was burning. The accused persons said that this tension will finish today. Then the accused persons fled away. Shahana was burning on the first floor of the house which could be reached by a ladder. The accused persons had removed the ladder which prevented him (P.W. 1) and others reaching the roof of first floor to save Shahana. He and other witnesses put blanket on Shahana and extinguished her fire. He also requested for a bed sheet from accused Salma but she refused to give a bed sheet. He brought few bed sheets from Hafeez Rahman’s house and covered Shahana’s body. He and others took Shahana to King George Medical College and got her admitted there. Shahana told him that in the night her husband Kammu beat her. Both Kammu and Mohd. Azam used to beat her very frequently and Shahana also told him that accused Halim, Mohd. Azam, Salma and Kammu poured kerosene oil on her and set her on fire. Shahana succumbed to her burn injuries at 1.30 p.m. next day. Shahana told him that in the night her husband Kammu beat her. Both Kammu and Mohd. Azam used to beat her very frequently and Shahana also told him that accused Halim, Mohd. Azam, Salma and Kammu poured kerosene oil on her and set her on fire. Shahana succumbed to her burn injuries at 1.30 p.m. next day. He (P.W. 1) lodged the F.I.R. Ex. Ka-1 at the police station. Constable Pramod Kumar (P.W. 4) scribed the chick of FIR Ex. Ka-7. S.I. Madhur Misra (P.W. 6) was entrusted with the investigation of this case. He recorded the statements of the complainant Mohd. Mobin and Shahana. He inspected the site with the held of these witnesses and prepared a site plan Ex. Ka-9. He took into custody the burnt clothes, burnt plaster and unburnt plaster, broken bangles etc. and prepared a memo Ex. Ka-10. On 4-6-2002 he arrested accused Mohd. Kaleem and Abdul Halim and recorded their statements. After the death of Shahana the case was altered from Section 308, IPC to Section 304, IPC on 5-6-2002. 4. S.I. Sri Surender Nath Tewari (P.W. 5) took the investigation of this case from Sri Madhur Misra on 4-7-2002. He studied the case diary. On 20-9-2002 he recorded the statements of accused Mohd. Azam and Smt. Salma. On conclusion of the investigation, he submitted a charge-sheet Ex. Ka-8 against accused Mohd. Azam. Smt. Salma, Mohd. Kaleem and Abdul Halim. Accused Abdul Halim died during the pendency of trial, therefore, the case abated against him. Accused Mohd. Kaleem, Mohd. Azam pleaded not guilty to the charges under Section 302/34, IPC and 504, IPC. Smt. Salma also pleaded not guilty to a charge under Section 302, IPC. 5. Accused Kaleem stated that he and Shahana had contracted love marriage as a result of which the family members of Shahana were annoyed with them. The family members of Shahana wanted him to divorce her so that she could be married elsewhere. They also used to pressurize Shahana to divorce him. On the date of occurrence he was not in his house. He and Shahana were living together on the third floor of the house. After the occurrence he reached the hospital from where he was arrested. 6. Smt. Salma has stated that she was living on the second floor of the house along with her husband. On the date of occurrence he was not in his house. He and Shahana were living together on the third floor of the house. After the occurrence he reached the hospital from where he was arrested. 6. Smt. Salma has stated that she was living on the second floor of the house along with her husband. Accused Kaleem and the deceased were living on the third floor of the same house. Accused Kaleem had asked his Sasurali not to visit his house. Still they used to visit Kaleem’s house surreptitiously. She used to inform Kaleem about these visitors. On the day of occurrence, she was on the Silai Karai (knitting and weaving) Centre, where she works. Accused Mohd. Azam has stated that on the day of occurrence he was living on the second floor of the same house and at the time of occurrence he was not present in the house. 7. In support of its case prosecution examined Sri Mohd. Mobin (P.W. 1) Sri Vishal Bhardwaj (P.W. 2), Dr. Ranjan Agarwal (P.W. 3), Sri Pramod Kumar (P.W. 4), S.I. Surendra Nath Tewari (P.W. 5), S.I. Madhur Misra (P.W. 6) and Dr. Deepak Kumar (P.W. 7). 8. Smt. Habibul Nisa (D.W. 1) has been examined from the side of the accused. 9. Sri Mohammad Mobin, P.W. 1 is said to be an eye witness of the occurrence. He has supported prosecution version of the case and deposed that he saw accused Abdul Halim (now deceased), Mohd. Kaleem @ Kammu. Azam and Smt. Salma, had caught hold of Smt. Shahana and her clothes were on fire. He has further stated that Smt. Shahana had told him that aforesaid four accused-persons poured kerosene oil on her and set her on fire. 10. Sri Vishal Bhardwaj, P.W. 2 the Addl. City Magistrate is a formal witness. He has also recorded the dying declaration of Smt. Shahana. The dying declaration Ext. Ka 14 has been proved by him. Dr. Ranjan Agrawal P.W. 3 conducted post-mortem examination on Shahana’s dead body. He has proved the post-mortem report Ext. Ka-6. 11. C.C. Sri Pramod Kumar Dubey P.W. 4, S.I. Sri Madhur Mishra P.W. 6 and S.I. Sri Surendra Nath Tewari P.W. 5 are formal witnesses. 12. Dr. Deepak Kumar Singh (P.W. 7) is the resident doctor, who had attended upon Smt. Shahana on 3-6-2002, when she was brought to the medical college. He has proved the post-mortem report Ext. Ka-6. 11. C.C. Sri Pramod Kumar Dubey P.W. 4, S.I. Sri Madhur Mishra P.W. 6 and S.I. Sri Surendra Nath Tewari P.W. 5 are formal witnesses. 12. Dr. Deepak Kumar Singh (P.W. 7) is the resident doctor, who had attended upon Smt. Shahana on 3-6-2002, when she was brought to the medical college. He has proved the dying declaration of Smt. Shahana. 13. Accused persons examined Smt. Habibul Nisha, D.W.-1 in defence. She stated that she is residing in the same house wherein accused-persons are residing. Accused Kaleem alongwith his wife (deceased) was living on the second floor of this house on the date of occurrence. On the first floor of the said house co-accused persons were residing. She (D.W.-1) was also residing on the first floor. On the date of occurrence at about 10.30 a.m. she heard cries of Shahana (deceased). When she came out of her room she saw Shahana burning. Only Khairunnisha (mother of accused Kaleem) and she (D.W.-1) were present in the house. They raised the alarm whereupon Naim, Munni, Ehsan, Hafiz, Chanda and others came there. She (D.W.-1) and Khairunnisha could not climb the stairs because of weakness. Accused-persons had gone out to earn wages. They were not present in their house. People from Shahana’s Maika arrived at the scene after she had been brought down from her Kotha. At that time Shahana did not disclose as to how she was burnt. She was just murmuring and nothing could be deciphered from her feeble voice. 14. After hearing the learned Counsel for the parties and perusing the evidence on record, the learned Sessions Judge relied upon the testimony of Mohd. Mobin, P.W. 1 and disbelieved the dying declaration Ext. Ka-11 of Smt. Shahana. He, therefore, held the accused-appellants guilty under Section 302 read with Section 34, I.P.C. and after hearing them on the question of sentence, awarded the sentence noted herein above. Mohd. Kaleem @ Kammu, Mohd. Azam and Smt. Salma were acquitted of the charge under Section 504, I.P.C. 15. We have heard the learned Counsel for the parties and have carefully perused the record. 16. Mohd. Kaleem @ Kammu, Mohd. Azam and Smt. Salma were acquitted of the charge under Section 504, I.P.C. 15. We have heard the learned Counsel for the parties and have carefully perused the record. 16. Before we appreciate the arguments advanced by the learned Counsel for the parties, it must be noted here that on 11-7-2006, this Court had passed an order for sending the trial Court’s record to the Sessions Judge, who was directed to examine the witness Sri Vishal Bhardwaj, the then Addl. City Magistrate, Lucknow. 17. On receipt of the lower Court record, the learned Sessions Judge recorded the statement of Sri Vishal Bhardwaj, P.W. 2 again. This witness has proved the dying declaration of Smt. Shahana Ext. Ka-14. 18. Now we proceed to appreciate the arguments advanced by the learned Counsel for the parties. 19. Learned Counsel for the appellants has argued that the learned Sessions Judge had not taken into consideration the dying declaration Ext. Ka-14 recorded by P.W.-2. His further argument is that the learned Sessions Judge was not justified in ignoring the dying declaration (Ext. Ka-11) recorded by Dr. Deepak Kumar Singh (P.W.-7). His further argument is that the statement of Sri Mohd. Mobin P.W.-1 has been relied upon by the learned trial Court without considering the two dying declarations recorded by P.W. 7 and P.W. 2. The learned trial Court did not rely upon the dying declaration recorded by Dr. Deepak Kumar Singh (P.W. 7) basically on the ground that he has not given any certificate to the effect that the patient was fully conscious and in a fit state of mind to give statement. He has further held that Dr. Deepak Kumar Singh (P.W. 7) was not competent to record the statement of Smt. Shahana. Here it is important to note that a Doctor attending upon a patient can record the statement of patient if he considers that there is urgency and the condition of the patient may worsen. It cannot be denied that Dr. Deepak Kumar Singh (P.W. 7) was attending upon Smt. Shahana who had sustained 90% burn injuries. There could not be a better person than P.W.-7 to know the condition-both physical and mental-of Smt. Shahana. Therefore, the dying declaration recorded by P.W.-7 cannot be brushed aside for the simple reason that he has not appended a certificate regarding the mental state of the patient. There could not be a better person than P.W.-7 to know the condition-both physical and mental-of Smt. Shahana. Therefore, the dying declaration recorded by P.W.-7 cannot be brushed aside for the simple reason that he has not appended a certificate regarding the mental state of the patient. The prosecution has relied upon this dying declaration. It has come in the cross-examination of P.W. 7 at page 8 that he had informed the police and the Magistrate for recording the statement of Smt. Shahana. He (P.W. 7) has denied the suggestion that he recorded the statement of Smt. Hoor Bano in place of Shahana and got Hoor Bano’s thumb affixed on the same. It is common knowledge that no particular form is prescribed for recording the dying declaration. The learned Sessions Judge has ignored the dying declaration recorded by P.W. 7 without assigning cogent reasons. There was no lack of competence in P.W. 7 in recording the statement of Smt. Shahana because P.W. 7 was the Doctor attending upon Smt. Shahana. Similarly, the statement of Smt. Shahana recorded by P.W.-7 cannot be ignored for the reason that P.W. 7 has not appended a certificate to the effect that Smt. Shahana was in a fit state of mind to make this statement. 20. There is another dying declaration Ext. Ka14. In fact this dying declaration was proved on the order passed by this Court. The judgment and order under challenge were passed without taking into consideration this dying declaration. Sri Vishal Bhardwaj P.W. 2 has deposed that on 3-6-2002 he was posted as Additional City Magistrate-I. Lucknow. At about 4.00 p.m. he was informed to record dying declaration of Smt. Shahana, who was admitted in the surgical ward of the medical college. He reached medical college at about 5.00 p.m. and recorded the statement of Smt. Shahana after Dr. Ambreesh Kumar gave a certificate that patient Smt. Shahana was well oriented to time, place and person at 5.10 p.m. on 3-6-2002. The patient was in state of compose mentis. There are thus two recorded dying declarations of Smt. Shahana. Both the declarations have been duly proved. 21. P.W.-1 claimed himself to be an eye-witness of the occurrence as also the one whom Smt. Shahana informed that Abdul Halim, Mohd. Kaleem @ Kammu, Azam and Smt. Salma have set her on fire. Now the two dying declarations and the statement of Mohd. Both the declarations have been duly proved. 21. P.W.-1 claimed himself to be an eye-witness of the occurrence as also the one whom Smt. Shahana informed that Abdul Halim, Mohd. Kaleem @ Kammu, Azam and Smt. Salma have set her on fire. Now the two dying declarations and the statement of Mohd. Mobin P.W.-1 have to be considered for deciding the fate of this appeal. 22. P.W.-1 says that he saw accused Abdul Halim (now deceased), Mohd. Kaleem @ Kammu, Azam and Smt. Salma had caught hold of Smt. Shahana and her clothes were on fire. He further states that Smt. Shahana also told him that accused Halim, Azam, Smt. Salma and Kaleem @ Kammu had poured kerosene oil on her and set her on fire. 23. Dying declaration recorded by Dr. Deepak Kumar Singh (P.W.-7) discloses that Smt. Khairunnisha (mother-in-law of Smt. Shahana), Smt. Salma and Azam poured Kerosene oil on her and set her on fire. It is important to note here that names of accused Halim (now deceased) and Kaleem @ Kammu are missing from this declaration. Name of Smt. Khairunnisha figures in this declaration whereas her name does not figure in the statement of Sri Mobin P.W.-1 nor this name was disclosed by Smt. Shahana to P.W. 1. 24. When we move to the second dying declaration Ext. Ka-14 recorded by Sri Vishal Bhardwaj P.W.-2 it reveals that Smt. Shahana had stated that she was relaxing in her room where Smt. Salma came and poured kerosene oil on her and then she (Smt. Salma) set her (Smt. Shahana) on fire. She has also stated that when she was set on fire, her father-in-law (accused Halim) and husband (Kaleem @ Kammu) had gone out on their job. They were not at home. Thus this dying declaration conspicuously omits the name of accused Azam. This dying declaration incriminates only against Smt. Salma. Appellant Kaleem @ Kammu and Halim (now deceased) have been given a clean chit by Smt. Shahana in this dying declaration. The question is which version is to be believed. 25. There is a third dying declaration, though not recorded, given by Smt. Shahana to her brother Mohd. Mobin, P.W.-1. Though this oral dying declaration does not figure in the FIR (Ext. Ka-1), Sri Mohd. The question is which version is to be believed. 25. There is a third dying declaration, though not recorded, given by Smt. Shahana to her brother Mohd. Mobin, P.W.-1. Though this oral dying declaration does not figure in the FIR (Ext. Ka-1), Sri Mohd. Mobin, P.W.-1 has stated at page 6 of his examination-in-chief that “Shahana Ne Ye Bhi bataya Tha Ki use Muljiman Halim, Azam, Salma Tatha Kammu Ne Mitti Ka Tel Dal Kar Jalaya Hai” (Shahana told him that accused Halim, Azam, Salma and Kammu poured kerosene oil and set her on fire). There are now three dying declarations. The first dying declaration was oral given to deceased’s brother Mohd. Mobin, P.W.-1. The second dying declaration (Ext. Ka11) was recorded by Dr. Deepak Kumar Singh, P.W.-7. The third dying declaration (Ext. Ka-14) was recorded by the Addl. City Magistrate, Lucknow, Sri Vishal Bhardwaj, P.W.-2 on 3-6-2002 at about 5.00 p.m. The oral dying declaration given to P.W.-1 names accused Kaleem @ Kammu, Azam, Smt. Salma and Halim. The second dying declaration omits Kaleem and Halim while it names Smt. Salma, Azam and Smt. Khairunnisha. The third dying declaration only names Smt. Salma. The names of the rests of the accused persons and Smt. Khairunnisha have been omitted. The occurrence took place at about 11.00 a.m. The three dying declarations came out between 11.00 a.m. and 5.00 p.m. on the same date. 26. Sri Mohd. Mobin, P.W.-1 also claims to be an eye-witness of this occurrence. Though it has not been mentioned in the FIR (Ext. Ka-1), he (P.W.-1) in his statement has stated that he saw Abdul Halim, Kaleem @ Kammu, Azam and Smt. Salma had caught hold of Smt. Shahana and her clothes were burning. They also said that the daily bickering would come to an end. It is noteworthy that the statement of P.W.-1 names four accused persons which figured in the dying declaration given to P.W.-1 by the deceased. But the names figuring in the dying declarations recorded by P.W.-7 and P.W.-2 are not the same. In the last dying declaration recorded by P.W.-2 the solitary name of Smt. Salma figures. 27. We may assume a situation where the statement of Mohd. Mobin P.W.-1 coupled with the oral dying declaration of Smt. Shahana given to P.W.-1 was there. The situation might have been different then. In the last dying declaration recorded by P.W.-2 the solitary name of Smt. Salma figures. 27. We may assume a situation where the statement of Mohd. Mobin P.W.-1 coupled with the oral dying declaration of Smt. Shahana given to P.W.-1 was there. The situation might have been different then. Here in the present case besides the aforesaid statement of P.W.-1 and dying declaration of the deceased, there are two dying declarations recorded by P.W.-7 and P.W.-2. All the three dying declarations are different. The ocular testimony of P.W.-1 is to be viewed in the light of the three dying declarations of Smt. Shahana. Our attention has been drawn to a ruling of the Apex Court reported in (2005) 9 S.C.C. 769 , State of Punjab v. Parveen Kumar. In this ruling there were three dying declarations. The Apex Court held that : “While appreciating the credibility of the evidence produced before the Court, the Court must view the evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations.” 28. A serious doubt is cast on the entire prosecution case when it is viewed in the light of three dying declarations given by Smt. Shahana. All the three dying declarations named a different set of accused persons in this case. 29. The accused-persons have come with a definite case that on the date of occurrence they were not in their house when this occurrence took place. The family members of Shahana wanted to marry her with some other person and they pressurized her to divorce the accused. In this tension Smt. Shahana committed suicide. All other accused-persons have taken the defence that this occurrence did not take place in their presence. They had gone out on their job. At the time of occurrence Smt. Shahana was alone in her house. 30. Acused Kaleem @ Kammu, who is the husband of the deceased (Smt. Shahana), had gone to the hospital after this occurrence. This fact has been corroborated by Mohd. They had gone out on their job. At the time of occurrence Smt. Shahana was alone in her house. 30. Acused Kaleem @ Kammu, who is the husband of the deceased (Smt. Shahana), had gone to the hospital after this occurrence. This fact has been corroborated by Mohd. Mobin, P.W.-1 at page 18 of his cross-examination. P.W.-1 has stated that Kaleem @ Kammu had gone in the hospital to see Smt. Shahana at about 3.00 p.m. from where Kaleem was arrested in the night. This fact has been further corroborated by the I.O., P.W.-6, who at page 3 has stated that he arrested the accused Kaleem at about 1.25 p.m. The question is if the accused, his brother, bhabhi and sister had committed murder of Smt. Shahana by burning her was it a normal conduct of accused Kaleem @ Kammu to visit the hospital after about four hours of the occurrence. It does not appear to be a normal human conduct of a husband, who has burnt his own wife to follow her in the hospital after about four hours of the occurrence and to stay there for hours together until arrest. In the backdrop of these circumstances, the defence of the accused-persons seems to be more probable that when Smt. Shahana got burnt they were not present in their house. They had gone out on their job to earn their living. The statement of D.W.-1 also corroborates the defence version of the case that none of the accused-persons were present in their house when Smt. Shahana was burnt. As stated hereinabove it is not safe to rely upon the sole testimony of P.W.-1 and record a verdict of conviction ignoring the three dying declarations of Smt. Shahana. In view of the law laid down by the apex Court in the ruling stated hereinabove, it is not safe to record a verdict of guilty against the accused-persons specially when there are contradictory dying declarations recorded at intervals. The learned trial Court did not have the dying declaration recorded by P.W.-2 when the judgment under appeal was prepared. In the facts and circumstance of the case, particularly the three dying declarations of the deceased Smt. Shahana, the only course open is to give benefit of doubt to accused-appellants and record a verdict of not guilty against them. The learned trial Court did not have the dying declaration recorded by P.W.-2 when the judgment under appeal was prepared. In the facts and circumstance of the case, particularly the three dying declarations of the deceased Smt. Shahana, the only course open is to give benefit of doubt to accused-appellants and record a verdict of not guilty against them. The appeal, therefore, deserves to be allowed and the accused-appellants deserve to be given benefit of doubt and held not guilty. 31. The appeal is allowed and the judgment and order under appeal are hereby set aside. Accused appellants Mohd. Kaleem @ Kammu, Mohd. Azam and Smt. Salma are hereby given benefit of doubt and acquitted on the charges levelled against them. They are in jail. They shall be released forthwith, if not wanted in any other case. ————