Judgment Bankim N. Mehta, J.—These appeals have been preferred under Section 374(2) of the Criminal Procedure Code, 1973 and challenged the judgment and order of conviction rendered by the learned Additional City Sessions Judge, Ahmedabad City on 23.08.1999 in sessions Case No. 176 of 1996 convicting the appellant Shardaben Mahendra Parekh for the offences punishable under Sections 498(A) and 302 of IPC., sentencing her to undergo imprisonment for one and half year and to pay fine of Rs. 500/- in default thereof, to undergo imprisonment for one month, for the offence under Section 498(A) of the IPC and to undergo life imprisonment and to pay fine of Rs. 1,000/- in default to undergo imprisonment for three months for the offence under Section 302 of IPC and convicting appellant Dineshbhai Mahendrabhai Parekh for offence punishable under Section 498(A) of the IPC, and sentencing him to undergo imprisonment for one and half year and to pay of Rs. 500/- in default, thereof to undergo imprisonment for one month. 2. In brief, the prosecution case was that deceased-Giraben Dineshbhai was married to appellant-Dineshbhai Mahendrabhai on 07.02.1993 and was residing with her husband at 68, Hariganga Society, Odhav, Ahmedabad. Appellant-Shardaben Parekh was mothiner-in-law of deceased Giraben and mother of appellant-Dineshbhai. Since before one month of incident appellant Shardaben started inflicting physical and mental cruelty to Giraben for house hold work. On 20.01.1996 at about 17.30 hours, appellant Shardaben dragged Giraben into the bathroom and ignited match stick after pouring Kerosene over her. On account of this, Giraben sustained burn injureis. People got together as Giraben raised shouts and fire was extinguished by them. Giraben was taken to the hospital for treatment and police was called. She lodged FIR with Odhav Police Station, Ahmedabad. The Executive Magistrate was called and dying-declaration of deceased Giraben was recorded. Giraben succumbed to injuries on 23.01.1996. 3. On the basis of FIR lodged by Giraben an offence was registered as I-CR No. 30/96 at Odhav Police Station, Ahmedabad and investigations was started. During the course of investigation, the Panchnama scene of offence, Inquest Panchnama and Panchnama of mudamal were drawn. The dead body of Giraben was send for Post-mortem. Accused were arrested. On completion of investigation, charge-sheet was lead before the learned Metropolitan Magistrate, Ahmedabad for the offence punishable under Sections 302 and 498(A) of the Indian Penal Code (for short “IPC). During the course of investigation, the Panchnama scene of offence, Inquest Panchnama and Panchnama of mudamal were drawn. The dead body of Giraben was send for Post-mortem. Accused were arrested. On completion of investigation, charge-sheet was lead before the learned Metropolitan Magistrate, Ahmedabad for the offence punishable under Sections 302 and 498(A) of the Indian Penal Code (for short “IPC). As the offence was exclusively triable by the Sessions Court, the case was committed to the City Sessions Court, Ahmedabad and it was registered as Sessions Case No. 176 of 1996. 4. Learned Additional City Sessions Judge, vide Exhibit-1 framed charges for the offence punishable under Sections 498(A) and 302 of IPC against the accused. The charge was read over and explained to the accused, who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced the evidence to prove the charges levelled against the accused. On completion of recording of evidence, the learned trial Judge explained the incriminating circumstances appearing against the accused in the evidence. The accused in their further statement recorded under Section 313 of the Criminal Procedure Code, 1973 explained the incriminating circumstances. Appellant Shardaben explained that on 20.01.1996 at about 4.30 noon deceased Giraben came home from sewing class and informed her that she had headache, therefore, she asked Giraben to prepare tea. After taking tea, she advised her to take rest for some time and, therefore, Giraben was taking rest in the house and she was cleaning wheat in the Varanda of the house and her husband was reading newspaper. Her grand son Montu was playing outside the house. Thereafter, around 5.30 p.m. on hearing shouts from the house, her husband Montu, neighbours-Sureshbhai Modi and Rajubhai Prajapati and others came running to the house. She had difficulty in her leg, and is unable to stand up. She is unable to walk without stick. Therefore, she went inside the house with the help of stick. When she went inside, people were pushing the door of bath-room, but it was locked from inside. Three to four persons gave push with force, and so the stopper came out with the screw and the door was opened. She saw that deceased Giraben was burning and, therefore, water was poured and fire was extinguished. When she went inside, people were pushing the door of bath-room, but it was locked from inside. Three to four persons gave push with force, and so the stopper came out with the screw and the door was opened. She saw that deceased Giraben was burning and, therefore, water was poured and fire was extinguished. Deceased Giraben was not able to speak, therefore, her husband asked Rajubhai to inform police and to call for ambulance; and sent a person to call father of Giraben. She has further stated that since last about ten years, she had difficulty in her right knee and she is unable to walk without stick. She has kidney ailment and she is of fragile health. She has taken treatment in various hospitals. She has not recovered and the Doctor has advised her for right knee replacement. Since last ten years, she is walking with the help of stick and she is unable to bent her right knee. She later learnt that Giraben had quarrel with her sister Dakhsaben on the day of incident in the sewing class. On account of that there were disputes between them. Therefore, she has been falsely implicated in the offence. Appellant-Dineshbhai has also explained that he has been falsely implicated. 5. After hearing the learned Additional Public Prosecutor and learned Advocate for the accused, learned trial Judge found that the prosecution proved the charges against the accused beyond reasonable doubt and, therefore, convicted and sentenced the accused as mentioned hereinabove. Being aggrieved and dissatisfied with the judgment, the accused have preferred these appeals. 6. We have heard learned Advocate for the appellants and learned Additional Public Prosecutor at length and in grant detail. We have also perused the impugned judgment and records and proceedings of the case. 7. Learned Advocate Mr. Amin for the appellants submitted that the prosecution failed to prove that death of Giraben was homicidal death. Looking to the place of incident, the prosecution case that deceased was dragged in the bath-room by appellant—Shardaben, and set her on fire, cannot be believed and it is clear that deceased Giraben committed suicide, as the bath-room was locked from inside and the door was broken open by the neighbours. He also submitted that persons who reached at the place of incident and broke open the door have not been examined by the Investigating Officer. He also submitted that persons who reached at the place of incident and broke open the door have not been examined by the Investigating Officer. Rajubhai Prajapati who reached first at the place, his statement is recorded but not examined, only because he was not likely to support the prosecution case, indicates that prosecution has withheld the correct facts. Therefore, the prosecution case cannot be believed. He also submitted that the Doctor who recorded the history of injuries has not been examined by the prosecution and the history is recorded at Page 4 of the case papers which is very unusual as the case history of injuries would have been recorded on the 1st page of treatment papers, immediately after admission of the patient in the hospital. Doctor Suthar who has allegedly made endorsement on the Yadi, and gave it to the Executive Magistrate about the consciousness of the declarant has admitted, that he has not made any signature on the case papers, and the signature on the Yadi differs from the signature made on the Court record. Therefore, it is highly improbable that the Doctor was present at the time of the history, and therefore, history of injuries allegedly given by the deceased is not trustworthy. He has also submitted that FIR was allegedly recorded in the running ambulance, but looking to the writing of the FIR, it is highly improbable that the FIR could have been recorded in the ambulance. Therefore, the FIR cannot be relied upon to connect the appellants with the offence. He also submitted that looking to the age of the deceased and the appellant-Shardaben as well as physical condition of both of them, it is highly improbable that the appellant-Shardaben could drag the deceased to the bath-room and commit the offence as alleged by the prosecution. He also submitted that the endorsement made by the Doctor with regard to the consciousness on the Yadi given to the police and recording of dying-declaration by Executive Magistrate raised suspicion about the trustworthiness of contents of dying-declaration. Therefore, dying declaration recorded by the Executive Magistrate cannot be relied upon. He also submitted that deceased was educated. However, her thumb impression has been obtained on FIR and dying-declaration. Therefore, both these evidence become doubtful. He also submitted that no independent witness has been examined. The persons who extinguished the fire are the material witnesses. Therefore, dying declaration recorded by the Executive Magistrate cannot be relied upon. He also submitted that deceased was educated. However, her thumb impression has been obtained on FIR and dying-declaration. Therefore, both these evidence become doubtful. He also submitted that no independent witness has been examined. The persons who extinguished the fire are the material witnesses. However, they are not examined, therefore, there are numerous infirmities in the prosecution case and it has failed to prove the charges levelled against the appellants beyond reasonable doubt and, therefore, learned trial Judge committed error in convicting the appellants and so the appeals are required to be allowed and judgment is required to be set aside. He has relied upon decisions in the case of Paparambaka Rosamma & Ors. vs. State of A.P., reported in 1999 (7) SCC 695 and Burakhbee vs. State of Maharashtra, reported in 2006 (4) Crimes 360. 8. The learned Additional Public Prosecutor strongly opposed the appeals and submitted that dying declaration recorded by the Executive Magistrate, FIR and history of injuries given by the deceased are consistent and, therefore, the learned trial Judge was justified in relying upon the dying declaration. He also submitted that the conduct of the accused is not natural and the witnesses examined by the prosecution clearly implicates the appellants in the offence. He also submitted that time between the incident and recording of the FIR was very short. He also submitted that adverse inference cannot be drawn for non-examination of witness, as it is for the prosecution to lead the best evidence and not to repeat the same evidence. He also submitted that the prosecution did not examine witness Rajubhai, as he was not likely to support the prosecution case and that itself cannot go against the prosecution, as other evidence clearly establishes involvement of the appellants. He also submitted that PW. 6 Sureshbhai for the first time in the Court deposed about the manner in which the incident took place and, therefore, his evidence cannot be relied upon. He also submitted that case papers indicate that blood pressure of Giraben was not recordable but that would not be sufficient to discard the dying declaration, as she was able to give dying declaration. Therefore, the learned trial Judge was justified in relying upon dying declaration and there is no infirmity in the prosecution case and hence, the appeals are required to be dismissed. Therefore, the learned trial Judge was justified in relying upon dying declaration and there is no infirmity in the prosecution case and hence, the appeals are required to be dismissed. Date 14.12.2006 9. The prosecution case mainly rests on the dying declaration recorded by the Executive Magistrate history of injuries recorded by the Doctor and the first information given by the deceased with regard to commission of offence. In view of the fact that Giraben died after giving history of her injuries to the Doctor and lodging information before the police, both these become dying declarations of the deceased. 10. It also appears from the evidence that one Shri Raju Prajapati informed the police immediately, after the incident and his statement was recorded by the Investigating agency during investigation. However, he was not examined by the prosecution apprehending that he would not support the prosecution case. It also appears that during the course of investigation, statement of neighbours were also recorded. However, none of the neighbour was examined. Therefore, none of the witness, reached first, at the place of the incident, has been examined by the prosecution. Except dying declarations no other evidence has been adduced by the prosecution to prove charges levelled against the appellants. 11. It appears that on the basis of Vardhi-Exhibit-15 given by Rajubhai Trikambhai Prajapati on telephone to Odhav Police Station, the police went to the hospital and recorded FIR. The Vardhi indicates that Rajuhai informed to send police as Giraben had sustained burns in her house. 12. In order to prove dying declaration in the form of history of injuries given by deceased Giraben, the prosecution examined PW. 9 Dr. Nileshkumar Prahaladbhai Suthar, the Doctor who treated Giraben immediagely after her admission in the hospital at Exhibit-34. According to the witness Giraben was brought to the hospital at 8.30 p.m. on 20.01.1996 and she was conscious. The evidence also indicates that Dr. Dilip Monpara, recorded the history as dictated by the witness. The evidence of this witness also indicates that Executive Magistrate was called to record the dying declaration and Doctor had made endorsement with regard to consciousness of deceased Giraben over dying-declaration Exhibit-24. The evidence also indicates that initially antibiotics were given to Giraben and after recording of the dying-declaration the Doctor started administrating Angel and Fortwyn injections at 11 O’clock. The prosecution produced treatment case papers at Exhibit-36. The evidence also indicates that initially antibiotics were given to Giraben and after recording of the dying-declaration the Doctor started administrating Angel and Fortwyn injections at 11 O’clock. The prosecution produced treatment case papers at Exhibit-36. It indicates that Giraben sustained 76% burns. The case papers also indicate that Somabhai M. Parekh accompanied Giraben to the hospital and she was admitted at 20.20 Hrs. The case papers indicate injuries and treatment given to the deceased. The first page of the case papers indicate injuries and treatment given to the patient on 20.01.1996. Page 4 of the case papers indicates that history was given by the patient and her relatives. It appears to have been recorded at 20.30 Hrs. on 20.01.1996. The treatment case papers also indicate about general condition of the patient that she was conscious but irritable and blood-pressure was not recordable. It also indicates that Giraben had 1st, 2nd and 3rd degree burns of 76% on the body. As observed earlier, the history is recorded on Page 4 of the case papers. Normally history of injuries to a patient is recorded in the case papers, immediately after admission in the hospital. There is no explanation as to why the history was recorded on Page 4 of the case papers. Dr. Monpara who recorded the history could have explained as to why it was recorded on Page 4 instead of Page 1 of the case papers. It also appears from the case papers that Page-1 of it is in the usual format but the history recorded at Page-4 is a plain note-book paper. It is also significant that reverse of Page-1 is blank and Page-2 records only names and other details such as registration number, ward number and extent of injuries to the patient. Remaining part of Page-2 and reverse thereof is also blank. Strangely, the history is recorded at Page-4, which would create doubt about the time of recording of history in the hospital. Dr. Monpara, could have explained this, however, strangely he has not been examined. Therefore, recording of history allegedly given by Giraben becomes doubtful. It can also be seen from the case papers that history was given by Giraben and her relatives. In view of this, it is difficult to believe that deceased Giraben gave history of her injuries to PW. 9 Dr. Therefore, recording of history allegedly given by Giraben becomes doubtful. It can also be seen from the case papers that history was given by Giraben and her relatives. In view of this, it is difficult to believe that deceased Giraben gave history of her injuries to PW. 9 Dr. Nileshkumar Prahladbhai Suthar, and the same was recorded in the case papers Exhibit-36. 13. In view of this discrepancy, in our view no credence can be given to the history recorded in the case papers at Exhibit-36. 14. The prosecution examined PW. 5 Jagdish Sundarlal Parmar, the Executive Magistrate at Exhibit-21 to prove dying declaration Exhibit-24 recorded by him. The evidence of this witness indicates that Yadi Exhibit-23 to record dying declaration was received by him at 8.30 p.m. on 20.01.1996, at his residence and there was endorsement on the Yadi made by the Doctor that patient was conscious at 7.5 p.m. On receipt of the Yadi, he went to the hospital, inquired about the patient and after ascertaining that Giraben was conscious started recording dying declaration. The evidence also indicates that witness inquired from Doctor as to whether Giraben was conscious and so, after examining Giraben, the Doctor made endorsement about consciousness on dying declaration-Exhibit-24. The dying declaration indicates that the witness started recording it at 8.30 p.m. and completed at 9.05 pm. The evidence also indicates that after recording of dying declaration, it was read over to Giraben and her right thumb impression was obtained. 15. The Yadi Exhibit-23 given to the Executive Magistrate bears endorsement of the Doctor made at 7.55 p.m. that the patient was conscious. The Doctor who made the endorsement is examined as PW. 8 Dr. Dingath Dixit at Exhibit-31. The witness deposed that he gave his opinion after examining Giraben. The Doctor also deposed that he made endorsement that patient was conscious but did not make endorsement that she was able to speak. The Doctor has further explained that he would have made such endorsement, if the patient was able to speak. This evidence indicates that when the Doctor examined Giraben, she was conscious, but was not able to speak. 16. The prosecution produced dying declaration at Exhibit-24. The Doctor has further explained that he would have made such endorsement, if the patient was able to speak. This evidence indicates that when the Doctor examined Giraben, she was conscious, but was not able to speak. 16. The prosecution produced dying declaration at Exhibit-24. It appears to have been recorded between 8.50 p.m. and 9.05 p.m. The endorsement of the Doctor made thereon indicates that the patient was conscious at 8.50 p.m. The Dying declaration indicates that appellant-Shardaben harassed her by picking up quarrel and appellant Dineshbhai beat her at the instigation of appellant-Shardaben. It also indicates that the incident occurred at 5.30 p.m. as appellant-Shardaben poured Kerosene over her in the bathroom and ignited match stick. It bears right thumb impression of Giraben. The prosecution produced Panchnama at Exhibit-26. It indicates topography of place of incident, which consists of front portion of ‘Orsi’ admeasuring 10 x 15 feet. There is a room admeasuring 15 x 12 feet behind Orsi wherein, furniture like cot, drums, begs, mattresses and house-hold articles are placed. There is bath-room admeasuring 4 ½ x 3 ½ feet on the west-north corner of the room. The door of the bath-room opens inside. There is shelve on the northern wall of the bath-room where plastic and glass bottle are kept. A plastic container with Kerosene and burnt match sticks were recovered from the bath room. There is a stopper fixed with middle of the door in the side which is broken from one side. There is another room admeasuring 12 x 12 feet adjoining to the main room wherein cot, T.V. Set and other house-hold articles are kept on the shelve in the room. On the eastern side of said bunglow there is house of Rajubhai trikambhai and on the western side there is house of Rajnibhai Govindlal Patel. On the northern side after leaving road, house of Sureshbhai Somchand Modi is situated. 17. In order to prove-dying declaration in the form of FIR, the prosecution examined Investigation Officer PW. 7 Babubhai Dhulabhai Seyoni at Exhibit-27. According to the witness, on the basis of Vardi Exhibit-15, given by Rajubhai Trambakbhai Prajapati, after ascertaining from him, he went to the place, inquired about the incident from Giraben, called ambulance and took Giraben to Civil Hospital and started recording FIR Exhibit-29 in the ambulance and completed it at Civil Hospital. 7 Babubhai Dhulabhai Seyoni at Exhibit-27. According to the witness, on the basis of Vardi Exhibit-15, given by Rajubhai Trambakbhai Prajapati, after ascertaining from him, he went to the place, inquired about the incident from Giraben, called ambulance and took Giraben to Civil Hospital and started recording FIR Exhibit-29 in the ambulance and completed it at Civil Hospital. The evidence of this witness also indicates that he sent FIR with report Exhibit-14 to the Police Station for registration of offence. The witness also admitted that the route he took to the hospital is a heavy traffic route. The prosecution produced FIR at Exhibit-29. It appears from the FIR that it was recorded in Civil Hospital. It is alleged in the FIR, that Giraben went to the Sewing class at 12.00 noon and returned at 4.00 p.m. Her-in-laws were present at that time and appellant-Shardaben started quarrelling with her. At about 5.00 p.m. appellant-Shardaben got enraged and dragged Giraben to the bath-room by holding her hand; poured Kerosene and ignited match stick. Therefore, Giraben started shouting as she was burning. Thereafter, the neighbours extinguished the fire. The FIR, also indicates that the informant had studied up to SSC. The report Exhibit-14 made by the Police Inspector, Odhav Police Station to P.S.O., Odhav Police Station for registration of offence indicates that alleged incident took place at 17.30 hrs. and it was disclosed at 20.00 hrs. at Civil Hospital. 18. The prosecution also examined PW. 2 Somabhai Mohanbhai Parekh, father of Giraben, at Exhibit-9. It appears from his evidence that appellant-Shardaben used to pick up quarrel with Giraben for household work and appellant-Dineshbhai used to beat her. The evidence also indicates that on the day of incident, at about 4.00 p.m., his younger brother Kanubhai Mohanbhai informed him that Giraben had picked up quarrel and she has poured Kerosene. Therefore, after about three quarter hours the witness and Kanubhai went to the house of Giraben by bus and reached there at about 5.30 p.m. and Kanubhai inquired from Giraben as to what had happened. In reply to that, Giraben told him that appellant-Shardaben got enraged and dragged her into the bathroom by holding her hand, opened Kerosene container lying in the bath-room and poured Kerosene over her and ignited match stick. In reply to that, Giraben told him that appellant-Shardaben got enraged and dragged her into the bathroom by holding her hand, opened Kerosene container lying in the bath-room and poured Kerosene over her and ignited match stick. The evidence also indicates that after about 10 minutes, the witness returned home to manage for finance, and thereafter, again went to house of Giraben and reached there at about 7.00 or 7.15 p.m. It is very strange that the witness did not start immediately, on receiving the news about the incident, but started after about three quarter hours and went by bus, stayed at Giraben’s house for 10 minutes, then returned home and again started to go to Giraben’s house after 6.30 p.m. with Ishwarbhai Atmaram Patel and Purshotambhai Somabhai Patel in auto-rickshaw, reached at Giraben’s house, but he did not inform the police about the talk between Giraben and his younger brother Kanubhai. It also appears that after 15 to 20 minutes of reaching by the witness at Giraben’s house ambulance came there and she was taken to the hospital. The witness did not go with Giraben, but Ishwarbhai and Pashabhai went with Giraben. The evidence further indicates that when the witness reached at the house of Giraben, neighbours had assembled there, but he did not inquire from anyone as to how the incident occurred. 19. The prosecution also examined the mother of Giraben PW. 4 Kokilaben Somaben Parekh at Exhibit-12. The witness stated that she was informed about the incident on the next day as she was away. The evidence also indicates that deceased Giraben told her that appellant- Shardaben used to pick up quarrel by saying that she was slow in house-hold work and demanded a cup-board, but it was not given, as they could not arrange for it. The evidence also indicates that when witness reached the house, condition of Giraben was serious and was not conscious. After sometime she regained consciousness and on inquiry as to why she did this, Giraben informed her that appellant-Shardaben has burnt her. The witness admitted that she did not inform her husband about the demand of cup-board by in-laws of Giraben. The witness also admitted that appellant-Shardaben is physically handicapped and is walking with the help of stick. After sometime she regained consciousness and on inquiry as to why she did this, Giraben informed her that appellant-Shardaben has burnt her. The witness admitted that she did not inform her husband about the demand of cup-board by in-laws of Giraben. The witness also admitted that appellant-Shardaben is physically handicapped and is walking with the help of stick. The witness admitted that in her police statement she did not state that Giraben was unconscious but regained consciousness after some time and, therefore, she asked as to why she did this. 20. The prosecution also examined neigbhour of the father of deceased Giraben, PW. 3—Purshotambhai Somabhai Patel at Exhibit-10. The witness stated that on 20.01.1996 at about 6.30 p.m. he saw people gathered at Somabhai’s house. When he went there, he was informed that Giraben has sustained burns, therefore, he alongwith Ishwarbhai Atmaram Patel and Somabhai Mohanbhai, father of Giraben went to the house of Giraben and saw that police and ambulance had reached there. The witness also deposed that he saw Giraben lying outside bathroom in burnt condition; therefore, he and Ishwarbhai took Giraben to the hospital in the ambulance. When they were taking Giraben to the hospital, he inquired from Giraben as to how the incident occurred and so Giraben informed him that appellant-Shardaben dragged her to bath-room and set her ablaze by pouring Kerosene. 21. The prosecution also examined Panchwitness-PW. 6-Sureshbhai Somchand Modi at Exhibit-25. The witness deposed about the topography of place of incident. It appears from the evidence of this witness that appellant-Shardaben was physically handicapped by right leg, and she was not able to walk without the help of stick and on hearing of shouts from the house of appellants; the witness and Rajubhai reached there and found that noise was coming from bathroom and the door was locked from inside, therefore, the lock was broken open and they extinguished fire by pouring water. 22. Now analysing the evidence, it appears from the report Exhibit-14 that incident occurred at 17.30 hrs. and it was disclosed at 20.00 hrs in the Civil Hospital. According to the prosecution case, the FIR was dictated in the ambulance while going to the hospital. The evidence indicated that PW. 3 Purshatambhai Somabhai Patel—Exhibit-10 accompanied Ishwarbhai to the hospital in ambulance van, but he did not speak about the presence of police and recording of FIR in the running ambulance van. According to the prosecution case, the FIR was dictated in the ambulance while going to the hospital. The evidence indicated that PW. 3 Purshatambhai Somabhai Patel—Exhibit-10 accompanied Ishwarbhai to the hospital in ambulance van, but he did not speak about the presence of police and recording of FIR in the running ambulance van. On the contrary, the witness stated that Giraben made oral dying declaration before him. This version raises suspicion about the prosecution case that first information with regard to incident given by Giraben was recorded in the running ambulance van. On perusal of FIR at Exhibit-29, the place indicated thereon is Civil Hospital. Assuming that though recording of FIR started in the ambulance and was completed at Civil Hospital, the writer could not have mentioned the place as Civil Hospital on the FIR. Moreover, writings of FIR are clear and systematically written. The margin left in the writing is also even. It would be difficult to believe that a person recording information in moving vehicle would be able to record with so clarity consistency and exactness. It also appears from the evidence that route to the Civil Hospital was a busy route and, therefore, there would be turns and application of breaks by the moving vehicle. It would be difficult to believe that a person would be able to take down dictation with such a clear and consistent writing. Therefore, in our view, it is difficult to accept that deceased Giraben gave information with regard to commission of offence, which was recorded in the running ambulance van. 23. The evidence of PW. 9 Dr. Nileshkumar Prahladbhai Suthar at Exhibit-34 indicates that history of injuries was recorded by Dr. Dilip Monpara as dictated by him and as narrated by Giraben. However, as discussed earlier, the history has been recorded at Page-4 of medical case papers Exhibit-24. The Doctor who had noted down the history, could have explained as to why history was not recorded on first page of the medical case papers, but he has not been examined. The Doctor deposed that after recording of dying declaration, treatment was started. It would be difficult to believe this as the first page indicates treatment given to the injured on admission in the hospital. Therefore, in our view the history recorded in the case papers does not inspire confidence. 24. The evidence of Panchwitness PW. The Doctor deposed that after recording of dying declaration, treatment was started. It would be difficult to believe this as the first page indicates treatment given to the injured on admission in the hospital. Therefore, in our view the history recorded in the case papers does not inspire confidence. 24. The evidence of Panchwitness PW. 6 Sureshbhai Somchand Modi-Exhibit-25 indicates, that immediately on hearing of shouts, he and Rajubhai went to the place of incident and saw that bath-room was locked from inside. Therefore, they broke open the lock and took Giraben out of the bath-room. Panchnama Exhibit-26 also indicates that inside stopper was found broken and ignited match sticks were recovered from bathroom. The size of the bath-room is 4 ½ and 3 ½ feet and the door opens from inside. There is shelve in the bath-room, whereon some articles are kept and Kerosene container was found inside the bath-room. Looking to the size of the bath-room it would be difficult to believe that two persons could stand inside bath-room wherein there is shelve on one of the wall. Moreover, when inside stopper on the door is found broken, it becomes clear that door was locked from inside. Moreover burnt match sticks are found in the bath-room. If a person is dragged inside bath-room and burnt with Kerosene using more than one match stick, it would be difficult to believe that person assaulted would not raise any alarm or shout for help. It is also significant that a plastic container having Kerosene was found inside bath-room. Normally, no one would keep Kerosene container in bath-room. It is not the prosecution case that in preparation to commit the offence Kerosene container was kept inside the bath-room before commission of offence. The Panchnama indicates that furnitures and house-hold articles placed in two rooms were found placed in orderly condition. According to the prosecution case, the deceased was dragged to bath-room by appellant-Shardaben, if we accept this story, normally there would be resistance from the deceased, which would leave marks of resistance in the room. The deceased was aged about 22 years and was fairly build. As against that appellant-Shardaben was aged about 53 years and was physically handicapped. Therefore, it is difficult to believe that appellant-Shardaben dragged deceased Giraben to the bath-room; poured Kerosene and set her ablaze. 25. The evidence of PW. The deceased was aged about 22 years and was fairly build. As against that appellant-Shardaben was aged about 53 years and was physically handicapped. Therefore, it is difficult to believe that appellant-Shardaben dragged deceased Giraben to the bath-room; poured Kerosene and set her ablaze. 25. The evidence of PW. 2 Somabhai at Exhibit-9 that his brother Kanubhai informed him about the incident is not above suspicion. It is very strange that witness after receiving news about the incident started to go to Giraben’s house after three quarter of hour in a bus. Normally, conduct of a father would try to reach the place immediately, on receiving the news of burning of his daughter. The evidence also indicates that after going to Giraben’s house, instead of taking Giraben to hospital the witness again retuned to his house to manage for finance and thereafter, around 6.30 p.m. went to Giraben’s house and reached at about 7.45 p.m. It is difficult to believe that when witness for the first time reached at house of Giraben at 5.30 p.m. wasted almost two hours in taking the victim to the hospital. The evidence also indicates that when witness reached at the place of incident at about 7.00 p.m.-7.15 p.m. police was present, but he did not inform them about oral dying declaration given by deceased Giraben to his brother Kanubhai. The evidence also indicates that after the witness reached to the place of Giraben at about 7.45 p.m., the ambulance came there after 15 to 20 minutes and took Giraben to the hospital. As discussed earlier the Vardhi-Exhibit-15 was recorded at 18.30 hrs. in the police station. The victim was admitted in the hospital at 20.20 hrs. In our view, the witness has given the timings only with a view to suit the prosecution case. It is also very strange that the witness did not go in the ambulance with Giraben but Ishwarbhai and Pasabhai, his neighbours went in the ambulance. The conduct of this witness is not natural. Normally, father would accompany his daughter to the hospital. The evidence also indicates that when the witness reached at the place of incident, on hearing the news, his relatives and neighbours were present but the witness did not inquire from anyone as to how the incident occurred. It is significant that Kanubhai, brother of witness who allegedly informed him about the incident has not been examined. The evidence also indicates that when the witness reached at the place of incident, on hearing the news, his relatives and neighbours were present but the witness did not inquire from anyone as to how the incident occurred. It is significant that Kanubhai, brother of witness who allegedly informed him about the incident has not been examined. The evidence indicates that Kanubhai came to the house of the witness at 4.00 p.m. and informed about the incident. However, according to the prosecution case, the incident occurred around 5.30 p.m. 26. In view of these discrepancy in the evidence veracity of this witness becomes doubtful. The witness also stated that there were quarrels between appellant-Shardaben and his daughter Giraben. However, he has not given any specific instances of quarrel. The witness also stated that appellant-Dineshbhai used to beat Giraben. However, no specific incidents of beating are given by the witness. The neighbour, PW. 6 Sureshbhai Modi at Exhibit-25 in his deposition stated that he did not hear any quarrels between the appellants and Giraben. Therefore, in our view, it would not be safe to rely on the evidence of this witness to connect the appellants with the offence. 27. The evidence of PW. 4 Kokilaben Parekh the mother of deceased at Exhibit-12, indicates that when she reached at the hospital Giraben was not conscious but subsequently regained consciousness and she inquired as to why she (Giraben) did this. It appears from tenor of evidence of this witness that the witness was aware that deceased might have been herself responsible for the incident. The evidence of this witness also indicates that she has tried to improve her version by saying that in-laws demanded cup-board. This fact has been stated for the first time in the oral deposition. There are vague allegations of mental and physically harassment. No specific incidents are given by the witness. In our view, these allegations are made only with a view to demonstrate harassment. In absence of other material the evidence of this witness cannot be relied upon to connect the appellants with the offence. 28. The evidence indicates that one of the persons who reached at the place of offence was Rajubhai Trimbakbhai and he gave information to the police. The witness is material witness but has not been examined only because he was not likely to support the prosecution case. 28. The evidence indicates that one of the persons who reached at the place of offence was Rajubhai Trimbakbhai and he gave information to the police. The witness is material witness but has not been examined only because he was not likely to support the prosecution case. In our view, non-examination of this witness or any other neighbours leaves a vital lacuna in the prosecution case. It is also significant that dying declaration at Exhibit-24 bears the thumb impression of the deceased. Similarly, thumb impression was also obtained on FIR at Exhibit-29. The deceased was fairly educated lady having studied upto 10th Standard. There is no explanation as to why thumb impression was obtained in these documents. This also creates doubt about the dying declaration and disclosure of offence allegedly made by the deceased. 29. On conjoint reading of dying declaration—Exhibit-24, FIR Exhibit-29 and history of injuries recorded by the Doctor at Exhibit-36, there are serious infirmities. As discussed earlier according to the prosecution case, the deceased was dragged into the bathroom by appellant-Shardaben and set on fire at 5.30 p.m. The evidence indicates that appellant-Shardaben is a physically handicapped lady and walks with the help of stick. Therefore, it is difficult to believe that she could have dragged the deceased to the bathroom and set her on fire. It is also significant that the deceased did not raise any shout for help and more than one burnt match sticks were found from the bath-room which would have taken sometime in setting the deceased on fire giving sufficient time for the deceased to escape or atleast to make an attempt to escape. The evidence also indicates the size of the bath-room which would not make possible for two persons to remain therein. The door of the bath-room was locked from inside by stopper and it was broken open. There were no signs of resistance by the deceased though she was young and fairly built as can be seen from P.M. Note. The incident was reported by Rajubhai Prajapati but he has not been examined. Panch PW. 6 Sureshbhai’s evidence indicates that he and Rajubhai went to the place of incident immediately on hearing the shouts from the house of the appellants and found the bathroom locked from inside so they broke open the stopper. The witness did not hear any quarrel between the appellants and the deceased. Panch PW. 6 Sureshbhai’s evidence indicates that he and Rajubhai went to the place of incident immediately on hearing the shouts from the house of the appellants and found the bathroom locked from inside so they broke open the stopper. The witness did not hear any quarrel between the appellants and the deceased. The FIR was allegedly recorded in running ambulance van but the persons accompanying the deceased in the ambulance have not stated about the same. On admission in the hospital, the treatment was started and the history is recorded on 4th page of the case papers. The deceased was literate but thumb impression was obtained on FIR and dying declaration and no explanation for this flaw is offered. These are serious discrepancies in the prosecution case which go to the root of the prosecution case. Moreover PW. 3 Purshotambhai also deposed about dying declaration made by Giraben to him in the ambulance but that does not inspire confidence. Therefore, this evidence cannot be relied upon to connect the appellants with the offence. In our view, the learned trial Judge committed serious error in convicting appellant-Shardaben for the offence punishable under Section 302 of IPC. 30. In order to prove that the death of Giraben was homicidal in nature, the prosecution examined PW. 1 Dr. Ravendra Balasaheb Deshmukh who performed post-mortem at Exhibit-7. The evidence of this witness indicates that the scalp hair were partially burnt and smell of Kerosene was present in the scalp hairs. The evidence also indicates that soles of the foot were not burnt and no internal injuries were found on the dead body. The witness also stated that the injuries were sufficient in the ordinary course of nature to cause death and cause of death was shock as a result of burns. The witness admitted that injuries recorded in postmortem report Exhibit-8 were possible if a person poured Kerosene on himself. The post-mortem report indicates that there were no external injuries and there were two to three degree burns on face, neck, chest and abdomen. Two to three degree burns were also present on palms and palmer aspect of fingers, both lower limbs except back aspect of neck as a whole, both gluteal regions and external genitalia. The report also indicates that the cause of death was shock as a result of burns. Two to three degree burns were also present on palms and palmer aspect of fingers, both lower limbs except back aspect of neck as a whole, both gluteal regions and external genitalia. The report also indicates that the cause of death was shock as a result of burns. The inquest Panchnama Exhibit-11 indicates that the deceased had burn injuries all over the body except fingers and toes on both the legs. Therefore, death was on account of burn injuries sustained by the deceased. The evidence does not prove homicidal death to the hilt and possibility of suicidal burns cannot be ruled out. 31. So far as conviction of both the appellants under Section 498-A of IPC is concerned according to prosecution case the deceased was harassed by both the appellants in relation to house-hold work. There is evidence with regard to demand of gift articles by appellant-Shardaben. The allegations with regard to harassment are too general in nature and vague and no specific details or indicates are given by the witnesses. Therefore, in our view, to infer that there was harassment of Giraben with a view to coercing her to meet with any unlawful demand, in our view the ingredients of Section 498(A) of IPC are not satisfactorily established by the prosecution beyond reasonable doubt. Therefore, conviction of the appellants on that count is also required to be set aside. 32. Now considering the evidence of Doctor, it appears that injuries can be suicidal also. Considering the Panchana Exhibit-26, and post-mortem report Exhibit-8, in our view, it becomes doubtful as to whether the injuries were homicidal in nature. 33. Learned Advocate for the appellants has relied on the decision in the case of Burakhbee vs. State of Maharashtra, reported in 2006 (4) Crimes 360, wherein the Bombay High Court held that when conviction is founded on dying declaration, it must be found to be inspiring confidence. In the present case, as discussed earlier, dying declaration does not inspire confidence. Therefore, in our view, learned trial Judge committed error in convicting the appellant—Shardaben for the offence of murder. 34. In the case of Paparambaka Rosamma & Ors. In the present case, as discussed earlier, dying declaration does not inspire confidence. Therefore, in our view, learned trial Judge committed error in convicting the appellant—Shardaben for the offence of murder. 34. In the case of Paparambaka Rosamma & Ors. vs. State of A.P., reported in 1997 (7) SCC 695, the Apex Court has held that where conviction is solely based on dying declaration, the Court has to consider carefully the dying declaration and the evidence of the witnesses supporting it viz., the Magistrate who recorded the statement of the deceased and the Doctor who examined the deceased in the hospital. In the present case, conviction could not have been based solely on dying declaration. 35. For the foregoing reasons, both the appeals are allowed and the judgment and order of conviction dated 23.08.1999 passed by the learned Additional City Sessions Judge, Ahmedabad City in Sessions Case No. 176 of 1996 is set aside. 36. Appellant-Shardaben Mahendrabhai Parekh in Criminal Appeal No. 995 of 1999 and appellant-Dineshbhai Mahendrabhai Parekh in Criminal Appeal No. 1089 of 1999 are acquitted of the offences charged against them and since, they are on bail, their bail bonds are cancelled. 37. The fine, if paid, be returned to the appellants concerned. The muddamal be disposed of as directed by the trial Court. * * * * *