JUDGMENT 1. - This appeal under Section 374 Cr.P.C. has been directed against the 1 judgment dated 9th August, 2002 passed by the learned Additional Sessions Judge, No. 1 (Fast Track), Dholpur in Sessions Case No. 193/2001, whereby he has convicted and sentenced the appellants Nos. 1 and 2 for commission of offence under Sections 302 IPC and 302/34 IPC, respectively to suffer life 5 imprisonment and acquitted other two accused, namely, Bhoora and Dinesh. 2. The prosecution story is that on 28th June, 1999 in the evening at about 6.30 PM deceased Anita was abused by the appellants using filthy language and appellant No. 1, mother-in-law of deceased told her that she will arrange second marriage of his son Dinesh, husband of the deceased. While Anita was sweeping the courtyard, her mother-in-law, appellant No. 1 came from behind and poured diesel oil on her body. She demanded and got the match box from the appellant No. 2. She was put on fire. She suffered 85 to 90 percent burn injuries. She was taken for treatment to Dr. Bharat Meena, who runs private clinic at village Baseri. He treated the victim for two days and thereafter referred her on 30th June, 1999 to Government Hospital, Dholpur, where she was admitted and treated by Dr. Adarsh Saxena, PW 6. Balbir Singh, Assistant Sub Inspector PW 14 came to the hospital and recorded the statement of victim on 1.7.1999. This statement was sent to the concerned Police Station, Baseri, and on the basis of this statement FIR was registered and investigation commenced. 3. During investigation, the police prepared the site plan, Ex.P. 6, recorded the statements of witnesses under Section 161 Cr.PC. The Prosecution presented the challan against four accused before the Court. The trial Court framed charges against appellant Somoti for commission of offence under Sections 498A, 304B, 302 and 201 IPC and against appellant Guddi for commission of offence under Sections 498A, 304B, 302/34 and 201 IPC. Accused Dinesh and Bhoora were charge sheeted for commission of offence under Sections 498A, 304B and 201 IPC. During trial, the prosecution examined witnesses to prove the charges. Accused Dinesh and Bhoora were charge sheeted for commission of offence under Sections 498A, 304B and 201 IPC. During trial, the prosecution examined witnesses to prove the charges. Out of witnesses witnesses, namely, PW 1 Rakesh, PW 2 Man Singh, PW 3 Kamal Singh, who have been cited in the challan to prove the occurrence, PW 8 Daya Ram, witness of site plan and PW 13 Asha, sole eye witness to the occurrence, were declared hostile. The trial Court, on appreciation of evidence led by the prosecution and hearing the learned counsel for the parties came to the conclusion that the prosecution has proved the charges and thus, convicted and sentenced the appellants to suffer life imprisonment. Other accused, namely Bhoora and Dinesh were acquitted of the charges. 4. Appeal has been preferred by the appellants mainly on the ground that the learned trial court has not properly appreciated the evidence and that the trial court though recorded the findings that there are discrepancies in the prosecution case yet recorded conviction relying upon the dying declaration, which in law has no legal evidenciary value. 5. Heard the learned counsel for the parties and perused the record. 6. The prosecution story is that on 30th June, 1999, Balbir Singh, ASI came to the hospital at the instance of hospital authorities and recorded the statement of victim Anita. She in her statement has stated that she has studied upto VIllth class. She is a resident of village Helak, Police Station Sever, District Bharatpur. Her marriage was solemnized six years earlier with Dinesh Chand Sharma S/o Shri Moti Ram, resident of Batuapura, Police Station Baseri, district Dholpur. After one month of the marriage, her husband, mother-in-law Somoti, brother-in-law Bhoora and sister-in-law Guddi, who has been married to Kishan Gopal of Hindaun City, started treating her with cruelty and raising demand of dowry. On 28th June. 1999 at about 6.30 PM her mother-in-law and sister-in-law hurled abusive with filthy utterences. Her mother-in-law told that let her die and she will marry her son for the second time. While she was sweeping the courtyard, her mother-in-law came from behind and poured diesel oil on her. Diesel oil was contained in a plastic cane. She asked accused Guddi for match box and Somoti set her on fire. Her 'sari', blouse and 'petticoat' got burnt and she received injuries from neck to feet. While she was sweeping the courtyard, her mother-in-law came from behind and poured diesel oil on her. Diesel oil was contained in a plastic cane. She asked accused Guddi for match box and Somoti set her on fire. Her 'sari', blouse and 'petticoat' got burnt and she received injuries from neck to feet. On hearing Tier shrieks, her younger sister Asha came on the spot and seeing her burning, shouted for help. The neighbours came there and she was taken to hospital by Man Singh, son of her uncle-in-law and Rakabo on a cot. After that, her husband and younger brother-in-law Bhoora came there and got her treated from Dr. Bharat Meena at Baseri. When the doctor refused treatment, she was taken to Dholpur hospital. She was brought to the hospital by her husband and Bhoora. In the 1 hospital Suresh son of her elder uncle-in-law told her that if she makes statement against them, the lives of the parents will be in difficulty". On the basis of this statement of the victim, FIR was registered. 7. The prosecution wanted to prove the guilt by ocular evidence i.e. the s statement of PW 13 Asha, sole eye witness, Ex.P-6 the site plan of the place of occurrence, coupled with medical evidence and dying declaration of the deceased. The police has also prepared the site plan, Ex.P. 4 of the place of cremation of the deceased after a period of 6 months of the cremation. 8. It is necessary to notice .here that deceased Anita and PW13 Asha are real sister and married to accused Dinesh and Pappu, respectively, who are also real brothers and that from 1.7.1999 to 17.1.2000 i.e. for a period of 6 months no investigation was conducted at all. 9. Learned Public Prosecutor has submitted that the learned trial court has rightly appreciated the evidence and the dying declaration is free from all encumbrances, trust worthy and on the basis of dying declaration the trial court is justified in recording conviction and sentence, which needs no interference. 10. The learned counsel for the appellants has submitted that the trial court has erroneously convicted and sentenced the accused relying upon the evidence of eye witness and the dying declaration of the deceased. 11. 10. The learned counsel for the appellants has submitted that the trial court has erroneously convicted and sentenced the accused relying upon the evidence of eye witness and the dying declaration of the deceased. 11. On appreciation of the evidence, we find that there is only one eye witness to the occurrence, namely, PW 13 Asha, who is the real sister of deceased. The deceased in her statement has stated that while she was put to flames by her mother-in-law, Asha heard shrieks and came on spot and cried for help and the neighbours came there. Her statement has also been recorded under Section 161 Cr. PC. While making statement in the court, she has not supported the prosecution story and was declared hostile. She has stated in her statement before the trial court that she reached on spot after the occurrence. PW 1 Rakesh, PW 2 Man Singh and PW 3 Kamal Singh who have been cited to prove the occurrence have also been declared hostile. PW 8 Daya Ram cited in the challan to prove the site plan, Ex.P. 6, has also not supported the prosecution story and was declared hostile. The prosecution has failed to prove the case by ocular evidence supported by other corroborative evidence. Now the only evidence which remains to be considered is the dying declaration, on the basis of which the trial Court has sentenced the appellants. 12. The statement of the victim was recorded by PW 14 Balbir Singh, ASI in the hospital on 30th June, 1999, though the occurrence took place on 28th June, 1999. The prosecution has not explained as to why the statement of the victim could not be recorded on 28.6.1999 and 30.6.1999 while she was admitted in the private Clinic of Dr. Bharat Meena at village Baseri. On appreciation of dying declaration, we find that PW 13 Asha is the eye witness of the occurrence. She has resiled from her statement to be an eye witness of the incident. The dying declaration has not been read over by the subscriber to the victim to be correct to prove its veracity. There is no other witness to the dying declaration. A note has been appended to the dying declaration, which suggests that it has been recorded in the presence of father of the deceased. The dying declaration has not been read over by the subscriber to the victim to be correct to prove its veracity. There is no other witness to the dying declaration. A note has been appended to the dying declaration, which suggests that it has been recorded in the presence of father of the deceased. During the course of investigation, the father of the deceased expired, so the note appended to the dying declaration has no evidenciary value. Another aspect to appreciate this dying declaration is that PW 4 Ghanshyam Yadav was working as Sweeper in the Clinic of Dr. Bharat Meena who has been cited to prove the condition of victim in the Clinic at Baseri. He has stated in his statement before the trial Court that deceased Anita was admitted in the Clinic while she was unconscious and at the time when she was relieved and referred to Dholpur Hospital, she was still unconscious. Dying declaration has been recorded without obtaining the opinion of the Doctor as to whether the victim is fit to make a statement. PW 14 Balbir, ASI who has recorded the dying declaration has also not explained as to why the opinion of the doctor could not be obtained to know the health and mental condition of the deceased to make the statement. The victim has suffered 85 to 90 percent burn injuries and the doctor has also recorded in the medico legal report at the time of her admission in the Hospital that her general condition is poor. It was obligatory in law for PW 14 to obtain the certificate from the doctor while the victim was so serious having severe burn is injuries. Such a practice of recording dying declaration cannot be encouraged and looses its evidentiary value. 13. The dying declaration is groaning utterances of the victim. The dying declaration may not be recorded at the time of dying or shrinking, and could even be recorded earlier, which is a statement of the victim relating to the cause of death. The victim in this case. was struggling for life having 85 to 90 percent burn injuries on her body, which itself shows that the condition of the patient was serious. It is not a case where the victim died on the same day or the next day and there was extreme urgency to record the statement. The victim in this case. was struggling for life having 85 to 90 percent burn injuries on her body, which itself shows that the condition of the patient was serious. It is not a case where the victim died on the same day or the next day and there was extreme urgency to record the statement. In such a situation the dying declaration can be recorded by the Doctor also if he finds that life is ebbing fast in the victim. The victim was relieved from the hospital and the prosecution has failed to explain as to on which date the victim was relieved, whereas she died on 19.7.1999. The prosecution has not explained that after hew many days she died. In this case there was a time for the prosecution to call a Magistrate besides to obtain certificate from the doctor with regard to condition of the patient to make the statement. PW 14 Balbir Singh, ASI has also not explained before the trial Court as to why the Magistrate could not be arranged and why the opinion of the doctor was not obtained. Such type of dying declaration loses its evidentiary value. Thus, the dying declaration is not free from encumbrances and trust worthy. No. 35 independent witnesses have been cited in whose presence the dying declaration was recorded. Dr. Adarsh Saxena, PW 6 has been examined by the prosecution. He has stated in his examination in chief that the condition of the patient was worse. In such a situation, it was the duty of the person recording dying declaration to have first sought the opinion of the doctor as to whether the victim is mentally in a fit condition to make the statement. It has not been done. While attacking the dying declaration, learned counsel for the appellants in support of his argument has relied upon a judgment of the Supreme Court delivered in the case title Chacko v. State of Kerala, reported in 2004(1) WLC (SC) Cri. 430 : 2003(4) Supreme 262 . In this case a lady was murdered by putting kerosene oil and setting her ablaze. Dying declaration was recorded on plain paper with thumb impression of the deceased having 80% injuries. Medical certificate was also obtained from the Doctor but the Court found it to be issued after recording the statement. 430 : 2003(4) Supreme 262 . In this case a lady was murdered by putting kerosene oil and setting her ablaze. Dying declaration was recorded on plain paper with thumb impression of the deceased having 80% injuries. Medical certificate was also obtained from the Doctor but the Court found it to be issued after recording the statement. Dying declaration was not reflected in the inquest report and such a dying declaration was declared as unreliable. Dealing with such a dying declaration, the Court observed as under : "...We find it difficult to accept the prosecution case based on the dying declaration allegedly made by the deceased. As pointed out by the learned counsel for the appellant, it is very difficult to accept the prosecution case that the deceased who was of about 70 years, and had suffered 80% burns could make a detailed dying 5 declaration after 8 to 9 hours of the burning giving minute particulars as to the motive, the manner in which she suffered the injuries. This, in our opinion, itself creates a doubt in our mind apart as to the genuineness of the declaration (See : Munnu Raja & Anr. v. State of Madhya Pradesh, AIR 1976 SC 2199 page 6 ). Further in the absence of any certificate by a competent doctor as to the mental and physical condition, we think it is not safe to rely on the same. We are aware of the judicial pronouncements of this Court that it is not always necessary that dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration. (See : Ram Bai v. State of Chhattisgarh, 2002(8) SCC 83 )). In the instant case it is not as if the doctor was not available. As a matter of fact, PW 3 who treated the deceased in the first instance was unavailable at the time when the deceased allegedly made the dying declaration, will we find he has not either given a certificate as to the condition of the deceased nor has he attested the said document. That apart. As a matter of fact, PW 3 who treated the deceased in the first instance was unavailable at the time when the deceased allegedly made the dying declaration, will we find he has not either given a certificate as to the condition of the deceased nor has he attested the said document. That apart. a perusal of the dying declaration as per Ex.P.4 shows that the contents of the documents are so arranged so as to accommodate the space which is above the thumb impression which we think is not a normal way of recording a statement if the same was genuine. This is also a ground to suspect the genuineness of the document." 14. In the dying declaration under scrutiny, the thumb impression and signatures both have been affixed. 15. There is another glaring loop-whole in the prosecution case that the diesel cane and the match box used for commission of offence have not been seized to connect the accused with the commission of the offence. 16. On appreciation of ocular evidence led by the prosecution and other documentary evidence, we find that the trial court has not appreciated the evidence legally and in its right perspective. The findings of the trial court of conviction and sentence based on such dying declaration are erroneous. The dying declaration suffers for various aspects as noticed above and such a dying declaration is not free from doubt and encumbrances. The dying declaration, on the basis of which conviction could be made, should be free from all encumbrances and should be natural and independent. The conviction can be recorded on such dying declaration, though there may not be any other corroboration. In the present case, the dying declaration has been recorded after few days of the occurrence. There is no postmortem report. The prosecution has also failed to explain that as to why the prosecution has not conducted investigation for over six months. The prosecution also has not shown the reasons for not seizing the cane in which the diesel oil was brought and used, which was an essential and vital evidence and a circumstance to connect the accused, to prove the guilt. The sole eye witness, the real sister of the deceased has also resiled from her statement. 17. For the aforesaid reasons, we are unable to hold and maintain the findings of conviction and sentence recorded by the learned trial court. The sole eye witness, the real sister of the deceased has also resiled from her statement. 17. For the aforesaid reasons, we are unable to hold and maintain the findings of conviction and sentence recorded by the learned trial court. The prosecution has miserably failed to prove the case against the appellants for their conviction and sentence. Accordingly, we allow the appeal, set aside the judgment of the trial court and acquit the accused appellants of the charges. Accused appellants, namely Somoti and Smt. Guddi are suffering sentence in the jail. They shall be released forthwith.Appeal Allowed. *******