Judgment C.K. Buch, J.—The appellants have challenged the legality and validity of the judgment and order of conviction and sentence dated 25.07.2008 passed by the learned Additional Sessions Judge, Ahmedabad(Rural), Ahmedabad in Sessions Case No. 88 of 1997. All three appellants have been held guilty of charge for offence punishable under Section 302 read with Section 34 and also under Section 498-A of the Indian Penal Code. Accused have been imposed life imprisonment for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and to pay a fine of Rs. 100/- each, in default, further rigorous imprisonment for one month has been awarded. It is also ordered that the appellants have to undergone rigorous imprisonment for one year and to pay a fine of Rs. 100/- each, in default, to undergo further rigorous imprisonment for one month, for the offence punishable under Section 498-A of the Indian Penal Code. Original accused Nos. 1 and 2 are husband and wife and father and mother of accused No. 3 Lalji. As per the case of prosecution, accused No. 3 Lalji is the husband of the deceased Vinuben @ Pinki, who died on account of burn injuries sustained by her in the incident. The case of the prosecution in nutshell is reflected in the charge at Exh-2. 2. It is alleged that on 02.01.1997 , accused No. 3 husband of deceased Vinuben was residing with the deceased on the first floor of the house and on the ground floor, appellant Nos. 1 and 2, with their another son and his wife were residing. All three accused in the short marriage span of approximately 1 ½ years, were harassing the deceased and she was subjected to mental and physical torture and cruelty. On the date of incident, i.e. on 02.01.1997 , at about 7:00 p.m. the accused persons with an intention to kill Vinuben @ Pinki caused burn injuries to her in the residential house located at Village: Bhat, Taluka: Dascroi, District: Ahmedabad. Accused Nos. 1 and 2 caught hold of the deceased Vinuben and accused No. 3 thereafter poured kerosene upon her and ignited the fire. The accused were sharing common intention to kill Vinuben and, thereafter, they left their home immediately after the incident. Accused Nos. 1 and 2 caught hold of the deceased Vinuben and accused No. 3 thereafter poured kerosene upon her and ignited the fire. The accused were sharing common intention to kill Vinuben and, thereafter, they left their home immediately after the incident. Say of the prosecution is that accused No. 3 also sustained burn injuries in the incident and this shows active participation of accused No. 3 in the incident. Father, mother and family members of the deceased residing at Ahmedabad, when they reached at Village: Bhat, at that time, injured Vinuben was lying on the floor as she had already come down the staircase and on inquiry from Vinuben, complainant father found that her daughter Vinuben has been ablazed with fire by all the three accused at about 7 p.m. In jeep car, Vinuben was shifted to Vadilal Sarabhai Hospital at Ahmedabad. She was admitted in the Hospital. Doctor has recorded case history given by her. It is alleged that the deceased had said to the Doctor about the whole incident and active participation of the accused persons in the crime committed against her. It is also the case of the prosecution that necessary arrangement to see that dying declaration of the injured is recorded by the Executive Magistrate was made. Executive Magistrate, in turn, rushed to the Hospital and deceased Vinuben has stated as to how she has sustained the burn injuries. Immediately after the incident, police has drawn panchnama of scene of offence, after recording FIR of the complainant father on 03.01.1997 at about 2:00 p.m. i.e. 14 hours. After investigation, police found that there is a case against all three accused and, therefore, charge-sheeted all the accused for the offence punishable under Sections 302 read with Section 34 and 498-A of the Indian Penal Code. 3. Learned Trial Judge, after conclusion of the trial found that the prosecution has satisfactorily established the charge against all the three accused and held all the three accused guilty as mentioned hereinabove. The appeal being filed under Section 374 of the Code of Criminal Procedure, 1973, the Court is suppose to scan the judgment and order under challenge and if be needed, appreciate the entire set of evidence led by the prosecution and, therefore, we have heard learned Counsel for the appellants Mr. Vijay H. Patel appearing for HL Patel Advocates and Ms. Vijay H. Patel appearing for HL Patel Advocates and Ms. D.S. Pandit for the State of Gujarat. Both the counsels have taken us to oral evidence led by the prosecution and order under challenge. Relevant part of the evidence is read over to us. 4. Mr. V.H. Patel appearing for the appellants submitted that conviction recorded by the learned Trial Judge is mainly based on the dying declaration of the deceased Vinuben, recorded by the Executive Magistrate and case history allegedly given by her to the Doctor, when she was admitted in the V.S. Hospital, Ahmedabad for treatment. According to Mr. Patel, the Trial Judge has committed grave error in appreciating the evidence and facts emerging that she marshaled properly and that has led to the Trial Court to the erroneous findings. The infirmities in the evidence though pointed out to the Trial Judge, have not been properly appreciated. Material improvements have been ignored and impact of non-examination of material witnesses has not been properly considered. Mr. Patel fairly accepted that if the Court is satisfied that the dying declaration is a result of product of imagination, tutoring and prompting and if the Court is satisfied that the same is trustworthy and creditable, then, the accused can be linked with the crime merely on the basis of dying declaration. He has also fairly conceded that there is no need to see corroboration if the Court is able to hear the ring of truth of the dying declaration made by the deceased. The prosecution is suppose to prove that the statement of the deceased is dying declaration within meaning of Section 33 of the Indian Evidence Act and the same is trustworthy and reliable. In a given case, the prosecution can prove the dying declaration by producing some corroborative evidence and convincing the Court that the dying declaration made by the deceased should be accepted as reliable piece of evidence. According to Mr. Patel, learned Trial Judge while evaluating the strength of the dying declaration, has not considered several aspects, which emerge from the documentary evidence. Grievance of Mr. Patel is that neither investigating agency had remained fair with the accused nor public prosecutor while conducting the trial and, therefore, material witnesses have not been examined by the prosecution i.e. real sister of the brothers. Grievance of Mr. Patel is that neither investigating agency had remained fair with the accused nor public prosecutor while conducting the trial and, therefore, material witnesses have not been examined by the prosecution i.e. real sister of the brothers. It is the case of the prosecution that first cousin of Vinuben was first lady to reach after Madhuben, after receiving of burn injuries by the deceased. The prosecution has decided not to examine first lady i.e. daughter of the sister of the mother of deceased Vinuben. Undisputedly, the Court witness Kokilaben and mother of the deceased Vinuben are real sisters and this Kokilaben is residing in very nearby straightway to Village: Bhat. Village Bhat is not a big town. Even scream of the deceased tempted Kokilaben to rush to Vinuben and this Kokilaben was dropped by the prosecution. On the strength of application of some of the witnesses, whose names emerge from the charge-sheet filed by the investigating agency and one such witness added by the Court categorically said that Vinuben had committed suicide and there is no role of the husband of the deceased nor father-in-law and mother-in-law in the entire incident and not good, sound and logical reason has been given by the prosecution. Mr. Patel submitted that investigating officer himself has admitted that during investigation, number of witnesses stated that the deceased had committed suicide. This factual scenario has been met with by Trial Judge and the Trial Judge has accepted the words of dying declaration as gospel truth, without applying proper test of evidence as reliable piece of evidence. Undisputedly, it emerges that Madhuben, real sister of the deceased married to real brother of accused No. 3 on the very same day. The cousin sisters are the persons, who were capable of throwing light of first version of deceased because both were in the same vicinity at the time of incident. No independent witnesses have been examined from the nearby areas. Houses were situated in thickly populated area. Otherwise story said by the prosecution before the Executive Magistrate or the Doctor, who has allegedly recorded her history could have been reflected in the first entry which is at Exh-28(page No. 251 of paper book). No independent witnesses have been examined from the nearby areas. Houses were situated in thickly populated area. Otherwise story said by the prosecution before the Executive Magistrate or the Doctor, who has allegedly recorded her history could have been reflected in the first entry which is at Exh-28(page No. 251 of paper book). Father, who is aware that his daughter has been killed by inflicting burn injuries, would not wait upto next day till 2 p.m for lodging FIR and that has been properly considered by the learned Trial Judge. The Trial Judge has observed that the dying declaration of the deceased gets corroboration from the version of her father and she has made oral dying declaration to her father when her father and mother reached at Village Bhat in the jeep car. The sequence given by the prosecution looks artificial. According to Mr. Patel, oral dying declaration made by the deceased before father ought not to have been accepted as cogent piece of evidence. Otherwise deceased would have made such statement to other persons nearby before reaching of her parents, after 1 to 1 ½ hours of the incident. If the deceased has said true story to the father, father would have lodged complaint within couple of hours and could not have waited upto next day till 2:00 p.m. Report received by Executive Magistrate ought to have been looked into by the learned Trial Judge and it is necessary for the prosecution to show reason for lodging late complaint. The second argument of Mr. Patel in reference to F.I.R. is that learned Trial Judge has committed gross error in accepting the document at Exh-14 as FIR recorded under Section 154 of Code of Criminal Procedure, 1973, because by that time police has already proceeded with the investigation. Necessary entries were there in the register. Executive Magistrate was called for dying declaration and that formalities was also over and it can be reasonably believed that some crucial question was asked by the police who were in the hospital, much prior to the time that the alleged FIR is filed. Details stated in document at Exh-41 are not looked into at all and this document ought to be considered as statement of the father of the deceased. This document has been considered as corroborative piece of evidence, ignoring it is admissible. Details stated in document at Exh-41 are not looked into at all and this document ought to be considered as statement of the father of the deceased. This document has been considered as corroborative piece of evidence, ignoring it is admissible. While appreciating oral version of father of the deceased, learned Judge observed that document at Exh-14 cannot be used legally for any purposes, more particularly, in evaluating the trustworthiness of the witnesses. For the sake of argument, even if we accept Exh-14 as FIR and is read and considered then also, the version in FIR is found in clear conflict during deposition recoded by the investigating officer. This witness is made material witness to see that the accused persons are moved by drawing attention to the improved version in para-3 of the deposition that nothing has been stated by this witness in his alleged complaint, so the same was given to the police after due deliberation and after lapse of several hours. New story has been created by this witness in his deposition. In this background, trustworthiness of the father is required to be evaluated. It is not safe for the Trial Judge to accept that the deceased must have made any oral dying declaration before this witness, the person, who has improved very big story. The prosecution ought to have led more cogent and convincing evidence of Madhuben because when the father of the deceased arrived at home of the deceased, Madhuben was very well there. Father inquired from Madhuben even then, father has not stated in his examination-in-chief as to what information had been given to him by Madhuben and F.I.R. lodged at belated stage is also silent. Trial Judge ought to have state that the father of the deceased is suppressing material aspect from the Court and this witness cannot be accepted as trustworthy witness. It is pointed out by Mr. Patel that this witness tried to suppress one more crucial aspect that the husband of deceased has also sustained burn injuries in the incident. As per case of prosecution, one more reason pointed out by Mr. Patel that even as per case of prosecution, first cousin of the deceased in the company of her husband had gone to Ahmedabad in jeep car so that the parents of the deceased can be taken to village :Bhat. As per case of prosecution, one more reason pointed out by Mr. Patel that even as per case of prosecution, first cousin of the deceased in the company of her husband had gone to Ahmedabad in jeep car so that the parents of the deceased can be taken to village :Bhat. The complainant father must be aware that the first cousin of the deceased and daughter of his sister-in-law are residing in the same village Bhat. Normal conduct of the anxious father would be to know what had happened to Vinuben and why she has sustained such burn injuries. Father of Vinuben has not stated this aspect in his complaint nor in his deposition before the Court. During his cross-examination, he tried to put curtain on this aspect. Otherwise, some conversation must have taken place with Kokilaben and her husband about the incident occurred. It is stated by this witness Rupaji Takhaji in his deposition at Exh-13 that he asked Pinki how this has happened. This very question must have been put by him to Kokilaben and her husband. The formation of question put to the deceased Vinuben, can be implied suggestive of the fact that Kokilaben knew that this act has been done by Pinki herself. If Kokilaben would have told this complainant that Vinuben has been burnt alive by her husband, then, there is no need to put a question, which is formed by complainant when he met Pinki for the first time, after the injuries sustained by her. The evidence of Kokilaben was required to be appreciated in this background and by not doing so, the learned Trial Judge has committed grave error while marshelling the facts. It is submitted by Mr. Patel that non examination of Madhuben would go to the root of the story placed by the prosecution and the merit of the version of Rupaji and brother’s wife examined by the prosecution i.e. P.W. No. 6 Sonalben at Exh-26. Sonal is real brother’s wife of the deceased and she was also at Village: Bhat, after the incident. This witness also tried to put curtain on the talks that must have taken place between Kokilaben and her father-in law. This Sonalben being a lady would also inquire from Kokilaben as to actually what is happening. Sonal is real brother’s wife of the deceased and she was also at Village: Bhat, after the incident. This witness also tried to put curtain on the talks that must have taken place between Kokilaben and her father-in law. This Sonalben being a lady would also inquire from Kokilaben as to actually what is happening. Kith and kin would also like to know about the nature of injuries and its gravity, but, nothing is unfolded by Rupaji Takhaji nor by Sonalben. Trial Judge has committed grave error in appreciating the evidence of Rupaji Takhaji and Sonalben corroborating story of the prosecution. 5. According to Mr. Patel dying declaration relied on by the Trial Judge ought not to have been accepted because it emerges from the evidence that the deceased must not be in fit state of mind. The patient may be conscious as stated by the Doctor. It is pointed out by Mr. Patel that the Doctor, who has been examined by the prosecution, was not aware about the different of consciousness and fit state of mind of the person. The nature of injuries i.e. degree and percentage of burn injuries ought to have been looked into, when Doctor is found to be not competent to depose as expert in this regard, because a person under the severe pain, in number of cases utters irrelevant things. It is in the deposition of P.W. No. 1 that after departure of the Executive Magistrate, he went inside the ward, where injured Vinuben was being treated and he has stated that at that time, Vinuben was not able to speak anything. Learned Counsel for the appellants submitted that an attempt must have been made by this father to know as to what Vinuben has stated to the Executive Magistrate. Otherwise, there is no reason for this witness to know that her daughter is capable to speak. When this witness has admitted that her daughter is unable to speak, no reliance ought to have been placed by the Trial Judge when she must have told the words actually written by the Executive Magistrate. True it is that words written by Executive Magistrate are the exact words of the rustic villagers of the particular community residing in the remote area of district Ahmedabad. The pronunciation is typical and, therefore, these words may have been uttered by injured Vinuben, but, crucial question put by Mr. True it is that words written by Executive Magistrate are the exact words of the rustic villagers of the particular community residing in the remote area of district Ahmedabad. The pronunciation is typical and, therefore, these words may have been uttered by injured Vinuben, but, crucial question put by Mr. Patel is that while stating anything before the Executive Magistrate, Whether the deceased was fit to give answer or unconscious. This aspect of the matter has not been properly appreciated by the Trial Court and this has led to an erroneous findings. 6. Injured Vinuben was being brought to V.S. Hospital for treatment. She was accompanied by her father, her sister-in-law Sonalben, her mother and her close relatives and she was formally admitted in the Hospital and taken to the Doctor for first initial examination. There was scope of tutoring to the deceased or she by herself has taken sharp U turn in telling the story about the offending conduct of the accused persons. It emerges from the record that it was inquired by Dr. Rakesh and, in turn, he had informed to Hospital duty police constable about arrival of injured patient having burn injuries. Either Vinuben or persons accompanying her may have informed Dr. Rakesh and/or Hospital duty police constable so the first story which had gone to police record does not speak anything about offence committed by any of the accused persons. One Kamjibhai - Hospital duty police constable was able to throw light as to how and when he was informed about the arrival of injured Vinuben in the Hospital or Dr. Rakesh can only throw light on this aspect. None of these witnesses have been examined because there is clear conflict or inconsistency between the initial story received by Dr. Rakesh and Hospital duty police constable Kamjibhai and history allegedly given to the Doctor by Vinuben. Burn injuries caused to Vinuben were homicidel, has come on record for the first time at 11:30 p.m., but, the exact time of arrival of the injured in the Hospital appears to be prior to 11:15 p.m. Hospital duty police constable has shown time of 11:30 p.m.. If the Doctor was really told by Vinuben that burn injuries have been inflicted on her by her husband, father-in-law and mother-in-law at 11:15 p.m., then story at 11:30 could not be found inconsistent than to the case of the prosecution. If the Doctor was really told by Vinuben that burn injuries have been inflicted on her by her husband, father-in-law and mother-in-law at 11:15 p.m., then story at 11:30 could not be found inconsistent than to the case of the prosecution. At one place, if closely read papers available on record, it gives impression that the history was given by the patient at 11:15 p.m. She was admitted at 11:10 p.m., as per case papers produced vide Exh-51. There was no reason neither for Dr. Rakesh nor Hospital duty police constable to record something else than actually informed either by the patient or the relatives accompanying her and as such no discussion, which is convincing in the judgment under challenge that how this consistency has been brought and what is the effect of conflict emerging from the evidence. It is in evidence that the distance between Bhat and Ahmedabad is about 35 kms. and vehicle would take time in reaching Hospital. So it appears that the deceased was there at Bhat village at least, upto 9:45 to 10:00 i.e. about more than two hours. Whether it is possible for prosecution to examine any independent witnesses, which were gathered at the spot so that natural piece of evidence can be led is a question, which is required to be discussed before this Court before accepting dying declaration as satisfactory evidence to connect the accused with crime. Learned Trial Judge has also not considered the conduct of the accused and scope of false implication of father and mother of accused No. 3. If the scene of offence panchnama is looked carefully, the deceased sustained burn injuries in a small room and it is not a big hall. Accused No. 3 and deceased were residing in that room. Even nothing was found disturbed in the room. Where the incident occurred being a small room, accused No. 3 if sustained injuries on account of flame on body of the person Vinuben, then the parents caught hold of Vinuben at the time, when kerosene being poured, parents would also sustain some injuries or at least kerosene could have been detected from their clothes. Undisputedly, Vinuben and her husband were residing separately on the first floor and it was practically cooking time for female members. There was no reason for accused Nos. Undisputedly, Vinuben and her husband were residing separately on the first floor and it was practically cooking time for female members. There was no reason for accused Nos. 1 and 2 to go to the first floor unless they were determine to kill Vinuben. Motive of incident told by the deceased in her dying declaration doesn’t disclose any quarrel immediately prior to the incident. If the accused were keen to kill Vinuben, for any reason that may be in the mind of the accused persons, they could not have selected time when real sister Madhuben was present in the house. When this comes to appreciation of evidence and that too, in a case, she has taken shape on account of human relationship, it is obligatory on the part of the Court to consider very small fact. Only this exercise helps the Court in reaching to just conclusion. Accused No. 3 sustained burn injuries on more than one part of the body and burn injuries on the hands indicate that he may have attempted to extinguish the fire. It is not a case of prosecution that as accused persons were intending to kill the deceased and persons in the neighboring area normally extinguished the fire. So when Court accepts dying declaration as reliable piece of evidence, then such statement covered under Section 32 of the Evidence Act requires to be tested on rough touch stone and that too, from all angels. It appears that learned Trial Judge has focused only on the case history, which was recorded at the time, when she was admitted and her statement given to Executive Magistrate. 7. Executive Magistrate has been examined by the prosecution, but, there are discrepancies in the evidence in the entire exercise in recording dying declaration and these discrepancies make the entire process of recording dying declaration hazy. It is claimed by Executive Magistrate that Doctor was present in the room, when dying declaration was recorded and the patient was conscious and able to give reply. However, as per Doctor, he was not present in the room, when statement was recorded by the Executive Magistrate. It is claimed by Executive Magistrate that Doctor was present in the room, when dying declaration was recorded and the patient was conscious and able to give reply. However, as per Doctor, he was not present in the room, when statement was recorded by the Executive Magistrate. Say of the Executive Magistrate is that he had no conversation with the relatives of Vinuben, when he was in the Hospital for recording dying declaration, but, as per say of the complainant(father of the deceased), he did converse with the Executive Magistrate and the Executive Magistrate had asked him as to Whether in-laws has set her on fire and he has also responded to that question. Learned defence Counsel submitted that relatives have already had conversation with the Executive Magistrate and when Doctor was not present in the word, dying declaration should be considered in that line. This dying declaration has been recorded at 12:15 i.e. immediately after the incident. Endorsement of the dying declaration shows that the “Patient fully conscious=+. That endorsement has been proved by Dr. C.C.Joshubha P.W. No. 9 at Exh-49 and this very Doctor has said that he is not aware about the difference between consciousness and fit state of mind. He stated that at the time of recording dying declaration, he was not present. During investigation, one set of fact emerges from the statements of several witnesses that the deceased had committed suicide. The Trial Judge ought to have considered that what will be the effect of answer given by the Dr. Jashubha that hands was not having smell of kerosene. Percentage of burn injuries found by the Doctor was about 94%. Practically, whole body was covered with burn, even no smell of kerosene was found on her hands. Thus, according to Mr. Patel, the Trial Judge ought not to have placed any reliance upon Executive Magistrate saying that the deceased may not be in the fit state of mind, when statement has been recorded by the Executive Magistrate and, therefore, the language used by the testator or certain words used by rustic villager of particular community residing in particular area would not make dying declaration genuine and trustworthy. It is not golden rule that when dying declaration is given in original language of the testator and is recorded in question answer form and the recorder is Executive Magistrate, the Court is supposed to accept such evidence and convict the accused. For short, this is not a fit case where the Trial Judge ought to have recorded conviction merely on dying declaration made by her, allegedly dying declaration before her relatives, then before Doctor and thereafter before the Executive Magistrate. According to Mr. Patel, consistency in the statement is absolutely reliable aspect, but, this consistency reliable qua other circumstance led by the prosecution evidence is available and if any other probability found to be emerging is unable of creating shed of doubt, then, the advantage goes to the accused and deserve the accused acquittal from this Court. Trial Judge ought to acquit the accused Nos. 1 and 2 and create doubt only for accused No. 3. 8. Learned Additional Public Prosecutor Ms. D.S. Pandit appearing for the respondent-State, submitted that there is no perversity in the findings arrived by the Trial Court. It is submitted by Ms. Pandit that findings arrived at by the Trial Judge are based on sound and logical evidence and upon oral evidence collected during investigation. Learned Trial Judge was supposed to evaluate the dying declaration recorded by Executive Magistrate in couple of hours from her admission in the Hospital. Learned Trial Judge has recorded positive findings as to how this statement is trustworthy and accepted as reliable piece of evidence. Executive Magistrate has clearly stated in his deposition that on receipt of police yadi, he had gone to V.S. Hospital at Ahmedabad and recorded the statement of the deceased. He had taken all care for recording statement of Vinuben. We have ascertained that no relatives were there near the patient, when dying declaration was recorded. Even then, he has secured one endorsement from the Doctor that “the patient was conscious”. Statement is in question-answer form and the exact words uttered by the patient were mentioned by Executive Magistrate. This is a short statement disclosing as to how she sustained burn injuries. Even then, he has secured one endorsement from the Doctor that “the patient was conscious”. Statement is in question-answer form and the exact words uttered by the patient were mentioned by Executive Magistrate. This is a short statement disclosing as to how she sustained burn injuries. She died because of burn sustained by her and, therefore, her statement in reference to the incident occurred is dying declaration within the meaning of Section 32 of the Indian Evidence Act and the accused can be held guilty, if the statement is found reliable. It is not necessary to seek corroboration from other evidence. The settled legal position is that seeking of corroboration is rule of prudence and not rule of law. Even then, the learned Trial Judge has positively observed that this statement has been corroborated by the complainant and the history case papers, wherein history given by the injured Vinuben was reduced in writing by the Doctor on duty. There is nothing on record to show that the Doctor on duty was in any way prejudicial to the accused or had tenancy to lien the accused. Oral statement made before the Doctor when it was found consistent to the statement made by her to the Executive Magistrate, the accused could have been held guilty legitimately and, therefore, the learned Trial Judge had held that there is sufficient evidence to link the accused with the crime. Merely because some conflict of the presence of the Doctor at the time of recording evidence, would not make the entire statement doubtful and the Court may not view the dying declaration tendered in evidence without any shed of doubt. The statement of the deceased has been recoded by Executive Magistrate under confidentiality. She was made aware that she is being examined by Executive Magistrate. When Executive Magistrate also says that the patient was able to give answer and she has given answers of all the questions asked by Executive Magistrate, there is no reason to jump to a conclusion that Vinuben was not in fit state of mind. The case papers are produced by the prosecution and none of the document of the Hospital, even indicates that she was under influence of any other drug, which may led to any mental confusion. The case papers are produced by the prosecution and none of the document of the Hospital, even indicates that she was under influence of any other drug, which may led to any mental confusion. She has drawn attention to the findings recorded in the para-26 and 27 of the judgment and submitted that findings recorded by the Trial Judge take care of all contingency. Learned Trial Judge has also considered undisputed facts cited in para-26 of the judgment. 9. It is submitted that conduct of the accused is a conduct of guilty person. Otherwise, accused could have arranged to shift the injured Vinuben to the Hospital instead of sending vehicle to fetch parents of Vinuben from Ahmedabad. She was sent in very jeep car and shifted injured Vinuben to the V.S. Hospital and parents could have been called at V.S. Hospital directly. This conduct is abnormal and inconsistent to the innocent persons. It is in evidence that when parents of Vinuben reached village: Bhat, none of the accused were present. This fact has come on record in the deposition of P.W. No. 1- complainant- father of Vinuben. The existent strength relation between deceased and accused persons have been come on record through deposition of Sonalben P.W. No. 6. So why suddenly accused persons had come in the house where deceased was residing is a question. This question is related to the intention of the accused and the intention may be hidden. Learned Trial Judge was concerned with the evidence collected during the investigation and opinion of less expert Doctor, who had certified that Vinuben was conscious when Executive Magistrate came for recording statement, would not make the statement either illegal or doubtful. The plain reading of the statement inspires confidence and, therefore, this Court may dismiss the appeal observing that there is no merit in the Appeal. The findings recorded by the Trial Judge are based on cogent and convincing evidence. None explanation of injuries on the body of accused No. 3, according to Ms. Pandit, goes against this accused. Injuries proves presence of accused No. 3 in the vicinity where the incident has occurred. It is very likely that the deceased may have caught hold of her husband when she was set on fire by her husband. The conduct of accused No. 3 of not rushing to Hospital for treatment also goes against him. Pandit, goes against this accused. Injuries proves presence of accused No. 3 in the vicinity where the incident has occurred. It is very likely that the deceased may have caught hold of her husband when she was set on fire by her husband. The conduct of accused No. 3 of not rushing to Hospital for treatment also goes against him. It is submitted by learned Additional Public Prosecutor that there is no substance in the arguments canvassed that the investigation was neither fair nor trial is conducted in fair manner. On the contrary, Investigating Officer has recorded all the statements and some of them are in favour of the accused. The prosecution before the Trial Court was not required to examine all the witnesses named in the charge-sheet and the prosecution has a right to drop any number of witnesses to avoid duplication of evidence and to see that the record doesn’t get bulky unnecessarily. True it is that the accused had requested to examine any of the witnesses, dropped by the prosecution and the Court had examined Kokilaben as witness of court, in exercise of power conferred under Section 311 of the Code of Criminal Procedure, 1973. But, the Trial Judge has recorded logical findings as to how and why her version has not been found acceptable version. It is recorded that Kokilaben is married to close relative of accused No. 3. She is residing in the same locality and her statement was recorded at a belated stage i.e. after 3 to 4 days, after the date of incident. In this situation, her evidence has been discarded by the Trial Judge. Though Police Officer has accepted that at one point of time, a story was placed before him that Vinuben had committed suicide and all the accused are innocent. It is not creating any doubt because Trial Judge was supposed to evaluate three dying declarations, consistent to each other. The version of the Investigating Officer qua other probability of committing suicide ought not to have been looked into at all because answer given by him as per statement recorded by him under Section 161 of Code of Criminal Procedure, 1973. The said fact coming on record to the answer of the Investigating Officer can be equated with nailed piece of evidence. The said fact coming on record to the answer of the Investigating Officer can be equated with nailed piece of evidence. So failure to examine some witnesses automatically cannot give rise to presumption under Section 114 of Indian Evidence Act. In the present case, FIR is given by father of the victim Vinuben on the next day, reasonable explanation could have been given by the complainant and was required to be given by the complainant, but, this delay itself would not destroy the case of the prosecution because no formal complaint was required on the receipt of the dying declaration. The police would have arrested the accused persons and treated dying declaration as FIR at the most, accused, if are held to be entitled to some benefit for the offence punishable under Section 498-A of the Indian Penal Code, because the story appears to be put by Vinuben has given by the complainant in her complaint lodged at belated stage and he has made material improvements while giving deposition in the Court. So that Court could give benefit of doubt qua offence punishable under Section 498-A of the Indian Penal Code only. According to her, there is no error in the findings recorded by the Trial Judge so far as guilt of the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is concerned. 10. Non-examination of Madhuben also would not go against the prosecution because on the date of incident, she was not the divorced wife. She may be under the thumb of mother-in-law and father-in-law. It is stated that while Madhuben did not participate in extinguishing the fire, but, it is very likely that she may have reached to the spot, after couple of minutes from the time, when she was ablazed with fire. Reaction may vary from person to person. So some inaction on the part of Madhuben can not destroy the piece of evidence. 11. Learned Additional Public Prosecutor submitted that law relating to dying declaration is now crystallized by the Apex Court in number of judgments and in a cases where three consistent dying declarations are there, the accused are required to be held guilty. This Court, therefore, may dismiss the appeal. 12. 11. Learned Additional Public Prosecutor submitted that law relating to dying declaration is now crystallized by the Apex Court in number of judgments and in a cases where three consistent dying declarations are there, the accused are required to be held guilty. This Court, therefore, may dismiss the appeal. 12. On reading of the judgment under challenge, it is clear that the finding of the learned Trial Judge holding accused guilty is found based on following major facts situation: (i) The deceased Vinuben @ Pinki had very short marriage span of 1 ½ years with accused No. 3 and deceased Vinuben and real sister Madhuben both married to two real brothers one accused No. 3 and another is younger brother of accused No. 3. But, because of some disturbance in relation with in-laws, Vinuben and her husband started to reside on the first floor and on the ground floor, accused Nos. 1, 2, Madhuben(sister of the deceased Vinuben) and younger brother of accused No. 3, etc. were residing. The reasons for quarrel considered by the Trial Judge appears to be minor and there are trifle issues within the family. Before 4 to 5 days from the date of incident, deceased Vinuben along with her husband visited Ahmedabad and they were requested to stay overnight but that request was not accepted by accused No. 3. Learned Trial Judge has inferred that relationship between accused Nos. 1,2 and 3 with the deceased was not cordial. (ii) After incident happened at 7:00 p.m., the accused persons had not made any arrangement for treatment of Vinuben, who sustained burn injuries till 10:00 p.m. and this conduct is cruel conduct and the same is relevant for linking the accused with crime. (iii) The deceased Vinuben was brought in jeep car at V.S. Hospital, Ahmedabad at 11:00 p.m.. Prior to that, Vinuben orally informed her father at Village: Bhat that she has been burnt by accused Nos. 1, 2 and 3 and this statement made by the deceased is an oral dying declaration. P.W. No. 1 has proved this oral dying declaration made to him by the deceased and this part of evidence can safely be relied by the Court. 1, 2 and 3 and this statement made by the deceased is an oral dying declaration. P.W. No. 1 has proved this oral dying declaration made to him by the deceased and this part of evidence can safely be relied by the Court. (iv) The same story that accused No. 1 and 2 caught hold of Vinuben and accused No. 3 poured kerosene upon her and ignited fire told by Vinuben to Doctor of V.S. Hospital, who has examined Vinuben in the V.S. Hospital. This is again dying declaration reduced in writing by the Doctor as history given by the patient. This submission has been proved by the Doctor, who has recorded it and there is no reason to disbelieve the Doctor qua the statement made by her at the time of admission in the Hospital. (v) Dying declaration recorded by Executive Magistrate is a genuine dying declaration and has been satisfactorily proved by the Executive Magistrate, examined by the prosecution and at the time of giving statement to Executive Magistrate, Vinuben was conscious. Statement made by the deceased Vinuben is short, precise and in vernacular rural Gujarati language. (vi) This is a case of three consistent dying declarations and, therefore, there was no reason for the Court to disbelieve the same by the deceased as all the three statements are admissible evidence, as per Section 32 of the Indian Evidence Act. (vii) The evidence of complainant Rupaji, sister-in-law(bhabhi) Sonalben Babuji and deposition of real younger brother Ramaji Takhaji inspires confidence and the case papers of the patient as indoor and outdoor patient, corroborate dying declaration recorded by the Executive Magistrate. There is no reason for Executive Magistrate to record false statement or for Dr. C.C.Jashubha to record history implicating the accused persons. (viii) Considering scheme of Section 498-A and relevant provisions of the Indian Evidence Act, under which the Court can presume cruelty, the accused can be held guilty for the charge for the offence punishable under Section 498-A of the Indian Penal Code. (ix) There is no dispute from the defence side that the deceased succumbed to the burn injuries and this is a case of unnatural death. Prosecution say is that the case is of homicide death and defence side has tried to show that this may be a case of suicide. (ix) There is no dispute from the defence side that the deceased succumbed to the burn injuries and this is a case of unnatural death. Prosecution say is that the case is of homicide death and defence side has tried to show that this may be a case of suicide. There is a dark shadow on the case of the prosecution considering the probability of committing suicide and the Trial Judge has discarded this version for the above mentioned reasons and, therefore, guilt has been recorded. x. Though dying declaration is entitled to great weight, it is worthwhile to say the accused has no scope. Such a scope is essential for eliciting truth as obligation. This is a reason, the Courts also insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. It is an obligation on the Court to be on guard while evaluating the dying declaration. The Court has to scrutinize the dying declaration carefully and must ensure that the dying declaration impose any influence, anger, tutoring, founting and imagination to the available opportunity to the deceased to make such statement also requires to be looked into and the Court is also supposed to see what was the say of the deceased when first opportunity to make the statement as to the cause of injuries inflicted upon her. Time gap between the infliction of the burn injuries and the statement made by the injured is comparatively more and in that period, if the injured is available to make a statement of cause of injuries sustained then how many of such opportunity are available and the deceased has taken up any of such opportunity, is also an area where the Court shall have to give a look, while accepting statement trustworthy and reliable. Comparatively, belated statement of the deceased merely because it is consistent would not make itself the dying declaration genuine and blotless. A first belated statement as to cause of injuries can get corroboration by the statement made thereafter. Comparatively, belated statement of the deceased merely because it is consistent would not make itself the dying declaration genuine and blotless. A first belated statement as to cause of injuries can get corroboration by the statement made thereafter. As per prosecution, an injured got an opportunity to give statement of cause of injuries sustained by her on more than 1, 2, 3 and 4 occasions, injured remained silent or uttered something else than the basic story of the prosecution, then the statement involving accused, after lapse of reasonable good period, if it found corroboration to subsequent statement made thereafter, would not make the case of consistent dying declarations. Of course, learned Learned Additional Public Prosecutor submitted that this is a case of three dying declarations, but the arguments canvassed by Mr. Patel referred into, it is clear that number of opportunities were there when the deceased was to make statement of burn injuries sustained by her and that too before her real relatives. It appears that she has not taken up such opportunities. Even as per the case of prosecution, she has unfolded the story of inflicting burn injuries. After arrival of her father from Ahmedabad, first time deceased had made such statement before her father i.e. P.W. No. 1. If the evidence is closely evaluated, it appears to be doubtful. No father would remain silent for several hours, when her daughter has made such statement involving her son-in-law i.e. accused No. 3, father-in-law and mother-in-law i.e. accused Nos. 1 and 2. This oral version reached to the police for the first time after lapse of several hours. The deceased had made such a oral dying declaration before P.W. No. 1. Was told by P.W. No. 1 to the police on 3rd January,1998 and that too at about 14:00 hours. It is not the say of even Sonalben or real brother of the accused examined by the prosecution, P.W. No. 1 has ever disclosed this fact before these two witnesses that the deceased had made statement involving accused Nos. 1, 2 and 3 and the deceased was burnt alive. P.W. No. 1 was present throughout in the Hospital. It is not the say of even Sonalben or real brother of the accused examined by the prosecution, P.W. No. 1 has ever disclosed this fact before these two witnesses that the deceased had made statement involving accused Nos. 1, 2 and 3 and the deceased was burnt alive. P.W. No. 1 was present throughout in the Hospital. It was possible for P.W. No. 1 or any other relatives, who may have visited the Hospital or who may be in the Hospital to give a formal complaint to Ahmedabad Police and Ahmedabad Police after registering the offence, could have started investigation of such offence. None of the relative had tried to approach police for lodging FIR saying involvement of the accused persons in the crime till next day afternoon, so the oral dying declaration made by the deceased firstly before her father practically reached to the record of police after two other statements in which the prosecution has relied. (xi) In view of the above set of facts, the unexplained delay in filing FIR, according to us has become very relevant and complainant father P.W. No. 1 has not attempted to explain why such delay in giving complaint. On the contrary, an impression is created in our mind after receipt of copy of dying declaration from the Executive Magistrate and all the details from the history case papers, Investigating Officer must have insisted P.W. No. 1 or any other family members to give F.I.R. Otherwise, none of the family members of Vinuben, including father was ready to give F.I.R. It is very likely that the deceased had committed suicide and it was not possible for them to give F.I.R. involving such three accused. It is settled legal position that substance of the story of the prosecution case requires to be considered from the facts stated in the F.I.R. and, therefore, delayed in F.I.R. should be viewed with doubt before accepting F.I.R. as genuine F.I.R. recorded under Section 154 of the Code of Criminal Procedure, 1973. It is not necessary for us to discuss the law relating to F.I.R. recorded under Section 54 of Code of Criminal Procedure. We have seen the documents with report sent to Executive Magistrate given under Section 154 of Code of Criminal Procedure,1973. The report was received by the Executive Magistrate on third day i.e. on 4th January,1998. It is not necessary for us to discuss the law relating to F.I.R. recorded under Section 54 of Code of Criminal Procedure. We have seen the documents with report sent to Executive Magistrate given under Section 154 of Code of Criminal Procedure,1973. The report was received by the Executive Magistrate on third day i.e. on 4th January,1998. Registration of the document is not produced in the present case, otherwise this Court could have appreciated whether a complaint written in the plain paper received to the police as reflected in the report prepared under Section 157 of the Code of Criminal Procedure. In this background, if evidence of P.W. No. 1 is considered then we found number of infirmities in number of these witnesses. Conduct of not filing F.I.R. immediately after the incident and alleged cruelty on Vinuben by the accused persons and answers given by this witness in last two paras of the deposition, gives an impression that he has tried to improve statement substantially so that he can prove that the deceased was victimized first and thereafter, she has been killed. This witness has not stated anything in F.I.R. or in cross-examination that she had any conversation with his another daughter Madhu, after reaching Bhat, nor with Kokila first cousin of the deceased. Real sister of deceased Vinuben, Madhu was not alone lady at village: Bhat, when her father with other relatives arrived at village Bhat. Kokilaben and her husband Babuji were also there. Two cousin sisters with mental support of P.W. No. 1. Kokilaben at least informed P.W. No. 1 and Sonalben P.W. No. 6 that the deceased had been burnt alive and, thereafter, accused persons escaped from village and not found. The evidence shows that accused persons were there. P.W. No. 1 stated that the accused arranged for vehicle so that the parents including P.W. No. 1 can be called from Ahmedabad. True it is that it is possible for the accused to shift injured Vinuben to V.S. Hospital and simultaneously, parents could have been called at V.S. Hospital, but, whether these would be sufficient to give presumption of right, which needs answer and according to our opinion, it is not safe to presume guilt if the conduct doesn’t appear to be a wise behaviour of a person with wisdom. Family member if have tried to commit suicide, accused No. 3 attempted to extinguish fire and sustained injuries. They may have failed in behaving in appreciating manner like wise man. They may have taken any advice of rustic villagers. Vinuben had 94% burn injuries so considering the physical condition of the victim, rustic people have thought to call the parents immediately instead of shifting Vinuben to Hospital. Non-examination of any of the neighboring persons does not link the accused with crime. According to us, number of improvements made by P.W. No. 1 i.e. delay in lodging F.I.R., inaction on the part of P.W. No. 1 in the Hospital, if the accused persons are involving in the offence. Suppression of fact as to the discussion may have taken place between P.W. No. 1 and Madhuben at Village: Bhat. Non-examination of Madhuben and Kokilaben, first cousin of the deceased by the prosecution makes the version of reliable witness doubtful. It would not be either legal or proper for us to say that P.W. No. 1 is a truthful and reliable witness. Allegedly oral dying declaration made by Vinuben to P.W. No. 1 at Bhat at about 10:00 p.m. on the day of incident doesn’t inspire confidence that the deceased has made any such statement. A witness, who has made number of improvements in the deposition before the Court, cannot be accepted as truthful witness. When prosecution had relied on contents of delayed F.I.R. for seeking corroboration on oral dying declaration made, then, unexplained delay in lodging F.I.R. would come in the way of the prosecution. If the sequence of the events is considered, it is clear that the deceased reached at V.S. Hospital at 11:15 p.m.. Thereafter, the Hospital Duty Police Constable had informed and information given to police is reflected at Exh-28 as discussed hereinabove. Thereafter, police has arranged for recording dying declaration. Hospital Duty Police Constable was also there in the Hospital. Inquest panchnama was drawn by the police in the presence of Executive Magistrate of city of Ahmedabad at about 6:30 a.m. on 3rd January,1997. For no good reason police had not cared to drawn panchnama of scene of occurance on 3rd January,1997, after the death of the deceased in early hours on 3rd January,1997. Inquest panchnama was drawn by the police in the presence of Executive Magistrate of city of Ahmedabad at about 6:30 a.m. on 3rd January,1997. For no good reason police had not cared to drawn panchnama of scene of occurance on 3rd January,1997, after the death of the deceased in early hours on 3rd January,1997. It emerges that the complaint was taken by the father of the deceased and police drew panchnama as if the same is drawn in the investigation of C.R.No.I- 1/ 97 registered with Aslali Police Station. According to us, panchnama if would have been drawn in the morning, it might have been drawn as panchnama in a case of accidental death. So the conduct of the accused according to us, is a conduct of more like of innocent person rather than of guilty person. If the accused persons have been guilty, who had not left Madhuben, who had allegedly have seen the incident(as per dying declaration recorded by the Executive Magistrate); accused No. 3 have sustained injuries, even then, P.W. No. 1 has mentioned in the arguments recorded by us canvassed by Mr. Patel, has tried to keep curtain on this aspect. Non- explanation of the injury, on the body of the person of accused No. 3 in the FIR itself and similar attempt made by this witness in deposition before the Court, makes the evidence of P.W. No. 1 wholly unreliable evidence. On the date of deposition, P.W. No. 1 had no relation with family of the accused because of divorce of Madhuben and her husband and this divorce has taken place after the death of Vinuben, so it was possible for P.W. No. 1 to implicate all three accused in the incident keeping Madhuben back from the entire scenario of real occurrence on the date of incident. (xii) None examination of Kokilaben and Madhuben would go against the prosecution because deceased had a first opportunity to disclose why she has sustained such a serious burn injuries. It is claimed by the prosecution that Madhuben is eye-witness of the incident. Such an important witness why has been dropped is a question. It is a case of the prosecution that Kokilaben, who reached the deceased as she was residing in the nearby area in the small town like Bhat. It is claimed by the prosecution that Madhuben is eye-witness of the incident. Such an important witness why has been dropped is a question. It is a case of the prosecution that Kokilaben, who reached the deceased as she was residing in the nearby area in the small town like Bhat. So it is clearly submitted that failure of prosecution to produce witnesses, who are required to be examined and who are more competent to throw light on the facts in the truth finding mission of the trial. A presumption can be drawn against the prosecution as decided by the Apex Court in the case of Meharaj Singh vs. State of U.P. reported in 1994(5) SCC 188 . As observed, facts of this cited decision are materially different from the facts of the present case, as observed in para-14, which reads as under: “14. It is interesting in this connection also to note that Satkari PW 5 named Resham also an eyewitness. The High Court rightly held Satkari to be a chance witness also but the prosecution has not explained as to why Resham who was alleged to be an eyewitness has not been examined. According to Balbir, PW 2, Jog Raj was also an eyewitness. He too has not been examined. Shiv Charan PW 4, also named Resham and Jog Raj as eyewitnesses. Thus, it appears to us that a concerted effort was made by the prosecution witnesses to introduce Resham and Jog Raj as false eyewitnesses in the case but since they have not been examined, it would be fair to draw a presumption, that they perhaps were not prepared to support the false case. The High Court while setting aside the order of acquittal did not deal with these various infirmities.” (xiii) The prosecutor conducting trial ought to have conducted the trial fairly and ought not to have allowed the prosecution to drop such witnesses. In this background, the argument canvassed by Mr. Patel becomes relevant. He has also drawn are attention to the application at Exh-63 given during course of trial. We would like to reproduce relevant para-2 of the application. This application was given by the learned advocate appearing for the accused in the trial court, which read as under: “2. In this background, the argument canvassed by Mr. Patel becomes relevant. He has also drawn are attention to the application at Exh-63 given during course of trial. We would like to reproduce relevant para-2 of the application. This application was given by the learned advocate appearing for the accused in the trial court, which read as under: “2. It is further submitted that prosecution has examined the Investigating Officer and from his evidence it is crystal clear that he has recorded the statements of No.(1) Patel Pramodbhai Keshabhai(2) Thakore Jasuji Chhanaji(3) Thakore Kokilaben Babuji and(4) Thakore Babuji Bhikhaji. Those witnesses are also shown at witnesses in the charge-sheet filed by Investigating Officer. According to their statements deceased Vinuben @ Pinkiben had committed suicide by herself and nobody was responsible for it. Those persons are residing where the incident took place and immediately they have gone to the place of the incident and they are only natural witnesses who can place out the truth before the Court about the real incident, but prosecution have been dropped them without giving any reasons and tried to secure the conviction to the accused by all means.” In Para 4(A) of the application, it was prayed by the accused that the Court was pleased to summon and examine any of the witnesses named in the interest of justice. Four persons have been named and two of them are Kokilaben Babuji Thakore and Babuji Bhikhaji Thakore. As per prosecution, these two witnesses were the persons, who had come to Ahmedabad for fetching P.W. No. 1 and family members in the jeep car, arranged by the accused persons. One person named in the application is of Patel community and was residing in the neighbourhood and, therefore, his statement must be recorded by the prosecution. Ultimately, Court decided to call Kokilaben - first cousin of the deceased and she has been examined as Court witness and the version of this witness seriously affects story of the prosecution because she has stated that the deceased had committed suicide. So at the first available opportunity, the deceased may have made some statement not only to the Kokilaben but to number of persons, who had gathered there. The very fact of commission of suicide may have been told by the deceased but for the reasons best known to the complainant, Vinuben developed story of implicating accused. So at the first available opportunity, the deceased may have made some statement not only to the Kokilaben but to number of persons, who had gathered there. The very fact of commission of suicide may have been told by the deceased but for the reasons best known to the complainant, Vinuben developed story of implicating accused. It is very likely that the story must have been tampered by somebody because the deceased Vinuben had told something else to Doctor and Executive Magistrate when she was under treatment at V.S. Hospital. All opportunities immediately after the incident and after arrival of the parents and when she was there in the jeep car at the time, when she was being shifted to Ahmedabad for treatment, she perhaps has not disclosed anything about involvement of the accused, in reference to the injuries sustained by her. Mr. Patel has also submitted that this entire period may have been used to teach her or influence her so that she can implicate the accused persons in such offence. True it is that the deceased had cordial relation with accused, but, viamedia was worked out by the family. House of accused is reflected in panchnama. What is earning capacity, there may be some dispute between two families residing in the same house qua distribution of household articles or food articles, but, for such trifle reason, all three accused may not rushed in the room where the deceased was and inflict burn injuries by pouring kerosene. Nothing has come on record under which the same can be said that immediately prior to the incident, quarrel has taken place between the deceased and the accused persons. Such a event can be brought on record by examination of neighbouring people and/or Madhuben, who was there in the same house. Non-availability of such evidence is required to be kept in mind by the Trial Judge, while appreciating two other statements made by the deceased one before the Doctor and another before the Executive Magistrate. These two statements as independent and trustworthy version of the deceased. It is necessary for us to keep in mind one clear aspect that the investigating officer admitted in his cross-examination that he had recorded statements of Pramodbhai, Jasuji Sanaji, Kokilaben Babuji and Babuji Bhikhaji. Statements of Pramodbhai and Jasuji Sanaji was recorded on 3rd January,1997 itself. These two statements as independent and trustworthy version of the deceased. It is necessary for us to keep in mind one clear aspect that the investigating officer admitted in his cross-examination that he had recorded statements of Pramodbhai, Jasuji Sanaji, Kokilaben Babuji and Babuji Bhikhaji. Statements of Pramodbhai and Jasuji Sanaji was recorded on 3rd January,1997 itself. Investigating Officer neither said nor it has come on record as to what time the statements of these two persons are recorded. If statements were recorded prior to the complaint received by the police at Police Station, then, those statements obviously would not be implicating accused persons in the crime, otherwise, no need to have F.I.R. of the complainant and if statements of these two witnesses are recorded after the receipt of the complaint, then, it is possible for the Court to construct that these two witnesses have not supported the say of the complainant and, therefore, they have not been examined. There was no reason for Investigating Officer to record statement of these two persons because they are related to the accused or family of the accused. (xiv) Kokilaben has been examined as Court witness at Exh-70 and according to us, Trial Judge has not given good, sound and logical reason for not accepting version of Kokilaben. It is the case of the prosecution, who amongst the first female, reached to Vinuben, after the incident. Madhuben may be the first lady and the Kokilaben may be the second lady. Kokilaben is the cousin and she came with her husband to Ahmedabad in jeep. Her statement has been recorded immediately after the F.I.R. or any time prior to receipt of the F.I.R.. A prudent police officer has tried to peep into the matter in such a serious case and tried to know why such lady had tried to commit suicide within short span of marriage life. Police knowing that Kokila and her husband had gone to Ahmedabad on occurrence of incident, family members of the deceased reached to Bhat immediately and thereafter, Vinuben was shifted to V.S. Hospital. Truthful genuine facts come on record and non-recording statement of Kokilaben was fault on the part of the Investigating Officer and not on the part of Kokilaben. SInvestigating Officer had stated that during investigation, a set of witnesses were saying that this is a case of suicide. Truthful genuine facts come on record and non-recording statement of Kokilaben was fault on the part of the Investigating Officer and not on the part of Kokilaben. SInvestigating Officer had stated that during investigation, a set of witnesses were saying that this is a case of suicide. According to those witnesses this is a case of suicide and the Investigating Officer himself has found burn injuries on the body of the person of accused No. 3. The injuries were on neck, chest and both the hands. The hairs of accused No. 3 were also found burn and immediately accused No. 3 was sent for treatment and after treatment accused No. 3 was arrested. Thus, there is nothing on record, from which it can be inferred that accused No. 3 was absconding, after the incident. On the contrary, conduct of the accused as mentioned earlier, is conduct of the innocent person. If they are the persons, who had set fire, who has not called the parents of the deceased in person, who has sustained 94% burn injuries, in couple of hours or they may try to pursue the injuries or they may try to pressurize the injured, but, no such evidence is on record and it is not a case of the prosecution. (xv) In above background, statement made by the deceased before the Doctor and Executive Magistrate, needs to be evaluated and the Trial Judge has not marshaled the facts in correct perspective and, therefore, the Trial Judge has held that these two statements are wholly reliable. As per settled legal position, dying declaration can be made base of conviction, there is no need to seek any corroboration. There is neither rule of law nor rule of prudence that the dying declaration can be acted upon with corroboration. The dying declaration is only a piece of untested evidence and most likely any other evidence satisfies the Court, what is stated is truth and it can absolutely act upon it. If it is possible for the Court after careful scrutiny that the statement of the deceased is following in the category of Section 32 of the Indian Evidence Act, is true and free from any effort to induce the deceased to make false statement or the same is not under disturbed state of mind and the same is coherent and consistent, then only, there is no need to seek corroboration. Undisputedly, when the deceased had sustained injuries to the extent of 94% burns of 2nd, 3rd and 4th degree on the entire body, so that the state of mind is much better prior to the time, when she was brought to V.S. Hospital. It emerges that at that time immediately after the incident till he reached the Hospital, she has not implicated any of the accused. As per the set of evidence available and discussed here because the oral dying declaration made by the deceased before father is not found reliable and trustworthy piece of evidence, so the statement made before the Doctor was not a statement made by the deceased at the first available opportunity, it was after several hours after the incident and the parents of the deceased in the meanwhile intervened. There was no one in the jeep car when the deceased was shifted to V.S. Hospital. So there is some scope of tutoring or influencing the person, who obviously was under great pain. The relations were not cordial or harmonious. If really husband poured kerosene and ignited fire, she must have named accused No. 3 as first responsible person, but, while describing names of the accused persons to the Doctor, deceased allegedly given names as father-in-law, mother-in-law and husband. It is an experience of the Court that in most of the cases, husband and mother-in-law are involved in such similar offence and in offence of cruelty, they are named first or in that sequence and name of father-in-law is shown as last name or at Serial No. 3. Husband’s name comes first and then, names of father-in-law and mother-in-law come. We may give much importance to the sequence given by the deceased as the person first responsible for injuries sustained by her, but, this part of the sequence is given by the deceased Vinuben after about 15 minutes, after reaching to the Hospital. This 15 minutes was very crucial period so far as story placed by the prosecution because in this 15 minutes, Dr. Rakesh had came in contact with Vinuben or with P.W. No. 1 and Dr. Rakesh had informed the police, who is Hospital duty police constable and the yadi was sent to the concerned police station. This 15 minutes was very crucial period so far as story placed by the prosecution because in this 15 minutes, Dr. Rakesh had came in contact with Vinuben or with P.W. No. 1 and Dr. Rakesh had informed the police, who is Hospital duty police constable and the yadi was sent to the concerned police station. The details received by Hospital duty police constable is mentioned in the Register maintained by Hospital duty police constable, which is at Exh-28, which does not disclose any criminal offence. It is cryptic type of message that this lady may have sustained accidental injury or suicide, who comes to hospital for treatment. Otherwise, Dr. Rakesh and Hospital duty police constable stated that she has been burnt alive and, therefore, she was brought to the Hospital. Absence of history of homicide death, first version given to the person in the V.S. Hospital ought to be looked into by the Trial Judge. When learned advocate Mr. Patel has pointed out this situation to us in the background in the lapses and infirmities discussed hereinabove as laid down by the prosecution, we are suppose to look into the statement recorded in the nature of history given by the patient with great care. Non-drawing of panchnama of scene of offence, till next day afternoon was not fault on the part of the accused. Police could have rushed to the spot and noticed articles, etc., but, perhaps nobody was knowing that the deceased had given such a history implicating three accused in the incident. After the death of young lady, she could not succumb to a grip of father-in-law and mother-in-law, who were of middle age. Kerosene is being kept in utensils having small opening. Practically kerosene is kept in plastic bottle. Pouring of kerosene in such a huge quantity would also affect the clothes of the persons, if anybody had caught hold of the deceased. Upon examination, kerosene was not found on the clothes of accused Nos. 1 and 2, otherwise, it would be sent to FSL for examination. According to us, this is a case of false implication of accused Nos. 1 and 2. Merely accused No. 3 himself has sustained burn injuries, it is not possible for us to put reliance on say of the learned Additional Public Prosecutor that burn injuries found on the body of accused No. 3 would go against him. According to us, this is a case of false implication of accused Nos. 1 and 2. Merely accused No. 3 himself has sustained burn injuries, it is not possible for us to put reliance on say of the learned Additional Public Prosecutor that burn injuries found on the body of accused No. 3 would go against him. On the contrary, probability emerges that he has tried to save his wife by extinguishing the fire and person closely involved in extinguishing fire, can sustain burn injuries on various parts of the body including neck, chest and hands. The burn injuries noticed by the Investigating Officer exhibit the innocence of the accused. It is relevant to know that the Investigating Officer can care to collect the medical certificate of accused No. 3. That Certificate can be produced on the record so that Court can see the nature of injuries found on the body of the person of accused No. 3. According to us, the injury on the body of the accused has to be seen in light of the deposition of Kokilaben recorded by the Trial Judge as Court witness. According to us a Court witness is being tested by two different cross-examinations. It was not fault of Kokilaben why her statement was recorded at belated stage, when it was possible for the Court to put Kokilaben as lier and her conduct on the date of incident. Prosecution itself is found in favour of the victim and her version ought to have been accepted, more particularly, when Investigating Officer has also admitted that story of commission of suicide has also come on record, then, the accused person could have been given benefit of doubt, but, learned Trial Judge appears to have seen one side of the coin because of two statements made by the deceased one before the Doctor and another before the Executive Magistrate. Learned Trial Judge at one stage in part-41 of the judgment has held that the evidence of complainant Rupaji Takhaji, brother of the deceased Ramanji Takhaji and Sonal Babuji supported the version given by the deceased before the Doctor and Executive Magistrate. In reality, evidence of Sonalben Babuji does not carry the case of prosecution any further. Learned Trial Judge at one stage in part-41 of the judgment has held that the evidence of complainant Rupaji Takhaji, brother of the deceased Ramanji Takhaji and Sonal Babuji supported the version given by the deceased before the Doctor and Executive Magistrate. In reality, evidence of Sonalben Babuji does not carry the case of prosecution any further. According to us Madhuben is the best witness available, who has not been examined and we have found number of improvements in the deposition of the complainant and the statement of witness Sonalben has been recorded after the F.I.R. and not prior to lodging F.I.R., otherwise she could have stated something else to the police that because of cruelty, Vinuben may have committed suicide or she might have been killed as she was consistently ill treated by the accused. Unfolded story of cruelty at belated stage, the version of Sonalben is under thick clouds and evidence of Ramanji is nothing but hear-say evidence. He was not present. He had not gone to Village Bhat. It is not say that the deceased had said nothing to her real brother. A lady taking swing between life and death must have been visited by this witness. Even then, this witness has not stated categorically in his deposition that the deceased had repeated the story disclosed before the Doctor and Executive Magistrate. If the evidence of these three witnesses is taken out, the case of the prosecution would remain only on the hinches of the facts that would come on record on dying declaration recorded by the Executive Magistrate. (xvi) Dying declaration recorded by the Executive Magistrate, if evaluated, it appears to be in the words actually uttered by the deceased, but, the crucial question put by learned Counsel Mr. Patel that there was no convincing situation at the relevant point of time, her statement was recorded at 12:15 p.m., after she has succumbed to the injury. On the very same morning at about 6:30 a.m., the complainant himself has admitted that after the statement given by the deceased to the Executive Magistrate, he had gone inside the ward, but, the deceased was not able to speak as mentioned earlier. While narrating this statement by P.W. No. 1, argument canvassed by Mr. On the very same morning at about 6:30 a.m., the complainant himself has admitted that after the statement given by the deceased to the Executive Magistrate, he had gone inside the ward, but, the deceased was not able to speak as mentioned earlier. While narrating this statement by P.W. No. 1, argument canvassed by Mr. Patel that some attempts was made by P.W. No. 1 - father of the deceased, then only, he could get knowledge that she is not able to speak. In cross-examination, he uttered the words after 10 to 15 minutes. After recording statement, Doctor himself has admitted that he doesn’t know difference between fit state of mind and consciousness of the patient, so this Court is left to appreciate opinion expressed by the Doctor, who was not aware as Medical Officer about these two different concepts. It is observed in number of judgments that consciousness and fit state of mind are two different aspects and are not synonymous. There is conflict in the material evidence as to the presence of the Doctor at the time of recording of the statement. As stated by Doctor, he was not present when statement was recorded by the Executive Magistrate. If he would have been really there, he could have pointed out to the Executive Magistrate or stop Executive Magistrate from recording statement stating that she is uttering some words in severe illusion and she is not in fit mental condition. Doctor himself could have realized fit state of mind and consciousness of the patient. The observation made by the Apex Court in the case of Paparambaka Rosamma and Others vs. State of A.P., reported in (1999)7 SCC 695 is worthwhile to be noted. Of course, the facts were different, but, it is relevant that the deceased had sustained 90% of burn injuries caused by pouring kerosene. In the case before the Apex Court, the prosecution was hammering that the dying declaration of the deceased may be accepted as reliable piece of evidence to link the accused with crime and it was submitted to the Court that there is no evidence, which can be said to be satisfactorily at the time of making statement. The patient was in fit state of mind. In that decision, the Doctor has made endorsement to the effect that “patient is conscious while recording the statement”. In our case, endorsement is “patient is conscious”. The patient was in fit state of mind. In that decision, the Doctor has made endorsement to the effect that “patient is conscious while recording the statement”. In our case, endorsement is “patient is conscious”. “While recording the statement” words are missing. This situation supports the say that the Doctor was not present at the time when statement was recorded by the Executive Magistrate. The Apex Court observed that from an endorsement, it is not clear that the patient is in fit state of mind. Some evidence was indicative of the fact that she was not in fit state of mind. In the said decision, Apex Court has observed that consciousness and fit state of mind is not synonymous and, therefore, dying declaration itself is not sufficient to convict the accused. Here also, in view of the above discussion, dying declaration recorded by the Executive Magistrate can be said to be sole piece of evidence and it was nothing but repetition of the story told by the deceased to the Doctor. When we have observed that there may be an element of tutoring or may be result of anger on accused persons more particulary father-in-law and mother-in-law. It is difficult for us to say that the statement recorded by the Executive Magistrate is statement an unaloided truth or it is absolute safe, then the Court can act on such submission. (xvii) It may not be viewed as conjecture or surmises, but, defence side has pointed out one point, which according to us that the real sister of deceased Vinuben after her marriage had committed suicide. There are no details as to in how many years, she had committed suicide, nor it has placed before the Court any formal criminal case against the in-laws of the deceased sister was ever registered or not, but, we are evaluating and appreciating evidence as regards to fit state of mind of the deceased. This one contingency also should not miss our mind because it is an experience of the society that the member of the family as any sisophenic cycology or suffering from mental disease, then some other member of the very family may have such or similar influence. Degree may vary but illness or sickness may be there. According to us, facts given by Investigating Officer and facts stated by Kokilaben get significant and important. 13. Degree may vary but illness or sickness may be there. According to us, facts given by Investigating Officer and facts stated by Kokilaben get significant and important. 13. For the reasons aforesaid, we are inclined to accept the arguments advanced by Mr. Patel mainly for the reason and grounds discussed hereinabove. Moral conviction on the part of the Presiding Officer of the Court is not important. The Court while evaluating the case is supposed to test each fact objectively thinking for all probabilities. Truth is that probability cannot be equated with hypothetical and with imaginary illusion in the form of probability. Defence in the present case is probabalize. This may be a case of suicide resulting into death. It is not proper to agree with the findings recorded by the Trial judge as it is not safe to link the accused persons with crime, for which, they have been tried. As such there is no direct convincing evidence qua accused Nos. 1 and 2 and as mentioned hereinabove, conduct and behaviour of accused No. 3 is of an innocent person and not of guilty person. So according to us, accused Nos. 1 and 2 are required to be acquitted and accused No. 3 - Lalji @ Lalaji Nathaji thakore(husband of the deceased Vinuben) deserves benefit of doubt. Therefore, all three appellants-accused are hereby acquitted from the charges levelled against them. This Criminal Appeal is hereby allowed. The judgement and order of conviction and sentence dated 25.07.2000 in Sessions Case No. 88 of 1997 passed by the learned Additional Sessions Judge, Ahmedabad(Rural), Ahmedabad is hereby quashed and set aside. Appellant Nos. 1 and 2 are on bail and so their bail bonds shall stand discharged. Appellant No. 3 is in prison. He shall be set at liberty forthwith, if his presence is not required, in any other case. Fine, if paid, shall be refunded to the appellants on proper identification.