Judgment ( 1. ) APPELLANT Radharani, mother-in-law of the deceased Laxmi bai being aggrieved by the judgment dated 2. 12. 2008 passed in S. T. No. 320/2006 by the learned 2nd Additional Sessions Judge, Sagar convicting the appellant under Section 302 IPC sentencing her to undergo RI for life and to pay fine of Rs. 1,000/-, in default of payment of fine to undergo one year RI, has filed this appeal. ( 2. ) THE Prosecution allegations in short are that on 26. 7. 2005 at about 4. 00 p. m. at village Gangwara accused Radharani, Pramod and dibbu @ Devendra both son of Radharani and Nitu daughter of radharani misbehaved with the deceased treated her with cruelty and after pouring kerosene upon the deceased, set her on fire. After the deceased suffered injuries she was shifted to the hospital where she was treated, proper medication was given and thereafter her dying declaration was recorded by Naib Tahsildar Smt. Vandana Parte (P. W. 15 ). After the death of the deceased post-mortem was conducted and it was recorded by the doctor that death was due to extensive burn injuries. After completing the investigation and collecting the material evidence against the accused persons prosecution thought fit to prosecute Pravod, Dibbu @ Devendra and radharani, however Nitu daughter of Radharani was not tried. ( 3. ) AFTER completing the trial the Court below was pleased to acquit Pramod and Dibbu @ Devendra, but however convicted the appellant Radharani holding that she had authored the crime. ( 4. ) SHRI Kunal Thakre, learned counsel for the appellant after taking us through statement of P. W. 2, Munnilal, P. W. 3 Smt. Kosabai and P. W. 4 Bablu, father, mother and brother of the deceased submitted that these persons despite being parents and brother of the deceased did not support the prosecution case. He also submitted that from the statement of Smt. Vandana Parte (P. W. 15), dr. A. K. Kastwar (P. W. 17) it would clearly appear that father, mother, brother and other persons were with the deceased much before dying declaration was recorded. It is submitted that the dying declaration (Ex. P. 17) is tutored piece of evidence and could not be relied upon. ( 5. A. K. Kastwar (P. W. 17) it would clearly appear that father, mother, brother and other persons were with the deceased much before dying declaration was recorded. It is submitted that the dying declaration (Ex. P. 17) is tutored piece of evidence and could not be relied upon. ( 5. ) SHRI T. K. Modh, learned counsel for the State on the other hand submitted that from the statement of P. W. 2, Munnilal, P. W. 3 smt. Kosabai and P. W. 4 Bablu, it would clearly appear that these witnesses were won over and they were not supporting Ex. P. 17, dying declaration. It was submitted that dying declaration would make it clear that the deceased was subjected to cruelty and deceased made dying declaration voluntarily. It is submitted by him that court below was not unjustified in convicting the present appellant. ( 6. ) UNDISPUTEDLY the entire prosecution case hinges upon the statement of P. W. 15 Smt. Vandana Parte and P. W. 17 Dr. A. K. Kastwar. The prosecution case is that the dying declaration is valid piece of evidence and is absolutely reliable. On the other hand the submission of the learned counsel of the appellant is that if the defence could successfully prove that dying declaration is tutored piece of evidence then the accused is entitled to be acquitted. ( 7. ) IT would be trite to say that dying declaration can form basis of conviction provided, the dying declaration is free and unimpressed last version of the deceased, the dying declaration is not tutored piece of evidence, a person who is making the dying declaration was in fit mental condition, the doctor had certified that the person who was giving the statements was in fit mental condition to give the statement. As regards the present case the statement has been recorded in the very language employed by the deceased. If it is shrouded by clouds of doubt or if the dying declaration is not reliable or it is found that it is a tutored piece of evidence then no Court shall have any hesitation in rejecting the dying declaration. ( 8. As regards the present case the statement has been recorded in the very language employed by the deceased. If it is shrouded by clouds of doubt or if the dying declaration is not reliable or it is found that it is a tutored piece of evidence then no Court shall have any hesitation in rejecting the dying declaration. ( 8. ) P. W. 2 Munnilal in paragraph one of his statement has stated that deceased Laxmi bai whenever came to her parents house she never made any complaint to her parents that she was mistreated or cruelly treated by the husband or any in-laws. On the other hand he stated that the deceased was making complaint about stomach ache. This witness was declared hostile, even in the cross-examination he did not support the prosecution. In the cross-examination he stated that on the queries the deceased informed him that because of the severe pain, she burnt herself. At that point of time they told her to implicate her in-laws because they did not get her properly treated. ( 9. ) P. W. 3 Smt. Kosabai has also stated on the line adopted by p. W. 2. She was also declared hostile; however in paragraph 2 of cross-examination conducted by the prosecution counsel she stated that deceased burnt herself because of severe pain. In paragraph 3 she had stated that she herself and others suggested the deceased to involve the in-laws. She had also stated that they were present when naib Tahsildar had come. ( 10. ) P. W. 4 Bablu brother of the deceased was declared hostile and had not supported the prosecution. P. W. 5 Seetaram Satya is witness of seizure. P. W. 6 Kailash Patel is also a person who had asked the deceased as to how she suffered injuries. He has also not supported the prosecution. P. W. 7 Ganesh brother of the deceased has also not supported the prosecution case. He had stated that the deceased burnt herself because of severe pain. P. W. 8 Smt. Sumanbai is the daughter in-law of Munnilal. She had also not supported the prosecution and has chosen to adopt the line taken by the other witnesses. The other witnesses are in relation to seizure, arrest etc. ( 11. ) P. W. 15 Smt. Vandana Parte had recorded the dying declaration of the deceased. P. W. 8 Smt. Sumanbai is the daughter in-law of Munnilal. She had also not supported the prosecution and has chosen to adopt the line taken by the other witnesses. The other witnesses are in relation to seizure, arrest etc. ( 11. ) P. W. 15 Smt. Vandana Parte had recorded the dying declaration of the deceased. She had stated that she recorded the statement as given by the deceased, however it is to be noted that original is not available on the record but however, Smt. Parte could produce carbon copy kept by her in the record. In paragraph 10, a question was asked that when she had gone to hospital how many persons were present. She simply said that she could not remember and she also could not remember that while she was recording dying declaration whether the deceased was talking with others or not. From her statement it would clearly appear that some persons were present at the time of recording of dying declaration and if that be so, it is to be presumed rather it is to be held that parents, brother and other relations of the deceased were present with the deceased much before P. W. 15 Smt. Vandana Parte recorded dying declaration of the deceased. ( 12. ) ONCE it is clear that the relations had reached the deceased much before dying declaration was recorded and such persons said before the Court that they instigated or suggested the deceased to involve a particular person in commission of the crime then such dying declaration would lose its importance, sanctity and reliability. In our considered opinion the Court below rightly held that the dying declaration in the present case has been recorded in accordance with rules and settled principles, but failed in not appreciating that from the statement of the witnesses it would be clear that such witnesses suggested or instigated the deceased to make allegations against the appellant. In our opinion the learned Court below was also unjustified in holding that defence could not bring any evidence on record that the deceased was suffering with stomach ache and erred in holding that because of some compromise the theory of pain etc. was developed. In our opinion the learned Court below was also unjustified in holding that defence could not bring any evidence on record that the deceased was suffering with stomach ache and erred in holding that because of some compromise the theory of pain etc. was developed. It is to be noted that burden to prove the commission of crime by the accused is always upon the prosecution, except in a case where the appellant admit the guilt but if the appellant wish to abjure the guilt. If the accused denies commission of the crime then the prosecution is not relieved of burden of proving the commission of offence beyond reasonable doubt and to reasonable certainty. In our opinion the Court below swayed away with the dying declaration and failed in not considering the effect and impact of the statement of the witnesses. ( 13. ) THE findings recorded by the Court below are hereby set aside and it is held that the prosecution has failed in proving its case beyond shadow of doubt. The findings are set aside and accordingly conviction and sentence of the appellant is also set aside. The accused is in jail, he be immediately released if not involved or wanted in any other case. The fine amount, if any, deposited by the accused be returned to her.