Judgment :- Manjunath, J The appellant has filed this appeal under Section 374 (2) of the Criminal Procedure Code being aggrieved by the judgment and order of sentence passed in Sessions Case No.298/2005 by the Principal Sessions Judge at Gulbarga dated 01.09.2006 wherein he has been convicted under Section 235(2) of the Code of Criminal Procedure for the offences punishable under Section 498A, 504 and 302 of IPC and has been sentenced to undergo imprisonment for a term of 3 years and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month for the offence punishable under Section 498A of IPC, to undergo imprisonment for a period of one year for the offence punishable under Section 504 of IPC and life imprisonment and to pay a fine of Rs.5,000/-, in default simple imprisonment for six months for the offence punishable under Section 302 of IPC. 2. The Mahagon police station, Gulbarga filed charge sheet against the appellant herein for the offences punishable under Sections 498A, 504 and 302 of IPC. According to the case of the prosecution, the accused/appellant had married one Sridevi daughter of Aiylabai and Arjun about 3 years back and the husband and wife lived at Kallabennur village happily for about 6 to 7 months and thereafter appellant started suspecting her fidelity and was assaulting her. It is the further case of the prosecuting that deceased Sridevi used to tell her grievance before her parents and many a times her parents had advised the appellant not to ill treat their daughter, however, the ill treatment continued. In the meanwhile, Sridevi gave birth to a daughter one year after the marriage. Even after giving birth to female child, appellant continued the ill treatment and harassment. On account of the intervention of the maternal uncle of the appellant by name Chandrayya and Laxmi Bai of Kurikota village, Sridevi was sent along with the appellant and they lived in the house of Chandrayya for some time. Suddenly the parents of Sridevi learnt that she was admitted to the Government Hospital, Gulbarga after sustaining burn injuries. On account of the intervention of the maternal uncle of the appellant by name Chandrayya and Laxmi Bai of Kurikota village, Sridevi was sent along with the appellant and they lived in the house of Chandrayya for some time. Suddenly the parents of Sridevi learnt that she was admitted to the Government Hospital, Gulbarga after sustaining burn injuries. When they went to the hospital, they saw their daughter with burn injuries all over the body and at that time it was informed to them by their daughter that she had expressed on the early morning of 19.8.2005 to her husband to send her to her native place to tie Rakhi to her brother. Appellant, suspecting that his wife is going to meet her paramour, poured kerosene and set fire to her at about 8.00 A.M. Sridevi succumbed to the burn injuries on 20.8.2005. On the strength of the statement given by Sridevi the parents initially registered a case in Crime No.73/2005 for the offences punishable under Section 498A, 504 and 307 of IPC and after the death of Sridevi police took up further investigation for the offence committed under Section 302 of IPC also. After conducting inquest proceedings all over the dead body and after postmortem examination the investigating officer visited the place of occurrence, inspected the spot and seized the incriminating articles. He also recorded statement of witnesses and collected oral and documentary evidence and arrested the accused. The appellant was produced before the Magistrate and charge sheet was also filed. The appellant was in judicial custody from the date of arrest till the judgment of the Trial Court and he continues to be in jail. 3. The Magistrate taking cognizance of the offence registered the case in C.C.No.2372/2005 and committed the case to the Sessions Court. 4. The appellant appeared before the Sessions Court and he denied the charges leveled against him. He pleaded not guilty and claims to be tried. Thereafter prosecution examined in all 18 witnesses as PWs. 1 to 18 and got marked exhibits P1 to P17 and produced Mos.1 to 4. The Sessions Court also examined accused under Section 313 Cr.P.C. and thereafter appellant gave the defence statement in writing and examined one witness as DW1 by name Chandrayya in his defence. 5. Thereafter prosecution examined in all 18 witnesses as PWs. 1 to 18 and got marked exhibits P1 to P17 and produced Mos.1 to 4. The Sessions Court also examined accused under Section 313 Cr.P.C. and thereafter appellant gave the defence statement in writing and examined one witness as DW1 by name Chandrayya in his defence. 5. The Learned Session Judge after hearing the parties formulated the following points for its consideration: 1) Whether prosecution proves beyond all reasonable doubt that the above named accused being husband of deceased Sridevi ill treated and harassed her physically and mentally by suspecting her fidelity 2 years prior to 19.8.2005 and thereby committed an offence punishable Under S.498A India Penal Code? 2) Whether prosecution further proves beyond all reasonable doubt that on 19.8.2005 at 8 A.M. in Kurikota village in the house of accused, he abused his wife Sridevi in filthy language and gave provocation to her to commit breach of peace and thereby committed an offence punishable under S.504 India Penal Code? 3) Whether prosecution further proves beyond all reasonable doubt that on the above said date, time and place, when deceased Sridevi was proceeding to her parents house, at that time, accused abused her and poured kerosene on her body and lit fire by means of match stick and a result of the same, she sustained severe burn injuries and while undergoing treatment in the Government Hospital Gulbarga, she succumbed to the same on 28.8.2005 and thereby committed offence of murder punishable under S.302 Indian Penal Code? 4) What order? 6. After considering the entire evidence, the Sessions Judge held points 1 to 3 in the affirmative and in regard to point No.4, it held that accused found to be guilty and thereafter he heard accused and Learned Defence Counsel on the question of sentence and after hearing the accused, subjected sentence as above. 7. Being aggrieved by the conviction and order of sentence, the present appeal is filed by the appellant. 8. The Learned Counsel Smt. Manjula N. Tejaswi, appearing for the appellant contends that the prosecution has failed to prove that the relationship between appellant and Sridevi was not cordial and that the appellant was suspecting her fidelity. 7. Being aggrieved by the conviction and order of sentence, the present appeal is filed by the appellant. 8. The Learned Counsel Smt. Manjula N. Tejaswi, appearing for the appellant contends that the prosecution has failed to prove that the relationship between appellant and Sridevi was not cordial and that the appellant was suspecting her fidelity. It is also her case that the Sessions Court did not appreciate the evidence let in by the prosecution and without considering the fact that Sridevi was not in a position to give any statement either before the police or before the Taluka Executive Magistrate in regard to the alleged setting fire by the appellant as her physical and mental condition at the time of recording statement by the PSI and the Taluka Executive Magistrate was not sound and was not in a position to respond even the oral commands issued by the doctor. She further contends that considering the physical and mental condition of Sridevi at the time of admission to the hospital and thereafter till her death Sridevi was not in a position to inform how the alleged incident took place or to name the appellant as the accused. It is the case of the appellant that the entire case is concocted by the prosecution only to adversely implicate the appellant. She further contends that for the reasons best known to the prosecution, the hospital records were not produced before the Court and that the doctor who certified the mental ad physical condition of Sridevi either at the time of recording the dying declaration by the Taluka Executive Magistrate or by the Sub Inspector of Police, Mahagaon police station to show that she was physically and mentally fit to give her statement. According to her, the appellant was in no way responsible for the burn injuries found on his wife Sridevi as it was only accidental and he was no way responsible. According to her, due to wrong appreciation of evidence the appellant has been wrongly convicted and has been ordered to undergo imprisonment. 9. According to her, the appellant was in no way responsible for the burn injuries found on his wife Sridevi as it was only accidental and he was no way responsible. According to her, due to wrong appreciation of evidence the appellant has been wrongly convicted and has been ordered to undergo imprisonment. 9. She further contends that considering the nature of injuries sustained by deceased Sridevi and also in view of the postmortem report and the evidence of the doctor, Sridevi could not put her LTM either on the statement said to gave been recorded by the Taluka Executive Magistrate on the dying declaration or by the Sub Inspector of Police of Mahagaon police station. The Trial Court without considering the nature of injuries sustained by the deceased and without examing as to whether she was in a position to give any statement either before the police Sub Inspector or before the Taluka Executive Magistrate or before her parents and relatives, has proceeded to convict the accused based on the dying declaration. 10. It is her case that the deceased had suffered 90% burn injuries all over the body except the lower abdomen portion and genital portion. It is also corroborated by the doctor who has been examined and also the postmortem report marked through him and that her mental condition was such that, she could not have affixed her LTM either on statement made before police or the dying declaration. 11. She further contends that for the reasons best known to the prosecution, the prosecution did not examine the medical officer who has certified the mental and physical condition of the deceased while Taluka Executive Magistrate recorded the dying declaration and the statement given by the deceased before the Sub Inspector of Police, Mahagaon police station. 12. She further contends, for non prosecution of medical records of the Hospital the Trial Court should have drawn an adverse inference. If those records had been produced before the Trial Court, the physical and mental condition of Sridevi on the date of giving dying declaration would have been known to the Court. 13. In these circumstances, she prays the Court to allow the appeal and set aside the judgment passed by the Trial Court. 14. Per contra, Learned Addl. If those records had been produced before the Trial Court, the physical and mental condition of Sridevi on the date of giving dying declaration would have been known to the Court. 13. In these circumstances, she prays the Court to allow the appeal and set aside the judgment passed by the Trial Court. 14. Per contra, Learned Addl. SPP-Smt. Anuradha M. Desai contends that the prosecution has proved beyond reasonable doubt that the appellant was suspecting fidelity of his wife and as such he was guilty of the offence for which he has been charged. According to her, to prove the said contention, the prosecution has examined the parents of the deceased and the neighbours. She further contends that there are no reason to disbelieve the dying declaration recorded by the Taluka Executive Magistrate or the statement recorded by the Sub Inspector of Police, Mahagaon police station. In view of corroborative evidence of the parents of the deceased and the evidence of Taluka Executive Magistrate and the Sub Inspector of Police the Trial Court was justified in believing their evidence and convicting the appellant. 15. In order to clarify the discrepancy of timings in recording the dying declaration by the Taluka Executive Magistrate and the statement recorded by the Sub Inspector of Police, the Learned Addl. SPP has produced the case diary to show that the Sub Inspector of Police had requested the Taluka Executive Magistrate to record dying declaration even prior to the recording the statement of the deceased which is considered as complaint lodged by Sridevi during her lifetime. 16. Relying upon the case diary, she requests the Court to reject the contentions urged by the Learned Counsel for the appellant that there is no discrepancy with regard to recording of dying declaration by the Taluka Executive Magistrate and so also by the Sub Inspector of Police. She contends that since there is no discrepancy in regard to recording of dying declaration as deceased was in a position to give a declaration as the same has been recorded by the Taluka Executive Magistrate, the same has to be appreciated without there being cogent evidence to show that the aid declaration was in fact had been recorded by the Taluka Executive Magistrate. Therefore, she requests the Court to dismiss the appeal. 17. Therefore, she requests the Court to dismiss the appeal. 17. Having heard the Counsel for the parties, the only point to be considered by us in this appeal is, “whether the Sessions Court was justified in convicting the appellant for the offence punishable under Sections 498A, 0504 and 302 of IPC?”. 18. After hearing Learned Counsel for the parties, we notice the facts to the following extent are not in dispute: The deceased Sridevi was the wife of the appellant. She sustained burn injuries on the morning of 19.8.2005 at the residence of the appellant. She was shifted to the Government District Hospital, Gulbarga on the same day and she was admitted to the hospital at about 9.35 A.M. It is the case of the prosecution that since the appellant was suspecting the fidelity of Sridevi he had set fire to her by pouring kerosene on her body with the help of match stick. According to the prosecution, on 19.8.2005 at about 8.30 in the morning Sridevi requested her husband to send her to the parents house in order to celebrate Raksha Bandhan festival and that the appellant suspecting her fidelity and that she is going to Gulbarga in order to meet her paramour, by pouring kerosene had set her fire which resulted in 90% burn injuries. She was shifted to Government District Hospital at Gulbarga with the assistance of Chandraiah and his wife Lakshmi Bai who has been examined as PW3. 19. PW1 is the mother of the deceased. She has deposed that appellant was suspecting fidelity of her daughter. On 19.8.2005 when Sridevi requested her husband to permit her to go to Gulbarga in order to celebrate Raksha Bandhan festival, suspecting that Sridevi would go meet her paramour, by pouring kerosene, set fire on her and she came to know through Minnappa, son of Chandraiah who has been examined as PW11. She has been cross examined at length. In the cross examination it is admitted by her that the accused began to harass her daughter only after she became pregnant and he left her daughter at her home when she was pregnant of 5 months and after giving birth to a female baby, at the intervention of Chandraiah and his wife she sent her daughter to Kurikota village. She has denied the suggestion that the accused and Sridevi were living happily. She has denied the suggestion that the accused and Sridevi were living happily. According to her, she received information from PW11 that her daughter has received burn injuries and has been admitted to the hospital. On receipt of such information, she went to the hospital and about 5 persons from her side were in the hospital to visit Sridevi and that the statement of Sridevi was recorded by the parents in her presence and also in the presence of others from Kurikota village and that her husband and other relatives also present. She has denied the suggestion that Sridevi did not speck to any person after she was admitted to the hospital till her death and that she had instructed the police on behalf of deceased Sridevi with regard to the incident. 20. PW2 -one Eramma who is none other than the elder sister of Sridevi and who has been examined to show that Sridevi and her husband were quarrelling and her husband was suspecting her fidelity and that she came to know the incidence and thereafter she met Sridevi in the hospital. PW3 -Lakshmibai is the wife of Chandrayya. She has been treated as a hostile witness. She has been cross-examined by the Prosecutor. She has denied the case of the prosecution. According to this witness, the accused and Sridevi were on cordial terms and that she was not aware how Sridevi got burn injuries. But she admits that she along with her husband and neighbours had taken Sridevi to the hospital and she has also denied Sridevi did not tell her anything in regard to the incident. PW4 is one Ahmed Sab. He has been examined by the prosecution to show that he has seen the incident. But he has been turned hostile. He has been cross examined by the prosecution but nothing fruitful has been elicited in his cross examination. PW5 is one Jayanna. He has also turned hostile. He has been cross-examined by the Public Prosecutor in detail. Nothing has been elicited through this evidence. According to this evidence, accused and deceased Sridevi were living together happily. One Yakubsab is examined as PW6. This witness has been treated as hostile evidence and nothing has been elicited through this evidence even though he has been cross-examined by the prosecutor. He has been cross-examined by the Public Prosecutor in detail. Nothing has been elicited through this evidence. According to this evidence, accused and deceased Sridevi were living together happily. One Yakubsab is examined as PW6. This witness has been treated as hostile evidence and nothing has been elicited through this evidence even though he has been cross-examined by the prosecutor. PW7 is a panch witness and after the cross examination by defence Counsel he has also been cross examined by the public prosecutor. But his evidence is not useful to the prosecution to prove the case. We have the evidence of PW8 Dr. Manmath. Dr. Manmath has been examined to show that postmortem was conducted on the dead body of Sridevi. Her evidence only disclose that the deceased had 90% burn injuries. Through him postmortem report has been marked and in his cross examination he has deposed that depending upon the condition of health at the time of admission the patient would be in a position to speak or not. The evidence of PW9 is of no assistance to consider the case of the appellant as he is only a Junior Engineer attached to PWD Sub Division 1 Gulbarga and who has prepared the sketch, where the incident of alleged burning took place. Even the evidence of PW10 is not required to be considered by us he is only Secretary of the Gram Panchyat who has issued exhibit P9-Property Extract register. PW11 -Minnappa is the son of Chandraiah and Lakshmi Bai. He has been treated as hostile witness and he has been cross-examined. He has also not supported the case of the prosecution. PW12 -Shanthabai has stated that she was not aware of the personal affairs of the accused and Sridevi. Therefore, she has been treated as hostile witness but nothing has been elicited in the cross examination. PW13 -Azim is the driver of the jeep who has shifted Sridevi to Government General Hospital, Gulbarga. Therefore, his evidence need not be considered by us for purposes of this appeal. 21. The important witness are PW14 – Police Sub Inspector of Mahagaon police station and PW15 – Tahsildhar & Taluka Executive Magistrate, Gulbarga and PW16 – Arjun father of deceased Sridevi. According to PW14 – PSI, after receiving Medico Legal Case from Brahampur police station, Gulbarga, has visited the District Hospital, Gulbarga. 21. The important witness are PW14 – Police Sub Inspector of Mahagaon police station and PW15 – Tahsildhar & Taluka Executive Magistrate, Gulbarga and PW16 – Arjun father of deceased Sridevi. According to PW14 – PSI, after receiving Medico Legal Case from Brahampur police station, Gulbarga, has visited the District Hospital, Gulbarga. He saw the victim Sridevi who had received burn injuries and he recorded her oral complaint as per exhibit P12 and according to him it was informed to him by Sridevi that she received burn injuries on account of her husband setting fire and then he requested the Taluka Executive Magistrate to record the statement of the injured Sridevi and thereafter he visited the scene of occurrence at Kurikota village. By securing panch witnesses spot panchnama was prepared and drawn. He has been cross-examined at length. He admits in the cross-examination that he prepared FIR at about 6.15 P.M. on 19.8.2005 and he sent copies of FIR to the Magistrate within 1 1/2 hours but he say he does not remember at what time he had sent the requisition. The Taluka Executive Magistrate recorded the dying declaration. In the examination in chief, he deposed that he was present in the hospital when Taluka Executive Magistrate recorded the statement of Sridevi but in the cross examination he admits that he was not present when the Taluka Executive Magistrate recorded the statement of Sridevi because he had not gone to the hospital on that day. 22. As per exhibit P12 the oral statement of Sridevi has been recorded by PW14 – Police Sub Inspector between 4.30 P.M. to 5.15 P.M. He has denied the suggestion that Sridevi was not in a position to give statement. 23. PW15 the Taluka Executive Magistrate in his evidence admits that on the request of the Police Sub Inspector, Mahagon police station he recorded the dying declaration of Sridevi as per exhibit P15. According to him, the patient was conscious and was in a position to give statement and the statement was recorded between 4.10 P.M. to 4.25 .P.M. on the same day. When the statement by PW14 has been recorded between 4.30 .P.M. to 5.15 P.M. 24. PW16 – Arjun has deposed that his daughter told him that her husband after pouring kerosene lit fire on her and thereafter on behalf of the defence Chandrayya has been examined as DW1. When the statement by PW14 has been recorded between 4.30 .P.M. to 5.15 P.M. 24. PW16 – Arjun has deposed that his daughter told him that her husband after pouring kerosene lit fire on her and thereafter on behalf of the defence Chandrayya has been examined as DW1. He has supported the case of the accused. He has been cross-examined by the prosecutor. The accused has also given statement under Section 313 Cr.P.C. stating that on the date of incident his wife Sridevi requested him to send her to Gulbarga for Raksha Bandhan festival, since he had no money, he requested her not to go to Gulbarga on that day, immediately, he left home along with his daughter and after 20 to 25 minutes later somebody informed him that his wife had received burn injuries. By the time he returned home, people around the house were extinguishing the fire and thereafter he admitted his wife to the hospital. 25. The Learned Sessions Judge relying upon the evidence of the dying declaration given before the Taluka Executive Magistrate and the statement given by the deceased before the PSI as per exhibit P12 and relying upon the evidence of Aiyalabai and Arjun parents of the deceased, has come to the conclusion that the prosecution has proved that the appellant was suspecting the fidelity of his wife Sridevi which resulted in setting her fire on 19.8.2005. The Learned Sessions Judge has also come to the conclusion that there are no reasons to disbelieve the dying declaration recorded by the Taluka Executive Magistrate. 26. In this background, we have to re-appreciate the entire evidence let in by the persecution as well as the defence. 27. As pointed out earlier, the case dairy has been produced before us while the Addl. SPP present her arguments in order to show that the PSI, Mahagaon police station had sent requisition to the Taluka Executive Magistrate to record the statement of deceased Sridevi even prior to the recording of oral statement by him as per exhibit P12. On perusal of the case diary, we are of the view that even though the requisition letter sent by the PSI has not been produced by the prosecution, it is evident that such request was made by the PSI. Therefore, the statement recorded by the Taluka Executive Magistrate earlier to exhibit P12 cannot be made much of it. On perusal of the case diary, we are of the view that even though the requisition letter sent by the PSI has not been produced by the prosecution, it is evident that such request was made by the PSI. Therefore, the statement recorded by the Taluka Executive Magistrate earlier to exhibit P12 cannot be made much of it. But the question would be whether Sridevi was in a position to give statement before the PSI or inform her parents about setting her on fire by her husband at about 8.30 A.M. in the morning on account of she demanding her husband to send her to Gulbarga to celebrate Raksha Bandhan and whether she was in a position to give a dying declaration before the Taluka Executive Magistrate has to be examined. 28. Admittedly, the medical records maintained by the Government General Hospital, Gulbarga pertaining to Sridevi has not been placed before the Sessions Court in the case diary produced before us by the Addl. SPP, the medical records are available. We have perused the medical records are available. We have perused the medical records. This is a xerox copy of the case sheet maintained by he District Hospital, Gulbarga in respect of the deceased from the time of admission till postmortem was completed. The case of Sridevi has been treated by hospital as Medico Legal Case. She was admitted to the hospital at about 9.30 A.M. on 19.8.2005 for the alleged burns on same day at about 8.30 A.M. at Kurikota village. At the time of admission, the condition of the patient is mentioned in the records as hereunder: “patient is young, female, moderately built and nourished. General condition: very poor, patient is semi conscious not responding to oral commands. Superficial to deep burn present over face, neck, chest, both upper limbs, both lower limbs and complete back sparing abdomen and perineum of about 80% to 90%.” She was administered compose injection of 10 mg. along with other medication. Condition of the deceased Sridevi on the next day (20.8.2005) is also noted wherein the general condition is mentioned as poor. 29. Now, in the background of the medical records which are not made available to the Court by the prosecution and in view of the dying declaration recorded by the Taluka Executive Magistrate between 4.10.P.M. to 4.25P.M.. Condition of the deceased Sridevi on the next day (20.8.2005) is also noted wherein the general condition is mentioned as poor. 29. Now, in the background of the medical records which are not made available to the Court by the prosecution and in view of the dying declaration recorded by the Taluka Executive Magistrate between 4.10.P.M. to 4.25P.M.. on the date of admission, and recording of oral statement as per exhibit P12 by the PSI, Mahagaon police station between 4.30 to 5.15 P.M. and the information said to have been given by Sridevi to her parents Aiyalabai and Arjun in between 11.00 A.M. to 4.15 P.M., we have to examine whether the deceased Sridevi was in a position to give statement before the Police Sub Inspector, dying declaration before the Taluka Executive Magistrate or narrating the entire story before her parents about the incident. It is no doubt true that under exhibit P15 dying declaration is certified by the casualty medical officer Dr. Tasneem Syeda which reads as hereunder: “patient is conscious and oriented to time and place and is in a position to give statement between 4.10 P.M. to 4.25 P.M. on 19.8.2005.” 30. But unfortunately Dr. Tasneem Syeda who has certified about the condition of the deceased has not been examined by the prosecution. The Learned Counsel for the appellant taking us through postmortem report and the evidence of Dr. Manmath contends that when the deceased had superficial burn injuries all over the body upto 90% including the upper limb except lower abdomen portion and genital region, it was not possible for the deceased Sridevi to put her LTM either on exhibit P12 or on exhibit P15. She further contends the in view of the general condition of Sridevi at the time of admission to the hospital and administering of compose immediately after admission, with the injuries of 80% to 90% and in view of admission of Dr. Manmath in the cross examination that the response of the patient would depend upon the general condition of the patient, would only show that the deceased was not in a position to give any statement in regard to the alleged incident either before her parents or before the PSI or before the Taluka Executive Magistrate. She further contends that due to non examination of Dr. She further contends that due to non examination of Dr. Tasneem Syeda, an adverse inference has to be drawn and she has strongly contended that only in this background medical records were not produced before the Sessions Court. According to her, if the medical records had been produced before the Trial Court, the Trial Court would not have believed the theory of dying declaration, the statement given by the deceased before the PSI and or her ability to inform her parents after she was admitted to the hospital. Therefore, she contends that the Trial Court has committed serious error in relying upon the dying declaration and exhibit P12 oral statement and also the evidence of PW1 and PW16. 31. By looking into the medical records available in the case diary, we are of the view that it would be difficult to accept the case of the prosecution that Sridevi was in a position to give any statement either before her parents or before the PSI or before the Taluka Executive Magistrate since her general condition was poor and she was not responding to the oral commands of the doctor. When she was not in a position to respond to the oral commands of the doctor at the time of admission to the hospital, after administering compose injunction., was it possible for the deceased to give statement before her parents or before the PSI or before the Taluka Executive Magistrate on the same day. This creates a doubt over the said declaration and as such dying declaration will have to be examined with care & caution. Due to non examination of the doctor who was treating the deceased in regard to her capacity to give statement before the police or before the Taluka Executive Magistrate, we are of the view that it is not safe for any Court to believe the dying declaration recorded by the Taluka Executive Magistrate or oral statement recorded by the PSI as per exhibit P12 since her fingers were burnt and was not in a position to put her LTM. 32. 32. In fact the evidence on record shows that deceased has suffered burns even on her fingers and this is evident from the evidence of the following witnesses: PW8: Depending upon condition of health at the time of admission of the patient and in continuation at the time of death of patient one can say whether patient was able to speak or not. PW15: It is true both hands and both legs of Sridevi had burns. She had 80% to 90% burns. Her skin of face, hands, fingers, legs had burns. PW-16: It is true face, hands, fingers legs and back of my daughter had burns. 33. The main criterion on which conviction of the accused has been made is on the basis of dying declaration given by the deceased Sridevi to the TEM (Taluka Executive Magistrate) which is marked as Ex.P15. Credibility of the dying declaration depends on various factors such as mental status of the person making it, person recording the said declaration, condition of the person and his/her capacity to comprehend questions and answer them as to whether circumstances existed, like presence of any person near and dear to the person making the dying declaration. 34. The person making the dying declaration would not be in a position to submit himself/herself for cross-examination and it is in those circumstances the above said ingredients will have to be satisfied to the hilt by the prosecution to seek conviction of the accused on the basis of the dying declaration. 35. It is seen from the records produced by the prosecution namely, case sheet of the deceased that she had suffered 80% -90% burn injuries and had been admitted to hospital in a semi-conscious state. It is also in evidence that her entire body including fingers were burnt, as already discussed by us hereinabove. 36. Their evidence clearly shows about the burning of fingers. When it is the case of the accused that she was not in a position to make any such declaration, onus of proving the dying declaration lies very heavily on the prosecution, without giving room or scope for any view other than accepting the statement made by way of dying declaration. However, we find from records that the said dying declaration has been signed by Dr. However, we find from records that the said dying declaration has been signed by Dr. Tasneem Syeda where she has endorsed as under: ‘Patient is conscious and oriented to time & place and is in a position to give statement between 4.10 to 4.25 P.M. on 19.8.2005.’ Which is marked as Ex.P15(c). Therefore, it was for the prosecution to have examined the said witness, as the dying declaration is not without any mysteries. 37. The Learned Counsel for the appellant has relied upon following 2 decisions of the Hon’ble Supreme Court namely; .(i) P.MANI vs STATE OF T.N. ((2006) 2 SCC (Crl) 36) .(ii) SHER SINGH & ANR. vs STATE OF PUNJAB ((2008) 2 SCC (Crl) 783) In SHER SINGH’S case the Hon’ble Supreme Court has held as follows: “12. In Paparambaka Rosamma vs State of A.P. it was held by this Court that although the doctor had appended a certificate to the dying declaration to the effect that the patient was conscious while recording the statement, yet it would not be safe to accept the dying declaration as true and genuine, since the certificate of the doctor was only to the effect that the patient was conscious while recording the statement. It is necessary for the prosecution to prove that the dying declaration is true, voluntary and free from all doubts. But the doctor’s certificate only said that the patient was conscious, it did not say that the patient was in a fit state of mind. In medical science there are two stages-one of consciousness and the other of a fit state of mind, but they are not synonyms, and one may be conscious without being in a fit state of mind. The Court did not rely upon the dying declaration as the Court had also found serious lacunae in other material particulars. 16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the Court would insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. Since the accused has no power of cross-examination, the Court would insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the Court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the Court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor’s opinion to that effect, it can be acted upon provided the Court ultimately holds the same to be voluntarily and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.” 38. To inspire confidence the dying declaration should not be showered with any mystery nor there should be any doubt. However, in the instant case we find that it is not so far the reason already expressed by us and discussed in the forgoing paragraphs. In MANI’s case, it is held as follows: “14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If Evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis of thereof.” 39. In the instant case as rightly pointed out by Learned Counsel for appellant would singularly point out that what might have been stated in the dying declaration may not be correct particulars when wife was nurturing grudge or hatred toward husband and while committing suicide she may try to implicate the husband. In the present case where the appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113-A of the Evidence Act is not available and in the absence of such a presumption, the conviction & sentence of the accused must be based on cogent & reliable evidence brought on record by the prosecution. In the instant case we find that evidences are not such which point out only to the guilt of the accused. Unfortunately the Sessions Court has lost sight of these important vital aspects. We are also of the view if the medical records had been produced before the Trial Court and if the Trial Court had an occasion to look into these records and in the background of the medical records if the Trial Court had appreciated the evidence, the finding of the Trial Court would have been different than the present finding. In the result, we are of the view that the Trial Court committed an error in convicting the accused for the aforesaid offences when the prosecution has failed to prove its theory beyond reasonable doubt. 40. It is no doubt true that the prosecution has relied upon the provisions of Section 498A. In the result, we are of the view that the Trial Court committed an error in convicting the accused for the aforesaid offences when the prosecution has failed to prove its theory beyond reasonable doubt. 40. It is no doubt true that the prosecution has relied upon the provisions of Section 498A. According to us, even though prosecution has failed to prove the allegation of Section 498A, for the sake of argument, even if we accept the case advanced by the prosecution since the accused is in custody from 21.08.2005 as the punishment to be awarded under Section 498A is only for a period of 3 years since the appellant/accused has undergone imprisonment for more than 3 years, we have to acquit the accused under Section 498A also. 41. In the result, we pass the following: The criminal appeal is allowed. The judgment and order of conviction passed by the Principal Sessions Judge, Gulbarga dated 01.09.2006 in S.C.No.298/2005 id hereby reversed and we hereby set the accused free and we direct the Superintendent of Central Prison, Gulbarga to set the appellant free forthwith provided the accused is not required in any other case.