JUDGEMENT Sanjay Karol, J. For an offence, which is alleged to have been committed on 11.9.1996, accused were put to trial. In terms of judgment dated 29.12.1997 passed by learned Additional Sessions Judge (I), Kangra at Dharmsala, H.P., in Criminal Case No.4-D/97, titled as State of H.P. vs. Kartar Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Smt. Sharmila Devi (deceased) and Shri Kartar Singh (accused) were married for more than 9-10 years. From the wedlock three children were born. Accused was working in the army and the deceased who was working as a warden at the Anganwari Centre, Dhugyari was forced to leave her job and reside at the newly constructed house of the accused at Village Sakoh. Accused also used to treat Smt. Sharmila Devi with cruelty. He used to harass and forcibly beat her. About 1 ½ - 2 months prior to the incident in question, Smt. Sharmila Devi telephonically informed her parents about the same. Consequently, her brother, Shri Ajay Kumar (PW-1) took her back to the parental house with her children. Accused visited his in-laws and insisted upon sending her wife back. Under threats that he would sell off his entire property, deceased was sent back by her father Shri Roshan Lal (PW-14). However this was done with the intervention of the Pradhan Rajinder Kumar (PW-4) and Punch Jagan Nath (PW-5). PW-1 moved an application (Ext.PW-1/A) before the Panchayat and compromise deed (Ext.PW-1/B) executed between the accused and the deceased. 3. On 11.9.1996 at about 6 p.m., Smt. Sharmila Devi poured Kerosene oil on her body and then set herself on fire. She was immediately taken to the Zonal Hospital, Dharamsala for treatment. Doctor on duty Dr. R.K.Mahajan (PW-15) sent intimation (Ext.PW-7/A) to the concerned SHO. HC Girdhari Lal (PW-13) was deputed to investigate the matter. He moved an application (Ext.PW-13/A) for recording the statement of Sharmila Devi. Dr. R.K.Mahajan after examination certified that she was fit and her statement could be recorded. HC Girdhari Lal (PW-13) telephonically requested Sub Divisional Magistrate Shri Kamlesh Panth (PW-12) to record her statement. Accordingly PW-12 recorded statement (Ext.PW-12/A) on itself. However, on 12.9.1996 another statement (Ext.PW-12/B) of the deceased was recorded. Dr. R.K.Mahajan after examination certified that she was fit and her statement could be recorded. HC Girdhari Lal (PW-13) telephonically requested Sub Divisional Magistrate Shri Kamlesh Panth (PW-12) to record her statement. Accordingly PW-12 recorded statement (Ext.PW-12/A) on itself. However, on 12.9.1996 another statement (Ext.PW-12/B) of the deceased was recorded. Statements were sent to Police Station, Dharamshala, on the basis of which FIR No. 282 (Ext.PW-16/A) dated 12.9.1996 under Section 498-A, I.P.C. was registered by ASI Avtar Singh (PW16). Thereafter ASI Avtar Singh (PW-16) moved another application (Ext.PW-11/A) before the learned Chief Judicial agistrate, Dharamsala for recording the statement of Smt. Sharmila Devi under Section 154, Cr.P.C. Application was marked to JMIC Shri Bhuvnesh Sharma (PW-11), who after visiting the hospital recorded the third statement (Ext.PW-11/B) of Smt. Sharmila Devi on 12.9.1996. PW-16 also visited the spot and prepared sketch map (Ext.PW-16/B) and took into possession a Can of kerosene oil vide memo (Ext.PW-5/A) dated 12.9.1996. Other incriminating articles found at the spot were also taken into possession. During search compromise deed (Ext.PW-1/B) was recovered near the pillow of the deceased. On 13.9.1996 at about 8.30 p.m., Smt. Sharmila Devi succumbed to his injuries. On 14.9.1996 inquest report (Ext.PW-6/C) was prepared and post-mortem conducted. Post mortem report (Ext.PW-6/B) issued by Dr. Aggarwal was taken by the police. Smt. Sharmila Devi died of 98% burn injuries. Part of investigation was carried out by H.C. Shri Onkar Singh (PW-7). SI Kishan Singh (PW-8) presented the challan in the Court. 4. Accused was charged for having committed offences punishable under Sections 498-A and 306, IPC, to which he did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined 16 witnesses. Statement of the accused under Section 313, Cr.P.C. was recorded in which he took the following defence:- “I am innocent. In the last leg of my service I constructed a new house at village Sakoh. After my retirement I asked my wife to give up the job as I want to settle down at village Sakoh in the newly constructed house. My wife was drawing Rs.300/- P.M. from her service. I have three issues. My wife give up the job, but she was not fully happy with the leaving of her job from Anganwari Dhugiari. I have no alternative then to settle at Village Sakoh for the protection of property and studies of children. My wife was drawing Rs.300/- P.M. from her service. I have three issues. My wife give up the job, but she was not fully happy with the leaving of her job from Anganwari Dhugiari. I have no alternative then to settle at Village Sakoh for the protection of property and studies of children. On 11.9.1996 in the morning hours when I was working in my fields my daughter raised alarm that her mother caught fire accidentally. On this I ran towards my house and on reaching there, I tried my best to extinguish the fire during this process I also sustained burn injuries on both of my hands to the extent of 9%. Immediately thereafter I hired a taxi and brought my wife to Z.H. Dharmshala. After extinguishing the fire I immediately informed my inlaws about the accidental fire. They also reached in Z.H. Dharmshala. On 12.9.1996, the members of my inlaws house never allowed me to meet with my wife till her death. When I admitted my wife in the hospital, she told to the doctor that while she was trying to burn the hearth and the keroscene cain (sic) which was in her hand fell down and consequently keroscene (sic) oil spread nearby the hearth, inside the hearth and also upon her clothes and resultantly she caught fire. My inlaws on the instigation of their co-villagers got registered the false present case against me just to harass me. The alleged compromise is a manipulated one and just to creat (sic) a evidence against me.” 6. The Court below acquitted the accused, hence the present appeal. 7. At the threshold we may mention that while acquitting the accused, trial Court considered only two dying declarations i.e. Ext.PW-12/A and Ext.PW-12/B. There is no discussion with regard to the third dying declaration Ext.PW-11/B. 8. From the statement of Dr. Neeti Agarwal (PW-6) and post-mortem report (Ext.PW-6/B), it cannot be disputed that deceased died due to 98% burn injuries. It is also the prosecution case that deceased had set herself on fire. 9. It is a settled position of law that if there are more then one dying declarations then the Court has to scrutinize all of them to find out if each one of them pass the test of trustworthiness. It is also the prosecution case that deceased had set herself on fire. 9. It is a settled position of law that if there are more then one dying declarations then the Court has to scrutinize all of them to find out if each one of them pass the test of trustworthiness. The Court must further find whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. 10. There can be more than one dying declarations and if there is no inconsistency between them, all can be used against the accused for proving the guilt. [State of Karnataka vs. Shariff, (2003) 2 SCC 473 and (1982) 1 SCC 700, Mohanlal Gangaram Gehani vs. State of Maharashtra, (1982) 1 SCC 700. 11. This view further stands reiterated in Jaishree Anant Khandekar vs. State of Maharashtra, (2009)SCC 647, where the Apex Court was dealing with five dying declarations, which were found not to be in variation with each other. 12. But however, where there is variation in the dying declaration (two in question), the Apex Court has held that there cannot be conviction based on them [Dandu Lakshmi Reddy vs. State of A.P. (1999) 7 SCC 69 and Sanjay vs. State of Maharashtra, (2007) 9 SCC 148]. 13. Further in (2010) 6 SCC 516, Apex Court has again summarized its view in the following terms:- “The Courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in replying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such a trend will be extremely dangerous. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. The courts must bear in mind that each criminal trial is an individual aspect. If after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it a basis of conviction, even if there is no corroboration. (Emphasis supplied)” 14. In Jaishree Anant Khandekar vs. State of Maharashtra, (2009) 11 SCC 647, a comparative study of laws of various countries on the point of dying declaration was done by the Apex Court. It was held that: “17. The law relating to dying declaration is an exception to the hearsay rule. The rationale behind admissibility of a dying declaration was best expressed, not in any judgment, but in one of the soliloquies in Shakespeare’s King John, when fatally wounded Melun wails: ‘Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure ‘gainst the fire? What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?’ (See King John, Act V, Scene IV.) 18. Both Taylor and Wigmore in their treatise on Evidence took refuge to the magic of Shakespeare to illustrate the principles behind admissibility of dying declaration by quoting the above passage. 19. Among the judicial fraternity this has been best expressed, possibly by Lord Chief Justice Baron Eyre (See. R. Vs. Both Taylor and Wigmore in their treatise on Evidence took refuge to the magic of Shakespeare to illustrate the principles behind admissibility of dying declaration by quoting the above passage. 19. Among the judicial fraternity this has been best expressed, possibly by Lord Chief Justice Baron Eyre (See. R. Vs. Woodcock, (1789) 1 Lea.502, and which I quote (ER p.353): - “...That such declarations are made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that which is imposed by a positive oath in a court of justice.” 20. The test of admissibility of dying declaration is stricter in English Law than in Indian Law. Sir James Fitzjames Stephen in 1876 brought out a ‘Digest of the Law of Evidence’ and its introduction is of considerable interest even today. The author wrote that English Code of Evidence is modelled on the Indian Evidence Act of 1872. In the words of the author: “In the autumn of 1872 Lord Coleridge (then Attorney General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August, 1873, just before Parliament was prorogued. The Bill was thus never made public, though I believe it was ordered to be printed. It was drawn on the model of the Indian Evidence Act and contained a complete system of law upon the subject of evidence.” 21. In that book, Article 26 sums up the English law relating to dying declaration as under:- “Article 26. Dying Declaration as to Cause of Death . It was drawn on the model of the Indian Evidence Act and contained a complete system of law upon the subject of evidence.” 21. In that book, Article 26 sums up the English law relating to dying declaration as under:- “Article 26. Dying Declaration as to Cause of Death . - A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made.Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular.” (emphasis supplied) 22. In Section 32(1) of the Indian Evidence Act the underlined portion is not there. Instead Section 32 (1) is worded differently and which is set out: “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) When it relates to cause of death - When the statement is made by a person as to the cause of his death, or to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be he nature of the proceeding in which the cause of his death comes into question.” (emphasis supplied) 23. The Privy Council in the case of Nembhard Vs. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be he nature of the proceeding in which the cause of his death comes into question.” (emphasis supplied) 23. The Privy Council in the case of Nembhard Vs. The Queen, 1982 (1) The All England Law Reports 183 (Privy Council), while hearing an appeal from the Court of Appeal of Jamaica, made a comparison of the English Law and Indian Law by referring to the underlined portions of Section 32(1) of the Indian Evidence Act at page 187 of the report. Sir Owen Woodhouse, speaking for the Privy Council, pointed out the different statutory dispensation in Indian Law prescribing a test of admissibility of dying declaration which is distinct from a common law test in English Law. 24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one’s life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eye witness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice. American Law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the necessity principle. 25. On certainty of death, the same strict test of English Law has been applied in American Jurisprudence. The test has been variously expressed as ‘no hope of recovery’, ‘a settled expectation of death’. The core concept is that the expectation of death must be absolute and not susceptible to doubts and there should be no chance of operation of worldly motives. (See Wigmore on Evidence page 233-234). 26. This Court in Kishan Lal Vs. State of Rajasthan, AIR 1999 SC 3062, held that under English Law the credence and the relevance of the dying declaration is admissible only when the person making such statement is in hopeless condition and expecting imminent death. Justice Willes coined it as a “settled hopeless expectation of death” (R Vs. Peel, (1860) 2 F. & F. 21, which was approved by the Court of Criminal Appeal in R Vs. Perry, (1909) 2 KB 697). Justice Willes coined it as a “settled hopeless expectation of death” (R Vs. Peel, (1860) 2 F. & F. 21, which was approved by the Court of Criminal Appeal in R Vs. Perry, (1909) 2 KB 697). Under our Law, the declaration is relevant even if it is made by a person, who may or may not be under expectation of death, at the time of declaration. (See para 18,page 3066). However, the declaration must relate to any of the circumstances of the transaction which resulted in his death.” 15. In Khushal Rao vs. State of Bombay, AIR 1958 SC 22, the Apex Court has further held that:- “Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But in our opinion, it is not right in principle to do so.Though under S. 133 of the Evidence Act, it is not illegal to convict a person on the uncorro borated testimony of an accomplice, illustration (b) to S. 114 of the Act, lays down as a rule of produce based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other cases that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.” “It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as for as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the lying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” “In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities.” (Emphasis supplied) 16. The aforesaid decision came up for consideration before the Constitution Bench of the Apex Court in Harbans Singh and another vs. The State of Punjab, AIR 1962 SC 439 and after taking into account its earlier decision in Ram Nath vs. State of Madhya Pradesh, AIR 1953 SC 420, affirmed the aforesaid view. 17. In Paniben (Smt.) vs. State of Gujarat, (1992) 2 SCC 474, the Court has further reiterated and laid down the following principles:- “A dying declaration is entitled to great weight. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring-corroboration is merely a rule of prudence.” “However, since the accused has no power of cross-examination, which is essential for eliciting the truth, the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail”. “Merely because a dying declaration does not contain the details as to occurrence, it is not to be rejected. Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. But a dying declaration which suffers from infirmity cannot form the basis of conviction. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.” “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of U.P. (1976) 2 SCR 764) (AIR 1976 SC 2199). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264 : (AIR 1974 SC 332). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P., AIR 1982 SC 1021). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P., 1981 SCC (Crl) 581). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (Kake Singh v. State of M.P., AIR 1982 SC 1021). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P., 1981 SCC (Crl) 581). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617). (viii) Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505). (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State, AIR 1988 SC 912). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989 SC 1519). 17. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declarations made by the deceased Bai Kanta. This Court in Mohan Lal v. State of Maharashtra, AIR 1982 SC 839 held: “where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.” Of course, if the plurality of dying declarations could be held to be trust-worthy and reliable, they have to be accepted.” 18. However, where the prosecution version differs from the statement of deceased, dying declaration cannot be used for convicting the accused [Paniben (supra)]. 19. The aforesaid view has been reiterated in Jai Karan vs. State of Delhi (MCT), (1999) 8 SCC 161, Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165 and Mohammed Asif vs. State of Uttaranchal (2009) 11 SCC 497. 20. 19. The aforesaid view has been reiterated in Jai Karan vs. State of Delhi (MCT), (1999) 8 SCC 161, Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165 and Mohammed Asif vs. State of Uttaranchal (2009) 11 SCC 497. 20. The Constitutional Bench of the Apex Court in Laxman vs. State of Maharashtra, (2002) 6 SCC 710, while considering the conflict in Paparambaka Rosamma vs. State of A.P. (1999) 7 SCC 695 and Koli Chunilal Savji vs. State of Gujarat, (1999) 9 SCC 562, came to the conclusion that the law laid down in the latter was the correct law and simply because the Doctor has not recorded/made endorsement that the deceased was in a fit state of mind to make the statement in question, other material on record to indicate that the deceased was fully conscious and capable of making statement cannot be ignored. This view has been reiterated in Ravi and another vs. State of T.N. (2004) 10 SCC 776 and Kamalavva and another vs. State of Karnataka, (2009) 13 SCC 614. 21. In Shaik Nagoor vs. State of Andhra Pradesh represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2008) 15 SCC 471, the Apex Court held that where the Judicial Magistrate and the Police officer had given detailed description and witnesses were not cross-examined on the point of fitness of the deceased to give dying declaration plea taken by the accused that the deceased was not fit to make the statement, under the circumstances of that case, was not accepted. 22. In Maiben D/o Danabhai Tulshibai Maheria vs. State of Gujarat, (2007) 10 SCC 362, the Court was dealing with a case where death had taken place 25 days after recording of the statement of the deceased and the same was taken to be a dying declaration. 23. Further in Sohan Lal alias Sohan Singh and others vs. State of Punjab, (2003) 11 SCC 534, State of Karnataka vs. Shariff, (2003) 2 SCC 473, Dayal Singh vs. State of Maharashtra, (2007) 12 SCC 452 and Kanti Lal vs. State of Rajasthan, (2009) 12 SCC 498, it has been held that it is not necessary that dying declaration is to be recorded before the Magistrate. The same can be recorded even before or by the police official. The same can be recorded even before or by the police official. This view stands reiterated in Gulam Hussain and another vs. State of Delhi, (2000) 7 SCC 254. 24. In Mohan Lal and others vs. State of Haryana (2007) 9 SCC 151, the Court disbelieved the statement made by the wife of the accused on the ground that not only it was vague but also there was no contemporaneous documentary or other material to prove dowry demands prior to the incident. 25. In Jayabalan vs. Union Territory of Pondicherry, (2010) 1 SCC 199, the Apex Court was dealing with the case of an accused who was charged of having poured kerosene oil on his wife and then set her on fire. The accused husband was charged for having committed an offence punishable under Section 302, IPC. The accused assailed the findings of conviction on the ground that prosecution had examined only interested witnesses and also dying declaration was tutored, promoted and product of the imagination of deceased. In the proven facts of that case repelling the contention, it was held as under:- “We are of the considered view that in case where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” (Emphasis supplied) 26. In Sukanti Moharana vs. State of Orissa,(2009) 9 SCC 163, the Court was dealing with a case where the dying declaration was challenged on the ground that it did not contain thumb impression or signatures of the deceased. The challenge was repelled on the ground that medical evidence proved that the deceased was having 90% burn injuries on the thumb and therefore was in no position to sign the dying declaration. The Apex Court further reiterated its decision in Nallapati Sivaiah vs. SDO, (2007) 15 SCC 465, in the following terms:- “18. The challenge was repelled on the ground that medical evidence proved that the deceased was having 90% burn injuries on the thumb and therefore was in no position to sign the dying declaration. The Apex Court further reiterated its decision in Nallapati Sivaiah vs. SDO, (2007) 15 SCC 465, in the following terms:- “18. …This Court in more than one decision cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.” 27. This view stands reiterated in Ongole Ravikanth vs. State of Andhra Pradesh, (2009) 13 SCC 647. 28. Dying declaration need not be in the form of question and answer. Principles required to be adopted for recording the statement of deceased stand reiterated in Ram Bihari Yadav Vs. State of Bihar and others,(1998) 4 SCC 517, State of Karnataka vs. Shariff(2003) 2 SCC 473 and K.Ramachandra Reddy and another vs. The Public prosecutor, (1976) 3 SCC 618. 21 29. Applying the aforesaid principles of law, we shall deal with the three dying declarations. They read as under:- Ext.PW-12/A dated 11.9.96 “Stated that today I was lighting the fire in the hearth. Around 6 p.m., saw dust had been put into the hearth and a little bit of fire was lighting. When I was putting kerosene into the hearth from the jerry can, which was of 10 litres, suddenly left my hand and the kerosene spread over and my cloths caught fire. The fire completely engulfed me and I sustained burns all over my body. I am making this statement voluntarily and without any compulsion. Neither my husband nor anybody compelled me to change the statement. Thereafter, my husband came for my rescue and I went unconscious. I regained my consciousness after reaching the hospital. A quarrel had also taken place between me and my husband around a month back and the panchayat had sorted out the matter for compromise. My husband did not beat me up. Thereafter, my husband came for my rescue and I went unconscious. I regained my consciousness after reaching the hospital. A quarrel had also taken place between me and my husband around a month back and the panchayat had sorted out the matter for compromise. My husband did not beat me up. Ext.PW-12/B dated 12.9.96 at 11.30 a.m. Stated that my husband used to harass me regularly besides quarrelled with me. He also quarrelled with me during the night and beat up the children. Thereafter, I set myself on fire. He also used to tell me that he would give me divorce. I set myself ablaze by sprinkling the kerosene. When I set myself ablaze, my family members came over there. At the said time I was all alone in the room. I do not know who had brought me to the hospital. The family members did not say me to put the fire. My husband used to harass me hence I set myself ablaze. When I set myself ablaze, my husband was outside. He also came for my rescue. Yesterday I had made my statement voluntarily and not at anybody’s instance. Again said I did not come to know.” Ext.PW-11/B dated 12.9.96 Yesterday also quarrel took place. My husband used to harass me very much besides quarrelled with me regularly. When I insisted for a divorce, he refused for that. My husband had been harassing me for the last nine years besides used to beat up the children and myself. I set myself ablaze by sprinkling kerosene. I set myself ablaze because I was fed up with my husband. It was my husband who used to harass me and none else. He also did not give my money for expenses. I cannot put signature as my both the hands have been burnt. 30. That the accused brought the deceased to the hospital can not be disputed. He also received burn injuries. He also informed his in-laws about the incident. 31. Importantly, Dr.R.K.Mahajan (PW-15) informed the police about the incident is not in dispute. PW-7 recorded this fact in daily diary and deputed Rachhpal and Girdhari Law (PW-13) to investigate the matter. PW-13 moved application (Ext.PW-13/A) for recording statement of the deceased. PW-15 certified the patient to be fit. He also informed his in-laws about the incident. 31. Importantly, Dr.R.K.Mahajan (PW-15) informed the police about the incident is not in dispute. PW-7 recorded this fact in daily diary and deputed Rachhpal and Girdhari Law (PW-13) to investigate the matter. PW-13 moved application (Ext.PW-13/A) for recording statement of the deceased. PW-15 certified the patient to be fit. PW-13 telephonically requested the SDM Shri Kamlesh Panth (PW-12), who after recording statement (Ext.PW-12/A) of Smt. Sharmila Devi handed over the same to SHO Kishan Singh (not examined in Court). These facts emerge from the depositions of PW-15, PW-7, PW-13 and PW-12. 32. According to PW-12 at the time when he recorded the statement Dr.R.K.Verma was present. However, prosecution has not examined him. He was given up being unnecessary. Significantly there is nothing in statement (Ext.PW-12/A), which would even remotely implicate the accused with the charged offence. In fact it renders the defence version to be plausible and probable. 33. Without any reason police got another statement (Ext.PW-12/B) recorded on 12.9.1996 at about 11.30 a.m. 34. According to PW-16 he moved application (Ext.PW-11/A) before the Chief Judicial Magistrate for recording the statement of the deceased. Very same day it was marked to JMIC, Court No.1. This application was submitted on 12.9.1996 at 3.50 p.m. Importantly, in this application PW-16 does not give reference of earlier two statements. Why so, has not been explained. In fact what was the need to record the third statement. By this time FIR stood registered. There is no reference of the same in the application. On the basis of this application, PW-11 recorded statement (Ext.PW-11/B). 35. PW-11 deposes that deceased had stated that she had taken the drastic step of putting herself on fire due to the hostile and cruel attitude of the accused. She had poured kerosene oil on herself and then lit herself on fire. Only her husband was responsible for such acts. Now importantly in this statement there is no reference of the earlier two statements. This statement was recorded almost after 20 hours of the incident and without getting the certificate of fitness of the deceased from the concerned Doctor. From the depositions of Dr.R.K.Mahajan (PW-15), Dr. Neeti Aggarwal (PW-6) and Dr. Only her husband was responsible for such acts. Now importantly in this statement there is no reference of the earlier two statements. This statement was recorded almost after 20 hours of the incident and without getting the certificate of fitness of the deceased from the concerned Doctor. From the depositions of Dr.R.K.Mahajan (PW-15), Dr. Neeti Aggarwal (PW-6) and Dr. Neelam Mehta (PW-2) it is clear that no request was made before them for recording the statement of the deceased third time or that they certified the deceased fit to make her statement. PW-11 does mention that statement was recorded in the presence of Dr.A.K.Gupta. However, neither does statement (Ext.PW-11/B) bears his signature nor has he been examined in Court. Importantly PW-16 and PW-12 do not state that prior to recording of statement (Ext.PW-12/B and Ext.PW-11/A) Doctor had certified the deceased to be fit to make the statement. The same is not even signed by the Doctor. What was the need to record the same? Under what circumstances it was so recorded. Who called the SDM to record the same has not come on record. Importantly PW-12 admits that statement was written by some body else and not by him. That person has not been examined in Court. It is also for this reason that non-examination of the doctor becomes significant. He was the best person who would have elicited complete truth with regard to correctness of statement made by the deceased. 36. Importantly, as per the version of PW-1, PW-10 and PW-15 all of them were together in the hospital. They were with the deceased from the time she was admitted in the hospital till she breathed her last. Now PW-1 states that the deceased did not disclose the cause of having set herself on fire. He admits that throughout the night he remained in the room with the deceased. He is the real brother of the deceased and the deceased must have disclosed the exact events leading to the incident. No doubt he was declared hostile and cross-examined by the prosecution yet nothing incriminating her come out against the accused. 37. All three statements could not be signed by the deceased for the reason that her hands were fully burnt. At the time of recording of this statement condition of the deceased had deteriorated. Whether this statement was voluntary in nature or not is also doubtful. 38. 37. All three statements could not be signed by the deceased for the reason that her hands were fully burnt. At the time of recording of this statement condition of the deceased had deteriorated. Whether this statement was voluntary in nature or not is also doubtful. 38. Close scrutiny of all the three dying declarations would show that version of the deceased is self contradictory as also contradicted by the record. In the second dying declaration she states that accused used to threaten her of giving divorce whereas in the third dying declaration she states that she insisted for divorce, which was refused by her husband. Further in the second dying declaration she states that when she set herself on fire, her family members came there. This fact though is missing in the first and the third statement but stands contradicted by her parents who categorically state that someone informed them about the incident and when they reached the hospital accused was present there. PW-14 categorically states that he alongwith his wife and son Joginder reached the hospital. We may notice that this witness contradicts PW-1, according to whom the deceased was brought to the hospital by his brother. Now Joginder has not been examined in the Court. Why so, has not been explained. We further find that in the second and third dying declarations recorded on 12.9.1996, deceased has referred to the quarrel which took place “yesterday” and “the night” previous to date of her statement. The incident is of 10.9.1996. This itself creates doubt about the voluntary nature of the subsequent dying declarations. Further she admits that at the time when she set herself on fire, her husband was not in the room. If so then what prompted her to set herself on fire. No doubt she states that her husband used to beat her and harass her, but we find it to be vague and unspecific. In the third dying declaration she states that her husband had been beating her for the last nine years. Except for compromise (Ext.PW-1/B) there is nothing on record to corroborate this fact and compromise deed specifically does not say so. It appears that subsequent dying declarations do not disclose true and complete events which compelled the deceased to set herself on fire. The same cannot be said to inspire confidence. Except for compromise (Ext.PW-1/B) there is nothing on record to corroborate this fact and compromise deed specifically does not say so. It appears that subsequent dying declarations do not disclose true and complete events which compelled the deceased to set herself on fire. The same cannot be said to inspire confidence. We feel it unsafe to rely upon the same to convict the accused. 39. Here we may also reproduce the version given by the father of the deceased in Court:- “Thereafter about one month we received a message that Sharmila Devi is seriously ill and admitted in Z.H. Dharamshala. On receipt of information, I alongwith my wife and son Joginder reached in the Hospital. The other people had also come there. On reaching in the hospital we found Sharmila Devi in burnt condition and her condition was very critical. I tried to talk with Sharmila Devi, but she could not talk.” 40. This only shows the critical condition of the deceased rendering the dying declarations, in the absence of specific corroboration by the Doctor, to be doubtful. 41. Further PW-11 also admits that when he reached the hospital one lady relative of the deceased was sitting with her. Now according to PW-15, deceased was not in a position to talk fluently and at times would talk in low voice. This position remained till her death. In this background possibility of some of the relatives of the deceased tutoring the deceased to make the third statement implicating the accused cannot be ruled out, particularly, when prosecution has failed to prove the necessity for recording the subsequent statements. 42. Version narrated in subsequent statements is also not corroborated by the brother. He was in the hospital and undisputedly close to the deceased. On an earlier occasion he had intervened and got the matter settled between the accused and the deceased. It was quite natural for the deceased to have disclosed the cause of provocation for such a drastic step to her brother. 43. Whether the statements Ext.PW-11/B and Ext.PW-12/B were voluntarily made and as to whether the deceased was fit enough to make such a statement is not evident from the record. The first version of the deceased as recorded in Ext.PW-12/A in fact is corroborated by her own daughter (PW-9). 43. Whether the statements Ext.PW-11/B and Ext.PW-12/B were voluntarily made and as to whether the deceased was fit enough to make such a statement is not evident from the record. The first version of the deceased as recorded in Ext.PW-12/A in fact is corroborated by her own daughter (PW-9). She was declared hostile and cross-examined by the public prosecutor yet nothing could come which would even remotely link the accused with the alleged offence. According to her, while her mother was putting kerosene oil in the hearth Can slipped and her. Accused had also suffered injuries on his body which fact is admitted by PW-1, PW-6, PW-10 and PW-16. He tried to save his wife. This renders his defence to be more plausible and probable. 44. On the question of maltreatment and beatings given by the accused to the deceased statement of her close relatives needs to be examined. According to brother Shri Ajay Kumar (PW-1), accused forced the deceased to leave her job and shift to Sakoh. Further Shri Roshan Lal (PW-14) and mother Smt. Ichhiya Devi (PW-10) have reiterated this version. However, this stands contradicted by PW-16 according to whom it had come in his investigation that only after accused constructed a new house in his village the deceased left her job and started residing there. It has also come on record that after retirement from Army deceased also started living there. with his children. The husband wanted to live with the entire family in the new house. There can be nothing wrong with the same and also cannot be used as a circumstance to hold against the accused. 45. PW-1, PW-10 and PW-14 have deposed that accused used to give beatings to the deceased from the time of the marriage. However they admit that no complaint was ever lodged with any person. Parties were married for some time. Other than close relations none else have been examined to prove this fact. On this count their statements cannot be said to be absolutely convincing. 46. In any event on this point version of prosecution witnesses differ. According to PW-1 accused used to give beatings to the deceased on trifle matters. Whereas PW-10 states that accused used to give beatings for having brought insufficient dowry. He used to make dowry demand such as gold articles etc. 46. In any event on this point version of prosecution witnesses differ. According to PW-1 accused used to give beatings to the deceased on trifle matters. Whereas PW-10 states that accused used to give beatings for having brought insufficient dowry. He used to make dowry demand such as gold articles etc. On one occasion when accused gave beatings she saw injury marks on the body of the deceased. Importantly version of this witness is not supported by any other witness. Except for her vague, unspecific and solitary statement there is no other legal evidence to prove this fact. PW-14 has given yet another version. He states that accused used to give beatings to the deceased after consuming liquor which fact is not mentioned by either PW-1 or PW-10. 47. Further as per PW-1, 1½ - 2 months prior to incident deceased telephonically informed him that accused had given her beatings. He brought her back with the children. When accused visited them, deceased asked him to either give her divorce or stop beating her. When accused threatened to sell his entire property, his mother suggested that deceased be sent back to the matrimonial home. Accordingly first he took his sister to the Panchayat Ghar, Sakoh where he moved application (Ext.PW-1/A) and with the intervention of Pardhan and Up-Pradhan matter was reconciled and compromise deed (Ext.PW-1/B) signed between the accused and the deceased. Here we may notice that Pradhan Shri Rajinder Kumar (PW-4) has given a slightly different version. According to him matter was compromised in his presence. On his asking both the deceased and accused agreed not to quarrel with each other in future. Significantly he states that the deceased had been residing in village Sakoh with the accused for the last 9-10 years. He never received any complaint against the accused from anyone. He states Smt. Sharmila Devi was annoyed for the reason that accused used to ask her to look after the household affairs. 48. Be that as it may be, Ext.PW-1/B dated 6.8.1996 proves two facts (i) accused agreed not to quarrel with or beat and abuse the deceased; (ii) deceased would also not listen to the accused. She also agreed not to unnecessary quarrel with him. It is quite apparent that both had grievance against each other. However, differences were not so serious that they were not reconcilable. She also agreed not to unnecessary quarrel with him. It is quite apparent that both had grievance against each other. However, differences were not so serious that they were not reconcilable. No doubt it stands proved that accused used to give beatings to the deceased, but, in our considered view this alone would not be sufficient to prove the guilt of the accused for the charged offence. Except for dying declarations, there is nothing on record to show that after this date accused had given any beatings to the deceased or wilfully conducted himself in a manner so as to drive the deceased to commit suicide and/or harass the deceased with a view to coerce her with any unlawful demand. 49. In State of A.P. Vs. M.Madhusudhan Rao, vs. M.Madhusudhan Rao, (2008) 15 SCC 582, the Apex Court has held as under:- “It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State is attracted in the instant case, every harassment does not amount to “cruelty” within the meaning of Section 498-A, I.P.C. The definition stipulates that theharassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not ‘cruelty” and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to ‘cruelty” punishable under Section 498-A, I.P.C.” 50. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ********************************************************************