Research › Search › Judgment

Chhattisgarh High Court · body

2010 DIGILAW 23 (CHH)

KAUSHILYABAI v. STATE OF M. P.

2010-01-28

DHIRENDRA MISHRA, MANINDRA MOHAN SHRIVASTAVA

body2010
ORDER As per Hon'ble Shri Manindra Mohan Shrivastava, J.- 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 20th December, 1989 passed in S.T No.96/1989, by learned 4th Additional Sessions Judge, Durg, by which the learned trial Court after holding the appellant guilty for commission of offence under Section 302 of the IPC, has sentenced to undergo life imprisonment. 2. Case of the prosecution is that deceased Khemin Bai was married to Prakash Das, another co-accused two years before the date of incident. Appellant Kaushilya Bai, mother-in-law of the deceased used to quarrel with her and wanted to shunt her out so as to pave way for another daughter-in-law. On 2.3.1988, deceased-Khemin Bai and her mother-in-law Kaushilya Bai had gone to watch T. V. in the house of their neighbour-Halalkhor Manikpuri. After returning home, Manoj Das, brother-in-law of the deceased-Khemin Bai asked her to fetch matchbox and when she could not fetch; there was altercation of the deceased with her husband -Prakash Das. Prakash Das after quarreling and beating the deceased went away. It is said that thereafter appellant - Kaushilya Bai and Manoj Das with an intention to commit murder of Khemin Bai, locked her inside the room and Manoj Das tightly held the hands of deceased and thereafter appellantKaushilya Bai poured kerosene oil on the body and clothes of the deceased and set her on fire. While deceased was burning, Kaushilya Bai and Manoj opened the door and ran away. When deceased cried for help and came out, neighbour Hiraman Singh Thakur (P. W. 7) doused fire by pouring water on her. By that time, clothes and body of deceased - Khemin Bai were burnt. When her husband came back, she was taken to Sector -9 Bhilai Hospital. 3. It is the case of the prosecution that on application of Ex.P-12 of R.K. Rai (P.W.9) T.I. Bhilainagar, Dr. H.K. Gowardhan examined the body of the deceased and found that she was 95% burnt, whereupon, the deceased was admitted to Burn Unit. Dr. H.K. Gowardhan, Casualty Officer, informed over telephone in the Police Station -Bhilai Nagar Sector-6 which was recorded by Head Constable-Manharan Lal (P.W.2) in Rojnamcha Sanha No.219, Ex.P2A. Dehafi Nalishi, Ex.P-1A and thereafter Report, Ex.P-3 was recorded by R.K. Rai (P.W9), T.I. Bhilai Nagar at 0:35 hrs. Dr. H.K. Gowardhan, Casualty Officer, informed over telephone in the Police Station -Bhilai Nagar Sector-6 which was recorded by Head Constable-Manharan Lal (P.W.2) in Rojnamcha Sanha No.219, Ex.P2A. Dehafi Nalishi, Ex.P-1A and thereafter Report, Ex.P-3 was recorded by R.K. Rai (P.W9), T.I. Bhilai Nagar at 0:35 hrs. at zero number on 3.3.1988 alleging commission of offence under Section 302 read with Section 34 of the IPC. As the place of occurrence fell within the area of Police Station - Mohan Nagar, the case was forwarded for further action to Police Station - Mohan Nagar, upon which FIR, Ex.P-1 was registered at Crime Number 78/88 at 3:00 am. on 3.3.1988 alleging commission of offence under Section 302 read with Section 34 of the IPC. 4. Burnt injury lead to death of Khemin Bai and thereafter an inquest over the body of deceased was prepared vide Ex.P-4 by M.D. Tiwari (P.WA), T.I. P.S.-Mohan Nagar in the presence of witnesses. Vide Ex.P-5, application for autopsy, the dead body of the deceased - Khemin was sent to Main Hospital Durg, where Dr. Laxmisingh Dhillan (P.W.5), Asst. Surgeon & Dr. M.C. Jain performed postmortem on the body ofthe deceased and recorded as below in their report vide Ex.P-10. (i) Smell of kerosene. (ii) Eyes closed, mouth closed, nails cyanosed (iii) Pubic & axillary hair burnt (iv) Superficial bums present over both upper limbs, both lower limbs, in front of chest and abdomen, whole of back, over neck and lower part of the face. (v) No external injuries. (vi) Raw, red surface present at many places over both upper limbs, in front of Chet and abdomen (vii) Venesection wound present inform of left ankle joint. Further in the examination following was found: brain - congested, mucus membrane of the trachea-congested, lungs were congested. In Doctors' opinion cause of death was shock due to 90% superficial bums; death had taken place within 24 hrs. Viscera and vaginal smear slides were preserved. 5. It has also been alleged that when Khemin Bai was brought to the hospital and was found burnt, on call made, Nayab Tahsildar'& Executive Magistrate- R.K. Sharma (P.W.6) arrived in the hospital and recorded dying declaration (Ex.P-11) of the deceased Khemin Bai at 10:50 pm on 2.3.1988 in the presence of Dr. AX. Garg (P.W.8). Spot map, Ex.P-6 was prepared by M.D. Tiwari (P.WA), T.I. P.S.-Mohan Nagar. AX. Garg (P.W.8). Spot map, Ex.P-6 was prepared by M.D. Tiwari (P.WA), T.I. P.S.-Mohan Nagar. Pant and shirt allegedly smelling kerosene were seized from Manoj Das vide Ex.P-7 and Saree and blouse worn by appellant - Kaushilya Bai were also seized vide Ex.P-8. Burnt wearing apparels of deceased Khemin Bai along with bangles, matchbox, one 5 liters' plastic cane of kerosene containing ½ liter of kerosene oil, soil smelling kerosene were seized from the house of co-accused Prakash Das vide Ex.P-9 6. After usual investigation, Police filed charge sheet in the Court of Chief Judicial Magistrate First Class-Durg in Criminal Case No. 1326/1988 which in tum was committed to the Court of Sessions, Durg for trial, from where learned 4th Additional Sessions Judge, Durg received the same for disposal in accordance with law. 7. Learned trial Court framed chares against the present appellant Kaushilya Bai and other accused person- Prakash Das for alleged commission of offence under Section 302 read with Section 34 of the IPC. Accused persons abjured their guilt. They were put on trial and in order to bring home the guilt, the prosecution examined in all 9 witnesses. Statements of accused persons were recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence. 8. The learned trial Court relying upon the testimony of prosecution witnesses and placing reliance upon the dying declaration, Ex.P-11, held the appellant guilty of commission of offence under Section 302, though acquitted co accused Praksh Das, husband of the deceased. 9. Assailing the judgment of conviction and sentence, learned counsel for the appellant argued that the appellant has been falsely implicated in the crime in question. He contended that the deceased was brought to hospital by her husband and which conduct sides with the innocence of the appellant. He further submits that the learned trial Court has committed gross illegality in convicting the appellant relying upon the dying declaration which does not inspire confidence and ought not to have been relied upon as there was no medical certificate to establish that she was in a fit state of mind when the so called dying declaration was allegedly recorded. Even her thumb impression was not taken on the dying declaration. He further submits that Dr. Even her thumb impression was not taken on the dying declaration. He further submits that Dr. H.K. Gowardhan, who examined the deceased upon being brought to the hospital, has not been examined nor was present at the time of recording of dying declaration. He submits that the learned trial Court while placing heavy reliance on the dying declaration failed to see that the same was not proved by R.K. Sharma (P.W.6), Executive Magistrate who only stated in his testimony that the statement was recorded, without disclosing contents of the so called dying declaration. He further submits that the time mentioned in the so called dying declaration being 10:50 pm. renders entire dying declaration doubtful. Further submission made by learned counsel for the appellant to impeach credibility of the dying declaration is that the said dying declaration nowhere records that the deceased was in a fit state of mind and that officer recording dying declaration did not put any question to the deceased as to whether she was in a position to give statement. He further submits that the entire case of the prosecution is concocted. The conviction on the basis of so called dying declaration, Ex.P-11, is W1sustainable as in her oral dying declaration given by the deceased to her neighbour - Hiraman Singh Thakur (P. W. 7) who came and extinguished fire, deceased disclosed to him that as kerosene oil fell on her, she caught burnt in the fire of Sigdi. According-to him the oral dying declaration being completely inconsistent with the so called dying declaration of Ex.P-11 alleged to have been recorded by R.K. Sharma (P. W.6), the entire case of the prosecution becomes highly doubtful and the appellant could not be convicted on the basis of such doubtful case when there are two inconsistent dying declarations. 10. On the other hand, learned counsel for the State/respondent supported the judgment of conviction sand sentence and argued that the conviction of the appellant is based on dying declaration, Ex.P-11, which was dully recorded and from the established facts and circumstances of the case the prosecution has been able to prove that the deceased Khemin Bai was set on fire by the appellant Kaushilya Bai, her mother-in-law and there is no reason nor any circumstance to doubt the authenticity of dying declaration (Ex.P-11) and therefore the conviction of the appellant by the learned trial Court does not warrant interference. 11. 11. We have given our anxious consideration to lengthy submission made by the respective parties and we have perused the records of the case and the judgment of the learned trial Court. 12. Apparently, the case of the prosecution as also the judgment of conviction and sentence is based on the dying declaration. It is said that when the deceased was brought to the Sector-9 Bhilai Hospital under burnt condition by her husband Prakash, co-accused (who has been acquitted of the charges), she was examined by one Dr. H.K. Gowardhan who allegedly informed in the Police Station- Bhilai Nagar and Manharlal (P.W.2) recorded Rojnamcha Sanha No.219, whereupon, R.K. Rai, (P.W.9), T.I. Bhilainagar proceeded to Sector-9 Hospital, Bhilai and recorded Dehati Nalishi, Ex.P1-A at 22:20 hrs. in hospital followed by dying declaration recorded by R.K. Sharma (P.W.6) Executive Magistrate. It has therefore to be seen whether the conviction of the appellant based on above said dying declarations is sustainable in law. 13. In the matter of Heikrujam Chaoha Singh Vs. State of Manipur1, the Apex Court while considering the reliability of an oral dying declaration held thus: 1. 1999(4) Crimes 327 (SC) "An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability." 14. In the matter of Muthu Kutty and another Vs. State by Inspector of Police, T.N2 the Apex Court held that: 2. (2005) 9 SCC 113 "The law regarding dying declaration is that it is an exception to the general rule against hearsay evidence elaborated in Section 60 of the Evidence Act, 1872. In the matter of Muthu Kutty and another Vs. State by Inspector of Police, T.N2 the Apex Court held that: 2. (2005) 9 SCC 113 "The law regarding dying declaration is that it is an exception to the general rule against hearsay evidence elaborated in Section 60 of the Evidence Act, 1872. The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "nemo morturus praesumitur mentire- a man will not meet his maker with a lie in his mouth." Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. The Apex Court held that though a dying declaration is entitled to great weight, it must be kept in mind that the accused has no power of cross-examination. Such a power is essential for eliciting the truth. This is the reason the courts also insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or 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 assailant. Once the court is satisfied that the declaration was the and voluntary, undoubtedly, it can base its conviction without any further corroboration. The Apex Court said that it cannot be laid down as an absolute rule of law that the dying declaration cannot fom1 the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence." 15. In the case of Laxman Vs. State of Maharashtra3, while resolving the conflict of opinion as to the manner of testing the credibility of dying declaration. overruling view taken in Paparambaka Rosamma Vs. State of A.P4, am approving the correctness of the view taken in Koli Chunilal Savji and Am: Vs. State of Gujarat5, it ,vas authoritatively pronounced as under 3. 2002(6) SCC 710 4. 1999(7) SCC 695 5. overruling view taken in Paparambaka Rosamma Vs. State of A.P4, am approving the correctness of the view taken in Koli Chunilal Savji and Am: Vs. State of Gujarat5, it ,vas authoritatively pronounced as under 3. 2002(6) SCC 710 4. 1999(7) SCC 695 5. 1999(9) SCC 562 "The juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts 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, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion 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. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a 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 even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise." 16. Recently, in the case of Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur, A.P6, Apex Court held as under: "20...... It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically - to make such statement. 21. In Smt. Paniben Vs. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically - to make such statement. 21. In Smt. Paniben Vs. State of Gujarat, (1992) 2 SCC 474 this court while stating that a dying declaration is entitled to great weight however cautioned to note that the accused has no power to cross-examination. "Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that 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. Once the Court is satisfied that the declaration was the 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Munnu Raja Vs. State of MP) (1976) 3 SCC 104: 1976 SCC (Cri.) 376: (1976) 2 SCR 764. (ii) If the Court is satisfied that the drying declaration is true all voluntary it can base conviction on it, without corroboration. (State of U.P Vs. Ram Sagar Yadav) (1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416; Ramavati Devi Vs. State of Bihar (1983) 1 SCC 211 : 1983 SCC (Cri) 169: 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. State of Bihar (1983) 1 SCC 211 : 1983 SCC (Cri) 169: 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. (K. Ramchandra Reddy V:S. Public Prosecutor) (1976) 3 SCC 618: 1976 SCC (Cri) 473: AIR 1976 SC 1994. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg Vs. State of M.P) (1974) 4 SCC 264 : 1974 SCC (Cri) 426. (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 Vs. State of MP) 1981 Supp. SCC 25: 1981 SCC (Cri.) 645 : AIR 1982 SC 1021. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath Vs. State of U.P)(1981) 2 SCC 654: 1981 SCC (Cri) 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 Vs. Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 : 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 Vs. State of Bihar) 1980 Supp. SCC 769 : 1979 SCC (Cri) 519: 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 and Anr. Vs. State of MP) 1988 Supp. SCC 152: 1988 SCC (Cri) 342: 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 Vs. Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519." 17. The judgment of Constitution Bench of the Apex Court in the matter of Laxman Vs. (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 Vs. Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519." 17. The judgment of Constitution Bench of the Apex Court in the matter of Laxman Vs. State ofJl,!aharc:stra3 (supra) was explained as under: "The Constitution Bench in its authoritative pronouncement declared that there is no requirement of law that dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when a dying declaration was recorded by a Magistrate. It is the testimony of the Magistrate that the declarant was fit to make the statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor provided the court ultimately holds the same to be voluntary and truthful. The judgment does not lay down a proposition that medical evidence, even if available on record, as also the other attending circumstances should altogether be ignored and kept out of consideration to assess the evidentiary value of a dying declaration whenever it is recorded by a Magistrate. The Constitution Bench resolved the difference of opinion between the decisions expressed by the two Benches of three learned Judges in Paparambaka Rosamma and ors. Vs. State of A.P. and Koli Chunilal Savji and anr. Vs. State of Gujarat (Supra) and accordingly held that there is no requirement of law that there should be always a medical certification that the injured was in a fit state of mind at the time of making a declaration and such certification by the doctor is essentially a rule of caution and even in the absence of such a certification the voluntary and truthful nature of the declaration can be established otherwise." 18. Applying the aforesaid principles laid down by the Hon'ble the Supreme Court in its various judgments quoted above, it has to be examined whether the prosecution has been able to prove its case on the basis of dying declaration beyond reasonable doubt. 19. Hirarnan Singh Thakur (P.W.7) has been cited as a witness by the prosecution. His testimony assumes importance for the reason that he is the next door neibhbour and had arrived immediately at the place of incident. 19. Hirarnan Singh Thakur (P.W.7) has been cited as a witness by the prosecution. His testimony assumes importance for the reason that he is the next door neibhbour and had arrived immediately at the place of incident. In his testimony he has deposed that one or two days before the last year's Holi, he was watching T.V. in the nouse of one Manikpuri, his neibhbour, who is also neibhbour of Prakash, husband of deceased. He further deposes that when he came back to his house and reached at the doorstep he heard cries of help upon which he rushed to the house of deceased Khemin Bai and found that she was burnt and he douse~ fire by pouring water kept in a bouquet. Thereafter deceased asked him to give water and enquired about her child and also requested to take her to hospital. By that time, number of persons had gathered on the spot and one of them took her to hospital. Parents of the deceased-Khemin Bai at Dipra Para were also called. In his cross-examination he stated that he had gone to watch Chitrahar in T.V. in the house of Manikpuri. Both appellant-Kaushilya and deceased-Khemin Bai had also come to watch T.V. Khemin Bai got up earlier and went home. Kaushilya Bai kept sitting in the house of Manikpuri till Chitrahar was over. He further deposes that when he heard cries for help and reached at the door of the house of Khemin Bai, he did not see Kaushilya Bai nor accused- Prakash and Manoj. He saw Khemin Bai burning inside the house whereupon he poured water and then Kaushilya Bai, Prakash and Manoj arrived at the spot. He also states that Sigdi was in ignited condition. He doused fire and thereafter deceased asked for water and enquired about her child. When he asked as to how she received bum injuries, she did not say anything nor named anyone and when number of persons were present and asked her as to how she received injuries, she told that she got burnt by Sigdi. He further stated that when he caught hold of deceased, kerosene oil was smelling from her body and upon being asked she said that kerosene oil fell on her clothes and it caught fire from Sigdi. He has not been declared hostile nor has been subjected to any reexamination by the prosecution. He further stated that when he caught hold of deceased, kerosene oil was smelling from her body and upon being asked she said that kerosene oil fell on her clothes and it caught fire from Sigdi. He has not been declared hostile nor has been subjected to any reexamination by the prosecution. His presence at the spot seems quite natural, being next door neighbour. There is nothing in his examination which impeaches his credibility. No contradictions. omissions have been pointed out. He is not related to either of the parties. It has to be kept in mind that this witness (P. W. 7) is the person who has deposed regarding the first immediate version of deceased after she received burnt injuries. 20. The prosecution has come out with a case that when deceased was taken to Sector-9Bhilai Hospital by her husband, she was medically examined by Dr. H.K. Gowardhan and prosecution has placed on record a report prepared by Dr. H.K. Gowardhan as EX.P-12. However, Dr. Gowardhan has not been examined. The said document (Ex.P-12) contains the result of examination as also story of the prosecution that deceased was set on fire by pouring kerosene oil over her by her mother-in-law (appellant) and at that time her husband was not at home. One Dr. B. P. Panda is also said to be present there when this was recorded by Dr. H.K. Gowardhan, however neither Dr. Gowardhan nor B.P. Panda have been examined by the prosecution. 21. The case of the prosecution is that when the deceased was brought to the hospital she was found 95 % burnt. The doctor who examined deceased Khemin Bai at 9: 3 5 could have been the natural witness to depose regarding the fitness of mind of the deceased, who admittedly has not been examined by the prosecution. In view of the case of the prosecution itself when the deceased was 95% burnt, the question whether the deceased was in a fit state of mind while giving dying declaration assumes great significance particularly when the said statement is said to have been recorded firstly by R.K. Rai (P. W. 9) T.I. in the hospital at 22:20 hrs and later on by the Executive Magistrate which cOl1cluded at 22:50 hrs. 22. 22. Prosecution has relied upon Dehati Nalishi, EX.P1 A said to have been recorded by R.K. Rai (P. W. 9), T.I. Bhilainagar who said that he recorded the statement of the deceased at 22:20 hrs. and obtained her thumb impressions on the basis of which report Ex.P-3 is said to have been recorded by him at 0:35 hrs. on 3.3.1998. It is nowhere recorded in Dehati Nalishi (Ex.P1A) that any inquiry was made by him from the deceased with regard to fitness of her condition nor it is recorded anywhere that he was satisfied from the report of doctor that she was in a fit state of mind to give such dying declaration. In his deposition in the Court, he has not stated anything about the fitness of mind of the deceased nor does say that it was recorded by him in the presence of treating doctor. Dr. H.K. Gowardhan and Dr. B.P. Panda who had examined the deceased when she was brought to the hospital. Report of Ex.P-12 shows that the deceased was directed to be admitted in the Burnt Unit under information to Dr. M.L. Jain but RK. Rai (P.W.-9) nowhere deposes that before recording alleged dying declaration, he either obtained any medical certificate regarding fitness or made any other inquiry to satisfy himself with regard to the fitness of the deceased. He neither deposes regarding the presence of Dr. H.K. Gowardhan nor Dr. B.P. Banda nor Dr. M.L. Jain. 23. RK. Sharma (P.W.6) Nayab Tahsildar & Executive Magistrate is said to have been recorded the dying declaration and the prosecution has placed heavy reliance upon the same to bring home the guilt of the appellant. In his testimony, he deposes that he had gone to record statement of deceased Khemin Bai in the emergency ward and at that time Dr. A.K. Garg (P.W.8) was present, in whose presence he recorded the dying declaration. He says that he recorded dying declaration in question-answer forms and further says that while he was taking her statement she was in a fit state of mind and was properly answering to queries. He further says that her declaration was read over to her and then again signed it. However he does not spell out as to what was recorded by him, although he says that he recorded the dying declaration without stating as to what statement was recorded by him. He further says that her declaration was read over to her and then again signed it. However he does not spell out as to what was recorded by him, although he says that he recorded the dying declaration without stating as to what statement was recorded by him. Moreover, he is unable to state as to on what basis, he came to conclusion that the deceased-Khemin Bai while giving her dying declaration was in a fit state of mind. In his cross-examination he deposed that the sub-inspector had come to take him to hospital at about 9:00 to 9: 15 and he reached hospital in 15-20 minute This shows that he reached hospital between 9:30 to 9:45 pm. The case of the prosecution is that Dr. H.K. Gowardhan first medically examined the deceased at 9:35 which was informed in the police station at 9:45 i.e. the time of arrival of R.K. Sharma (P.W.6), Executive Magistrate. Recording of dying declaration by T.I. RK. Rai (P. W. 9) at 22:20 hrs appears to be doubtful. It is quite unusual that the Executive Magistrate having reached to the hospital in the emergency ward at 9:30 to 9:50 no statement was recorded by him and instead after about 30 - 35 minutes, the police inspector alleged to have recorded the dying dedication in which neither the Magistrate nor the doctor who carried the medical examination were said to be present. He further stated in his testimony that Dr. A.K. Garg informed that deceased is conscious and her statement can be recorded. 24. Dr. A. K. Garg (P.W.8) in his testimony has stated that the dying declaration of the deceased was recorded by the Executive magistrate in his presence therefore, he was of the opinion that the deceased was in a fit state of mind. He nowhere says that he was treating the deceased or had taken her over from Dr. H.K. Goverdhan or from Dr. M.L. Jain to whom the deceased was referred for examination, treatment or care. He does not even say that he informed the Executive Magistrate that Khemin Bai was in fit state of mind. While admitting that the deceased was 95 % burnt, no evidence has been brought on record by the prosecution as to how Dr. A.K. Garg entered into the scene replacing Dr. H.K. Gowardhan, Dr. B.P. Panda and Dr. He does not even say that he informed the Executive Magistrate that Khemin Bai was in fit state of mind. While admitting that the deceased was 95 % burnt, no evidence has been brought on record by the prosecution as to how Dr. A.K. Garg entered into the scene replacing Dr. H.K. Gowardhan, Dr. B.P. Panda and Dr. M.L. Jain to whom the deceased was referred in Burnt Unit. Dr. A.K. Garg in his testimony nowhere states that he examined the deceased in any manner or asked her as to whether she was in a fit state of mind. The so called dying declaration contains an endorsement of Dr. A.K. Garg that it was recorded in his presence. However in that endorsement, there is no mention that any inquiry was made from the deceased with regard to fitness of her mind or any other medical examination like checking of pulse, blood pressure etc. was done by the said doctor. In fact, there is no endorsement to the effect that while the question was being put by R.K. Sharma (P. W.6) Executive Magistrate, she was in a fit state of mind. While R.K. Sharma (P. W.6) says that as Dr. A.K. Garg was present he assumed that the deceased was in a fit state of mind, Dr. Garg says that as R.K. Sharma, Ex. Magistrate recorded dying declaration, he told that the deceased was in a fit state of mind. Both of them have not stated in the Court in their depositions as to what dying declaration was given by deceased. They have only stated that deceased gave some dying declaration without stating the contents thereof in the Court. 25. R.K. Sharma (P. W.6) in his cross-examination clearly admitted that he did not put any question to the deceased with regard to her mental state. He states that he has earlier taken numbers of dying declaration and it is not necessary that any question with regard to fitness is to be put to the person whose dying declaration is being recorded. Of his own, he says that 'we enquire from the doctor as to whether the person is in fit state of mind to give declaration or not'. Of his own, he says that 'we enquire from the doctor as to whether the person is in fit state of mind to give declaration or not'. Having said so there is nothing in his testimony to show that he made any inquiry from the doctor to satisfy himself with regard to fit state of mind of the deceased, though according to him, Dr. Garg was present. It is also quite unusual and raises serious doubt inasmuch as RK. Sharma (P. W.6), Executive Magistrate who stated that he had arrived in the hospital between 9:30 to 9:40 pm. and while the dying declaration was completed it was 10:50 pm and he started taking statement 30 minutes before i.e. 10:20 pm. 26. From the above examination of the testimony of witnesses and fact and circumstances, there appears to be material inconsistency in the statements of prosecution witnesses regarding dying declaration of the deceased. The prosecution failed to bring anything so as to impeach the soundness of credibility and deposition of Hiram an Singh Thakur (P. W. 7). Further, manner in which the prosecution has come out with the case of recording of dying declaration by RK. Rai (P. W.9) T.I, Bhilai Nagar said to be followed by recording of dying declaration by RK. Shanna (P. W.6), Executive Magistrate as has been discussed above makes the case of the prosecution highly doubtful. Non-examination of Dr. H.K. Gowardhan, who first examined the deceased in the hospital, Dr. B.P. Panda in whose presence said examination was held and Dr. M.L. Jain to whom the case was handed over in Bum Unit darkens the cloud over the truthfulness of the alleged dying declaration of the deceased alleged to have been recorded by R.K. Rai (P.w.9) T.I. Bhilainagar and RK. Sharma (P.W.6), Executive Magistrate. The very presence of the appellant at the time when the deceased caught fire becomes doubtful as Hiraman Singh Thakur (P.W.7) has said that while deceased Khemin Bai left for her home, appellant kept sitting in the house of Manikpuri for watching Chitrahar and it is only when deceased cried for help he approached, doused fire by pouring water that appellant Kaushilya and Manoj arrived at the spot after some time. 27. 27. Case of the prosecution becomes further doubtful because of a very implant circumstance that in spite the doctor who examined the deceased and other doctor who were present and whom the case was made over in Burn Unit are not said to be present at the time of recording of alleged dying declaration and altogether new doctor i.e. Dr. Garg who did not examine the deceased is said to be present. There is no evidence led by the production to show that he either inquired from the deceased regarding her fitness of mind or carried any medical exan1ination whatsoever on the person of the deceased when RK. Sharma (P. W.6) Executive Magistrate allegedly recorded dying declaration. The dying declaration alleged to have been recorded by R.K. Rai (P. W.9) T.I. without any inquiry from the doctor regarding fitness of the deceased who had just examined the deceased also raises serious doubt. 28. In the matter of Mehiboobsab Abbasabi Nadal Vs. Slate of Karnataka7 while examining the correctness of judgment of conviction based on dying declaration, it was held as under: 7. 2008(1) Cr.C.P. (SC) 34 "Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant Factor for placing full reliance thereupon. In this case the deceased her self had taken contradiction and inconsistent stand in different dying declarations. They therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied." 29. In the matter of P. Mani Vs. State of Tamil Nadu8, the Supreme Court observed as under 8. AIR 2006 SC 1319 "14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard 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 regard 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 records 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 thereof The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused." 15. We are, therefore, of the opinion that it is a fit case where the Appellant is entitled to the benefit of doubt. The impugned judgments are set aside. The appeal is accordingly allowed." 30. In the case of Nallapati Sivaiah Vs. Sub-Divisional Officer6 (supra) Supreme Court while examining the dying declaration undertook the objective and critical assessment of the material on record and in para 11 & 12 of the judgment it was recorded as under "11. An objective and critical assessment of the material available on record discloses that recording of dying declarations commenced immediately after the victim was taken to the hospital right from 6.00 p.m. onwards and went on till 7.10 p.m. It means the victim was speaking coherently right from 6.00 p.m. to 7.10 p.m. on 05.01.1998. An objective and critical assessment of the material available on record discloses that recording of dying declarations commenced immediately after the victim was taken to the hospital right from 6.00 p.m. onwards and went on till 7.10 p.m. It means the victim was speaking coherently right from 6.00 p.m. to 7.10 p.m. on 05.01.1998. It is not known as to what was the treatment administered to the victim immediately after he was brought to the hospital. No explanation is forthcoming as to why duty doctor at Casualty was not examined. There is no evidence of treatment if any given to the victim except the routine and mechanical endorsement that patient was conscious and coherent and fit to give statement. 12. Be it noted that there is no evidence by any of the doctor as to when the deceased succumbed to the injuries except that he was found dead at 9.30 p.m., that is to say, within two hours from the time of recording of Ex.P-8 Dying Declaration." The Supreme Court further observed with regard to evidentiary value of dying decoration under: "14. There is a historical and a literary basis for recognition of dying declaration as an exception to the Hearsay Rule. Some authorities suggest the rule is of Shakespearian origin. 15. In "The Life and Death of King John", Shakespeare has Lord Melun utter what a "hideous death within my view, retaining but a quantity of life, which bleeds away, lost the use of all deceit" and asked, "Why should I then be false, since it is true' that I must die here and live hence by truth?" William Shakespeare, The Life and Death of King John act. 5, sc.2, lines 22-29." 16. In passing upon admissibility of an alleged dying declaration, all attendant circumstances should be considered, including weapon which injured the victim, nature and extent of injuries, victim's physical condition, his conduct, and what was said to and by him. 17. This Court has consistently taken the view that where a proper and sufficient predicate has been established for the admission of a statement under dying declaration, Hearsay exception is a mixed question of fact and law. 18. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. 17. This Court has consistently taken the view that where a proper and sufficient predicate has been established for the admission of a statement under dying declaration, Hearsay exception is a mixed question of fact and law. 18. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. 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 tit 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." Further in the same judgment, it was observed as under: "22. In the circumstances this court came to the conclusion that the Magistrate committed a serious irregularity in "not putting a direct question to the injured whether he was capable mentally to make any statement." It has been observed that even though the deceased might have been conscious in the strict sense of the term, "there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make statement regarding the occurrence." The certificate issued by the doctor that the deceased was in a fit state of mind to make statement by itself would not be sufficient to dispel the doubts created by the circumstances and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured. 23. In the case in hand before the actual recording of Ex.P-8 dying declaration, the Magistrate (P. W. 7) did not seek and obtain any opinion and a certificate or endorsement from the duty doctor as to the physical and mental condition of the declarant to give statement. 23. In the case in hand before the actual recording of Ex.P-8 dying declaration, the Magistrate (P. W. 7) did not seek and obtain any opinion and a certificate or endorsement from the duty doctor as to the physical and mental condition of the declarant to give statement. The Magistrate did not put any question as to whether the declarant was making a voluntary statement and whether he was in a fit condition to make the statement and whether any sedatives had been administered." 31. In the present case, Dr. H.K. Gowardhan, who had examined the deceased, Dr. B.P. Panda in whose presence the examination taken place and Dr. M.L. Jain, to whom the case was referred in the Burnt Unit were not examined, whereas Dr. AX. Garg, who is alleged to be present at the time of dying declaration nowhere states that he examined the deceased, put any question to her regarding fit state of her mind much less any certificate by anyone of them. True it is that there is no invariable rule that in the absence of a certificate, the deceased dying declaration cannot be believed, the Supreme Court in its judgment in the case of Nallapati Sivaiah Vs. Sub-Divisional Officer6 (supra). 32. While explaining its own judgment in the case of Laxman Vs. State of Maharashtra3 (supra) it was observed in para 33,39 and 40 as under: "33. . . . . . . It is the duty of the prosecution to establish the charge against the accused beyond reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declarations a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. 39. The Dying Declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a Dying Declaration depends upon not only the testimony of the person recording Dying Declaration be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at proper conclusion. The evidence and the material available on record must be properly weighed in each case to arrive at proper conclusion. The court must satisfy to itself that the person making the Dying Declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration. 40. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. In such cases, the court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence. " 33. We are therefore, conclude to hold that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and the appellant is therefore entitled to benefit of doubt. We therefore allow the appeal and set aside the impugned judgment of conviction and sentence and acquit appellant Kaushilyabai of the charges leveled against her. As the appellant is on bail, therefore her bail bonds stand discharged forthwith. She need not surrender. Appeal Allowed.