Judgment Kanwaljit Singh Ahluwalia, J. 1 Rajesh, appellant, was married with Sunita, deceased, on 26.6.2000, as per Hindu rites and ceremonies. 2 This is an unusual case. 3 In the occurrence, mother-in-law Luxmi, father-in-law Kehar Singh and husband-appellant Rajesh suffered fire burn injuries. Due to fire burn injuries, deceased Sunita and mother-in-law Luxmi died. The husband suffered 20% fire burns, whereas father-in-law Kehar Singh suffered 10% fire burns. During investigation, father-in-law was kept in column No. 2 and an application filed to summon him under Section 319 Cr.P.C. was dismissed. 4 The appellant was tried along with his sister Krishna and her husband Rajbir. Rajbir and Krishna have been acquitted of the charges. 5 Two dying declarations of Sunita, deceased, were recorded separately by two different Judicial Magistrates Ist Class. First dying declaration, so recorded, absolved the accused. Second dying declaration incriminated the accused. The trial Court had relied upon first dying declaration partially, to record acquittal of Krishna and Rajbir, but has ignored the same qua the present appellant and relied upon subsequent dying declaration. First dying declaration recorded by the Judicial Magistrate Ist Class was withheld from the Court and defence had to prove the same by examining the witnesses to this effect. 6 The appellant has been held guilty of offence under Section 304-B vide impugned judgment dated 24.5.2008. A separate order of sentence was passed on 26.5.2008 and the appellant was sentenced to undergo rigorous imprisonment for seven years. His co-accused Krishna and Rajbir were acquitted of the charges. 7 Aggrieved against his conviction and sentence, the appellant has directed the present appeal against the impugned judgment of conviction and order of sentence. 8 The facts and issues , which are necessary for decision of the case can be extracted in sequence from the prosecution evidence and narrated as under :- Casuality Medical Officer on Duty at Maharaja Agrasen Institute of Medical Research and Education, Agroha, on 11.7.2003 at 10.15 A.M., Vide Ex.P40, informed the Incharge, Police Station, Agroha, regarding admission of Sunita, Luxmi, Kehar Singh and Rajesh in the hospital. Ruqa Ex.P40 was sent by Dr. Rajiv Chauhan PW.15, Incharge, Department of Accident and Emergency, Medical College, Agroha. This witness stated that on 11.7.2003 at 10.15 A.M., he medicolegally examined patient Sunita wife of Rajesh, aged 25 years. Ruqa Ex.P40 was sent by Dr. Rajiv Chauhan PW.15, Incharge, Department of Accident and Emergency, Medical College, Agroha. This witness stated that on 11.7.2003 at 10.15 A.M., he medicolegally examined patient Sunita wife of Rajesh, aged 25 years. The observations in medicolegal examination conducted by the doctor are noticed as under:- "On examination general condition of the patient was conscious. B.P. 110/70 MMHG. Pulse 88 per minute, temperature was normal, chest bilateral air entry decrease. C.V.S. NAD. Abdomen was soft. Area of burn was:- 1. Head, face, lower part of the chest. 2. Both hands, whole of back. 3. Whole abdomen and both hips. 4. Both lower limbs. All the injuries were kept under observation and within two hours and the burns were approximately 90%. The copy of MLR is Ex.P36". 9 Dr.. Rajiv Chauhan PW.15 also examined Sunita, Rajesh and Kehar Singh. 10 On the same day, Luxmi, mother-in-law of Sunita was also brought in the hospital and on her medicolegal examination, it was found that she had received burns on the head, face, chest, abdomen, right upper limb, left forearm, left lower limb and right anterior thigh. The burns were approximately 60%. 11 On the same date and time, Rajesh, husband of Sunita was also medicolegally examined. He had received burns of left dorsum of hand, elbow, left face, left leg and left leg lower part. The area of burns was approximately 20%. 12 On the same date and time PW.15 Dr. Rajiv Chauhan also medicolegally examined Kehar Singh son of Sukh Ram and found burns over left hand and anterior left leg in middle. The area of burns was 10% approximately. 13 In cross-examination, PW.15 Dr. Rajiv Chauhan stated that the burn injuries on the persons of Kehar Singh and Rajesh were possible while extinguishing the fire. It was further stated that in the Medicolegal Report, there is no mention regarding smell of kerosene oil from the injuries and clothes of Luxmi and Sunita. This witness further stated that possibility of burns on the person of Sunita with Liquified Petroleum Gas cannot be ruled out. 14 On 11.7.2003, Rajpal, Assistant Sub Inspector, DW.3, was posted at Police Station Agroha. On receipt of ruqa Ex.P40, he went to Medical College, Agroha. This witness further stated that possibility of burns on the person of Sunita with Liquified Petroleum Gas cannot be ruled out. 14 On 11.7.2003, Rajpal, Assistant Sub Inspector, DW.3, was posted at Police Station Agroha. On receipt of ruqa Ex.P40, he went to Medical College, Agroha. Thereafter, he came to Hisar and moved an application Ex.D2 before the Duty Magistrate Smt. Ashu Sanjiv Tinjan, Judicial Magistrate Ist Class, Hisar, for recording the statement of Sunita. Before recording the statement of Sunita, opinion of the doctor regarding fitness of Sunita was sought vide application Ex.D3. The doctor, vide Ex.D9, declared the patient fit to make statement. On 11.7.2003 at 4.50 P.M., Smt. Ashu Sanjiv Tinjan, Judicial Magistrate Ist Class, Hisar, recorded statement of Sunita Ex.D5, which can be termed as dying declaration. Before recording the dying declaration, the Duty Magistrate DW.2 had recorded a note Ex.D4, which reads as under :- "Present Raj Pal ASI P.S. Agroha Sunita w/o Rajesh is admitted in Medical College Agroha. She is identified by Sh. Raj Pal ASI. An application is received for recording statement of Smt. Sunita w/o Rajesh u/s 164 Cr.P.C. She has 90% of burns on her body. I have put some questions of very general nature to Sunita. I am fully satisfied that she wants to make her statement voluntarily & that she is not under pressure or duress for making her statement. Her medical condition has been stated as fit for making - statement by concerned doctor. I have asked all the police officials and other persons to vacate the room and none is present in the room now. Since, I am satisfied that Smt. Sunita wants to make the statement voluntarily. Therefore, I proceed to record down her statement as under". 15 Thereafter, dying declaration of Sunita Ex.D5 was recorded, the same, when translated into English, reads as under :- "Smt. Sunita w/o Rajesh, age 24 yrs, house wife R/o Siwani on SA. Stated that I have been brought to hospital by - my mother-in-law, father-in-law, husband and neighbourers. It had rained yesterday evening and today morning. The firewood to be burnt in the oven (earthen) had become humid. The cylinder was already leaking. I do not smell odour. I switched on the gas stove. My chunni caught fire. My mother-in-law was standing in the door. It had rained yesterday evening and today morning. The firewood to be burnt in the oven (earthen) had become humid. The cylinder was already leaking. I do not smell odour. I switched on the gas stove. My chunni caught fire. My mother-in-law was standing in the door. I ran, then my mother-in-law, for extinguishing the fire, came forward and also caught fire. My husband made an attempt to extinguish the fire and also received fire burn injuries. My father-in-law came forward to put blanket and also received fire burn injuries. Then we all fell down and our neighbourers took care of us. Question:Do you want to say anything else? Answer: No. R.O. & AC. Sd/-D/JMIC, 11.7.03 RTI Sunita 4.50 P.M." 16 DW.4 Dr. Ashok Kumar also furnished certificate Ex.D6 which stated as under :- "Certified that she is fit during making statement. Sd/- Dr. Ashok Kumar" After recording of the dying declaration, the Judicial Magistrate Ist Class, appended certificate Ex.D7, which read.as under :- "I have explained to Smt. Sunita w/o Rajesh that she is not bound to make confession & that if she does so, any confession, she make may be used as evidence against her & I believe that this confession was voluntarily made. It was taken by me & was read over to her & admitted by her to be correct & it contain a full & true account of the statement made by her. Carbon/certified copy of this statement given to Raj Pal, ASI P.S. Agroha on request. Statement be sealed & sent to ACJM Hisar for issuing appropriate order. Sd/-Ashu S. Tinjan D/JMIC/Hisar 11.7.03" 17 PW.13 Dr. Rajat Soni, from Soni Burns Hospital, Hisar, stated that on 11.7.2003, Sunita wife of Rajesh, aged 25 years, was admitted in his hospital with 85% burns. On 15.7.2003, vide Ex.P7, he declared Sunita fit to make statement. In pursuance of the fitness certificate given by this doctor, Mr. Jaibir Singh Hooda, Judicial Magistrate Ist Class, Hisar, recorded dying declaration of Sunita. 18 Before this dying declaration is noticed, it will be pertinent to mention that Kuldip PW.l, brother of Sunita, on 15.7.2003 submitted written application Ex.Pl to the Station House Officer, Police Station, Agroha (Hisar), on the basis of which formal FIR Ex.P41 was registered at Police Station Agroha under Sections 498-A, 406 and 34 IPC. The applicant stated that he was an agriculturist. The applicant stated that he was an agriculturist. They were two brothers and one sister. His sister, named Sunita, was married in the summer season of the year of 2000 according to Hindu rites and customs with Rajesh son of Kehar Singh. At the time of marriage, they had given dowry according to their capacity. In the dowry, they had given , Television, double bed, steel almirah, sofa set, iron box, 100 brass utensils, articles of jewellery, which have been mentioned in detail in the written application along with cash. About Rs. 1,50,000/- were spent on the marriage. Husband Rajesh, mother-in-law Luxmi Devi and father-in-law Kehar Singh were not satisfied with the dowry. They made a complaint that motorcycle was not given at the time of marriage due to which their reputation in the society was lowered. This was disclosed by Sunita when she returned to her parental house for the first time from the matrimonial home. When Rajesh, after marriage, came to take Sunita back, family members with folded hands told him that they were poor people and they could not spend Rs. 40,000/- on the purchase of motorcycle. But they would save money and would lateron buy a motorcycle for Rajesh. Upon this, Rajesh brought Sunita to her matrimonial home. Sunita was kept happy there for a few days. Lateron, again they started harassing and beating Sunita and raised demand of motorcycle. After a few days, when complainant went to matrimonial home of Sunita for bringing her to parental house, Sunita while weeping told that due to demand of motorcycle she had been maltreated. Rajesh told her that he would rehabilitate Sunita only in case motorcycle is given. In the month of October 2000, he, his brother Kuldip and Raj Kumar arranged Rs. 40,000/- and gave the same to the in-laws of Sunita. After the marriage of Sunita, a daughter was born to her, who was aged about one and a half year. Thereafter, Sunita came to her parental house and disclosed that her mother-in-law, father-in-law and husband were demanding colour television and a washing machine. On 27.6.2003, complainant left his sister in the matrimonial home and assured the accused that after arrangement of money was made, the same shall be paid to them. Thereafter, Sunita came to her parental house and disclosed that her mother-in-law, father-in-law and husband were demanding colour television and a washing machine. On 27.6.2003, complainant left his sister in the matrimonial home and assured the accused that after arrangement of money was made, the same shall be paid to them. Sunita told that on 11.7.2003 at about 7.00 A.M., she poured kerosene oil upon her body, on having been fed up due to maltreatment and harassment caused by father-in-law, mother-in-law and her husband and had set herself on fire. Father-in-law, mother-in- law and husband of Sunita tried to extinguish the fire and suffered burn injuries. Under the pressure of in-laws, a dying declaration of Sunita was recorded by the Magistrate, in which she stated that she caught fire due to leakage of gas. The complainant got Sunita admitted in Soni Hospital, Hisar, where she complained about the conduct of her in-laws and stated that she herself had poured kerosene oil. It was further stated that the statement which was made by Sunita to the Magistrate was due to undue influence of her in-laws. 19 After registration of the case, as noticed earlier, another dying declaration of deceased Sunita was recorded on 15.7.2003 by PW.3 Mr.Jaibir Singh Hooda, the then Judicial Magistrate Ist Class, Hisar. 20 PW. 16 Raj Kumar submitted an application Ex.P41 before the Duty/Judicial Magistrate Ist Class, Hisar, requesting that dying declaration of Sunita be recorded. Mr. Jaibir Singh Hooda, the then Judicial Magistrate Ist Class, Hisar, PW.3, recorded dying declaration of Sunita. Before recording the same, he had given the following note :- "Sunita w/o Rajesh, Jat Age 24 years, R/o Siwani Bolan is admitted in Sony Hospital, Hisar. She is identified by ASI Raj Kumar. An application has been received for recording of statement of Smt. Sunita u/s 164 Cr.P.C. She has 90% burns on her body. It is 11.25 P.M. I have put some questions of very general nature to Smt. Sunita and I am fully satisfied that she wants to make her statement voluntarily and that she is not under any pressure or duress for making her statement. Her medical condition has been stated as fit for making her statement by the concerned doctor. I have asked all the police officials and other persons to vacate the room and none is present in the room now". Her medical condition has been stated as fit for making her statement by the concerned doctor. I have asked all the police officials and other persons to vacate the room and none is present in the room now". 21 The dying declaration Ex.P5, when translated into English, reads as under :- "Stated that earlier I had given my statement to Magistrate Sahib, at the instance of elders of the village,namely Dhara, Kartara, Prithvi, Kash, Bhaga. Again said my brother-in-law (Devar) Manbir was also there. They told me to save the honour of the village. I also thought that why should I die and to save the honour of the village, I made that statement. At that time, I was not conscious. Now I am fully conscious. About one month ago, my brother Kuldip (before your arrival he was standing with me) became father of a daughter. He came to take me to my parental house as my Bhabi was operated upon. My brother told my mother-in-law that Mausi, relieve sister for two months, so that our house is also looked after. My brother had not himself come to take me, but had sent a message through one boy. whose fathers name is Jagdish resident of Siwani Bolana. After getting the message, my husband boarded me in a bus from Hisar to Hansi. From other side, my brother left for Siwani Bolana as he was not sure whether I will be sent or not. On 25th of June, 2003, my husband Rajesh gave a telephonic call at our house at Bhagana and asked me to come to Siwani Bolana. On telephone, I told my husband that I am not yet ready and in case you want to take me, you should come and my parents will not refuse. Rajesh again made a telephonic call on the next day. After hearing the phone, I had sent my brother Kuldip. My brother told them that in case Rajesh wanted to come, he may come, we will not refuse. He may take his wife. My marriage was three years old. Earlier thereto, on five times, he himself had left me at my matrimonial home. He never came to pick me up. He told me on telephone that in case you brought Washing Machine and Colour Television then only he will come to take me. He may take his wife. My marriage was three years old. Earlier thereto, on five times, he himself had left me at my matrimonial home. He never came to pick me up. He told me on telephone that in case you brought Washing Machine and Colour Television then only he will come to take me. I told my brother that it may not be possible, therefore, leave me there. On the first date of this month, my brother left me at Siwani Bolana. My mother-in- law told me that in case I did not offer any allurement, it may not yield any dividend. My mother-in-law, father-in-law and husband had not given meals to me for three days. For one day, I kept confined in a room upstairs. On 11th of this month, all the three had poured kerosene oil upon me. I caught fire. Due to fire, I took my mother-in-law in grip. She also suffered fire injuries. Son extinguished the fire of the mother. He also extinguished the fire burns of his father. Neighboured came and had put a blanket to extinguished my fire. By then, I was fully burnt. Then people of the village brought me in a conveyance to Agroha Medical College and got me admitted there. There my parents were called. My father told that he will take me to Hisar. The people of Siwani told that they will get me treated here. There my condition was critical. I would not have been saved there. Question:Who had put you on fire ? Answer: My mother-in-law had ignited the match stick. Question:Do you want to say anything more? Answer: No. I was worried about my daughter". 22 PW.13 Dr. Rajat Soni gave a certificate Ex.P7 that patient remained fit throughout her statement. He stated that Sunita died in Soni Burns Hospital, Hisar, on 23.7.2003 at 9.00 P.M. He proved discharge summary as Ex.P34. 23 PW.12 Dr. Arun Gupta, Senior Medical Officer, General Hospital, Hisar, on 24.7.2004 along with Dr. Himani Kansal conducted autopsy on the dead body of Sunita. According to the Board of Doctors, the cause of death was due to septicemia as a result of extensive burns all over the body which were ante mortem in nature and was sufficient to cause death in the ordinary course of nature. 24 Kuldip, complainant, appeared as PW.l and reiterated as to what was stated in the FIR. According to the Board of Doctors, the cause of death was due to septicemia as a result of extensive burns all over the body which were ante mortem in nature and was sufficient to cause death in the ordinary course of nature. 24 Kuldip, complainant, appeared as PW.l and reiterated as to what was stated in the FIR. 25 Mani Ram appeared as PW.10. He is a resident of village of Kuldip PW. 1. This witness stated that Sunita, for a period of two years, was kept nicely in her matrimonial home. After two years, Kehar Singh, father of Rajesh, had sent a buffalo to village Bhagana at the residence of father of Sunita. The buffalo was sent due to shortage of fodder in village Siwani Bolana. Sunita was given beating by her mother-in-law and husband and was turned out of her matrimonial home. Sunita came to Bhagana. He further stated that when Sunita was turned out of her matrimonial home, her father told that if accused Rajesh was not keeping her daughter in his house, he would not keep buffalo in his house. This caused annoyance to Rajbir and Krishna, sister of accused Rajesh. This witness further stated that when he came to Soni Hospital, Hisar, Sunita told him that due to maltreatment of the accused she had sprinkled kerosene oil on her body and had set herself on fire. At that time, Raj Kumar, Kuldip, he and two/three other persons were present in the hospital. 26 Prosecution examined Subhash Chander, Draftsman, as PW.2, who proved scaled site plan Ex.P2 of the spot. 27 PW.4 Hawa Singh, Sub Inspector/Station House Officer had prepared a report under Section 173 Cr.P.C. 28 PW.5 Mahabir Singh, Constable, PW.6 Krishan Kumar, Constable, PW.7 Jaibir Singh, Constable, and PW.9 Ram Avtar, Head Constable, had tendered their affidavits Ex.P9, Ex.P10, Ex.Pll and Ex.P27, respectively, to prove link evidence. 29 PW.8 Ashwani Kumar had taken photographs of the spot Ex.P17 to Ex.P26. He also proved the negatives Ex.P 12 to Ex.P 16. 30 PW.ll Randhir Singh, Constable, on 16.7.2003 had received two parcels from the doctor regarding the belongings of the deceased. 31 PW.l6 Raj Kumar, Assistant Sub Inspector, had conducted the investigation. He had got recorded the second dying declaration made by deceased Sunita through PW.3 Mr. Jaibir Singh Hooda, the then Judicial Magistrate Ist Class, Hisar. 30 PW.ll Randhir Singh, Constable, on 16.7.2003 had received two parcels from the doctor regarding the belongings of the deceased. 31 PW.l6 Raj Kumar, Assistant Sub Inspector, had conducted the investigation. He had got recorded the second dying declaration made by deceased Sunita through PW.3 Mr. Jaibir Singh Hooda, the then Judicial Magistrate Ist Class, Hisar. This witness further stated that on 11.8.2003, he had received ruqa Ex.P46 regarding the death of Luxmi, the mother-in-law of deceased Sunita. 32 Statement of present appellant was recorded under Section 313 Cr.P.C. All the incriminating evidence was put to him. He denied the same. He gave his version as under :- "I am innocent and I have been falsely implicated in the present case. I was having cordial relations with Sunita and we were leading a happy married life. On 11.7.2003 Sunita was preparing meals on the Gas Chulha and due to leakage of gas she caught fire. I along with my mother Laxmi and father Kehar Singh tried to save the life of Sunita by extinguishing the fire and during this process we also got burn injuries and Laxmi my mother died due to burn injuries. Sunita caught fire accidentally and she gave statement before the Magistrate in this regard. Kuldeep and his father Harpal falsely implicated us in this case as they wanted money from us in the hospital. Sunita was never harassed for demand of dowry and we never demanded dowry from complainant party". 33 In defence, accused examined DW.l Raj Kumar, a neighbour of Harpal, father of deceased Sunita.. He stated that it was simple marriage and no dowry was demanded at the time of marriage. 34 The testimony of DW.2 Ms. Ashu Sanjiy Tinjan, the then Judicial Magistrate Ist Class, Hisar, DW.3 Rajpal, Assistant Sub Inspector, then posted at Police Station Agroha and DW.4 Dr. Ashok Kumar, have already been noticed. 35 Rattan Singh son of Naurang Ram, resident of village Siwani Bolana, appeared as DW.5. He stated that he knew the accused persons and he had informed the complainant about the conduct of accused. 36 Having noticed all the evidence, a few facts are required to be highlighted. Ashok Kumar, have already been noticed. 35 Rattan Singh son of Naurang Ram, resident of village Siwani Bolana, appeared as DW.5. He stated that he knew the accused persons and he had informed the complainant about the conduct of accused. 36 Having noticed all the evidence, a few facts are required to be highlighted. I) Occurrence in the present case had taken place on 11.7.2003 at about 9.00 A.M. The deceased was admitted at Emergency Ward of Medical College, Agroha, on 11.7.2003 at 10.15 A.M. At that time, she was accompanied by her mother-in-law Luxmi, father-in-law Kehar Singh and husband Rajesh, who had also received fire burn injuries. II) DW.2 Ms. Ashu Sanjiv Tinjan, the then Judicial Magistrate Ist Class, Hisar, had recorded a dying declaration of deceased Sunita on 11.7.2003 at 4.50 P.M., as Ex.D5. III) Deceased Sunita was shifted from Medical College Agroha to Soni Burns Hospital, Hisar (Private Hospital) at the instance of family of the deceased where she was admitted on 11.7.2003 at 9.00 P.M. IV) On 15.7.2003, PW.l Kuldip, brother of Sunita, deceased, had submitted application Ex. P1 on the basis of which formal FIR Ex.P 41 was registered. V) In application Ex.P1, it was noticed that deceased made an oral dying declaration to her brother Kuldip PW. 1 that she had herself poured kerosene oil and had attempted to commit suicide. VI) On 15.7.2003 at about 11.25 P.M., another dying declaration Ex.P5 was recorded by Mr. Jaibir Singh Hooda, in which deceased stated that accused had put her on fire and her mother-in-law had ignited the match stick. VII) PW.10 Mani Ram resident in neighbourhood of Harpal, father of Sunita, deceased, stated that deceased made an oral dying declaration to him, and had stated that she had committed suicide by putting herself on fire. 37 This Court has to consider four dying declarations. Two dying declarations were made to two Judicial Magistrates and two oral dying declarations were made to two witnesses. PW. 1 Kuldip noticed, one oral dying declaration in his written application Ex.Pl and another oral dying declaration was made to PW.10 Mani Ram. 38 PW.10 Mani Ram has stated nothing regarding the demand of dowry. Luxmi, mother-in-law of Sunita, deceased, had also suffered fire burn injuries in the same incident. As per prosecution, she also expired due to fire burn injuries on 11.8.2003. Her statement was also recorded by the police. 38 PW.10 Mani Ram has stated nothing regarding the demand of dowry. Luxmi, mother-in-law of Sunita, deceased, had also suffered fire burn injuries in the same incident. As per prosecution, she also expired due to fire burn injuries on 11.8.2003. Her statement was also recorded by the police. That also amounted to dying declaration. This Court has to consider two following questions:- 1) Which one of the dying declarations aspire confidence ? OR 2) Whether all the four dying declarations are to be discarded ? 39 Before this Court ventures to determine these questions, it is to be noticed that Forensic Science Laboratory, Haryana, Madhuban, Karnal, examined the clothes of Rajesh, Kehar Singh, Luxmi and Sunita. They had applied a technique of Gas Chromatography to detect kerosene or its residues and had reported that these clothes contained residues of kerosene. If first dying declaration is to be believed, the fire was due to Liquified Petroleum Gas. Residues of kerosene are to be ruled out. However, if oral dying declaration made to PW. 10 Mani Ram is believed, it was a case of suicide and there was no demand of dowry. In case dying declaration Ex.P5 is believed, then offence under Section 304-B IPC is made out. 40 This Court is of the view that dying declaration Ex.P5 is to be discarded. As in the application Ex.P1, on the basis of which FIR was registered, Kuldip PW. 1 had made a specific averment that her sister had disclosed to him that she herself had poured kerosene oil and had attempted to commit suicide. Kuldip had submitted a very detailed and lengthy application Ex.Pl. PW.3 Mr. Jaibir Singh Hooda, the then Judicial Magistrate Ist Class, Hisar, had recorded dying declaration Ex.P5, in which it is stated that brother (Kuldip) was standing with the deceased, before recording of dying declaration commenced. PW.10 Mani Ram has stated that at Soni Hospital, Raj Kumar, Kuldip, and twothree persons were present, therefore, consultations and deliberations had taken place at Soni Burns Hospital, Hisar 41 Raj Kumar appeared as DW. 1. He has deposed that Sunita told him that she suffered injuries due to burst of cylinder. Dying declaration Ex.P5 recorded is very lengthy. An attempt has been made to bring it in consonance with the FIR. Therefore, the possibility that the deceased was tutored to make dying declaration Ex.P5 cannot be ruled out. 1. He has deposed that Sunita told him that she suffered injuries due to burst of cylinder. Dying declaration Ex.P5 recorded is very lengthy. An attempt has been made to bring it in consonance with the FIR. Therefore, the possibility that the deceased was tutored to make dying declaration Ex.P5 cannot be ruled out. 42 Furthermore, dying declaration Ex.D5 recorded by DW.2 Ms. Ashu Sanjiv Tinjan, the then Judicial Magistrate Ist Class, Hisar, is not only spontaneous, prior and first in time but is probable also. It gives better reasons as to why Luxmi, mother-in-law, Kehar Singh, father-in-law, and Rajesh husband received injuries. Therefore, this Court will tend to rely upon dying declaration Ex.D5. 43 For arriving at this conclusion, this Court is guided by the observations of Honble the Apex Court in a number of cases reported as J.Ramulu v. State of Andhra Pradesh 2008(2)Recent Criminal Reports 842,In this case, prosecution withheld the dying declaration recorded by the police officer but produced dying declaration recorded by the Judicial Magistrate. Their Lordships of Honble the Apex Court had to say as under :- "The suppression and withholding of the first dying declaration of the deceased recorded by PW-13 on 09.07.2000, by itself creates suspicion and reasonable doubt as to the correctness and truthfulness of the dying declaration allegedly made by the deceased to PW-11, XIV Metropolitan Magistrate". 44 In the present case, prosecution had withheld and suppressed the dying declaration recorded by the Judicial Magistrate Ist Class on Duty, which was first in time. 45 In Sasikumar v. The State of Tamil Nadu 2010(1) Recent Criminal Reports 155,it was observed as under :- "This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat, 1992(3) RCR (Criminal) 552: (AIR 1992 SC1817), (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh, (1976) 2 SCR 764)] (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration [See state of Uttar Pradesh v. Ram Sugar Yadav and Ors., 1985(1) RCR. [See Munnu Raja & Anr. v. The State of Madhya Pradesh, (1976) 2 SCR 764)] (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration [See state of Uttar Pradesh v. Ram Sugar Yadav and Ors., 1985(1) RCR. (Criminal) 600" (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC164)] (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr, v. The Public Prosecutor (AIR 1976 SC 1994)], (iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh, (1974(4) SCC 264)]. (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [See (Kaka Singh v. State of M.P. (AIR 1982 SC 1021)]. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction [See Ram Manorath and Ors. v. State of U.P. (1981(2) SCC 654)]. (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505). (ix) Normally 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 eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (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. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)]. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (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. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)]. (xi) Where there is more than one statement in the nature of dying declaration, on first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, (AIR 1982 SC 839) and Mohan Lal and Ors. v. State of Haryana, 2007(2) RCR (Criminal) 88 : 2007(1) RAJ 855:2007 (9) SCC 151)." 46 In the present case, the dying declaration preferred by this Court is first in time and also satisfies the tests laid down by Honble the Apex Court in Smt. Panibens case (supra) as compared to the one, recorded lateron. Dying declaration Ex.D5 is brief and short. It guarantees truthfulness also. Therefore, guided by the principles laid down by Honble the Apex Court , it is safe to rely upon dying declaration Ex.D5 and dying declaration Ex.P5 is to be ignored. 47 Now the Court is left to determine the efficacy of opinion Ex.P50 given by Forensic Science Laboratory, Haryana, Madhuban, Karnal. Occurrence in the present case had taken place on 11.7.2003. The clothes were taken into possession by PW.11 Randhir Singh, Constable, on 16.7.2003, vide recovery memo Ex.P29. The clothes reached Forensic Science Laboratory on 4.8.2003. Test was conducted in February 2005. Whether for a period of five months, remains of kerosene oil can be detected on clothes and it will not evaporate, is a serious issue, which raises doubts. 48 Furthermore, in the present case, investigation is not fair. On 15.7.2003, total course of investigation changed. FIR was registered. Second dying declaration was recorded. The Investigating Agency withheld from the Court earlier dying declaration Ex.D5 recorded by DW.2 Ms, Ashu Sanjiv Tinjan, the then Judicial Magistrate Ist Class, Hisar. The accused had examined, in defence, the earlier Investigating Officer DW.3 Rajpal, Assistant Sub Inspector, of Police Station Agroha and DW.4 Dr. Ashok Kumar, who had declared deceased fit to make statement. The prosecution had also gone to the extent of not examining Ms. The accused had examined, in defence, the earlier Investigating Officer DW.3 Rajpal, Assistant Sub Inspector, of Police Station Agroha and DW.4 Dr. Ashok Kumar, who had declared deceased fit to make statement. The prosecution had also gone to the extent of not examining Ms. Ashu Sanjiv Tinjan, the then Judicial Magistrate Ist Class, Hisar, who was lateron examined as DW.2. Therefore, possibility of sprinkling kerosene oil on 16.7.2003, when the clothes were taken into possession, cannot be ruled out. 49 Furthermore, this Court cannot become oblivious of the fact that Luxmi, mother-in-law, had also expired due to fire burn injuries. Therefore, it is not safe to rely upon any other dying declaration except dying declaration Ex.D5. 50 Accordingly, this Court is of the view that on the facts and circumstances of the case, it is safe to extend benefit of doubt to the appellant as a matter of abundant caution. 51 Hence, the present appeal is accepted. The conviction and sentence awarded to the appellant is set aside. He is acquitted of the charges.