JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 25.2.2005 passed by the 8th Additional Sessions Judge (F.T.C.), Bilaspur, in Sessions Trial No.396/2004, whereby & whereunder learned 8th Additional Sessions Judge after holding the appellants guilty in consequence of abetment of culpable homicide amounting to murder of Manju convicted appellant Kamlesh under Section 109 read with Section 302 of the I.P.C., appellant Ramkhilawan under Section 302/34 and appellant Purain Bai under Section 302 of the I.P.C. and sentenced them to undergo imprisonment for life and to pay fine of Rs.1000/-, in default of payment of fine to further undergo R.I. for six months. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of the prosecution, wife of the appellant Kamlesh, Smt.Manju married with Kamlesh, appellant Ramkhilawan & Purain Bai are father-in-law & mother-in-law of deceased Manju. Since the marriage of the deceased, the appellants committed torture and cruelty upon her. On 2.7.2004 at about 9 p.m. appellant Kamlesh, husband of deceased Manju, directed to father & mother to burn the deceased and thereafter he went for his work, then appellant Ramkhilawan caught hold her and Purain Bai poured kerosene oil over her and set her ablaze. Kamiesh took her to hospital for treatment. She was examined by Dr.A.R.Banjare (PW-2) vide Ex.P/7A and found following injuries and symptoms:- (i) 90% "burn injuries. Patient was grasping condition. Pulse not feable. B.P. not recordable, (ii) Smell of kerosene oil come over the body. Considering serious condition, her dying declaration was recorded by Dr.A.R.Banjare (PW-2) vide Ex.P/8, in which the deceased Manju made dying declaration that the appellants used to quarrel and commit torture. On the date of incident, her husband directed the appellants to bum her and went for his work, thereafter her father-in-law Ramkhilawan caught hold her and her motherin-law Purain Bai poured kerosene oil over her and set her ablaze. She was shifted for further treatment to Medical College, Bilaspur and during the course of traveling, she died. Dead body was brought to CIMS. Death was intimated to Kotwali Police Station who recorded merg vide Ex.P/15 and on the basis of merg, Police Station Masturi recorded merg vide Ex:wI4. She was shifted for further treatment to Medical College, Bilaspur and during the course of traveling, she died. Dead body was brought to CIMS. Death was intimated to Kotwali Police Station who recorded merg vide Ex.P/15 and on the basis of merg, Police Station Masturi recorded merg vide Ex:wI4. F.I.R. was registered by father of deceased Manju namely Makhanlalon'3.7.2004 vide Ex.P/1. Investigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/3 prepared inquest over the body of deceased Manju vide Ex.P/4. Jerry can containing 50 gram kerosene oil, bum hairs, match box and match stick, plain soil and soil containing smell of kerosene were seized from the spot vide Ex.P/6. Dead body was sent for autopsy to Medical College, Bilapsur vide Ex.P/12A, where Dr.A.K-Shukla (PW-4) conducted autopsy vide Ex.P/12 and found following injuries : (i) Bum injuries over the body. (ii) Chard and contains suit mixed mucus inside the neck and trachea. (iii) Internal part of brain was congested. Cause of death was shock as a result of extensive bum. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where the 8th Additional Sessions Judge (F.T.C.), Bilaspur received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as eight witnesses. Statements of the accused/appellants were recorded under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. They have also examined defence witnesses namely Raju (DW-1), Govind Prasad (DW-2), Pittu (DW-3) and Ashok Kumar (DW-4) who have deposed that at the time of incident appellant Kamlesh was not present in his house, he was called by the villagers, then he took his wife to hospital for treatment. 6. After providing opportunity of hearing to the parties, learned 8th Additional Sessions Judge convicted & sentenced the appellants as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that in the present case conviction is substantially based on the evidence of Dr. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that in the present case conviction is substantially based on the evidence of Dr. Dr.A.RBanjare (PW-2) and dying declaration Ex.P/8 recorded by him, which do not inspire confidence and trustworthy. Same has not been supported by oral dying declaration made to Makhanlal (PW-1) and Uma Bai (PW-7). Even dying declaration is a weak type of evidence and to test truthfulness of the witnesses liberty to cross-examine is not available to scrutinize minutely at the time of dying declaration. Dying declaration and oral dying declaration are contradictory to each other. Dr.A.R.Banjare (PW -2) has not taken proper precaution at the time of recording her dying declaration. Even as per his evidence she was not in a position to give statement, she was grasping condition and was not in a position to speak properly, therefore, alleged dying declaration Ex.P/8 does not inspire confidence and trustworthy for conviction of the appellants without further corroboration from independent sources. Learned counsel further argued that this is not the case of offence under Section 498-A and 304B of the I.P.C. but the case of commission of murder. If Ex.P/8 dying declaration is relied upon, then even same is not sufficient to warrant conviction of appellant Kamlesh who was not present at the time of incident and as per Ex.P/8 after directing to his father & mother to burn deceased Manju he went for his livelihood, thereafter he was called by the villagers and he is the person who has taken his wife to hospital for treatment to save her. His post conduct shows that he has tried to save his wife and his previous conduct shows that he was not present at the time of incident. Even if it is relied that he was directed his father & mother to burn the deceased, then it was not be obligatory upon his father & mother to follow the direction and words of their sons to kill the deceased. Even if it is relied that he was directed his father & mother to burn the deceased, then it was not be obligatory upon his father & mother to follow the direction and words of their sons to kill the deceased. Even if it is presumed that he has used the aforesaid words to his father & mother, then even it would not be possible to presume that he has told the aforesaid words with intent to cause homicidal death of the deceased and knowing well that his words would be obeyed by his parents. Using of mere words that burn her ¼vkx yxkuk½ is not sufficient for proving the commission of offence by abetment against appellant No.1 Kamlesh. Therefore, evidence adduced on behalf of the prosecution is not sufficient to warrant conviction of appellant Kamlesh. 9. On the other hand, learned Panel Lawyer for the State/respondent supported the judgment impugned and argued that Dr.A.R.Banjare (PW-2) was competent to record the statement considering the injury and emergency as Ex.P/8, in which the deceased has categorically stated that all the appellants have committed murder of the deceased. After appreciating the evidence available on record, the trial Court has convicted and sentenced the appellants as aforementioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death of deceased Manju has not been admitted by the appellants, but abnormal death of the deceased has not been disputed by any of the parties, even otherwise, it is established by the evidence of Dr.A.R.Banjare (PW-2), medical examination report Ex.P/7A, evidence of Dr.A.K.Shukla (PW-4) and autopsy report Ex.P/12. Death of Manju was abnormal. 12. As regards the question of homicidal death and complicity of the appellants in crime in question, conviction is substantially based on the evidence of Dr.A.R.Banjare (PW -2) relating to dying declaration made by the deceased and evidence Makhanlal (PW-1), father of the deceased and Umabai (PW 7), mother of the deceased. As per evidence of Makhanlal (PW-1) and Umabai (PW-7), they were informed about the burn injuries of their daughter, then they rushed to Musturi hospital where deceased Manju made dying declaration to them that all the appellants have caused burn injuries by pouring kerosene oil and setting her ablaze. As per evidence of Makhanlal (PW-1) and Umabai (PW-7), they were informed about the burn injuries of their daughter, then they rushed to Musturi hospital where deceased Manju made dying declaration to them that all the appellants have caused burn injuries by pouring kerosene oil and setting her ablaze. In cross-examination of Umabai (PW-7), she has admitted in para 10 that Manju was lying in the bed of hospital, she was not in a position to talk, she was unconscious, but she has specifically deposed that Manju made dying declaration before her. At the time of recording dying declaration she reached to hospital. It shows that father & mother have heard the statement made by the deceased at the time of recording her dying declaration vide EX.PI 8. Dr.A.R.Banjare (PW-2) has specifically deposed that he has recorded dying declaration of Manju vide Ex.P/8. Her condition was serious. In his detailed cross-examination he has specifically deposed that he has recorded true dying declaration true statement, she was at grasping stage, but she was able to speak. Ex.P/8 her dying declaration also reveals the same thing. Dying declaration is the statement of the person which cannot be testified by cross-examination on behalf of the parties against whom it can be used on account of death of the person, therefore, the person who records dying declaration is under obligation to ensure that she is making true statement and the person who records dying declaration has taken all precaution to ensure the writing of true dying declaration. 13. Dying declaration is a weak type of evidence but once it is proved then same is sufficient for conviction of the appellants. At the time of recording the evidence, the Court is required to scrutinize the evidence minutely. Ex.P/8 reveals that the appellants used to commit torture and cruelty upon her on account of demand of dowry since last three years. On the date of incident her husband told other appellants to burn her and thereafter he went for his work, then her father-in-law Ramkhilawan caught hold her and her mother-in-law Purain Bai poured kerosene oil with her and set her ablaze. On the date of incident her husband told other appellants to burn her and thereafter he went for his work, then her father-in-law Ramkhilawan caught hold her and her mother-in-law Purain Bai poured kerosene oil with her and set her ablaze. Ex.P/8 reveals that the aforesaid three appellants have committed torture and cruelty in connection with demand of dowry, she was having opportunity to implicate all three persons and to state about all three appellants at the time of pouring kerosene oil and setting her ablaze, but she has specifically stated that at the time of such incident her husband was not present, which also find corroboration from the evidence of defence witnesses namely Raju (DW-1), Govind Prasad (DW-2), Pittu (DW-3) and Ashok Kumar (DW-4). This statement alOl;te is sufficient to presume that she has made true dying declaration and has stated the actual act of the appellants. Substantive part of dying declaration as follows:- . ^^esjk llwj jkef[kykou gkFk dks idMk esjh lkl iqjbZu ckbZ us feVVh Mkydj iwjs ‘kjhj ij Mky fn;sA esjk ifr mudks cksydj mUgsa tyk nsuk dgdj dke esa x;kA esjh ‘kknh dks yxHkx 3 o”kZ gks x;k gS eq>s ngst ugha yk;s gks dgdj ijs’kku djrs FksA feVVh rsy Mkyus ds ckn esjh lkl iqjbZu ckbZ us ekfpl yxkdj vkx yxk fn;k Fks ?kVuk lqcg ukS cts fnukad 2-7-2004 fnu ‘kqdzokj gSA ;gh esjk c;ku gSA** 14. The principle of dying declaration is based on legal maxim "nemo moriturus proesumitur mentiri" -a man will not meet his maker with a lie in his mouth. 15. Lord Chief Justice Baron Eyre {See. R. v. Woodcock, (1789) 1 Lea 502} expressed his view relating to dying declaration as follows:"...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..." 16. While dealing with the question of dying declaration, the Supreme Court in the matter of State of U.P. Vs. While dealing with the question of dying declaration, the Supreme Court in the matter of State of U.P. Vs. Ram Sagar Yadav1 has held that if the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. 17. While dealing with the same question, the Supreme Court in the matter of P. V. Radhakrishna Vs. State of Karnata held that 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. 18. While dealing with the question of evidentiary value of dying declaration recorded by the doctor in case of urgency that injured may not continue to alive and there is no time to call the police or a Magistrate, then recording of dying declaration by the doctor is not only justified but he was duty bound to do so who is disinterested and respectable witness and the Courts are required to rely on such declaration dying declaration instead of rejecting the same. 19. The Supreme Court in the matter of Abdul Majid Abdul Rehman and other Vs. State of Gujrat has observed that where the doctor found that life was ebbing fast, and there was no time to call the police or a Magistrate, it was held that the doctor was justified in recording the• statement (dying declaration); indeed he was duty-bound to do so, and as the doctor was a disinterested and respectable witness, the trial judge was unjustified in rejecting the evidence of the medical officer. 20. In the present case, as per evidence of Dr.A.R.Banjare (PW-2), injured was at grasping stage, her condition was serious and she died during the course of travelling to Bilaspur for further treatment shows that there was urgency and only this witness was available to record dying declaration and he has recorded such dying declaration as EX.P/8. 21. At the time of incident, appellant Kamlesh was not present on the spot. He told to her father & mother to burn his wife. Appellants No.2 and 3 father & mother were not under obligation to obey his son's order/direction. 21. At the time of incident, appellant Kamlesh was not present on the spot. He told to her father & mother to burn his wife. Appellants No.2 and 3 father & mother were not under obligation to obey his son's order/direction. Even the evidence of the prosecution witnesses does not reveal that he was having the knowledge that his order or words would be obeyed by his parents and they will set his wife ablaze. When appellant Kamlesh was called by the villagers then he is the person who had brought her to hospital shows that he has tried to save his wife. His absence at the time of incident and his post conduct is sufficient to disassociate him in commission of the incident. 22. Makhanlal (PW-1) and Umabai (PW-7) have deposed that all the three appellants have killed their daughter and at the time of recording dying declaration they reached to hospital shows that when they reached to hospital at that time Dr.A.R.Banjare (PW-2) was recorded dying declaration Ex.P/8, therefore, they have deposed that all the appellants have committed murder of their daughter. 23. Doctor is also competent, respected and qualified witness. Normally the doctor is disinterested person. In case of emergency where life of the injured is in danger and is full of risk and there is every likelihood that injured may die at any moment and there may be non-availability of a Magistrate for recording such dying declaration within short time, then recording of such dying declaration by the doctor is not only justified, but he is duty-bound to record such statement to assist the dispensation of criminal justice, which would be valuable piece of evidence in dispensing such justice. 24. If the evidence of aforesaid witnesses relating to dying declaration is considered in the light of evidence of Dr.A.R.Banjare (PW-2) and Ex.P/8, then only inference would be possible that appellants Ramkhilawan and Purain Bai have caused homicidal death of the deceased with intent to cause her death, but liability cannot be fastened upon co-accused Kamlesh in absence of any cogent and reliable evidence. 25. While convicting and sentencing the appellants as aforementioned, the trial Court has not considered the aforesaid circumstances and evidentiary value of Ex.P/8 and thereby committed illegality. 26. For the foregoing reasons, the appeal is partly allowed. 25. While convicting and sentencing the appellants as aforementioned, the trial Court has not considered the aforesaid circumstances and evidentiary value of Ex.P/8 and thereby committed illegality. 26. For the foregoing reasons, the appeal is partly allowed. Conviction & sentence of appellant Ramkhilawan under Section 302/34 of the I.P.C. and conviction & sentence of appellant Purain Bai under Section 302 of the I.P.C. are hereby maintained, however, conviction and sentence of appellant Kamlesh under Section 109 read with Section 302 of the I.P.C. are hereby set aside. He is acquitted of the charge. He is in jail, he be set at liberty at once. He be released forthwith, if not required in any other case. 24. If the evidence of aforesaid witnesses relating to dying declaration is considered in the light of evidence of Dr.A.R.Banjare (PW-2) and Ex.P/8, then only inference would be possible that appellants Ramkhilawan and Purain Bai have caused homicidal death of the deceased with intent to cause her death, but liability cannot be fastened upon co-accused Kamlesh in absence of any cogent and reliable evidence. 25. While convicting and sentencing the appellants as aforementioned, the trial Court has not considered the aforesaid circumstances and evidentiary value of Ex.P/8 and thereby committed illegality. 26. For the foregoing reasons, the appeal is partly allowed. Conviction & sentence of appellant Ramkhilawan under Section 302/34 of the I.P.C. and conviction & sentence of appellant Purain Bai under Section 302 of the I.P.C. are hereby maintained, however, conviction and sentence of appellant Kamlesh under Section 109 read with Section 302 of the I.P.C. are hereby set aside. He is acquitted of the charge. He is in jail, he be set at liberty at once. He be released forthwith, if not required in any other case.