Judgment :- N.V. Ramana, J. Both the appeals are directed against the conviction and sentence passed in S.C.No.70 of 2006 by the Sessions Judge, Vizianagaram, dated 21.11.2008. The appellant in Crl.A.No.1507 of 2008 is A.1 and the appellant in Crl.A.No.26 of 2009 is A.2 and they were prosecuted for the offence under Section 302 read with 34 IPC. According to the prosecution the marriage of the deceased Fouzia Begum was performed with A.2 in the year 1992 and they lead happy conjugal life for about 2 years at Vizianagaram, later they shifted to Visakhapatnam as their financial position is not good. The deceased and A.2 stayed for about 8 years at Visakhapatnam. At that time, the deceased developed illicit intimacy with A.1. On coming to know about their intimacy, A.2 left the deceased and came to Vizianagaram. Later, with the intervention of elders the deceased also came back to Vizianagaram and joined A.2. A.1 used to visit the house of A.2, for which the deceased objected. A.1 used to threaten the deceased with dire consequences saying that he cannot live without her company. On the night of 10.01.2006 at about 10.30 p.m. the deceased found A.1 and A.2 drinking brandy in the tailoring shop of A.2 and chastised her husband A.2 pointing out at A.1. On that A.1 grew wild and abused the deceased. The deceased beat him with a chappal on his cheek. A.1 threatened the deceased to see her end. But A.2, who is present at the spot, did not interfere even though A.1 threatened the deceased. On that the deceased threatened A.2 to commit suicide by pouring kerosene if he did not change his attitude and went to rear side of the house and took the kerosene tin. A.1 and A.2 followed her and found that the deceased with the kerosene tin. A.1 pulled out the kerosene tin from the hands of the deceased and poured kerosene on her person saying that it is the way of committing suicide and lit fire with matchstick. As a result of which, flames spread over the body of the deceased and she received severe burn injuries all over her body. A.2, who is also present at the spot, instigated A.1 to do as he likes. P.Ws.1 and 2, who were present in the house witnessed the same and chastised A.1 and A.2 and put off the fire. As a result of which, flames spread over the body of the deceased and she received severe burn injuries all over her body. A.2, who is also present at the spot, instigated A.1 to do as he likes. P.Ws.1 and 2, who were present in the house witnessed the same and chastised A.1 and A.2 and put off the fire. On that both the accused tried to put off the fire and in that process, A.1 received burn injuries to his right palm and right hand little finger. Immediately, the deceased was shifted to Government Headquarters Hospital, Vizianagaram by A.1 and A.2. On receipt of the medical intimation, P.W.11, Head Constable, went to the hospital and recorded the statement of the deceased and sent the same to P.W.15, basing on the said statement, a case in Crime No.04 of 2006 under Section 307 read with 34 IPC was registered and investigating was taken up by P.W.15. He visited the scene of offence, conducted the scene of offence panchanama, seized the kerosene tin, match box in the presence of P.W.9 and another, arrested A.1 and A.2 and remanded them to judicial custody. On 03.02.2006 the deceased succumbed to injuries while undergoing treatment in the hospital. Basing on the death intimation, the section of Law was altered to 302 read with 34 IPC. Thereafter, the investigation was taken up by P.W.16 and he conducted the inquest over the dead body of the deceased in the presence of P.W.9 and another and sent the dead body of the deceased for postmortem examination. Doctor, P.W.13, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to shock and cardio respiratory failure a secondary to extensive burns. After completion of investigation, P.W.16 has filed the charge sheet against the accused. The learned Sessions Judge has framed the charges under Section 302 IPC against A.1 and under Section 302 read with 34 IPC against A.2. The accused pleaded not guilty for the said charges. In order to establish the said charge, the prosecution examined P.Ws.1 to 16 and got marked Exs.P.1 to P.17 and M.Os.1 to 5. No oral evidence was adduced on behalf of the accused, but Exs.D.1 to D.5 were marked on their behalf in defence. The accused pleaded not guilty for the said charges. In order to establish the said charge, the prosecution examined P.Ws.1 to 16 and got marked Exs.P.1 to P.17 and M.Os.1 to 5. No oral evidence was adduced on behalf of the accused, but Exs.D.1 to D.5 were marked on their behalf in defence. The learned Sessions Judge by taking into consideration the said oral and documentary evidence found A.1 guilty for the offence under Section 302 IPC and convicted and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs.7,500/- and also found A.2 guilty for the offence under Section 302 read with 34 IPC and convicted and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs.2,500/-. Aggrieved by the said conviction and sentence, present appeals are preferred by accused Nos.1 and 2 therein. Now, the point that arises for consideration is: Whether the prosecution could establish the charge under Section 302 IPC against A.1 and under Section 302 read with 34 IPC against A.2 beyond reasonable doubt? POINT: Counsel appearing for the appellant in Criminal Appeal No.1507 of 2008 has submitted that there are no eye witnesses to the incident and the trial Court basing on the dying declarations convicted the accused and the said dying declarations are inconsistent with each other and even if the dying declarations are relied upon, they only point out at the guilt of A.2 and not A.1, as such the conviction and sentence passed against A.1 is liable to be set aside. Heard the counsel for the appellant in Criminal Appeal No.26 of 2009. The Additional Public Prosecutor on the other hand has pleaded that the dying declarations recorded by P.W.11 and P.W.14 clearly shows that A.2 is responsible for causing burn injuries to the deceased and A.1 instigated A.2 to cause the injuries to the deceased and the oral evidence also supports the dying declarations and the evidence of doctor, P.W.13, who conducted autopsy over the dead body of the deceased and the inquest report, Ex.P.6, clearly establishes that the deceased died due to burn injuries, as such the trial Court rightly convicted the accused for the charges framed against them. The case of the prosecution is that on the night of 10.01.2006 at about 10.30 p.m. the deceased found A.1 and A.2 drinking brandy in the tailoring shop of A.2. She got angry and chastised her husband, A.2 pointing out at A.1. On that A.1 grew wild and abused the deceased. The deceased beat him with a chappal on his cheek. A.1 threatened the deceased to see her end. But A.2, who is present at the spot, did not interfere even though A.1 threatened the deceased. On that the deceased threatened A.2 to commit suicide by pouring kerosene if he did not change his attitude and went to rear side of the house and took the kerosene tin. A.1 and A.2 followed her and found that the deceased with the kerosene tin. A.1 pulled out the kerosene tin from the hands of the deceased and poured kerosene on her person saying that it is the way of committing suicide and lit fire with match stick. As a result of which, flames spread over the body of the deceased and she received severe burn injuries all over her body. P.Ws.1 and 2, who were present in the house witnessed the same and chastised A.1 and A.2 to put off the fire. On that both the accused tried to put off the fire and during that process, A.1 sustained burn injuries and both of them shifted the deceased to the Government Headquarters Hospital, Vizianagaram and on 03.02.2006 the deceased succumbed to injuries while undergoing treatment in the hospital. P.W.1 is a tailor working under A.2 and he turned hostile stating that he does not know anything about the case. P.W.2 is the sister of A.2 and she also turned hostile stating that she does not know how the deceased died. P.W.3 is a neighbour of A.2 and according to him on hearing the cries, he came out and reached the house of A.2 and saw A.1 and A.2 in the house of A.2. He noticed the deceased sitting out side with burn injuries. Immediately A.2 sent the deceased to the hospital for treatment. P.W.3 is a neighbour of A.2 and according to him on hearing the cries, he came out and reached the house of A.2 and saw A.1 and A.2 in the house of A.2. He noticed the deceased sitting out side with burn injuries. Immediately A.2 sent the deceased to the hospital for treatment. In the cross-examination by A.1, he has stated that he did not state before the police that by the time he reached the house of A.2, deceased was there outside with burn injuries and he did not inform to police that the deceased was outside and A.2 was inside the house. In the cross-examination by A.2, he has stated that nobody questioned him about the incident and he did not inform anybody and he did not state before police that A.2 followed the deceased in the auto to the hospital and he further stated that he has not seen who accompanied the deceased in the auto whether A.1 or A.2. P.W.4 is another neighbour of A.2 and according to him on 10.01.2006 at 10.30 p.m. he heard the cries from the house of A.2 and by the time he reached the house of A.2, P.W.2 was inside the house of A.2 and several others also gathered there. When he questioned P.W.2, she told him that kerosene was poured on Fouzia Begum and lit fire, as a result, Fouzia Begum received burn injuries, but she did not inform who poured kerosene and both the accused were not present there by the time he went to the scene. Therefore, the evidence of P.W.4 is only hearsay evidence and he is not an eyewitness to the incident. P.W.5 is the sister of the deceased and according to her, the marriage of the deceased was performed about 14 years back and A.2 and Fouzia Begum lived for 2 years at Vizianagaram and later shifted to Arilova, A.2 is doing tailoring work and her sister Fouzia Begum used to sell tea powder. He saw A.1 in the house of A.2 two or three times. After sometime, A.2 came over to Vizianagaram on the ground that his father was not doing well, her deceased sister stayed at Vizag. Thereafter, the deceased came to Vizianagaram and joined A.2 after the death of A.2's father. The deceased died about 2 years 3 months ago. She received telephonic message about receiving burn injuries of her sister. After sometime, A.2 came over to Vizianagaram on the ground that his father was not doing well, her deceased sister stayed at Vizag. Thereafter, the deceased came to Vizianagaram and joined A.2 after the death of A.2's father. The deceased died about 2 years 3 months ago. She received telephonic message about receiving burn injuries of her sister. On the next day early morning, she came to the hospital at Vizianagaram and saw her sister outside the hospital. She spoke to her. Her deceased sister revealed to her that A.1 and A.2 sat in the shop and were taking "Mandu" and she objected for that she further told them if they take "Mandu" in the shop, she is going to die, then A.1 poured kerosene on the deceased and A.1 lit fire, as such she received burn injuries. The deceased was in the hospital for 25 days. In the cross-examination by A.1, she has stated that she has no acquaintance with A.1 and she got the information at 11.00 p.m., but she reached the hospital at 06.00 a.m. and on the next day she spoke to the deceased. She could not speak to the deceased immediately after she reached there as she could not dare to talk to her on seeing the burn injures. She informed to police that she do not know anything. In the cross-examination by A.2, she stated that her sister told her that she gave dying declaration to Magistrate and her sister told her that A.1 requested her not to inform his name, in case she tells his name, he will loose his job and A.1 asked the deceased to tell the name of A.2, accordingly she stated the name of A.2 in the dying declaration given before Magistrate. A.1 promised that he will see that a good medical treatment is given to her. As the deceased wants to live, she gave statement to the Magistrate as informed by A.1. She stated the same facts in 161 Cr.P.C. statement to police and her sister did not state anything against A.2. P.W.6 is the brother of the deceased and according to him on 10.01.2006, P.W.5 came to their house and informed that she received message from Vizianagaram that Fouzia Begum received burn injuries and admitted in Vizianagaram hospital. Himself and his sister, P.W.5 and other relatives visited the Vizianagaram Government Hospital. P.W.6 is the brother of the deceased and according to him on 10.01.2006, P.W.5 came to their house and informed that she received message from Vizianagaram that Fouzia Begum received burn injuries and admitted in Vizianagaram hospital. Himself and his sister, P.W.5 and other relatives visited the Vizianagaram Government Hospital. He met his sister and she was in talking condition and stated that A.1 poured kerosene on her and lit fire and as such she received burn injuries. The deceased asked A.1 and A.2 not to drink in the house, both the accused paid deaf ear and started drinking. She requested them repeatedly that she will die by pouring kerosene if they drink, both the accused paid deaf ear and A.1 took the kerosene tin and poured on her and lit fire. A.2 saw A.1 lit fire after pouring kerosene, A.2 left that place. In the cross-examination by A.1 he has stated that except deceased informing him, he is not a direct witness to the incident and he has not informed the same to the police or anybody till the death of the deceased. In the cross-examination by A.2, he admitted that the deceased never informed him that at whose instance she stated to Magistrate against A.2. He further admitted that there are no quarrels between his deceased sister and A.2. Therefore, from the above it is evident that P.Ws.1 and 2 turned hostile to the prosecution, P.Ws.3 and 4 have only stated about seeing the deceased with burn injuries in her house and the evidence of P.Ws.5 and 6 discloses that the deceased gave oral dying declarations to them stating that A.1 poured kerosene and lit fire to her. Thus the only evidence available for the prosecution is the statement of the deceased recorded by P.W.11 and the dying declaration recorded by P.W.14. Now it has to be examined whether the said evidence is sufficient to convict the accused. P.W.7 is the Head Constable, who was in-charge of the Rakshak vehicle. According to him on 10.01.2006 at 10.00 p.m. he received information from police control room that one lady received burn injuries. He reached the scene of offence, where the injured was available and noticed the lady with injuries and another male person was also present. A.1 is the person, who stood in the accused box was also with burn injuries by then. He reached the scene of offence, where the injured was available and noticed the lady with injuries and another male person was also present. A.1 is the person, who stood in the accused box was also with burn injuries by then. The injured along with A.1 were sent to hospital in an auto. By the time, he reached there, A.1 and the injured were in the auto. A.2 boarded the jeep and was taken to Government Head Quarters Hospital, Vizianagaram. He informed the same to police control room. P.W.11, who was working as Head Constable at that time in Gurla police station has stated that he was posted in Out Post police station, M.R. hospital, Vizianagaram on deputation. On 10.01.2006 at 11.30 p.m. he received intimation Ex.P.3 from P.W.8, then he immediately rushed to the hospital and noticed burn injuries on the deceased. The doctor was present there. The condition of the patient is conscious and talking to persons, who approached her. The patient was in good condition to give statement, accordingly he recorded the statement of the deceased and the doctor was also present throughout and he made endorsement on Ex.P.4, the statement, Ex.P.8 recorded by him. He also obtained thumb impressions of the deceased and the contents were read over and they were admitted to be true. After recording the statement, Ex.P.8, he sent the same to the police station. On 03.02.2006 he received death intimation and sent the same to the police station for necessary action. In the cross-examination by A.1, he has stated that as per endorsement on Ex.P.8, the statement of the declarant was recorded at 12.00 mid-night and along with the statement, he sent medical intimation, Ex.P.3 to the police station. He denied the suggestion that Ex.P.8 was brought into existence subsequent to dying declaration recorded by Magistrate and that he is deposing falsely to strengthen the case. In the cross-examination by A.2, he has stated that the person, who brought the patient signed as a witness on Ex.P.8 statement. P.Prasad signed as a witness and he did not state to police that P.Prasad signed as a witness on Ex.P.8. A.1 signed in Ex.P.8 as a witness and he identified A.1. In the cross-examination by A.2, he has stated that the person, who brought the patient signed as a witness on Ex.P.8 statement. P.Prasad signed as a witness and he did not state to police that P.Prasad signed as a witness on Ex.P.8. A.1 signed in Ex.P.8 as a witness and he identified A.1. In the further cross-examination by A.1 he has stated that he do not know whether there are any allegations against A.1 as per the statement and he has no acquaintance with A.1 prior to his giving statement as a witness. P.W.14 is the Judicial First Class Magistrate. According to her, she received requisition, Ex.P.12 from I Town police station, Vizianagaram at 00.20 a.m. Immediately, she proceeded to Government Hospital and identified the patient with the help of duty doctor and he has recorded Ex.P.13 dying declaration. She obtained the certificate regarding the consciousness of the patient and she put preliminary questions mentioned in Ex.P.13 and satisfied herself that the patient was conscious and speaking coherently, then she recorded the dying declaration, Ex.P.13. In the cross-examination by A.2, she has stated as per the statement given by the deceased, the neighbours and friends brought her to the hospital and she has not ascertained the names of the neighbours and friends and by the time she reached the patient, except doctor, none were there. Again she has stated that by the time, she reached the patient, doctor was only present, others were asked to go outside and one attendant was also with the patient and the said attendant was sent out by her. Doctor, P.W.8, who admitted the patient, certified about the mental condition of the patient at the time of recording of the statement, Ex.P.8 by P.W.11 and Ex.P.13 by P.W.14, has stated about his admission of the patient in the hospital on 10.01.2006 at 11.00 p.m. with burn injuries. He sent hospital intimation to out post police and he gave first aid to the deceased and police came to the hospital by 11.20 p.m. and the statement of the deceased was recorded by police in his presence. He examined the patient and certified that she is conscious and coherent at the time of recording her statement and he made endorsement, Ex.P.4 on the statement recorded by P.W.11. He examined the patient and certified that she is conscious and coherent at the time of recording her statement and he made endorsement, Ex.P.4 on the statement recorded by P.W.11. He further stated that he was present at the time of recording dying declaration by P.W.14 and he made an endorsement, Ex.P.13 that the patient was conscious and coherent. In Ex.P.8 recorded by P.W.11, the deceased has stated that to-day at 10.45 hours, her husband Mohammad Sadiq and Panigrahi Prasad together took drink party in their house. She told her husband not to drink, but he did not hear her. She got angry and took the kerosene tin from the house and went into the back yard of the house. She pretended that she is pouring kerosene on her to threaten her husband, her husband took the kerosene tin from her hands and Panigrahi asked to pour kerosene on her and he poured kerosene on her head and lit the match stick. With burn injuries, she walked into the vacant place. They were afraid of her hues and cries and her husband and Panigrahi Prasad put off the flames and admitted her in Vizianagaram Government Hospital. In the said statement, doctor, P.W.8 has made an endorsement that the patient was conscious and coherent at the time of recording the statement. As admitted by P.W.11, P.Prasad, who is A.1, signed as a witness in the said statement. In Ex.P.13, recorded by P.W.14, the deceased has stated that the incident has happened one hour ago, they poured kerosene on her. Her husband and they were drinking. They mean her husband's friends. She argued with her husband not to drink. Then he poured kerosene on her. Then she went out by taking the kerosene tin. If she dies only, they will learn a lesson. Then he took the tin from her and poured kerosene on her, went into the house, brought match box and ignited. Then his friend Prasad came and put off the fire. She was having troubles with him since from their marriage. Her marriage was performed against her wishes. They lead normal life for one year. She is having two children. He used to suspect her every now and then and abused her by saying as bitch going here and there. She further stated that her husband is responsible for the incident and he tortured her. Her marriage was performed against her wishes. They lead normal life for one year. She is having two children. He used to suspect her every now and then and abused her by saying as bitch going here and there. She further stated that her husband is responsible for the incident and he tortured her. In the said statement, Ex.P.13, the same doctor, P.W.8 has made an endorsement that the patient is in conscious state of mind and coherently giving answers at the commencement of the statement and also after completion of the recording of the statement by P.W.14. In "ONGOLE RAVIKANTH V. STATE OF ANDHRA PRADESH (2009) 13 Supreme Court Cases 647) the Apex Court has observed that - "it is well settled and needs no restatement at our hands that the 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 the dying declaration inasmuch as there could be any number of circumstances which may affect the truth. It has been repeatedly held by this Court that the Courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the Courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the Courts have to look for the medical opinion." In "ATBIR V. GOVERNMENT OF NCT OF DELHI (2010) 9 Supreme Court Cases 1)" the Apex Court has consolidated the principles laid down by them earlier, which are as under: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination; (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) 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. (iv) 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. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot be prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. In view of the above said decisions, the Court should satisfy that the deceased was in a fit state of mind at the time of making the statement. In the present case, in order to ascertain whether the deceased was in a fit state of mind at the time of recording the dying declaration, Ex.P.13 by P.W.14; Ex.P.13 has to be copied down as it is recorded by P.W.14. As per the endorsement, Ex.P.4 made on Ex.P.8 and the evidence of doctor, P.W.8, the deceased was in a fit state of mind at the time of recording Exs.P.8 and P.13. In the dying declaration, Ex.P.13 recorded by P.W.14, the Magistrate also satisfied herself that the patient is conscious state and speaking coherently and in fit state of mind as per the answers given by the patient. But P.W.14 has recorded the dying declaration in a printed proforma, wherein the questions and the certification by the doctor and the certification by the Magistrate, were all pre-typed before recording the dying declaration. According to P.W.8, he made endorsement about the state of mind of the deceased on the dying declaration recorded by P.W.14. But P.W.14 has recorded the dying declaration in a printed proforma, wherein the questions and the certification by the doctor and the certification by the Magistrate, were all pre-typed before recording the dying declaration. According to P.W.8, he made endorsement about the state of mind of the deceased on the dying declaration recorded by P.W.14. In Ex.P.13, the alleged certificate of the doctor at the beginning of the recording of the statement and after completion of the statement was got pre-typed by the Magistrate and the Magistrate only obtained the signature of the doctor at the place provided for the signature of the doctor. Subsequent endorsement made by the Magistrate with regard to conscious state and fit state of mind of the deceased after putting preliminary questions was also got pre-typed by the Magistrate and it is not the certificate made by the Magistrate after satisfying with the answers given to the questions put by her. With regard to reading over and explaining the contents of the dying declaration was also got pre-typed by the Magistrate, that shows even before recording the said statement, the said endorsement was already made therein. At the end, the Magistrate also certified that except the duty doctor, there is no other person near the patient and she has read over the statement recorded by her to the patient and she admitted to be correct, was also pre-typed before recording of the said statement. Therefore, the Magistrate has already prepared a proforma and only filled up the gaps. From the perusal of the said Ex.P.13, it cannot be said that the doctor, after examining the patient, has certified about the fit state of mind of the patient, and the certification of the Magistrate about her satisfaction about the mental condition of the patient was also pre-typed and not at the time of recording of the said statement. The Magistrate is not expected to prepare a proforma and fill up the blanks for recording the dying declaration. The object of putting preliminary questions by the Magistrate is to satisfy himself/herself about the consciousness and fit state of mind of the patient before recording the dying declaration. By getting typed the said endorsement prior to recording the answers clearly shows that the said endorsement is not to the satisfaction of Magistrate after hearing the answers of the deceased. The object of putting preliminary questions by the Magistrate is to satisfy himself/herself about the consciousness and fit state of mind of the patient before recording the dying declaration. By getting typed the said endorsement prior to recording the answers clearly shows that the said endorsement is not to the satisfaction of Magistrate after hearing the answers of the deceased. The endorsements of the doctor are also got pre-typed and only signature of the doctor was obtained. It is settled law that dying declaration can be the sole basis for conviction if it inspires the full confidence of the Court and the Court should be satisfied that the deceased was in a fit state of mind at the time of giving the statement and that it is not the result of tutoring, prompting or imagination. In order to ascertain the fit state of mind of the patient at the time of recording the dying declaration the Court has to depend upon the certification of the doctor and also the satisfaction recorded by the Magistrate. The way, in which the dying declaration was recorded by the Magistrate in the present case, we are of the opinion that the very purpose of recording the dying declaration itself is defeated, and Ex.P.13 cannot be said to be recorded when the patient is in fit state of mind. The principle on which the dying declaration is admitted in evidence is indicated in the legal maxim "Nemo moritus praesumitur mennre" i.e. "a man will not meet his maker with a lie in his mouth". The Apex Court while considering the dying declaration observed that the justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity when the person is at the point of death and when every hope of this world is gone, when every motive of falsehood is silenced and the man is induced by the most powerful consideration to speak only truth. Rule 33 of the A.P. Criminal Rules of Practice and the Circular Order, 1990 issued by the High Court provides guidelines and method for recording dying declaration, and the same reads as follows: Rule 33 - Dying Declaration. 1. Rule 33 of the A.P. Criminal Rules of Practice and the Circular Order, 1990 issued by the High Court provides guidelines and method for recording dying declaration, and the same reads as follows: Rule 33 - Dying Declaration. 1. While recording a dying declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of death or the circumstances of the transaction which resulted in death. 2. Before taking down the declaration, the Magistrate shall disclose his identity and also ask the declarant whether he is mentally capable of making a declaration. He should also put simple questions to elicit answer from the declarant with a view to know his state of mind and should record the questions and answers, signs and gestures together with his own conclusion in the matter. He should also obtain whenever possible a certificate from the Medical Officers as to the mental condition of the declarant. 3. The declaration should be taken down in the words of the declarant as far as possible. The Magistrate should try to obtain from the deceased particulars necessary for identification of the accused. Every question put to the declarant and every answer or sign or gesture made by him in reply shall be recorded. 4. After the statement is recorded, it shall be read over to the declarant and his signature obtained thereon, if possible, and then the Magistrate shall sign the statement. The purpose of these rules is that as far as possible, the dying declaration should be recorded by the Judicial Magistrate. The obvious intention is that a judicially trained person would be in a better position to elicit the truth through his questions and the statement as finally recorded would represent the factual position. The provisions should be compiled with all its essential features. The object of putting questions under the rule is to find out the fit mental condition of that person, whether he is in a position to give a statement or not. When the Magistrate is dealing with a person who is about to die, we cannot expect that he is completely in a state of mind like an ordinary man. The object of putting questions under the rule is to find out the fit mental condition of that person, whether he is in a position to give a statement or not. When the Magistrate is dealing with a person who is about to die, we cannot expect that he is completely in a state of mind like an ordinary man. The "fit condition" must be the subjective satisfaction of the Magistrate, because the Court will not be in a position to cross-examine and find out that the person is in a fit state of mind at the time of giving the statement. With that object preliminary questions are usually put and by those questions the Magistrate has to satisfy himself that the injured person is in a conscious and fit condition to give a statement. It is for that reason it has been laid down that the Magistrate should append a certificate that the injured was in a fit condition while giving the statement as recorded by him. The certificate appended by the Magistrate will have a great material bearing. Though the dying declaration is not made before the accused and he is not given an opportunity to cross-examine, still it can be the sole basis for conviction without any corroboration provided it is truthful and reliable. Hence, given the importance attached to the evidentiary value of the dying declaration, the Magistrates have to be very careful while discharging their duties. In spite of the above rules and circulars, in several cases, we have observed that the Magistrate without following these norms in a mechanical way, recording the statement on the printed format by filling up the columns. There are several cases where the Courts have rejected dying declaration because of laches on the part of the Magistrate to comply with the provisions and ultimately accused was acquitted on this ground. Hence, it leads us to an irresistible conclusion that dying declaration should be recorded by the Magistrate with due care and upon proper circumspection. Therefore, it is high time that all the Magistrates should wean away from the said procedure of filling up of proformas while recording the dying declarations, because it is frustrating the very purpose of recording the dying declaration. As per Exs.P.8 and P.13, A.2 poured kerosene on the deceased and set fire to her, but it is not the case of the prosecution. As per Exs.P.8 and P.13, A.2 poured kerosene on the deceased and set fire to her, but it is not the case of the prosecution. According to the prosecution when the deceased has taken the kerosene tin to threaten A.2 to commit suicide, both A.1 and A.2 followed her and A.1 pulled out the kerosene tin from her hands and poured kerosene on her person saying that it is the way of committing suicide and lit fire with the match stick. To establish that, the prosecution has relied upon the evidence of P.Ws.5 and 6, who are the brother and sister of the deceased. Both P.Ws.5 and 6 have specifically stated that when they enquired the deceased, she has disclosed that A.1 poured kerosene and set fire to her, which is quite contrary to the dying declaration recorded by P.W.14 and statement recorded by P.W.11. P.W.5 has stated in her cross-examination that her sister disclosed that she has stated against A.2 at the instance of A.1 as A.1 will loose his job if she disclosed his name and she denied the suggestion put to her in the cross-examination by A.1, that she did not disclose the same to the police that the deceased gave the name of A.2 to the Magistrate at the instance of A.1. P.W.7, Head Constable, who came to the spot and shifted the deceased to the hospital, also stated in the chief-examination itself that by the time he reached the scene of offence, A.1 and the injured were in the auto and A.2 boarded the jeep and he took them to the Government Hospital. Therefore, it is evident that A.1 travelled with the deceased when she was being shifted to the hospital. Moreover, P.W.11 has obtained the signature of A.1 on the statement, Ex.P.8 as a witness. In the cross-examination, he has stated that he do not know whether there are any allegations against A.1 in the said statement. In Ex.P.8, the deceased has categorically stated that A.1 asked A.2 to pour kerosene on her, accordingly A.2 poured kerosene on her. Therefore, as per Ex.P8, statement, A.1 instigated A.2 to pour kerosene and set fire to her. In the cross-examination, he has stated that he do not know whether there are any allegations against A.1 in the said statement. In Ex.P.8, the deceased has categorically stated that A.1 asked A.2 to pour kerosene on her, accordingly A.2 poured kerosene on her. Therefore, as per Ex.P8, statement, A.1 instigated A.2 to pour kerosene and set fire to her. Therefore, obtaining the signature of A.1 in Ex.P.8, in which the deceased has alleged that A.2 poured kerosene at the instigation of A.1 shows that to absolve the liability of A.1, his signature was obtained in the said statement by P.W.11. Thus, basing on the oral evidence of P.Ws.5 and 6 coupled with the evidence of P.W.7, head constable, it cannot be said that A.1 poured kerosene on the deceased and set fire to her as the said evidence is contrary to the dying declaration recorded by P.W.14 and statement recorded by P.W.11. Moreover, according to the investigating officer, P.W.15, after perusal of the F.I.R. registered by the Head Constable, he immediately visited the government hospital, Vizianagaram, examined the injured person Fouzia Begum and recorded her statement. But the said statement recorded by him was not produced by the prosecution, but in the cross-examination by A.2, he admitted that he has recorded the statement of the injured on the same day and as per the injured statement, A.1 poured kerosene when she asked both the accused not to take alcohol and the injured beat A.1 with chappal, then A.1 poured kerosene and lit fire to her and A.2 was present at the time of A.1 pouring kerosene and lit fire. The statement of the injured recorded by him as stated by her and its contents are true. Therefore, according to P.W.15, he has recorded the statement of the deceased, wherein she has disclosed about A.1 pouring kerosene and setting fire to her, but the said statement was not produced before the Court. Since the said statement recorded by P.W.15 is against A.1, and by not furnishing the copy of the said statement to A.1 certainly causes prejudice to A.1 in defending the case. Due to the suppression of the said statement, which amounts to dying declaration, of the deceased recorded by P.W.15, an adverse inference has to be drawn against the prosecution. Since the said statement recorded by P.W.15 is against A.1, and by not furnishing the copy of the said statement to A.1 certainly causes prejudice to A.1 in defending the case. Due to the suppression of the said statement, which amounts to dying declaration, of the deceased recorded by P.W.15, an adverse inference has to be drawn against the prosecution. Therefore, from the above contradictory evidence of P.W.5, P.W.6 and P.W.7, Exs.P.8 and P.13, the prosecution has failed to establish that A.1 poured kerosene and set fire to the deceased as alleged by the prosecution. The Sessions Judge has recorded a finding that the charge that A.1 poured kerosene and lit fire was established and the said act of the A.1 amounts to offence punishable under Section 302 IPC and further recorded a finding that A.2 is liable for punishment under Section 302 read with 34 IPC without recording any finding on what material he came to the said conclusion about A.1 pouring kerosene and setting fire to the deceased and without recording any finding that there is a common intention between A.1 and A.2 to cause the death of the deceased, convicted A.2 for the offence under Section 302 read with 34 IPC. Moreover, the Sessions Judge has disbelieved the dying declarations, and if the said dying declarations are disbelieved, A.2 has not committed any offence. The Sessions Judge has not given any finding with regard to the specific overt acts of A.2 to hold him guilty for the offence under Section 302 read with 34 IPC. The oral dying declaration given by the deceased to P.Ws.5 and 6 and about the recording of the statement by P.W.15 were not at all taken into consideration by the Sessions Judge. Therefore, the conclusion arrived by the Sessions Judge in convicting A.1 for the offence under Section 302 IPC and A.2 for the offence under Section 302 read with 34 IPC are without any basis and the said findings are perverse and are liable to be set aside. Therefore, the conclusion arrived by the Sessions Judge in convicting A.1 for the offence under Section 302 IPC and A.2 for the offence under Section 302 read with 34 IPC are without any basis and the said findings are perverse and are liable to be set aside. In the result, both the Criminal Appeals are allowed and the conviction of the appellant/A-1 (Crl.A.No.1507 of 2008) and the appellant/A-2 (Crl.A.No.26 of 2009), in S.C.No.70 of 2006 by the Sessions Judge, Vizianagaram dated 21.11.2008, for the offence punishable under Section 302 of IPC and sentence of imprisonment for life and to pay a fine of Rs.7,500/- against the appellant/A-1 and for the offence punishable under Section 302 read with 34 of IPC and sentence of imprisonment for life and to pay a fine of Rs.2,500/- against the appellant/A-2, is hereby set aside. Both the appellants shall be set at liberty forthwith, if they are not required in any other case. Before parting with the judgment we direct the registry to communicate the copy of this judgment to all the Junior Civil Judges and Metropolitan Magistrates working in the State through their unit heads.