JUDGMENT : As per T.K. Kaushal, J.:- In respect of Death Sentence awarded to the accused persons by the Sessions Court, Burhanpur in S.T. No. 82/2011 vide judgment dated 10th July, 2012, wherein accused/appellant Jitendra has been convicted under Section 302/34, IPC and accused/appellant Arti under Section 302, IPC for committing murder of Reena (since deceased), Trial Court has made reference, dated 10th July, 2012 under Section 366 (1) of Code of Criminal Procedure, 1973 (in short 'Cr.PC') for confirmation. At the same time, appeal has been preferred by the accused persons/appellants challenging their conviction and sentence. This judgment shall accordingly, govern disposal of both the aforesaid cases. 2. Facts of the case, in short, are that after about six months of marriage on 11-10-2011 at about 4.00 p.m., Reena (the deceased), wife of appellant No. 1 died of burn injuries during treatment in District Hospital, Burhanpur. It is alleged that with a view to get rid of the opposition and objection of the deceased for illicit extra marital relations between the appellants, they intended to kill the deceased. Same day at about 9.00 a.m., appellant No. 2 came to the house of the deceased, appellant No. 1 (husband) caught hold of the deceased and appellant No. 2 poured kerosene from a wick stove on the deceased and threw a burning match stick on her and set her ablaze. Deceased raised noise. Attracted by shrieks, from neighbouring house, Savitri (P.W. 2) rushed to the spot and tried to extinguish fire by putting a bed sheet on the deceased. Deceased was brought to hospital in a tempo by some neighbouring persons. Appellants fled away from the scene of occurrence. 3. At about 9.30 a.m., the deceased was examined by Dr. Dilip Patidar (P.W. 9) in District Hospital, Burhanpur. She was admitted in hospital with a history of burn by stove kerosene. Dr. Dilip Patidar (P.W. 9) prepared MLC note (Exh. P-9) and admitted the patient for further treatment. At about 10.30 a.m., sent its information of Police, Lalbag (Burhanpur). Reva Ram, ASI (P.W. 11) from police station rushed to the hospital. He sent a letter of request to Executive Magistrate for recording dying declaration of the deceased. Rajendra Gupta, Superintendent, Land Records-cum-Tehsildar (P.W. 12) reached to hospital. Dr. Dilip Patidar (P.W. 9) examined fitness of the patient. Then Executive Magistrate (P.W. 12) recorded her dying declaration (Exh. Reva Ram, ASI (P.W. 11) from police station rushed to the hospital. He sent a letter of request to Executive Magistrate for recording dying declaration of the deceased. Rajendra Gupta, Superintendent, Land Records-cum-Tehsildar (P.W. 12) reached to hospital. Dr. Dilip Patidar (P.W. 9) examined fitness of the patient. Then Executive Magistrate (P.W. 12) recorded her dying declaration (Exh. P-11) between 12.15 p.m. to 12.30 p.m. in hospital. 4. Reva Ram, ASI (P.W. 11) at 12.30 p.m. recorded Ddiati Nalishi (Exh. P-13) as narrated by the deceased to him in hospital itself. In dying declaration (Exh. P-11) and Dehati Nalishi (Exh. P-13), deceased named the appellants and narrated the incident. On the basis of Dehati Nalishi (Exh. P-13) at Police Station, Lalbag, Leeladhar Chouhan, S.I. (P.W. 13) registered FIR (Exh. P-14) under Section 307, IPC against the appellants. In hospital, P.W. 13 recorded statement of the deceased under Section 161, Cr.PC. Reaching at the residence of the deceased, vide Exh. P-4, Seizure Memo, he seized stove, kerosene smeared soil, half burnt clothes, chair etc. In the meantime, Sheela, aunt of the deceased (P.W. 3), Kailash, father of the deceased (P.W. 4), Gulab Salve, cousin of the deceased (P.W. 8), and Bachchala Bai, mother of the deceased (P.W. 14) also reached hospital and met deceased. At about 4.00 p.m., deceased succumbed to the burn injuries and died. At about 4.30 p.m., police registered a merg (Exh. P-5). Police prepared Naksha Panchayatnama of dead body of the deceased (Exh. P-8) in presence of the witnesses. At about 6.00, p.m., Dr. Dilip Patidar (P.W. 9) and Dr. Rehana Bohra conducted post-mortem of dead body of the deceased and prepared post-mortem report (Exh. P-10), opining the cause of death to be excessive burn injuries and also preserved viscera of the deceased for further examination. On 12-10-2011 vide arrest memo (Exh. P-20), appellant-Jitendra and on 14-10-2011 vide arrest memo (Exh. P-19) appellant-Arti was arrested by police. 5. During investigation, police recorded statements of eight witnesses. Police sent seized articles for chemical examination to Forensic Science Laboratory, Sagar. After completing investigation, police submitted a charge-sheet in the Court of concerned Judicial Magistrate First Class. Case was committed to the Sessions Court for trial. Trial Court framed charges under Section 302, IPC and in alternative under Section 302/34, IPC against the appellants. Appellants abjured guilt and pleaded innocence. 6. After completing investigation, police submitted a charge-sheet in the Court of concerned Judicial Magistrate First Class. Case was committed to the Sessions Court for trial. Trial Court framed charges under Section 302, IPC and in alternative under Section 302/34, IPC against the appellants. Appellants abjured guilt and pleaded innocence. 6. To substantiate the case of prosecution statements of Girja Bai, neighbour (P.W. 1), Savitri Bai, another neighbour (P.W. 2), Sheela Bai, aunt of the deceased (P.W. 3), Kailash, father of the deceased (P.W. 4), Virendra, witness of seizure (P.W. 5), Santosh, another witness of seizure (P.W. 6), Chain Singh Chouhan, Head Constable, who recorded merg (P.W. 7), Gulab Salve, cousin of the deceased (P.W. 8), Dr. Dilip Patidar, who conducted MLC and prepared post-mortem of the deceased (P.W. 9), Ramesh Taiyde, Patwari, who prepared spot map (P.W. 10), Reva Ram, ASI (P.W. 11), Rajendra Kumar Gupta, Executive Magistrate (P.W. 12), Leeladhar Chouhan, S.I. (P.W. 13), and Bachchalt Bai another of the deceased (P.W. 14) were recorded. After appreciating the aforesaid evidence, Trial Court placing reliance on the dying declarations and on other evidence, convicted and sentenced the appellants as above. 7. Sessions Judge vide order dated 10-7-2011 referred the proceedings of trial as required under Section 366, Cr.PC to this Court for confirmation of death sentence. On perusal of entire record there appears no need of an/further inquiry or additional evidence for ascertaining the fact of guilt or innocence of the accused persons. Record of the Trial Court has been perused carefully by us in this regard. 8. Challenging the impugned judgment, an appeal has been preferred by accused persons on the grounds that Trial Court failed to appreciate prosecution. evidence in right perspective. From amongst dying declarations (Exh. P-11) recorded by Tehsildar, Exh. P-13 recorded by ASI as Dehati Nalishi and oral dying declarations made by the deceased to her mother and cousin, none is worth reliance. They are inconsistent, untrustworthy, and incredible. Such dying declaration cannot be made the basis of conviction. Evidence of mother and cousin of deceased being biased and motivated, cannot be relied upon. Conviction is bad in law. Death sentence awarded by the Trial Court is harsh and uncalled for. Trial Court has erred in holding it to be one of the "rare of the rarest" case. On the other hand, learned Government Advocate supported the impugned judgment and opposed the appeal. Conviction is bad in law. Death sentence awarded by the Trial Court is harsh and uncalled for. Trial Court has erred in holding it to be one of the "rare of the rarest" case. On the other hand, learned Government Advocate supported the impugned judgment and opposed the appeal. Learned Government Advocate further prayed for confirmation of the death sentence in response to the reference made by the Trial Court. 9. According to Dr. Dilip Patidar (P.W. 9), deceased was brought by her husband, appellant No. 1 to the hospital at 9.30 a.m. in burnt condition with a history of burn by kerosene stove. P.W. 9 found about 96% burn on her body and also found smell of kerosene. P.W. 9 referred the patient to Female Surgical Ward for further treatment. On the same day at about 6.00 p.m., he and one more doctor performed post-mortem of the deceased and found cause of death to be ante-mortem burn injury sustained by deceased. Post-mortem report (Exh. P-10) was prepared by team of two doctors viz., Dr. Dilip Patidar (P.W. 9) and Rehana Bohra. In view of the aforesaid, it remains no longer disputed that deceased died of ante-mortem burn injuries sustained by her within 24 hours. However, there is no specific evidence regarding proof of mode of death either to be homicidal or otherwise. 10. In respect of dying declaration (Exh. P-11), Dr. Dilip Patidar stated that on being summoned by Executive Magistrate in Female Surgical Ward he examined the deceased and found her to be in fit condition for recording dying declaration. After completion of dying declaration, he again examined the deceased about her fitness and certified these facts on dying declaration (Exh. P-11). This suggestion has been denied by the witness that deceased being under the influence of the sedative drugs and due to excessive burn injuries was not able to speak. On the other hand, P.W. 9 categorically stated that deceased remained in fit condition during process of recording of dying declaration. Rajendra Gupta, Tehsildar (P.W. 12) was working as Superintendent, Land Record but also holding the charge of Office of Tehsildar at Burhanpur. On being informed by Police he reached in hospital and after receiving certificate of fitness from doctor he recorded dying declaration (Exh. P-11). He recorded it in the form of question answer. Rajendra Gupta, Tehsildar (P.W. 12) was working as Superintendent, Land Record but also holding the charge of Office of Tehsildar at Burhanpur. On being informed by Police he reached in hospital and after receiving certificate of fitness from doctor he recorded dying declaration (Exh. P-11). He recorded it in the form of question answer. According to him, the deceased was in a fit condition and was speaking properly. P.W. 12 obtained thumb impression-of the deceased on the dying declaration (Exh. P-11). 16. Learned Government Advocate, per contra, submitted that sudden disappearance of appellant No. 1 from the hospital thereafter shows his guilty mind and written dying declarations do not contain any material discrepancies in so far as acts of appellants in the incident is concerned. Deceased gave a consistent version in both the dying declarations to both the authorities, i.e., Doctor and ASI, respectively. 17. Prosecution cited as many as five witnesses to whom deceased told the incident in hospital implicating the appellants, i.e., Savitri (P.W. 2), Sheela Bai (P.W. 3), Kailash (P.W. 4), Gulab (P.W. 8) and Bachchala Bai (P.W. 14). Savitri (P.W. 2) is an immediate neighbour reached on the spot first in time and extinguished the flames. She accompanied the deceased upto hospital also. She denied the fact that deceased told to her names of the appellants and admitted the fact that appellant No. 1 brought the deceased to hospital. P.W. 2 did not support the prosecution and was declared hostile. P.W. 2 in Para 6 of her cross-examination stated that she found door of the house closed from inside and managed to get it opened with the help of a boy who entered in the house from backside. It is not out of place to mention that R.R. Chouhan, ASI (P.W. 11), who reached to hospital at about 11.00 a.m., saw P.W. 2 sitting nearby the deceased in hospital. 18. Sheela Bai (P.W. 3) met the deceased in hospital. She saw all her relatives including P.W. 14, mother of deceased sitting there. Deceased narrated her the incident holding the appellants responsible for these burn injuries. 19., Kailash, father of the deceased (P.W. 14) stated nothing against the appellants, saying deceased did not narrate anything to him in hospital. P.W. 4 was declared hostile. He disowned his previous statement (Exh. P-3). He remained present in hospital alongwith her relatives till deceased died. 20. Deceased narrated her the incident holding the appellants responsible for these burn injuries. 19., Kailash, father of the deceased (P.W. 14) stated nothing against the appellants, saying deceased did not narrate anything to him in hospital. P.W. 4 was declared hostile. He disowned his previous statement (Exh. P-3). He remained present in hospital alongwith her relatives till deceased died. 20. Gulab Salve, cousin of the deceased (P.W. 8) reached to hospital after receiving message. According to him, deceased stated that appellant No. 1 caught hold of her and appellant No. 2 poured kerosene. Door of her house after the incident was opened by some woman relative. After about two hours of conversation deceased died. P.W. 8 received information at about 10.00 a.m. and reached hospital within 30 minutes. He informed his other family members by mobile about the incident. Within 30 minutes, they all reached the hospital. It is pertinent to note that P.W. 8 did not tell anybody that deceased told to her that appellants killed her, Bachchala Bai, mother of the deceased (P.W. 14) was also informed 'by the deceased against the appellants. P.W. 14 also did not tell it anybody that her daughter named the appellants as author of the incident 21. It is apparent from the evidences of aforesaid five witnesses that Savitri Bai (P.W. 2) and Kailash, father of the deceased (P.W. 4) did not support the prosecution. They did not say anything against the appellants. Sheela Bai, aunt of the deceased (P.W. 3), Gulab Salve, cousin of the deceased (P.W. 8) and Bachchala Bai, mother of the deceased (P.W. 14) stated that deceased told to them that appellant No. 1 caught hold of her and appellant No. 2 poured kerosene and ignited her. P.W. 8 reached hospital at about 11.00 a.m. After 30 minutes thereof, P.W. 14 reached there and after some time, P.W. 8 also reached in the hospital. Officers who recorded dying declaration also reached at about 12.00 p.m. and after removing all persons from the room, they recorded dying declarations (Exh. P-11 and Exh. P-13). 22., In this case, it has come on record that appellant No. 1-Jitendra accompanied the deceased from house to hospital and at about 9.30 a.m., in his presence the deceased was examined by doctor and admitted in hospital for further treatment. Savitri Bai (P.W. 2) was also there till Reva Ram, ASI (P.W. 11) reached there. P-11 and Exh. P-13). 22., In this case, it has come on record that appellant No. 1-Jitendra accompanied the deceased from house to hospital and at about 9.30 a.m., in his presence the deceased was examined by doctor and admitted in hospital for further treatment. Savitri Bai (P.W. 2) was also there till Reva Ram, ASI (P.W. 11) reached there. Deceased was admitted in hospital with history of burn injuries of kerosene stove. At about 11.00 a.m., Gulab Salve, cousin of the deceased (P.W. 8) reached to hospital and informed his relative about the incident. After about 30 minutes, Bachchala Bai, mother of the deceased (P.W. 14) also reached to hospital though she stated that father of appellant informed her on telephone about the incident. Sheela Bai; aunt of the deceased (P.W. 3) also reached hospital thereafter. They met the deceased then deceased told to them against the appellants. Thereafter, at about 12.00 p.m., Executive Magistrate came and recorded dying declaration and then police officer recorded another dying declaration by way of Dehati Nalishi. 23. It is further pertinent to note that police did not record statements of cousin Gulab Salve (P.W. 8) and mother Bachchala Bai (P.W. 14). Alongwith charge-sheet, police statements of eight witnesses namely, (1) Girja Bai, neighbour (P.W. 1), (2) Savitri Bai, another neighbour (P.W. 2), (3) Sheela Bai, aunt of the deceased (P.W. 3), (4) Kailash, father of the deceased (P.W. 4), (5) Reena Bai, w/o Jitendra, (6) Godu, s/o Kadu, (7) Aruna, w/o Madhukar Mahar, and (8) Rohidas have been submitted. Meaning thereby cousin (P.W. 8) and mother of deceased (P.W. 14) have not been interrogated by police during investigation. In view of the above facts and circumstances, statements of cousin (P.W. 8) and mother (P.W. 14) in respect of the oral dying declaration made by deceased to them appear suspicious and cannot be relied upon. 24. Naming of appellants by deceased to Executive Magistrate and ASI at the time of recording of dying declarations, appears to be a result of helplessness, frustration and anger of the deceased because of extramarital relation of her husband with girl Arti after having consultation or suggestion from her cousin and mother. Whatever has been stated by P.W. 4, P.W. 8 and P.W. 14 reproducing as a version of the deceased told to them in hospital, prior to recording of Exh. P-11 and Exh. Whatever has been stated by P.W. 4, P.W. 8 and P.W. 14 reproducing as a version of the deceased told to them in hospital, prior to recording of Exh. P-11 and Exh. P-13 (written dying declarations), appear more to be a perception and suggestion of their own. Expression of the deceased to Doctor in hospital at first instance and to P.W. 2, P.W. 3, P.W. 4, P.W. 8, P.W. 9 and P.W. 14 is suggestive of something else. Evidence of P.W. 2, P.W. 4 and P.W. 9 loads us to the theory of accidental burn or suicide. 25. Evidence of dying declaration is to be normally respected, accepted and believed by the Courts at their face value. It is presumed that a person, about to die, does not tell lie. Dying declarations can be doubted or disbelieved if some lapses or defects in mode of recording occur or there has been some occasion or probability of prompting and tutoring of the deceased. In present case, Executive Magistrate and Police Officer both have recorded respective dying declarations with utmost care and caution. But, it would be essential to examine that whatever was stated by the deceased to them was a true version of occurrence or was actuated or motivated untrue version. Conduct of the appellants and deceased is of most vital considerations. There is sufficient evidence on record to show that appellant No. 1 had extra marital affair with appellant No. 2 which was not acceptance to the deceased. Appellant No. 2 was a divorcee lady living alone in neighbourhood. According to dying declaration (Exh. P-11), there had been a quarrel between husband and wife about his relationship with deceased two days prior to the incident. 26. In view of the fact that whatever had been narrated by the deceased to officers in Exh. P-11 and Exh. P-13 was not a completely true version because she added false facts regarding fleeing of the appellants from the spot in Exh. P-13, whereas she was brought by her husband/appellant No. 1 at 9.30 a.m. in hospital after the aforesaid incident. These statements have been recorded after about 2 hours of the hospitalisation, when the deceased had an opportunity to meet her cousin, mother and aunt and after that dying declarations were recorded by Executive Magistrate and ASI. P-13, whereas she was brought by her husband/appellant No. 1 at 9.30 a.m. in hospital after the aforesaid incident. These statements have been recorded after about 2 hours of the hospitalisation, when the deceased had an opportunity to meet her cousin, mother and aunt and after that dying declarations were recorded by Executive Magistrate and ASI. It is submitted by learned Counsel for the appellants that possibility of prompting and tutoring cannot be ruled out. Dying declaration needs critical examination. In the back drop that cousin (P.W. 8) and mother (P.W. 14) deposed the fact of oral dying declaration in Trial Court for the first time, their evidence appear unworthy of credit. 27. For ascertaining sanctity and reliability of the dying declarations mind set of the deceased at the time of deposing the declarations has to be taken into consideration. Dying declarations (Exh. P-11 and Exh. P-13) are suffering from material discrepancy. It shows the inclination of the deceased to implicate appellants in this incident occurred in the house at 9.00 a.m. In dying declarations, it has been stated by the deceased that appellant No. I/husband caught hold of her and appellant No. 2 poured kerosene and set her ablaze. While a part of the dying declaration has been found not to be true then remaining part of the dying declaration can be relied upon or not, has to be examined. These are the important circumstances which emerge out from the record :- (1) After incident of burning at 9.00 a.m. in the house, deceased was brought to hospital for treatment by appellant No. 1. (2) Deceased was admitted in hospital with a history of burn by kerosene stove without implicating any person responsible for burning her. (3) At about 11.00 a.m., cousin of the deceased (P.W. 8) reached hospital and within half an hour her aunt (P.W. 4) and mother (P.W. 14) also reached the hospital. They met the deceased. Though, deceased told to them against the appellants, but cousin (P.W. 8) and mother (P.W. 14) did not disclose the version of deceased to anybody during entire process of investigation. It is pertinent to note that father of deceased (P.W. 4) did not say anything against the appellants and disowned his previous statement made to police during investigation. Though, deceased told to them against the appellants, but cousin (P.W. 8) and mother (P.W. 14) did not disclose the version of deceased to anybody during entire process of investigation. It is pertinent to note that father of deceased (P.W. 4) did not say anything against the appellants and disowned his previous statement made to police during investigation. (4) Possibility of tutoring of deceased in hospital by P.W. 4, P.W. 8 and P.W. 14 also cannot be ruled out because initially appellant husband took the deceased to hospital for treatment but after arrival of P.W. 8 and P.W. 14 in the hospital he disappeared from the scene. (5) Appellant No. 1 is said to have caught hold of the deceased, and appellant No. 2 poured kerosene and set her ablaze. Risk of falling of kerosene and catching fire of appellant No. 1 was also there. Person with such conduct, in next breath, cannot be expected to take the deceased to hospital, it is against common sense of a prudent man. (6) Presence of appellant No. 2 in the incident was not stated by any of the prosecution witnesses, rather she was arrested after three days of the incident from the same locality. Woman &f such courage who can come to somebody elses' house to burn a woman alive in her own house, could not have remained so passive and silent at the time of marriage of the appellant and the deceased. (7) Extra marital illegal relations between the appellants was a cause of differences, quarrel and frustration to the deceased with appellant No. 1. Theory of suicide in present situation, therefore, appeared to be more probable. 28. As discussed above, it seems established from evidence that deceased was unhappy and frustrated with extra marital relations between the two appellants. On the day of the incident, at about 9.00 a.m. from her matrimonial house, the deceased, having sustained burn injuries was brought to hospital by her husband/appellant No. 1 and a neighbour Savitri Bai (P.W. 2). It was informed in the hospital that deceased caught fire by kerosene stove. After about two hours, family members of deceased gathered in the hospital. They had discussion with the deceased. At 12.15 p.m., Executive Magistrate recorded dying declaration (Exh. P-11). At 12.30 p.m., R.R. Chouhan, ASI (P.W. 11) recorded Dehati Nalishi/dying declaration (Exh. It was informed in the hospital that deceased caught fire by kerosene stove. After about two hours, family members of deceased gathered in the hospital. They had discussion with the deceased. At 12.15 p.m., Executive Magistrate recorded dying declaration (Exh. P-11). At 12.30 p.m., R.R. Chouhan, ASI (P.W. 11) recorded Dehati Nalishi/dying declaration (Exh. P-13) in which it was stated by the deceased that appellant No. 1 caught hold of her and appellant No. 2 poured kerosene and set her on fire. Deceased, however, gave a false version in subsequent dying declaration that husband ran away from the house after committing the incident. Cousin (P.W. 8) and mother of the deceased (P.W. 14) did not disclose the fact to police or to anybody that deceased was blaming the appellants for this incident. They appeared in the Trial Court for the first time to depose aforesaid facts. Father of the deceased (P.W. 4) did not support the prosecution. In these circumstances, oral dying declaration, in our opinion, lost credibility. Similarly, dying declarations (Exhs. P-11 and P-13) also cannot be relied upon. Whatever has been stated by the deceased in dying declarations against the appellants seems to be a result of tutoring, frustration and her helplessness. Such dying declarations, in our opinion, cannot be made the basis of conviction. 29. Trial Court has based the conviction on the evidence of dying declarations. Evidence of dying declarations in the present case, in our opinion, is not reliable though these do not suffer from any technical flaw in so far as its mode of recording is concerned but the deceased seems to have not stated the truth in these dying declarations. Contentions of dying declarations did not find corroboration from surrounding circumstances. Helping attitude of husband/appellant has been admitted by deceased in one of the dying declarations. Such conduct of appellant also belies truthfulness of the dying declaration. In the facts and circumstances of the case, it seems not safe to rely upon these dying declarations in absence of corroboration. In our considered opinion, no conviction can be based on the evidence of these dying declarations. 30. In our opinion, conviction and sentence of appellants is unsustainable, hence set aside. They are acquitted of the charges under Sections 302 and 302/34, IPC. Accordingly, reference made by Sessions Court is rejected. Appeal is allowed. Appellants be released forthwith, if not required in any other case.