JUDGMENT Mr. Rajive Bhalla, J.: - The appellants challenge judgment and order dated 05.09.2006, passed by the Additional Sessions Judge, Rohtak, convicting them under Sections 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- each. In default of payment of fine, to undergo further imprisonment of one year. 2. The deceased Smt. Rani, was wife of appellant no.1 Satish. Rajesh, appellant no.2, is the younger brother of Satish, whereas Parkasho Devi, appellant no.3, is the mother of Satish and mother-in-law of the deceased. 3. PW7-Dalel Singh, ASI, Police Station, Sadar, Rohtak, received a message from PGIMS, Rohtak, that one Rani wife of Satish has been admitted to the hospital with serious burns. Dalel Singh, went to police post PGIMS, Rohtak, collected a ruqa along with the medico legal report and filed an application, dated 25.04.2005, Ex.P12 seeking opinion of the doctor whether Rani is fit to make a statement. The doctor declared Rani unfit to make a statement, vide Endst. Ex.P23. On 26.04.2005 at 10.20 AM, Dalel Singh moved another application and requested the doctor to opine whether the patient is fit to make a statement. The doctor, vide Endst. Ex.P24, recorded an opinion that the patient “is fit to make a statement”. Dalel Singh, immediately forwarded a request, Ex.P17, to the learned Duty Magistrate, Rohtak, to record the statement of Rani. Shri Kuldeep Singh, Judicial Magistrate Ist Class, Rohtak, PW8, recorded the statement of Rani, Ex.P19, on 26.04.2005 at 11.15 AM. After the statement was recorded, the doctor made an endorsement Ex.P25, that the patient remained fit during her statement. The learned Magistrate, certified, vide Ex.P-21 that the statement has been recorded in his hand writing, was read over to Rani and she understood her statement before affixing her thumb impression. A carbon copy of the statement was supplied to ASI Dalel Singh, who forwarded a ruqa to Police Station Sadar, which led to the registration of FIR No.91, dated 26.04.2005, under Sections 307/34 of the Indian Penal Code. 4. Smt. Rani, passed away on 29.04.2005. An application dated 29.04.2005, Ex.P2 was forwarded to the doctor for conducting post mortem examination. The post mortem was conducted by Dr. Ritu Koda, who opined that cause of death is ante mortem burns and its complications that were sufficient to cause death in the ordinary course of nature. 4. Smt. Rani, passed away on 29.04.2005. An application dated 29.04.2005, Ex.P2 was forwarded to the doctor for conducting post mortem examination. The post mortem was conducted by Dr. Ritu Koda, who opined that cause of death is ante mortem burns and its complications that were sufficient to cause death in the ordinary course of nature. A rough site plan, Ex.P14, of the place of occurrence was prepared, statements of witnesses were recorded and the appellants were arrested. During investigation, the Deputy Superintendent of Police, City, Rohtak, arrived at a conclusion that offence under Section 306 of the Indian Penal Code alone is made out. A challan was, therefore, filed under Section 306 of the Indian Penal Code. After considering the dying declaration and the other material on record, the trial court framed a charge under Sections 302/34 of the Indian Penal Code but as the appellants pleaded not guilty, directed the prosecution to lead evidence. 5. The following witnesses have deposed in support of the prosecution case:- PW1- Dr. Ritu Koda, who conducted the post mortem; PW2-Dr. Sanjeev Kumar, who medico legally examined Smt. Rani, when she was admitted to hospital. PW3-MHC Rajinder Singh Bura, who recorded FIR Ex.P7 on the basis of ruqa Ex.P6, forwarded by ASI Dalel Singh. PW4-Constable Sumit Kumar, who prepared a scaled site plan Ex.P10 of the place of occurrence and appended marginal notes. PW5-HC Jaidev Singh, who tendered his affidavit Ex.P-11. PW6-Daya Singh, father of the deceased, who deposed about the strained relations between Satish and the deceased and also deposed that Satish was an alcoholic. He also deposed that he received a telephone call from Preeti, daughter of Rani, to intervene in the matter etc. PW7-ASI Dalel Singh-, who got the dying declaration recorded and conducted part of the investigation. PW8- Sh. Kuldip Singh, JMIC, Rohtak, who recorded the dying declaration of the deceased at PGIMS, Rohtak. PW9- Dr. Rahul, PG Student, who recorded his opinion, vide Endst. Ex.P23 on the application dated 25.04.2005, Ex.P12, that Smt. Rani is unfit to make a statement and also recorded an opinion on 26.04.2005, vide Endst. Ex.P24, that Rani is fit to make a statement and that she remained fit during the recording of her statement. PW10-SI/SHO Rohtas Singh, the investigating officer. 6. Preeti daughter of the deceased, and Parkash were given up as won over by the appellants. 7. Ex.P24, that Rani is fit to make a statement and that she remained fit during the recording of her statement. PW10-SI/SHO Rohtas Singh, the investigating officer. 6. Preeti daughter of the deceased, and Parkash were given up as won over by the appellants. 7. Upon closure of prosecution evidence, the appellants’ statements were recorded under Section 313 of the Code of Criminal Procedure. The appellants denied the allegations levelled against them and pleaded false implication. In defence, the appellants produced the following witnesses. DW1- Rajesh Kumar, Electrician, who deposed that he knew accused Satish and others and deposed that at the given time Rajesh was working in the house of DW2. DW2- Jagidsh Chander, a Retd. Capt., who deposed that Rajesh, appellant no.2 was working as a plumber at my residence on 25.04.2005 from 9.00 AM to 5.45. PM. DW3- Preeti daughter of the deceased, who deposed that her father started cooking meals. She went upstairs and noticed that her mother had caught fire, summoned her grand father Parkash and grand mother. DW4- Sant Lal Phogat, DSP(Retd.), who has deposed that on verification he found that the offence falls under Section 306 IPC. DW5- Parkash, driver in DTC, Delhi, who has deposed that the accused Rajesh was present in the house. DW6- Dr. Hardev Singh, Medical Officer, who examined Parkash, grand father of Preeti. 8. After considering the evidence on record, the trial court accepted the dying declaration, convicted and sentenced the appellants under Section 302 of the Indian Penal Code. 9.Counsel for the appellants, submits that the dying declaration, Ex.P20, should be rejected. The deceased was almost 100% burnt and, therefore, could not be expected to make a statement, much less a clear and cogent statement. It is further submitted that before a dying declaration is accepted, the prosecution has to prove that the deceased was medically fit to make a statement, the deceased was not tutored, the deceased had an opportunity to witness the occurrence and is telling the truth. The deceased was declared medically unfit on 25.04.2005 but surprisingly recovered and was declared fit by PW2-Dr. Sanjeev Kumar on 26.04.2005. The dying declaration is clearly tutored as the appellants’ parents were admittedly present in hospital. The tendency to implicate as many persons of the opposite family is a fact, that has been judicially noticed by courts. The deceased was declared medically unfit on 25.04.2005 but surprisingly recovered and was declared fit by PW2-Dr. Sanjeev Kumar on 26.04.2005. The dying declaration is clearly tutored as the appellants’ parents were admittedly present in hospital. The tendency to implicate as many persons of the opposite family is a fact, that has been judicially noticed by courts. It is further submitted that if the appellants were guilty of the offence as alleged, they would not have carried the deceased to the hospital. The hospital record reveals that the deceased was admitted by Rajesh, appellant no.2, the brotherin- law. PW6 father of the deceased has not deposed about any grievance against appellant nos.2 and 3, brother-in-law and mother-in-law, of the deceased. The grievance, if any was that appellant no.1, Satish, who was an alcoholic, beat and maltreated the deceased regularly. The conviction of appellants no.2 and 3 on the basis of an uncorroborated dying declaration is not warranted. It is further submitted that a simple accident while preparing food has been altered into a murder. The prosecution has not taken any can or bottle containing kerosene or a match box into possession, so as to corroborate the facts narrated in the dying declaration. It is further submitted that after investigation the police accepted that it is an accidental death and filed a report under Section 306 of the Indian Penal Code. The trial court has ignored the deposition of DW3 Preeti, daughter of the deceased, who has deposed that her mother caught fire accidently. The trial court has ignored the deposition of DW5 Parkash, who has clearly deposed that he saw the deceased on fire but did not see any of the accused. In case the appellants had set fire to the deceased, they would not have allowed Parkash, DW5, a neighbour, to enter the house. Furthermore DW5 should be believed as he sustained burn injuries. The trial Court has also failed to deal with the alibi set up by Rajesh, as established from the deposition of DW1 and DW2. At the relevant time, Rajesh was working as a plumber at the house of DW2. The statement of DW2 is corroborated by the statement of DW1. An unfortunate accident has been converted into a homicidal death on the basis of the dying declaration, alone. 10. At the relevant time, Rajesh was working as a plumber at the house of DW2. The statement of DW2 is corroborated by the statement of DW1. An unfortunate accident has been converted into a homicidal death on the basis of the dying declaration, alone. 10. Counsel for the State of Haryana submits that the prosecution has adduced clear, cogent and reliable evidence to bring home the appellants’ guilt. The appellants’ defence has undergone repeated changes during investigation and trial. When Rani was admitted to hospital, the cause of death was said to be burns sustained while cooking food on a gas stove but when kerosene was detected, during the post mortem, the version was changed to a stove having burst. The deceased, has clearly pointed out specific roles played by the appellants. In the absence of any evidence that she was tutored or medically unfit to make a statement, the dying declaration has been righty accepted. The argument that she was tutored to implicate the mother-in-law and the brother-in-law, as her parents were present in the hospital is to far fetched, to believe. A person on the verge of death would not falsely implicate persons against whom she has no grievance. Preeti daughter of the deceased , who was apparently coerced by the appellants to appear as a defence witness has admitted the presence of the appellants in the house thereby putting paid to the alibi, set up by Rajesh, appellant no.2. 11. We have heard counsel for the parties, considered the evidence on record and perused the judgment and order recorded by the trial court. 12. The case in hand hinges almost entirely on the dying declaration, Ex.P20 recorded by Judicial Magistrate Ist Class, Rohtak. A statement made by a deceased as to the cause of death is a relevant fact. Section 32(1) of the Indian Evidence Act, 1872, postulates that statements written or verbal of facts made by a person who is dead are themselves relevant facts when the statement is made by a person as to the cause of his/her death or as to any of the circumstances of the transaction which has resulted into death. Section 32(1) of the Indian Evidence Act, 1872, postulates that statements written or verbal of facts made by a person who is dead are themselves relevant facts when the statement is made by a person as to the cause of his/her death or as to any of the circumstances of the transaction which has resulted into death. Section 32(1) of the Act reads as follows:- “Section 32(1): When it relates to cause of death-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’ s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 13. The law attaches a degree of sanctity to a dying declaration because, as summed up by a Latin phrase “nemo moriturus praesumitur mentire”, a man will not meet his maker with a lie on his lips. Before relying upon a dying declaration, a court would be required to rule out any possibility of the deceased being tutored, the statement being the product of a vengeful or hallucination mind, is voluntary and not influenced by any extraneous consideration etc.. At this stage, it would be appropriate to reproduce a relevant extract from a judgment of the Hon’ble Supreme Court in Dandu Lakshmi Reddy vs. State of Andhra Pradesh, 1999 (7) SCC, 69:- “On the fact situation of a case, a judicial mind would tend to wobble between two equally plausible hypotheses was it suicide, or was it homicide? If the dying declaration projected by the prosecution gets credence, the alternative hypothesis of suicide can be eliminated justifiably. For that purpose a scrutiny of the dying declaration with meticulous circumspection is called for. It must be sieved through, and if it passes through the gauzes it can be made the basis of a conviction, otherwise not”. 14. In Paniben Vs. For that purpose a scrutiny of the dying declaration with meticulous circumspection is called for. It must be sieved through, and if it passes through the gauzes it can be made the basis of a conviction, otherwise not”. 14. In Paniben Vs. State of Gujarat, 1992(2) SCC, 474, the Hon’ble Supreme Court held as follows:- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.[See Mannu Raja v. State of Madhya Pradesh,1976(3) SCC 104]. (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 Madhya Pradesh v. Ram Sagar Yadav, 1985(1) SCC 552; Ramavati Devi v. State of Bihar, 1983(1) SCC 211]. (iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See, K. Ramchandra Reddy v. Public Prosecutor, AIR 1976 SC 1994]. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [See, Rasheed Beg v. Sate 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, Kake Singh v. State of Madhya Pradesh, AIR 1982 SC 1021]. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath v. State of Uttar Pradesh, 1981(2) SCC, 654]. (vii) Merely because a dying declaration does not 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]. Equally, merely because it is a brief statement, it is not be discarded. [Ram Manorath v. State of Uttar Pradesh, 1981(2) SCC, 654]. (vii) Merely because a dying declaration does not 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]. Equally, merely because it is a brief statement, it is not be discarded. General principle on which this species of evidence is admitted is that they are declarations made in extremity,when the party is at the point of death and when every hope of this world is gone, when every motive 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 lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.” 15. Counsel for the appellants has urged that the dying declaration should be rejected as it is tutored and as a person with 95% burns is medically incapable of making such a statement. He has also urged that as the deceased and her parents have not alleged any wrong doing by the mother-in-law or the brother-in-law, there was no reason for them to catch hold of her, sprinkle kerosene, and set her on fire. 16. It is the admitted case of parties that Rani suffered 95% burns and died on 29.04.2005, on account of these injuries. She was admitted to hospital by Rajesh, appellant no.2, her brotherin- law, by stating that she has sustained burns, due to leakage of gas. ASI Dalel Singh, PW7, filed an application on 25.4.2005 seeking the opinion of the doctor whether Rani is medically fit to make a statement. The doctor opined vide Endst. Ex.P23 that she is not medically fit. On 26.04.2005 he once again made a request to the doctor to opine whether Rani is fit to make a statement. The doctor opined, vide Endst. Ex.P24, that she is fit to make a statement. A request was immediately forwarded to the Judicial Magistrate Ist Class, Rohtak, to record the statement of Rani. Before recording the statement, the learned Magistrate obtained the opinion of the doctor whether Rani is fit to make a statement. The doctor opined, vide Endst. Ex.P24, that she is fit to make a statement. A request was immediately forwarded to the Judicial Magistrate Ist Class, Rohtak, to record the statement of Rani. Before recording the statement, the learned Magistrate obtained the opinion of the doctor whether Rani is fit to make a statement. The doctor opined that the patient is fit to make a statement. The proceedings recorded by the learned Magistrate before recording the dying declaration and the dying declaration, Ex.P20 read as follows:- It is now 11.15 A.M.. It is Ward No.6 of PGIMS, Rohtak. One lady is lying on the bed and on asking, she tells her name as Rani w/o of Satish. She has shown her desire to record her statement before me being Duty Magistrate. I have asked all the police officials and other persons to vacate the room. I have put some question of very general nature to Rani. 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. Doctor has declared her medical condition as fit for making statement. Therefore, I proceed to record the statement of Rani w/o Satish R/o Bitani, District Jind. ......on SA. Question:-Whether you are married? Ans: I got married 11 years before and the 12th years is in progress. I have three children. Question: What is the occupation of your husband? Ans: He is a daily wager. Question:-What has happened to you? Ans:- At 1.30 A.M. (at night) my husband consumed liquor and beat me till it was day light. Then my mother-in-law also quarreled with me. Thereafter, my husband went out of the house. When he returned he was drunk. He gave me more beatings. At 5 P.M in the evening, my mother-in-law and dewar Rajesh caught hold of me and my husband after sprinkling kerosene oil upon me, set me on fire. What happened, thereafter, I do not know. Question: Whether you have made the above voluntarily? Ans:- Yes. Question:-Do you want to say anything else? Ans.:- No. RO&AC R.T.I. of Patient remained fit Sd/-Kuldeep Rani during statement Singh Sd/- J.M.I.C.Rohtak Doctor, PGI/6-I 26.4.05 26.4.05 at 11.30 A.M. 11.30 A.M.” 17. The dying declaration, is in question-answer form and records that her husband consumed liquor and beat her till day break. Her mother-in-law quarreled with her in the morning. Question:-Do you want to say anything else? Ans.:- No. RO&AC R.T.I. of Patient remained fit Sd/-Kuldeep Rani during statement Singh Sd/- J.M.I.C.Rohtak Doctor, PGI/6-I 26.4.05 26.4.05 at 11.30 A.M. 11.30 A.M.” 17. The dying declaration, is in question-answer form and records that her husband consumed liquor and beat her till day break. Her mother-in-law quarreled with her in the morning. Her husband left the house but returned, drunk and beat her again. At 5.00 PM her mother-in-law and devar Rajesh caught hold of her, her husband sprinkled kerosene oil on her and set her on fire. The statement is thumb marked by the deceased and contains an endorsement by the doctor that the patient remained fit during the recording of statement. Before recording the statement, the learned Magistrate has recorded that Rani expressed her willingness to record her statement before him. He, thereafter requested the police officials and other persons to vacate the room. Before recording the statement, the learned Magistrate asked general questions, so as to satisfy himself that she is in a fit state of mind, ready to make the statement voluntarily and is not under any pressure or duress to make the statement. 18. The appellants’ criticism of the dying declaration is that a person with 95% burns cannot possibly make a statement. Counsel for the appellants has not referred to, with good reason, any medical treatise or opinion that a person with 95% burns, can in no situation, record a statement. We have of our own made an attempt to examine commentaries on medical jurisprudence and all that we could come across is that as such a person “may” not be capable of making a statement, a dying declaration by a person who has suffered 95% burns should be considered with a great degree of care. 19. We have considered the endorsements recorded prior to and after the recording of the dying declaration and are satisfied that the deceased was conscious and aware of the questions addressed to her. We find nothing on record to suggest that she was incapable of making the statement or was tutored. The fact that she suffered 95% burns does not caste any doubt as to the correctness of the dying declaration as it was recorded, by a Judicial Magistrate after the doctor opined that she is fit to make a statement. We find nothing on record to suggest that she was incapable of making the statement or was tutored. The fact that she suffered 95% burns does not caste any doubt as to the correctness of the dying declaration as it was recorded, by a Judicial Magistrate after the doctor opined that she is fit to make a statement. The doctor has also opined that she remained conscious during the recording of the dying declaration. 20. The argument that as her father and relatives were present in the hospital, they tutored the deceased, to implicate all the appellants, cannot be accepted. If the deceased’s father and relatives had tutored her, he would have while deposing, as PW6 levelled allegations of harassment and maltreatment against the mother-in-law and brother-in-law. The father of the deceased has not made any such allegation. The mere presence of the deceased’s relatives, in the hospital, in the absence of an overt act, cannot lead to an inference that the deceased was tutored to falsely implicate her mother-in-law and brother-in-law. At this stage, we would like to point out that the deceased has stated that she was burnt by sprinkling kerosene oil. He statement, in the dying declaration, is corroborated by the post mortem report and the statement of Dr. Ritu Koda, that she could smell kerosene from the body of the deceased. 21. We, therefore, have no hesitation in holding that the dying declaration records a correct narrative of the facts that lead to the death of Rani and does not suffer from any infirmity as would enable us to hold that it was tutored or is an exaggeration of the facts or the product of a vengeful mind bent upon retribution. 22. As regards the alibi and the other evidence produced in defence, it appears that respondents made attempts at every stage of the case to subvert the process of law. As an illustration, we would like to make a reference to the fact that before the police, Preeti, a minor daughter of the deceased made a statement corroborating the contents of dying declaration and implicating the appellants on all relevant particulars. She was cited as a witness by the prosecution. During the trial, she was won over by the appellants compelling the prosecution to give her up as a prosecution witness. Preeti, thereafter, appeared as a defence witness and deposed that burn injuries were accidental. She was cited as a witness by the prosecution. During the trial, she was won over by the appellants compelling the prosecution to give her up as a prosecution witness. Preeti, thereafter, appeared as a defence witness and deposed that burn injuries were accidental. She tried to suppress the truth but being a child of tender age blurted out certain significant facts which in essence destroy the alibi and the defence. She has admitted the presence of the appellants in the house, thus, corroborating the dying declaration and putting paid to the alibi. 23. Rajesh appellant has set up an alibi that he and his wife reside separately from the deceased but Preeti has admitted in her cross-examination that they, Rajesh appellant and her grand parents reside in the same house. She has also admitted that she is residing with the wife of Rajesh. It appears that this unfortunate child has been used as a pawn by the appellants in an attempt to conceal true facts relating to the death of her mother. The alibi set up by Satish, is based upon the statements of DW1 Rajesh Kumar, DW2 Jagdish Chander and DW5 Parkash. DW1-Rajesh Kumar has deposed that at about 5.30 PM on 25.04.2005 when he was going to attend the marriage of a friend, he heard noise from the house of the appellants and found that Rani had suffered burn injuries. He immediately went to the house of Captain Jgdish Chander, in Sector-2, informed Rajesh and accompanied him to PGIMS, Rohtak. He has also deposed that Rajesh was installing a handpump in the house of Captain Jagdish Chander on 25.04.2005. DW2-Captain Jagdish Chander has deposed that Rajesh, appellant worked at his house from 9.00 AM to 5.45 PM on 25.04.2005 and was called away by Rajesh. Parkash, DW5, a neighbour, has deposed that he heard the ladies shouting “Rani open the door” and Sheela wife of Rajesh shouting “Ram-Gaon Bhajio Nash Ho Gaya”. He rushed to the house and saw Rani opening the door and coming out in a burnt condition. He tried to extinguish fire with a ‘Dari’ and received burn injuries, on his hands, which have been proved by Dr. Hardev Singh, Medical officer, District Jail, Sonepat. He has also deposed that at the time of incident Rajesh, appellant was not present at his house. He tried to extinguish fire with a ‘Dari’ and received burn injuries, on his hands, which have been proved by Dr. Hardev Singh, Medical officer, District Jail, Sonepat. He has also deposed that at the time of incident Rajesh, appellant was not present at his house. The deposition by DW5 that he saw Rani opening the door and in a burnt condition, in our considered opinion, is an attempt by the defence to use the burn injuries on the person of Parkash to cook up a hypothesis of suicide. It appears that Parkash, a neighbour, was attracted by the shouts and screams of the deceased and other ladies and indeed did make an attempt to extinguish the fire and, therefore, received superficial burn injuries on his hands. Parkash, has been used in an attempt to subvert the truth. We find no reason to believe the depositions of defence witnesses, as none of these witnesses chose to inform the police, at any time during the investigation. Even otherwise, as we have already recorded our opinion that the dying declaration contains a truthful narrative of the cause of death, the evidence relating to the alibi must necessarily be rejected. We, therefore, hold that the evidence on record, leaves no manner of doubt that the appellants committed the murder of Rani by setting her on fire. Consequently, we dismiss the appeal. --------------