JUDGMENT Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 15.3.2005 delivered by the learned Presiding Officer, Fast Track Court, Hamirpur in Sessions trial No. 30 of 2002/16 of 2004 whereby he acquitted the accused of having committed the murder of deceased Saroj Kumari. 2. The admitted facts are that Saroj Kumari was married to Daljit Singh, resident of Chhaunta, Tehsil Sujanpur, District Hamirpur. Accused Parsino Devi is sister-in-law of the deceased and married to the brother of Daljit Singh. It is also not disputed that Saroj Kumari suffered serious burn injuries to the extent of 60-65% on 12.04.2002 in her house. She was thereafter taken to the Community Health Centre, Sujanpur from where she was referred to the Zonal Hospital, Hamirpur and finally to PGI, Chandigarh. They reached PGI on 13.4.2002 at 4.15 a.m and unfortunately Saroj Kumari expired as a result of the burn injuries on 20.4.2002. 3. The case of the prosecution is that since relations between Saroj Kumari and her sister-in-law accused Parsino Devi were strained they used to constantly fight with each other and that on 12.4.2002 the accused set Saroj Kumari on fire after pouring kerosene oil on her. There are two conflicting dying declarations in the case. The first dying declaration Ext.PW-3/C was recorded by PW-16 Gurdas Ram in CHC Sujanpur in the presence of PW-3 Dr.Shashi Sharma. In this statement it is mentioned that while the deceased was preparing tea the stove on which she was making the tea fell down. The kerosene oil fell on the floor and on her clothes and caught fire. Saroj Kumari cried for Montoo, who came to the spot and nobody else was present at the house at that time. 4. The second statement Ext.PW-18/D was recorded at the instance of PW-12 SI Karam Singh posted at Police Post PGI, Chandigarh by Sh. Sanjay Sandhir PW-18, who was then posted as JMIC, Chandigarh, in the presence of PW-19 Dr. A.B.Prabhu, Senior Resident, PGI Chandigarh. This statement is a very detailed one. As per this dying declaration deceased Saroj Kumari had stated that that she and her sister-in-law (the accused) had some fight over water on the said date and thereafter she was set on fire by the accused. A.B.Prabhu, Senior Resident, PGI Chandigarh. This statement is a very detailed one. As per this dying declaration deceased Saroj Kumari had stated that that she and her sister-in-law (the accused) had some fight over water on the said date and thereafter she was set on fire by the accused. As per this version the accused suddenly came towards the deceased and poured something on top of her and then set her on fire. In the meantime Montoo alias Dinesh Kumar came there. The learned trial Court in view of the two conflicting dying declarations acquitted the accused. Hence, this appeal by the State. 5. The law with regard to appreciation of a dying declaration has been summarized by the Apex Court in Bhajju alias Karan Singh vs. State of Madhya Pradesh (2012) 4 SCC 327 , wherein it was held as follows:- “22. The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle that Section 32 of the Indian Evidence Act, 1872 (for short ‘the Act’) is an exception to the general rule against the admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a ‘dying declaration’. 23. The ‘dying declaration’ essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man’s mind, the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth. 24. 24. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. 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 by other evidence. xxx… xxx… xxx… 26. The law is well-settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction. xxx… xxx… xxx… 30. It will also be of some help to refer to the judgment of this Court in the case of Muthu Kutty and Another v. State by Inspector of Police, T.N., (2005) 9 SCC 113 where the Court, in paragraph 15, held as under:- “15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [ (1992) 2 SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC 1817 ] (SCC pp. 480-81, paras 18-19) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.) (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 U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.) (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. Ramachandra Reddy v. Public Prosecutor) (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.) (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 M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does notcontain the details as to the occurrence, it is not to be rejected. (See Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does notcontain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.) (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.) (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)” 6. It is in the light of the aforesaid law that we proceed to examine this case. As far as the first dying declaration is concerned the same has been proved by PW-3 Dr. Shashi Sharma and PW-16 ASI Gurdas Ram, who recorded the same. PW-16 has clearly stated that after obtaining the opinion of the doctor that Saroj Kumari was in a fit state to make a statement he recorded her statement in the presence of Dr. Shashi Sharma and he recorded whatever stated by Saroj Kumari. There is no crossexamination to this witness on this score. PW-3 Dr. Shashi Sharma has clearly stated that the statement of Saroj Kumari was recorded by PW-16 in her presence. She further states that Saroj Kumari made the statement voluntarily and whatever was stated by Saroj was recorded by ASI Gurdas Ram in her presence. This witness has also not been cross-examined. 7. PW-3 Dr. Shashi Sharma has clearly stated that the statement of Saroj Kumari was recorded by PW-16 in her presence. She further states that Saroj Kumari made the statement voluntarily and whatever was stated by Saroj was recorded by ASI Gurdas Ram in her presence. This witness has also not been cross-examined. 7. As far as the second dying declaration is concerned, at the outset, we may note that as per the prosecution the deceased reached PGI at about 4.00 a.m on 13.4.2002. PW-11 S.I. Karam Singh who was posted in the Police Post PGI states that on the request of the Medical Officer, PGI he moved an application before the duty magistrate, Chandigarh to record the statement of Saroj Kumari. No written request of the Medical Officer has been placed on record and as per the document Ext.PW-11/A the request made to the duty magistrate was on behalf of Karam Singh and there is no mention of any request being made by the Medical Officer. The doctor opined that Saroj Kumari was in a fit condition to make the statement. According to PW-18, who is a Judicial Magistrate, he recorded the version as given by Saroj Kumari. He states that Saroj Kumari was speaking partly in Hindi and partly in Pahari language. He also states that he did not know Pahari language but recorded the statement in his own hand in Hindi. According to him he was putting questions to Saroj Kumari in Hindi and she was answering in Hindi and Pahari. The statement is very long and detailed and if one goes through the entire statement it does not appear that such a statement could have been given by a person who had suffered 65% burn injuries. The statement is so detailed that it appears that either the statement of some absolutely conscious person was being recorded or Saroj Kumari was being tutored by some person to give the statement. 8. According to PW-18 no other person except the doctor attending on Saroj Kumari were present when her statement was recorded. In cross examination Sanjay Sandhir admitted that many other patients and their attendants were present in the room when the statement was being recorded. 9. PW-19 Dr. A.B.Prabhu also states that no other person except him and the Judicial Magistrate were present inside the room where the statement was recorded. In cross examination Sanjay Sandhir admitted that many other patients and their attendants were present in the room when the statement was being recorded. 9. PW-19 Dr. A.B.Prabhu also states that no other person except him and the Judicial Magistrate were present inside the room where the statement was recorded. He states that he was at a distance of five feet from the bed of the patient when her statement was recorded. It took 20 to 25 minutes to record her statement and according to him he remained standing for this entire period at the same place at a distance of five feet. Interestingly he states that he could hear anything and could not say in which language the patient gave the statement to the Judicial Magistrate. It is totally unbelievable that the doctor standing at a distance of only five feet would not be able to even state in which language the statement was being made. It apparently shows that the doctor was not present when the statement was recorded. 10. As far as PW-11 is concerned his version is totally different. According to him there were 18 to 20 people in the room including patient and their attendants when the statement was record. He states that he was present inside the room when statement of Saroj Kumari was being recorded. Therefore, the statements of these three witnesses are totally contradictory to each other. PW-18 also states that he asked the relatives and SI Karam Singh to go away but this fact is not recorded by him in his proceedings at the hospital. 11. Therefore, we are left with two dying declarations. In the first declaration not only the police official but the doctor has also clearly stated that they heard each and every word of the statement. As far as the second statement is concerned both the doctor and the police official state that they did not know what was stated by Saroj Kumari. The doctor could not even identify the language in which the statement was made, which casts doubt on the veracity of his testimony. As far as the second statement is concerned both the doctor and the police official state that they did not know what was stated by Saroj Kumari. The doctor could not even identify the language in which the statement was made, which casts doubt on the veracity of his testimony. Therefore, though the second statement is recorded by a Judicial Magistrate, we are constrained to hold that the contradictions in the witnesses to the second statement and the fact that the first statement has been fully proved and the witnesses were not subjected to any cross-examination makes the first statement more reliable. 12. PW-9 Dinesh Kumar is the first person who reached on hearing the crises of Saroj Kumari. According to him at about 4.30 p.m when he heard the cries coming from the house of the deceased he peeped through the door and noticed flames on the body of the deceased. He went inside the room and picked up a pitcher of water and threw the water on the deceased to extinguish the fire. He then immediately rushed to inform his father and to arrange a vehicle to take Saroj Kumari to the hospital. He also informed the husband of Saroj Kumari about the occurrence. According to him when he reached the spot the deceased was lying flat on the kitchen garden. Later he states that first time he saw her in the court-yard. He also states that before he reached the spot his cousin Reena alias Saroj was already throwing water on the deceased. Accused Parsino arrived at the spot after his arrival. He further states that the relation between the accused and the deceased were amicable though some times there was some sort of difference of opinion between them. In cross-examination he admits that the deceased was lifted with the help of the accused from the kitchen garden. 13. Sheela Devi PW-10 is another person who reached the spot soon after the occurrence. According to her when she reached the courtyard of the deceased she found her standing in the courtyard alongwith Saroj, who is daughter of the accused Parsino Devi and one Dinesh Kumar. The accused was also present. At that time the fire had been extinguished. This witness clearly states that she asked the deceased what had happened but Saroj Kumari did not reply. The accused was also present. At that time the fire had been extinguished. This witness clearly states that she asked the deceased what had happened but Saroj Kumari did not reply. This witness also states that the accused and the deceased were having cordial relations with each other but had a tiff over water on that day. In cross-examination she admits that the accused had helped in carrying the deceased inside the house and thereafter the accused had also assisted in changing the clothes of the deceased. 14. PW-13 Daljit Singh is the husband of the deceased. He was informed about the fact that his wife had been burnt and thereafter he immediately hired a vehicle to go to his village. He met the family members, who were taking his wife Saroj Kumari, near Chowki. According to him, Saroj Kumari, kept asking for water but did not say anything. His version is that at Chandigarh his brother-in-law i.e. brother of Saroj Kumari came to the spot and insisted that the statement of the deceased should be recorded in the presence of some higher official and thereafter a Magistrate was called for. He states that the accused and his wife quarreled about 5-6 months earlier. In cross-examination he states that he is not on speaking terms with the accused but goes on to say that his wife had not told him anything. His version is that the questions were being asked by the Magistrate but the statement was in fact written down by some other person. His statement also does not help the prosecution. 15. In view of the above facts it is very difficult to rely upon the second dying declaration. Admittedly, Saroj Kumari was in a position to talk. Except for the Magistrate, who recorded her statement at Chandigarh, no other person has stated that she complained that she had been set on fire by Parsino Devi. In these circumstances it would be highly imprudent to rely upon the second dying declaration. The learned trial Court has taken one view in the case which is a possible view and therefore, while hearing the appeal we are not inclined to reverse the findings since they are not perverse and all the evidence has been taken into consideration. 16. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. 16. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged.