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2013 DIGILAW 1878 (ALL)

Ajay Kumar v. State of U. P.

2013-07-18

IMTIYAZ MURTAZA, VINAY KUMAR MATHUR

body2013
JUDGMENT Vinay Kumar Mathur,J. The instant appeal is directed by the accused-appellants, Ajay Kumar and Jagesar against the Judgment and Order passed in Sessions Trial No. 428 of 2000, State Versus Ajay Kumar and Others, under sections 302,304-B and 498-A I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station-Kandhai, district-Pratapgarh, dated 06-11-2004 passed by Additional Sessions Judge, F.T.C. No. 3, Pratapgarh, whereby the appellants have been held guilty for the offences under sections 302 readwith section 34 I.P.C. and 498-A, I.P.C. and have been sentenced to imprisonment for life under section 302 readwith section 34 I.P.C. and have been further sentenced under section 498-A I.P.C. for rigorous imprisonment for a term of two years each. Both the sentences have been ordered to run concurrently. The other co-accused Vijay Bahadur Maurya and Sita Devi have been acquitted. 2. The brief facts leading to filing of the instant appeal are that informant, Ganga Prasad Maurya, filed a written report dated 22-12-1999 alleging that he had married his daughter, Kiran Devi in the year 1993 with co-accused, Vijay Bahadur and had given dowry according to his status in the marriage. It is further alleged that after marriage, co-accused, Vijay Bahadur, his mother (Sita Devi) and younger brother, Ajay Kumar and uncle, Jageswar who have joint family started demanding gold ring, chain and a scooter and informant's daughter was harassed in connection with said dowry demand. When the informant went to meet his daughter, she told him about the demands and also about harassment and ill treatment meted out to her. It is alleged that in the night of 21-12-1999 at about 11.00 p.m., the accused persons after beating Kiran Devi with Danda, poured kerosene oil and set her on fire and closed the room. It is also alleged that the informant's daughter had a 4 years old son, Rahul with her who was also burnt in the incident. While informant's daughter was admitted in the hospital, her son, Rahul also died in the hospital. It is further alleged that the in-laws of the informant's daughter had threatened that if she does not give a statement in their favour, they will not get her son properly treated and he will die. On the basis of this threat, they managed to get the statement of informant's daughter recorded through some officer in their favour. It is further alleged that the in-laws of the informant's daughter had threatened that if she does not give a statement in their favour, they will not get her son properly treated and he will die. On the basis of this threat, they managed to get the statement of informant's daughter recorded through some officer in their favour. A fresh statement of the girl was therefore, required to be recorded. On the basis of the written report, a case at Crime No. 286 of 1999 was registered against the appellants and co-accused on 22-12-1999 at 19.30 hours. 3. The investigation of the case was conducted by S.I., Sharda Prasad, P.W.-9, who inspected the place of occurrence and prepared the site plan, Exhibit Ka-15. He took into possession the burnt clothes and pieces of mattress and prepared Memorandum, Exhibit Ka-16. The Investigating Officer also recorded the statement of the informant, Ganga Ram Maurya on 23-12-1999. Smt. Kiran Devi died in the hospital. Her post-mortem was conducted and the case was converted under section 304-B, I.P.C. Thereafter, the investigation was transferred to Amar Bahadur Singh, P.W.-8, Circle Officer, who after perusal of the case diary submitted a chargesheet against the accused, Ajay Kumar, Jageswar and Smt. Sita Devi, Exhibit Ka-13. He also submitted a separate chargesheet against co-accused, Vijay Bahadur Maurya, Exhibit Ka-14. 4. Cognizance was taken on the chargesheets. Since the case was triable by the court of Sessions, it was committed to the court of sessions. Charges against all the four named accused under sections 498-A,304-B, 302 readwith section 34 I.P.C. and 3/4 Dowry Prohibition Act were framed on 27-02-2003 by the Additional Sessions Judge, F.T.C. No. 3, Pratapgarh. All the accused pleaded not guilty and claimed to be tried. On 25-10-2004, another charge under section 302 readwith section 34 I.P.C. was framed in connection with the alleged murder of Smt. Kiran Devi. The accused persons denied the charges and claimed trial. 5. To prove its case, the prosecution examined Ganga Prasad Maurya, Informant as P.W.-1 who has supported the version of the F.I.R. He has also stated that a written agreement had been executed by Muneshwar Dutt(father-in-law of deceased). The original has been produced by the witness and has been proved as Exhibit Ka-2. 5. To prove its case, the prosecution examined Ganga Prasad Maurya, Informant as P.W.-1 who has supported the version of the F.I.R. He has also stated that a written agreement had been executed by Muneshwar Dutt(father-in-law of deceased). The original has been produced by the witness and has been proved as Exhibit Ka-2. During cross-examination, he has stated that he had shown the compromise to the Investigating Officer who had handed it back to him with a direction to produce it in the court. He has stated that the compromise was executed in his village when Muneshwar had visited the village but the harassment continued. He has denied the suggestion that he had changed the year from 1992 to 1993 in the copy of compromise because the period of seven years had exceeded. The deceased had some differences with her Mother-in-law and Muneshwar had taken his daughter in-law back to his house after the compromise. The information about the incident had been given to him by one Ranjeet Singh Thakur on 22-12-1999 between 10.30 to 11.00 and thereafter, he started for Pratapgarh within an hour. After reaching the house of accused persons, he learnt that his daughter had been admitted in the hospital. When he reached the hospital, only accused, Ajay was present in the hospital. He met his daughter and asked whether any Magistrate had recorded her statement. She narrated the facts and also informed about the threat regarding stoppage of treatment of her son in case she does not state in their favour. After meeting his daughter, he went to the court and got the Tahrir typed. He had not talked to any lawyer there, though there were many lawyers in the court premises. Thereafter, he went to the Superintendent of Police with the report. The girl survived for two days. On 23rd or 24th, the statement of the girl was recorded for the second time. 6. Shiv Patti, P.W.-2, is the mother of deceased, who has also supported the prosecution case. In her cross examination, she has stated that after 'Bidai ' her husband went to the house of in-laws of Kiran where she had told him that her-in-laws were demanding chain, ring and a scooter and were harassing her. She has also stated that a compromise had been entered two months prior to the death of Kiran, but, she had not attended the Panchayat. She has also stated that a compromise had been entered two months prior to the death of Kiran, but, she had not attended the Panchayat. She has also stated that she has acquired all the knowledge from her husband. 7. Sulochana, P.W.-3, has stated that Kiran was her 'Chacheri' nand. She had returned after one month of Bidai and had told her that her husband Vijay Bahadur and Devar, Ajay Kumar and her uncle in-law, Jageswar, Mother-in-law,Sita Devi used to demand golden chain, ring and a scooter and used to beat and harass her. A Panchayat had also taken place in this connection, but, still her in-laws continued to beat Kiran Devi. She has also alleged that the accused persons have killed her sister-in-law due to non fulfillment of their dowry demands. During cross examination, she has stated that in case the Investigating Officer has not recorded the fact that Kiran had told her about the demands and Marpeet with her, in her statement recorded under section 161 Cr.P.C., she cannot give reasons for this. She has admitted that Vijay Bahadur was employed somewhere else. 8. Dr. P.S. Mishra, P.W.-4, has conducted the post-mortem of the dead body of the deceased, Kiran on 25-12-1999 in the district hospital, Pratapgarh at about 04.00 P.M. and has stated that whole body was burnt but some portions of the feet, hips and eye brows and eye-lashes were not burnt. He has proved the post-mortem report, Exhibit Ka-2. During cross-examination, he has stated that there is no mention in the post-mortem report as to what was the percentage of burns. He has also stated that apart from the burns, there was no other injury mentioned in the report. No smell of kerosene oil was emanating from the dead body of the deceased. 9. Dr. S.S.Bhadauria, P.W.-5, has stated that on 22-12-1999 at about 03.00 p.m., he had performed the post-mortem of Rahul aged about 4 years who had died on 22-12-1999 in the night at about 12.55 hours. He found boils on the body. The skin was peeling off. He has proved the post-mortem report-Exhibit-Ka-3. During cross-examination, he has stated that no other injury except, burn injuries was found on the body of the deceased. 10. Babu Ram Singh, P.W.-6, has prepared the inquest report of the deceased, Rahul, on 22-12-1999 and has proved it as Exhibit Ka-4. He found boils on the body. The skin was peeling off. He has proved the post-mortem report-Exhibit-Ka-3. During cross-examination, he has stated that no other injury except, burn injuries was found on the body of the deceased. 10. Babu Ram Singh, P.W.-6, has prepared the inquest report of the deceased, Rahul, on 22-12-1999 and has proved it as Exhibit Ka-4. He has also proved the photo copy of Lash, Challan Lash, Sample of seal, letters to C.M.O and R.I. as Exhibits Ka-5 to Exhibit Ka-9, respectively. 11. Amar Bahadur Singh, Circle Officer, P.W.-08, is the second Investigating Officer, who has stated that after conversion of the case under section 304-B I.P.C., the investigation was entrusted to him. After perusal of case diary he filed chargesheets. He has proved the Chargesheet against the accused, Ajay Kumar, Jageswar and Sita Devi as Exhibit Ka-13 and chargesheet against Vijay Bahadur as Exhibit Ka-14. During cross examination, the witness has stated that during investigation he had learnt that the statement of the deceased under section 164 Cr.P.C. had been recorded, but, he did not see the statement and also did not copy it in the case diary. He only perused the previous case diary. He has admitted that statement under section 164 Cr.P.C. is disputed as is apparent from the F.I.R. He did not consider it necessary to see the statement. There is a mention that the statement of the deceased under section 164 Cr.P.C. was recorded under influence. He has pleaded ignorance about the fact that the statement of the deceased was recorded under section 164 Cr.P.C. for the second time also. 12. Retired S.I., Sharda Prasad Singh, P.W.-9, was the first Investigating Officer, who in his statement has given the details of investigation and proved papers. After conversion of the case under section 304-B, the investigation was transferred to the Circle Officer. During cross examination, he has stated that he prepared the site plan at the pointing of the informant. All the accused have one house, but, Jageswar resides in the southern portion and has separate door opening towards east. He has also stated that he had not seen the Dying Declaration of the deceased till the investigation was with him. 13. Shyama Charan, P.W.-10, was the Tahsildar, who recorded the Second Dying Declaration of the deceased on 23-12-1999. All the accused have one house, but, Jageswar resides in the southern portion and has separate door opening towards east. He has also stated that he had not seen the Dying Declaration of the deceased till the investigation was with him. 13. Shyama Charan, P.W.-10, was the Tahsildar, who recorded the Second Dying Declaration of the deceased on 23-12-1999. He has stated that he had recorded the statement of Smt. Kiran Devi in the hospital who had been burnt. Her mental condition was perfect. He has proved the Dying Declaration of the deceased as Exhibit Ka-16. During cross examination, he has stated that he had recorded the statement between 12.00 to 1.00 p.m., but had forgotten to mention the time on the Dying Declaration. He had not taken opinion of any doctor present there. He has also stated that normally he does not take opinion of the doctor because when the lady was in a position to speak, then there was no requirement for taking opinion of the doctor. He has not mentioned the fact that she was in a position to give statement. He has denied suggestion that he had recorded a fake Dying Declaration. He had received an information from the police station, but, has not enclosed the copy of the information. He has also stated that he had no knowledge that another statement of Kiran Devi had been recorded on 22-12-1999. He has stated that the statement of Kiran Devi recorded by Rameshwar Prasad, Naib Tashildar is on record. No body had identified Kiran Devi. He had not recorded any mark of identification of Kiran Devi. 14. In the statement recorded under section 313 Cr.P.C. the accused persons have stated that the marriage had taken place in the year 1992 and not in the year 1993. They have further denied that informant, Ganga Prasad Maurya, had gone to meet his daughter, who had complained about dowry demand and beating and harassment by the accused persons. They have also denied that on 21-12-1999, at about 11.00 P.M. after beating Kiran Devi with Lathi & Danda, the accused persons poured kerosene oil and set her on fire and closed the room. Kiran Devi had a four years old son, Rahul, who also died due to burn injuries. They have also denied that on 21-12-1999, at about 11.00 P.M. after beating Kiran Devi with Lathi & Danda, the accused persons poured kerosene oil and set her on fire and closed the room. Kiran Devi had a four years old son, Rahul, who also died due to burn injuries. They have denied the allegations that they had secured the Dying Declaration by giving threat that in case the deceased does not give statement in their favour, they will not get her son treated and he may die. They have also stated that a false report has been lodged by the informant and also disputed the Dying Declaration dated 23-12-1999. The accused persons have stated that a false chargeshet has been filed against them and witnesses have given false evidence against them. Accused,Jageswar has stated that he has a separate living and had no concern with other accused persons and had never made any dowry demand or harassed the deceased. 15. Accused, Ajay Kumar, has also stated that the marriage of the deceased had taken place on 2nd May, 1992 and there was no demand of dowry and the deceased had never been harassed. Co-accused Vijay has denied his presence at the time of the alleged incident. 16. Smt. Sita Devi, accused, in her statement has stated that on the day of alleged incident, she had gone to take a bath on Pooranmasi. Her son, Vijay was in Bomaby for the past one year and had never demanded any dowry and had never harassed the deceased. 17. The defence has examined Rameshwar Prasad Mishra as D.W.-1 who has recorded the first Dying Declaration of the deceased on 22-12-1999. He has stated that on 22-12-1999, he was posted as Naib Tehsildear in Tehsil-Gathwara and had recorded the statement of Kiran Devi at 03.15 a.m. in the district hospital, Pratapgarh. He had taken opinion of the doctor who had recorded his opinion on the Dying Declaration and put his signature. He has proved the statement in his hand writing and has stated that he took the thumb impression of Kiran Devi also and has proved the Dying Declaration, Exhibit Kha-1. During cross examination, the witness has stated that at the time of recording of Dying Declaration, no member of the family of the in-laws of the deceased or anybody else was present. When he reached, there was nobody with the deceased. 18. During cross examination, the witness has stated that at the time of recording of Dying Declaration, no member of the family of the in-laws of the deceased or anybody else was present. When he reached, there was nobody with the deceased. 18. Raj Kumar Tewari, Pharmacist, D.W.-2, was summoned to produce the bed head ticket of Kiran Devi. He has stated that he has brought the application dated 26-05-2000 of the Circle Officer, Patti with him which he had given to the C.M.O. for providing photocopy of the bed head ticket. He has also stated that the record of the bed head ticket is maintained in due course in the office. He has proved it as Exhibit Kha-2. During cross examination, he has stated that an endorsement "expired on 25-12-1999 at 09.00 a.m., body to be kept in mortuary" has been encircled on the bed head ticket, but, he does not recognise the signature on it. He has also stated that the patient was admitted on 21-12-1999 at 11.55 in the hospital. 19. In the instant case, two Dying Declarations, the first dated 22-12-1999 which has been recorded by the D.W.-1, Rameshwar Prasad Mishra, Naib Teshildar Exhibit Kha-1, in which the deceased has stated that in the preceding night she was sleeping in her room. A Diya (lamp) was kept beneath the cot alight. Her saree which was hanging below the cot suddenly caught fire. She ran screaming outside. She has also stated that her uncle-in-law, Jageswar gave two Lathi blows and said that after setting herself on fire, she was crying. Thereafter, the villagers and the members of the family extinguished the fire by putting water and she was taken to the hospital. 20. Second Dying Declaration of the deceased, Exhibit Ka-18, has been recorded by Shyama Charan, Tahsildar in which the deceased has stated that the accused, Ajay Kumar and her uncle in-law, Jageswar, poured kerosene oil on her when she was sleeping and after setting her ablaze, they ran away. She had recognized them while they were setting her on fire and running away. She has also stated that the incident took place in the intervening night of 20/21-12-1999 at about 10.00. She has further stated that her husband, Vijay has been kept away by her uncle-in-law. She has also stated that her husband was residing in Bombay and had not come to set her on fire. She has also stated that the incident took place in the intervening night of 20/21-12-1999 at about 10.00. She has further stated that her husband, Vijay has been kept away by her uncle-in-law. She has also stated that her husband was residing in Bombay and had not come to set her on fire. She has also stated that her mother-in-law had informed that she will be going to take a bath on Pooranmasi and had not come to see her since then. 21. Learned trial court in its Judgment has found Vijay Bahadur and Smt.Sita Devi not guilty on the basis of the second Dying Declaration which has been relied upon by the prosecution and has consequently, acquitted both the accused, Vijay Bahadur and Smt. Sita Devi for the offences under sections 302 readwith section 34 and 498-A , I.P.C. while it has held the appellants guilty of the charges and sentenced them as aforesaid. 22. Aggrieved by the said Judgment and order, the instant appeal has been preferred. 23. We have heard Sri Suresh Chandra Srivastava, Sri S.P. Singh Somvanshi, learned counsel for the appellants and Ms. Zeba Islam Siddiqui, leaned A.G.A. and perused the record. 24. It has been submitted by learned counsel for the appellants that the Judgment of the trial court is based on the second Dying Declaration which has been recorded on 23-12-1999 in which on the tutoring of the informant and other family members of the deceased, the appellants have been falsely implicated. There was no requisition sent to the Tahsildar by the Investigating Officer or by the hospital. There is no reference of the fact in the entire prosecution evidence or in the case diary as to why the need for recording the second Dying Declaration was felt. Further submission is that the mandatory certificate of the doctor certifying the mental state of the patient at the time of beginning of the statement and also immediately after recording the statement has not been given and in a most arbitrary manner under the influence of the informant, the second Dying Declaration has been recorded. The first Dying Declaration was recorded on 22-12-1999 and fulfills all the formalities and has been proved by the D.W.-1 as exhibit Kha-1 and the same was voluntarily given by the deceased. The first Dying Declaration was recorded on 22-12-1999 and fulfills all the formalities and has been proved by the D.W.-1 as exhibit Kha-1 and the same was voluntarily given by the deceased. The doctor has appended the certificate of mental fitness of the deceased and he has also stated during cross examination that none of the family member of the deceased or any other person was present at the time of recording of the statement. The truth has emerged as the deceased has stated that accidentally her saree caught fire from the burning Diya (lamp) which was kept beneath her cot. Further submission is that there is no credible evidence to prove the allegations of commission of murder or demand of dowry or treating the deceased with cruelty. The trial court has not analysed the evidence properly and involvement of the appellants is not established. The evidence is unreliable and the witnesses are interested and the appellants are not the main accused and they had no chance of becoming beneficiaries or gaining anything out of the alleged dowry demand. 25. Learned A.G.A. has defended the Judgment of the trial court. 26. In this back drop, the entire evidence has to be scrutinized carefully. 27. In the instant case, there is no direct evidence against the appellants. The prosecution case is based on the second Dying Declaration which has been recorded on 23-12-1999. In addition to it, the prosecution has also relied upon the evidence of the informant that the deceased had earlier told the informant about the alleged dowry demand and also regarding her harassment and ill treatment and also on the statement which the deceased allegedly made to the informant before her death in the hospital. Since, there are two Dying Declarations, therefore, legal position in this connection has to be examined properly. 28. In Mohanlal Gangaram Gehani versus State of Maharashtra reported in (1982) 1 SCC 700 , the Apex Court has relied upon the first statement of the deceased in point of time. 29. In Lella Srinivasa Rao versus State of Andhra Pradesh reported in (2004) 9 SCC 713 , the Apex Court had observed, "Having regard to the inconsistency in the two dying declarations, we do not find it safe to act solely on them to convict the appellant." 30. 29. In Lella Srinivasa Rao versus State of Andhra Pradesh reported in (2004) 9 SCC 713 , the Apex Court had observed, "Having regard to the inconsistency in the two dying declarations, we do not find it safe to act solely on them to convict the appellant." 30. In Sanjay versus State of Maharashtra reported in (2007) 9 SCC 148 , the Hon'ble Supreme Court observed in para 16, "In our opinion, in view of the different dying declarations, it would not be safe to uphold the conviction of the appellant and we have to give him the benefit of doubt..........." 31. In Heeralal versus State of M.P. reported in JT 2009(4) SC 115, the trial court had rejected the dying declaration on the ground that there was the possibility that relatives of the accused may have compelled the deceased to give a false declaration. It was observed that no material was brought on record to justify such a conclusion. 32. In Smt. Kamla versus State of Punjab, AIR 1993 SC 374 , the Apex Court rejected multiple dying declarations on the ground that there were glaring inconsistencies vis-a-vis naming the culprits. 33. In Mehiboobsab Abbasabi Nadaf versus State of Karnataka reported in (2007) 13 SCC 112 , the deceased herself had taken contradictory and inconsistent stand in different dying declarations. The Apex Court, therefore, had not accepted these dying declarations on their face value. 34. In Amol Singh versus State of Madhya Pradesh reported in (2008) 5 SCC 468 , the Apex Court rejected the last dying declaration on the ground of inconsistency and discrepancies, making the dying declaration doubtful and it was held that it would not be safe to convict the appellant. 35. In Samadhan Dhudaka Koli versus State of Maharashtra reported in (2008) 16 SCC 705 , the Apex Court has held in paras 15 and 16 as follows: "15. Evidently, there are a few inconsistent and contradictory dying declarations. The court while appreciating evidence on the basis of such dying declarations is required to take into consideration inconsistencies between two statements. In this case, the learned Sessions Judge and the High Court proceeded on the basis that out of the three dying declarations, in two of them the deceased did not make any allegation against her husband. 16. The court while appreciating evidence on the basis of such dying declarations is required to take into consideration inconsistencies between two statements. In this case, the learned Sessions Judge and the High Court proceeded on the basis that out of the three dying declarations, in two of them the deceased did not make any allegation against her husband. 16. A judgment of conviction can be recorded on the basis of a dying declaration alone, but the court must have been satisfied that the same was true and voluntary. Indisputably, for ascertaining the truth as regards the voluntariness of making such a dying declaration, the court is entitled to look into the other circumstances but the converse may not be true." 36. In Gopal versus State of M.P, reported in 2009 Criminal Law Journal 2434, the Apex Court had acquitted the accused on the ground that the manner in which the deceased was set on fire was different in two dying declarations. 37. In Rasheed Beg versus State of M.P, reported in (1974) 4 SCC 264 , the Apex Court had rejected the finding of the High Court, wherein the High Court had mentioned, "We feel that it will be safe to accept the names of the accused persons common in the dying declarations made to these two persons Sub-Inspector and Medical Officer to hold that they took part in the assault on Arif Beg." The Apex Court held, "The word"feel" has an air of uncertainty. We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declarations to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declarations. As there is no such corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants." 38. In Mohan Lal and others versus State of Haryana reported in (2007) 9 SCC 151 , the Apex Court observed in para 11 as follows: "11. In the instant case, it is to be noted that the evidence of PW 3 and the doctor clearly show that before the dying declaration was recorded the relatives of the deceased including PWs 7 and 8 were present with her and were subsequently asked to leave the room where the dying declaration was recorded. In the instant case, it is to be noted that the evidence of PW 3 and the doctor clearly show that before the dying declaration was recorded the relatives of the deceased including PWs 7 and 8 were present with her and were subsequently asked to leave the room where the dying declaration was recorded. Though much was made of the dowry demand by the courts below there is only a vague reference to it in the dying declaration. The statements of PWs 7 and 8 that they had told the investigating officer about the dowry demand is not correct. They had not said so before the investigating officer. It is also significant that prior to the death, neither the deceased nor her parents had complained to the police or told anyone else about any alleged dowry demand. In the circumstances, the dying declaration itself was clearly the result of tutoring and was not a free and voluntary one. The courts below were therefore not justified in placing reliance on the same. Additionally, there was only a vague reference of dowry demand to the police which in any event has not been established and also was not told during investigation. Once the dying declaration is excluded, there is nothing to implicate the accused-appellants with the death." 39. In State of Maharashtra versus Sanjay reported in (2004) 13 SCC 314 , the Apex Court observed in para 17 as follows: "17. Thus, the version of homicide set up by the prosecution as well as the version of suicide set up by the accused appear to be highly improbable and do not inspire confidence in the mind of the Court to believe either version. In this state of things, when two incredible versions confront the Court, the Court has to give benefit of doubt to the accused and it is not safe to sustain the conviction. The contradictions in the two dying declarations coupled with the high degree of improbability of the manner of occurrence as depicted by the prosecution case leaves the Court with no option but to attach little weight to these dying declarations. It is not the plurality of the dying declarations that adds weight to the prosecution case, but their qualitative worth is what matters. It is not the plurality of the dying declarations that adds weight to the prosecution case, but their qualitative worth is what matters. It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full confidence of the court in its truthfulness and correctness." 40. In the case of Lakhan versus State of Madhya Pradesh reported in (2010) 8 SCC 514 , the Apex Court did not rely upon the first dying declaration on the ground that when the deceased was brought to hospital by her in-laws, she was under their influence and also medical report did not support her first dying declaration. The Apex Court relied upon the second dying declaration which stood fully corroborated not only by medical evidence but also by oral dying declarations made by deceased to her parents. 41. In Puran Chand versus State of Haryana reported in (2010) 6 SCC 566 , the Apex Court has held that the Court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. 42. In the case of Shudhakar vs State of M.P. (2012) 4 SCC 569, the apex court in Para 20 has held that the ''dying declaration' is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration'. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration'. In Para 21 it has been held as under: "Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters." 43. In the instant case, learned trial court has not relied upon the first Dying Declaration recorded on 22-12-1999 by Naib Tehsildar, Rameshwar Prasad Mishra, D.W.-1 on the ground that deceased, Kiran Devi as per bed head ticket,Exhibit Kha-3, was admitted on 21-12-1999 at 11.55 p.m. by accused Ajay Kumar Maurya and it has been noted that her pulse could not be felt though she was not unconscious, but, was unable to speak because of burn injuries on her face, but, at about 01.05 hours in the night i.e. barely after a gap of 1 hour and 10 minutes it was declared by the doctor that her general condition was good and she was able to speak and her Dying Declaration could be recorded. Thereafter at about 03.07 hours, it has been noted that there was deterioration in her general condition and the pulse was not being felt. Therefore, the court inferred that at the time of recording of the dying declaration barely 08 minutes thereafter the dying declaration was suspicious. Thereafter at about 03.07 hours, it has been noted that there was deterioration in her general condition and the pulse was not being felt. Therefore, the court inferred that at the time of recording of the dying declaration barely 08 minutes thereafter the dying declaration was suspicious. The court has also taken note of the fact that in the F.I.R., it has come that the girl is still alive in the hospital and had been threatened by her in-laws to secure the Dying Declaration in their favour on the pretext of stopping treatment to her son. Learned trial court was of the opinion that the deceased might have been under the influence of her in-laws and the threat that the treatment of her son may be stopped also weigh against the credibility of 1st dying declaration. It has also observed the possibility that since the deceased might have been annoyed by the conduct of Jageshwar, therefore, she made a reference regarding him in the Dying Declaration. Reliance has also been placed on the statement of Ganga Prasad Maurya. Discarding the 1st dying declaration, the Learned trial court has relied upon the second Dying Declaration, Exhibit Ka-18 which was recorded on 23-12-1999 and has observed that though there is no certificate appended on this Dying Declaration by the doctor, but, the Tehsidlar, Shyama Charan was satisfied that the deceased was in a position to speak on 23-12-1999. It has referred the statement of Ganga Prasad Maurya, who has stated that Daroga Ji Ojha had got the second Dying Declaration recorded. It has been informed that there was no influence upon the deceased at the time of recording of the Second Dying Declaration and the same has been given voluntarily. 44. Having given our thoughtful consideration to the submissions made at Bar and in the light of various Judgments of Hon'ble Supreme Court referred to hereinabove, we are of the considered view that the findings of learned court below in placing reliance on the Second Dying Declaration recorded on 23-12-1999 and discarding the first Dying Declaration dated 22-12-1999, prima-facie appear erroneous. In the first Dying Declaration, the doctor has certified about the mental state and fitness of the deceased to give a statement. In the first Dying Declaration, the doctor has certified about the mental state and fitness of the deceased to give a statement. The general condition of the patient fluctuates and the possibility that after admission in the hospital, her general condition might have improved with the treatment given to her, cannot be doubted. There is no allegation that the doctor who recorded the first Dying Declaration was in any way prejudiced or interested. The first Dying Declaration appears to be voluntary and it has come in evidence of Rameshwar Prasad Mishra, D.W.-1, who recorded the first Dying Declaration that during recording of the Dying Declaration, no member of the family of the in-laws of the deceased or anybody else was present. The witness has also categorically stated that when he reached the hospital, there was nobody with the deceased. In case, the deceased was under the influence or threat that the accused persons will stop proper treatment of her son so that he may die, in such an eventuality, there was no question of making imputations against the appellant, Jageshwar also. All the legal formalities which are expected have been duly fulfilled while in the matter of the Second Dying Declaration, Exhibit Ka-18, no formalities have been fulfilled. The first Dying Declaration appears to be natural and appears to have been given without any influence or tutoring. As regards, the second Dying Declaration, upon which the learned trial court has placed reliance, from the evidence of P.W.-10, Shyama Charan, it is apparent that the time of recording of the statement has not been mentioned and he has not taken opinion of any doctor regarding the mental state and fitness of the deceased. He has further added that normally he does not take opinion of any of the doctors because when the deceased was in a position to speak, there was no requirement for taking opinion of the doctor and there is no mention about the mental fitness of the deceased and her condition to give statement anywhere in the Dying Declaration. Further the Investigating Officer Sharda Prasad, P.W.-9, had not sent any requisition for recording of the Second Dying Declaration. There is no evidence either that the hospital authorities had sent any requisition for recording of the Second Dying Declaration. No information by any higher authority authorizing or directing Shyama Charan to record the Second Dying Declaration has been filed. Further the Investigating Officer Sharda Prasad, P.W.-9, had not sent any requisition for recording of the Second Dying Declaration. There is no evidence either that the hospital authorities had sent any requisition for recording of the Second Dying Declaration. No information by any higher authority authorizing or directing Shyama Charan to record the Second Dying Declaration has been filed. P.W. 10 has also stated that he had no knowledge that any statement of Kiran Devi had been recorded earlier on 22-12-1999. He has also stated that nobody had identified Kiran Devi and he had not recorded any mark of identification of Kiran Devi. Thus, the Second Dying Declaration in which the names of the appellants have come for the first time, appear to be suspicious and it appears that Naib Tehsildar went to record the Second Dying Declaration on the pursuation of the informant's side without any due authorization. The findings of the court below whereby it has placed reliance on the Second Dying Declaration appear to be based on conjunctures and surmises. Further the possibility of the deceased making the Second Dying Declaration under the influence and tutoring of her father and other family members cannot be ruled out. Therefore, the finding of the court below in placing reliance upon the second dying declaration to our mind is erroneous and the said dying declaration does not inspire confidence. However, there is a surprising omission in both the Dying Declarations that the deceased has not stated anything about her son, Rahul, who too is alleged to have been burnt in the same incident. In both the Dying Declarations, she has not shown any concern about his well being or circumstances under which her son was also burnt. The first Dying Declaration which in our view has more credence and appear to be voluntary and believable. The only allegation against the appellant, Jageshwar is that he gave two Lathi blows after she came out screaming from the room when her clothes caught fire. Giving of Lathi blows has nothing to do with the dowry death as it has come that the family members attempted to extinguish the fire. As regards the other evidence, Shiv Patti, P.W.-2, though has supported the prosecution case, but, has deposed purely on acquired knowledge through her husband. Therefore, her evidence has no weight. Giving of Lathi blows has nothing to do with the dowry death as it has come that the family members attempted to extinguish the fire. As regards the other evidence, Shiv Patti, P.W.-2, though has supported the prosecution case, but, has deposed purely on acquired knowledge through her husband. Therefore, her evidence has no weight. Sulochana, P.W.-3, has deposed about the dowry demand and ill treatment which the deceased was subjected to by the appellants, but, during cross examination, she has stated that she cannot give reasons as to why the Investigating Officer did not record her statement that Kiran Devi had told her about Marpeet. Thus, the allegations imputed by her against the appellants appear to have been made for the first time in the court and on the basis of this piece of evidence independently, the appellants cannot be held guilty. Dr. P.S. Mishra, P.W.-4, Dr. S.S.Bhadauria, P.W.-5, Babu Ram Singh, P.W.-6, A.K. Das, P.W.-7, Amar Bahadur Singh, P.W.-8 and Sharda Prasad Singh, P.W.-9 are the formal witnesses while Shyama Charan, P.W.-10, Tehsildar has recorded the Dying Declaration. Thus, except the oral evidence of Ganga Prasad Maurya, there is no other oral evidence against the appellants. 45. It has come in the statement of Ganga Prasasd Maurya that after meeting his daughter in the hospital, he went to the court and got the Tahrir typed, but, he had not talked to any lawyer there, though there were many lawyers in the court premises. The F.I.R. of the incident has been lodged on 22-12-1999 at 19.30 hours. The possibility of consultation cannot be ruled out considering the gap between arrival of the informant in the hospital and lodging of the F.I.R. The evidence of Ganga Prasad does not inspire confidence. 46. Submission of learned counsel for the appellants that the appellants cannot be the beneficiaries in case the alleged demand of dowry was fulfilled and the allegations against them are general in nature and no specific evidence in connection with the alleged harassment or cruelty has been made, has force, therefore, in this view of the matter, it will not be safe to maintain the conviction of the appellants on the basis of solitary evidence of Ganga Prasad, P.W.-1. 47. In view of above discussion, we are of the view that the appeal has force and deserves to be allowed. 47. In view of above discussion, we are of the view that the appeal has force and deserves to be allowed. Consequently, the appeal is allowed and the Judgment and order of the learned trial court whereby the appellants have been held guilty and sentenced for offences under section 302 readwith section 34 and section 498-A I.P.C. are set aside. Appellant, Ajay Kumar is on bail, his personal bonds are cancelled and sureties are discharged. The appellant, Jageshwar, is stated to be in jail, he shall be released from jail forthwith, unless wanted in any other case. Copy of this Judgment be sent to learned trial court for ensuring compliance.