JUDGMENT : Aditya Kumar Trivedi. J. - Appellants Kanti Devi and Ganori Yadav have been found guilty for an offence punishable under Section 304-B/34 of the Indian Penal Code and each of them has been directed to undergo rigorous imprisonment for seven years vide judgment of conviction and sentence dated 20.03.2012 rendered by the Additional Sessions Judge-II. Patna in Sessions Trial No. 687 of 2011/55 of 2011 have challenged the same under present appeal. 2. Deceased Guriya Devi gave her fardbeyan (Exhibit-3) on 17.10.2010 at 3.30 p.m. at emergency ward of P.M.C.H., Patna in burnt condition before police official of Pirbahore P.S. disclosing therein that her marriage was solemnized about four years ago and she has a son about one year. Since her stay at her sasural her husband was enticing her to bring Rs, 20,000/- (Rs. Twenty thousand) and a motorcycle in lieu of dowry from her maika which she always refused, She had also made complaint to her father as well as brother at her count and on account thereof, they have come to her sasural and talked over the subject even then her husband continued with his insistence. Now a days he used to come in drunken state where under she was severely tortured on the pretext of fulfillment of aforesaid items. She again informed her maika whereupon her brother had approached the police station who apprehended her husband. However, released him after scolding him even then her husband continued with his nefarious activities. Lastly, on 16.10.2010 at about 6.30 p.m. her husband Ganori Yadav and her mother-in-law both have sprinkled kerosene and lit fire. She raised alarm attracting the neighbours who extinguished fire and then, at whose instance, her husband after admitting her at P.M.C.H. fled away. The aforesaid fardbeyan was given in presence of Raj Kishore Rai, her brother (PW 2). 3. During course of treatment, as is evident deceased Guriya Devi died whereupon that has been addition of section. After completing investigation charge-sheet was submitted on the basis of which trial commenced and concluded, so challenged under present appea1. 4. The defence case as is evident from mode of cross-examination as well as from the statement so recorded under Section 313 of the Cr PC is of complete denial of occurrence. However, neither any PW nor any exhibit has been made. 5. 4. The defence case as is evident from mode of cross-examination as well as from the statement so recorded under Section 313 of the Cr PC is of complete denial of occurrence. However, neither any PW nor any exhibit has been made. 5. It has been submitted on behalf of appellants that apart from the fact that learned trial Court had himself incorporated under paragraph-26 of his judgment that there happens to be no supportive evidence, the death of deceased would not attract application of Section 304-B of the Indian Penal Code in automatic way rather the ingredients so prescribed therein, unless fulfill. 6. It has further been submitted that from the evidence of PW 1 to PW 5, it is crystal clear that neither demand nor torture soon before death of deceased in connection with demand, of dowry's found stated. Hence, even death of deceased as proved by PW 7, Doctor is not going to justify the finding recorded by the learned trial Court. It has further been submitted that fardbeyan of Guriya Devi. Exhibit-3 happens to be out of purview of consideration on account of legal infirmity as well as deficiency for want of examination of doctor who could have deposed regarding mental condition of deceased at least at the time of making statement under fit mental condition as well as the police official, who had scribed the same. Not only this whether there was any prospect of tutoring was also to be perceived in the background of presence of PW 2. Moreover. examination of PW 2 made Exhibit-3 nonentity by stating that during his stay his sister was continuing unconsciousness and died in its continuity. 7. At the other hand the learned Additional Public Prosecutor while supporting the judgment of conviction and sentence recorded by the learned trial Court has submitted that death of deceased during her stay at her sasural is found admitted and in likewise manner happens to be the period of marriage falling within seven years, one of the major ingredients of Section 304-B of the IPC. It has also been submitted that on account of exhibit of fardbeyan of deceased Guriya Devi, it has transformed as dying declaration and because of the fact that it happens to be an exhibit of the record, therefore, its content is fit to be gone through as well as admitted for the purpose of securing conviction. It has also been submitted that on account of exhibit of fardbeyan of deceased Guriya Devi, it has transformed as dying declaration and because of the fact that it happens to be an exhibit of the record, therefore, its content is fit to be gone through as well as admitted for the purpose of securing conviction. So submitted that the conviction and sentence so recorded by the learned trial Court happens to be just, legal and proper and is fit to be confirmed. 8. After perusal of the lower Court record, it is apparent from the evidence of PW 7 that deceased had died during the course of treatment at P.M.C.H. and on account t.hereof he did post-mortem over her dead body and found t.he following ante mortem injury :On external examination-Body was of thin built, rigor mortis present all over the body. Eyes were pale. Mouth little open, anterior teeth burnt and blackened. Finger nails blue. Following ante-mortem injuries were found. (A) Dermoepidromal and at place deep burn involving underlying muscle and soft tissues present all over the body from scalp of the head to down up to soles of both feet. Evidences of partial healing, infection and pus present all over burnt surfaces at places. Hairs of scalp also burnt. No evidence of any external mechanical injury could be found which may be burnt condition of the body. (B) On further dissection:- Brain pale/respiratory tract pale/ Lungs congested with puo and blood, Heart chambers home little blood, stomach: pale, has watery fluid (10ml). Intestines: gas and faces, other viscera pale, Bladder empty Rest NAD. (C) Opinion: (1) Burn is ante-mortem. (2) Death is due to burn and its consequences, complications. (3) Burn does not appear accidental. However further police investigations will decide whether it is suicidal/Homicidal. (4) TSD:- -3 to 18 hours (approx.) since PM. 9. Now, coming to ocular evidence, it is evident that two kinds of materials are available on the record. The first one consists that of evidence deposed by witnesses while the another happens to be Exhibit-3 the fardbeyan. 10. Now, coming to the ocular evidence, it is evident that even the brother of deceased did not stick to his previous statement and on account thereof, the ocular evidence lost its genuineness, authenticity as well as reliability. The first one consists that of evidence deposed by witnesses while the another happens to be Exhibit-3 the fardbeyan. 10. Now, coming to the ocular evidence, it is evident that even the brother of deceased did not stick to his previous statement and on account thereof, the ocular evidence lost its genuineness, authenticity as well as reliability. Apart from the fact that save and except, disclosing the marriage that of three years back and the death of deceased while undergoing treatment at P.M.C.H., they have not supported the initial prosecution version. 11. Now, coming to admissibility of exhibit-3 which on account of death of informant Guriya Devi has become dying declaration in terms of the Section 32 of the Evidence Act. In this connection, it is found from the record that PW 6 who happens to be the Investigating Officer has simply stated that this Exhibit-3 happens to be in pen of the Police Officer of Pirbahore P. S. namely M. M. Rai in whose pen the inquest report also happens to be in carbon process. That means to say the person who had recorded the fardbeyan had not been examined and due to non-examination of aforesaid M.M. Rai, the mental condition of deceased Guriya Devi has not properly been brought up on record by the prosecution, as well as it being free of tutoring. Moreover, while examining PW 7 the doctor, the prosecution failed to draw his attention towards the fact whether on account of injuries having over the person of Guriya Devi, she could have in sound mental condition, and being so, gave her fardbeyan. However, the proprietory of the aforesaid Exhibit-3 is further found suffering from inherent defect on account of dubious character of PW 2, Raj Kishore Rai, brother of deceased who happens to be the attesting witness who had clearly stated that when he reached at P.M.C.H. he found his sister lying in unconscious state having severe burn injury. She died during course of treatment. The prosecution not even cared to draw his attention towards the fact that deceased Guriya Devi had given fardbeyan in his presence before the Pirbahore Police Official in fit mental condition in spite of the fact that it was well within the knowledge of prosecution regarding death of Guriya Devi. 12. She died during course of treatment. The prosecution not even cared to draw his attention towards the fact that deceased Guriya Devi had given fardbeyan in his presence before the Pirbahore Police Official in fit mental condition in spite of the fact that it was well within the knowledge of prosecution regarding death of Guriya Devi. 12. Because of the fact that dying declaration has been found in certain circumstances sufficient to justify conviction of the accused. Therefore, its authenticity, reliability is found to be proved in similar way so that it should be found away from any external adulteration. From the case in hand, it is apparent that neither the prosecution has been able to flash the fit mental condition of deceased nor got it exhibited in accordance with requirement of law. Moreover, is found jolted on the account of hostile attitude of PW 2 by which he had drowned the ship of prosecution. 13. Consequent thereupon, the judgment of conviction and sentence recorded by the learned trial Court is set aside. Appeal is allowed. Appellant Kanti Devi @ Kunti Devi is on bail. Hence, she is relieved from its liability-while appellant Ganori Yadav, who is in custody on account thereof is directed to be released forthwith if not wanted in any other case. Appeal allowed.