JUDGMENT : Mohammad Yaqoob Mir, J. 1. Vide Judgment impugned dated 03.04.2012, learned Sessions Judge, Poonch has convicted the appellants for having committed offences punishable under Sections 302, 498-A read with section 34 RPC and vide order dated 04.04.2012 has awarded rigorous imprisonment for life and fine of Rs. 5,000/- under Section 302 read with Section 34 RPC and two years imprisonment for the offences under Section 498-A read with Section 34 RPC. All the sentences to run concurrently. In case of default in paying fine, the accused shall have to undergo imprisonment for two months. The record of the case has been submitted in terms of Section 374 Cr.P.C. for the confirmation of the sentence of life imprisonment. 2. Learned counsel appearing for the appellants projected: (a) None of the prosecution witnesses have seen the actual occurrence. (b) The dying declaration EX. PW-6-I-S has been cited as a sole basis to the actual occurrence, when the said dying declaration is suspicious as the manner and method of recording such statement is shrouded in mystery. Same has not been recorded in presence of any independent witness. (c) The investigating officer is shown to have recorded the statement in presence of Sardar Ishar Singh and Surinder Singh, relatives of the deceased. No explanation has been tendered for non inclusion of any independent witness. (d) The physical condition as emerge from the evidence both medical and another is such which would suggest that the deceased was not in a position to make any statement. (e) The dying declaration has numerous defects, so in absence of corroboration, same could not be a sole base for recording conviction. (f) FIR is shown to have been lodged and registered on 19.05.2007 but copy of the FIR has been received in the office of the Magistrate, Poonch on 22.05.2007, when the office of the magistrate is located at a short distance from the police station. Therefore, concoction in the content of the report and in FIR has taken place. 3. While relying on various judgment of the hon'ble Apex Court, which shall be referred to hereinafter, submitted that the judgment impugned is unsustainable. 4. Learned Additional Advocate General appearing for the State with all vehemence submitted that: (i) a young 28 years old lady just after three months of her marriage has been burnt to death. 3. While relying on various judgment of the hon'ble Apex Court, which shall be referred to hereinafter, submitted that the judgment impugned is unsustainable. 4. Learned Additional Advocate General appearing for the State with all vehemence submitted that: (i) a young 28 years old lady just after three months of her marriage has been burnt to death. (ii) Immediately after her marriage, her life was made hell by the accused by taunting and torturing her mentally for want of dowry. (iii) The prosecution witnesses have fully supported the prosecution case. The evidence as produced is sufficient which beyond any shadow of doubt has proved that the accused have committed the offences for which they have been convicted. (iv) The judgment impugned passed by the learned Sessions Judge does not suffer from any illegality or infirmity. Learned trial Court has appreciated the evidence correctly. (v) The dying declaration as recorded by the investigation officer is inconsonance with law. Investigation officer has explained that he had asked the doctor to remain present which the doctor has refused by saying that the hospital at Ludhiana being a private hospital, therefore, they do not associate themselves with recording of the statements. He has also relied on the judgment rendered by hon'ble Apex Court which shall be referred to hereinafter finally prayed for dismissal of the appeal. 5. The prosecution as unfolded is that deceased Manmeet Kour was married to accused No. 1 just three months prior to the occurrence. During those three months, accused No. 1 and 2 used to taunt her and used to ask her as to why she did not bring dowry. On the date of occurrence i.e. 19.05.2007 at about quarter to 5 PM when Manmeet Kour (deceased) was in her home, her husband accused No. 1 (Darshan Singh) was also there, accused No. 2 Amrit Kour (sister of accused No. 1) came there and asked Manmeet Kour (deceased) to pick up the tin as had fallen due to wind which she refused. As a result whereof in furtherance of common intention, accused No. 1 (Darshan Singh) caught hold of the arms of the deceased on the verandah of the 2nd storey of the house in front of the kitchen, whereas accused No. 2 (Amrit Kour) poured kerosene oil on her head and set the deceased on fire. As a result whereof in furtherance of common intention, accused No. 1 (Darshan Singh) caught hold of the arms of the deceased on the verandah of the 2nd storey of the house in front of the kitchen, whereas accused No. 2 (Amrit Kour) poured kerosene oil on her head and set the deceased on fire. The deceased cried, inhabitants of the area (Mohallawalas) reached on spot and extinguished the fire and took her to hospital at Poonch, wherefrom she was shifted to Jammu and then from Jammu to Ludhiana hospital, where the deceased breathed her last on 07.06.2007. 6. The statement of the deceased is shown to have been recorded by the Investigating Officer on 24.05.2007. Initially a case FIR No. 46/2007 PS Poonch was registered for commission of offences punishable under Section 307/34 RPC. After death, 307 was omitted and 302 RPC was added. After completion of the investigation of the case, charge-sheet (challan) has been presented before the court of Chief Judicial Magistrate, Poonch on 18.08.2007. On the same day, case has been committed to the court of Sessions Judge, Poonch. 7. The charge has been framed against the accused on 13.11.2007 to the following effect that the accused after few days of the marriage started taunting deceased for not bringing the dowry, on 19.05.2007 at quarter to 5 PM when deceased refused to pick up the tin as had fallen due to wind, with criminal intention in the 2nd storey of the house on the verandah in front of kitchen, accused No. 1 caught her by arms and accused No. 2 sprinkled kerosene oil and set her on fire. Finally, she succumbed to the burn injuries in the CMC Hospital, Ludhiana on 07.06.2007. Both the accused pleaded not guilty as such claimed to be tried. 8. All the listed witnesses except PW 1 who had died were examined. After closure of the prosecution evidence, the incriminating circumstances as had appeared were put to the accused separately. Both the accused denied complicity in the crime, claimed to be innocent and added that at the time of occurrence, accused No. 1 (Darshan Singh) was not at his home. He being owner of a Tent House was in connection with collection of rent away from home. When he returned to home, at that time deceased was taken to the hospital. He being owner of a Tent House was in connection with collection of rent away from home. When he returned to home, at that time deceased was taken to the hospital. Further has added that deceased has not given any statement as she was not in a position to speak. At Poonch hospital, police tried to record her statement but she was on oxygen as she had suffered 100 per cent burns. PW-5 Opinder Singh brother of the deceased and PW-3 Parmeet Singh the cousin of the deceased have given false statements so as to implicate him. Further has added that the deceased having suffered 100 per cent burns was on oxygen. Her hand and fingers were burnt. She was unconscious, therefore, was not in a position to make any statement. Regarding demands of dowry or taunting, has said that the same is a concoction. 9. The accused No. 2 Amrit Kour has also qualified that she being resident of ward No. 10, occurrence had taken place in ward No. 7, she had no knowledge about the occurrence as she was not present on spot. She only came to know about the matter when the deceased was in the hospital. She being a married lady had no occasion to go to the house of the deceased and to taunt her. A concocted story has been prepared so as to wreak vengeance. The statement as shown to have been recorded of the deceased is totally fabricated as she was not in a position to speak. Statement has not been recorded in presence of any magistrate or the doctor. 10. In defence, the accused have produced as many as four witnesses. 11. For appreciating the grounds of attack as raised by the counsel for the appellants and the grounds to support the judgment, as raised by the learned AAG, it shall be advantageous to precisely notice as to what has emerged after perusing and considering the evidence as has been brought on record in connection with the points as raised. 12. The occurrence has taken place at quarter to 5 PM on 19.05.2007. 12. The occurrence has taken place at quarter to 5 PM on 19.05.2007. Regarding the actual occurrence i.e. asking the deceased to collect the tin which had fallen due to wind, her refusal and then being caught by arms by the accused No. 1 (husband) and pouring of kerosene oil by the accused No. 2 (sister of accused), setting her on fire, none of the witnesses has seen the same. In this connection it shall be relevant to refer to the depositions of the witnesses as cited witnesses to the occurrence i.e. PW-2 Amrit Kour, PW-3 Parmeet Singh, PW-4 Manjeet Singh, PW-5 Opinder Singh, PW-8 Balkrishan:- (a) PW-2 Amrit Kour (Aunt of the deceased) has stated that on 19.05.2007, accused present in the court had put oil on the head of the deceased and husband had caught her and burnt her. She (witness) was told the same by her nephew and then she (witness) went to the hospital. In the cross-examination, has stated that she did not see the occurrence with her own eyes. However, brother of the deceased had seen the same who told her. It is clear that this witness has not seen the actual occurrence. (b) PW-3 Parmeet Singh has stated that the deceased was burnt on 19.05.2007. At that time, he was on his shop. Some man then said Opinder Singh informed him that she was burnt and has been taken to hospital. He also went to the hospital. Deceased was burnt. Deceased said in the hospital that accused (Darshan Singh) caught hold of her arms whereas the accused No. 2 (Amrit Kour) had poured kerosene oil on her and set her on fire. In the cross examination has qualified that in his presence, deceased was not set on fire by anyone. On the date of occurrence, his statement was recorded. He has further qualified that the statement of the deceased was recorded in hospital, Poonch and it is incorrect to say that in that statement she had stated that she herself got burnt. The deceased was talking in the hospital, Poonch. Her statement was recorded on a paper. He (witness) had not asked Manmeet Kour (deceased) about the occurrence but when she was making the statement, he was standing therein. Doctor was also present but doctor did not attest that statement. ASI whose name is not known to him recorded the statement. The deceased was talking in the hospital, Poonch. Her statement was recorded on a paper. He (witness) had not asked Manmeet Kour (deceased) about the occurrence but when she was making the statement, he was standing therein. Doctor was also present but doctor did not attest that statement. ASI whose name is not known to him recorded the statement. Balkrishan was present there. Parents of the deceased were also present. Other relatives were also present in the hospital at Poonch. This witness too has not seen the actual occurrence. After occurrence he has seen the deceased first time in the hospital. Further, he has stated that the deceased had made a statement in hospital, Poonch that she was set on fire by accused after she was caught hold of her. It is to be made clear that no statement is shown to have been recorded by the investigating agency, nor any such statement has been placed on record what to speak of proving the same. (c) PW 4 Manjeet Singh (relative of the deceased) has stated that on 19.05.2007, approximately at half past 4 PM when he was in his own home, he heard that the deceased is burnt and the inhabitants of the area (Mohallawalas) have taken her to the hospital. He went to the hospital and saw her in a burnt condition. She was referred to Jammu hospital and then to CMC Ludhiana. On the cross examination has stated that in hospital at Poonch, deceased was not talking. She was badly burnt, so could not talked. He heard at his residence that the deceased is burnt and straight away from his own home, he went to the hospital. This witness too has not seen the actual occurrence. (d) PW 5 Opinder Singh (brother of the deceased) has stated that Manmeet Kour is his real sister, who on 12.03.2007 was married to accused (Darshan Singh). On 19.05.2007, his sister was burnt by the accused. Accused No. 1 had caught arms of the deceased and the accused No. 2 (Amrit Kour) poured kerosene oil as such set her on fire. Such statement was made by the deceased in CMC Ludhiana in his presence to the police. The said statement was recorded on 24.05.2007 in his presence. Ishar Singh and Surinder Singh were kept as witnesses to the said statement. Such statement was made by the deceased in CMC Ludhiana in his presence to the police. The said statement was recorded on 24.05.2007 in his presence. Ishar Singh and Surinder Singh were kept as witnesses to the said statement. In the cross examination has stated that the statement of the deceased was also recorded in Hospital Poonch. His house is at a distance of half a kilometre from the house of the accused. At quarter to 5 PM, deceased was taken to the hospital, Poonch. This witness too has not seen the actual occurrence. (e) PW 8 Balkrishan in the cross examination on a specific question, has stated that the he was not present at the place of occurrence where deceased was burnt. He has not made any such statement to the police that the deceased was burnt in his presence. This witness too has not seen the actual occurrence. (f) PW-10 Davinder Singh has stated that he has a shop in Mohalla Saray. On 19.05.2007, he was on his shop, heard noise, came out and found Manmeet Kour in a burning condition came down from the stairs of her house, residents of mohalla and he also went, Darshan Singh (accused) was also present on spot, mohallawalas did extinguish the fire. Thereafter, she was taken to the hospital then referred to Jammu hospital, then to Ludhiana. In his cross examination, he has qualified that his wife Balbinder Kour was not present on spot nor she went on spot. Adjacent to his shop is the shop of Mohd. Fiyaz and shop of Tirath Singh. The witness too extinguished the fire by putting tent on her. Worn clothes of the deceased were burnt, did not see as to whether hairs of her head were burnt but little bit were burnt, hand and mouth was also burnt. Further stated the when he reached on spot, the deceased was lying on the road, he did not go to the roof of the house. He did not see the deceased being set on fire. (g) PW 11 Balbinder Kaur (wife of PW 10), on 19.05.2007, the accused had burnt the deceased, she was taken to the hospital, then to Jammu and from Jammu to Ludhiana where she died. In the cross examination has stated that deceased was burnt. She went to the hospital and saw her there. (g) PW 11 Balbinder Kaur (wife of PW 10), on 19.05.2007, the accused had burnt the deceased, she was taken to the hospital, then to Jammu and from Jammu to Ludhiana where she died. In the cross examination has stated that deceased was burnt. She went to the hospital and saw her there. She was at her shop when deceased in a burning condition came down, people extinguished the fire, then was taken to the hospital. She was present on spot. Her husband was also present there along with her. This witness too has not seen the actual occurrence. Even otherwise according to her, she was present on spot when according to her husband (PW 10), she was not present on spot. (h) PW 12 Raju Sharma has qualified that he did not see any one setting the deceased on fire. Instead has qualified that at quarter to 5 PM, he heard that the girl has been burnt, who has been taken to the hospital. He also heard that accused Darshan Singh has caught her by arms whereas accused Amrit Kour has poured kerosene oil and ser her on fire. But in the cross examination, he has totally qualified that he did not see himself anyone setting the deceased on fire. 13. Prosecution has not been able to produce or examine any other witnesses who would have seen the actual occurrence which in turn gives rise to a question as to how deceased caught the fire. Whether she was set on fire or accidentally she caught the fire. The position has remained in the region of suspicion. 14. The case hinges on the statement of the deceased styled now as dying declaration. The dying declaration is shown to have been recorded by PW 22 Mohd. Iqbal ASI in presence of two witnesses i.e. PW 6 Ishar Singh and PW 7 Surinder Singh. Furthermore, brother of the deceased PW 5 Opinder Singh has also stated that the statement of the deceased was recorded in his presence at Ludhiana. 15. What is the value of dying declaration and what is the evidence brought on record in support thereof is now to be dealt with herein. (a) The dying declaration has been recorded on 24.05.2007, occurrence is of 19.05.2007, whereas the declarant died on 07.06.2007. The statement is recorded by the Investigating Officer PW 22 Mohd. Iqbal. 15. What is the value of dying declaration and what is the evidence brought on record in support thereof is now to be dealt with herein. (a) The dying declaration has been recorded on 24.05.2007, occurrence is of 19.05.2007, whereas the declarant died on 07.06.2007. The statement is recorded by the Investigating Officer PW 22 Mohd. Iqbal. Before recording statement, he appear to have requested in writing to Medical Officer CMC, Ludhiana on the same date i.e. 24.05.2007 which application is on the records. The doctor is shown to have recorded on the same day as under: "the patient is fit for statement". This application and the opinion of the doctor has not been proved at all. The witness when examined in the Court has stated that at CMC Ludhiana, first of all, he submitted an application to the doctor who opined that the deceased is fit to make the statement. In the cross examination has stated that earlier he had moved an application before doctor at Poonch on which doctor recorded that the deceased was not fit to make any statement. He too had verified and found that she was not fit to make statement. Then on 23.05.2007, he went to Ludhiana where he did not move any application before the magistrate for recording the statement of the deceased. In presence of real heirs, he recorded her statement. He had requested the doctor to attest the statement but doctors said that they do not attest the statement of a person from outside the State as the hospital is a private one. Witness has further stated that he had recorded the statement of Opinder Singh, S/o. Joginder Singh on 24.05.2007 at the residence of the accused, means at Poonch. When he has said that on 23.05.2007, he reached to Ludhiana and recorded the statement of the deceased on 24.05.2007, then how could he reach to Poonch on the same date i.e. 24.05.2007, where he claimed to have recorded the statement of Opinder Singh on the same date. He has further stated that the deceased was 95 per cent burnt as recorded by the doctors. The head, neck, abdomen, arms and hands were swathed/banded. He has further stated that the deceased was 95 per cent burnt as recorded by the doctors. The head, neck, abdomen, arms and hands were swathed/banded. (b) The important condition which has emerged is that the application seeking opinion from the doctors about the fitness of the patient to make statement then opinion of the doctors that the patient is fit to make statement has remained to be proved. The doctor who is shown to have recorded that "patient is fit for statement" is neither cited as witness nor produced, therefore, such position has remained to be proved, more so when the deceased had suffered 95 per cent burns, she was not able to make any statement immediately after the occurrence in the hospital. The physical condition of the deceased as it would have remained in Jammu hospital or then in Ludhiana hospital has not been explained by any one as to whether she was able to speak whether she was on oxygen, whether she was in coma, whether she was served food. Under such circumstances, the doctor who allegedly had opined that the patient is fit to make statement was required to be examined so as to attach genuineness to the statement of the deceased. In our view, we are fortified by the judgment rendered by the hon'ble Apex Court in case of Kamalakar Nandram Bhavsar and Ors. v. State of Maharashtra, 2003 (8) Supreme 424 . In the reported judgment, the patient had suffered 95 per cent burns, she was put on oxygen right from the moment she was brought to the hospital and continued to be on oxygen till she died. Under such circumstances, it was observed that it is difficult to believe that she could have made a dying declaration when she was not even capable of breathing by herself. (c) In the instant case, admittedly, the deceased had suffered 95 % burns, she was not able to make any statement at Poonch hospital. Her physical condition was very bad. The IO in his statement has not explained as to whether in his opinion patient was fit to make the statement. (d) On 24.05.2007, statement of the deceased has been recorded at Ludhiana. She died on 7.6.2007. Her physical condition was very bad. The IO in his statement has not explained as to whether in his opinion patient was fit to make the statement. (d) On 24.05.2007, statement of the deceased has been recorded at Ludhiana. She died on 7.6.2007. Why investigation officer under such circumstances has not requested a Magistrate for recording the statement of the deceased or why he has not requested any independent witness to be present while recording the statement is a question which has remained to be answered by the PW-22, IO of the case. Same casts serious doubt and exclusion of such dying declaration. In our considered view, we are fortified by the judgment rendered by hon'ble Apex Court in the case of Manu Raja and Anr. V. State of Madhya Pradesh, AIR 1976 SC 2199 . Para 11 is advantageous to be quoted: "11. We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration. Ex. P-2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it also appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of Magistrate for recording the dying declaration. Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have therefore excluded from our consideration the dying declaration, Ex-P-2, recorded in the hospital". (e) For such exclusion, there are other reasons also. The two witnesses in whose presence the dying declaration EX. PW-6-I-S has been recorded are PW-6 Sardar Ishar Singh and PW-7 Sardar Surinder Singh. Deceased was the niece of the wife of Ishar Singh whereas PW-7 Surinder Singh is the father of the deceased, so close two relatives. In addition thereto, Opinder Singh (brother of the deceased) also claimed to have been present at the time her statement was recorded but not cited as witness to the dying declaration. When it was so, requirement of associating an independent witness was imperative. In addition thereto, Opinder Singh (brother of the deceased) also claimed to have been present at the time her statement was recorded but not cited as witness to the dying declaration. When it was so, requirement of associating an independent witness was imperative. That apart, PW 22 IO Mohd. Iqbal has stated that the deceased spoke in Pahari language and he translated it into Urdu and recorded it in Urdu language whereas PW-6 Ishar Singh stated that the deceased made the statement in Punjabi language, PW-7 Surinder Singh also stated that the deceased made the statement in Pahari language. Who among the three is to be believed. When a statement is not recorded in the language in which spoken by the deceased, then atleast the officer recording the statement had to record the certificate that the statement contains the true facts as stated by the deceased. In this connection, it shall be quite relevant to quote para 19 of the judgment rendered by the hon'ble Apex Court in the case of Muralidhar @ Gidda and Anr. V. State of Karnataka, AIR 2014 SC 2200. "19. The sanctity is attached to a dying declaration because it comes from the mouth of a dying person. If the dying declaration is recorded not directly from the actual words of the maker but as dictated by somebody else, in our opinion, this by itself creates a lot of suspicion about credibility of such statement and the prosecution has to clear the same to the satisfaction of the court. The trial court on over-all consideration of the evidence of PW-25, PW-30 and PW-36 coupled with the fact that there was over-writing about the time at which the statement was recorded and also insertion of two names by different ink did not consider it safe to rely upon the dying declaration and acquitted the accused for want of any other evidence. In the circumstances, in our view, it cannot be said that the view taken by the trial court on the basis of evidence on record was not a possible view. The accused were entitled to the benefit of doubt which was rightly given to them by the trial court." (f) Looking at the details of the statement (dying declaration), it appears to have been a doctored one. The accused were entitled to the benefit of doubt which was rightly given to them by the trial court." (f) Looking at the details of the statement (dying declaration), it appears to have been a doctored one. When the position of the deceased was such that she had suffered 95 per cent burns, could she make such a long statement with such type of accuracy is difficult to be believed. More so, when the Doctor Fahmida Wani PW-20 who had examined the deceased at Hospital Poonch had stated that the condition of patient was deteriorating. The head of the patient was also roasted. The another Doctor PW-19 Sekhi Mohd. who had conducted the post mortem at Poonch hospital has stated that burns all over the body sparing hands were more than 90 per cent. The eyes were ecchymosed, nostril swollen, burnt mouth partially with lips swollen, scalp burnt, membrane found shrunken, melted with hemorrhaged, brain substances shrunken with hemorrhaged, all the internal organs were found congested, heart was full of blood and there was curlings ulcer present in the stomach. Then has further qualified in the cross examination that above 90 per cent burns means could be 95 per cent. There are no chance of survival of person who burns up to 90 per cent. After burns the patient has remained alive for 20 days, he could not say what was the condition of the patient from the date of occurrence till date. Under such circumstances, a person can talk till death if has not gone in deep coma. Then has qualified as under: "In this particular case, she had about 100 per cent burns and it is possible that she might have gone into shock after burns immediately. When a person goes in shock, there are no chances of talk." (g) No doctor from the hospital CMC Ludhiana has been produced or examined as a witness who would say as to what was the condition of the patient during the period she remained admitted there. Even the two witnesses PW-6 & 7 and the IO himself have not anywhere qualified as to what was the condition of the patient for the period she was admitted in CMC Ludhiana. Even the two witnesses PW-6 & 7 and the IO himself have not anywhere qualified as to what was the condition of the patient for the period she was admitted in CMC Ludhiana. The position of statement having been doctored is strengthened by the fact that the IO of the case has not given any reason or justification for not including an independent witness to the statement nor has given any justification for not requesting magistrate for recording her statement. PW Opinder Singh brother of the deceased has stated that when deceased made the statement at CMC Ludhiana, he was present but about his presence, PW-6, PW-7 who are signatory to the statement have not said anything nor IO has said that he was present, his deposition gets exposed if he would have been present there, then he too would have singed the statement the way his father has singed. Further more, according to IO statement under Section 161. Opinder Singh was recorded at Poonch on 24.05.2007, which also casts doubt about as to whether IO was at CMC Ludhiana or at Poonch, same is true about Opinder Singh. (h) The detailed statement (dying declaration) under said circumstances as has been recorded with coherence at length can be safely concluded to be a doctored one. In this connection from the judgment rendered by the hon'ble Apex Court in four appeals with lead case Balbir v. Vazir and Ors., AIR 2014 SC 2778 . Para 15 is advantageous to be quoted: "15. The prosecution heavily relied on the dying declaration allegedly made by deceased Krishna Gir to PW-3 Prithvi Gir. It is submitted that the fact that PW-3 Prithvi Gir took deceased Krishna Gir to hospital at Pilani is corroborated by PW-2 Dr. Bedwal. Presence of PW-3 Prithvi Gir has also been mentioned in the inquest proceedings conducted by PW-31 Prem Singh Huda after the death of deceased Krishna Gir. It is submitted that PW-2 Dr. Bedwal stated that deceased Krishna Gir was in a position to talk. Assuming, however, that deceased Krishna Gir could talk and make a dying declaration, the question is how far the narration of the facts contained in the alleged dying declaration is true and whether dying declaration is true and whether it inspires any confidence. Deceased Krishna Gir was seriously injured. He succumbed to those injuries in the Hissar hospital. Assuming, however, that deceased Krishna Gir could talk and make a dying declaration, the question is how far the narration of the facts contained in the alleged dying declaration is true and whether dying declaration is true and whether it inspires any confidence. Deceased Krishna Gir was seriously injured. He succumbed to those injuries in the Hissar hospital. He must have been in great pain. It is inconceivable that deceased Krishna Gir would make such a dying declaration giving minute particulars like fathers name, caste an village of each alleged conspirator when he was on death bed with excruciating pain. It would have been natural for him to just give the names. But he is stated to have given details of each of the ten alleged conspirators and that makes this dying declaration suspect. A bare reading of this dying declaration makes it evident that it is a doctored document. Such details could not have been given by deceased Krishna Gir at that stage. It is possible that they have been supplied by PW-3 Prithvi Gir. The High Court in our opinion has rightly observed that such a dying declaration does not appear to be natural, but portrays an attempt by the successor of Balakdera I.e. PW-3 Prithvi Gir to plant names of all those with whom Balakdera had axe to grind through the statement attributed to deceased Krishna Gir. We find it difficult to place reliance on this dying declaration." 15. The copy of the FIR No. 46/2007 dated 19.05.2007 has been sent to the magistrate on 22.05.2007 when the Magistrate's office was at a small distance. The delay in sending copy of the FIR to the Magistrate has not been explained by anyone of the prosecution witnesses. When it is so, there is every possibility that the FIR must have been registered later in point of time and antedated which position is strengthened by the position of the case i.e. in the report it has been recorded that on 19.05.2007, the accused Darshan Singh husband of the deceased and the deceased were available in the second storey of the house. In the meantime, accused No. 2 (sister of the accused Darshan Singh) came, who asked the deceased to pick up the tin, as had fallen due to wind, which she refused. In the meantime, accused No. 2 (sister of the accused Darshan Singh) came, who asked the deceased to pick up the tin, as had fallen due to wind, which she refused. As a result whereof, accused No. 1 caught arms of the deceased and the accused No. 2 poured kerosene oil on her and set her on fire. 16. No witness has stated as to whether there was any wind on the date of occurrence, neither any witness has said as to what type of tin had fallen, then refused to be picked up by the deceased. It appears a theory introduced later in point of time, otherwise witnesses would have in clear terms stated about wind, then fall of tin and type of tin. The situation gets further strengthened by the fact that no witness has seen the actual occurrence. Presence of the two accused persons at the actual place of occurrence is not stated by any of the witnesses. Only PW-10 Davinder Singh has stated that when Manmeet Kaur in a burning condition came down the stairs from her home, mohalla people were moving towards her and he also went, Darshan Singh was present on spot at that time but he has not said that he has seen Darshan Singh in the house at the time of occurrence. He is the only witness who said that Darshan Singh was present on spot i.e. when the fire was being extinguished; no other witness has said so. Regarding accused No. 2 also, none of the witnesses has said about her presence at the place of occurrence. The theory of wind and falling of tin due to wind appears to be introduced. In such situation non-explanation of not-sending the copy of the FIR to the Magistrate up to 22.05.2007 gives rise to a suspicious situation and the report appears to have lodged after consultation. In this connection, it shall be quite advantageous to quote para 5 of the judgment titled State of Punjab v. Tarlok Singh, AIR 1971 SC 1221 . "5. First, the High Court noticed the suspicion created by the circumstance that the copy of the First Information Report purported to have been lodged at 3.45 p.m. did not reach the Magistrate at Dasuya till 8 a.m. the next day even though it was sent through a special messenger. "5. First, the High Court noticed the suspicion created by the circumstance that the copy of the First Information Report purported to have been lodged at 3.45 p.m. did not reach the Magistrate at Dasuya till 8 a.m. the next day even though it was sent through a special messenger. The distance between the scene of occurrence and Dasuya was only 15 or 16 miles. The inference sought to be drawn is that, in fact, the report was not lodged at 3.45 p.m. but at a much later hour, after the police had arrived at the scene of occurrence and there were consultations to decide what version should be put forward and who should be implicated for the murder. The prosecution in fact, made no attempt to explain this delay. Such delay thus, cast doubt on the prosecution version that the Report was lodged at 3.45 p.m. without lapse of unnecessary time." 17. The post mortem report EX. PW-19 SM would suggest that right thumb pulp of the deceased was stained with stamp ink. Picking the thread from there, it was highlighted that in fact investigating agency has taken the thumb impression on the statement of the deceased in Hospital at Poonch over which her impression of right thumb was taken. The defence set up that in fact deceased in the hospital at Poonch had made a statement which was recorded wherein she had not said anything against the accused and might have given the actual account as to how she caught the fire, same has been withheld. Such situation has remained in suspicion as PW-20 Dr. Fahmida posted in hospital Poonch has stated that the patient had not narrated the story about occurrence. When the PW-3 Parmeet Singh S/o. Bhajan Singh had stated that the statement of the deceased was recorded by the police in hospital at Poonch and has added that it is incorrect to say that the deceased had said that she got burnt herself. He further stated that deceased in hospital Poonch was talking when her statement was recorded, he was present, though he states opposite to what other witnesses have said. 18. In the facts and circumstances of the case and keeping in view the depositions of the witnesses, no one has seen the actual occurrence nor anyone had seen the accused present in the house where occurrence took place. 18. In the facts and circumstances of the case and keeping in view the depositions of the witnesses, no one has seen the actual occurrence nor anyone had seen the accused present in the house where occurrence took place. The dying declaration assumed greater importance. It is settled that dying declaration has to be considered with caution, not to be acted upon unless it is corroborated and is such which may inspire confidence to hold that the statement is such as was actually made by the maker thereof. In certain cases, there may not be immediate scope for securing presence of Magistrate or of an independent witness. The dying declaration as shall be recorded is not to be discarded as having been recorded by the IO but statement in its content must be such which may inspire confidence that the maker thereof in fact had made such a statement and the statement in any manner is not doctored. 19. When the dying declaration is recorded and it is possible to secure the presence of the independent witnesses and there is scope for requesting a Magistrate to record the statement or there is scope for requesting a doctor to be present during the recording of the statement, then same is not done and no explanation for that is tendered, then it shall be unsafe to rely on such statement in view the investigating officer being interested in the success of the case. 20(a). The dying declaration in fact is a statement regarding which cross examination is impossible, statement is not also on oath, therefore, such declaration has to be analysed with caution. AIR 1953 SC 420 in the case of Ram Nath Madhoprasad and Ors. V. State of Madhya Pradesh, it has been held that it is not safe to convict person merely on the evidence furnished by dying declarant without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in the sate of confusion and might well be drawings upon his imagination while he was making the declaration. (b) It is true that a certificate of the doctor may not be necessary but as a rule of caution when doctor is available, opinion and presence of the doctor must be ensured before recording the dying declaration. (b) It is true that a certificate of the doctor may not be necessary but as a rule of caution when doctor is available, opinion and presence of the doctor must be ensured before recording the dying declaration. (c) From the judgment reported in AIR 2002 SC 2973 captioned Laxman v. State of Maharashtra, following portions from Para 3 are relevant to be quoted: ".....................The court however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, looked up the medical opinion,................................, what evidential value or weight is to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that a person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even when examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." (d) applying the ratio of the said judgment to the facts of the present case as noticed hereinabove. The dying declaration so made is shrouded in mystery. (e) Looking at the physical condition of the deceased as it appeared from the medical opinion coupled with the post mortem report then keeping in view the manner and method of recording the statement, then the lengthy narration show made by the declarant in hindi/pahari language and then the stand of investigating officer that he could understand the pahari or hindi language, what actually was spoken by the declarant is totally doubtful. 21. For the stated reasons, the offence punishable under Section 302 RPC can safely be said not to have been proved beyond shadow of doubt. 22. 21. For the stated reasons, the offence punishable under Section 302 RPC can safely be said not to have been proved beyond shadow of doubt. 22. The another position of the case is that within three months of the marriage, the deceased was being subject to torture for not having brought sufficient dowry, which fact on the information of the deceased is stated by the close relatives of the deceased and the deceased in her dying declaration. Whether that has any origin or not is not fully corroborated from the depositions of the witnesses. On the one hand, the theory of the prosecution is that deceased was being taunted for not having brought sufficient dowry and on the other hand, the occurrence of burning is related to the situation which had arisen at the place of occurrence i.e. a theory that in view of wind, tin had fallen, accused No. 2 asked the deceased to pick up the tin, on refusal, she was caught hold of and burnt. It is not the case of prosecution that the deceased was being tortured and taunted and finally on that basis, she has been burnt. There is a big gap in the theory as set up. 23. It is unfortunate that a young lady who yet had to see so many summers of her life is silenced for ever. Equally it is unfortunate that the investigation of the case has been such which has left yawning gaps leaving much scope for such doubts enough to inspire confidence for not holding the accused as guilty. Accused who were shown to have been arrested on 21.06.2007 continued to be in the custody till date. Doubtful situation of the case is to the advantage of the appellants. 24. Judgment referred to by learned AAG, AIR 2002 SC 2973 is of no help because in the reported judgment, magistrate an independent witness had appeared as witness who had stated that declarant was fit to make the statement which has been acted upon as having been found voluntary and truthful which is not the position in the case in hand. Similarly another judgment relied upon by the learned AAG, AIR 2011 SC 1562 is not of any help to the prosecution as in the reported judgment, dying declaration was recorded by Tehsildar which was not in question and answer form. Similarly another judgment relied upon by the learned AAG, AIR 2011 SC 1562 is not of any help to the prosecution as in the reported judgment, dying declaration was recorded by Tehsildar which was not in question and answer form. There was no certificate of fitness issued by the doctor. The dying declaration was held valid because Tehsildar an independent witness had recorded the same. His statement was such which inspired confidence for holding the statement to be truthful, whereas in the case in hand, the statement has been recorded by the IO not by an independent witness. It shall be quite relevant to quote para 20 of the said judgment so as to make the position clear. "20. This now brings us to the submissions with regard to the dying declaration. Factually, it is to be noticed that the Tehsildar, who recorded the dying declaration appeared as PW-6, he has clearly stated that although no doctor was present in the hospital, he was informed by the pharmacist that Rishipal Singh was in a fit state to make a statement. He, thereafter, isolated the injured Rishipal Singh and recorded his statement. He further stated that he wrote down word by word what Rishipal Singh had stated. The contents of the statement were read to the injured who stated that he understood and accepted the same. Only thereafter, he put his thumb impression on the statement. It is undoubtedly true that the statement has not been recorded in the question and answer form. It is also correct that at the time when the statement was recorded Rishipal Singh was in a 'serious condition'." The another judgment as relied upon by the learned AAG reported in 2014 (2) JK 257, is the judgment rendered by the Division Bench of this Court, but in the reported judgment, facts and circumstances were altogether different, as said earlier, every case has its own facts and features and the dying declaration has also to be considered in the background of its own position i.e. what was the condition of the maker of the declarant and other host of circumstances as noticed hereinabove. 25. It is not made clear by any of the witnesses as to whether the accused more particularly the accused No. 1 husband of the deceased after gaining information about the position of his wife had visited the hospitals at Poonch, Jammu and Ludhiana. 25. It is not made clear by any of the witnesses as to whether the accused more particularly the accused No. 1 husband of the deceased after gaining information about the position of his wife had visited the hospitals at Poonch, Jammu and Ludhiana. None of the witnesses has said anything about that nor any such circumstances have been put to the accused while having been examined in terms of Section 342 Cr.P.C. 26. The facts, circumstances, flaws as quoted and referred to hereinabove have not been properly taken care of by the learned trial Court meaning thereby that the evidence has not been appreciated properly and it is in view of that position, we have undertaken the exercise of reading the entire evidence and on its appreciation, we have found that the flaws, defects which demolished the prosecution case have not been taken note of by the learned trial Court. 27. For the stated facts, circumstances and reasons, in the upshot we have reached to a firm conclusion that the guilt against the accused has not been proved beyond shadow of doubt. Therefore, the accused deserve acquittal, as such acquitted. The judgment and the order of sentence under challenge are set-aside. Accused be released forthwith, if not required in connection with any other case. The reference for confirmation registered as confirm. No. 40/2012 in the aforesaid backdrop does not survive for any consideration, accordingly, rejected. 28. Copy of the judgment and the trial court record be sent to the trial Court for follow-up. Appeal file after due completion shall be consigned to the records.