JUDGMENT R.D. Kothari, J. (Oral) - The case of the prosecution rests on dying declaration. The trial Court found the dying declaration to be reliable, however, we are inclined to differ with the view taken by the learned trial Court. 2. The facts lay in narrow compass :- 2.1 The incident has occurred on 16.11.2009 at about 9:00 a.m. The appellant is the mother-in-law of the deceased and deceased is her daughter-in-law. It is the case of the prosecution that there was one pit nearby their house. The said pit is of 5 ft. x 5 ft. size and it has depths of about 4 ft., and it has also one conduit pipe that was catering parties need of the water. It is alleged that at the time of incident, flow of water was blocked. It was blocked perhaps on account of plastic bag blocking its flow or for such other account. To check it, deceased had stepped into pit. It is also the case of the prosecution that while she was inside the pit, at that time, the appellant had poured the kerosene and had thrown burning piece of cloth on her on account of which, the deceased had received severe burn injuries. Salim Khan (PW-12) and Pir Mohmmad (PW-13) who are neighbours rushed to the place of incident on receiving the news. One Sattarbhai has said to have called 108 Ambulance. The deceased was taken to Civil Hospital, Palanpur. PSO - Rathod (PW-9) from Palanpur City Police Station came to the hospital. The say of the deceased was reduced into writing by PSO and the same was treated as FIR. The Executive Magistrate was also informed to record the dying declaration. 2.2 Mr. Prajapati (PW-4), Executive Magistrate, accordingly came to the hospital and dying declaration of the deceased was recorded. In the late afternoon, the relative of the deceased has said to have decided to take the deceased to Civil Hospital, Ahmedabad for better treatment. While they were on their way to Ahmedabad, the deceased had died near Village Unjha. She died at about 7:30 p.m. The deceased was brought back to Civil Hospital, Palanpur. After investigation, the Police has filed the charge sheet against the present appellant. Before the learned trial Court, the prosecution has examined 14 witnesses. While they were on their way to Ahmedabad, the deceased had died near Village Unjha. She died at about 7:30 p.m. The deceased was brought back to Civil Hospital, Palanpur. After investigation, the Police has filed the charge sheet against the present appellant. Before the learned trial Court, the prosecution has examined 14 witnesses. On appreciation of evidence on record, the learned trial Court was pleased to believe the case of the prosecution, namely, when the deceased was inside the pit, the present appellant had poured kerosene and had thrown burning piece of cloth on her and thereby, committed the offence punishable under Section 302 of Indian Penal Code. 3. Heard the learned advocates for the respective parties. 4. The learned advocate for the appellant has submitted that the case of the prosecution hangs on dying declaration and in the circumstance of the case, the dying declaration is not reliable. It was submitted that the findings recorded by the learned trial Court is unsustainable in the facts of the case and law. 5. On the other hand, Shri Raval, learned APP has supported the judgment under appeal. Relying on the dying declaration recorded by the Executive Magistrate, it was submitted that evidence of dying declaration is sufficient to record conviction against the accused. The incident and the involvement of the appellant is clearly stated by the deceased in the dying declaration. There is no possibility of false implication of the present appellant. Hence, no interference is called for in the judgment of the learned trial Court. 6. We may consider the case of the prosecution. 6.1 There are three dying declarations on record. One is the history given by the deceased before the Doctor, second is the say of the deceased before PSO and her say before the Executive Magistrate is third dying declaration. The learned APP has asserted that broadly considering there is no inconsistency in the three dying declarations and, therefore, evidence of three dying declarations and conclusion based on it does not call for any comment or interference. 6.2 First in point of time, is the history recorded by the Doctor. The learned APP has asserted that broadly considering there is no inconsistency in the three dying declarations and, therefore, evidence of three dying declarations and conclusion based on it does not call for any comment or interference. 6.2 First in point of time, is the history recorded by the Doctor. The deceased was brought to Palanpur Civil Hospital at about 9:00 a.m. The history recorded by the Doctor is at Exhibit-16, which reads as under :- “As per the say of the patient: “In the pit, dig in for the water, in courtyard of the home, plastic bag was stuck up and as I went inside the pit to take out the bag my mother-in-law had poured kerosene on me and has thrown burning piece of cloth, I have received the burn injuries”. 6.2.1. The Doctor further records “the patient is conscious and oriented.; superficial deep burns present all over the body except sole of the foot. Eye lashes, pubic hair, scalp, head burns present, reddening and peeling of skin present. The burns is about 98%. 6.3. The Police had reached at about 11:00 a.m., to Civil Hospital. The say of the deceased was reduced into writing. It is FIR in the present case. The relevant part reads as under :- “Today in the morning I had got down into the pit to remove the meniu (plastic bag) as it was blocking the flow of the water. At that time, my mother-in-law - Banuben Abbasbhai came and had burned me by pouring bucket of kerosene in the pit and throwing burning piece of cloth on me. At that time, I had shouted and people nearby came, gathered and neighbours have thrown quilt on me and has doused the fire. This incident has taken place at about 9:00 a.m. My husband who is a driver has gone to Rajkot. My husband was not present at home. I do not know why my mother-in-law has burnt me by pouring kerosene. But the mother-in-law was often picking up quarrel with me. There is no fault of my husband. This incident has taken place at about 9:00 a.m. My husband who is a driver has gone to Rajkot. My husband was not present at home. I do not know why my mother-in-law has burnt me by pouring kerosene. But the mother-in-law was often picking up quarrel with me. There is no fault of my husband. I have been brought at Palanpur Civil Hospital in 108 Mobile (Van) ….” 6.4 The say of the deceased was recorded by the Executive Magistrate (PW-4) which reads as under :- “Today, in the morning at about 9:00 a.m., in the courtyard of the house, I had got down in the pit which is for the water and was checking the conduit pipe as we were not getting water from the conduit pipe. At that time, my mother-in-law - Bano Abbaskhan by committing fraud on me has poured kerosene on me and has thrown burning piece of cloth on me by which I had received burn injuries on all over my body. My mother-in-law has burnt me by committing fraud on me. I have no complaint or any dispute with my husband. At present my husband had gone to Rajkot. My mother-in-law was always harassing me. Besides this, I have nothing more to say.” 7. Before recording the dying declaration, (Exhibit-19) PW-4 has obtained certificate from the Doctor wherein the Doctor has recorded that “The patient is conscious and oriented on 16.11.2009 at 12:20 p.m." 7.1. The conditions that makes dying declaration reliable are now well settled. No need to reiterate here. Otherwise also not the other basic conditions but only surrounding circumstances of case is needed to be considered herein. In the case of Munnawar and Others v. State of Uttar Pradesh and Others, reported in (2010) 5 SCC 451 , the Apex Court has held that dying declaration is reliable or not would depend upon the facts of the case and evidence led by the prosecution and no hard and fast rule by way of precedent can ever be adopted. If surrounding circumstance are suspicious then in the circumstances of the case, it may vitiate the dying declaration. Present is one such case. Before referring the circumstances of the present case, reference may be made to a decision in the case of Kake Singh alias Surendra Singh v. State of M.P., reported in AIR 1982 SC 1021 . If surrounding circumstance are suspicious then in the circumstances of the case, it may vitiate the dying declaration. Present is one such case. Before referring the circumstances of the present case, reference may be made to a decision in the case of Kake Singh alias Surendra Singh v. State of M.P., reported in AIR 1982 SC 1021 . Relevant observations are in Para.2 which reads, thus; “2. The solitary evidence against the appellant consists of the dying declaration alleged to have been made by the deceased Tulsi Baba before Head Constable D. N. Verma (P. W. 8). We have gone through the dying declaration and we find that the dying declaration presents suspicious features. In the first place, Tulsi Baba had himself lodged a complaint before the police against the accused that there was some dispute about the house which Kake wanted Tulsi Baba to vacate and had given. threats that be would come to serious harm if he does not vacate the house. Despite this threat, according to the dying declaration, the deceased readily agreed to take a round in the jeep along with Kake and two others. Indeed, in view of the enmity it is hard to believe that the deceased would trust the accused and go with him at a late part of the night and invite trouble for himself. Another important circumstance that throws doubt on the dying declaration is that Tulsi Baba was alleged to have been missing from Jan. 30, 1975, as would appear from the report made before the Police station by P. W. 3.............” 8. In the present case, the deceased had 98% burns of second and third degree. On account of such extensive burns various internal organs and importantly, brain - were congested. It is highly doubtful that the deceased would continue to be in fit state of mind and conscious enough to say what is attributed to her by the prosecution despite such nature of extensive burns. The medical certificate is in favour of the prosecution. We may not disagree with the medical certificate. Assuming that the deceased was conscious enough to say first before PSO and thereafter also before the Executive Magistrate what is attributed to her even then closer look at the circumstances would show that to rely on dying declaration is not safe. The first question which needs to be asked is cause of the incident. Assuming that the deceased was conscious enough to say first before PSO and thereafter also before the Executive Magistrate what is attributed to her even then closer look at the circumstances would show that to rely on dying declaration is not safe. The first question which needs to be asked is cause of the incident. In one dying declaration, the deceased says today morning the appellant had picked up quarrel with her and in other dying declaration, she says that the appellant was always harassing her. Prima facie, this can be considered as cause for the incident. In the circumstance of the present case, further probe into the “nature of quarrel”, if any, that has taken place between the appellant and the deceased on that day (there is no material, whatsoever in this regard) and also about the “always harassing” (no material qua this also) - ought to have been carried out by the Police. We may point out reason for this. 8.1. Maternal uncle (mama) (PW-11) of the deceased is the sole relative of the deceased who has come forward to depose. It would appear from his evidence that the deceased had quite odd family background. The mother of the deceased was missing since the deceased was a child. Her father had expired before two years of the incident. The deceased herself was a missing child. Further, she had resided with the appellant for over six months prior to the marriage. Only the brother of the deceased had attended the marriage. The brother and the husband of the deceased are earning livelihood by driving. Neither the maternal uncle - who claims to have raised the deceased nor any other relative had attended the marriage. He (PW-11) denies the suggestion that, he was against the present marriage of the deceased. The brother of the deceased has not deposed before the Court. Besides that, what provides weightage to suspicion to the say attributed to complainant about quarrel and harassment is - admitted fact of appellant and the deceased residing separately. They were residing separately since more than four years. The appellant with her husband was residing nearby to the residence of the deceased. The deceased with her husband and children was residing separately. The case of offence under Section 498A of IPC is rejected by the learned trial Court as there is no evidence of physical and mental harassment or cruelty. The appellant with her husband was residing nearby to the residence of the deceased. The deceased with her husband and children was residing separately. The case of offence under Section 498A of IPC is rejected by the learned trial Court as there is no evidence of physical and mental harassment or cruelty. Further, there is no case of demand of dowry etc. No such even case of prosecution. In this background, the claim of quarrel and harassment required ascertainment. The marriage life is of over 13 years. The deceased had six children - two boys and four girls. Further, on advise given by the Doctor, it is the appellant who has come forward to take the deceased to Ahmedabad and it is not in dispute that she had made arrangement to take deceased to Ahmedabad Civil Hospital - though maternal uncle (PW-11) and brother and husband of deceased had arrived at hospital by that time. This circumstance which is referred in case laws and in the authoritative book as surrounding circumstance has considerably weakened weight of dying declaration. 8.2. The mode of recording dying declaration by the Executive Magistrate deserves comment and criticism, but before referring it, brief reference may be made to handing over of the patient/deceased to the appellant. It appears that the appellant has volunteered to take the deceased to Ahmedabad for better treatment. There is endorsement to this effect in medical papers. The Doctor after obtaining thumb impression of the appellant has handed over the patient i.e. victim herein to the present appellant. The prosecution has come forward with the case that the appellant has committed such horrible act - if it is so, then the appellant would be last person to come forward to take the deceased at Ahmedabad for better treatment and on the other hand, the Doctor before whom at initial stage the deceased had said to have given history that the appellant has set her on fire would be last person to hand over the patient to the appellant. It may also bear in mind that the Police had already started investigation, by this time. As stated above, by this time, the husband of the deceased had already arrived from Rajkot and also her brother Sikander had also arrived there. It may also bear in mind that the Police had already started investigation, by this time. As stated above, by this time, the husband of the deceased had already arrived from Rajkot and also her brother Sikander had also arrived there. The fact of handing over the patient to the appellant to take her to Ahmedabad is some what mismatch with the case presented by the prosecution. It is odd that Officials i.e. Doctor, Police Officials etc., did not see any impropriety in it and the close relatives i.e. her husband, her brother did not come forward to take the responsibility of shifting the patient to Ahmedabad. The Doctor has handed over the patient after obtaining signature of the appellant. If really the appellant is the author of such horrible act, committed few hours back, then it is highly unlikely that, she would be in such state of mind that now she would take the responsibility to take the victim to Ahmedabad. But we do want to place undue emphasis on that. Unpredictability of human mind persuades us not to place much reliance on this. 9. We strongly deprecate the manner in which the executive magistrate appears to have “interacted” with the deceased. The mode of recording the dying declaration is highly unsatisfactory. Perusal of the dying declaration would show that the Executive Magistrate has fired about half a dozen questions - all at one time and in response to which, deceased has said to have given above-quoted reply (Para.6.4). The question/s asked by Executive Magistrate are thus; (i) What has happened to you and why you have come to hospital? (ii) Where this incident had occurred and at what time? (iii) How this incident has occurred? And (iv) For what reasons this incident has occurred? 10. Asking the questions - all at one time - in this fashion for recording dying declaration is unknown to us. Generally, a Magistrate would put question one by one, allowing the person who is approaching death, to adjust himself/herself for replying the query of the Magistrate. Asking one question which is in fact composite question consisting of so many questions does not sound natural. It raises doubt whether in fact question/s would have been asked to the patient or not? Generally, a Magistrate would put question one by one, allowing the person who is approaching death, to adjust himself/herself for replying the query of the Magistrate. Asking one question which is in fact composite question consisting of so many questions does not sound natural. It raises doubt whether in fact question/s would have been asked to the patient or not? This doubt is strengthened by other quite serious and disturbing feature that has also come to our notice i.e. the question/s referred above are in printed form. One question consisting of all these questions are in printed form. Circumstance of each case would be different. The formation of question and its sequence would also be according to circumstance of the given case and according to the response of the patient to the question. It may also be noted in this regard that whether the patient is in fit state of mind or not is not idle formality. It is not formal or routine requirement. Response of patient would lead the Executive Magistrate to form the question according to circumstance. Its form and sequence would differ from case to case. Dying declaration in the present case is typical. Apparent in-built weaknesses in it brings dying declaration in area of doubt. It is well settled that dying declaration should be free from doubt. It is also laid down that dying declaration should be natural. Reasonable doubt that is apparent or which is possible to infer without much exercise would make dying declaration vulnerable to the plea that dying declaration is doubtful and not reliable. 11. We may also refer to one of the aspect that was referred to at the time of hearing. There is no material about who had pulled out the deceased from the pit. It is the case of the prosecution that kerosene was poured while the deceased was in pit. Before the deceased get out of the pit, the appellant had thrown burning piece of cloth on the deceased. Dousing of fire was attempted after she was pulled out. Attempt to douse fire was by PW-12 and PW-13. Before (PW-12) and (PW-13) rushed at the scene, some one must have pulled out the deceased from the pit. Apparently, one who has taken the deceased out of pit would have received the burn injuries. The Investigating Officer has not investigated this aspect at all. 11.1. Attempt to douse fire was by PW-12 and PW-13. Before (PW-12) and (PW-13) rushed at the scene, some one must have pulled out the deceased from the pit. Apparently, one who has taken the deceased out of pit would have received the burn injuries. The Investigating Officer has not investigated this aspect at all. 11.1. It was pointed out to us at the time of hearing that the appellant has served over six and half years of imprisonment. 12. In view of above, the present appeal is allowed. The judgment and order of conviction and sentence dated 30.10.2010 passed by learned 3rd Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No.12 of 2010, is hereby quashed and set aside. The appellant - Sherbanu Alias Banuben w/o Abbaskhan Alias Sardarkhan Nurmohammad Makrani (Musalman) is acquitted of all the charges framed against her. The appellant be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to the appellant. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal allowed.