JUDGMENT : In this Cr. appeal filed by the State of Rajasthan, the judgment dated 8th December, 1994 passed by the Addl. Sessions Judge, Bikaner in Sessions Case No. 7/1992 is under challenge, whereby the learned trial Court acquitted the respondents from the charge under Section 302 IPC. 2. Before proceeding further, it is necessary to observe that out of the two respondents, respondent Sushila wife of Kiranchand died during the pendency of this appeal on 19th April, 2006. The appeal against respondent Sushila abated vide order dated 13th February. 2007, therefore, now this appeal remained only against respondent Sharda. 3. As per facts, on 27th December, 1990 an information was received at Police Station, Gangasahar from medical jurist Mr. RN. Mathur of PBM Hospital, Bikaner informing therein that one Sushila wife of Anand Kumar has been admitted in the ward in burnt condition. Upon aforesaid telephonic information, the ASI Phool Nath went to the PBM Hospital, Bikaner along with Jeevraj Singh at about 8.00 P.M. The ASI Phool Nath recorded the statement of deceased Sushila, in which the deceased Sushi a alleged that today on 27th September, 1990 at about 9-9.30 AM a hot talk took place in between me and my sisters-in-law (Nanad) and other sister-in-law Jethani) Sharda. Thereafter, when I was sitting on floor of open place (Angan), at that time, my sister-in-law (Nanad) Sushila and other Sister-in-law (Jethani) Sharda came there and both respondents poured kerosene oil upon me and Sharda lit fire. It is also stated that my marriage was solemnized 7 years back and I am having 3 daughters. At the place of occurrence, upon hearing her cry, the husband of deceased and both the respondents poured water to stop fire and my husband immediately took me to the hospital in taxi. As per allegation of deceased Sushila, the incident took place after hot conversation in between her and both the respondents, therefore, it was prayed by her that action may be taken against Sharda and Sushila. The statement of deceased was also recorded by PW-7 Nemi Chand, Judicial Magistrate in which above allegations were reiterated and statement of deceased was also recorded under Section 161 Criminal Procedure Code by Kalyan Singh, SHO Police Station, Gangasahar, which is Ex.D/7. 4. The statement of deceased was also recorded by PW-7 Nemi Chand, Judicial Magistrate in which above allegations were reiterated and statement of deceased was also recorded under Section 161 Criminal Procedure Code by Kalyan Singh, SHO Police Station, Gangasahar, which is Ex.D/7. 4. Upon aforesaid statements, the FIR No. 165/1995 was registered under Section 307 IPC and formal FIR Ex.7 was registered at Police Station, Gangasahar on 27.9.1990. During investigation, Sushila died on 7.10.1990 after 10 days of the incident and post-mortem of the body of the deceased was conducted by the medical board and report Ex.P/9 was given on 8.10.1990. As per opinion of the Board, the cause of death was septicemia as a result of 70-75% burning. Further, it is submitted that the injuries were sufficient to cause death in ordinary course of nature. Thereafter, both the respondents were arrested and the investigating officer filed challan under Section 302 IPC in the Court of Judicial Magistrate No. 1, Bikaner. Thereafter, the case was committed for trial to the Court of Sessions Judge, Bikaner, and later on transferred to the Court of learned Addl. Sessions Judge, Bikaner for trial 5. In the trial charge under Section 302/34 was framed against the respondents. The respondents denied the charge levelled against them and prayed for trial. In the trial, statements of 13 prosecution witnesses were recorded and after recording evidence of prosecution, the statements of respondents were recorded under Section 313 Criminal Procedure Code but no oral evidence was produced by the respondents but second (sic.) documents were exhibited in defence. The learned trial Court after recording the evidence of both the sides finally heard the arguments in the case and acquitted respondents from the charge levelled against them, while giving benefit of doubt vide judgment dated 8th December, 1994. 6. In this appeal the State Government is challenging validity of judgment dated 8th December, 1994 on various grounds. 7. Learned Public Prosecutor submitted that finding of learned trial Court for acquittal is per-se illegal and erroneous because learned trial Court did not consider the trustworthy evidence of prosecution to prove its case beyond reasonable doubt, therefore, judgment is not sustainable in law. 7. Learned Public Prosecutor submitted that finding of learned trial Court for acquittal is per-se illegal and erroneous because learned trial Court did not consider the trustworthy evidence of prosecution to prove its case beyond reasonable doubt, therefore, judgment is not sustainable in law. The learned public prosecutor invited attention of this Court towards the case; there are three dying declarations and in all dying declarations there are clear allegations against both the respondents that they poured kerosene upon the deceased Sushila and lit fire to the body, which resulted into extensive burns. It is also submitted that there is eye witness PW-8 Amita, 6 years old daughter, who was present at the time the occurrence took place, but learned trial Court disbelieved the testimony of the said witness and erroneously held that she was not present at the time the occurrence took place. 8. According to learned public prosecutor there is no reason to disbelieve the three statements made by the deceased, so also the statement of PW-8 Amita, daughter of deceased who was present at the time of occurrence. As per the learned public prosecutor, the trial Court committed a grave error while ignoring and not accepting the testimony of eye witness as well as dying declarations made by the deceased Sushila, therefore, the impugned judgment deserves to be quashed. 9. The learned public prosecutor further submitted that PW-8 Miss Amita proved the prosecution case but only on the ground of some contradictions, the learned trial Judge had thrown out the testimony of PW-8 Miss Amita and did not appreciate her evidence so as to hold the respondents guilty for alleged offence of murder, therefore, on this ground alone, the impugned judgment deserves to be quashed. 10. As per prosecution, PW-5 Phool Nath, ASI of Police Station Gangasahar and PW-13 Kalyan Singh recorded dying declarations of deceased Sushila in which specific allegations were levelled by her against both the respondents, but on technical ground and upon few discrepancies, the trial Court disbelieved the evidence, therefore, it can be said that gross error has been committed by the trial Court in not accepting the cogent and trustworthy evidence of PW-5 Phool Nath and PW-13 Kalyan Singh. 11. According to the prosecution, the statements of deceased were recorded by the PW-7 Judicial Magistrate Sh. Nemichand. 11. According to the prosecution, the statements of deceased were recorded by the PW-7 Judicial Magistrate Sh. Nemichand. In that statement also specific allegations were levelled against respondents in full consciousness but trial Court failed to appreciate the trustworthy evidence of PW-7 Judicial Magistrate Sh. Nemichand who is independent witness of prosecution. 12. Learned public prosecutor lastly argued that there is trustworthy and reliable evidence on record upon that it is obvious that prosecution has proved its case beyond reasonable doubt, but learned trial Court failed to appreciate the testimony of these witnesses, which is proved by the prosecution, therefore, judgment impugned may kindly be quashed and respondent Sharda may be convicted for the offence committed by her under Section 302 IPC. 13. Per contra, learned counsel appearing on behalf of respondent Sharda submits that finding given by the trial Court for acquittal is based upon appreciation of evidence which does not require any interference because out of three dying declarations, the first statement was recorded by PW-5 Phool Nath upon which FIR was registered. It is a settled principle of law that in case of burning, before recording statement of injured, the certificate of duty doctor must be obtained to ascertain whether the injured is in position to give statement or not. While inviting attention toward the facts that although statement Ex.P/5 was recorded by the witness PW-5 ASI Phool Nath on 27th September, 1990, it is also obvious that no certificate was obtained by him with regard to consciousness of the injured Sushila from doctor. To substantiate above arguments, learned counsel for the respondent invited our attention towards Ex.P/4 given by him to the in-charge doctor of (Y) Ward of PBM Hospital, Bikaner. Upon said letter it is stated that 'fit for statement" but signature is given by one nurse that too, was not produced before the Court, therefore, the learned trial Court rightly disbelieved the statement of deceased recorded by Phool Nath. It is also submitted that the witness PW-5 Phool Nath ASI of Police Station, Gangasahar accepted in his cross-examination that brother Mangi Lal of Sushila was sitting near Sushila in the hospital and he was dictating to make allegation against women family members, therefore, it is obvious that prosecution has fabricated a story against respondents, therefore, no interference is required in this appeal. 14. 14. Learned counsel for the respondent submits that although the statement of injured (Ex.P/10) was recorded by the Magistrate PW-7 Nemichand and before recording her statement, the opinion of doctor was taken vide Ex. P/6 but upon perusal of forwarding letter Ex.P/6 it will reveal that name of doctor cannot be identified, so also, no such doctor was examined in the trial to prove the fact that deceased Sushila was conscious to give statement. 15. Learned counsel for the respondent further argued that the statements were recorded by the Magistrate PW-7 Nemichand on 27th September, 1990 but FIR was registered on basis of statement recorded by ASI Phool Nath, who has categorically stated in his cross-examination that brother of deceased, Mangi Lal, was sitting near the bed of deceased and he was dictating to give names of family member of her in-laws, therefore, the said fact became doubtful, therefore, the learned trial Court has rightly) disbelieved the testimony of said witness. 16. The third statement under Section 161 Cr.P.C. (Ex.D/7) was recorded on 30th September, 1990 by the SHO Kalyan Singh, but the investigating officer turned hostile and did not support the prosecution case. Therefore, learned trial Court disbelieved all the three statements (dying declarations) d the deceased because the whole story was concocted by the prosecution. 17. For the finding to disbelieve the testimony of so-called eye-witness PW-8 Amita, daughter of deceased it is submitted that the said witness was planted by the prosecution because her name was not even mentioned by the deceased in her statement, so also the husband of deceased Anand Kumar (PW-11), mother-in-law of deceased Jhamku Devi (PW-10) and Mangilal (PW-9), all these witnesses did not prove the fact that the day on which the alleged incident took place, this witness Amita was present in the house. It is also submitted that the trial Court rightly gave finding that upon perusal statement of PW-8 Amita, it is obvious that she is tutored witness because she was residing with the parents of deceased, therefore, it is a case in which fall and fabricated story was concocted by the prosecution, therefore, learned trial Court rightly disbelieved the testimony of these witnesses so as to acquit the respondent Sharda from the charges levelled against her. Therefore, no interference is called for in this appeal. Therefore, no interference is called for in this appeal. In support of his arguments, learned counsel for the respondent invited our attention towards the judgment in the case of Smt. Kalawati v. State of Rajasthan reported in 1993 Cr.L.R. (Raj.) 798, Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P. reported in AIR 2008 SC 19 , Waikhom Yaima Singh v. State of Manipur reported in AIR 2011 SC (Supp) 783, and Panchanand Mandal @ Pachan Mandal v. State of Jharkhand reported in AIR 2013 SC (Supp) 240 and submits that no interference is called for in this appeal filed by the State of Rajasthan because prosecution has failed to prove its case beyond reasonable doubt, therefore, this appeal may kindly be dismissed. 18. After hearing learned counsel for the parties, first of all it is required to be observed that during the pendency of this appeal, the respondent Sushila died on 19th April, 2006, therefore, appeal against her has abated vide order dated 12th February, 2007. 19. We have considered the arguments of both the sides and perused the entire evidence on record. It is true that whole prosecution case is based upon three statements of deceased recorded by PW-5 Phool Nath, ASI Gangasahar (Ex.P/4) and statement (Ex.P/10) recorded by PW-7 Nemichand, Railway Magistrate, Bikaner and statement recorded under Section 161 Criminal Procedure Code (Ex.D/1) by the Investigating Officer PW-13 Kalyan Singh on 30th September, 1990. The genesis of this case arises from the statement recorded by PW-5 Phool Nath. The said witness, first of all recorded statement of deceased in the PBM Hospital, Bikaner on 27th September, 1990 the said witness PW-5 Phool Nath stated before the Court that recording statement of deceased Sushila, a letter Ex.P/4 was given by him to the in-charge doctor of (Y) Ward of PBM Hospital, Bikaner to ascertain whether she is in position to speak or not. We have perused Ex.P/4 upon which endorsement "fit for statement" is mentioned, but it is given by one Nurse Jolly TT and not by the doctor and said witness did not turn up before the Court to prove the fact that deceased was conscious when statements were recorded by ASI Phool Nath, Police Station Gangasahar. 20. We have perused Ex.P/4 upon which endorsement "fit for statement" is mentioned, but it is given by one Nurse Jolly TT and not by the doctor and said witness did not turn up before the Court to prove the fact that deceased was conscious when statements were recorded by ASI Phool Nath, Police Station Gangasahar. 20. We have also perused the statement of PW-5 Phool Nath, who has categorically stated in cross-examination that : " ;g lgh gS fd eSa tc vLirky igqapk rks okabZ okMZ esa lq'khyk ds ikl mldk HkkbZ Hkkaxhyky cSBk Fkk vkSj og lq'khyk dks og cksy jgk Fkk fd mldks fdl fdldk uke ysuk gSA eSaus mldks ekaxhyky dks euk fd;k Fkk fd rqe blls funksZ"kh dk >wBk uke D;ksa fyokrs gksA rks ekWaxhyky us eq>s dgk Fkk fd eSa tks budh vkSjrksa dk uke bldks fy[kk jgk gwWa ogh ;g uke ysxhA blds ckn eSaus mls ekaxhyky dks dgk fd rqe nwj pys tkvksA bl ij lq'khyk us vius HkkbZ }kjk crk;s x;s uke gh crk;s tks eSaus vius c;kuksa esa fy[ks FksA " 21. Meaning thereby there is clear evidence on record that before recording statement the brother of deceased Mangilal was present and his presence is recorded in the trial upon statement of PW-5 Phool Nath. In our opinion, no such statement can be taken into account so as to hold a person guilty for committing offence of murder. We have also perused the statement of PW-7 Nemichand, Judicial Magistrate. The said witnesses categorically stated that before recording statement of Sushila upon letter Ex.P/6 he obtained certificate of the doctor, who gave certificate that she is fit to give her statement, but upon perusal of Ex.P/6 which is given by SHO Phool Nath to the CJM Bikaner that the name of doctor is not known nor any doctor is examined in the court to prove the fact that any certificate was given by him with regard to consciousness of the deceased Sushila. It is also obvious that although allegations are levelled by the deceased in her statement recorded by the Magistrate, but there is no evidence on record to prove that those statements were given by the deceased in conscious condition, more so, as per statement of PW-5 Phool Nath, the brother of deceased, Mangilal, tutored her to make allegations against respondents. 22. 22. With regard to 3rd statement recorded under Section 161 Cr.P.C. which is Ex.D/7, we have perused the statement of Kalyan Singh (PW-13) Investigating Officer. The said witness turned hostile and learned trial Court observed in the judgment that poor investigation has been conducted by him. In the statement recorded by Kalyan Singh Ex.D/7 on 30th September, 1990 although there are allegations for pouring kerosene and lighting fire by the respondents, but this Court cannot lose sight of the fact that the first statement of PW-5 Phool Nath, ASI of Police Station Gangasahar he had categorically stated that the brother of deceased, Mangilal, was sitting near the deceased in the hospital and he asked his sister to make allegations against the family members of her in-laws. 23. Upon consideration of the arguments of learned counsel for the respondent that certificate of doctor for fitness of the witness is necessary before recording the statement, we are of the opinion that there is no quarrel in the said preposition because in the case of Smr. Kalawati (supra), the Division Bench of this Court held that for recording dying declaration, the Police Officer is required to comply with provisions strictly and if manner of recording on dying declaration raises strong suspicion then it cannot be relied upon. The para no. 27 of the said judgment is as follows : "27. We may here state that though a dying declaration recorded by a police officer is admissible in evidence under Section 32 of the Indian Evidence Act, yet it has been considered better to leave such dying declarations out of consideration. The apex Court has deprecated the practise of recording of a dying declaration by a police officer and has observed that the practise of recording of a dying declaration by a police officer during the course of investigation should be discouraged and more reliable methods of recording dying declaration should be resorted to. Kindly see Dalip Singh v. State of Punjab, AIR 1979 SC 1173 : (1979 Cri.L.J. 700). We may here hasten to add that this is not to suggest that a dying declaration recorded by a police officer cannot at all be acted upon. A police officer may certainly record a dying declaration it there is no time or facility available for recording of the same in a better mode. We may here hasten to add that this is not to suggest that a dying declaration recorded by a police officer cannot at all be acted upon. A police officer may certainly record a dying declaration it there is no time or facility available for recording of the same in a better mode. But, in that case, the police officer must conform to the requirement of the relevant rules and instructions, if any. In the present case, Shri Bhanwar Singh did not at all comply with the provisions of Ruse 6.22 of the Police Rules. He altogether disregarded the provisions of these rules. We, therefore, find that Ex.R 7 is wholly worthless and does not advance the prosecution case at all. We do not propose to place any reliance upon Ex.P.7 recorded by Bhanwar Singh, which on all counts is a suspicious document." 24. Similarly in case of Lallapati Sivaiah (supra) the Supreme Court gave the following verdict in paras Nos. 39 and 40 which reads as under :- "39. The Dying Declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a Dying Declaration depends upon not only the testimony of the person recording Dying Declaration be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at proper conclusion The court must satisfy itself that the person making the Dying Declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording dying declaration but also cumulative effect of the other evidence including tie medical evidence and the circumstances must be taken into consideration. Conclusion : 40. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. In such cases, the court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence." 25. In case of Panchanand Mandal alias Pachan Mandal (supra) the Hon'ble Supreme Court held that if dying declaration suffers from infirmities then it cannot be relied upon. In such cases, the court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence." 25. In case of Panchanand Mandal alias Pachan Mandal (supra) the Hon'ble Supreme Court held that if dying declaration suffers from infirmities then it cannot be relied upon. Further, if dying declaration is not certified by any medical expert stating that deceased was in medically fit condition for giving statement then such dying declaration cannot be accepted. Para 13 of the said judgment is as follows :- 13. Ext. 4 the dying declaration also suffers from infirmities. The author who recorded the dying declaration C. Paswan, ASI was not prod teed by the prosecution for examination or cross-examination. The explanation given by the prosecution in this matter was that the attendance of the ASI could not be secured in spite of summons issued against him and the letters written to the Superintendent of Police, Deoghar and Giridih. The Trial Court wrongly held that this was a convincing explanation. In fact, non-appearance of ASI has prejudicially affected the defendants interest as they were denied the opportunity to cross-examine him. It is admitted that dying declaration (Ex.4) was not certified by any medical expert stating that the deceased was in medically fit condition for giving statement. Though such certificate is not mandatory, it was the duty of the officer who recorded the same to mention whether the deceased was in mentally and medically fit condition for making such statement, particularly when the case was of a third degree burn which could lead to death." 26. Upon examination of the evidence in the light of above judgments, we are of opinion that no error has been committed by the trial Court to acquit respondent Sharda from the charge levelled against her under Section 302 IPC because none of the statements were recorded after obtaining certificate of the doctor nor any doctor is produced in the court to prove the fact that deceased was in condition to give her statements. 27. We have considered the argument of learned Public Prosecutor with regard to testimony of eye witness PW-8 Amita. Admittedly, the day on which her statement were recorded, she was 8 years of age and incident took place on 27th September, 1990 on that day she was 6 years of age. 27. We have considered the argument of learned Public Prosecutor with regard to testimony of eye witness PW-8 Amita. Admittedly, the day on which her statement were recorded, she was 8 years of age and incident took place on 27th September, 1990 on that day she was 6 years of age. It is true that in statement of PW-8 Amita certain allegations are levelled by her but we cannot lose site of the fact that whatever story narrate by her was not even narrated by the deceased herself in the so-called dying declarations by the deceased Sushila, more so, deceased Sushila gave altogether different statement before the Court with regard to incident. The learned trial Court after examining entire evidence gave finding that said witness Amita (PW-8) is tutored witness because she was residing with the parent of the deceased. We have also perused finding given by the trial Court to disbelieve the testimony of the witness PW-8 Amita in the light of other evidence. The PW-3 mother of the deceased nowhere stated that Amita was present at the time the occurrence took place. Similarly Dheeraj Kumar (PW-4) categorically stated in his statement that " vkuUn dqekj dh yM+dh vferk ?kVuk ds le; ?kj ds vUnj o ckgj ekStwn ugha FkhA vLirky ys tkus ds ckn vferk ckgj ls [ksyrh vkbZ Fkh vkSj ck[ky esa gh [ksyrh jgh FkhA " 28. The husband of deceased Anand Kumar (PW-11) nowhere stated that his daughter was present at the time the occurrence took place. More so he said that " eSa /khjt dqekj dks tkurk gwWa tks esjs dkdk dk csVk HkkbZ gSA ;g ckr lgh gS fd /khjtdqekj viuh ekWa dks jksVh [kkus dk dgus ds fy, esjs ?kj ij vk;k Fkk] ml le; lq'khyk Hkkxrh gqbZ tyrh gqbZ esa vkbZ FkhA ;g ckr lgh gS fd esjh iRuh dks 'kkjnk o lq'khyk eqyftek us ugha tyk;k Fkk] og rks Lo;a vius vki gh tyh FkhA " 29. PW10 Jhamku Devi is elder mother-in-law of the deceased. She was present on the date of occurrence. PW10 Jhamku Devi is elder mother-in-law of the deceased. She was present on the date of occurrence. It is categorically stated by her that " ywudj.k th dh e`R;q ds ihps fdz;kdeZ dk dk;Z nksuksa yM+ds veku pUn o vkuUn dqekj us fd;k FkkA vkt ls djhc nks lky igys esa ywudj.k th cSn ds ?kj ij xbZ FkhA eSa fcUnf.k;ksa dks ;g dgus xbZ Fkh] fd dy ls ukSjrs gS blfy, rqe jlksbZ vkfn lkQ dj ysukA ml le; lq'khyk ?kj ij cjru ekWa> jgh Fkh] esjh tsBwrh lq'khyk ihNs ls vk jgh FkhA esjh tsBwrh lq'khyk vkSj eSa [kM+h Fkh vkSj tks ck[ky esa [kM+h Fkh] ml le; ogkWa vkuUn vk;k Fkk] mlus eq>s dqN Hkh ugha dgk FkkA fcUn.kh lq'khyk ml le; vkuUn ds vkus ds ckn vUnj pyh xbZ FkhA fcUn.kh vUnj ls ty dj vkbZ FkhA eSaus o vkuUn us lq'khyk ds yxh gqbZ vkx cq>kbZ Fkh o esjh tsBwrh lq'khyk us ikuh Mkyk FkkA eSaus vkx cq>kbZ] mlls esjs Hkh gkFk ty x;s FksA tc ge vkx cq>k jgh Fkh] rks ml le; nw/k nsus okyh Hkh Fkh] tks tkrh ls dqEgkj gS] eSa mldk uke ugha tkurhA " 30. In cross examination it is stated by the said witness that " lq'khyk dh cM+h yM+dh dk uke vferk gSA vferk vius ufugky esa gh jgrh FkhA tc lq'khyk vUnj ls ty dj vkbz Fkh] rks ml le; vferk ogkWa ekStwn ugha FkhA 'kkjnk o lq'khyk nksuksa ds vyx&vyx edku gSA bu nksuksa ds chp uk rks cksy pyk Fkh vkSj uk gh vkuk tkuk FkkA bu nksuksa ds edkuksa esa vkus tkus dk jkLrk Hkh vyx&vyx FkkA lq'khyk cgqr rst LoHkko dh FkhA ;g ckr lgh gS fd cM+h cgw 'kkjnk o lq'khyk eqyftek nksuksa us e`rdk lq'khyk dks ugha tyk;kA lq'khyk cgw vius vki gh tyh FkhA " 31. Upon consideration of above statements, we are of the opinion that trial Court has rightly disbelieved the testimony of so-called planted eye witness PW-8 Amita, therefore, in our opinion, no error has been committed by the learned trial court so as to acquit the respondent Sharda from the charge levelled against her because prosecution has miserably failed to prove its case beyond reasonable doubt. 32. In view of the above discussion, the instant criminal appeal filed by the State of Rajasthan is hereby dismissed.