JUDGMENT K.S. Jhaveri, J. 1. The appellants - original accused Nos. 1 to 5 were inter alia sentenced to undergo rigorous imprisonment for life and fine of Rs. 2000/- each in default simple imprisonment for one year for offence punishable under section 302 r/w 34 of Indian Penal Code by impugned judgment and order dated 08.09.2011 in Sessions Case No. 08 of 2009 by the 5th (Adhoc) Additional Sessions Judge, Veraval, camp at Una. 2. Accused No. 1 is the husband of the deceased, accused No. 2 is the father-in-law of deceased, accused No. 3 is the mother-in-law of deceased and accused No. 4 & 5 are the sisters-in-law of the deceased. As per the prosecution case, the deceased was meted out with physical and mental torture by the appellants. It is the case of the prosecution that on 23.08.2008 i.e. the date of incident, the accused persons picked up a quarrel with the deceased and in abetment of each other set the deceased on fire after pouring kerosene on her. She succumbed to the injuries during the course of treatment. 2.1. A complaint in respect of the said incident was registered against the accused persons. Necessary panchnamas were drawn and investigation was carried out and chargesheet was submitted against the appellants. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court where it was registered as Sessions Case No. 08 of 2009. Charge vide Ex. 12 came to be framed against the appellants. They pleaded not guilty and claimed to be tried. 2.2. The trial was initiated against the appellant and during the course of trial the prosecution examined following witnesses whose evidences have been read before us: P.W. No. Name of Witness Exhibit No. 1. Hamidaben Bapusha 22 2. Malabhai Kalabhai 26 3. Haiderali Saiyed 28 4. Dahyabhai Bhimabhai 30 5. Pribhai Chhotubhai 32 6. Kishore Goswami 34 7. Dr. Naimesh Ramani 39 8. Dr. Sudhir Madhasiya 41 9. Dr. Sandip Goswami 44 10. Gulamhussain Abdeman 50 11. Kubraben w/o Mahmadali 52 12. Kherunisha w/o Shafibhai 54 13. Amirhussain Badamiya Alvi 57 14. Mahamad Asif Alvi 59 15. Kadri Abdul Razakbhai 61 16. Amirunisha 65 17. Devayat Nandaniya 66 18. Prabhudas Hariyani 72 19. Laljibhai Kharadi 76 20. Kalabhai Vinjuda 88 2.3. The prosecution has also relied upon certain documentary evidence such as inquest panchnama at Ex. Kubraben w/o Mahmadali 52 12. Kherunisha w/o Shafibhai 54 13. Amirhussain Badamiya Alvi 57 14. Mahamad Asif Alvi 59 15. Kadri Abdul Razakbhai 61 16. Amirunisha 65 17. Devayat Nandaniya 66 18. Prabhudas Hariyani 72 19. Laljibhai Kharadi 76 20. Kalabhai Vinjuda 88 2.3. The prosecution has also relied upon certain documentary evidence such as inquest panchnama at Ex. 23, panchnama of scene of offence at Ex. 27, arrest panchnama at Ex. 31, dying declaration at Ex. 36, medical certificate of deceased at Ex. 42, P.M. Note at Ex. 45, FSL report at Ex. 97 etc. 2.4. At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellants of the charges leveled against them by impugned judgment and order. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellants have preferred the present appeal. 3. Mr. Tolia, learned Counsel appearing for the appellants submitted that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. He submitted that there are serious discrepancies in the evidence of witnesses and therefore the appellants deserve to be granted benefit of doubt. He submitted that majority of witnesses have turned hostile. 3.1. Mr. Tolia contended that the trial court ought to have appreciated the fact that there is a grave contradiction in the FIR as well as in the dying declaration recorded by the Executive Magistrate and therefore the appellants deserve to be granted benefit of doubt. He submitted that the dying declaration is considered, it requires to be noted that the thumb impression taken was not complete and the same was not endorsed by anyone as to the fact that whether the same was of the deceased or not. He submitted that the trial court ought to have seen that when the police officer went to hospital with a view to record dying declaration of victim they found that victim was unconscious and when the Executive Magistrate went to record dying declaration of victim at 1530 hours he could not record the same as the victim was unconscious. He submitted that Dr. He submitted that Dr. Sudhirbhai has stated in his deposition that when the victim was brought to the hospital at 1415 hours she had stated that she had burnt on account of accident and thereafter she lost consciousness. He submitted that therefore it is clear that there had been a conspiracy among the complainant and the other persons in lodging complaint against the appellants. 3.2. Mr. Tolia has drawn the attention of this Court to the evidence of P.W. 6 - Kishore Goswami (Ex. 34) who is the Executive Magistrate who had recorded the dying declaration of the deceased and submitted that there are glaring discrepancies in the dying declaration. Referring to para 3 of the cross examination, he submitted that P.W. 6 has admitted that the thumb impression was not properly taken and that he had left ample amount of space after the thumb and then given his endorsement. He submitted that there is procedural infirmity in recording the dying declaration. 3.3. Mr. Tolia submitted that accused Nos. 4 & 5 are married sisters-in-law and that accused No. 4 is residing at Delwada village with her husband which is around 25 kms away from the place of offence whereas accused No. 5 is residing at Kob which is also at a distance from the place of offence. He submitted that the prosecution has failed to prove the presence of accused Nos. 4 & 5 at the place of offence. 3.4. Mr. Tolia, in the alternative submitted that even if the case of the prosecution is accepted, there is no allegation in particular made against the accused with regard to the crime in question. He submitted that this Court may take a sympathetic view and at the most convict the accused under Section 306 of Indian Penal Code and impose suitable sentence as the Court may think fit. 3.5. In support of his submissions, Mr. He submitted that this Court may take a sympathetic view and at the most convict the accused under Section 306 of Indian Penal Code and impose suitable sentence as the Court may think fit. 3.5. In support of his submissions, Mr. Tolia has relied upon the following decisions: (I) State of Punjab vs. Gian Kaur and Another reported in 1998 SCC (Cri) 942 wherein the Apex Court has held that in a case where thumb mark appearing on the dying declaration having clear ridges and curves when both the thumbs were burnt, the High Court was justified in giving benefit of doubt to the accused; (II) Kamalakar Nandram Bhavsar and others vs. State of Maharashtra reported in 2004 Cri.L.J. 615 more particularly para 7 which reads as under: "7. So far as the genuineness of dying declaration is concerned, having perused the material on record, we are also satisfied that the said document is not a genuine document. Until PW-5 the doctor who conducted the post mortem was examined, the defence did not, in any manner, indicate or disclose the factum of the existence of a dying declaration. No suggestion was put to the other prosecution witness as to the existence of a dying declaration. It is very surprising that a doctor who admittedly did not treat a patient during her life time would be called upon to certify the fitness of the patient to make a dying declaration when other doctors who treated the said patient were available for the said purpose. From the evidence on record also, it is clear that the deceased was in no condition to make a dying declaration. She had almost 95% burns and she was put on oxygen right from the moment she was brought to the hospital and continued to be on oxygen till she died. In such circumstances, it is difficult to believe that she could have made a dying declaration when she was not even capable of breathing by herself. The evidence on record shows that she died within about half an hour after making the alleged dying declaration. In such circumstances, it is difficult to believe that she could have made a dying declaration when she was not even capable of breathing by herself. The evidence on record shows that she died within about half an hour after making the alleged dying declaration. All these circumstances leads to one and the only conclusion that this dying declaration is not a genuine document and the High Court was justified in rejecting the same on that basis." (I) Nallapati Sivaiah vs. Sub-Divisional Officer, A.P. reported in 2007 (3) GLH 491, more particularly paras 8, 20, 21, 32 and 33 which read as under: "8. The Inspector of Police P.W. 9 in his evidence stated that the deceased was profusely bleeding and his condition was precarious even when the deceased was shifted to Guntur General Hospital. He did not verify from the deceased as to whether he was in a fit condition to give his statement. He noticed number of persons gathering around the victim at the scene of occurrence. He did not verify the case sheet. He was not aware as to whether any treatment has been administered to the victim. He commenced recording the Dying Declaration (Ex. P-10) at 6.00 p.m. and completed it by 6.25 p.m. *** *** *** 20. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition - mentally and physically - to make such statement. 21. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition - mentally and physically - to make such statement. 21. In Smt. Paniben vs. State of Gujarat, this court while stating that a dying declaration is entitled to great weight however cautioned to note that the accused has no power to cross-examination. "Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence this Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Munnu Raja v. State of M.P.) (1976) 3 SCC 104 : 1976 SCC (Cri.) 376 : (1976) 2 SCR 764 . (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416 ; Ramavati Devi v. State of Bihar, (1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164 . (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra Reddy v. Public Prosecutor) (1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994 . (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.) (1974) 4 SCC 264 : 1974 SCC (Cri) 426. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. Kake Singh v. State of M.P., 1981 Supp. SCC 25 : 1981 SCC (Cri.) 645 : AIR 1982 SC 1021 . (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.), (1981) 2 SCC 654 : 1981 SCC (Cri) 581. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617 . (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505 . (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State of M.P.) 1988 Supp. SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912 . (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. State of U.P. v. Madan Mohan, (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519 ." *** *** *** 32. SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912 . (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. State of U.P. v. Madan Mohan, (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519 ." *** *** *** 32. In the circumstances can it be said that the victim was conscious and coherent and in a fit condition to give the statement? This aspect of the matter is required to be considered in the background of victim receiving as many as 63 injuries on his body including injuries 1 to 13 and 19 on the parietal and occipital regions on account of which the victim could have gone into coma. The Professor of Forensic Medicine & Medical Officer who conducted the post-mortem, examined as P.W. 11, is an important witness whose evidence has been altogether ignored. He found diffused subarachnoid hemorrhage present all over the brain which normally results in patient going into coma. He also expressed his opinion that the deceased must have died within one or two hours after receiving the injuries. Can we ignore this vital piece of evidence? Do we have to accept that the victim having received 63 multiple injuries went on speaking coherently from 6.00 p.m. onwards till 7.10 p.m., for about one hour and ten minutes? There is no evidence and details of any treatment administered to the victim. Dr. B.G. Sugunavathi, Casualty Doctor, first noticed the victim dead at 9.30 p.m. on 05.01.1998 itself. There is no positive evidence as to when the victim died even though he was admitted into the hospital with multiple injuries. These cumulative factors and surrounding circumstances make it impossible to rely upon the dying declarations that were recorded in Ex. P-10 and Ex. P-8. These are the circumstances which compel us not to ignore the evidence of P.W. 10 - Doctor and Professor of Forensic Medicine. It is not a question of choosing between the eye-witness account as regards the condition of the victim to make a statement on the one hand and the evidence of the Professor and Doctor of Forensic Medicine. The conflict and inconsistency between the two dying declarations and the evidence of the Forensic Expert which remained unimpeached raises a very great suspicion in the mind of the court. 33. The conflict and inconsistency between the two dying declarations and the evidence of the Forensic Expert which remained unimpeached raises a very great suspicion in the mind of the court. 33. It is the duty of the prosecution to establish the charge against the accused beyond reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. The evidence of Professor of Forensic Medicine casts considerable doubt as regards the condition of the deceased to make a voluntary and truthful statement. It is for that reason non-examination of Dr. T. Narasimharao, Casualty Medical Officer, who was said to have been present at the time of recording of both the Dying Declarations attains some significance. It is not because it is the requirement in law that the doctor who certified about the condition of the victim to make a Dying Declaration is required to be examined in every case. But it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case." (II) State of Gujarat vs. Rajesh Nathia Chhara & Others reported in 2015 (3) GLH 2480 wherein this Court has held that Executive Magistrate is required to make note about consciousness of patient and state of mental orientation of patient so as to lend assurance that patient was mentally fit to make statement. 4. Ms. CM Shah, learned APP appearing for the respondent State has supported the order of the trial court and has submitted that the trial court has gone into the evidence in detail and has come to the conclusion that the appellants are guilty of the offence so convicted of. She has submitted that considering the barbaric act committed by the appellants, the trial court has rightly convicted the appellants. She also submitted that the sentence imposed upon the appellants is just and proper and does not deserve to be reduced or quashed. 4.1. Ms. Shah submitted that going by the contents in the dying declaration and the complaint, it is amply clear that the accused-appellants are guilty of the offence charged against them. She also submitted that the sentence imposed upon the appellants is just and proper and does not deserve to be reduced or quashed. 4.1. Ms. Shah submitted that going by the contents in the dying declaration and the complaint, it is amply clear that the accused-appellants are guilty of the offence charged against them. She further submitted that the dying declaration recorded by the Executive Magistrate is in accordance with law and in fact does not need any corroboration. She has relied upon a decision of the Apex Court in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280 . She submitted that the prosecution witnesses have supported the case of the prosecution. 4.2. Ms. Shah has also relied upon decisions of the Apex court in the case of Jose s/o. Edassery Thomas vs. State of Kerala reported in (2013) 14 SCC 172 and in the case of Laxman vs. State of Maharashtra reported in 2002 (6) SCC 710 and submitted that dying declaration recorded by independent Judicial Magistrate cannot be discarded even though there is no certificate by doctor about the consciousness of the patient. 5. We have heard learned advocates appearing for both the sides and have also gone through the materials placed on record. The fact that the death of Naseemaben was caused due to burn injuries is not in dispute. The medical case papers show that Naseemaben had sustained about 90 to 95% burn injuries. The cause of death, as opined by the Medical Officers who conducted the postmortem examination, is cardio-respiratory arrest due to shock due to burns. Thus, that Naseemaben died an unnatural death due to burn injuries is undisputed. 5.1. The circumstances which were pressed into service by the prosecution are as follows: (I) The deceased was married to appellant No. 1 and had no children out of the wed-lock; (II) The deceased was ill-treated by the accused persons; (III) The deceased died at her husband's house; (IV) The deceased in her dying declaration and complaint has named the accused persons and narrated the entire turn of events. 5.2. 5.2. At the outset it shall be relevant to note that it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. 6. As far as the dying declaration Ex. 36 is concerned, the same was recorded by an Executive Magistrate. In the dying declaration, the role of the accused persons is not clearly mentioned. The deceased has stated in the dying declaration that she was set on fire by the accused persons as she did not bore children. She has however named all the five accused as the perpetrator of the offence. 6.1. In the case of Gopal vs. State of Madhya Pradesh reported in (2009) 12 SCC 600 , the Apex Court in para 13 has observed as under: "13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there is more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances." 6.2. In the case of Shudhakar vs. State of Madhya Pradesh reported in (2012) 7 SCC 569 , the Apex Court has held that a "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. In the case of Shudhakar vs. State of Madhya Pradesh reported in (2012) 7 SCC 569 , the Apex Court has held that a "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of truthfulness to such statement. It is also held that once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction, more so where version given by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying declaration. 6.3. As far as the veracity of the dying declaration before the Executive Magistrate is concerned, it is required to be noted that the Executive Magistrate - P.W. 6 - Kishore Goswami in his deposition vide Ex. 34 has stated that he had taken the opinion of the doctor as to fitness of the deceased and thereafter he started recording dying declaration and that the doctor had stated that the deceased was conscious. He stated that he went to the room where the deceased was being treated. He has supported the averments made by the deceased in the dying declaration. He has stated that he appended the thumb impression of the deceased after recording the dying declaration. He has categorically stated that the victim was conscious and oriented enough to give her dying declaration. He has stated that the doctor was present all throughout the recording of dying declaration and that he had certified the fitness of the deceased after recording of the dying declaration. However, in para 3 of the cross examination of this witness it is admitted by him that the thumb impression was not clear enough and that he had appended his signature after quite gap. We have also perused the original papers and find that the thumb impression is not clear and very light. 6.4. However, in para 3 of the cross examination of this witness it is admitted by him that the thumb impression was not clear enough and that he had appended his signature after quite gap. We have also perused the original papers and find that the thumb impression is not clear and very light. 6.4. It shall not be out of place to mention that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration. 6.5. In the complaint at Ex. 58, the brother of deceased had stated that on 23.08.2008, a phone call was received at night wherein they were informed that the deceased had received electric shock and thereby was burnt and therefore she was taken to Mehta Hospital. The complainant and his family members reached the hospital where the deceased was undergoing treatment. He has stated that the deceased was meted out with physical and mental torture by the accused persons. 7. In the history recorded before the doctor - P.W. 8 - Dr. Sudhir Madhesiya, the deceased has stated that she had sustained accidental burns. However, we do find that it is also not a case that she had sustained accidental burns. We feel that this is a case of suicidal attempt. 7.1. In the case of M. Sarvana Alias K.D. Sarvana vs. State of Karnataka reported in (2012) 7 SCC 636 , the Apex Court has held in para 16 as under: "16. In Laxman v. State of Maharashtra, (2002) 6 SCC 710 , the Court while dealing with the argument that the dying declaration must be recorded by a magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows: "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to 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 looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the 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 without 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." 7.2. In that view of the matter, it is clear that the dying declaration being voluntary and made in a fit state cannot be discarded. In the present case there is variation in the history recorded before the doctor as well as the dying declaration recorded before the Executive Magistrate. Going by the ocular evidence, we do find that the dying declaration does not contain the proper thumb impression of the deceased. The dying declaration does not give out any details as to how and who poured kerosene on her and that who had set her on fire. The deceased has vaguely given names of the accused persons without attributing any specific role to them. We are of the view that such a dying declaration cannot be safely relied upon. 8. It is also required to be noted that the prosecution has failed to prove the involvement of accused Nos. 4 & 5 in the alleged offence. Accused Nos. 4 & 5 are sisters-in-law of the deceased and they did not live together with the deceased. 8. It is also required to be noted that the prosecution has failed to prove the involvement of accused Nos. 4 & 5 in the alleged offence. Accused Nos. 4 & 5 are sisters-in-law of the deceased and they did not live together with the deceased. The prosecution has failed to prove that accused Nos. 4 & 5 were seen at the scene of offence. We are therefore inclined to grant benefit of doubt to accused Nos. 4 & 5. 9. We have considered the decisions cited by the learned advocates for both the sides. In the present case, we have come to the irresistible conclusion that the role of the appellants No. 1 to 5 is not clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased was probably driven to commit suicide and therefore accused Nos. 1 to 3 are required to be held guilty for abetment to suicide under Section 306 of Indian Penal Code. We feel that eight years' rigorous imprisonment shall meet the ends of justice. Accused Nos. 4 & 5 are however required to be acquitted by granting them benefit of doubt. 10. The order of conviction and sentence dated 08.09.2011 arising from Sessions Case No. 08 of 2009 passed by the 5th Ad-hoc Additional Sessions Judge, Veraval, Camp at Una is quashed and set aside qua present appellants No. 4 & 5 - original accused No. 4 & 5. Appellants No. 4 & 5 - original accused Nos. 4 & 5 are granted benefit of doubt and are accordingly acquitted of the charges levelled against them under Section 302 r/w section 34 of Indian Penal Code. Since the appellants No. 4 & 5 are on bail, their bail and bail bond shall stand cancelled. The conviction of the appellants No. 1 to 3 - original accused Nos. 1 to 3 under Sections 302 r/w 34 of the Indian Penal Code vide judgment and order dated 08.09.2011 arising from Sessions Case No. 08 of 2009 passed by the 5th Ad-hoc Additional Sessions Judge, Veraval, Camp at Una is altered to conviction under Section 306 of Indian Penal Code. The appellants No. 1 to 3 - original accused Nos. 1 to 3 under Sections 302 r/w 34 of the Indian Penal Code vide judgment and order dated 08.09.2011 arising from Sessions Case No. 08 of 2009 passed by the 5th Ad-hoc Additional Sessions Judge, Veraval, Camp at Una is altered to conviction under Section 306 of Indian Penal Code. The appellants No. 1 to 3 - original accused Nos. 1 to 3 are ordered to undergo sentence of eight years' rigorous imprisonment under section 306 of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. However, the judgment and order qua imposition of fine is maintained. The judgment and order dated 08.09.2011 is modified accordingly. The period of sentence already undergone shall be considered for remission and set off in accordance with law qua appellants No. 1 to 3 - original accused Nos. 1 to 3. Appeal is allowed to the aforesaid extent. R. & P. to be sent back to the trial court forthwith.