JUDGMENT : Mohammad Rafiq, J. 1. This appeal is directed against judgment dated 30.04.2012 passed by the Court of Additional District and Sessions Judge (Fast Track), No. 1, Alwar (for short ‘the trial court’) whereby the trial court while acquitting the accused-appellant for the offence under Sections 498A and 304B IPC, has convicted and sentenced her for offences under Section 302 IPC to life imprisonment and fine of Rs. 10,000/-, in default whereof, to further undergo three months simple imprisonment. 2. Brief facts giving rise to this appeal are that on the basis of parcha bayan (Exhibit P-22) of one Smt. Guddi admitted at General Hospital, Alwar in Female Surgical Ward at Bed No. 10, FIR No. 501/2010 for offence under Sections 498A, 323 and 307 IPC was registered and investigation commenced. It was alleged in the parcha bayan by Smt. Guddi that her marriage was solemnized with Vikram. In the marriage, her parents gave dowry articles more than their capacity. After the marriage her husband, mother-in-law Angoori Devi and father-in-law Harbhajan used to beat her for bringing less dowry and were demanding fridge and four wheeler. On 19.11.2010, her husband and father-in-law gave beating to her on the point of dowry. On 20.11.2010 her husband and father-in-law had gone to attend a marriage. Then at 4-5 P.M. in the evening her mother-in-law Smt. Angoori Devi set fire after pouring kerosin on her. On hearing her hue and cry, neighbours Pyarelal, Ramkhiladi, Smt. Mewa, etc. extinguished the fire and got her admitted to the hospital. During treatment, she expired on 12.12.2010. Post mortem was conducted on the body of deceased on 12.12.2010 and in the opinion of the doctors the cause of death was septicemia and shock. The case was therefore, converted into one under Section 304-B IPC. During the course of investigation the accused-appellant was arrested. After completion of the investigation, charge sheet was originally filed against accused-appellant Angoori Devi, her husband Harbhajan and son Vikram, husband of the deceased under Sections 498A and 304B IPC. However, the trial court vide order dated 29.01.2011 framed charges against accused Vikram and Harbhajan for offence under Section 498-A IPC only and against accused-appellant Angoori Devi for the offences under Sections 498A, 304B and in alternative under Section 302 IPC. However, the trial court vide order dated 29.01.2011 framed charges against accused Vikram and Harbhajan for offence under Section 498-A IPC only and against accused-appellant Angoori Devi for the offences under Sections 498A, 304B and in alternative under Section 302 IPC. Thereafter, the Public Prosecutor moved an application under Section 316 and 317 Cr.P.C. for amending the charges framed against accused Vikram and Harbhajan. The trial court vide order dated 09.06.2011 amended the charges against Vikram and Harbhajan and framed additional charge for offence under Section 304B in alternative Section 302 IPC in addition to charge under Section 498A IPC. The accused persons denied the charges and claimed to be tried. The prosecution in support of its case produced as many as 16 witnesses and got exhibited 28 documents. The accused persons were examined under Section 313 of Cr.P.C. wherein they stated that they have been falsely implicated in the case. The defence did not produce any witness but got exhibited two documents. On completion of trial, the trial court vide judgment and order dated 30.04.2012 acquitted co-accused Vikram and Harbhajan of the charges under Sections 498A & 304-B in the alternative Section 302 IPC and the appellant Angoori Devi for the charges under Section 498A and 304-B IPC, but convicted and sentenced the accused appellant for offence under Section 302 IPC in the manner as indicated above. 3. Mr. Rajesh Sharma, learned counsel for the accused-appellant argued that findings recorded by the learned trial court are against the facts and material on record and therefore liable to be set aside by this Court. The learned trial court has erred in not correctly appreciating Exhibit P-1 certificate issued by Dr. Madhuswaroop Saxena (P.W.1) mentioning that “it is certified that Smt. Guddi Wife of Vikram Caste Jatav R/o Chikani, Alwar is in position to give statement”. Neither it is mentioned that she is mentally fit nor anything is mentioned about her physical condition. It is submitted that the doctor has to mention specifically that she is mentally and physically fit to give dying declaration. The acceptance of this certificate by the learned trial court for convicting the accused-appellant is illegal and perverse. Moreover, the aforesaid certificate has not been given by the doctor on the application given by the SHO to the doctor. The said certificate is alleged to have been issued by the doctor on 21.11.2010 at 12.15 AM. The acceptance of this certificate by the learned trial court for convicting the accused-appellant is illegal and perverse. Moreover, the aforesaid certificate has not been given by the doctor on the application given by the SHO to the doctor. The said certificate is alleged to have been issued by the doctor on 21.11.2010 at 12.15 AM. The parcha bayan (Exhibit P-22) of Smt. Guddi was recorded by investigating officer, Omprakash (P.W.15) on 21.11.2010 at 12.30 A.M. On the basis of parcha bayan of Smt. Guddi, FIR was chalked out at the police station on 21.11.2010 at 12.10 PM. The same ASI approached Shri Pavan Kumar Agarwal (P.W.12) for recording dying declaration and the same ASI also gave in writing to the doctor for issuing the medical fitness certificate. The alleged dying declaration (Exhibit P-19) was recorded by Pavan Kumar Agarwal, Judicial Magistrate (P.W.12) on 21.11.2010 but no time has been mentioned thereon. A bare perusal of these documents goes to show that neither a proper certificate has been issued by the doctor nor the identification of Smt. Guddi was established nor the time of documents co-related with each other. Hence, conviction of the accused-appellant relying on dying declaration is illegal and perverse and liable to be set aside by this Court. 4. Learned counsel for the accused-appellant argued that learned trial court has erred in not taking into consideration the fact that all relatives of the deceased have been declared hostile. Raghuveer (P.W.6), brother of the deceased has given application Exhibit D-1 and Exhibit D-2 to the Investigating Officer during the investigation before filing of the challan mentioning that Smt. Guddi gave statement on the saying of the villagers. The villagers under angry mood, asked her to give this statement. These documents are given during the investigation and before filing of the challan and therefore, their testimony cannot be denied at all. However, the learned trial court has completely ignored all these aspects of the case. Omprakash, investigating officer (P.W.15) has stated in the cross examination that brother of the deceased was present in the ward and at the time of recording the statement his brother Raghuveer (P.W.6) was present. Raghuveer (P.W.6) also stated the same thing that his family members were present in the hospital. Pyarelal (P.W.3), Smt. Mewa Devi (P.W.7) and Ram Khiladi (P.W.10) are neighbourers and they did not support the prosecution story. Raghuveer (P.W.6) also stated the same thing that his family members were present in the hospital. Pyarelal (P.W.3), Smt. Mewa Devi (P.W.7) and Ram Khiladi (P.W.10) are neighbourers and they did not support the prosecution story. As per the evidence of the prosecution witnesses, the in-laws of the deceased provided all sorts of facilities for her treatment and the parents of the deceased were also present there. The learned trial court has disbelieved the prosecution story as regards other co-accused persons, but wrongly convicted the accused-appellant relying on the sole dying declaration of the deceased (Exhibit P-19). The learned trial court also disbelieved the dying declaration as regards two co-accused persons. Hence conviction of the accused-appellant on the same set of evidence is illegal and perverse and liable to be set aside by this Court. 5. Learned counsel further argued that Preeti Chandra (P.W.9), C.O. Rural has admitted that Raghuveer (P.W.6) has given Exhibit D-1 and Exhibit D-2 to her during the investigation. Therefore, from the entire evidence on record it is clear that dying declaration (Exhibit P-19) is not a reliable document at all. Hence conviction of the accused appellant is bad in law and deserves to be set aside by this Court. Smt. Guddi gave birth to a child, who is staying with her in-laws as stated by the prosecution witnesses. As per the post mortem report (Exhibit P-5), the incident had taken place on 20.11.2010 and she expired on 12.12.2010. The cause of death is septicemia and shock. Though septicemia developed on account of the injury, but negligence of the medical officers is the main reason for the development of the septicemia in the body of the deceased. Hence, the accused-appellant cannot be held liable for the death of Smt. Guddi. 6. Learned Public Prosecutor opposed the appeal and supported the judgment passed by the trial court. She in doing so referred to statements of prosecution witness as also the exhibits produced by the prosecution, which we shall advert to at a later part of the judgment. 7. We have given our anxious consideration to rival submissions and carefully perused the material on record. 8. She in doing so referred to statements of prosecution witness as also the exhibits produced by the prosecution, which we shall advert to at a later part of the judgment. 7. We have given our anxious consideration to rival submissions and carefully perused the material on record. 8. Learned trial court while convicting the accused-appellant for the offence under Section 302 IPC has relied on the dying declaration (Exhibit P-19) of the deceased recorded by Pawan Kumar Agarwal, Judicial Magistrate (P.W.12), which finds corroboration from her parcha bayan (Exhibit P-22) recorded by Om Prakash, investigating officer (P.W.15). In fact, the first information report in the present case has been recorded on the basis of parcha bayan recorded at 12.55 P.M. on 20th November, 2010 by Om Prakash (P.W.15). In this parcha bayan, the deceased alleged that she was married to Vikram about 4 years ago. Her parents had given dowry at that time as per their capacity, but her father-in-law Harbhajan, mother-in-law Angoori Devi and husband Vikram used to beat her and subject her to harassment and cruelty for not bringing enough dowry. She was on several occasions driven out of the home for this reason and thereafter on the intervention of the relatives and persuasions of her parents accused permitted her to again come to their household. The accused used to demand fridge and four wheeler in dowry. She had a son, who was aged about 2 years. She also alleged that on the previous day of incident, i.e. 19th November 2010, her husband and father-in-law subjected her to beating in connection with demand of dowry. She simultaneously again stated that other members of in laws also used to beat her. On that day her father-in- law and her husband had gone to attend a wedding. Her mother-in-law Angoori Devi was in the house. The incident took place at about 4-5 P.M., Angoori Devi poured kerosene over her body from a jerrycan. The deceased further alleged that Angoori Devi lit fire. She raised hue and cry, several other persons from the neighborhood namely Smt. Mewa, Pyarelal, Ram Khiladi came and extinguished the fire. They then took her to hospital at Alwar in a vehicle and informed her brother. At the conclusion of parcha bayan she again reiterated that her mother-in-law Angoori Devi put her on fire for demand of dowry. She raised hue and cry, several other persons from the neighborhood namely Smt. Mewa, Pyarelal, Ram Khiladi came and extinguished the fire. They then took her to hospital at Alwar in a vehicle and informed her brother. At the conclusion of parcha bayan she again reiterated that her mother-in-law Angoori Devi put her on fire for demand of dowry. At that time her husband and father-in-law were not there. 9. Om Prakash (P.W.15) investigating officer proved that on his application, Chief Judicial Magistrate, Alwar ordered for getting dying declaration of the deceased recorded in the presence of Judicial Magistrate. It is on that application that Pawan Kumar Agarwal, Judicial Magistrate (P.W.12) drew the proceedings in the night intervening 20th and 21st November, 2010 at Rajiv Gandhi General Hospital, Alwar after obtaining fitness certificate from Dr Madhuswaroop Saxena (P.W.1). The dying declaration has been recorded in question and answer form. The deceased therein stated that the incident had taken place at about 4-5 P.M. on 20th November 2010 when she was in her house at Chikani. When it was specifically asked that as to what happened with her and how she sustained burn injury, the deceased alleged that her mother-in-law Angoori Devi poured kerosene over her body and then lit the Fire. When it was asked that whether anyone else was present at the time of incident in the house, the deceased replied that only her sister-in-law Sona was present and no one else was there. When asked as to who did and what she said at that time, she replied that her mother-in-law had burnt her by pouring kerosene over her body. In answer to the question as to who came to the place of incident thereafter, she replied that after she was put on fire, she rushed to the house of neighbours where Smt. Mewa, her husband Pyarelal extinguished the fire. Last question was put to her that would she like to say anything, in response to which she stated that her husband subjected her to beating in the previous night and that her husband, father-in-law and mother-in-law used to demand dowry. 10. Last question was put to her that would she like to say anything, in response to which she stated that her husband subjected her to beating in the previous night and that her husband, father-in-law and mother-in-law used to demand dowry. 10. The prosecution has sought to rely on the testimony of Pyarelal (P.W.3); his wife Smt. Mewa Devi (P.W.7) and son Ram Khiladi (P.W.10), three persons, who were named by the deceased in her parcha bayan and also in the dying declaration recorded by the Pawan Kumar Agarwal, Judicial Magistrate (P.W.12). All these three witnesses have not supported case of the prosecution. Pyarelal has appeared as P.W.3 and stated that how the deceased Guddi burnt was not known to him. There was no one in the house of the accused at that time. Guddi raised hue and cry after she caught fire. He put off the fire and then took Guddi to hospital. This witness stated that when he asked Guddi as to how she caught fire, she did not reply as she was unconscious. But he also stated that he did not know that whether in laws of Guddi used to subject her to beating in connection with demand of dowry or not. At the time of incident mother-in-law of the deceased was not present in the house. In the cross examination, this witness denied the suggestion that Angoori Devi was present in the house at the time of incident. This witness was again called after addition of charge under Section 302 IPC. At that time this witness as additionally stated that Angoori Devi had gone to the house where the wedding was taking place. 11. Smt. Mewa (P.W.7), wife of Pyarelal, has also not supported the case of the prosecution and turned hostile. She has denied suggestion that accused used to harass the deceased for demand of dowry. She has stated that Vikram and Harbhajan had gone in the marriage, but in the next sentence she also stated that mother-in-law of the deceased Angoori Devi had also gone somewhere. Thus, implying that the deceased Guddi was alone in the house. Guddi came out of the house while crying and at that time her clothes were burning. They extinguished the fire. Thus, implying that the deceased Guddi was alone in the house. Guddi came out of the house while crying and at that time her clothes were burning. They extinguished the fire. This witness was also re-called after additional charge for offence under Section 302 IPC was added and at that stage she stated that Angoori Devi had gone to the house where the marriage was taking place. They asked Guddi as to how she caught fire and Guddi stated that she was not aware as to how her clothes caught fire. 12. Ram Khiladi (P.W.10) son of Pyarelal has also not supported the case set up by the prosecution and turned hostile. He has stated that Guddi came rushing to their house while she was burning. He and his father put off the fire by a shawl. Guddi was crying for help. While crying she also stated that she got the fire by herself. At that time no one was present in the house. 13. All the aforesaid three witnesses were confronted with their police statements recorded under section 161 Cr.P.C. on the very next day of incident i.e. 21st November 2010 wherein they supported the case of the prosecution, but they disowned there statements and denied having given such statements to the police. Bhoti Devi (P.W.5), mother of the deceased, Raghuveer (P.W.6), brother of the deceased and Khadadi Ram (P.W.11), father of the deceased, have also not supported the case of the prosecution. It is in this context, that the leraned trial court while acquitting Harbhajan, father-in-law of the deceased and Vikram husband of the deceased has relied on the dying declaration of the deceased (Exhibit P-19) and convicted the accused-appellant Angoori Devi for offence under Section 302 IPC. We find that the learned trial court to the extent of its reliance on the dying declaration of the deceased, which has been proved by Pawan Kumar Agarwal, Judicial Magistrate (P.W.12) cannot be said to have faulted but at the same time we have to examine whether on the basis of evidence available on record in the present case conviction of accused-appellant Angoori Devi for offence of murder could be justified or whether she could have been convicted for offence under Section 304-B IPC, for which alternative charge was framed against the accused-appellant. But before considering the dying declaration, we must begin with the parcha bayan (Exhibit P-22) of the deceased, which was the earliest version disclosed by her to Omprakash, investigating officer (P.W.15), which eventually led to recording of dying declaration of the deceased by Judicial Magistrate. Even in this parcha bayan, the deceased had alleged presence of only Angoori Devi in the house when the incident took place and stated that her husband Vikram and father-in-law Harbhajan were not present in the house. The deceased had spoken in the parcha bayan in greater detail with regard to continuous harassment meted out to her by her in laws in connection with demand of dowry. She has alleged that her parents had given dowry beyond their means, yet her in laws were not satisfied. Her father-in-law, mother-in-law and husband used to tease her for not bringing enough dowry and even subject her to beating. On several occasions, she was thrown out of the house after beating and she was allowed to enter the house only after persuasion by other relatives and the parents of the deceased. Her in-laws used to demand a fridge and four wheeler. In fact, she also alleged that her husband and father-in-law gave her beating on the previous day, i.e. a day prior to the incident. They frequently used to subject her to beating. Having stated this much, the deceased Guddi then alleged in the subsequent part of her parcha bayan that her mother-in-law poured kerosene over her body from a jerrycan and lit the fire, as a result of which her clothes caught fire and she cried for help. Her neighbours, Smt. Mewa, Pyarelal and Ram Khiladi put off the fire and took her to hospital at Alwar. In the conclusion part of parcha bayan the deceased alleged that it was her mother-in-law Angoori Devi, who put her on fire by pouring kerosene for demand of dowry. 14. Dying declaration (Exhibit P-19) has been proved by Pawan Kumar Agarwal, Judicial Magistrate (P.W.12) who stated that on his enquiry treating doctor certified that Guddi was fit to give statement. She was identified by her brother Raghuveer and Om Prakash, SHO, Police Station, Sadar. He recorded her statement on Ben No. 10 in Ward No. 2 of the hospital. This witness stated that condition of Guddi was quite stable and she was capable of understanding the implication of the proceedings. She was identified by her brother Raghuveer and Om Prakash, SHO, Police Station, Sadar. He recorded her statement on Ben No. 10 in Ward No. 2 of the hospital. This witness stated that condition of Guddi was quite stable and she was capable of understanding the implication of the proceedings. She was also capable of signing and therefore her signatures were obtained on the proceedings as well as on the dying declaration. All the papers were forwarded to the court in a sealed envelope. Contention of the defence that Dr. Madhuswaroop Saxena (P.W.1) in cross examination has stated that he did not examine the mental condition of Guddi cannot be countenanced for two reasons; firstly that when he appeared again after charge of offence under Section 302 IPC was added, he clarified this position by stating that before issuing certificate of fitness, he thoroughly examine the mental condition of the patient and then only issued certificate and secondly, Pawan Kumar Agarwal, Judicial Magistrate (P.W.12) in his statement before the court amply clarified this position by saying that he satisfied himself about mental condition of Guddi, who was fully oriented and was understanding the implication of what was spoken to her. Dying declaration as already noted above has been recorded in question and answer form in which Guddi stated that the incident took place at 4-5 P.M. on 20th November, 2010, when she was present in her house. At that time her mother-in-law Angoori Devi poured kerosene over her body and lit the fire. Her sister-in-law Sona was also present in the house and no one else was present there. After catching fire she rushed out of the house for help. Smt. Mewa and her husband Pyarelal put off the fire. Her husband Vikram gave her beating in the previous evening. Her husband, mother-in-law and father-in-law all used to harass her for demand of dowry. 15. After catching fire she rushed out of the house for help. Smt. Mewa and her husband Pyarelal put off the fire. Her husband Vikram gave her beating in the previous evening. Her husband, mother-in-law and father-in-law all used to harass her for demand of dowry. 15. When parcha bayan and dying declaration are read conjointly, despite mother, father and brother of the deceased did not support the case of the prosecution and neighbours Pyarelal, Smt. Mewa and Ram Khiladi having turned hostile, the trial court taking note of the fact that marriage of the deceased was solemnized with Vikram almost 4 years ago of the incident was inclined to believe the dying declaration of the deceased to the extent that she was subjected to cruelty and harassment in connection with demand of dowry. Therefore, in the given facts, presumption under Section 113B of the Indian Evidence Act would arise which inter alia provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. This legal presumption was purposely introduced by the legislature to take care of the menace of dowry deaths in the country. Section 304B IPC inter alia provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be call “dowry death” and such husband or relative shall be deemed to have caused her death. In view of the legal presumption under Section 113B of the Indian Evidence Act, the accused was under obligation to rebut such presumption. However, in the present case the accused-appellant has failed to rebut the presumption and rather not given any explanation as to in what circumstances death of Guddi took place. 16. In view of the legal presumption under Section 113B of the Indian Evidence Act, the accused was under obligation to rebut such presumption. However, in the present case the accused-appellant has failed to rebut the presumption and rather not given any explanation as to in what circumstances death of Guddi took place. 16. Since we are in the present case concerned only with Angoori Devi, who has been convicted for offence of murder and Not with Vikram, husband of deceased and Harbhajan, father-in-law of the deceased, who have been acquitted of all the charges framed against them, we find that in both dying declarations in the present case, it is alleged by the deceased that Angoori Devi poured kerosene over her body and put her on fire which does not inspire confidence because the deceased was a young woman aged about 25 years and Angoori Devi, her mother-in-law was almost double of her age being 47 years old. We therefore hold that in the absence of any other witness corroborating aforesaid allegation of the deceased, her two dying declarations to that extent deserve to be discarded. However, with regard to the allegation of harassment and cruelty meted out to the deceased in connection with demand of dowry soon before her death deserves to be accepted since the same inspire confidence and can be believed. While we therefore set aside conviction of the accused-appellant for offence under Section 302 IPC, we are inclined to convict her for offence under section 304B IPC. 17. Having held so, we find that the accused-appellant is a woman, who was arrested on 19th December 2010 and the sentence provided under section 304B IPC is imprisonment of not less than 7 years but which may extend to imprisonment for life. Range of sentence from 7 years to life imprisonment has been provided under section 304B IPC, but we find no specific reason for awarding maximum sentence of life imprisonment to the accused-appellant. In the facts of the present case, the accused-appellant deserves to be sentenced with rigorous imprisonment of 7 years. 18. In view of above discussion, the appeal is partly allowed. Accused-appellant Angoori Devi is convicted for offence under Section 304B IPC and sentenced to seven years rigorous imprisonment with fine of Rs. 10,000/-, in default of payment of fine, she would further undergo simple imprisonment of 3 months.