JUDGMENT : Pushpendra Singh Bhati, J. 1. This criminal appeal has been preferred by the accused-appellants Natti Bai wife of Chhittar Lal and Rakesh Kumar S/o. Chhittar Lal against the judgment dt. 06/08/2010 passed by the Additional District and Sessions Judge (Fast Track), Chhabara, District Baran. The accused-appellants have been convicted by the learned Judge vide aforesaid judgment for the offence under-Section 498-A and 304-B IPC and were sentenced as under:- "U/s. 498-A IPC: Both the accused-appellants have been sentenced for three years' rigorous imprisonment and a fine of Rs. 25,000/- each and to under undergo one year rigorous imprisonment in case of default in payment of fine." U/S. 304-B IPC: Both the accused-appellants have been sentenced to life imprisonment." 2. Brief facts of the case are that the complainant Kailash Chand submitted a report on 31/03/2009 at Police Station Chheepa Barod through Camp Government Hospital, Baran that his daughter Kanya Bai was married 5-6 years ago to Rakesh Kumar at Chheepa Barod. The marriage had taken place in a 'Sammellan' and his daughter used to visit her parents and in-laws. The complainant stated that the accused-appellant Rakesh, his father Chhittar Lal, mother Natti Bai, sister-in-law Sushila Bai and brother-in-law Mahaveer used to continuously harass the complainant's daughter. His son-in-law Rakesh had come on 'Holi' and demanded Rs. One Lac and threatened that upon the same being not paid, he shall finish her. He gave beatings to his daughter and fractured the hand of the complainant. However, due to conciliation conducted by the relatives, Kanya Bai was sent to her in-laws' place. On 30/03/2009 at Chheepa Barod, in the evening at about 6.00 pm, the accused persons poured Kerosene over Kanya Bai and burnt her. The burn injury was 90% and Kanya Bai was admitted in the hospital at Baran. 3. On the basis of the said report, FIR No. 84/2009 came to be registered by the police at Police Station, Chheepa Barod, Baran for the offence under Section 498-A and 307 IPC. However, during treatment, on death of Kanya Bai, Section 304-B IPC was added to the charges and the investigation was initiated. The charge-sheet was filed under Section 498-A and 304-B of IPC. 4. The learned Judge framed charges against the accused-appellants and since they did not plead guilty, therefore, the trial commenced. 5. However, during treatment, on death of Kanya Bai, Section 304-B IPC was added to the charges and the investigation was initiated. The charge-sheet was filed under Section 498-A and 304-B of IPC. 4. The learned Judge framed charges against the accused-appellants and since they did not plead guilty, therefore, the trial commenced. 5. The accused-appellants were examined under Section 313 Cr.P.C. and submitted four defence witnesses in their defence, however, they did not get any document exhibited. 6. Kailash Chand (PW-8), father of the deceased Kanya Bai, deposed before the learned Court that the marriage had taken place about 5 years ago and Rakesh, Natti Bai and Sushila frequently harassed his daughter. There was continuous demand of dowry of Rs. One Lac and a threat that if same is not fulfilled, then his daughter shall be finished. The deceased Kanya Bai had complained while she visited her parents house on 'Holi' that there was a frequent demand of dowry. Rakesh had also come and threatened that in case dowry of Rs. One Lac is not paid, then he shall kill their daughter and within eight days, the incident happened. When it came to his knowledge that his daughter has been burnt, he rushed to the hospital at Baran and then he found that his daughter Kanya Bai was 90% burnt. During cross-examination, this witness refused the theory that his daughter was burnt due to fall of 'Chimney' on her while she was unloading beds from 'Alkani'. However, the fact was admitted that for saving his daughter Kanya Bai, her father-in-law Chhittar Lal made efforts and got himself burnt while trying to save his daughter. 7. Kanti Bai (PW-7), mother of Kanya Bai, also narrated the same events regarding marriage and repeated the fact of harassment caused by the husband, mother-in-law, brother-in-law and sister-in-law. She stated that there was continuous harassment for dowry and on their persuasion, Kanya Bai went back to her in-laws place. Rakesh had come on 'Holi' to his in-laws' house and demanded Rs. One Lac and threatened that if the demand is not completed, then he shall kill their daughter and within eight days of that incident, the burning incident took place. She stated that while she reached the hospital, her daughter informed her that her husband Rakesh alongwith Natti Bai, her mother-in-law also burnt her. One Lac and threatened that if the demand is not completed, then he shall kill their daughter and within eight days of that incident, the burning incident took place. She stated that while she reached the hospital, her daughter informed her that her husband Rakesh alongwith Natti Bai, her mother-in-law also burnt her. She also stated that she had seen injury marks on her daughter's body about six months ago. 8. Pramod Kumar Sharma, a Judicial Magistrate (PW-11), who recorded the dying declaration of Kanya Bai at Burn Ward of MBS Hospital, Kota, deposed that he reached Burn Ward of MBS Hospital, Kota where Kanya Bai was admitted. He took dying declaration in the presence of the Government Doctor Dilip Kumar who had declared Kanya Bai to be fit to give her statement. He also stated that the dying declaration (Exhibit-P.14) bears signature of the doctor apart from his own signature. The same also bears the thumb impression of Kanya Bai. 9. Kadluram (PW-18), who was posted as ASI at the relevant point of time at Police Station Chheepa Barod, deposed that on 31/03/2009 upon receiving a message that Kanya Bai was admitted in the hospital in burnt conduction, he went to Burns Unit of Government Hospital at Kota. The 'Parcha Bayan' of Kanya Bai was not taken as she was not fit for the same on 31/03/2009. 10. Dr. Sanjeev Jaiswal (PW-13) and Dr. Vishva Deepak (PW-14), who conducted the postmortem on 06/04/2009, opined that the Kanya Bai was 90% superficially burnt and had died due to Septicemic Shock. The burn injuries caused infection which resulted into Septicemia and 90% burn was sufficient to cause death. 11. Anil Pandey (PW-10), who was SHO at Police Station Chheepa Barod at the relevant point of time, deposed that on 31/03/2009, he received a 'tehrir' report upon which the FIR (Exhibit-P.11) was registered and investigation was initiated and the site plan (Exhibit-P.3) was also prepared by him. The photographs of the site were taken and the same are Exhibit-P.4. The recovery of the half burnt plastic sheet was also made which is Exhibit-P.5. The cane of kerosene was also recovered and the same is Exhibit-P.6 12. The photographs of the site were taken and the same are Exhibit-P.4. The recovery of the half burnt plastic sheet was also made which is Exhibit-P.5. The cane of kerosene was also recovered and the same is Exhibit-P.6 12. Rajendra Kumar (PW-9), who was posted as Circle Inspector at Chhabra at the relevant point of time, deposed that on investigation, he caused arrest of accused Rakesh through 'Fard' (Exhibit-P.9) He further stated that father-in-law Chhittar Lal had received extensive burns while trying to save Kanya Bai. 13. Arun Singh (PW-17), who was posted as Head Mohrir, Malkhana at Police Station Chheepa Barod at the relevant point of time, deposed that that he deposited two sealed packets on 01/04/2009 in Malkhana which were duly entered in the register of Malkahana. 14. Ram Karan (PW16) reiterated the same stand as taken by the PW-10. 15. Ghanshyam Verma (PW-1), Mohan Lal (PW-2), Prahlad (PW-3), Hemraj (PW-4) and Ramesh (PW-5) are the witnesses of preparation of Panchayatnama (Exhibit-P.1). 16. Trilok Chand (PW-6) and Smt. Badriva (PW15) were declared hostile. 17. The defence harped upon the evidence given by the Kailash Chand (PW-8) whereby he had stated that he tried to speak to her daughter but she had not disclosed anything to him. From the evidence of DW-1 to DW-4, a different version came out that Kanya Bai did not want to stay at the place of in-laws and therefore, might have attempted suicide. 18. As far as the offence under Section 498-A IPC is concerned, the evidence rendered by Kanti Bai (PW-7) and Kailash Chand (PW-8), it is specific that Natti Bai (mother-in-law), Rakesh (husband), Mahaveer (brother-in-law) and Sushila (sister-in-law) had demanded dowry. It has also come from the evidence of Kanti Bai (PW-7) that the husband and mother-in-law had caused injuries to the deceased on earlier occasions. Kailash Chand (PW-8) has also supported the harassment on account of demand of dowry and physical assault by the husband and mother-in-law. 19. As far as Section 304-B IPC is concerned, it has been proved by Kanti Bai (PW-7) and Kailash Chand (PW-8) that the marriage had taken place five years' ago i.e. well within seven years' period. Kailash Chand (PW-8) has also supported the harassment on account of demand of dowry and physical assault by the husband and mother-in-law. 19. As far as Section 304-B IPC is concerned, it has been proved by Kanti Bai (PW-7) and Kailash Chand (PW-8) that the marriage had taken place five years' ago i.e. well within seven years' period. The evidence of Kanti Bai (PW-7) was that when she went to the hospital, it was specifically told by Kanya Bai that her husband Rakesh had burnt her and the same story was supported by Kailash Chand (PW-8) also. 20. The dying declaration (Exhibit-P.14) was recorded by Mr. Pramod Kumar Sharma (PW-11), a Judicial Magistrate who clearly states that Kanya Bai told that her mother-in-law had put kerosene and burnt her. It was also proved by the doctors that the death was caused due to Septicemia which was result of 90% superficial burn injuries. 21. Thus, the prosecution was able to prove that the death was caused due to the burn injuries. However, a great doubt was created as to how such burn injuries were caused. For the accused-appellant Natti Bai, there was consistency in all the evidence recorded. The fact that has been recorded by a Judicial Magistrate (PW-11) Mr. Pramod Kumar Sharma in dying declaration (Exhibit-P.14) in the presence of the doctors, is that the incident of pouring the kerosene and burning had been caused by Natti Bai, mother-in-law of the deceased Kanya Bai and the clear statement of the deceased Kanya Bai that the incident of pouring of kerosene and burning was caused by Natti Bai, clearly reflects that the presence of Rakesh, husband of Kanya Bai, was not there at that time. The learned Court below has only presumed the presence of Rakesh, the husband of deceased Kanya Bai on account of the statement of PW-7 and 8 who have stated that Rakesh had come a few days ago and had demanded money and had threatened that he will finish Kanya Bai if the money is not given soon. Chhittar Lal (DW-1) stated that Natti Bai was not at home but the same was controverted by Mohan Lal (DW-3) who stated that Natti Bai was at home only when the incident had happened. 22. The dying declaration (Exhibit-P.14) has been recorded by Mr. Pramod Kumar Sharma (PW-11) a Judicial Magistrate which bears signatures of Dr. Chhittar Lal (DW-1) stated that Natti Bai was not at home but the same was controverted by Mohan Lal (DW-3) who stated that Natti Bai was at home only when the incident had happened. 22. The dying declaration (Exhibit-P.14) has been recorded by Mr. Pramod Kumar Sharma (PW-11) a Judicial Magistrate which bears signatures of Dr. Dilip Kumar as well as thumb impression of Kanya Bai. PW-11 asked Kanya Bai as to what was her name on which she replied that her name is Kanya. The second question asked by PW-11 as to what happened to which she answered that her mother-in-law had levelled allegations against her which she could not bear. Then, PW-11 asked Kanya Bai what is the name of her mother-in-law upon which she replied that name of her mother-in-law is Natti Bai. PW-11 then asked her as to how she suffered burns, upon which the specific answer of Kanya Bai was that her mother-in-law poured kerosene upon her and ignited the fire which resulted into her getting burns. The next question of PW-11 was that as to who saved her upon which Kanya Bai stated that she was saved by her father-in-law (Bauji) and he himself got burnt in the process. The next question by PW-11 was where was her husband at that time to which Kanya Bai answered that her husband was not at home at that time. PW-11 asked her as to what else she want to say, then Kanya Bai answered that she does not want to say anything else, but only wants that her mother-in-law should be punished. The dying declaration was read to Kanya Bai and she admitted that it has been rightly recorded and had appended her left thumb impression on it. 23. As far as the role of mother-in-law, the accused appellant Natti Bai is concerned, it is established by the evidence rendered by the prosecution witnesses and particularly in the dying declaration. Therefore, the offence under Section 304-B has been proved beyond reasonable doubt against Natti Bai. The incident does not bear testimony of any eye-witness which was of-course not possible as the incident had happened in the in-laws house of the deceased and it was expected that at such time, no independent witness would be available at home. 24. Therefore, the offence under Section 304-B has been proved beyond reasonable doubt against Natti Bai. The incident does not bear testimony of any eye-witness which was of-course not possible as the incident had happened in the in-laws house of the deceased and it was expected that at such time, no independent witness would be available at home. 24. The Apex Court in the case of Lakhan v. State of Madhya Pradesh: (2010)8 SCC 514 has observed in Para 12 of its judgment as follows:- "12. A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by the officer of lower rank, for the reasons that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case." 25. The Apex Court, in the case of Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh: (1993)2 SCC 684 has observed in Para 18 of its judgment as follows:- "18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations, then the court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. Having read the evidence of PWs 1-3 with great care and attention, we are of the view that their testimony is based on intrinsic truth. Both the dying declarations are consistent with each other in all material facts and particulars. That the deceased was in a proper mental condition to make the dying declaration or that they were voluntary has neither been doubted by the defence in the course of cross-examination of the witnesses nor even in the course of arguments both in the High Court and before us. Both the dying declarations have passed the test of creditworthiness and they suffer from no infirmity whatsoever. We have therefore no hesitation to hold that the prosecution has successfully established a very crucial piece of circumstantial evidence in the case that the deceased had voluntarily made the dying declarations implicating both the appellants and disclosing the manner in which she had been put on fire shortly before her death. This circumstance, therefore, has been established by the prosecution beyond every reasonable doubt by clear and cogent evidence." 26. We notice here that the dying declaration is properly attested by the attending doctor and the same has been recorded by an independent Judicial Officer who has testified about the same as PW-11. This circumstance, therefore, has been established by the prosecution beyond every reasonable doubt by clear and cogent evidence." 26. We notice here that the dying declaration is properly attested by the attending doctor and the same has been recorded by an independent Judicial Officer who has testified about the same as PW-11. The dying declaration is also having thumb impression of Kanya Bai. However, so far as the role of husband, the accused appellant Rakesh Kumar is concerned, the same is doubtful, he was neither present at home at the time of incident nor just before the accused had raised demand of dowry. Thus, it seems he is victim of over implication and an attempt to rope him in has been made. So far as the defence witnesses are concerned, no credence can be granted to them for the reason that they belong to the family of the accused-appellants. In our opinion, the learned Trial Judge has committed an error in convicting the accused-appellant Rakesh for offence under Section 304-B of IPC. 27. Once we have come to the conclusion that the accused-appellant Natti Bai, mother-in-law of the deceased Kanya Bai, had poured kerosene and set Kanya Bai, the deceased on fire, then there is no scope of conviction of the accused-appellant Rakesh, husband of the deceased Kanya Bai as the deceased Kanya Bai, in her dying declaration, had categorically stated that her husband Rakesh was not at home and the incident was caused by Natti Bai, mother-in-law by pouring kerosene and burning her. However, by the evidence of PW-7, mother of the deceased Kanya Bai and PW-8, father of the deceased Kanya Bai, it is proved that the deceased Kanya Bai was harassed by both the accused-appellants, hence, we uphold the conviction of the accused-appellant Natti Bai and the accused-appellant Rakesh for the offence under Section 498-A IPC. However, the conviction of the accused-appellant Rakesh under Section 304-B IPC cannot be sustained in light of the testimony of witness PW-11 read with Exhibit-14 (dying declaration). Thus, the accused-appellant Rakesh is acquitted of the charge of offence under Section 304-B IPC. 28. Consequently, the appeal of the accused-appellant Natti Bai is dismissed and the appeal preferred by the accused-appellant Rakesh is partly allowed and while his conviction under Section 498-A IPC is upheld, his conviction under Section 304-B IPC is set aside and he is acquitted of the same.