JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of a judgment dated 23.04.2012 rendered by the learned Additional Sessions Judge, Dahod, in Sessions Case No. 186 of 2011. 2. Briefly stated, the prosecution version was that deceased Gangaben lived with her husband Mukeshbhai, accused No. 1 and other family members which included Mukeshbhai's mother Sumliben, accused No. 2 and second wife, Dakshaben, accused No. 3. On the date of the incident, i.e. 17.06.2011 there was a quarrel between Gangaben and her husband. The other two accused also joined the husband. Later, in the afternoon, when Gangaben was sleeping in the house with her daughter, accused No. 1 poured kerosene over her and instigated and encouraged by the other two accused to set Gangaben on fire. The flames engulfed Gangaben and her minor daughter and killed both of them. These accused were therefore charged with offence punishable under section 302 read with section 114 of IPC. 3. The learned Additional Sessions Judge, by the impugned judgment, convicted accused No. 1, Mukeshbhai for the offence of murder and sentenced him to life imprisonment. This was primarily on the basis of the two dying declarations which, the deceased had given. The Trial Court did believe that accused Nos. 2 and 3 had instigated accused No. 1 in committing the act. However, holding that they had merely instigated or abetted the accused No. 1 and further noticing that both were lady accused and the accused No. 3 had the responsibility of minor children, the learned Judge took, what he described as, a lenient view and acquitted them. Relevant observations in this regard read as under: "Looking to the gravity of the offence against the accused Nos. 2 and 3 is lesser then accused No. 1, they were merely instigated or abetted to the accused No. 1 and when both the ladies are respectively mother and wife of accused No. 1 and looking to the age of accused No. 2 and 3 and more particularly looking to the fact that accused No. 3 is having two minor children and there are no any other person to take care such minor children then, I am of the view to take lenient view for accused Nos. 2 and 3 because accused Nos. 2 and 3 because accused Nos. 2 and 3 have not set fire to the deceased, they have not poured kerosene or sprayed kerosene upon the deceased, hence, mere abetting to the accused No. 1 cannot term for the conviction as per the facts and circumstances of the case alongwith evidence on record. Looking to the determination of points, which are stated by this Court in earlier portion of this judgment, prosecution succeeds to proving the Issue Nos. 1 and 2 as affirmative. So far as the issue No. 3 is concerned the prosecution succeeds in proving that accused Nos. 2 and 3 have abetted to the accused No. 1 for causing bodily injuries to the deceased and instigated to the accused No. 1 that set fire to her and kill her, but, mere words are not with intent to cause her death which were sufficient to cause the death of the deceased in ordinary course of nature because both the ladies have not taken part for ablazing to the deceased except mere saying the words." 4. The convicted accused No. 1 has, therefore, filed Criminal Appeal No. 630 of 2012. The State has preferred Criminal Appeal No. 1423 of 2012 challenging the acquittal of the original accused Nos. 2 and 3. 5. We may record the gist of evidence. PW 1, Bhalabhai Heerabhai Machhar, Exh 9, the father of the deceased turned hostile and did not support the prosecution. He was, in any case, not an eyewitness but he did say that it was his son Ratan who had called an ambulance to take Gangaben to the hospital and it was eventually Ratan and his wife Sarmistha who took her to the hospital first at Sukhsar and thereafter at Dahod. 6. Several other witnesses residing in the same locality, who according to the prosecution, had rushed to the scene of incident also turned hostile. It is, therefore, not necessary to refer to the evidence of these witnesses. However, from the portion of the evidence of these witnesses who turned hostile to the prosecution such as the deposition of Dalsingbhai Vejabhai Bariya, PW 5, Exh 17, it is firmly established that the incident took place inside the house of the accused in the afternoon hours. Dalsingbhai stated that when he was at his house, he heard shouts and saw smoke coming out from the direction of Bachubhai's house. Dalsingbhai stated that when he was at his house, he heard shouts and saw smoke coming out from the direction of Bachubhai's house. When he went there, he saw Gangaben and her daughter Sheetal were both burnt. The house had also caught fire. From then on, he turned hostile and stated that he had not asked the cause of the fire to Gangaben. 7. Dr. Bijaysinh Ganpatsinh Rathod, PW 10, Exh 23 had carried out the postmortem on Gangaben. The postmortem report was produced at Exh 26. The death was due to shock due to burn injuries and its effect. Postmortem of the young girl Sheetal was carried out by Dr. Ashokbhai Krashnalal Mahajan, PW 11, Exh 27. 8. The FIR was lodged by Gangaben herself which is produced at Exh 40. In such FIR, she had stated that her marriage with accused No. 1 had taken place about ten years back. From such marriage, she had one daughter Sheetal aged about seven years. About four years back her husband had married again to Dakshaben. They all lived together with the father-in-law and mother-in-law. On 17.06.2011, in the afternoon, all family members were at home. She asked for money to her husband. Her mother-in-law questioned her why was she asking for money. Dakshaben also started quarreling with her. She then went to sleep with her daughter in a cot. At about 4 O'clock she felt something was being sprinkled over her and she woke up. Her husband had a bottle of kerosene in his hand. Her mother-in-law and the second wife instigated her husband to set her on fire, upon which, the husband lit a match stick and she caught fire on the entire body, due to which, her daughter who was sleeping next to her also started burning. She shouted for help but nobody came to help her. The FIR was recorded by Manharbhai Mansingbhai Sonarat, PW 15, Exh 39, the Police Sub Inspector of Sukhsar Police Station. He stated that after recording the FIR, he made arrangements for taking down the dying declarations of the lady by the Executive Magistrate and later on, carried out the investigation further upon being informed that the lady had died. 9. The Executive Magistrate Ramanbhai Ratnabhai Bhabhor, PW 13 Exh 33 who had taken down the dying declaration deposed that he had received a letter on 17.06.2011 for recording the dying declaration. 9. The Executive Magistrate Ramanbhai Ratnabhai Bhabhor, PW 13 Exh 33 who had taken down the dying declaration deposed that he had received a letter on 17.06.2011 for recording the dying declaration. On the basis of such communication, he had gone to the burns ward of General Hospital, Dahod and started recording of the dying declaration at 9 O'clock. He could not take the thumb impression of the lady since her hands and feet were burnt. He had thereafter taken the endorsement of the doctor that the patient was conscious. When the dying declaration was recorded, there was no one else present other than himself. The dying declaration was produced at Exh 35. In such dying declaration, after asking preliminary questions about the name, age etc. of the patient, the Magistrate asked her as to how the incident had happened. To which, she answered that in the afternoon she had asked for money from her husband Mukeshbhai when Mukeshbhai, Dakshaben and Sumliben had picked up a quarrel with her. Later, when she was sleeping with her daughter Sheetal in the house, between 3 and 4 O'clock, she felt something was sprinkled over her. She caught fire in which, she and her daughter got burnt. Her husband Mukeshbhai, Dakshaben and mother-in-law had all joined together in setting her on fire. She further stated that her father-in-law Bachubhai was present but he had not done anything. She had no quarrel with him. 10. This, in the nutshell, is the evidence on record. On the basis of such evidence, learned advocate Mr. Mangukiya submitted that the Trial Court committed a serious error in convicting accused No. 1 when all the witnesses had turned hostile. He submitted that none of the witnesses including the panch-witness had supported the prosecution. Only on the basis of two dying declarations, conviction could not have been recorded. The deceased had referred to a bottle of kerosene in the husband's hands whereas the investigating agency had recovered a container. Even otherwise, the prosecution case is highly improbable. There was no evidence of any previous longstanding quarrels. Mere exchange of heated words would not be a sufficient motive for committing murder. At any rate, the accused had no reason to cause any harm to his own daughter. 11. On the other hand, learned AGP Ms. C.M. Shah submitted that the dying declarations are clear, consistent and reliable. There was no evidence of any previous longstanding quarrels. Mere exchange of heated words would not be a sufficient motive for committing murder. At any rate, the accused had no reason to cause any harm to his own daughter. 11. On the other hand, learned AGP Ms. C.M. Shah submitted that the dying declarations are clear, consistent and reliable. The deceased had attributed active participation on all the three accused. The Trial Court committed a serious error in acquitting accused Nos. 2 and 3 only on the ground that they were mere instigators or abettors. 12. As noted, most of the witnesses other than official witnesses turned hostile. However, from the deposition of the witnesses, two important facts can be gathered. First is that, the incident took place in the late afternoon inside the house of the accused. This is clear from the testimony of Bhalabhai Heerabhai Machhar, PW 1, the father of the deceased and several other witnesses including Dalsingbhai Vejabhai Bariya, PW 5, Exh 17. These all are the people who were residing in the same locality and they reported that they heard some shouts and found that smoke was coming from the direction of the house of Mukeshbhai. When they rushed there, they saw Gangaben and her daughter badly burnt. In fact, this aspect is not even seriously disputed by the defence. There is no cross on this issue to any of the witnesses. The second important aspect emerging from the evidence of PW 1 is that, it were the relatives of deceased Gangaben who called for the ambulance and took her to the hospital even after their own close relatives. Accused No. 1 was nowhere in scene even when his own wife and daughter were seriously burnt and in critical condition. The fact that all the witnesses residing in the neighbourhood including the father of Gangaben having turned hostile, would not change the situation much. This is so because, in any case, none of these witnesses even as per the prosecution had any firsthand information about the cause of fire. At best, the attempt of the prosecution could have been to bring on record Gangaben's oral dying declarations through these witnesses. However, we have two written dying declarations made by Gangaben to the PSI and the Executive Magistrate respectively. At best, the attempt of the prosecution could have been to bring on record Gangaben's oral dying declarations through these witnesses. However, we have two written dying declarations made by Gangaben to the PSI and the Executive Magistrate respectively. The moot question therefore is, are these dying declarations reliable, accurate and consistent so as to record the conviction of any of the accused? The law of evidentiary value of dying declaration is sufficiently clear through series of judgments of the Supreme Court. We may refer to only one of them. In case of Atbir v. Government of NCT of Delhi reported in (2010) 9 SCC 1 , in the context of the dying declaration, the Supreme Court after referring to number of earlier judgments culled out following principles: "22. The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) 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. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration." 13. Bearing in mind these principles, if we examine the dying declarations, at the first available opportunity, Gangaben in her statement Exh 40 had given the version that on 17.06.2011 at about 12 O'clock, she had demanded money from her husband. Her mother-in-law objected to this. Her husband's second wife Dakshaben also joined in the quarrel. All the three accused quarreled with her. Later, when she was sleeping in a cot with her daughter, she woke up upon something being sprinkled over her. She saw that her husband was standing with a bottle of kerosene. The other two accused instigated him to lit the fire which he did. The fire engulfed her and her daughter. Likewise, in the dying declaration Exh 35 made by her before the Executive Magistrate, she had given substantially similar version. She stated that there was a quarrel in the afternoon when she had asked for money from her husband Mukeshbhai. Mukeshbhai's second wife and mother-in-law had both quarreled with her. Later, when she was sleeping in the cot inside the house, something was sprinkled over her. She was set on fire. Her daughter also got burnt. It is well recognized principle that a dying declaration recorded by the Executive Magistrate carries considerable significance. Being made to an independent person who has no axe to grind, courts normally repose faith in contents of such dying declaration unless of course there is something to shake this confidence. In the present case, proper procedural care was taken. The Executive Magistrate pointed out that when the dying declaration was recorded no one other than him was present there. At the end, he had also taken an endorsement of the doctor that the patient was conscious. In the present case, proper procedural care was taken. The Executive Magistrate pointed out that when the dying declaration was recorded no one other than him was present there. At the end, he had also taken an endorsement of the doctor that the patient was conscious. There was no suggestion to this witness by the defence that Gangaben being in such seriously burnt condition that was not coherent enough to make proper declaration. Contents of both the dying declarations are consistent on all material aspects. The genesis of the incident being a quarrel picked up by all the three accused with the deceased a few hours before on the same day when she asked for money from her husband. Later on, when she was sleeping inside the house in the cot with her daughter, she woke up feeling that something was sprinkled over her. She was then set on fire by her husband Mukeshbhai and encouraged by the other two accused. All the three important aspects firstly, the quarrel during the first part of the day, secondly, sleeping in the house when something was poured on her and thirdly, set on fire by her husband in both dying declarations are totally consistent. We have no reason to discard these dying declarations. 14. We get additional support from the attendant facts. As noted, the incident took place inside the house of the accused where they all lived together with the deceased. There is nothing on the record to suggest that accused No. 1 or any one else even tried to save the deceased. If it was a case of plain suicide, as suggested by the defence, most natural reaction of the husband who sees his own wife and child in flame would be to try and save them. Had he made any such attempt, it would not even be difficult to prove it on record. Even his own burnt clothes, minor burning injuries on his hands or any other body parts would have perhaps been sufficient. In fact, there was not even a suggestion by the defence in cross-examination to any of the witnesses that the husband had tried to save the burning persons nor was the defence taken that the husband was not at home at all so that he could have, in any case, made any such effort. In fact, there was not even a suggestion by the defence in cross-examination to any of the witnesses that the husband had tried to save the burning persons nor was the defence taken that the husband was not at home at all so that he could have, in any case, made any such effort. Second significant aspect of the matter is that, it was the relative of Gangaben who called the ambulance and took her to the hospital. This is one more factor which convinces us that accused No. 1 did not even desire to save them. The contention that accused No. 1 would not have killed his own daughter is easily explained. Even as per Gangaben, kerosene was poured on her. Her daughter caught fire accidentally since she was sleeping on the same cot. We, therefore, have no doubt about the correctness of the conviction of accused No. 1. 15. So far as accused Nos. 2 and 3 are concerned, however, there is no direct role or overt act attributed to them. In the dying declarations, the role attributed to them is of encouraging and instigating the husband to set Gangaben on fire. Merely on this one reference or statement, that too made in the dying declarations which is not subject to the scrutiny of cross examination, it would be unsafe to convict these accused. In other words, we are prepared to give benefit of doubt to these accused about the role stated to have been played by them. Their acquittal therefore would be confirmed. 16. We would, further clarify that we are not confirming the reasonings and the observations made by the learned Sessions Judge, relevant portion of which is reproduced hereinabove. If the said accused were found to have instigated accused No. 1 to light Gangaben on fire and thus abetted the offence of murder, thereafter, there was no question of either taking a lenient view or, in any other manner, whatsoever acquitting them. Abetment of an offence would meet with the same conviction as the principle offender. If the Court has any discretion in handing down sentence, other factors may become relevant. In an offence of murder where the minimum punishment prescribed in law is life imprisonment, in our opinion, the learned Sessions Judge committed a grave error in, on one hand, holding that accused Nos. If the Court has any discretion in handing down sentence, other factors may become relevant. In an offence of murder where the minimum punishment prescribed in law is life imprisonment, in our opinion, the learned Sessions Judge committed a grave error in, on one hand, holding that accused Nos. 2 and 3 were guilty of abetment of the offence and on the other hand acquitting them on the premise that their role was merely of instigating accused No. 1 to commit the offence and that they had the responsibility of bringing up minor children. The fact that the accused were ladies or had responsibility of bringing up minor children is wholly irrelevant when the Court decides whether the accused should be convicted for a particular offence of not. Further, these factors would also be irrelevant when the statute prescribes the minimum punishment of imprisonment for life. 17. In the result, Criminal Appeal No. 630 of 2012 is dismissed. Conviction and sentence of accused No. 1 is confirmed. Criminal Appeal No. 1423 of 2012 filed by the State is also dismissed. The acquittal of accused Nos. 2 and 3 for the reasons entirely different from those recorded by the Sessions Court is also confirmed. Both Criminal Appeals are disposed of in above terms. R & P may be transmitted back to the concerned Trial Court.