JUDGMENT : Anant S. Dave, J. 1. The appellant-State of Gujarat has filed this appeal under Section 378(1) & (3) of the Criminal Procedure Code, 1973 [in short, 'Code'] challenging the judgment and order dated 26.08.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Gandhidham-Kutch in Sessions Case No. 31 of 2003 acquitting the respondents of the offences punishable under Sections 302, 498(A), 304(B), 114 of the Indian Penal Code. 2. As per the case of the prosecution, Gitaben - complainant aged 21 years and studied upto 7th standard was married to the accused No. 1 and was living in the joint family at the matrimonial home with her in-laws. That marriage of the complainant was 'sato' so no dowry was exchanged between the families, however her mother-in-law, sister-in-law and her husband caused her mental and physical harassment on this issue. On 05.02.2003 after taking dinner the complainant, her husband and sister-in-law were watching television till late night and the complainant retired to her room and later on came to call her husband. At that time, her husband got furious and thrown her out of the room and, therefore, the complainant had knocked the door so as to permit her to come in. At that time, sister-in-law of the complainant caught hold of her and husband poured kerosene over her body and lighted a match stick and set her ablaze. The complainant received extensive burn injuries and, therefore, while shouting for help, she fell down and due to severe burn injuries she was unable to see and she did not know who had extinguished fire and taken her to the hospital. At that time, the complainant was conscious. The complainant was brought to the hospital by the husband at 00:30 am and initially history was given that she received burn injuries while preparing tea. At 01:30 am, the Executive Magistrate reached the Hospital and till 02:10 am he recorded the Dying Declaration wherein she clearly made the statement that sister-in-law caught hold of her and husband of the complainant poured kerosene and ignited the matchstick. Accordingly, FIR being C.R.I-12/03 registered at Rapar Police Station After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Gandhidham, Kutch. Accordingly, FIR being C.R.I-12/03 registered at Rapar Police Station After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Gandhidham, Kutch. The Trial Court framed charge against the accused and the accused pleaded not guilty to the charge and claimed to be tried and to substantiate the charge the prosecution had produced oral as well as documentary evidences. 3. In order to prove its case against the accused persons, the prosecution had examined the following important prosecution witnesses:- S. No. PW No. Exhibit Name of the Witness 1 PW-01 Exh. 19 Sureshbhai Karshanbhai 2 PW-02 Exh. 29 Vimalkumardas Vaijnathdas 3 PW-03 Exh. 36 Vishanji Jethalal Thakkar 4 PW-04 Exh. 37 Vinechand Keshavlal 5 PW-05 Exh. 43 Kasturiben Jethalal 6 PW-06 Exh. 45 Laxman Bhika 7 PW-07 Exh. 46 Ramji Amba 8 PW-08 Exh. 52 Rajeshgar Bhimgar 9 PW-09 Exh. 53 Parshotam Hari Mali 10 PW-10 Exh. 56 Karshan Bajarang 11 PW-11 Exh. 57 Pushpaben Vishanjibhai 12 PW-12 Exh. 61 Suleman Daud 13 PW-13 Exh. 62 Genaji Pathuji 14 PW-14 Exh. 64 Kanaji Naranji Solanki 3.1 In order to prove its case against the accused persons, the prosecution had inter alia examined, the following important documentary evidence:- S. No. Exhibit No. Particulars 1 Exh. 21 Letter to Executive Magistrate for recording Dying Declaration 2 Exh. 22 Dying Declaration 3 Exh. 23 Office Order 4 Exh. 30 & 31 Prescription report 5 Exh. 32 Postmortem note 6 Exh. 33 Cause of Death Certificate 7 Exh. 34 Letter to FSL 8 Exh. 38 Panchnama of Place of Occurrence 9 Exh. 39 Rapar Police Station Janvajog Reg. Entry No. 14/2002 10 Exh. 40 Inquest Panchnama 11 Exh. 44 Arrest Panchnama 12 Exh. 47 Rapar Police Station Diary Entry 13 Exh. 48 Yadi written to Executive Magistrate 14 Exh. 54 & 55 Panchnama 15 Exh. 65 to 74 FSL Report and Serological Report 16 Exh. 75 Original Complaint 3.2 The learned Additional Sessions Judge, Fast Track Court No. 1, Gandhidham-Kutch at the end of the trial has acquitted the respondents. 4. Ms. Moxa, learned APP appearing for the State of Gujarat submits that there is ample evidence on record to show that the complainant-deceased was subjected to harassment for dowry at the hands of husband and in-laws at the matrimonial home. 4. Ms. Moxa, learned APP appearing for the State of Gujarat submits that there is ample evidence on record to show that the complainant-deceased was subjected to harassment for dowry at the hands of husband and in-laws at the matrimonial home. Learned APP further submits that the complainant-deceased was very much conscious and able to give dying declaration before the Medical Officer and even the medical officer endorsed this fact. It is further submitted that at 01:45 am it was recorded that patient was conscious, pulse and Blood Pressure was recordable; at 02:00 am it was recorded that the pulse and blood pressure was not recordable; at 02:30 am the patient was gasping; and at 02:40 am it is recorded that Cardiac function stopped i.e. she was declared dead. Learned APP, therefore, contended that at the time when the FIR was recorded and Executive Magistrate recorded the Dying Declaration, the complainant-deceased was conscious and in a fit state of mind and therefore the dying declaration is inspiring confidence and in spite of this fact, the learned trial Judge has acquitted the accused persons. 4.1 Learned APP next contended that father of the complainant-deceased deposed that prior to 15 days of the date of the incident, she came to the matrimonial house and told that there was constant harassment from the in-laws right from the marriage and the prosecution had proved the case beyond reasonable doubt. 4.2 Learned APP next contended that as per the Medical Officer report, there was 96% burn injuries on the body of the complainant - deceased and there was presence of kerosene on the scalp/hair and clothes. It is further submitted that when there are multiple Dying Declarations, each Dying Declaration is to be examined separately and the Dying Declaration which inspires more confidence and corroborating with the other evidence is required to be believed. That dying declaration which was recorded by the Executive Magistrate and FIR by police officer required to be believed and conviction is to be ordered for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code. It is therefore submitted that the impugned order of acquittal passed by the learned trial court is required to be quashed and set aside and the accused are required to be punished appropriately. 5. Mr. It is therefore submitted that the impugned order of acquittal passed by the learned trial court is required to be quashed and set aside and the accused are required to be punished appropriately. 5. Mr. K.B. Anandjiwala, learned Senior Advocate, appearing for the respondents - original accused, has vehemently defended judgment and order of acquittal and submitted that the same is based on proper reasoning, recording findings and drawing conclusions of no guilt of accused in the backdrop of full of discrepancies, inconsistencies and major contradictions in the dying declaration and no interference is called for by this Court in exercise of power under Section 378 read with 386 of the Code, 1973. 5.1 Mr. K.B. Anandjiwala, learned Senior Advocate, next contend that judgment and order of acquittal passed by the trial court acquitting the respondents for the offences under Sections 302, 498(A), 304(B) and 114 of the IPC do not require any interference inasmuch as learned trial Judge has analyzed, discussed, oral as well as documentary evidence on record and reached to just conclusion about no guilt of the accused. The learned Judge has further referred to relevant case laws applicable to the dying declaration in the context of Section 32 of the Evidence Act and principles laid down therein and the same cannot be said to be in any manner contrary to settled principles of appreciation of evidence or in any manner perverse warranting interfere of this Court in exercise of powers under Section 378(1)(3) read with Section 386 of the Code of Criminal Procedure, 1973. Learned Senior Advocate emphasized the timings recorded about receiving yadi by Executive Magistrate by police around 1:45 am and reaching the hospital and recording statement of Gitaben around 1:55 to 2:10 am also create doubt in view of testimony at Exh. 64 of P.W. 14 Mr. K.N. Solanki, who deposed that when he received yadi around 1:00 am he was fast asleep and thereafter reached at hospital around 1:15 to 1:20 a.m. When the above P.W. 14 reached the hospital Executive Magistrate had already arrived and was recording dying declaration and thereafter within 20 to 30 minutes Executive Magistrate had left the hospital. The above contradiction is of vital in nature and unbelievable. Even condition of the patient viz. Gitaben was so poor that even Dr. Vimalkumardas P.W. 2 Exh. The above contradiction is of vital in nature and unbelievable. Even condition of the patient viz. Gitaben was so poor that even Dr. Vimalkumardas P.W. 2 Exh. 29 deposed that when he examined Gitaben around 2:00 am he was unable to record pulse and blood pressure. If it is so, recording of dying declaration by the Executive Magistrate around 1:55 am and completing the same by 2:10 am is highly improbable and when burn injuries were to the extent of 96% and skin of the thumb and fingers were completely burnt and thump impression, which reveal marks of print of veins was again a circumstance goes against the prosecution. 5.2 According to learned Senior Advocate appearing for the respondents neither father nor mother of the victim threw any light about the incident or in any manner ill-treatment of any kind meted out to their daughter. Vishanji Jethalal Thakkar P.W. 3 at Exh. 36 deposed that his daughter was unhappy at matrimonial home and when they reached at the hospital, Gitaben was not alive and died of burn injuries. It is further revealed that husband made all efforts to live away from their parents and accordingly both of them were staying in a residential house at Raghuvanshi Society. Pushpaben Vishanjibhai, mother of the victim, P.W. 11 Exh. 57 only deposed to the extent that her daughter wanted to stay separately at matrimonial home and barring the above no other incident appeared on record. 5.3 Learned Senior Advocate for the respondents therefore would contend that if the medical papers, including that of treatment given to the victim are seen it is clear that dying declaration recorded by the Executive Magistrate is unbelievable and even testimony of the Executive Magistrate do not inspire any confidence and is rightly not believed by the learned trial Judge. Learned Senior Advocate further submitted that the appeal preferred by the State of Gujarat deserves to be dismissed. 6. Heard learned counsels for the parties. 6.1 We would like to produce testimonies of Executive Magistrate P.W. 1 Exh. 19, which reads as under: "Yadi was received at my home. The police brought it and he came by jeep. The yadi was in two copies. One copy was given to me and one was returned after putting signature therein. I do not know the name of the police person who brought the yadi. He was in uniform. 19, which reads as under: "Yadi was received at my home. The police brought it and he came by jeep. The yadi was in two copies. One copy was given to me and one was returned after putting signature therein. I do not know the name of the police person who brought the yadi. He was in uniform. I neither read his name plate nor badge number. The yadi was received from the police station. I identify him by his face. If he is shown to me, I can identify him. It is not true that the said police person told me as to what is to be written in the Dying Declaration. I went along with the police person in a jeep. He was a constable. On the way, I did not ask him about his name and address. My home is in the village Rapar. The hospital of Rapar is situated outside the village. It is not true that it took ten minutes by jeep. According to me, it took three to four minutes. On the way, no talk took place between me and the police person. I put my signature on the receipt after reading the Yadi. I understood as to what was written in the Yadi. It is not true that the hospital situated outside the village Rapar is big. It was big prior to an earth quake. When I reached the hospital, the doctor was sitting in his room. I talked with the doctor while he was in his room. Thereafter, I went along with him to Gitaben. Gitaben got burnt. Her lips, cheeks, nose, eyelid, ear and neck were burnt. I did not ask the doctor as to what was her burn percentage. When I saw her in a room, no other patients were there. When I went to record the D.D., she was alone in the room. After examining Gitaben, the doctor went away. Doctor examined Gitaben's chest with the help of stethoscope. Her chest was burnt. I do not have an idea that when the doctor examined pulse of Gitaben, it could be visible. It appeared that she was given the treatment before recording her D.D. She was administered an injection and medicine was applied. Prior to this incident, I did not know Gitaben. I did not inquire as to who came to meet Gitaben before I went to meet her. It appeared that she was given the treatment before recording her D.D. She was administered an injection and medicine was applied. Prior to this incident, I did not know Gitaben. I did not inquire as to who came to meet Gitaben before I went to meet her. I did not examine her body to see as to how much she got burnt. I felt that she had pain. I brought half quire of papers with me. It is not true that I brought those papers with me to write another D.D., if I do not like the earlier one. At the time of recording of Gitaben's D.D., nobody except Gitaben and me was present. At the time of writing the D.D., I did not feel that I should keep somebody present to witness authenticity of D.D. Gitaben was in condition to speak but she was not speaking in continuous manner. I do not know as to whether she was able to hear or not but she was giving reply to my questions and therefore, I felt that she was able to hear. It is not true that I felt that if I do not depose in such manner, my job would be in danger. It is not true that I did not write as stated by Gitaben. It is not true that I changed it subsequently. It is true that such is written in D.D. of Exh. 22 that "I have been burnt" by striking out the word "burnt". It is true that such is written in the Yadi that the entire body of Gitaben W/O, Jitendrabhai Thakkar, aged 21 years, residing at Ulatvas, Rapar, has got burnt at her home as flames of stove came into contact with her cloths. It is true that though I read this fact, I did not ask Gitaben at the time of recording the D.D., that the fact written in the police Yadi is right or not. After recording the D.D., I did not ask the police person that Gitaben has stated different fact than the fact written in the Yadi. The fingers and thumbs of hands were burnt to some extent. The skin of thumb was not visible. After recording the D.D., I did not ask the police person that Gitaben has stated different fact than the fact written in the Yadi. The fingers and thumbs of hands were burnt to some extent. The skin of thumb was not visible. The lines of thumb are visible in the D.D. It is not true that the lines of thumb cannot appear as the thumb got burnt and therefore, it took time to give reply in examination-in-chief. It is not true that it took ten minutes to say that the thumb is of Gitaben. It is not true that after asking ten questions, such was stated that the thumb is of Gitaben. It is not true that after asking five times, I stated such that the thumb is of Gitaben. I stated such in an examination-in-chief that the thumb is of Gitaben but I stated it after sometime, that is, after the passage of five minutes. It is not true that I went after recording the D.D. and thumb impression of other person was obtained subsequently. I am a Deputy Mamlatdar since 01.03.1988. Dying Declaration can be recorded under section-32 of Indian Evidence Act. It is not true that I do not have an authority to record D.D. The Mamlatdar fixed our turn to record D.D. In this respect, I produce an office order and it has been given Exh. 23. It is not true that doctor did not examine Gitaben. The doctor has written such on the D.D. as to whether Gitaben is in state of consciousness or not. It is not true that after recording the D.D., such has been written subsequently that Gitaben is conscious. It is not true that the doctor has written endorsement subsequently in the D.D. Before writing the D.D., the Doctor made endorsement therein. The doctor made this endorsement in his room. The witness immediately states that the doctor put an endorsement after examining Gitaben. Before starting to record the D.D., the doctor made write up thereon. I read this endorsement. He has made such an endorsement that the patient states true facts in state of consciousness. It is true that after writing this, the doctor left immediately. It is not true that he has written this endorsement subsequently. It is not true that I went to record the D.D. on 7th instead of 6th. I read this endorsement. He has made such an endorsement that the patient states true facts in state of consciousness. It is true that after writing this, the doctor left immediately. It is not true that he has written this endorsement subsequently. It is not true that I went to record the D.D. on 7th instead of 6th. It is not true that I started recording the D.D. on 7th instead of 6th. It is true that the date 7th is written in the beginning of the D.D. at Exh. 22 and the date 6th is written by overwriting. After obtaining thumb impression before me, the date and time were written. When we go to record the D.D., we keep papers ready along with the pad. It is not true that an attempt was made to obtain thumb impression of Gitaben at the place where I put my initial in the D.D., after striking out the word "Burnt". There might be a blot of pen. There might also be a blot of pen on the word Watching T.V. in the D.D. of Exh-22. I do not know as to whether on the day of incident there was any reason of occurrence of incident with Gitaben. It is true that Gitaben has dictated such that dispute occurred due to watching T.V. I did not ask Gitaben as to who and how she was brought here. I also did not ask her as to how many persons were gathered around. It is not true that the reason behind not asking all such questions was to dictate only those facts as stated by the police personnel. At the time of an incident also, the first class magistrate was in Rapar. We often go, when we are called by the police personnel. The D.D. was in my personal custody. Its copy was given on the next day in the morning. It is not true that the D.D. was prepared once again in the night and its copy was given on the next day. After recording of the D.D., I was dropped at my home by the police vehicle. It is not true that such was stated to the Head Constable to send the Police Sub-Inspector and I will prepare in night. It is not true that I prepared the D.D. at my home. After recording of the D.D., I was dropped at my home by the police vehicle. It is not true that such was stated to the Head Constable to send the Police Sub-Inspector and I will prepare in night. It is not true that I prepared the D.D. at my home. It is not true that its copy was not given immediately to the police personnel. They took it next day morning at 8:00 - 9:00 hours. True copy of the D.D. was given. It is not true that the police personnel brought prepared D.D and its photo-copy and I put my signature therein. I wrote D.D. in black ink. It is not true that I wrote the D.D. in black ink so that it can be xeroxed clearly. It is not true that Gitaben was unconscious and was not able to speak. I went there at the time of doing inquest. It is not true that I have not gone to draw inquest. It was drawn as per section 174 of Cr.P.C. Shri Tejwani for the state submitted such that the said Executive Mamlatdar has been examined for the D.D. and it is proper to ask question when he will be examined again for the inquest. No re-examination." [Emphasis supplied] 6.2 If the above testimony is perused carefully, it is revealed that the Executive Magistrate received yadi on 06.02.2003 at 1:45 pm and immediately reached to the hospital within 10 minutes and started recording dying declaration around 1:55 am and completed by 2:10 am. At the time of recording dying declaration of Gitaben, nobody except Gitaben and Executive Magistrate were present. Though Gitaben was not in a position to speak continuously, but was clear enough to narrate about the incident. She was giving reply to questions. The above witness categorically denied that doctor has endorsed subsequently in the dying declaration. Before starting to record the dying declaration, doctor made an endorsement that the patient was in state of consciousness and was able to speak. In his cross-examination, this witness admitted that after doctor has examined her, he started recording dying declaration. Thus, about the state of mind of declarant of dying declaration appears on record. The above evidence is to be considered along with testimonies of P.W. 2 Vimal kumar das Exh. In his cross-examination, this witness admitted that after doctor has examined her, he started recording dying declaration. Thus, about the state of mind of declarant of dying declaration appears on record. The above evidence is to be considered along with testimonies of P.W. 2 Vimal kumar das Exh. 29, which reads as under: "[1] When I had been discharging my duty as Medical Officer at C.H.C., Rapar on 06.02.03, husband of patient Gitaben Jitendra kumar brought her for the treatment of burns injury at 12.30 am. On asking Gitaben in respect of sustaining burns injury, she stated that she has sustained burns injury while making tea. I gave her treatment. I informed police in that regard. When I started her treatment, Mamlatdar came to record her statement. He came at 1.30 hours in the night. Mamlatdar asked me as to whether patient is in conscious state and can give statement. Therefore, I examined Gitaben and stated that she can give statement. I issued certificate in that regard and put my signature. After looking at the exhibit No. 22, I state that it bears my signature which I identify. Mamlatdar stayed there till 2.10 hours in the night, and Gitaben expired at 2.40 hours in the night during the treatment. Therefore, I again informed Rapar Police in that regard. I have brought case papers in respect of treatment given to her. When Gitaben Jitendra was brought to the hospital, I got her case papers issued. I have brought OPD case paper No. 25412 dated 06.02.03 of Gitaben with me and the same is in my handwriting. Thereafter, she was admitted as indoor patient and her case papers were got issued. I have brought indoor case paper Nos. 23, 24 of the patient Gitaben with me. The details written therein are in my handwriting. I produce both of the said case papers. The same are given exhibit No. 30 and 31 (with objection). [2] The police came there in the early morning on the next day and drew inquest panchnama of the dead body and handed over dead body of Gitaben to me for P.M. I received the said dead body at 10.30 hours on 06.02.03. I started P.M. on her dead body at 10.55 hours on the same day and completed the same at 12.40 hours. I started P.M. on her dead body at 10.55 hours on the same day and completed the same at 12.40 hours. [3] On making external examination of the dead body, the dead body was of one twenty years old Hindu woman. There was a burnt rubber band above thigh on the waist and burnt piece of petticoat having string was found. She had put on sankala of silver on both legs. She had put on yellow coloured metal ear-rings in both ears and yellow coloured metal nose-ring having flower. Her clothes were burnt. Her body was cold and physique was strong. The skin had become leathery. Her both legs had flexed at the hips and knees. Both hands had flexed at elbows towards front side. The same had happened due to heat of burning. The P.M. lividity was not found on the dead body. Her body skin had become leathery and stiff. Both eyes were closed. The mouth was semi-open and tongue was inside the mouth. The blood and froth were oozing out of both nostrils of the nose. Both ears were burnt. Except back part, the skin was burnt. The blisters were found on the skin. [4] The following severe burn injuries were found on her body. The head and neck had sustained 5% burns injury. The hair of anterior half of head were burnt. The front part of neck was burnt upto backside. The chest and abdomen had sustained 36% burns injury. The front and back of each leg had sustained 36% burns injury. Both the hands had sustained 18% burns injury. The perineum had sustained about 1% burns injury. There were total 96% burns injuries. All injuries had been sustained within twelve hours and kerosene smelt from them. The head and body smelt kerosene. All the injuries were ante-mortem. [5] On making internal examination of the dead body, the following injuries were found. The anterior half of the scalp was burnt upto forehead. The brain was congested and swollen. The chest was burnt and it had become reddened. The pleura were congested. The vocal cord and wind pipe were congested. The charred spots were found there and presence of froth was found. The lungs were congested. The charred spots were also found there. The pericardium, large blood vessels and heart were full of clotted blood. The heart was congested and large blood vessels were empty. The pleura were congested. The vocal cord and wind pipe were congested. The charred spots were found there and presence of froth was found. The lungs were congested. The charred spots were also found there. The pericardium, large blood vessels and heart were full of clotted blood. The heart was congested and large blood vessels were empty. [6] The peritoneum, esophagus, spleen, kidneys were pale. The abdominal cavity was empty. Out of mouth, teeth, tongue, vocal cord, mouth was semi open. The tongue was inside the mouth. The teeth were not broken. The black particles were found in the food pipe. The semi digested food was found in the stomach. The presence of facial matter was found in the large and small intestine. The liver was congested. The urinary bladder was empty. The cause of her death was due to cardio-respiratory arrest because of extensive dry heat burn. According to me, kerosene was poured on her clothes and thereafter, she was set on fire and as a result, she sustained burn injuries. If any person pours kerosene on her body on her own and while making tea, she can sustain burns injury and such incident can occur OR if other person sprinkles kerosene on any person, such burns injury can be sustained. I prepared post mortem report regarding her post mortem. After going through P.M. report of mark 5/12, I state that the same is in my handwriting and there is my signature below it and I produce the same. The same is given exhibit No. 32. After conducting P.M., I issued cause of death certificate in respect of Gitaben. After looking at the certificate of mark 5/13, I state that the same is in my handwriting and it bears my signature below which I produce. The same is given exhibit No. 33. I prepared a letter of mark 5/18 and sent the same along with blood sample in the bottle No. 1, hair sample in the packet No. 2, pieces of clothes in the packet No. 3 to F.S.L., Junagadh for analysis. The xerox copy of the same is shown from court record and I have brought office copy of the same with me today. It bears my signature. I produce office copy of mark 5/18. I produce original office copy and the same is given exhibit No. 34. Cross examination by learned advocate Mr. The xerox copy of the same is shown from court record and I have brought office copy of the same with me today. It bears my signature. I produce office copy of mark 5/18. I produce original office copy and the same is given exhibit No. 34. Cross examination by learned advocate Mr. M.B. Sardar for accused persons [7] I can read and write Gujarati. I can also speak Gujarati. It is not true that Gujarati handwriting in the exhibit No. 30 is not mine. I have written in the margin on the page No. 1 of exhibit No. 30 that I have sustained burns injury while making tea. When lady came to the hospital, she was alive. She has not sustained burns injury after coming to the hospital. It is true that when Gitaben was brought to the hospital, she had sustained 96% burns injuries. It is true that I have also stated before the police that Gitaben was making tea. I received one copy of inquest panchnama and read it. After looking at the inquest panchnama and reading the same, I state that she has sustained burn injuries on the forehead. It is written that white skin appears due to exfoliation of skin due to burn injury on both cheeks of the said dead body. It is also written therein that "the skin of both the hands have been exfoliated due to burns... [illegible] and the white skin of hand is seen. Such is written in the inquest panchnama. When the lady was brought, she was seen in such condition. The front portion of the ear was burnt and the rear portion was little saved. It is true that with the true copy of the inquest, I did not receive any papers of investigation carried out, if any, by the Mamlatdar. This lady was in shock when she was brought to me. It is true that when she was brought to me, her pulse rates were not felt. In the same way, blood pressure also could not be measured. It is true that the lady had difficulty in breathing. I had already started treatment when the Mamlatdar arrived. It is true that the patient suffers extreme physical pain in case of 96 percent burns. It is true that some injections are administered in order to reduce such physical pain. It is true that the lady had difficulty in breathing. I had already started treatment when the Mamlatdar arrived. It is true that the patient suffers extreme physical pain in case of 96 percent burns. It is true that some injections are administered in order to reduce such physical pain. It is true that deceased Gitaben was administered dyclosodium injection. This medicine causes effect on the fibre of the body and the patient feels ease. It is not true that during this experience, the patient gets into drowsiness. [8] I examined the deceased lady at 2.00 o'clock in night. At that time her pulse rate were not felt and blood pressure also could not be measured and she was facing much difficulty in breathing. [9] It is true that the speaking process of humans is also an important aspect in science. At present I do not remember as to what is the specific name for speaking science of humans. That science is called autolerenjology. It is true that the speaking process of human is linked with his brain. It is true that until the brain function is working well, the speaking process cannot be done properly. It is true that a person can speak when he breaths out; except that he cannot speak. It is true that when the brain of the person gives command to speak, some portion of the breath passes through vocal cord. It is true that when postmortem has to be performed on a dead body of woman, it should be done in panel. But the police had not stated in the inquest to do the same in panel. It is not true that when I had examined the lady at two o'clock, considering the condition of the lady, she was not in condition to speak. It is not true that as I am tutored that deceased lady, Gitaben was able to speak before the D.D. was recorded, I have stated the same. It is true that when air enters while breathing out from the vocal cord, vibration causes in thin skin membrane located in vocal cord and sound is produced thereof. It is true that when the sound comes near throat from the vocal cord, the formation of word starts. It is true that when air enters while breathing out from the vocal cord, vibration causes in thin skin membrane located in vocal cord and sound is produced thereof. It is true that when the sound comes near throat from the vocal cord, the formation of word starts. It is true that the sound from the vocal cord reaches near throat and thereafter, it reaches near the lips and when the process done by the throat, tongue, palate, teeth and lips for formation of words, only then the formation of words takes place. It is true that due to congestion and edema, the ability of brain to function reduces with passage of time. [10] When the Mamlatdar arrived, the pulse rate of this lady could not be felt and her blood pressure could not be recorded. In the same way, the lady had much difficulty in speaking. It is not true that it could not be understood as to what the lady was speaking. It is not true that I am stating false fact to support the case. [11] It is true that the sound coming out from the vocal cord is called mechanism of phonecium in mechanical language. It is not true that I was not present at the time of recording D.D. As per my say I was present. [12] It is not true that the cause of death of Exh-33, was given before performing postmortem. But it was given after the postmortem. It is true that it is regarding cause of death. It is not true that the cause of death shown in the column of the postmortem, is not shown by me in cause of death certificate. It is not true that only the cause given in Exh-33 is written in the P.M. It is not true that the column No. 23 of the P.M. is written subsequently at the behest of the police. It is true that the cause of death is mentioned as cardio respiratory arrest. It is true that cardio respiratory is connected with heart and respiratory process. It is true that many times a person is not able to breath properly due to which heart failure can be caused. I did not receive the reply to the letter of Exh-34 which I had sent to Chemical Analyzer, Junagadh. I do not know that the sample of hair was not smelling of kerosene. It is true that many times a person is not able to breath properly due to which heart failure can be caused. I did not receive the reply to the letter of Exh-34 which I had sent to Chemical Analyzer, Junagadh. I do not know that the sample of hair was not smelling of kerosene. I have seen many cases of burns. It is true that in cases of burns, homicidal, suicidal or accidental deaths are caused. I am not able to state as to whether in this case the death was homicidal, suicidal or accidental. [13] It is true that the food eaten by a person reaches to stomach through food pipe, where the process of digestion begins. Whatever we eat first gets mixed with saliva. A healthy person takes two and half hour to six hours for digestion. This digestion process depends on the food consumed. On the basis of semi digested food of this lady, I can state that this lady might have eaten the food before three to four hours of death. I only made signature in D.D. at the behest of the Mamlatdar and the PSI. No re-examination." [Emphasis supplied] 6.3 According to the above witness, who was Medical Officer at Rapar, the victim was brought to the hospital by her husband at 12:30 am and initial history was given that she received burn injuries while she was preparing tea. The Executive Magistrate at around 1:30 am after examining Gitaben made an endorsement that she was conscious enough to speak about the incident. The above witness confirms timings of completion of dying declaration by Executive Magistrate around 2:10 am and thereafter victim succumbed to injuries. That medical case papers were identified, including his signature at Exhs.30 and 31 and that postmortem was performed by following the procedure. The Medical Officer also deposed the fact that burn injuries on the head and neck were 5%, chest and abdomen 36%, front and back of each leg 36% and 18% on both the hands, in all Gitaben received 96% burn injuries. The Medical Officer found a smell of kerosene present in the scalp/hair and over the body and further opined that these injuries can be caused if some persons had poured kerosene and ignited the match stick. The cause of death recorded in the postmortem report Exh. The Medical Officer found a smell of kerosene present in the scalp/hair and over the body and further opined that these injuries can be caused if some persons had poured kerosene and ignited the match stick. The cause of death recorded in the postmortem report Exh. 32 reveals that it was cardiac respiratory arrest due to excessive dry heat burns and it is possible that to make wet clothes and body in kerosene oil and then to set them on fire. 6.4 That testimonies as reproduced herein above of both the above witnesses viz. Sureshbhai Karshanbhai Solanki, Executive Magistrate P.W. 1 Exh. 19 and Dr. Vimalkumardas Vaijnathdas, Medical Officer, Rapar, P.W. 2 Exh. 29, it is clear that initial history of receiving burn injuries by the victim when she was brought to the hospital were due to accident when she was preparing tea on primus was found to be incorrect. Even medical papers dated 06.02.2003 [at 12:30 am] at Exh. 30 reveal and endorse about statement of the victim that she was set ablaze by her husband and sister-in-law by pouring kerosene as stated in dying declaration. There is no reason to doubt recording of such an endorsement in medical papers after recording of dying declaration. Thus, the prosecution has succeeded in proving its case beyond reasonable doubt for the following reasons: [a] The deceased was brought to the hospital by the accused i.e. husband at 12:30 am. [b] History before doctor was given that she got burn injuries while preparing tea which was found to be incorrect since while preparing the panchnama of scene of offence Exh. 38, nothing was found with regard to the same. [c] At 1:30 am the Executive Magistrate reached to the Hospital and upto 2:10 am he recorded the Dying Declaration wherein she clearly made the statement that sister- in-law caught hold of her and husband poured kerosene and ignited the matchstick and there was a constant harassment by in-laws, sister-in-law and husband. That an endorsement of fitness and consciousness of mind is recorded by the doctor. That an endorsement of fitness and consciousness of mind is recorded by the doctor. [d] All medical papers are proved by the testimony of Medical Officer, wherein it is mentioned that at 12:30 am patient was conscious and arrangement was made for Dying Declaration; around 01:05 it is mentioned that patient was conscious and pulse and Blood Pressure was recordable; at 01:45 am it was also recorded that patient was conscious and pulse and Blood Pressure was recordable; at 02:00 am it is mentioned that the pulse and blood pressure was not recordable; at 02:30 am, the patient was gasping; and at 02:40 am it is recorded that Cardiac function stopped i.e. she was declared dead. [e] At the time when the FIR was recorded and Executive Magistrate recorded the Dying Declaration, Gitaben was conscious and in a fit state of mind and, therefore, the Dying Declaration and FIR inspired confidence and credibility. [f] Father of the victim deposed that prior to 15 days of the date of the incident, she came to the matrimonial home. There was constant harassment from the in-laws in 3 years marriage span. 6.5 The Constitutional Bench of the Apex Court in the case of Laxman v. State of Maharashtra, (2002) 6 SCC 710 considered about the duty of the court to decide that the declarant was in a fit state of mind to make the declaration but where the eyewitnesses' evidence viz. of the Magistrate, who had recorded the dying declaration to that effect is available, mere absence of doctor's certification as to the fitness of the declarant's state of mind would not ipso facto render the dying declaration unacceptable. However, the Apex Court further held that the evidentiary value of such dying declaration would depend on the facts and circumstances of a particular case. 6.6 The Apex Court further held that if the dying declaration is of such a nature as to inspire full confidence of the court in its truthfulness and correctness and in deposition the Executive Magistrate reiterate and depose about his satisfaction about fitness of state of mind of the declarant, even without examination by the doctor, the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. 6.7 While declaring the law, as above, the Apex Court has kept in mind the juristic theory regarding acceptability of a dying declaration, as born out from Section 32 of the Indian Evidence Act. Further, the Apex Court considered two earlier decisions: Paparambaka Rosamma v. State of A.P. (1999) 7 SCC 695 and Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 562 about necessity of a certificate of the doctor, who examined the declarant about his fitness of state of mind visa-vis consequence of not examining. The ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given, if the Executive Magistrate, who recorded the dying declaration deposes about fitness of state of mind of the declarant, in the absence of medical certification of such condition of state of mind of the declarant, the Apex Court confirmed the law laid down in the case of Koli Chunilal Savji [supra]. The Apex Court in para 3 of the above judgment kept the juristic theory of acceptability of a dying declaration in the context of Section 32 of the Indian Evidence Act. Para 3 of the above judgment, reads as under: 3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is all 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, 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. 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. 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. 6.8 That Pushpaben Vishanjibhai P.W. 11, mother of the deceased disclosed harassment by mother-in-law of the victim and that information was given by one Sunil i.e. Relative of the accused at 2:30 am on the date of the incident and thereafter they reached at Rapar. Suleman Daud, ASI, Rapar Police Station P.W. 12 recorded complaint which was taken by the PSI K.N. Solanki in prescribed format in the police station for the offence punishable under Section 498(A), 307, 114 of the Indian Penal Code since victim was alive at that time. Genaji Pathuji, Police Constable, P.W. 13 in his testimony confirms sending of Muddamal and exhaustive testimony of Kanji Naranji Solanki, who is Investigating Officer, P.W. 14 clearly stated about Janvajog Entry No. 14/03 at 1:00 am and visiting hospital and also recording FIR being CR No. 12/03 on 06.02.2003 in which victim had disclosed that sister-in-law Bharti caught hold of her and husband poured kerosene over her body, ignited match stick and set her ablaze. Though she raised voice, but due to exhaustive burn injuries she was not able to see anything around and was not in a position to state that, who had brought her to the hospital. When she regained consciousness, the above version was given and she had passed out Standard VIII in Gujarati. However, as body containing full of injuries she was unable to put her signature. That cross-examination of above witness confirmed that he reached the hospital between 1:15 am to 1:20 am and thereafter found Executive Magistrate recording dying declaration, who left the hospital within 22 to 30 minutes. 6.9 In the instant case, dying declaration gets sufficient corroboration from testimony of the Executive Magistrate P.W. 1. Further, medical history of the victim viz. treatment given by the Medical Officer P.W. 2 and opinion about fitness of mind of the victim, who was able to speak about truth of the incident, again gets corroborated by testimonies of the Medical Officer and collectively the dying declaration of the victim inspire confidence. 6.10 That in an appeal against acquittal filed under Section 378 of the Code, 1973, as such there is no limitation on the Appellate Court to review the evidence. 6.10 That in an appeal against acquittal filed under Section 378 of the Code, 1973, as such there is no limitation on the Appellate Court to review the evidence. But at the same time, if on fact as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and when findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. When acquittal is based on the surmises and conjectures and not substantiated by law and evidence on record, an Appellate Court may re-appreciate and review the entire evidence to see that undue benefit is not given to the accused. Now, it is well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, substituting its own views by the High Court is not permissible. That in case of acquittal, it is to be borne into mind by the Appellate Court that there is double presumption in favour of the accused that firstly, presumption of innocence in favour of a guilty on the premise that every person should be presumed to be innocent unless he is proved to be guilty by the Court of Law, and secondly, when accused secures an acquittal, such presumption of innocence is reinforced and reaffirmed by the trial Court. 6.11 Keeping in mind the law laid down by the Apex Court with regard to powers conferred upon the appellate Court under Section 378 read with Section 386 of the Code, acquittal order passed by the trial court is based on findings, which are plausibly wrong and manifestly erroneous and contrary to law of appreciating evidence of dying declaration in the case of Laxman [supra], we are convinced that prosecution succeeded in proving its case beyond reasonable doubt and judgment and order of acquittal passed by the trial court deserves to be quashed and set aside. 7. 7. In view of the above discussion, a case is made out by the prosecution on the strength of declaration by the deceased about cause and manner of burn injuries by the accused along with other corroborative evidence and, therefore, the appeal deserves to be allowed. 8. Accordingly, this appeal is partly allowed and the judgment and order dated 26.08.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Gandhidham-Kutch in Sessions Case No. 31 of 2003 acquitting the respondents of the offences punishable under Section 302 of Indian Penal Code is hereby quashed and set aside and the respondents are hereby convicted for the offence under Section 302 of the Indian Penal Code and ordered to undergo sentence of imprisonment for life with permissible remission in accordance with law and to pay fine of Rs. 10,000/- each and in default to further undergo simple imprisonment for one month. It is made clear that the sentence, if any, undergone by the respondents be remitted. FURTHER ORDER Mr. K.B. Anandjiwala, learned Senior Advocate, appearing for respondents seeks reasonable time to surrender. The request is acceded to and the respondents are granted 10 weeks time to surrender before the jail authority. Appeal Partly Allowed.