JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of common judgment dated 23.07.2012 rendered by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No. 26 of 2011. 2. We are informed that appellant No. 1 Roshanben, wife of Abbasbhai Raja has been released by the State Government by granting pardon/remission. Learned counsel for the appellant submitted that qua her, the appeal may be disposed of as infructuous. We accept the request. 3. Briefly stated, the prosecution version was that deceased Fatma, wife of Sabbirbhai Abbasbhai Raja resided with her in-laws. She had a small child aged about one and half year. At the time of the incident, her husband was away. Fatma's mother-in-law, Roshanben Abbas Ibrahim Raja, accused No. 1, used to often quarrel with her mainly on the habit of Fatma to drop her son to her parents' house throughout the day. On 08.04.2011, when Fatma was at her house, her mother-in-law Roshanben, accused No. 1, her jethani (husband's elder brother's wife) Roshanben Anwar Raja, accused No. 2 and her Nanand (husband's sister) Aashiyanaben Akbar Hasam, accused No. 3, poured kerosene over her and set her on fire. The neighbours rushed to the scene of incident. Fatma's parents were residing at a nearby place from where they were called immediately. She was taken to the hospital where during treatment, she died late at night the same day. Before her death, however, her dying declaration Exh. 39 was recorded by the Executive Magistrate. The FIR Exh. 74 was also given by Fatma which was in the nature of a dying declaration. The prosecution would rely on oral declaration made by Fatma to her relatives as well. A charge to this effect was framed at Exh 10 charging all the three accused ladies for offences punishable under sections 498A read with section 114 of IPC and under section 302 read with section 114 of IPC. 4. So far as the exact incident is concerned, there were no eyewitnesses. The entire prosecution case, therefore, revolves around the dying declarations. There were other witnesses, who though reached the site immediately whose depositions would also be relevant. 5. Reshmaben Daudbhai Gandhar, PW 1, Exh 22, the sister of deceased Fatma lived with her parents close by to where Fatma lived with her in-laws. She deposed that the mother-in-law of Fatma used to ill-treat her. There were other witnesses, who though reached the site immediately whose depositions would also be relevant. 5. Reshmaben Daudbhai Gandhar, PW 1, Exh 22, the sister of deceased Fatma lived with her parents close by to where Fatma lived with her in-laws. She deposed that the mother-in-law of Fatma used to ill-treat her. Fatma would come to their house and the in-laws would take her back. Fatma would drop her young son to her house and return in the evening since there was no one to look-after him at Fatma's house. On the date of the incident, she was informed about Fatma getting burnt by her sister Rizwana. She had gone to Fatma's house along with the parents and sister and found that Fatma had got burnt on the entire body. She was lying on the cot. An ambulance was called. She was taken to Government hospital at Khambhalia. From there she was taken to Irvin hospital for further treatment where she died late at night at 12 O'clock. Fatma had told that she was set on fire by her mother-in-law, nanand and jethani. In the cross examination, she agreed that her house was situated at a walking distance of about 15 to 20 minutes from Fatma's house. Fatma's jethani lived right next door but separately. 6. Faridaben Daudbhai Ismailbhai, PW 10, Exh 62, Fatma's mother gave a similar version of having rushed to Fatma's house upon being informed by Rizwana. According to her, upon being asked, Fatma told her that accused No. 3 had caught hold of her. Accused No. 2 had poured kerosene and it was the mother-in-law who set her on fire with the match stick. 7. Jinnatben Musabhai Raja, PW 9, Exh 58 lived near Fatma's house. She deposed that Fatma had come out in burning condition from the kitchen of the house screaming for help. Rizwana, Fatma's sister, who was present had covered her with blanket and put her on a cot. She then called her parents. After their parents arrived, they picked up a quarrel with Fatma's in-laws. She did not know how Fatma got burnt. In the cross-examination, she stated that when she saw Fatma burning, all the three accused were in the direction of the under-construction new house and when she reached the place these three accused also came there from that direction. 8. After their parents arrived, they picked up a quarrel with Fatma's in-laws. She did not know how Fatma got burnt. In the cross-examination, she stated that when she saw Fatma burning, all the three accused were in the direction of the under-construction new house and when she reached the place these three accused also came there from that direction. 8. Ashwinbhai Pragjibhai Chavda, PW 4, Exh 37, was the Executive Magistrate who had recorded the dying declaration. He pointed out that upon being given a yadi for recording such dying declaration, he reached the hospital at Jamnagar at about 3 O'clock. He first met the doctor and obtained his endorsement that the patient is conscious. He started recording the dying declaration after ensuring that neither the relative nor policeman was present there. He first asked the patient about her age, name etc. and then inquired from her about the incident which was recorded in the dying declaration. Since both hands of the deceased were burnt, he took the impression of the big toe of the left foot. He then again contacted the doctor and obtained the endorsement of the doctor about the patient being conscious. Dying declaration was produced at Exh 39. 9. Recording of such dying declaration was started at 15:20 and ended at 16:00 hours. The dying declaration contained the endorsement of the doctor as well as the narration that recording of the dying declaration had started after ensuring that the relatives of the patient or the police men were not present. The Magistrate, after obtaining preliminary information from the patient such as her name, age etc., asked the cause of the incident to which, she had stated that in the morning at about 9 O'clock when she was at her matrimonial home, about looking after the son, she had a quarrel with her jethani and mother-in-law. Her mother-in-law told her that she does not want her at all. Her jethani poured kerosene on her and mother-in-law set her on fire with a match stick. At the time of the incident her mother-in-law, jethani and her daughter were all at home. As to who brought her to the hospital she replied that her neighbours and parents and other relatives had taken her to Khambhaliya hospital from where she was brought to the hospital at Jamnagar. At the time of the incident her mother-in-law, jethani and her daughter were all at home. As to who brought her to the hospital she replied that her neighbours and parents and other relatives had taken her to Khambhaliya hospital from where she was brought to the hospital at Jamnagar. She also stated that from the beginning of her marriage, her mother-in-law did not like her. She further stated that in the morning when she was having snacks, kerosene was poured on her from a container and she was set on fire. 10. FIR was registered by Narubha Ranjitsinh Jadeja, PW 12, Exh 73. According to him, he had reached the hospital after making arrangement for recording the dying declaration. He produced the FIR at Exh 74, in which, the version given was that she lived with her in-laws. Her jeth and jethani lived right next door. Nanand Aashiyanaben got married whose house was also in Salaya. Since few days she had been dropping off her son to her parents' house for looking after which her mother-in-law did not like. Due to this, a quarrel took place in the house in the morning at 9 O'clock. Her nanand had come home and had started quarreling with her. Her mother-in- law also joined. Aashiyanaben caught her, jethani Roshan and Aashiyanaben then poured kerosene on her and the mother-in-law set her on fire. In the cross-examination, this witness was questioned on the timing of recording of the FIR and the condition of the patient to give her statement. 11. Dr. Mahesh Mansikhbhai Tangadiya, PW 5, Exh 41 had carried out the postmortem. He produced the PM note at Exh 42. He had found the patient burnt to the extent of 90 or 96 degrees but no burn marks were found on the palms. In the cross examination, he could not state with certainty whether the death was accidental, suicidal or homicidal. 12. Aniruddhsinh Ranjitsinh Zala, PW 14, Exh 88, though had himself not carried out the investigation, he had assisted the investigation and was examined as the prosecution witness since the investigating officer had expired. He agreed that the clothes of the deceased had not recovered. Ordinarily, if the smell of kerosene was coming from such clothes, they would have been recovered. 13. This in the nutshell is the evidence on record. On the basis of such evidence learned advocate Mr. He agreed that the clothes of the deceased had not recovered. Ordinarily, if the smell of kerosene was coming from such clothes, they would have been recovered. 13. This in the nutshell is the evidence on record. On the basis of such evidence learned advocate Mr. Tolia for the accused submitted that the prosecution has failed to establish that the death was homicidal. He placed heavy reliance on the deposition of Doctor Maheshbhai, PW 5 who could not give any definite opinion whether the death was accidental, homicidal or suicidal. Counsel relied on the decision of Supreme Court in case of Madho Singh v. State of Rajasthan reported in 2010 (15) SC 588 in which in a case based only on circumstantial evidence, the accused were acquitted, one of the factors being the medical evidence did not rule out accidental injuries. 14. Counsel submitted that there was vast difference between the two dying declarations, one recorded with the Executive Magistrate and other in the form of FIR. In the first dying declaration, allegations were made only against accused Nos. 1 and 2. In the later dying declaration, accused No. 3 was also sought to be involved. The manner of committing the offence and the cause of the quarrel were also changed. Counsel submitted that almost immediately after Fatma received burn injuries, her close relatives were with her till she died. There was thus strong possibility of tutoring by her relatives. He pointed out that the learned Judge has discarded the version given in the FIR on the possibility of tutoring. If this be so, it would not be safe to rely on the dying declaration made by the Executive Magistrate also. In this context, counsel relied on the decision of Supreme Court in case of Gopal v. State of M.P. reported in 2009 (2) GLH 489. 15. Much stress was placed on the Executive Magistrate obtaining the impression of the toe of the leg instead of thumb impression though according to the doctor, while performing the postmortem, no burn marks were there on the hands. 16. On the other hand, learned APP Ms. Jirga submitted that the deceased himself had provided the information. Learned Judge has correctly assessed the evidence. The accused were rightly convicted. Accused No. 3 also ought to have been convicted. 10.04.2017 17. 16. On the other hand, learned APP Ms. Jirga submitted that the deceased himself had provided the information. Learned Judge has correctly assessed the evidence. The accused were rightly convicted. Accused No. 3 also ought to have been convicted. 10.04.2017 17. From the evidence on record, it can be seen that the question of involvement of the accused primarily rests on the two dying declarations, one made by the deceased before the Executive Magistrate and another recorded by the police authorities as an FIR. However, it would be incorrect to read these dying declarations in isolation ignoring the other evidence throwing considerable light on the surrounding circumstances. We may first refer to and assess this peripheral evidence. 18. Jinnatben Musabhai Raja, PW 9, Exh 58 was the neighbour of the deceased lady. According to her, when Fatma came out in burning condition from her kitchen, she was at home. She heard Fatma's screaming for help. Rizwana, who was present, immediately called Fatma's parents and sister who came to the scene of incident very shortly. In fact, this witness stated that Fatma's relatives picked up a quarrel with her in-laws. Reshmaben Daudbhai Gandhar, PW 1, Fatma's sister was at her house when the incident took place. She gave the background that Fatma would routinely leave her infant son at her parents' house for looking-after. Upon being informed about the incident by Rizwana, she and her parents rushed to the place and found Fatma lying on a cot with burn injuries over her body. Fatma's jethani lived separately but right next to the house of Fatma. Faridaben, PW 10, Exh 62, Fatma's mother also gave a similar version. She rushed to Fatma's house and when Fatma was being taken to the hospital in an ambulance, she had told her that it was her mother-in-law and jethani who had burnt her. This witness, however, later on expanded and suggested that her nanand had also played an active role. 19. From the evidence of these witnesses, a few things get clear. First, Fatma received serious burn injuries at her house sometime in the morning hours. Fatma's parents lived at a short distance from her house and therefore, reached the place of incident soon after the event occurred. Fatma lived with her husband and young son. The husband's parents also lived with them. First, Fatma received serious burn injuries at her house sometime in the morning hours. Fatma's parents lived at a short distance from her house and therefore, reached the place of incident soon after the event occurred. Fatma lived with her husband and young son. The husband's parents also lived with them. Her Jethani though did not live in the same house, lived in a house right adjacent to that of Fatma's. 20. Fatma's dying declarations may therefore be seen in light of such established facts. From the evidence of the Executive Magistrate, Ashwinbhai Chavda, PW 7, Exh 37 and the dying declaration Exh 39, it emerges that upon receiving a yadi, the Executive Magistrate reached the hospital at Jamnagar at about 3 O'clock in the afternoon. He obtained an endorsement from the doctor that the patient was conscious. He ensured that the patient was isolated and there was no presence of relatives or policeman. He then proceeded to record the dying declaration. He asked preliminary questions such as the name, age, residence of the injured and then asked her about the cause of the incident to which, Fatma stated that in the morning when she was at home, her mother-in-law and jethani picked up a quarrel pursuant to which, they poured kerosene on her. The mother-in-law set her on fire by lighting a match stick. Upon completion of the dying declaration, the Executive Magistrate again obtained the endorsement of the doctor that the patient was conscious.. 21. It is a judicially recognized principle that a dying declaration recorded by an Executive Magistrate carries greater weight than other forms of dying declarations. The preliminary theory being that an Executive Magistrate who has no stake and no axe to grind against the accused would not be lightly attributed any tampering or manipulation in recording of the dying declaration. If such a dying declaration inspires confidence, if the court believes that the injured, at the relevant time, was in a proper mental state to give coherent and accurate answers and that he or she was free from tutoring or outside influence, such a dying declaration could certainly be acted upon. In the present case, reading of the evidence of the Executive Magistrate and the contents of the dying declaration, Exh 39 leaves no manner of doubt in our minds that the deceased lady was in proper state to give coherent answers. In the present case, reading of the evidence of the Executive Magistrate and the contents of the dying declaration, Exh 39 leaves no manner of doubt in our minds that the deceased lady was in proper state to give coherent answers. In addition to the endorsement of the doctor that she was conscious, the reading of the dying declaration as a whole would suggest that the lady could comprehend all questions and could give accurate answers. She was able to give precise details of her name, husband's name, age, occupation and address. The main cause of the incident question followed only after gathering such preliminary information from her. 22. The scene of incident panchnama Exh 30 shows the place to be a small makeshift kitchen. Significantly, a plastic container without cover was found from the place. The container had residue of kerosene. There was also a kerosene primus at the site. The panchnama records that it was filled with kerosene. A match box was also found from the place. 23. The contents of dying declaration Exh 39 thus get support from the surrounding evidence. As noted, the witnesses had referred to the incident taking place at about 9 O'clock in the morning at the house of Fatma herself. The mother-in-law lived in the same house. Her jethani lived right next door. Their presence at the scene of incident, therefore, was most natural. Additionally, the presence of a container of kerosene which was otherwise empty but contained residue of kerosene and which was uncovered further supports the prosecution case. 24. The contention that this could have been an accidental or suicidal death cannot be accepted. It was certainly not a case where, while cooking, the lady could have got the burn injuries. The position of the primus, the fact that it was filled with kerosene but the cover of the kerosene tank was not found disturbed are some of the indications that it is not a case of accident. Much was sought to be made of the cross examination of the doctor who, from the burn injuries, was unable to state with certainty that it must be homicidal death. In other words, the doctor was unable to discard with confidence, possibilities of accidental or suicidal death. Much was sought to be made of the cross examination of the doctor who, from the burn injuries, was unable to state with certainty that it must be homicidal death. In other words, the doctor was unable to discard with confidence, possibilities of accidental or suicidal death. Merely because the doctor did not find enough indication to eliminate other possibilities would not by itself suggest that the prosecution failed to prove that the death was homicidal. Such proof can come in many forms and does not necessarily have to be in the form of medical opinion. Further, the medical opinion was in no way in conflict with the version given by the deceased in the dying declaration. Had the doctor opined that the nature of the injuries would rule out homicidal death, we would have considered the contention further. However, this is not the case in the present matter. Taking of the impression of the lady's toe even if we believe her thumb impression could have been taken does not in any manner destroy the prosecution case. The prosecution would gain no advantage in doing so. The defence cannot capitalize out of a factor which is inconsequential. 25. It is true that in the FIR, Exh 86 the lady had involved the third person Aashiyanaben, her nanand. It is true that the precise manner in which, she was set on fire was also given somewhat differently in such FIR. It is precisely for these reasons that the learned Sessions Judge discarded the FIR in favour of the dying declaration Exh 39. The fact that a slightly different version was given by the deceased in the FIR Exh 86 would certainly prompt us to view her dying declaration Exh 39 very cautiously. However, that by itself would not persuade us to discard the entire dying declaration if otherwise found reliable. Even between these two dying declarations, the involvement of the mother-in-law and jethani has remained consistent. In the latter dying declaration Exh 86, an attempt is made to rope in Aashiyanaben also. However, that by itself would not persuade us to discard the entire dying declaration if otherwise found reliable. Even between these two dying declarations, the involvement of the mother-in-law and jethani has remained consistent. In the latter dying declaration Exh 86, an attempt is made to rope in Aashiyanaben also. When we find that the dying declaration Exh 39 is otherwise reliable and trustworthy and is also in consonance with the other evidence which as discussed earlier which would include the accounts of the relatives and other witnesses and the different articles recovered from the scene of incident, we have no hesitation in accepting the decision of the sessions court in convicting the said two accused. 26. Insofar as Aashiyanaben's acquittal is concerned, the State appeal deserves summary disposal. As it is a judgment of acquittal, it would be reversed by the High Court only if the assessment of evidence is found to be perverse. In the present case, we in fact agree with the assessment of the Trial Court on this issue. Name of Aashiyanaben did not surface in the first dying declaration made by the lady before the Executive Magistrate. Even Faridaben, PW 10, mother of Fatma in the first breath referred to Fatma's mother-in-law and jethani as prime culprits as told to her by Fatma. She later on expanded this by including even her nanand. 27. In view of the above discussion, Criminal Appeal No. 1793 of 2012 is dismissed. Criminal Appeal No. 1772 of 2012 is disposed of as infructuous qua appellant No. 1, Roshanben, wife of Abbasbhai and is dismissed qua appellant No. 2. R & P may be transmitted back to the concerned Trial Court.