JUDGMENT : (Delivered by Hon'ble Ramesh Sinha, J.) 1. The present appeal has been preferred against the judgment and order dated 23.2.2011 passed by Additional Session Judge, Court No. 3, Bareilly in S.T. No. 691 of 2004 convicting and sentencing the appellants under section 302/34 I.P.C. for imprisonment of life with a fine of Rs. 20,000/- each and in default of payment of fine, the appellants shall further undergo six months additional imprisonment. 2. The prosecution case as narrated in the F.I.R. is that one Ramesh Chandra Balmiki (hereinafter referred to as 'the informant') married his daughter Suman 5-6 years ago prior to the present incident according to Hindu rites and tradition with appellant no. 1 Kailash. In the marriage, the informant according to his capability has given sufficient dowry but his son-in-law Kailash, his father Roshan Lal, brother Surjeet and mother Sonwati used to demand a motorcycle, colour TV and Rs. 50,000/- in cash from him. The daughter of the informant several times informed the informant and his wife that her in-laws used to demand the aforesaid articles and cash for which they have also indulge in marpeet with her. Three months prior to the present incident, a Panchayat was held in Faridpur in the same it was decided that the in-laws of the daughter of informant would not indulge in marpeet and one opportunity may be given to them on the basis of said compromise, the informant sent his daughter Suman with the appellants Kailash and his father Roshan Lal. From the wedlock of the deceased and Kailash two daughters aged about 3 years and 7 months were born. It has been further stated in the F.I.R. that on last Monday when the son of the informant, namely, Ajay went to meet his daughter for enquiring about her welfare, she told him that her in-laws had assaulted her and also informed him about their grievance. 3. The informant stated that today one of his relative, namely, Ram Autar informed him on phone that his daughter and her two minor daughters have been burnt to death by her in-laws by pouring kerosene oil. On the said information he along with his wife Smt. Manju, sons and other went to Bareilly and saw that his daughter Suman was speaking and her two minor daughters were unconscious. On the said information he along with his wife Smt. Manju, sons and other went to Bareilly and saw that his daughter Suman was speaking and her two minor daughters were unconscious. Suman told him that her husband Kailash, father-in-law Roshan Lal, mother-in-law Sonwati and brother-in-law Surjeet had burnt her and her two daughters, namely Diksha and Gudiya by pouring kerosene oil on her and set them ablaze due to which Diksha and Gudiya have become unconscious and she received serious burn injuries. 4. Thereafter, the informant got a report written by one Dhirendra Singh marked as Ex. Ka-1 and lodged the F.I.R. at police station Subhash Nagar, District Bareilly which was registered as case crime no. 1250 of 2003 under sections 307 and 498-A I.P.C. on 26.6.2003 for an incident taken place on 26.6.2003 against the accused persons including the appellants, the said F.I.R. was marked as Ex. Ka. 4. 5. A dying declaration of the deceased Suman was recorded on 26.6.2003 at 3:20 p.m. by the C.M.O. on duty Dr. Ruby Kristina Randove of Municipal Hospital, Bareilly in the presence of City Magistate, Bareilly which has been marked as Ex. Ka. 31 in which it has been stated by the deceased that she was burnt to death along with her two minor daughters by her husband, father-in-law, mother-in-law and brother-in-law. 6. The post mortem of the deceased Suman and her two daughters, namely, Diksha and Gudiya aged about 3 years and 7 months respectively which have been marked as Ex. Ka. 25, 26 and 27. Prior to the post mortem of the deceased inquest report of the three deceased was conducted which have been marked as Ex. Ka. 2, 3 and 6 in the presence of S.D.M. Bareilly. The investigation of the case was carried out and the statement of the witnesses were recorded under section 161 Cr.P.C. and charge-sheet was submitted against the accused persons for the offence under section 302 I.P.C. and charges were framed under Section 304-B and 498-A I.P.C. and 3/4 D.P. Act and also under section 302 I.P.C. read with Section 34 I.P.C. 7. The accused denied the prosecution case and claimed their trial. 8. During the course of trial, the accused Roshal Lal, who is the father-in-law of the deceased died, hence his trial abetted. 9. The accused denied the prosecution case and claimed their trial. 8. During the course of trial, the accused Roshal Lal, who is the father-in-law of the deceased died, hence his trial abetted. 9. The prosecution in support of its case examined 13 prosecution witnesses, P.W. 1 Ramesh Chandra, the informant of the case, P.W. 2 Ajay Kumar, brother of the deceased, P.W. 3 Constable Karan Singh, P.W. 4 Dhirendra Singh, Scribe of the F.I.R., P.W. 5 Veerendra Kumar, P.W. 6 S.I.. Jagat Singh Sharma Station Officer of police station Subhash Nagar, P.W. 7 Anuj Kumar Tyagi S.I. of the said police station, P.W. 8 Rajendra Kumar D.S.P/C.O., P.W. 9 Alok Shekhar Tiwari, S.D.M. Bareilly, P.W. 10 Dr. Suresh Chandra, who conducted the post mortem of the three deceased, P.W. 11Dr. S.K. Sagar, who examined the deceased Suman while she was brought in injured condition, P.W. 12 Dr. Ruby Kristina Randove, P.W. 13 Nibbu Lal A.D.M. City, Bareilly. 10. The prosecution in support of its case relied upon certain documents, i.e., written report marked as Ex. Ka-1, panchayatnama of three deceased marked as Ex. Ka- 2, 3 and 6, F.I.R. marked as Ex. Ka-4, recovery memo of empty 'pipiya' kerosene oil, broken bangles, burnt clothes, matches and stove etc. marked as Ex. Ka-8, post mortem of three deceased marked as Ex. Ka-25, 26 and 27 etc. 11. The statement of the accused recorded under section 313 Cr.P.C. in which they have admitted that the marriage of appellant Kailash was solemnized with the deceased Suman on 27.4.1996 but they denied that they have killed the deceased for want of dowry. The accused Kailash and Roshan Lal have stated that they were on duty at the time of incident for which they have also obtained an information under the RTI Act and the D.P.O. SCC had informed that on 26.6.2003, the attendance register was produced and the working hours of the depot was from 8:00 a.m. to 17:00 p.m. On the application of accused Roshan Lal dated 9th September, 2009, it has been stated that he had left the depot at 11:15 a.m. on 26.6.2003. 12. 12. P.W. 1 Ramesh Chandra, who is the informant of the case has reiterated the prosecution case as stated in the F.I.R. He further stated that the whole body of the deceased Suman was burnt including her both hands and legs and when he went to the police station, he requested the police to sent her for medical treatment. He further stated that the police personnel have got his daughter Suman and her two minor daughters admitted in the hospital and during her medical treatment he did not have any conversation with his daughter and while she was being given treatment, she died. He admitted that he gave a statement that he did not met Suman in injured condition at Mohalla Tilak Nagar but he met her in hospital. He further admitted that accused Kailash and Roshan Lal were employed in Cantt., Bareilly and their working hours was from 8:00 a.m. to 17:00 p.m. He submitted that he reached the hospital between 11-12 in the afternoon and by that time none of accused person were present there. He further admitted the fact that oxygen was being given to his daughter. He denied the suggestion that he has taken Rs. 20,000/- from accused Roshan Lal and Somwati. He further denied the suggestion that his daughter did not want to marry Kailash and further admitted that her daughter remained for about 2 and half years after marriage at her parent's house. He further admitted the fact that while his daughter remained at his house for about two and half years in between Panchayat took place between the parties in which accused Roshan Lal has given an assurance that they will not demand any dowry and not harass his daughter and on the said assurance he sent her daughter with accused Kailash and her father-in-law. Thereafter, the accused Roshan Lal and Somwati separated her daughter and accused Kailash. He further denied the suggestion that accused Roshan Lal and Somwati had asked them to get their kitchen separated but thereafter they started living separately. He further deposed before the trial court that as parties were close relatives, hence at the time of marriage no dowry was demanded and the marriage was performed without dowry. He further denied the suggestion that accused Roshan Lal and Somwati had asked them to get their kitchen separated but thereafter they started living separately. He further deposed before the trial court that as parties were close relatives, hence at the time of marriage no dowry was demanded and the marriage was performed without dowry. He denied the suggestion that he had lodged the F.I.R. with an allegations that her daughter was done to death for want of dowry at the instance of his brother Ram Chandra, who was working in the Collectorate just to create pressure on the accused persons. 13. P.W. 2 Ajay, who is the brother of the deceased Suman also reiterated the prosecution case which has been narrated by his father P.W. 1 Ramesh Chandra, hence for the sake of bravity his deposition before the trial court is not being repeated. 14. Constable Karan P.W. 3, who was posted as Constable clerk at police station Subhash Nagar has proved the F.I.R. Ex. Ka-4 and G.D. entry of the same as Ex. Ka-5. 15. Constable Dheerendra Singh P.W. 4, who is the scribe of the F.I.R. has proved the same as Ex. Ka. 1. 16. P.W. 5 Virendra Kumar, who is the formal witness and has proved the inquest report of Km. Diksha as Ex. Ka. 2 which was conducted in his presence. 17. P.W. 6 Jagat Singh Sharma, the then Station Officer of police station Subhash Nagar deposed that on 27.6.2003 he was entrusted with the investigation from earlier Investigating Officer Sri Arun Kumar Tyagi and got the statement of the accused recorded under section 161 Cr.P.C. on the dictation of S.D.M. Bareilly he had written the inquest of deceased Suman and proved the same as Ex. Ka-6 and further added Section 304 B I.P.C. and recommended the case to be investigated by a Gazetted Officer. He further stated that the investigation was thereafter conducted by Sri Anuj Kumar Tyagi. He further stated that in the hospital the accused did met him and the injured were being treated in the hospital and Suman was seriously burnt some time she used to become conscious and some time unconscious and she used to scream and when he saw her she received 90% burnt injuries. He received the information at 5:25 a.m. on 27.6.2003 about the death of the deceased Suman, who died at 4:00 a.m. in the morning. He received the information at 5:25 a.m. on 27.6.2003 about the death of the deceased Suman, who died at 4:00 a.m. in the morning. He denied the suggestion that the case was registered on 26.6.2003 in the evening and soon after the death of the injured, the case was further converted under section 302 I.P.C. He further proved the F.I.R. as Ex. Ka-4. 18. P.W.7 Anuj Kumar Tyagi, who was posted as Dy.S.P./C.O. has stated he started the investigation and recorded the statement of the informant and reached the place of occurrence and when was informed that the accused Kailash and his family taken the injured hospital, he left for the hospital leaving Head Constable Bhopal Singh at the place of occurrence and at the hospital he recorded the statement of wife of the informant, namely, Maya and thereafter made the spot inspection of the place of occurrence and got site plan of the place of occurrence prepared and further from the place of occurrence he recovered Ex. Ka-4, empty 'pipiya' kerosene oil, broken bangles, burnt clothes, matches and stove etc. and took the same in the custody and marked as Ex. Ka. 8. Thereafter he again returned to the hospital and conducted the inquest of Km. Diksha and Gudiya which was marked as Ex. 2 and 3 and other police papers sent to the C.M.O. Letter R.I., photonash, challan nash, sample of seal Ex. Ka-9 to 13 which related to the deceased Km. Pratiksha and police papers Ex. Ka-14 to 18 which related to Km. Diksha. He further converted the case under section 302 I.P.C. and entrusted the investigation of the same to Station Officer Jagat Singh Sharma. He admitted in his cross examination that the stove was empty and there was no kerosene oil rather there was some kerosene oil in the cane. 19. P.W. 8 Rajendra Kumar has stated that he was entrusted with the investigation of the case and recorded the statement of witnesses and submitted charge-sheet against the accused and proved the same as Ex. Ka. 19. He admitted the fact that the statement under section 161 Cr.P.C. of the Magistrate was not recorded, who recorded the dying declaration of the deceased and the doctor, who has medically examined the injure who are an important witnesses in the present case. Ka. 19. He admitted the fact that the statement under section 161 Cr.P.C. of the Magistrate was not recorded, who recorded the dying declaration of the deceased and the doctor, who has medically examined the injure who are an important witnesses in the present case. He further stated that the witness Ajay Kumar has stated that on receiving the information his parents had gone to Tillak Nagar and saw the deceased Suman and her two minor daughters were lying in burnt condition and Suman was speaking and she told him that her husband Kailash, father-in-law Roshan Lal, mother-in-law Somwati and brother-in-law Surjeet have burnt them with an intention to kill them. 20. P.W. 9 Alok Shekhar Tiwari, who was posted as S.D.M. Bareilly at the time of incident has deposed that on 27.6.2003, the inquest of the deceased Suman was conducted by him by dictating the same to S.I. Jagat Singh Sharma and has signed the same has proved the same. The sample of seal Ex. Ka-20, Challan nash Ex. Ka-21, Photo nash Ex. Ka-22 and further proved the police papers forwarded R.I. and letter to C.M.O. Ex. Ka-21 and 22. He stated in his cross examination that Ram Chandra is one of witness of inquest but he is not aware that he is employed in the Collectorate. He further stated that except the hair behind her forehead the skin of whole body was burnt. He further admitted that from top to toe the skin of the body was burnt. 21. P.W. 10 Dr. Suresh Chandra stated that on 27.6.2003 at 3:30 p.m. in district Hospital Bareilly he conducted the post mortem of the deceased Km. Diksha, who was aged about 3 years and found the following injuries:- Ante-mortem Injuries:- 1. 2nd to 3rd degree ante-mortem burns injury allover front of the body and both lower limbs and face except back of scalp, neck, peritoneum region. Skin pealing off at places on burnt part of the body, line of redness present. Cause of death due to shock as a result of ante mortem burn injuries. 22. On the same day at 2:45 p.m. P.W. 10 conducted the post mortem of deceased Km. Pratiksha, who was aged about 5-6 months, who died on the same day at 11:40. Following ante mortem injuries were found on the person of deceased Pratiksha:- 1. Cause of death due to shock as a result of ante mortem burn injuries. 22. On the same day at 2:45 p.m. P.W. 10 conducted the post mortem of deceased Km. Pratiksha, who was aged about 5-6 months, who died on the same day at 11:40. Following ante mortem injuries were found on the person of deceased Pratiksha:- 1. 2nd to 3rd degree burn allover front of body from head to toe. Skin pealing off at places. Line of redness present. Scorching of scalp hair, eyebrow and eye lashes. Cause of death due to shock as a result of ante mortem burn injuries. 23. At 4:10 p.m. on the same day P.W. 10 also conducted the post mortem of deceased Suman, who died at 4 a.m. in the morning on the same day. Following ante mortem injuries were found on the person of deceased Suman:- 1. 2nd to 3rd degree burn injuries allover body including face except peritoneum 8.6 x 10 cm. portion on back joint above the buttock. Line of redness present. Skin pealing off most of the places of burnt part. Cause of death due to shock as a result of ante mortem burn injuries. 24. In his opinion the three deceased died on account of ante mortem burn injuries and has proved the post mortem of the three deceased and has proved the same as Ex. Ka. 25, 26 and 27. He deposed that it is not possible for him to state whether the deceased Suman was burnt on account of accidental fire or there was some other reason for it. 25. P.W. 11 Dr. S.K. Sagar stated that he has examined the injured Suman while she was brought in injured condition in the hospital. He stated that when she was brought in the hospital she received 100% burn injuries. She was admitted by her husband at 11:45 a.m. her condition was serious while she was being treated on 27.6.2003 at 4 a.m. she died. Her Bed Ticket was marked Ex. Ka-25 and he has proved the same. He stated that while treatment when he had gone to see the deceased at 5:30 on 26.6.2003 and has prescribed emergency medicine to her which is written in Ex. Ka. -16. Her Bed Ticket was marked Ex. Ka-25 and he has proved the same. He stated that while treatment when he had gone to see the deceased at 5:30 on 26.6.2003 and has prescribed emergency medicine to her which is written in Ex. Ka. -16. In his cross examination, he has stated that the deceased had received 100% burn injuries but she was semi conscious and he had asked the question but she did not answer any question in his presence. The dying declaration of the deceased was not recorded in his presence. The heart beat of the deceased was 110 which is termed as "Tachy Cardia. 26. P.W. 12 Dr. Ruby Kristina Randove has stated that she was posted as Emergency Medical Officer at Mission Hospital Bareilly. On 26.6.2003 on which date, deceased Suman was brought there she was given emergency first aid and thereafter she was sent to burn department. She has proved the admit card as Ex. Ka. 25A. She has stated that the deceased had burn injuries on her head, face, both hand, both legs and back and front portion of the body. She has received 100% burn injuries and she proved medical prescription as Ex. Ka. 26 A. She has stated that on 27.6.2003 at 4 a.m., the deceased Suman died. She further proved the C.P.R. marked as Ex. Ka-28 to 30 according to which she was given Cardio Puliminary Resisection. In her cross examination, she has stated that it is true her husband and his family members brought the deceased Suman along with two minor daughters in injured condition, who received 100% burn injuries and were in serious condition. She has stated that head, face, both hand, both legs and back and front portion of the deceased were burnt and she was seriously burnt and on the examination of Dr. S.K. Sagar her medical treatment was done. Patient was conscious but she was not in a fit state of mind and during her treatment from initial stage she was put on oxygen and continuously she was on oxygen. Her condition was right from the beginning till end was the same when she was admitted. 27. S.K. Sagar her medical treatment was done. Patient was conscious but she was not in a fit state of mind and during her treatment from initial stage she was put on oxygen and continuously she was on oxygen. Her condition was right from the beginning till end was the same when she was admitted. 27. P.W. 13 Nimboo Lal A.D.M. City Bareilly has stated that he had recorded the dying declaration of the deceased Suman from 15:20 p.m. to 15:35 in the afternoon and has taken the certificate of the doctor that the deceased was in a conscious state to give the statement. He has taken fitness certificate about the mental state of the deceased Suman before and after recording her dying declaration from the doctor in whose presence her dying declaration was recorded. Thereafter recorded her statement in question and answer form and got her right thumb impression on the same. He in his cross examination has stated that while he was recording the statement of the deceased, no one was present there excepting him and the doctor, who has given the fitness certificate. 28. Heard Sri Amit Srivastava and Sri Dharmendra Dhar Dubey, learned counsel for the appellants and Sri Ashish Pandey, learned A.G.A. for the State. 29. Learned counsel for the appellants argued that the appellants were tried for the offence under sections 498-A, 304-B I.P.C. and 3/4 D.P. Act also for an alternative charge under section 302 read with Section 34 IPC but the trial court acquitted the appellants under sections 498-A, 304-B I.P.C. and 3/4 D.P. Act and convicted them under section 302 read with Section 34 I.P.C. and sentenced them for life imprisonment. He urged that the prosecution case that the deceased Suman, who was the wife of appellant no. He urged that the prosecution case that the deceased Suman, who was the wife of appellant no. 1, was done to death by the appellants along with her two minor children, namely, Diksha and Pratiksha aged about 3 years and 7 months respectively for want of dowry has been found to be not true by the trial court and their conviction under section 302/34 I.P.C. for the murder of the three deceased is bad in the eyes of law as the evidence of P.W. 1, who is the informant and father of the deceased Suman and P.W. 2 is the brother of deceased Suman, were not relied upon by the trial court and acquitted the appellants from the case of dowry death. He further submitted that the conviction of the appellants under section 302/34 is only based on the dying declaration of the deceased which was recorded by P.W. 13, the City Magistrate in the presence of P.W. 12 Dr. Ruby Kristina Randove, the Emergency Medical Officer of Mission Hospital Bareilly is not worthy of credence as the deceased died on account of 100% burn injuries which was sustained by her and the thumb impression of right hand was taken on the dying declaration is suspicious as the whole body of the deceased was burnt including her hand and thumb as it appears from the evidence of P.W. 12. Moreover, the Fitness Certificate has also not been given by the P.W. 12 in whose presence, the dying declaration was recorded on 26.6.2003 from 3:25 p.m. to 3:45 p.m. and it was only certified that the deceased was in a conscious state. He submitted that as per the evidence of P.W. 11, who first attended the deceased Suman when she was being brought by her husband in injured condition and admitted them in the hospital at 11:45 p.m. on 26.6.2003. He also stated that she received 100% burn injuries on her person and she was admitted as emergency case. In his cross examination, the said witness has stated that body of the deceased Suman was completely burnt and she was screaming and in semi conscious state and on asking question, she did not reply and in his presence the dying declaration was not recorded and she was put on oxygen. In his cross examination, the said witness has stated that body of the deceased Suman was completely burnt and she was screaming and in semi conscious state and on asking question, she did not reply and in his presence the dying declaration was not recorded and she was put on oxygen. Thereafter, the deceased Suman was shifted to another ward at 2 p.m. and was in a critical condition and her condition remained critical till end. He further drawn the attention of the Court towards the evidence of P.W. 12 Dr. Ruby Kristina Randove, who has also in her evidence has stated that the deceased Suman was admitted in the said hospital on 26.6.2003 at 11:45 p.m. and she was brought by her husband and she has also received 100% burn injuries on her person and while she was being medically treated. Injuries were found on her face, head, both hands and both legs was burnt from both sides, i.e., from the front as well as from behind. He submitted that P.W. 12 has further stated in her cross examination that after seeing Ex. Ka-30, the photograph of the deceased Suman in a burnt condition, she stated that the victim fingers, thumbs of both hand and from head to toe were completely burnt. He has drawn the attention of the Court towards the cross examination of P.W. 12 where she has stated that though the deceased was in a conscious state but she was not in a fit state of mind. She was getting better after admission but thereafter her conditional became deteriorated as the same in which she was admitted in the hospital. She further stated in her cross examination that during her treatment right from the beginning put on oxygen and remained on it till end. She was getting better after admission but thereafter her conditional became deteriorated as the same in which she was admitted in the hospital. She further stated in her cross examination that during her treatment right from the beginning put on oxygen and remained on it till end. He next argued that P.W. 13 Nimbo Lal, who was posted as City Magistrate at the time of incident has also stated that he had taken the certificate of the doctor while recording the dying declaration of the deceased Suman that she was in a conscious state of mind and also got thumb impression on it, was also not appear to be correct as P.W. 12 has stated in his cross examination that the fingers and thumb of the hands of the deceased Suman were also burnt, hence in such a situation, the dying declaration of the deceased is suspicious and doubtful document, therefore, the conviction of the appellants on the basis of said dying declaration is wholly incorrect by the trial court, hence their conviction and sentence be set aside by this Court. He has argued that P.W. 13 was under the influence of peon Ram Chandra, who happens to be brother of the informant was instrumental in getting the dying declaration recorded, hence the dying declaration of the deceased Suman is a manipulated document and no reliance can be placed n the same. He further next submitted that P.W. 13 did not satisfy himself by putting a question that the deceased Suman was in a fit state of mind at the time of recording of dying declaration, hence the dying declaration of the deceased is a manipulated document and no reliance can be placed on it and further there being no corroborative piece of evidence to support the dying declaration, the conviction of the appellants on the basis of the same is unsafe and the appellants are liable to be acquitted by this Court. In support of his arguments, he has placed reliance on the judgments of the Apex Court in the case of Paparambaka Rosamma and another vs. State of Andhra Pradesh reported in 1999 (39) ACC 899 (Paras 7 and 8) which is quoted hereinbelow:- "7. After going through the evidence of K.Lakshamana Rao (PW 13) and Dr. In support of his arguments, he has placed reliance on the judgments of the Apex Court in the case of Paparambaka Rosamma and another vs. State of Andhra Pradesh reported in 1999 (39) ACC 899 (Paras 7 and 8) which is quoted hereinbelow:- "7. After going through the evidence of K.Lakshamana Rao (PW 13) and Dr. K.Vishnupriya Devi (PW 10) and on very careful perusal of the said document, there are some inherent defects and improbabilities which could not persuade us to accept the said dying declaration as a truthful and voluntary for the reasons set out hereinafter. The main question is as to whether she was conscious and was in a fit mental condition to make a voluntary disclosure of the incident. Dr. K.Vishnupriya Devi (PW 10) who was attached to Tenali Government Hospital examined Smt. Venkata Ramana on 4th March, 1994 at 1.30 p.m. She then sent a requisition (Ex.P9) to the Magistrate Shri K.Lakshamana Rao (PW 13) to record the dying declaration of the injured. All that Dr. K.Vishnupriya Devi has stated is that injured was conscious but she has not deposed that the injured was in a fit state of mind to make a statement. It has come on record that Smt. Venkata Ramana had sustained 90% burn injuries. K.Lakshamana Rao (PW 13) who recorded the dying declaration has made a note in Ex.P-14-the dying declaration after putting some preliminary questions to the injured and it reads as under: On the basis of answers elicited from the declarant to the above questions I am satisfied that she is in a fit disposing state of mind to make a declaration. Thereafter, the learned Magistrate proceeded to record the dying declaration. At the end, Dr. K.Vishnupriya Devi (PW 10) has appended a certificate saying patient is conscious while recording the statement. The question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration? The question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration? In our opinion, in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. It is a case of circumstantial evidence and only circumstance relied upon by the prosecution is dying declaration. 8. It is true that the medical officer Dr. K.Vishnupriya Devi (PW 10) at the end of the dying declaration had certified patient is conscious while recording the statement. It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P.Koteswara Rao (PW 9) who performed the post mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K.Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that patient is conscious while recording the statement. In view of these material omissions, it would not be safe to accept the dying declaration (Ex.P-14) as true and genuine and was made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex.P-14) as a true, genuine and was made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex.P-14) as a true, genuine and was made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below." 30. He also relied upon another the judgment of the Apex Court in the case of Surinder Kumar vs. State of Haryana reported in 2011 (75) ACC 978 (Paras 10, 12 and 13) which are quoted hereinbelow:- "10) Now coming to her state of mind, all the doctors have mentioned that she was admitted with burn injuries to the extent of 100% and after sometime she succumbed to the injuries. It is true that P.K. Sharma (PW-2), Tahsildar-cum- Executive Magistrate recorded her statement. In his evidence, PW-2 has stated that on the orders of Shri Jagjit Puri, SDM, Union Territory of Chandigarh, by his order Ex. PB/1 deputed him to record the statement of Kamlesh Rani. Pursuant to the said direction, he went to the PGI and moved an application to seek the opinion of the doctor whether Kamlesh Rani was fit to make a statement or not. He further deposed that when he had contacted Kamlesh Rani she was present in the general ward and some persons were also standing there, they left the room on his direction. About the absence of the doctor certifying at the time and date when she made a statement, he clarified that the doctor issuing such certificate was busy with his professional work. Kamlesh Rani had made a statement in local dialect of mixed Hindi/Punjabi and PW-2 had recorded her statement in Hindi script. Here again, it was pointed out that these were not factually correct. In view of the doubt, we verified the original which is in Hindi script only and not local dialect in mixed Hindi/Punjabi. Kamlesh Rani had made a statement in local dialect of mixed Hindi/Punjabi and PW-2 had recorded her statement in Hindi script. Here again, it was pointed out that these were not factually correct. In view of the doubt, we verified the original which is in Hindi script only and not local dialect in mixed Hindi/Punjabi. Though, according to PW-2, she put her thumb impression, in view of the evidence of the doctors that she was brought to hospital with 100% burns and at the time of recording her statement, she suffered 95-97% burn injuries, it is highly doubtful whether it would be possible for her to have her thumb impression below her statement. It is also not clear that when the whole body is burnt and bandaged how the thumb impression of the deceased was obtained. 12) As per the prosecution, the incident took place at 2 a.m. on 26.06.1991 and as per her statement, the occurrence of burning was in the evening of 25.06.1991, that is, the previous day. The dying declaration did not carry a certificate by the Executive Magistrate to the effect that it was a voluntary statement made by the deceased and that he had read over the statement to her. The dying declaration was not even attested by the doctor. As stated earlier, though the Magistrate had stated that the statement had been made in mixed dialect of Hindi and Punjabi and the statement was recorded only in Hindi. Another important aspect is that there was evidence that Kamlesh Rani was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness. In our view, the trial Court rightly rejected the dying declaration altogether shrouded by suspicious circumstances and contrary to the story of prosecution and acquitted the appellant. 13) It is settled that a valid and well reasoned judgment of the trial Court is seldom set aside unless there was some perversity or not based on correct law. From the materials available, absolutely there was no case to presume that the death of the deceased occurred at the hands of the appellant especially, when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. From the materials available, absolutely there was no case to presume that the death of the deceased occurred at the hands of the appellant especially, when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. Particularly, when she was alleged to have 97% burns and being under constant sedatives first at Civil Hospital, Naraingarh and then at PGI, Chandigarh, in such a situation she could not be expected to make a statement at a stretch without asking any questions. Admittedly, the Executive Magistrate, PW-2 did not put any question and recorded her answers." 31. He further pointed out that the trial court with the aid of Section 106 of the Evidence Act has convicted the appellants as they have failed to explain the death of the deceased Suman along with her two minor daughters which is also bad as the prosecution has to first proved its case beyond reasonable doubt against the appellants thereafter burden of Section 106 of the Evidence Act can be casted on the appellants. In support of his arguments he has referred to the judgment of the Apex Court in the case of Vikramajit Singh @ Vicky vs. State of Punjab reported in 2006 (12) SCC 306 (Paras 14 and 15) which is quoted hereinbelow:- "14. Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute. 15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt." 32. He has also cited the judgment of the Apex Court in the case Jaydeo Patra and another vs. State of West Bengal reported in 2013 (3) JIC 548 (Paras 9, 11) which is quoted hereinbelow:- "9. We are afraid, we cannot accept this submission of Mr. Ghosh. This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh v. State of Punjab, 2001 (2) JIC 41 (SC): (2001) 4 SCC 375 , this Court held: 11. As the prosecution has not been able to discharge its burden of establishing beyond reasonable doubt that the deceased died due to poisoning, in our view, the trial court and the High Court could not have held the appellants guilty just because the appellants have not been able to explain under wheat circumstances the deceased died." 33. Learned A.G.A. on the other hand vehemently refuted the arguments advanced by learned counsel for the appellants and submitted that no doubt, the appellants have been acquitted by the trial court under sections 498-A, 304-B I.P.C. and 3/4 D.P. Act but the trial court has rightly convicted them under section 302/34 I.P.C. on the basis of dying declaration of the deceased Suman which was recorded by P.W. 13, City Magistrate, Bareilly in the presence of P.W. 12 Dr. Ruby Kristina Randove, who had certified that the deceased was in a conscious state of mind which means that she was in a fit state of mind to give the dying declaration as is evident from Ex. Ka-31 which has been proved by P.W. 12 and the deceased in her dying declaration which is in the form of question and answer has specifically stated that her husband, Kailash Babu, father-in-law Roshan Lal, mother-in-law Somwati and brother-in-law Surjeet have set her ablaze in which she was along with her two minor daughters and prior to burning she was being severely beaten by them. The said statement was recorded on 26.6.2003 between 3:25 to 3:35 p.m. and thumb impression of her right hand was taken on same. The said statement was recorded on 26.6.2003 between 3:25 to 3:35 p.m. and thumb impression of her right hand was taken on same. He argued that merely the deceased received 100% burn injuries on her person cannot be a determining factor that she cannot give dying declaration on her thumb impression could not be taken on same, is not correct. In support of his argument, he has placed reliance on the judgment of the Apex in the case of Shama vs. State of Haryana reported in 2016 SCC OnLine SC 1532 and further in a recent case of Ramesh and others vs. State of Haryana reported in (2017) 1 SCC 529 in which law laid down regarding the dying declaration. In view of the same, the conviction and sentence of the appellants does not require any interference by this Court and the appeal is liable to be dismissed by this Court. 34. Considered the submissions advanced by learned counsel for the parties, perused the impugned judgment and order passed by the trial court along with its record 35. It is an admitted fact that the deceased was married to appellant no. 1 Kailash Babu and from their wedlock two daughters were born. The deceased was living at her parental house after marriage for about two and half years and a Panchayat was held in which appellant no. 1 Kailash and his father accused Roshan Lal had gone to the house of the parents of the deceased and after giving assurance to the parents of the deceased that they would not harass the deceased Suman for want of dowry etc. and keep her well, they brought her to their home along with her two minor daughters. Thereafter some dispute arose between appellant no. 1 and his wife Suman on account of which she was initially assaulted by them and subsequently her husband and in-laws have set her ablaze in which her two minor daughters aged about three years and seven months have also received burn injuries. 36. The dying declaration of the deceased Suman was recorded by P.W. 13 the City Magistrate in the presence of P.W. 12-Dr. Ruby Kristina Randove on 26.6.2003 between 3:20 p.m. to 3:35 p.m. which is in a form of question and answer Ex. Ka-13. 36. The dying declaration of the deceased Suman was recorded by P.W. 13 the City Magistrate in the presence of P.W. 12-Dr. Ruby Kristina Randove on 26.6.2003 between 3:20 p.m. to 3:35 p.m. which is in a form of question and answer Ex. Ka-13. The same is quoted hereinbelow:- ejht c;ku nsus dh gkyr esa gSA g0 viBuh; 26-6-03 @ 3%20 ih0,e0 e`R;q dkfyd c;ku lqeu iRuh dSyk'k] mez 25 o"kZ] fuokfluh fryd dkyksuh] Fkkuk lqHkk"k uxj] ftyk cjsyh 15-20 26-6-2003 iz'u%&rqEgkjk uke D;k gS\ mRrj%&esjk uke lqeu gSA iz'u%&rqe dSls tyh\ mRrj%&esjs ?kj okyk dSyk'k vkSj llqj rFkk rhukssa nsoj rFkk lkWl us feydj vkx yxk nh ftlls eSa ty x;hA esjh nks yM+fd;ka,d lkr ekg dh gS] nwljh rhu lky dh gS og Hkh ty x;h gSA iz'u%&Dk ?kj esa tykus ds iwoZ yM+kbZ gqbZ Fkh\ mRrj%&eq>s tykus ds iwoZ ?kj esa cgqr ekjk&ihVk FkkA ;g ?kVuk dy jkr dh gSA c;ku iwjs gksa'kks gokl eas fn;k rFkk lqudj rLnhd fd;k fu0v0 nk¡;k g0 viBuh; 26@6 lh0,e0ch0 15-35 ejht us iwjs gks'kksa gokl esa c;ku fn;kA g0 viBuh; 26-06-03 3-35 ih0,e0 37. From a perusal of the same it is apparent that the deceased was burnt to death by her husband-Kailash, father-in-law, mother-in-law and Devar. From the dying declaration, it is apparent that P.W. 12 has stated that the deceased was in a position to give statement. Moreover, P.W. 13-the City Magistrate, Bareilly has satisfied himself regarding the mental state of the deceased while recording her dying declaration as he has also made an endorsement on the dying declaration that the deceased was in full conscious state to give the statement and further after hearing the same she has approved the same and further P.W. 12 has also given a certificate that the deceased was in a full conscious state of mind to give statement. Thus, the contention of learned counsel for the appellants that the dying declaration of the deceased Suman does not show that she was in a fit state of mind to give dying declaration is not acceptable. Thus, the contention of learned counsel for the appellants that the dying declaration of the deceased Suman does not show that she was in a fit state of mind to give dying declaration is not acceptable. As it appears from the dying declaration of the deceased Suman as well as from the evidence of P.W. 13, the City Magistrate, Bareilly, who has stated that he has twice taken certificate from the Doctor firstly before recording the dying declaration and after recording the same that the deceased was in a conscious state of mind and fit state of mind to give dying declaration, hence he recorded the same. P.W. 12 also in her evidence has corroborated about the certificate of fitness being given by her to the deceased while dying declaration was recorded. So far as contention of learned counsel for the appellants that as per the evidence of P.W. 11, Dr. S.K. Sagar, who has first attended the deceased on 26.6.2003 when she was brought at Mission hospital that the deceased received 100% burn injuries and in such a situation, the dying declaration of the deceased can not be recorded, also does not appear to be correct as P.W. 11, Dr. S.K. Sagar had admitted the fact that the dying declaration was not recorded in his presence. Moreover, from the statement of P.W. 12 and 13 it is apparent that the deceased was in a conscious state and fit state of mind to give statement which recorded by P.W. 13 and a certificate was also obtained by P.W. 13 from P.W. 12 regarding fitness and also right hand thumb impression was taken on it and only a bald statement made by P.W. 12 in her cross examination that her both fingers and hands were burnt, cannot alone doubt the genuineness of the dying declaration. The next argument of the learned counsel for the appellants about the deceased was put on oxygen right from he beginning till end, therefore, she cannot give statement also has no substance as P.W. 12 has twice issued fitness certificate which is apparent from the dying declaration marked as Ex. Ka. 31. So far as the conduct the appellant no. The next argument of the learned counsel for the appellants about the deceased was put on oxygen right from he beginning till end, therefore, she cannot give statement also has no substance as P.W. 12 has twice issued fitness certificate which is apparent from the dying declaration marked as Ex. Ka. 31. So far as the conduct the appellant no. 1 to rush the deceased Suman to the hospital after receiving information of the incident for her treatment does not itself is sufficient to show the innocence of the husband in view of the specific allegations against them in the dying declaration of the deceased Suman which is an independent piece of evidence there is no reason for discarding the same. In this regard, the law regarding the dying declaration as has been settled by the Apex Court in catena of decisions such as State of U.P. vs. Ram Sagar Yadav and others reported in (1985) 1 SCC 552 , Shambhu vs. State of M.P. reported in (2002) 2 SCC 561, Shama vs. State of Haryana (Supra) and further laid down in a recent case, i.e., Ramesh Chandra and others vs. State of Haryana (Supra). 38. For ready reference, paras-31, 32 and 33 of the judgment of the Apex Court in the case of Ramesh and others vs. State of Haryana (Supra) are quoted hereinbelow:- "31. Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State (NCT of Delhi), this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. It, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state of injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement. 32. It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man there was no time to call the police or the Magistrate. In such a situation the doctor would be justified, rather duty-bound, to record the dying declaration of the dying man. At the same time, it also needs to be emphasized that in the instant case, dying declaration is recorded by a competent Magistrate, who was having no animus with the accused persons. As held in Khushal Rao vs. State of Bombay, this kind of dying declaration would stand on a much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court. 33. No doubt, the victim has been brought with 100% burn injuries. Notwithstanding, the doctor found that she was in a conscious state of mind and was competent to give her statement. Thus, the Magistrate had taken due precautions and, in fact, the medical officer remained present when the dying declaration was being recorded. 33. No doubt, the victim has been brought with 100% burn injuries. Notwithstanding, the doctor found that she was in a conscious state of mind and was competent to give her statement. Thus, the Magistrate had taken due precautions and, in fact, the medical officer remained present when the dying declaration was being recorded. Therefore, this dying declaration cannot be discarded merely going by the extent of burns with which she was suffering, particularly, when the defence has not been able to elicit anything from the cross-examination of the doctor that her mental faculties had totally impaired rendering her incapable of giving a statement." 39. Thus, taking into account the dying declaration of the deceased Suman Ex. Ka-31 and considering the evidence of P.W.12 and 13, it is evident that her dying declaration was recorded when she was in a conscious and fit state of mind wherein she has stated about the participation of the appellants in the incident. 40. As per the earlier and recent decision of the Apex Court Ramesh and others vs. State of Haryana (Supra) regarding dying declaration in which it has been held that though the dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross examination there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Where neither the deceased nor the persons accompanying him were shown to have any particular animus, the dying declaration could be safely relied upon without corroboration. 41. Thus we find that the deceased Suman has given a dying declaration which was recorded by the Magistrate in a fit state of mind voluntarily without being influenced by any person in the presence of the doctor, who certified that she was in a fit state of mind to give the statement, there appears to be no reason to discard the dying declaration of the deceased Suman, hence the trial court has rightly convicted and sentenced the appellants for the offence they are charged with. 42. 42. As we have held above that the dying declaration of the deceased is sufficient for conviction of the appellants and the trial court has rightly convicted them on the basis of the same, the last contention of the learned counsel for the appellants that the trial court with the aid of Section 106 of the Evidence Act has convicted the appellants, does not find force. Moreover, the finding of conviction recorded by the trial court in view of Section 106 of the Evidence Act also appear to be correct and does not reflect any illegality. 43. In view of the forgoing discussions, we are of the opinion that the impugned judgment and order passed by the trial court is based on cogent evidence and sound reason, hence does not require any interference by this Court. The impugned judgment and order passed by the trial court is hereby upheld. 44. The appeal stands dismissed. 45. The appellants, who are in jail shall remain in jail to serve out the sentence as awarded by the trial court. 46. The Registrar General is directed to send a certified copy of this order to the District and Session Judge concerned for necessary information and for follow up action.