JUDGMENT : RONGON MUKHOPADHYAY, J. 1. Heard Mr. M.A. Niyazi, learned counsel appealing for the appellant and Mr. Arun Kr. Pandey, learned A.P.P. for the respondent-State as well as Mr. Prakash Chandra, learned counsel for the informant. 2. This application is directed against the judgment dated 28.08.2010 and order of sentence dated 01.09.2010 passed by Sri Brajesh Kumar Goutam, learned Additional Sessions Judge, FTC-III, Jamshedpur in Sessions Trial Case No.46/2008. whereby and whereunder the appellant has been convicted for the offence punishable under Sections 302 and 498-A of the Indian Penal Code and sentenced to R.I. for life under Section 302 of the Indian Penal Code. 3. The First Information Report reveals an allegation that the daughter of the informant namely Anita Gope was married with the appellant in the year, 2001 and after marriage she was subjected to torture and cruelty by the appellant and her in-laws. It has been alleged that a case was filed before the Family Court which ended in a compromise and the deceased Anita Gope started living in her matrimonial house. A female child namely Pushpa was also born of the wedlock of the appellant and Anita Gape. The daughter was admitted in Blue Bell School in Mango, Jamshedpur. It has been alleged that on 06.09.2007 Pushpa had brought a letter purportedly authored by the daughter of the informant wherein she had mentioned about a threat to her life. On 14.09.2007 a First Information Report was instituted on the basis of the said letter being Mango (MGM) P.S. Case No. 300/2007. Further allegation has been levelled that on 17.09.2007 the son of the informant received a call on his mobile that Anita Gope has been admitted in Tata Main Hospital (hereinafter referred to as T.M.H.) in a burnt condition. The informant on receiving such information reached T.M.H. where he found his daughter admitted in the Burn Unit. The informant could subsequently come to know that his daughter was put on fire by the appellant and her in-laws. 4. Based on the aforesaid allegations Mango (MGM) P.S. Case No. 306/2007 was instituted for the offences punishable under Sections 498-A/307/34 of the Indian Penal Code. Subsequently Anita Gope died and Section 302/34 of the Indian Penal Code was added on 15.11.2007 and on 26.09.2007 Section 304-B of the Indian Penal Code was also added. 5. 4. Based on the aforesaid allegations Mango (MGM) P.S. Case No. 306/2007 was instituted for the offences punishable under Sections 498-A/307/34 of the Indian Penal Code. Subsequently Anita Gope died and Section 302/34 of the Indian Penal Code was added on 15.11.2007 and on 26.09.2007 Section 304-B of the Indian Penal Code was also added. 5. Investigation resulted in submission of charge-sheet against the named accused persons under Sections 302/120-B and 304-B of the Indian Penal Code pursuant to which cognizance was taken under Sections 302/120-B. 304-B and 302/34 of the Indian Penal Code. The case was committed to the Court of Sessions on 8.1.2008 and thereafter charge was framed under Sections 498-A and 302/34 of the Indian Penal Code to which the accused persons pleaded not guilty and claimed to be tried. 6. In course of trial, 14 witnesses were examined on behalf of the prosecution. 7. PW 1 (Narayan Goswami) has stated that the marriage between the appellant and Anita Gope was solemnized in the year, 2000. He has stated about a demand of dowry having been made by the accused persons and the deceased was subjected to cruelty on non-fulfilment of the demand of dowry. This witness has also stated about a case in which a compromise was subsequently entered into. He has also deposed that he had visited the house of the appellant along with the informant on one occasion when the appellant had told that he was keeping his wife properly and there was no necessity in calling the Police. This witness has also disclosed about the letter given by the deceased through her daughter Pushpa. 8. PW 2 (Anand Gope) is the brother of the deceased who has stated about the cruelty committed upon his sister by the accused persons. This witness has also stated about the letter written by his sister sent through his niece. He has disclosed that the letter had expressed danger to the life of his sister. He has further stated that on 17.09.2007 he had received a telephonic information about his sister being admitted in T.M.H. In course of examination this witness has further stated, about the case which had been lodged by the appellant. 9. PW 3 (Kanhai Gope) is the grandfather of the deceased who has deposed about the death of Anita Gope at T.M.H. This witness had signed on the inquest report. 10. 9. PW 3 (Kanhai Gope) is the grandfather of the deceased who has deposed about the death of Anita Gope at T.M.H. This witness had signed on the inquest report. 10. PW 4 (Duryodhan Mahakund) is the cousin brother of the deceased and is also a signatory to the inquest report. This witness has not stated about any demand of dowry or torture. 11. PW 5 (Ramchandra Gope) is the informant who has deposed that his daughter Anita Gope was married with the appellant in the year, 2001. He has stated that after three months of marriage there was a demand of dowry by the accused persons and consequent harassment for non-fulfilment of the demand. This witness has stated about a compromise which was effected in the case filed by the deceased before the Family Court pursuant to which she was taken back to her matrimonial house. He has further stated that after about five months of the compromise a letter was received by him through his granddaughter which disclosed the purported threat to the life of his daughter for which an F.I.R. was also instituted. He has stated that after receiving the letter he had gone to meet his daughter but he was not granted permission and was subsequently turned out from his daughter's matrimonial house. This witness has stated that on 17.09.2007 he had come to know that his daughter was admitted in the Burn Unit of T.M.H. and on 18.09.2007 he had gone to T.M.H. where he had found his daughter alive. This witness has stated that he had met his daughter but she was not in a position to speak. He has stated that his daughter died on 19.09.2007. He had identified his fardbeyan which has been marked as Exhibit-2. In cross-examination this witness has stated that after the marriage the deceased was tortured and she had stayed at her parents' house for about three months after which she was taken back where she was once again subjected to torture after which a case was instituted before the Family Court. 12. PW 6 (Pansari Devi) is the mother of the deceased who has supported the demand and the consequent torture upon the deceased. This witness has stated about a demand of Rs. 1,00,000/- (Rupees one lac) having been made by the accused persons. 12. PW 6 (Pansari Devi) is the mother of the deceased who has supported the demand and the consequent torture upon the deceased. This witness has stated about a demand of Rs. 1,00,000/- (Rupees one lac) having been made by the accused persons. She has also deposed that a case was filed in the Family Court and after compromise she was taken back to her matrimonial house. She has further stated about the letter sent by the deceased through Pushpa apprehending threat to her life. She has further stated that her daughter was alive when she went to T.M.H. but there was no conversation between her and the deceased. 13. PW 7 (Doctor Uma Shankar Prasad) was a member of the Medical Board which had conducted autopsy on Anita Gope. The post-mortem report disclosed the following injuries :- Ante-mortem dermo epidermal burn present allover body except both feet. Black sooty appearance of skin. Ante-mortem bruise 2 cm x 2 cm on left knee outer aspect. On dissection the following injuries were found :- A-Scalp-(1) Contusion-1 cm x 1 cm on central forehead of scalp.3 cm x 2 cm on right side of frontal region of scalp.2-1/2 cm x 2-1/2 cm on central region of scalp and 5 cm x 2-21/2 cm on right side of occipital area of scalp. Brain mildly contused all over. B-Chest and Abdomen-Lungs congested, all viscera congested. Urinary bladder empty. Stomach contains about 400 ml of Brownish fluid. Uterus enlarged. On section of uterus embryo of about 3 to 4 weeks size was found. Trachea and larynx-mucosa congested. Contusion over an area of 2 cm x 1 cm on right side of thyroid and 1-1/2 cm x 1/2 cm on left side of thyroid. According to the opinion of the Medical Board all the injuries were ante-mortem in nature and abrasion and contusion were caused by burn injuries may be possible by accidental fire. It was further opined that contusion and abrasion may be possible by fall. The cause of death was therefore ascertained to be shock on burn. 14. PW 8 (Sangita @ Sunita Gaur) is the sister of the deceased who was supported the prosecution case with respect to demand, torture and the letter expressing threat perception on the life of the deceased. 15. The cause of death was therefore ascertained to be shock on burn. 14. PW 8 (Sangita @ Sunita Gaur) is the sister of the deceased who was supported the prosecution case with respect to demand, torture and the letter expressing threat perception on the life of the deceased. 15. PW 9 (Doctor Amit Kumar Sinha) had identified his signature in the dying declaration which has been marked as Exhibit 4 and Exhibit 4/1. Thus witness has stated that the dying declaration of Anita Gope was recorded by Shri Vishwanath Maheshwari. Executive Magistrate Jamshedpur on 18.9.2007 at 5.00 p.m. in Bed No.4, Burn Unit, T.M.H. He has also stated about his certification that the deceased was in a conscious state to give her statement. 16. PW 10 (Satyendra Narayan Singh) is the Investigating Officer who has proved the fardbeyan which has been marked as Exhibit-5. This witness has described the place of occurrence as the pucca house of the appellant situated at village Pokhari. He had seized some burning remains from the place of occurrence and the seizure list has been proved which has been marked as Exhibit-6 and 6/1. This witness had got the letter written by the deceased in Oriya translated into Hindi. He has also proved the inquest report and the formal F.LR. This witness has further stated that the informant had instituted a case being Mango (MGM) P.S. Case No. 300/2007 on 14.09.2007 and during investigation the subsequent occurrence had taken place. 17. PW 11 (Vishwanath Maheshwari) had recorded the statement of Anita Gope on 18.09.2007 in Bed No.4 of Burn Unit, T.M.H. He has stated that the statement was recorded on the orders of the S.D.J.M., Jamshedpur. This witness has proved the dying declaration. He has also stated that the statement of the deceased was recorded in presence of PW 9. 18. PW 12 (Ratan Gape) is the seizure list witness who has stated that nothing has been seized in his presence. 19. PW 13 (Babloo Bahan Gaur) did not support the prosecution case and thus was declared hostile by the prosecution. 20. PW 14 (Doctor Lalan Choudhary) was a member of the Medical Board which had conducted autopsy on the dead body of Anita Gaur. 21. 19. PW 13 (Babloo Bahan Gaur) did not support the prosecution case and thus was declared hostile by the prosecution. 20. PW 14 (Doctor Lalan Choudhary) was a member of the Medical Board which had conducted autopsy on the dead body of Anita Gaur. 21. After the prosecution witnesses were examined the accused persons were put to the examination under Section 313 of the Cr PC to which they have denied to have participated in the offence. The learned trial Court vide judgment dated 28.08.2010 had acquitted the rest of the accused persons save and except the appellant who was convicted for the offence under Sections 302 and 498-A of the Indian Penal Code and was sentenced to R.I. for life. 22. Mr. M.A. Niyazi, learned counsel appearing for the appellant has assailed the impugned judgment of conviction and sentence by stating that the entire conviction is based upon a purported dying declaration given by the deceased Anita Gope. He has submitted that as per PW 5 in paragraph 9 he had categorically stated that when he had visited his daughter she was not in a position to speak and so far as PW 6 is concerned a general and vague statement has been made in para 5 but none of the evidences of PW 5 and PW 6 would suggest that the deceased was in a conscious state of mind to have recorded her dying declaration and therefore the said dying declaration comes under a cloud and cannot be a basis for conviction of the appellant. Learned counsel submits that so far as the first portion of the dying declaration is concerned the same does not deal with the cause of death or any transact ion relating to the cause of death. Learned counsel further submits that when on account of the same set of evidence the other accused persons have been acquitted the same benefit should have been given to the appellant instead of finding him guilty for the offence under Sections 302 and 498-A of the Indian Penal Code. Learned counsel submits that the death of the deceased was either homicidal or accidental and the fact circumstance strongly points towards an accidental death. Learned counsel submits that the death of the deceased was either homicidal or accidental and the fact circumstance strongly points towards an accidental death. He further submits that the dying declaration cannot be construed to be a dying declaration given by the deceased in the strictest sense of its term in view of the fact that the same is elaborate which is unbelievable considering the nature of burn injuries suffered by the deceased. Learned counsel submits that having suffered burn injuries all over the body save and except the feet the deceased was under heavy medication and sedatives and therefore it cannot be disbelieved that her capacity to elaborate on the incident gets jeopardized on account of the same and therefore it was incumbent upon the learned trial Court to have considered the purported dying declaration in the backdrop of the surrounding circumstances and should have ensured that the purported dying declaration gets sufficient corroboration to warrant conviction of the appellant. Learned counsel submits that the circumstantial evidence with respect to a letter written by the deceased just prior to the incident cannot be a cause for conviction in as much as the letter which was marked 'X' for identification has not been substantiated as neither the original of the letter was produced nor the same was sent to a handwriting expert and even the translator who is supposed to have translated the letter originally written in Oriya to Hindi was never examined. Learned counsel while stressing on the letter has further submitted that the entire family members of the deceased does not know Oriya as such it would be well nigh impossible for the deceased to have writ ten a letter in Oriya. Learned counsel adds that the Investigating Officer in para 18 of his evidence has clarified that the said letter was given to him after more than two months from the date of occurrence. He further submits that PW 10 in para 31 of his evidence has stated that the witnesses examined in para 12, 13, 14, 90 and 91 had revealed about the appellant taking the deceased to T.M.H. for treatment in his Bolero. Learned counsel adds that the letter which has much been relied upon by the prosecution does not find mention in Mango (MGM) P.S. Case No. 300/2007. Learned counsel adds that the letter which has much been relied upon by the prosecution does not find mention in Mango (MGM) P.S. Case No. 300/2007. Advancing his argument with respect to the purported letter submission has been made that PW 5 disclosed that his father had brought the letter from the daughter of the deceased from the school itself which however has not been stated by PW 3 (grandfather of the deceased). It has been submitted that PW 6 on the other hand has introduced an altogether new story to the effect that the letter was given to her by Pushpa whereas PW 2 has given another version that his niece (Pushpa) had handed over the letter in the house itself. Learned counsel while attacking the conviction made under Section 498-A of the Indian Penal Code has stated that after the matter was compromised between the parties the previous allegation levelled against the appellant had automatically been obliterated. He has referred to the evidence of the mother of the deceased, i.e., PW 6 who has stated that after the settlement the deceased had never come back to her parents' house. Learned counsel also submits that the allegation so far as Section 498-A of the Indian Penal Code is concerned is general and vague. In support of his contentions with respect to the parameters of the dying declaration which according to him the statement of the deceased does not fall has referred to the case of Laxman v. State of Maharashtra, reported in AIR 2002 SC 2973 , Surinder Kumar v. State of Haryana, reported in (2011) 10 SCC 173 and in the case of Subhash v. The State of Maharashtra, passed in Criminal Appeal No. 93 of 2003 by the Hon'ble High Court of Judicature at Bombay Bench at Aurangabad. As regards the circumstantial evidence learned counsel has put reliance in the case of Krishna Ghosh v. State of West Bengal, reported in 2009 (5) SCALE 124 . 23. Mr. Arun Kr. Pandey, learned A.P.P. for the respondent-State on the other hand has submitted that Mango (MGM) P.S. Case No. 300/2007 and Mango (MGM) P.S. Case No. 306/2007 are altogether on different spheres which has entailed separate investigation and therefore both the cases cannot be intertwined. Learned A.P.P. submits that the entire case of the prosecution depends upon the evidences of PW 5, PW 9 and PW 11. Learned A.P.P. submits that the entire case of the prosecution depends upon the evidences of PW 5, PW 9 and PW 11. Learned A.P.P. submits that merely because the dying declaration had elaborately described the occurrence the same cannot therefore be discarded as it had been opined by PW 9 being a competent person that the deceased was in a fit mental condition to give her statement. Learned A.P.P. thus submits that the dying declaration does not suffer from any ambiguity and is clear coherent and the learned trial Court had rightly placed reliance on the dying declaration. Learned A.P.P. has in such context referred to the evidence of PW 9 by stating that appropriate certification had also been given by PW 9. It has further been submitted that in terms of Section 106 of the Evidence Act the burden of proof shifts to the appellant and since he has not been able to discharge his burden his conviction is justifiable. In support of his contention learned A.P.P. has relied in the case of Laxmi (Smt) v. Om Prakash and others, reported in (2001) 6 SCC 118 . 24. Mr. Prakash Chandra, learned counsel for the informant has also supported the arguments advanced by the learned A.P.P. for the respondent-State and has further added that the dying declaration of the deceased was sufficiently proved by the evidence of the witnesses and on such score the present appeal is liable to be dismissed. 25. We have gone through the lower Court records and have considered in details the submission advanced by the learned counsels for the respective parties. 26. Before adverting to a deliberation on the ocular evidence it would be necessary to make a reference to the dying declaration at the very threshold and in order to appreciate the same this Court has endeavored to translate the dying declaration which is contained in Exhibit-A and which is in a translated version reads as follows : "On 06.09.2007 my husband had assaulted me as well as abused me. My husband did not like me from the time the marriage had taken place. My father-in-law and mother-in-law who stayed in a quarter used to visit my house frequently. They used to quarrel with me. My sister-in-law who is married whenever used to visit my house quarreled with me. My husband did not like me from the time the marriage had taken place. My father-in-law and mother-in-law who stayed in a quarter used to visit my house frequently. They used to quarrel with me. My sister-in-law who is married whenever used to visit my house quarreled with me. From the women of the neighborhood I could come to know that my husband was already having an affair from before with another lady. For this reason he did not like me arid threatened to divorce me. Yesterday, i.e., 17.09.2007 my parents-in-law had come but they had left one hour prior to my catching fire. Yesterday also everyone had quarreled with me. After cleaning the floor of the kitchen I had filled the lantern with oil and had kept it. At about 8-8:30 p.m. I went to the kitchen to cook. In trying to light the gas burner my saree caught fire and the fire engulfed the kitchen. I feel that someone had deliberately kept open the gas knob. Who had opened it I am not aware. After catching fire when I shouted someone hit me with a rod in the back portion of my head. Who had hit me I did not see. When I raised a cry of alarm no one came to save me. When I went near the grill I had seen my husband quarreling with his uncle and aunt but nobody come forward to save me. Thus, I myself doused the fire from the water kept in the tank. My daughter stays with my parents." 27. The dying declaration referred to above appear to be in two parts. The first part is with respect to the dislike by the husband of his wife and the many occasions, in which quarrel had taken place between the deceased and the in-laws. The second part of the dying declaration reveals the moments before the incident had taken place as well as the incident and the subsequent act on the part of the deceased in trying to extinguish the fire. The dying declaration however is silent with respect to the fact as to who was the person who had hit the deceased in the back side of her head with a rod or who had kept the gas knob open which led to the incident. The dying declaration however is silent with respect to the fact as to who was the person who had hit the deceased in the back side of her head with a rod or who had kept the gas knob open which led to the incident. It appears that by virtue of the first part of the dying declaration inferences has been sought to be drawn of the involvement of the appellant and others in keeping the gas knob open which led to the deceased catching fire and her subsequent death. The dying declaration therefore is mired in unexplainable circumstances. It would have been a different story altogether had the dying declaration specified the person responsible but in view of the complex nature of the dying declaration the same has to be considered in the light of the ocular evidence. It would be apposite at this stage to refer to the various pronouncements cited by the learned counsel for the appellant with respect to the parameters which would make a dying declaration infallible. The statement of a victim who is on the verge of death is merely a statement looking into the cause of the incident but becomes a dying declaration when the victim succumbs to the injuries and therefore assumes more significance and is rarely called into question or disbelieved on the presumption that a person facing imminent death and knows his/her days are numbered and he/she will never lie in deathbed. If the dying declaration is free from doubt and the deceased was in a fit mental state to give such statement conviction can rest solely on such dying declaration even if the same is uncorroborated. In the case of Laxman v. State of Maharashtra (supra) it was held as follows : "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at 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. 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 death bed 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 Court 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 to always 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 look up to the medical opinion. But where the eye-witnesses 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 in 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 is 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. 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." 28. In the case of Surinder Kumar v. State of Haryana (supra) consideration was made to the case of Sham Shankar Kankaria v. State of Maharashtra reported in (2006) 13 SCC 165 wherein it was held as follows : "11. In Sham Shankar Kankaria v. State of Maharashtra this Court held as under : (SCC pp. 171-73 paras 10 and 11) 10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. 11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat : (SCC pp. 480-81, para 8) (Emphasis supplied) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of V.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.) (iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identity the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.) (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of V.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected, (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.) (ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of V.P. v. Madan Mohan.) (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be, preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)" It was held that though there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the Court must be satisfied that the dying declaration is true and voluntary and in that event there is no impediment in basing conviction on it without corroboration. It was further held that the duty of the Court is to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The dying declaration which suffers from infirmity cannot form the basis of conviction. 29. It was further held that the duty of the Court is to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The dying declaration which suffers from infirmity cannot form the basis of conviction. 29. In the case of Subhash v. The State of Maharashtra (supra) in Criminal Appeal No. 93 of 2003 consideration was made to the case of Bhairaon Singh v. State of M.P., reported in AIR 2009 SC 2603 in which it was held that : "11. ..... Except Section 32(1) of the Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence. The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstances of the transactions which resulted in her death, in a case in which the cause of death comes into question....." "30. Therefore, the pronouncements referred to above delineates the various parameters which had to be considered while upholding the genuinity of a dying declaration. It is to be seen that the dying declaration is not tutored or is prompted by someone or becomes a figment of imagination. As has been stated above by us the dying declaration does not specify the involvement of any person and has sought to highlight the circumstances leading to the incident and unexplainable attitude of the appellant even when the deceased was crying for help in a burnt condition. The contents of the dying declaration in absence of there being a direct aspersion upon the appellant of being responsible for the incident therefore, cannot make the dying declaration a comprehensible document solely on the basis of which the conviction can be sustained. The dying declaration therefore is to be seen in the backdrop of the oral evidence adduced by the prosecution to ascertain as to whether the same is being corroborated or not by the evidence of the witnesses. The case therefore is to be decided on the basis of circumstantial evidence in absence of there being any direct evidence as held in the preceding paragraphs and whether the circumstances would lead to sustaining the conviction passed against the appellant is to be ascertained. 31. The case therefore is to be decided on the basis of circumstantial evidence in absence of there being any direct evidence as held in the preceding paragraphs and whether the circumstances would lead to sustaining the conviction passed against the appellant is to be ascertained. 31. The consideration which has to be made in the case of circumstantial evidence can be gathered from the judgment in the case of Krishna Ghosh v. State of West Bengal (supra) wherein reference was made to the book 'Circumstantial Evidence' by Sir Alfred Wills and which is quoted hereunder : "10. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted." 32. The said judgment has also referred to various other pronouncements of the Hon'ble Supreme Court on similar issues and for the purpose of deciding this case reference is made to the following paragraphs : "6. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of my other person. (See Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063 ; Eradu and others v. State of Hyderabad, AIR 1956 SC 316 ; Earabhadrappa v. State of Karnataka. (See Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063 ; Eradu and others v. State of Hyderabad, AIR 1956 SC 316 ; Earabhadrappa v. State of Karnataka. AIR 1983 SC 446 ; State of U.P. v. Sukhbasi and others, AIR 1985 SC 1224 ; Balwinder Singh v. State of Punjab, AIR 1987 SC 350 ; Ashok Kumar Chatterjee v. State of M.P., AIR 1989 SC 1890 ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 ), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 7. We may also make a reference to a decision of this Court in C. Chenga Reddy and others v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus :- "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence ...." 8. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence ...." 8. In Padala Veera Reddy v. State of A.P. and others, AIR 1990 SC 79 , it was laid down that when a case rests upon circumstantial evidence, such evidence must tests : "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 33. In State of V.P. v. Ashok Kumar Srivastava, 1992 CriLJ 1104, it was held that "on evaluation of circumstantial evidence if the same is capable of two inferences, the one in favour of the accused must be accepted." 34. In the case of Sharad Birdhi chand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622 , the conditions precedent for basing a conviction on circumstantial evidence are as follows :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and 35. The guidelines for considering whether the circumstantial evidence could entail conviction or not having been set forth in the decisions rendered by the Hon'ble Supreme Court as referred to above we now intend to explore the evidence of the witnesses adduced by the prosecution. PW 9 the doctor had given his certification that the deceased was in a fit mental state to given her statement. However, PW 5 who happens to be the father of the deceased had categorically stated that although he had met his daughter but she was not in a position to speak. The incident of burning admittedly had taken place on 17.9.2007 and the deceased died on 19.9.2007 and the parents of the deceased being PW 5 and PW 6 must have been given enough opportunities to visit their daughter who was in deathbed and it is natural for a parent to try and get to know the reason for the occurrence but as has been stated by PW 5 his daughter was not in a position to speak. In fact PW 6 has also stated that she did not have any conversation with the deceased. The evidences of PW 5 and PW 6 on being taken together would thus reveal that none of the witnesses had disclosed about the deceased being in a conscious state of mind or in a position to speak which is contrary to the certification given by PW 9 that the deceased was in a fit mental condition to have disclosed about the incident. The deceased had suffered severe burn injuries and in fact save and except her feet her entire body was burnt. However, the same would not have prevented her giving a statement if she was in a conscious state of mind. Although, the doctor is a competent authority and according to the learned A.P.P. his version in no way can be disbelieved but the contents of the dying declaration do seem to be the effect of prompting as it would be but natural that the deceased on suffering such burn injuries would be under heavy medication. The manner in which the first part of the dying declaration has been recorded seems only with an object to indicate that it was the appellant and the other accused persons with whom the deceased did not share a good rapport had conspired and got her burnt. The manner in which the first part of the dying declaration has been recorded seems only with an object to indicate that it was the appellant and the other accused persons with whom the deceased did not share a good rapport had conspired and got her burnt. Even if assuming that the dying declaration is relied upon the same does not point to the participation of the appellant as an accidental death cannot be ruled out. The prosecution has not been able to bring forward any clinching evidence which would lead to conviction of the appellant. The evidence of the Investigating Officer also does not disclose the description of the actual place of occurrence since as per the dying declaration the incident of the deceased catching fire had taken place in the kitchen but there is no mention about the description of the kitchen and in fact the Investigating Officer although had visited the house of the appellant and had collected certain articles leading to preparation of a seizure list but the said articles also seems to have been collected from the bed room of the deceased. If proper investigation was made and the kitchen was visited and inspected by the Investigating Officer the same could have thrown some light with respect to the incident as the dying declaration discloses that in trying to light the gas burner the entire kitchen was engulfed in fire. 36. Moreover, nothing has been brought forward by the prosecution by way of adducing oral evidence as to the event which had occurred subsequent to the deceased catching fire although the Investigating Officer had revealed about several witnesses disclosing about the appellant taking the deceased in his Bolero to T.M.H. 37. So far as the letter which has been purportedly written by the deceased is concerned there appears to be different versions as to how the letter reached PW 5. Different witnesses have given different stories. Moreover, the original copy of the letter was never produced by the prosecution and according to the Investigating Officer the letter was handed over to him after about two months from the date of occurrence. Neither the translator of the letter has given evidence nor the letter was sent to the handwriting expert to consider its veracity. Moreover, the original copy of the letter was never produced by the prosecution and according to the Investigating Officer the letter was handed over to him after about two months from the date of occurrence. Neither the translator of the letter has given evidence nor the letter was sent to the handwriting expert to consider its veracity. The presence of the letter therefore is itself doubtful and therefore the said letter cannot be considered to be one of the circumstances which would relate to the appellant being involved in the offence. No doubt it is true that some differences had cropped up between the accused persons and the deceased just after her marriage but the matter seems to have been settled before the Family Court and therefore raising an issue by the prosecution which seems to be obliterated once the compromise has been entered into and since PW 6 has stated that the deceased had never come back to her parents' house after the settlement the case of the prosecution under Section 498-A of the Indian Penal Code also has been diluted. 38. Mr. Arun Kr. Pandey, learned A.P.P. for the respondent- State has relied upon the case of Laxmi (Smt.) v. Om Prakash and others, reported in (2001) 6 SCC 118 has on the following : "29. A dying declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and, therefore, not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances (see Tapinder Singh v. State of Punjab). One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/ or recorded. The statement may be brief or longish It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. The statement may be brief or longish It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das v. State of Rajasthan, the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh v. State of M.P., the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made a coherent statement. In Darshan Singh v. State of Punjab, this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and, therefore, said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh v. State of Punjab, the dying declaration was recorded by the Investigating Officer. This Court excluded the same from consideration for failure of the Investigating Officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present." 39. As has been discussed in the preceding paragraphs regarding dying declaration once again it is reiterated that the sanctity of the dying declaration cannot be questioned if it meets the standard legal requirements. As has been pointed out by Mr. As has been discussed in the preceding paragraphs regarding dying declaration once again it is reiterated that the sanctity of the dying declaration cannot be questioned if it meets the standard legal requirements. As has been pointed out by Mr. Pandey while referring to the case of Laxmi (Smt.) v. Om Prakash and others (supra) that the length of the dying declaration is immaterial but the fact remains that on close scrutiny of the dying declaration it is to be seen as to whether it meets the standard set forth by the Hon'ble Supreme Court in the various references given above and whether the contents of the dying declaration does suggest that the same was given in a conscious state of mind. 40. The contentions advanced by the learned A.P.P. that the dying declaration of the deceased is wholly reliable and does not require corroboration from any other sources is negated on the ground that apart from the deceased having not directly alleged against the appellant the contents seems to be an effort made either by prompting or by tutoring to build up the case in a crescendo so as to engulf the appellant as the prime accused. The circumstances which have been elaborately considered by this Court does not reveal corroboration regarding participation of the appellant or that it was the appellant who was responsible for the gas knob being kept open. In fact on the same set of allegations the other accused persons have already been acquitted by the learned trial Court. The averment made by the deceased in her dying declaration that someone had hit in her back with a rod whom she could not recognize for certain has also led this Court to visit the post-mortem report once again where an injury was found on the back side of the head but which is also possible on account of fall. The dying declaration therefore seems to have built an edifice which appears to be imaginative and which cannot be solely relied upon for the purposes of conviction of the appellant. 41. The dying declaration therefore seems to have built an edifice which appears to be imaginative and which cannot be solely relied upon for the purposes of conviction of the appellant. 41. The circumstantial evidence as discussed above therefore having been considered by this Court also does not put faith on the dying declaration given by the deceased and since the prosecution has not been able to prove its case either under Section 498-A or under Section 302 of the Indian Penal Code beyond all reasonable doubt and the chain of circumstances which would entail conviction more so in a case of circumstantial evidence having not been complete the conviction of the appellant therefore in such fact situation becomes unsustainable. 42. In view of the aforesaid findings, therefore, this appeal stands allowed and the judgment dated 28.08.2010 and order of sentence dated 01.09.2010 passed by Sri Brajesh Kumar Goutam, learned Additional Sessions Judge. FTC-III, Jamshedpur in Sessions Trial Case No.46/2008 are hereby set aside. 43. The appellant be released from custody immediately if not wanted in any other case. He is also discharged from the liability of his bail bond. Appeal allowed.