JUDGMENT : M.G. Giratkar, J. 1. By way of present appeal, the appellants challenge the judgment and order dated 28th February, 2013 passed by the learned Additional Sessions Judge, Buldana in Sessions Trial No. 12 of 2012 thereby convicting the appellants (hereinafter referred as accused) for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to suffer RI for life and to pay a fine of Rs. 4,000/- each. 2. The case of the prosecution against the appellants/accused, in short, is as under: Deceased Marjina was having love affairs with accused No. 2. Her marriage was solemnized with Sk. Aziz and she was residing with her husband after marriage at Jamnagar in Gujarat. After marriage, she used to visit the house of her parents at Dhad. Prior to two months of incident, she came to the house of her parents at Dhad. Accused Nos. 1 and 2 caught hold her, poured kerosene on her person and set her on fire. She was admitted in the hospital. 3. Naib Tahsildar Shri Wagh went to the General Hospital, Buldana, obtained the certificate of Medical Officer and recorded dying declaration of deceased Marjina. On the basis of dying declaration, crime was registered against the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. During treatment, Marjina died on 17.04.2011. Dead body was sent for postmortem. Medical Officer Dr. Kalyani Date conducted postmortem. As per her opinion, cause of death was due to 91 per cent burn injuries. Investigating Officer API Shri Pote investigated the crime. After completing investigation, filed chargesheet against accused before the JMFC, who, in turn, committed the same for trial to the Court of Session at Buldana. 4. The trial Court framed charge at Exh.12 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Charge was read over and explained to the accused, to which, they pleaded not guilty and claimed to be tried. The prosecution has examined eight witnesses. At the conclusion of trial, both the accused came to be convicted as stated above. 5. Heard Shri Abhay Sambre, learned Counsel appearing on behalf of the appellants/ accused. He has submitted that the learned trial Court wrongly relied on dying declaration recorded by PW-6 Naib Tahsildar Shri Wagh. The prosecution has examined eight witnesses. At the conclusion of trial, both the accused came to be convicted as stated above. 5. Heard Shri Abhay Sambre, learned Counsel appearing on behalf of the appellants/ accused. He has submitted that the learned trial Court wrongly relied on dying declaration recorded by PW-6 Naib Tahsildar Shri Wagh. Except dying declaration (Exh.34), there is no other evidence against accused. Exh.34 is a doubtful document created by the prosecution. The parents of the deceased not made any complaint to the police. Only on the basis of dying declaration (Exh.34), crime was registered against both the accused. Learned Counsel has submitted that the evidence of PW-5 Medical Officer Dr. Kalyani Date shows that the deceased had sustained more than 90 per cent burn injuries. In such a situation, patient may become restless and disorient. Evidence of brother and father of deceased (PW-3 and 4 respectively) show that accused No. 2 and deceased Marjina were intending to perform their marriage. Prior to 15 days of the incident, accused No. 1 performed the marriage of accused No. 2 with another lady, due to which the parents of Marjina and deceased had anger with the accused. In a fit of anger, Marjina committed suicide by pouring kerosene on her person. Admission of brother and father (PW-3 and 4 respectively) of deceased clearly show that deceased herself committed suicide. 6. Learned Counsel Shri Sambre has submitted that dying declaration recorded by PW-6 Naib Tahsildar Shri Wagh vide Exh.34 is doubtful. Only on the basis of doubtful dying declaration (Exh.34), learned trial Court convicted both the accused. At last, prayed to allow the appeal and acquit both the appellants/accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 7. Heard Smt. M.H. Deshmukh, learned Additional Public Prosecutor appearing on behalf of the respondent/State. She has supported impugned judgment. Learned APP has submitted that dying declaration is proved by PW-6 Naib Tahsildar Shri Wagh. No further corroboration is necessary. Dying Declaration (Exh.34) itself is sufficient to convict the appellants. Hence, appeal is liable to be dismissed. 8. Now, it is well settled law that conviction can be awarded only on the basis of dying declaration, provided that it should inspire confidence of the Court about the truthfulness of the same. Dying Declaration is to be scrutinized very carefully. Dying Declaration (Exh.34) itself is sufficient to convict the appellants. Hence, appeal is liable to be dismissed. 8. Now, it is well settled law that conviction can be awarded only on the basis of dying declaration, provided that it should inspire confidence of the Court about the truthfulness of the same. Dying Declaration is to be scrutinized very carefully. There should not be any doubt about the correctness of dying declaration stated by the deceased. Deceased cannot be called for cross-examination and, therefore, the duty is cast on the Court to see that dying declaration is not tutored/ fabricated and there should not be any doubt in the dying declaration. Hon'ble Supreme Court in the landmark decision in the case of Khushal Rao vs. State of Bombay, (1958) AIR SC 22, has observed as under: "In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case." 9. In the present case, except dying declaration (Exh.34), there is nothing on record to support the case of prosecution. Nearest relatives i.e. brother and father of deceased not supported the case of prosecution. On the other hand, it appears from their evidence that they had no complaint against the accused persons. In the present case, except dying declaration (Exh.34), there is nothing on record to support the case of prosecution. Nearest relatives i.e. brother and father of deceased not supported the case of prosecution. On the other hand, it appears from their evidence that they had no complaint against the accused persons. This fact is clear from the admission of Investigating Officer Shri Pote. In his cross-examination, he has admitted that on 15.04.2012, when he went for recording second dying declaration of deceased, by that time, the parents or brother of deceased had not made any complaint against the accused to him. 10. Except dying declaration (Exh.34), there is no corroborative evidence by the side of prosecution. Therefore, we have to see whether Exh.34 is a reliable document and on the basis of same conviction can be awarded. Exh.34 was recorded by PW-6 Naib Tahsildar Shri Wagh. As per his evidence, he went to Civil Hospital, Buldana and requested Medical Officer to issue certificate about the fitness of patient. Medical Officer gave certificate about the fitness of deceased Marjina. Thereafter, he recorded her statement as per her say. After recording her statement, he again obtained the certificate of doctor. He has recorded the statement of deceased as per Exh.34. 11. Evidence of Naib Tahsildar Shri Wagh is not reliable because deceased Marjina had sustained 91 per cent burn injuries. He has stated in his cross-examination that there is overwriting in the dying declaration (Exh.34). Moreover, he did not introduce himself as a Naib Tahsildar to the deceased. As per the evidence of PW-5 Medical Officer Dr. Kalyani Date, deceased had sustained 90 per cent burn injuries. Both the hands of deceased were burnt. Since deceased sustained burn injuries, the movements of shock process start. In burnt case of 90 per cent, patient may become unconscious, restless and disorient. The patient sustained burn injuries due to pouring kerosene then pains in such cases are more. Blood supply to all organs in burnt cases decreased, it leads into hypochromia. Percentage of oxygen also decreases to the patient and leads to hypoxia to brain. Electrol imbalance found in burnt patients and leads hypochromia. In 90 per cent burnt cases, patient would be disoriented. Due to the pains in burnt case, patient could not be in a position to speak. 12. In view of the evidence of Medical Officer Dr. Percentage of oxygen also decreases to the patient and leads to hypoxia to brain. Electrol imbalance found in burnt patients and leads hypochromia. In 90 per cent burnt cases, patient would be disoriented. Due to the pains in burnt case, patient could not be in a position to speak. 12. In view of the evidence of Medical Officer Dr. Kalyani Date (PW-5), it was the duty of prosecution to examine Medical Officer who certified about the fitness of deceased at the time of recording dying declaration (Exh.34). Prosecution has not examined Dr. B.A. Chouhan who issued certificate before and after recording dying declaration (Exh.34). 13. Dying Declaration stated by deceased Marjina is not reliable because no such reason is stated by her for the act of accused persons. She has stated in dying declaration (Exh.34) as under: "Rahish Sheikh Khalil and his brother Sadik Isa came from behind me, poured kerosene on my person and set on me fire. My parents admitted me in General Hospital, Buldana. The incident took place this day at 4.00 o' clock in the afternoon." The above dying declaration is doubtful because admittedly, deceased Marjina sustained 91 per cent burn injuries. In such a situation, she was not in a mentally fit condition to talk/ give statement. Medical Officer (PW-5) has specifically stated in her cross-examination that patient having 90 per cent burn injuries may be unconscious, disorient etc. 14. PW-3 Abdul Firoz has stated in his evidence that at the time of incident, he was present in the house. His sister Marjina had given in marriage at Jamnagar in Gujarat. After the marriage, she used to visit them at village Dhad. Prior to two months of incident, she had come to Dhad. At the time of incident, he was present at his house. His sister, on her own accord, poured kerosene on her person and set her on fire. 15. His cross-examination shows that accused No. 2 and Marjina were in love and they were intending to perform their marriage. Therefore, his parents and deceased Marjina had anger with him. PW-4 father of deceased has stated in his cross-examination, as under: "......Tahsildar, Buldana had come in civil hospital, by that time, medicine was going on to my daughter. The face of my daughter burn and swelling injuries were sustained. When Tahsildar came by that time, I and my wife were present near my daughter. PW-4 father of deceased has stated in his cross-examination, as under: "......Tahsildar, Buldana had come in civil hospital, by that time, medicine was going on to my daughter. The face of my daughter burn and swelling injuries were sustained. When Tahsildar came by that time, I and my wife were present near my daughter. By that time, my daughter was in trouble and she was not in a position to talk. Tahsildar asked question to me and my wife and accordingly, we answered them. Due to my daughter was not in a position to talk, therefore, I and my wife gave answers to Tahsildar. As per that, Tahsildar reduced into writing. Tahsildar obtained thumb impression of my daughter. I had stated the names of the accused to Tahsildar due to I was having anger against the accused." 16. Cross-examination of PW-4 clearly shows that deceased was not in a position to talk. He had anger/enmity with the accused. Therefore, he narrated the contents of Exh.34 to PW-6. This evidence clearly show that Exh.34 is the product of relative of deceased and not her voluntary statement. 17. Dying Declaration (Exh.34) is not reliable because as per the evidence of brother and father of deceased, deceased was not in a position to talk. Cross-examination of PW-5 Medical Officer Dr. Kalyani Date shows that patient having 90 per cent burn may not be in a position to talk. Such type of patient used to be unconscious, restless, disorient etc. Medical Officer, who certified PW-6 about the fitness of deceased, not examined by the prosecution. Most surprisingly PW-6 mentioned the time of commencement of recording of dying declaration as 07:15 p.m. dated 12.04.2011 and completed at 07:25 p.m. whereas Exh.45 Medico Legal Certificate - Death Certificate shows that "patient namely Marjina aged about 21 years - female diagnosed 91 per cent burn. Date of admission 12.04.2011 at 07:45 p.m........" 18. Admission of Marjina in the hospital is shown as 07:45 p.m. as per Exh.45; whereas dying declaration recorded in the same hospital shows the time of recording as 07:15 p.m. Admission of PW-3 and 4, evidence of Medical Officer Dr. Kalyani Date clearly show that PW-6 not recorded dying declaration (Exh.34) as per the say of deceased Marjina. Admission of Marjina in the hospital is shown as 07:45 p.m. as per Exh.45; whereas dying declaration recorded in the same hospital shows the time of recording as 07:15 p.m. Admission of PW-3 and 4, evidence of Medical Officer Dr. Kalyani Date clearly show that PW-6 not recorded dying declaration (Exh.34) as per the say of deceased Marjina. As per the evidence of PW-4, in the cross-examination, he himself stated the contents of Exh.34, this not only creates doubt but it is very clear that Exh.34 is of full of doubt. Learned trial Court wrongly recorded its findings. 19. As per the evidence of PW-5, deceased had sustained more than 90 per cent burn injuries. Exh.31 shows that lower limbs of the deceased were burnt. It appears that learned trial Court without recording proper reasons, wrongly relied on dying declaration (Exh.34). Learned trial Court wrongly came to the conclusion that Exh.34 is sufficient to convict the accused. On the other hand, evidence on record shows that Exh.34 is the only evidence by the side of prosecution. Exh.34 is of full of doubt as stated above. Nearest relatives i.e. father and brother of deceased not made any complaint against the accused. On the basis of Exh.34 dying declaration, crime was registered. 20. Api Shri Pote has admitted in his cross-examination that relatives/father and brother not made any complaint against the accused. Admission of PW-4 father of deceased in cross-examination clearly shows that deceased was not in a talking position. She had severe pains. All the contents of Exh.34 were stated by him and his wife. 21. Evidence of PW-3 clearly shows that he was present in the house at the time of incident. Deceased herself poured kerosene and set her on fire. PW-3 and 4 not supported the prosecution case. It is brought on record in the cross-examination of PW-4 that when he reached to the house, the door of his house was closed from inner side. 22. His daughter was seen in burnt condition. His evidence further shows that he performed the marriage of his daughter against her wish. She was in love with accused and No. 2 and intending to perform marriage with him. Fifteen days before the incident, accused No. 2 performed his marriage with another lady. Therefore, possibility cannot be ruled out that due to anger with accused, she might have committed suicide. She was in love with accused and No. 2 and intending to perform marriage with him. Fifteen days before the incident, accused No. 2 performed his marriage with another lady. Therefore, possibility cannot be ruled out that due to anger with accused, she might have committed suicide. All these evidence not taken into consideration by the trial Court and wrongly convicted both the accused. In that view of the matter, we are inclined to allow the appeal and proceed to pass the following order. ORDER: (i) Appeal is allowed. (ii) Impugned judgment dated 28th February, 2013 passed by the learned Additional Sessions Judge, Buldana in Sessions Trial No. 12 of 2012 is hereby quashed and aside. (iii) Appellants/accused No. 1 Sk. Rais Sk. Khalil and accused No. 2 - Sk. Sadiq Sk. Khalil are hereby acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Appellants/accused are on bail. Their bail bonds stand cancelled. (iv) R and P be sent back to the trial Court.