JUDGMENT : 1. The appellant State of Gujarat has filed this appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the acquittal order dated 15.05.2007 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.2, Junagadh (hereinafter referred as “the learned Trial Court”) in Sessions Case No.72/2006. 2. Heard learned APP Ms. Jirga Jhaveri for the appellant State and learned Advocate Mr. Pinak Rayirani with learned advocate Mr. Hriday Buch for the respondent- accused. Order under Challenge: 3. Learned trial Court has passed an order dated 15.05.2007 acquitting the respondent – Original accused under Section 235(1) the Code for the offences punishable under Sections 306, 509 of the Indian Penal Code. Arguments of the prosecution 4.1 Learned APP has argued that the order of the acquittal passed by the trial Court is contrary to law and evidence on record. That the trial court ought to held that the prosecution has proved the case beyond reasonable doubt by placing cogent and reliable evidence. Learned trial Court has not appreciated the oral as well as documentary evidence in proper perspective. 4.2 It is further argued that the learned trial court has not appreciated that the accused had threaten and was persisting to the victim to leave her matrimonial home and stay with the accused. That the trial court has not appreciated the history given by the victim to the doctor which amount to dying declaration, wherein the deceased has stated that she was helpless and her husband is handicap, she was not ready to fulfill the desire of the accused. That the trial court has wrongly observed that there is no threat given to the deceased and any harassment from the accused which compelled her to commit suicide. 4.3 It is also argued that the ingredients for the offences punishable under Sections 306 and 509 of the IPC are established by producing cogent evidence. That the trial Court has passed the impugned order which is illegal and required to quash and set aside. Learned APP has requested to allow the appeal and convict the accused for the offences charged against him. That the trial Court has passed the impugned order which is illegal and required to quash and set aside. Learned APP has requested to allow the appeal and convict the accused for the offences charged against him. Arguments of the defence 5.1 Learned advocate for the respondent-accused has argued that the judgment and order passed by the learned trial court is legal and valid in the eyes of law as well as on the fact. That the trial court has rightly considered the oral as well as documentary evidence and acquitted the accused. 5.2 Learned advocate for the accused has further argued that most of the witness who are related to the deceased were turned hostile and they have not supported the case of the prosecution. That the learned trial Court has appreciated the evidence of all the witnesses in favour of the accused and he was acquitted as per the statement of the near relative of the deceased. The fact is revealed that the deceased was unconscious and she was unable to speak. 5.3 It is also argued that though there is evidence of dying declarations but the same is not reliable and trustworthy. As there is a contradiction between the deposition of the Executive Magistrate and the Police personnel who were present at the hospital. And the thumb impression of the deceased is not identified and the question column as regards to the conscious or unconscious is not filled in. Therefore, the dying declaration is suspicious and not reliable in the eyes of law and such dying declaration cannot be taken into consideration for convicting the accused, further, there is no previous incident has been established. 5.4 Learned advocate for the accused has relied upon the following judgments : (a) 2007 SCC 415 in the case of Chandrappa & Ors Vs. State of Karnataka (b) 2017(1) SCC 433 in the case of Gurucharan Singh Vs. State of Punjab (c) 2010(8) SCC 628 in the case of Madan Mohan Vs. State of Gujarat It is also argued that the learned trial Court has rightly considered the evidence on record and acquitted the accused and there is no need to interfere with the acquittal order and requests for dismissing the appeal. State of Punjab (c) 2010(8) SCC 628 in the case of Madan Mohan Vs. State of Gujarat It is also argued that the learned trial Court has rightly considered the evidence on record and acquitted the accused and there is no need to interfere with the acquittal order and requests for dismissing the appeal. Facts of the case: 6.1 The original-complainant Ibrahim Dahodbhai had filed the complaint before Keshod Police Station on 29.06.2006, the said complaint was registered as CR No.I- 138/2006 for the offences punishable under Section 306 of the IPC. As per the complaint it is stated that the complainant is the husband of the deceased and their marriage was solemnized before 15 years. They were residing at Keshod, District Junagadh. On 25.06.2006 at about 1:30 AM in the early morning when he was sleeping on lorry in front of his house and his wife and children were sleeping inside the house. At about 1:30 AM his wife came out of the house with inflammation and she was shouting and therefore he awakened and put mattresses on her. He called Rashidaben, Sadirbhai and other neighbor. Thereafter, she was taken to the hospital in a rickshaw. 6.2 It is further stated in the complaint that he had asked to his wife that why she had done this? His wife stated that accused-Kadar who is residing at the outskirts of the same village was persisting her to leave her matrimonial home and stay in his house. She told him that she and her husband are handicapped. It is also stated in the complaint that the deceased has told that the accused has threatened her when she refused to go to his house. 6.3 The deceased was primarily taken to a Government hospital of Keshod for primary treatment and thereafter she was shifted to Junagadh Hospital. The deceased succumbed to the injuries on 27.06.2006 at about 10.15 PM. Thereafter the complainant was registered at Keshod Police Station. 6.4 After completing the investigation, the investigating officer has filed charge-sheet which was registered as Criminal Case No. 471/2006 in the court of Judicial Magistrate First Class Keshod. The offence being Sessions triable, the learned Magistrate First Class has committed the case under Section 209 of the Code to the Court of Sessions Junagadh and the said case is registered as Sessions Case No. 72/2006. The offence being Sessions triable, the learned Magistrate First Class has committed the case under Section 209 of the Code to the Court of Sessions Junagadh and the said case is registered as Sessions Case No. 72/2006. 6.5 The learned trial Court has framed the charge at Exh.1 for the offences punishable under Sections 306 and 509 of the IPC. The prosecution has examined 16 witnesses and produced 15 documentary evidence before the trial Court The further statement under Section 313 of the Code was recorded wherein the accused has denied the case. The learned trial Court has heard the arguments of the prosecution and the defence. Thereafter the learned trial Court has passed the impugned order dated 15.05.2007 and acquitted the present respondent-accused. The case of the prosecution 7. It is the case of the prosecution that the deceased Aminaben has died by inflame which is an unnatural death. It is a case of the prosecution that she has committed suicide, for which the accused has abetted the commission of such suicide. Unnatural Death 8.1 The deceased was firstly treated at government referral hospital Keshod. It is further stated in the deposition of PW-1 Dr Janakkumar at Exh.7 that injuries of burns found on chest, abdomen, both hands and legs (upper and lower limbs), hairs of head. There were superficial and deep burns on all over the body. The condition of the patient was poor and there were less chances to survive. She has given primary treatment and the patient was referred to Junagadh government hospital. She has informed police on duty by phone. The injury was fresh and serious. He has produced OPD Case paper and the certificate. 8.2 The prosecution has examined PW-2- Dr. Bhartiben Daharm Sinh Yadav at Exh.10. She has conducted the post-mortem. It is stated in her deposition that she was serving as medical officer on 28.06.2006 at Junagadh Hospital and she had conducted the post-mortem. And the post-mortem report is produced at Exh. 11. Superficial to deep burns all over face, chest, abdomen, back, both arms and forearm, lungs, both thigh, some part of legs. Frontal hair of head burnt and all the vital organs were congested. It is stated in her deposition that the cause of death is cardiorespiratory failure due to septicemia due to external burns all over body. She has been cross examined by the defence. Frontal hair of head burnt and all the vital organs were congested. It is stated in her deposition that the cause of death is cardiorespiratory failure due to septicemia due to external burns all over body. She has been cross examined by the defence. The said Post-mortem report at Exh.11 is duly proved in the deposition of this witness. 8.3 The prosecution has examined PW-1 Dr Janakkumar Odhavjibhai Madhak at Exh. 7, he has treated the deceased at Keshod Government Hospital. PW-3 -Dr. Atulbhai Chandubhai at Exh. 15 who has treated the deceased from 25.06.2006 to 27.06.2006 at Junagadh hospital. Both the witnesses has narrated the burns injury on the body of the deceased. 8.4 The prosecution has produced inquest panchnama vide list at Exh.6 and produced at Exh.29 and the same is admitted by the defence advocate. Upon perusal of the inquest panchnama it reveals that the dead body was kept in room no.2 Bandsol and it is seen that there were burns all over body from mouth to hips. It is also stated in the panchnama that the cause of death by burns injury. 8.5 Considering the deposition of the above witnesses and the documentary evidence produced before the trial Court and in view of the fact that the deceased was died due to cardiorespiratory failure, the prosecution has established that the deceased was died due to unnatural death by suicide. Liability of Accused. 9. In criminal jurisprudence the prosecution has to prove its case by leading legal, relevant, cogent and reliable evidence. At the time of recording evidence, it may be depicted as oral evidence(Direct and indirect), documentary evidence(primary and secondary), real evidence (muddamal / thing). At the time of appreciation of evidence, the evidence on record may be depicted as substantive evidence, circumstantial evidence, corroborative evidence etc. Now what is substantive evidence? The evidence by which main fact in issued is decided, it can be named as substantive piece of evidence. Whether the particular evidence is substantive evidence or not that is required to be decided, considering the nature, effect and impact of evidence on the case on hand. The example of the substantive evidence are the dying declaration, evidence of injured witness, evidence of eye witness and evidence of prosecutrix etc. 10. In this case the substantive piece of evidence in form of dying declaration is produced by the prosecution. The example of the substantive evidence are the dying declaration, evidence of injured witness, evidence of eye witness and evidence of prosecutrix etc. 10. In this case the substantive piece of evidence in form of dying declaration is produced by the prosecution. There are multiple dying declarations are produced in this case. In catena of the judgments, the Apex Court has held that the dying declarations is a substantive piece of evidence. There is no coroboration required if dying declaration is reliable and trustworthy, conviction can be held on sole dying declaration. In this case following dying declarations were recorded: (a) Dying declaration in form of history recorded by Dr. Jankkumar Odhavjibhai Mathak (Keshod) at Exh.7 and OPD case paper at Exh.9. (b) Dying declaration in form of history recorded by PW-3 Dr. Atulkumar Chandulal Kumbawat (Junagadh) at Exh.15 and OPD case paper at Exh.17. (c) Dying declaration in form of history recorded by the doctor in the indoor case at Exh.18. (d) Dying declaration recorded by Executive Magistrate PW-4 Pankajbhai Thakar at Exh.20 and dying declaration at Exh.21. (e) Dying declaration in form of statement recorded by PW-13 Khimjibhai at Exh.35 and statement at Exh.37. (f) Dying declaration stated by the deceased before the husband of the deceased which is in his deposition at Exh.24 para2. (A) Dying declaration in form of history recorded by Dr. Jankkumar Odharjibhai Madhak (Keshod) at Exh.7 11.1 The prosecution has examined PW-1 Dr. Janakkumar Odharjibhai Madhak at Exh.7 has stated in paragraph 1 of the deposition, that on 25.06.2006 he was on duty at Keshod government hospital. At about 1.45 AM Aminaben Ibrahim was brought in burnt position for treatment. The patient was conscious and she had stated before him in history, that she burned herself by pouring kerosene. Kadar Suman was pursuit to abduct her since many days. That she and her husband are handicapped. How she could dispel, she become outworn and burnt herself. She shouted and therefore all came. This witness is cross examined by the defence advocate. He had denied that in this condition patient cannot speak. It was denied that patient was completely unconscious. He has voluntarily stated that patient had given history by herself and it was taken down in the case paper. Therefore, it is noted that the patient was completely conscious and other suggestions made by the defence were also denied. He had denied that in this condition patient cannot speak. It was denied that patient was completely unconscious. He has voluntarily stated that patient had given history by herself and it was taken down in the case paper. Therefore, it is noted that the patient was completely conscious and other suggestions made by the defence were also denied. 11.2 The prosecution has produced the OPD case paper at Exh.8. On perusing the same it is stated that ; “H/O injuries. Burnt by herself by pouring kerosene. “Kadar Sumar want to abduct me since many days he chase me. I am handicapped, my husband is handicapped. How could I dispel. I become out worn therefore burnt myself. Nobody knows in my house. I shouted therefore all came.” 11.3 The prosecution has produced medical certificate at Exh.9, which reads as under: “This is to certify that Dr. Janakkumar Odharjibhai Madhak has examined Smt. Amina Ibrahim aged 35 years of Keshod. On 25.06.2006, at about 01:45 AM without police yadi she was brought to hospital by her relative. Informed the police on duty by phone. During my examination following injuries detected.” Thereafter, the history written on Exh.8 is mentioned there under. (B) Dying declaration in form of history recorded by PW-3 Dr. Atulkumar Chandulal Kubawat at Exh.15 and OPD case paper at Exh.17. 12.1 The prosecution has examined PW-3 Dr. Atulkumar Chandulal Kubawat at Exh.15. He has stated that on 25.06.2006, he was on duty at Junagadh hospital as Medical officer. During that time at 03.00 am early morning deceased Aminaben Ibrahim who is inhabitant of Keshod village brought by reference of Keshod hospital to our hospital. She was admitted first in emergency ward (casualty). He has produced reference note at Exh. 16. 12.2 He has further stated in para.2 of his deposition that he has examined the patient in the emergency ward. The patient was conscious. The patient has given history by herself that she burned herself by pouring kerosene due to harrasment of Kadar Sumar. Patient's pulse and blood pressure were normal and patient was conscious. On examination injuries found burns on chest, abdomen, both hands and legs(upper and lower limbs) hairs of head were superficial and deep burns on all over the body. He has given necessary emergency treatment and admitted in burns ward. Patient's pulse and blood pressure were normal and patient was conscious. On examination injuries found burns on chest, abdomen, both hands and legs(upper and lower limbs) hairs of head were superficial and deep burns on all over the body. He has given necessary emergency treatment and admitted in burns ward. 12.3 It is stated in para.3 that the injuries seen on body of patient and the history given by the patient were noted by him on the out door case paper in his hand writing. He has produced the original case paper at Exh.17. 12.4 On perusing the OPD case paper at Exh. 17, it is noted on the first page that “patient is concious, the history given by patient herself” on the back side it is written that, “Kadar Sumn was harassing therefore she burned herself by pouring kerosene”. The patient was conscious and blood pressure is normal. This document is proved with the contents in the deposition of the Dr. Atulkumar at Exh.15. (C) Dying declaration in form of history recorded by the doctor in the indoor case at Exh.18. 13.1 It is stated by PW-3 Dr. Atulkumar in para.4 of his deposition that the dying declaration was taken on 25.06.2006, during admission of the patient in the burn's ward. Dr.N B Mavadiya has made note in the indoor case paper. It is further stated that, this patient was examined on 25.06.2006 at 09:30 am by the doctor on duty. The patient has again given history by herself in presence of that doctor that, Kadarbhai chases her and insisted to leave her matrimonial home and forced to stay with him therefore she burned herself by pouring kerosene. The patient made statement by herself. This note is made on the original case paper by Dr. Raj, it is also noted on the case paper that patient is conscious and her blood pressure and pulse are normal. 13.2 It is also stated that patient was under treatment from 25.06.2006 to 27.06.2006 in burns ward in the hospital under different doctors. The doctors have made their notes in the case indoor paper. In this case paper on last page, on 27.06.2006 at 10.15 pm the patient has expired is noted by Dr. Pandya Sir. All the handwritings are identified by him as the hand writings are of the officers of the hospital. The indoor case papers collectively exhibited at Exh. 18. The doctors have made their notes in the case indoor paper. In this case paper on last page, on 27.06.2006 at 10.15 pm the patient has expired is noted by Dr. Pandya Sir. All the handwritings are identified by him as the hand writings are of the officers of the hospital. The indoor case papers collectively exhibited at Exh. 18. 13.3 I have perused the indoor case paper at Exh. 18. There is no contradiction in the deposition of the witnesses and notes made on the case papers. 13.4 These witnesses were cross-examined by the defence advocate and the witnesses had denied the suggestions made during the cross-examination about the treatment, history, mode and contents of dying declaration, consciousness of patient etc. (D) dying declaration recorded by PW-4 Pankajbhai Thakar at Exh.20 and dying declaration at Exh.21. 14.1 The prosecution has examined witness PW-4 Pankajbhai Thakar at Exh.20. He is the Executive Magistrate who recorded the dying declaration. It is stated in his deposition that he was at his home at about 4:35 PM. At that time the dispensary Chowki police station letter was received wherein he was asked to record the dying declaration of Aminaben Ibrahim. He reached to the Civil hospital at Junagadh and met Dr. Maradiya who has taken him to the patient and identified the patient. It is further stated and informed that the patient is completely in conscious state of mind and thereafter he has started recorded the dying declaration at 4:45. am in Q&A form. He has asked 10 questions to the patient and she replied all of them. The reply of the question given by patient put to her were noted down. He further stated that as the questions were asked the patient has replied and he has taken note of them. Before noting the dying declaration he had noted the condition of the patient as opined by the doctor. After recording the dying declaration he has taken the signature of the doctor. The original dying declaration is produced at Exh. 21. He has identified the thumb impression of Aminaben, his signature and signature of Dr. Maradiya on the dying declaration. Nobody was present except the patient, doctor and himself, when he recorded the dying declaration. He has started recording at 4.45 am and completed at 4.55 am. The original dying declaration is produced at Exh. 21. He has identified the thumb impression of Aminaben, his signature and signature of Dr. Maradiya on the dying declaration. Nobody was present except the patient, doctor and himself, when he recorded the dying declaration. He has started recording at 4.45 am and completed at 4.55 am. This witness was also cross examined by the defence advocate and has denied the suggestions made as regards to doubting the dying declaration. 14.2 The prosecution has examined PW-5 Dr Mohanbhai Mavadiya who had identified the patient to the Executive Magistrate. He had ensured that the patient is in conscious state of mind and well-oriented for the procedure for dying declaration on 25.06.2006. It is stated in his deposition that the recording of the dying declaration was completed at about 4:55 PM. (E) Dying declaration recorded in form of statement by PW- 13 Khimjibhai at Exh.35 and statement at Exh.37. 15.1 The prosecution has examined PW-13 Khimjibhai Sakarabhai at Exh.35. He has stated in his deposition that he was the head constable on duty at the Civil Hospital Police Chowki, Junagadh. He was informed that the deceased came to the hospital in burnt injuries and he met Dr.Kumawat who has treated her. The doctor has taken him to the patient at that time she was in conscious state of mind and he has recorded the statement as dictated by the patient and taken her right hand thumb impression. He signed as witness, The thumb impression is identified as sign of the deceased. 15.2 After the death of deceased this statement is considered as dying declaration. The statement is produced at Exh.37. This witness has denied the suggestions made by learned advocate for the defence in cross-examination. (F) Dying declaration stated by the deceased before the husband of the deceased which is in his deposition at Exh.24. 16. The complainant has stated in his deposition that at about 1.30 PM on the date of incident. He was at his home and sleeping outside of the house and his wife and children were sleeping inside the room. Suddenly, at about 1.30PM his wife came out from the house in burning position and she was shouting and therefore he got awaken. Thereafter, he put mattresses on her to extinguish the fire and called the near relatives and neighbors. Suddenly, at about 1.30PM his wife came out from the house in burning position and she was shouting and therefore he got awaken. Thereafter, he put mattresses on her to extinguish the fire and called the near relatives and neighbors. Thereafter, he had taken his wife to the hospital in a rickshaw with neighbors Sabir and Fatimaben. It is further stated in para.3 of his deposition that at the time of taking her to the hospital his wife has told him that Kadar Sumar was continuously chasing her and harassed her by telling her to leave matrimonial home and stay with him. Contradiction between evidence of two witnesses. 17. Learned advocate for the respondent has submitted that there are contradiction about the persons present at the time of recording of dying declaration. It is pointed out that as per the PW-5 Dr. Mohanbhai who has stated that the dying declaration was recorded by the Executive Magistrate in his presence, whereas the Executive Magistrate has stated that he has recorded the dying declaration after excluding the police as well as the doctor from the room of the patient. 17.1 It is stated in the cross-examination by the Executive Magistrate that it was the doctor who has taken him to the patient at that time relative of the deceased were present. It is further stated that when he went to the patient the relatives were send out of room by him. Considering this deposition it appears that there is not much contradiction as regards to the presence of the police etc. at the time of recording the dying declaration. Further one witness can not be contradicted with other witness. 17.2 This concept is fortified from the decision of the Apex Court reported in the decision laid down in the case of State of Karnataka Vs. K Yarappa Reddy reported in AIR 2000 SC 185 , wherein the Apex Court has held which reads as under: “28.The general rule of evidence is that no witness shall be cited to contradict another witness if the evidence is intended only to shake the credit of another witness. The said rule has been incorporated in Section 153 of the Evidence Act which reads thus : "153. Exclusion of evidence to contradict answers to questions testing veracity. The said rule has been incorporated in Section 153 of the Evidence Act which reads thus : "153. Exclusion of evidence to contradict answers to questions testing veracity. - When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but if he answers falsely, he may afterwards be charged with giving false evidence." 29. The said rule has only two exceptions. One is that if the witness denies having been previously convicted then evidence can be adduced to prove that he was so convicted. The other exception is the following : "Exception 2. - If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted." 30. Illustration (d) cited in Section 153 is to amplify the aforesaid cxcep- tion no. 2. That illustration is extracted below : "(d) A is asked whether his family has not had a blood fued with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality." 31. The basic requirement for adducing such contradictory evidence is that the witness, whose impartiality is sought to be contradicted with the help of such evidence, should have been asked about it and he should have denied it. Without adopting such a preliminary recourse it would be meaningless, if not unfair, to bring in a new witness to speak something fresh about a witness already examined. In Vijayan v. State, [1999] 4 SCC 36 this Court has held that "the rule limiting the right to call evidence to contradict a witness on collateral issues excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute." 32. As the general rule of evidence is one of prohibiting evidence on collateral issues and since it is only by way of exception that such evidence can be permitted, the court must guard that the defence evidence falls strictly within the exception.” Appreciation of evidence of hostile witnesses. 18. As the general rule of evidence is one of prohibiting evidence on collateral issues and since it is only by way of exception that such evidence can be permitted, the court must guard that the defence evidence falls strictly within the exception.” Appreciation of evidence of hostile witnesses. 18. It is argued by the learned advocate for the respondent that with all the near relatives including the husband of the deceased turned hostile. The following witnesses have not supported the case of the prosecution who were turned hostile. (1) Imbrahimbhai Dahodbhai at Exh.24 is the husband of deceased (2) Hawaben Alarkhabhai at Exh.26 sister in law of deceased (3) Nathabhai Kasambhai at Exh.27 Father of deceased (4) Shabirbhai Abdulbhai Satar at Exh.31 neighbor of deceased (5) Fatimaben Mamadbhai at Exh.32 (6) Rasidaben Kadarbhai at Exh.33 neighbor of deceased (7) Hawaben Abdulbhai at Exh.34 neighbor of deceased 18.1 If some witness are turned hostile, and support the defence in such circumstance the same cannot be given any undue weight in favour of the accused merely they did not support the prosecution. In this type of case, the peculiar fact that the family members surprisingly turn hostile to the prosecution case to help the accused it lends indirectly corroborate the prosecution case that accused alone is responsible for guilt. It cannot be permitted to destroy the evidence of independent witness. 18.2 This court has come across the judgment of this Court in the case of Koli Laxmanbhai Chandabhai Vs. State of Gujarat reported in 2000(2) GLH 567 has laid down the following decision which reads as under: “5. From the aforesaid evidence on record, in our view, it cannot be said that the High Court erred in relying upon some portion of the evidence of PW7 who was cross-examined by the prosecution. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admisible in the trial and there is no legal bar to base hi conviction upon his testimony if corroborated by other reliable evidence. [Re : Bhagwan Singh Vs. State of Haryana, 1976(1) SCC 389 and Sat Paul Vs. Delhi Administration, 1976(1) SCC 727 .]”. Therefore, this argument cannot be acceptable that the dying declarations are suspicious. 19. It remains admisible in the trial and there is no legal bar to base hi conviction upon his testimony if corroborated by other reliable evidence. [Re : Bhagwan Singh Vs. State of Haryana, 1976(1) SCC 389 and Sat Paul Vs. Delhi Administration, 1976(1) SCC 727 .]”. Therefore, this argument cannot be acceptable that the dying declarations are suspicious. 19. Learned advocate for the appellant has argued that during the recording of dying declaration no one has stated that the deceased was in fit state of mind and she was able to speak. 19.1 Upon perusal of the dying declaration recorded by the Executive Magistrate at Exh.20 and Exh.21, it appears that the executive magistrate has asked certain questions to the patient as regards to the family background and the reply given by the patient(deceased) are recorded in the dying declaration. It appears that the reply given by the deceased are true and correct. As per the deposition of the Executive Magistrate he was satisfied that the patient was in a fit state of mind and she was able to answer the questions asked by him. Thereafter, he has recorded the statements in the dying declaration. Hence, there is no rule that the certificate of the medical officer is necessary on the dying declaration. This principle is fortified by the judgment reported in AIR 2002 SC 2973 delivered in the case of Laxman Vs. State of Maharashtra, the Hon'ble Supreme Court has held as under: “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. 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. 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 eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and 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. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. 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”. 20. Learned advocate has relied upon the following judgments delivered by the Supreme Court. 20.1 In the case of Chandrappa & Ors Vs. State of Karnataka reported in 2007(4) SCC 415 . The Hon'ble Supreme Court has considered certain decisions on the subject of the power of appellate court in acquittal appeal and derived the general principles which reads as under: “(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 20.2 Learned advocate for the respondent has further cited the judgment reported in 2017(1) SCC 433 in the case of Gurucharan Singh Vs. State of Punjab wherein it is stated that the basic ingredients of Section 306 are suicidal death and abatement which involves the case to instigate the commission of suicide is imperative. In absence of all these situation would mitigate against the said incident. This Court has considered the issue laid down by the Supreme Court as under : “22. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalizes the sustained incitement for suicide. Section 107 IPC defines abetment and is extracted hereunder: “107. Abetment of a thing. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalizes the sustained incitement for suicide. Section 107 IPC defines abetment and is extracted hereunder: “107. Abetment of a thing. – A person abets the doing of a thing, who – First – Instigates any person to do that thing; or Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1 – A person, who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures or attempts to cause or procure, a thing to be done, is said to instigate the doing of that doing. Explanation 2 – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.” 23. Not only the acts and omissions defining the offence of abetment singularly or in combination are enumerated therein, the explanations adequately encompass all conceivable facets of the culpable conduct of the offender relatable thereto”. 20.3 Learned advocate for the respondent has cited the judgment reported in 2010 (8) SCC 628 wherein it is stated in the case of Madan Mohan Vs. State of Gujarat. The Honourable Supreme Court has held as under: “10. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note.” This Court has considered the ratio laid down by the Hon'ble Supreme Court in above cases and the general principles regarding the power of appellate court while dealing the acquittal appeal. That the apex court has held that the appellate court has full power to reappreciate and reconsider the evidence. This court has considered the evidence on record and re appreciate and also seen that learned trial court has not relied upon the admissible substantive piece of evidence ie, dying declaration. The trial court has totally ignored the admissible evidence and discarded the dying declaration. That the trial court has acquitted the accused which amounts to miscarriage of justice. It is further observed that the prosecution has produced such evidence by which, one can conclude only and only the conviction. That there are no two reasonable conclusions in this case. Therefore, the judgment of the trial court is required to be altered. The cited judgments are not applicable to this case. 21. This court has come across the judgment of this Court in the case of Jagbir Singh Vs. State(NCT of Delhi) reported in AIR 2019 SC 4321 which reads as under: “19. But when a declaration is made, either oral or in writing, by a person whose death is imminent, the principle attributed to Mathew Arnold that “truth sits upon the lips of a dying man” and no man will go to meet his maker with falsehood in his mouth will come into play. The principles relating to dying declaration are no longer res integra and it would be apposite that we refer to the decision of this Court in Paniben (Smt) v. State of Gujarat wherein the concepts are summed up as follows: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. The principles relating to dying declaration are no longer res integra and it would be apposite that we refer to the decision of this Court in Paniben (Smt) v. State of Gujarat wherein the concepts are summed up as follows: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [ (1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764 ] ) 2 (1992) 2 SCC 474 22 (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [ (1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416 ] ; Ramawati Devi v. State of Bihar [ (1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164 ] ). (iii) This 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 opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [ (1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994 ] ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [ (1974) 4 SCC 264 : 1974 SCC (Cri) 426] ) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021 ] (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [ (1981) 2 SCC 654 : 1981 SCC (Cri) 581]) (vii) Merely because a dying declaration does not contain the details 23 **as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617 ]) (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617 ]) (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar[1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505 ]) (ix) Normally the court in order to satisfy whether 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 this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912 ]) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [ (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519 ])” Also, in paragraph 19, it was held as follows: “19. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declarations made by the deceased Bai Kanta. This Court in Mohanlal Gangaram Gehani v. State of Maharashtra [ (1982) 1 SCC 700 : 1982 SCC (Cri) 334 : AIR 1982 SC 839 ] held: “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 declarations could be held to be trust worthy and reliable, they have to be accepted.” The problem of multiple dying declarations has engaged the attention of this Court. 20. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, this Court held as follows: “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. 20. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, this Court held as follows: “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. (1993) 2 SCC 684 25 Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinise all the dying declarations 26 to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same…” ** 23. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same…” ** 23. In Amol Singh v. State of M.P., the High Court rejected the plea on the basis that there being more than one dying declaration and on the basis that the extent of difference between the two declarations was insignificant: “13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. ** 29. In the second dying declaration, deceased had stated that she was burnt by her in-laws. It was stated that her father-in-law, mother-in-law and sister-in-law poured oil on her and burnt her. She further stated that her husband was not with her but in the next sentence, she stated that there were four. The fourth person was her husband. She further stated that they had stated that unless she made a wrong statement, they would not take her to the hospital. It was thereafter that she made a third declaration. The Court went on to hold as follows: “17. In the present case, the first dying declaration was recorded on 18-7-1994 by ASI Hakim Singh (DW 1). The victim did not name any of the accused persons 35 and said that it was a case of an accident. However, in the statement before the court, Hakim Singh (DW 1) specifically deposed that he noted that the declaring was under pressure and at the time of recording of the dying declaration, her mother-in-law was present with her. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW7) on 20-7-1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW7) on 20-7-1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri (PW 8) on 22-7-1994. The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat. The second dying declaration was more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. Mere fact that it 36 was contrary to the first declaration would not make it untrue. The oral dying declaration made to the uncle is consistent with the second dying declaration implicating the accused persons stating about their involvement in the commission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement.” (Emphasis supplied) 30. A survey of the decisions would show that the principles can be culled out as follows: (a). Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court; (b). If there is nothing suspicious about the declaration, no corroboration may be necessary; (c). No doubt, the court must be satisfied that there is no tutoring or prompting; (d). The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. If there is nothing suspicious about the declaration, no corroboration may be necessary; (c). No doubt, the court must be satisfied that there is no tutoring or prompting; (d). The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration; e. Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established; (f). However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable. (g). In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable; (h). The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two. (i). In the third scenario, what is the duty of the court? In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two. (i). In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon? OUR CONCLUSION ON MULTIPLE DYING DECLARATION 31. We would think that on a conspectus of the law as laid down by this court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relived of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.” 22. Considering the above discussion as regards to the dying declaration and the ratio laid down in the Supreme Court judgments in this case following facts emerge: (a) There are six dying declarations which are consistent with each other. (b) Each dying declarations are supporting with each-other as regards to the facts of this case. (c) There is no prejudice shown against the doctors who have recorded the dying declarations. (b) Each dying declarations are supporting with each-other as regards to the facts of this case. (c) There is no prejudice shown against the doctors who have recorded the dying declarations. (d) The defence has not shown any prejudice against the Executive Magistrate and the police personnel who has recorded the dying declaration under Section 161 of IPC. (e) Facts of the dying declaration and the history given by the patient is supported by the hostile witnesses ie, the husband of the deceased. (f) Out of six dying declarations two written dying declaration includes the thumb impression of the deceased was taken and rest of the dying declarations were recorded by the doctors in the form of history. (g) All the dying declarations has recorded about the situations which has resulted to cause her death. 23. Considering the dying declaration which are consistent as regards to the fact of the case and the instigation made by the respondent-accused and thereby suicide is committed by the deceased. The prosecution has established the ingredients of the offence under Section 306 and 509 of IPC, that the deceased has committed suicide for which the appellant has abetted such suicide. This Court is of the view that the abatement of suicide is proved by the prosecution beyond any reasonable doubt. Hence, the appeal is required to be allowed hence the following order is passed. :FINAL ORDER: (I) The present acquittal appeal No. 397/2008 filed by the State is hereby allowed. (II) The impugned order dated 15.05.2007 passed by the learned Addl. Sessions Judge and Presiding Officer, Fast Traack Court no.2, Junagadh in Sessions Case No. 72/2006 is hereby set aside. (III) The appellant accused is convicted for the offences punishable under Sections 306 and 509 of the IPC and the appellant is sentenced to undergo Seven(7) years rigorous imprisonment and to pay fine of Rs.50,000/-(Rupees Fifty Thousand Only), in default he has to undergo one year simple imprisonment for the offence under section 306 of IPC. (IV) No separate sentence is imposed for the offences punishable under Section 509 of the IPC. (V) The accused is entitled to set off for a period of detention already undergone during the investigation and trial. (VI) Out of the fine paid by the accused, an amount of Rs.40,000/-(Rupees Forty Thousand Only) be paid to the children of the deceased under section 357 of the Code. (V) The accused is entitled to set off for a period of detention already undergone during the investigation and trial. (VI) Out of the fine paid by the accused, an amount of Rs.40,000/-(Rupees Forty Thousand Only) be paid to the children of the deceased under section 357 of the Code. (VII) Bail bond of the appellant accused stand cancelled and appellant be taken into custody to undergo for remaining sentence. (VIII) The appellant shall surrender within 45 days from today, failing which trial court shall issue non-bailable warrant to proceed for execution of sentence in accordance with law. (IX) Registry is directed to send copy of judgment to the concerned trial Court for certification under Section 388 of the Code. (X) Record and proceedings be sent back to the Court concerned forthwith”