JUDGMENT : Sameer Jain, J. 1. The present appeal has been preferred by the appellant against the judgment and order dated 15.11.2018/16.11.2018 passed by Additional Sessions Judge/FTC I, Deoria in Sessions Trial No. 374 of 2014 by which learned trial court convicted the appellant under Section 302 read with 120B IPC and punished her with imprisonment for life and a fine of Rs.10,000/-(Rs.Ten Thousand) with a default sentence of six months rigours imprisonment. She was, however, acquitted of the charge for offences under Sections 147, 452, 326, 149 and 376 IPC. 2. Prosecution story in nutshell is that on 1.4.2014 at about 12.10 AM, PW-1 Azhar Ali, the informant of the case, lodged an FIR against appellant Sarwari and four others under Sections 307, 326, 376, 120B, 147 and 452 IPC at Police Station Salempur, District Deoria vide Case Crime No. 478 of 2014. As per FIR informant's (PW-1's) niece Ayesha Khatoon (the deceased) was residing with him for the last about one and half years after the death of her parents. Co-accused Guddan S/o Islam developed illicit relations with Ayesha Khatoon and exploited her. When Ayesha Khatoon asked co-accused Guddan to marry her, Guddan refused; upon which, Ayesha warned Guddan that if he will not perform marriage with her then she will inform the Police. In that background, it is alleged, on 27.3.2014, at about 2:00 PM (14 hours), co-accused Guddan, his father Islam; his uncles Abdul; Jabbar and Riyaz; and his mother Sarwari (appellant) entered the house of the informant (PW-1) and set the deceased ablaze after pouring kerosene oil on her. Immediately after the incident Ayesha Khatoon (the deceased) was rushed to Primary Health Centre, Salempur where Doctor referred her to the District Hospital, Deoria where she was fighting for her life. 3. As per prosecution, the statement of injured Ayesha Khattoon was recorded by Naib Tehsildar on 1.4.2014 (Ext.Ka-7). Injured Ayesha Khatoon succumbed to her burn injuries on 3.4.2014 at about 3.30 AM. On the information of her death sent by the Hospital, inquest proceeding was conducted on 3.4.2014. Thereafter, on 3.4.2014 her post mortem was conducted. As per post mortem report (Ext.Ka.8), Ayesha Khattoon died due to septicaemic shock as a result of ante mortem burn injuries. 4. Injured Ayesha Khatoon succumbed to her burn injuries on 3.4.2014 at about 3.30 AM. On the information of her death sent by the Hospital, inquest proceeding was conducted on 3.4.2014. Thereafter, on 3.4.2014 her post mortem was conducted. As per post mortem report (Ext.Ka.8), Ayesha Khattoon died due to septicaemic shock as a result of ante mortem burn injuries. 4. A perusal of the post mortem report (Ext.Ka.8) shows that the deceased Ayesha Khatoon sustained superficial to deep burn all over the body except lower part of leg and sole (around 92%). After investigation, charge sheet was submitted against the appellant and four others under Sections 147, 307, 326, 302, 376, 452 and 120B IPC (Ext. Ka-16). 5. After submission of charge sheet case was committed to the court of session. On 12.1.2015 charges were framed against appellant and four other co-accused persons under Sections 147, 452, 326/149, 376 and 302 IPC. Appellant and other co-accused refused to plead guilty and claimed trial. 6. During trial, prosecution examined Azhar Ali, informant (PW-1); Shabana Khatoon (PW-2); Abdul Aziz (PW-3); Ali Hasan (PW-4); Mustaq Ahmad (PW-5); Vinod Singh (PW-6); Zarina Khatoon (PW-7); Zainul Abdeen (PW-8); Dr. Alpana Rani Gupta (PW9); Constable Nikita Singh (PW-10); Hadish Ahmad (PW11); Mithlesh Kumar Tripathi, Naib Tehsildar (PW-12); SHO (Retd.) Ram Autar Yadav (PW-14); SI (Retd.) Uma Shanker Mishra (PW-15); Meraj Alam alias Meraj Rai (PW-16); Vijendra Bahadur Singh (PW-17) (Retired Inspector); and Dr. Surendra Ram (PW-18). Out of total 18 prosecution witnesses, five witnesses are witnesses of fact, namely, Azhar Ali (PW-1)(informant); Shabana Khatoon (PW-2)(wife of PW-1); Zarina Khatoon (PW-7) (sister of deceased); Hadish Ahmad (PW-7) (uncle of deceased) and Meraj Ahmad @ Meraj Rai (PW-16) (brother-in-law) (Bahnoi) of deceased Ayesha Khatoon. Rest of them are formal witnesses. 7. After recording the statement of prosecution witnesses, statement of accused persons including appellant Sarwari was recorded under Section 313 Cr.P.C. by the trial court. 8. After perusing the entire evidence on record, learned trial court convicted the appellant under Section 302 IPC read with 120B IPC. Rest of the accused persons were acquitted of the charges. One co-accused Gudiya (not charge-sheeted) was summoned under Section 319 Cr.P.C and her trial was separated on 9.10.2018. Her trial is still pending. 9. We have heard Smt. Archana Singh, learned counsel for the appellant and Sri Gaurav Pratap Singh, learned Brief Holder for the State. 10. Rest of the accused persons were acquitted of the charges. One co-accused Gudiya (not charge-sheeted) was summoned under Section 319 Cr.P.C and her trial was separated on 9.10.2018. Her trial is still pending. 9. We have heard Smt. Archana Singh, learned counsel for the appellant and Sri Gaurav Pratap Singh, learned Brief Holder for the State. 10. Learned counsel for the appellant submitted that during investigation all the witnesses of fact including the informant (PW-1) have turned hostile and they did not support the prosecution case. She further contended that all the prosecution witnesses clearly stated that deceased Ayesha Khatoon desired immediate marriage with co-accused Guddan i.e. son of the appellant (Sarwari), but due to weak economic condition co-accused Guddan and his family members including the appellant wanted that the marriage be performed after one year and only due to this reason she committed suicide by setting herself ablaze after pouring kerosene oil. 11. Learned counsel for the appellant further contended that PW-1 Azhar Ali clearly stated in his statement that he did not himself write the FIR. The FIR was typed by some villagers and he had put his thumb impression on it. PW-1 and other witnesses including PW-2 Shabana Khatoon wife of PW-1 specifically denied their statement recorded under Section 161 Cr.P.C. during investigation. 12. Learned counsel for the appellant also argued that the dying declaration (Ext.Ka-7) recorded by Naib Tehsildar also does not inspire confidence as it is contrary to the surrounding circumstances as well as contrary to the statement of prosecution witnesses. She further contended that there is no endorsement of Doctor that she was fit to give dying declaration and further before recording her statement, PW-12, Mithlesh Kumar Tripathi, Naib Tehsildar also failed to record his satisfaction as to whether the deceased Ayeshya Khatoon was in a fit state of mind to give her statement or not. 13. Learned counsel for the appellant (Sarwari) submitted that the conviction of the appellant in the present case is solely based on the dying declaration of deceased Ayesha Khatoon and as dying declaration recorded by Naib Tehsildar (PW-12) does not inspire confidence, therefore, conviction of appellant Sarwari cannot be sustained and the impugned order of conviction is liable to be set-aside. 14. 14. Per contra, Sri Gaurav Pratap Singh, learned Brief Holder for the State, contended that prosecution case cannot be discarded merely on the ground that the prosecution witnesses turned hostile and did not support the prosecution version during trial. As the FIR clearly made allegation against the appellant and all the prosecution witnesses of fact including PW-1 Azhar Ali; PW-2 Shabana Kahtoon; PW-7 Zarina Khatoon (sister of the deceased); PW-11 Hadish Ahmad and PW16 Meraj Alam @ Meraj Rai clearly stated that deceased Ayesha Khatoon loved Guddan, son of the appellant, the twist in their testimony, under pressure, would not defeat the dying declaration. 15. Learned counsel for the State further pointed out that the post mortem report clearly shows that the deceased died due to burn injuries and the dying declaration (Ext. Ka.-7) recorded by Naib Tehsildar (PW-12) clearly and beyond reasonable doubt proved that the appellant Sarwari along with co-accused set the deceased Ayesha Khatoon on fire, which is consistent with the statements recorded under Section 161 Cr.P.C. during investigation by the Investigating Officer, therefore, the appellant Sarwari has been justifiably convicted and the present appeal filed by her is liable to be dismissed. 16. Having noticed the rival submissions and having perused the entire record of the case carefully, it would be appropriate to notice briefly the deposition of prosecution witnesses. 17. PW-1 Azhar (informant) in his statement stated that co-accused Guddan is his neighbour. Appellant and other co-accused persons named in the FIR did not set the deceased (Ayesha Khatoon) on fire but the deceased (Ayesha Khatoon) committed suicide by pouring kerosene oil on herself and setting herself on fire due to extreme frustration because the accused persons wanted to defer her marriage with Guddan by one year; whereas, the deceased (Ayesha Khatoon) wanted immediate marriage. Prosecution declared this witness hostile. In his cross-examination, PW-1 denied the version of the FIR and stated that the FIR was typed by some villagers and he put his signature on the typed paper on the instructions of “Daroga Ji”. He also denied his statement recorded by the Investigating Officer during investigation. Prosecution declared this witness hostile. In his cross-examination, PW-1 denied the version of the FIR and stated that the FIR was typed by some villagers and he put his signature on the typed paper on the instructions of “Daroga Ji”. He also denied his statement recorded by the Investigating Officer during investigation. In the cross-examination, PW-1 further stated that Ayesha Khatoon (the deceased) very often threatened that if her marriage was not performed with Guddan, she will commit suicide by burning herself and if she remains alive then she will implicate Guddan; appellant and other family members in such a manner that they will remain in Jail throughout their life. He further stated that at the time of incident the appellant Sarwari and Gudia (the sister of co-accused Guddan) were not present at their house and they had gone to their relatives home. In his statement PW-1 stated that at the time of incident he was not present at the place of incident. 18. PW-2 Shabana Khatoon is the wife of informant (PW-1 Azhar Ali) and is the maternal aunt of deceased (Ayesha Khatoon). She also denied the version of FIR and her statement recorded under Section 161 Cr.P.C. and stated that the appellant and other co-accused persons neither entered her house nor they ablazed Ayesha Khatoon by pouring kerosene oil. This witness also reiterated the fact that deceased (Ayesha Khatoon) herself poured kerosene oil on her and ablazed herself due to frustration that the appellant and other coaccused persons wanted to defer her marriage with co-accused Guddan by one year; whereas, she wanted immediate marriage. This witness was also declared hostile by prosecution. 19. In her cross-examination, PW-2 stated that deceased Ayesha Khatoon was a very obstinate girl; she loved co-accused Guddan and wanted immediate marriage with him but appellant and other family members due to weak economic condition did not want to perform marriage immediately. They wanted the marriage to be solemnized after one year. 20. PW-2 in her cross-examination also stated that deceased Ayesha Khatoon often use to tell that if her marriage is not immediately performed with Guddan then she will commit suicide by burning herself and if she remains alive then she will implicate the entire family of Guddan including the appellant. They wanted the marriage to be solemnized after one year. 20. PW-2 in her cross-examination also stated that deceased Ayesha Khatoon often use to tell that if her marriage is not immediately performed with Guddan then she will commit suicide by burning herself and if she remains alive then she will implicate the entire family of Guddan including the appellant. PW-2, Shabana Khatoon further stated that deceased Ayesha Khatoon bore a grudge mainly against appellant and Gudiya (sister of co-accused Guddan) and addressed them as “Nagin”. According to her, appellant and Gudiya were the main hurdle in her marriage with Guddan. She further stated that at the time of incident the appellant and Gudiya were not present at their house as they had gone to the house of their relatives. PW-2 stated that she was not present in the house at the time of incident. The other family members also were out of their house. 21. Witnesses Abdul Aziz and Ali Hasan have been examined as PW-3 and PW-4 respectively. Both these witnesses are witnesses of recovery. Prosecution produced them to prove the recovery of burnt clothes of the deceased, which were allegedly recovered from the spot. Both PW-3 and PW-4 stated before the trial court that no recovery of any clothes were made in their presence, prosecution declared both of them hostile. 22. PW-5 Mustaq Ahmad, PW-6 Vinod Singh and PW-8 Zainul Abdeen are witnesses of inquest report (Ext.Ka.3). 23. PW-7, Zarina Khatoon, elder sister of the deceased (Ayesha Khatoon), although she was not at the spot at the time of incident but stated that her sister (deceased Ayesha Khatoon) wanted immediate marriage with co-accused Guddan, whereas, the appellant and her family members were not ready for immediate marriage, therefore, her sister Ayesha Khatoon committed suicide. This witness in her cross-examination also stated the same fact that her sister deceased (Ayesha Khatoon) used to state that if her marriage would not be performed immediately with co-accused Guddan then she will commit suicide by burning herself and if she remains alive then she will implicate the entire family of co-accused Guddan. This witness PW-7 also stated the same version as given by PW-2 that her sister deceased Ayesha Khatoon was very annoyed with appellant and Gudiya(sister of co-accused Guddan). This witness also denied her statement recorded under Section 161 Cr.P.C. during investigation. 24. PW-9 is Dr. Alpana Rani Gupta. This witness PW-7 also stated the same version as given by PW-2 that her sister deceased Ayesha Khatoon was very annoyed with appellant and Gudiya(sister of co-accused Guddan). This witness also denied her statement recorded under Section 161 Cr.P.C. during investigation. 24. PW-9 is Dr. Alpana Rani Gupta. She did internal examination of injured Ayesha Khatoon (since deceased) on 1.4.2014 and found her hymen old torn. 25. She proved the medical report dated 1.4.2014 of Ayesha Khatoon as Ext.Ka-4. 26. Constable Nikita Singh has been examined as PW 10. In her presence, Ayesha Khatoon was medically examined by Dr. Alpana Rani Gupta (PW-9) and she also prepared chick FIR. 27. PW-11, Hadish Ahmad is the uncle of the deceased. He also repeated the same version as given by PW-1, PW-2 and PW-7 in respect of manner and reason of the incident. Although, this witness is one of the witnesses of inquest too, but in his statement he stated that at the time he had put his signature on the inquest report (Panchayatnama) of the deceased Ayesha Khatoon, the police did not inform him that the appellant and co-accused persons were involved in burning the deceased after pouring kerosene on her. This witness was also declared hostile by the prosecution. In his cross-examination, this witness supported the version of PW-1, PW-2, PW-7 and stated that deceased (Ayesha Khatoon) committed suicide only on account of frustration because of deferment of her marriage with co-accused Guddan; and that the appellant and her family members were not involved in her death. 28. PW-12 Mithlesh Kumar Tripathi, Naib Tehsildhar, who recorded dying declaration (Ext.Ka.7) of deceased Ayesha Khatoon on 1.4.2014. According to this witness on 1.4.2014 at about 4.20 AM he started recording dying declaration of the victim Ayesha Khatoon after the certificate of the Doctor that victim Ayesha Khatoon is conscious. PW-12 stated that dying declaration was concluded on 1.4.2014 at about 4:30 AM and after recording the statement, again, the Doctor endorsed that Ayesha Khatoon was fully conscious. He proved dying declaration dated 1.4.2014 as Ext. Ka-7. In his cross-examination, this witness stated that he cannot tell about the mental condition of victim Ayesha Khatoon and only the Doctor could tell about her mental condition. He proved dying declaration dated 1.4.2014 as Ext. Ka-7. In his cross-examination, this witness stated that he cannot tell about the mental condition of victim Ayesha Khatoon and only the Doctor could tell about her mental condition. One important point in respect of the statement of PW-12, Mithlesh Kumar Tripathi, Naib Tehsildar is that in his statement he did not state about the contents of the dying declaration. He only stated that on 1.4.2014 at about 4.20 AM he started recording dying declaration of victim Ayesha Khatoon, which was completed at about 4.30 AM. 29. PW-13 is Dr. Suresh Kumar, who conducted the post mortem of deceased Ayesha Khatoon on 3.4.2014. At the time of post mortem, PW-13 Dr. Suresh Kumar found following ante mortem injuries: “External injuries: (1) Superficial to deep burn all over the body except lower part of legs and sole (around 92%) and singing of hair present” 30. According to Dr. Suresh Kumar (PW-13) wounds of Ayesha Khatoon were filled with pus and she died due to septicaemic shock due to ante mortem burning. He proved the post mortem report as Ext.Ka-8. 31. PW-14 is SHO Ram Autar Yadav, second Investigating Officer of the case. He stated that on 1.4.2014 he was posted at Kotwali Salempur and after the transfer of earlier Investigating Officer, SHO Vijendra Bahadur Singh, he started investigation of the case. According to PW-14, he recorded the statement of Meraj Alam alias Meraj Rai (PW-16) on 23.6.2014 under Section 161 Cr.P.C. and after investigation he submitted charge sheet against appellant Sarwari, co-accused Guddan, Islam, Abdul Jabbar and Riyaz under Sections 147, 307, 326, 302, 376, 452 and 120-B IPC. He proved the charge sheet as Ext. Ka-16. In his cross-examination this witness stated except the accused persons nominated in the FIR, he did not find evidence against any other accused. 32. Perusal of the statement of this witness PW-14 shows he did not speak anything in respect of dying declaration (Ext.Ka.7) dated 1.4.2014 of deceased Ayesha Khatoon. It appears that during investigation and at the time of submission of charge sheet, he was not aware about the dying declaration (Ext.Ka.7) of deceased Ayesha Khatoon and, therefore, he did not submit charge sheet against co-accused Gudiya, who was nominated by deceased Ayesha Khatoon in her dying declaration dated 1.4.2014 (Ext.Ka.7) along with the appellant. 33. PW-15 is SI Uma Shanker Mishra (retired). 33. PW-15 is SI Uma Shanker Mishra (retired). This witness stated that on 3.4.2014 he was posted at Chowki of Police Station Sadar, Deoria and he received the information regarding death of deceased Ayesha Khatoon from District Hospital Deoria. On information he prepared inquest report and sent the body of deceased Ayesha Khatoon for post mortem. He proved the inquest report dated 3.4.2014 as Ext.Ka.3. In his cross-examination, he stated that at the time of inquest proceeding, no case was registered at Police Station Kotwali Deoria in respect of death of deceased Ayesha Khatoon. This related to Police Station Salempur. 34. PW-16 Meraj Alam @ Meraj Rai is the brother-in-law (Bahnoi) of the deceased (Ayesha Khatoon) and husband of PW-7 (Zarina Khatoon). This witness was admittedly not present at the spot. He is resident of District Gopalganj (Bihar). In his examination-in-chief he stated that on 27.3.2014 Azhar Ali (PW-1) informed him on phone that his neighbour i.e. appellant and her family members ablazed Ayesha Khatoon and that she is being taken to Hospital. On this information he arrived at Deoria District Hospital in the night at about 10:00 PM along with his wife Zarina Khatoon (PW-7). This witness stated that deceased Ayesha Khatoon informed him that with regard to the incient she has already narrated the entire facts to the Investigating Officer. In his cross-examination, this witness did not support his previous statement given in the examination-in-chief and stated that deceased (Ayesha Khatoon) in the Hospital told him that she committed suicide because her marriage was not being performed immediately with co-accused Guddan. In his cross-examination this witness further stated that deceased (Ayesha Khatoon) did not inform him that appellant and accused persons ablazed her by pouring kerosene oil. PW-16 also stated that when he met Ayesha Khatoon, one day before her death she was regretting that she gave her statement against the appellant and co-accused Gudiya in anger. 35. PW-17 is Vijendra Bahadur Singh (retired Inspector). He is first Investigating Officer of the case. In his presence, case was registered on 1.4.2014. He recorded the statement of Constable Nikita Singh, who prepared chick FIR, informant Azhar Ali (PW-1) and injured victim Ayesha Khatoon. This witness stated that after recording the statement of informant and injured victim, he sent a report to Chief Medical Officer and Naib Tehsildar,Sadar, Mithlesh Kumar Tripathi for recording dying declaration of victim Ayesha Khatoon. He recorded the statement of Constable Nikita Singh, who prepared chick FIR, informant Azhar Ali (PW-1) and injured victim Ayesha Khatoon. This witness stated that after recording the statement of informant and injured victim, he sent a report to Chief Medical Officer and Naib Tehsildar,Sadar, Mithlesh Kumar Tripathi for recording dying declaration of victim Ayesha Khatoon. PW.17 the first Investigating Officer stated that deceased Ayesha Khatoon informed him that co-accused Guddan, Islam, Abdul Jabbar, Riyaz and mother of Guddan, namely, Sarwari (appellant) wanted to kill her by pouring kerosene oil and had put her on fire. 36. PW-17 in his statement did not state at which time he recorded the statement of injured victim Ayesha Khatoon on 1.4.2014. 37. We notice an important feature in the statement of PW-17, i.e. first Investigating Officer Vijendra Kumar Singh, which is that he did not prove the statement of Ayesha Khatoon, alleged to have been recorded by him during investigation under Section 161 Cr.P.C. on 1.4.2014. Neither any exhibit was put on the statement of Ayesha Khatoon recorded under Section 161 Cr.P.C. nor PW-17 stated that before recording the statement of deceased Ayesha Khatoon, he obtained a certificate of fitness from Doctor. 38. During investigation this witness made arrest of appellant and other co-accused persons and also prepared site plan and did spot inspection. He also recovered burnt clothes of deceased Ayesha Khatoon along with one canister of kerosene oil in the presence of Ali Hasan (PW-4) and Abdul Aziz (PW-3). Although both these witnesses (PW-3 and PW-4) denied the alleged recovery of clothes and canister of kerosene oil in their presence. PW-17, during investigation recorded the statement of PW-2 Shabana Khatoon; PW-3 Abdul Aziz; PW-4 Ali Hasan; PW-6 Vinod Singh; PW-7 Zarina Khatoon; and PW-8 Zainul Abdeen. In his cross-examination, PW-17 stated that during investigation he did not record the statement of PW-12 Mithlesh Kumar Tripathi, who recorded the dying declaration, PW-13 Dr. Suresh Kumar and PW-16 Meraj Alam alias Meraj Rai. He further stated in his cross-examination that he did not peruse the dying declaration (Ext.Ka.7) of deceased Ayesha Khatoon, which was recorded by Naib Tehsildar Mithlesh Kumar Tripathi (PW-12). He further stated that during investigation he did not record the statement of the Doctor who provided the certificate before recording the dying declaration. 39. He further stated in his cross-examination that he did not peruse the dying declaration (Ext.Ka.7) of deceased Ayesha Khatoon, which was recorded by Naib Tehsildar Mithlesh Kumar Tripathi (PW-12). He further stated that during investigation he did not record the statement of the Doctor who provided the certificate before recording the dying declaration. 39. The last witness of the prosecution is PW-18, Dr.Surendra Ram, who was present on 1.4.2014 as Emergency Medical Officer in District Hospital, Deoria and in his presence the dying declaration (Ext. Ka.7) of deceased Ayesha Khatoon was recorded on 1.4.2014. 40. This witness stated that before the dying declaration, he endorsed that the patient is conscious and such endorsement was made again, after completion of dying declaration. He proved his signature on the documents Ext.Ka-20 and Ext. Ka-21. In his cross-examination, PW-18 stated that he had only endorsed on the dying declaration that the patient was conscious and did not make any endorsement in the dying declaration in respect of her orientation. 41. After recording the statement of prosecution witnesses, trial court recorded the statement of appellant and co-accused persons under Section 313 Cr.P.C. 42. Appellant Sarwari in her statement recorded under Section 313 Cr.P.C. denied all the allegations and in defence she specifically stated that she is innocent. She stated that the deceased Ayesha Khatoon loved her son Guddan (co-accused) and wanted an immediate marriage but due to weak economic condition she told her to keep patience for one to two years and as soon as their condition would improve, her marriage will be performed with Guddan but the deceased Ayesha Khatoon used to threatened if marriage is not immediately solemnized, then she will commit suicide and entire family will be in Jail. Appellant in her answer to question no.22, made a statement, under Section 313 Cr.P.C., that the deceased used to say that in her marriage, the appellant is the main hurdle. She further stated that she never burnt her. Trial court findings: 43. Learned trial court found that the dying declaration (Ext.Ka.7)recorded by Naib Tehsildar, Mithlesh Kumar Tripathi was cogent and reliable piece of evidence and on its basis, convicted the appellant and acquitted rest of the accused persons, namely, Guddan, Islam, Abdul Jabbar and Riyaz. Analysis: 44. She further stated that she never burnt her. Trial court findings: 43. Learned trial court found that the dying declaration (Ext.Ka.7)recorded by Naib Tehsildar, Mithlesh Kumar Tripathi was cogent and reliable piece of evidence and on its basis, convicted the appellant and acquitted rest of the accused persons, namely, Guddan, Islam, Abdul Jabbar and Riyaz. Analysis: 44. In the present case all the five witnesses of facts, namely, Azhar Ali, informant (PW.1); his wife Shabana Khatoon(PW.2); Zarina Khatoon (PW7); Hadish Ahmad (PW-11); Meraj Alam alias Meraj Rai (PW-16) have turned hostile. They did not support the prosecution version. PW.1 Azhar Ali even denied the version of FIR. 45. The alleged dying declaration recorded by the Investigating Officer (PW-17) Vijendra Bahadur Singh does not inspire confidence as it was neither proved by him from the case diary nor he tried to procure the certificate of Doctor in respect of fitness of the deceased (Ayesha Khatoon). Further, he did not mention the time of recording such statement of deceased (Ayesha Khatoon). 46. Therefore, the only evidence that remains in the present case is the dying declaration (Ext. Ka.7) recorded by Naib Tehsildar (PW-12). 47. We have examined the admissibility and reliability of the dying declaration (Ext. Ka.7). 48. It is settled legal position that a dying declaration can become the sole basis of conviction if it is reliable and the deceased at the time of giving statement is in a fit state of mind. If it is reliable and cogent, then it may be relied even without corroboration. But it is also equally true that as its giver is not present for cross-examination, it must be judged, appreciated and weighed in the light of surrounding and attending circumstances and its weight determined by reference to the principle governing the weighing of evidence. 49. The Apex Court in the case of State of Maharashtra Vs. Hemant Kawadu Chauriwal and others, reported in (2015) 17 SCC 598, in paragraph-8, observed as under: “8. In our considered opinion, two main arguments have been advanced before this Court and we shall now examine each and every contention in light of the arguments adduced before us. It is a settled law that dying declaration can be the sole basis of conviction and it does not require any corroboration. In our considered opinion, two main arguments have been advanced before this Court and we shall now examine each and every contention in light of the arguments adduced before us. It is a settled law that dying declaration can be the sole basis of conviction and it does not require any corroboration. But it is equally true that dying declaration goes against the cardinal principle of law that 'evidence must be direct'. Thus, dying declaration must be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. Similarly the Apex Court in the case of Bhajju alias Karan Singh Vs. State of Madhya Pradesh, reported in (2012) 4 SCC 327 , in paragraph-12, observed as under: “12. The law is well-settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction.” 50. From the perusal of above noted judgments of the Hon'ble Apex Court, it is very much apparent that the dying declaration has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. 51. From the perusal of above noted judgments of the Hon'ble Apex Court, it is very much apparent that the dying declaration has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. 51. In the present case, the surrounding circumstances, as narrated by the witnesses of facts, demonstrated that the deceased (Ayesha Khatoon) was an obstinate girl and she herself committed suicide by pouring kerosene oil upon her, as she wanted immediate marriage with the son of the appellant, namely, Guddan, whereas, the accused persons were not ready for immediate marriage as their economic condition was weak and they wanted that the marriage may be performed after one year. All the witnesses clearly stated that the deceased (Ayesha Khatoon) bore a grudge against the appellant Sarwari and Gudiya (sister of co-accused Guddan), as according to her, both were the main hurdle in her immediate marriage with co-accused Guddan. 52. PW-16 Meraj Alam @ Meraj Rai specifically stated in his cross-examination that the deceased Ayesha Khatoon informed him that she, in deep anger, implicated the appellant and other co-accused Gudiya. Thus, the surrounding circumstances of the present case do not support the dying declaration recorded on 1.4.2014 by Naib Tehsildar, Mithlesh Kumar Tripathi (PW-12) and, therefore, without corroboration, it is difficult to base a conviction solely on this dying declaration. Moreso, when all the prosecution witnesses of fact turned hostile and did not support the dying declaration and also disclosed the reason why the deceased had implicated the appellant and co-accused Gudiya in her dying declaration. As, in the present case, except the dying declaration (Ext.Ka.7) there is no reliable and cogent evidence on record, it is unsafe to rely on such uncorroborated dying declaration. 53. Further, during entire investigation none of the Investigating Officers noticed the dying declaration(Ext.Ka.7), dated 1.4.2014, recorded by PW12, Mithlesh Kumar Tripathi, Naib Tehsildar. Further, during investigation, the statement of Naib Tehsildar (PW-12) and Surendra Ram (PW-18), who endorsed the consciousness of Ayesha Khatoon at the time of recording the dying declaration (Ext.Ka.7), was not recorded. ` It appears that during entire investigation both the Investigating Officers were not even aware about the dying declaration (Ext.Ka.7). This fact casts a serious doubt on the authenticity and reliability of the dying declaration (Ext.Ka-7) recorded by Naib Tehsildar (PW12). ` It appears that during entire investigation both the Investigating Officers were not even aware about the dying declaration (Ext.Ka.7). This fact casts a serious doubt on the authenticity and reliability of the dying declaration (Ext.Ka-7) recorded by Naib Tehsildar (PW12). Therefore, in our considered view, dying declaration (Ext.Ka.7), recorded by Naib Tehsildar (PW12), is not such on which alone, conviction could be recorded. 54. Another important feature of the present case is that prosecution failed to examine Shaukat Ali, maternal grandfather (Nana) of deceased (Ayasha Khatoon), who admitted her in the Hospital. Even during investigation, the Investigating Officer did not record his statement. In our view, Shaukat Ali was a material witness of fact and his non-examination deprives the court of having the best evidence to have a glimpse at the genesis of the incident. 55. In the case of Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others, reported in (2001) 6 SCC 145 the Supreme Court in para-19 observed as follows: “It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case.” 56. In Ritesh Chakarvarti Vs. State of M.P. reported in (2006) 12 SCC 321 the Supreme Court after examining illustration (g) of Section 114 of the Indian Evidence Act held that an adverse inference could be drawn for non-examination of material witnesses. As, in our opinion, Shaukat Ali, maternal grandfather (nana) of deceased Ayesha Khatoon was a material witness, who not examined, an adverse inference can be drawn against the prosecution and in the absence of his evidence uncorroborated dying declaration(Ext.Ka.7) is not so much worthy as could form the basis of conviction even in absence of any other corroborative evidence. 57. At this stage, we may notice, the answer of the appellant to question no. 57. At this stage, we may notice, the answer of the appellant to question no. 23 recorded under Section 313 Cr.P.C. Question No. 23 and its answer are as follows: ^^iz'u uaŒ 23& D;k vkidks vkSj dqN dguk gS\ mŸkj %& eS funksZ"k gwW vk;'kk [kkrwu xqMqu ls izse djrh Fkh ?kVuk ds le; rRdky mlls 'kknh djus dh ftn ij vM+h Fkh eSa mldks le>k;k fd lky nks lky lcj djks vkfFkZd fLFkfr Bhd gksrs gh xqMqu ls rqEgkjh 'kknh djk nh tk;sxh exj vk;'kk dgrh Fkh fd rRdky 'kknh ugh gqbZ rks og vkx yxk dj vkRe gR;k dj ysxh ;k dksbZ Bksl dne mBk ysxh ftlls ifjokj dss yksx tsy dkaVsxs vkSj dgrh Fkh mldh 'kknh rRdky u gksus es lcls cMh ck/kk esa gwW bl ukrs og eq>es phM+h jgrh Fkh eSa mls u rks tyk;k u gh xyr O;ogkj fd;k vxj mlus dkssbZ C;ku fn;k gksxk rks ftn o izfr'kks/k dh Hkkouk ls >wBk fn;k gksxkA^^ 58. The answer of question no.23 clearly shows that the appellant has come with a clear and plausible explanation of her innocence which fits in with the scheme of events brought out in the prosecution evidence and also explains the reason why she was falsely implicated. Notably, Ayesha Khatoon loved Guddan, the son of appellant, and she wanted immediate marriage with Guddan and when the appellant tried to explain it to the deceased that their economic condition is not good and advised her to maintain patience for a year or two, the deceased got infuriated and used to consider the appellant as the main culprit for the delay in her marriage. This specific explanation offered by the appellant finds support from the statement of all witnesses of fact. The trial court while convicting the appellant completely failed to take note of the explanation offered by the appellant in her statement under Section 313 Cr.P.C. which was probable in the facts of the present case. 59. The Supreme Court in the case of Reena Hazarika Vs. State of Assam, reported in AIR 2018 SC 5361 , in paragraph-16 of the judgment, observed as follows: “16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. 59. The Supreme Court in the case of Reena Hazarika Vs. State of Assam, reported in AIR 2018 SC 5361 , in paragraph-16 of the judgment, observed as follows: “16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word ‘may’ cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.” 60. In the present case, as the appellant has come with a specific and plausible defence but the trial court did not consider it and without considering it convicted the appellant, in our considered opinion, the conviction of the appellant from this angle too, is unsustainable. 61. In view of the discussion made above, we are unable to accept the reasons given by the trial court in convicting the appellant in the present case. 61. In view of the discussion made above, we are unable to accept the reasons given by the trial court in convicting the appellant in the present case. On the contrary, we are of the considered view that the prosecution has failed to prove the guilt of appellant (Sarwari) beyond reasonable doubt. The incident does not appear to have happened in the manner stated by the prosecution and the appellant is entitled to the benefit of doubt. Consequently, the appellant is entitled to be acquitted of all the charges for which she was tried. 62. As a result, the appeal is allowed and the conviction order is hereby set-aside. The judgment and order of conviction as well as sentence recorded by the trial court is set aside. The appellant is acquitted of all the charges for which she has been tried. The appellant (Sarwari) is said to be in Jail, she shall be set at liberty forthwith, if not wanted in any other criminal case. The appellant (Sarwari) will fulfill the requirement of Section 437-A Cr.P.C. to the satisfaction of the trial court at the earliest. 63. Let a copy of this order/judgment and the original record of the lower court be transmitted to the trial court concerned forthwith for necessary information and compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.