JUDGMENT : Shree Chandrashekhar, J. On 26.04.2010, around 10.00 AM, Nilofer Praween @ Begam suffered burn injuries in her matrimonial home and at 15:00 PM her statement was recorded in the Burn Ward at RIMS, Ranchi by Tulsi Prasad, Sub-Inspector of Police, Bariatu P.S. He was posted at Camp PS, RIMS and after recording the statement of Nilofer Praween he has forwarded the report to the officer-in-charge of Doranda P.S for further action. On the basis of the statement of Nilofer Praween, a First Information Report was lodged against Md. Islam, Abul Hasan, Bablu Ansari, Imran Ansari, Roshan, Md. Mahmood and mother-in-law of Nilofer Praween under sections 498A, 307/34 IPC and 3/4 of Dowry Prohibition Act - Doranda P.S Case No. 155 of 2010 was lodged at 11:10 PM on 26.04.2010. Nilofer Praween has succumbed to the injuries on 01.05.2010 and, accordingly, the offence under section 304-B of the Penal Code, 1860 (in short, IPC) was added in the report vide order dated 03.06.2010. After the investigation a charge-sheet was laid against them and they have faced the trial on the charge of murder, causing dowry death of Nilofer Praween and for causing such harassment to her in connection to demand of dowry which constitutes an offence under section 3/4 of the Dowry Prohibition Act. In the trial the prosecution has examined eleven witnesses out of whom PW-5 is her cousin brother; PW-6 is her brother and; PW-7 is her father. The co-villager, namely, Inam Sarwar @ Raja was declared hostile and the other co-villagers, namely, Md. Taslim, Sarfuddin and Israiel Quiraishi have not supported the prosecution. PW-10, Dr. Chandrashekhar Prasad who has conducted the autopsy has noted that the burn injuries on Nilofer Praween were ante-mortem in nature and death was caused due to the burn injury and its complications. 2. In Sessions Trial Case No. 284 of 2011, the learned Sessions Judge has held that the statement of Nilofer Praween recorded on 26.04.2010 was admissible under section 32(1) of the Evidence Act and non-examination of Tulsi Prasad, S.I, and the doctor and nurse who have first attended her would not challenge the credibility of her statement. The evidence against the father-in-law, mother-in-law and other family members except Md. Islam @ Md. The evidence against the father-in-law, mother-in-law and other family members except Md. Islam @ Md. Islam Ansari and Bablu Ansari @ Bablu were not sufficient to hold them guilty under sections 304-B IPC, 498A/149 and 302/34 IPC, or section 3/4 of the Dowry Prohibition Act. Accordingly, Abul Hasan, Imran, Md. Mahmood and Haseena Khatoon were acquitted. Md. Islam Ansari who is the husband of Nilofer Praween and Bablu Ansari who is her brother-in-law have been found guilty for causing her dowry death. The learned Sessions Judge has held that the offence under section 498A IPC has also been proved against them. The plea of alibi set up by them was not found credible and Md. Islam Ansari and Md. Bablu Ansari, the appellants, have been convicted and sentenced to R.I for 14 years and a fine of Rs. 10,000/- each under section 304-B/34 IPC with a default stipulation that in default of payment of fine they shall undergo S.I for 6 months. For the offence under section 498A/34 IPC the appellants have been sentenced to R.I for 3 years and a fine of Rs. 2000/- each. 3. In a case based on circumstantial evidence, an inference of guilt can be justified only when all the incriminating circumstances are found to be incompatible with innocence of the accused and the circumstances from which an inference of guilt of an accused are drawn have to be proved beyond reasonable doubt. In Varan Chaudhary v. State of Rajasthan, (2011) 12 SCC 545 the Hon'ble Supreme Court has observed that: “25. It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused.” 4. The offence under section 304-B IPC has been inserted in the Penal Code, 1860 by way of Amendment Act, 1986. A corresponding amendment was made in the Indian Evidence Act, 1872 by which section 113-B was inserted to raise a presumption of dowry death. The offence under section 304-B IPC has been inserted in the Penal Code, 1860 by way of Amendment Act, 1986. A corresponding amendment was made in the Indian Evidence Act, 1872 by which section 113-B was inserted to raise a presumption of dowry death. The language employed in section 304-B IPC and section 113-B of the Evidence Act would reveal a common point of reference in both the provisions; the woman must have been “soon before her death” subjected to cruelty or harassment for or in connection with the demand of dowry. 5. In Sher Singh v. State of Haryana, (2015) 3 SCC 724 the Hon'ble Supreme Court has observed that section 113-B of the Evidence Act and section 304-B IPC were introduced simultaneously and, therefore, it must be assumed that Parliament intentionally used the word “deemed” in section 304-B to distinguish this offence from the others. Regarding use of the word “soon before her death” in section 304-B IPC it was observed that this expression shall be interpreted not in terms of just months or the years but as necessarily indicating that the demand of dowry should not be stale or aberration of the past. 6. The expression soon before her death is not capable of any precise definition and no strait-jacket formula can be evolved for arriving at a conclusion whether soon before her death a woman was subjected to harassment and torture in connection to demand of dowry - it depends on the facts of the case. In Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388 the Hon'ble Supreme Court has observed as under: “11……..Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.” 7. PW-1 has deposed in the Court that he reached the hospital about half an hour after Nilofer Praween was brought there. By that time she was not admitted in the hospital. At that time her brother-in-law and other members of the family were present there, they had brought her to the hospital for treatment. He has further stated that persons from parental side of Nilofer Praween came there after about 2½ hours. In his cross-examination he has claimed that he was present in the hospital and said that Nilofer Praween was not able to speak. He has further stated that her father and brother were talking on behalf of Nilofer Praween. PW-5, the cousin brother of Nilofer Praween has deposed in the Court that Nilofer Praween was married to Md. Islam Ansari on 24.03.2009. He has further stated that her father and brother were talking on behalf of Nilofer Praween. PW-5, the cousin brother of Nilofer Praween has deposed in the Court that Nilofer Praween was married to Md. Islam Ansari on 24.03.2009. She was set on fire on 26.04.2010 in her matrimonial home and she died on 01.05.2010 at RIMS. Nilofer Praween would tell him that she was harassed in connection to demand of dowry by her husband and his family members. He got an information about the incident from his uncle and reached RIMS at around 16:00 PM. Nilofer Praween recognised her and on seeing him started weeping. She was completely burnt, except her face. In his cross-examination he has stated that his statement was recorded by the police and admitted that in his statement under section 161 Cr.P.C he did not tell that when he reached the hospital Nilofer Praween recognised him and started crying. PW-6 is the brother of Nilofer Praween. He has stated that his sister lived in her matrimonial home, a demand of rupees one Lac was made by the accused persons and in connection to demand of dowry they started harassing and torturing her. He has stated that his sister was brought from her matrimonial home on 24.03.2010 and for about one month she stayed with him, when she would tell her miseries about demand of dowry. On 24.04.2010, Md. Islam called his sister and asked her to come back home else he would divorce her. On 25.04.2010, his father took Nilofer Praween to her matrimonial home and the accused persons abused his father. So, his sister asked the father to go back home. The next day at about 11:00 AM an information came from RIMS that Nilofer Praween has suffered burn injuries and she was admitted in the Burn Ward. He along with his father reached RIMS at 14:00 PM. There he has found his sister lying on the bed in burnt condition but she was in her senses. On enquiry she told him that at about 10:00 AM her husband and the family members committed Maarpit with her and were forcing her to leave the house and while resisting them she fell on the ground. Thereafter, Bablu Ansari brought kerosene oil and poured on her and her husband set her ablaze. On enquiry she told him that at about 10:00 AM her husband and the family members committed Maarpit with her and were forcing her to leave the house and while resisting them she fell on the ground. Thereafter, Bablu Ansari brought kerosene oil and poured on her and her husband set her ablaze. On hearing her shouts of Bachao-Bachao the neighbors came there, put off the fire and brought her in the hospital. In his cross-examination he has stated that before the marriage the accused persons did not ask for dowry and for the first time about three months after the marriage his sister told him that the accused persons were asking for rupees one Lac in dowry. She came to his house and told him about demand of dowry, but at that time he did not lodge a case and just persuaded her to live in her matrimonial home. He has further stated that his sister had informed him that her husband was threatening to divorce her. Regarding the incident of quarrel with his father on 25.04.2010, he has said that no report was lodged with the police. He has admitted that his father did not tell the police that Bablu Ansari poured kerosene oil on Nilofer Praween and her husband set her on fire. He has further admitted that he was also stating such facts for the first time in the Court. He has stated that at about 15:00 PM on 26.04.2010 the police has recorded statement of Nilofer Praween and at that time his father was also present there. He has denied a suggestion by the defence that his sister has died an accidental death. PW-7 is the father of Nilofer Praween. He has stated about marriage of his daughter with Md. Islam Ansari, demand of rupees one Lac and harassment and torture of his daughter at the hands of the accused persons in connection to demand of dowry. On 24.04.2010, Md. Islam Ansari called his daughter and asked her to come with her father and if she would not join him in the matrimonial home he would divorce her. He has taken his daughter to her matrimonial home at Manitola, Doranda on 25.04.2010 but at that time her father-in-law started quarreling with him. He came back home on 25.04.2010 after his daughter reassured him that she would be fine in her matrimonial home. He has taken his daughter to her matrimonial home at Manitola, Doranda on 25.04.2010 but at that time her father-in-law started quarreling with him. He came back home on 25.04.2010 after his daughter reassured him that she would be fine in her matrimonial home. The next day he received a call from RIMS that his daughter has suffered burn injury and she is admitted there. He has made calls to his relatives and gone to the hospital with his elder son; at about 14:00 PM he has reached the hospital. At that time his daughter was talking and she told him that since they were not paid rupees one Lac the accused persons were forcing her to leave the house. They committed Maarpit with her and in the process when she fell from the stairs Bablu Ansari poured kerosene oil on her and her husband set her ablaze. He has also stated that at about 15:00 PM the police has recorded the statement of Nilofer Praween and at the time when he has reached the hospital the accused persons were not there, rather his sister Punia and niece Sabida Khatoon were attending his daughter. He has identified his signature on the fardbeyan of Nilofer Praween and stated that his own statement was recorded by the police. In his cross-examination he has stated that any demand of dowry was not made at the time of the marriage and he does not know the reason why the accused persons were demanding rupees one Lac. He has stated that his daughter was covered with bandage, but her face was completely clean and her hands were also not bandaged. In his cross-examination he has denied a suggestion by the defence that when his daughter told him about the incident the doctor and nurse were present there. He has also denied the suggestion that his daughter has suffered accidental burn injuries and her husband and the family members have brought her to the hospital for treatment. Regarding thumb impression on the statement of her fardbeyan by Nilofer Praween, he has stated that at that time she could not hold the pen and, therefore, she has put her thumb impression. He has further admitted that he has not stated before the police that his daughter told him that all the accused persons have set her on fire. 8. He has further admitted that he has not stated before the police that his daughter told him that all the accused persons have set her on fire. 8. PW-5, PW-6 and PW-7 are closely related to Nilofer Praween and their evidence has been challenged on the ground of being partisan and they have been labelled by the defence as interested witnesses. In Nallabothu Venkaiah v. State of A.P, (2002) 7 SCC 117 the Hon'ble Supreme Court has indicated that testimony of a related witness is required to be scrutinized with a greater degree of care and caution. 9. Nilofer Praween has died within seven years of the marriage is not under challenge. The evidence of PW-5, PW-6 and PW-7 on demand of dowry and harassment to Nilofer Praween appears to be convincing. The evidence of PW-7 is sufficient to hold that the prosecution has proved that soon before her death Nilofer Praween was subjected to harassment and torture in connection to demand of dowry. He has stated about demand of rupees one Lac and harassment of his daughter. He was abused and manhandled on 25.04.2010 by the accused persons and this incident can be easily linked with the demand of dowry. The testimony of PW-5 and PW-6 on this issue is not the direct evidence, but it is corroborative evidence. 10. Now, this has to be examined whether she was burnt to death in furtherance of common intention of the appellants. 11. The dying declaration of Nilofer Praween is the main plank for the prosecution to prove the charges against the accused persons. The learned trial Judge has recorded that there are two sets of witnesses; the related witnesses have claimed that Nilofer Praween was conscious and gave her fardbeyan to Tulsi Prasad, Sub-Inspector of Police, Bariatu PS, while the neighbors of the appellants have stated that she was badly burnt and unable to speak. The learned trial Judge has observed as under: “In the light of above referred evidence and situation, the Court has two different way of evidence. In one hand, the nearby witnesses are indirectly supporting the defence and stated that the accused-persons were not involved in commission of occurrence and it was accidental death due to result of burn while the victim was putting fire in stove. In one hand, the nearby witnesses are indirectly supporting the defence and stated that the accused-persons were not involved in commission of occurrence and it was accidental death due to result of burn while the victim was putting fire in stove. In the other hand, A.S.I Tulsi Prasad and investigating officer including PW-5, 6 & 7 have stated that Nilofer Praveen was in a condition to speak and the statement (Fard Bayan) recorded by S.I. Tulsi Prasad is genuine and it was given in healthy state of mind without any compulsion. It has come in evidence that PW-1, 2, 3 & 4 are the persons who were reached at the place of occurrence just after the incident and stated that only the in-laws were present at the house and she was baldy injured and she was unable to speak. But the cousin brother Md. Sahid (PW-5), brother Md. Jahid (PW-6) and father Md. Safique (PW-7) have clearly narrated in their evidence that the face of Nilofer Praveen was unburnt and she was able to speak and narrated about the occurrence. The evidence of PW-5, 6 & 7 have been gathered from Nilofer Praveen as she stated before them in RIMS, Ranchi.” 12. The statement of Nilofer Praween recorded on 26.04.2010 at around 15:00 PM at RIMS, Ranchi is the foundation of the prosecution case against the appellants. She has stated that she was married to Md. Islam Ansari just a year ago and for about three months she was received well in her matrimonial home. Thereafter, her husband and the family members started harassing her; that they would say that she has brought insufficient dowry and; that they would torture her to bring rupees one Lac for starting a business. When she expressed inability of her father to pay more dowry her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law all would abuse her and sometimes commit Maarpit with her. On 15.03.2010 her father brought her back from her matrimonial home and on 25.04.2010 he took her back to her matrimonial home. At that time her husband and the family members abused her father and told him that they would not keep me in the house. When her father protested they became agitated and were ready to commit Maarpit with him. Afraid, her father thereafter went back home. At that time her husband and the family members abused her father and told him that they would not keep me in the house. When her father protested they became agitated and were ready to commit Maarpit with him. Afraid, her father thereafter went back home. She has stated that at about 10:00 AM the next day the family members conferred among themselves and then started abusing her. They hold her by hand and were trying to oust her from the house. In the process she fell on the ground and in the meantime Bablu Ansari brought kerosene oil and poured on her and her husband set her on fire. She started crying and shouting whereupon the neighbors came there and tried to put off the fire. They have brought her at RIMS, where she was admitted in the unit of Dr. J. Prasad. By the time her statement was recorded by Tulsi Prasad, S.I at RIMS, her father had arrived there. 13. Section 32 of the Indian Evidence Act provides that statement of relevant fact by a person who is dead or cannot be found, etc., is relevant. The dying declaration can be written or oral and any statement made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, which relates to cause of death is a relevant fact and admissible in evidence. Sub-section (1) to section 32 of the Indian Evidence Act explains that it is not necessary that at the time when the statements considered relevant under section 32 of the Act are made the person who has made such statement was under the expectation of death. It further provides that not only the statement relating to the cause of death but also any of the circumstances of the transaction which resulted in the death is a relevant fact in a case in which the cause of that person's death comes into question. It further provides that not only the statement relating to the cause of death but also any of the circumstances of the transaction which resulted in the death is a relevant fact in a case in which the cause of that person's death comes into question. A 4-Judges Bench of the Hon'ble Supreme Court has held in Moti Singh v. State of U.P., (1964) 1 SCR 688 as follows: “15……….Clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question………..” 14. An accused can be convicted solely on the basis of a dying declaration and it is not necessary that the dying declaration must be corroborated by other independent evidence. In Jaswant Singh v. State (Delhi Admn.), (1978) 4 SCC 85 the Hon'ble Supreme Court has observed that even on the basis of uncorroborated dying declaration conviction of an accused can be maintained. The law on the subject is fairly settled that the only requirement in law is that the dying declaration should be free from embellishment and inspires confidence of the Court. In Kundula Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684 the Hon'ble Supreme Court has observed that a statement made by a person on the verge of his death must be accorded a special sanctity as at that solemn moment the person is most unlikely to make any untrue statement. Such a statement called ‘the dying declaration’ becomes a very important and reliable piece of evidence, if the Court is satisfied that the dying declaration is true and free from any embellishment. In Uka Ram v. State of Rajasthan, (2001) 5 SCC 254 it was indicated that the Court must be satisfied about the trustworthiness and voluntary nature of the dying declaration and fitness of the mind of the deceased. 15. The reliability and trustworthiness of the dying declaration of Nilofer Praween would largely depend on whether she has died a homicidal or accidental death. 16. 15. The reliability and trustworthiness of the dying declaration of Nilofer Praween would largely depend on whether she has died a homicidal or accidental death. 16. Modi in his book “Medical Jurisprudence & Toxicology” (22nd edition) writes that in case of death by intense heat the brain, its meninges and the lungs are usually congested. In case of death caused by kerosene oil, petrol or some other combustible substance characteristic smell of that substance is distinctly found and there would be sooty blackening of the parts of the dead body. The post-mortem report of Nilofer Praween does not indicate presence of any sooty blackening on the dead body and no one has stated that he found the odour of kerosene oil from her body. On the contrary, PW-10 has stated in the cross-examination that he did not observe any smell from the dead body. He has found the brain, lungs and viscera congested and heart and bladder empty. Modi has written that burns produced by flame may or may not produce blisters, but singes of the hair, eye-brow and blackening of the skin is always present on the dead body. PW-10 has stated that the scalp hair of Nilofer Praween was singed. In accidental burn cases the victim makes all possible efforts to save herself which may leave evidence to show that the death was accidental. The person may raise alarm and try to escape. The burnt fingers of Nilofer Praween suggests struggle to put off the fire. PW-10 has observed burn injuries all over the body of Nilofer Praween except the back portion of chest, abdomen and her soles. In the opinion of the doctor, death was caused due to burn injury which was to the extent of 80% and its complications. In the dying declaration Nilofer Praween has stated that she raised cries and her neighbors came there and rushed her to the hospital. PW-6, the brother of Nilofer Praween has also deposed in the Court that his sister told him that when she raised cries the neighbors came to her house and put off the fire. The front portion of her abdomen and back of the chest were clean and she has not suffered burn injuries on her face, however, her hands were bandaged which would indicate that she has tried to put off fire and in the process suffered burn injuries on her fingers. The front portion of her abdomen and back of the chest were clean and she has not suffered burn injuries on her face, however, her hands were bandaged which would indicate that she has tried to put off fire and in the process suffered burn injuries on her fingers. She has put her thumb impression on her fardbeyan and the prosecution has explained the reason by saying that her fingers were burnt. The objective findings of PW-10 and other evidences probablise the defence story that Nilofer Praween has suffered accidental burn injuries. The defence witnesses have stated that Nilofer Praween caught fire from the stove and PW-2 has stated that he found one stove burning in the kitchen when he had gone to the house of the appellants on hearing her cries. Except PW-5, PW-6 and PW-7, all the witnesses have stated that Nilofer Praween was not able to speak and the husband and other relatives were in the hospital. None of the prosecution witnesses who had attended her when she raised cries has deposed in the Court that Nilofer Praween told him that the accused persons had set her on fire. 17. The learned trial Judge has held that the dying declaration of Nilofer Praween cannot be brushed aside only because the doctor who attended her and Tulsi Prasad who has recorded her statement were not examined during the trial. In our opinion, the learned trial Judge was unduly overwhelmed by the statutory presumption under section 113-B of the Evidence Act and section 304-B IPC and without assessing the prosecution evidence whether a prima-facie case constituting offence of dowry death has been established by the prosecution raised a presumption of dowry death to convict the appellants under section 304-B/34 IPC and 498-A/34 IPC. The medical evidence completely rules out homicidal burning of Nilofer Praween and PW-1, PW-2 and PW-3 who had first attended Nilofer Praween have deposed in the Court that she was unable to speak. They had rushed to the house of the appellants on hearing her cries, put-off the fire and took her to the hospital, but PW-1 and PW-3 were not declared hostile. PW-1 has stated in the cross-examination that it was father and brother of Nilofer Praween who were speaking on her behalf. They had rushed to the house of the appellants on hearing her cries, put-off the fire and took her to the hospital, but PW-1 and PW-3 were not declared hostile. PW-1 has stated in the cross-examination that it was father and brother of Nilofer Praween who were speaking on her behalf. PW-2 has deposed in the Court that Nilofer Praween had told her that in the process of burning (starting) chulha she caught fire. In his cross-examination he has stated that when the parents of Nilofer Praween started fighting with her husband he asked him to leave the hospital. PW-3 has also deposed in the Court that Nilofer Praween caught fire from chulha. PW-2 has stated that he had informed Md. Islam Ansari about the incident and PW-3 has said in the cross-examination that only the mother of Md. Islam Ansari was in the house when Nilofer Praween caught fire. PW-8 has stated that his house is at a distance of about hundred yards from the house of the appellants and in his cross-examination he has stated that before the death of Nilofer Praween he never heard about any quarrel with Nilofer Praween. PW-9 has also stated in the cross-examination that he has never heard any quarrel between the accused persons and Nilofer Praween. 18. In a criminal trial a dying declaration can be impeached on two grounds. First, the genuineness of the dying declaration can be challenged by showing suspicious circumstances which surrounded the statement of the victim and it can also be shown to the Court that the dying declaration was tutored. The other ground to challenge the dying declaration is to dispute the very making of the dying declaration by the victim. The factual scenario in the present case which we have noted above clearly brings out that the dying declaration of Nilofer Praween was not the statement made by her. She has died after about six days but no effort was taken to get her statement recorded by a Magistrate and take certification of the doctor. The factual scenario in the present case which we have noted above clearly brings out that the dying declaration of Nilofer Praween was not the statement made by her. She has died after about six days but no effort was taken to get her statement recorded by a Magistrate and take certification of the doctor. In Dalip Singh v. State of Punjab, (1979) 4 SCC 332 the Hon'ble Supreme Court has held that although a dying declaration recorded by a police officer during the course of investigation is admissible under section 32 of the Indian Evidence Act, in view of the exception provided under sub-section (2) to Section 162 of the Code of Criminal Procedure it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor. 19. The Investigating Officer was cross-examined by the defence with reference to statement made by the witnesses who had stated before him that at the time when Nilofer Praween caught fire only her father-in-law and mother-in-law were present in the house and he has affirmed that the witnesses have made such statements before him. He admits that they had told him that Nilofer Praween was so badly burnt that she was not able to speak. He has also admitted that at the time when he recorded re-statement of Nilofer Praween a nurse was present there, but she was not examined during the trial. The investigating officer has stated in the Court that on 27.04.2010 he had recorded re-statement of Nilofer Praween and from his evidence it appears that she was not in proper condition to make statement. The investigating officer has stated that she gave her statement in broken language and she was not able to complete one full sentence. The learned trial Judge has recorded that: “The I.O. deposed in Para-15 that he recorded re-statement of Nilofer Praveen on 27.04.2010 at 12.00 hrs. at RIMS, Ranchi and at that time Nilofer Praveen was talking in Tuti-Phuti Bhasha (incomplete word). ------------------ she was not speaking whole sentence in one term. The I.O. also deposed that while he was taking the re-statement of victim, one nurse was present there. The I.O. further deposed that he did not record the statement of Tulsi Prasad”. at RIMS, Ranchi and at that time Nilofer Praveen was talking in Tuti-Phuti Bhasha (incomplete word). ------------------ she was not speaking whole sentence in one term. The I.O. also deposed that while he was taking the re-statement of victim, one nurse was present there. The I.O. further deposed that he did not record the statement of Tulsi Prasad”. We further find that the defence witnesses are specific in their stand that Nilofer Praween had caught fire accidentally and she was not able to speak. From the fardbeyan itself it would appear that her father and brother were present at the time when Tulsi Prasad recorded her statement. For a moment assuming that Nilofer Praween gave her statement to Tulsi Prasad, the attending circumstances indicate that she gave a tutored statement. In her statement which was recorded on 26.04.2010 Nilofer Praween has implicated her husband as well as the entire family and the prosecution case hinges on her dying declaration, but the learned Sessions Judge has acquitted four of the family members and convicted the appellants. In our opinion, the dying declaration of Nilofer Praween suffers from embellishments and it can be used, at best, to support the allegation of demand of dowry and harassment to her in connection to demand of dowry. In Ranjit Singh v. State of Punjab, (2011) 15 SCC 285 the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Evidence Act to hold an accused guilty for murder. 20. A charge under section 302/34 IPC was framed against the appellants but there is no discussion in the judgment and the learned trial Judge has not recorded a finding whether or not the charge under section 302/34 IPC has been proved. The evidence of an expert is primarily opinionative but at the same time the findings of fact by the expert cannot be ignored. Once it is found that the characteristic symptoms of a homicidal death were absent on the dead body of Nilofer Praween, we must hold that the charge under section 302/34 IPC has failed. Whether Nilofer Praween has committed suicide is not the case set up by the prosecution and, therefore, the charge under section 304-B IPC also must fail. Once it is found that the characteristic symptoms of a homicidal death were absent on the dead body of Nilofer Praween, we must hold that the charge under section 302/34 IPC has failed. Whether Nilofer Praween has committed suicide is not the case set up by the prosecution and, therefore, the charge under section 304-B IPC also must fail. However, in view of the evidence of PW-5, PW-6 and PW-7 no interference is required with the conviction and sentence inflicted upon the appellants under section 498A/34 IPC. 21. In the light of the aforesaid discussions, we hold that the prosecution has failed to prove the charges under section 304-B IPC and section 302/34 IPC against the appellants and, accordingly, their conviction in Sessions Trial Case No. 284 of 2011 is set-aside. 22. Mrs. Priya Shreshtha, the learned Spl. PP states that Md. Islam @ Md. Islam Ansari is in custody and Bablu Ansari @ Bablu @ Md. Bablu @ Md. Bablu Ansari who has remained in custody for more than six years is on bail. 23. Accordingly, the appellant, namely, Md. Islam @ Md. Islam Ansari shall be released forthwith, if not wanted in connection to any other case and the appellant, namely, Bablu Ansari @ Bablu @ Md. Bablu @ Md. Bablu Ansari shall stand discharged of the liability of the bail-bonds furnished by him. 24. Criminal Appeal (DB) No. 210 of 2016 and Criminal Appeal (DB) No. 224 of 2016 are allowed, to the above extent. 25. Let the lower-Court records be sent to the Court concerned forthwith. 26. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.