JUDGMENT : This appeal under Section 374(2) Cr.P.C. has been filed by the first accused in S.C.No.243/2005 on the file of the Court of Sessions, Thrissur, challenging the conviction entered and sentence passed against him for the offences punishable under Section 304-B and Section 498-A IPC. 2. The prosecution case as stated in the charge sheet is as follows-The marriage of the first accused with Rakhi, the deceased, was solemnized on 07/05/1998. At the time of marriage, 45 sovereigns of gold ornaments and Rs.40,000/- had been given to Rakhi by PW1, her father. After marriage Rakhi was residing with her husband, the first accused, in his house along with his family, that is, A2 to A4 who are his parents and brother respectively. After marriage, the gold ornaments and money were taken away by the first accused and utilized for his own needs. The accused demanded the house and property in the name of PW1 to be transferred in the name of the first accused. When the misappropriation of the gold ornaments and money was questioned by Rakhi and as the property as demanded by the accused was not transferred in the name of first accused, Rakhi was subjected to cruelty and harassment. The first accused used to subject her to physical as well as mental harassment. Fed up with the physical and mental torture, Rakhi, on 02/09/2000 poured kerosene and set herself on fire. On 16/09/2000 at 6.30 a.m. Rakhi succumbed to the injuries, due to the severity of the burns sustained. The accused thus abetted her suicide also. Hence the allegation is that the accused have committed the offences punishable under Section 304-B, 306, 498-A read with Section 34 IPC. 3. On the basis of Ext.P21 FIS of PW16, Ext.P22 FIR, i.e., Crime No.296/2000 of Town West Police Station, Trissur was registered by PW18, the then S.I. of the aforesaid police station. PW19, the then Additional S.I. conducted the initial investigation. PW20, the then Dy. S.P., Trissur, took over the investigation, completed the investigation and submitted the charge sheet against four accused persons, namely, the husband, the in-laws and brother-in-law of deceased, Rakhi, alleging commission of the offences punishable under the aforementioned Sections. 4. The third accused died during the pendency of the committal proceedings. Hence the charge against her stood abated. S.P., Trissur, took over the investigation, completed the investigation and submitted the charge sheet against four accused persons, namely, the husband, the in-laws and brother-in-law of deceased, Rakhi, alleging commission of the offences punishable under the aforementioned Sections. 4. The third accused died during the pendency of the committal proceedings. Hence the charge against her stood abated. The case against the remaining accused, that is, A1, A2 and A4 was committed to the Sessions court. On appearance of the accused before the court of sessions, they were furnished with copies of all the prosecution records. On 08/11/2005, the court framed a charge for the offences punishable under Sections 304-B, 306, 498-A read with Section 34 IPC, which was read over and explained to the accused, to which they pleaded not guilty. The prosecution examined PWs.1 to 20 and got marked Exts.P1 to P33 and MO.1 and MO.2 in support of their case. After the close of the prosecution evidence, all the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. All the accused denied those circumstances and maintained their innocence. 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused were asked to enter on their defence and adduce evidence in support thereof. No evidence was adduced on behalf of the accused. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the Sessions Court by the impugned judgment acquitted the second and the fourth accused of all the offences charged against them. The first accused was acquitted of the offence punishable under Section 306 IPC. The first accused has however been convicted and sentenced for the offences punishable under Sections 304-B and 498A IPC. He has been sentenced to undergo rigorous imprisonment for 7 years for the offence under Section 304-B IPC and to rigorous imprisonment for 3 years and to a fine of Rs.50,000/- for the offence punishable under Section 498-A IPC with a further direction that the fine amount should be remitted within 6 months and in case of his failure to remit the fine amount, the first accused will have to undergo further rigorous imprisonment for 6 months. It has also been directed that fine amount if realized, shall be paid to deceased Rakhi’s child on attaining majority along with interest and that until the child attains majority, the amount shall be deposited in a nationalised bank in the name of the child. It is this judgment which has been assailed in this appeal. 7. In the appeal memorandum, it is alleged that the court below without properly appreciating the facts, circumstances and evidence, has wrongly convicted the first accused relying solely on the dying declaration of deceased Rakhi and so the judgment is liable to be set aside. 8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the first accused by the Sessions Court is sustainable or not. 9. Heard Adv. Sruthy K.K., the learned counsel for the appellant and Adv. Vipin Narayan, the learned Public Prosecutor for the respondent. 10. According to the learned counsel for the first accused (hereinafter referred to as the accused), the prosecution has been unable to prove all the ingredients of the offences punishable under Sections 304-B and 498-A IPC, for which he has been convicted and sentenced. The Sessions court after rightly finding that the oral testimony of the witnesses relied on by the prosecution to establish the case suffers from infirmity and inconsistencies and hence unreliable, committed a grave mistake in relying solely on Ext.P14 dying declaration of Rakhi in convicting the accused. The dying declaration was recorded and Ext.P22 F.I.R. registered only on 11/09/2000, though the incident took place on 02/09/2000 @ 8:30 p.m. The inordinate delay of 9 days in recording the F.I.S. and registering the crime has not been explained by the prosecution. The delay has caused serious prejudice to the accused as the possibility of the deceased being tutored by her near relatives and the chances of embellishments being made, cannot be ruled out. In support of this argument, reference is made to the decision in State of Andhra Pradesh v. M. Madhusudhan Rao, (2008) 15 SCC 582 . The delay has caused serious prejudice to the accused as the possibility of the deceased being tutored by her near relatives and the chances of embellishments being made, cannot be ruled out. In support of this argument, reference is made to the decision in State of Andhra Pradesh v. M. Madhusudhan Rao, (2008) 15 SCC 582 . Referring to the decisions in Nallapati Sivaiaha v. Sub Divisional officer, Guntur, A.P., AIR 2008 SC 19 and Uttam v. State of Maharashtra, (2022)8 SCC 576 : MANU/SC/0787/2022, it was argued that it is unsafe to record conviction on the basis of a dying declaration alone, in cases where suspicion is raised regarding the correctness of the dying declaration. In such cases, the court will have to look for some corroborative evidence by treating dying declaration only as a piece of evidence. Therefore, the argument is that in the aforesaid circumstances, the accused is entitled to an order of acquittal. 11. In order to seek a conviction against a person for the offence of dowry death under Section 304-B IPC, the prosecution is obliged to prove that - (a) the death of the woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances ; (b) such death should have occurred within 7 years of her marriage ; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband ; (d) such cruelty or harassment should be for or in connection with the demand of dowry ; and (e) to such cruelty or harassment, the deceased should have been subjected to soon before her death. The fact that death of Rakhi took place within 7 years of her marriage to the accused, is not disputed. The fact that Rakhi had set herself ablaze is also not disputed. What is disputed is the reason which prompted her to do the act. An argument was also advanced that Rakhi’s death was not caused due to the burns sustained, but due to septicemia or infection. The incident occurred on 02/09/2000. The death occurred after a long gap, that is, on 16/09/2000 only. What is disputed is the reason which prompted her to do the act. An argument was also advanced that Rakhi’s death was not caused due to the burns sustained, but due to septicemia or infection. The incident occurred on 02/09/2000. The death occurred after a long gap, that is, on 16/09/2000 only. Therefore, relying on the dictum in Sukumaran v. State of Kerala, ILR 2004 (2) Kerala 207, it was submitted that infection may probably have been caused due to lack of proper treatment and had Rakhi been given proper treatment, death might not have occurred. 11.1. Sukumaran (Supra) was a case under Section 302 IPC. It has been held that whether the injuries are sufficient in the ordinary course of nature, has to be examined not with reference to the date of death, but with reference to the date on which it was inflicted. There may be other intervening factors to accelerate the death. In the absence of production of details regarding the treatment given to the deceased, it cannot be concluded that death was not due to other intervening factors. 11.2. Here I refer to Explanation 2 to S.299 IPC which says that, where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment, the death might have been prevented. Having regard to Explanation 2 to S.299 IPC, it is not given to the accused to take shelter under a claim that had proper medical attention and treatment been given, the victim would not have died. (See Pitchai v. State by Inspector of Police, Vadamadurai, (2004)13 SCC 579 and Rajan C. George v. State of Kerala, 2018 KHC 703 ). Further, Veerla Satyanarayana v. State of A.P., 2009 KHC 6204: 2009 (16) SCC 316 , was a case where the victim had suffered 60% burn injuries due to pouring of acid. It has been held that septicaemia was sufficient in the ordinary course of nature to cause death. Even in cases where medical remedies are provided and skilful treatment is given, there is every possibility of septicaemia. 11.3. In the case on hand, Ext.P19 wound certificate issued on 02/09/2000 by CW13-Dr. Somanathan, Lecturer in Surgery, Medical College, Trissur who had first examined Rakhi, says that she had sustained 40% burns. Even in cases where medical remedies are provided and skilful treatment is given, there is every possibility of septicaemia. 11.3. In the case on hand, Ext.P19 wound certificate issued on 02/09/2000 by CW13-Dr. Somanathan, Lecturer in Surgery, Medical College, Trissur who had first examined Rakhi, says that she had sustained 40% burns. Ext.P19 has been proved through PW14, Assistant Professor of Surgery and Deputy Superintendent, Casualty, Medical College, who deposed that he is familiar with the signature of Dr. Somanathan and also identified the same in the box. When examination of a doctor is impossible for any reason stated in Section 32 of the Evidence Act, the certificate can be proved by proving his handwriting or/and signature as in the case of any document by resorting to Sections 47 and 67 of the Evidence Act (Kochu v. State, 1978 KHC 321 and Kurian v. State, 2019 KHC 741). The prosecution has apparently resorted to the aforesaid provisions to prove Ext.P19, as CW13 was reported to be abroad (seen recorded so in the proceedings dated 24/02/2006). There is no challenge to this procedure adopted. 11.4. Rakhi was thereafter shifted to the Jubilee Mission Hospital, Trissur on 03/09/2000 where she was examined by PW6, a doctor in the Department of Surgery of the said hospital. PW6 deposed that on examination, he found the patient who was conscious and coherent, to have sustained 40% deep burns over face, both upper and lower limbs and anterior trunk. According to him, treatment and medicines were given from 03/09/2000 till her death on 16/09/2000. The cause of death is septicaemia. PW6, to a question whether the cause of death was the direct result of the burns sustained, answered that burns may produce infection leading to septicaemia. He thereafter deposed that infection caused is the direct result of burns. Ext.P7 case sheet has been marked through PW6, who deposed that he was part of the medical team which had attended Rakhi. 11.5. PW17, Professor, Forensic Medicine, Medical College, Trissur, when examined deposed that he is familiar with the signature of CW15, Dr. Nishad, Lecturer in Forensic Medicine and Assistant Police Surgeon, Medical College, Trissur, seen in the post mortem certificate. PW17 deposed the contents in the post mortem certificate, which reads- “External appearance: Body of a moderately built and well nourished female of height 160 cm and weight 62 kg. Eyes closed; conjunctiva congested; cornea hazy. Nishad, Lecturer in Forensic Medicine and Assistant Police Surgeon, Medical College, Trissur, seen in the post mortem certificate. PW17 deposed the contents in the post mortem certificate, which reads- “External appearance: Body of a moderately built and well nourished female of height 160 cm and weight 62 kg. Eyes closed; conjunctiva congested; cornea hazy. Finger nails blue. Hymen present as carunculae hymenalis and vagina admitted 2 fingers. Singeing of eyelashes and eyebrows were noted. Rigor mortis fully established and retained all over the body. Post-mortem staining at the back, fixed. No sign of decomposition. (Body not kept in cold room). Injuries (Ante-mortem) : Infected dermoepidermal burn wounds of the face, ears, front and sides of neck, front of chest including both breasts, middle part of the front of abdomen, both upper limbs, lower half of front of both thighs. Other Findings: Skull intact. Brain congested. Mouth and pharynx congested. Neck structures intact. Trachea and bronchi congested. Lungs congested with numerous subpleural petechiae. Walls, valves chambers, normal and coronary arteries of heart patent. Liver congested. Gall bladder contained multiple stones of one to four mms diameter and biliary studge. Both kidneys swollen and pal with subcapsular hemorrhagic spots. Stomach contained about 200 ml of partially digested boiled egg white and other unidentifiable material without any unusual smell; mucosa congested. Uterus measured 6x4x1 cm; cavity empty; external so transversely slit like. Ovaries normal. Other organs congested, otherwise normal. OPINION AS TO CAUSE OF DEATH: THE DECEASED DIED DUE TO INFECTION FOLLOWING BURNS”. According to PW17, CW15 is abroad. As PW17 identified the signature of CW15, the post mortem certificate has been marked as Ext.P8. Here again the prosecution has resorted to the provisions of Sections 47 and 67 of the Evidence Act to prove Ext.P8. There is no challenge to the procedure adopted. Nothing has been brought out to discredit the testimony of the aforesaid medical witnesses and hence the prosecution case that Rakhi died due to the burns sustained, stands proved. 12. Now what remains is ingredients (c), (d) and (e) of Section 304-B IPC, for which the prosecution relies on Ext.P14 dying declaration and the oral testimony of PWs.1 to 4 and PW16. As noticed earlier, the Sessions court has rejected the testimony of the said witnesses and relied on the dying declaration alone to convict the accused. 12. Now what remains is ingredients (c), (d) and (e) of Section 304-B IPC, for which the prosecution relies on Ext.P14 dying declaration and the oral testimony of PWs.1 to 4 and PW16. As noticed earlier, the Sessions court has rejected the testimony of the said witnesses and relied on the dying declaration alone to convict the accused. In Lakhan v. State of Madhya Pradesh, (2010) 8 SCC 514 relied on by the learned public prosecutor, it has been held that the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring / duress / prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance. 12.1. It is however pointed out on behalf of the accused that the court should be cautious in convicting the accused on the basis of the dying declaration alone, unless it is found credible. The delay in recording the statement is pointed out as a suspicious circumstance. In support of this argument, reference was made to the decisions reported in Nallapati Sivaiah (Supra) and Uttam (Supra). It is true, as pointed out on behalf of the accused that the court has to be cautious when there is only the dying declaration to be relied on behalf of the prosecution. As held in Nallapati Sivaiah (Supra) it is well settled that dying declaration can form the sole basis for conviction. It is true, as pointed out on behalf of the accused that the court has to be cautious when there is only the dying declaration to be relied on behalf of the prosecution. As held in Nallapati Sivaiah (Supra) it is well settled that dying declaration can form the sole basis for conviction. But at the same time, due care and caution must be exercised in considering the weight to be given to dying declaration in as much as there could be any number of circumstances which may affect the truth. The Courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion. It is also a settled principle of law that dying declaration is a substantive piece of evidence and an order of conviction can be safely recorded on the basis of the declaration, provided, the Court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. It has to be ensured by the Court that the dying declaration was recorded correctly and above all, the maker was in a fit condition-mentally and physically-to make such statement. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated. Rule requiring corroboration is merely a rule of prudence. When the dying declaration is suspicious, it should not be acted upon without corroborative evidence. A dying declaration which suffers from infirmity cannot form the basis of conviction. Normally, the Court in order to satisfy whether the deceased person was in a fit mental condition to make the dying declaration, look up to the medical opinion. 12.2. When the dying declaration is suspicious, it should not be acted upon without corroborative evidence. A dying declaration which suffers from infirmity cannot form the basis of conviction. Normally, the Court in order to satisfy whether the deceased person was in a fit mental condition to make the dying declaration, look up to the medical opinion. 12.2. An argument has been advanced on behalf of the accused that it is doubtful whether Rakhi was in a fit state of mind to give the statement to PW12 because according to PW18, Rakhi was unable to speak properly and so he recorded Ext.P21 F.I.S. of PW16, her aunt, on the basis of which the F.I.R. was registered. Ext.P21 F.I.S. is seen recorded on 11/09/2000 @ 11:00 a.m. On the very same day in the evening at 8:00 p.m., Ext.P14 dying declaration was recorded by PW12. Therefore, the argument is that, when PW18 in the morning found Rakhi to be incoherent and incapable of giving a statement, how is that in the evening she was found capable? This according to the defence, throws/cast doubts on the capability of Rakhi to give the statement. 12.3. PW6, the doctor in the team who treated Rakhi from 03/09/2000, deposed that from the said day till her death, there is nothing in the records to suggest that she was unable to speak. According to PW6, Rakhi’s condition became extremely bad from 7 p.m. of 15/09/2000 only. This statement of PW6 given in her chief examination has neither been challenged nor discredited by the accused. Further, PW12, the Judicial Magistrate who recorded the dying declaration deposed that he had taken the opinion of Dr. Murali Harish of the Burns Department, Jubilee hospital before recording the statement. The certificate issued by the said doctor marked as Ext. P13 says that Rakhi was fit to give a statement. It is true that Dr. Murali Harish has neither been arrayed as a witness nor examined by the prosecution. However, there is nothing to disbelieve the version of PW12. He was also convinced that Rakhi was competent to give a statement. Here, what the court is to decide is whether the deceased was in a fit state of mind. Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. He was also convinced that Rakhi was competent to give a statement. Here, what the court is to decide is whether the deceased was in a fit state of mind. Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness states 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 absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a person 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. 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. (Laxman v. State of Maharashtra, (2002) 6 SCC 710 ). 12.4. 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. (Laxman v. State of Maharashtra, (2002) 6 SCC 710 ). 12.4. Further, to a question by the defense, PW12 deposed that he did not feel that Rakhi had been brain-washed into giving such a dying declaration. On the other hand, he felt it to be an independent, voluntary statement of Rakhi. The defense has no case that PW12 had made up Ext.P14 dying declaration. As held in Uttam (Supra), the Magistrate being an uninterested witness and a respected officer and when there are no circumstances or material to suspect that he would have any animus against the accused or would in any way be interested in fabricating a dying declaration, such a declaration recorded by the Magistrate, need not be doubted. PW12 is seen to have followed all the formalities before recording the statement. Therefore, the procedure adopted for recording Ext.P14 does not suffer from any infirmity. However, the question whether the contents in Ext.P14 are true and whether it can be made the sole basis for conviction is a different matter, to which I will come to shortly. 13. It was further submitted by the learned defense counsel that, Rakhi had not given the statement in anticipation of death as she had stated to PW12, that henceforth she would not stay with her husband, but would only stay in her house. Therefore, the argument is that the statement was not given in anticipation of death and therefore it is not a dying declaration. I am afraid, I will have to disagree with this argument advanced on behalf of the accused. 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. Law does not say that a statement to be a dying declaration, should have been given in anticipation of death. Law does not say that a statement to be a dying declaration, should have been given in anticipation of death. 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. 14. Coming to the contents of Ext.P14 dying declaration. PW12 has recorded that when he asked Rakhi as to what the incident was, she stated thus – her husband had physically assaulted/abused her severely/badly and so she did the act with the intention of killing herself. She had set herself ablaze in the bedroom. When she ran out of the bed room, her husband and mother-in-law tried to extinguish the fire. Her mother-in-law asked her not to make her son a scapegoat/whipping boy. Her husband and family said that she should only reveal that the burns were caused accidentally by a kerosene lamp falling over her. They changed her dress, covered her in cloth and took her to the hospital. At the hospital, her mother-in-law and husband gave the cause of incident as accidental burns. At the time of marriage, 45 sovereigns and Rs.40,000/- had been given by her parents. The money and gold were misappropriated/used/taken by her husband. In the end, she was left with only five bangles, out of which two were pawned by him. When she goes out, she wears artificial ornaments. While so, without her knowledge one more bangle was taken by them. She questioned her husband about the bangle who in turn told her that she must have left it at her house and forgotten about it. She refuted his claim and reiterated her query. Then, her husband admitted that he had pawned her bangle and that he would take it back on Monday. She then replied that she has no faith/trust in him and so demanded the bangle to be returned to her then and there/forthwith. Her husband said that he would get back her bangle after selling her thali chain. She took her thali chain and threw it on her husband’s face. Her mother-in-law intervened and said that the thali chain need not be sold and that they would somehow get back her bangle. She replied that she was unconcerned with the same and she again demanded the return of the bangle then and there. She took her thali chain and threw it on her husband’s face. Her mother-in-law intervened and said that the thali chain need not be sold and that they would somehow get back her bangle. She replied that she was unconcerned with the same and she again demanded the return of the bangle then and there. She has no trust/faith or confidence in her husband or in-laws. She had lost all her ornaments in the like manner, at which time also, they used to say that the ornaments would be returned. Her husband came inside the room and asked her why she was crying, when he had assured her that he would return her bangle. She then told her husband that she wanted her bangle during the said night itself, if not, she would inform her father over phone. Hearing this and asking whether she had become that smart, her husband severely beat and kicked her. He beat her on her head with a rolling pin and kicked her on her back and chest. Her mother-in-law came running and snatched/pulled away her son from her and bolted the bedroom from outside. She cried quite a lot. After sometime, the door was unbolted. She closed the door. At that time, there was power failure. She poured the kerosene in the chimney lamp kept inside the room and set herself ablaze. She then ran outside her bedroom. Her mother-in-law and husband saw her. Her father-in-law asked her what she had done to herself. Her husband and family accused her of being mad. Her father-in-law said that this had happened as they had not heeded the warnings given by him several times earlier that she was mad and required to be hospitalized for treatment. Her husband and mother-in-law told him that she had done this because they had taken her bangle. Water was poured to extinguish the fire. Her mother-in-law asked her father-in-law to bring some soda powder. Her father-in-law replied that she should be left to suffer as she had done the act on her own. Father-in-law brought soda powder which was sprinkled on her body. The younger brother took away her son. After extinguishing the fire, a car was summoned. However, they still did not inform her parents, who were informed only the next morning at 3 a.m. Her father came and took her to the Jubilee hospital. Father-in-law brought soda powder which was sprinkled on her body. The younger brother took away her son. After extinguishing the fire, a car was summoned. However, they still did not inform her parents, who were informed only the next morning at 3 a.m. Her father came and took her to the Jubilee hospital. Her husband and family cautioned her from revealing the actual/true incident to her father or others. Her mother-in-law asked her whether she would get peace of mind/satisfaction only if she implicated her son. She then replied that she is quite annoyed/angry with her son .She revealed everything to her father who complained to the police. Today in the morning, the police had come. The accused should not do anything to her son. She has asked her younger brother to take away her son. They told her that she need not worry about the same. After marriage, she was beaten off and on, due to which she is quite dejected/despondent . Henceforth, she will not stay in her husband’s house. She and her son would stay in her house. She was injured and had a bleeding wound when she was beaten with a cradle stick. 15. The question is, whether the aforesaid statement alone is sufficient to convict the accused especially in the light of the inconsistent statements of the witnesses and the delay in recording Rakhi’s statement, as also the delay in registering the crime. As pointed out on behalf of the accused, there is about 9 days' delay in registering the crime and recording the dying declaration. It was pointed out by the learned prosecutor that all delay is not fatal and only in certain cases, like, when the identity of the accused is disputed or some suspicious grounds are brought out, the delay can be considered to be fatal. In the case on hand, no such suspicious circumstances have been brought out and hence there is no reason to disbelieve or reject the prosecution case, argues the Prosecutor. It is true that all delay is not fatal. But when delay of nine days is shown to exist and the prosecution witnesses give differing versions, then it is the duty of the prosecution to explain the delay in registering the crime. As held in M. Madhusudhan Rao (Supra), time and again, the object and importance of prompt lodging of the F.I.R. has been highlighted. But when delay of nine days is shown to exist and the prosecution witnesses give differing versions, then it is the duty of the prosecution to explain the delay in registering the crime. As held in M. Madhusudhan Rao (Supra), time and again, the object and importance of prompt lodging of the F.I.R. has been highlighted. Delay in lodging the F.I.R., more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. 16. In the case on hand, no reason(s) has/have been shown for the delay. Column no.8 in Ext.P22 F.I.R. which provides for the reasons to be recorded for the delay, if any, in reporting the matter by the informant, has been left blank. The Investigating Officer does not furnish any explanation whatsoever for the delay in registering the crime. In addition to this, there are other circumstances also which raise doubts in the mind of the court. 17. Rakhi in her dying declaration states that when she was being taken to the hospital, her husband and in-laws had warned/cautioned her from revealing the true incident and told her that she should only say that the burns were caused accidentally when the chimney lamp fell over her. Rakhi is also seen to have stated in Ext.P14 that, ‘they’ should not do anything to her son. A reading of the whole statement shows that by ‘they’, Rakhi meant her husband and in-laws. PW16, her aunt, also has a case in the F.I.S. that Rakhi had told her that the accused had threatened to do away with Rakhi’s son in case she revealed the true state of affairs at the hospital. In Ext.P19 wound certificate prepared by PW14, the cause of injury is stated to be accidental burns. Therefore, I will assume for a moment that Rakhi was under fear that the accused would harm her infant son and hence she did not reveal the incident to PW14, the doctor who first examined her. In Ext.P19 wound certificate prepared by PW14, the cause of injury is stated to be accidental burns. Therefore, I will assume for a moment that Rakhi was under fear that the accused would harm her infant son and hence she did not reveal the incident to PW14, the doctor who first examined her. However, it is admitted that PW1, her father came to the hospital on 03/09/2000 and had shifted her to Jubilee hospital. She was taken to Jubilee hospital ignoring the resistance of the accused and his family. Therefore, it can be seen that Rakhi was taken out of the influence or control or custody of the accused and his family on the very the next day of the incident. Still Rakhi does not reveal the reason for the incident to anyone. If PW1, her father is to believed, his daughter had revealed the cause of the incident to him on 04/09/2000 itself. If so, why the delay in not informing the police? 18. Here, the testimony of PW3 and PW4, close relatives and loyal prosecution witnesses, is relevant and important. PW3 deposed that when he had enquired the reason for the incident to Rakhi, she cried and told him that it was because she was mentally and financially broken. PW3 further deposed that she had however not revealed the persons responsible for the same. According to PW4, another relative, Rakhi had told him that when her husband beat her up, she lost her cool and set herself ablaze. If the prosecution case is to be believed, PWs.3 and 4 on earlier occasions had intervened and had visited the house of the accused along with PW1 to sort out issues when Rakhi had complained of harassment and abuse by her husband. Even after Rakhi was removed from the custody of the accused and his family, and her father enters the scene and takes charge of her treatment, she still does not reveal to him or any of her close relatives, the reason(s) which prompted her to set herself ablaze. Things changed only when PW16, the aunt, enters the scene. PW16 says that she was told by Rakhi about the true state of affairs. It was thereafter everyone seems to have sprung into action. If PW1 is to be believed, he had gone to the police station and given a statement in which he had affixed his signature also. Things changed only when PW16, the aunt, enters the scene. PW16 says that she was told by Rakhi about the true state of affairs. It was thereafter everyone seems to have sprung into action. If PW1 is to be believed, he had gone to the police station and given a statement in which he had affixed his signature also. However, the said statement has not come before the court. It is thereafter the police goes to the hospital, finds Rakhi not in a position to give the statement, records the statement of PW16 and registered the crime. The statement of PW18, the Sub Inspector who recorded Ext.P21 F.I.S. of PW16 that Rakhi was not coherent and was unable to give a statement is doubtful in the light of the testimony of PW6, the doctor of the Jubilee hospital who deposed that from 03/09/2000 till the death of the patient on 16/09/2000, there is nothing in the records to show that she was unable to speak and that her condition became bad only in the night of 15/09/2000. Ext.P13 certificate and the testimony of PW12 also shows that Rakhi was in fact competent to give a statement. If so, what prevented PW18 from recording Rakhi’s statement? It is in this background the delay of 9 days assumes importance and raises doubts. 19. As held in Uttam (Supra), it is not necessary that in every case, a dying declaration ought to be corroborated with material evidence, ocular or otherwise. It is more a rule of prudence that courts seek validation of the dying declaration from attending facts and circumstances and other evidence brought on record. There can be no hard and fast rule on evaluation of the evidence brought before the Court, including the surrounding circumstances at the time when the deceased had made the dying declaration. The focus of the Court is of ensuring the voluntariness of the process, of being satisfied that there was no tutoring or prompting, of being convinced that the deceased was in a fit state of mind before making the dying declaration. The dying declaration must inspire confidence so as to make it safe to act upon. The focus of the Court is of ensuring the voluntariness of the process, of being satisfied that there was no tutoring or prompting, of being convinced that the deceased was in a fit state of mind before making the dying declaration. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration--be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement, for which purpose, not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration. 20. It is in this background the testimony of the prosecution witnesses also assumes importance. I briefly refer to the testimony of PWs.1, 3, 4 and 16 as well as the allegations in Ext.P21 FIS given by PW16 on the basis of which the crime has been registered. PW16 is the aunt of deceased Rakhi, to be precise, Rakhi is the daughter of PW16’s sister Sasikala. According to PW16, she is residing in Bombay with her husband. On 03/09/2000 she was informed over phone that Rakhi had consumed kerosene. On 04/09/2000 she contacted PW1, the father of Rakhi, who informed her that Rakhi has been hospitalised due to burn injuries. She then returned home. When she went to PW1’s house, it was found closed. On enquiry with her near relatives, she came to know that Rakhi is on treatment in the Jubilee hospital, Thrissur. PW16 proceeded to the hospital. She asked Rakhi as to the cause of the burn injuries. Rakhi then told her that except two bangles and a ring, the rest of her gold ornaments given to her at the time of marriage had been sold by her husband. She had kept the remaining ornaments in her almirah. On 02/09/2000, she found the two bangles and ring missing. Rakhi then told her that except two bangles and a ring, the rest of her gold ornaments given to her at the time of marriage had been sold by her husband. She had kept the remaining ornaments in her almirah. On 02/09/2000, she found the two bangles and ring missing. She then questioned her husband who replied that she must have left it at home when she had gone there and forgotten to take it. Rakhi refuted the claim of her husband and reiterated that she had kept the same in her almirah. Then Rakhi’s husband Suresh beat her. Rakhi went out saying that she would inform her father over phone. Suresh then dragged her inside the house, took her inside the room and again beat her. Fed up with the beatings, Rakhi poured kerosene over her body and set fire to herself. According to PW16, Rakhi also told her that her in-laws off and on used to verbally abuse her and used to say that she should be taken to the mental hospital. Her brother-in-law, the fourth accused also used to quarrel with her by saying that she should bring more dowry from her house. Rakhi’s husband used to physically assault her demanding the property in the name of PW1, to be transferred to his name. PW16 has also stated that Rakhi had told her that while on her way to the hospital, her in-laws had warned her from naming their son and in case she did that, they would do away with her son. According to PW16, it was because of the mental and physical cruelty meted out by A1 to A4, Rakhi had set fire to herself. 21. It was on the basis of Ext.P21 FIS recorded on 11/09/2000 at 11 a.m., Ext.P22 FIR was registered and the investigation started. In Ext.P22 FIR, it is stated that the information was received in the police station on 11/09/2000 at 12 noon, on the basis of which the crime has been registered. The FIR is seen to have been received by the JFCM concerned on 11/09/2000 at 8 p.m. Ext.P14 is the dying declaration recorded by PW12, the JFCM concerned, on 11/09/2000 at 8 p.m. 22. PW16 when examined, more or less stands by the case stated in Ext.P21 FIS. The FIR is seen to have been received by the JFCM concerned on 11/09/2000 at 8 p.m. Ext.P14 is the dying declaration recorded by PW12, the JFCM concerned, on 11/09/2000 at 8 p.m. 22. PW16 when examined, more or less stands by the case stated in Ext.P21 FIS. PW1, Rakhi’s father, when examined deposed that Rs.40,000/- and 45 sovereigns had been given at the time of the marriage. Initially for 2 1/2 months after the marriage, there were no issues. But after that, 15 sovereigns and Rs.40,000/- was taken by the first accused purportedly for buying property in the name of his daughter. Property was also purchased. The remaining ornaments were in the possession of Rakhi. Slowly, they were also taken away and sold by the first accused. When Rakhi demanded the ornaments, the first accused did not return them. Instead, he used to beat her, which his daughter used to inform him. He was in Dubai. He returned in March 1999. He has a house and property at Chiyarath. The accused demanding the said property used to beat Rakhi. One day when the accused beat Rakhi, the latter informed him. When he went to the house of the accused, Rakhi told him that the accused had severely physically abused/assaulted her. This incident took place on 18/03/1999. When he went to the house of the accused, he was accompanied by his uncle, PW3 and nephew PW4. He had seen a bruise mark on the face of Rakhi. They had consoled Rakhi and advised the accused. The accused, his parents and brother, that is A2 to A4, then threatened them and told them that they would again beat Rakhi and teach her a lesson. PW1 then asked the reason for beating Rakhi, to which they replied that it was because she had refused to handover the ornaments when demanded by them. When a son was born to Rakhi, he had given 5 sovereigns of gold ornaments to the child, from which, except three bangles and one ring, the remaining were sold by the first accused. Rakhi had told him that there were only three bangles and one ring remaining. Rakhi had later on told him of the incident that took place on 02/09/2000. PW1 then further goes on to describe what happened on the day, which statement more or less tallies with the dying declaration of Rakhi. Rakhi had told him that there were only three bangles and one ring remaining. Rakhi had later on told him of the incident that took place on 02/09/2000. PW1 then further goes on to describe what happened on the day, which statement more or less tallies with the dying declaration of Rakhi. He further deposed that he came to know about the incident on the 3rd. After the incident, the accused never informed him. On 3rd he was informed by a nurse of the Medical College Hospital. He and his wife went to the hospital. No treatment worth the name was being given to Rakhi. So, he and his wife decided to take her to Jubilee hospital as the condition of his daughter was quite serious. A1, A2 and A4 did not agree to this attempt because they had earlier worked in the said hospital. He then informed Rakhi and the doctor and shifted his daughter to Jubilee hospital. She was under treatment in the said hospital for 14 days. Thereafter, she died on 16/09/2000. PW1 also deposed that all the gold ornaments given by him had been sold by the first accused. According to him, when he asked the reason for the incident, Rakhi told him that A1 to A4 due to their enmity towards Rakhi, due to her failure to get her father’s property transferred in the name of the first accused and because of her failure to bring more money from her home, used to physically and mentally torture her. Due to this continuous mental and physical harassment, Rakhi was dejected and disappointed and so his daughter had attempted suicide. He also deposed that he had given statement to the police on the 11th. According to PW1, only women bystanders were allowed and therefore it was his neighbours, who by taking turns were looking after his daughter. PW16 is his former wife’s sister who is permanently residing in Bombay. When PW16 came to know about the incident, she came down on 09/09/2000. She was in the hospital during the night of 10/09/2000 only. PW1 in the cross examination deposed that it was in the morning of 11/09/2000, he had gone to the police station and given his statement. The statement had been taken down in writing, in which he had affixed his signature also. Thereafter he had returned to the hospital. She was in the hospital during the night of 10/09/2000 only. PW1 in the cross examination deposed that it was in the morning of 11/09/2000, he had gone to the police station and given his statement. The statement had been taken down in writing, in which he had affixed his signature also. Thereafter he had returned to the hospital. He also deposed that on 04/09/2000 itself, Rakhi had told him everything. In the re-examination, to a leading question he answered that between 3rd and 11th, neither had he informed the police nor had the police taken his statement. To yet another leading question, he answered that as he was dissatisfied with the investigation in the case, he had sent complaints to the Chief Minister, Collector, opposition leader and to the Women’s Commission also. 23. PW3, the uncle of PW1 deposed that he was the person who had made all arrangements for the marriage. Rs.40,000/- was handed over by him to the second accused. After the marriage, 15 sovereigns of gold ornaments were sold for the purpose of buying property. However, no property was purchased. Except for 2 or 3 sovereigns, the remaining ornaments were sold by the first accused. On 18th March, he had accompanied PW1 and PW4 to the house of the accused. Rakhi had informed him over phone that she had been beaten up. According to PW3, on the said day they advised the parties not to fight any more. They made a suggestion to take Rakhi home. But the accused did not agree to the suggestion made. After the incident, he had spoken to Rakhi while she was in the Medical College hospital and in Jubilee hospital and had enquired the reason for the incident. Rakhi cried and told him that it was because she was mentally and financially broken. However, she never revealed the persons responsible for the same. In the cross examination PW3 deposed that on the day he had accompanied PW1 to the home of the accused, the latter had assured them that in future there would be no problems and that they would live happily. PW3 also deposed that it is the truth and the actual incident that had happened on the day when he along with PW1 and PW4 had gone to the house of the accused. 24. PW3 also deposed that it is the truth and the actual incident that had happened on the day when he along with PW1 and PW4 had gone to the house of the accused. 24. PW4 when examined deposed that he had accompanied PW1 and PW3 to the house of Rakhi as they were informed of some problems in her house. He had seen Rakhi crying and heard Rakhi telling PW1 that she had been beaten up by the accused. According to PW3, they consoled and advised all of them and told that such incidents should not happen. Thereafter, he came to know of the incident from PW1. One month before the incident, Rakhi had come to his house. The accused thereafter came to take her back home. At that time also, he had advised the first accused that he should live happily with Rakhi and incidents like the earlier one should not be repeated. He also deposed that while Rakhi was in hospital, she had told him that her husband had physically assaulted/beaten her. She had lost her cool and set herself on fire. 25. The case of PW1 and PW16 that Rakhi had been subjected to both mental and physical cruelty by the accused and his family due to her failure to get the property of her father transferred in the name of her husband and her failure to bring more money, does not find a place in Ext.P14. Rakhi has no such case. The trial court finding inconsistencies in the testimony of the aforesaid witnesses, rightly refused to rely on the same. As stated earlier, to establish ingredient (d) of Section 304-B IPC referred to earlier, the cruelty or harassment that has been meted out to the deceased, should be for or in connection with the demand for dowry. In Ext.P14 dying declaration, Rakhi has no case that there was any demand for dowry. What is made out from her statement is that the main cause for the acrimony between the couple was due to the misappropriation of gold ornaments by the husband and his refusal/failure to return the ornaments when demanded by her. Feeling deeply unhappy/dejected and moved by the loss of her gold ornaments, Rakhi seems to have lost her cool and set herself ablaze. Feeling deeply unhappy/dejected and moved by the loss of her gold ornaments, Rakhi seems to have lost her cool and set herself ablaze. For a dowry death, as defined under S.304-B IPC, the death should have been in connection with any demand of dowry as defined in the Dowry Prohibition Act, 1986. If the death occurred independent of any demand for dowry, that death can under no circumstances be termed a dowry death (State of Kerala v. Jose @ Saju, 1994 KHC 268). That being the position, it can only be held that the prosecution has failed to establish all the ingredients of the offence punishable under Section 304-B IPC. 26. Now coming to the offence under Section 498-A IPC. As per explanation (a) to the Section, any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, is cruelty. Rakhi in Ext.P14 dying declaration does say that she was beaten up badly by the accused; that she was off and on beaten by the accused and that her in-laws used to verbally abuse her. But the million-dollar question is, can Ext.P14 alone be relied on for entering into an order of conviction against the accused. If PW1 is to be believed, Rakhi had told him about the incident on the 4th. However, curiously he does not complain to the police or take any action. He, for reasons best known to him, waits till the 11th to give a statement to the police, which statement also is not before the court. Realizing the danger of the said statement made by PW1 in the cross examination and to contain the damage done, a question is seen put to him in the re-examination as to whether he had given any statement to the police or whether the police had taken his statement between 3rd and 11th, to which he answered in the negative. If PW1 had come to know of the incident on the 4th itself, the question that naturally arises is as to why he did not inform the police immediately or at least at the earliest possible opportunity? Why did he wait till the 11th to give the statement? If PW1 had come to know of the incident on the 4th itself, the question that naturally arises is as to why he did not inform the police immediately or at least at the earliest possible opportunity? Why did he wait till the 11th to give the statement? It is true that the matters arising out of a matrimonial dispute are always extremely sensitive and generally it is after serious consideration and debate amongst the victim’s family that the FIR is lodged. The delay in such matters cannot be fatal to the prosecution (Rajkumar v. State of Punjab, (2010) 15 SCC 362). However, PW1 has no such case also. Though he says that unhappy with the investigation in the case, he had preferred complaints to various authorities, he does not say as to why he did not take prompt action when he was informed about the incident by his daughter. 27. Further, as noticed earlier, in Ext.P14 dying declaration, Rakhi makes it clear that she is extremely annoyed/angry with her husband, the accused. True, any wife if beaten up black and blue would certainly harbour ill-feelings or enmity against her husband, for which she can never be faulted with. But here is a case added to that ill-feeling, several other grounds are existing to suspect the case. It is true that defects in investigation cannot be made a ground to reject the prosecution case. Rakhi cannot be held responsible for the delay in registering the case or of the hospital in not informing the police on time or the failure of the prosecution to explain the delay. The trial court has refused to rely on the evidence of the prosecution witnesses finding them unreliable. The prosecution has not been able to show that this finding suffers from any infirmity. A reading of the deposition of the witnesses, to which I have referred to, shows inconsistencies. This justifies the stand taken by the trial court. PW1 says that dissatisfied with the investigation being conducted, he had preferred complaints to several authorities. However, no material has come on record to substantiate this aspect. Moreover, this is an answer given by PW1 in the re-examination to a leading question put to him. Answers elicited in the chief examination and re-examination by putting leading questions are liable to be eschewed. However, no material has come on record to substantiate this aspect. Moreover, this is an answer given by PW1 in the re-examination to a leading question put to him. Answers elicited in the chief examination and re-examination by putting leading questions are liable to be eschewed. (Varkey Joseph v. State of Kerala, AIR 1993 SC 1892 and George v. State of Kerala, 1994 KHC 221). 28. Further, PW1 in his anxiety to get the accused convicted, seems to have slightly exaggerated the events that took place before the incident. One cannot find fault with PW1, a father, who has lost his daughter in such tragic circumstances, for which he holds the accused responsible. Such tendencies are quite normal in any human being. According to PW1, when he along with PW3 and PW4 had gone to Rakhi's house to mediate in the quarrel between Rakhi, the accused and his family, the latter are alleged to have threatened him and also threatened to continue torturing / harassing Rakhi. Interestingly, PW3 and PW4, loyal prosecution witnesses, have no such case. If they are to be believed, the accused when counseled/advised from repeating such instances, assured them that such instances would not be repeated. 29. Yet another aspect is Ext.D1, a letter admittedly written by the brother of PW1 to Rakhi and the accused. In Ext.D1 letter, the author writes thus -“…. How is Rakhi? Forgive Rakhi in case she commits any mistake. It is the duty of mothers to teach/tell things and advise their daughters. But Rakhi has not got that love and advise. So, she is slightly short tempered. But after five minutes she will forget everything. I am afraid to even crack a joke at Rakhi lest she takes offence….”. This letter is not in any way disputed by the prosecution. It appears that Rakhi, quite a sensitive person lost her cool when the last of her ornaments were taken away by her husband. As held in Assoo v. State of Madhya Pradesh, (2011) 14 SCC 448 , the standard of a reasonable and practical woman as compared to a headstrong or over sensitive one, has to be applied. Moral conviction or conviction based on suspicion is not possible. Though there exists a strong suspicion about the involvement or role of the accused in the incident, suspicion, however strong it may be, cannot take the place of proof. Moral conviction or conviction based on suspicion is not possible. Though there exists a strong suspicion about the involvement or role of the accused in the incident, suspicion, however strong it may be, cannot take the place of proof. Conviction can only be made on the basis of cogent evidence and materials brought on record by the prosecution. The unexplained delay in informing the police, the failure of PW18 to record the F.I.S. of Rakhi, though she was fit and competent to give one, the discrepancies and inconsistencies in the testimony of the prosecution witnesses, raise doubts in the mind of the court. In the aforesaid circumstance, the possibility of tutoring or embellishments being made, cannot also be completely ruled out. That being the position, it may not be safe to convict the accused solely on the basis of Ext.P14 dying declaration. Hence, I find that the accused is entitled to get the benefit of doubt. In the result, the appeal is allowed. The conviction and sentence of the appellant/accused for the offences punishable under Sections 304-B and 498-A IPC by the impugned judgment is set aside and the accused is acquitted under Section 235(1) Cr.P.C. His bail bond shall stand cancelled and he shall be set at liberty forthwith. Pending interlocutory applications, if any pending, shall stand closed.