JUDGMENT : A.P. THAKER, J. 1. Present appeal under Section 374 of the Code of Criminal Procedure, 1973, is preferred by the accused against the judgment and order of conviction dated 17.05.2013 passed by learned 5th (Ad-hoc) Additional Sessions Judge, Surat, in Sessions Case No.72 of 2009, whereby he has been convicted for the offence under Section 302 of the Indian Penal Code and directed to undergo sentence of life imprisonment and to pay fine of Rs.10,000/- and, in default, to further undergo simple imprisonment for six months. 2. The facts, as emerge from record, are that the complaint came to be filed by the deceased Neelamben stating that her marriage was solemnized with the appellant before one and a half year and, after marriage for about four months, they stayed together at matrimonial home and, thereafter, she came at Surat along with her husband. It is further the case of the prosecution that the complainant and her husband were residing with her mother in a rented premises and husband was doing embroidery work. It is stated in the complaint that on 26.11.2008, at about 9 O’ clock, accused came home and had a heated exchange of words with the owner of the house for leakage of water connection. It is also stated that he, thereafter, informed the complainant to change the house, however, the complainant refused to do so, therefore, the accused again got angry and as the complainant was residing with her mother most of the times, anger of the accused increased and he threatened her of her life. According to the prosecution, on 27.11.2008, in the morning at about 9 O’ clock, husband of the complainant informed her to vacate the house as the husband was suspecting her character, he decided to shift his house. There is also averment in the complaint to the effect that, on the same day, after about 12 O’ clock, accused suddenly got angry and poured kerosene upon the complainant and set her on fire and ran away. Said complaint was filed against present appellant as well as his mother and the same came to be recorded as C.R.No.506 of 2008 in Varaccha Police Station. 2.1. Pursuant to the complaint, investigation commenced and during such investigation, Executive Magistrate has recorded the statement of the complainant in the form of dying declaration. Said complaint was filed against present appellant as well as his mother and the same came to be recorded as C.R.No.506 of 2008 in Varaccha Police Station. 2.1. Pursuant to the complaint, investigation commenced and during such investigation, Executive Magistrate has recorded the statement of the complainant in the form of dying declaration. During the course of investigation, necessary panchnama of place of incident, recovery of clothes of the accused, arrest of the accused were also prepared and necessary statements of the witnesses came to be recorded by the investigating officer. The investigating officer has also send muddamal to FSL. Since there was sufficient evidence against both the accused, concerned police officer filed chargesheet before concerned Magistrate Court, wherein it was registered as a Criminal Case. After verifying that the accused have received police papers and as the offence was exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions under Section 209 of Criminal Procedure Code by the learned Magistrate which was registered as Sessions Case No.72 of 2009. 2.2. The concerned Sessions Judge framed charge under Section 302 read with Section 114 of the Indian Penal Code at Exh.9 against both the accused. Both the accused have denied having committed any offence and pleaded for trial. Pursuant to that, the prosecution has examined 15 witnesses and produced 19 documents, as reflected in paragraph 7 of the judgment. After closure of evidence of prosecution, further statements of both the accused came to be recorded by the trial Court. The accused have contended that they have not committed any offence. It is the specific defence of the present accused that the deceased was his wife and she liked to reside with her mother at Surat, which was not liked by the accused and, therefore, there was divorce between the parties. He has also stated that thereafter she told the accused to reside at Surat, separately from her mother, and therefore they have started residing in rented premises. However, the complainant was used to frequently go to stay with her mother, which was not liked by him. Therefore, he left the house. It is the defence of present appellant that she was having love with him and she also wanted to reside with her mother, therefore, she might have committed suicide. However, the complainant was used to frequently go to stay with her mother, which was not liked by him. Therefore, he left the house. It is the defence of present appellant that she was having love with him and she also wanted to reside with her mother, therefore, she might have committed suicide. He has stated that neither mother Shobhnaben nor aunt Minaxiben, has seen him at the time of the incident and the false case has been inflicted upon him, with the help of police. However, the accused side has not examined any defence witness nor have examined themselves on oath. 2.3. After perusing the aforesaid evidence and hearing both the sides, ultimately, learned Sessions Judge has acquitted mother i.e. accused no.2 from the charge levelled against her and has convicted the accused for the offence, as referred to herein above, and has passed sentence thereof. 3. Heard learned advocate Mr.Ashish Dagli for the appellant and learned APP, Mr.H.K.Patel for the respondent-State at length. Perused the material and the evidence on record and the decisions cited at bar. 4. Learned advocate, Mr.Dagli, for the appellant has vehemently submitted that there are no eye witnesses, who have seen the incident taking place. He has contended that the prosecution has heavily relied upon the dying declaration in the form of FIR as well as one statement made before Executive Magistrate. He has submitted that, however, the prosecution failed to prove said dying declarations beyond reasonable doubt and both are not trustworthy. He has submitted that there is contradictory version in both the dying declarations. 4.1. While referring to the contents of FIR along with dying declaration recorded by Executive Magistrate, Mr.Dagli has submitted that there is allegation in the dying declaration that the appellant had caught hold of the deceased, closed her moth and poured kerosene on her and set her on fire and fled from the scene of offence. According to him, it is impossible for one person to do all these things at once and it is also not possible that there would be no resistance. He has also submitted that there is no endorsement from the doctors in dying declaration as well as FIR that the deceased was in fit state of mind to give the statement. According to him, it is impossible for one person to do all these things at once and it is also not possible that there would be no resistance. He has also submitted that there is no endorsement from the doctors in dying declaration as well as FIR that the deceased was in fit state of mind to give the statement. According to him, the alleged incident took place at around 12.30 p.m. but dying declaration was recorded after 5 p.m. and, during this time, the deceased was constantly surrounded by her mother and maternal aunt, as per their own evidence. 4.2. Mr.Dagli has also submitted that, as per Exh.86, the Executive Magistrate has received Yadi for recording dying declaration at 17.55 hours and the time of starting dying declaration at Exh.87 is also 17.55 hours, which is not probable. 4.3. Mr.Dagli further submitted that, in the complaint, deceased has stated that the incident has occurred in room no.23, whereas they were living in room no.25. He has submitted that as per the evidence of Shobhnaben, PW-2, they were residing in room no.25 and her daughter was residing in the room next to their neighbour. As per the evidence of Minaxiben, PW-3, Exh.39, she was residing in room no.25. 4.4. Mr.Dagli also submitted that, as per dying declaration, the deceased had a quarrel with the accused at about 12 p.m. but the same is not corroborated by the P.W.3, maternal aunt or mother. He has submitted that, in the complaint at Exh.67, it is narrated that there was heated exchange of words between them on the previous day. 4.5. He has submitted that, in the dying declaration, mother-in-law of the deceased was also involved in offence, however, she was not even present at the place of incident and, she is acquitted from the charges levelled against her. He has submitted that this raises question on the credibility of dying declaration. 4.6. He further submitted that even the Executive Magistrate in his evidence has failed to provide information about condition of the deceased at the time of recording of dying declaration. He has submitted that this raises question on the credibility of dying declaration. 4.6. He further submitted that even the Executive Magistrate in his evidence has failed to provide information about condition of the deceased at the time of recording of dying declaration. While referring to Exh.86, Mr.Dagli has submitted that, from this document, it appears that ASI, A.B.Patel was the first person to reach the hospital and was the one, who had sent yadi to Executive Magistrate and from the document at page 294 of the paper book, it can be seen that at around 4.15 p.m. when yadi was sent, story of alleged incident had not been narrated and, therefore, the same was not conveyed in the aforementioned yadi. He has submitted that ASI, Mr.A.B.Patel has not been examined as witness by the prosecution. 4.7. While referring to the evidence of doctors, Mr.Dagli has submitted that both of them have deposed that the deceased was admitted in the hospital at 7.30 p.m., whereas the incident has taken place at around 12.30 p.m., the complaint was filed at about 4 p.m. and the dying declaration was allegedly recorded at around 5.55 p.m. and all these creates doubt regarding prosecution story. 4.8. Mr.Dagli also submitted that as per the evidence of Shobhnaben, mother of the deceased, she had seen present appellant leaving and later heard screams of her daughter. He has submitted that if the present appellant had set her on fire, she would have started screaming before the present appellant left the house. He has submitted that this creates doubt on her version about the alleged incident. 4.9. Mr.Dagli, while referring to the evidence of mother as well as maternal aunt, has submitted that, as per the evidence of mother, maternal aunt of the deceased came afterwards when police reached the place, whereas maternal aunt Minaxiben has deposed that she was present at the place at the time of incident. He has submitted that considering the evidence of mother, it clearly appears that presence of Minaxiben and her having seen the accused running away from the place of incident is doubtful. He has also submitted that daughters of Shobhnaben, who were present at the place of incident and who are material witnesses, have not been examined by the prosecution. He has submitted that no independent witnesses have supported the case of the prosecution. He has also submitted that daughters of Shobhnaben, who were present at the place of incident and who are material witnesses, have not been examined by the prosecution. He has submitted that no independent witnesses have supported the case of the prosecution. He has also submitted that there is no trustworthy evidence to prove the presence of the accused at the place of incident at the relevant time. He has also contended that since there are contradictions in FIR and alleged dying declaration, the same cannot be relied upon. 4.10. Mr.Dagli has also submitted that, in the present case, after closure of evidence of the prosecution and after recording of further statement of the accused, Executive Magistrate has been examined by the prosecution, however, the record reveals that such further examination of the witnesses and the documents thereof has not been specifically put to the accused in their further statement recorded under Section 313 of Criminal Procedure Code. He has submitted that, since the accused did not get opportunity to controvert such evidence, it cannot be relied upon against him. On the basis of aforesaid arguments, he has prayed to allow present appeal and to quash and set aside the impugned order of conviction and sentence passed by learned Sessions Judge. 4.11. In support of his submissions, he has relied upon following decisions:- (i) In case of B.N.Kavatakar and Another Vs. State of Karnataka reported in 1994 Supp (1) SCC 304, there was a death of the deceased after five days of the occurrence in the hospital due to septicaemia secondary to injuries and peritonitis. In that view of the matter, the conviction under Section 302 was converted into Section 326 of the Indian Penal Code by the Apex Court. (ii) In the case of Jai Prakash Tiwari Vs. State of Madhya Pradesh in Criminal Appeal No.704 of 2018 by order dated 04th August 2022, the Apex Court has observed in para nos.26 to 30 as under :- “26. The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the course of trial. A reasonable opportunity entails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation. 27. A reasonable opportunity entails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation. 27. If all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not able to put forth a rational and intelligible explanation. Such, exercises which defeats fair opportunity are nothing but empty formality. Non-fulfilment of the true spirit of Section 313 may ultimately cause grave prejudice to the accused and the Court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion. 28. Such an omission does not ipso facto vitiate the trial, unless the accused fails to prove that grave prejudice has been caused to him. Although the counsel on behalf the accused has not proved any serious prejudice caused to him due to failure of the Court in framing individual circumstances; however, considering the long pendency of the matter and the right of the accused to have a fair and expeditious trial, we propose to proceed and decide the matter on its own merit. 29. It is an established principle of criminal law that the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution. Where an accused sets up a defence or offers an explanation, it is well-settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. [See M. Abbas v. State of Kerala, (2001) 10 SCC 103 ]. Further, it has been held by this Court in Parminder Kaur v. State of Punjab, (2020) 8 SCC 811 that “once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defence plea”. 30. Moreover, it is the solemn duty of the courts below to consider the defence of the accused. The same must be considered with caution and must be scrutinised by application of mind by the judge. The Court may accept or reject the same, however it cannot be done cursorily. The reasoning and the application of mind must be reflected in writing. However, from the observations extracted above, it is clear that the courts below have failed to undertake this solemn duty. The Court may accept or reject the same, however it cannot be done cursorily. The reasoning and the application of mind must be reflected in writing. However, from the observations extracted above, it is clear that the courts below have failed to undertake this solemn duty. Rather, the evidence of the accused has been dealt by the Court in a casual manner.” (iii) In case of Pankaj Vs. State of Rajasthan reported in 2016 (16 )SCC 192, the case was that there was no endorsement over the dying declaration of the Doctor. In that view of the matter, it was observed that in absence of certificate of the duty Doctor that the patient is fit to make a statement they have one ground to discard the dying declaration. It has also been observed that when a dying declaration is suspicious, it should not be acted upon without corroborative evidence. 5. Per contra, learned APP, Mr.H.K.Patel for the respondent-State has vehemently submitted that there is consistency in FIR and dying declarations. While reading the evidence on record, especially evidence of doctor, investigating officer, mother and aunt of the deceased as well as evidence of Executive Magistrate, he has vehemently submitted that the prosecution has been able to prove the factum of death of the deceased due to burn injuries. He has submitted that the deceased herself has given the complaint on same day and her dying declaration was recorded on the same day. He has submitted that even the accused has admitted in his further statement that he did not like the conduct of the deceased as she was insisting to reside with her mother. He submitted that this admission on the part of the accused would be a corroborative factor and supports the contents of the FIR and dying declaration. He has also submitted that there is consistent evidence of mother and maternal aunt that both husband and wife were residing in a rented room, separate from mother-in-law. He has submitted that mother has seen the accused going from ladder and, at that time, the deceased was already set ablaze. He has submitted that, as per the evidence on record, after setting the deceased on fire, the accused closed the door, which was opened by mother and she tried to douse the flames. 5.1. Learned APP, Mr.Patel has submitted that even panchnama of scene of offence supports prosecution version. He has submitted that, as per the evidence on record, after setting the deceased on fire, the accused closed the door, which was opened by mother and she tried to douse the flames. 5.1. Learned APP, Mr.Patel has submitted that even panchnama of scene of offence supports prosecution version. He has submitted that there is some mistake in recording time of admission in the hospital by doctor, and, on that basis, they might have deposed that deceased was admitted in hospital at 7.30 p.m. In this regard, he has submitted considering overall evidence, it is clearly found that the deceased was brought to hospital at 1 p.m. and, thereafter, statement of deceased as well as her mother-Shobhnaben and aunt-Minaxiben was recorded. Mr.Patel has also referred to the evidence of Executive Magistrate as well as other documents and submitted that police officer and Executive Magistrate have no personal grudge against the accused and there is no reason for them to give false evidence. He has submitted that narration given by the deceased in FIR and dying declaration are consistent and both the officers have stated that when they have recorded statement, the deceased was in fit statement of mind. He, therefore, submitted that FIR and dying declarations are trustworthy and the trial Court has rightly convicted the accused for the crime and proper sentence is imposed upon him. 5.2. Learned APP, Mr.Patel has submitted that it is well settled that if dying declaration is trustworthy then conviction can be based upon sole dying declaration. In support of his submission, he has relied upon following decisions:- (i) In the case of Muthu Kutty And Another Vs. State reported in (2005) 9 SCC 113 regarding dying declaration the Apex Court has observed in para 13 and 15 as under:- “13. At this Juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. At this Juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which" could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are : firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of "Justice. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock, [1789] 1 Leach 500. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock, [1789] 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain : "Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire? What is the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?" (See King John, Act 5, Sect. 4) The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mouth." 15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. 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 the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Panjben v. State of Gujarat, AIR (1992) SC 1817: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja & Anr. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Panjben v. State of Gujarat, AIR (1992) SC 1817: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja & Anr. v. The State of Madhya Pradesh, [1976] 2 SCR 764) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav and Ors., AIR (1985) SC 416 and Ramavati Devi v. State of Bihar, AIR (1983) SC 164) (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor, AIR (1976) SC 1994]. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg. v. State of Madhya Pradesh, [1974] 4 SCC 264). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P., AIR (1982) SC 1021]. (vi) A dying declaration with suffers from infirmity cannot form the basis of conviction. (See Ram Manorath and Ors v. State of U.P., [1981] 2 SCC 654) (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR (1981) SC 617]. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors v. State of Bihar, AIR (1979) SC 1505]. (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh, AIR (1988) SC 912]. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh, AIR (1988) SC 912]. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Medan Mohan and Ors., AIR (1989) SC 1519]. (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839].” (v) In the case of Purshottam Chopra and Another Vs. State (GOVERNMENT OF NCT OF DELHI) reported in (2020) 11 SCC 489 , the Apex Court has summed up the principles relating to dying declaration and its admissibility and reliability as under:- “1) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court. 2) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. 3) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. 4) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. 5) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement 6) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. 7) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. 8) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” (ii) In the case of State of Uttar Pradesh Vs. 8) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” (ii) In the case of State of Uttar Pradesh Vs. Virpal And Another reported in (2022) 4 SCC 741 , regarding the dying declaration, the Apex Court has summarized the prinicples as under:- “A dying declaration may be accepted without corroboration, based on application of the following principles: (1) It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) In order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” 6. In rejoinder, Mr.Dagli, learned advocate for the appellant has submitted that, according to the postmortem report, deceased has died due to septicemia and, therefore, conviction under Section 302 of IPC is not sustainable and it may be set aside. He has also submitted that considering overall evidence on record and on reappreciation of it, dying declarations in the shape of FIR are not trustworthy and statement before Executive Magistrate is not reliable and trustworthy. He, therefore, prayed to allow present appeal. 7. In sur-rejoinder, learned APP Mr.H.K.Patel has submitted that so far as question of septicemia is concerned, decisions relied upon by learned advocate for the appellant are not applicable in the present case and, as per P.M.report, septicemia was due to burn injuries. He has submitted that on this ground alone, conviction of the accused may not be set aside. He has prayed to dismiss appeal. 8. Prosecution witness Dr.Sandip PW-1, exhibit 14, in his evidence has stated that on 02.12.2008, Police from Varaccha Police Station brought the dead body of female Nilamben J. Gohil at 9 O’Clock. He has stated that he along with the Dr.Dipan Singal started post mortem at 9.05 a.m. and completed it at 10.25 a.m. He has stated that as per the papers she was admitted in SMIMER Hospital on 27.11.2008 at 7.30 p.m. He has stated that they have performed post mortem of the dead body and found that there were burn injuries all over the body except right axillary area of size 9*6 c.m. and left axillary areas of size 15*7 c.m. and left sole(foot) area. He has stated that such burn injuries were covering 95% of the total body. It is also stated that burn wounds having yellow greenish discharge with foul smell was noticed. He has stated that injuries were noted in form no.17 of the post mortem report. He has also stated that the hairs were burnt condition as well as eyebrow was also burnt and all the injuries were of antemortem. By narrating various injuries, he has stated that the internal injuries and external injuries were matching with each other and all were antemortem in nature. He has stated that the patient has died due to Septicemia, due to burnt injuries. He has produced the post mortem report identifying his signature and signature of other Doctor. 8.1. By narrating various injuries, he has stated that the internal injuries and external injuries were matching with each other and all were antemortem in nature. He has stated that the patient has died due to Septicemia, due to burnt injuries. He has produced the post mortem report identifying his signature and signature of other Doctor. 8.1. During his cross-examination on behalf of accused, he had admitted that the injuries which were found on dead body could be possible if the deceased has committed suicide. He has admitted that the burnt injuries were on 95% of the body. 9. Prosecution witness Vijay Karsanbhai Katariya, PW-2, exhibit 24 has stated that on the date of incident, the people of the society were present and at that time Ambulance 108 reached at place and Police checked the place of occurrence in his presence. He has stated that the Police has seized the burnt clothes from the scene of occurrence and panchnama was prepared and he along with other panch has signed the same. He has identified his signature as well as of other panch and the panchnama at the scene of occurrence at exhibit 25. However, he has denied that in his presence the clothes of accused was seized. He has stated that he does not know accused Jayesh. He has identified the muddamal articles which were seized from the place of occurrence however did not identified the clothes of the accused which is alleged to be seized in his presence. Thus, this witness though had not supported the basic version of the prosecution regarding the seizure of the cloth of the accused, he is not declared as hostile by the prosecution. 9.1. During cross-examination on behalf of the accused, he has admitted that all the signatures were obtained near the building gate and the Police has got these signatures when he was standing there. He has admitted that he does not know the contents of the papers and he has not even went to the place of occurrence and Police has not seized any material in his presence. He has stated that he does not know the accused. He has admitted that no accused were present at that time. He has stated that he does not know as to how the incident has happened. 10. He has stated that he does not know the accused. He has admitted that no accused were present at that time. He has stated that he does not know as to how the incident has happened. 10. Prosecution Witness Minaxiben Sohansingh (PW- 3) exhibit 39, in her deposition has stated that deceased Nilam got married with the accused and after her marriage, she stayed for just two to three months in her matrimonial home. She has stated that accused Jayesh was doing embroidery work. According to her version, thereafter deceased Nilam and accused came to reside at Surat and they were initially residing with her and thereafter they had separated. She has also stated that there were some matrimonial dispute between husband and wife and in case of some quarrel, Jayesh used to go to his native and thereafter he was coming back to Surat. She has stated that prior to more than two months, deceased and accused were residing in rented room. She has stated that the room was adjoining to her room no.25. She has stated that her own room no. is 25 whereas deceased Nilam was residing in room no.23. 10.1. She has stated that on the date of incident, she has went for her work and when she came back at 12.15, she saw that Jayesh was alighting the ladder in hurried manner. She has stated that when she reached the upper portion she heard the shouting and she saw that Nilam was in a sitting condition having blanket put over her body and at that time, her sister was there. According to the version of Minaxiben, her sister told him that Nilam has told that after pouring kerosene over her body, a lightened matchstick was thrown over her and thereafter, Jayesh ran away from the place. She has stated that when she asked deceased Nilam she has told that there was quarrel for vacating the room and as Nilam denied to vacate the room, Jayesh poured kerosene over her and put her ablaze. She has also stated that thereafter, ambulance 108 came and Nilam was shifted to Hospital and her entire body was having burn injuries and she had bandages over her entire body including the hand and fingers and Nilam has given complaint of the incident. 10.2. She has also stated that thereafter, ambulance 108 came and Nilam was shifted to Hospital and her entire body was having burn injuries and she had bandages over her entire body including the hand and fingers and Nilam has given complaint of the incident. 10.2. During his cross-examination on behalf of accused, she has stated that at 2.00 p.m. she went to the Hospital and at that time, Nilam’s mother and two sisters were there and she remained there till 5.00 p.m. in her room. She has stated that even her mother and sisters have not left the room. She has stated that when she went in Hospital, the Police was present. She has stated that the Police was with Nilam for almost one hour. She has stated the during the entire period, all the Police Men and the relative of the deceased were in the same room. She has stated that at 3.00 O’clock Police went away and nobody came thereafter. She has stated that the Police has recorded her statement as well as statement of the mother of the deceased. She has also stated that she used to do household work for family and on the date of occurrence after performing such work, she came back at home. She has stated that when she reached her society, the public was gathered outside the house. She has stated that she reached 3rd floor. She has stated that she does not know as to who is residing between room no.23 and 25. She has stated that when she reached on the 3rd floor, she seen that Nilam was sitting outside the room and many people from the apartment have gathered there. She has also stated that Nilam was sitting in a passage outside room no.23. She has admitted that on seeing Nilam at that place, she had talked with her sister Shobhnaben who has told her that she has put blanket over the body of Nilam by bringing it from room no.25. She has stated that she had talked with Shobhnaben for about 5 to 10 minutes and all these conversation happened in the presence of deceased Nilam. She has stated that she has not talked with anybody except Shobhnaben. She has stated that Deepika and Rashmi who are daughters of Shobhnaben were in the room no.25 and they were residing in the same room. She has stated that she has not talked with anybody except Shobhnaben. She has stated that Deepika and Rashmi who are daughters of Shobhnaben were in the room no.25 and they were residing in the same room. She has stated that when she saw Nilam in passage, she does not know what has happened prior to that. 10.3. She has also stated that the accused wanted to reside in another society, whereas the deceased did not like to shift there. She has stated that she does not know as to what was the quarrel between husband and wife. She has admitted that there were divorce between the deceased and the accused and thereafter Nilam and accused were residing separately in Surat as decided between them. She has admitted that prior to one and half month accused came from his native place and he has told deceased that they will reside separately and they were residing in room no.23. She has admitted that there was no telephone line in the room of the accused. 11. Prosecution Witness Surajmal Multanmal Rathi, PW-4 who is a panch witness, in his deposition at exhibit 40 has stated that the Police has shown room where there was smell of kerosene in the small room. He has also stated that he does not know as to whether any tin was seized or not. He has identified his signature at exhibit 25 and 26. However, he did not supported the basic version of the prosecution and therefore the prosecution has got him declared as hostile and has thoroughly cross-examined in respect of the contents of the panchnama. However, in such cross-examination also, he had not supported the basic version of the prosecution. 11.1. During the cross-examination on behalf of the accused, he has stated that Police has obtained his signature on papers which were already written and he has not gone with Police anywhere. He has also submitted that panch Vijaybhai has also put up his signature in his presence at one point of time. He has also stated that no any proceeding was really carried out by the Police in his presence. He has stated that he has never gone to the Police Station. 12. He has also submitted that panch Vijaybhai has also put up his signature in his presence at one point of time. He has also stated that no any proceeding was really carried out by the Police in his presence. He has stated that he has never gone to the Police Station. 12. Prosecution witness 5, Nitinkumar Jayaram Patel, who is a Scientific Officer, in his deposition at exhibit 41, has narrated that having received the message from the Police, he went to room no.23 and prepared the report on the basis of facts found thereof. He has stated that there were kerosene tin, pieces of burnt clothes, half burnt match sticks, which were seized by the Police by separate panchnama and he has instructed the Police to collect and seize the clothes of the accused as and when he is arrested. He has submitted his report at exhibit 43. 12.1. During his cross-examination, he has admitted that he has not mentioned the time on forwarding letter at exhibit 42. He has admitted that kerosene is an inflammable item and it may evaporate. The gas, petrol and kerosene are also inflammable and kerosene is speedily evaporates than gas and petrol. He has submitted that he himself has not collected the muddamal but got it collected by the Police. He has stated that the half burnt matchstick was found from the bathroom. He has stated that he cannot say on the basis of such half matchstick being found from the bathroom that the incident has happened in bathroom. He has shown his ignorance as to how much kerosene was there in the tin. He has admitted that no opinion of him is sought for as to the fact that whether the case is homicidal, suicidal or accidental. He has also stated that if there is a smell of kerosene on hands and hand is washed with soap, then, the smell would be evaporated. 13. Prosecution witness Vijendra Umedsingh, PW-6, in his evidence at exhibit 45 has deposed that he is the owner of the building wherein Nilam and her mother were residing. He has also stated that earlier Nilam was residing with her mother and thereafter she was residing with her husband after leaving one room from the rented room to another room. 13. Prosecution witness Vijendra Umedsingh, PW-6, in his evidence at exhibit 45 has deposed that he is the owner of the building wherein Nilam and her mother were residing. He has also stated that earlier Nilam was residing with her mother and thereafter she was residing with her husband after leaving one room from the rented room to another room. He has stated that on the date of incident, he was in market and his brother has informed him that daughter of one aunt, who is residing in a building owned by him, has got burn injuries. He has stated that he came home and informed 108-ambulance. He has stated that when he saw the victim, her entire body was in burnt condition. He has also stated that when he asked her regarding how it happened, she did not tell him anything. However, at the next moment, he has deposed that while she was taken in stretcher, she told him that after putting her ablaze her husband ran away. 13.1. During his cross-examination on behalf of the accused, he has stated that as soon as he received the message from his brother, he reached at his residence within 10 to 12 minutes and thereafter he has immediately called 108- ambulance. He has stated that thereafter within 15-20 minutes 108-ambulance came at the place. He has stated that he has no information as to at what point of time the incident has occurred. He has also stated that he has never went in the room prior to the incident and he has also stated that he has never seen deceased residing with her husband in the room. He has admitted that he has not narrated before the Police that when victim was being taken in stretcher, he has asked her and in reply thereto she has informed that after putting her ablaze, her husband has gone away. He has also admitted that he has never disclosed these facts to anybody and it is disclosed first time in the Court. He has stated that the Police has not called him for identification of the accused. 14. Prosecution Witness Shobhnaben Sohamsingh Khengar- (PW-7), who is mother of the victim-deceased, in her evidence at exhibit 46 stated that her daughter Nilam was married with the accused and mother-in-law and father-in-law of the deceased were residing at Mangrol Village. He has stated that the Police has not called him for identification of the accused. 14. Prosecution Witness Shobhnaben Sohamsingh Khengar- (PW-7), who is mother of the victim-deceased, in her evidence at exhibit 46 stated that her daughter Nilam was married with the accused and mother-in-law and father-in-law of the deceased were residing at Mangrol Village. She has also stated that at the time of marriage, her son-in-law i.e. accused was doing embroidery work in Surat. According to her version, there was some quarrel between her daughter and mother-in-law of her daughter and thereafter her daughter and accused came to reside at Surat. She has stated that initially both of them were residing with her and thereafter, they were residing in another separate room. She has also stated that there was some quarrel between husband and wife. She has stated that both husband and wife were residing in a separate room. She has also stated that whenever there was a telephone call from the mother of the accused, the quarrel was happening between husband and wife and the accused was beating Nilam. 14.1. She has also stated that prior to two days of the incident, as there was leakage in the tap, and the building owner had requested the accused to do something and at that time, accused got angry and told deceased that he did not want to stay there. She has also stated that for that there was some altercation between husband and wife and the accused was insisting for vacating the room. According to her version, on the date of incident, she was in her home, at about 12.00 p.m. accused had passed by her room and he was coming down through ladder and at that time she heard screaming from her daughter. She has stated that thereafter she went near the room of Nilam and found that the door was closed from outside and on opening it, she found that the entire body of the deceased was ablazed. She stated that she tried to specify the fire and want to throw water, but, water was not available and therefore she got it from her own room and threw it on Nilam’s body. She had stated that at that time, Nilam was telling that Jayesh poured kerosene on her and with matchstick she was put ablaze. She stated that she tried to specify the fire and want to throw water, but, water was not available and therefore she got it from her own room and threw it on Nilam’s body. She had stated that at that time, Nilam was telling that Jayesh poured kerosene on her and with matchstick she was put ablaze. She has stated that her sister has come from work and thereafter 108-ambulance came and Nilam was shifted to the SMIMER Hospital and treatment was given. She has also stated that her entire body was burnt and there was bandages on her entire body. She has stated that in the evening Police came and statement of Nilam was recorded. She has also stated that thereafter at 06.00 p.m. somebody came and they all were removed from the room and statement of Nilam was recorded by him. She stated that thereafter Nilam was alive for four days and ultimately died. 14.2. She has stated that her sister has also asked to Nilam regarding the incident and at that time, Nilam has told that her husband has put her ablaze on the ground of vacating the room. 14.3. During her cross-examination, on behalf of the accused, she has stated that she is doing labour work in the zari work and used to go at 9.00a.m. and return back at 12.30p.m. in afternoon for lunch and thereafter she used to go at 02.00 p.m. and return at 08.00 p.m. She has stated that on the date of incident, there was no festival. She has stated that on the date of incident, she has not gone to work. She has stated that her daughters were at home when the incident has happened. She has also stated that statement of her two daughters have not been recorded by the Police. She has stated that at the time of incident, she was in her room and sitting near the main door and saw that Jayesh was coming down from ladder and going down. She has stated that he has not talked with her. She has stated that when her daughter Nilam was being taken for treatment, at that time, her sister Minaxi came at the place. She has also stated that she along with her sister went to SMIMERS Hospital in ambulance. She has stated that he has not talked with her. She has stated that when her daughter Nilam was being taken for treatment, at that time, her sister Minaxi came at the place. She has also stated that she along with her sister went to SMIMERS Hospital in ambulance. She has stated that while Nilam was being shifted in 108-ambulance, at that time, Police was present there and Police did not inquire anything. She has stated that they reached hospital at 01.30 p.m. and till 06.00 p.m. Police had not recorded statement of her daughter Nilam. According to her version, she was residing in room no.23. She has stated that the room in which her daughter, with her husband, was residing has common latrine and bathroom which is on the right hand of the main door. She has stated that when she entered the room, she saw her daughter in burnt condition in a room. She has stated that she had not went to the bathroom and the door of the bathroom was open. She has stated that she has also shouted for help but none came there and she alone has tried to douse the fire on the body of the Nilam and during that 5 minutes period, nobody came there. She has stated that the incident has happened at 12.00 p.m. She has also stated when she saw accused climbing down from the ladder, her sister Minaxi was not there. She has stated that when she went in the room of the deceased, at that time also Minaxi was not there and Minaxi came when the deceased was being taken in 108-ambulance. She has stated that she has not seen that the deceased was sitting in the passage. 14.4. She has also stated that as soon as they reached Hospital, Police came there and Police talked with her daughter and recorded her statement but no signature of her daughter was taken by the Police. She has also stated that however, statement of her as well as statement of Minaxi was recorded by the Police at 01.30 p.m. and Police left the place at about 03.30 p.m. and thereafter Police did not came back. He has admitted that Nilam has not agreed to go in another room as was asked by the accused. She has also stated that however, statement of her as well as statement of Minaxi was recorded by the Police at 01.30 p.m. and Police left the place at about 03.30 p.m. and thereafter Police did not came back. He has admitted that Nilam has not agreed to go in another room as was asked by the accused. She has also admitted that she as well her sister has also tried to persuade Nilam to go to reside elsewhere but she did not agreed to do so. She has admitted that she was also not liking that accused and Nilam reside with them and accused and Nilam were residing against their wishes. She has denied a suggestion that deceased has committed suicide. She has denied the suggestion that false case has been filed against the accused. 15. Prosecution witness, Tribhuvanbhai Balabhai Sarvaiya, (PW-8), exhibit 58 has not supported the case of the prosecution and has stated that he does not know about the incident. He has been declared as hostile but even is cross-examination on behalf of the prosecution, he has not supported the case of the prosecution. 16. Prosecution witness, Sonusingh Umedsingh Rathod, (PW-9) in his evidence at exhibit 61 has stated that he has informed his brother Vijendrasingh on telephone regarding the happening of the event and thereafter 108- ambulance was called and Nilam was shifted in SMIMER Hospital. 17. It appears from the evidence of Shantaben Umedsingh Rathod, (PW-10), exhibit-62 that she has not supported the version of the prosecution and therefore she has been declared as hostile by the prosecution and she has been thoroughly cross-examined in respect of the facts narrated by her before the Police. However, she has not supported the version of the prosecution. During her cross-examination on behalf of accused she stated that she does not know Nilam as well as her husband. 18. Prosecution witness Ganpatbhai Shankarbhai (PW-11) in his evidence at exhibit 66 has stated that on 27.11.2008, he was P.S.O. in Varachha Police Station between 14.00 to 20.00 hours and at that time at 05.30 p.m. he received an FIR, which was filed before R.R.Ahir and accordingly he noted it down in the concerned register and made entry in the Station Diary which was under, Section 307 and 114 of the Indian Penal Code. He has referred it to Shri Ahir for further investigation. He has referred it to Shri Ahir for further investigation. During his chief-examination the forwarding letter as well as FIR came to be exhibited. During his cross-examination on behalf of the accused, he has admitted that the forwarding letter at exhibit 68 has not been written in his presence and in the said forwarding letter address of Nilamben has been shown as manmohan society, building no.1, room no.25. He has admitted that the complaint has to be written first and then forwarding letter is used to be written. He has stated that there is no endorsement on the forwarding letter and generally whenever any FIR along with forwarding letter is received, the endorsement is being made on such forwarding letter. He has admitted that there is a whitener used on exhibit 68. He has stated that it is his duty to send the copy of the FIR to the concerned Magistrate within 24 hours. However, in this case, it cannot be said as to on what date and time it was sent to the Magistrate. He has stated that according to him, a complaint came to be recorded at SMIMER Hospital. He has stated that the Police Station is at the distance of five minutes from SMIMER Hospital. 19. Prosecution witness Ramnath Rajamangal Ahir (PW-12), who is Investigating Officer, has in his deposition at exhibit 69 stated that on 27.11.2008 he was serving as Police Subinspector in Matavadi Chowki and at that time at about 15.15 hours he received one wardhi from SMIMER Hospital. He has stated that on the basis of such wordhi, Shri Amratbhai Bhikhabhai went to the hospital. He has also stated that thereafter he received such wordhi and therefore, at 17.00 hours he went to SMIMER Hospital and met Nilamben Jayeshbhai Gohil who was on bed no.4 in women division. He has stated that as she was conscious, first her dying declaration was recorded and thereafter FIR was registered. He has stated that after recording the complaint, he sent it for registration of the offence to the Police Station and also informed the Higher Officer. He has stated that he has also recorded statements of Shobhnaben, mother of the victim, as well as maternal aunt Minaxiben. 19.1. He has stated that after recording the complaint, he sent it for registration of the offence to the Police Station and also informed the Higher Officer. He has stated that he has also recorded statements of Shobhnaben, mother of the victim, as well as maternal aunt Minaxiben. 19.1. He has stated that thereafter, the place of occurrence was shown by Shobhnaben in presence of two panchas and therefore he got prepared the panchnama and seized the materials thereof and at that time, FSL Officer was also present and as per his instructions seized muddamal was sent to FSL Surat. He has also stated that thereafter he recorded the statements of eye witnesses and has also arrested the accused and got the FSL Report and after having found sufficient evidence, he filed charge-sheet. He has also stated that as the deceased has died, there was addition of Section 302 of the Indian Penal Code and has sent report to the Court accordingly. During his examination the contents of the statements of the witnesses, who have turned hostile came to be brought on record by the prosecution. 19.2. During his cross-examination on behalf of the accused, he has stated that as per his investigation alleged incident has happened at 12.15 p.m. He has also stated that deceased was brought in Hospital in 108-ambulance and he has not recorded statement of person attending 108- ambulance. He has admitted that he has not recorded statement of any person who has brought the deceased in stretcher from her room to 108-ambulance. He has admitted that during his investigation he has not found any facts suggesting that when the victim was in a stretcher somebody has asked her and victim has told to such person regarding the incident. He has admitted that witness Vijendra has not stated before him that when the lady was in stretcher he asked her and in reply thereof she had stated that her husband has put her ablaze. 19.3. He has admitted that Mr.Amratbhai Bhikhabhai was a member in Investigating Staff and he was A.S.I. He has admitted that a staff member in Investigating Team has authority to investigate crime. He has stated that Mr.Amratbhai might have left at about 03.15 p.m. He has stated that Amratbhai had got one and half hour upto 05.00 p.m. He has admitted that the SMIMER Hospital is 2.5 kilometers away from Varachha Police Station. He has stated that Mr.Amratbhai might have left at about 03.15 p.m. He has stated that Amratbhai had got one and half hour upto 05.00 p.m. He has admitted that the SMIMER Hospital is 2.5 kilometers away from Varachha Police Station. He has admitted that from the Matavadi Chowki as well as Varachha Police Station time of only two to five minutes are required to reach SMIMER Hospital. He has stated that when wordhi was received, Amratbhai was in Varachha Police Station and he himself was in Matavadi Chowki. He has stasted that the incident happened in Matavadi Chowki. He has stated that if any wordhi is received at Police Station he can be informed on telephone. He has stated that as soon as he received wordhi he immediately went to SMIMER Hospital from Matavadi Chowki. He has stated that he has not obtained any endorsement of the Doctor on the FIR. He has stated that even he has not got the presence of the Doctor at the time of recording of the FIR. He has stated that at 05.00 p.m. writing of FIR was started and it was completed at 05.30 p.m. According to him, after recording FIR he had immediately left the place. He has stated that when he meet Nilam her relatives were present in room. He has admitted that it has not so happened that at the time of recording of evidence, relatives were directed to go out of the room. He has admitted that no signature of Nilamben has been obtained on the FIR. He has also admitted that he has not obtained any endorsement of the Doctor on the FIR that the patient was conscious. 19.4. He has stated that he has no knowledge as to who has given wordhy at SMIMER Hospital however admitted that the said wordhy is recorded in the Police Station. He has stated that he has not inquired regarding who has given wordhy. He has also stated that he has not inquired as to why the wordhy was given at 03.15 though the incident was of 12.15. He has stated that he has not recorded statement of Amratbhai Bhikhabhai. He has also stated that Amratbhai has carried out inquiry till the dying declaration is recorded in the Hospital. He has also stated that he has not inquired as to why the wordhy was given at 03.15 though the incident was of 12.15. He has stated that he has not recorded statement of Amratbhai Bhikhabhai. He has also stated that Amratbhai has carried out inquiry till the dying declaration is recorded in the Hospital. He has stated that where Amratbhai went to the hospital Nilam was in hospital and Minaxi as well as Shobhnaben were also there in the hospital. He has admitted that Amratbhai has immediately investigated the facts and in any investigation, first of all FIR has to be recorded. He has admitted that Amratbhai could have recorded the FIR on the basis of the statement of Nilamben, Shobhnaben or Minaxiben. He has stated that when he reached Hospital, Amratbhai was in Hospital. 19.5. He has also stated that when he reached the Hospital, executive magistrate was not present. He has stated that at the time of receiving of FIR of Nilam, he has also recorded statement of Shobhnaben and Minaxiben and almost one and half hours were spent for the same. He has stated that when the complaint was being recorded, ASI Amratbhai was present as well as another PSI Mr.B.M.Patel was also present. 19.6. He has admitted that there is a whitener used in the forwarding letter at exhibit 68. He has also admitted that the FIR is not in question-answer form and the thumb impression on the FIR at exhibit 67 has not been identified by anybody. He has admitted that he had not obtained any endorsement of the Doctor regarding consciousness of the patient, on exhibit 67 and 68. He has admitted that in complaint at exhibit 67, the incident is alleged to be happened in bathroom. He has admitted that there was a necessity of drawing panchnama of the bathroom. He has stated that the half burnt matchstick was found from the bathroom and not from the room. He has stated that no any sign of offence was found from the bathroom. He has stated that when the half burnt matchstick was found from the bathroom, FSL Officer was present. 19.7. He has stated that the entire body of Nilamben was burnt and when he has recorded the complaint of Nilamben, her treatment was going on and her entire body was in bandages. He has stated that when the half burnt matchstick was found from the bathroom, FSL Officer was present. 19.7. He has stated that the entire body of Nilamben was burnt and when he has recorded the complaint of Nilamben, her treatment was going on and her entire body was in bandages. He has admitted that no time is mentioned on the complaint nor he has recorded the statement of sister of Nilam namely Rashmi and Deepika. He has stated that during his investigation, it was found that people from the society had gathered near the room where the incident has happened. He has further stated that during his investigation, it was not found that deceased was sitting in a passage outside the room. During his cross-examination the contradictions and additions recording the evidence of Shobhnaben and Minaxiben has been placed on record. 20. Prosecution witness Sadhnaben Umeshprasad Tiwari, (PW-13) exhibit 79, in her evidence has not supported the version of the prosecution and therefore she has been declared hostile. On her thorough cross-examination in respect of her statement before the Police by the prosecution, she has not supported the basic version of the prosecution. 21. Prosecution witness Vinodchandra Ratilal Maisuriya (PW-14), who is Executive Magistrate, who has alleged to have recorded the Dying Declaration of Nilamben, in his evidence at exhibit 85 stated that on 27.11.2008, when he was in SMIMER Hospital for taking dying declaration of another patient, he received the yadi to record the dying declaration of the present case. Therefore, he went in the one ward and met staff member thereof and thereafter staff member showed him the patient and thereafter he asked questions to the deceased. He has narrated the contents of the dying declaration which he has recorded and has stated that deceased has told him that her husband has poured kerosene upon her and put her ablaze and before that, her neck was pressed, and her mouth was closed. He has stated that thereafter thumb impression of the declarant was taken on the dying declaration. He has stated that dying declaration was completed on 18.10 hours in the evening and he has also put his own signature. He has produced the same at exhibit 87. 21.1. He has stated that thereafter thumb impression of the declarant was taken on the dying declaration. He has stated that dying declaration was completed on 18.10 hours in the evening and he has also put his own signature. He has produced the same at exhibit 87. 21.1. During his cross-examination on behalf of the accused, he has stated that prior to the present case, he was in another hospital at Shankheswar complex and from there he came to SMIMER Hospital. He has admitted that the in the letter which he had received (exhibit 86) name of Nilamben along with her entire residential address was narrated. He has admitted that in the letter at exhibit 86, time of incident has been shown as 12.15. He has admitted that the dying declaration which he has recorded is almost after 5 hours and 40 minutes from the incident. He has admitted that he has no knowledge as to the facts that during this 5 hours and 40 minutes, to whom deceased met and talked. He has admitted that the dying declaration is in a prescribed format and the questions, other than prescribed in dying declaration, have not been asked by him. He has admitted that dying declaration is a important document and after death of maker of it, he cannot be called for cross-examination and therefore he has to be more careful in recording dying declaration. He has admitted that if any doubt is created, while recording the dying declaration, he can ask supplementary questions thereof and thereby doubt can be removed. He has admitted that neck can be pressed by one hand or two hands. He has also admitted that mouth can be closed by one hand or two hands. According to his believe, a person can press neck with one hand and close the mouth with another hand. He has admitted that thus, for pressing neck and closing the mouth, both hands have to be used and both these actions cannot be done only with one hand. He has admitted that if person’s two hands are engaged in a way that one hand is used for pressing neck and another for closing mouth than, such person cannot pour kerosene and alight matchstick and put ablaze other person. He has stated that he has not got any explanation in this regard from Nilamben. He has admitted that if person’s two hands are engaged in a way that one hand is used for pressing neck and another for closing mouth than, such person cannot pour kerosene and alight matchstick and put ablaze other person. He has stated that he has not got any explanation in this regard from Nilamben. He has admitted that Nilamben has not narrated before him that the accused has poured kerosene over her entire body and when she tried to run away, her husband has pushed her in bathroom and there she was put ablaze by matchstick. He has admitted that according to dying declaration recorded by him, the entire incident had happened in one place only. He has admitted that at the time of recording of dying declaration, neither Doctor nor nurse was present. He has stated that before recording dying declaration he has not met the Doctor nor he has seen medical case papers. He has stated that to know the condition of the patient, as to whether patient is fit to give dying declaration, he has not met the Doctor. He has admitted that he has not got any identification of the thumb impression of the deceased by the relatives of the patient. He has admitted that there were policemen and relatives of Nilam in the room, where he went to record dying declaration. He has admitted that entire body of Nilam was in bandaged condition, however, there was no bandage on the mouth. He has admitted that as there was a swelling over the mouth, the face was not in identifiable condition. He has denied the suggestion that he has not followed the requisite precaution. He has also denied the suggestion that the entire dying declaration has been written down by him on the basis of the facts gathered from him by Police and relatives of Nilamben. 22. Prosecution witness Dr.Vihang Kantilal Sali (PW- 15), at exhibit 89, has stated that on 27.11.2008, he was resident Doctor in SMIMER Hospital and was present in surgery department. He has stated that on the last day of Nilamben, he had given treatment to her. He has stated that there was difficulty in respiratory system and there were 93 to 100% burns on her entire body. He has produced medical certificate at exhibit 90 and has stated that ultimately, she died. 22.1. He has stated that on the last day of Nilamben, he had given treatment to her. He has stated that there was difficulty in respiratory system and there were 93 to 100% burns on her entire body. He has produced medical certificate at exhibit 90 and has stated that ultimately, she died. 22.1. During his cross-examination on behalf of accused, he submitted that he has only visited the patient on the last day and on prior to that he has not visited the patient. He has admitted that he has no knowledge regarding the condition and treatment of the patient prior to that. He has admitted that the patient was admitted in the hospital on 27.11.2008 at 07.30 p.m. 23. Considering the submissions made on behalf of both the sides coupled with the various decisions relied upon by both the sides in relation to the dying declaration as well as the necessity of putting questions to the accused under Section 313 of the Code of Criminal Procedure and the material placed on record, it appears that the prosecution is relying upon two alleged dying declaration of the deceased i.e. FIR and the dying declaration recorded by the Executive Magistrate. The Trial Court has also relied upon these two piece of evidence for convicting the present accused. It is pertinent to note that in both these documents, there is allegation against the mother of the present accused i.e. mother-in-law of the deceased for her involvement in the alleged incident. It is admitted fact that the Trial Court has not believed that part of the version of the dying declaration and FIR in respect of the mother-in-law of the deceased and has acquitted her from the charges levelled against her. This acquittal has not been challenged by the prosecution and thus, prosecution has accepted the acquittal of the mother-in-law. 24. Now, the entire case is based upon these two documentary evidence. The version of the defence is that there is inconsistency in both these documents and both are not reliable. Now, on perusal of the complaint, it reveals that it has been narrated that on earlier date i.e. 26.11.2008, there was dispute over the water tap with the owner and on the date of incident on 27.11.2008, at 09 O’clock, accused informed the deceased that he wanted to vacate the house and pressurized her to shift at another place. Now, on perusal of the complaint, it reveals that it has been narrated that on earlier date i.e. 26.11.2008, there was dispute over the water tap with the owner and on the date of incident on 27.11.2008, at 09 O’clock, accused informed the deceased that he wanted to vacate the house and pressurized her to shift at another place. It is narrated in the complaint that as deceased refused to vacate the room, at about 12.15 hours, her husband got excited and poured kerosene from tin and as she tried to run away, accused gave a push to her and she was thrown in bathroom and thereafter matchstick was ignited and thrown upon her and due to that she has sustained burn injuries. Against these facts of FIR, in the dying declaration at exhibit 87, it has been narrated that on 27.11.2008, there was hot exchange of words between deceased and accused and at that time, her neck was pressed, mouth was closed by hand and accused poured kerosene and ignited her. It is also stated in the said dying declaration that she wanted to see that her husband is hanged till death. Thus, on comparison of the averment in the FIR as well as dying declaration, it appears that both are not in consistence with each other. Had the accused used his both hands i.e. putting his one hand for pressing her neck and another closing her mouth, there was no any chance for the accused to pour kerosene over her and light a matchstick. Thus, this version of the dying declaration itself is not in consistence with the averment in the FIR. 25. It also reveals from the evidence of the Investigating Officer that he has recorded the complaint first and thereafter dying declaration was recorded. Thus, if the FIR has been recorded first on point of time, the deceased was in knowledge of the fact which she has narrated before the Police in the FIR and therefore, there would not be any divergent facts recorded in the dying declaration, which is, subsequent in time. Further it is also revealed that neither the Police Officer nor the Executive Magistrate have cared to obtain medical opinion regarding the consciousness and fitness of the deceased to give dying declaration and the FIR. 26. Further it is also revealed that neither the Police Officer nor the Executive Magistrate have cared to obtain medical opinion regarding the consciousness and fitness of the deceased to give dying declaration and the FIR. 26. It reveals from the medical evidence that deceased was having 93% to 100% burns injury and her entire body except mouth were covered with the bandages. Thus, when the hands of the deceased was also having bandages, the question as to how she could have put her thumb impression on both these documents creates doubt. It also reveals from the evidence of Executive Magistrate that at the time of recording of alleged dying declaration due to swelling her face was not identifiable. It also reveals from the evidence of the Investigating Officer that when he has recorded the FIR the relatives of the deceased were also in the same room. 27. Further, as per the prosecution case, the incident has happened in the room, whereas as per the alleged statement of the deceased on pouring the kerosene upon her by the accused, she tried to run away and at that time, accused Jayesh gave a push to her in the bathroom and in the bathroom a lightened matchstick was thrown upon her. If this version is true, than, the incident of putting ablaze a deceased would be not the room, but, the place of occurrence would be bathroom. However, as per the evidence of the Scientific Officer as well as the Investigating Officer, they could not found any such material to suggest that the incident has happened in the bathroom. Of course, it is admitted by the Investigating Officer and as per the evidence of the FSL Officer, half burnt matchstick was found from the bathroom. Moreover, there is also some ambiguity regarding the room number. According to the statement of the deceased, she was residing in room no.23 and charge has also been framed in respect of the happening of the incident in room no.23, however as per dying declaration room number is shown as 25. It also reveals from exhibit 86, which is a letter sent by one Mr.A.B.Patel to the Executive Magistrate for recording of the dying declaration of the deceased. It also reveals from exhibit 86, which is a letter sent by one Mr.A.B.Patel to the Executive Magistrate for recording of the dying declaration of the deceased. It reveals that in the said forwarding letter there is a mention of janvajog entry no.171 of 2008 recorded in Varachha Police Station wherein there is narration that the incident has happened in room number 25 and there is averment that due to unknown reason Nilamben has got serious burn injury on her entire body and she has been admitted in SMIMER Hospital. In the said letter, there is also averment regarding the marriage span of the decease of having one and half years and she is residing with her husband. This letter is dated 27.11.2008 and time is mentioned at 04.15 p.m. and the said has been received by the Executive Magistrate on the same day at 17.55. At the same time, on perusal of dying declaration at exhibit 87 as recorded by the Executive Magistrate, the address of residence mentioned by the deceased is also Manmohand Society, Room no.25. Against this, the panchnama of room no.23 has been carried out and in FIR the place of incident is alleged to be 23. Thus, there is ambiguity about the place of occurrence. 28. Further, it is also revealed from the evidence of the Investigating Officer that Mr. Patel who has sent the letter to the Executive Magistrate has also initially investigated and has sent the letter to the Executive Magistrate. Thus, the person who has reached to the victim first is Mr.Patel, who, as admitted by the Investigating Officer, was a staff member of the Investigating Team and is authorized to investigate the matter. However, that fellow has not been examined by the prosecution. 29. It is admitted facts that in the present case, after recording of the further statement of the accused initially, the prosecution has examined executive magistrate and the Doctor, who has lastly attended the deceased, and thereby produced the alleged dying declaration of the deceased and the medical papers. Now, on perusal of the further statement of the accused, which was recorded after recording of evidence of these two witnesses, it reveals that the general questions regarding their evidence has been put to the accused in his further statement recorded under Section 313 of the Code of Criminal Procedure. Now, on perusal of the further statement of the accused, which was recorded after recording of evidence of these two witnesses, it reveals that the general questions regarding their evidence has been put to the accused in his further statement recorded under Section 313 of the Code of Criminal Procedure. However, the detailed questions in respect of the evidence which has been recorded in the shape of the oral evidence of Executive Magistrate and the contents of the alleged dying declaration are not specifically put to the accused in such further statement. This is also one of the lacuna and which has affected the valuable right of the accused to give any necessary explanation in respect of the evidence which is likely to be used against him for his conviction. 30. Thus, considering the entire facts and circumstances of the case and the entire evidence on record, it clearly transpires that the alleged two dying declaration i.e. in the form of FIR at exhibit 67 and dying declaration as alleged to be recorded by Executive Magistrate (exhibit 87)are not trustworthy. It also reveals as observed hereinabove that there is also discrepancy in the evidence of the eye witnesses i.e. mother and the aunt and the ambiguity in regard to the place of occurrence. On reappreciation of the entire evidence on record, it clearly transpires that the Prosecution has not been able to prove the case against the present accused beyond reasonable doubt. On perusal of the impugned judgment of the Trial Court, it appears that for the same narration in the FIR and the dying declaration, it has acquitted one accused not relying upon the contents of both the said documents and yet on the same narration has convicted the present accused. It appears that the Trial Court has committed serious error of facts and law in passing the impugned order of conviction and sentence against the present accused. 31. In view of the above, the present appeal is liable to be allowed. In the result, the appeal is allowed. The impugned judgment and order of conviction and sentence dated 17.05.2013 passed by learned 5th (Ad-hoc) Additional Sessions Judge, Surat, in Sessions Case No.72 of 2009 is hereby quashed and set aside. The appellant is ordered to be set at liberty forthwith, if not required in any other case. Fine, if any, paid be refunded to the appellant. The impugned judgment and order of conviction and sentence dated 17.05.2013 passed by learned 5th (Ad-hoc) Additional Sessions Judge, Surat, in Sessions Case No.72 of 2009 is hereby quashed and set aside. The appellant is ordered to be set at liberty forthwith, if not required in any other case. Fine, if any, paid be refunded to the appellant. Registry is directed to return the R & P to the concerned trial Court forthwith.