JUDGMENT : (Mohd. Akram Chowdhary, J.) : 1. The State is in appeal against the judgment of acquittal dated 20.03.2007 passed by the learned Sessions Judge, Poonch [“the trial court”] in Sessions Case No. 15/Session titled 'State of J&K v. Surinder Kumar', whereby respondent as an accused was acquitted of the charge for the commission of offences punishable under sections 376/306 RPC arising out of FIR No. 40/2000 registered at Police Station, Poonch. 2. Before adverting to the grounds of challenge urged by Mr. Adarsh Bhagat, GA to find fault with the judgment impugned, a brief reference to the prosecution case, as was set up before the trial court, would be worthwhile to narrate. FIR No. 40/2000 for commission of offences under sections 376/309/34 RPC came to be registered at Police Station Poonch, on the basis of statement of deceased Jyoti Sharma, which was recorded by ASI Ali Mohd. in the District Hospital, Poonch. As per this statement, in the intervening night of 17/18 April, 2000, while she was sleeping in the house of her uncle Chaman Lal, respondent along with Ashu and Rimple came there and committed rape on her while the two other boys were standing on the door; that at that time, minor daughters of Chaman Lal were also sleeping in the house; that she left for the house of PW-Chander Parkash and returned back to her uncle's house at 5 a.m. thereafter at 5:30 a.m. respondent left for his house. The deceased, who was alone along with minor daughters of Chaman Lal, managed to send them to school and thereafter having felt insulted and out of fear that her uncle will beat her and public will laugh at her, she attempted to commit suicide at about 11 a.m. by setting her ablaze. 3. After registration of the FIR, investigation was handed over to Sub Inspector Ahmed Din, who visited the spot and prepared site plan. Burnt pieces of clothes belonging to deceased, a match box and a plastic gallon containing kerosene oil were seized and forwarded to FSL. The deceased having 100% burn injuries died in the hospital on the same day in the evening, therefore, offence under section 309 was substituted by 306 RPC. The post-mortem was conducted and the dead body was handed over to her relatives for last sites. Statements of the witnesses under section 161 CrPC were recorded. The deceased having 100% burn injuries died in the hospital on the same day in the evening, therefore, offence under section 309 was substituted by 306 RPC. The post-mortem was conducted and the dead body was handed over to her relatives for last sites. Statements of the witnesses under section 161 CrPC were recorded. Respondent along with Ashu and Rimple were arrested. After completion of investigation, Ashu and Rimple, against whom no incriminating evidence was found, were dropped out and challan against the respondent was presented. 4. The respondent was charged with commission of offences punishable under section 376/306 RPC, however, respondent pleading not guilty denied the charge for the commission of offences punishable under section 376/306 RPC and claimed trial. Prosecution examined Dr. Femida Bandey, Chaman Lal, Ram Avtar, Sushil Kumar, Miss Mamta, Khem Raj, Chander Parkash, Om Parkash, Mohd. Latief, Dr. Farman Ullah and SI Ahmed Din as prosecution witnesses to prove the charge against the respondent. However, the respondent has not examined any witness in defence. 5. The matter was considered by the trial court and having regard to the evidence on record, it was concluded that the prosecution has miserably failed to bring home the guilt against the respondent beyond any reasonable shadow of doubt and accordingly, acquitted the respondent of the charge framed against him vide its judgment dated 20.03.2007. It is this judgment, which is assailed by the appellant in this appeal, inter alia, on the ground that the trial court has failed to appreciate evidence on record and has drawn an erroneous conclusion that the prosecution has failed to prove its case beyond reasonable doubt whereas the evidence on record was sufficient to connect the respondents with the commission of offences, he was charged with. 6. Having heard learned counsel for the parties and perusal of the record, I am of the view that having regard to the nature of evidence that has been brought on record by the prosecution, the trial court had no option but to dismiss the challan and acquit the accused. 7. As per the prosecution storey, respondent is resident of R.S. Pura Jammu, who had worked with Chaman Lal, the uncle of deceased for about 2 and half year at his shop at Surankote and had access to the house of Chaman Lal. 7. As per the prosecution storey, respondent is resident of R.S. Pura Jammu, who had worked with Chaman Lal, the uncle of deceased for about 2 and half year at his shop at Surankote and had access to the house of Chaman Lal. On 17.04.2000 at about 8 p.m. when deceased was preparing meal in the house of her uncle Chaman Lal, respondent along with two other boys came there. At that time minor daughter of Chaman Lal, namely, Mamta was present in the house. As per the prosecution, Chaman Lal along with his wife and other children had gone to Poonch town in connection with death of his real brother. The other two boys immediately left the house of Chaman Lal and went to attend a marriage. The respondent after taking meals slept in the room where deceased along with Mamta were sleeping. At about 11/12 O'clock during night, accused taking benefit of the situation committed rape on the deceased. When deceased raised noise, Mamta woke up and on this deceased feeling insulted went to the house of PW-Chander Parkash. On next day, the deceased was alone at her uncle's house, provoked with the act of rape and feeling insulted, sprinkled kerosene oil on her body and set herself on fire and later died in the hospital. 8. The case of the prosecution mainly rests on the “dying declaration” allegedly made by the deceased. Besides, the prosecution has also brought circumstantial evidence attending the commission of rape on the accused and subsequent events leading to commission of suicide by the deceased. 9. Insofar as proof of “dying declaration” is concerned, the prosecution has cited ASI Ali Mohd., Dr. Farman Ullah and Chaman Lal as witnesses to the dying declaration. PW-Ali Mohd. died before he could be examined by the trial Court. As per the prosecution case, on receipt of an information from the hospital, PW-Ali Mohd. was asked to visit the hospital and record statement of the deceased. The said police officer recorded the statement i.e. “dying declaration” of the deceased in presence of Dr. Farman Ullah, who attested the same. The case of the prosecution is also that the deceased had 99% burn injuries all over her body including hands and feet. It has also come in the evidence of prosecution that at 1:25 p.m., Dr. The said police officer recorded the statement i.e. “dying declaration” of the deceased in presence of Dr. Farman Ullah, who attested the same. The case of the prosecution is also that the deceased had 99% burn injuries all over her body including hands and feet. It has also come in the evidence of prosecution that at 1:25 p.m., Dr. Femida Bandey had certified that the deceased was not fit for giving statement. As per PW-Chaman Lal, the “dying declaration” was recorded at 3:00 p.m. and deceased died at 6 p.m. How the deceased, suffering 99% burn injuries, who was not fit to make statement at 1:25 p.m., becomes fit to make statement at 3 p.m. has not been proved by the prosecution, as opinion of the doctor was never sought with regard to fitness of the deceased to make statement. Further as per PW-Dr. Femida, upto 2 p.m. the deceased was not in a position to speak. The best witness to prove the dying declaration could have been ASI Ali Mohd. or Dr. Farman Ullah, who, as per the prosecution, attested the dying declaration made by the deceased. Insofar as ASI Ali Mohd. is concerned, before he could be examined by the trial Court, he died. Dr. Farman Ullah, who, according to the prosecution, attested the dying declaration, however, refuted about his signatures on the dying declaration and denied the fact that dying declaration was recorded in his presence. Even on the dying declaration there is no certificate of the doctor that the deceased was fit to give statement what to talk of mental capacity of the deceased to make correct statement. 10. True it is that dying declaration of a person, without doctor's certificate on his mental fitness to make such a statement could be valid if the person recording the same was convinced about the soundness of mind of the deceased. In the instant case, PW-ASI Ali Mohd. the person who recorded the dying declaration has died during trial of the case, as such, his statement has not been recorded and even the doctor in whose presence, as per the prosecution, dying declaration was recorded and was claimed to have attested the same, denied not only his signatures on the dying declaration but even his presence while recording the dying declaration of the deceased. Now remains the evidence of PW-Chaman Lal, who in his statement has deposed that the dying declaration was recorded in his presence. His statement does not inspire much confidence, as such, much weightage cannot be given to his deposition, in that, as per PW-Chaman Lal, the dying declaration was recorded in the presence of Dr. Farman Ullah, however, PW-Dr. Farman Ullah has denied his presence at the time of recording of dying declaration and even he has denied his signatures on the dying declaration. 11. The PW-Ram Avtar, who has been declared hostile, has in his deposition has stated that he was walking by road and when he heard noise he went on spot and saw PW-Sushil Kumar present there and when he enquired from the deceased, she told that due to burst of stove her clothes caught fire. The witness has further stated that he saw the stove in the kitchen that had bursted. PW-Sushil Kumar in his cross-examination has stated that he remained full day in the hospital and in his presence the deceased did not speak to any person. 12. It is a settled proposition that when interested witnesses were attending the deceased who was making a dying declaration and because of the injuries, the deceased was neither physically or mentally fit, no reliance can be placed on such dying declaration in the absence of evidence to show that the deceased was physically and mentally capable of making statement. 13. As per the prosecution, the statement of PW-Chaman Lal was recorded on 19th April, 2000 whereas the dying declaration was recorded on 18.04.2000. As per the prosecution, the case was registered at 4:30 p.m. and Investigating Officer went on spot where PW-Chaman Lal was also present. Why his statement was not recorded on 18th April, 2000 itself remained unexplained by the prosecution. In this view of the matter, prosecution evidence regarding dying declaration could not have been made basis to connect the respondent with the death of the deceased. 14. Why his statement was not recorded on 18th April, 2000 itself remained unexplained by the prosecution. In this view of the matter, prosecution evidence regarding dying declaration could not have been made basis to connect the respondent with the death of the deceased. 14. Another fact appearing in the dying declaration that Ashu and Rimple were standing at the door when respondent committed rape with the deceased makes the dying declaration doubtful because this fact has not been established during investigation as the same has been contradicted by PW-Mamta, minor daughter of PW-Chaman Lal, who, according to the prosecution, was present in the room where respondent allegedly committed rape with the deceased. She has in her deposition stated that all the three entered the house where they started talking with each other and after some time Ashu and Rimple went away and respondent stayed there. 15. As per the prosecution case and the dying declaration, deceased went to the house of PW-Chander Parkash, who in his statement recorded under section 161 CrPC stated when the deceased came to his house, she told him that she had been sexually assaulted by the respondent. The witness further stated that on the date of occurrence, when he went to open the water tank, deceased again told him that accused who came to the house of her uncle with Ashu and Rimple committed rape with her. But this witness while appearing before the trial Court deposed that upon knocking of door by the deceased, he opened the door and saw the deceased weeping and on enquiry, she told him nothing and thereafter she slept in his house. It is also quite unnatural that PW-Chander Parkash on being told during the night soon after alleged occurrence of rape, by the deceased/victim, as to how she came back alone in the wee hours to find the accused there, who left thereafter. 16. The prosecution story with respect to commission of rape by the respondent on the deceased is also belied by the statement of PW-Dr. Femida Banday, who in the post-mortem report has reported that hymen of the deceased was intact and there was no injury on the private parts of the deceased. As per the post-mortem report, no spermatozoa was found in vaginal and cervical parts of the deceased. Femida Banday, who in the post-mortem report has reported that hymen of the deceased was intact and there was no injury on the private parts of the deceased. As per the post-mortem report, no spermatozoa was found in vaginal and cervical parts of the deceased. Thus, the deposition of this prosecution witness ruled out any intercourse or partial penetration having taken place with the deceased. 17. Hon'ble Apex Court in a case titled Jayamma & Anr. v. State of Karnataka reported as 2021 CrLJ 2900 , in a case of murder, while meditating over the issue of dying declaration held that owing to 80% burn injuries by the victim on all vital parts of the body, it can be legitimately inferred that she was reeling in pain and was in great agony and the possibility of her being in a state of delusion and hallucination cannot be completely ruled out. The Apex Court in another case titled Naresh Kumar v. Kalawati & Ors. reported as 2021 AIR SC 1605: 2021 (2) JKJ 273 [SC] also dealt with regard to admissibility of dying declaration in para 9, which is extracted as under:- “9. A dying declaration is admissible in evidence under section 32 of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.” 18. In the instant case the deceased had received 100% burn injuries and doctor who attended the deceased certified at 1:30 p.m. that she was not fit to make a statement, how at 3:00 p.m., she was fit to make a statement. Moreover the same doctor was stated to have certified about fitness but he refuted that he had made any such certificate and that his signatures were forged. Moreover the same doctor was stated to have certified about fitness but he refuted that he had made any such certificate and that his signatures were forged. Therefore, in view of the afore-stated law laid down by the Apex Court, being squarely applicable to the facts of the case, dying declaration being suspect is liable to be rejected to base conviction. 19. In view of the evidence that has come on record before the trial Court, the prosecution has failed to prove its case on both counts i.e. dying declaration as well as commission of rape upon the deceased by the respondent, therefore, conclusion drawn by the trial Court that the prosecution has failed miserably to bring home the guilt against the respondent cannot be found fault with. 20. Viewed from any angle, it is not a case, where it could be said with certainty that the prosecution has proved its case by leading cogent evidence. This Court, therefore, is left with no option but to concur with the view taken by the trial Court. Otherwise also, the jurisdiction of the Appellate Court hearing an appeal against an order of acquittal is well circumscribed. As is correctly said, acquittal of an accused in a trial doubles the presumption of innocence of the accused charged with commission of a crime. 21. In the acquittal appeal, even if the Appellate Court, after going through the judgment of acquittal and evidence on record, is of the opinion that two views are possible, it would take the view that would favour the accused. 22. Having regard to the evidence that has come on record and echoing the reasoning given by the trial court, I am not inclined to interfere with the well reasoned judgment of acquittal passed by the trial court. The acquittal appeal is, thus, dismissed. Bail/personal bonds executed by the respondent are discharged. 23. Trial Court record is ordered to be sent down forthwith along with a copy of this judgment.