JUDGMENT Mishra, J. -- 1. The appellant has preferred this appeal being aggrieved with the judgment dated 18.8.2015 passed by the Second Additional Sessions Judge, Harda in S.T. No.15 of 2013 by which, the appellant has been convicted for offence punishable under section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment with the fine amount of Rs.1,000/-, in default of paying the fine amount, additional R.I. for one year. 2. The prosecution case before the trial Court was that deceased Harsha Bai was married to co-accused Deepak, s/o Gulab and from their wedlock two sons were born. On 12.7.2012, in the burn condition deceased Harsha was brought to Bhagwati Hospital, Harda for treatment. The dying declaration was recorded, the deceased in her dying declaration has stated that her in-laws were harassing her and on 12.7.2012, in the morning at 3:00 am, the appellant jumped into her house and quarrel had taken place. The appellant after pouring kerosene on her, set her on fire. She herself extinguished the fire by pouring water in her bath-room and changed her clothes and on the pressure of neighbourers, her husband brought her to the hospital for treatment. After recording of the dying declaration, the deceased was sent for further treatment to Indore where on 7.8.2012, she died in Choithram Hospital and Research Centre. Intimation was sent to Police Station-Rajendra Nagar. The autopsy was conducted by Dr. Bharat Bajpayee (P.W-10). Case was registered in Police Station-Harda against the appellant and other accused persons. 3. The trial Court framed the charges under sections 498-A, 302, 302 read with 120-B of the Indian Penal Code and after trial acquitted the co-accused persons from all the charges and convicted and sentenced the appellant as stated in paragraph no.1 of the judgment, hence, this appeal. 4. Learned counsel for the appellant submits that the trial Court has convicted the appellant on the basis of dying declaration that is not trustworthy as the deceased after got tutored from her family members, had given the statements and falsely implicated the appellant, as the appellant was residing separately with his family and they were not residing with the deceased or her family. 5. 5. Learned counsel for the appellant further submits that on the same set of facts, rest of the co-accused persons were acquitted by the trial Court as the harassment of the victim/deceased by the family members of husband or in-laws was not proved and thus, the dying declaration is not fully reliable and her parents themselves have not supported the statement of deceased. 6. Learned counsel for the appellant further submits that the prosecution failed to prove how a person can reach on the second storey of the building without any ladder or stairs when the main entrance was locked and the deceased was with her husband on the second storey of the building. It was also brought on the record that the deceased was living happily with her husband and in that situation, if any stranger/family member will enter into the bedroom and tease her and try to outrage the modesty of a woman, her husband will retaliate or try to save his wife and it is not possible that the husband will remain silent when his wife will be burned by any other person. The trial Court has convicted the appellant on the basis of unreliable evidence. Hence, prayed to set aside the judgment. 7. Mr. Nitin Gupta, learned Government Advocate supported the judgment and argued that in the dying declaration it has been clearly stated that the appellant was harassing the deceased and by pouring kerosene, set the deceased on fire and being cousin brother of her husband, he did not interfere. The trial Court after proper appreciation of evidence, has convicted the appellant. Hence, the appeal be dismissed. 8. We have heard learned counsel for the parties and perused the record. 9. In this case, it is admitted that the deceased was a wife of Deepak and from their wedlock, two sons were born. Mayabai is her aunt-in-law, Bunti is her cousin brother-in-law, Gayatribai is her motherin- law and Sudhir is her brother-in-law/nandoi. 10. From the dying declaration, the allegations against these persons are that on the date of incident, the appellant jumped into the house of the deceased and on that, the quarrel took place. The appellant expressed that he is in love with the deceased, her husband did not give any reaction, and on that, the appellant took the kerosene from her kitchen, poured on her and set the fire by matchstick. The appellant expressed that he is in love with the deceased, her husband did not give any reaction, and on that, the appellant took the kerosene from her kitchen, poured on her and set the fire by matchstick. Her mother-in-law was constantly quarreling with her. She herself doused the fire by putting water in bath room and changed her gown. Her husband did not help her and he was not bringing the deceased to hospital but when the neighbourers and resident of nearby persons made pressure, then her husband brought her at Bhagwati Nursing Home. 11. The deceased alleged that her aunt-in-law Mayabai demanded gold earrings and necklace but she did not give her ornaments to her, on that, her aunt-in-law and appellant were abusing her. 12. She also alleged that her husband used to regularly abuse her and was threatening her to take divorce. She further alleged that when she went on roof to dry the cloths, she was doubted by her mother-inlaw on her character and further alleged that she used to say that the deceased was a lady of easy character. Her brother-in-law/nandoi threatened her that he will sell her in Burhanpur Market. She further alleged that her husband himself like appellant Bunti and was giving priority to him in each work. Her mother-in-law was harassing her. She further stated that her husband and mother-in-law were mentally torturing her. Her husband and his family members were making quarrel since last one year and due to that, she had gone to her parental home and her husband and family members did not bring her but after compromise, she was brought to her matrimonial home. 13. On these allegations, the prosecution witness Ashok (PW-1) and Damodar Prasad (PW-2) have not supported the prosecution case. In the same way, Narmadabai (PW-3) has stated that the deceased along with her husband and mother-in-law was residing happily. She has no knowledge that there was any dispute amongst them. 14. Shakuntalabai (PW-4), the mother of the deceased has stated that deceased Harsha was married with Deepak 10-11 years prior to the date of statement recorded on 1.8.2014. She has stated that Bunti was the cousin of the husband of the deceased, Gayatribai was mother-inlaw, Mayabai was aunt-in-law and mother of Bunti and Sudhir was brother-in-law (nandoi). On 12.7.2012, her younger daughter Varsha informed her on telephone that Harsha had burnt. She has stated that Bunti was the cousin of the husband of the deceased, Gayatribai was mother-inlaw, Mayabai was aunt-in-law and mother of Bunti and Sudhir was brother-in-law (nandoi). On 12.7.2012, her younger daughter Varsha informed her on telephone that Harsha had burnt. On that, they reached Harda Hospital, the deceased was lying in the burn condition. The deceased stated to her mother that Bunti had burnt her. Once her daughter told her that Bunti used to harass her but deposed nothing against rest of the accused persons. Further, this witness has stated that Bunti was saying that she elope with him, otherwise, he will burn her. 15. Rajendra Chouhan (PW-5) has stated that Bunti burnt his daughter and his daughter during treatment stated this fact to him. She also stated that her sister-in-law was demanding placenta of her child when her second child was born for making tantra mantra and his daughter denied to do so. Her sister-in-law used to quarrel with his daughter. 16. In paragraph no.7 of his cross-examination, this witness has stated that Deepak had constructed a house and during that period, he had asked her daughter to bring money from her father but he had not paid the money and denied the fact that Deepak was harassing the deceased. 17. In cross-examination of Shakuntalabai (PW-4), it has been brought on record that the deceased’s elder son was of 10 years and younger son was of 8 years and it has also been brought on the record that father of Deepak was a government teacher and Deepak was also a teacher in the government school. 18. Rajendra Chouhan (PW-5) has clearly admitted in paragraph No.15 of his cross-examination that the sister-in-law (nand) of the deceased Jyoti and her husband Sudhir never harassed his daughter and no such allegation has been leveled against the rest of the family members of Deepak. 19. The main allegation against appellant is that their (parents of deceased) daughter told them that Bunti burnt the deceased. 20. Bhanu Pratap Singh (PW-15) recorded the dying declaration of the deceased and stated that on 12.7.2012, he recorded the dying declaration. Dr. 19. The main allegation against appellant is that their (parents of deceased) daughter told them that Bunti burnt the deceased. 20. Bhanu Pratap Singh (PW-15) recorded the dying declaration of the deceased and stated that on 12.7.2012, he recorded the dying declaration. Dr. Sneha Jain (PW-16) also stated that the deceased while being admitted in Choithram Hospital and Research Center, Indore, gave the history that on 12.7.2012 at 3:30 am, (wrongly mentioned as 9:30) due to property and family dispute, her cousin brother-in-law (chachere devar) burnt her by pouring kerosene oil and also told that the deceased doused the fire by pouring water upon her and she was admitted in Bagwati Nursing Home, Harda. ASI, Vinod Kumar Ikka (PW-14) has stated that on 12.7.2012, he was posted in Police Sahayata Kendra, District Hospital, Harda as a Head Constable. The deceased Harsha, w/o Deepak Baroriya was admitted in Bhagwati Nursing Home and after getting the MLC report, he visited Bhagwati Nursing Home Harda and filed an application before SDM, Harda for recording of the dying declaration of the deceased. Naib Tahsildar B.P. Singh (PW-15) recorded the dying declaration of the deceased. 21. Dr. R.B. Patel (P.W-17) has stated that on 12.7.2012, deceased Harsha Badoriya was brought to Hospital in burnt condition. The general condition of the deceased was poor but she was talking and conscious. She was burnt 35%. He had examined and prepared a M.L.C. report (Exhibit-P/24), thereafter he sent the information to Police Station-Harda. 22. Naib Tahsildar B.P. Singh (PW-15) came to the hospital and recorded the dying declaration of Harsha Badoriya and an opinion was sought, he certified that the injured Harsha was fit to record her statements and after completion of the recording of the statements, he verified and certified that patient was fit and conscious at the time of recording her statement. 23. On these aspects, the allegation against the husband was denied by her mother Shakuntala Bai (P.W-4) that any quarrel took place or she was harassed by her husband and her in-laws. 24. In the same way, Rajesh Chouhan (P.W-5) has also not stated that Deepak and his family members were harassing the deceased but also admitted that they never filed any complaint or lodged any report against the family members of Deepak in Police Station. 24. In the same way, Rajesh Chouhan (P.W-5) has also not stated that Deepak and his family members were harassing the deceased but also admitted that they never filed any complaint or lodged any report against the family members of Deepak in Police Station. In paragraph No.13, he clearly admitted that in her lifetime, her daughter Harsha never lodged any report against Deepak, his mother Gayatribai or his sister Jyoti or against her brother-in-law Sudhir and further stated that she never complained regarding the conduct of above four persons and she never complained against these four persons in her lifetime. In paragraph No.15, he also admitted that after one year of the birth of Pawan, no quarrel had taken place between the deceased and her nand/Jyoti and her nandoi/Sudhir. There was no nokjhok (quarrel) amongst Deepak, Gayatri and Sudhir with the deceased. Her son Pawan was along with Harsha at the time of incident. 25. Thus, the whole family was involved in the case but the parents of the deceased clearly stated that there was no genuine quarrel between the husband, nand or nandoi of the deceased. Furthermore, Shakuntala, mother of the deceased has stated that house of her daughter’s husband Deepak is constructed on main road and she has admitted that Mayabai and Bunti’s house is at the back side of this house in galli. She has also admitted that Deepak’s house is a pucca house. She admitted that there is only one way to enter into the house of Deepak and further stated that she had not seen the house of Deepak, so she cannot reply this. 26. Rajendra (P.W-5) in the cross-examination has stated that appellant Banti and his mother where residing separately and her daughter Harsha and Deepak were residing in a separate house. This witness also admitted that Deepak’s house was constructed two years prior to the incident and the house is two storey building and the house was completely locked from the back side and there is no gate on the back side and the stairs are from the front portion and that also from the inner side of the house. This witness also admitted that Deepak’s house was constructed two years prior to the incident and the house is two storey building and the house was completely locked from the back side and there is no gate on the back side and the stairs are from the front portion and that also from the inner side of the house. This witness stated that there is an electric pole in front of house of Deepak and by that any person can climb but he had not stated this fact in his case diary statement that using electric pole anyone can enter into the house of Deepak. Her daughter told that the incident took place on the second storey but she has not stated that in which room the incident took place. 27. On this aspect, what was location of the house and how anyone can reach into the house of the deceased and Deepak? Prosecution has submitted that the spot map (Exhibit-P/1), the incident is stated to have happened in the kitchen of the second floor and in the spot map, it is shown that in front of the house, there is a road and one electric pole18 meter away from the house and another was 15 meter away from the house. Thus, no electric pole was shown in front of the house and as per the spot map only one gate is shown and that is in the northern side of the house. From the statement of the witness, it is also clear that the appellant’s house was a kutccha house and situated in the galli and not adjacent to the house where the incident took place. The spot map has been proved by Moorat Singh Chouhan (P.W-12). 28. Under the circumstances in which the dying declaration was recorded, Shakuntala Bai (P.W-4) has stated that after receiving the information at 06:00 am and by the earliest train, they reached from Burhanpur to Harda. In paragraph No.25, this witness has admitted that when the dying declaration was being recorded by Tahsildar, she, her husband and family members of Deepak were present but Bunti and Mayabai were not present there. On the date of incident, she, her sisterin-law Rajni Chouhan and her husband directly went from Harda to hospital and at that time, the Tahsildar was recording the dying declaration of her daughter. On the date of incident, she, her sisterin-law Rajni Chouhan and her husband directly went from Harda to hospital and at that time, the Tahsildar was recording the dying declaration of her daughter. She has also admitted that her sister-in-law Rajni Chouhan is an Advocate and practicing law. Rajendra Chouhan (P.W-5) also admitted the fact that when they reached the hospital, the Tahsildar was recording the dying declaration and her sister Rajni also accompanied them. 29. The police officer on whose initiation, the dying declaration was recorded viz. Vinod Kumar Ikka (P.W-14) admitted that in Bhagwati Nursing Home, the parents of the deceased, brother, sister and other relations came. The deceased was admitted in the general ward and her parents met the deceased and conversation was made between the deceased and he could not deny the suggestion that the deceased was tutored by the family members and Advocate that came in the hospital in civil dress. 30. Bhanu Pratap Singh (P.W-15) has also not denied the fact that injured was tutored by any person or her relatives and stated that when he was recording the dying declaration, for the whole duration, the doctor was present in the room but the Dr. R.B. Patel (P.W-17) has stated in paragraph no.9 that after preliminary examination when the dying declaration was recorded by the Executive Magistrate, he went outside the ward and when the statements were completed, he finally certified her status. During the whole duration of statement, he was not present in the ward. He cannot deny the fact that the family members or relations were sitting there and had tutored the victim to give the incorrect statements. 31. Thus, from the above appreciation, it is clear that when the dying declaration was recorded, the parents and relatives of the deceased reached the hospital and this fact is clearly established and there are the chances that the deceased could have been tutored on the aspect that her mother-in-law, husband were quarrelling and harassing her, is not supported by the parents and neighbourers of the deceased. Hence, it is clear that the facts written in the dying declaration are not cent percent truthful. 32. Hence, it is clear that the facts written in the dying declaration are not cent percent truthful. 32. Furthermore, it is also clear that the house in which at the time of incident, the deceased was sleeping with her husband and it was not possible to reach without any artificial means like ladder or any other thing but the prosecution has not stated that by which mode, the appellant entered into the house of the deceased. 33. Furthermore, it is also noteworthy that it has been brought on the record that the appellant and the deceased were residing happily and his son was also present at the time of the incident. It may be that the son being younger was in sleep but the deceased in her statement has clearly stated that her husband was present and when the appellant stated that he was loving her and will carry her along with him, but natural any husband will not tolerate this absurd act of any person, though he may be the real brother. As per the dying declaration, the deceased was burnt by kerosene that was in her house but the police had shown kitchen as the spot of incidence but no recovery was made from that spot. 34. It is also noteworthy that the appellant put the deceased on fire and her husband did not extinguish the fire and not co-operated but her parents had not stated that Deepak had not brought the deceased to the hospital and it is clear that she was brought to the hospital. 35. What appears from the case is that certain quarrel had taken place and in that when the husband and the deceased were in their house and on that the deceased herself immolated her or her husband was involved in the case but to save her husband and his family members this whole case was concocted and on that basis, in Exhibit-P/18 and Exhibit-P/19, history was written otherwise, that was the reason that the Police got the dying declaration on 12.7.2012 and has not registered any case against Deepak or his family members. Deceased’s father Rajendra Chouhan was having the clear knowledge that the appellant has put her daughter into fire has not lodged any report to the Police Station Harda where he was in company of his sister who was a practicing Lawyer and Rajendra himself had undergone life imprisonment for the murder and in that situation not registering the case by the Police and no complaint by her family members creates the doubt that the appellant had lit the fire. 36. Thus, the dying declaration is not fully trustworthy and there is no further evidence against the appellant. The trial Court has convicted the appellant solely on the ground of dying declaration and on the same set of the evidence, has acquitted rest of the accused persons. Hence, the conviction and sentence of the appellant cannot be sustained in the eyes of law. 37. Thus, in view of above analysis, it is clear that only on the basis of the dying declaration that was recorded by the Executive Magistrate and oral dying declaration as disclosed by her family members, cannot be a basis for conviction of the appellant. Hence, the conviction and sentence imposed by the trial Court is set aside. The appellant is acquitted from all the charges. He be released forthwith if not required in any other case. 38. With the copy of this judgment, record of the trial Court be returned back.