The reliability of a dying declaration depends on the mental and physical health of the declarant, and it must be scrutinized in light of settled legal principles and court decisions.

DHARNIDHAR JHA, J.

These two appeals arise out of the judgment of conviction dated 22.04.2006 and order of sentence dated 24.04.2006 passed in Sessions Trial No. 165 of 2005/003 of 2005 by the learned Presiding Officer, F.T.C. IV, Araria by which the two appellants were held guilty of committing offences under Sections 302/34, 326 and 447 of the Indian Penal Code. The appellants were heard under Section 235 Cr.P.C. and each of them was directed to suffer rigorous imprisonment for life, rigorous imprisonment for three years and rigorous imprisonment for three months respectively on each of the three counts for their individual conviction. The learned trial Judge also directed the appellants to pay up Rs.5,000/- as fine and in case of default directed them to suffer simple imprisonment for three months. We do not know as to under what Section of the individual conviction of the appellants, the sentence of fine was imposed as there is no indication of the same in the operative part of the judgment. At any rate, the appellants preferred their individual appeals to challenge the judgment of conviction and order of sentence and this is how the two appeals have been heard by us and are being disposed of by the present common judgment.

2. Gauri Kumari, who happened to be the daughter of P.W. 7 Laxmi Devi stated to P.W. 10 Sub-Inspector, Nilamber Bharti while she was hospitalized in Sadar Hospital, Araria that the two appellants had burnt her. It was stated by her that appellant Pramila Devi poured kerosene oil upon her and appellant Bimla Devi lit a matchstick to set her at fire. The victim Gauri Kumari who happened to be the deceased of the case, raised alarm which attracted persons of the neighbourhood who doused the flames and shifted her to the local Sadar Hospital in Araria where she gave her statement during treatment.

3. The statement recorded by P.W. 10 in the form of Ext. 6 indicates as if the statement was signed by two officials - Dr. Milind Kumar (P.W. 1), the Medical Officer In-charge, on duty on that particular day, i.e., on 02.07.2004 and Sri Jai Kumar Dwivedi (P.W.8) who was the Executive Magistrate next senior to SDM, Araria and who had arrived, as we believe on requisition of the police to record the dying declaration. These facts emerge from the evidence of the police officer-cum-Investigating Officer P.W. 10 Nilamber Bharati who was the author of Ext. 2 and further from the evidence of P.W. 1 Dr. Milind Kumar and P.W. 8 Jai Kumar Dwivedi.

4. The learned trial Judge while convicting the appellants, was placing reliance mainly upon the fardbeyan of the deceased Ext. 6 treating it as a statement admissible under Section 32(1) of the Evidence Act indicating the cause of death of deceased Gauri Kumari as also the circumstances of the transaction which had resulted in her death. The learned trial Judge while proceeding to accept the veracity of the document, was brushing aside the evidence of the mother Laxmi Devi (P.W. 7) and the other witnesses who had stated that after being burnt to the extent of 99%, which appears from the evidence of Dr. Rajesh Kumar (P.W. 9), the deceased had gone unconscious and did not speak a single word ever till her death. For drawing the above inference, the learned trial Judge was latching on the opinion of P.W. 9 Dr. Rajesh Kumar in paragraph - 2 of the deposition that it might be possible that a person with 99% burn injuries may remain conscious in the beginning.

5. However, the defence was setting up a very serious challenge not only to the opinion of P.W. 9, but also to the evidence of P.Ws. 1 and 10 that the deceased Gauri Kumari was in a fit state of mind and health to make statement and has challenged the document as not admissible or fit to be acted upon.

6. We do not want to consider the evidence of the witnesses because the learned trial Judge also concluded that the witnesses were speaking in one voice that the deceased after having received the burn injury to the e