JUDGMENT 1. THIS is an appeal against an order of conviction under section 302 I. P. C, sentencing the appellant to imprisonment for life. 2. THE appellant and one Saraswati Roy faced trial under section 302/34 IPC in sessions Trial No. 2 (7) of 1982 of the Third court of the Additional District judge and sessions Judge, Alipore, saraswati Roy has been found not guilty of the charge of acquitted. The prosecution case was initiated on a complaint lodged by Bamacharan Dutta, father of the deceased Bhabani Roy. The prosecution case, in brief, is as follows :- 3. THE deceased Bhabani Roy was married with the appellant Balaram Roy of the same village, namely, Pairagachhi. Since the marriage the deceased was always being ill-treated by her father-in-law, mother-in-law and sister-in-law. On 10.2.1975 at about 10 P. M. the deceased Bhabani came running towards the house of her father. She was complaining that she had been forcibly administered poison. Hearing the above the informant and others came out of the house and noticed that the appellant balaram (husband of the deceased) and his sister Saraswati (the acquitted accused) were trying to hold Bhabani back. Bhabani complained that the poison was forcibly put into her mouth. Arrangements were immediately made for removal of Bhabani to hospital in a Rickshaw Van. The appellant balaram also boarded the van inspite of protest by Bhabani that he with the help of saraswati had forcibly put poison into her mouth. Little later Bhabani became unconscious. She was brought to the hospital where she died a lietle later. After the death of Bhabani, Balaram went home and then administered poison to the 2 months old child of theirs and brought the baby to the hospital in the early morning of the following day. The baby also died. The complaint Ext. 1 is dated 21.2.1975 on the basis of which the formal FIR was drawn up. The incident took place on 10.2.1975. By way of explanation for the delay in lodging the information it is stated that the informant had been in a state of mental disbalance and hence there was delay in lodging the complaint. The police after completion of investigation submitted charge sheet and the two accused persons stood charged under section 302-34 IPC. The incident took place on 10.2.1975. By way of explanation for the delay in lodging the information it is stated that the informant had been in a state of mental disbalance and hence there was delay in lodging the complaint. The police after completion of investigation submitted charge sheet and the two accused persons stood charged under section 302-34 IPC. The charge as framed reads as follows :- "that- you, on or about the 10th February, 1975 at pairagachhi within p. s. Habra in furtherance of the common intention of you all did commit murder by intentionally and knowingly causing the death of Bhabani Roy and khuku Roy by administering poison and thereby committed an offence punishable under section 302 read with section 34 of the Indian penal code, and within the cognizance of this court." 4. IN support of the prosecution 23 witnesses were. examined. The defence did not adduce any evidence. The defence as it appears from the trend of cross-examination, the examination under section 313 of the criminal procedure code and the submissions made on their behalf is one of the denial simplicitor. That Bhabani died of poison however does not appear to have been disputed but the allegation of forcible administration of poison to Bhabani or the baby however was denied. During the trial it was suggested that there was some dispute between the parties regarding the dowry and that on the fateful night the appellant with the aid of his sister Saraswati and one Sudhir Dhar (brother-in-law of the appellant) forcibly administered folidol to Bhabani. The reason for delay in lodging the complaint was further elucitated during trial and it was alleged that on the day following the incident, namely 11.2.1975, the father of the victim girl along with his sister went to the local p.s. to lodge a complaint but the police officer at this station declined to entertain the complaint unless illegal gratification to the extent of Rs. 500/- was paid. Upon the evidence stated above the learned Additional Sessions judge found the appellant guilty of intentionally causing the death of Bhabani by forcibly administering Folidol to her. In coming to this conclusion the learned judge relied mainly on the alleged oral dying declaration of the victim girl. 500/- was paid. Upon the evidence stated above the learned Additional Sessions judge found the appellant guilty of intentionally causing the death of Bhabani by forcibly administering Folidol to her. In coming to this conclusion the learned judge relied mainly on the alleged oral dying declaration of the victim girl. The learned judge was also annoyed with the perfunctory manner in which the investigation was conducted, and it further appears that he was apparently satisfied with the explanation for the delay in lodging the FIR. He however found the accused Saraswati not guilty. The other person Sudhir Roy who is alleged to have helped Saraswati and Balaram in committing the murder was not even sent up for trial. Balaram having been found guilty and sentenced in the manner aforesaid has preferred the present appeal. 5. MR. Poddar appearing on behalf of the appellant, while conceding that there is no legal bar in basing a conviction, upon oral dying declaration, argued that in the facts and circumstances of the case the learned judge went wrong in relying upon the alleged declaration made by Bhabani. According to him, there was no motive for Balaram to have administered poison to Bhabani. The allegation of a dispute over dowry, it was contended, has not been proved and consequently no motive for the murder could be ascribed. It was also contender, that there was no explanation for the unusual delay in senoing the viscera for chemical examination which alone could satisfactorily establish that she had been forcibly administered Folidol. It may be pertinent here to mention that the fact of death by poisoning was not disputed. What was disputed was the allegation of forcible administration of Folidol, with the aid of the acquitted accused Saraswati and one Sudhir Dhar who could not even be traced nor identified to be in any way, connected with the family of the appellant. Mr. Poddar further complained that the allegation that the police refused to record the information unless they were bribed was preposterous and that the delay in lodging the FIR by nearly 10 days stood unexplained. 6. AS regards the delay in lodging the FIR there can be no dispute that there was a delay by about 10 days. In the FIR all that is said is that the delay was due to the fact that the informant was in a state of mental disbalance. 6. AS regards the delay in lodging the FIR there can be no dispute that there was a delay by about 10 days. In the FIR all that is said is that the delay was due to the fact that the informant was in a state of mental disbalance. It is true, that even if the police had refused to record the FIR earlier, it was perhaps not possible for the informant to have mentioned that fact in the FIR itself. But that apart there are some circumstances which cast some doubt as to the truth of the allegation made by PW 1. According to PW 1 when the police refused to record the FIR his sister Charubala went to Barasat to make some Tadbirs with the higher authorities. Thereafter, she came and told her brother PW 1 that the FIR may now be recorded. If this was true then certainly the prosecution story might have got some support but unfortunately, Charubala in her evidence does not claim to have gone at barasat to make Tadbirs. She says in cross-examination that he went to the PS along with PW 1. Therefore, the evidence of PW 1 that Charubala made Tadbirs as a result whereof the information was eventually recorded is not corroborated by the testimony of Charubala herself. There is discrepancy in the evidence of the witness as to the declaration made by bhabani regarding the manner in which the poison was administered forcibly and against the will of the victim. Some of the witnesses have said that she gave out that saraswati and her husband held her while the appellant administered the poison. But it is in evidence that Saraswati was not even married at the time. As the case progressed the other person namely, Sudhir dhar was described as the husband of another sister of Saraswati. Consequently it follows that the alleged dying declaration made by Bhabani was not consistent throughout. The law on the subject is now well settled. 7. IN the case of Jusal Rao vs. State of bombay AIR 1958 SC page 22, it has been observed that it cannot be laid down as an absolute rule of law that a dying declaration cannot form a sole basis of conviction unless it is corroborated. The law on the subject is now well settled. 7. IN the case of Jusal Rao vs. State of bombay AIR 1958 SC page 22, it has been observed that it cannot be laid down as an absolute rule of law that a dying declaration cannot form a sole basis of conviction unless it is corroborated. It has been further observed that 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 then a dying declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character. In order to test the reliability of dying declaration the court has to keep in view the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstance 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. 8. IN the instant case there is no official record. There was no opportunity for calling a Magistrate to record the declaration. The medical evidence also does not indicate that any declaration was made by the deceased at the hospital. But it may be remembered that possibly she had no opportunity of making such a declaration at the hospital either. She was not in a state to do so for she was already unconscious when brought to the hospital at 11 -15 p. M. she died within half an hour's time. Therefore, we have to rely on the oral testimony for whatever it is worth since there has been no official record whatsoever. In the case of Thurupanni vs. State of mysore AIR 1965 SC 939 , the Supreme court has observed that in the absence of corroboration of the dying declaration, the court must be satisfied that the declaration is truthful and the declaration should be subjected to close scrutiny. In the case of Thurupanni vs. State of mysore AIR 1965 SC 939 , the Supreme court has observed that in the absence of corroboration of the dying declaration, the court must be satisfied that the declaration is truthful and the declaration should be subjected to close scrutiny. If the court finds that the declaration is not wholly reliable and a material and integral portion of the version of the entire occurrence is untrue, the court may consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. 9. IN the case before us there is no recorded version of the dying declaration. There is no corroboration of the declaration either. Necessarily it is necessary that the testimony as to the alleged declaration mane by Bhabani requires a very close examination. It is necessary to see whether what exactly were the words said by her and whether her testimony has been consistent throughout. It is also necessary to see whether she was in a proper frame of mind at the time when she made the declaration to give a coherent and consistent version. The evidence of the witnesses suggest that she was moving erratically while running along the road being followed by her husband and that she became unconscious shortly thereafter. The evidence of the autopsy Surgeon is that Folidol poisoning brings about changes on the nerve centre system namely, giddiness, restlessness, tremor, disorientation, convulsion and finally come leading to death. The witnesses who heard the alleged declaration proved that the victim was restless and was in extreme agony and it is evident that she was mentally disoriented. 10. SUCH being the position, let us now see what exactly was the declaration made by her as deposed to by the different witnesses. P. W. 1 says that on his enquiry bhabani gave out that Balaram, Saraswati and Sudhir Dhar forcibly administered poison to her. She repeated this while on the Rickshaw and Balaram sat beside her. P. W. 2 Samir Pal who came to the spot immediately on hearing the cry says that bhabani gave out that she was compelled to take poison and that she did not tell the names of the culprits. It was at his request that Balaram sat beside Bhabani on the rickshaw Van. Then he heard Bhabani accusing Balaram of forcible administering poison. It was at his request that Balaram sat beside Bhabani on the rickshaw Van. Then he heard Bhabani accusing Balaram of forcible administering poison. P. W. 3 says that she said "why you are sitting by my side when you have murdered me". P. W. 4 says that Bhabani was. shouting that she had been forcibly made to take poison. This expression is capable of two interpretations- that it was forcibly administered or that a situation was created when she was compelled to take to poison. P. W. 5 says that when bakaram tried to catch she claimed "don't touch me as you and your sister and sister's husband forcibly administered poison to me. " Such a statement stands condemned by the fact that Saraswati was not even married at the time though her evidence is as if Bhabani exclaimed that Saraswati and her husband forcibly caught hold of her. While Balaram administered the poison. This is not what has been deposed by the previous witnesses. P. W. 10 Mahanands dutta in his evidence has stated Whet Bhabani gave out. The declaration of Bhabeni as stated by him has been recorded in Bengali obviously to indicate the exact words uttered by her. The Bengali words if translated reads as follows : "you don't touch me. You have given me poison. It was beyond you to administer poison unless saraswati caught". Therefore in this declaration Bhabani excludes Sudhir Dhar or for the matter of that any other person helping balaram in committing the act. This is all the evidence regarding the alleged dying declaration. It cannot be said that the declaration has been consistent throughout and remembering the situation that she was in a state of disoriented mind, in our view it would be unsafe to rely on such declaration alone for the purpose of finding the appellant to guilty. This apart Mr. Poddar contended that there could be no motive for the appellant to kill his wife. The prosecution suggested as if there was some dispute between the two families regarding dowry. In support of such theory a document Ext. 2 which is a letter produced by P. W. 10 was tendered in evidence. This document was not produced before the police. The witness brought it with him and tendered it in court while under examination. The prosecution suggested as if there was some dispute between the two families regarding dowry. In support of such theory a document Ext. 2 which is a letter produced by P. W. 10 was tendered in evidence. This document was not produced before the police. The witness brought it with him and tendered it in court while under examination. Having carefully gone through the document we are unable to find therein any indication that the family of Balaram were pressing for more by way of dowry far less that there was any dispute over it. The letter on the face of it is innocuous and does not indicate any motive for the crime. The evidence of P. W. 1 that Bhabani was ill-treated by her father-in-law, mother-in-law and sister-in-law is not corroborated by any other evidence. Proof of motive even in a case depending on circumstantial evidence is not always a must. In the case of State of M. P. Vs. Dighbejoy Singh. A. I. R. 1981 S. C. 1740 it has been held that it may be that the prosecution was not able to prove the motive for the crime but that would not possibly matter when' the circumstantial evidence on the record was sufficient to prove beyond any doubt that it was the accused and no one else who intentionally caused the death of the deceased. This is true when the evidence is otherwise conclusive to fix the guilt on the accused. But the position becomes somewhat different when a motive is ascribed. In the case of Ramgopal Vs. State of Maharashtra, A. I. R. 1972 S. C. 656, it has been held that in a case of death by poisoning it is only when the motive is there and it is proved that the deceased died of the poison in question, that the accused had that poison in his possession and that he had an opportunity to administer the poison to the deceased that the Court can infer that the accused administered the poison to the deceased resulting in his death. In the instant case before us a motive was ascribed but nothing beyond Ext. 2 could be furnished in support of the motive. In our view, Exhibit 2 is insufficient to prove any motive whatsoever. Nor is there evidence that the accused was in possession of the particular poison allegedly administered by him to the victim. In the instant case before us a motive was ascribed but nothing beyond Ext. 2 could be furnished in support of the motive. In our view, Exhibit 2 is insufficient to prove any motive whatsoever. Nor is there evidence that the accused was in possession of the particular poison allegedly administered by him to the victim. In the case just referred to above it has been further observed that if in a criminal case motive as a circumstance is put forward it must be fully established like any other incriminating situation. Such evidence is lacking. 11. WE have already referred to the unusual delay in sending the viscera for chemical examination and the further delay in making the report. True, there is no explanation for the delay. The delay was due mainly to the callous and careless manner in which the investigation was conducted. The chemical examiner's report indicates that no poison could be detected in the viscera. The opinion of Dr. Nandy clearly is that it was futile to expect any poison after the lapse of nearly 4 years. Mr. Basu appearing on behalf of the state hinted that the delay might be motivated. Even assuming so. we cannot make any adverse inference form that alone against the accused. 12. THE learned judge in the court be low' has emphasised on the fact that the information had in fact, tried to lodge an information with the police on the very next day and in holding so he relied on exhibit 3 which is said to be a receipt granted by somebody of the police station on 11. 2. 75. This exhibit was brought into evidence not in the usual course but produced by P. W. 10' while he was being examined. We fail to see how the learned Judge could this into consideration without proper proof. Only the signature and the seal were prove but not the contents of Exhibit 3. The learned Judge has observed that this was a receipt granted by the police station and this indicated that the informant had made all attempts to record information with the p. s. at the earliest opportunity. Even reading the document as a receipt we are unable to say that it is a receipt showing information relating to the murder of Bhabani by the appellant. It at most indicates a receipt of a letter. Even reading the document as a receipt we are unable to say that it is a receipt showing information relating to the murder of Bhabani by the appellant. It at most indicates a receipt of a letter. The contents have not been brought into evidence. Then again if it was really an information relating to the death of the accused in the manner now suggested and if the police officer chose to grant a receipt therefore, there could be no point in refusing to record the information, unless we know that the contents of the letter which is purported to be acknowledged by Ext. 3. It will bear repetition that exhibit 3 as a whole was not proved and could not therefore be considered as a circumstance at all. Mr. Poddar further contended that if the poison was forcibly administered with the aid of two other persons as allegedly declared by the deceased one would expect some evidence of resistence. He contended that folidol is a liquid which, if attempted to be administered forcibly, the victim would naturally re-act by trying to repel it and support out atleast a part of it. This apart the story that Saraswati and Sudhir Dhar forcibly held her might have some external marks of injury on the hands or elsewhere. There was no such mark found either by the Doctor who examined her immediately after the occurrence or by the autopsy surgeon. The wearing appearels were not preserged for chemical examination to see if there were traces of any Folidol poison on the garments. Such being the position, Mr. poddar argued that the story adduced by the prosecution is wholly unreliable and untrustworthy. In view of the infirmities discussed above and the different version of the dying declaration deposed to by the witness as we consider it unsafe to find beyond reasonable doubt that the accused had administered the poison with the aid of his sister Saraswati and another person named sudhir Dhar whose identity again has not been sufficiently established. This being the position, we are unable to sustain the order of conviction. 13. IN regard to the alleged murder of the baby named Khuku there is practically no evidence. Nobody has said how the baby died. The medical evidence does not indicate that the baby died as a result of poisoning. This being the position, we are unable to sustain the order of conviction. 13. IN regard to the alleged murder of the baby named Khuku there is practically no evidence. Nobody has said how the baby died. The medical evidence does not indicate that the baby died as a result of poisoning. Only a police officer namely, P. W. 13 while under stress of examination by the learned judge himself gave out, that on enquiry he learned that the mother herself poisoned her daughter. We have said before that such evidence is clearly inadmissible being the result of investigation. There is no other question of the accused being found guilty of causing the death of the child by poison. In the result, we find that the appeal ought to succeed and is accordingly allowed. The order of conviction and sentence is set aside and the accused be set at liberty forthwith.