JUDGMENT Palok Basu, I.S. Mathur, JJ. 1. Aggrieved by the Judgment and order dated 19.10.1984, passed by VI Addl. Sessions Judge, Unnao, the appellant Ram Prakash has preferred this appeal against his conviction under Section 302, I.P.C. and sentence of imprisonment for life. 2. It is an unfortunate case where a helpless lady Smt. Maheshwari has died perhaps under unknown circumstances but the appellant Ram Prakash was seddled with the charge that he has committed the murder of his wife on 4.11.1983 around 5.30 a.m. The entire evidence in the instant case consists of three dying declarations said to have been recorded by persons other than a Magistrate, details of which will be given hereafter. Suffice it to say, according to the admitted case of the prosecution father of the deceased Smt. Maheshwari, namely, P.W. 3 Jagannath was resident of Gopalpur Bhirwan and an information was sent to him and it is admitted to the prosecution that Jagannath went to the resident of appellant and thereafter proceeded to P. H. C. where he could develop contact with the appellant and the deceased. The prosecution case proceeds that after the informant was convinced of murder having been committed by the appellant as a result of an oral dying declaration said to have been made by her to the said witness, he lodged the first information report at Police Station Kotwali on 4.11.1983 at 7.10 p.m. This F.I.R. was admittedly a dictation given to Sheo Shanker, nephew of the informant and the notings in the F.I.R. indicates that it was written at 6 p.m. 3. There was no denying of the fact that Smt. Maheshwari had 90% burn injuries on her body. The post-mortem examination on the dead body was performed on 6.11.1983 at 3.30 p.m. by Dr. S. Singh. That post-mortem report has been proved as Ext. Ka 13 and its genuineness was admitted by the defence under Section 294, Cr. P.C. and therefore the doctor was not examined. It may be pointed out that the learned trial Judge has omitted to follow the directions issued by this Court in several decisions that in a murder case the examination of the Medical Officer who conducts the post-mortem examination must be insisted upon. There was no reason for the learned trial Judge to have been oblivious to these decisions and not insist upon examining Dr. S. Singh. 4. There was no reason for the learned trial Judge to have been oblivious to these decisions and not insist upon examining Dr. S. Singh. 4. However, for two additional reasons the aforesaid non-examination of the doctor who conducted the post-mortem examination is not going to materially affect the present case. Admittedly, Dr. Si, Nath P.W. 1 was posted at P. H. C. Bangarmau and he had allegedly examined Smt. Maheshwari on 4.11.83 at 7.50 P.M. It is again strange that no separate injury report was prepared and even no bed head ticket was prepared. According to the statement of P.W. 1 Dr. S. Nath, Smt. Maheshwari was admitted in the hospital at 7.30 a.m. and thereafter he had found the condition of Smt. Maheshwari to be unstable and therefore decided to take down her dying declaration on a document which has been produced and proved as Ext. Ka 1. An extract from the additional injury register has been proved by the said Doctor as Ext. Ka 2. It is again strange that there is no bed head ticket or any corresponding document from which it could be ascertained whether any special effort was made to call the Magistrate for recording formal dying declaration of the victim. However, the aforesaid witness found the following condition which were noted in Ext. Ka 2 : (i) Hair burnt and scorched. (ii) Fore head burnt. Skin tange present underlying skin red and hot. (iii) Face burnt. (iv) Tip of nose burnt underlying skin red and hot. (v) Both hips burnt. Neck burnt around. (vi) Both breast burnt skin tange present on the breast. (vii) Chest all over burnt, skin tange present. (viii) Abdomen burnt, back burnt. (ix) Private parts burnt. (x) The palm surface of hand and internal surface of feet intact. (xi) Both eyes intact. The skin tange present all over body. Translated into English the dying declaration of Smt. Maheshwari recorded by Dr. S. Nath reads as under : "I got up from bed in the morning. My husband Ram Prakash asked me to bring water and I refused. He farther asked me to grind the flour which I refused. He said that he would beat me if I do not do the same. Thereafter I brought the water and I did the work in the kitchen. The wheat was lying in the courtyard. My husband Ram Prakash asked me to bring water and I refused. He farther asked me to grind the flour which I refused. He said that he would beat me if I do not do the same. Thereafter I brought the water and I did the work in the kitchen. The wheat was lying in the courtyard. I told him that after collecting it in a bundle I will clean the utensils. He said that he would kill me. Thereafter he tied my feet with a cord. I was wearing Sari of Weoli at that time. He sprinkled kerosine oil on me and set fire with a match-stick. The kerosine oil was sprinkled on the lower portion of my body and the fire was also ignited from the side of the feet. When I started burning and cried, he was standing at the Boor. When I was fully burnt, he came near me and spread quilt over my body. He called the other persons and told them that I had myself set fire. He had been beating me daily. He had sprinkled one full bottle of kerosine oil on my body. My mother-in-law was also present, at the house at that time." 5. Prosecution story proceeds that this lady was then carried to the District Hospital, Unnao. There P.W. 6 Dr. P. Khatri is said to have recorded another dying declaration. In the presence of P.W. 5 Dr. V. N. Mathur. No separate injury report was prepared by either of these two doctors again. There is no bed head ticket on the record and there is no corresponding document to prove that any effort was made to call the Magistrate for recording the dying declaration. However, the dying declaration recorded there would read as under : "My name is Maheshwari, my husband's name is Ram Prakash. My husband had sprinkled kerosene oil over my body and set fire after lighting a match stick. My mother-in-law was standing at the door at that time. When I was completely burnt, my mother-in-law put ash on me. There was none except them at that time. When I cried for help some persons came and some of them brought me to the hospital. This statement has been read out to me. Before I was set to fire both of my legs were tied. Sd. P. Khatri. When I was completely burnt, my mother-in-law put ash on me. There was none except them at that time. When I cried for help some persons came and some of them brought me to the hospital. This statement has been read out to me. Before I was set to fire both of my legs were tied. Sd. P. Khatri. Certified that the above statement was given in my presence. During her statement she was in full sense at 2.15 p.m. Sd. V. N. Mathur M.O. Emergency Duty." 6. According to the prosecution case when the F.I.R. was lodged by Jagannath, the statement of Smt. Maheshwari made to him was also incorporated therein. The first dying declaration is the one which was allegedly spoken by Smt. Maheshwari to her father Jagannath P.W. 3 which stands incorporated in the First Information Report. As mentioned above F.I.R. was allegedly lodged after the two aforesaid dying declaration had come into existence. It may be mentioned here that the prosecution has not examined any neighbour or relative who had arrived at the place of occurrence soon after the incident after hue and cry was raised. It appears from the record that after the victim was engulfed into fire, she did raise loud noise and some of the nearby persons had arrived at the scene. However, far the reasons best known to the prosecution no eye-witness has been examined. Not only this, even the recovery witnesses who allegedly witnessed the recovery at the house of the appellant have also not been examined. It has been emphasised time and again that in such matters where direct evidence of eye-witness is not available, all or atleast a few witnesses of recovery etc. must be examined so that it goes to lend corroborative support to the circumstantial evidence on which the prosecution wants to rely. The absence of any such witness the instant case puts the Court on guard and particularly so because in the instant case but for the three dying declarations, there are no circumstances which may connect the appellant with the crime. 7. The third dying declaration which is said to be incorporated in the written document prepared at the alleged dictation of the informant does not appear to be reliable for the reason that it came into existence, admittedly, after the informant had been with the deceased for quite some time. 7. The third dying declaration which is said to be incorporated in the written document prepared at the alleged dictation of the informant does not appear to be reliable for the reason that it came into existence, admittedly, after the informant had been with the deceased for quite some time. Apart from this, the informant has admitted that he is not educated and that the F.I.R. was dictated by him to his, nephew. The scribe of the F.I.R has also not been produced in the instant case. Therefore, it is not possible to infer that whatever was told to the informant, may have been faithfully dictated and the statement may have been recorded word-by-word by the scribe. The law is well settled that dying Declaration alone can be the basis of conviction but its intrinsic quality should be prima facie believable and it must inspire confidence. For these reasons the prosecution shall have to convince the court about the authenticity of dying declaration, recorded by the two doctors, one at the P.H.C. by Dr. S. Nath P.W. 1 and other recorded at the District Hospital by P.W. 6 Dr. Khatri in the presence of P.W. 5 Dr. Mathur. 8. Smt. Begum Sahiba Kamal, learned counsel for the appellant has been heard at length while this appeal has been strongly opposed by Sri Anadi Banerji, Additional Government Advocate. The entire record has been thoroughly scrutinized. Apart from the four aforesaid witnesses there are two other police witnesses. Ram Kripal Singh is the Circle Officer who investigated the case and P.W. 4 Roshan Singh was Sub-Inspector, Police-Station Bangarmau in whose presence the case was registered and he had gone to the spot and prepared the site-plan and made recoveries. Bachchulal D.W. 1 has been examined by the appellant in defence to show that the deceased was under some hallucination and her behaviour was full of eccentricity. It is emphasized on behalf of the appellant that there are vital contradictions tin the two dying declarations inasmuch as the authenticity of both the documents is shrouded in mystery and therefore there is no reliable evidence connecting the appellant with the alleged death of Smt. Maheshwari. It is emphasized on behalf of the appellant that there are vital contradictions tin the two dying declarations inasmuch as the authenticity of both the documents is shrouded in mystery and therefore there is no reliable evidence connecting the appellant with the alleged death of Smt. Maheshwari. It was further emphasized that had the appellant been really guilty, he would have been the last man to carry his wife to the P.H.C. and then to the District Hospital and then again to Kanpur for extending all possible treatment. It was also rightly emphasized that had the appellant been guilty he would not have given immediate intimation to his father-tin-law P.W. 3 Jagannath who admittedly came and met his daughter in the hospital. In this connection it was A.Cr.R, 47 argued that since P.W. 3, father of the deceased, admitted that he had talks with his daughter before the dying declaration was recorded by Dr. S. Nath P.W. 1 the reliability of the said dying declaration is reduced to the minimum. 9. It is undoubtedly true that voluntariness of the statement to be treated as dying declaration, has to be established beyond all reasonable doubt. In the instant case P.W. 3 has admitted that he had talked with the deceased for hours together and then the doctor had recorded the dying declaration. Once this is so, it is not possible to hold that the dying declaration recorded by Dr. Khatri is the voluntary outcome of the thoughts which had independently been stored in the mind of the deceased. 10. In this regard, it has already been noted above that there is no injury report prepared muchless a bed head ticket and therefore it is not possible for this Court to examine data on the basis of the prosecution alleges that the victim was in a position to make a dying declaration. While it is true on the one hand that the doctor may not have any reason to depose falsely against the appellant in favour of the dying declaration, it is also simultaneously true that the court must be satisfied about the physical fitness of the deceased so as to able to volunteer a statement. What was the blood pressure, what was the pulse rate and what was her mental state have not been made known to the Court. What was the blood pressure, what was the pulse rate and what was her mental state have not been made known to the Court. These important requirements have only to be inferred from the statement of the doctor that the victim was in a fit state to make statement. This may at best be an opinion which in the absence of necessary data particularly when the deceased had 90% burn injuries, falls short of the legal requirement to prove beyond doubt that Smt. Maheshwari was capable of making a dying declaration. Coming to the second dying declaration which was recorded by Dr. Khatri P.W. 6, she less said the better. It is after the said statement was recorded that a line has been added which contains the message that both the legs of the deceased were tied before she was set to fire. It is not known how and why this statement would come after the entire statement existing before this line was read out to the deceased. Therefore, the statement of P.W. 5 Dr. Mathur plays an important role in order to determine the correctness of what Dr. Khatri says. It has come in the statement of Dr. Mathur that "he cannot say whether the said line was in existence before the LTI of the deceased was taken." This being the position it is impossible to conclude; that this line was at all written during the course of recording the dying declaration. If this sentence is omitted, there remains vital omission touching almost point of contradiction and, therefore, it cannot be said that there was no possibility on the part of the prosecution to have got this line added subsequently having come to know that the existence of this vital contradiction. 11. It is again notable that while in the first dying declaration it is said that the appellant alone was present, in the second one it has been said that mother-in-law of the deceased had also arrived. While in the first dying declaration it is said that the appellant threw a quilt over the victim, in the second dying declaration it is stated that mother-in-law threw ash. While in the first dying declaration it is stated that the legs were tied, in the second dying declaration the said vital statement is missing. 12. While in the first dying declaration it is said that the appellant threw a quilt over the victim, in the second dying declaration it is stated that mother-in-law threw ash. While in the first dying declaration it is stated that the legs were tied, in the second dying declaration the said vital statement is missing. 12. Even in this second dying declaration one has to go only by the opinion of the two doctors about the existence of enough strength in the deceased in dictating the dying declaration but there is no data available to the Court to come to an independent: conclusion. Moreover, the second dying declaration has not been written in a question answer form and therefore, it is also not very clear as to whether the deceased should have really been in a mental state to voluntary give out said composite statement. In view of the aforesaid infirmities neither of the dying declarations inspires confidence and therefore it cannot be said that the prosecution has succeeded in proving the case beyond reasonable doubt and therefore the appellant is entitled to the benefit thereof. 13. The result of the aforesaid discussion is that the appeal succeeds and is allowed. The conviction and sentence of the appellant are set aside. He is in jail. He will be released forthwith unless wanted in other case. Appeal allowed.