Judgment PRASUN KUMAR DEB, J. 1. There is chequered history of this appeal. Five accused appellants faced trial in Sessions Trial No. 296 of 1989 before the 3rd Additional Sessions Judge, Dhaabad, and they were convicted under Section 302/34 of the Indian Penal Code by the impugned judgment and order, dated 31-8-1989 and sentenced to undergo rigorous imprisonment for life. The accused appellants No. 1, 2, 3 and 5 were also convicted under Section 4 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for a period of six months each. The sentences were ordered to run concurrently. 2. The appeal being filed on 27-9-1989. The accused appellants No. 1 and 2, namely. Ram Chandra Sharma and Chhabi Rani Devi were granted interim bail by order, dated 28-9-1989 but the prayer for bail of other accused appellants was rejected. On later dates also, such prayers were rejected. 3. The case was heard by a Division Bench continuously for two days on 13-5-1992 and 14-5-1992 and then order was passed on 15-5-1992 for recording of some of the depositions of some more witnesses under Section 391 of the Code of Criminal Procedure (hereinafter referred to as the Code) and reasons were given in that order as to why such additional evidence was necessary when it was found that the evidence adduced in the trial court were not sufficient enough to unfold the prosecution case or to get truth about the occurrence. After that, evidence of nine more witnesses have been examined in this court on 5-1-1992 and 6-11-1992 and also further statement of the accused persons were recorded under Section 313 of the Code. After that, evidence of nine more witnesses have been examined in this court on 5-1-1992 and 6-11-1992 and also further statement of the accused persons were recorded under Section 313 of the Code. After that the appeal was again heard by a Division Bench, but the Hon ble Judges hearing the appeal in a Division Bench differed in their opinion and separate judgments were written by Brother R. N. Sahay, J. and also by Brother Amir Das, J. By the judgment of Brother Sahay, J., the appeal was allowed and the conviction and sentence passed by the learned trial court were set aside, but Brother Das, J. found that the case was proved against the accused appellants under Section 302/34 of the Indian Penal Code and maintained the conviction and sentence passed by the Trial Judge, but nothing was stated regarding the conviction and sentence under Section 4 of the Dowry Prohibition Act in the concluding portion of the order. After the Brother Judges differed in their opinion, the matter was referred to Hon ble the Chief Justice and then as per the Patna High Court Rules, it was referred to this Bench as a third Judge. 4. The facts of the case and the materials available are not required to be reiterated in the present judgment as the above two Judgments by the Brother Judges in the Division Bench and the impugned judgment of the trial court had dealt with the individual evidence of the witnesses and the materials available in the deposition of the witnesses and other documents proved in the case. 5. A brief facts of the case may be stated for appreciating the discussion which I am going to make below : The occurrence took place in the night between 12th/13th July, 1985 in the house of the accused persons. The charge against the accused persons is that Baby Kumari daughter of PW 1 and the wife of accused-appellant No. 4 Pradeep Kumar Sharma was set on fire at about 11 p. m. in the said night by sprinkling kerosene oil on her, by all the accused persons in furtherance of their common intention and cause of such culpable homicide amounting to murder was that of in-laws of Baby Kumari i. e. accused appellants were demanding from P. W. 1, the father of Baby Kumari, Palang, Kursi, Table etc. for the marriage of Baby Kumari with Pradeep Kumar Sharma and that the assurance given by the father of Baby Kumari of getting a job for his son-in-law could not be fulfilled by PW 1 and so Baby Kumari although married about three years back had to suffer torture at the hands of the in-laws and ultimately she met with such death in the hands of the accused-appellants. Accused appellant No. 1 is the father, accused appellant No. 2 is the mother-in-law, accused appellant No. 4 is the husband, accused appellant No 5 is the brother-in-law and accused appellant No. 3 Sanjay Rumar Hazari is the cousin of appellants No. 4 and 5. 6. The prosecution case is based on two types of evidence, namely, a letter (Ext. J.) alleged to be written by Baby Kumari about six months prior to the occurrence addressing her father wherein she gave vivid description about her sufferance due to torture made by the accused appellants and it was further stated that such torture was being made due to non-fulfilment of the dowry demanded and the assurance given about the service of her husband. It was further stated in that letter that the husband of Baby Kumari had already been separated from the joint family due to quarrel. The second type of evidence on which the prosecution relied is the oral dying declaration made by Baby Kumari in the female Surgical Ward of the Hospital where she was admitted on the very night of the occurrence. Before her father, mother and other witnesses who came to see her from her fathers place after hearing the incident on the next morning at about 6.30 a. m. Both these points have been mentioned in the fard beyan made by PW 4 at about 4.30 a. m. on 13-7-1985 before the police at the Female Surgical Ward in the Hospital itself. During the course of investigation, it is stated that only a photo state copy of the letter (Ext. 1) was supplied to the Investigating Officer and the original has been produced in the trial court by PW 4 at the time of his deposition before the Trial Judge. Let me take up both these types of evidence separately for the purpose of scrutinisation as to what extent the prosecution could be able to prove the guilt of the accused persons. 7. Regarding the letter (Ext. Let me take up both these types of evidence separately for the purpose of scrutinisation as to what extent the prosecution could be able to prove the guilt of the accused persons. 7. Regarding the letter (Ext. 1) there is no explanation from the side of the prosecution as to why the original letter was not produced before the Investigating Officer. Moreover, the letter although alleged to be addressed to the father of the deceased but the same is coming from the custody of PW 4 who happens only to be the cousin of the deceased Baby Kumari residing separately from PW 1. The letter has not been signed by the deceased rather the writer of the letter mentioned herself as "your unfortunate daughter". Moreover some other letters alleged to be written by Baby Kumari were seized during the course of investigation but no steps were taken for talllying the handwriting of Baby Kumari with those other letters which were admittedly written by the deceased. In that way, it hits Section 73 of the Evidence Act. The letter has been denied to have been written by the deceased from the very beginning from the side of the defence. The veracity of the letter could not be proved beyond all reasonable doubt by the prosecution side. Even if it is taken to be granted that the letter (Ext. 1) was written by the deceased to her father describing her unfortunate plight in her in-laws house, then also fact remains that this allegation of torture was made by the deceased about six months prior to the occurrence. Then this letter even if it is taken in its entirety and totality can only create a suspicion against the accused appellants to the effect that they might have some hands in the unnatural death caused to the deceased but even strong suspicion cannot take the place of proof in a criminal proceeding. 8. About the oral dying declaration, there are different version by different witnesses. Some have stated that Baby Kumari stated that she was sot on fire by her in-laws but some stated that she had named those persons who had set fire on her. 8. About the oral dying declaration, there are different version by different witnesses. Some have stated that Baby Kumari stated that she was sot on fire by her in-laws but some stated that she had named those persons who had set fire on her. From the fard beyan itself, it could be found that the deceased was in a very bad condition when PW 1, the informant and others arrived at the Hospital in the early morning hours and on being asked by them, with much pain, she could be able to state that she was set on fire by her in-laws. Then on further query being made, she stated that her husband was also involved in it. Then on a more further query, she stated that her mother-in-law was also involved and in such making intermittent statements, she also lost senses intermittently. In the trial court also, similar is the statement made by the different witnesses who proved such oral dying declaration. There is no evidence to the effect that the deceased was in a state to make such statements rather the evidence of Dr. P. G. Pal. Court witness No. 5 stated that the deceased was admitted to hospital in a very precarious condition having second degree burn injury all over her body. It is not there in his evidence or the evidence of any other witnesses that on treatment she was better in her position, rather from the fact that she died in the noon hours on 13-7-1985, then it can be inferred that while her condition deteriorated as the time passed on and ultimately she died on the next day in the noon hours. Moreover the way the witnesses stated regarding the making of dying declaration by the deceased creates a doubt on the very fact that a patient with second degree burn injury all over her body in precarious condition while lying in the hospital would be allowed by the Doctors and Nurses to be interrogated being surrounded by so many persons. From the fard beyan itself, it is found that she could with great difficulty speak a few words but as per the evidence of the witnesses, she made statements to all the witnesses separately. It is not that she made a single statement in presence of all which creates more doubt about the veracity of this dying declaration. From the fard beyan itself, it is found that she could with great difficulty speak a few words but as per the evidence of the witnesses, she made statements to all the witnesses separately. It is not that she made a single statement in presence of all which creates more doubt about the veracity of this dying declaration. No attempt was made to get the statement recorded either by the Magistrate or by the Doctor. Definitely the condition of the deceased was better at the time of her admission and naturally when Dr. P. C. Pal sent a requisition to the police on that very night itself at about 1 a. m., he must have ascertained from the injured herself as to what happened to her, but there was no evidence to that effect. The police also on receipt of the requisition slept over the same and came to the hospital on the next day at about 4 p. m. when the deceased had already breathed her last. The fardbeyan is stated to be made by PW 4 at the Female Surgical Ward in the Hospital itself at 4.30 p. m. It is also not known why such statement was recorded at the Female Surgical Ward in the Hospital when the deceased died long ago and definitely the Hospital authorities had shifted the dead body from the Female Surgical Ward itself. In every step of the case, there remains doubt. The investigation of the case from the very beginning is not only improper but callous. 9. Conviction can be on the basis of dying declaration not being supported by any other evidence if the same is found to be trustworthy in all respect and if such dying declaration is recorded by a Magistrate or by an independent person after observing all formalities but oral dying declaration is always considered to be a week type of evidence and it cannot be the sole basis of conviction if it is not corroborated by other circumstances or independent evidence. 10. In the present case, as already stated above, the veracity of the alleged dying declaration could not be proved by cogent and reliable evidence. The condition of the person making a dying declaration is of much importance, to verify as to whether at that stage of health, he or she was in a position to make such evidence. 10. In the present case, as already stated above, the veracity of the alleged dying declaration could not be proved by cogent and reliable evidence. The condition of the person making a dying declaration is of much importance, to verify as to whether at that stage of health, he or she was in a position to make such evidence. Moreover, from the evidence adduced it is found that the names of the accused-appellants were brought from the mouth of the deceased by making interrogation or putting the names on her mouth. Such type of dying declaration is always depricated and cannot be relied for the purposes of conviction solely based on the same. It seems from the impugned judgment that the learned Trial Judge was trying to take presumption basing on the provisions of Section 304-B of the Indian Penal Code and Section 113-A of the Indian Evidence Act but Section 304-B of the Indian Penal Code came in force only in the year 1986 and the present case is of 1985. Similarly, Dowry Prohibition Act came in force in the year 1986 and the present case is of 1985 and as such the charga under the Dowry Prohibition Act against the accused appellants are not maintainable and the conviction and sentence imposed thereby is illegal and inoperative in the eye of law. When the presumption under Section 113-A of the Indian Evidence Act is not available and when the presumption is required under Section 304-B of the Indian Penal Code is also not available then the case remains to be a case simpliciter under Section 302/34 of the Indian Penal Code and as such the prosecution is bound to prove the case independently without having any presumption except that is mentioned under Section 114 of the Indian Evidence Act. 11. The allegation is that the deceased was set on fire by sprinkling kerosene oil on her body by the accused persons. There is no evidence to that effect except that a seizure was made regarding a jerkin of kerosena oil from the house of the accused persons. Such jerkin is available in almost every houses for domestic purposes. Unless such jerkin can be shown to be directly involved with the alleged crime, such evidence can have no boaring. Moreover, there is also no evidence to the effect that she was sprinkled of kerosene oil by the offenders. Such jerkin is available in almost every houses for domestic purposes. Unless such jerkin can be shown to be directly involved with the alleged crime, such evidence can have no boaring. Moreover, there is also no evidence to the effect that she was sprinkled of kerosene oil by the offenders. That was not in the dying declaration alleged to be made by the deceased. Half burnt hairs of the deceased were preserved and sent for chemical examination to Forensic Science Laboratory, but no report is there from the Forensic Science Laboratory proved from the side of the prosecution nor any attempt was made when this Court took an opportunity for getting more evidence as mentioned above under Section 391 of the Code. Thus the very basis of sprinkling of kerosene oil and then setting of fire on the body of the deceased remains totally unproved. It has already been mentioned that the investigation of the case is very much defective and even if there be some truth in the prosecution case, those could not be brought out by the investigating agency nor by the Trial Judge High Court even after making attempt to bring more witnesses to find out the veracity or otherwise of the prosecution case. 12. From the discussions made above, I find and hold that the prosecution cannot be able to prove the charge under Section 304/34 of the Indian Penal Code against any of the accused persons beyond all reasonable Judge accepted the plea and acquitted the accused persons. The acquittal was challeged before the Calcutta High Court in a criminal revision. The matter was subsequently referred to a Full Bench to decide the following question : "If the facts alleged in a petition of complaint or in an information received by the Magistrate, on which a Magistrate can ordinarily take cognizance of an offence under Section 190, Cr.P.C. disclose an offence of which cognizance cannot be taken by the Magistrate because of the special provisions of Section 195 or 196 or 196-A or 197 or 199, Cr.P.C. is the Magistrate also debarred because of this from taking cognizance of other offence disclosed by the facts alleged, which are not in any way affected by the provisions of Section 195 or 196 or 196-A or 197 or 199, Cr.P.C." The Full Bench answered the question in the negative. In respect of the conviction under Section 297 of the Indian Penal Code, the learned Judges said that there was nothing in Sections 195 to 199, Cr.P.C. which could in any way bar the prosecution of the appellants under that section, as it could in no way be said that it arose out of the facts which would constitute an offence under Sections 182 or Section 211 of the Indian Penal Code. On the other hand it arose from an entirely different set of facts, namely, the trespass by the opposite parties in the burial and the removal of the corpse from the lighted funeral pire. With regard to the offence under Section 500, it was observed that though the prosecution for defamation was based on the false information given to public officer, that circumstance, however, was no bar for the prosecution of the appellants uadet tkax section . In the result the application inrevision was allowed, the order of acquittal was set aside and the Sessions Judge was directed to re-hear the appeal on the merits. On remand, the conviction and sentence passed by the Magistrate was confirmed by the Sessions Judge and the appeal against the said authority was summarily dismissed by the High Court. The matter ultimately went to the Supreme Court where it was contended on behalf of the convicted appellants that the Magistrate had no jurisdiction to take cognizance of the complaint under Section 500 and Section 29/ of the Indian Penal Code, as the facts disclosed constituted an offence under Section 182 which offence could not be tried except on complaint by a public servant. The Supreme Court rejected the argument of the counsel for the appellant for the reasons stated in Paragraphs 10 and 11 of the report as extracted below : "10. In our judgment, the contention raised by the learned counsel for the appellants is without any substance sofar as the present case is concerned. The Supreme Court rejected the argument of the counsel for the appellant for the reasons stated in Paragraphs 10 and 11 of the report as extracted below : "10. In our judgment, the contention raised by the learned counsel for the appellants is without any substance sofar as the present case is concerned. The charge for the offence under Section 297, Penal Code, could in no circumstance, as pointed out by the High Court, be described as falling within the purview of Section 195, Criminal P. C. The act of trespass was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concern the conduct of the appellants during the post report period. In these circumstance, no serious contention could be raised that the provisions of Section 195 would stand defeated by the Magistrate having taken cognizance of the offence under that section. 11. As regards the charge under Section 500, Penal Code, it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offence, one against the public servant and the other against a private individual, that other is not debarred by the provisions of Section 125 from seeking redress for the ofience committed against him." Reference may also be made to a decision of the Federal Court reported in AIR 1939 FC 43(B) Hari Ram Singh v. Emperor ; "The appellant in that case was charged with offences under Sections 409 and 477-A, I.P.C. The ofience under Section 477-A could not be taken cognizance of without the previous consent of the Governor under Sec. 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under Section 409, I.P.C. The charge was that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, he wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. He was further charged that being a public servant, he wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings under Section 477-A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the Sessions Judge for hearing on the merits as regards the charge under Section 409, I.P.C. and the order of acquittal passed by the Sessions Judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of misappropriation under Section 409 and the other an offence under Section 477-A which required the sanction of the Governor, the circumstance that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under Section 409. 13. It is apparent that in that case one set of facts constituted two separate offences ; one which required sanction and the other no sanction. In this circumstance it was held that the requirement of sanction could not be evaded by launching prosecution in respect of offence for which no sanction was necessary. 14. The facts of the two cases referred to above on which the counsel for the petitioner has placed reliance and the fact of the present case are altogether different from the Supreme Court case. In this case and the two decisions (supra), distinct offences are made out with reference to not the same act of facts but two distinct facts and allegations. Here the petitioner is being prosecuted for non-display of the price and stock and also for contravention of the terms of his licence. It cannot be said that in respect of same sets of fact offences under Bihar Essential Articles (Display of Price and Stock) Order, 1977 as also Bihar Trade Articles (Licences Unification) Order was made out. It cannot be held that if the prosecution far violation of Display Order fails for want of sanction order or for want of proper sanction, the prosecution for violation of Unification Order would automatically fail. It cannot be held that if the prosecution far violation of Display Order fails for want of sanction order or for want of proper sanction, the prosecution for violation of Unification Order would automatically fail. This question can further be clarified by giving an illustration ; assuming a person is prosecuted for an ofience under Section 302, I.P.C. read with Section 2S-A of the Arms Act in respect of a single occurrence, can it be argued that if no taction under Section 25-A of the Arms Act is obtained, the prosecution under Section 302, I.P.C. will also fail ? This is precisely the case in hard. 15. I have no doubt that the decisions in 1992 Eastern Criminal Cases, 5 (Patna) and 1985 PLJR 971 and Criminal Misc. 951/91 were decided on clear misapplication of the ratio in K. P. Sinha case (supra). These decisions do not lay down the correct position of law and is contrary to the decision of the Supreme Court in Basirui Haque v. State of West Bengal (supra). The decision of learned Single Judge in 1992 Eastern Cr. Cases 5 (Patna) and 1985 PLJR 971 are therefore overruled. 16. Learned counsel for the petititioner has tried to pursuade us that as a matter of fact the petitioner had not violated any of the two orders for which he is being prosecuted and the learned Special Judge wrongly took cognizance without considering the relevant documents submitted by the police. Counsel has placed before us facts in support of his defence stated In paragraph 9 of this application. In my opinion, it is not the stage to examine the defence of the petitioner wnich he may put forward during trial. 17. This application has no merit and is accordingly dismissed. Interim order of stay dated 5-2-1993 is vacted. 18. I agree.