Judgment O.N.Asthana, J. 1. This appeal is directed against the judgment and order dated 19th August, 1994 passed by Sri Laxman Oraon, 1st Additional Sessions Judge, Nawadah in Sessions Trial No. 31/93/136/93 through which all the appellants were convicted and sentenced to undergo imprisonment for life under Sec. 302/34 of the Indian Penal Code and also under Sec. 498-A of the Indian Penal Code to undergo rigorous imprisonment for two years and it was ordered that both the sentences will run concurrently. 2. The fact in short giving rise to this appeal is that the deceased Saraswathi Devi, whose fardbeyan was recorded, was married to one Dinesh Rajak of Uttari Bazar, Warsaliganj, District-Nawadah about three years ago prior to the institution of the case. On 24-2-1993 Saraswati Devi was brought in a rikshaw by one Arjun Singh in a serious burnt condition at Warsaliganj Referral Hospital and at about 9.00 a.m. the ASI attached to Warsaliganj Police Station came to that hospital on getting information about the condition of the injured and recorded her fardbeyan at about 9.00 a.m. and the informant had alleged that she was living with her husband and in-laws in Uttari Bazar. Her husband and in laws i.e. father-inlaw and mother-in-law used to torture her only for the reason that she was not good to look at and threatening was also being given to her that her husband would marry for the second time. It has also been alleged that on that very date at about 5.00 a.m. or so Kerosene oil was poured on her by these appellants and she was set on fire. The informant then raised alarm which attracted the neighbours and they extinguished the fire but in the meantime, she sustained serious bum injuries and she was brought to Warsatiganj Referral Hospital. 3. The ASI, Warsaliganj recorded the fardbeyan of the informant deceased in that very hospital and after that the deceased was referred to Nawadah Hospital for further treatment. The deceased died on that very date in the late afternoon and as such inquest was prepared by the Nawadah Police and postmortem was done on her dead body and police after completing investigation, submitted charge sheet as against these appellants. 4. The deceased died on that very date in the late afternoon and as such inquest was prepared by the Nawadah Police and postmortem was done on her dead body and police after completing investigation, submitted charge sheet as against these appellants. 4. During the course of trial, all the appellants claimed themselves innocent but it is an admitted position that the deceased was married with the appellant Dinesh Rajak and the other two appellants are father and mother of Dinesh Rajak and at the relevant time the deceased was living in the house of her inlaws. It is also the defence of the appellants that at the time of occurrence the husband was at Jamui and the in-laws being washermen by profession and had gone for washing clothes and the deceased while preparing food, sustained burn injuries due to catching of the fire and so it is a case of accidental death. 5. The trial Court believed the prosecution story and convicted and sentenced the appellants in the manner indicated above. 6. It is an admitted case and also well proved from the evidence on the record that the deceased was the wife of Dinesh Rajak and at the relevant time she was living in the house of her in-laws and admittedly she got bum injuries in the early hours of 24-2-1993 and she was first of all removed to Warsaliganj Referral Hospital and from there to Nawadah Hospital where she died on that very day. It is the prosecution case that the deceased was set on fire by all these appellants because she was not good to look at and due to that she died and so the prosecution alleged homicidal murder whereas the defence version is that while cooking food, the deceased sustained bum injuries and she died in the hospital. 7. So the only question for consideration before us is if at all these appellants in furtherance of their common intention sprinkled kerosene oil on the deceased and set her on fire due to that she died. No doubt, the prosecution had examined as many as seven witnesses out of them PW 1, Uma Kant Rai and PW 7 Ram Nandan Singh are police officers and one of them simply recorded the fardbeyan of the deceased whereas PW 7 is the 1.0. of this case. PW 5 is Dr. Vimal Pd. No doubt, the prosecution had examined as many as seven witnesses out of them PW 1, Uma Kant Rai and PW 7 Ram Nandan Singh are police officers and one of them simply recorded the fardbeyan of the deceased whereas PW 7 is the 1.0. of this case. PW 5 is Dr. Vimal Pd. Singh, who held post-mortem examination on the dead body of the deceased and PW 2 Md. ljhar, PW 3 Mainuddin, PW 4 Barhani Rajak and PW 6 Ashok Rajak are all neighbours of the appellants and they are witnesses of the occurrence but unfortunately all these witnesses had not supported the prosecution case at all and so they were declared hostile. These witnesses, no doubt, had stated before the police that the appellants used to torture the deceased as she was not good to look at and they came to the house of the appellants on getting alarm of the deceased, who disclosed that kerosene oil was sprinkled her and the appellants set her on fire but all these witnesses had not supported this version of the prosecution rather they admitted in the cross-examination that the deceased sustained burn injury by accidental fire while preparing food. So, on the record, only there is fardbeyan of the deceased recorded by PW 1 which is the only evidence to prove the prosecution case. There is no two opinion that Ext. 1 the fardbeyan of the deceased recorded by PW 1 on 24-2-1993 after the death of the deceased is to be treated as dying declaration because the deceased had indicated the cause of her death and the manner through which she sustained burn injuries. The dying declaration is a substantive evidence only for the reason that a person in acute agony is not expected to tell a lie and in all probability it is expected from such person to disclose the truth and it is also a settled principle of law now that the dying declaration is a substantive evidence and an order of conviction can be safely recorded even on the basis of dying declaration if the court is fully satisfied that the so-called dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. The apex Court also laid down the principle on this point that for relying upon the dying declaration the court must be cautious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit health-mentally and physically to make such declaration. 8. In view of the principle discussed above, if we test the veracity of the dying declaration as recorded by PW 1 who was the then ASI attached to Warsaliganj Police Station, then this much is certain that when PW 1 came to Warsaliganj Referral Hospital, the deceased was seriously injured and she was in the hospital brought on a rickshaw and further it is also the admission of PW 1 that at that time the doctor of the hospital was also present but surprisingly the doctor was not called to testify if at all the deceased was in a fit condition to make dying declaration. 9. Admittedly, the deceased was seriously burnt and under trauma and PW 5 Dr. Vimal Pd. Singh held autopsy on the dead body of the deceased on the same day i.e. on 24-2-1993 in the late afternoon at about 3.20 p.m. This indicate that the condition of the deceased was very serious and she died on the same day. Further the doctor also found extensive burn injuries and in cross-examination he admitted that all the four limbs were duly burnt, and the deceased was under the category of six degree burn injury, meaning thereby, it was an extreme case of burning. It is also the opinion of the doctor that if any person will sustain six degree burn injury, then in that situation he will not be able to give any statement after two hours of the incident unless timely medical treatment is given to him. In view of this statement of the doctor, it can be said that admittedly the deceased sustained burn injury at about 5.00 A.M. and PW 1 the ASI recorded her fardbeyan, which is being treated here as dying declaration, at 9.00 a.m. i.e. after four hours. This indicates that the condition of the deceased was serious and she was not in a position to speak. This indicates that the condition of the deceased was serious and she was not in a position to speak. In view of this statement of the doctor, it was more obligatory on the part of the author of the dying declaration i.e. PW 1 to call the, doctor, who was present in the hospital to testify if the deceased was in a fit condition to take statement and a certificate from the doctor to that extent should have been obtained by the ASI i.e. PW 1. Unfortunately, PW 1 neither cared to consult the doctor or even the compounder nor any certificate was obtained from the doctor concerned regarding the fitness of the deceased. Moreover, from Ext. 3, it appears that the injury report was prepared by PW 1 and was referred to Warsaliganj Hospital for treatment of the deceased and admittedly the deceased was also examined in that hospital and then referred to Nawadah Hospital but surprisingly the injury report of the doctor was not brought on the record during trial and it is also not available in the case diary to show that the deceased at Warsaliganj Hospital was conscious or her condition was not very serious. 10. Learned counsel for the appellant submitted that admittedly all the material witnesses, who are neighbours of the deceased, and the appellants had not supported about ill-relation between the husband and wife rather they admitted in their cross-examination that the deceased while preparing food in her house got bum injuries by accidental fire and then she was brought to hospital and the evidence of the doctor, who held post-mortem on the dead body of the deceased i.e. PW 5 clearly indicate that the deceased had severe burn injuries and injuries were in the category of six degree bum injury and in that contingency she will not be in a position to speak after two hours of the incident and admittedly the deceased was brought to Warsaliganj Referral Hospital for treatment after four hours and at that time the fardbeyan, which is dying declaration, was recorded by PW 1. In such a situation, in order to accept the dying declaration, which is the only evidence against the appellants, the court is expected to be satisfied that the deceased was in a fit condition to make dying declaration and it was voluntary and for this satisfaction the attestation of the doctor, who was present in the hospital and was treating the deceased, was extremely necessary. Admittedly, PW 1;, though admitted that the doctor was present in the hospital at that time, he had not called the doctor at the time of recording the dying declaration or even the attestation was not obtained to show that the deceased was in a fit condition to make statement and thus the dying declaration, which is the only evidence against the appellant, may not be accepted. In support of this contention, learned counsel for the appellants also relied upon the authority of the apex court reported in Mani Ram V/s. State of M.P. In that case also there was allegation as contained in the dying declaration recorded in the nature of FIR first of all by the police officer and subsequently against similar dying declaration was recorded in the presence of Tehsildar and allegation was made by the deceased wife as against her husband that her husband poured kerosene oil and set on fire which subsequently resulted in the death of the deceased. The Supreme Court, after careful consideration of the dying declaration came to the conclusion that it was the duty of the police officer to call upon the doctor, who was admittedly present in the hospital at that time to certify that the deceased was in a fit condition to make declaration and to obtain attestation of the doctor and failure on the part of the police officer to obtain attestation of the doctor made the dying dying declaration suspicious and thus the accused husband was acquitted. In this case also the deceased was brought to Referral Hospital, Warsaliganj for treatment and she was getting treatment as is clear from the dying declaration itself and after that she was referred for better treatment to Nawadah Hospital where she died after few hours on that very day. In this case also the deceased was brought to Referral Hospital, Warsaliganj for treatment and she was getting treatment as is clear from the dying declaration itself and after that she was referred for better treatment to Nawadah Hospital where she died after few hours on that very day. Admittedly, when PW 1 recorded the fardbeyan, which is dying declaration now at that time the doctor and compounder were present in the hospital but surprisingly the doctor was not called at the time of recording of dying declaration and also no attestation was obtained from the doctor that the deceased was in a fit condition to make dying declaration. So, in the aforesaid case even a second dying declaration was recorded, that too before the Tehsildar, but the second dying declaration was not recorded also in presence of the doctor. 11. In this case also there is serious infirmities in view of the evidence of the doctor, who held postmortem examination of the deceased because the condition of the deceased was very serious and admittedly the doctor was present in the hospital but they were not called to testify if the deceased was in a fit condition to give her statement or even the attestation of the doctor was not obtained by PW 1. Further-more, admittedly at the time of dying declaration Rickshaw Puller, who brought the deceased to the hospital, namely, Arjun Singh, was present and his thumb impression and details address were also obtained in the fardbeyan but surprisingly this very important witness who is definitely independent witness also, was neither cited as witness in the charge sheet, nor he was examined in the court to show that the dying declaration was recorded in his presence and at that time the deceased was fully conscious. When it has come in evidence that the condition of the deceased was very serious and other independent witnesses have not supported the prosecution case, then in such a situation in order to accept the dying declaration, which is no doubt substantive evidence and ordinarily it has to be accepted because it is a statement made by a person having sense of impending death and is expected from such person to behave like a virtuous man, and as such it is required that it must be proved that the deceased was in a fit condition to make statement but surprisingly neither the doctor, who was present at that time nor even the independent witnesses, who were present at the time of recording the dying declaration were cited as witness on this point. Under the circumstances and in view of the authority of the Supreme Court as mentioned above, we are not in a position to accept the dying declaration which is the sole evidence in this case as recorded by the PW 1 only for recording an order of conviction. 12. Moreover, the case had also not been properly investigated by the police for the reason that in the dying declaration there is specific allegation that the deceased was being tortured by her husband and in-law from the last three years as she was not good to look at but she was tolerating the same but surprisingly the parents or any member of the parents family of the deceased were neither examined by the police nor even they were produced before the court in support of this allegation. So, practically there is no evidence on the record to show that there was ill relation between husband and wife. 13. So far the reasons mentioned above, this much can be said that we are not inclined to accept the dying declaration recorded by PW 1, the ASI of police in the Referral Hospital, Warsaliganj and if the dying declaration is not accepted, then practically there is no evidence as against the appellants to connect their complicity. 14. 13. So far the reasons mentioned above, this much can be said that we are not inclined to accept the dying declaration recorded by PW 1, the ASI of police in the Referral Hospital, Warsaliganj and if the dying declaration is not accepted, then practically there is no evidence as against the appellants to connect their complicity. 14. In that view of the matter, we are inclined to allow this appeal and the order of conviction and sentence as recorded by Sri Laxman Oraon, 1st Additional Sessions Judge, Nawadah in Session Trial No. 31/93, 136/93 dated 19th August, 1994 is hereby set aside and all the appellants, namely, Dinesh Rajak, Dulari Devi and Kishun Rajak, who are in jail custody, are to be released forthwith, if not required in any other case.