N. K. BHATTACHARYYA, J. ( 1 ) THE appellant Kishore Das in this appeal has challenged his conviction under Section 302 of the Indian Penal Code and sentence of life imprisonment in the judgment dated 23rd February, 1994, passed in Sessions Trial No. 3 (9) of 1992 by the Additional Sessions Judge, 10th Court, Alipore, 24-Parganas (South ). ( 2 ) THE fact of the case, in short, is that the accused Kishore Das married a muslim lady Tamanna Begum who was married earlier to one Sekh Janu of Park Circus and in that coverture two daughters named Nazima and Sahanaz and a son named Naushad were born to her and Nazima is married to a person named Seikh Malik. Sahanaz is residing with her elder sister Nazima who has her house near DIP Road in the Hindu Gorasthan. The son Naushad is missing since he was at his age of 8 years. ( 3 ) AFTER marriage with Kishore Das Tamanna Begum assumed the name of Mira Das and their marriage took place at Kalighat according to Hindu rites. Kishore is a clothes-hawker by occupation. Both of them reside at 34, Judge's Court Road. Calcutta -27 since their marriage. ( 4 ) FOR sometime past before the incident they quarrelled as Kishore Das wanted to drive her from the house and it was alleged that Kishore Das again married another Hindu Lady named Bimala Dasi daughter of Bansi Das and Lachmi Dasi. ( 5 ) ON 11-3-89, the date of incident, i. e. it was alleged, Kishore Das sprinkled Kerosene on Mira's clothes and set her ablazed with a match stick inside the room. She cried loudly and the neighbours arrived and brought her out of the room and then she poured a bucket of water on her person and later Kishore Das also washed the floor with another bucket of water. Earlier to the incident Kishore Das threatened to murder her during quarrels. ( 6 ) SHE was brought to the hospital in a taxi by Kishore Das being accompanied by Parameswar Das, (P. W. 1) and Kishen Das, (P. W. 2) with 66% burn injury. ( 7 ) P. W. 16. Dr. Tapan Kumar Roy was then in the Emergency Medical Officer in S. S. K. M. Hospital at 11. ( 6 ) SHE was brought to the hospital in a taxi by Kishore Das being accompanied by Parameswar Das, (P. W. 1) and Kishen Das, (P. W. 2) with 66% burn injury. ( 7 ) P. W. 16. Dr. Tapan Kumar Roy was then in the Emergency Medical Officer in S. S. K. M. Hospital at 11. 00 p. m. Mira Das was brought to him and he examined her and found that she sustained 60% burn injury and recommended her admission without making any history sheet at the Emergency Department. He signed the Admission Ticket filled by a Clerk of the office as per his dictation. The admission ticket is Ext. 14. ( 8 ) P. W. 8, Shri Sambhu Charan Pal, Assistant Sub-Inspector, was attached to Alipore P. S. since 1989. He received the Admission Medical Certificate of Smt. Mira Das bearing No. 800 from S. S. K. M. Hospital through Bhowanipore P. S. and he entered the same in the G. D. under entry No. 965 dated 12-3-89 Ext. 8. ( 9 ) P. W. 20, Bipul Bhusan Chatterjee, a Sub-Inspector of Police attached to Alipore P. S. on 12-3-89, and on that date he was on duty from 8. 00 a. m. to 2. 00 p. m. In connection with an enquiry he left the P. S. at 9. 30 a. m. and returned back at 11. 34 a. m. At the time the duly officer A. S. I. Sambhu Charan Pal handed over to him one Admission Medical Certificate of one Mira Das who was admitted in the S. S. K. M. Hospital after sustaining burn injury and she was in the cable ward in bed No. Extra 1. The Admission Medical Certificate is Ext. 15. Then he went to the S. S. K. M. Hospital at 0. 30 p. m. for the purpose of enquiry on the basis of the said certificate. She recorded the statement of the victim Mira Das there and took her LTI on the sheet in which her statement was recorded and it was read over and explained to her. The statement is Ext. 18. Thereafter he went to the Gkhana at premises No. 34, Judge's Court Road and went inside the room as identified by one Parameswar Das, (P. W. 1 ). The statement is Ext. 18. Thereafter he went to the Gkhana at premises No. 34, Judge's Court Road and went inside the room as identified by one Parameswar Das, (P. W. 1 ). In that room he found three pieces of partly burnt Chadar on the wooden Cot, one stove, a kerosene jar and a kerosene bottle. There was no kerosene oil in the stove but the jar and the bottle were filled with kerosene oil. In presence of the witnesses he seized the Chadar, the kerosene stove, jar and bottle under a seizure list Ext. 1. The Chadar, stove, jar and bottle are mat Exts. VIII, I, II and III respectively. There he examined two persons who accompanied the victim to the hospital, namely, (P. W. 1) Parameswar Das, and (P. W. 2) Kishen Das and recorded their statements. He then posted police guard at the P. C. and made a search for the husband of the victim but he did not find him. He came to the P. S. at 7. 20 p. m. and filled up the formal F. I. R. Ext. 1811 and started Alipore P. S. Case No. 60 dated 12-3-89, under Section 307/201 I. P. C. At 9. 10 p. m. he found accused, Kishore Das in Rakhal Das Auddy Road and arrested him and sent him to the Court on 13-3-89. On 13-3-89, he sent a requisition to the District Magistrate, 24-Parganas through the O. C. , Alipore for recording the dying declaration of the victim, Mira Das. The carbon copy of the requisition is Ext. 19. ( 10 ) SHRI Abhijit Banerjee, Deputy Magistrate, Land Acquisition Officer, went to the hospital in pool car of the D. M. office along with P. W. 20 and there in the hospital Shri Banerjee. (P. W. 19) recorded the statement of Mira Das in his presence. He proved his own (P. W. 20) signature on the dying declaration Ext. 17/1. Then he returned to the P. S. and came to know that photographer took photograph of the P. O. Again he went to the P. O. and seized his (accused) business items of 22 pieces of shirtings and 10 pieces of suitings under a seizure list prepared and signed by him Ext. 6. 17/1. Then he returned to the P. S. and came to know that photographer took photograph of the P. O. Again he went to the P. O. and seized his (accused) business items of 22 pieces of shirtings and 10 pieces of suitings under a seizure list prepared and signed by him Ext. 6. The plan maker came there in presence of P. W. 20 and O. C. and prepared the plan of the P. O. On 15-3-89, he came to the P. S. at 1. 45 p. m. at the time the duty officer, A. S. I. A. Ghosh, produced before him the death certificate of Mira Das. Then he made a submission before the learned Magistrate for addition of the charge under Section 302 I. P. C. in the F. I. R. ( 11 ) THEREAFTER the F. S. L. team visited the P. O. accompanied by P. W. 20 on 16-3-89, and then on enquiry they could ascertain that Mira Das was a muslim earlier and about her daughters and son. ( 12 ) P. W. 20 made a request to O. C. , Bhowanipore P. S. to hand over the dead body to her daughter after P. M. examination. He sent the viscera to F. S. L. for examination on 20-3-89, and collected the bed head ticket and connecting papers including death certificate from S. S. K. M. Hospital under a seizure list prepared and signed by him Ext. 20. The materials seized are mat Ext. IX collectively. He collected P. M. report, inquest report; F. S. L. report on different dates and then he submitted charge-sheet against the accused Kishori Das under Section 302/201 I. P. C. ( 13 ) THE accused Kishore Das faced the trial for offence under Section 302/201 of the I. P. C. in Sessions trial No. ST3 (9)/90 but he was acquitted of the charge under Section 201 I. P. C. but convicted for offence under Section 302 I. P. C. and suffered life imprisonment therefor. ( 14 ) P. W. 3, Bhubaneswar Das is a seizure list witness regarding the burnt Chadar, one stove, one kerosene jar seized from the house of Kishore Das by P. W. 20 and he put his signature with date on the seizure list is Ext. 1/1. He also identified the seized materials. ( 14 ) P. W. 3, Bhubaneswar Das is a seizure list witness regarding the burnt Chadar, one stove, one kerosene jar seized from the house of Kishore Das by P. W. 20 and he put his signature with date on the seizure list is Ext. 1/1. He also identified the seized materials. ( 15 ) P. W. 4, Basudeb Das is another seizure list witness of the said articles and his signature on the seizure list is Ext. 1/2. ( 16 ) P. W. 5 Pradip Ram is a witness of seizure of the business articles of Kishore Das. His signature on the seizure list is Ext. 6/1. He also identified the seized materials marked Ext. V. ( 17 ) P. W. 6, Ram Lakhan Prosad Rai Ghosh was only tendered for cross-examination and it was declined. ( 18 ) P. W. 7, Achyanta Nanda Ghosh received the death certificate of Mira Das on 15-3-89, as he was posted as A. S. I. in Alipore P. S. He received the same through Bhowanipore P. S. and made a G. D. entry No. 1272 dated 15-3-89 Ext. 7. ( 19 ) P. W. 9, Santanu Bose, a constable of Calcutta Police attached to D. D. as plan Maker since 1983, prepared the rough sketch of the P. O. on 13-3-89, being shown to him by P. W. 20 and on the basis of rough sketch map he prepared the plan Ext. 9. series. ( 20 ) P. W. 10, Anirudha Chakraborty, a constable attached to D. D. , took photographs of the P. O. on 13-3-89, as the P. O. was pointed out by S. I. , B. Chatterjee, P. W. 20. He proved the three prints and the negatives (material Ext. VI collectively ). ( 21 ) P. W. 11, Dr. Ila Saha was an Associate Prof. at S. S. K. M. Hospital in the Department of Plastic Surgery since 1983. On 11-3-89 at 11 p. m. one Mira Das c/o Kishore Das of 34, Judges Court Road was admitted under her care in bed. No. Extra 1 in the cable ward with 60% burn injury. Mira Das did not make any statement before her. The history and statement were recorded by the House Surgeon who used to look after her during her stay in the cabin. No. Extra 1 in the cable ward with 60% burn injury. Mira Das did not make any statement before her. The history and statement were recorded by the House Surgeon who used to look after her during her stay in the cabin. She does not remember the name of the house surgeon posted at the relevant time. She further deposed that there a doctor was posted in the ward for 24 hours round the clock besides the nurses and metrons. ( 22 ) P. W. 12, Shri A. K. Ghosh was posted as Assistant Director at the State Forensic Laboratory, Government of West Bengal and on glass phial containing blood, nail cutting and hair was sent to the laboratory for examination. It was examined under his instruction and he proved the report Ext. 10 and the packet containing the phial etc. is marked Ext. VII. ( 23 ) P. W. 13, Dr. Dhruba Marjid, Assistant Director of State Forensic Laboratory, Government of West Bengal, visited 34, Judges Court Road, Gokhana, on 16-3-89 and examined one stove at Alipore P. S. He submitted his report Ext. 11. He identified the stove material Ext. I. ( 24 ) P. W. 14, Sachi Dulal Pahari, Assistant Director, Chemistry Department, State Forensic Science Laboratory, received 4 sealed paper packets marked with letters A, B, C and D on 25-4-89 in connection with Alipore P. S. Case No. 60 dated 12-3-89. The packed marked "a" containing 2 bed sheets and 1 khaddar wrapper each having marks of burn and wholes at places and the packed marked as letter 'c' contained one plastic container 450 Ml. colourless oily liquid. The paper packet marked with letter 'd' contained one glass bottle containing 430 Ml. colourless oily liquid and the paper packet marked with letter 'b' was empty. He examined those packets and submitted his report Ext. 12 and the materials examination on above are marked collectively as material Ext. VIII. ( 25 ) P. W. 15, Susanta Mukherjee was a Senior Scientific Officer of State Forensic Science Laboratory and on 16-3-89, he examined one paper packed marked 'b' containing one metalic side tank compressor stove and he submitted his report Ext. 13. He identified the stove material Ext. I. It appears that there is something wrong regarding the date of examination as the incident took place on 11-3-89 the material cannot be examined on 9-11-89. 13. He identified the stove material Ext. I. It appears that there is something wrong regarding the date of examination as the incident took place on 11-3-89 the material cannot be examined on 9-11-89. ( 26 ) P. W. 17, Kalyan Kumar Basu was attacked to New Alipore P. S. on 16-3-89, as Sub-Inspector of Police and on that date he held inquest over the dead body of Mira Das, wife of Kishore Das of 34, Judges Court Road at S. S. K. M. Hospital in presence of witnesses. ( 27 ) P. W. 18, Pulin Behari Das is an Assistant Chief Medical Officer of Health, Medicolegal, 24parganas (S ). On 16-3-89, he held postmortem examination over the dead body of Mira Das in connection with the Bhowanipore P. S. Case. Inquest report No. 225 dated 16-3-89, on being identified by constable No. T-36 Arun Kumar Saha at 1. 15 p. m. and found the following injuries over the person of the dead body :-1. Extensive 1st degree burn detected over scalp hair with signing of hair. 2. 1st degree burn over forehead. 3. 1st degree burn over eyelashes. 4. 1st degree burn over eyebrows, over eyelids with signing of hairs. 5. 1st degree burn over nose, lips, cheeck both ears and all other parts of the face. 6. 1st degree burn over neck as a whole. 7. 1st degree burn over chest wall with breast and nipple. 8. 1st degree burn over abdomenal wall as a whole including both flanks. 9. Crowins with singing of pubic hairs. 10. 1st degree burn over lower extremity as a whole. 11. 1st degree burn over upper extremitty as a whole. 12. 1st degree burn over back from the nape of neck to down both buttocks except some parts on the back. All the burn injuries having evidence of lining of redress and vescile formation. 13. Abrasion detected over dorsal side of left wrist joint measuring 1" x 1/2". 14. Abrasion over back left elbow measuring 1- 1/2" x 1/2". 15. Abrasion over back of right leg measuring 2" x 1". 16. Abrasion over left patela measuring 2" x 1/2". 17. Abrasion over back lumber region measuring 3% x 3"x 1. "18. Abrasion over back of right arm measuring 2- 1/2, x 2/2 ". All the abrasions are superimposed on the burnt parts of the body and having corresponding bruises under knee. 16. Abrasion over left patela measuring 2" x 1/2". 17. Abrasion over back lumber region measuring 3% x 3"x 1. "18. Abrasion over back of right arm measuring 2- 1/2, x 2/2 ". All the abrasions are superimposed on the burnt parts of the body and having corresponding bruises under knee. He opined that death was due to effect of extensive injury stated in his report which were antimortem in nature as stated earlier. ( 28 ) ABHIJIT Banerjee, P. W. 19, was a Deputy Magistrate and Special Land Acquisition Officer, Alipore and on 13-3-89, he went to the S. S. K. M. Hospital at 1. 00 p. m. and recorded the statement of Smt. Mira Das as per requisition of the O. C. , Alipore P. S. on being accompanied by the I. O. Bipul Bhusan Chatterjee, P. W. 20. He recorded the statement of Mira Das in the hospital in question and answer form and he proved the statement which is a dying declaration in this case with his signature on it Ext. 17. According to him Mira Das could not put her LTI on the statement nor could sign on it due to burn injury. He further deposed that the statement of Mira Das was recorded by him and he explained to her the contents and she admitted it to be correct. In cross-examination he deposed that he did not ascertain about the physical and mental condition of the patient Mira Das. He also deposed that he did not make any endorsement to that effect on the dying declaration. He also deposed that he did not make any other person as an attesting witness besides the I. O. and that the hospital doctor and nurses refused to attest the statement as attesting witnesses but there is no endorsement on the statement to that effect. ( 29 ) WE have already pointed out that the two persons accompanied injured Mira Das to the hospital from Gokhana at 34, Judges Court Road along with the husband of Mira Das, accused Kishore Das. ( 30 ) THE said two persons are Parameswar Das, (P. W. 1) and Kishen Das, (P. W. 2) deposed that sometime in the middle of March, 1989, at about 10-30 p. m. both of them were sitting in front of main gate of Gokhana. ( 30 ) THE said two persons are Parameswar Das, (P. W. 1) and Kishen Das, (P. W. 2) deposed that sometime in the middle of March, 1989, at about 10-30 p. m. both of them were sitting in front of main gate of Gokhana. At that time Kishen left for his house for taking meal and thereafter P. W. 1 proceeded towards his house at that time he heard the cry "fire, fire". On enquiry he came to know that the alarm was coming from the house of Kishore Das then he went to Kishore's house and upon the request of Kishore he brought a taxi and removed Mira with burn injury in that taxi to P. G. Hospital. ( 31 ) P. W. 1 further deposed that he saw Kishore trying to extinguish the fire by wrapping chaddar on the body of Mira and thereby Kishore sustained injury and on his enquiry Mira told him that she sustained burn injury while preparing food on that stove. ( 32 ) P. W. 2 further deposed that Mira stated in the taxi while going to the hospital that she sustained burn injury from the stove. So they did not support the prosecution case. ( 33 ) THE entire prosecution case depends upon the two dying declarations. One was recorded by P. W. 19 on 13-3-89 in S. S. K. M. Hospital Ext. 17 and another that was recorded by the I. O. , P. W. 20 on 12-3-89 in the S. S. K. M. Hospital at 0. 30 p. m. According to P. W. 20 he recorded the statement of the victim Mira Das and obtained her LTI on the statement. The same was read over and explained to her and thereafter she put her LTI on the same. The dying declaration is Ext. 18. ( 34 ) IN cross-examination P. W. 20 further deposed that on that date i. e. 12-3-89, being Sunday he could not find Superintendent of S. S. K. M. Hospital and he did not find also the Medical Officer and the Metron in the cable ward. He also deposed that on enquiry he could not ascertain the name of the nurse. He also did not remember the number of nurses present at that time in the cable ward. ( 35 ) WE have already pointed out from the evidence of P. W. 1 I, Dr. He also deposed that on enquiry he could not ascertain the name of the nurse. He also did not remember the number of nurses present at that time in the cable ward. ( 35 ) WE have already pointed out from the evidence of P. W. 1 I, Dr. Ila Saha that in the ward there is a doctor posted 24 hours round the clock besides the nurses and metrons. ( 36 ) FROM Ext. 18 it appears that the victim Mira Das, who suffered a burn injury of 60-66%, gave a detailed description of the incident and not only that she gave detail of her past life, number of children, son-in-law, husband, the address of the son-in-law etc. ( 37 ) SUPREME Court in the case of Mohar Singh v. State of Punjab, reported in 1981 Suppscc 18 : (1981 Cri LJ 998), while considering a dying declaration recorded by police officer in hospital observed that very detailed and coherent dying declaration is not possible where deceased is in a state of shock being seriously injured. ( 38 ) NOT only that there is no endorsement by any doctor present in the ward, as deposed by P. W. 11, about the physical and mental condition of Mira Das. A 'remark' has been appended by the I. U. rather the police officer on that dying declaration that the complainant was an illeterate female who voluntarily gave her LTI but the duty nurse at the ward having witnessed the statement refused to sign on the paper of the statement. But the I. O. could not give the name of the nurse. He said in his deposition that he tried to ascertain the name of the nurse but could not do so. It is the general practice in every hospital that a roster is maintained for the nurses on duty and the name of the nurses could have been ascertained very easily from there. That has not been done. A doctor was present in the hospital but his service was not requisitioned for ascertaining the physical and mental condition of Mira Das. ( 39 ) THE dying declaration Ext. 18 does not show who were present at the time of making such statement by the victim. That has not been done. A doctor was present in the hospital but his service was not requisitioned for ascertaining the physical and mental condition of Mira Das. ( 39 ) THE dying declaration Ext. 18 does not show who were present at the time of making such statement by the victim. ( 40 ) WE get from the deposition of A. Banerjee (P. W. 19) that he could not obtain either the LTI or signature of Mira Das on the dying declaration due to her burn injury on 13-3-89, (Ext. 17 ). Then how P. W. 20 could get the LTI of Mira Das on the alleged statement (Ext. 18) on 12-3-89? This casts a doubt about the statement and for that the said statement Ext. 18 cannot be relied upon. ( 41 ) EXT. 17, the dying declaration does not show the mental condition and physical fitness of Mira on 13-3-89 while such a statement alleged to have been made by Mira Das though a doctor was present round the clock so also the nurses and metrons. That apart from Ext. 17 we find that only the I. O. was present. Why P. W. 19 did not summon the service of doctor, the nurses and metrons to know the physical and mental condition of Mira Das. ( 42 ) THE Supreme Court in the case of Jagga Singh v. State of Punjab, reported in 1995 Cal Cri LR (SC) 18 : ( AIR 1995 SC 135 ), while considering a dying declaration under Section 32 of the Indian Evidence Act, 1872, held that in the absence of endorsement of the doctor in the dying declaration though he was present at the time of the statement about the fitness of the victim to make the statement in question visits the statement with infirmity and suspicion. ( 43 ) FROM the evidence of P. W. 11 it is seen that the doctor was present round the clock on duty and that apart nurses and metrons were also there in the ward. But in both the dying declarations Exts. 17 and 18, the endorsement of the doctor was absent. ( 44 ) THERE may be a suspicion that the accused had committed the offence but suspicion cannot take the place of proof, and in criminal law the prosecution has to prove the guilt beyond reasonable doubt. But in both the dying declarations Exts. 17 and 18, the endorsement of the doctor was absent. ( 44 ) THERE may be a suspicion that the accused had committed the offence but suspicion cannot take the place of proof, and in criminal law the prosecution has to prove the guilt beyond reasonable doubt. But the prosecution could not cross the barrier of reasonable doubt to attain the realm of proof to prove the prosecution case to the hilt. The dying declarations do not cross that parameter of suspicion to enter the zone of proof and they are not free from doubt and very difficult to rely upon for convicting the accused. ( 45 ) THE Supreme Court in the case of Maniram v. State of Madhya Pradesh, reported in 1994 Cat Cri LR (SC) 118 : (1994 Cri LJ 946), has held that dying declaration not attested by doctor about the State of health and bears no signature or thumb impression makes the dying declaration hostile. All those have been pointed out by the Apex Court in the case of Maniram (supra) fits in this case so far Ext. 17 is concerned and partially regarding Ext. 18. As Exts. 17 and 18 do not bear any endorsement by the doctor or his signature on them about the physical condition and mental fitness of Mira to make such a statements while the victim sustained 60-66% burn injury such statements are held to be hostile and cannot be relied upon. ( 46 ) THERE is another statement alleged to have been made by the victim in the hospital as contained in material Ext. IX collectively. None has come forward to prove the same. No doctor said who has recorded the same and it is in whose hand writing. P. W. 11 Dr. Ila Saha simply said that she does not remember the names of the house surgeons who were posted at the relevant time. So, in such circumstances, we keep the said statement from the pale of our consideration. In view of our discussions above, we find that the materials as are available on record including depositions, exts, etc. do not warrant a conviction of the accused and we, accordingly, set aside the conviction and sentence of the accused under Section 302 I. P. C. and allow the appeal. In view of our discussions above, we find that the materials as are available on record including depositions, exts, etc. do not warrant a conviction of the accused and we, accordingly, set aside the conviction and sentence of the accused under Section 302 I. P. C. and allow the appeal. ( 47 ) AS the accused is in jail, he shall he released forthwith from the jail custody. ( 48 ) LET an advance copy of this order be sent to the Superintendent of Jail where the accused is lodged. ( 49 ) A copy of this judgment be also sent to the Trial Court for doing the needful. ( 50 ) VIDYA NAND, J. :-- I agree. Appeal allowed.