MAITHLI SHARAN, J. This appeal is directed against the judgment of conviction and sentence dated 25-1-1980, passed by the Sessions Judge, Bara Banki in S. T No. 99 of 1979, convicting the appellant Ram Vinod for the offence under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life. 2. Prosecution story briefly, runs thus. The deceased Smt. Laxmi Devi was married to accused F. au Vinod in the year 1968 and after the marriage she was living with her husband at the latters house at village Karkha, Police-Station Kotwali, district Barabanki. It is alleged that she was burnt during the intervening night of 24th and 25th October, 1977 at her house, Le. , at her husbands place, in village Karkha. On 25th October, 1977 in the evening at about 7 p. m. one Vinod s/o Suraj Prasad came to the house of deceased Laxmi Devis father Salik Ram (PW 3) and informed that Laxmi Devi had been burnt and her condition was serious. Thereupon Salik Ram (P. W. 3), alongwith his wife, went to village Karkha on a rickshaw and reaching there they found that the house was bolted from inside and after much time it was opened. Going inside the house they found that their daughter Laxmi Devi was lying severely burnt on a bare cot in the kitchen, her body, except the face, was severely burnt and that there was no cloth on her body; body was simply covered with a Dhoti. These two persons, murdered her but she did not say anything and simply hinted something. Her in-laws and some villagers told them that she was burnt during the intervening night of 24th and 25th October, 1977. According to the prosecution accuseds parents did not in form them but instead they got this informa tion from some third source and her in- laws had not even admitted her in any hospital, and, thus, she was not being given proper medical treatment. The rather of the deceased, namely, Salik Ram (P. W. 3) came to the Police-Station Kotwali, district Bara Banki and gave a written report Ext. Ka 5 in the night at about 1 a. m. , the same day. It was received by the then Head Constable Jagdamba Prasad P. W. 1, and he prepared the Chek report Ext. Ka 1. 3. Ka 5 in the night at about 1 a. m. , the same day. It was received by the then Head Constable Jagdamba Prasad P. W. 1, and he prepared the Chek report Ext. Ka 1. 3. The Station House Officer of Police-Station Kotwali Narendra Bahadur Singh (P. W. 8) started investigation in the case. He then and there recorded the statement of the complainant Salik Ram (P. W. 3) and reached the village Karkha. He found that Smt. Laxmi Devi was lying on a cot in a burnt state and she immediately needed medical help. He inspected the spot and prepared the spot map (Ext. Ka 12) and Smt. Laxmi Devi was got admitted in the Civil Hospital. Barabanki. The accused Ram Vinod was arrested. The Investigating Officer recorded the statement of other wit nesses also. In the hospital the dying decla ration of Smt. Laxmi Devi was recorded on 26-10-77 by the Executive Magistrate Sri R. S. Saksena (P. W. 2) in the presence of Dr. VN. Agarwal (P. W. 6) who had certified that Smt. Laxmi Devi was in a fit mental state to make the dying declaration. This was done at 11 p. m. on 26-10-77. In the noon time that very day she was medically examined by Dr. Shyam Kishore (P. W. 4) who found old su perficial burn 55%, the skin had blackened and peeled off at places and blisters had also formed at places, burn was found painful. The report is Ext. Ka 6. Smt. Laxmi Devi died on 3. 11. 77 and then autopsy on her deadbody was done by Dr. O. P. Gupta (P. W. 7), the post-mortem report is Ext. Ka 7. The Investigating Officer Narendra Bahadur Singh completed the rest of the investiga tion of the case and thereafter filed the charge-sheet in the court. 4. Charge for the offence under Sec tion 302 of the Indian Penal Code was framed against the accused Ram Vinod, the husband of the deceased Smt. Laxmi Devi; who pleaded not guilty and claimed to be tried. In his statement under Section 313, Cr. PC. he admitted that his wife Smt. Laxmi Devi had died of burn injuries but he ex pressed his ignorance as to how she got burnt. He simply denied that he had com mitted any offence. 5. In his statement under Section 313, Cr. PC. he admitted that his wife Smt. Laxmi Devi had died of burn injuries but he ex pressed his ignorance as to how she got burnt. He simply denied that he had com mitted any offence. 5. Prosecution examined eight wit nesses before the learned trial Court, out of whom three are medical witnesses and three are Police witnesses, one Executive Magistrate who recorded the dying declara tion of deceased Smt. Laxmi Devi and the rest one is the father of deceased Smt. Laxmi Devi, namely, Salik Ram (P. W. 3 ). Relying on the dying declaration Ext. Ka 4 and the evidence of Salik Ram (P. W. 3), the learned Sessions Judge came to the conclusion that the prosecution had been successful in prov ing its case against the accused-appellant Ram Vinod beyond reasonable doubt, and, therefore, he convicted and sentence him to undergo imprisonment for life. Being ag grieved by this judgment of conviction and sentence passed by the learned trial Court accused Ram Vinod has preferred this ap peal. 6. We have heard the learned counsel for the accused-appellant and the learned Government Advocate at length. 7. The main thrust of the learned coun sel for the appellant is that the evidence of Salik Ram (P. W. 3), father of the deceased Laxmi Devi, does not inspire confidence so as to bring home the complicity of accused Ram Vinod with the crime in question. His further argument is that so-called dying dec laration (Ext. Ka 4) recorded by the Execu tive Magistrate R. S. Saxena (P. W. 2) is also shaky and becomes doubtful by itself, and also when it is considered together with the statement of Salik Ram (P. W 3 ). Certainly, according to him there is no other evidence available on record to implicate the accused with the crime in question. Hence, the judg ment of conviction passed by the learned Sessions Judge could not be sustained. 8. On the other hand, the contention of the learned Government Advocate is, first ly, since it was a case of dowry death hence there is a presumption under Section 113-B of the Evidence Act that the said death had occurred on account of dowry as defined under Section 304-B of the Indian Penal Code. 8. On the other hand, the contention of the learned Government Advocate is, first ly, since it was a case of dowry death hence there is a presumption under Section 113-B of the Evidence Act that the said death had occurred on account of dowry as defined under Section 304-B of the Indian Penal Code. His second argument is that the legal position is very clear that a conviction can be based on the solitary evidence of dying declaration of the deceased and since in the instant case dying declaration (Ext. Ka 4) recorded by the Executive Magistrate coupled with the evidence of deceaseds own father Salik Ram (P. W. 3) did go to circumscribe the appellant with the crime in question, hence it could not be said that the prosecution had failed to bring home the guilt against the appellant. 9. At the outset we would like to con sider the legal presumption adunbrated under Section 113-B of the Indian Evidence Act argued by the learned Government Ad vocate. Suffice it to say that this provision was inserted by Act No. 43 of 1986, that is, much after the incident in question. Similar ly, Section 304-B I. P. C. defining dowry death was also inserted in the year 1986 by Act No. 43, again much after the occurrence of the incident in question. Thus, apparent ly, these two provisions would not play any role in the instant case. 10. Now, coming to the factual aspects of the case we find that a very short point is involved in this case, and that is regarding the evidentiary value of the statement of Salik Ram (P. W 3), father of the deceased Laxmi Devi, and the so-called dying declara tion Ext. 4 of Smt. Laxmi Devi recorded by the Executive Magistrate Sri R. S. Saxena (P. W. 2 ). There could be no doubt, and it is a well settled legal position, as well that if the dying declaration is found to be true and free from any embellishment, then it could be taken to be sufficient for convicting the accused, but it is also true that to base con viction on dying declaration of the deceased it must face the test for being worthy of credence. Failure of the person recording dying declaration to observe certain safeguards in this regard may go to create doubt in it, and merely because the dying declaration has been recorded by some Magistrate, Executive or judiciary, could not by itself be taken to be a proof of its truthfulness. Thus, the dying declaration (Ext. Ka 4) recorded in the instant case has to be tested on the touchstone of the relevant necessary safeguards in the cir cumstances of this case, and of course, the evidence of Salik Ram (P. W. 1), the father of the deceased Smt. Laxmi Devi would also be required to be considered in the context of the said dying declaration (Ext. Ka 4 ). 11. First of all we venture to consider the said dying declaration (Ext. Ka 4) recorded by the Executive Magistrate R. S. Saksena P. W. 2 who deposed that Laxmi Devi was in proper senses at that time as certified by Dr. V. N. Agarwal (P. W. 6) vide Ext. Ka 3, and that she was in a fit mental state to make the dying declaration. He deposed that he recorded the dying declara tion (Ext. Ka 4) and it bears his signatures and right hand thumb impression of deceased Smt. Laxmi Devi. He has also deposed that when he recorded the dying declaration no other person was present there and that after giving certificate (Ext. Ka 1) the doctor had also gone out. Dr. V N. Agarwal (P. W. 5) has also deposed that he had given certificate (Ext. Ka 3) that Smt. Laxmi Devi was mentally fit to give the dying declaration. He has deposed that he did not remember as to who were present when the dying declaration was being recorded by the Magistrate. As observed above, the Executive Magistrate R. S. Saksena (P. W. 2) has himself deposed that after giving certificate (Ext. Ka 3) the doctor had gone out, hence it goes to indicate that when the dying declaration was being recorded Dr. VN. Agarwal (P. W. 6) was himself not present over there. Thus, his (P. W. 6) ver sion that he did not remember as to which persons were present over there when the dying declaration was being recorded does not inspire any Confidence obviously be cause he himself was not present over there during that period. VN. Agarwal (P. W. 6) was himself not present over there. Thus, his (P. W. 6) ver sion that he did not remember as to which persons were present over there when the dying declaration was being recorded does not inspire any Confidence obviously be cause he himself was not present over there during that period. It is also curious to note that after completing the dying declaration (Ext. Ka 4) there is no endorsement of the doctor to the effect that during the period the dying declaration was being recorded the person concerned remained throughout in a fit mental condition to give the dying declaration. It is certainly an important in firmity in this case that neither the doctor remained present over there throughout nor he gave a certificate to this effect after wards. 12. Regarding the said dying declara tion one another feature is also important. Dr. O. P. Gupta (P. W. 7) conducted the autopsy on the deadbody of Smt. Laxmi Devi and he has deposed that finger and the palm of the right hand of Smt. Laxmi Devi had burnt. As observed above, the dying declaration Ext. Ka 4 shows that the right hand-thumb impression of Laxmi Devi was taken on that document. This aspect goes to indicate something fishy in the matter, ob viously because when the fingers and the palm of her right hand had gat burnt no right hand thumb-impression could have been taken. This is again an infirmity which shakes the credit of dying declaration (Ext. Ka 4 ). That apart, Executive Magistrate (P. W. 2) whose version to the effect that during the period he recorded the dying declaration no other person was present also gets shaky and doubtful in view of the deposition of Salik Ram (P. W. 1) who stated in his cross-examination in para 16 that during that period his wife and some neigh-bourers and other women were present over there. This feature further goes to belittle the authenticity of the dying declaration (Ext. Ka 4 ). Not only this, it also indirectly goes to create doubts, in the deposition of the Executive Magistrate R. S. Saksena P. W. 2. Thus, under these circumstances it could not be ruled out that the so- called dying declaration (Ext. This feature further goes to belittle the authenticity of the dying declaration (Ext. Ka 4 ). Not only this, it also indirectly goes to create doubts, in the deposition of the Executive Magistrate R. S. Saksena P. W. 2. Thus, under these circumstances it could not be ruled out that the so- called dying declaration (Ext. Ka 4) in which Smt. Laxmi Devi tried to implicate her husband accused Ram Vinod with the crime in question is untrustworthy and impeachable document. 13. In the above discussed dying decla ration (Ext. Ka 4) it is alleged that the deceased Smt. Laxmi Devi had stated that her husband had poured kerosene oil on her body and then burnt her and further that he had done so on the instigation of his parents. This dying declaration was given on 26-10-77 at about 11 p. m. , but it is really curious to note that she did not say even a single word in this regard to implicate her husband with the crime in question to her parents whom she met much before that, i. e, in the evening on 25th October, 1977, as is clear from the statement of Salik Ram (P. W. 3 ). He has clearly deposed that when he, alongwith his wife, met Smt. Laxmi Devi in the kitchen where she was lying in burnt state on bare cot he had asked her as to how it had happened then she did not not tell anything in this regard; she had simply hinted; she was feelling pain. He has deposed that he and his wife had started weeping and were sitting by the side of the cot on which Smt. Laxmi Devi was lying. He has further deposed that in the hospital also he had talked with his daughter Smt. Laxmi Devi but she did not tell him that her hus band had burnt her. He also deposed that in the hospital his wife had also talked with the daughter Smt. Laxmi Devi, but at that time he was not there. At this juncture it is per tinent to note that the wife of Salik Ram (P. W. 3), though alive, has not been ex amined by the prosecution to show as to what had transpired between her and deceased Laxmi Devi. At this juncture it is per tinent to note that the wife of Salik Ram (P. W. 3), though alive, has not been ex amined by the prosecution to show as to what had transpired between her and deceased Laxmi Devi. Thus, this aspect also does not help the prosecution, even if the deceased had told her mother that she had been burnt by her husband accused Ram Vinod. Obviously, adverse inference would be drawn against the prosecution in this regard. 14. Salik Ram (P. W. 3) has no doubt deposed that on being asked in the hospital Smt. Laxmi Devi had told him that in that opportune night her husband accused Ram Vinod had severely beaten her on the in stigation of his father who had even told to finish her and he (father-in-law) would ar range for his (husband) second marriage. She had told him (P. W. 3) that having been beaten by him she had become unconscious; at about 2. 30 a. m. in the night kerosene oil was poured on her, she did not speak any thing and remained lying on the cot and thereafter she was burnt and then she got up from the cot and shouted" DADADAURO KISINE AAG LAGADEE". This utterance of her again goes to show that perhaps she could not see as to who had burnt her. It is really surprising, if it was her husband ac cused Ram Vinod then she should have told her father Salik Ram (P. W. 3) that her hus band had done so; there was no point in hiding it. Salik Ram (P. W. 3) has further deposed that he himself did not specifically ask his daughter as to who had poured kerosene oil on her. It is also strange and does not stand to reason why he did not ask all this and why deceased Laxmi Devi did not tell him the actual truth as to how the occurrence had taken place. It is also curious to note that he (P. w. 3) very specifi cally deposed that his daughter had once told him that her relations with her husband accused Ram Vinod were very cordial. This aspect further goes to weaken the prosecu tion case. Salik Ram (P. W. 3) has also deposed that his statement was never recorded by the Investigating Officer. 15. This aspect further goes to weaken the prosecu tion case. Salik Ram (P. W. 3) has also deposed that his statement was never recorded by the Investigating Officer. 15. All the above discussed un-naturalities and improbabilities occurring in the prosecution case coupled with the shaky, infirm, doubtful and impeachable al leged dying declaration (Ext. Ka 4), where chance of tutoring could not be said to have been ruled out, do go, in our opinion, to create much doubt in the prosecution case, and it could not be said that it had proved beyond doubt the charge of murder levelled against the accused Ram Vinod, husband of the deceased Laxmi Devi. Consequently, this appeal deserves to be allowed, and it is hereby allowed. The judgment of conviction and sentence passed by the learned court below is accordingly set aside and the ac cused-appellant Ram Vinod is acquitted of the charge for the offence under Section 302 of the Indian Penal Code levelled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Appeal allowed. .