JUDGMENT S.C. Pandey, J. 1. This appeal is directed against the judgment of conviction and sentence dated 23.7.1994 passed by the IInd Additional Sessions Judge, Bilaspur in Sessions Trial No. 239/91, whereby the appellant has been convicted for offence punishable under Section 306 of the Indian Penal Code and has been sentenced to R.I. for five years and fine of Rs. 1,000/- (Rupees one thousand) or in default R.I. for five months. 2. The case of the prosecution was that the appellant Malikram was living in the house of Dhaniram at Sarkanda, District Bilaspur alongwith his second wife Rama. The first wife of the appellant was Shashi Gayakwad. The appellant performed marriage ceremony with Rama Gayakwad at Maiher Temple on his assertion that he was unmarried. Thereafter, at Maiher Temple, the appellant brought the deceased Rama Gayakwad and kept her in the house of Dhaniram. His first wife was living at the locality Tarbahar of Bilaspur. It was the case of the prosecution that the dispute between the appellant and Rama Gayakwad was not on account of the fact that he was already married but because he did not supply her adequate money. 3. On the date of incident i.e. 20.7.1989, it was alleged by the prosecution that there was an altercation between the appellant and his second wife Rama Gayakwad, for the reason, the appellant was not paying her rent of the house in which she was living at Sarkanda, Distt. Bilaspur. On demand of the rent, the appellant abused her and stated that he could have number of wives like her and also stated that she would not be able to know about them. Thereupon at about 5.00 p.m., Rama Gayakwad committed suicide by pouring kerosene on her body and setting it to fire. She was admitted in the hospital on the same date and she died in the hospital after three or four hours of admission. It was also not disputed by the prosecution that accused / appellant was also found to have been trying to prevent the fire and he was also admitted in the hospital. This fact was also recorded by Mr. K.B, Singh, Asstt. Sub-Inspector, PW 7 and his report was exhibited as Ex. P:7; This report was recorded by Mr. K.B. Singh on 20.7.1979 at about 8 p.m. This was registered as Crime No. Zero and it is the real F.I.R. Dr. This fact was also recorded by Mr. K.B, Singh, Asstt. Sub-Inspector, PW 7 and his report was exhibited as Ex. P:7; This report was recorded by Mr. K.B. Singh on 20.7.1979 at about 8 p.m. This was registered as Crime No. Zero and it is the real F.I.R. Dr. Sunita Verma, PW 9 examined the deceased Rama Gayakwad on 20.7.1989 at about 9 p.m. Her medical report is Ex. P-6(A). In this report Ex. P-6(A), it had been recorded by Dr. Sunita Verma, PW 9 that at the Rama Gayakwad was admitted, her pulse could not be recorded and also that her blood pressure could not be recorded, as this was the case of hundred percent bums. 4. Subsequently, Rama Gayakwad died at about 12.10 a.m. on 21.7.1989. Thereafter, death intimation report/inquest report was recorded. The Investigating Officer recorded Ex. P-10 against the appellant on the basis of a dying declaration, Ex. P-18 recorded by the Tahsildar Shri R.R. Thakur, PW-11. Thereafter, completing the investigation in usual manner, a challan against the appellant was filed in the Court of C.J.M., Bilaspur who committed the case to Sessions trial. The Sessions Court charged the appellant with abetting the suicide of Rama Gayakwad and thereby committing an offence under Section 306 of the Indian Penal Code. 5. The appellant denied his guilt and stated that he has been falsely implicated. 6. The Trial Court convicted the appellant under Section 306 of the Indian Penal Code mainly on the basis of dying declaration. Ex. P-18 recorded by the Tahsildar Shri R.R. Thakur, PW-11. There was no eye witness to the incident except the appellant who himself recorded the bum injuries in trying to extinguish the fire. 7. In this appeal, learned Counsel for the appellant argued that commission of offence under Section 306 of the Indian Penal Code was not made out, for the reason, the dying declaration Ex. P-18 recorded by Mr. R.R. Thakur, Tahsildar, PW-11 was not proved in accordance with law and his document is not above suspicion. Learned Counsel for the appellant argued that it was not disputed by the prosecution that the appellant hied to extinguish fire and was admitted in the hospital on account of the bum injuries. For this reason, it cannot be said that the appellant was abetting the offence committed by the deceased Rama Gayakwad under Section 309 of the Indian Penal Code. 8. For this reason, it cannot be said that the appellant was abetting the offence committed by the deceased Rama Gayakwad under Section 309 of the Indian Penal Code. 8. Learned Counsel for the respondent/State however, argued that there was sufficient evidence on record to the effect that the appellant was ill-treating his second wife Rama Gayakwad and he relied on Ex. P-18, the dying declaration for arguing that the offence under Section 306 of the Indian Penal Code was made out. 9. Having heard the learned Counsel for the parties, this Court is of the opinion that the learned trial Judge was not right in convicting the appellant for an offence punishable under Section 306 of the Indian Penal Code on the basis of evidence on record. It is clear from the evidence of Dr. Sunita Verma, PW-9 that on 20.7.1989 when Ex. P-6(A), the medical report was recorded. Rama Gayakwad was admitted in the hospital with hundred percent burns. She was under a shock. Her hair also was got burnt when she examined her. The body was smelling of kerosene. Accordingly, she was admitted in female surgical ward. At that time, she could not record her pulse and blood pressure. In cross-examination, this witness admitted against the prosecution that when she examined her the deceased Rama Gayakwad was not in a position to make any statement and she was about to die. Therefore, this Court must examine the evidence of Shri R.R. Thakur, Tahsildar, PW-11 who is alleged to have recorded the dying declaration, in the light of evidence of the Doctor Sunita Verma, PW-9. The witness i.e. R.R. Thakur, PW-11, who was at the relevant time Naib Tahsildar at Bilaspur, stated in his examination-in-chief that he had recorded the dying declaration at about 8 p.m. on 20.7.1989. When cross-examined, he was unable to remember that who had called him. He stated that the patient at the time was conscious. But, he stated that the deceased was not in a position to sign any document. He was specifically asked the question in cross-examination the effect that he prepared the dying declaration on his own at the instance of Station House Officer, which he denied. It was stated on behalf of the defence that this dying declaration was not prepared by him but by Investigating Officer. He was specifically asked the question in cross-examination the effect that he prepared the dying declaration on his own at the instance of Station House Officer, which he denied. It was stated on behalf of the defence that this dying declaration was not prepared by him but by Investigating Officer. After examining the dying declaration, this Court finds that there is a note, purported to be signed by a doctor, certifying that Rama Gayakwad was conscious at the time she made her statement. The witness was totally silent about this certificate. No doctor was examined who would prove the certificate to the effect that the deceased was fully conscious when she made the dying declaration. Under such circumstances, only the evidence of Shri R.R. Thakur, Tahsildar, PW-11 remains. No doubt, he is a Magistrate, but that does not mean he should be blindly relied on. In the cross-examination, this witness said that he had prepared two copies of the dying declarations and the copy which was produced in the Court was sent by him from his home to the Station House Officer, Police Station Sarkanda, through a Peon whom he could not name. He admitted that he did not try to take the dying declaration before any independent witness: It is rather strange that this witness has not stated either in examination-in-chief or in cross-examination that a doctor was present when he took the dying declaration from the deceased Rama Gayakwad. Under such circumstances, it is very doubtful whether the doctor was present at the spot when he appended the certificate. The evidence on record shows that Shri R.R. Thakur, PW-11 went away to his home and from there he sent the report to the Station House Officer, Sarkanda. Therefore, there is no evidence on record when and how the certificate appended to Ex. P-18(A) was recorded. If the witness took away the report with him to his house, then it is probable that Station House Officer may have taken signature of doctor on the dying declaration after its receipts from this witness. This makes the case of the prosecution very doubtful. This Court is not convinced by the facts brought on record by the prosecution and under such circumstances, dying declaration cannot be relied upon. This makes the case of the prosecution very doubtful. This Court is not convinced by the facts brought on record by the prosecution and under such circumstances, dying declaration cannot be relied upon. In the case of State of Haryana v. Harpal Singh and Ors., reported in AIR 19738 SC 1530, the Supreme Court held that the High Court had wrongly acquitted the accused persons on the ground that when the pulse was not countable and the blood pressure was not recordable and the patient was in gasping condition, dying declaration could not be recorded. The Supreme Court took the view that such was not the case. In that case, the doctor was present and he had given the certificate to the effect that the patient is at fit condition to make the dying declaration. This case is distinguished, for the reason, the doctor who gave the certificate has not been examined to show that at the time when the deceased made a dying declaration she was fully conscious. In absence of any independent testimony on record and the fact that the certificate could have been appended later on when the Naib Tahsildar sent the report to the Station House Officer, Sarkanda, this Court has no option but to conclude that the prosecution failed to prove that the dying declaration was made by the deceased Rama Gayakwad with full consciousness. It may be so that the dying declaration may be produced by the prosecution on record but when the Court does not believe the statement of the witness recording the dying declaration or when the Court comes to the conclusion that there was some discrepancies regarding recording of dying declaration, benefit ot doubt must go to the accused. In order to support the case of the prosecution, corroboration was necessary under the facts and circumstances of the case to show that the deceased Rama Gayakwad was alive and conscious when she made the dying declaration, Ex. P-18. 10. Moreover, the prosecution has tried to produce some evidence to the effect that the relations between the appellant and the deceased Rama Gayakwad were not good and she had suffered certain injuries at the hands of the appellant on 13.4.1989. Her report is Ex. P-21. It was proved by Asha Mishra, Head Constable, PW-12. However Ex. P-22 proved by PW-12, Asha Mishra, Head Constable was not enough. Her report is Ex. P-21. It was proved by Asha Mishra, Head Constable, PW-12. However Ex. P-22 proved by PW-12, Asha Mishra, Head Constable was not enough. There was no medical examination of the deceased Rama Gayakwad. The other witness led by the prosecution supported the case of the prosecution that the relations between the appellant and the deceased Rama Gayakwad were not cordial about the time she died but this evidence by itself is not enough. 11. The result of the discussion aforesaid is that the appeal succeeds and is allowed. The conviction and sentence passed by the Court below are set aside. The appellant is entitled to be acquitted and accordingly acquitted of the offence punishable under Section 306 of the Indian Penal Code. The appellant is in jail. He shall be set at liberty forthwith. The fine amount, if deposited by the appellant, shall be refunded to him. The personal and surety bonds executed by the appellant are hereby discharged.