JUDGMENT - VISHNU SAHAI, J.:---The appellants aggrieved by the judgment and order dated 25-7-1997 passed by the Additional Sessions Judge, Baramati in Sessions Case No. 14 of 1996, convicting and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/- each, in default to undergo 9 months rigorous imprisonment for the offence under sections 302 read with 34 I.P.C. have come up in appeal before us. Along with the appellants were tried four others viz. Sau. Tai Tanaji Khade, Sau. Changuna Gorakh Chaudhar, Rajendra Gorakh Chaudhar and Samir Gorakh Chaudhar, but they have been acquitted vide the impugned judgment. The State of Maharashtra has not impugned their acquittal by preferring an appeal. 2. In short the prosecution case runs as under : The deceased Fulabai Machindra Chaudhar was the second wife of Machindra Chaudhar P.W. 1. It is said that she had married Machindra three years prior to the incident and a year after the death of his first wife. Machindra and Fulabai at the time of the incident lived in village Ruighadane, taluka Baramati, within the limits of Police Station Baramaiti Dist. Pune. It is alleged that Machindra had three issues from his first wife-the appellants and acquitted accused Tanaji Khade. It is also said that the said persons, as also acquitted accused Changuna who was the brother's wife of Machindra and her sons Rajendra and Samiar, were not happy with Machindra's second marriage. It is alleged that at the time of the incident Machindra and Fulabai were residing in the old house and the appellants in a newly constructed one. It is also stated that about 15 days prior to the incident a quarrel had taken place between Fulabai and her sister in law, acquitted accused Changuna over the supply of well water to agricultural field and Changuna had hurled abuses at Fulabai. On 28-9-1995 at about 7.30 p.m. while Fulabai was having dinner at her house and her husband Machindra was sitting at Ranjan (a big earthen jar) in front of the house, the appellants and the acquitted accused came; broke open the door of the house; and started assaulting Fulabai with their hands. Thereafter on the instigation of Changunabai appellant Dada poured kerosene on Fulabai which was brought in a can by appellant Sharad and appellant Sharad set her on fire. Thereafter the appellants and others ran away. Thereafter on the instigation of Changunabai appellant Dada poured kerosene on Fulabai which was brought in a can by appellant Sharad and appellant Sharad set her on fire. Thereafter the appellants and others ran away. Her husband Machindra extinguished the fire and took her to Silver Jubilee Hospital, Baramati. 3. The evidence of Dr. Mahadeo Swami P.W. 9 of Silver Jubilee Hospital, Baramati, shows that Fulabai was brought by Machindra in the hospital with burns at 8.15 p.m. and had the following burn injuries: (1) Face - 3%, injury caused within 6 hours. (2) Neck - 12%, injury caused within 6 hrs., (3) Chest (right upper ext. 9%, Left upper ext. 8%) (4) Back buttock 16%, (5) right lower ext. 16% and left lower ext. 6%, total 70%. The said injuries were caused within 6 hours, were attributable to flame; and were grievous in nature. After examining Fulabai Dr. Swami admitted her in the hospital. 4. The evidence of P.S.I. Vasant Gundiba Pawar P.W. 11 of Baramati Police Station shows that at about 8.30 p.m. an information was received from ward-boy Somnath Sonawane of Silver Jubilee Hospital, Baramati, that Fulabai had been brought by her husband Machindra in the said hospital. 5. The evidence of Special Executive Magistrate Jayant Mahaling Nilakhe, P.W. 5 shows that he received a requisition letter Exhibit 35 from Baramati City Police Station at about 8.45 p.m. to record the dying declaration of Fulabai in Silver Jubilee Hospital, Baramati. Consequently on the said requisition he rushed to Silver Jubilee Hospital, Baramati; contacted Dr. Swami P.W. 9 who informed him that Fulabai was fully conscious; and after ascertaining from her whether she was fully conscious and on her replying in the affirmative he recorded her dying declaration between 9 to 9.10 p.m. Since this dying declaration is a crucial piece of evidence in the instant case we propose extracting its English translation verbatim. "Before Shri Jayant Nilakhe, Executive Magistrate, Baramati, Special Executive Magistrate, Baramati, Dist. Pune. Dying Declaration: Name of the person making the statement: Fulabai Machindra Chaudhar Place where the statement is made: Baramati Government Hospital Date on which the statement is made: 28-9-95 Time : At 9 O'clock in the night Question - Are you in a fully conscious state? Answer - Yes. Question - I stated to you that I am an Executive Magistrate. Whether you understand the same properly? Answer - Yes. Answer - Yes. Question - I stated to you that I am an Executive Magistrate. Whether you understand the same properly? Answer - Yes. Question - How did you get burns or have you consumed any poisonous drug or has anybody assaulted you? Answer - 'My Jaoo' (husband's brother's wife) Changuna Gorakh Chaudhar has a quarrel over well water. My step son Dada Machindra Chaudhar, aged 30 years came with a pistol to kill. At that time Changuna said "Dada you pour Kerosene on Fulabai." Dada and Sharad poured kerosene from the can on the body. Changunabai and Raja also poured kerosene on my person. And Raja, Dada and Sharad set me on fire due to which I received burns. Tai Tanaji Khade brought the Kerosene Can. This incident occurred at 7.30 O'clock in the night. Question - Whether you have any complaint in this regard? Yes, I have complaint against Changunabai, Dada, Sharad, Tai, Raja, Saminder. The statement which is written and recorded by you is made by me voluntarily and the same is read over to me which is true and correct. I admit and approve of the same. Before me, sd/- Special Executive Magistrate, Baramati. Left Hand Thumb Impression of Sau. Fulabai Machindra Chaudhar. Stamp. At the time of making the statement Fulabai Machindra Chaudhar was in a fully conscious state. 10 past 9 in the night 28-9-95 sd/-." 6. The evidence of P.S.I. Vasant Pawar P.W. 11 of Baramati Police Station shows that at about 9.05 to 9.10 p.m. he reached Silver Jubilee Hospital; met Dr. Swami, asked him before recording the F.I.R. of Fulabai to certify whether Fulabai was fully conscious and was in a position to speak; and on his answering to the affirmative and making an endorsement in the station diary recorded her F.I.R. Since this F.I.R. is also a crucial piece of evidence in deciding this appeal we propose extracting the relevant part of its English translation in entirety. "I, Sau. Fulabai Machindra Chaudhar, aged 30 years, occupation - House-hold work, r/w. Rui, Tal. Baramati, Dist. - Pune, while being admitted in the Silver Jubilee Hospital, Baramati, give in writing the complaint statement as follows:- I am residing at the aforesaid place with my husband Machindra Rambhau Chaudhar and I am doing agricultural and household work. My husband had a first marriage with Vaijayanta. Baramati, Dist. - Pune, while being admitted in the Silver Jubilee Hospital, Baramati, give in writing the complaint statement as follows:- I am residing at the aforesaid place with my husband Machindra Rambhau Chaudhar and I am doing agricultural and household work. My husband had a first marriage with Vaijayanta. 'Savat' (another wife of husband), Vaijayanta has expired about 4 years ago. Hence my husband entered into his second marriage with me 3 years ago. Savat Vaijayanta begot two daughter viz. (1) Pamal (2) Tai, and two sons viz. (3) Dada and (4) Sharad. All of them are residing separately. Since my marriage, children of my 'Savat', my 'Jaoo' (husband's brother's wife) and her children had a grudge against me. Hence both, my husband and I are residing separately. Children of my 'Savat' and 'Jaoo' and her children used to always pick up quarrels with me and my husband on the ground as to why my husband had married me. According to them I should not live with my husband. My 'Savat's children are more under the influence of my 'Jaoo' Changuna Gorakh Chaudhar. About 15 days ago a quarrel had taken place between me and my 'Jaoo' over the supply of well-water to agricultural field. Yesterday, on 27-9-1995 at about 5 O'clock in the evening when I was at my house my 'Jaoo' Changuna had hurled abuses at me. Today i.e. 28-9-1995 I woke up on the morning at usual time and did the house-hold work. Today being the market day, my husband had gone to Market at Baramati. He returned to home in the evening. I cooked the food in the house and at about 7.30 p.m. I was having my dinner at my house. My husband had observed fast on account of 'Navratra' therefore, he was sitting on 'Ranjan' (a big earthen water jar) in front of the house. When I was having my dinner in the house, Dada, Sharad, Changuna, Raja, Tai banged and opened the door of my house and entered the house. And all of them started fisting me. My husband had observed fast on account of 'Navratra' therefore, he was sitting on 'Ranjan' (a big earthen water jar) in front of the house. When I was having my dinner in the house, Dada, Sharad, Changuna, Raja, Tai banged and opened the door of my house and entered the house. And all of them started fisting me. At that time Changuna said, "Dada, you pour kerosene on the person of Fulabai." At that time Sharad took kerosene can in my house and Dada took the said can in his hand and poured kerosene in the can on my person and Sharad took a match-box lying on the fire place in my house and lit a match-stick and touched it to my saree as a result of which my saree caught fire. Hence I raised cries and started going out of the house when all of them fled. I came outside the house. My husband put off the fire and brought me to a hospital at Baramati by rickshaw. Thereupon, on this day the date 28-9-1995 at about 7.30 p.m. when I was having my dinner in my residential house, my Savat's sons (1) Dada Machindra Chaudhar, (2) Sharad Machindra Chaudhar daughter (3) Tai Tanaji Khade, (4) Jaoo - Changuna Gorakh Chaudhar, and her son (5) Raja Gorakh Chaudhar, all residing at Rui Ghadane Vasti, collusively, poured kerosene on my person and set me a fire with an intention to kill me over the second marriage of my husband with me and over the quarrel that had taken place between me and my 'Jaoo' Changuna and thus they attempted to kill me and hence I have a complaint against them. My aforesaid complaint statement is read over to me and the same is correct as stated by me. Before me, sd/- P.S.I. Baramati, City Police Station. This statement is given on the date as aforesaid. Thumb impression. Left Hand thumb impression of Sau. Fulabai Machindra Chaudhar. Sau. Fulabai Machindra Chaudhar was in a fully conscious state at the time of recording her statement. sd/- 28-9-95 at 10 p.m. Part 1 to 5 C.R. No. 138/95, sections 307, 143, 323 of I.P.C. Date time of occurrence of offence - 28-9-95 at about 19.30 hours. Date time when the offence was registered 28-9-95, 22.05 hrs. Fulabai Machindra Chaudhar. Sau. Fulabai Machindra Chaudhar was in a fully conscious state at the time of recording her statement. sd/- 28-9-95 at 10 p.m. Part 1 to 5 C.R. No. 138/95, sections 307, 143, 323 of I.P.C. Date time of occurrence of offence - 28-9-95 at about 19.30 hours. Date time when the offence was registered 28-9-95, 22.05 hrs. sd/- P.S.I. Baramati Police Station." On the basis of the F.I.R. the same day (28-9-95) at 10.05 p.m. a case under section 307 I.P.C. was registered against the appellants and others. After lodging of the F.I.R. Fulabai who was in a precarious condition was shifted from Silver Jubilee Hospital to Sassoon Hospital, Pune. 7. On 29-9-95 Special Executive Magistrate Ulhas Dattatraya Koranne P.W. 12, received a requisition from Bund Garden Police Station that he should record Fulabai's dying declaration. Consequently he proceeded to Sassoon Hospital where he recorded her dying declaration in question and answer form wherein she stated thus: "29-9-95 Before Shri Ulhas D. Koranne, B.Sc. B.A.LL.B., Special Judicial Magistrate, Pune. Dying Declaration. --- --- --- --- --- --- Question - How did you receive burns? Answer - Yesterday at about 7 p.m. when I was sitting in my house bolting the door, my Savat's (husband's another wife) son Dada came with the pistol in his hand banging the door along with Sharad, 'Jaoo' (husband's brother's wife) Changuna, Raja, Saminder and Taidi. Changuna, Raja and Saminder said, set her fire." Thereupon Dada poured kerosene on my person and Sharad set me on fire and I received burns. --- -- --- -- --- ---" We may mention that we have only extracted the relevant part of this dying declaration because for cogent reasons it has been rejected by the learned trial Judge. We may also mention that at Sassoon Hospital, Fulabai made an oral dying declaration to her brother Ram Sopan Thorve, P.W. 13 and in the same she stated that Raju, Samindar, Tai, Changunabai and Sharad had a quarrel with her; Dada poured kerosene oil on her person; Tai caught hold of her legs; and Sharad set her on fire. This oral dying declaration has also been rejected by the learned trial Judge for good reasons. The evidence is that on 30-9-95 Fulabai succumbed to her injuries in Sassoon Hospital, Pune. 8. This oral dying declaration has also been rejected by the learned trial Judge for good reasons. The evidence is that on 30-9-95 Fulabai succumbed to her injuries in Sassoon Hospital, Pune. 8. The investigation was conducted in the usual manner by P.S.I. Vasant Pawar P.W. 11 and A.P.I. Shantaram Vavahal P.W. 14. After completion of the same chargesheet was submitted by P.S.I. Chavan on 22-12-1995. 9. Going backwards the autopsy on the corpse of Fulabai was conducted on 30-9-1995 by Dr. Vijay Haribhau Mate P.W. 10 who found on it the following ante mortem injuries: "a) head, neck, face - 9%, b) Chest, abdomen - 15% c) back - 18%, d) left upper limb - 9%, e) right upper limb - 9%, f) left lower limb - 15%, right lower limb - 15%. Total burns area 90%." In the opinion of Dr. Mate, the deceased died on account of shock and toxemia due to burns and the said burns were sufficient in the ordinary course of nature to cause her death. 10. The case was committed to the Court of Sessions in the usual manner where the appellants and others were charged for offences under sections 147, 148, 302 read with 149 I.P.C. etc. to which they pleaded not guilty and claimed to be tried. Their defence was that while Fulabai was cooking food her sari accidentally caught fire and consequently she sustained burns to which she succumbed later on. Appellant Sharad also stated that he tried to rescue Fulabai. 11. During trial Court in all the prosecution examined 14 witnesses. We may straight away mention that Fulabai's husband Machindra Chaudhar P.W. 1, who could have furnished ocular account, turned hostile and the only evidence adduced by the prosecution to connect the appellants and acquitted accused persons with the murder were the four dying declarations made by Fulabai prior to her death. The learned trial Judge believed the first two dying declarations viz. statement of Fulabai recorded by the Special Executive Magistrate Jayant Nilakhe P.W. 5, and her F.I.R. recorded by P.S.I. Vasant Pawar P.W. 11 and convicted and sentenced the appellants in the manner mentioned above. He did not rely upon the other two dying declarations viz. the dying declaration recorded by the Special Judicial Magistrate Ulhas Dattatraya Korane P.W. 12, and the oral dying declaration proved by Ram Sopan Thorve, P.W. 13, the brother of Fulabai. He did not rely upon the other two dying declarations viz. the dying declaration recorded by the Special Judicial Magistrate Ulhas Dattatraya Korane P.W. 12, and the oral dying declaration proved by Ram Sopan Thorve, P.W. 13, the brother of Fulabai. The learned trial judge as mentioned in para 1 above acquitted co-accused Sau. Tai Tanaji Khade, Sau. Changuna Gorakh Chaudhar, Rajendra Gorakh Chaudhar and Samir Gorakh Chaudhar who were tried along with the appellants. As mentioned above the State of Maharashtra has not impugned their acquittal by preferring an appeal. Hence this appeal. 12. We have heard Mr. D. B. Bhosale for the appellants and Mrs. Usha Kejriwal A.P.P. for the respondent. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the dying declarations of Fulabai; the statements of the appellants recorded under section 313 Cr. P.C. and the impugned judgment . In our view since the appellants deserve benefit of doubt this appeal is to be allowed. 13. As mentioned earlier the conviction of the appellants rests on two dying declarations, viz . those recorded by Special Executive Magistrate Jayant Nilakhe P.W. 5 and the F.I.R. recorded by P.S.I. Vasant Pawar P.W. 11. 14. We make no bones in observing that for cogent reasons mentioned in paragraphs 41, 42 and 43 of the impugned judgment the learned trial Judge has rejected the third and fourth dying declarations viz. that recorded by the Special Judicial Magistrate Ulhas Dattatraya Koranne P.W. 12 and that made to Ram Sopan Thorve, P.W. 13, the brother of Fulabai. 15. We are not oblivious to the fact that conviction can be recorded sustained on an uncorroborated dying declaration. The proposition is too well settled to require elucidation from any authority but since reference to and reverence of authorities have become the order of the day we do not wish to deviate, lest we be dubbed as judicial heretics. The authority which has categorically laid down that a conviction be founded on an uncorroborated dying declaration by which and earlier authority of the Supreme Court reported in A.I.R. 1953 S.C. 420 (Ram Nath Madhoprasad v. State of Madhya Pradesh)1, to the contrary was over ruled, to which we propose adverting to, is (Khushal Rao v. State of Bombay)2, A.I.R. 1958 S.C. 22. Paras 16 and 17 of the said authority reads thus: "16. Paras 16 and 17 of the said authority reads thus: "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 17. 17. Hence, in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case." It is bearing in mind the norms laid down in the said paragraphs that we have reached the conclusion that this appeal deserves to be allowed. 16. As mentioned above the two dying declarations on which the conviction of the appellants is founded are the dying declarations recorded by the Special Executive Magistrate Jayant Nilakhe P.W. 5 and the F.I.R. of Fulabai recorded by P.S.I. Vasant Pawar P.W. 11. 17. We have analyzed the contents of both the dying declarations: we have quoted the former in entirety and the relevant part of the latter, in the earlier part of our judgment. In respect of the main incident in the dying declaration recorded by the Special Executive Magistrate Jayant Nilakhe P.W. 5 Fulabai stated that her step son Dada came with a pistol to kill her. On Changuna's instigation that Dada should pour kerosene on her; Dada, Sharad, Changuna and Raja poured kerosene on her person; and Raja, Dada and Sharad set her on fire. Tai had brought the kerosene can. On Changuna's instigation that Dada should pour kerosene on her; Dada, Sharad, Changuna and Raja poured kerosene on her person; and Raja, Dada and Sharad set her on fire. Tai had brought the kerosene can. Later in her F.I.R. recorded by P.S.I. Vasant Pawar P.W. 11 with regard to the incident she stated that Changuna instigated Dada to pour kerosene on her person; thereupon Sharad brought a kerosene can; Dada took the can from Sharad's hands and poured it on her person; and Sharad set her on fire. 18. A perusal of the two dying declarations would show that there are glaring variations in them. In the dying declaration recorded by the Special Executive Magistrate Jayant Nilakhe P.W. 5, it is mentioned that the appellants, Changuna and Raja poured kerosene on Fulabai and Raja, Dada and appellant Sharad set her on fire. In the dying declaration recorded by P.S.I. Pawar (F.I.R) it is mentioned that Sharad brought kerosene, Dada took the can from him and poured it on Fulabai and Sharad set her on fire. 19. Thus the mentioning in the F.I.R. that only Dada poured kerosene on Fulabai's person and Sharad set her on fire shows that either before the recording of the F.I.R. Fulabai's mental condition had deteriorated and she did not know what she was saying or she was tutored to make the statement. In our view the dichotomy between the number of persons pouring kerosene and the number of persons setting Fulabai on fire between her statement given out to S.E.M. Nilakhe and her F.I.R. cannot be reconciled on any other reasonable hypothesis. As has been mentioned in A.I.R. 1958 S.C. 22 (supra) that before a dying declaration is accepted by the Court, it should satisfy itself that the capacity of the declarant to remember facts had not been impaired at the time of making the statement and if several statements have been made they should be consistent. The Supreme Court in A.I.R. 1958 S.C. 22 (supra) has emphasized on the precautions which have to be borne in mind by a Court before accepting a dying declaration because unlike ocular testimony a dying declaration cannot be tested on the anvil of cross examination. 20. The Supreme Court in A.I.R. 1958 S.C. 22 (supra) has emphasized on the precautions which have to be borne in mind by a Court before accepting a dying declaration because unlike ocular testimony a dying declaration cannot be tested on the anvil of cross examination. 20. In the instant case there is intrinsic evidence to show that Fulabai may have been tutored or her faculties were impaired before she made the F.I.R. In this connection P.S.I. Vasant Pawar during the course of cross-examination when questioned on this aspect gave an evasive answer. In para 2 when questioned on this aspect he replied "I do not recollect if her husband was present when I was recording her F.I.R. I cannot tell if Fulabai's brother was also present." 20A. It would also be pertinent to mention that the statement of Dr. Mahadeo Vishwanath Swami P.W. 9 also does not rule out the faculties of Fulabai being impaired. Dr. Swami stated that the endorsement which he wrote in the F.I.R. was that Fulabai was fully conscious. In his cross- examination he stated that "conscious and well orientation are two different stages, some times one may be conscious but may not be in a position to give statement." He went to state that he made the endorsement that Fulabai was conscious while giving the statement but nowhere mentioned that she was well oriented. Since he admitted in cross-examination that there is no specific mention in his endorsement that while the dying declaration was recorded he was present it cannot be said that her faculties were not impaired. 21. Another reason as to why we are not inclined to place any reliance on the F.I.R. is that P.S.I Pawar who recorded the F.I.R. has admitted that he had orally enquired from the doctor whether Fulabai was in a condition to speak. He stated during cross-examination that Dr. Swami's oral certificate is entered in the station diary but the station diary has not been produced by the prosecution. 22. For the said reasons the dying declaration in the form of F.I.R. cannot be accepted. We are not impressed by the submission of Mrs. Kejriwal that since the statement of Fulabai recorded by Special Executive Magistrate Jayant Nilakhe P.W. 5, like the F.I.R. incriminates the appellants, the F.I.R. should be accepted. In our view such an approach would be wholly hazardous. We are not impressed by the submission of Mrs. Kejriwal that since the statement of Fulabai recorded by Special Executive Magistrate Jayant Nilakhe P.W. 5, like the F.I.R. incriminates the appellants, the F.I.R. should be accepted. In our view such an approach would be wholly hazardous. Once in our judgment the F.I.R. was either the result of tutoring or of the faculties of Fulabai being impaired at the time when she made it, it would be wholly unsafe to accept it merely on the ground that Fulabai's statement to the Special Executive Magistrate Jayant Nilakhe P.W. 5, also incriminates the appellants. Once there is doubt in our mind that the F.I.R. is either tutored or the result of faculties of Fulabai having been impaired it has to be rejected in entirety. This Court cannot conjecture which part of the F.I.R. was either the result of tutoring or as a consequence of the impaired faculties of Fulabai and which part was not. As observed in para 17 of A.I.R. 1958 S.C. page 22, (supra), it should be borne in mind that the dying declaration cannot be tested on anvil of cross-examination. 23. This leaves us with the dying declaration in the form of statement of Fulabai recorded by Special Executive Magistrate Jayant Nilakhe P.W. 5. This dying declaration has to be evaluated in the backdrop of two facts: a) it has to be scrutinised with caution because unlike occular testimony it cannot be tested on the anvil of cross-examination; and b) Fulabai herself admitted that there was enmity between her and the appellants. In our view it would be wholly unsafe to sustain conviction of the appellants on the basis of this dying declaration. The evidence of the Special Executive Magistrate Jayant Nilakhe P.W. 5 shows that he recorded the dying declaration between 9 p.m. to 9.10 p.m. He stated in his cross-examination that before recording it he did not take any certificate from Dr. Swami that the declarant was fully conscious and well oriented to speak. He admitted in his cross-examination that he is aware of the fact that conscious, unconscious, semi conscious and well oriented are different stages. He conceded in his cross-examination that he contacted Dr. Swami at about 9.10 p.m. In the said factual matrix it becomes crystal clear that the endorsement of Dr. He admitted in his cross-examination that he is aware of the fact that conscious, unconscious, semi conscious and well oriented are different stages. He conceded in his cross-examination that he contacted Dr. Swami at about 9.10 p.m. In the said factual matrix it becomes crystal clear that the endorsement of Dr. Swami on the dying declaration had been taken after recording of the dying declaration was complete. The Special Executive Magistrate Jayant Nilakhe P.W. 5 stated that initially he had enquired from Dr. Swami whether Fulabai was conscious and in a position to given statement but we are not inclined to accept this for two reasons; firstly because in the dying declaration there is no written endorsement of the doctor to this effect; and secondly in his cross-examination he stated that he met Dr. Swami at about 9.10 p.m. and by 9.10 p.m. he had completed the recording of the dying declaration. Another reason as to why we are not inclined to accept this dying declaration is because both S.E.M. Nilakhe and Dr. Swami during their cross-examination have admitted that there is a distinction between conscious, unconscious, semi conscious and oriented. The evidence of both S.E.M. Nilakhe and Dr. Swami shows that the only enquiry made was whether the declarant was conscious. In our view this was not sufficient. 24. For the said reasons we feel that it would be very unsafe and hazardous to sustain the conviction of the appellant on these dying declarations. As mentioned earlier the learned trial Judge has accepted the involvement of the appellants only on the evidence of these two dying declarations. For the said reasons we feel that this is a case where the appellants should be extended the benefit of doubt. 25. Before parting with this judgment we will be failing in our fairness if we do not advert to the decision of the Supreme Court reported in J.T. 1998(3) S.C. 290 (Ram Bihari Yadav v. State of Bihar and others)3, cited by Ms. Kejriwal to show that even in the absence of medical evidence, if there is other evidence to show that the recorder of the statement was satisfied that the declarant was in a fit mental condition to make the statement such evidence should be accepted. Kejriwal to show that even in the absence of medical evidence, if there is other evidence to show that the recorder of the statement was satisfied that the declarant was in a fit mental condition to make the statement such evidence should be accepted. In our view, whether a declarant is in a fit mental condition to make the statement is a question of fact and not one of law. Bearing in mind the dichotomy between the F.I.R. and her statement recorded by S.E.M. Nilakhe we have reached the conclusion that before making her F.I.R. either Fulabai was tutored or her mental faculties were impaired. In our view the authority cited by Ms. Kejriwal is not applicable on the facts of the present case. 26. In the result this appeal is allowed. We extend the benefit of doubt to the appellants; acquit them for the offence under section 302 read with 34 I.P.C. and set aside their convictions and sentences on the said count. In case they have paid the fine it shall be refunded to them. The appellants are in jail and shall be released forthwith unless wanted in some other case. Appeal allowed. *****