JUDGMENT - D.K. TRIVEDI, J.:---The appellant- original accused has challenged the judgment and order of conviction and sentence recorded by the learned Additional Sessions Judge, Thane dated 30-12-1994 in Sessions Case No. 428 of 1993 by taking various grounds. As per the order under challenge, the appellant accused was convicted for the offence under section 302 I.P.C. and the accused was ordered to suffer R.I. for life and to pay a fine of Rs. 500/- i.e. to undergo further R.I. for six months. 2. Shri Arjunwadkar, the learned Counsel appearing on behalf of the appellant has while arguing the matter, taken us through the evidence in detail and he submitted that the learned trial Judge has committed error in accepting the prosecution case by convicting the accused for the offence of murder. He had also while arguing the matter, contended that even the investigation in the present case is not properly conducted and the appellant accused is falsely involved in a serious offence of murder. According to Shri Arjunwadkar, the learned Judge was not right in accepting the evidence of P.W. 6 Devadas Jaiswani, Executive Magistrate, who had recorded the dying declaration of Sharmila looking to the burn injuries found on Sharmila to the extent of 92% and prayed that the order of conviction and sentence be set aside by allowing the appeal. The learned Addl. Public Prosecutor appearing on behalf of the State has supported the order. 3. While taking us through the evidence and on close scrutiny of the same, we have to examine the contentions raised before us whether the learned Judge was right in accepting the prosecution case as it is and whether in the present case the investigation carried out by the Investigating Officer was proper or not and further in light of the evidence of the prosecution witness, the learned Judge was right in accepting the case of the prosecution by convicting the accused for murder of deceased Sharmila. As per the prosecution case, the incident in question has occurred on 26-1-1993 at about 6.15 p.m. at the residence of the accused situated at Samata Nagar, Ulhasnagar, Camp No. 5 and the accused was charged that he had poured kerosene on Sharmila Shrirang Kamble and set her on fire and Sharmila died in Central Hospital at Ulhasnagar on 27-1-993 at about 2.40 a.m. 4. To prove the charge against the accused, the prosecution has examined in all eight witnesses including the Investigating Officer and also through evidence has produced various documents viz. the postmortem note of the deceased, advance death certificate issued by the Medical Officer, the inquest Panchanama, the Panchanama of the scene of offence, complaint, statement of deceased Sharmila recorded by the police, dying declaration of deceased Sharmila recorded by the Special Executive Magistrate and the Chemical Analysis report in respect of the articles sent for examination etc. As found from the evidence, Sharmila was the eldest daughter of P. W. 2 Ratnaprabha Kamble and P. W. 4 Shrirang Appa Kamble and they were staying at Mahatma Phule Society, Ulhasnagar. The house was consisting of five to six rooms out of which they were staying in one room and the remaining rooms were let out to the tenants. One Yeshwant Damaji Nagrale, the elder brother of the accused was occupying one room as a tenant and the said room was close to the room of P. W. Nos. 2 and 4. The said room was taken by him about 2 to 4 months prior to the incident and possession was taken by him of that room as tenant. At the relevant time the accused was staying in Samata Nagar, Ulhasnagar and his brother Yeshwant had taken one room of P. W. Nos. 2 and 4. The accused used to come to the room of his brother Yeshwant and because of his frequent visits at that place he acquainted with Sharmila and an intimacy developed between them even and talk of their marriage between Yeshwant and parents of Sharmila took place and it was resolved to get Sharmila married with the accused. 5. On 26-1-993 at 1.30 p.m., Sharmila left the house without permission and went to the house of accused situated at Samata Nagar, Ulhasnagar and in room of the accused both were chitchatting. Sharmila had discussion with the accused with reference to their marriage and it is alleged that the accused had declined to marry Sharmila on the count of bad character of Sharmila and her mother. However, Sharmila persisted to get marry with him. Sharmila had discussion with the accused with reference to their marriage and it is alleged that the accused had declined to marry Sharmila on the count of bad character of Sharmila and her mother. However, Sharmila persisted to get marry with him. The accused got enraged and Sharmila stated to him that he had sexual intercourse with her earlier twice or thrice and that cannot be ignored, immediately the accused gave fist blows to Sharmila and brought kerosene can, poured kerosene on Sharmila and put her on fire by igniting match stick. Sharmila cried for help. Thereafter the accused rushed to help her and tried to extinguish fire. Sharmila had received extensive burn injuries. One person was deputed to the house of parents of Sharmila for giving message that Sharmila was lying in burnt condition at the house of the accused. On getting the message, P. W. 4 Shrirang Appa Kamble and P. W. 2 Ratnaprabha Kamble, the parents of Sharmila went to Samata Nagar at the residence of the accused and they saw Sharmila in burnt condition was placed in an auto rickshaw and accused Gautam in disturbed and frightened mood. Injured Sharmila was taken to Ashirwad hospital in the rickshaw by the parents and Gautam. As doctor was not available, Sharmila was taken to Central hospital at Ulhasnagar where she was admitted for treatment. As found from the record, Sharmila was admitted in the hospital at about 8 p.m. on that day and her condition was poor. The doctor attached to hospital had informed the police officer and the Assistant Sub-Inspector. Shri Bhise sent telephonic message to Hill Line Police Station. On getting the message from the Central hospital, after making station diary entry, Head Constable Patil directed P.S.I. Jadhav to take steps in respect of the investigation for recording dying declaration of Sharmila at Central Hospital, Ulhasnagar. He contacted Special Executive Magistrate Shri Jaiswani and Special Executive Magistrate Shri Jaiswani went to the Central Hospital, Ulhasnagar where he contacted the concerned doctor and enquired about the condition of Sharmila and thereafter he recorded the dying declaration of Sharmila. It is thereafter that P.S.I. Jadhav went to the ward where Sharmila was admitted and he recorded the complaint of Sharmila. On the basis of the complaint given by Sharmila, P.S.I. Jadhav registered the offence under section 307 I.P.C. registered at Hill Line Police Station. It is thereafter that P.S.I. Jadhav went to the ward where Sharmila was admitted and he recorded the complaint of Sharmila. On the basis of the complaint given by Sharmila, P.S.I. Jadhav registered the offence under section 307 I.P.C. registered at Hill Line Police Station. The investigation was thereafter taken over by the Police Inspector Shri Chandrakant Ambadas Khomne and he went to the scene of offence and by arranging panchas, drawn Panchnama at early hours between 00.05 hrs. to 1.00 hrs. on 27-2-1993. He has also collected certain articles viz two pieces of partly burnt gunny bags, pieces of partly burnt clothes of Sharmila, a plastic kerosene can, piece of cloth of banian, underwear, match box, pair of slipper, ash of Chadar, ash of mattress. The information was received that Sharmila had expired in the hospital. The inquest of the dead body of Sharmila was done. The articles were attached and on 27-2-1993 the accused was arrested at 1.05 hrs. and the dead body of Sharmila was sent for post-mortem. On recording of the statement of the witnesses and after obtaining of the medical certificate regarding death of Sharmila and on getting the chemical analyser's report the charge-sheet was filed against the accused under section 302 I.P.C. 6. After committal order passed by the learned Magistrate, the accused was placed for trial as aforesaid before the learned Sessions Judge. The defence of the accused is of total denial. On the day of incident the accused was having weekly off and he had gone to see movie at 3 p.m. and when he came back to his house at about 6.45 p.m., he saw Sharmila lying in front of his house in burnt condition. He arranged for auto rickshaw and put Sharmila in auto rickshaw and he along with the parents of Sharmila took injured Sharmila to Central Hospital at Ulhasnagar. He was in the hospital all throughtout till night at about 11 p.m. where he was arrested. As Sharmila had sustained severe burns injury, she was not in a position to speak and according to him he was falsely involved at the instance of one Shri Arun Kamble, the uncle of Sharmila. In short, he claimed to be innocent. 7. On going through the evidence of P.W. 1 Dr. Jyoti Purswani, it is found that she has performed the post-mortem of dead body of Sharmila. In short, he claimed to be innocent. 7. On going through the evidence of P.W. 1 Dr. Jyoti Purswani, it is found that she has performed the post-mortem of dead body of Sharmila. The dead body of Sharmila was received for post-mortem on 27-2-1993 at 10.30 a.m. and the post-mortem was started by her immediately at 10.45 a.m. and the same was completed at 11.45 a.m. 8. On examination she found that Sharmila had 92% burn injuries over the body and according to her all these burn injuries were ante-mortem. The cause of death was cardio respiratory failure due to 92% thermal burn. She has prepared the post-mortem note and noted the burn injury in column No. 17 and she has signed the post-mortem notes which is produced at Exhibit-8. She has also issued advance death certificate on 27-2-1993 with a cause of death which is produced at Exhibit-9. Nothing is brought in the cross-examination by the defence. As found in column No. 17, the burn injuries were found and noted as under :- Face and neck : 9% Chest abdomen : 11% Back : 18% Upper extremities : Rt. : 9% Lt. : 9% Lower Extremities : Rt. : 18% Lt. : 18% -------------------------------------------- Total : 92% 9. At this juncture it is also necessary for us to discuss the evidence of P.W. 7 Dr. Shahu Gopal Rasal attached to Government Central Hospital at Ulhasnagar working as a Medical Officer. As found from his deposition, on 26-2-1993 he was in-charge of Casualty Department in the said hospital and Sharmila Shrirang Kamble aged about 20 years was brought by Gautam Nagarale. On examination the general condition of Sharmila was found poor, she had 92% burn injuries. Sharmila while giving history stated that there was a quarrel as to her love affair with Gautam Nagarale and Gautam had poured kerosene oil on her body and set her on fire. It is further found from his deposition that initially Sharmila was not willing to disclose the cause of burn injuries. It is only when the doctor made her aware that her condition is serious, she disclosed the history. Sharmila also disclosed that she had sexual intercourse with Gautam and hence she was in trouble. The doctor had admitted Sharmila in emergency ward and had informed the police attached to the hospital to take steps for recording dying declaration. It is only when the doctor made her aware that her condition is serious, she disclosed the history. Sharmila also disclosed that she had sexual intercourse with Gautam and hence she was in trouble. The doctor had admitted Sharmila in emergency ward and had informed the police attached to the hospital to take steps for recording dying declaration. It is further found from his deposition that in his presence the statement of Sharmila was recorded by the Special Executive Magistrate and according to him Sharmila was able to give her statement and at the time of recording dying declaration he was present. The dying declaration was recorded and it was written by P.S.I. Bhise. He has also put endorsement as well as the signature in respect of condition of Sharmila and he identified the signature on the said dying declaration at Exhibit-21. Thereafter the statement of Sharmila was also recorded by one P.S.I. in his presence and in the said statement also he has put his endorsement about the condition of Sharmila. Sharmila, during treatment, had expired in the early morning at 2.35 a.m. on 27-2-1993 and the death was due to cardio respiratory failure due to shock of 92% of thermal burn injuries. In cross-examination the doctor has stated that generally a patient suffering of burn injuries is administered intra-veinous fluid-food and anti biotics and painkillers are also given depending on the agony of the patient. He has also brought the case papers of Sharmila from Central Hospital, Ulhasnagar. It is further found that when Sharmila was brought, she was not unconscious and he had administered painkiller medicine to her. He has denied further admitted that when Sharmila was admitted initially, he had administered fluids intravenously Novalgin Injection and from 8 p.m. till her death fluid food Glucose Saline was continued. He has further admitted that it is correct that the medical officer is expected to certify at the commencement and the closure of the dying declaration regarding condition of the patient whose dying declaration is recorded. He has said that while recording dying declaration he left the site for attending other patients. He denied that the statement of Sharmila was recorded by the police and secured his signature in the casualty ward. He has denied that P.S.I. Bhise and P.S.I. Jadhav came together for recording statement of Sharmila. He has said that while recording dying declaration he left the site for attending other patients. He denied that the statement of Sharmila was recorded by the police and secured his signature in the casualty ward. He has denied that P.S.I. Bhise and P.S.I. Jadhav came together for recording statement of Sharmila. He has further denied that either Exhibit-18 or Exhibit-21 does not bear the thumb mark of Sharmila. It is further found that a Sindhi person, probably by name Jaiswani has recorded the dying declaration and the Special Executive Magistrate did not secure from him any separate certificate about the condition of Sharmila before her statement was recorded. The skin was peeled but was not charred. He has denied that due to administration of Novaligin Sharmila was unconscious. 10. As found from the deposition of P.W. 7 Dr. Rasal, though in cross-examination as examined earlier, he had brought the case papers of Sharmila, the same was not seen either by the defence nor by the Court and there is no reference in the entire evidence regarding the medical case-papers of Sharmila. When at the instance of the defence, the doctor was questioned about condition of the patient viz. of Sharmila, when the patient had sustained 92% of burn injuries, it is expected that if the defence lawyer does not proceed or asking the witness to produce the said case papers, it is the duty of the Court that the Court must examine the said medical case papers and if necessary, the Court is required to put question to the witness. At the same time it is also equally the duty of the Investigating Officer who has investigated the case to get the medical case papers as admittedly in the present case Sharmila was admitted in the hospital and was given treatment from 8 p.m. till she expired next day early in the morning. The case-papers reflect about the details viz. who gave history regarding such injury found on the patient, whether the patient was conscious at the time of admission, what treatment given to the patient and the detailed chart of the patient regarding her condition. 11. In the present case, after Sharmila was admitted in the Central Hospital at Ulhasnagar, it is the doctor attached to the said hospital who intimated the police attached to the hospital and the information was accordingly conveyed through telephone. 11. In the present case, after Sharmila was admitted in the Central Hospital at Ulhasnagar, it is the doctor attached to the said hospital who intimated the police attached to the hospital and the information was accordingly conveyed through telephone. As found, the investigating agency had immediately taken steps to see that the dying declaration of Sharmila is recorded and accordingly P.S.I. Jadhav went to the office of P.W. 6 Shri Jaiswani, Special Executive Magistrate, who visited the hospital on 26-2-1993 at about 8.30 p.m. and requested him to record dying declaration and accordingly P.W. 6 Jaiswani had closed his office and he along with Shri Jadhav went to the Central Hospital at Ulhasnagar. He contacted the doctor and enquired about the condition of Sharmila, when the doctor informed that Sharmila had 92% burn injuries and she is not going to survive. Accordingly as directed by P.W. 6 Shri Jaiswani to the police, relatives of Sharmila were removed from the ward and Shri Jaiswani had requested the P.S.I. to record the dying declaration of Sharmila in Marathi, as P.W. 6 was not conversant with writing Marathi, he enquired and put questions and found that Sharmila was able to speak and gave rational answers. Then the statement of Sharmila was recorded wherein she has stated about the love affairs with accused Gautam and as Gautam disclosed that he would not marry with her and that she made request for the marriage to accused Gautam, he poured kerosene oil on her body and set her on fire. The said statement was recorded in the hand-writing by the P.S.I. in Marathi language and the said dying declaration was signed by Shri Jaiswani and even after recording the statement, the said statement was read over to Sharmila and Sharmila had admitted the contents to be true and correct and put her thumb mark on the same as she was not able to make her signature and P.W. 6 Shri Jaiswani had put the seal. Thereafter the endorsement about capability of Sharmila about recording statement was taken from the doctor. 12. In cross-examination P.W. 6 was not in a position to say how many dying declarations were recorded by him prior to the present incident. P.W. 6 Shri Jaiswani has also stated that he does not know relatives of Sharmila. Thereafter the endorsement about capability of Sharmila about recording statement was taken from the doctor. 12. In cross-examination P.W. 6 was not in a position to say how many dying declarations were recorded by him prior to the present incident. P.W. 6 Shri Jaiswani has also stated that he does not know relatives of Sharmila. He has further stated that when P.W. 6 Jaiswani and P.S.I. Bhise went inside the ward, he did not know whether relatives of Sharmila were present but Gautam was present and he knew Gautam at that juncture because Sharmila pointed to him that he was Gautam. He further stated that on his directions, Bhise asked questions to Sharmila and she gave the replies. The witness has further stated that he is conversant with speaking, reading and writing of Marathi language. In the dying declaration the word physical (Sharirik) is bracketed by the police and it occurred after the word relation in the main body of dying declaration. P.W. 6 has also further deposed that it was not necessary for him to secure permission of the doctor for recording dying declaration on the ground that the doctor was present there. He has further stated that he did not secure the certificate of the doctor that Sharmila was in the state of mind to speak and gave statement rationally. It is further found from the cross-examination that at the time of recording dying declaration of Sharmila her speech was clear and further that Sharmila was crying. It is further found from the evidence of P.W. 6 Shri Jaiswani that Sharmila's hands were not burnt completely. However, her thumb impression was taken as she could not write and sit for making her signature. P.W. 6 Jaiswani has denied the suggestion that police came to his residence on 26-2-1993 at about 11 p.m. and in a written declaration he has put his signature. We have also perused the dying declaration Exhibit-21 recorded by P.W. 6 Jaiswani written by P.S.I. Bhise. In the said dying declaration Sharmila has narrated the incident which occurred on 26-2-1993 while giving answer to question No. 11 regarding how she sustained burn injuries. We have also perused the dying declaration Exhibit-21 recorded by P.W. 6 Jaiswani written by P.S.I. Bhise. In the said dying declaration Sharmila has narrated the incident which occurred on 26-2-1993 while giving answer to question No. 11 regarding how she sustained burn injuries. It is further found from the documents, Exhibit-18 the complaint of Sharmila recorded by the police even in the said complaint, Exhibit-18 Sharmila had narrated in detail about the incident which occurred on 26-2-1993 at 6.15 p.m., which we reproduce as under :- "Tari aaj Tarikh 26-2-93 Roji Sayanakli 6.15 vaajata che darmyan Gautam Damaji Nagrale, Raa. Samatanagar Camp 4 Yaache rahaae ghari mi tyaas, tu maazyashi lagna kele paahije. Tuze maaze saaririk sambandh zaale aahet. Ase saanganesaathi gele astaa, tyaa kaarayavarun Gautam Yaane chidun Jaaun tyaane tyaache gharaatil rokelchyaa kenmadhil rokel maaze angaaver otun, maachisne maaze angaas aag laavun tyaane malaa jive thaar maryaachaa prayatna kela mhanun maazi tyaachevar firyaad aahe." 13. In respect of the dying declaration of Sharmila recorded by the Special Executive Magistrate, she has narrated while answering question No. 11. We reproduce the reply of Sharmila as under :- "Tari aaj tarikh 26-2-93 roji Maazaa Priyakar Gautam Damaji Nagrale, Raa. Samata Nagar No. 23 U. Nagar Ke. No. 5 yaane dupaari 1.30 vaajataa ghari bhetanes bolavile mhanun mi tyaache ghari aai, vadilaanaa na saangataa gele. Gelyaavar Gautam va maaze lagnaabaabat bolchaal zaali tyaaveli to mhanaalaa ki tuzi aai whaait chaalichi aahe. Va tuzehi dusaryaabarobar sambandh aahet ase malaa samazale aahe. Tari mi tuzyaa barobar lagna karnaar naahi. Tavhaa mi tyaas mhanaale ki tuze (.. paan faatalele) maaze don tin velaa sambandh (saaririk) aalele aahet. Tyaache kaay, ase mhantaach tyaane male thosa bukyaani maarhaan keli va tu maazaa pichhaa sod ase bolun rokelchaa ken haataat ghevun maaze angaavar rokel otale va maachisachi kaadi petvun maaze angaavarti kapadyaas laavli tase maaze angaatil laavli tase maaze angaatil nesus skirt va (..Paan faataalele) va aat laal rangaache chadine pet ghetalaa. Tyaamule maazaa bembiche khaalipaasun te gupte bhaagaa paryant bhaajale nasun baaki sampurna bhaajalele aahe. Kes jalaalele naahit. Mi aardaaora kelyaane Tyaanech maaze angaavar gaadi taakali va malaa vizavile. Tyaaveli aamjhaa doghaasivay gharaat konihi navhate. Sadasyaa prakar haa saayankali 6-15 vaa. chaa hota. Tari maazi Gautam Damaji Nagrale yaache viruddha takraar aahe." 14. Tyaamule maazaa bembiche khaalipaasun te gupte bhaagaa paryant bhaajale nasun baaki sampurna bhaajalele aahe. Kes jalaalele naahit. Mi aardaaora kelyaane Tyaanech maaze angaavar gaadi taakali va malaa vizavile. Tyaaveli aamjhaa doghaasivay gharaat konihi navhate. Sadasyaa prakar haa saayankali 6-15 vaa. chaa hota. Tari maazi Gautam Damaji Nagrale yaache viruddha takraar aahe." 14. Now on examining the contentions raised before us by Shri Arjunwadekar and in light of the evidence which we have discussed hereinabove, Sharmila had sustained 92% of the burn injuries and was admitted in the hospital and her condition was poor. Whether she was in a position to give dying declaration as recorded at Exhibit-21 and the complaint of Sharmila recorded thereafter at Exhibit-18? As observed earlier, the parents of Sharmila, P.Ws. 2 and 4 were intimated about sustaining burn injuries by deputing person and it is only on getting the message, parents of Sharmila came at the residence of accused Gautam. Gautam was very much present and he was arranging to shift Sharmila in hospital by a rickshaw. In fact Sharmila was shifted to hospital in rickshaw by Gautam and the parents of Sharmila P.W. Nos. 2 and 4. Nothing was found from the evidence of P.Ws. 2 and 4 that Sharmila was shifted to hospital in rickshaw and she had disclosed anything about the incident. Accused Gautam, was very much present all throughout in the hospital as found from the evidence of S.E.M. Shri Jaiswani. It is further found from the evidence that Sharmila was first taken to Ashirwad Hospital, however, as doctor was not available there, Sharmila was taken to Central Hospital at Ulhasnagar. Considering this and when the parents of Sharmila and Gautam were already accompanying Sharmila in rickshaw to admit injured Sharmila in hospital for treatment, it is difficult for us to believe that the parents will not try to enquire from their daughter about the cause of burn which she sustained and equally if Sharmila was in position to speak, she would also immediately disclose to her parents about the burns injury which she sustained. Accordingly it was necessary for the Court to find out the reason disclosed to the hospital authority when Sharmila was admitted in the hospital for treatment and the doctor attached to the hospital is a person who is required to enquire either from the patient or the person who brought the patient about the cause of burn injury and accordingly it was necessary for the Court to examine the medical case papers pertaining to Sharmila to find out what reason was given about burn injuries when she was admitted in the hospital disclosed either by the patient or the person who brought the patient. As in the present case it is found that the doctor attached to the hospital had conveyed about the patient admitted in the hospital who sustained burn injury by intimating the duty constable attached to the hospital and in turn the said message was conveyed to the police station authority and accordingly the police station authority has taken steps to arrange for recording of the dying declaration of Sharmila by informing Special Executive Magistrate and it is found that the Special Executive Magistrate had on getting the information, reached to the hospital in the company of the police and recorded dying declaration of Sharmila written by P.S.I. Bhise and in the said dying declaration Sharmila has disclosed about the incident which occurred on that day and in the manner in which at hands of the accused kerosene oil was poured on her and the accused had set fire with the injuries. It is also to be noted that the prosecution has not examined Police Sub-Inspector Bhise who has written dying declaration in Marathi language. On considering the evidence of P.W. 2 Ratnaprabha Kamble and P.W. 4 Shrirang Kamble, it is difficult for us to believe that they will not even try to enquire from their daughter regarding the cause of such burn injuries received by her when Gautam was arranging to shift Sharmila to hospital by making arrangement for rickshaw and all throughout P.W. 2 and P.W. 4 were in the rickshaw till Sharmila was admitted in the hospital at Ulhasnagar and equally Sharmila was required to disclose about the cause of such injuries to her parents. Considering this fact and as observed earlier, the medical case papers of Sharmila was in fact brought before the Court by Dr. Rasal, P.W. 7. Considering this fact and as observed earlier, the medical case papers of Sharmila was in fact brought before the Court by Dr. Rasal, P.W. 7. As found from the evidence of P.W. 7 Dr. Rasal at paragraph 5 Dr. Rasal has stated that he has brought the medical case papers of Sharmila. Inspite of that no care is taken to look into the medical case papers of Sharmila and to find out the details about Sharmila when Sharmila was admitted in hospital and admittedly Sharmila was admitted by the parents of Sharmila, P.W. Nos. 2 and 4 accompanied by Gautam. Equally it is the duty of the Investigating Officer to collect all material during investigation and in our view in the present case the Investigating Officer who has conducted the investigation has also not taken proper care to collect the medical case papers of Sharmila during investigation. As the prosecution has examined P.W. 7. Dr. Rasal and as found from his deposition in paragraph-5 that he has also brought the medical case papers, atleast he is required to submit the said case papers in favour of the Presiding Officer and equally the learned Judge was also required to look into the said case papers and on examining the said case papers, if necessary the Court was also required to ask questions to the witness who brought the case papers during the trial. We may also observe that it is also the duty of Public Prosecutor who was conducting the trial to look into those papers and to see that those papers are tendered in evidence in the interest of justice. In the present case the medical papers though brought by P.W. 7 Dr. Rasal were not produced on record and as observed earlier while deciding the matter to find out the fact when Sharmila was admitted in hospital for treatment who has disclosed the history about the burn injuries sustained by her and other relevant facts in respect of the patient. Accordingly to find out these facts, we directed the learned A.P.P. during the hearing that the medical case papers of Sharmila be made available for our perusal by getting the same from the hospital and we had granted time to get the said papers from the hospital. Accordingly after great efforts at the instance of the A.P.P. the medical case papers of Sharmila were produced. Accordingly after great efforts at the instance of the A.P.P. the medical case papers of Sharmila were produced. Xerox copy of the medical case papers were forwarded by the senior police officer attached to the Hill Line Police Station, Ulhasnagar. The said case papers were taken on record and the papers were also made available for perusal to the respective Advocates viz. to Shri Arjunwadkar and Shri Shringarpure, the learned A.P.P. On perusing the said medical case papers of deceased Sharmila, it is found that Sharmila was admitted in the hospital at about 7.35 p.m. on 26-2-1993. In the first page of the medical case papers known as medical case record, all details about the name, sex, address, occupation, date and time of admission of the patient and the ward number with the provisional diagnosis is disclosed. As found from the said medical case record, Sharmila was admitted in the hospital on 26-2-1993 at about 8.15 p.m. and Sharmila was admitted in the hospital by her father Shrirang Kamble. In the column of provisional diagnosis, 92% thermal burns were recorded and thereafter the treatment provided to her is also found. It is interesting to note that when the doctor attached to the said hospital had started treatment by recording history at about 8.20 p.m. on that day, the doctor has while recording history has recorded, "history of suicidal burns, on 26-2-1993 by pouring kerosene at about 7.15 p.m. sustained burn injuries" and thereafter the details about the treatment furnished to her and the percentage of burns found on the body were written. On going through the said medical case record of Sharmila and considering the fact about the history disclosed it is found that even at the first point of time when Sharmila was admitted in the hospital at 8.15 p.m. immediately while starting treatment and while recording history by the doctor, it is recorded to be the "suicidal burns by pouring kerosene at about 7.15 p.m." As observed earlier, Sharmila was admitted in the hospital at about 8.15 p.m. by P.W. 4 Shrirang Kamble and as found from the history disclosed before the Medical Officer and the details furnished, Sharmila sustained 92% thermal burns and it is further found that it is only after Sharmila was admitted in the hospital had conveyed message to the police and thereafter when the message has reached to the concerned police station, the investigating agency has informed the Special Executive Magistrate Shri Jaiswani for recording dying declaration of Sharmila and it is thereafter Shri Jaiswani, in the company of P.S.I. Bhise had gone to the hospital at Ulhasnagar and recorded the dying declaration of Sharmila in 26-2-1993 at 9.30 p.m. as per Exhibit-21. 15. In our view, on examining the medical case record of Sharmila, it is transpired that at the first point of time when P.W. 4 Shrirang, father of deceased Sharmila had disclosed the history about the burn injuries sustained by Sharmila which was recorded by the Medical Officer while treating Sharmila immediately at 8.20 p.m., the history was furnished giving suicidal burn by pouring kerosene at about 7.15 p.m. In the present case, there are no eyewitness to the incident and conviction is based only on the dying declaration of Sharmila recorded by the Special Executive Magistrate at 9.30 p.m. and thereafter the complaint of Sharmila recorded by Shri Jadhav. Even the dying declaration of Sharmila was recorded by P.W. 6 Jaiswani, S.E.M. and written in the hand-writing of P.S.I. Bhise and the prosecution has not examined P.S.I. Bhise. It is an admitted fact that when Sharmila was admitted in the hospital, she had sustained 92% thermal burn injuries and the incident in question has occurred at 6.15 p.m. as found from the dying declaration, Exhibit 21. Sharmila was admitted in the Government Central Hospital, Ulhasnagar on the very day after two hours viz. at 8.15 p.m. as found from the medical case record. Sharmila was admitted in the Government Central Hospital, Ulhasnagar on the very day after two hours viz. at 8.15 p.m. as found from the medical case record. It is further found from the evidence that the appellant accused Gautam had shifted Sharmila accompanied by her parents P.W. Nos. 2 and 4 in rickshaw and he was present in the hospital all throughout till he was arrested on the very day. 16. As observed earlier, the parents of Sharmila, P.W. Nos. 2 and 4 accompanied Sharmila till she was admitted in the hospital and even during this period, there is nothing on record to show that even the parents of Sharmila had tried to enquire from Sharmila about her cause of burn injuries. However, from the medical case papers produced, it is clearly disclosed that Sharmila has sustained suicidal burns at 7.15 p.m. and Sharmila was admitted in the hospital by her father Shrirang, P.W. 4. On going through the panchnama, it is further found that the appellant accused had extinguished fire. It is further to be noted while considering the conduct of the accused that it is he who has tried to extinguish the fire and made arrangement for rickshaw to shift Sharmila in the hospital. The parents were also informed and it is because of the information received, Sharmila's parents P.W. Nos. 2 and 4 had reached at the place and they also joined when Sharmila was taken to hospital in rickshaw accompanied by Gautam. The appellant Gautam had remained all throughout in the hospital till he was arrested on that day. It is interesting to note that even at the time of arrest of the accused, no clothes of the accused were found having kerosene on it. In our opinion, if the accused is the person who has committed murder of Sharmila, he would be the last person to stay at the place of the incident and he would abscond. From the evidence it is found that there are no witnesses to the incident. In our view, it would not be safe to accept such evidence in the form of dying declaration of Sharmila and further when we peruse the medical case papers of Sharmila, where the history indicated otherwise. From the evidence it is found that there are no witnesses to the incident. In our view, it would not be safe to accept such evidence in the form of dying declaration of Sharmila and further when we peruse the medical case papers of Sharmila, where the history indicated otherwise. We have to observe that in the present case, the Investigating Officer who has conducted the investigation has not taken proper care to collect the medical case record from the hospital. Equally during evidence when Dr. Rasal, P.W. 7 has brought the medical case papers he was supposed to bring it to the notice of the Court by producing the said case papers before the Court and equally the learned trial Judge was also required to examine the said medical case record when the doctor had brought it before the Court during the trial. We are sure that if these case papers were produced before the trial Court during evidence, result of the case would have been different. 17. Accordingly the order of conviction and sentence recorded by the learned trial Judge is set aside. The appeal is allowed. The appellant accused is ordered to be set free forthwith if he is not required in any other case. Appeal allowed. -----