JUDGMENT - A.P. DESHPANDE, J.:---This Criminal Appeal is directed against the judgment and order passed by the learned IVth Additional Sessions Judge, Jalgaon, in Sessions Case No. 215 of 1992, dated 17-11-1995, convicting the appellant for the offence under section 302, Indian Penal Code, and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 2000/-, in default of payment of fine, to suffer further rigorous imprisonment for one year. 2. The present appellant, his brother Pundlik and mother Zumkabai came to be prosecuted for the offences under sections 302 and 498-A, read with section 34, Indian Penal Code. The learned IVth Additional Sessions Judge has acquitted the brother and the mother of the present appellant by name Pundlik and Zumkabai of the offences punishable under sections 302 and 498-A read with section 34, Indian Penal Code; and has also acquitted the present appellant of the offence under section 498-A, Indian Penal Code. 3. The case of the prosecution in brief is thus; (A) The deceased Sunanda was married with the appellant Samadhan two years prior to her death. (B) Sunanda died on the night intervening between 29th and 30th May, 1992. (C) After marriage of the deceased with the appellant, she had been to the residence of the appellant and was residing with the appellant, his brother and his mother, the residence being joint. (D) It is the case of the prosecution that deceased Sunanda was subjected to harassment and was treated cruelly. (E) The deceased is alleged to have informed her parents about the ill treatment at the hands of the appellant and his family members by writing letters at Exhibits 30 and 31. It is the case of the prosecution that in response to the said letters written by deceased Sunanda, she was brought back to her parental house and she stayed along with her parents for about a year prior to the occurrence of the incident. On 28-5-1992, the present appellant along with his brother and other relations had been to the house of the parents of the deceased with a view to bring her back. The parents of Sunanda sent her along with the appellant and his family members, who had gone to fetch her. On 28-5-1992, the present appellant along with his brother and other relations had been to the house of the parents of the deceased with a view to bring her back. The parents of Sunanda sent her along with the appellant and his family members, who had gone to fetch her. There was some dispute which gave rise to the deceased leaving the house of the appellant and the said dispute is said to have been settled amicably on 28-5-1992. The appellant and his family members, after settlement of the dispute, stayed for a day at the parental house of the deceased and brought along with them the deceased Sunanda on 29-5-1992 to Pimpalgaon. (F) The present appellant, in the company of the deceased Sunanda and other family members reached Pimpalgaon around 3 p.m. on 29-5-1992. It is the case of the prosecution that the deceased had been to sleep and at around 11 p.m., she woke up as she sustained burning sensation. Sunanda, on getting awake, is said to have seen the present appellant, who was standing in front of her, having a kerosene bottle and a match box with him. Sunanda had caught fire and hence, she raised crises and the neighbours assembled and extinguished the fire. (G) Sunanda had received 100% burn injuries. She was taken to the Hospital by the present appellant and the neighbours, initially, at Pimpalgaon where she was admitted at about 0015 hrs. The doctor at the hospital informed the police about admission of Sunanda in the hospital. On receiving information, Police Head Constable Mahajan, P.W. 8, was directed to record the statement of Sunanda, Head Constable issued a memo to the Executive Magistrate, Devidas Mahajan, P.W. 7, for recording dying declaration of Sunanda. After issuing memo to the Executive Magistrate, Head Constable visited the hospital and issued memo, at Exhibit 46, to the doctor for recording statement of Sunanda. (H) The Executive Magistrate, Devidas, visited the hospital and contacted the doctor. The Executive Magistrate asked the doctor about the condition of the patient and also inquired as to whether Sunanda was in a position to make a statement. The doctor, Pruthviraj Chavan, P.W. 9, certified that Sunanda was fit to give statement; and then P.W. 7 Devidas recorded the statement of Sunanda at Exhibit 43. The Executive Magistrate asked the doctor about the condition of the patient and also inquired as to whether Sunanda was in a position to make a statement. The doctor, Pruthviraj Chavan, P.W. 9, certified that Sunanda was fit to give statement; and then P.W. 7 Devidas recorded the statement of Sunanda at Exhibit 43. Thereafter, the Police Head Constable, P.W. 8, also requested the doctor to certify about the condition of Sunanda, with a view to record her statement, Dr. Chavan certified that Sunanda was fit to give a statement, and, as such, P.W. 8 Police Head Constable recorded the statement of Sunanda, at Exhibit 47, in the presence of the doctor. (I) After the Head Constable, P.W. 8 recorded the statement at Exhibit 47, an offence came to be registered against the present appellant, his brother and his mother under sections 307, 498-A, read with section 34, Indian Penal Code. After registration of the crime, P.S.I. proceeded with the investigation by visiting the place of the incident. A panchnama was drawn in the presence of the panchas, at Exhibit 24. Various articles were seized from the spot of the incident and the articles were sent to the Chemical Analyser for his report. Letters at Exhibits 30 and 31, alleged to have been written by the deceased to her parents, were also seized under a panchnama. (J) Deceased Sunanda had 100% burns and as her condition was deteriorating, she was shifted to Jalgaon Civil Hospital around 3 a.m. Sunanda expired in the morning at 5.30 a.m. at Jalgaon Hospital. The inquest panchnama was made at Exhibit 22. (K) The accused came to be arrested and after completion of the investigation, charge-sheet was submitted to the Judicial Magistrate, First Class, Pachora, who committed the case to the Sessions Court by his order dated 10-8- 1992. (L) Charge came to be framed against the appellant and other accused under sections 302 and 498-A, read with section 34, Indian Penal Code. As the present appellant pleaded not guilty, he came to be tried and convicted for offence under section 302, Indian Penal Code, and sentenced as above by the learned IVth Additional Sessions Judge. 4. (L) Charge came to be framed against the appellant and other accused under sections 302 and 498-A, read with section 34, Indian Penal Code. As the present appellant pleaded not guilty, he came to be tried and convicted for offence under section 302, Indian Penal Code, and sentenced as above by the learned IVth Additional Sessions Judge. 4. The learned Counsel for the appellant has contended that the learned Additional Sessions Judge has erred in convicting the appellant solely on the basis of dying declaration at Exhibit 43 and the statement of Sunanda, recorded by the Head Constable, at Exhibit 47. In the submission of the learned Counsel, the dying declaration at Exhibit 43 and the statement of Sunanda at Exhibit 47 are pregnant with material infirmities and defects and, as such, cannot be relied upon for reaching the finding of guilt against the appellant; and consequently, in convicting the appellant of the offence. 5. There is no eye-witness to the incident and the material circumstances against the appellant accused are in the nature of; (A) Dying declaration, Exhibit 43, recorded by the Executive Magistrate; (B) Statement of Sunanda, Exhibit 47, recorded by the Head Constable; (C) Seizure of kerosene bottle and match box and other articles from the spot of the occurrence of the incident under a panchnama; (D) Oral dying declaration alleged to have been made by the deceased to her mother, P.W. 4 Bhikabai, and P.W. 5 Bhagwan; and (E) Letters at Exhibits 30 and 31, said to have been written by Sunanda. 6. Before we proceed to consider the circumstances and the evidence against the appellant, we would like to state that the learned Additional Sessions Judge has rejected the prosecution evidence in the nature of oral dying declaration purported to have been made by the deceased to her mother, P.W. 4 Bhikabai, and P.W. 5, Bhagwan. The learned Additional Sessions Judge has also rejected the letters, Exhibits 30 and 31, purported to have been written by the deceased and has categorically found that the deceased was not treated with cruelty. Even otherwise, the said letters do not attribute any ill-treatment at the hands of the appellant. 7. The prosecution case is wholly based on the legality or otherwise of the dying declaration recorded by the Executive Magistrate at Exhibit 43. Even otherwise, the said letters do not attribute any ill-treatment at the hands of the appellant. 7. The prosecution case is wholly based on the legality or otherwise of the dying declaration recorded by the Executive Magistrate at Exhibit 43. The legality of the dying declaration, Exhibit 43, is assailed by the learned Counsel for the appellant by making the following submissions. (A) The dying declaration, Exhibit 43, does not contain at its commencement the certificate from the doctor to the effect that the patient was in a fit mental state to make a declaration; (B) Exhibit 43 also does not contain the certificate from the doctor about he having examined the patient with a view to ascertain as to whether the patient was physically and mentally fit to make a statement; (C) The dying declaration records the time of commencement of the recording of the dying declaration and its closure as 1.15 a.m. to 1.25 a.m.; (D) The endorsement/certificate of the doctor in the left hand margin of Exhibit 43 is made at 1.30 a.m. on the night between 29th and 30th May, 1992; (E) Exhibit 43 does have an endorsement from the doctor in the left margin, which reads ; "The patient being conscious is in a position to make a statement". (F) The said certificate does not state that the patient was in a fit mental condition to make a statement; and lastly (G) The dying declaration, Exhibit 43, was not read over to the patient Sunanda and does not contain a certificate that the same was read over to the patient and she admitted it to be correctly recorded and the contents thereof being true. On the above referred grounds, the said document, Exhibit 43, is vehemently attacked and it is contended that the moment, Exhibit 43, is rejected, no finding about the accused being guilty could be recorded. 8. We have given our anxious thought to the objections raised by the learned Counsel for the appellant; and before we proceed to deal with the same, it would be apt to refer to the evidence of the Executive Magistrate and the doctor. 9. Devidas Mahajan, Special Executive Magistrate, P.W. 7, has stated that he received memo from the police at 1.00 a.m. on 30-5-1992 that the wife of the appellant was burnt and the witness should record her statement. 9. Devidas Mahajan, Special Executive Magistrate, P.W. 7, has stated that he received memo from the police at 1.00 a.m. on 30-5-1992 that the wife of the appellant was burnt and the witness should record her statement. Consequent upon receipt of the information, the Special Executive Magistrate visited the hospital at Pimpalgaon and at the hospital, he met Dr. Chavan. The witness states that he disclosed to the doctor that he has to record statement of Sunanda. The doctor is then said to have informed the witness that Sunanda was admitted in the ward and both, the doctor and the witness, had gone to the ward where Sunanda was admitted. The witness has stated that he inquired from the doctor whether Sunanda was fit to give her statement and the doctor told him that Sunanda was fit to give her statement. The witness categorically stated that he started the recording of statement of Sunanda at 1.15 a.m. and completed the same at 1.25 a.m. The witness claimed that he recorded the statement in duplicate, i.e., the original and the carbon copy. The witness had deposed about the contents of the statement recorded by him including the fact that the appellant had set her on fire; so also, the fact that the appellant along with the neighbours had extinguished the fire; and also the fact that her husband, viz. the appellant, having brought her to the hospital. In the examination in chief of the said witness, he has stated that: "............. After recording statement of Sunanda, I read over to her. At that time, doctor was present. Doctor had then certified that statement of Sunanda was recorded in his presence ......." What is relevant to note is that there is no certificate and/or statement by the doctor on Exhibit 43 that the statement was read over to Sunanda and the witness has deposed the fact of reading over of the statement to Sunanda by memory. It may be noted that a period of 3 and ½ years had elapsed after recording of the dying declaration and the time of recording of deposition of the said witness before the Sessions Court. It would not be appropriate to rely on any statement made by the Special Executive Magistrate if he is making the same solely relying on his memory and, in absence of its recording. It would not be appropriate to rely on any statement made by the Special Executive Magistrate if he is making the same solely relying on his memory and, in absence of its recording. The said witness has stated that the doctor was present and the doctor had then certified that the statement of Sunanda was recorded in his presence. Now, in regard to the presence of the doctor while recording the statement, it is again a fact deposed to by the witness without there being any such certificate or endorsement in any record. The witness has spoken of the doctor certifying about the statement of Sunanda being recorded in his presence. On perusing Exhibit 43, we find that there is no such certificate from the doctor to the effect that he was present when statement of Sunanda was recorded. What is relevant to note is that the recording of the statement of Exhibit 43 commenced at 1.15 a.m. and ended at 1.25 a.m. The said timings are recorded by the Executive Magistrate in the said statement itself, whereas the certificate of the doctor bears the time 1.30 a.m. If we go by the time recorded by the Executive Magistrate and the time recorded by the doctor below his certificate, it is obvious that the certificate of the doctor was issued, about the patient being conscious and she being in a position to make a statement 5 minutes after the completion of the recording of the statement by the Special Executive Magistrate. What was expected of the doctor was to examine the patient with a view to ascertain as to whether she was mentally and physically in a fit condition to make a statement, so that the Special Executive Magistrate would proceed to record the statement. Strangely enough, Exhibit 43 reveals a diametrically opposite picture, inasmuch as after the recording of the statement, the doctor has certified at 1.30 a.m. about the condition of the patient. In other words, there is total absence of any certificate by a doctor prior to the commencement of the recording of the statement by the Special Executive Magistrate. The absence of certificate from the doctor before commencement of recording of the statement would put the Court on caution while considering the legality of the said document. 10. In other words, there is total absence of any certificate by a doctor prior to the commencement of the recording of the statement by the Special Executive Magistrate. The absence of certificate from the doctor before commencement of recording of the statement would put the Court on caution while considering the legality of the said document. 10. In the cross-examination, the said witness stated that when the witness and the doctor visited Sunanda in the hospital, the doctor examined her pulse but did not ask any question before recording of statement of Sunanda by him. The said witness, for the first time, in the cross-examination, without there being anything in the dying declaration, Exhibit 43, states that he had asked questions to Sunanda before recording her statement. He admits that those questions are nowhere reflected in Exhibit 43. There is a categorical admission by the said witness about the absence of a certificate from the doctor before his recording of statement of Sunanda. The witness has stated : "......... Before I recorded statement of Sunanda, doctor had not certified that Sunanda was able to give her statement in writing .........." 11. Now, on consideration of the evidence of this witness and Exhibit 43, further facts are revealed and the same are that the Special Executive Magistrate, after recording the statement of Sunanda, did neither read over the same to her, nor did he ask Sunanda as to whether would she sign the statement or would put her thumb impression thereon. It has come in the evidence that Sunanda was educated and was knowing writing. The prosecution has itself placed on record some of the letters purported to have been written by Sunanda to her parents and hence, if Sunanda had made a statement which the Special Executive Magistrate recorded at Exhibit 43, it was incumbent on the part of the Special Executive Magistrate to have asked Sunanda about her signature on the said statement. The Special Executive Magistrate has admitted in his deposition that he did not ask Sunanda whether she was educated or she could sign. The defence has suggested that the Special Executive Magistrate did not record the statement of Sunanda on her saying and that the thumb impression on Exhibit 43 was not of deceased Sunanda. It is further suggested to the said witness that at the behest of police, he has prepared the said statement. 12. The defence has suggested that the Special Executive Magistrate did not record the statement of Sunanda on her saying and that the thumb impression on Exhibit 43 was not of deceased Sunanda. It is further suggested to the said witness that at the behest of police, he has prepared the said statement. 12. This takes us to the consideration of evidence of Dr. Chavan, P.W. 9, Dr. Chavan, P.W. 9, has stated that for deciding as to whether the patient was in a position and fit to make a statement, he had asked certain questions to her and claims to have certified about the fitness of the patient to give a statement after being satisfied with the answers he received from her. The witness has admitted that those questions and/or answers purported to have been given by Sunanda are nowhere recorded. It is relevant to note at this point of time that the Special Executive Magistrate has categorically stated in his deposition before the Court that the doctor did not put any question whatsoever to the patient before certifying the patient to be in a position to give a statement. On material point, the evidence of the doctor and the Special Executive Magistrate is at variance. The doctor claims to have further carried out the physical examination of the patient for determination of her condition to give a statement. What is relevant to note is that the doctor has, for the first time, deposed before the Court, after a period of more than 3 and ½ years, about what transpired on the day on which the dying declaration of Sunanda was recorded. The doctor is stating, solely on the basis of his memory that he had put questions to the patient and that he had carried out physical examination of the patient with a view to ascertain her condition for giving statement to Special Executive Magistrate. We are afraid, in the absence of any record maintained by the doctor, more so in the absence of any such endorsement and/or certificate in the dying declaration, Exhibit 43, we cannot rely on the oral evidence of either the doctor or the Special Executive Magistrate to substantiate the facts so deposed. 13. We are afraid, in the absence of any record maintained by the doctor, more so in the absence of any such endorsement and/or certificate in the dying declaration, Exhibit 43, we cannot rely on the oral evidence of either the doctor or the Special Executive Magistrate to substantiate the facts so deposed. 13. Having considered the statement at Exhibit 43 in the light of the deposition of the Special Executive Magistrate and the attending doctor, we find it absolutely unsafe to treat Exhibit 43 as a lawful dying declaration for basing conviction of the appellant, more so when there is no other evidence on record. 14. We have no hesitation to conclude that Exhibit 43 was recorded in most casual manner which is evident from the following circumstances noticed by us; (1) Exhibit 43 does not contain a certificate from the doctor prior to the commencement of the recording of the statement that the physical and mental condition of Sunanda was such, so as to enable her to give the statement; (2) There is no record to indicate that any questions were put by the doctor and/or the Special Executive Magistrate to Sunanda before recording of the dying declaration of Sunanda, as to whether her mental and physical condition was such that she was fit to give a statement; (3) There is no record to indicate that the doctor had carried her physical examination; (4) The time recorded by the Special Executive Magistrate in regard to the recording of statement is from 1.15 a.m. to 1.25 a.m. and the vague and cryptic endorsement/certificate from the doctor recorded at 1.30 a.m., that is, five minutes after the completion of the recording of the dying declaration, and the certificate is to the effect that the patient being conscious was in a position to give statement. The doctor nowhere certified, whatever be the value of the said certificate, that the mental condition of the patient was such that she was fit to give a statement; and (5) Last but not the least; there is total absence of a certificate in Exhibit 43 that the statement was read over to the patient (Sunanda) after its recording and she in turn admitting the same to be correctly recorded and further testifying the contents thereof being true. 15. 15. The learned Additional Public Prosecutor, on the contrary, has submitted that the dying declaration is very much legal and valid and the recording thereof suffers from no material defect, so as to warrant its total rejection. The learned Additional Public Prosecutor has pointed out that the doctor has categorically deposed before the Court below that he had ascertained the condition of the patient by putting her questions and also by making the physical examination of the patient. The learned Additional Public Prosecutor has urged before us to accept the oral evidence of the doctor in support of the fact that the patient was in a good mental state, so as to make a voluntary statement before the Special Executive Magistrate. 16. The learned Counsel for the appellant has relied upon a Division Bench decision of this Court reported in (Manohar Dadarao Landge v. State of Maharashtra)1, 2000(2) Mh.L.J. 3 . The Division Bench of this Court had an occasion to deal with the legality of a dying declaration made in similar situation and having similar infirmities. In paragraph 23, this Court observed : "One important circumstance also has to be noted. Head Constable Gajakosh (P.W. 9) has stated that he recorded statement of Savita and obtained her thumb impression below that statement. He is not stating that he read over the statement to Savita, she accepted it to be correct and then he obtained thumb impression below the statement. So, whatever she stated, whether that was confirmed afterwards by her, is not coming on record. It was necessary for Head Constable, Gajakosh, to read over the statement to Savita and to ascertain from her that whatever was written was true and correct. He failed to do it. In such circumstances, the statement that whatever Savita stated he recorded and then he obtained thumb impression, is not sufficient to hold that whatever he had written was accepted to be correct by Savita." Again, in paragraph 32, the Division Bench has observed : "The prosecution ought to have specifically brought on record that Savita had heard the statement recorded by the Executive Magistrate and she admitted it to be true and correct. This is not mere formality but an essential part while recording the dying declaration. Because the person who cannot be examined afterwards, must at least, at that time, should have confirmed correctness of the statement. This is not mere formality but an essential part while recording the dying declaration. Because the person who cannot be examined afterwards, must at least, at that time, should have confirmed correctness of the statement. But that has not happened in this case. Mere formality of recording the statement might have been done by the Executive Magistrate. But that by itself is not sufficient to hold that this is a dying declaration on which conviction can be based." 17. The learned Counsel for the appellant has then placed reliance on a judgment of the Apex Court in the case of (Paparambaka Rosamma and others v. State of A.P.)2, reported in 1999(7) S.C.C. 695 . The learned Judges of the Apex Court were called upon to pronounce on the legality of a dying declaration, in the light of a certificate issued by the doctor. In the said case, before the Apex Court, the certificate issued by the doctor read thus : "Patient is conscious, while recording the statement." While dealing with the said aspect, the learned Judges of the Apex Court observed that what needs to be certified is that the injured was in a fit state of mind at the time of recording of the dying declaration and a certificate simply stating that the patient is conscious is of no consequence. The Court has further observed that, "............ In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind .........." 18. We proceed to consider the rival contentions in the backdrop of the relevant provisions of law. Section 60 of the Evidence Act lays down the general Rule that the oral evidence must be direct; that is to say, ---(1) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; and (2) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. Section 32 of the Evidence Act carves out an exception to the general Rule and provides that statements of relevant facts made by a person who is dead are themselves relevant facts in the cases falling under the situations and circumstances stated in the said section. Section 32 of the Evidence Act carves out an exception to the general Rule and provides that statements of relevant facts made by a person who is dead are themselves relevant facts in the cases falling under the situations and circumstances stated in the said section. A conjoint reading of section 60 and section 32 of the Evidence Act reveals that a statement under section 32, though hearsay, is very much admissible. As the admissibility of a statement under section 32 is an exception to the general Rule, it will have to be construed strictly, meaning thereby that, such a statement must stand the strict scrutiny in regard to the requirements of a valid dying declaration. What needs to be borne in mind is that a person making statement under section 32 is not available for cross-examination and this by itself places the accused in a disadvantageous situation. When the situation is such that the accused has no chance of cross-examination and when the Court does not have an opportunity to observe the demeanour of the witness, the courts would be justified in insisting for strict compliance of the requirements in recording the dying declaration. What is to be ascertained is that the dying declarations is truthful, voluntary and free from any tutoring. 19. The basic requirements of a valid dying declaration are ; (1) Examination of the patient by the doctor before recording of his statement and a certificate by the doctor that the person (patient) is in a sound mental state to give a statement. (2) Presence of the doctor near the patient during the recording of the statement. (3) Relations of the patient should not be in the vicinity and should be removed from the room wherein the statement of the patient is being recorded, so that a voluntary statement free from any influence or tutoring could be obtained. (4) Last, but not the least, after recording of the statement, the same must be read over to the person (patient) and a confirmation by the person that the statement is correctly recorded and the statement is true. The aforestated requirements are bare minimum safeguards and any infraction thereof would result in rejection of the dying declaration. In the present case, the dying declarations suffers from the non-compliance of the aforestated norms. The aforestated requirements are bare minimum safeguards and any infraction thereof would result in rejection of the dying declaration. In the present case, the dying declarations suffers from the non-compliance of the aforestated norms. We have no hesitation in holding that the dying declarations, Exhibit 43, is not a legal and valid dying declaration. When the prosecution is relying only on the dying declaration for securing conviction, without there being any other evidence, then, there has to be strict adherence to the norms stated hereinabove. In the result, we accept the submissions made on behalf of the appellant and reject the dying declaration outright. 20. In the present case, the doctor has certified that the "patient is conscious and is in a position to give statement". Consciousness and being in a position to give statement cannot be read so as to mean that the patient was in a good mental state for giving a statement; and even on this count, we find that the certificate issued by the doctor, that too after the recording of the statement by the Special Executive Magistrate, to the effect that the patient was conscious and was in a position to give statement is of no consequence and cannot be accepted as a good certificate in law. 21. As such, we accept the submissions made by the learned Counsel for the appellant and hold, insofar as the dying declaration, Exhibit 43, is concerned, that the same cannot be relied upon as a valid and legal piece of evidence. 22. Having exhaustively dealt with Exhibit 43, the dying declaration, the only other document which requires consideration is at Exhibit 47, which is the statement of Sunanda recorded by the Police Head Constable. It is the case of the prosecution that Exhibit 43 was recorded prior in point of time by the Special Executive Magistrate and after he completed recording of the same, Police Head Constable recorded the statement of Sunanda at Exhibit 47, and this Exhibit 47, statement of Sunanda, has been treated as F.I.R. 23. Before we proceed to consider Exhibit 47, suffice it to state that all the deficiencies and defects which we noticed in Exhibit 43 are also there in Exhibit 47, but for the one, i.e., the certificate, or an endorsement to the effect that the statement was read over to Sunanda and she admitted the same to be correct. Before we proceed to consider Exhibit 47, suffice it to state that all the deficiencies and defects which we noticed in Exhibit 43 are also there in Exhibit 47, but for the one, i.e., the certificate, or an endorsement to the effect that the statement was read over to Sunanda and she admitted the same to be correct. But for the said infirmity, the rest of the infirmities as noticed in Exhibit 43 find place in Exhibit 47, and in addition to the said infirmities, the following additional defects are noticed in Exhibit 47: (A) Police Head Constable, who noted down the statement of Sunanda did not put the time of recording of the statement at Exhibit 47. So, it is not possible to know as to when did he start recording of the statement and when did he conclude; (B) The statement at Exhibit 47 is not recorded in the language of the maker thereof. A bare reading of the said statement would reveal that the same is recorded as per the usual manner of recording of statements by the Police Officers. In Exhibit 43, Sunanda has been referring to her husband not by name, but by the term "Man at Home" (-------------); whereas in Exhibit 47, she is not so referring her husband. Various details, which are altogether absent in Exhibit 43, viz., the dying declaration recorded by the Special Executive Magistrate, finds place in the statement recorded by the Head Constable, such as, ill-treatment and cruel treatment meted out to Sunanda prior in point of time, statement to the effect that she had gone to sleep along with her husband after having dinner, noticing presence of kerosene bottle and a match box in the hand of her husband. The statement at Exhibit 47 is much lengthier as compared to the dying declaration at Exhibit 43 and as the statement at Exhibit 47 has been recorded after the recording of the dying declaration at Exhibit 43 by the Special Executive Magistrate, it can be safely assumed that, as the condition of the patient was deteriorating, she would not have been in a position to make a more elaborate and detailed and long statement to the Head Constable as compared to the one at Exhibit 43. We have only referred to the additional infirmities that we noticed in Exhibit 47 and for the reasons, for which we have rejected the dying declaration at Exhibit 43, we reject the statement of Sunanda at Exhibit 47 as well. We refuse to hold that Exhibits 43 and 47 are voluntary and true statements of Sunanda and, as such, in the absence of any eye-witness account, there is hardly any evidence on which the conviction of the accused could be rested. 24. In regard to spot panchnama, suffice it to state that whatever articles were seized with a view to connect the accused with the crime were sent to Chemical Analyser; a bottle allegedly containing kerosene was one of such articles. Strangely enough, the report of the Chemical Analyser does not find place in the records of the Court. So, the spot panchnama and/or the seized articles lead the prosecution case no further. 25. As stated hereinabove, the Court below has rejected the case of the prosecution in regard to the alleged oral dying declaration made by Sunanda to her mother, P.W. 4 Bhikabai and P.W. 5 Bhagwan. The said alleged oral dying declaration has not been accepted by the Court below for want of reliable and cogent evidence in support thereof. Coupled with the fact, we find that the condition of the patient when she reached Jalgaon hospital must be very precarious and she would hardly be in a position to make any statement. It has come on record that within a short span of about 40 minutes, Sunanda expired on her reaching the Civil Hospital at Jalgaon. In this connection, the evidence of P.W. 6 is material to find out as to whether the patient could have been at all in a position to give any statement after her reaching Jalgaon hospital. P.W. 6 who performed autopsy on the dead body of Sunanda observed in the post mortem report that he found 100% burn injuries of first and second degree on the person of Sunanda. In his deposition, the doctor has stated that palms and legs were semi-fixed and that the burns were of 100%. The doctor could not definitely opine as to whether the burn injuries were of first degree or second degree. In his deposition, the doctor has stated that palms and legs were semi-fixed and that the burns were of 100%. The doctor could not definitely opine as to whether the burn injuries were of first degree or second degree. In the cross-examination, the doctor has deposed that, "I cannot say whether the semi fixed nature of burn injuries are in case of burn injuries of second degree. If the fingers of palm are received burn injuries, its appearance would be different than usual". 26. In addition to the reasons stated by the learned Additional Sessions Judge for rejecting the alleged oral dying declaration purported to have been made by the deceased to her mother, P.W. 4 Bhikabai and P.W. 5 Bhagwan, we rely on the evidence of Dr. Mahajan, P.W. 6 also, to record a finding that it was not probable for Sunanda to give such a statement. 27. The learned Additional Public Prosecutor appearing for the State has contended that as the deceased wife was in the company for her husband, the present appellant, it is for the appellant to explain as to what transpired on the fateful night. The import of the said submission made by the learned A.P.P. is that if a fact is especially within the knowledge of a person, the onus to prove the same lie upon him. As the discussion hereinabove would indicate, there is absolutely no legal evidence against the accused so as to shift the onus. The accused in his statement recorded under section 313 of the Code of Criminal Procedure, has stated that he had gone out and on his reaching home, at about 10.45 p.m., he found his wife burning and hence, he extinguished the fire along with the neighbours and reached Sunanda to the hospital. Now, it is not in dispute that the accused had, along with others, extinguished the fire and that the appellant/accused had reached Sunanda to the hospital. In view of this established position, that the accused extinguished the fire and reached Sunanda to hospital, and specially in the absence of any definite evidence about the presence of the accused in the house when Sunanda caught fire, there is no reason why the explanation putforth by the accused cannot be accepted as probable. 28. We, as such, find that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. 28. We, as such, find that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. Hence, this Criminal Appeal is allowed. The judgment and order of conviction and sentence passed against the appellant under section 302, Indian Penal Code, by the learned IVth Additional Sessions Judge, Jalgaon, in Sessions Case No. 215 of 1992, is quashed and set aside; and the appellant is acquitted of the said offence. Appellant accused be set at liberty forthwith, if not required in any other case. Fine amount, if paid by the appellant, be returned to him. Criminal Appeal allowed. -----