JUDGMENT - A.S. AGUIAR, J.:---The accused/appellant herein has challenged his conviction under section 302 I.P.C. by the learned Sessions Judge, North Goa, by Order dated 12th January, 2000 in Sessions Case No. 5 of 1999. The challenge to the conviction is, inter alia, on the ground that the dying declaration recorded by the S.D.M. (Exb. 8) cannot be relied upon as the said dying declaration has not been proved. 2. The case of the prosecution is that on 16-11-1998, the accused/appellant herein, a neither of the deceased and P.W. 7, had a quarrel with the deceased over the demand of money. Upon the deceased refusing to give him money, the accused suddenly became violent, criminally trespassed into the house of the deceased/complainant and assaulted her on the head with an iron chair, causing injuries to her head. The accused, thereafter, poured kerosene on the body of the complainant and set her on fire with a matchstick, as a result of which the complainant sustained grievous burn injuries and, ultimately, died at the Goa Medical College Hospital, Bambolim, on 25-11-1998. 3. The prosecution has, in all, examined thirteen witnesses. One witness, A.S.I. Shro Chandrakant Naik, has been examined as Court witness. The deceased, wife of P.W. 7, is the complainant. Her complaint was recorded by the Police in the Hospital and treated as the F.I.R. However, prior to recording her statement, the dying declaration of the deceased was recorded by S.D.M. Ponda, Shri Narayan Das Agarwal, P.W. 1. Admittedly, there is no direct evidence of any witness, who has seen the actual incident of the accused assaulting the complainant deceased with the chair on the head and thereafter pouring kerosene on her body and setting her on fire with a matchstick. Therefore, the case of the prosecution rests on circumstantial evidence and the main circumstance is the dying declaration recorded by P.W. 1 Shri Narayan Das Agarwal, S.D.M. Ponda. The said dying declaration has, been assailed by learned Counsel for the accused inter alia on the following grounds, namely : (1) That the deceased complainant suffered 70% burn injuries. The inquest panchanama recorded by S.D.M. Agarwal (P.W. 1) ten days after the incident showed both hands and fingers of the deceased were burnt. The said dying declaration has, been assailed by learned Counsel for the accused inter alia on the following grounds, namely : (1) That the deceased complainant suffered 70% burn injuries. The inquest panchanama recorded by S.D.M. Agarwal (P.W. 1) ten days after the incident showed both hands and fingers of the deceased were burnt. P.W. 1 has, in his evidence, stated that after he recorded the dying declaration of the complainant deceased, he obtained her thumb impression and he has identified the same. It is the submission of the learned Counsel on behalf of the appellant that, obviously, due to the burn injuries on the fingers of the complainant deceased, it would have been next to impossible to obtain the thumb impression of the deceased on the dying declaration. (2) The dying declaration (Exh. 8) does not have the endorsement of the Doctor who was treating the injured stating that the injured was in a fit state of mind and body to record her dying declaration. P.W. 1 Narayan Das Agarwal has stated that he proceeded to the Casualty Department of the Goa Medical College Hospital at Bambolim after he received a letter from P.S.I. of Ponda Police Station requesting him to record the statement of a person who had sustained 70% burn injuries. That after going to the Casualty Department, he contacted the Doctor on duty who opined that the injured was in a condition to give statement and that since Sayeeda has sustained 70% burn injuries she was likely to die due to the said injuries. P.W. 1 thereafter recorded Sayeeda's statement which is treated as dying declaration. After recording the same, he obtained her thumb impression, which he has identified. In his cross-examination, P.W. 1 has stated that he has not mentioned in his statement (Exh. 8) about the condition of the deceased Sayeeda nor did he mention in the said statement that he had taken permission of any particular doctor. However, he added that the Police had sent a separate letter to the Medical Officer on which the Medical Officer had given his permission to record the statement. (3) The dying declaration is also assailed on the ground that the said statement (Exh. 8), the dying declaration, was not in question and answer form. However, he added that the Police had sent a separate letter to the Medical Officer on which the Medical Officer had given his permission to record the statement. (3) The dying declaration is also assailed on the ground that the said statement (Exh. 8), the dying declaration, was not in question and answer form. That the said dying declaration was, in fact, jointly recorded by P.W. 1 along with the police and that the husband of deceased Sayeeda and some other persons and a Constable were present in the casualty when the dying declaration was recorded by P.W. 1. 4. It is the contention of the accused that when the dying declaration was recorded, the deceased was not conscious. The case of the appellant that the deceased Sayeeda was not conscious when the dying declaration was recorded appears probable when we consider the fact that Sayeeda sustained injuries on the head after the alleged assault by the appellant. P.W. 1 himself, who conducted the inquest at the morgue, has stated that the deceased had head injury on the top of her head and some dried blood could be seen from the head injury. Of course, P.W. 1, who recorded the dying declaration Exhibit 8 as well as who conducted the inquest panchanama, has denied the suggestion that the deceased was not conscious when he recorded the statement. The inquest panchanama shows injury on the middle of the head, namely, contused lacerated charred wound at the frontal region. The panchas, who are of course not experts, have opined that the deceased might have died due to head and burn injuries sustained by the deceased. P.W. 4 Jacinta Barreto, a neighbour of the deceased, who has deposed to the quarrel that took place between the accused and the deceased outside their house, stated that when she saw the deceased after the incident, she was burnt but she was alive. However, she could not say whether she could talk. P.W. 9 Dr. Silvano Dias Sapeco, who performed the post-mortem examination on the dead body of Sayeeda, has deposed that there was a gaping anteroposteriorally directed contused lacerated wound with hard scabbed areas around their margin of 3 x 0.5 x 0.5 cms. However, she could not say whether she could talk. P.W. 9 Dr. Silvano Dias Sapeco, who performed the post-mortem examination on the dead body of Sayeeda, has deposed that there was a gaping anteroposteriorally directed contused lacerated wound with hard scabbed areas around their margin of 3 x 0.5 x 0.5 cms. was seen on mid top of frontal region of scalp just behind the hairline crease and (2) gaping anteroposteriorally directed contused lacerated wound with hard scabbed areas around their margins of 1¾ x ½ x ½ on left temporal region of scalp and these two injuries were caused by impact with blunt and hard object. The cause of death, according to Doctor P.W. 9 who performed the post-mortem examination is that death was due to septicimia consequent to the infected flame burns associated with scalp injuries. 5. P.W. 12 Dr. Suhas Gaitonde, the Medical Officer on duty at the relevant time, has deposed that he had examined the patient. That she was in a semi-conscious state and in cross-examination he has explained that "by "semiconscious I mean she was conscious to follow the questions I asked her and she could give replies. The patient was not in a condition to tell me of her own, in case she wanted to tell anything. "The 70% burn injuries sustained by the deceased Sayeeda coupled with the head injuries make it probable that Sayeeda was unconscious at the time when her dying declaration was recorded. From the sequence of events as deposed to by the prosecution witnesses, there was a quarrel between Sayeeda and the accused. The accused became enraged, went into the house of the deceased, picked up an iron chair and assaulted her with the chair, as a result of which, she suffered bleeding injuries to the scalp. Thereupon the accused went and picked up a can of kerosene which was in the house of the deceased, poured it on her and then set her on fire with a matchstick. If Sayeeda was conscious even after suffering the head injuries due to the assault by iron chair, she would definitely have tried to escape and protect herself from getting burnt when the accused allegedly poured kerosene on her and set her on fire. The conduct of the deceased, as stated by the witness, seems unnatural. If Sayeeda was conscious even after suffering the head injuries due to the assault by iron chair, she would definitely have tried to escape and protect herself from getting burnt when the accused allegedly poured kerosene on her and set her on fire. The conduct of the deceased, as stated by the witness, seems unnatural. The dying declaration recorded by P.W. 1 does not inspire confidence as the dying declaration does not contain endorsement of the Doctor who allegedly gave permission to record the dying declaration of Sayeeda. Nothing prevented the S.D.M. from recording the endorsement of the Doctor, on the said dying declaration. 6. Learned Additional Public Prosecutor for the State has vehemently argued that the mere absence of endorsement of Doctor on the dying declaration indicating that the deceased declarant was in a fit condition to give her statement and the non-examination of the Doctor who gave permission cannot be the ground for discarding the dying declaration. She had relied upon the judgment of the Supreme Court in (Koli Chunilal Savji and another v. State of Gujarat)1, reported in 1999 Cri.L.J. 4582 wherein the Court held as follows : "It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. But in the absence of doctor while recording the dying declaration, the said declaration does not lose its value and can be accepted." 7. However, in the present case it must be noted that the Doctor was present in the Casualty and P.W. 1 has deposed that he contacted the Doctor who opined that the injured was in a condition to give the statement. There is, therefore, no reason for the P.W. 1 not having obtained the endorsement of the Doctor on the dying declaration that the patient was conscious and in a position to make a statement. This was necessary in view of the serious injuries which the deceased had suffered and it was only natural that the S.D.M., should have taken the precaution of obtaining the said endorsement of the Doctor on the dying declaration. 8. The dying declaration is also suspect on the ground that the procedure has not been followed and the statement has not been recorded in the form of questions and answers. 8. The dying declaration is also suspect on the ground that the procedure has not been followed and the statement has not been recorded in the form of questions and answers. No doubt, the S.D.M. cannot be faulted for recording the dying declaration in the form of a narrative and not in the form of questions and answers, but in view of the admissions on his part that the dying declaration was not recorded by him in his own hand, but by a Police Constable, it is to be expected that the S.D.M. (P.W. 1) would have recorded the dying declaration in the form of questions and answers. If the deceased was in a position to give the declaration, the same could have been recorded in the form of a narrative by the S.D.M. himself contemporaneously as the deceased gave her statement. If the dying-declaration was in a form of questions and answers, then the recording of the same by the Police Constable is understandable as the same would have been recorded on the dictation of the S.D.M. But, since in this case, the dying declaration is in the form of a narrative it is not understood why the same was not recorded by the S.D.M. in his own handwriting but was recorded by the Police Constable. This and other circumstances make the dying declaration suspect. The Supreme Court in the case of (Paparambaka Rosamma and others v. State of A.P.)2, reported in 1999(7) S.C.C. 695 , has held that where the deceased has sustained extensive burn injuries on her person, the doctor who performed the post-mortem stated that the injured had sustained 90% burn injuries and the prosecution case was solely rested on the dying declaration, it was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making the declaration. In the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making the declaration. The Court further held that where conviction is solely based on dying declaration, the Court has to consider carefully the dying declaration and the evidence of the witnesses supporting it, namely, the Magistrate who recorded the statement of the deceased and the Doctor who examined the deceased in the hospital. 9. In the present case where the dying declaration is the sole basis for the conviction of the appellant, the genuineness of the dying declaration has to be examined carefully so also the evidence of the witnesses, namely, of the S.D.M. (P.W. 1) and the Doctor who gave the consent. In the present case, the S.D.M. (P.W. 1) has stated that he contacted the Doctor who opined that the injured was in a condition to give the statement. He, however, did not record the statement of the Doctor on the dying declaration. It is, however, pertinent to note that the Doctor of the Goa Medical College Hospital who allegedly gave the consent has not been examined. The Investigating Officer (P.W. 13) has, in his cross-examination, stated that he has not recorded the statement of the Doctor nor has he cited him as a witness. He has admitted that he has not noted down the name of the Doctor with whom he made the enquiries, but states that the Doctor had signed the letter and the Doctor had made endorsement on the copy of the letter that the patient is fit to give her statement. He has also admitted that he has not recorded the statement of the said Doctor nor has he cited him as witness. In fact, no evidence has been brought on record of any Doctor having given consent to S.D.M. for recording the dying declaration of the deceased. 10. In the facts and circumstances mentioned hereinabove, no reliance can be placed upon the dying declaration. The conviction having been based solely on the dying declaration, will, therefore, have to be set aside. 11. In the result, the appeal is allowed. The conviction of the appellant/accused is set aside. 10. In the facts and circumstances mentioned hereinabove, no reliance can be placed upon the dying declaration. The conviction having been based solely on the dying declaration, will, therefore, have to be set aside. 11. In the result, the appeal is allowed. The conviction of the appellant/accused is set aside. The appellant/accused is acquitted of the offence of which he is charged. He shall be set at liberty forthwith, if not required in any other case. Appeal allowed. -----