JUDGMENT - P.V. HARDAS, J.:---The appellant herein, who has been convicted by the Additional Sessions Judge, Gadchiroli in Sessions Case No. 28/1992 and sentenced to suffer imprisonment for life, has challenged his conviction and sentence in the present appeal. Charge vide Exh. 2, was framed against the appellant for having committed murder of his wife-Manglabai on 3-2-1991 at about 5 p.m., in village Jambhali. The appellant did not pleaded guilty and came to be tried. In order to substantiate the charge against the appellant, the prosecution had examined 7 witnesses. 2. The facts as unfolded in the prosecution evidence is that the deceased Manglabai, and the appellant were residing at village Jambhali. They had their own small house comprising of a verandah and a room. Deceased Manglabai used to go to the forest for collecting Gum. 3. It is alleged by the prosecution that on 3-2-1992, deceased Manglabai returned from the forest at about 5 in the evening, the appellant in an inebriated condition quarrelled with deceased Manglabai and poured kerosene oil on her person, and set her ablaze. The deceased in order to save herself ran outside and her neighbourers P.W. 1 Tuljabai and P.W. 2 Vishwanath, extinguished the flames. It is alleged by the prosecution that her minor son P.W. 4 Rama was present in the house and who had witnessed the appellant setting the deceased Manglabai ablaze. It is further alleged by the prosecution that the deceased Manglabai was thereafter taken in bullock cart to the General Hospital, Gadchiroli. Head Constable P.W. 6 Vithal Aachewar, who was on duty at the General Hospital, Gadchiroli was informed by the Station Diary Incharge that a woman with burns had been admitted in the hospital, and that P.W. 6 Vithal should record her statement. P.W. 6 Vithal therefore recorded the statement of the deceased Manglabai, vide Exh. 31. This statement Exh. 31 came to be recorded on 4-2-1992 at 2.15 a.m. On the strength of Exh. 31, P.W. 6 Vithal Aachewar, registered offence against the appellant vide Exh. 32, under section 307 of Indian Penal Code. The appellant came to be arrested by the P.W. 6 Vithal Aachewar at 2.30 p.m. on 4-2-1992 vide Exh. 7 which is the arrest panchanama. The prosecution contends that P.W. 7 Pandurang Khobragade, who at the relevant time was working as Tahsildar, received a requisition from the Police vide Exh. 32, under section 307 of Indian Penal Code. The appellant came to be arrested by the P.W. 6 Vithal Aachewar at 2.30 p.m. on 4-2-1992 vide Exh. 7 which is the arrest panchanama. The prosecution contends that P.W. 7 Pandurang Khobragade, who at the relevant time was working as Tahsildar, received a requisition from the Police vide Exh. 34 for recording the dying declaration of Mangalabai. Accordingly P.W. 7 Pandurang Khobragade, recorded dying declaration of Mangalabai, which is at Exh. 35. This dying declaration came to be recorded according to P.W. 7 on 4-2-1992 at 4 a.m. 4. After the arrest of the appellant he was referred for medical examination and the appellant was examined by P.W. 3 Dr. Anant Hazare. P.W. 3 Dr. Hazare, had noticed that the appellant had consumed liquor, though he was not under the influence of alcohol. The prosecution had felt the necessity of getting the appellant examined from P.W. 3, because the two dying declarations Exh. 31 and Exh. 35 referred to the appellant having set Mangalabai ablaze in an intoxicated condition. 5. The learned trial Judge, relied on Exh. 31 and Exh. 35, the two dying declarations, recorded by P.W. 6 Vithal Aachewar and P.W. 7 Pandurang Khobragade, respectively. The learned trial Judge, while relying on the dying declarations found that P.W. 6 and P.W. 7 were independent persons and therefore, would not falsely state regarding the recording of the dying declaration. Thus, the learned trial Court placed implicit reliance on Exh. 31 and Exh. 35, which were made foundation for convicting the appellant for the offence punishable under section 302. P.W. 4 Rama, the minor son of the appellant and deceased, did not support the prosecution and consequently though he was cross-examined by the prosecution, no reliance what so ever was placed on his testimony. The prosecution had also examined P.W. 15 Parmanand Rahule, J.M.F.C., Gadchiroli, who had recorded the statement of P.W. 4 Rama under section 164 of Cri.P.C. In this case the prosecution had not examined the Investigating Officer. 6. With the assistance of the learned Counsel for the appellant Shri M.R. Daga, and Shri Thakare, learned A.P.P. for the State, we have perused the entire record. The conviction is based principally upon two dying declarations at Exh. 31 and Exh. 35. The post mortem report at Exh. 12 shows that the deceased had suffered 95% burns. 6. With the assistance of the learned Counsel for the appellant Shri M.R. Daga, and Shri Thakare, learned A.P.P. for the State, we have perused the entire record. The conviction is based principally upon two dying declarations at Exh. 31 and Exh. 35. The post mortem report at Exh. 12 shows that the deceased had suffered 95% burns. Since the conviction rests on these two dying declarations it would be useful to make reference to the evidence of P.W. 3, P.W. 6 and P.W. 7. 7. P.W. 6 Head Constable Vithal Aachewar states that he had recorded the statement of Manglabai in the hospital and the deceased Manglabai had stated before him, that her husband i.e., the appellant had abused her and had poured kerosene on her person and had set her ablaze. P.W. 6 further states that he had obtained an endorsement of the Medical Officer on Exh. 31. The offence came to be registered against the present appellant vide Crime No. 14/1992 vide Exh. 32 on the basis of this dying declaration Exh. 31. The endorsement which appears on Exh. 31 "patient is in state of agony may be able to give valid statement". This endorsement appears to have been made on Exh. 31 by Dr. Anant Hazare, who is examined by the prosecution as P.W. 3. 8. The perusal of the endorsement does not indicate that the doctor had found the declarant to be in physical and mentally fit condition to make her statement. P.W. 7 Pandurang Khobragade who recorded Exh. 35, states that the deceased Manglabai had stated before him that the appellant in a drunken condition, after quarrelling with her had poured kerosene oil on her and set her ablaze. P.W. 7 further states that after scribing the dying declaration he had obtained the thumb impression of the deceased on Exh. 35. P.W. 7 also states that he had obtained the signature of the Medical Officer on duty on the dying declaration. The endorsement of the Medical Officer on Exh. 35, is "statement recorded before me and it is true". This endorsement also appears to be have been made by Dr. Anant Hazare who is examined as P.W. 3. 9. Mr. M.R. Daga, the learned Counsel appearing for the appellant has canvassed before us, that both the dying declarations at Exh. 31 and Exh. 35, is "statement recorded before me and it is true". This endorsement also appears to be have been made by Dr. Anant Hazare who is examined as P.W. 3. 9. Mr. M.R. Daga, the learned Counsel appearing for the appellant has canvassed before us, that both the dying declarations at Exh. 31 and Exh. 35 are not true and the endorsement does not show that the deceased Manglabai was in a mentally fit condition when her dying declarations came to be recorded. The learned A.P.P. Shri Thakre, submits that though such an endorsement does not appear in the dying declaration both P.W. 6 and P.W. 7, were satisfied with condition of the declarant i.e., Manglabai, that she was in fit condition to give her statement. 10. At the outset it may be stated that, the dying declarations in order to be made the foundation for conviction has to satisfy various tests one of which that the declarant was in a sound mental condition to give the statement. It has to be remembered that the declarant is not subjected to cross-examination and if this test is satisfied the Court may accept the dying declaration and the accused can be convicted solely on the basis of the dying declaration. We are afraid that in this case the prosecution has not been able to prove at the very threshold that the deceased Manglabai was in a mentally fit condition when the dying declarations at Exh. 31 and Exh. 35 came to be recorded. Curiously, there is no explanation from the prosecution as to why P.W. 3 Dr. Anant Hazare, was not questioned regarding the two dying declarations and the endorsement made by Dr. Hazare on Exh. 31 and Exh. 35. P.W 3 Dr. Hazare, in his examination-in-chief refers only to the examination of the appellant and finding that the appellant had consumed liquor. There is no reference whatsoever to the fact that P.W. 3 Dr. Anant Hazare had on 4-2-1992 either examined the deceased or the two dying declarations at Exh. 31 and Exh. 35 were recorded in his presence. We are afraid that in the absence of the evidence of the Doctor, who had examined the declarant and in whose presence the dying declarations were recorded, the two dying declarations cannot be made the foundation for basing the conviction. 31 and Exh. 35 were recorded in his presence. We are afraid that in the absence of the evidence of the Doctor, who had examined the declarant and in whose presence the dying declarations were recorded, the two dying declarations cannot be made the foundation for basing the conviction. We therefore, accept the submissions advanced before us by Shri M.R. Daga, the learned Counsel for the appellant, that the prosecution has not been able to establish that the dying declarations at Exh. 31 and Exh. 35, were recorded when the declarant deceased Manglabai was in mentally fit condition to give her statement. We are unable to accept the submissions advanced by the learned A.P.P. Shri Thakre, that subjective satisfaction of both P.W. 6 and P.W. 7 is enough to indicate that the deceased was in fit mental condition to make her statement. It is incumbent for the prosecution to place before the Court the evidence of the Medical Officer who examined the declarant and certifies that the declarant is in a fit mental condition to give statement. The satisfaction of either the Executive Magistrate and the Police Officer regarding the mental fitness of the declarant to give the statement is not enough to discharge the burden on the prosecution to prove that the declarant was in a fit mental condition when the dying declaration was recorded. May be such subjective satisfaction can be used as an additional prop to the evidence of the Medical Officer, but it could never be used as a substitute to the opinion of the Medical Officer regarding the mental fitness of the declarant. The learned trial Judge, has not dealt with this aspect at all, and has accepted the dying declaration principally on the ground that both P.W. 6 and P.W. 7 being independent persons would not falsely state that they had recorded the dying declaration of Manglabai. As pointed out by us earlier, the fact that the declarant was in fit mental condition when the dying declaration was recorded has to be proved by cogent and reliable evidence. In the absence of such evidence the courts would be justified in rejecting the dying declaration on this count alone. 11. As pointed out by us earlier, the fact that the declarant was in fit mental condition when the dying declaration was recorded has to be proved by cogent and reliable evidence. In the absence of such evidence the courts would be justified in rejecting the dying declaration on this count alone. 11. In view of this what has been stated by us regarding the dying declarations, we find that there is no evidence worth the name for convicting the appellant, and therefore, the appeal filed by the appellant is allowed. 12. The appeal is allowed and the conviction and sentence recorded by the Additional Sessions Judge, Gadchiroli in Sessions Case No. 28/1992, is hereby quashed and set aside. The appellant be set at liberty forthwith if not wanted in any other case. Appeal allowed. -----