JUDGMENT Barin Ghosh, J.: I had the privilege of reading the well reasoned/judgment written by my Learned brother, Justice Asim Kumar Banerjee. I agree in toto with what my Learned brother has held and I affirm the same. However, I felt that I should also add a few words and hence this effort. 2. In the instant case the statement of the victim said to have recorded by the Executive Magistrate acts in two ways, first as a F.I.R and then as a dying declaration. Treating the same as a F.I.R., investigations have been made and in course thereof evidences have been collected and the same have been sought to be proved at the trial. The informations contained in the F.I.R. supply three distinct informations i.e. refusal on the part of the victim to pay a sum of Rs. 5000/- to the accused; burning by the accused of the victim; and bitting of the victim by the accused after the burning. The investigation could not also collect any evidence to support the third allegation. The investigation, however, collected some evidence in support of the second allegation. The third evidence so collected in the injury report prepared by the attending Doctor at the Primary Health Centre, who attended the victim at about 4.15 P.M. on the date of incident. That report apart from recording statements giving an impression that the victim was at that time in disposable-mind, recorded the following: "alleges to have been burnt by her husband, Hari Charan resident of Port Mout on 16.11.97 at 2 P.M." 3. In addition to that, evidence in the oral form, said to have been made before the Investigating Officer by certain persons, were obtained and of such persons a few had been examined at the trial. The Doctor concerned who was examined at the trial supplied the words "the patient" before the sentence extracted above during her examination at the trial. It was contended that a written document can be explained and the Doctor in fact explained the same while giving evidence. It is true that a written document can be explained by parol evidence, but in the name of giving explanation if a word, which is not there in the written document is sought to be supplied, that is not permissible. It is true that a written document can be explained by parol evidence, but in the name of giving explanation if a word, which is not there in the written document is sought to be supplied, that is not permissible. Even assuming the words "the patient" could be supplied, then the evidence of the Doctor is to the effect that the patient had told the Doctor that her husband caused the burn. This piece of evidence has to be weighed with the other evidences available and the probative value of this piece of evidence has to be weighed in the light of evidence that has come on record. As my Learned brother has pointed out, while the Doctor at the Primary Health Centre, the mother and the brother of the accused deposed during the trial that the victim told them that she was burnt by her husband, two sons of the victim, the neighbour of the victim, to whom refuge was sought by the victim immediately after the incident, as well as the Taxi Driver, who took the victim to the Primary Health Centre, said otherwise. It has not been proved in evidence that either the Taxi Driver or the neighbour or the Doctors were anyway dependent either upon the accused or upon the parental family of the victim. As pointed out by my learned brother very little weightage could be given to these statements to make a conviction. Some of these statements could be taken into account as part of circumstantial evidence provided the circumstances could be established. As has been pointed out by my Learned brother the fact that the husband was present when the incident occurred has not been established. It has been correctly pointed out by my Learned brother that merely because the husband did not act in the fashion, the learned Sessions Judge though he should have acted, do not establish the circumstances leading to any inference upon which these conflicting statements given by these six witnesses could be weighed in such a manner so a to convict the accused. The logical conclusion therefore, would be that the evidence collected during the course of investigation treating the statements said to have been made by the accused as F.I.R. did not yield such conviction that the accused could be convicted. 4. The logical conclusion therefore, would be that the evidence collected during the course of investigation treating the statements said to have been made by the accused as F.I.R. did not yield such conviction that the accused could be convicted. 4. As has been pointed by my learned brother in so far as the dying declaration is concerned the same must be weighed appropriately and every effort must be made to sustain the same, but then in order to do so, the court's conscience must be clear to the effect that the declaration which has been produced as the dying declaration is in fact the dying declaration of the victim. The second thing that the court would be required to do is to ascertain whether at the time dying declaration was given the victim was in a disposable position both mentally and physically to give such declaration. The person who is obtaining a dying declaration is not necessarily required to have witnesses present. But when witnesses are available there must be strong reason for not having such witnesses. My learned brother has already pointed out that the time when the dying declaration was obtained, people sitting around the victim had witnessed obtaining of such dying declaration, but none of them was named and none came forward to corroborate the same. As has been pointed out by my learned brother the Magistrate concerned did not bother at 6.00 pm in the evening to find out whether the victim was in a disposable-mind. There is no statement either in the dying declaration itself or in the evidence that the Magistrate made any effort to find out the mental or physical condition of the victim. 5. In such circumstances I concur with my learned brother wholeheartedly as I am convinced that a conviction cannot be had solely on the basis of a dying declaration obtained in such a manner. Ashim Kumar Banerjee, J.: 6. When there is no eye witness for an incident how far a man can be convicted on the basis of dying declaration and solely depending upon it, is the moot question on which this case rests. 7. Ashim Kumar Banerjee, J.: 6. When there is no eye witness for an incident how far a man can be convicted on the basis of dying declaration and solely depending upon it, is the moot question on which this case rests. 7. The admitted facts, as appears from the evidence, depict that one Sangeetha Kumari, a married lady, sustained burn injuries it 2 O' clock in the afternoon on 16th November, 1997 and rushed out of her house and fell on the lap of one Bharat Buddi her neighbour and remained there until her parents along with her brother and sister-in-law came in a taxi and took her to the Primary Health Centre. The lady was examined by one Dr. Sakila Banu at about 4.15 P.M. at the Health Centre and thereafter was referred to G.B.Pant Hospital where she was admitted. The said lady unfortunately passed away on 19th November, 1997 at G.B.Pant Hospital where she succumbed to her injury of about 65 per cent burn. 8. According to the prosecution the victim made a dying declaration before the Magistrate on 16th November, 1997 at 6 O'clock in the evening that her husband being the accused-appellant poured kerosene on her and threw a litted match-stick on her and as such her garments caught fire. Her husband ran away from the house, came back within a short while and beat her up. The dying declaration was taken by the Magistrate in a questionnaire form where the victim put her thumb impression. The Magistrate came and deposed that the dying declaration was given by the victim in Hindi and was translated and recorded in English and it was read over and explained to the victim and the victim thereafter put her thumb impression. On the basis of the said statement an FIR was lodged by the police and a case had been initiated by the police against the accused appellant for an offence punishable under section 302 of Indian Penal Code. 9. The case was tried by the Sessions Judge which resulted in an order of conviction followed by a punishment of imprisonment for life. 10. The Learned Sessions .Judge in his illustrative judgment recorded each and every relevant fact which came out in course of investigation and/or from the deposition. 9. The case was tried by the Sessions Judge which resulted in an order of conviction followed by a punishment of imprisonment for life. 10. The Learned Sessions .Judge in his illustrative judgment recorded each and every relevant fact which came out in course of investigation and/or from the deposition. The Learned Sessions Judge formulated the points which are as follows:- "(1) Whether the victim lady Smt. Sangeetha died out of burns from fire, and whether it is accidental, self inflicted or homicidal? (2) Whether the accused person was having stained relation with his wife and used to quarrel with her and used to assault her on different occasion. (3) Whether the accused person put fire on the person of the victim lady Smt. Sangeetha intentionally? (4) Whether the accused person put fire on the person of the victim lady, with the intention to kill her? (5) Whether the charge framed against the accused person has been proved and whether he is guilty of the said charge?" 11. The relevant conclusion and/or finding of the learned Judge are summarized as follows: I. The prosecution failed to lead any evidence as to how and by whom the fire was caused. However, according to the defence witness she came out of the house when she was wet and the fire was put off. According to the son, the accused was along in the house as it was the Sunday, uptill 12 noon and took mid-day-meal. There was no evidence as to how the water was poured upon her and by whom. II. 3 DWS who came into contact with the deceased immediately after fire made different stories in respect of source of fire. According to DW 1, victim told her that the fire was caused by herself. According to DW 2, he did not know the cause of fire. According to DW 3, when he asked her mother, she told him that the fire came upon her suddenly. III. There is no explanation from any side as to why the in-laws would abuse and threaten the accused to prosecute over the burning of Sangeetha Kumari. According to DW 2, accused married for the second time and the second wife also lodged complaint with the local police station on the ground of assault.- So the accused was in the habit of beating his wives. IV. According to DW 2, accused married for the second time and the second wife also lodged complaint with the local police station on the ground of assault.- So the accused was in the habit of beating his wives. IV. The direct evidence of cause of fire is the dying declaration only. 12. The acceptance of the dying declaration was an issue before the learned Sessions Judge. According to the defence, the dying declaration was not taken by the Magistrate in accordance with the accepted procedure. There was no corroborative evidence to support the said dying declaration. No medical certificate had been obtained by the Magistrate to satisfy himself that the victim was in a fit state of mind to make such declaration. 13. The dying declaration was accepted by the learned Sessions Judge, inter alia, on the following grounds:- I. No suggestion was given to the Magistrate that the persons standing at the bed side of the victim at the time of making such declaration did influence the victim. II. The accused in the normal facts and circumstances should have been worried waiting by the bed side of the patient. Having not done so, it infers that he was involved in the incident. III. "The absence of the accused speaks a volume against him". IV. Medical Certificate was not a pre-requisite to support the dying declaration. V. On the basis of the available evidence it would not be risky, nor hesitating in accepting the version of the victim made immediately before her death and immediately after the occurrence. VI. The accused-appellant was in the habit of torturing his wife as comes out from the evidence of DW 2. The accused had a clear intention to cause severe hurt. VII. According to DW 1, accused immediately after coming to know of the incident went to the Primary Health Centre to get an ambulance and by this time the parents of the victim came in a taxi and took her to the health center. According to the learned Judge, the accused without arranging for taxi from the road or any other conveyance went to the health center to get an ambulance it would show that he was buying time so that the victim would succumb to the injury. According to the learned Judge, the accused without arranging for taxi from the road or any other conveyance went to the health center to get an ambulance it would show that he was buying time so that the victim would succumb to the injury. According to the learned Judge, the natural impulse would have been to lift the injured lady and rush towards the road side to procure any conveyance to give immediate medical aid to the victim. Having not done so it pre-supposes that the accused had the intention and motive to kill the victim and it was evident from his conduct. 14. On the basis of the aforesaid analysis of the evidence, the Sessions Judge came to a conclusion that the accused is guilty of offence punishable under section 302 of the Indian Penal Code and punished him accordingly. 15. Let me now analyse the evidence which are relevant herein. The FIR was lodged on the basis of the dying declaration. According to FIR the accused demanded Rs.5000/- from the victim, on refusal he poured kerosene on the victim, caused fire and ran away from the house, immediately thereafter came back and beat her up. I have analysed the evidence given by 24 prosecution witnesses and three defence witnesses. Nowhere it has come out from the evidence that the victim was in fact in possession of a sum of Rs.5000/- which she could give to the accused. There was no evidence to show that the victim had that money and refused to-pay the same. Hence the mens rea, which according to the prosecution led the murder, is absent. 16. It is more or less, an admitted fact that there was no eye witnesses of the occurrence. It is also a fact that there was no evidence to show that the accused was present at the time of occurrence. The prosecution could not lead any evidence to show that the accused was present at the place of occurrence. Hence, it would be risky to implicate a person on the basis of a dying declaration and a dying declaration only. 17. The Sessions Judge heavily relied upon the evidence of the defence witnesses which also shows that the accused was in the house up till 12 noon whereas the fire was caused between 1.30 to 2.00 pm. 18. Hence, it would be risky to implicate a person on the basis of a dying declaration and a dying declaration only. 17. The Sessions Judge heavily relied upon the evidence of the defence witnesses which also shows that the accused was in the house up till 12 noon whereas the fire was caused between 1.30 to 2.00 pm. 18. The Sessions Judge has given waitage to the immediate reaction of the accused and heavily commented on the same. It is true that the conduct of the accused as appears from the evidence looks unusual and may not have resemblance what a prudent man would do. Even then the said conduct cannot have any relevance independently which could help the Sessions Judge to come to the conclusion. The conduct may cause suspicion in the Judge's mind. Whatever suspicion it might cause it cannot independently lead to a conviction as has been said by the Supreme Court in the case of Ram Pratap vs. State of Haryana, reported in 1983 Vol. III Supreme Court Cases page 327. Paragraph 6 of the said judgement is relevant herein and is quoted below:- "Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hystoric and start wailing. Some start shouting for help, others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter attaching the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly realistic and unimaginative way." 19. Accordingly to the Apex Court, an incident can cause different reaction to different persons and there is no set rule of natural reaction and it would be wholly unrealistic or unimaginative way to come to a conclusion as the concerned person did not react in a particular manner. Accordingly to the Apex Court, an incident can cause different reaction to different persons and there is no set rule of natural reaction and it would be wholly unrealistic or unimaginative way to come to a conclusion as the concerned person did not react in a particular manner. Hence I hold that the reaction of the accused after the incident cannot and should not have any bearing to implicate him in this case. 20. Hence, on detail scan of evidence I have failed to find any piece of evidence to implicate the accused other than the dying declaration. 21. Let us now come to the issue of dying declaration. 22. It appears from the evidence that victim made statement at four stages winch are set out chronologically; i) She poured kerosene on herself and caused fire to herself according Bharat Buddi as told to her by the victim immediately after the occurrence. ii) According to the Taxi driver, the victim told the same thing to her parents in the taxi while she was being taken to the health center. iii) According to the Dr. Shakila Banu, the attending physician of the health center, her husband caused fire upon her. iv) At 6 O'clock in the evening she made the subject declaration before the Magistrate in presence of some unidentified persons on her bed side. 23. The aforesaid evidence are nothing but hearsay evidence unless and until it is relied upon as a dying declaration under section 32 of the Evidence Act. As has been repeatedly observed by the Apex Court that although there is no formal mode prescribed for recording the dying declaration the mental and physical condition of the person making such declaration is an important factor to be noted and for that a medical certificate contemporaneously obtained by the prosecution is a must. Admittedly, no such medical certificate has been obtained by the police or the Magistrate at the time of taking such declaration. No body came to depose in support of the fact that the dying declaration was made in his presence, those unidentified persons on the bed side still remain unidentified. 24. Reliance has been placed by the parties on two Apex Court decisions reported in AIR 1998 Supreme Court page 1850 (Rambehari Yadav vs. State of Behar) and 1999 Criminal Law Journal (Supreme Court) page 4321 (Paparambaka Rosamma vs. State of Andhra Pradesh). 25. 24. Reliance has been placed by the parties on two Apex Court decisions reported in AIR 1998 Supreme Court page 1850 (Rambehari Yadav vs. State of Behar) and 1999 Criminal Law Journal (Supreme Court) page 4321 (Paparambaka Rosamma vs. State of Andhra Pradesh). 25. In the first case before the Apex Court the Magistrate despite attempt being made could not get hold of any doctor so as to obtain a certificate. As there was no doctor the Magistrate being satisfied about the mental condition of the victim recorded her declaration and got it countersigned by the attending nurse. Paragraph 10 of the said judgement is relevant and quoted below: "10. In the light of the above discussion we shall read here Exh.2 which reads thus; 'Mujhe mere pati ne jala diya. Mujhe pata nahin kyon jalaya. Main jyada nahin kah sakti hoon hyon ke bahut pyass lagi hai.' The learned II Class Judicial Magistrate (PW. 7) stated that pursuant to the order of Sub-Divisional Judicial Magistrate, on November 16, 1985 he recorded the dying declaration of Smt. Srivratri Devi in Sadar Hospital and signed the same; as both the hands of Smt. Shivratri Devi were badly burnt, he took impression of her left toe on the declaration and certified accordingly. He further stated that he put certain questions to Smt. Shivratri Devi with a view to test her memory but he did not record this fact in the statement and that she was conscious while giving her statement; he added, he got the doctor searched but no doctor was available at 1.00 p.m. when the statement recorded by him; a trainee nurse was attending upon her and he got her signature in the statement. He also stated that the ASI who was with him identified the lady and after making enquiries from the lady, he satisfied himself about her identity." 26. The fact of the case would depict that the concerned Magistrate tried to obtain a certificate about the mental and physical condition of the victim, on his failure to get the same he recorded the statement in the presence of the attending nurse and got her signature as a co-witness. Such is not the case here. There were many persons who remain unidentified, from the history sheet of the hospital it appears that the victim was time to time examined by the doctor. Such is not the case here. There were many persons who remain unidentified, from the history sheet of the hospital it appears that the victim was time to time examined by the doctor. No attempt was made by the Magistrate, at least not came out in evidence, to find out a doctor to obtain necessary certificate contemporaneously. 27. In the later case reported in 1999 Criminal Law Journal page 4321 (supra) the Apex Court once again remined that it would be very much risky to accept the subjective satisfaction of a Magistrate to opine that the injured was in a fit state of mind at the time of making declaration in absence of medical certificate to the said effect. 28. Hence, there is nothing to show at least not came out in the evidence which could support as and by way of corroborative evidence to the effect that the deceased, in fact, made such statement before the Magistrate in a fit state of mind. Anything in short of that cannot lead to an acceptance of the dying declaration on the basis of which the accused can be implicated. 29. With regard to the three other statements, made by the victim to Bharat Bhuddi, Sakila Banu and Taxi Driver, apart from the fact that those are hearsay evidence no credence can be given as those are self-contradictory. 30. Hence, in my considered view since nothing has come out in evidence independently to implicate the accused-appellant in the instant case it would be very much risky to hold that the accused has committed the offence solely on the basis of the dying declaration as has been done in the instant case. The prosecution unfortunately has failed to prove the presence of the accused at the time and place of occurrence. His involvement in the incident cannot be inferred in no stretch of imagination. 31. In Criminal Jurisprudence hundreds may go scot-free but a person cannot be convicted for an offence and be punished therefor on the basis of an evidence which is based on probability. To implicate a person in a criminal offence and punish him, unimpeachable evidence proving his guilt beyond doubt is a must, nothing short, nothing less. Inference from a man's conduct however, bad it may be, cannot and should not lead him to gallows. 32. To implicate a person in a criminal offence and punish him, unimpeachable evidence proving his guilt beyond doubt is a must, nothing short, nothing less. Inference from a man's conduct however, bad it may be, cannot and should not lead him to gallows. 32. It is unfortunate that the prosecution could not lead any such evidence so as to implicate the accused beyond doubt. It is also unfortunate that the death of the victim would remain a mystry which might have pricked the conscience of the Sessions Judge. However, painful it might be, I cannot put my approval on the said judgement in the facts and circumstances of the case as discussed hereinbefore. 33. In the result, the appeal succeeds. The judgement and order dated 27th June, 2001 passed by the Sessions Judge, Andaman and Nicobar Islands, Port Blair in Sessions Case No.010 of 1999( State vs. Hari Charan) is quashed and set aside. 34. The accused appellant, Hari Charan is acquitted from the charges leveled against him and be released at once. Appeal succeeds.