JUDGMENT - P.V. HARDAS, J.:---The appellant stands convicted for an offence punishable under section 304(II) of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 2000/- in default simple imprisonment for 2 months. It is this conviction and sentence which is assailed before me in the present appeal. 2. The brief facts necessary for decision of the appeal are set out below :- On 8th October, 1997 at about 8.00 a.m., P.W. 4 Dr. Nutun R. Dev, a doctor attached to the Public Health Centre at Betki examined the injured one Bonny Dias, aged 35 years, resident of St. Estevam, who was brought by his cousin brother to the said Public Health Centre. P.W. 4 Dr. Dev examined the injured, who was conscious, oriented and smelling of alcohol but not under its effect. She found that there was a cut on the right angle of the mouth, which was bleeding profusely. This cut was extended right upto the inner part, that is, inside the oral cavity. He had other injuries also. P.W. 4 Dr. Dev sutured the wound from outside and the injured was referred to the Goa Medical College Hospital, Bambolim, for further treatment. P.W. 4 Dr. Dev issued a certificate at Exhibit 15. The injured said Bonny Dias was then admitted to the Goa Medical College Hospital, Bambolim and was examined by P.W. 5 Dr. Oswald D'Sa on 8th October, 1997 at about 11.00 a.m. According to P.W. 5 Dr. D'Sa, the history of fall was given by the patient. According to P.W. 5 Dr. D'Sa, the relatives of the injured Bonny Dias advanced history of assault some time in the evening at about 6.15 p.m. Further, according to P.W. 5 Dr. D'Sa, the said Bonny Dias did not give him the history of assault when he had examined him at about 5.00 p.m. The certificate at Exhibit 18 was issued by P.W. 5 Dr. D'Sa. According to him, the injured was suffering from jaundice with chlorosis of liver and further, according to him, the injury on the mouth could not be caused by assault with as broken bottle. In the cross-examination P.W. 5 Dr. D'Sa admits that he had examined the injured again between 4.00 to 5.00 p.m. and the injured was still in shock, blood pressure was low, he was restless and he was incoherent. In the cross-examination P.W. 5 Dr. D'Sa admits that he had examined the injured again between 4.00 to 5.00 p.m. and the injured was still in shock, blood pressure was low, he was restless and he was incoherent. 3. P.W. 29 Anandu Naik, who was then the P.S.I. attached to the Ribandar Police Station, received a complaint on 8th October, 1997 at about 4.45 p.m. from one Julian (P.W. 15) complaining of assault on the said Bonny Dias at the hands of the present appellant. The said complaint, Exhibit 40, was presented by P.W. 15 Julian Viegas, who is the brother-in-law of the injured Bonny Dias. On the basis of the said report P.W. 29 P.S.I. Anandu Naik deputed A.S.I. Baburao Sanadi to the Goa Medical College Hospital, Bambolim for recording the statement of Bonny Dias. P.W. 21 A.S.I. Baburao Sanadi recorded the statement of the injured Bonny Dias, which is at Exhibit 49. On the basis of the statement of Bonny Dias, Exhibit 49, P.W. 29 P.S.I. Anandu Naik registered an offence under section 326 of the Indian Penal Code against the present appellant. He then arrested the appellant in the presence of P.W. 11 Newman Gomes and the arrest panchanama is at Exhibit 33. P.W. 29 P.S.I. Anandu Naik then seized M.O. 10 a T-shirt worn by the deceased and M.O. 1 slippers of the deceased from the house of the appellant in the presence of P.W. 1 Pravin Phadte. The said slippers and T-shirt were attached under an attachment panchanama Exhibit 9. T he injured Bonny Dias succumbed to his injuries on the late evening of 8th October, 1997. Meanwhile from the spot of the incident, which was pointed out by the appellant, certain articles came to be seized which included beeds, broken glass pieces, broken bottle, etc. which are M.Os. 2, 3, 7, 8, and 9. The scene of occurrence panchanama was prepared in the presence of P.W. 2 Francis Dias and the same is at Exhibit 11 colly. A sketch of the scene of offence was also drawn and photographs were taken by P.W. 23 Jairam Adconkar. During investigation the clothes of the appellant came to be attached in the presence of P.W. 12 Mariano Fernandes and the attachment panchanama is at Exhibit 35. During the investigation also the inquest panchanama at Exhibit 25 was drawn in the presence of P.W. 7 Agnelo Menezes. During investigation the clothes of the appellant came to be attached in the presence of P.W. 12 Mariano Fernandes and the attachment panchanama is at Exhibit 35. During the investigation also the inquest panchanama at Exhibit 25 was drawn in the presence of P.W. 7 Agnelo Menezes. The Maruti car of the appellant came to be attached vide Exhibit 27 in the presence of P.W. 8 Socorro Rebello. The clothes of the deceased Bonny Dias came to be attached vide attachment panchanama Exhibit 29 in the presence of P.W. 9 Rajkumar Sawantwadkar. Vide attachment panchanama Exhibit 31 the Kinetic Honda Scooter belonging to the appellant and one bucket came to be attached in the presence of P.W. 10 Jose Mascarenhas. The sketch of the scene of offence came to be drawn by P.W. 24 M.K. Adfadkar and the same is at Exhibit 55. The muddemal property was sent for serological examination and the same were examined by P.W. 28 Dr. N.R.K. Rao, who has issued his report at Exhibits 65 and 66 colly. 4. Charge for an offence punishable under section 304(II) of the Indian Penal Code was framed by the learned trial Judge. The appellant abjured his guilt and claimed to be tried. The prosecution examined 29 witnesses in support of its case. The learned trial Judge came to the conclusion that an offence under section 304(II) of the Indian Penal Code had been made out against the appellant and, therefore, convicted him for the aforesaid offence and sentenced him as aforestated. 5. The following circumstances emerge from the evidence against the appellant :---(a) dying declaration of the deceased recorded by P.W. 21 Baburao Sanadi at Exhibit 49; (b) oral dying declaration made by the deceased to P.W. 13 Audhut Naik, P.W. 15 Julian Viegas and P.W. 19 Nancy Viegas; (c) extra-judicial confession made by the appellant to P.W. 13 Audhut Naik and P.W. 15 Julian Viegas and (d) the evidence of P.W. 16 Prashant Bhandari, who is an eye-witness to the incident. 6. I propose to discuss the evidence of the witnesses in respect of the oral dying declaration and the extra-judicial confession. P.W. 15 Julian Viegas is the brother-in-law of the deceased Bonny Dias. He stated in his evidence that on 8th October, 1997 he reached home at about 12 noon and received a message from one Mrs. 6. I propose to discuss the evidence of the witnesses in respect of the oral dying declaration and the extra-judicial confession. P.W. 15 Julian Viegas is the brother-in-law of the deceased Bonny Dias. He stated in his evidence that on 8th October, 1997 he reached home at about 12 noon and received a message from one Mrs. Tereza Gomes that the appellant had informed her that Bonny Dias was admitted in the Goa Medical College Hospital, Bambolim and P.W. 15 Julian was called to the hospital. Mrs. Tereza had also informed P.W. 15 that his wife P.W. 19 Nancy had already gone to the hospital to see the deceased. P.W. 15 Julian then went to the house of his father-in-law, who informed him that the injured Bonny Dias had been assaulted by the accused. P.W. 15 Julian then went to the Goa Medical College Hospital, Bambolim, where deceased Bonny Dias is alleged to have informed him that the appellant had assaulted him by using the Kinetic Scooter. P.W. 15 Julian candidly says that the deceased Bonny could not talk properly. On such disclosure, P.W. 15 Julian questioned the appellant as to why he had assaulted deceased Bonny. To which the appellant is alleged to have replied that the deceased Bonny Dias had stolen Rs. 10,000/- from his house eight days earlier and due to which the appellant had given two to three slaps on his face. P.W. 15 Julian had met the doctor, who had informed him that the condition of Bonny was critical as he had liver haemorrhage. P.W. 15 Julian then went to the Ribandar Police Station where he lodged his report, which is at Exhibit 40. In the cross-examination P.W. 15 Julian admits that his father-in-law P.W. 14 Joao Dias had informed him that some boys from the village had informed him that the deceased was assaulted by the appellant. P.W. 14 Joao Dias does not, in his evidence, state that he had informed such a thing to P.W. 15 Julian. According to P.W. 14 Joao, on 8th October, 1997 at about 7.00 a.m. while he was fishing, he had seen two persons fighting and one person assaulting another person. P.W. 14 Joao, was not in a position to identify as he had not worn his spectacles. According to P.W. 14 Joao, on 8th October, 1997 at about 7.00 a.m. while he was fishing, he had seen two persons fighting and one person assaulting another person. P.W. 14 Joao, was not in a position to identify as he had not worn his spectacles. According to him, his daughter Nancy had telephoned to him and had informed him that deceased Bonny had told her (Nancy) that he had been assaulted by the appellant. P.W. 14 Joao does not make a reference to the facts that P.W. 15 Julian had visited his house and that he had disclosed anything to Julian. The evidence of P.W. 15 Julian to this extent that his father-in-law P.W. 14 Joao had disclosed to him that he had learnt that appellant had assaulted the deceased is, thus, hearsay. In the cross-examination he further admitted that he knew one Prashant Bhandari, who had been examined as P.W. 16, an eye-witness, and that he had met Prashant ten to fifteen days after the death of Bonny Dias. He admitted that when he had gone to the hospital he had noticed that deceased Bonny was being administered intravenous drip and that there was some pipe which was put in the nose of the deceased. In the cross-examination he further admitted that he had stated in the complaint Exhibit 40 that the deceased had told him that the appellant had assaulted him and the deceased had pointed out to the appellant. This has been proved to be an omission. P.W. 15 Julian further admitted in the cross-examination that he had stated in his complaint Exhibit 40 that the deceased had told him that he was assaulted but he could not talk properly due to the stitches near his mouth and some pipes in his nose. On a perusal of Exhibit 40, the complaint lodged by P.W. 15 Julian, it is apparent that the deceased on being questioned had told him that he had been assaulted but could not talk properly. The name of the appellant as an assailant was not given by the deceased. In Exhibit 40 there is a reference to the extra-judicial confession alleged to have been made by the appellant to P.W. 15 Julian that the appellant had assaulted the deceased Bonny as Bonny had stolen Rs. 10,000/-. 7. P.W. 19 Nancy Viegas, is the sister of deceased Bonny and wife of P.W. 15 Julian. In Exhibit 40 there is a reference to the extra-judicial confession alleged to have been made by the appellant to P.W. 15 Julian that the appellant had assaulted the deceased Bonny as Bonny had stolen Rs. 10,000/-. 7. P.W. 19 Nancy Viegas, is the sister of deceased Bonny and wife of P.W. 15 Julian. P.W. 19 Nancy states that on 8th October, 1997 at about 9.30 a.m. she had received a telephone call at her residence from one Beck intimating that her brother Bonny Dias was admitted in the Goa Medical College Hospital. The said Beck had further informed her that he had received the message from the appellant to that effect. P.W. 19 Nancy then went to her father's house and informed him about the admission of Bonny in the Goa Medical College Hospital and then proceeded to the Goa Medical College Hospital, Bambolim. She went near the bed of Bonny, who was admitted in Ward 111, and asked Bonny as to what had happened to him and Bonny is alleged to have informed her that he had been assaulted by the appellant when Bonny had gone for his morning walk between 6.00 to 7.00 a.m. on the Akhada road. The deceased is alleged to have informed P.W. 19 Nancy that the appellant had dashed his Kinetic Scooter from behind and, thereafter had kicked Bonny and then placed a broken bottle in his mouth. The appellant had then taken Bonny to his house, changed his clothes, took him to Betki in his car and, thereafter, to the Goa Medical College Hospital, Bambolim. According to her, by the time Bonny narrated this, her husband P.W. 15 Julian came there alongwith two of his friends and she stated that the deceased Bonny Dias made similar declaration to her husband P.W. 15 Julian. Curiously P.W. 15 Julian makes no reference to P.W. 19 Nancy being in the hospital when the alleged oral dying declaration was made by the injured Bonny Dias. According to this witness (P.W. 19 Nancy), P.W. 15 Julian left for the Police Station to lodge a complaint and, thereafter, the police came and recorded the statement of the deceased Bonny Dias. At 8.15 p.m. or so injured Bonny Dias succumbed to his injuries. In the cross-examination this witness admitted that she had gone to the Goa Medical College on the scooter of one Sham. At 8.15 p.m. or so injured Bonny Dias succumbed to his injuries. In the cross-examination this witness admitted that she had gone to the Goa Medical College on the scooter of one Sham. In the further cross-examination omissions are proved that the appellant had come from behind and gave a dash to the deceased and threw him in the paddy field. Omissions have also been proved to the fact that the appellant had kicked the deceased and then had put a broken bottle to his mouth. The omission is also proved that the appellant had taken the injured Bonny Dias to his house, changed his clothes and had taken him to Betki in his car. The material portions of the alleged oral dying declaration have been proved as omissions. 8. The next witness P.W. 13 Audhut Naik stated that he alongwith one Sham and Julian (P.W. 15) had gone to the Goa Medical College Hospital and had reached there at about 2.10 p.m. He further stated that the deceased Bonny had told Julian that he had been assaulted by the appellant. P.W. 13 Audhut stated that the deceased could not talk properly as he was having stitches near his mouth due to which he could not open his mouth. P.W. 13 Audhut then stated that he asked the accused what was the matter and the appellant is alleged to have told P.W. 13 Audhut that since deceased Bonny had not returned Rs. 10,000/- to the appellant, the appellant had assaulted him. In the cross-examination this witness stated that the deceased Bonny, on his own, on seeing P.W. 13 Audhut had called him and had made the oral dying declaration. This witness admitted that he had gone to the Police Station where the statement of Julian was recorded and then his statement came to be recorded. In the cross-examination the omission is proved regarding the oral dying declaration made by the deceased to this witness. In the cross-examination also this witness admitted that the condition of Bonny Dias was serious and he was suffocating and could hardly talk on account of the sutures on his mouth. 9. Injured Bonny Dias when he was being examined by the doctors, both P.W. 4 Dr. Nutan Dev and P.W. 5 Dr. Oswald D'Sa, had consistently pitched forth the theory of fall. Dr. 9. Injured Bonny Dias when he was being examined by the doctors, both P.W. 4 Dr. Nutan Dev and P.W. 5 Dr. Oswald D'Sa, had consistently pitched forth the theory of fall. Dr. D'Sa stated that when he had examined the injured between 4.00 to 5.00 p.m. the deceased did not talk about sustaining injuries because of assault. In the report Exhibit 40 filed by P.W. 15 Julian, there is no reference to the fact that the deceased had named the appellant as an assailant. P.W. 19 Nancy stated that she had gone to the hospital alongwith one Sham, who was examined as P.W. 27. P.W. 13 Audhut stated that he alongwith Sham and P.W. 15 Julian had gone to the hospital. P.W. 27 Sham, who had accompanied P.W. 19 Nancy to the hospital was waiting there till the arrival of P.W. 15 Julian but he makes no reference to the deceased making an oral dying declaration to P.W. 15 Julian. He also does not refer to the presence of P.W. 13 Audhut. According to this witness, in the cross-examination, after the arrival of P.W. 19 Nancy, the appellant left the ward after about 2 to 5 minutes. P.W. 27 Sham only refers to an alleged oral dying declaration made by the deceased to P.W. 19 Nancy and at about 9.30 a.m. The doctors have consistently stated that the deceased was putting forth the plea of sustaining injuries due to a fall and, according to P.W. 5 Dr. D'Sa in the evening at about 6.15 p.m., for the first time, the relatives of the deceased gave a history of assault. If P.W. 19 Nancy had come to now that her brother Bonny Dias had received injuries at the hands of the appellant at 9.30 a.m. one does not know as to why she continued to remain in the hospital and did not inform the police. P.W. 15 Julian her husband also does not state on his arrival that his wife P.W. 19 Nancy had informed him that the deceased had made an oral dying declaration. This conduct is highly improbable on the part of P.W. 19 Nancy in not informing her husband on his arrival that deceased had made such a statement. P.W. 15 Julian her husband also does not state on his arrival that his wife P.W. 19 Nancy had informed him that the deceased had made an oral dying declaration. This conduct is highly improbable on the part of P.W. 19 Nancy in not informing her husband on his arrival that deceased had made such a statement. In fact P.W. 15 Julian does not refer to the presence of P.W. 13 Audhut or P.W. 19 Nancy in the hospital when the deceased is alleged to have made his oral dying declaration. The entire dying declaration is shrouded in mysterious circumstances and the prosecution had not been able to dispel the cloud of suspicion hovering on the oral dying declaration made by the deceased to P.W. 13 Audhut, P.W. 15 Julian and P.W. 19 Nancy. 10. P.W. 16 Prashant Bhandari is an eye-witness, who has been declared hostile by the prosecution and cross-examined. His statement came to be recorded two to three days after the incident. P.W. 16 Prashant in his evidence stated that on 8th October, 1997 while he was returning on bicycle he saw that the injured Bonny Dias had fallen on the side of the road and was bleeding from the mouth. He said that he saw one glass bottle and there was blood on the said bottle. He also saw one Kinetic Scooter parked nearby. He said that he was told by injured Bonny that he had been assaulted by the appellant. He goes to improve what he had stated earlier that he had seen from a distance of about 150 metres that Bonny Dias was being assaulted by the appellant. He also referred to the fact that the injured Bonny Dias had informed him that the appellant had kicked and had assaulted him on the mouth with the bottle. In the cross-examination this witness admitted that on the next day he had learnt that Bonny Dias had expired and then he met P.W. 15 Julian to whom he informed what he had witnessed on the morning of 8th October, 1997. P.W. 15 Julian on being questioned in the cross-examination admitted that he knew one Prashant Bhandari and had met Prashant about 10 to 15 days after the death of Bonny. P.W. 15 Julian on being questioned in the cross-examination admitted that he knew one Prashant Bhandari and had met Prashant about 10 to 15 days after the death of Bonny. If P.W. 16 Prashant was really an eye-witness and if he has narrated what he had seen to P.W. 15 Julian, then Julian ought to have admitted that Prashant had informed him about the incident. In fact, according to P.W. 15 Julian, he met Prashant after 10 to 15 days and does not state that Prashant had informed him anything. Prashant's statement also came to be recorded 2 to 3 days after the incident Prashant admitted that he had gone on 8th October, 1997 for meeting one Damu working in the Goa State Co-operative Bank as Prashant wanted a loan. This witness is a chance witness and coupled with his conduct in not disclosing the incident to P.W. 15 Julian, I am not inclined to give any weight to the evidence of this witness. This witness was also declared hostile. In such circumstances, according to me he is an unreliable witness. 11. P.W. 21 Baburao Sanadi has recorded the dying declaration at Exhibit 49. This dying declaration Exhibit 49 was recorded by the Police Officer as a statement of a witness. According to him, on 8th October, 1997 he went to the Goa Medical College Hospital, Bambolim for recording the statement of Bonny Dias and on Exhibit 48 obtained as endorsement of the doctor that the patient was fit to give statement and thereafter recorded the dying declaration at Exhibit 49. In the cross-examination this witness gives the following admission :- "The Medical Officer on duty who certified the fitness of Bonny to make his statement was the gent. I am in a position to identify between the lady and the gent doctor. I met the lady doctor in the ward. The said lady doctor was 3-4 cots away from that was deceased Bonny. I had not stated that the lady doctor was present in the ward itself. I am in a position to identify between the lady and the gent doctor. I met the lady doctor in the ward. The said lady doctor was 3-4 cots away from that was deceased Bonny. I had not stated that the lady doctor was present in the ward itself. I had stated that at about 17.10 hours there was no ward doctor in Ward No. 111 and as such after waiting for some time I had gone to casualty and met the lady doctor and that the said lady doctor had certified the fitness of the deceased to give his statement." Thereafter in the cross-examination this witness admitted that he was aware that the doctor treating the patient has to certify the fitness of the patient to make a statement. He further stated that he had asked the nurses on duty about the whereabouts of the doctor on duty and the nurses had sent him to the casualty ward. He said that he made inquiry at the casualty counter to find out who was the doctor on duty in Ward No. 111. He then stated that the doctor read the memo Exhibit 48 and made the signature certifying the fitness of the patient. According to him, after collecting the signature of the doctor in the casualty department he came to the ward and recorded the statement of deceased Bonny Dias. Obtaining the certificate of the Medical Officer regarding the fitness of a person to give a statement is not a mere empty formality. The dying declaration of a deceased is admissible in evidence though the maker thereof is not subjected to cross-examination. Admissibility of a dying declaration is an exception to the hearsay rule. The prosecution is enjoined with heavy responsibility of proving that the dying declaration has been properly recorded. The mental fitness of a person injured has to be established by the prosecution. This the prosecution does on the basis of the endorsement of the Medical Officer. The Medical Officer also is not to mechanically give such a certificate. It is expected from a Medical Officer that, before issuing such a certificate, he examines the injured and after examination if he is satisfied that the injured is in a position to give his statement, he should issue a certificate. In the present case what P.W. 21 Baburao stated is that in the ward no Medical Officer was available. It is expected from a Medical Officer that, before issuing such a certificate, he examines the injured and after examination if he is satisfied that the injured is in a position to give his statement, he should issue a certificate. In the present case what P.W. 21 Baburao stated is that in the ward no Medical Officer was available. He went to the casualty department, which he admitted to be 100 metres away from Ward No. 111, requested the doctor and thereupon the doctor had given an endorsement 'fit to give statement' on Exhibit 48. P.W. 21 Baburao further admitted that this endorsement was given by the Medical Officer in the casualty department itself. Obviously the Medical Officer had not gone and examined injured Bonny Dias to ascertain if he was mentally and physically fit to give such a certificate. The doctor in this case has not been examined by the prosecution. It is not essential for the prosecution to examine the doctor in each and every case but in cases of this nature where there is no clear evidence that the doctor had given the endorsement after examining the patient, it is the bounden duty of the prosecution to examine the Medical Officer to establish the genuineness and the correctness of the endorsement of the medical officer. A dying declaration recorded by Police Officer can certainly be taken into consideration. All that the prosecution has to prove is that the dying declaration has been recorded after observing the basic formalities. If the dying declaration suffers from the vice of the absence of the medical officer before recording the dying declaration, while the dying declaration is recorded and after the conclusion of the recording of the dying declaration, the Court would be slow in accepting the said dying declaration. In the present case, from the evidence of P.W. 21 Baburao, I find that the prosecution has not been able to establish that the deceased was in a fit mental condition to give his statement. Even otherwise, at the relevant time, deceased Bonny had been surrounded by his relatives, who were canvassing to the doctors that the deceased was assaulted by the appellant. In such circumstances, the fact that the deceased had been tutored also cannot be ruled out. 12. Even otherwise, at the relevant time, deceased Bonny had been surrounded by his relatives, who were canvassing to the doctors that the deceased was assaulted by the appellant. In such circumstances, the fact that the deceased had been tutored also cannot be ruled out. 12. The only circumstance now remaining against the appellant is the extra-judicial confession which is alleged to have been made to P.W. 13 Audhut and P.W. 15 Julian. According to P.W. 27 Sham, the appellant had gone out of the ward after P.W. 19 Nancy had entered the ward. P.W. 19 Nancy stated that in her presence the deceased had made an oral dying declaration but does not refer to the fact that the appellant had made an extra-judicial confession to P.W. 15 Julian on being so questioned by Julian. She also does not refer to the fact that any extra-judicial confession had been made by the appellant to P.W. 13 Audhut in her presence. According to her, after her brother deceased Bonny made an oral dying declaration to P.W. 15 Julian, Julian went to lodge a report. Thus, there is no cogent or reliable evidence in respect of the extra-judicial confession. Even otherwise, the extra-judicial confession is primarily a weak piece of evidence, which can only be pressed into aid if there are other circumstances which point to the guilt of the accused. Conviction cannot solely be based on the extra-judicial confession of the accused. 13. In the present case I find that the prosecution has not been able to prove the offence against the appellant beyond reasonable doubt. According to me, the appellant is entitled to the benefit of doubt and deserves to be acquitted. 14. In the result the appeal is allowed. The conviction and sentence passed by the IInd Additional Sessions Judge against the appellant in Sessions Case No. 20 of 1998 is quashed and set aside and the appellant is acquitted of the aforesaid charge. His bail bond shall stand cancelled. Fine, if any paid shall be refunded to the appellant. Appeal allowed. -----