JUDGMENT - VAGYANI B.B., J.:---Heard. 2. Admit. The evidence in this matter being scanty and elaborately read for the purpose of bail application, the matter is taken up for final hearing forthwith. 3. This criminal appeal filed by original accused is directed against the order of conviction and sentence passed by the Additional Sessions Judge, Biloli. 4. In brief, the facts giving rise to the prosecution case are as under: Deceased Balaji was resident of village Mukramabad, Taluqa Mukhed, District Nanded. He was married to Tarabai and Jyoti is his daughter. Tarabai and Jyoti reside in the same village. Deceased Balaji had illicit relations with accused Laxmibai, who owns and runs a hotel at Mukramabad, since last ten years before the incident. 5. The incident occurred on 18-11-1997 at about 6.00 p.m. in the hotel of accused Laxmibai. Balaji had an altercation with Mastan P.W. 2. Because of quarrelsome attitude of deceased Balaji, Laxmibai was annoyed. Therefore, she warned deceased Balaji and asked him to leave the hotel. However, Balaji slept on the cot. It is prosecution case that the accused Laxmibai poured kerosene oil on the person of deceased Balaji and set him on fire. Deceased Balaji made hue and cry for help. Kevalabai P.W. 1 came running and tried to extinguish the fire. 6. It is prosecution case that deceased Balaji went to Police Station at Mukramabad on his own on foot. He was referred to hospital at Degloor. While deceased Balaji was under treatment in the hospital at Degloor, P.S.I., Vitthal Lathe P.W. 4 recorded dying declaration of deceased Balaji (Exhibit 28) on 19-11-1997 at 3.15 p.m. This dying declaration was treated as first information report. On the basis of dying declaration (Exhibit 28), Crime No. 118 of 1997 was registered for the offence punishable under section 307 of Indian Penal Code. 7. Balaji, however, succumbed to the burn injuries on 2-12-1997. After the death of Balaji, crime was registered under section 302 of Indian Penal Code. The Investigating Officer visited the scene of offence. He prepared spot panchanama (Exhibit 22). Nothing incriminating was noticed or found in the hotel of accused Laxmibai. A kerosene container and match box were attached from the hotel of accused Laxmibai. The burnt pieces of clothes of deceased Balaji were attached and the same were sealed in presence of the panchas. 8. He prepared spot panchanama (Exhibit 22). Nothing incriminating was noticed or found in the hotel of accused Laxmibai. A kerosene container and match box were attached from the hotel of accused Laxmibai. The burnt pieces of clothes of deceased Balaji were attached and the same were sealed in presence of the panchas. 8. The inquest panchanama (Exhibit 23) of dead body of Balaji was prepared on 3-12-1997. The dead body was sent to the Medical Officer for the purpose of post-mortem examination. The autopsy surgeon expressed his opinion in the post-mortem report (Exhibit 31) that the cause of death of Balaji was shock due to burns. 9. After conclusion of the investigation, Investigating Officer submitted charge-sheet against the appellant accused in the Court of Judicial Magistrate, First Class, Mukhed. The offence punishable under section 302 of Indian Penal Code is exclusively triable by the Court of Sessions and, therefore, the Judicial Magistrate, First Class, Mukhed, committed the accused to the Additional Sessions Court, at Biloli for trial. 10. The learned Additional Sessions Judge, Biloli framed charge (Exhibit 13) against the accused. The accused pleaded not guilty to the charge and claimed to be tried. The defence of the accused is of total denial. 11. In order to prove the guilt of the accused, prosecution has examined four witnesses namely Kevalbai P.W. 1, Mastan Khan P.W. 2, panch witness Umakant P.W. 3 and Investigating Officer Vitthal Lathe P.W. 4. Out of these four witnesses, Kevalabai P.W. 1 and Mastan P.W. 2 betrayed the prosecution and shifted their loyalty. They did not support the prosecution version. The learned Additional Sessions Judge accepted the dying declaration (Exhibit 28) as truthful and voluntary and passed the order of conviction and consequently sentenced the accused to suffer imprisonment for life. 12. Feeling aggrieved by the order of conviction and sentence passed by the Additional Sessions Judge, Biloli, the original accused has preferred this criminal appeal. 13. The learned Counsel Shri Chatterji read the entire oral evidence, which consists of only five pages. Out of the four witnesses, Kevalabai P.W. 1 and Mastan P.W. 2 have turned hostile and have not supported the prosecution version. The evidence of panch Umakant P.W. 3 is of no help to the prosecution to proved guilt of the accused. The only evidence available for the prosecution is of Investigating Officer Vitthal Lathe P.W. 4. 14. Out of the four witnesses, Kevalabai P.W. 1 and Mastan P.W. 2 have turned hostile and have not supported the prosecution version. The evidence of panch Umakant P.W. 3 is of no help to the prosecution to proved guilt of the accused. The only evidence available for the prosecution is of Investigating Officer Vitthal Lathe P.W. 4. 14. P.S.I. Vitthal Lathe P.W. 4 has testified in his evidence that he recorded dying declaration of Balaji in the hospital at Degloor on 19-11-1997 at 3.15 p.m. The dying declaration (Exhibit 28) is in the narration form. From careful perusal of the dying declaration (Exhibit 28) it is found very artificial. One line to the effect that "-------------" clearly appears to be a subsequent interpolation. Even though the dying declaration was recorded in the hospital at Degloor, there was no attempt on the part of P.S.I. Vitthal Lathe P.W. 4 to ascertain the condition of the patient before recording the dying declaration. There is nothing on record to show that P.S.I. Vitthal Lathe P.W. 4 did make an attempt to contact the Medical Officer to ascertain the physical and mental condition of the patient. The deceased Balaji survived for more than 14 days. But there was no attempt on the part of the Investigating Officer to issue a requisition letter to the Executive Magistrate to record dying declaration of Balaji. It is tried to be shown on the basis of prosecution evidence that deceased Balaji went to Police Station on his own on foot and thereafter he was referred to the hospital. If this was the condition of Balaji, then why his first information report was not recorded at the Police Station when he himself had been to the Police Station. There is nothing on record to show what happened on 18-11-1997. Mastan P.W. 2 has no doubt stated in his evidence that Balaji went to Police Station on his foot. However, there is no corroboration to his version. 15. The learned Additional Sessions Judge has tried to rely upon the oral evidence of P.S.I. Vitthal Lathe P.W. 4 as a corroborative piece of evidence. However, the evidence of P.S.I. Vitthal Lathe P.W. 4 is of no help in this behalf. It has come in the evidence of Vitthal Lathe P.W. 4 that on 19-11-1997 he was posted as a second P.S.I. and attached to Police Station, Mukramabad. However, the evidence of P.S.I. Vitthal Lathe P.W. 4 is of no help in this behalf. It has come in the evidence of Vitthal Lathe P.W. 4 that on 19-11-1997 he was posted as a second P.S.I. and attached to Police Station, Mukramabad. Therefore, from the statement of Vitthal Lathe P.W. 4, it is clearly seen that he was not P.S.O. on 18-11-1997 in the Police Station at Mukramabad. There was no attempt on the part of the Investigating Officer to place on record what happened on 18-11-1997 and who referred Balaji to hospital. The prosecution has not examined the Police Station Officer who was on duty on 18-11-1997 to bring on record whether really Balaji had come to Police Station on his own foot and who referred him to the hospital. There is nothing on record to show as to why the first information report was not recorded on 18-11-1997 when Balaji had been to the Police Station. The learned Additional Sessions Judge, without looking to the evidence of P.S.I. Vitthal Lathe P.W. 4, in casual manner, observed in the judgment that the P.S.I. Lathe P.W. 4 referred Balaji to hospital with Yadi on 18-11-1997. 16. The learned Additional Sessions Judge has relied upon the case of (Laxman v. State of Maharashtra)1, 2003 Bom.C.R.(Cri.) (S.C.)161, and has jumped to the conclusion that the prosecution has proved guilt of the accused beyond reasonable doubt. The Supreme Court, on earlier occasion, had taken a view in the case of (Paparambaka Rosamma v. State of Andhra Pradesh)2, A.I.R. 1999 S.C.W. 3440, that in case of dying declaration, certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement and, therefore, the dying declaration could not have been accepted by the Court to form the sole basis of conviction. The Supreme Court, therefore, held that in the absence of medical certificate to the above effect, it is risky to accept the dying declaration. 17. The Supreme Court, therefore, held that in the absence of medical certificate to the above effect, it is risky to accept the dying declaration. 17. In the case of (Koli Chunilal Savji v. State of Gujrat)3, 1999(9) S.C.C. 562 , the Supreme Court held that if materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased thus recorded cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind to make the statement in question. Since the two aforesaid decisions expressly by two Benches consisting of three learned Judges of the Supreme Court were somewhat contradictory, the matter was referred to the Constitution Bench. 18. In the case of Laxman (cited supra), the Constitution Bench held that absence of certification of doctor as to the fitness of mind of the declarant, would not render the dying declaration not acceptable. It is further held that what essentially required is that the person who records a dying declaration, must be satisfied that the deceased was in a fit state of mind. It is further held that certification by the doctor is a rule of caution and, therefore, voluntary and truthful nature of the declaration can be established otherwise. The Constitution Bench thus overruled the ratio laid down in the case of Paparambaka (cited supra). 19. In the case of Laxman (cited supra) the dying declaration of the deceased was recorded by Judicial Magistrate. The Magistrate in his evidence has stated that he had contacted the patient through the Medical Officer on duty and after putting some questions to the patient to find out whether she was able to make the statement, whether she was set on fire, whether she was conscious and able to make the statement and on being satisfied, he recorded the statement of the deceased. There was a certificate of the doctor which indicated that the patient was conscious. 20. In the instant case, the Investigating Officer Vitthal Lathe P.W. 4 did not at all bother to contact the Medical Officer on duty in order to verify the condition of the patient. It is not his case that he recorded dying declaration (Exhibit 28) in presence of Medical Officer, who orally allowed him to record the dying declaration on assumption that everything was all right. It is not his case that he recorded dying declaration (Exhibit 28) in presence of Medical Officer, who orally allowed him to record the dying declaration on assumption that everything was all right. There is no explanation given by Investigating Officer Vitthal Lathe P.W. 4 as to why he did not contact the Medical Officer on duty for the purpose of ascertaining the condition of the patient. There is nothing on record to show what had happened on 18-11-1997. There is nothing on record to show what happened prior to 3.15 p.m. on 19-11-1997. Everything was suppressed. Moreover, there is nothing on record to show that Vitthal Lathe P.W. 4 first satisfied himself about condition of the patient and after being satisfied about the physical and mental condition of the patient, he recorded the dying declaration (Exhibit 28). The dying declaration (Exhibit 28) does not at all show, even remotely, that such an attempt was made by Investigating Officer Vitthal Lathe P.W. 4. On his own accord, he did not whisper a word about the condition of the patient and about his satisfaction. The Court put a specific question to him and thereafter he simply answered the query to the effect that the patient was speaking and therefore, he recorded the dying declaration. Therefore, the reliance on the case of Laxman (cited supra) by learned Additional Sessions Judge is misconceived. 21. We make it clear that we are not rejecting the dying declaration (Exhibit 28) on account of absence of certification of doctor. The circumstances brought on record create serious doubt about the genuineness of the dying declaration (Exhibit 28). Admittedly, nothing incriminating was found in the hotel of the accused. The deceased was found sitting in front of the house of butcher Maroti. The burnt pieces of clothes were found on the opposite side of hotel of the accused, that too on the public road. There is nothing on record to show that kerosene residues were noticed on the burnt pieces of clothes. Though number of persons had gathered on the spot, there was no attempt on the part of prosecution to examine material witnesses. There was complete suppression of material facts so far as the events occurred on the night of 18-11-1997 and before 3 p.m. on 19-11-1997 are concerned. Though number of persons had gathered on the spot, there was no attempt on the part of prosecution to examine material witnesses. There was complete suppression of material facts so far as the events occurred on the night of 18-11-1997 and before 3 p.m. on 19-11-1997 are concerned. It is not disclosed by Investigating Officer Vitthal Lathe P.W. 4 that who was the P.S.O. on 18-11-1997 when the deceased Balaji had been to the Police Station. There is nothing on record to show what was his first disclosure made to the P.S.O. It is not brought on record as to whether the statement of Balaji was recorded before sending him to the hospital. It is not disclosed who referred Balaji to the hospital. The Medical Officer who admitted Balaji is not examined. The case papers of Balaji were not brought on record in order to show what was the first disclosure made by Balaji to the Medical Officer at the time of admission. The case papers indicating history are also not brought on record. 22. Moreover, the dying declaration (Exhibit 28) appears to have been recorded by Investigating Officer Vitthal Lathe P.W. 4 after arrival of parents and wife of deceased Balaji. The Investigating Officer Vitthal Lathe P.W. 4 was driven to admit in his evidence that parents and wife of deceased Balaji were present in the hospital when he recorded dying declaration (Exhibit 28). Under the circumstances, there is ample scope to draw an inference that the dying declaration (Exhibit 28) is hit by element of tutoring. The dying declaration (Exhibit 28) is shrouded under number of suspicious circumstance. Therefore, the dying declaration (Exhibit 28) cannot be made the sole basis for conviction. 23. In such type of cases, the accused has no power of cross-examination and, therefore, dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court has always to be on guard to see that the statement of the deceased was not result of either tutoring or prompting or a product of imagination. The Court must further decide that deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. The Court has always to be on guard to see that the statement of the deceased was not result of either tutoring or prompting or a product of imagination. The Court must further decide that deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. In case of Koli Chunilal Savji (cited supra), it is held by the Supreme Court that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is further held that before recording the dying declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In the instant case, there is no iota of evidence on record to show that the P.S.I. Vitthal Lathe P.W. 4, before recording dying declaration, satisfied himself that the declarant was in a fit condition to make statement. 24. The Supreme Court in the case of (Girdhar Shankar Tawade v. State of Maharashtra)4, 2003 Bom.C.R.(Cri.) (S.C.)575, has held that the dying declaration shall have to be dealt with due care and upon proper circumspection. The Supreme Court further held that though corroboration thereof is not essential as such, but its introduction is otherwise expedient to strengthen the evidential value of the declaration. Having applied all the guidelines given by the Supreme Court, we are of the opinion that the dying declaration (Exhibit 28) is not truthful. 25. In the result, we allow the criminal appeal. The order of conviction and sentence passed by the Additional Sessions Judge, Biloli is hereby quashed and set aside. The appellant accused is acquitted of the offence punishable under section 302 of Indian Penal Code. The fine amount, if deposited, be refunded to the appellant accused. The appellant accused be released forthwith, if not required in any other matter. Criminal appeal allowed. -----