ALOK KUMAR BASU, J. ( 1 ) NAKUL Das, the sole appellant from jail preferred this appeal challenging the judgment and order of learned Additional Sessions judge, 3rd Court, Alipore passed in connection with S. T. No. 2 (5)/1999 corresponding to S. C. No. 16 (9) 1998 arising out of G. R. Case No. 2670/1996 relating to Chitpore P. S. Case No. 333 dated 10th November, 1996 whereby the appellant was convicted under section 302 cf the I. P. C. for murder of his wife Sabitri Das and was sentenced to suffer imprisonment for life and also to pay a finf of Rs. 10,0007- in default rigorous imprisonment for two years. ( 2 ) ON 10. 11. 1996 at about 6. 40 p. m. Sabitri Das, wife of the appellant was brought to emergency unit of R. G. Kar Hospital by the appellant and his neighbours with hundred per cent burn injuries on her body. The prosecution case is that soon after admission in the emergency unit, Sabitri Das gave a statement to the attending doctor that on 10. 11. 1996 at about 6. 15 p. m. she was assaulted by her husband and thereafter her husband after pouring kerosene oil on her body put fire resulting her injuries. It is the prosecution case that on 10. 11. 1996 Sabitri Das also gave a statement to Sub-Inspector faiyaz Ahmed of Chitpore P. S. in presence of an attending doctor and that statement of Sabitri Das was treated as F. I. R. to start Chitpore P. S. Case No. 333 dated 10. 11. 1996. ( 3 ) IT is the prosecution case that on 11. 11. 1996 Sabitri Das also gave a statement mentioning therein the involvement of the appellant in presence of two other doctors of R. G. Kar Hospital and Sabitri Das ultimately died on 11. 11. 1996. 11. 1996. ( 3 ) IT is the prosecution case that on 11. 11. 1996 Sabitri Das also gave a statement mentioning therein the involvement of the appellant in presence of two other doctors of R. G. Kar Hospital and Sabitri Das ultimately died on 11. 11. 1996. ( 4 ) AFTER starting of the case under section 498a/302 of the I. P. C. Sub-inspector Faiyaz Ahmed started the investigation and in course of investigation he examined the witnesses, collected post-mortem report, bed head tickets of the victim and thereafter submitted chargesheet against the appellant under section 498a/302 of the I. P. C. ( 5 ) DURING trial before the learned Additional Sessions Judge charge was framed under section 302 of the I. P. C. and the extract of the charge was that appellant subjected Sabitri Das to both physical and mental torture and finally poured kerosene oil and set fire on her person and thus, appellant committed murder of the said Sabitri Das. ( 6 ) THE appellant denied the charge and pleaded his innocence and claimed for trial. The prosecution examined in all 15 witnesses during trial. Among the prosecution witnesses, P. Ws. 2, 3 and 5 were the local people and neighbours of the appellant and they were also witnesses to the seizures made by the I. O. in course of investigation. P. W 8 is the mother of victim Sabitri Das while P. W. 12 is the son of the appellant who was present in the room when her mother sustained burn injuries. P. W. 9 is Dr. Sruti Kumar Bera who examined the victim soon after her admission in the hospital and according to prosecution the victim gave her first statement implicating the appellant before this doctor. P. W. 13 is Dr. Sukumar Mondal in whose presence according to prosecution the victim gave a statement recorded by S. I. Faiyaz Ahmed which was treated as F. I. R. and which was considered to be dying declaration of the victim. P. W. 11 Dr. Sushil Ranjan Ghosal and P. W. 14 is Dr. Bhaskar Chakraborty and it is the prosecution case that on 11. 11. 1996 the victim again gave a statement which was recorded by Dr. P. W. 11 Dr. Sushil Ranjan Ghosal and P. W. 14 is Dr. Bhaskar Chakraborty and it is the prosecution case that on 11. 11. 1996 the victim again gave a statement which was recorded by Dr. Bhaskar Chakraborty and in that statement victim narrated the earlier statement with the further addition that the motive behind the act of appellant was that of marrying another woman with whom he was involved. P. W. 15 is S. I. Faiyaz Ahmed who recorded the statement of victim on 10. 11. 1996 and who is the Investigating Officer of the case. ( 7 ) ON perusal of the judgment of the learned Additional Sessions Judge impugned in this appeal it is found that the learned Judge relied not the statement of victim which was recorded by P. W. 15 Faiyaz Ahmed in presence of Dr. Sukumar Mondal and which was treated as F. I. R. of the case. The learned sessions Judge also took into consideration of first statement given by the victim soon after her admission before Dr. Bera and also the statement recorded by dr. Bhaskar Chakraborty on 11. 11. 1996 in presence of senior Dr. Ghosal. The learned Judge also took into consideration the statement of P. W. 8, the mother of the victim who during her examination by the I. O. in course of investigation stated about ill-treatment and assault of the victim in the hands of the appellant and also disclosed that the victim herself stated before her at the hospital that it was the appellant who poured kerosene oil on her body and set fire. This p. W. 8 narrated the same before the Court during her examination. ( 8 ) IT appears from the judgment impugned in this appeal that it was argued on behalf of the appellant that victim herself poured kerosene on her person and set fire and the appellant with the help of his neighbours brought the victim to the R. G Kar Hospital for necessary treatment. It was argued on behalf of the appellant before the learned Trial Judge that as the victim suffered hundred per cent burn injuries and her body was almost charred, it was totally impossible for her to make any statement and the statement recorded by Dr. Bera was totally the result of his imagination and surmise. It was argued on behalf of the appellant before the learned Trial Judge that as the victim suffered hundred per cent burn injuries and her body was almost charred, it was totally impossible for her to make any statement and the statement recorded by Dr. Bera was totally the result of his imagination and surmise. It was also argued on behalf of the appellant that the statement recorded by S. I. Faiyaz Ahmed in presence of Dr. Sukumar Mondal cannot be accepted as dying declaration simply because there was no certificate from the doctor regarding physical capability and mental fitness of the victim who made such statement who admittedly suffered hundred per cent burn injuries. It was further argued on behalf of the appellant that on 11. 11. 1996 during examination of the victim by Dr. Ghosal in presence of Dr. Chakraborty, the victim was totally unconscious and naturally it was not possible for her to make any statement and it is pertinent to mention that victim succumbed to her injuries on 11. 11. 1996. ( 9 ) THE learned Additional Sessions Judge after considering submissions of both the defence as well as the prosecution came to the conclusion that it is the settled position of law that in all cases of dying declaration no certificate regarding physical capability and mental fitness of the victim is required, because the issuance of certificate is a matter of abundant precaution and the court is required to examine whether such statement would satisfy the conscience of the Court and whether it was at all probable to make such statement in the given facts and circumstances. The learned Additional Trial judge, therefore, placed his full reliance on the statement of the victim given before the I. O. which was according to the learned Additional Trial Judge sufficiently corroborated by the earlier statement of the victim given to Dr. Bera and subsequent statement of the victim given to Dr. Ghosal and Dr. Chakraborty on 11. 11. 1996. The learned Additional Sessions Judge also placed strong reliance on the deposition of P. W. 8 Janki Devi, the mother of the victim. ( 10 ) IN course of hearing of this appeal, the learned Advocate appearing for the appellant submits before us that it will appear from the evidence recorded by the learned Trial Judge that on 10. 11. 1996 at about 6. ( 10 ) IN course of hearing of this appeal, the learned Advocate appearing for the appellant submits before us that it will appear from the evidence recorded by the learned Trial Judge that on 10. 11. 1996 at about 6. 15 p. m. the occurrence took place and soon thereafter the appellant with the help of his neighbours who figure as P. Ws. 2, 3 and 5 brought the victim to the emergency unit of R. G. Kar Hospital and it is available from evidence of all the doctors and neighbours that victim suffered hundred per cent burn injuries. ( 11 ) THE learned Advocate for the appellant submits that it was totally impossible for the victim to make any statement soon after her admission and the statement recorded by Dr. Bera was simply the brain child of Dr. Bera and further such statement cannot be accepted at all as no other person was present at the time of making such statement and it is highly improbable that a female patient would be attended by a male doctor without any female nurse, but, Dr. Bera while recording his statement did not mention about presence of any nurse while recording the statement of the victim and this reasonably creates disbelief and doubt in our mind to accept the statement recorded by Dr. Bera as true and correct. ( 12 ) THE learned Advocate for the appellant next submits that I. O. of the case while recording the statement of the victim did not call for any certificate from the attending doctor regarding the physical capability and mental fitness of the victim to make such statement and here also there was no nurse present at the time recording the statement which creates strong suspicion in the mind of any reasonable man. ( 13 ) THE learned Advocate for the appellant contends that although no certificate regarding physical capability and mental fitness of a deponent would be required in each and every case, but the Court must be satisfied about the sanctity and genuineness of the statement and if there is any scope of doubt regarding genuineness of the statement given by a person who is no longer on the earth of living, the Court should be reluctant to sustain an order of conviction relying on such declaration only when there is no other corroborative evidence to implicate the accused person. The learned Advocate contends that on examination of the statement of Janki Devi it will appear that she made a false statement out of revenge and grudge and hence, her statement cannot be considered to be of any value. The learned Advocate, therefore, concludes that in this case practically speaking there is no evidence to implicate the appellant and Sabitri Das committed suicide and the Investigating Officer with the help of doctors converted the case of accident into that of a case of murder, but the prosecution allegation in this regard has not been proved by any evidence worth the name. ( 14 ) THE learned Advocate appearing for the State respondent has supported the judgment of the learned Trial Court contending inter alia that the learned trial Court rightly acted upon the dying declaration of the victim which was duly corroborated by two other statements of the victim given before and recorded by responsible, independent and uninterested persons. The learned advocate submits that the declaration recorded by S. I. Faiyaz Ahmed together with the statements recorded by the doctors both on 10. 11. 1996 and 11. 11. 1996 clearly established the prosecution case against the appellant and that apart mother of the victim during her statement has fully corroborated the prosecution case and hence, there is no scope to raise any question about the order of conviction and sentence. ( 15 ) WE have heard the submissions of both the appellant as well as the state respondent. We have also examined the judgment of the learned Trial court impugned in this appeal along with evidence on record both oral and documentary. ( 16 ) FROM the judgment of the learned Trial Court it is clearly established that the laarned Trial Court passed this order of conviction mainly on the dying declaration of the victim recorded by I. O. of the case and the statement of the victim recorded by Dr. Bera on 10. 11. 1996 and recorded by Dr. Chakraborty in presence of Dr. Ghosal on 11. 11. 1996. The learned Trial Court has also relied heavily on the testimony of P. W. 8 Janki Devi, mother of the victim. Bera on 10. 11. 1996 and recorded by Dr. Chakraborty in presence of Dr. Ghosal on 11. 11. 1996. The learned Trial Court has also relied heavily on the testimony of P. W. 8 Janki Devi, mother of the victim. ( 17 ) HAVING regard to the submissions made on behalf of the rival parties and having regard to the nature of evidence relied on by the learned Trial court, it would be our endeavour to satisfy ourselves in view of the established position of law whether the dying declaration of the victim and for that matter the statements of the victim recorded on 10. 11. 1996 and 11. 11. 1996 respectively can be accepted as genuine and legal document. ( 18 ) LET us first consider the statement of the victim recorded by Dr. Bera soon after admission in the emergency unit. It is pertinent to mention here that the victim suffered hundred per cent burn injuries and this was never disputed by any doctor who attended the victim since her admission till her death and both the post-mortem report as well as inquest report lend support to this observation. It is available from evidence that the appellant along with his neighbours brought the victim in serious condition to the emergency unit of the hospital and it is also available from evidence that there was no other person save and except Dr. Bera and the victim when the victim gave her first statement implicating the appellant. It is really difficult to believe that even there would be no nurse when the patient was female and brought in such a serious condition and the patient would find scope and time to make the statement. ( 19 ) NOW, coming to the dying declaration of the victim which was treated as f. I. R. of the case we find on examination that the I. O. kept a blank space regarding the name of the doctor and on simple examination it appears that name of Dr. Sukumar Mondal was inserted subsequently which gives a reasonable apprehension as to whether the statement was at all recorded on the basis of declaration of the victim herself. Sukumar Mondal was inserted subsequently which gives a reasonable apprehension as to whether the statement was at all recorded on the basis of declaration of the victim herself. It is also important to mention that below the statement, L. T. I, of the victim was taken, but, nowhere it was mentioned by whose pen the L. T. I. was taken and it is also important to state that I. O. before recording the statement did not call for any certificate from the attending doctor as to whether the victim was really capable of making such statement both physically and mentally. ( 20 ) WE are well aware of the latest position of law regarding dying declaration as settled by a Constitution Bench of the Apex Court of the land whereby the apex Court observed that a certificate regarding physical capacity and mental alertness of a victim is only a matter of precaution and non-issuance of such certificate cannot destroy the evidentiary value of a dying declaration which is otherwise acceptable being genuine and true. From this observation of the Apex court it is made clear that without questioning a dying declaration on the point of pure technicalities, the Court must try to examine and ascertain whether in a given fact and circumstances such declaration can be accepted to be genuine and true. ( 21 ) FROM the evidence of the present case we find that the victim suffered hundred per cent burn injuries and also died on the next day i. e. on 11. 11. 1996. It is really astonishing to note that according to prosecution even on 11. 11. 1996 the victim gave a further statement and there was additional statement that for the love affair with another woman the appellant committed the mischief. From the evidence of Dr. Ghosal, a senior doctor we find that on 11. 11. 1996 he for the first time examined the victim personally along with his assistant Dr. Chakraborty and it is the clear statement of Dr. Ghosal before the Court that at the time of his examination the victim was unconscious and it is available from evidence that on that very day the victim succumbed to her injuries. ( 22 ) IN view of the above statement regarding the state of health of the victim by Dr. Ghosal is it really unbelievable that the victim would make a statement again on 11. ( 22 ) IN view of the above statement regarding the state of health of the victim by Dr. Ghosal is it really unbelievable that the victim would make a statement again on 11. 11. 1996 when she was unconscious according to the doctor and on examination of the statement recorded by Dr. Chakraborty it appears that a line was added to the statement by another person with different ink whereby it was stated that as the appellant wanted to marry another woman he put fire on the person of the victim. ( 23 ) ON examination of the first statement recorded by Dr. Bera, the subsequent statement recorded by the I. O. and the final statement recorded by dr. Chakraborty in presence of Dr. Ghosal and after considering the evidence of all the three doctors indicated above and on examination of all those statements separately and together we have no option but to state that Dr. Bera out of his imagination recorded the first statement and this recorded statement of Dr. Bera encouraged the I. O. to manufacture the statement of the victim to start the present case and Dr. Ghosal and Dr. Chakraborty had no scope altogether to take any statement of the victim when according to the deposition of both the doctors the victim was in an unconscious stage. ( 24 ) THUS, having regard to the submissions of both the sides and keeping in mind the legal position settled by the Apex Court as indicated earlier we are of the view that none of the statement of the victim produced by the prosecution and relied on by the Trial Judge to sustain the order of conviction can be accepted either as genuine or legal in the eye of law. ( 25 ) NOW, coming to the deposition of P. W. 8, Janki Devi it would be sufficient to mention that according to her own statement the appellant married the victim fifteen years back and there was no complaint of ill-treatment or assault earlier and there was nobody present in the hospital when the victim alleged to have made a statement before this P. W. implicating the appellant. This P. W. 8, in our considered view is a pure and simply tutored witness and no Court of law should place any reliance on her testimony. This P. W. 8, in our considered view is a pure and simply tutored witness and no Court of law should place any reliance on her testimony. ( 26 ) IT is available from the deposition of P. W. 8, Janki Devi that Sankar das, son of the appellant was present in the room at the time of occurrence and this Sankar Das reported to Janki Devi that appellant poured kerosene oil on the person of her mother and thereafter set fire. The prosecution produced sankar Das before the Trial Judge and the Trial Judge after being satisfied about his capacity to make the statement, recorded his statement and this p. W. has riot supported prosecution case at all. ( 27 ) IT is available from the evidence of the neighbours who figured as P. Ws. 2, 3 and 5 and they never heard anything about torture or assault meted to the victim by the appellant. It is important to mention in this context that the I. O. started the case under section 498a also and he submitted his chargesheet accordingly, but from the evidence on record we do not find anything to lend support to the allegation on torture or assault. ( 28 ) ANOTHER significant aspect of the matter must be mentioned in order to appreciate the veracity of the prosecution case regarding motive of the alleged murder. Had it been a pure case of torture and assault without any claim of dowry, there could not have been any motive of murder and to fill up this lacuna, a line was added in the third reported statement of the victim and we have already stated that it has not been made clear who inserted this additional line because this additional line was distinctly different from the main body of the statement. ( 29 ) THUS, after giving our proper consideration to the evidence on record and after considering the submissions of both the sides, we are of the view that it is really doubtful whether the victim at all gave any statement implicating the appellant, rather, from the evidence and other attending circumstances we are constrained to hold that the statement alleged to have been made by the victim was a manufactured and concocted statement which had not been corroborated any other evidence and in view of this fact and circumstances, the benefit of doubt must go to the present appellant and he must be acquitted of the charge of murder framed against him by the learned Trial Judge. ( 30 ) THE appeal is accordingly allowed on contest. The judgment and order of the learned Trial Judge convicting the appellant under section 302 of the I. P. C. and sentencing him to suffer rigorous imprisonment for life and to pay a fine of rs. 10,000/- in default to suffer rigorous imprisonment for another two years is hereby set aside. ( 31 ) THE appellant be released at once from jail in connection with this case if not wanted in any other case. Inform the jail authority accordingly at once. Send a copy of this judgment along with L. C. R. to the 3rd Court of the learned Additional Sessions Judge immediately for information and necessary noting. Appeal allowed.