JUDGMENT - BRAHME P.S., J.: - This is an appeal preferred by the appellants-original accused challenging the judgment and order dated 6-9-1999 passed by the IInd Additional Sessions Judge, Achalpur convicting the appellants for the offences under sections 498-A and 302 r/w 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/- each in default to undergo further rigorous imprisonment for two months and to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo further rigorous imprisonment for one year each respectively. 2. As per the prosecution case, appellant No. 1 was husband and appellant No. 2 was mother-in law while appellant No. 3 was sister-in-law of victim Raziyabi. Appellants were ill-treating the victim from the time of her marriage on account of non-fulfilment of their demand of money and other articles and they also used to beat her. On the day of occurrence, there had been quarrel in the house and in that, appellant No. 1 beat the victim and also poured kerosene on her person and appellant No. 2 set her on fire on lighting with a lighted match stick and at that time, appellant No. 3 pushed her inside the house and chained the door of the house from outside. On hearing cries of the deceased, persons in the locality collected and the victim, who had sustained burn injuries, was taken to hospital at Pathrot and from there she was removed to Irwin Hospital, Amravati where she was admitted. The Medical Officer gave information to the Police Chowki, which was situated in the premises of the hospital, informing that the victim, having sustained burn injuries, was admitted in the hospital for treatment. The police who was attending the Police Chowki arranged to record statement of the victim and then, at City Kotwali, Police Station, Amravati, offence was registered vide crime No. 0 of 1992, under sections 302 r/w 34 of the Indian Penal Code. In the meantime, information about the incident was received by police. They carried out investigation after receiving the papers from City Kotwali, Police Station, Amravati. 3. During the course of investigation, statements of witnesses were reported. The victim Raziyabi, while taking treatment in the hospital, succumbed to the injuries of burns on 3-6-1992. In the meantime, information about the incident was received by police. They carried out investigation after receiving the papers from City Kotwali, Police Station, Amravati. 3. During the course of investigation, statements of witnesses were reported. The victim Raziyabi, while taking treatment in the hospital, succumbed to the injuries of burns on 3-6-1992. The police prepared inquest panchanama and sent the dead body for post mortem. The articles were seized and sent to the Chemical Analyser for examination. After completing investigation, charge-sheet came to be filed in the Court of the Sessions, Achalpur for trial. 4. Before the trial Court, after the charge was framed and when the appellants pleaded not guilty to the charge, prosecution examined in all nine witnesses including Shabanabano Shabbirsa (P.W. 1), who claims to be an eye-witness to the incident. Hanifabi Shabbir Sheikh (P.W. 2), who was sister of the deceased, Rahemasa Mohammadsha (P.W. 5), who is brother of the deceased, Dayaram Sukhdeo Khandare (P.W. 6), who was Police Head Constable attached to the City Kotwali, Police Station, Amravati and who recorded the dying declaration (Exh. 46) of the deceased and Bhaskar Vitthalrao Tawar (P.W. 9), who was P.S.I. attached to Police Station, Pathrot, who conducted investigation in the matter. It is also a matter of record that the trial Court, accepting the dying declaration (Exh. 46), as also the evidence of witnesses, found that the appellants committed murder of victim by setting her on fire and she was also subjected to cruelty as contemplated under section 498-A of the Indian Penal Code and consequently, the appellants were convicted and sentenced as stated in the earlier part of the judgment. This judgment of conviction and sentence is under challenge in this appeal. 5. We have heard Mr. Daga, the learned Counsel for the appellants. We have also heard Mrs. Jog, the learned A.P.P. for the respondent-State. With the assistance of the learned Counsel for the parties, we have gone through the evidence of wintesses. It is not disputed that the victim sustained burns on the day of occurrence and immediately, she was admitted to the hospital for treatment and that, while she was undergoing treatment, she died on 3-6-1992. Defence Counsel has admitted the post mortem report (Exh. 31), according to which death of the victim was due to shock of burn injuries. As per the report (Exh. 31), as stated in Col. Defence Counsel has admitted the post mortem report (Exh. 31), according to which death of the victim was due to shock of burn injuries. As per the report (Exh. 31), as stated in Col. No. 17, the victim had sustained burns to the extent of 88%. 6. As per the prosecution case, the victim died homicidal death on account of the appellants having set her on fire and burning her on pouring kerosene on her person. To substantiate this allegation, reliance is placed on the evidence of Shabanabano (P.W. 1). Admittedly, she was a minor girl aged about 9 years and the victim was her maternal aunt. In her evidence , she claimed that, on the day of incident, appellant No. 2 took the deceased in front of room and appellant No. 1 poured kerosene on her person and she was set on fire by appellant No. 2 with a lighted match stick and appellant No. 3 pushed her inside the house and chained her from outside. 7. Prosection also relied on the evidence of witness Rahemasha (P.W. 5), who is brother of the deceased. In his evidence, he claimed that when he went to Irwin hospital, where his sister was admitted, she narrated the incident to him stating that accused No. 1 poured kerosene on her person, accused No. 2 set her on fire with a lighted match stick and accused No. 3 pushed her inside the house and tried to put the chain to the door from outside. This disclosure by the victim to witness Rahemasha was relied upon by prosecution as oral dying declaration made by the deceased. 8. The dying declaration (Exh. 46) recorded by witness Dayaram, in which the victim has stated that her husband, after having sat on her breast, poured kerosene from the can on her person and her mother-in-law set her on fire with a lighted match stick and she sustained burns and then her sister-in -law i.e. appellant No. 3 Meharunisha @ Putali had closed the door. 9. Mr. Daga, the learned Counsel for the appellants, first pointed out from the evidence of witness Shabanabano that her claim to have witnessed the incident is totally falsified. After carefully considering her entire evidence including cross-examination, it is found that there are candid improvements made by her on material particulars. 9. Mr. Daga, the learned Counsel for the appellants, first pointed out from the evidence of witness Shabanabano that her claim to have witnessed the incident is totally falsified. After carefully considering her entire evidence including cross-examination, it is found that there are candid improvements made by her on material particulars. She has admitted in clear terms that whatever she has stated in her examination-in-chief does not find place in her statement recorded by police. Infact, in her evidence, there are contradictions on material particulars. Her statement has been recorded by P.S.I. Bhaskar Tawar (P.W. 9) on 17-6-1992. The witness, however, denied the fact that police recorded her statement after about a month of the incident. As against that, she claimed that her statement was recorded after two or three days after the incident. Taking into consideration the fact that the witness was, admittedly, nine years old at the time of the incident and having regard to the contradictions and omissions in her evidence, her evidence does not inspire confidence and the trial Court has erred in placing reliance on her evidence. 10. As regards the oral dying declaration, as has been stated by witness Rahemasha (P.W. 5), the brother of deceased, the learned Counsel for the appellants submitted that his evidence does not inspire confidence. After learnt from the victim about the incident, he did not go to lodge report. His statement was recorded three days after the incident. It is also significant to note that the deceased died about a month after the day incident. She was all the while in the hospital. It is also significant to note that, on the day when she was admitted in hospital, Police H.C. Dayaram Khandare recorded her statement (Exh. 46) which is relied upon by the prosecution as dying declaration. It is in this background that when, admittedly, witness Rahemasha (P.W. 5) visited the hospital, when the statement of the victim was recorded by police H.C. Dayaram, the claim of witness Rahemasha as to disclosure to him by the victim does not stand to reasons. It does not inspire confidence. 11. The trial Court has relied upon the dying declaration (Exh. 46) recorded by police Head Constable Dayaram Khandare (P.W. 6). Mr. Daga, the learned Counsel for the appellants, has seriously criticized the evidence of witness Dayaram Khandare, so also the dying declaration (Exh. 46). It does not inspire confidence. 11. The trial Court has relied upon the dying declaration (Exh. 46) recorded by police Head Constable Dayaram Khandare (P.W. 6). Mr. Daga, the learned Counsel for the appellants, has seriously criticized the evidence of witness Dayaram Khandare, so also the dying declaration (Exh. 46). It is submitted that there are inherent infirmities in recording the dying declaration (Exh. 46). The Medical Officer, who is alleged to have made endorsement on the dying declaration (Exh. 46) regarding fitness of the deceased to make statement, is not examined by the prosecution. No efforts were made to get dying declaration recorded by the special Executive Magistrate, though the deceased was alive for almost 18 days since after her admission in the hospital on 14-5-1992. The learned Counsel further pointed out that, during the span of 18 days, multiple dying declarations have been recorded by the Police Head Constable. Exh. 22 is the dying declaration recorded on 14-5-1992. Exh. 42 is the dying declaration recorded by police H.C. Dayaram (P.W. 6) on 16-5-1992 in Irwin Hospital. It is surprising to note that there is nothing in the evidence of witness Dayaram to show that before recording this dying declaration the victim was examined by the Medical Officer to ascertain that she was fit to make statement and certificate was issued by him accordingly. It is true that witness Dayaram has stated in his evidence that on the every form of memo Doctor issued certificate that the patient was in conscious state of mind to make statement. It is pertinent to note that though the dying declaration (Exh. 42) recorded by police H.C. Dayaram is on the form of memo to the Medical Officer, that bears no endorsement as required. 12. The Investigating Officer P.S.I. Bhaskar Tawar (P.W. 9), who was then attached to the Police Station, Pathrot, on 16-5-1992 received the case diary and concerned papers and registered the offence. He admitted that he did not record the statement of deceased during the period from 16-5-1992 to 3-6-1992. He further admitted that he did not make any efforts to record the statement of deceased before her death from 16-5-1992 to 3-6-1992 from any Special Executive Magistrate or Judicial Magistrate. He was aware of the fact that three dying declarations Exhs. He admitted that he did not record the statement of deceased during the period from 16-5-1992 to 3-6-1992. He further admitted that he did not make any efforts to record the statement of deceased before her death from 16-5-1992 to 3-6-1992 from any Special Executive Magistrate or Judicial Magistrate. He was aware of the fact that three dying declarations Exhs. 22, 42 and 46 have been recorded by the Police Head Constable without their being any independent certificate by the Medical Officer about the physical and mental fitness of the victim to make statement. The trial Court has dealt with this serious lapse on the part of the Investigating Officer as well as Police H.C. Dayaram who recorded the dying declarations. In para 17 of the judgment, the trial Court has said, "No doubt, in view of the exception under sub-section (2) of section 162 of the Cri.P.C. the prosecution has to explain and satisfy the Court as to why it was not recorded by the Magistrate or a doctor and that this witness does not explain as to why he recorded the statement and how the Magistrate or the doctor could not be available to record the same. "The trial Court was of the view that a Senior Officer of city Kotwali, Police Station, Amravati should not have handed over the investigation to such irresponsible Police Officer who knows who should record the statement, but knowingly he recorded the statement himself just to cause damage to the prosection case. However, the trial Court, accepted the dying declaration as, according to it, the statement recorded (Exh. 46) appears to be trustworthy and convincing as it was fully consistent with the prosecution story and also to the testimonies of the eye-witnesses. We do not think that the approach of the trial Court in accepting the dying declaration (Exh. 46) as worthy of credit is correct. We are of the view that absence of evidence of the Medical Officer, who is alleged to have examined the victim before recording her statement, brings out inherent infirmity and creates serious doubt about the endorsement on the dying declaration (Exh. 46). And for that reason, testimony of P.W. Dayaram on Exh. 46 falls short for inspiring confidence. 13. We have perused the dying declaration (Exh. 46) to ascertain genuineness of the endorsement made on it. 46). And for that reason, testimony of P.W. Dayaram on Exh. 46 falls short for inspiring confidence. 13. We have perused the dying declaration (Exh. 46) to ascertain genuineness of the endorsement made on it. A bare look would show that the endorsement is added subsequently by inserting sentence in Exh. 46. That insertion appears to be made subsequently as the writing is entirely different than the rest of writing of the declaration (Exh. 46). It is also very striking that the endorsement does not bear signature of the Medical Officer, though witness Dayaram, who recorded the dying declaration, has specifically stated in his evidence that the Medical Officer has issued certificate on the memo regarding fitness of the patient to make a statement. In our opinion, in order to substantiate this, it was incumbent on the part of prosecution to examine the Medical Officer who made alleged endorsement on the dying declaration (Exh. 46). Besides this, nothing is brought on record through the evidence of Police Head Constable Dayaram that the dying declaration (Exh. 46) was recorded in presence of Medical Officer and that while the dying declaration was recorded, the Medical Officer certified that the patient was physically and mentally fit. In this background, the so-called endorsement on Exh. 46 which does not bear signature of the Medical Officer makes the matter suspicious. This itself is sufficient to doubt credibility of the dying declaration (Exh. 46). 14. As regards the dying declaration (Exh. 42), though it is said to have been recorded by Police H.C. Dayaram, no reliance could be placed on it as witness Dayaram, in his evidence before the Court, has not uttered even a word about having recorded the same. All that he stated in his evidence was about recording of dying declaration (Exh. 46). That apart, perusal of dying declaration (Exh. 42) would show that there is no endorsement by the Medical Officer on it showing that the victim was examined by him before and after her statement was recorded and she was found to be fit to make the statement. It is needless to say that absence of endorsement by the Medical Officer on the dying declaration (Exh. 42) is a glaring infirmity which goes to the root of genuineness of the dying declaration (Exh. 42). The trial Court has simply ignored the dying declaration (Exh. 42). 15. It is needless to say that absence of endorsement by the Medical Officer on the dying declaration (Exh. 42) is a glaring infirmity which goes to the root of genuineness of the dying declaration (Exh. 42). The trial Court has simply ignored the dying declaration (Exh. 42). 15. In the background of these factual inherent deficiencies, glaring as they are, in dying declarations (Exhs. 42 and 46), absence of recording by the Executive Magistrate, though the victim was very much in the hospital for almost 18 days, directly impairs credibility of the dying declaration (Exh. 46). Therefore, that cannot lend assurance to the evidence of witness Shabanabano (P.W. 1), who claims to have witnessed the incident. 16. We have already referred to the evidence of witness Shabanabano (P.W. 1), wherein she has given eye-witness account of the incident which she claimed to have witnessed. But, we have pointed out material omissions which she has admitted in her cross-examination. Apart from that, through the evidence of the Investigating Officer P.S.I. Bhaskar Tawar (P.W. 9), those omissions have been duly proved. Admittedly, her statement was recorded on 17-6-1992 by the Investigating Officer. The witness has, however, audacity to deny that fact and she maintained that her statement was recorded after two or three days after the incident. This, in our opinion, affects the credibility of witness and that is much more so when the witness Shabanabano was a child witness. Having regard to the improvements made by the witness, even though her statement was recorded about a month after the occurrence, it is very difficult to place implicit reliance on her evidence unless there is some corroboration by other evidence. It is not disputed that, in the case before hand, there is no independent evidence on the incident that took place indicating involvement of the appellants. We have already observed that the dying declaration (Exh. 46) being not found to be acceptable and credible, it cannot be used as corroboration to the evidence of witness Shabana. The claim of witness Rahemasha (Exh. 5) regarding oral dying declaration, alleged to have made by the victim in the hospital, on the day when she was admitted in the hospital, is found to be not worthy of credit nor the trial Court has placed any reliance on it. When the evidence of witness Shabanabano (P.W. 1) and the dying declaration (Exh. 5) regarding oral dying declaration, alleged to have made by the victim in the hospital, on the day when she was admitted in the hospital, is found to be not worthy of credit nor the trial Court has placed any reliance on it. When the evidence of witness Shabanabano (P.W. 1) and the dying declaration (Exh. 46) cannot be placed reliance on, prosecution has utterly failed to establish that the appellants were accountable for death of the victim. Therefore, the trial Court has committing an error in holding the appellants guilty for the offence under sections 302 of the Indian Penal Code for committing murder of the victim. 17. Incidentally, we also take into consideration the dying declaration (Exh. 22) which is, admittedly, recorded by the Police Head Constable on 14-5-1992 i.e. on the day on which the victim was admitted in Irwin hospital at Amravati. Infact, the dying declaration (Exh. 22) was the first in point of time. This is in the sense that the dying declarations (Exh. 42 and 46) have been recorded on 16-5-1992. We do not find any reason to doubt genuineness of this dying declaration (Exh. 22). Prosecution has also led this dying declaration (Exh. 22) in evidence. It is significant to note that in this dying declaration the victim has not attributed any blame to any of the accused for burning her. All that is stated in this dying declaration (Exh. 22) is that while preparing food in the house she caught fire and got burnt. What is significant is the fact that, admittedly, it was appellant No. 1 who brought the victim to the hospital after the occurrence. It was the appellant who sent message to the relatives of the victim about occurrence through one Kismatkhan Hamidkhan who has been examined as defence witness at the trial. Therefore, there appears no hurdle in placing reliance on the dying declaration (Exh. 22) which was, admittedly, first in point of time and nothing has been elicited by prosecution through the evidence that the statement was given by the victim under the influence of accused No. 1. In our opinion, having regard to authenticity of statement in dying declaration (Exh. 22), credibility of the subsequently recorded dying declaration (Exh. 46) is doubted and consequently, that supports our finding of holding the appellants not guilty for the offence under sections 302 of the Indian Penal Code. 18. In our opinion, having regard to authenticity of statement in dying declaration (Exh. 22), credibility of the subsequently recorded dying declaration (Exh. 46) is doubted and consequently, that supports our finding of holding the appellants not guilty for the offence under sections 302 of the Indian Penal Code. 18. So far as involvement of the appellants for the offence under sections 498-A of the Indian Penal Code is concerned, for the same reasons, the evidence of witness Shabanabano (P.W. 1) is not sufficient, though she has stated in her evidence about physical and mental ill-treatment the victim was meted out prior to the date of occurrence. We have already pointed out that, in respect of those instances, the witness has made improvements in her evidence before the Court inasmuch as, though her statement was recorded after about a month by the Investigating Officer, she did not state anything about torture and cruelty at the hands of the appellants. It is true that witness Hanifabee (P.W. 2), sister of the deceased, has stated in her evidence that the victim when met her in the marriage about two days before the date of incident, told her that she did not want to go to the house of her husband as there was beating and ill-treatment in her cross-examination. Her evidence has been shattered. In her cross-examination, she stated that she cannot assign any reason as to why in her statement it is not recorded that deceased Raziya told her in the function of the marriage that she has ill-treatment from the accused persons and that, she did not intend to go to her husbands house. It is surprising to note that witness Rahemasha (P.W. 5), brother of the victim, has not uttered even a word in his evidence about the ill-treatment alleged to have been given to the victim prior to the occurrence. In the result, except vague statement by witness Shabanabano (P.W. 1), there is no clinching evidence that the victim was subjected to physical and mental cruelty by the appellants. Therefore, prosecution has failed to establish that the appellants committed the offence under section 498-A of the Indian Penal Code. The trial Court has, therefore, committed an error in convicting the appellants for the said offence. Conviction of the appellants for the offences under sections 302 and 498-A of the Indian Penal Code cannot sustain. 19. Therefore, prosecution has failed to establish that the appellants committed the offence under section 498-A of the Indian Penal Code. The trial Court has, therefore, committed an error in convicting the appellants for the said offence. Conviction of the appellants for the offences under sections 302 and 498-A of the Indian Penal Code cannot sustain. 19. Before parting with the judgment, we have taken serious note of utter callousness on the part of the Investigating Officer P.S.I. Bhaskar Tawar (P.W. 9), who was then attached to Police Station, Pathrot. We have found that, inspite of having received the papers of investigation on 16-5-1992 from City Kotwali, Police Station, Amravati and deceased survived till 3rd June, 1992 and was very much in the Irwin Hospital, Amravati, he did not bother to get recorded the statement of victim by the Special Executive Magistrate or the Doctor. No efforts have been made by him to get the dying declaration recorded. That is serious lapse on the part of the Investigating Officer when he knew that no such dying declaration was recorded either by the Medical Officer or Special Executive Magistrate. That is much more so when he knew that earlier dying declarations were recorded by the Police Head Constable, he did not bother to get it ascertained from the Medical Officer about physical and mental fitness of the victim to make the statement. It is needless to say that, in such cases of death by burning, dying declaration of the victim is a material piece of evidence which the Investigating Officer is bound to collect. The result of serious lapse and callousness on the part of the Investigating Officer has resulted into miscarriage of justice as the prosecution has been deprived of getting valuable piece of evidence in the form of dying declaration of the victim in a case which involves serious offence. It is, therefore, desired that the Investigating Officer should be reprimanded for the lapses committed by him so as to prevent further miscarriage of justice on account of utter callousness on his part in investigating the criminal case involving serious offence. It is, therefore, desired that the Investigating Officer should be reprimanded for the lapses committed by him so as to prevent further miscarriage of justice on account of utter callousness on his part in investigating the criminal case involving serious offence. We, therefore, direct that a copy of this judgment be sent to the Police Commissioners, Nagpur and Amravati so as to give it to the concerned Investigating Officer P.S.I. Bhaskar Vitthalrao Tawar with a warning that he should be vigilant in performing his duties, particularly when investigating the crimes and should not commit such lapses, illegalities and irregularities in future and he be made to understand that any lapses or irregularities committed by him in future would be viewed seriously by his superiors. Hence, we pass the following order incorporating the observations made above. ORDER The appeal is allowed. Conviction of the appellants-accused under sections 498-A and 302 r/w 34 of the Indian Penal Code is set aside. They are acquitted of the charges levelled and framed against them. Appellant Nos. 2 and 3 are already on bail. Their bail bonds shall stand cancelled. Accused-appellant No. 1 be set as liberty if not required in any other matter. If the accused appellants have deposited any fine amount, the same shall be refunded to them. A copy of this order be sent to the Police Commissioners, Nagpur and Amravati as per the observations made in para 19 of this judgment. Appeal allowed. -----