JUDGMENT DSREF No.3 of 2006 has been registered on the reference under Section 366, Cr.P.C. from Additional Sessions Judge, Mal¬kangiri to confirm the death sentence passed in Criminal Trial No.29 of 2005. The convict while in jail preferred JCRLA No.1 of 2007. He also filed CRLA No.8 of 2007. So both the appeals and the DSREF are heard analogously and disposed of by this common judgment. 2. Prosecution case stated in nub is that accused Subrat Bala got married to Malati in the year 2004 in accordance with their Caste custom. At the time of marriage the accused and his family members demanded a sum of Rs.10,000/- towards dowry, but due to financial crunch the father of the bride gave Rs.8000/- and assured to pay the balance amount later. The couple led a happy conjugal life for about two moths and thereafter skirmishes erupted between them because of non-payment of the balance Rs.2,000/- towards dowry. The accused and his family members including accused Sankar Mandal (since acquitted), tortured the bride both physically and mentally in many a way. Ultimately on 20.4.2004 at about 8.00 A.M. while the deceased was asleep in her bed room the convict spreading kerosene oil over her, set her on fire. Thereafter she was removed to Kalimela U.G.P.H.C. While undergoing treatment she declared that on 20.8.2004 at about 8.00 A.M. accused sprinkled kerosene over her and set her on fire. That statement was reduced into writing by the attending physi¬cian Dr. Santosh Kumar Patro. As the condition of the injured was very precarious, on the suggestion of the doctor, she was removed to the District Headquarters Hospital, Malkangiri where she succumbed to the injuries on the same date at 11.00 A.M. On 24.8.2004 father of the deceased got the F.I.R. scribed by one Chaitanya Choudhury of Kalimela and lodged it before the O.I.C. of Kalimela P.S. As the allegations contained in the F.I.R. re¬vealed a cognizable case, the O.I.C. registered it under Sections 498-A/302/304-B/34 of I.P.C. read with Section 4 of D.P. Act and took up investigation. In course of investigation he visited the spot, held inquest over the dead body, sent it to the morgue for autopsy, examined the witnesses, arrested the accused persons, forwarded them to Court and after conclusion of investigation, submitted Charge Sheet under Sections 498-A/302/304-B/34 of I.P.C. read with Section 4 of D.P. Act against them. 3. In course of investigation he visited the spot, held inquest over the dead body, sent it to the morgue for autopsy, examined the witnesses, arrested the accused persons, forwarded them to Court and after conclusion of investigation, submitted Charge Sheet under Sections 498-A/302/304-B/34 of I.P.C. read with Section 4 of D.P. Act against them. 3. In order to prove its case prosecution examined 12 witnesses in all, as against none by the defence. On assessing the evidence on record the trial Court while acquitting the co-accused, convicted the accused-appellant under Sections 498-A/302/304-B of I.P.C. read with Section 4 of D.P. Act and after hearing on the sentence, imposed death penalty under Section 302 of I.P.C. against the convict and did not pass any separate sentence under Sections 498-A and 304-B of I.P.C. and Section 4 of D.P. Act. 4. Admittedly there is no eye witness to the occurrence. The trial Court passed the order of conviction mainly relying on the dying declaration of the deceased. No doubt conviction can be made basing on the dying declaration of the deceased,but before recording the order of conviction the Court must satisfy itself that the dying declaration was voluntary, corroborative to other facts and circumstances and it is safe to act upon. In the case at hand, as found from the case record, Dr. Patro recorded the dying declaration of the deceased. P.W.4, father of the de¬ceased, P.W.5, her brother, P.W.7, her cousin and P.W.6 have said to be present by the time deceased made the dying declaration. On perusal of the evidence of P.W.5, it is seen that while the dying declaration was recorded by the doctor, he himself and another were only present. If this part of his evidence is taken to be true, then out of P.Ws.4, 6 and 7 only one was present by the time the deceased made dying declaration. It is the salutary principle of Criminal Jurisprudence that the best available evidence should be accepted. In the present case, as stated earlier P.W.4 is the father, P.W.5 is the brother and P.W.7 is the cousin of the deceased. Even though there is nothing to show that P.W.6 was related to the deceased, it transpires from his evidence that he is her co-villager. So all these witnesses are likely to be interested for success of the prosecution. Even though there is nothing to show that P.W.6 was related to the deceased, it transpires from his evidence that he is her co-villager. So all these witnesses are likely to be interested for success of the prosecution. The doctor, a Government official who recorded the dying declaration of the deceased is apparently an independent witness to give evidence on the dying declaration, but his examination was with¬held. Learned Public Prosecutor who conducted the case, did not take care to examine such a vital witness. The trial Court also did not take notice of this serious lapse. Furthermore, the I.O. was also not examined in the case at hand. It appears from the deposition of P.Ws. 3 and 4 that their statements recorded under Section 161 Cr.P.C. were confronted to them. Non-examination of the I.O. has resulted in non-confrontation of such statement to the I.O. for which accused/appellant claims for benefit accord¬ingly. 5. Another illegality as revealed from record is that examination of the co-accused under Section 313, Cr.P.C. was dispensed with. It appears that learned Additional Sessions Judge lost sight of fundamental as to whether procedure is to be fol¬lowed in trial before a Court of session (See chapter XVIII of the Cr.P.C.) Section 232, Cr.P.C. provides that “If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.” It is noteworthy that mandate of procedural law is to exam¬ine the accused even when the trial Court thinks of granting acquittal at pre-defence evidence stage. Necessity and importance of that provision is readable from Section 313, Cr.P.C. which is quoted below : “313. Power to examine the accused- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case: Provided that in a summon-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with the examination under clause(b). (2) No oath shall be administered to the accused when he is examined under Sub-section (1) (3) The accused shall not render himself liable to punish¬ment by refusing to answer such question, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.” Sub-section 1(b) of Section 313, Cr.P.C. is applicable to cases of examination of accused after closure of prosecution evidence. Proviso to that Sub-section only enumerates the circumstances in which examination of accused can be dispensed with and not otherwise. Sub-section (4) provides the manner in which such statement can be utilized in furtherance of justice. 6. For the lacunae noticed, we find that the trial Court has not proceeded with the case in accordance with law. An order of conviction recorded by him is of no use when he committed manifest errors and illegalities in the process of conducting the trial. As argued by learned Standing Counsel, the case deserves to be remanded for the sake of imparting justice. Learned counsel for the accused-appellant opposes to the prayer for remand. In¬deed, an order of remand, be it in civil or criminal case, is a harsh remedy against the beneficiary of the wrong order. Be that as it may, the Court is to see that justice is done to both the parties in a criminal case. Obviously one party is the prosecution and the other is the accused. The victim of the occurrence does not have the authority to conduct the case excluding the State and the prosecuting agency. Under such circumstance, when the mediator i.e. the law enforcing agency and the prosecution have committed laches for no good reason, the victim of the occurrence should not be allowed to suffer Irrespective of the ultimate result of the case after a proper and full-dressed trial, both the parties are entitled to a fair deal. Taking that view of the matter, while setting aside the order of conviction, we remand the case for fresh disposal in accordance with law. We make it clear that evidence, which has already been on record, may not be repeated. Taking that view of the matter, while setting aside the order of conviction, we remand the case for fresh disposal in accordance with law. We make it clear that evidence, which has already been on record, may not be repeated. Evidence oral or documentary which are required to be tendered by the prosecution be permitted to be done by it and the defence be permitted to further cross-examine any of the witness¬es who have already been examined, besides the opportunity of cross-examination of the witnesses who would be examined. Apart from that, the trial Court is directed to follow the mandate of procedural and substantive law at every stage of the case till it is concluded by delivery of judgment and not to skip any of the provisions, unless permitted by law. In the result, both the Appeals are allowed and the Refer¬ence is discharged. The order of conviction and sentence passed by the trial Court against the accused-appellant is set aside, but the case is remanded back to the trial Court to record evi¬dence of Dr. Patro and the Investigating Officer with liberty to the defence to cross-examine them and, thereafter the case be disposed of by following due process of both procedural and substantive law. Appeal allowed and reference discharged.