Judgement KISHORE KUMAR PRASAD, J. :- This appeal is directed against the judgment and order of conviction dated 28-4-2006 and order of sentence dated 29-4-2006 passed by the learned Additional Sessions Judge, Fast Track Court, Kalna in Sessions trial No. 109 of 2005 arising out of sessions case No. 6 of 2003 convicting the appellant Abbas Ali Mondal alias Abbas Mondal under Section 302 of I. P. C. and sentencing him to undergo life imprisonment as also to pay fine Rs. 5,000/- in default to suffer rigorous imprisonment for a period of three months. The seven co-accused persons namely the Chhupia Bibi, Jaker Ali Mondal, Nur Ali Mondal, Kokila alias Kohinur Khatun, Barel Khatun alias Jahura, Samad Ali Mondal, Rokia Bibi namely mother, sisters and brothers of the appellant were however, acquitted to all the charges under Sections 498A/ 304B/302 of I. P. C. 2. The case of the prosecution appearing from the written complaint (Ext. 1) which was the foundation for registration of F. I.R. No. 100 dated 28-9-2002 in a nutshell is as follows :- 3. The deceased Rexona Begum, daughter of Rajob Ali was given in marriage to the appellants Abbas Ali Mondal, son of late Klamot Ali Mondal on 23rd day of Kartick 1408 B. S. according to the Muslim rights and customs. It is alleged that at the time marriage dowry had been given to the accused persons as per their demand but still few days after the marriage the appellant, his mother, brothers and sisters started torture both physically and mentally upon the deceased Rexona. It is further alleged that on 23-9-2002 the appellant, his mother, brothers and sisters assaulted the deceased and asked her to execute a registered deed in their favour for three Bighas landed property. The deceased disagreed to the proposal and in consequence thereof on the night at about 2.30 a.m. intervening 23-9-2002 and 24-9-2002, the appellant and his mother poured kerosene oil on the deceased and the set her on fire. The informant Siraj Khan (P. W. 1) counsin brother of the deceased took the deceased at Kalna Hospital with burnt injury where she died in the afternoon on 24-9-2002. The informant Siraj Khan (P. W. 1) counsin brother of the deceased took the deceased at Kalna Hospital with burnt injury where she died in the afternoon on 24-9-2002. On 29-9-2002 at about 2.45 p.m. Koushik Mazumdar, Executive Magistrate-cum-B. D. O., Kalna-I (P. W. 9) recorded the dying declaration of the victim which has been marked as (Exhibit-3/1) wherein the victim is alleged to have been stated that the appellant poured the kerosene oil on her and set her on fire at the instigation of his mother, brothers and sisters. Post-mortem of the deceased was performed by Dr. Chittaranjan Ghosh (P. W. 14) on 25-9-2002 at Kalna Hospital Morgue who in course of post-mortem examination found that the deceased had got burnt injuries up to 80%. 4. On 28-9-2002 at about 10.20 hours, Siraj Khan, the informant (P. W. 1) went to Kalna P. S. and lodged F. I. R. Crime case was registered, matter was investigated and after completion of investigation, charged-sheet was filed against the appellant and seven co-accused persons mentionedabove. 5. The appellant along with his mother, brothers and sisters was charged under Section 498A/304/302 of I. P. C. The accused persons pleaded not guilty to the charges and claimed to be tried. During trial, appellant and his mother, sisters and brothers abjured their guilt and their defence was that they have been falsely implicated and the deceased herself sustained burn injury while she was busy in preparing food. 6. In the Trial Court, prosecution examined as many as 16 witnesses. Apart from leading oral evidence, the prosecution also tendered and proved large number of exhibits. 7. The learned Trial Judge convicted and sentenced the appellant herein under Section 302 of I. P. C. relying solely upon the dying declaration made by the deceased, while no case had been found against the seven co-accused persons, therefore, they were acquitted of the charges levelled against them. 8. We have heard the learned Counsel appearing on behalf of the parties and with their assistance, we have examined the entire oral and documentary evidence on record. 9. 8. We have heard the learned Counsel appearing on behalf of the parties and with their assistance, we have examined the entire oral and documentary evidence on record. 9. Learned counsel appearing on behalf of the appellant submitted that the dying declaration should not have been relied upon by the learned Trial Court in absence of evidence that the deceased was in a fit state of mind to give dying declaration even though she had received 80% burn injury according to the testimony of the Autopsy Surgeon (P. W. 14). It was further argued that the learned trial Court has considered the dying declaration as partly untrue in respect of other co-accused persons who were acquitted of the charges and partly true against the appellant without any corroboration from the evidence of the cousin brother-cum-informant of the deceased (P. W. 1), neighbours of the appellant (P. W. 2, P. W. 4, P. W. 5 and P. W. 6), mother of the deceased (P. W. 3) and father of the deceased (P. W. 15) and, therefore, no implicit reliance could have been placed on the alleged tutored dying declaration. Learned Counsel placed reliance on the two decisions in the case of P. Mani v. State of T. N. (2006) 2 SCC (Cri) 36 : (2006 Cri LJ 1629) and Deepak Rajak v. State of W. B., 2007 (5) Supreme 216 : (2007 AIR SCW 5740) wherein the Apex Court observed that when the accused was charged under Section 302 of I. P. C., presumption under Section 113A of the Evidence Act is not available and in such situation conviction and sentence of accused must be based on cogent and reliable evidence and in a case of acquittal of similarly placed to the accused on similar accusations, the benefit should be extended to other co-accused. 10. Per contra, learned Counsel appearing on behalf of the state-respondent contended that although the motive for commission of the offence could not be proved, the conviction and sentence can be upheld on the basis of the dying declaration alone. 11. We have given our anxious and thoughtful consideration to the respective contentions of the learned Counsel for the parties. We may, at the outset, record that P. W. 3, mother, P. W. 15 father, P. W. 1, cousin brother of the deceased who lodged the F. I. R. and P. Ws. 11. We have given our anxious and thoughtful consideration to the respective contentions of the learned Counsel for the parties. We may, at the outset, record that P. W. 3, mother, P. W. 15 father, P. W. 1, cousin brother of the deceased who lodged the F. I. R. and P. Ws. 2, 4, 5 and 6, the neighbours of the appellant and deceased have not supported the case of the prosecution at all and despite searching cross-examination to P. W. 3 and P. W. 5 by the learned Public Prosecutor, no material evidence is elicited from their testimony to implicate the appellant in the commission of the crime. On the contrary, P. W. 1, the informant-cumcousin brother of the deceased in his cross-examination clearly admitted that the deceased never stated about any sort of allegation against the accused; that the deceased was properly behaved at her in-law's house; that at the time of incident that deceased was not in a position to say something about the incident; that he looked after the deceased when she was admitted at hospital and at that time the deceased was not capable to say anything about the incident and he came to know from the village people that the deceased sustained burn injury when she was busy in preparing food. 12. P. W. 3, the mother of the deceased in her evidence distinctly stated that the deceased has sustained burn injuries at her law's house when she was engaged in preparing food and when she went to the house of the appellant; the deceased was not in a position to talk due to her sustaining burn injury all over the body. 13. P. W. 6, neighbour of the deceased in his evidence also clearly stated that the deceased died due to burn injury and she sustained such injury while she was busy in preparing food. 14. P. W.-15, father of the deceased instead of supporting the case of the prosecution clearly stated in his cross-examination that he has no allegation against the accused and the deceased had never made any allegation against the accused to him. 15. On the face of the aforesaid testimony of P. Ws. 14. P. W.-15, father of the deceased instead of supporting the case of the prosecution clearly stated in his cross-examination that he has no allegation against the accused and the deceased had never made any allegation against the accused to him. 15. On the face of the aforesaid testimony of P. Ws. and in absence of medical opinion that it was a case homicidal burning, the possibility of the defence version that the deceased sustained burn injury while she was busy in preparing meal could not be ruled out. 16. Apart from the above consideration, if there had been any substratum of truth in the prosecution version in respect of the alleged dying declaration, then P. W. 1, who was all along in the hospital till the death of the deceased could have definitely mentioned about the alleged dying declaration in his F. I. R. admittedly lodged by him on 28-9-2002 that is four days after the incident. No explanation has been forthcoming on the side of the prosecution in this regard. This is also a striking feature in this case. 17. Now the question is as to whether in the aforementioned situation reliance should be placed on the dying declaration (Ext. 3/1) recorded by P. W. 9. 18. Indisputably conviction can be recorded on the basis of dying declaration alone but for that the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If the evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. 19. P. W. 9, who posted as Executive Magistrate, Kalna No. 1 on 24-9-2002 recorded the alleged dying declaration (Ext. 3/1). He deposed that when the Doctor after examining the deceased declared her fit to make the statement, then he recorded the statement. But the evidence of P. W. 8, Dr. Sudip Kumar Mondal is otherwise on this point. 19. P. W. 9, who posted as Executive Magistrate, Kalna No. 1 on 24-9-2002 recorded the alleged dying declaration (Ext. 3/1). He deposed that when the Doctor after examining the deceased declared her fit to make the statement, then he recorded the statement. But the evidence of P. W. 8, Dr. Sudip Kumar Mondal is otherwise on this point. His evidence goes to show that the deceased was not treated by him after her admission at hospital; that the deceased was admitted under another Doctor; that he did not issue medical certificate before recording dying declaration and he appended certificate to the alleged dying declaration to the effect that the deceased was conscious when P. W. 9 had already completed to record the alleged dying declaration. Smt. Soma Das (P. W. 16) who was posted as Nurse at Kalna Hospital and who according to prosecution case was present at the time of recording the alleged dying declaration had failed to say definitely as to whether deceased was duly checked up by the Doctor before recording her statement by P. W. 9. That apart, P. W. 9 no where whispered that the deceased was in a fit state of mind and whereafter he recorded the dying declaration. He also nowhere stated that the statement was read over to the deceased and he obtained either her signature or thumb impression on the statement. What was the compelling circumstance for which neither the signature nor the thumb impression of deceased was obtained on the statement? The prosecution has not offered any explanation in this regard. 20. In Paparam Bada Rosamma and Ors. v. State of A. P., AIR 1999 SC 3455 : (1999 Cri LJ 4321), it was held by the Apex Court that although the Doctor had appended a certificate to the dying declaration to the effect that the patient was conscious while recording the statement, yet it would not be safe to accept the dying declaration as true and genuine, since the certificate of the Doctor was only to the effect that the patient was conscious while recording the statement. It is necessary for the prosecution to prove that the dying declaration is true, voluntary and free from all doubts. But the Doctor's certificate only said that the patient was conscious, it did not say that the patient was in a fit state of mind. It is necessary for the prosecution to prove that the dying declaration is true, voluntary and free from all doubts. But the Doctor's certificate only said that the patient was conscious, it did not say that the patient was in a fit state of mind. In medical science there are two stages - one of consciousness and the other of a fit case of mind, but they are no synonyms, and one may be conscious without being in a fit state of mind. The Apex Court did not rely upon the dying declaration as the Court had also found serious lacunae in other material particulars. 21. On overall consideration of the entire evidence, we are of the view that in the facts and circumstances of the case the dying declaration suffers from infirmities and is not supported or corroborated by some other attending circumstances. The dying declaration is shrouded by doubts and suspicion and the entire evidence discussed above, suggests that the dying declaration does not reveal the truth on which no implicit reliance can be placed and in which event conviction of the appellant cannot be rested only on the basis of such doubtful dying declaration. 22. In the present case where the appellant has been convicted under Section 302 of I. P. C., the presumption under Section 113A and 113B of the Evidence Act is not available. In the absence of such a presumption, the conviction and sentence of the appellant must be based on cogent and relatable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point only to the guilt of the appellant. 23. We are, therefore, of the opinion that it is a fit case where the appellant is entitled to benefit of doubt. 24. There is another formidable obstacle in upholding the impugned judgment and order of conviction and sentence passed by the learned trial Court in respect of this appellant. 25. The learned Trial Judge convicted the appellant relying solely upon the dying declaration of the deceased (Ext. 3/1) recorded by P. W. 9. 26. We have carefully gone through the statement recorded under Sections 313 of the Cr. 25. The learned Trial Judge convicted the appellant relying solely upon the dying declaration of the deceased (Ext. 3/1) recorded by P. W. 9. 26. We have carefully gone through the statement recorded under Sections 313 of the Cr. P. C. by the learned Trial Judge in respect of the appellant and having done so we see that the learned Trial Judge had failed to discharge his obligatory duty while recording the statement of the appellant under Section 313 of the Cr. P. C. The learned Trial Judge did not put any question to the appellant giving him any opportunity to explain the circumstances alleged against him as regards the dying declaration as also to any part of the evidence of the Executive Magistrate (P. W. 9), Doctor (P. W. 8) and the Nurse (P. W. 16) while recording his statement under Section 313 of the Cr. P. C. Though the learned trial Judge relied upon the dying declaration and based conviction yet the learned Trial Judge did not put the appellant any question about said dying declaration and as such there is added difficulty in relying on the dying declaration. 27. In the case of Sarad v. State of Maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738) their Lordships had observed and ruled that the circumstances which were not put to the appellant in his examination under Section 313 of the Cr. P. C., have to be completely excluded from consideration. We would like to quote the observations of their Lordships in Sarad (supra) as quoted in paras 142, 143 and 144 to the effect :- "142. Apart from the aforesaid comments there is one vital defect in some of the circumstances, mentioned above and relied upon by the High Court viz. Circumstances Nos. 4, 5, 6, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of Cr. P. C. they must be completely excluded from consideration because the appellant did not have any chance to explain them. Circumstances Nos. 4, 5, 6, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of Cr. P. C. they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 : (1953 Cri LJ 1933) this Court held that any circumstance in respect of which an accused was not examined under Section 342, Cr.P.C., cannot be used against him. Even since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Cr. P. C., the same cannot be used against him." In Shamu Bala Chaugule v. State of Maharashtra (1976) 1 SCC 438 : AIR 1976 SC 557 : (1976 Cri LJ 492) this Court held thus (para 5) :- The fact that the appellant was said to be absconding not having been put to him under Section 342, Cr. P. C. could not be used against him." "143. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566 : (1979 Cri LJ 1137) where the following observations were made (para 2) :- "In the first place, he stated that on his personal search of the appellant, a chadi was found which was blood-stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant." "144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of Cr. P. C. have to be completely excluded from consideration." 28. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of Cr. P. C. have to be completely excluded from consideration." 28. In view of the settled legal position, it is, therefore held that the learned Trial Judge has failed to discharge his obligatory duty while recording the statement of the appellant under Section 313, Cr. P. C. and, therefore, the judgment and order of conviction and sentence passed by the learned Trial Judge is unsustainable, bad in law and requires to be set aside on this ground also. 29. According to the legal position analysed at the outset of this judgment and in view of the discussion referred to above, the appeal succeeds and is allowed. The impugned judgment and order of conviction and sentence passed by the learned trial Judge are set aside. The appellant is acquitted from the charge under Section 302 of I.P.C. Since the appellant is in custody, he shall be released forthwith if not required in connection with any other case. 30. Lower Court Records with a copy of this judgment to go down forthwith to the learned Addl. Dist. and Sessions Judge, Fast Track Court, Kalna for information and necessary action. 31. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned Counsel for the parties upon compliance of all formalities. 32. GIRISH CHANDRA GUPTA, J. :- I agree. Order accordingly