ORDER P.K. Musahary, J. 1. This revision petition presented under Section 401 of the Cr. P. C. read with Section 397 Cr. P. C, is directed against the impugned Judgment and Order dated 11-1-2008, passed by the learned Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 20(3) of 2007, upholding the Judgment and Order dated 4-9-2006 passed by the learned Assistant Sessions Judge, South Tripura, Udaipur in Sessions Trial Case No. 85 (ST/A)/2005, whereby the petitioner was convicted under Section 306IPC read with Section 34 IPC and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 3,000/-, in default of payment of fine to suffer further rigorous imprisonment for another three months. 2. It sounds as freaky as unthinkable to hear the story of a thoroughly obnoxious sexual relation between mother-in-law and son-in-law. The prosecution story runs like this. One Smt. Jayanti Saha (Bhowmik) was married to one Shri Pintu Bhowmik as per Hindu rites and customs. Pintu Bhowmik began to reside in the matrimonial house of Jayanti Saha (Bhowmik). Smt. Swapna Saha, the petitioner is the mother of Jayanti Saha (Bhowmik). Smt. Swapana Saha has been living with her own son and daughter. In the house of Smt. Swapna Saha, Jayanti Saha (Bhowmik) and Pintu Bhowmik have been living with her. The petitioner Swapna Saha lost her husband long back. An illicit sexual relationship grew up in between Pintu Bhowmik and his mother-in-law, Swapana Saha Bhowmik. Jayanti Saha (Bhowmik) used to raise objections against the said illicit relationship for this reason the accused Pintu and Swapna Saha used to torture Jayanti both physically and mentally. Jayanti Saha (Bhowmik) sometime had to pass her days in Starvation or half starvation. Swapna's son Suman Saha (Bhowmik) also knew about the illicit relationship between her mother and Pintu Bhowmik and used to raise objection. For this reason his mother sometime pushed out Suman from the house. On 29-5-2005, at about 1 p.m., Jayanti tried to commit suicide in the house of her mother by pouring kerosene on her body and setting fire by a lighted matchstick on her body. Jayanti sustained burn injury on her body and she was shifted to Amarpur Hospital from where she was ultimately referred to G. B. Hospital at Agartala. Suman Saha (Bhowmik) lodged a written FIR with Birganj Police Station. Jayanti sustained burn injury on her body and she was shifted to Amarpur Hospital from where she was ultimately referred to G. B. Hospital at Agartala. Suman Saha (Bhowmik) lodged a written FIR with Birganj Police Station. A crime, being Birganja P. S. Case No. 18/2005 was registered under Section306/511/34 IPC. Jayanti succumbed to burn injuries while she was under treatment in the said hospital. Police investigated the case and on completion of the investigation submitted charge sheet against both Pintu Bhowmik and the petitioner Swapna Saha under Section 306 read with Section 34IPC. The learned Sub-Division Judicial Magistrate, Amarpur, South Tripura, after receipt of the charge-sheet took cognizance of the offence under Sections 306/34 IPC and committed the case to the Court of learned Session Judge, South Tripura, Udaipur for trial. The Sessions Judge transferred the said case to learned Assistant Sessions Judge, South Tripura, Udaipur, who framed charges under Sections 306/34 IPC against the petitioner and Pintu Bhowmik. Both the accused persons pleaded not guilty and claimed to be tried. The prosecution examined as many as 11 (eleven) witnesses, while the petitioner and the other accused adduced two defence witnesses in support of their case. The learned Trial Court also examined one Court witness. 3. The petitioner and the co-accused were examined under Section 313 Cr. P. C. They categorically denied the charges and stated that they are innocent and they have been falsely impleaded in the case. The learned Trial Court after hearing the arguments of the learned Counsel for the parties convicted and sentenced them as stated earlier by judgment and order dated 4-9-2006 passed in Sessions Trial Case No. 85 (ST/A)/2005. 4. Against the aforesaid judgment and order dated 4-9-2006 convicting and sentencing the petitioner and co-accused as above mentioned, the petitioner Swapna Saha (Bhowmik) preferred Criminal Appeal No. 20(3) of 2007 before the Court of learned Sessions Judge, South Tripura, Udaipur. 5. After hearing the learned Counsel for the parties, the learned Sessions Judge dismissed the said appeal upholding the conviction and sentence passed by the learned Trial Court vide Judgment and Order dated 4-9-2006. The petitioner being highly aggrieved and dissatisfied with the order of conviction and sentence passed against her under Section 306 read with Section 34 IPC, preferred the present revision petition. 6. I have heard Mr. M. K. Roy, learned Counsel for the petitioner and also Mr. The petitioner being highly aggrieved and dissatisfied with the order of conviction and sentence passed against her under Section 306 read with Section 34 IPC, preferred the present revision petition. 6. I have heard Mr. M. K. Roy, learned Counsel for the petitioner and also Mr. A Ghosh, learned Additional Public Prosecutor for the respondent State. 7. Mr. Roy, learned Counsel for the petitioner submits that Shri. Suman Saha (Bhowmik), son of the accused petitioner was the informant, who lodged the FIR and on the basis of which the Criminal Case set in motion but he refused to support the prosecution and ultimately he appeared as a Defence witness. This makes the entire prosecution story, particularly, illicit sexual relationship between the accused petitioner and her son-in-law (the other accused) Shri. Pintu Bhowmik torturing Jayanti both physically and mentally for which she committed suicide, has become unbelievable. He further submits that the prosecution gave undue value and importance to the evidence of neighbours, particularly PWs 1, 3, 4, 6, and 7, before whom the deceased expressed that she would commit suicide as her husband and mother used to torture her and her husband used to tell her that he would divorce her. The evidence of prosecution witnesses before whom the deceased, as claimed by the prosecution, used to express them about her suffering, has no evidentiary value inasmuch as the aforesaid witnesses are interested ones, they being member of a rival political party. The evidence of PW6, PW7 and Niyati Debnath cannot be treated as dying declaration nor can it be a basis for conviction of the accused petitioner. Similarly, the Courts below also gave over emphasis and value on the evidence of PW11 Jananta Karmakar, police Sub-Inspector of Birganj Police Station, who deposed that as per direction of the Officer Incharge, he went to G. B. Hospital and recorded the statement of victim Jayanti. The Courts below treated the statement recorded by PW 11 as dying declaration which is not permissible under the law, inasmuch as it was not recorded by the Doctor of the hospital or a Magistrate. The PW11, Police Sub Inspector cannot record dying declaration without the permission of the Medical Officer and without order of the Investigating Officer. No evidence was forthcoming as to why the Magistrate could not be called for recording the dying declaration. 8. The PW11, Police Sub Inspector cannot record dying declaration without the permission of the Medical Officer and without order of the Investigating Officer. No evidence was forthcoming as to why the Magistrate could not be called for recording the dying declaration. 8. The learned Trial Court as well as the Appellate Court failed to appreciate and take into consideration the evidence of the defence witness Nos. 1 and 2, son and daughter of the petitioner, who deposed that it was a case of accident and not a case of committing suicide by the deceased. According to them, Jayanti was worshipping and the fire caught her sari accidentally. The conviction and sentence have been ordered against the petitioner by the learned Trial Court and the same was upheld by the learned Appellate Court mainly on the basis of evidence of some neighbours who claimed that the deceased, before the date of incident of fire, happened to meet the deceased, who narrated before them about the illicit sexual relationship between her mother and husband, physical and mental torture given to her by them, keeping her in starvation occasionally and threat for divorce by her husband, which caused frustration to her and ultimately compelled her to make an attempt to commit suicide. The learned Trial Court founded the conviction and sentence of the petitioner on the statement made by the deceased before PW11 in hospital, while she was under treatment, which has been treated as dying declaration against the petitioner and co-accused. PWs 1, 2, 4, 5, 6 and 7 belong to same village and they are neighbours of the deceased. Ahid Miah, PW1, deposed that he was told by Suman Saha Bhowmik, the son of the petitioner about the illicit sexual relationship between the co-accused, Pintu Bhowmik and the petitioner and the physical and mental torture given by them to, the deceased, Jayanti, PW2, Priti Bhowmik deposed that on the date of incident deceased Jayanti Saha came to her house and told her that on the last night her mother (petitioner) and her husband, the co-accused Pintu Bhowmik assaulted her physically and disclosed her about the illicit sexual relationship between the petitioner and the co-accused, Pintu Bhowmik. The deceased Jayanti expressed her desire before the PW2 to commit suicide to avoid the said suffering. The deceased Jayanti expressed her desire before the PW2 to commit suicide to avoid the said suffering. Her brother, Suman Saha was driven out from the house by her accused mother Swapna Saha and husband, Pintu Bhowmik as he used to protest the said illicit relationship. PW4 Smt. Tahera Bibi, PW5 Smt. Tulsi Debnath, PW6 Smt. Angshuda Bibi, PW7, Smt. Niyati Debnath deposed in the same manner. The defence counsel, although thoroughly cross examined the aforesaid witnesses, could not bring out anything that they made false deposition out of enmity or with some ill motive. The evidence as regards, the illicit sexual relationship between the petitioner and co-accused, physical and mental torture could not be demolished in the cross-examination of these witnesses. PWs. 2, 4, 5, 6, and 7 are married women and neighbours. It is quite natural that before her death there was a chance for meeting and narrating the story and suffering of the deceased before the said witnesses. It is a normal human behaviour that whenever one suffers from physical and mental torture, tries to lessen the agony by telling the same before some one whom he/she knows closely. It is not that the deceased told her problems before any stranger. The evidence of PW 2, 4, 5, 6 and 7 are corroborated and it has attained evidentiary value. But this is not sufficient to come to a conclusion that the petitioner and the co-accused abetted her in committing suicide unless there is cogent and reliable evidence on the said allegation. 9. The evidence of PWs 2, 4, 5, 6 and 7 would have been a strong supporting evidence to dying declaration, if it was made, by the deceased as per the accepted procedure or manner. A dying declaration attaches evidentiary value provided it is corroborated not only by the eyewitness but also by circumstantial evidence vis-a-vis the medical evidence. In the present case, there is no eyewitness to testify that the petitioner and the co-accused resorted to any action attributable to committing or attempting to commit suicide by the deceased. There is, in this case, only a circumstantial evidence namely the deceased was caught fire and she received burn injuries for which she was shifted to hospital for treatment where after few days, she succumbed to her injuries. And according to Dr. There is, in this case, only a circumstantial evidence namely the deceased was caught fire and she received burn injuries for which she was shifted to hospital for treatment where after few days, she succumbed to her injuries. And according to Dr. PW 8 she received 70% superficial and deep burn injuries caused by flame and the age of injury was 4/6 weeks. The cause of death, in the opinion of the Doctor, was due to shock resulting from the aforesaid burn injuries. The evidence on record is enough for the purpose of coming to any conclusion that the deceased received burn injuries and succumbed to the same injury. It is not an answer to the allegation that the deceased committed or attempted to commit suicide being abetted by the accused petitioner and the co-accused. 10. The important question called upon for decision is whether the deceased, being unable to bear the mental and physical suffering, was compelled to commit suicide or attempt to commit suicide. The sufferer is no longer alive to give evidence in this respect. Section 32 of the Indian Evidence Act, 1872, provides for recording of dying statement and using the same as evidence, for which there is no elaborate procedure for recording dying declaration. It is a rule that whenever statement of a person on the deathbed or under serious condition is to be taken, if the injured person wants to give statement, the doctor should first examine and be satisfied that the injured person is physically and mentally fit for making such statement and then record the same in presence of medical staff and close relatives. Even when a Magistrate wants to record dying statement on requisition of the police, the medical officer attending the injured person should first examine and certify the physical and mental state of the injured person and only after it is found by the Doctor that the injured person is fit to make such statement, then the statement of the injured person would be recorded by the Magistrate. The evidence of PW 11 clearly shows that he visited the hospital as he was deputed by the Officer-in-Charge and he recorded the statement of the deceased without informing the Doctor, not to speak of knowing about the mental and physical state of the injured person. The evidence of PW 11 clearly shows that he visited the hospital as he was deputed by the Officer-in-Charge and he recorded the statement of the deceased without informing the Doctor, not to speak of knowing about the mental and physical state of the injured person. There is no mention in his evidence that any medical staff or relative of the injured person was present at the time of recording the statement. It is also not reflected from his, evidence that he read over the statement, which he recorded to the deceased and accepted by her as correct and then he obtained her signature or thumb impression thereon. 11. Court witness, Shri Nityananda Sarkar, Investigating Officer of the case, deposed that he sent Sub-Inspector Jayanta Karmakar (PW 11) for recording the statement of the victim under Section161, Cr. P.C. It is to be noted that the incident took place on 29-5-2005. The Investigating Officer himself did not visit the hospital to record the statement of the injured person under Section 161, Cr. P. C. He rather sent the SI (PW 11) and that too on 18-6-2005 that is after 19 days. There is no explanation from the Investigating Officer as to why he could not personally go to the hospital to record the statement of injured person and why he deputed PW 11 after a long gap of 19 days from the date of occurrence. Nothing has been stated by the Investigating Officer why he did not make any requisition for dying statement of the injured person, if it was so required to be done in the interest of proper investigation, although, he got sufficient time for doing so. The manner in which dying statement of the injured/deceased was recorded without observing the bare minimum requirements, casts a shadow of doubt on the fact of recording the statement and genuineness of the same. 12. One thing is certain and clear that the Investigating Officer did not take proper steps and he conducted the investigation in a casual manner. By sending the PW 11 and getting the deceased's statement recorded by him in a most undesirable manner as discussed earlier, the Investigating Officer made a deliberate attempt to cover up his negligence, callousness and laches in investigating the case in a desired manner. It has lost its trustworthiness. By sending the PW 11 and getting the deceased's statement recorded by him in a most undesirable manner as discussed earlier, the Investigating Officer made a deliberate attempt to cover up his negligence, callousness and laches in investigating the case in a desired manner. It has lost its trustworthiness. Is the Court expected to believe in, rely on and act upon such statement of the deceased recorded so casually and improperly without any supporting evidence worth gaining the confidence of the Court? The summit Court in Arvind Singh v. State of Bihar (2001) 6 SCC 407 : AIR 2001 SC 2124 : 2001 Cri LJ 2556, aptly held that the dying declaration should be dealt with care and caution and corroboration, though not essential as such, but is otherwise expedient to have the same in order to strengthen the evidentiary value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. Little step further, the Apex Court in Panchdeo Singh v. State of Bihar (2002) 1 SCC 577 : AIR 2002 SC 526 : 2002 Cri LJ 973, observed thus, "confidence of the Court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelief or distrust would not arise. In the event however of there being some infirmity, howsoever negligible it be, the Court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise; dying declaration alluring confidence of the Court would be a sufficient piece of evidence to sustain conviction." 13. The glaring infirmities in the dying declaration in the present case are found as discussed above. The law has been settled in Ram Manorath v. State of Uttar Pradesh (1981) 2 SCC 654 , that the dying declaration, which suffers from infirmity, cannot form the basis of conviction. 14. The prosecution did not make any attempt to prove the fact that the deceased was in a fit mental and physical state to make the statement on 18-6-2005. There is nothing in the evidence of PW 8, Doctor Ranjit Kumar Das or any Medical Officer of the hospital to prove the physical and mental state of the deceased on 18-6-2005. The prosecution did not make any attempt to prove the fact that the deceased was in a fit mental and physical state to make the statement on 18-6-2005. There is nothing in the evidence of PW 8, Doctor Ranjit Kumar Das or any Medical Officer of the hospital to prove the physical and mental state of the deceased on 18-6-2005. In absence of any oral evidence of the Doctor or documentary evidence to the same, it is difficult to accept that even if the PW 11 recorded the statement as claimed by him, it was recorded while the deceased was in a fit condition to make statement. The evidence on record leads one to believe and come to a conclusion that PW 11 did not record dying statement and whatever he recorded was nothing but a statement under Section 161, Cr. P. C. This has been admitted by the Court Witness No. 1, Shri Nityananda Saha, Investigating Officer himself, in his evidence as stated earlier. It is established in the evidence that the dying declaration recorded by PW 11 on the basis of which the conviction and sentence is founded largely, is not a dying statement/declaration within the meaning of Section 32 of the Indian Evidence Act, 1872. It is merely a statement under Section 161, Cr. P. C. which carries no evidentiary value except for a limited purpose of impeaching the credibility of a witness. Law has been settled by the Apex Court in several cases in this regard and I would like to cite only to the case of Ramswaroop v. State of Rajasthan reported in (2004) 13 SCC 134 : AIR 2004 SC 2943 : 2004 Cri LJ 5043 fail to understand how the learned Trial Court considered the same as one of the foundations for conviction of the petitioner. If it is so, each and every accused person could be convicted on the basis of the statement of witnesses recorded under Section 161, Cr. P. C. 15. The evidence of PWs. 1, 2, 4, 6 and 7, on which the learned Court below relied upon most, as already discussed, has been found to be insufficient for coming to a conclusion that the petitioner and the co-accused abetted the deceased for committing suicide or attempting to commit suicide. P. C. 15. The evidence of PWs. 1, 2, 4, 6 and 7, on which the learned Court below relied upon most, as already discussed, has been found to be insufficient for coming to a conclusion that the petitioner and the co-accused abetted the deceased for committing suicide or attempting to commit suicide. The evidence of the aforesaid PWs has greatly influenced the mind of the Courts below that the petitioner and the co-accused abetted the deceased in committing suicide. But the learned Courts below became oblivious of the standard of proof required in Criminal case which is nothing less than beyond any reasonable doubt. The standard must always be higher one. It has been declared in State of Madhya Pradesh v. Dhar Kole reported in (2004) 13 SCC 308 : AIR 2005 SC 44 : 2005 Cri LJ 108, that although there is no absolute Standard, it is, at the same time, not merely preponderance of probabilities. The learned Trial Court has acted upon suspicion and surmise in convicting the accused petitioner which is not permissible in the criminal trial. The settled position of law is that the suspicion how so grave cannot take the place of proof. It is held so in Anjlus Dungdung v. State of Jharkhand as reported in (2005) 9 SCC 765 : AIR 2005 SC 1394 . In Sidharth v. State of Bihar reported in (2005) 12 SCC 545 : AIR 2005 SC 4352 : 2005 Cri LJ 4499, the Apex Court however, held that serious suspicion itself is not sufficient to hold the accused guilty. 16. Further to note from the evidence of above PWs. 1, 2, 4, 6 and 7 is that, although they are neighbours and close to the victim, they have not deposed that they ever personally saw her being tortured physically by the accused persons. They have deposed merely on the basis of what was allegedly disclosed by the victim before the incident. Such evidence not being based on their personally acquired knowledge, in my considered view, is not an admissible evidence. What is unbelievable is that the said witnesses, although elderly persons, did not advise the victim to lodge any complaint with village Head-man or Village Panchayat against the immoral sexual relation between the two accused persons and the torture perpetrated by them to save the victim before the unfortunate incident. 17. What is unbelievable is that the said witnesses, although elderly persons, did not advise the victim to lodge any complaint with village Head-man or Village Panchayat against the immoral sexual relation between the two accused persons and the torture perpetrated by them to save the victim before the unfortunate incident. 17. I would now like to appreciate the evidence of DWs. 1 and 2 as they have resiled their earlier stand in supporting the prosecution case. It is quite natural that the accused petitioner being their mother, against whom they, at least the DW 1, lodged FIR and being dependent on her, had to have a second thought to defend her by resiling their earlier statement. The evidence of these DWs 1 and 2 does not deserve equal treatment to the evidence of the prosecution witness under the principle of equal treatment to the defence witness as mandated in a number of cases including State of Haryana v. Ram Singh reported in AIR 2002 SC 620 : 2002 Cri LJ 987 and Dudhanath Pande v. Uttar Pradesh reported in AIR 1981 SC 911 , wherein it is held that the defence cannot brush aside the evidence of witness who resiles his earlier statement but the Court has to consider why he has resiled. Here in the present case, it is clearly established that DW 1 and DW 2 resiled from the earlier statement to save their mother and deposed in favour of the defence. Their evidence does not deserve equal treatment with the prosecution evidence but they are not liable to be brushed aside. If the evidence of DW 1 and 2 is brushed aside, advantage would go to the prosecution and would make its case stronger but it would not happen so. The prosecution has to prove its case beyond reasonable doubt by its own evidence adduced during the trial. 18. The standard of proof adduced by the prosecution has been discussed above and found to be not up to the standard required under the criminal trial. The prosecution in this case failed to prove the case beyond reasonable doubt. It rather tried to take the advantage on the weakness of the defence in defending their case, which is not permissible in the criminal trial. The position thus, I found is that there is no legal evidence for conviction of the accused petitioner. The prosecution in this case failed to prove the case beyond reasonable doubt. It rather tried to take the advantage on the weakness of the defence in defending their case, which is not permissible in the criminal trial. The position thus, I found is that there is no legal evidence for conviction of the accused petitioner. The position of evidence inasmuch as and the findings made by the learned Trial Court below are not at all acceptable. The conviction levied upon the petitioner and upheld by the learned Trial Court, are thus, found unsustainable in law. The impugned judgment and order of conviction dated 11-1-2008 passed by the learned Session Judge, South Tripura, Udaipur in Cr. Case No. 20(3) of 2007 as well as the Judgment and Order dated 4-9-2006, passed by the Assistant Sessions Judge, South Tripura, Udaipur, in case No. 85 (ST/A) 2005 convicting and sentencing the accused petitioner are liable to be set aside. It is, accordingly set aside. The petitioner is acquitted of the charges framed against her. She is directed to be set at liberty forthwith if her further detention is no longer required in connection with any other cases. 19. The petition stands allowed. Petition allowed