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2010 DIGILAW 1090 (CAL)

State v. P. L. Joseph

2010-08-30

DIPANKAR DATTA, SUBHRO KAMAL MUKHERJEE

body2010
Judgment :- Dipankar Datta, J. (1) In this appeal filed under Section 378 of the Criminal Procedure Code (hereafter Cr.P.C.), the State calls in question judgment and order dated 30th September, 2009 passed by the learned Sessions Judge, Andaman and Nicobar Islands, Port Blair in Sessions Case No.42 of 2001 arising out of G.R. Case No.19 of 2001 in connection with Pahargaon P.S. Case No.03 of 2000 dated 4th January, 2000. The learned Judge acquitted the respondents under Section 235(1), Cr.P.C holding them not guilty of commission of offences punishable under Sections 302/34 of the Indian Penal Code [hereafter IPC]. (2) The first respondent in the appeal is the husband of the second respondent. Charge framed against them reveals that on or about 4th January, 2000 at Garacharma, within the jurisdiction of Pahargaon Police Station, in furtherance of their common intention they committed murder by intentionally causing the death of Smt. Sakti (hereafter the victim), by pouring kerosene oil on her body and setting her on fire on 4th January, 2000, consequent whereto she succumbed to her injuries on 7th January, 2000, thereby committing offences punishable under Section 302/34, IPC. (3) The prosecution case is that the second respondent had taken the victim on a scooty, in the evening hours of 4th January, 2000, to a lonely place at Garacharma where the first respondent poured petrol on the person of the victim and after setting her on fire, left her at the spot. The police was informed by one S.C. Ganguly who had seen the burnt body of the victim for the first time. On receipt of such intimation, the police plunged into action and went to the spot, wherefrom the victim was lifted and shifted to G.B. Pant Hospital (hereafter the hospital). At the hospital, the victim made a dying declaration implicating the respondents as responsible for setting her on fire, which was recorded by G. Ravindran Kurup, Executive Magistrate (PW-12). The dying declaration of the victim was treated as the First Information Report (hereafter FIR) and a case alleging commission of offence punishable under Sections 307/34 of IPC was registered against the respondents. Subsequently, with the death of the victim on 7.1.2000, the case was converted to one alleging commission of offence under Section 302, IPC. (4) Investigation followed culminating in submission of charge-sheet against the respondents. Subsequently, with the death of the victim on 7.1.2000, the case was converted to one alleging commission of offence under Section 302, IPC. (4) Investigation followed culminating in submission of charge-sheet against the respondents. Upon committal, the case record was transferred to the Court of Sessions on 26th November, 2000 and cognizance was taken on the self same date. Thereafter, charge as referred to above, was framed against the respondents. At the trial, the prosecution examined 21 witnesses and produced number of exhibits. Since there was no ocular witness who could support the prosecution case, the prosecution sought to drive home the charge against the respondents based on circumstantial evidence. A dying declaration of the victim was made the sheet anchor. However, the learned Judge disbelieved the prosecution case and acquitted the respondents. (5) The genesis of the incident of setting fire on the victim, according to the prosecution, is an illicit extra-marital relationship that had developed between the first respondent and the victim, who was also married. The circumstances forming the chain and thereby pointing to the guilt of the respondents was sought to be established by the prosecution commencing with the principle of last seen together. Evidence of Mr. Rakesh U. Chandran (PW-8) reveals that on 4th January, 2000 he was waiting for his friend Sanjay on the culvert waiting to go to Hanuman Temple. It was 5.30 PM at that time. At about 6.00 PM, he found the second respondent attending the spare parts shop of Manoj (PW5), the employer of the victim, along with her scooty and picked up the victim therefrom and left that place on such scooty. He even observed the registration number of the scooty and disclosed the same in course of examination in chief. (6) Sanjay Varghese, PW-11, also stated that on 4th January, 2000, while he was returning from a tea stall situated on Junglighat road, he found the victim was moving on a scooty towards Lamba Line from Junglighat side. The victim was riding pillion on the scooty that was being driven by a lady. It was about 6/6.30 PM. He could identify the victim with the help of street light. The lady driving the scooty was the second respondent whom he knew from before. The victim was riding pillion on the scooty that was being driven by a lady. It was about 6/6.30 PM. He could identify the victim with the help of street light. The lady driving the scooty was the second respondent whom he knew from before. However, it is noted that in course of cross examination conducted on behalf of the first respondent, PW-11 stated that he did not see the face of the second respondent at the relevant time, but in course of cross examination conducted on behalf of the second respondent, he reiterated that the second respondent was riding a scooty at a distance of about 20 meters. (7) The second link in the chain, sought to be established by the prosecution, is that K.R. Kurup, the Investigating Officer (PW-18) while he was performing duty at the police station received information over telephone that a female was lying on the road with burn injury. The telephone call was received by him at about 7.00 PM from S.C. Ganguly, Tally Clerk, Port Management Board (not examined). Soon thereafter, the Station House Officer and other staff of the Police Station and PW-18 rushed to the place of occurrence where they found a female with burn injury. When the Station House Officer asked the victim about the reason, she told him that the respondents had set fire on her. The matter was immediately reported to the higher officials seeking urgent shifting of the victim to the hospital and for requisitioning an Executive Magistrate for recording dying declaration. By a police pickup van, the victim was removed to the hospital and two police personnel were deployed for guarding the room. The victim was admitted to the burn unit of the hospital. The Deputy Superintendent of Police, the Circle Inspector and an Executive Magistrate were present in the hospital. (8) The next link in the chain of circumstantial evidence is the dying declaration of the victim, recorded by PW-12. It is in the evidence of PW-12 that he started recording the dying declaration from 8.20 pm. It took him 25 minutes to record the same. He found the victim mentally fit for giving her statement and, therefore, recorded the same narrated in Hindi by the victim. It is in the evidence of PW-12 that he started recording the dying declaration from 8.20 pm. It took him 25 minutes to record the same. He found the victim mentally fit for giving her statement and, therefore, recorded the same narrated in Hindi by the victim. He further stated that the Hindi version was recorded in English and he had read over and explained the contents in Hindi after translating the same from English to the victim. She had admitted that her statement had been thoroughly recorded. As the victim was unable to sign, her thumb impression was obtained on the said statement. The dying declaration of the victim, proved by PW-12, was marked as Exhibit-9. Thumb impression of the victim was marked as Exhibit-9/1. Exhibit-9 reveals that the victim said as follows:- "I am a local resident of Middle Point and residing with my husband Shri Sathiyanarayana and my alone child Indu. I am working in a private shop owned by Shri Manoj near Boys School. Today about 6.00 PM, Smti Foolwathi has taken me by a scooty to Garacharma. After reaching the spot at 6.30 PM, Shri Joseph, Driver who is belonging to Education Deptt. pored petrol/kerosin oil towards my body and set fire and left me in the spot. Myself has been taken by Foolwathi to the spot. I have taken from the spot to the G.B.P. Hospital by the police. My husband is working with Govt. Contractor named Suriya Rao. My husband does not know about the incident. Joseph and wife Foolwathi together wanted to kill me by setting fire." After receiving the dying declaration from the Circle Inspector with the direction to initiate case under Sections 307/34 IPC, the Station House Officer went to the Police Station to initiate a case as per the direction of the Circle Inspector. PW-18 was entrusted to investigate the case. Immediately after registration thereof at the Police Station, he went to the place of occurrence straight away from the hospital where he received the copy of the FIR for the purpose of investigation from the Station House Officer. Meanwhile, the Circle Inspector also reached the place of occurrence at about 10.20 P.M. Inter alia, a bottle containing petrol and a match box with two burnt matchsticks were seized. Subsequently, the police party left the place of occurrence to trace out the accused. Meanwhile, the Circle Inspector also reached the place of occurrence at about 10.20 P.M. Inter alia, a bottle containing petrol and a match box with two burnt matchsticks were seized. Subsequently, the police party left the place of occurrence to trace out the accused. (9) Since the respondents were named in the dying declaration of the victim as accused, raid was conducted to nab them by visiting their house. When the police party reached the house of the accused at about 10.40 P.M., they were found together. PW18 stated that the door being knocked, the first respondent came on his face on both the hands. In reply to my question about reason of such burn injury, he told us that he himself with the aid of the female accused sat fire on the victim. The objection of the defence was recorded at this stage. Wearing apparels of the respondents were seized by PW-18 upon preparation of seizure list. The scooty belonging to the second respondent was also seized from outside the house and to that effect also a separate seizure list was prepared. Both the respondents were arrested at about 11.30 P.M. and taken to Primary Health Centre, Garacharma, for their medical examination. Report of medical examination of the first respondent conducted on 5th January, 2000, by Dr. D. Bairagi (PW-9) at 00.15 A.M. (Exhibit8) reveals the following injuries on the person of the first respondent: "1. Multiple burn over face including forehead. 2. Multiple burn over in front of upper chest. 3. Multiple burn over flexor as well as extensor aspect of R forearm just below elbow." In course of examination under Section 313, Cr.P.C, such inculpating circumstance was put to the first respondent. He did not deny the injuries on his person, but accused PW9 of preparing the said report at the instance and direction of police officer Saigal. These are the circumstances on which the prosecution sought to persuade the learned Judge to record conviction against the respondents for murdering the victim. (10) The learned Judge took exception in respect of non-production of S.C. Ganguly as witness as well as non appearance of his name in the FIR as informant. He did not accept the thumb impression (Exhibit-9/1) as that of the victim. The dying declaration (Exhibit-9) was also not believed by him. (10) The learned Judge took exception in respect of non-production of S.C. Ganguly as witness as well as non appearance of his name in the FIR as informant. He did not accept the thumb impression (Exhibit-9/1) as that of the victim. The dying declaration (Exhibit-9) was also not believed by him. It appeared to him to be rather unusual that the doctor who attended the victim for the first time, viz. Dr. S. Banu (PW- 13) did not record on the dying declaration that the victim was in a fit state of mental condition for giving declaration. He also took serious exception to the fact, admitted by PW-13, that she had recorded that the victim was fully conscious to give statement by endorsing the same on a blank piece of paper and left the hospital without waiting for recording of the dying declaration of the victim by PW-12 to be completed. He also expressed surprise as to whether a victim who had suffered 100% burns could give statement methodically and systematically without feeling any pain or ache and considered it to be rather uncommon in common parlance. (11) Considering the deposition of the victims husband, viz. Mr. Sathyanarayana (PW4) that he reached the hospital after 10.00 PM and apparent contradiction in the version of PW-12 that on his arrival at the hospital he noticed PW-4, the learned Judge doubted the credibility of the witnesses. He observed that unless PW-12 knew PW-4, he could not have identified him to be present at the hospital and inference was sought to be drawn that the dying declaration was prepared under influence of somebody. In view of the evidence on record, the learned Judge considered that two inferences are possible side by side on the same wavelength and certainly benefit of alternative inference must be in favour of the accused to enjoy the benefit of doubt. He, accordingly, held the respondents not guilty and acquitted them. (12) Mr. Mandal, learned Public Prosecutor took great pains in inviting the Courts attention to the evidence on record to establish that the chain of circumstances was complete, as noticed supra, pointing to the guilt of the respondents and leaving no scope for any other conclusion. He urged that the learned Judge fell in error in ordering acquittal of the respondents despite clinching evidence being available on record. He urged that the learned Judge fell in error in ordering acquittal of the respondents despite clinching evidence being available on record. It was contended by him that there was no circumstance to doubt the dying declaration of the victim recorded by PW-12. Further, there was no evidence of enmity between PW-12 on the one hand and the respondents on the other. It was contended that it would be preposterous to suggest that PW-12 falsely implicated the respondents. It was also contended by him that in course of examination of the first respondent under Section 313, Cr.P.C., he was called upon to explain the injuries on his person. However, he did not deny that there was no injury on his person but accused PW-9 of preparing the medical report of examination at the instance and direction of police officer Saigal. It was submitted that the burden rested on the first respondent to clear the doubt, which he did not discharge and, therefore, the Court may not be unjustified in drawing adverse inference against the first respondent to the effect that he must have sustained such injury while setting the victim on fire. (13) In support of his submission, Mr. Mandal relied on the decisions of the Supreme Court in Munna Raja and anr v. State of Madhya Pradesh, AIR 1976 SC 2199 ; Padmaben Shabalbhai Patel v. State of Gujarat, (1991) 1 SCC 744 ; Om Prakash v. State of Punjab, 1992 CRI. L.J. 3935; and Sher Singh and Anr. V. State of Punjab, AIR 2008 SC 1426 , on admissibility of a dying declaration as well as the proposition that it is not always essential to require the doctor to certify as to the fitness of the declarant. (14) Accordingly, he prayed before the Court to set aside the order of acquittal and for recording of conviction against the respondents for committing offences punishable under Sections 302/34, IPC. Mr. Bahadur, learned advocate for the respondents, in course of his argument highlighted several contradictions in the evidence tendered by the prosecution and contended that it would be dangerous to rely on the same for the purpose of recording a conviction against the respondents. He highlighted the following points for consideration of the Court: 1. Mr. Bahadur, learned advocate for the respondents, in course of his argument highlighted several contradictions in the evidence tendered by the prosecution and contended that it would be dangerous to rely on the same for the purpose of recording a conviction against the respondents. He highlighted the following points for consideration of the Court: 1. The respondents were charged with pouring kerosene oil at the place of occurrence resulting in the victim suffering burn injury but the police party recovered one plastic bottle containing petrol. There is thus apparent inconsistency. 2. S.C. Ganguly, the informant, was not examined. The defence, therefore, did not get the benefit of cross-examining him leading to prejudice. Omission to examine him was rightly held by the learned Judge to be fatal for the prosecution case. 3. PW-12 reached the hospital at 8.10 PM and found PW-4 present there whereas PW-4 stated that he reached the hospital after 10.00 PM with the police on being informed of the victims condition. The inconsistency is glaring affecting the credibility of the witnesses. 4. PW-13 was the doctor who attended the victim first. It is unusual that she did not note the history how the victim suffered burn injury. Although she observed in her report that the victim was conscious, she did not certify that the victim was in a fit condition to give statement. 5. PW-13 admitted having certified on a blank piece of paper that the patient is fully conscious while giving statement and signed it and left the hospital before the dying declaration could be recorded. Having regard to the fact that no one else was present at the time of recording of statement, possibility of foul play cannot be ruled out. 6. The victim had suffered 100% burn injury and, therefore, could not have given a vivid description of the entire incident. 7. The victim in her dying declaration stated that she was a resident of Middle Point whereas PW-4, her husband, stated that they earlier used to live at Middle Point but at the relevant time of occurrence, they used to stay at Dairy Farm. Indeed surprising, having regard to the vivid description of the alleged incident. 8. 7. The victim in her dying declaration stated that she was a resident of Middle Point whereas PW-4, her husband, stated that they earlier used to live at Middle Point but at the relevant time of occurrence, they used to stay at Dairy Farm. Indeed surprising, having regard to the vivid description of the alleged incident. 8. The Investigating Officer (PW-18) after recovery of the victim from the locale immediately after the incident neither registered any case nor attempted to ascertain from the people of the nearby area regarding the incident of the victim being set on fire. Eye-brows most certainly would be raised in respect of the inaction or non-action of PW-18. 9. The CFSL report on examination of the wearing apparels of the first respondent did not reveal detection of petroleum hydrocarbon fractions. 10. The version of the husband of the victim, PW-4, that on reaching hospital after 10.00 P.M. with the police he found the victim in the burn ward where she narrated the entire incident to him is entirely unreliable, he being an interested witness. An outsider would not be permitted to remain in the burn-ward and his version that the ornaments which were on the person of the victim were handed over to him by the attending nurse fails to inspire confidence in the normal course of affairs apart from absence of corroboration by the said attending nurse who was not even examined. 11. Dr. R. Tulasidasan, (PW-17) who was the member of the Board of Doctors that conducted postmortem examination of the victim opined that she had suffered 100% full thickness burn injury, ante-mortem in nature. On first examination of the victim by PW-13, it was found that the entire body of the victim was charred. The inquest report (Exhibit-2) reveals that the hands of the victim were totally burnt and the fingers half bent inside, the nails were burnt and the skin was also totally burnt. In such circumstances, thumb impression of the victim obtained by the Executive Magistrate on the alleged dying declaration with the ridge of the concerned finger being conspicuous makes the dying declaration a doubtful piece of evidence. (15) It was stressed by Mr. Bahadur that there is room for doubt whether Exhibit-9 is a genuine dying declaration or not. In such circumstances, thumb impression of the victim obtained by the Executive Magistrate on the alleged dying declaration with the ridge of the concerned finger being conspicuous makes the dying declaration a doubtful piece of evidence. (15) It was stressed by Mr. Bahadur that there is room for doubt whether Exhibit-9 is a genuine dying declaration or not. He, accordingly, contended that in the absence of plausible explanation offered by the prosecution in respect of the above points, it would be highly risky to rely on the dying declaration, which has been made the sheet anchor of the prosecution case, and to convict the respondents. In support of his submission, Mr. Bahadur relied on the following decisions: (i) Bhola Prasad v. the State of Maharashtra, (1998) 9 SCC 353 for the proposition that a dying declaration ought not to suffer from material discrepancy; (ii) Narain Singh v. State of Haryana, (2004) CRI. L.J. 1409 for the proposition that a dying declaration is an exception to the rule of hearsay and that it must pass the test of credibility; (iii) Gambhir v. State of Maharashtra, AIR 1982 SC 1157 , and (iv) State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 , for the proposition that when a case rests upon circumstantial evidence, such evidence must satisfy four tests: (a) the circumstances from which an inference of guilt in sought to be drawn, must be cogently and firmly established; (b) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (c) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (d) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. He also relied on the decisions in State of Uttar Pradesh v. Banne alias Baijnath, (2009) 4 SCC 271 ; 2009 Cr. He also relied on the decisions in State of Uttar Pradesh v. Banne alias Baijnath, (2009) 4 SCC 271 ; 2009 Cr. L.R. (SC) 308, Gopal v. State of Madhya Pradesh; Cherlopalli Cheliminabi Saheb v. State of A.P., (2003) 2 SCC 571 ; State of Rajasthan v. Madho, AIR 1991 SC 1065 ; and Ramesh Babu Desai v. State of Maharashtra, 2004 CRI. L.J. 4593 (Bombay High Court), for the proposition that the injuries on the accused must be explained by the prosecution and not by the accused himself. He, accordingly, prayed for dismissal of the appeal filed by the State. (16) In reply, Mr. Mandal cited the decision in Dhananjoy Chatterjee v. State of W.B, (1994) 2 SCC 220 , to contend that registration of FIR on the basis of the dying declaration of the victim by PW-18 cannot be faulted since it was that statement which alone could be treated as the FIR. (17) This Court has heard the learned advocates for the parties and perused the materials on record. Before this Court proceeds to decide the rival claims, it would be prudent to consider the power of the appellate court while considering an appeal against an order of acquittal. The Supreme Court in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 , after considering various previous decisions observed in paragraph 42 as follows: "From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. In Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450 , the Supreme Court upon consideration of other previous decisions including Chandrappa (supra) succinctly carved out principles which the High Court ought to follow if it proposes to overrule or otherwise disturb acquittal ordered by the trial court. In paragraph 70, it was held as follows:- "In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial courts acquittal: 1. The appellate court may only overrule or otherwise disturb the trial courts acquittal if it has very substantial and compelling reasons for doing so. A number of instances arise in which the appellate court would have very substantial and compelling reasons to discard the trial courts decision. The appellate court may only overrule or otherwise disturb the trial courts acquittal if it has very substantial and compelling reasons for doing so. A number of instances arise in which the appellate court would have very substantial and compelling reasons to discard the trial courts decision. Very substantial and compelling reasons exist when: (i) The trial courts conclusion with regard to the facts is palpably wrong; (ii) The trial courts decision was based on an erroneous view of law; (iii) The trial courts judgment is likely to result in grave miscarriage of justice; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial courts judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached one that leads to acquittal, the other to conviction the High Courts/appellate courts must rule in favour of the accused. Yet again, the Supreme Court in Luna Ram v. Bhupat Singh, (2009) 3 SCC 749 , upon consideration of Chandrappa (supra) held that the appellate court considering an appeal against the judgment of acquittal ought to interfere only when there are substantial reasons for doing so, and if the impugned judgment is clearly unreasonable, and relevant and convincing material have been unjustifiably eliminated in the process, it would be a substantial reason for interference. Keeping the aforesaid principles in mind, this Court would consider the materials on record for reaching a finding as to whether the appeal filed by the State questioning the propriety of the decision of the learned Judge deserves interference or not. Circumstantial evidence to sustain a conviction must be complete and admit of no reasonable conclusion consistent with the innocence of the accused, appears to be settled law. Circumstantial evidence to sustain a conviction must be complete and admit of no reasonable conclusion consistent with the innocence of the accused, appears to be settled law. A decision, therefore, has to be reached by juxtaposing the exculpatory circumstances with the sheet anchor of the prosecution case, i.e. the dying declaration, and the injuries found on the person of the first respondent after his arrest and the forensic report in respect of detection of petroleum hydrocarbon fractions in the wearing apparels of the second respondent. (18) The respondents must be presumed to be innocent, until the contrary is proved. That they are innocent stands reinforced by reason of the judgment and order under appeal. Therefore, unless all the links in the chain of circumstantial evidence are present making it complete, the respondents ought not to be convicted merely by reason of the inculpatory circumstances against each of them as noted above. It is clear on perusal of the evidence on record that there are several contradictions and inconsistencies in the evidence as well as missing links resulting in break in the chain of circumstantial evidence and the chain cannot be held to be complete based whereon the respondents could be nailed, as highlighted by Mr. Bahadur and noted supra. Mr. Bahadur seems to be right in his contention that the points urged by him cumulatively ought to be considered a bane for the prosecution case based whereon the finding of the learned Judge that the respondents are entitled to benefit of doubt ought to be concurred. In so far as credibility of PW-12 is concerned, there is no material on record to doubt his evidence. A Constitution Bench of the Supreme Court in Laxman v. State of Maharashtra, AIR 2002 SC 2973 , had the occasion to consider similar aspects regarding veracity of dying declaration where the doctors certificate regarding the fitness of the victim to give declaration had not been taken. The Court held that if the person recording the statement is satisfied that the person was fit then the veracity of the declaration will not be questioned. The Court held that if the person recording the statement is satisfied that the person was fit then the veracity of the declaration will not be questioned. It was observed by the Court that the view taken in Paparambaka Rosamma v. State of A.P., (1999) 7 SCC 695 , of getting the doctors certificate on the state of mind of the patient to make the statement would be a hyper-technical view, particularly when the Magistrate stated that the patient was in a fit state of mind and whereafter he recorded the dying declaration. The Court further held that where the Magistrate had ascertained from the doctor whether the victim was in a fit condition to make the statement and obtained an endorsement to that effect, merely because the endorsement was not made on the dying declaration but on the application, it would not render the dying declaration suspicious in any manner. (19) Although, PW-12 in course of his examination in chief deposed that the victim was fit to give her statement, there is no such recording by the attending doctor (PW-13) on the dying declaration (Exhibit-9) and even by the PW-12 himself. However, that is not to be viewed as a vitiating factor in view of the declaration of law made by the Supreme Court in Laxman (supra). (20) It is true that a dying person will not falsely implicate an innocent person in the commission of a serious crime. But it is settled law that a dying declaration can be acted upon without corroboration, if it is otherwise found to be true and reliable. The dying declaration would have been acceptable to this Court as a genuine document, but for two reasons which have created serious doubts. (21) Firstly, the victim stated that she has been residing with her husband and a child and that she was a local resident of Middle Point. Her husband (PW-4), however, stated in chief that Earlier I used to live at Middle Point. At the relevant time of occurrence I used to live at Dairy Farm near Thirupathi Mandir. Mr. Bahadur submitted that Dairy Farm is at a distance of about 1 km. from Middle Point. This submission was not disputed by Mr. Mandal. Her husband (PW-4), however, stated in chief that Earlier I used to live at Middle Point. At the relevant time of occurrence I used to live at Dairy Farm near Thirupathi Mandir. Mr. Bahadur submitted that Dairy Farm is at a distance of about 1 km. from Middle Point. This submission was not disputed by Mr. Mandal. If indeed the victim with her husband previously resided at Middle Point and on the date of occurrence was residing at Dairy Farm, it baffles the Court as to why the victim declared that she was a local resident of Middle Point. Secondly, the alleged thumb impression of the victim (Exhibit-9/1) is also not free from doubt. The body of the victim was completely charred when she was brought to the hospital and at the time of inquest, albeit three days later, her fingers were found half bent inside and skin totally burnt. Having regard to such state of affairs, the thumb impression appearing on even the photocopy of the dying declaration, at page 100 of the paper book, with the ridge quite prominent leaves enough room for suspicion. This, coupled with the fact that PW-13, the attending doctor, had left the hospital on signing on a blank piece of paper (reflecting gross irresponsibility of the PW-13) has left the Court guessing as to whether the dying declaration is that of the victim or not particularly when she had suffered 100% burns and more than 1 hours had passed since she was set on fire. Question as to whether she was physically and mentally fit to give her statement has assumed doubtful proportion. (22) It is indeed surprising as to why PW-13, on first examination of the victim, did not ascertain from her the reason for such precarious condition. It cannot be reasonably assumed that the victim was not in a fit condition to give the history of her injury to PW13 but soon thereafter regained fitness to give her statement to PW-12. The Supreme Court in State of Punjab v. Gian Kaur, 1998 SCC (Cri) 942, was considering an appeal by the State against an order of acquittal passed by the High Court disbelieving a dying declaration on the ground that even though according to the medical evidence the victim had 100% burns, her thumb mark was appearing on the dying declaration with clear ridges and curves. In view of inconsistency in evidence given by two doctors, the High Court gave the benefit of doubt to the respondents. It was held that the High Court was right and it could not be said that an unreasonable view had been taken by the High Court in that case. (23) Apart from anything else, there is no cogent evidence on record to prove that the respondents were known to the victim. In course of examination under Section 313, Cr.P.C., the respondents stated that they did not know the victim. PW-4 and PW-1, Mr. V.T. Murthy, cousin of the victim tendered evidence that the victim had told them about the second respondent who was sorry for suspecting the victim to have illicit relationship with the first respondent and that the first respondent had made arrangements for her service. Unfortunately, such evidence is not admissible and has to be rejected as hearsay evidence. Failure on the part of the prosecution to establish that the victim was known to the respondents on the basis of admissible evidence must be held to prove fatal. This Court is unable to record a satisfaction, for the foregoing reasons, that Exhibit-9 is a dying declaration which is worthy of being relied on to hold against the respondents. Apart from the circumstances pointed out by Mr. Bahadur, this Court finds few other reasons for which the order under appeal merits to be affirmed. (24) The place of occurrence was not far away from a locality. From the site map (Exhibit-12) it appears that the house of one Maleswar Rao was at a distance of 450 ft. from the actual site where the victim was lying. It is in the evidence of PW-18 that the place of occurrence was by the side of a link road used by villagers of that area to walk on foot and also vehicles were plied through the same; but it was not a bus route. It was 6/6.30 P.M. when the alleged incident occurred on a winter day. It must have been dark by then. If the respondents intended to set fire on the victim, she would raise an alarm by shouting as part of a normal human reaction. It is surprising that nobody in the vicinity heard her. It was 6/6.30 P.M. when the alleged incident occurred on a winter day. It must have been dark by then. If the respondents intended to set fire on the victim, she would raise an alarm by shouting as part of a normal human reaction. It is surprising that nobody in the vicinity heard her. Not only that, if she had been set ablaze, she ought to have been noticed in the dark by any one member of the public since it was not a lonely place. It is difficult to accept that absolutely no one came to her rescue, nor even any one testified in Court in respect of the alleged incident. The telephone call was received by PW-18 from S.C. Ganguly at about 7.00 P.M. It is highly unlikely that the victim would not be noticed by any one and she left to fend for herself, writhing in agony because of the burns she suffered. (25) That apart, the evidence of PW-4, the husband of the victim, that he was by the side of the victim in the burn-ward of the hospital where the victim had narrated her how she was set on fire by the respondents is considered to be absolutely untrustworthy. PW-4 went on to say that the ornaments worn by the victim were handed over to him by the attending nurse in the presence of PW-1, being the cousin of the victim. In course of cross-examination, PW-1 stated we were not allowed to enter into the burn-ward. Even Satyanarayana was also not allowed to enter into the burn-ward. It seems that PW-4, having married a second time two years after the victims death and having sent their daughter to her grand-parents, was over zealous to ensure that the culprits are brought to book but in the process gave a version which rendered the prosecution case unbelievable. (26) Since the chain of circumstances is not found complete due to missing links and does not unerringly point to the guilt of the respondents, the burns found on the person of the first respondent and the trace of petroleum hydrocarbon fractions detected in the wearing apparels of the victim must pale into insignificance and cannot form the basis of a valid conviction. This Court, therefore, concurs with the learned Judge that the prosecution was not able to establish the guilt of the respondents beyond reasonable doubt and that they are entitled to benefit of doubt. The judgment and order under appeal is affirmed. The appeal is dismissed.