JUDGMENT SMT. SADHANA S. JADHAV, J.:- The present appellant herein stands convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- in-default to suffer rigorous imprisonment for 2 months in Sessions Trial No.20 of 2005, by the Additional Sessions Judge, Kelapur, by his judgment and order dated 20.12.2006. Being aggrieved by the said judgment, the appellant has preferred the present Criminal Appeal. 2. The case of the prosecution, in a nutshell, is as follows: [a] on 19.1.2005 Sau. Tulsabai w/o Paikuji Atram was admitted in General Hospital at Yavatmal, as she had sustained burn injuries. The information was received by the Yavatmal Police Station and an intimation was given for recording the statement of the burnt patient. [b] The police then requisitioned the services of Naib Tahsildar and Executive Magistrate Shri Shrihari s/o Kanhuji Thamke, to record the statement of injured Tulsabai. The requisition is at Exh.30. [c] The statement recorded by PW 5 Executive Magistrate Shri Shrihari s/o Kanhuji Thamke, is at Exh.35. PW 5 Executive Magistrate Shri Thamke put certain preliminary questions to the injured. To question no.5 in respect of how the incident had occurred, the reply of Tulsabai was as follows: "Yesterday at 10.30 O'clock in the night, my husband Paikuji Atram returned home after consuming liquor. One man came with him. My husband insisted me to cook and serve food to him. My husband was hurling abuses. Similarly, he was beating me with kicks. He angrily poured kerosene from dabki (container) on my person, set me on fire with lamp and fled. I came running outside, while engulfed in flames. After I came outside, people rushed. When my husband set me on fire, at that time, we two i.e. husband and wife were present in the house. The man with him had already fled. The people from the village admitted me to the Hospital" [d] On the basis of this statement, PW 3 Subhash s/o Ramdas Pillewar, who was posted as Police Head Constable at Ghatanji Police Station, registered Crime No. 12/2005 for offence punishable under Section 307, 34 of the Indian Penal Code. The First Information Report in the printed proforma under Section 154 of the Code of Criminal Procedure is at Exh.24. Tulsabai succumbed to the burn injuries on 22.1.2005 at about 4.20 hours. The First Information Report in the printed proforma under Section 154 of the Code of Criminal Procedure is at Exh.24. Tulsabai succumbed to the burn injuries on 22.1.2005 at about 4.20 hours. The accused was arrested on 20.1.2005. The investigation was completed and charge-sheet was filed on 28.2.2005. [e] The case was committed to the Court of Sessions and registered as Sessions Trial No.20 of 2005. The prosecution examined seven witnesses to bring home the guilt of the accused. However, the entire case rests upon the dying declaration of Tulsabai recorded by PW 5 Executive Magistrate Shri S.K. Thamke, which is at Exh. 35. 3. Discussion as regards testimony of PW 1 is as follows: [a] PW 1 Prabhakar s/o Anandrao Kanake is the landlord of the house which was rented to accused and his wife Tulsabai. He has deposed before the court that on the day of incident at about 10.30 to 11.00 p.m. he heard the noise of save me. At that time, he was sleeping. He saw Tulsabai engulfed in flames and took her to the hospital. He has denied to have had any dialogue with the deceased. PW 1 Prabhakar was declared hostile. [b] In the cross-examination by the accused, PW 1 Prabhakar has stated that the accused and the deceased were not having any child. They were married 27 years ago. There was no electric supply in the room, where accused and deceased were residing. [c] The source of light at night was only by way of a kerosene lamp. The accused and his wife also used kerosene lamp at night. He has further stated that there was a discussion that Tulsabai had sustained accidental bum injuries. 4. PW 2 Chanclrakalabai Daulat Sidam is the one door neighbour of the accused and the deceased. On the day of the incident, she heard the cries of Tulsabai at about 10.30 to 11.00 p.m. At that time, she was sleeping in her house. PW 2 claims to have extinguished the fire and then Tulsabai was taken to the Hospital. She has also denied that there was any dialogue between her and Tulsabai. PW 2 was declared hostile. 5. The testimony of PW 3 is as follows: [a] PW 3 Subhash Ramdas Pillewar was the Constable on duty at Ghatanji Police Station on 20.1.2005. PW 2 claims to have extinguished the fire and then Tulsabai was taken to the Hospital. She has also denied that there was any dialogue between her and Tulsabai. PW 2 was declared hostile. 5. The testimony of PW 3 is as follows: [a] PW 3 Subhash Ramdas Pillewar was the Constable on duty at Ghatanji Police Station on 20.1.2005. He had received the case diary from Yavatmal City Police Station and on the basis of the case diary, had registered Crime No.12/2005 against the accused for offence punishable under Section 307 r/w 34 of the Indian Penal Code. [b] PW 3 Subhash has proved First Information Report at Exh.24, as he is the scribe of the First Information Report. The First Information Report is at Exh.24. It was recorded on the basis of the case diary. [c] The recitals of the First Information Report would show that the incident had occurred on 18.1.2005 at about 10.30 p.m. and the information was received at the Police Station on 20.1.2005. 6. PW 4 Dr. Hemant s/o Panditrao Mahatre was the Medical Officer attached to the Surgery Department of Yavatmal General Hospita1. On 19.1.2005 at about 5.00 p.m. Naib Tahsildar Shri Thamake had come to the hospital for recording the dying declaration of Tulsabai. [a] At that time, PW 4 Dr. Mahatre examined the patient and certified that she was mentally fit for giving her statement. After recording of dying declaration, he had again certified that the dying declaration was recorded in his presence and the patient was conscious whi1e the statement was being recorded. He has proved his signatures on Exh.35, which are marked m; Exh.30 and Exh.31. [b] PW 4 Dr. Mahatre has deposed before the court that the patient had sustained 70% burn injuries. He has given an evasive answer as to whether pain killer or sedative drugs were administered to the patient. 7. Since the entire case rests on the dying declaration at Exh.35 recorded by PW 5, his evidence needs to be scrutinised. The evidence of PW 5 is as follows: [a] PW 5 Shrihari s/o Kanhuji Thamake was working as Naib Tahsidar at Yavatmal in January 2005. On 19.1.2005 Police Constable Dnyaneshwar of Yavatmal City Police Station approached him and tendered a requisition for recording the dying declaration of Tulsabai. He received the said requisition/memo, which is at Exh.34. The evidence of PW 5 is as follows: [a] PW 5 Shrihari s/o Kanhuji Thamake was working as Naib Tahsidar at Yavatmal in January 2005. On 19.1.2005 Police Constable Dnyaneshwar of Yavatmal City Police Station approached him and tendered a requisition for recording the dying declaration of Tulsabai. He received the said requisition/memo, which is at Exh.34. He reached the hospital at about 4.20 p.m. along with PC Dyneshwar. [b] PW 5 Shri Thamake met PW 4 Dr. Mahatre in the hospital and informed him that he wanted to record the dying declaration of Tulsabai. He had taken the doctor to the patient. He ascertained the consciousness of the patient and then requested the doctor to certify her consciousness and fitness. At about 5.10 p.m. he started recording the dying declaration. [c] PW 5 Thamake deposed before the court that the deponent disclosed her name as Tulsabai w/o Paikuji Ataram, Aged 35 years, Occupation - Tailoring. She narrated to him the incident (supra). He has then deposed that he read over the statement to her and she admitted the contents to be correct as per her say. He then obtained the thumb impression of right hand on the said statement. [d] Doctor certified about her fitness at the end of the statement/dying declaration, which is at Exh.35. [e] In the cross-examination, PW 5 Thamake has stated that he evicted the relatives from the burn ward before recording the dying declaration. He has further narrated thus: "Printed form of dying declaration is printed by me. My name is also printed on the form. At the end of writing of dying declaration, there is no mention in my handwriting that contents were read over to the patient and she admitted it correctly. Below my signature, there is no time and date in Exh.35..........I have signed below the dying declaration but it does not show that I have signed as attested to thumb impression" 8. On perusal of Exh.35, it is clear that the space in front of column nos.6, 7 and 8 are blank. The space before time of completion of the recording of the statement is blank. The column read over and admitted it to be correct is also blank. 9. On perusal of Exh.35, it is clear that the space in front of column nos.6, 7 and 8 are blank. The space before time of completion of the recording of the statement is blank. The column read over and admitted it to be correct is also blank. 9. To rule out any remote infirmity, it is necessary that there has to be an endorsement on the dying declaration that the contents were read over and admitted to be correct and as per the say of the deponent. The said column cannot be treated as an empty formality, since the deponent is not available for cross-examination. 10. Hence, it is a material inherent infirmity in the dying declaration and, therefore, cannot inspire the confidence of the Court. When the statement was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. Merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the same and getting it endorsed to be correct was actually followed. 11. Reliance can be placed on the judgment delivered by the Hon'ble Supreme Court in the case of Sheikh Bakshu and others Vs. State of Maharashtra, reported in (2008) 1 Supreme Court Cases (Criminal), 679. It is held by the Apex Court that: "There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable" 12. Another glaring infirmity in the recording of the dying declaration is that PW 5 Shri S.K. Thamake has deposed before the Court that he had obtained the right hand thumb impression of Tulsabai Atram on Exh. 35. However, the inquest panchanama, which is at Exh.41, shows that there are burn injuries on the portion of shoulder and from the portion of armpit upto the thumb of right hand and the skin is peeled off. Similar is the condition of the left hand. In spite of it, ridges and curves are clearly seen on the thumb impression. 13. However, the inquest panchanama, which is at Exh.41, shows that there are burn injuries on the portion of shoulder and from the portion of armpit upto the thumb of right hand and the skin is peeled off. Similar is the condition of the left hand. In spite of it, ridges and curves are clearly seen on the thumb impression. 13. Be that as it may, PW 5 Shri Thamake has admitted in the cross-examination that he had not signed below the dying declaration and had not attested the same. It is not sufficient that the Magistrate would state in his substantive evidence that he has followed the procedure contemplated for recording of the dying declaration. Proof of recording of dying declaration is one thing and evidentiary value and truthfulness of the dying declaration is another thing. Before a person could be convicted on the basis of the dying declaration, whether it is written or oral, it is not sufficient only to see that it is correctly recorded and as per the say of the deponent. 14. The manner in which the dying declaration is recorded is not the only consideration, but all possible efforts should be made by the prosecution that any room for suspecting the veracity of the dying declaration is not left. The dying declaration must inspire the confidence of the Court. 15. Notwithstanding the fact that the dying declaration was recorded by the Magistrate, the discrepancies in the writing in the printed format of dying declaration discussed in the foregoing paras are such that they would not inspire the confidence of the Court. 16. In view of the aforesaid reasons, we pass the following order: [i] Criminal Appeal No. 16/2007 is allowed. The conviction and sentence passed by the Additional Sessions Judge, Kalapur in Sessions Trial No.20 of 2005 against the appellant is hereby quashed and set aside. [ii] The appellant is in jail. He shall be set at liberty forthwith, if not required in any other case. [iii] Fine amount, if paid, shall be refunded to the appellant. Ordered accordingly.