JUDGMENT P.K. Musahary, J. 1. This appeal is directed against the judgment and order dated 03.09.2001 passed by the learned Sessions Judge, Lakhimpur, North Lakhimpur, in Sessions Case No. 84(NL) of 2000 convicting the appellant under Section 302 IPC and sentencing him to undergo R.I. for life and pay fine of Rs. 2,000/- and in default further R.I. for another six months. The case, in brief, as projected by the prosecution is that on 12.8.2009, at about 6 AM, while the informant was ploughing in the field, his father Manikanta Gogoi informed him that some mishap had occurred and asked him to come home immediately. He rushed home and found his 2nd wife Minakshi inside the room in a severely burnt state and in distress. On his query, the victim could somehow tell that appellant Tilumai poured kerosene and burnt her. Hearing the hue and cry, the neighbours, including the village headman assembled and in their presence the victim disclosed that the appellant set fire on her. The appellant, surprisingly, left the house after the incident with her two children. Injured Minakshi was shifted to hospital for treatment, but she expired on the way. Her body was taken to Ghilamorah Police outpost where the informant lodged a written Ejahar against the appellant. The police registered a case being Dhakhukhana PS Case No. 167/1999 under Section 302 IPC. During investigation the I.O. visited the place of occurrence, held inquest, recorded the statements of the witnesses and sent the dead body for postmortem examination. After collection of the post mortem examination report and on completion of the investigation, the I.O. laid the charge-sheet against the appellant under Section 302 IPC. The Court of Sessions on receipt of the case records on committal, framed a charge under Section 302 IPC against the appellant to which she pleaded not guilty and demanded trial. Accordingly, she stood the trial. The prosecution examined 11 witnesses including the medical officer to establish the charge. The appellant also examined one witness in her defence. At the conclusion of trial, the learned trial court on the basis of the materials and evidence on record and upon hearing the parties, passed the impugned judgment and order convicting and sentencing the appellant as mentioned earlier. 2. Heard Mr. R.K. Adhikari, learned Amicus Curiae for the appellant and Mr. K.A. Mazumdar, learned Addl. P.P. for the Respondent State. 3. 2. Heard Mr. R.K. Adhikari, learned Amicus Curiae for the appellant and Mr. K.A. Mazumdar, learned Addl. P.P. for the Respondent State. 3. We now undertake an exercise to appreciate the evidence of the prosecution witnesses. The first witness is the husband of the deceased who lodged the FIR. He is not an eye witness to the alleged occurrence of setting fire on his deceased 2nd wife. He was ploughing in the field and he came home on being informed by his father. When he arrived home, he found his victim wife sitting on the floor inside the room in a burnt condition with completely burnt dress. She was not in a position to talk and as he enquired about the incident the victim told him that the appellant set fire on her by pouring kerosene and as a result she was burnt. He informed the village Headman Sri Purnananda Gogoi who came to his house immediately. His wife told the village Headman that the appellant set fire on her by pouring kerosene. In cross examination he stated that he married the victim just 1 1/2 months prior to the incident. He never noticed quarrel between his first wife (the appellant) and 2nd wife (the deceased) after the marriage. Few days before the incident his 2nd wife Minakshi went to her father's house to attend a marriage ceremony and she came back after staying only one day. He also stated that on the date of occurrence he did not quarrel with the appellant and denied the suggestion that a dispute took place between him and his wife (appellant) on the previous day of the incident. He also denied the suggestion that he took dinner in the house of the appellant on the previous day. His two wives used separate kitchens and he slept with Minakshi (2nd wife) in the night. He denied that due to quarrel with the deceased he took meal in the house of the appellant and due to depression his 2nd wife committed suicide. He also denied the suggestion that the deceased had not made a statement before her death that the accused set fire on her by pouring kerosene and that he tried to hide his guilt by filing a false case against the appellant in a planned manner. He also denied the suggestion that the deceased had not made a statement before her death that the accused set fire on her by pouring kerosene and that he tried to hide his guilt by filing a false case against the appellant in a planned manner. He, however, stated that he did not know whether, while taking the victim to hospital, the villagers, namely Shri Haren Gogoi, Naren Gogoi and Muluka Gogoi who were proceeding in the boat, had heard the dying declaration of the deceased. He disclosed that Manikanta Gogoi, P.W. 2 and Niroda (P.W. 5) are his father and elder sister respectively. The other persons namely Haren Gogoi, Naren Gogoi, Muluka Gogoi and Zinty Gogoi are also his close relatives. 4. P.W. 2, Sri Manikanta Gogoi is the father of the informant. On the date of occurrence, at 6 AM, he was busy in fishing near his house. His informant son, P.W. 1, lives separately in an adjacent house. On being informed by one Ganga Dhar Phukan that smoke was coming out from the house of P.W. 1, he rushed to the house of P.W. 1, and on arrival thereat, he saw the appellant coming out from her house and the door of the bed room of P.W. 1 closed. After opening the door he found Minakshi, 2nd wife of Dibya (P.W. 1), in a severely burnt state and 'sleeping' on the floor with her dress completely burnt. On seeing the scene he ran out and informed Dibya, who was ploughing in the field, about the incident and asked him to come home immediately. The village Headman had already arrived at their house. At that time he was not in a position to speak. On being asked about the incident, Minakshi told the Goanburah that the appellant (Tilumai), set fire on her body by pouring kerosene from the back side. As the condition of Minakshi was bad, they arranged for a boat and proceeded towards the hospital but she died on the way. Her dead body was handed over to Ghilamorah Police Station. On being cross-examined he stated that the appellant did not raise any alarm when he entered into Dibya's room. The fire on the body of Minakshi was already doused and she was lying in an unconscious state. Her dead body was handed over to Ghilamorah Police Station. On being cross-examined he stated that the appellant did not raise any alarm when he entered into Dibya's room. The fire on the body of Minakshi was already doused and she was lying in an unconscious state. He disclosed that the deceased was brought to their house as daughter-in-law about one month prior to the incident His son Dibya did not solemnize marriage with Minakshi. She was just brought home by Dibya. He, however, denied the suggestion of the defence that Minakshi was not accepted by his family as she had bad record in the past and for that his family used to torture her. 5. P.W. 3, Sri Haren Gogoi stated that Minakshi died in an accident about 1 1/2 years back in the year 1999 in the morning at about 6 AM in the month of 'Bhadra'. At that time he was sleeping and on hearing hulla, he got up from bed and went to Dibya's house where some people, including the Gaonburah, were present. On being asked by the Gaonburah, Minakshi told that the appellant set fire on her by pouring kerosene. The injured Minakshi was boarded in a boat for shifting her to hospital but she died on the way. P.W. 4 is one Jiten Gogoi. He deposed that he was working at home at the time of occurrence and he came to Dibya's house on hearing some nulla. He found many people present and saw the injured Minakshi sitting inside the room in a burnt condition. The village Gaonburah was present and he was asking the injured Minakshi about the incident. She told that the appellant set fire on her body by pouring kerosene. In cross examination, he stated that he heard about the incident from the Gaonburah. Niroda Gogoi, P.W. 5, deposed in the same manner as was done by P.W. 4. In cross examination, she however stated that Minakshi was burnt inside the room and she could not speak properly as her mouth was burnt. But she could hear what the injured Minakshi was telling the Goanburah. 6. P.W. 7, Sri Mahananda Gogoi, brother of the informant stated that the deceased was his sister-in-law. At the time of occurrence he was sleeping. He was informed by his cousin (sister) that heavy smoke came out from the house of Dibya and somebody had died. But she could hear what the injured Minakshi was telling the Goanburah. 6. P.W. 7, Sri Mahananda Gogoi, brother of the informant stated that the deceased was his sister-in-law. At the time of occurrence he was sleeping. He was informed by his cousin (sister) that heavy smoke came out from the house of Dibya and somebody had died. He came to Dibya's house and came to know that the appellant had already left home with her children and in the meantime, Dibya who was ploughing in the field, had arrived home. As soon as Dibya Gogoi opened the door they could notice that the entire body of Minakshi was burnt and she was lying on the floor. The injured Minakshi told them that due to family dispute, the appellant set fire on her by pouring kerosene. The village Gaonburah, Purnananda Gogoi, on being informed, came and on his query Minakshi told that the appellant set fire on her by pouring kerosene. They arranged for a boat to shift Minakshi to hospital as advised by the Gaonburah. He proceeded ahead by a bicycle but he came to know that the injured Minakshi had died on the way. In cross examination, he stated that Dibya separated from the family about 5/6 months before the incident. He came to the place of occurrence after 20 minutes. He found Minakshi lying on the floor in a critical condition. The village Gaonburah came 2 minutes after he reached Dibya's house. The appellant fled away along with her two children. The relation between the deceased Minakshi and the appellant was not good and quarrel used to take place between them. At the time of occurrence Dibya was ploughing near his house. Dibya, on being informed by his father that Tilumai, the first wife set fire on his 2nd wife, rushed to his home leaving his work in the field. He released the cattle and thereafter, proceeded to hospital with the injured Minakshi. He accompanied the persons who were taking the injured to hospital but she died on way near a beel. In cross examination, he stated that at the time when he accompanied the injured Minakshi, she could not speak properly. 7. P.W. 9 stated that on hearing hue and cry he came to the house of Dibya and found the Gaonburah present and asking Minakshi about the incident. In cross examination, he stated that at the time when he accompanied the injured Minakshi, she could not speak properly. 7. P.W. 9 stated that on hearing hue and cry he came to the house of Dibya and found the Gaonburah present and asking Minakshi about the incident. He heard Minakshi telling that the appellant set fire on her body by pouring kerosene. At that time the appellant was not found at home. Minakshi was taken to the hospital in a boat but she died on the way. The dead body was handed over to police station instead of taking it to hospital. He put his signature on the inquest report as a witness. In cross examination, he stated that the body of Minakshi with burn injuries was lying on the floor inside the room in a critical condition. He entered the room along with the Goanburah. He also stated that though the statement made by Minakshi was not clear, they could understand what she was saying. But the police did not record his statement. 8. P.W. 10, Chenimai Phukan deposed that when she got up from bed, she noticed some people were running towards the house of Minakshi. She went there and came to know about the incident. She saw Minakshi lying on the floor with bum injuries with her wearing apparel completely burnt. At that time Minakshi could speak and she was telling that the appellant set fire on her. But in cross examination, she stated that she had not gone inside the room where the incident had taken place. She saw the injured Minakshi from the entrance only. She left the place after sometime as she was shocked after noticing Minakshi in a completely burnt and critical state. At that time Minakshi could speak. This witness introduced herself as Secretary of the Local Manila Samitee. They did not record the dying declaration made by the injured Minakshi. She had no knowledge whether Minakshi was accepted by her in-laws. The police recorded her statement after 2/3 days of the incident. She is related to Dibya, husband of the deceased. 9. P.W. 11, Dulal Kalita was posted at Ghilamorah Police Station on 12.8.1999 and he testified that P.W. 1, Dibya Gogoi, filed a written Ejahar on that day at about 6 AM informing that his first wife (appellant) set fire on his 2nd wife Minakshi Gogoi. She is related to Dibya, husband of the deceased. 9. P.W. 11, Dulal Kalita was posted at Ghilamorah Police Station on 12.8.1999 and he testified that P.W. 1, Dibya Gogoi, filed a written Ejahar on that day at about 6 AM informing that his first wife (appellant) set fire on his 2nd wife Minakshi Gogoi. On receipt of the said Ejahar, Ext. 1, he made GD Entry at 3 PM and sent the same to Officer-In-Charge, Dhakhukhana PS, on the basis of which a case, being Dhakhukhana PS Case No. 167/1999 was registered under Section 302 IPC. He deposed that he held the inquest on the dead body and prepared a report in presence of the witnesses. He found the deceased in a burnt condition from top to bottom. The dead body of the deceased was sent for post mortem examination with a challan. During investigation he visited the place of occurrence, recorded the statements of the witnesses, prepared a sketch map, arrested the appellant and produced her before the Court. In cross-examination, he stated that he visited the place of occurrence on the next day and recorded the statements of the witnesses. He did not find any kerosene gallon, match box, stick etc. at the place of occurrence and as such he could not seize any article. 10. The appellant denied all the incriminating evidence of the prosecution witnesses placed before her during examination under Section 313 Cr.P.C. She, however, in her defence, examined one witness Smt. Indira Chamua as D.W. 1. This D.W. 1 stated that both the appellant and the informant are her relatives; the later being her brother-in-law. Minakshi died on 12.8.99 due to burn injury. The informant's father summoned her after the incident. The injured Minakshi was lying on the floor in an unconscious state and Dibya was holding her. The whole of the body of Minakshi was almost burnt and she asked Minakshi about the incident but she could not reply. While he was present at Dibya's house, the Gaonburah, Purnananda Gogoi, also came there. She stayed at Dibya's house till arrangement was made to shift Minakshi to hospital in a boat. Dibya Gogoi brought Minakshi as his 2nd wife about one month prior to the incident. A rumour spread that the deceased had illicit relation with her own father. While he was present at Dibya's house, the Gaonburah, Purnananda Gogoi, also came there. She stayed at Dibya's house till arrangement was made to shift Minakshi to hospital in a boat. Dibya Gogoi brought Minakshi as his 2nd wife about one month prior to the incident. A rumour spread that the deceased had illicit relation with her own father. In cross-examination, she stated that she was not present at the time when the Gaonbura enquired from the injured Minakshi about the incident. She denied the suggestion that she adduced false evidence at the instance of the appellant to save her from being convicted. 11. From the above evidence we find that there is no eye witness to the occurrence. The husband of the deceased, P.W. 1, was ploughing in the paddy field at the time of occurrence. It is the evidence of P.W. 2, father of P.W. 1, that the door of the bedroom of the deceased was closed from outside and from the said room smoke was coming out. This P.W. 2 opened the door of the room from outside and found the deceased lying on the floor with severe burn injuries and in restless condition. But he has not stated who was present when he opened the door of the room. No witness was examined to prove that the appellant was present at the time of opening the door of the room by P.W. 2. There is no corroborated evidence to the fact that the room was found bolted or closed from outside due to which the victim could not come out to save her from being burnt. There is also no evidence to the fact that the appellant was present at the time of occurrence and it was she who bolted or closed the door from outside. This P.W. 2, in cross-examination, stated that the appellant Tilumai was coming out from the house and she did not raise any alarm. The prosecution relied on this uncorroborated evidence of P.W. 2 as a proof that the appellant set fire on the deceased taking into consideration that there was no good relation between the appellant and the deceased as first wife and 2nd wife of P.W. 1. The suspicion arose due to the evidence of some prosecution witnesses that after the occurrence, the appellant left the house. The suspicion arose due to the evidence of some prosecution witnesses that after the occurrence, the appellant left the house. We are, thus, called upon to discuss and arrive at a conclusion whether this circumstance is enough to hold the appellant guilty of the offence. As discussed already it has not been proved conclusively that the door was bolted or closed from outside. Except P.W. 2, no witness has testified that it was the appellant who closed the door of the room where the deceased was living at the time of occurrence. No doubt, the appellant was present at home at the time of occurrence or she might have left the house just after the incident but such circumstances alone can not be regarded as a piece of valid and sufficient evidence to hold the accused guilty unless a strong, cogent and reliable evidence is found on record supported by evidence of other witness. A suspicion may arise due to existence of such circumstances but such suspicion, in our considered view, is not enough to hold the appellant guilty. We are satisfied that the prosecution failed to prove the allegation that it was the appellant and appellant alone who closed the door of the room of the deceased after setting fire on her by pouring kerosene. 12. If the evidence of the prosecution that the deceased, before her death, in a burnt condition, made the dying declaration before some persons including the village Headman and some witnesses, to the effect that the appellant had poured kerosene and set fire on her, is to be relied upon, the prosecution must be able to adduce evidence that there was a container in which kerosene was carried and it was poured on the body of the deceased but the I.O., P.W. 11, in his evidence, (in cross-examination) stated that he found no kerosene gallon, match box etc inside the room of Minakshi. Let us assume that after committing crime, the appellant removed or took away the container to destroy the proof or clue of setting fire on the body of the deceased, but where is evidence proving the fact that the appellant brought kerosene in a container and set fire after pouring kerosene on her person? Let us assume that after committing crime, the appellant removed or took away the container to destroy the proof or clue of setting fire on the body of the deceased, but where is evidence proving the fact that the appellant brought kerosene in a container and set fire after pouring kerosene on her person? There is not even an iota of evidence that the appellant was seen by anybody coming near the room or going out of the room, where the deceased was living, just immediately before or at the time or just after the occurrence. The I.O. is even silent about existence of smell of kerosene in the room in question. We are not impressed that the prosecution has been able to adduce cogent and reliable evidence proving the charge that the appellant brought kerosene and after pouring it set fire on the body of the deceased Minakshi. 13. The alleged occurrence, as it appears from the FIR, took place at 6:00 A.M. of 12.08.1999. Most of the villagers had already left their bed and were getting ready for their works. As per the evidence, nobody heard any cry or alarm for help from the deceased. At least no witness has stated in their evidence that they heard any cry for help coming from the room of the deceased. In the evidence of P.W.-2 it is found that one Gangadhar Phukan who went out for ploughing, saw smoke coming out from the house of Dibya (husband of the deceased) and he immediately came to P.W.-2 and asked him to see why such heavy smoke was coming out. P.W.-2 rushed to see what had happened in the room. He has not stated that the deceased made any hue and cry or raised any alarm. What is normally expected is that if the deceased was set fire by somebody, she should have instantly raised alarm and made hue and cry and she would not have waited for somebody to come and save her after seeing the smoke coming out from her room. It is verified from record that both the deceased and the appellant were aged between 25 and 30 years at the time of occurrence. It is not an easy task for a person to pour kerosene and set fire on the body of a woman of equal age. It is verified from record that both the deceased and the appellant were aged between 25 and 30 years at the time of occurrence. It is not an easy task for a person to pour kerosene and set fire on the body of a woman of equal age. It is difficult to accept that the appellant could so easily pour kerosene and set fire without any resistance from her and without raising any hue and cry. It is to be noted that the said Gangadhar Phukan, who first saw the smoke coming out from the room of the deceased, was not examined by the prosecution as a witness to corroborate the evidence of P.W.-2 that he was informed by the said person and on being so informed he (P.W. 2) immediately proceeded to the house/room of the deceased and saw the appellant coming out from the house. He has not clearly stated that while the appellant was coming out from the house she was carrying any gallon or container in her hand. The prosecution led no evidence to substantiate the allegation that the appellant came out from the room of the deceased with a gallon or container in her hand after committing the offence. In any case, P.W.-2 did not see her coming out from the room where the deceased was living or was confined and the appellant bolted the door from outside. As per the evidence on record, both the appellant and the deceased lived in two separate rooms of the same house of P.W. 1 although they were maintaining separate mess. Surprisingly the aforesaid Ghangadhar Phukan was not cited as a witness in the charge-sheet and no prayer was made by the prosecution to examine the said Ghangadhar Phukan although P.W.-2 stated that it was Ghangadhar Phukan who informed him (P.W.-2) about the smoke coming out from the room of the deceased and he rushed to the said room. The aforesaid Ghangadhar Phukan was the best person to support the evidence of P.W.-2 and the prosecution, having not done so, rendered the evidence of P.W. 2 as unbelievable and unreliable. No conviction could be ordered on the basis of such uncorroborated evidence. 14. That apart, P.W. 2 specifically mentioned in his evidence that Haren Gogoi, Min Phukan, Zinty, Ghangadhar Phukan etc. were present when the injured Minakshi made the dying declaration accusing the appellant. No conviction could be ordered on the basis of such uncorroborated evidence. 14. That apart, P.W. 2 specifically mentioned in his evidence that Haren Gogoi, Min Phukan, Zinty, Ghangadhar Phukan etc. were present when the injured Minakshi made the dying declaration accusing the appellant. Haren Gogoi was examined as P.W. 3. Ghangadhar Phukan and Min Phukan, who, as per evidence of P.W. 2 were present at the time of making the dying declaration, were not examined by the prosecution. Haren Gogoi, P.W. 3, is admittedly a close relation of the informant and he is, undoubtedly, an interested and related witness. The prosecution, more surprisingly, did not examine the village headman Shri Purnanda Gogoi although he was cited as a witness in the charge-sheet. As per the evidence of P.W. 1, husband of the deceased, the village Headman was informed about the incident and he came to the place of occurrence. The village Headman enquired from the deceased about the incident and she made the dying declaration before him in presence of several persons, but the prosecution had chosen to examine only one person, namely Haren Gogoi (P.W. 3) who is related to the informant. P.W. 1, husband of the deceased stated in his evidence that P.W. 2 is his father while P.W. 5, Niroda Gogoi is his elder sister. He also stated that Naren Gogoi, P.W. 9 and P.W. 4, Zinty Gogoi, are his uncle and aunt. Except P.W. 11 (I.O. of the case) all are related and interested witnesses. P.W. 10, Chenimai Phukan is a co-villager. She came to the place of occurrence after she came to know about the incident. According to her evidence, Minakshi could speak although she was lying in an unconscious state. She clearly stated that she did not hear anything what the injured was telling. It is not understood, if the injured Minakshi was lying in an unconscious state, how she could speak and make the dying declaration. It is, however, the evidence of P.W. 10 that she did not hear anything what the injured person was saying. From her evidence it is clear that this witness did not hear whether the injured person made the dying declaration as claimed by the prosecution. In cross-examination, she ultimately admitted that P.W. 1, Dibya, is related to her. It is, however, the evidence of P.W. 10 that she did not hear anything what the injured person was saying. From her evidence it is clear that this witness did not hear whether the injured person made the dying declaration as claimed by the prosecution. In cross-examination, she ultimately admitted that P.W. 1, Dibya, is related to her. This makes the position clear that all the prosecution witnesses are related and interested witnesses and the prosecution failed to examine any independent witness to prove the charge and, more particularly, the fact that the victim, before her death, made the dying declaration before the village Headman and other villagers. In our view, the veracity of the evidence of those interested and related witnesses are not unquestionable. What prevented the prosecution from examining at least some villagers who were present at the time of making the dying declaration in presence of the village Headman? No explanation has been given by the prosecution why the most important independent witness like the village Headman was not examined although he was cited as a witness in the charge-sheet. 15. For the purpose of making our above point, reference may be made to Tarachand Vs. State of Maharashtra; AIR 1962 SC 130 . In the said case, the deceased wife made a dying declaration to the effect that her husband after sprinkling kerosene on her clothes, set fire on her and the deceased with her clothes burning went in the direction of the house of one Shantabai but fell down in front of it. The said dying declaration was made in presence of above named person Shantabai, cousin of the accused, and her husband Pandu Genda but those witnesses were not examined by the prosecution to corroborate the statement of the deceased. This lapse has been regarded as one of the factors to disbelieve the prosecution case and held that a dying declaration can only be believed if there are no grounds for doubting it at all. In the present case, as underlined earlier, there exists the grounds for doubt inasmuch as independent witness of the village, and particularly the Gaonburah, who were present, as claimed by the prosecution at the time of making the dying declaration by the deceased, was not examined. The prosecution has withheld the most important witness, the village Headman, to support its case. The prosecution has withheld the most important witness, the village Headman, to support its case. The prosecution, in the instant case, sought to prove the fact of making the dying declaration through the Gaonburah who is, undoubtedly, a material witness, yet it has deliberately preferred not to produce him as an witness. In this context, it is apt to refer to Habeeb Md Vs. State of Hyderabad; AIR 1954 SC 51 in which it is held that if a material witness has been deliberately and unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge. Further, in Narain Vs. State of Punjab; AIR 1959 SC 484 , it is held that the prosecution is cast with a duty to produce the material witness, although it is not bound to call all the witnesses who may have seen the occurrence. In para 13 of the said case, it is held as under: ...the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is a witness "essential to the upholding of the narrative on which the prosecution is based." Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied.... 16. The admitted position in this case is that there is no eye witness to the incident of setting fire on the deceased by the appellant by pouring kerosene. The only primary evidence against the accused is the dying declaration allegedly made by the deceased and on the basis of the said dying declaration, the learned trial court has convicted the appellant. As per the medical evidence, the deceased received 80% burn injury on her entire body except the buttock and she was in a serious state. As per the post-mortem report, Ext. As per the medical evidence, the deceased received 80% burn injury on her entire body except the buttock and she was in a serious state. As per the post-mortem report, Ext. 3, the dead body was brought to the Civil Hospital, North Lakhimpur, on 13.8.1999 at about 2.15 P.M. in a decomposed state with whole body burnt except the buttock and in the opinion of the Medical Officer who conducted the autopsy, the death of the deceased was caused due to shock as a result of 80 % burn injury. It may be noted that as per the FIR, the incident took place on 12.8.1999 at about 6 AM. The dead body was brought to the civil hospital for postmortem examination after about 8 hours. There is no mention at what time the deceased died due to burn injury, but it is apparent that the deceased did not survive long after sustaining the burn injury. No clarification was taken from the Medical Officer how long a person with 80% burn injury could survive and whether a person with such burn injury would be in a position to talk. It is however, found from the evidence that she was in a critical condition. At least P.W. 7 and 9 have stated that the deceased was lying in a critical condition. There are contradictions in the evidence of P.W. 1, 24, 57, 8 and 9. P.W. 1, husband of the deceased, stated that he found the deceased sitting on the floor inside the room, whereas P.W. 2, father of P.W. 1 (father-in-law of the deceased) stated that Minakshi was found severely burnt and "sleeping on the floor." It was contradicted by Zinty Gogoi, P.W. 4, who stated that Minakshi was sitting inside the room in a burnt condition. P.W. 5, Niroda Gogoi, also stated similarly. As against the statement of the aforesaid P.W. 1, 2, 4 and 5, P.W. 7, 9 and 10 have stated that Minakshi was lying on the floor inside the room. According to the evidence of P.W. 5 and 10 the injured Minakshi could speak at the time when they saw her lying on the floor. P.W. 5 also stated that Minakshi was in a position to speak. There is no expert opinion that a person with 80% burn injury lying in a critical condition could talk and narrate the incident. According to the evidence of P.W. 5 and 10 the injured Minakshi could speak at the time when they saw her lying on the floor. P.W. 5 also stated that Minakshi was in a position to speak. There is no expert opinion that a person with 80% burn injury lying in a critical condition could talk and narrate the incident. In absence of such expert opinion it will not be proper and safe on the part of the court to hold mat the deceased was in a position to talk. We refer ourselves to a classic decision of the Supreme Court in Ram Nath Vs. State of M.P., reported in AIR 1953 SC 420 wherein it is held that it is not safe to convict an accused person merely on the basis of a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. This golden principle of law has been followed all through till today. In Rup Ram Vs. State of M.P., reported in (2011) 14 SCC 577, the Apex Court observed that the question that arises is whether the deceased was in a position to make a statement and whether such a statement had in fact been made. The court has to examine; i) Whether the deceased was in a position to make a statement? ii) whether such a statement had in fact been made? and iii) Whether prosecution story is highly unnatural and lacks credibility? 17. We have already appreciated the evidence of the prosecution witnesses regarding the position of the deceased as found after the occurrence. We have already observed that some prosecution witnesses saw the deceased in a critical condition either lying or sitting or sleeping on the floor. If we assume that the deceased was in a position to talk then we have to find out whether the deceased, before her death, made the dying declaration as stated by some witnesses. It is quite difficult to answer this question inasmuch the prosecution examined only the related and interested witnesses. No independent witnesses was examined by the prosecution to corroborate the evidence on the fact that the deceased indeed made the oral dying declaration. It is quite difficult to answer this question inasmuch the prosecution examined only the related and interested witnesses. No independent witnesses was examined by the prosecution to corroborate the evidence on the fact that the deceased indeed made the oral dying declaration. The law of evidence is that in absence of corroborated evidence of independent witnesses, the claim of the prosecution can not be accepted as true and reliable. Let us assume that the deceased made the oral dying declaration. In that case the court has to examine whether the making of dying declaration by the deceased is unnatural and lacking credibility. The prosecution has made it clear that there was enmity between the deceased and the appellant as they are jealous of each other being the wives of the informant and they have been living separately maintaining separate mess in the same premise. The first wife-appellant was living with two children and she left the house just after the alleged occurrence. It is highly probable that the 2nd wife (deceased) may try to blame the appellant for anything that may happen to her. It is highly unnatural that the appellant would have chosen the morning time to set fire on the deceased when the inmates of the family and the villagers were already awoke and that too when her children were present with her. Suspicion arises in the correctness of the prosecution story inasmuch as it has withheld the important witness, namely, the village Headman who was called and remained present at the time of making the alleged dying declaration. There might have been some other villagers present at the place of occurrence and at the time of making the dying declaration. The co-villagers present at the time of making the dying declaration could have deposed before the Court honestly what they had seen or heard and they could have, as independent witnesses, corroborated the evidence of related/interested witnesses who supported the prosecution case regarding making of dying declaration by the deceased. The prosecution, for some reasons, did not want to produce such villagers as independent witnesses. The prosecution, for some reasons, did not want to produce such villagers as independent witnesses. As per the evidence, arrangement was made to take Minakshi to hospital in a boat but she died on the way and it clearly proves that she was really in a critical state and that is why P.W. 9, Narendra Gogoi, in cross examination, stated that while making the dying declaration Minakshi was not clear in her voice. Yet P.W. 2 stated that having seen the serious condition of the injured Minakshi, he himself became unconscious. If such was the physical state of the deceased, it is highly unnatural that she was in such a mental and physical state capable of making the dying declaration. In J. Ramuli Vs. State of A.P., (2009) 16 SCC 432 ; it is held that in a case where suspicion arose as regards correctness of dying declaration, the court before convicting the accused on the basis thereof, should look for corroborative evidence inasmuch as suspicion is not substitute for proof. Further it is held that if evidence brought on record suggest 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 a dying declaration is of any impeachable character would depend upon several factors, physical and mental condition of deceased being one of them. We have no manner of doubt that in the present case the learned trial court rested only on the so-called dying declaration made by the deceased without looking for any corroboration and also without considering the possibility, credibility and reliability of the dying declaration. 18. The clear mandate of law as held in Hemraj Amulak Vs. State of Gujrat, AIR 1972 SC 922 is that non-examination of a material witness would give rise to an inference that if examined he would have supported the prosecution evidence. There is no doubt that the village Headman who was admittedly present at the time of making the oral dying declaration, is a material witness and that is why he was cited as a witness in the charge-sheet. The prosecution, by examining this important witness, could have proved the vital fact that the injured Minakshi, before her death, made the oral dying declaration. The prosecution, by examining this important witness, could have proved the vital fact that the injured Minakshi, before her death, made the oral dying declaration. Had it been done so, the prosecution could have firmly established its case leaving no scope for the defence to raise any question on the fact of making the dying declaration by the deceased. The prosecution having failed to do so, it can safely be held that the charge against the appellant could not be proved beyond all reasonable doubt as required under the law. 19. The learned trial court did not consider the legal consequence of non-examination of the star witness i.e. the village Headman who was the eye witness to the fact of making of oral dying declaration. In our view, the evidence of the prosecution witnesses, on such factual position, failed to gain the confidence of the court so as to believe and accept the making of oral dying declaration. Moreover, there is no evidence; circumstantial or oral, to draw a presumption of guilt against the appellant except a strong suspicion against the appellant and the law does not permit conviction of an accused person merely on suspicion. We strongly deprecate and discourage the casual approach of the learned Sessions Judge in convicting the appellant without giving due regard to the evidence on record and the existing established law. 20. In view of the above, without any hesitation, we come to a conclusion that the charge against the appellant could not be established beyond all reasonable doubt and the appellant is entitled to acquittal on benefit of doubt. We accordingly pass an order of acquittal of the appellant giving her the benefit of doubt. The judgment which is under challenge in this appeal is quashed and set aside. The appellant be set at liberty forthwith if her further detention is not required in connection with any other case. Bail bond stands discharged. 21. An amount of Rs. 5000/- be paid to the learned Amicus Curiae, as his legal fee for rendering valuable legal assistance to this court. Appeal is allowed. Return the LCR. Appeal allowed