JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment dated 17.07.2013, passed by the learned Sessions Judge, Bongaigaon in Sessions Case No. 80 (J)2011 convicting one Md. Jahidul Islam of offence U/s. 302 IPC and sentencing him to imprisonment for life and also to pay a fine of Rs. 2000/-, in default, R.I. for one year. Md. Jahidul Islam would be referred to hereinafter as the accused person for convenient of discussions. Heard Mr. HRA Choudhury, learned Senior counsel assisted by Mr. N. Uddin, learned counsel appearing for the appellant and Mr. K.A. Mazumdar, learned Addl. P.P. Assam, appearing for the State respondent. 2. The projected case of the prosecution, in short, is that on 30.11.2007 at about 7 PM, one Madan Malo lodged an FIR with the Officer-in-charge, Jogighopa Police Station stating inter alia that his mother had developed some unhealthy relationship with the accused person over a considerable period of time. On 29.11.2007 at about 7 PM, the accused person took his mother in his motor cycle to the house of his aunt (informant), situated at Pachania village. 3. On the date aforesaid, none was there in the house of her aunt at Pachania village and as such, mother of the informant and the accused had spent said night in the house of his aunt at Pachania village. It has been alleged that later they came to know that his mother was set on fire by the accused person. Being so informed, he rushed to hospital and found his mother being bum fatally. 4. According to him, almost of the body parts of his mother were burnt. His mother was shifted to Abhayapuri Civil Hospital where from she was shifted to Goalpara Civil Hospital for better treatment. However, she succumbed to the injuries at Goalpara Civil Hospital on 30.11.2007. On receipt of the FIR, police registered a case vide Jogighopa Police Station Case No. 120(B), 302 IPC and ordered one Md. Muslim Ali, S.I. of Police, to investigate the case. 5. Being so entrusted with the investigation, Muslim Ali conducted the investigation, held inquest on the dead body, sent the same to the hospital for post mortem examination, examined the witnesses and did other needful. Muslim Ali, S.I. of Police, to investigate the case. 5. Being so entrusted with the investigation, Muslim Ali conducted the investigation, held inquest on the dead body, sent the same to the hospital for post mortem examination, examined the witnesses and did other needful. However, before he could complete the investigation, he was transferred out of Jogighopa Police Station and as such, he handed over the case diary to the Officer-in-charge, Jogighopa Police Station. 6. Thereafter, one Atul Roy, S.I. of Police submitted charge sheet U/s. 120(B)/302 IPC against the accused person and forwarded the accused to the court to stand his trial. When the charge sheet was so laid before the C.J.M., Bongaigaon, he committed the case to the court of Sessions, Bongaigaon since the offence U/s. 120(B)/302 IPC is exclusively triable by the court of Sessions. 7. On commitment of the case and on hearing the learned counsel for the parties, the learned Sessions Judge, Bongaigaon framed charge U/s. 302IPC against the accused person and the charge, so framed, on being read over and explained to him, the accused pleaded not guilty and claimed to be tried. During trial, prosecution had examined as many as 12 witnesses including the informant, Medical Officer and I.O. 8. The statement of the accused person was also recorded U/s. 313 CrPC. The accused plea was of total denial. He, however, did not adduce any evidence of his own. On conclusion of trial, and on hearing the argument, advanced by the learned counsel for the parties, the learned court below found the accused guilty U/s. 302 IPC, convicting him there-under and sentenced to punishment as aforesaid. It is that judgment which has been assailed in the present appeal citing several infirmities therein. 9. Mr. HRA Choudhury, learned Senior counsel submits that the judgment, under challenge, is not unsustainable since it suffers from several infirmities of extremely serious in nature. In that connection, it has been contended that prosecution case is basically based on three dying declarations, reportedly made to PW1, PW4 and PW5 by the deceased. 10. It is a settled law that dying declaration can be acted upon without any corroboration provided such dying declaration is found to be truthful and voluntary and provided that person making such declaration was found to be in a mentally fit condition to make such declaration. 11. However, in the case in hand, according to Mr. 10. It is a settled law that dying declaration can be acted upon without any corroboration provided such dying declaration is found to be truthful and voluntary and provided that person making such declaration was found to be in a mentally fit condition to make such declaration. 11. However, in the case in hand, according to Mr. Choudhury, there is nothing on record to show that mother of the deceased was in a mentally fit condition when she reportedly made such declaration. Therefore, it would be totally unsafe to rely on the dying declaration in convicting the accused person of the offence he was charged with. 12. Worse still, the dying declaration reportedly made by mother of the informant suffers from other infirmities as well. Though dying declaration was said to have been made while the victim was taken from Abhayapuri Civil Hospital to Goalpara Civil Hospital, although a large number of people met the victim in between such period, there is nothing on record to show that the victim had made such declarations to some of those persons as well who met the former during the period aforementioned. 13. Rather, all the dying declarations were made to close relatives of the deceased who are enormously partisan to the prosecution. In the facts and circumstances of the present case, inability of the prosecution to find some persons who could have supported the claim of the PW1, PW4 and PW5, therefore, raises a serious doubt about the authenticity of dying declaration in question. 14. Further, though according to PW1, the dying declaration in question was made in presence of one Bimal Malo, (PW7), son-in-law of the deceased, said Bimal Malo, did not support such a claim of PW 1 since Bimal Malo was found deposing that he met the deceased at the first time at Goalpara Civil Hospital but by that time, she was no more. Such evidence rendered by PW 7, according to Mr. Choudhury, learned Senior counsel makes the claim of PW1 even more doubtful. 15. It is also the contention of Mr. Choudhury, learned Senior counsel for the appellant that some vital witnesses, such as, Mazid who first reported the incident to the informant was not examined, and that too, without assigning any reason whatsoever. This again raises more and more doubts about the authenticity of the prosecution. 16. The record reveals that the deceased sustained burn injuries. Choudhury, learned Senior counsel for the appellant that some vital witnesses, such as, Mazid who first reported the incident to the informant was not examined, and that too, without assigning any reason whatsoever. This again raises more and more doubts about the authenticity of the prosecution. 16. The record reveals that the deceased sustained burn injuries. It is again he who first took the victim to hospital for treatment Such revelation coupled with the fact that the accused had very friendly relationship with the deceased only serve to show that the allegation against the accused is without any basis. 17. In support of such contention, the learned Senior counsel Mr. Choudhury has relied on the following decisions:-- "a) Laxman v. State of Maharastra, reported in (2002) 6 SCC 710 b) Sharda v. State of Rajasthan, reported in (2010) 2 SCC 85 c) Surinder Kumar v. State of Haryana, reported in 2011 10 SCC 173 ." 18. The learned Senior counsel, therefore, submits the court to be acquitted the accused person for the offence U/s. 302 IPC on setting aside the judgment under challenge. 19. On the other hand, Mr. K.A. Mazumdar, learned Addl. P.P. Assam submits that the judgment rendered by the learned trial court does not suffer from any infirmity whatsoever. In that connection, it has been stated that the dying declaration which were reportedly made to the PW1, PW 4, and PW 5 are consistent in all respects and as such, such dying declaration clearly established that it was accused, and none else, who set the victim on fire on the night of 29.11.2007, which occasioned her death next day. 20. He further submits that it is a settled law that evidence, rendered by relatives, cannot be discarded only for their being relatives of the victim of the crime if such evidence is found otherwise believable. In the present case, the evidence of PW1, PW4 and PW 5 cannot be discarded only for there being closed relatives of deceased since their evidence if found to be quite cogent, consistent and as such the confidence inspiring. The learned Addl. PP, therefore, submits the court to dismiss the appeal on affirming the judgment under challenge. 21. We have considered the rival submissions having regard to the judgment under challenge as well as the evidence on record. The learned Addl. PP, therefore, submits the court to dismiss the appeal on affirming the judgment under challenge. 21. We have considered the rival submissions having regard to the judgment under challenge as well as the evidence on record. However, before we proceed further, we have found it necessary to have a look the evidence of doctor who conducted the autopsy on the dead body of the deceased. His evidence is as follows:-- 22. The evidence of doctor who conducted the autopsy on the dead body of the deceased is as follows:-- "A female dead body of average built, partly covered by Saree, long hair, eyes closed, mouth partly open and vagina heavy, Rigor mortis present all over the body. Burn epidermal and dermo epidermal burnt involving all over the body, surfaced area except both lower limbs, about 70% of body surface area involved in burn. No ligature mark detected around the neck. Abdominal wall- burnt, Peritoneum - healthy, Mouth, pharynx, esophagus - congested, stomach and its contents - Healthy & empty. Small intestine & contents - healthy, Contains food particles. Large intestine & its contents - Healthy, Rectum Contains pieces. Cranium & spinal canal -Scalp & vertebrae -healthy Membrane - healthy. Brain - healthy, Sprinal cord - Healthy Liver-Congrsted, Spleen - Healthy Both kidneys - Congested, Bladder - Healthy and Empty. Organs of generations - External/internal. Externally burnt, internally healthy, Uterus -Empty Thorax: Walls, ribs & Cartilage - have seen burnt, Pleurs - Congested Larynse & Trachina - Congested Left/Right lungs - Congested. Pericardium - Healthy, Heart-Healthy, Chamber Contains Clotted & Liquid blood. Vessels - Healthy Muscles, bones & joints: Burnt, disease or deformity not found Fracture-Nil Dislocation-Nil Opinion - Death was due to shock resulting from ante mortem burns involving about 70% of body surface area as described." 23. The evidence of doctor clearly shows that the deceased died of burn injuries which covered 70% of her body surface. 24. So situated, let us consider the evidence of PW1, PW4 and PW5, who claim that the deceased reported them that the accused put her on fire on the night of 29.11.07. PW 1, Sri Madan Malo deposes that his mother had visiting terms with the accused person. 24. So situated, let us consider the evidence of PW1, PW4 and PW5, who claim that the deceased reported them that the accused put her on fire on the night of 29.11.07. PW 1, Sri Madan Malo deposes that his mother had visiting terms with the accused person. On the day of occurrence at about 5/6 P.M. the accused came to their house and took his mother to the house of Akadashi Malo his maternal aunt, situated at Pachania Pahar. 25. On that day, his aunt and her son Chittaranjan Malo were not in their house. The deceased and the accused spent the night aforesaid in the house of Akadashi Malo. Next day, at about 12.30 PM, one Mazid informed him that his mother was taken at Abhayapuri Hospital in a critical condition. He immediately went to Abhayapuri hospital wherein he found his mother in a serious condition. 26. He saw that most part of her body was burnt. Since her condition was critical, on the instructions of doctor, he shifted his mother to Goalpara Civil Hospital for better treatment. While she was taken to Goalpra Civil hospital, his mother told him that accused set her on fire. However, his mother died at Goalpara Civil Hospital. 27. In the cross-examination, he stated that the deceased had friendly relationship with the accused person. It is also in his evidence that the accused had intimacy with his mother. According to PW1, Bimal Malo, the brother in law of the PW1 had accompanied him to Civil Hospital at Goalpara. However, he could not guess as to how his mother caught fire. 28. PW4, Sudhan Malo is another son of the deceased. According to him, on the day of occurrence, the accused informed Mazid over phone that his mother sustained serious burn injuries. Such information was passed over to him by Mazid. On receipt of said information, he and his elder brother Modan Malo (PW 1) went to Abhayapuri hospital and found his mother being treated in such hospital in a critical condition. 29. Since her condition was quite critical, she was taken to Goalpara hospital. On the way, on being asked, her mother told them accused set her on foe. Their mother died in the hospital around the noon on the next day. In his cross examination, he deposes that he along with his elder brother took their mother to Civil Hospital, Goalpara. Since her condition was quite critical, she was taken to Goalpara hospital. On the way, on being asked, her mother told them accused set her on foe. Their mother died in the hospital around the noon on the next day. In his cross examination, he deposes that he along with his elder brother took their mother to Civil Hospital, Goalpara. 30. PW 5, Sri Uddhab Malo deposes that on the day of occurrence, the accused took his sister (deceased) on his scooter to the house of Ekadashi Malo at Pachnia Pahar. On the day aforesaid, his sister (Ekadashi) was not at her house. The accused and the deceased spent that night in the house of his sister Ekadashi. Later, he came to know that his sister Malati was set on fire by the accused person. 31. On being so informed, he came to Abhayapuri hospital where the victim was shifted in the meantime and found his sister therein a very critical condition. Since her condition was quite critical, the victim was taken to Goalpara Civil Hospital for better and further treatment. The victim could speak while she was so taken to hospital at Goalpara. However, she was speaking in feeble voice. The deceased told him that accused had set fire to her. The victim breathed her last at Goalpara Civil hospital. 32. The other witness on whom the prosecution places reliance is PW 7, Sri Bimal Malo. According to him, he married the daughter of the informant Modan Malo. On the date of occurrence, PW4, Sudhan Malo informed him over phone that accused had set his mother on fire. On getting such information, he came to Goalpara Civil Hospital and found her mother-in-law there who expired in the meantime. 33. PW 2, is Sri Chitraranjan Malo. According to him, the deceased Malati was his maternal aunt. On the date of incident, at about 6 PM, the accused took Malati to their house at Pachnia Pahar. At that time, his mother and his sister were not there in their house. He too left his house allowing the deceased and accused to spend the night in their house. 34. On the next day, when he came home, he found none in the house. He saw half burnt 'Sari' of his aunt Malati in his house. At that time, his mother and his sister were not there in their house. He too left his house allowing the deceased and accused to spend the night in their house. 34. On the next day, when he came home, he found none in the house. He saw half burnt 'Sari' of his aunt Malati in his house. He then went to the house of Gobinda Malo, his maternal uncle, situated at Chalantapara and found his mother and maternal uncle there. He narrated all those episodes to his uncle and mother. 35. Though he got the information that Malati was taken to Chalantapara Hospital, he did not go there to see his ailing aunt. Sometime thereafter, he came to know that his aunt was shifted to Goalpara Civil hospital for better treatment but she breath her last at the hospital aforesaid. In his cross examination, he deposes that he could not say how his aunt caught fire or how she was taken to Abhayapuri hospital. 36. Smti Ekadashi Malo (PW 3), Sri Niranjan Barman (PW8), Sri Gobindo Das (PW9) and Sri Mahendra Barman (PW11) could not throw any light on the incident under consideration. PW9, and PW11 however depose that during the course of investigation, police seized some burnt cloths from the house of PW2. 37. PW10, Sri Mahananda Barman is the person who wrote the FIR on being dictated by Madan Malo (PW 1). PW 10 proves the FIR, he had written as Ext. 1. On the other hand, PW13 is the Executive Magistrate who conducted the inquest on the dead body of the deceased whereas PW12 is Sri Muslim Ali who conducted the investigation the case in hand. 38. The above being the evidence on record, let us see how far such evidence makes out the allegation brought against accused person. We have already found that nobody saw as to how the deceased caught fire which ultimately occasioned her death. Being so, the prosecution case has basically relied on dying declarations which the deceased reportedly made to the PW1, PW4 and PW 5 apart from relying on some circumstantial evidence as well. 39. Law relating to dying declaration is well settled. We have already found that nobody saw as to how the deceased caught fire which ultimately occasioned her death. Being so, the prosecution case has basically relied on dying declarations which the deceased reportedly made to the PW1, PW4 and PW 5 apart from relying on some circumstantial evidence as well. 39. Law relating to dying declaration is well settled. It has been held again and again that a dying declaration can be used for recording a verdict of conviction against a person provided such dying declaration is found to be truthful, voluntary and free from all infirmities. 40. In that connection, we may rely on the decision of the Hon'ble Apex Court in the case of Surinder Kumar v. State of Haryana, reported in (2011) 10 SCC 173 . The relevant part of the judgment is reproduced below:-- "Para-10. Before considering the acceptability of dying declaration (Ext. PD), it would be useful to refer the legal position. "Para-11. In Sham Shankar Kankaria v. State of Maharashtra this Court held as under: (SCC pp. 171-73, paras 10 & 11) "10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eve-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 11. Though a dying declaration is entitled to great weight it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence; This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat : (SCC pp. 480-81, para 18) (Emphasis supplied) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of MP.) (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.) (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.) (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar) (ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.) (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)" "Para 28. Though there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal". 41. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal". 41. The aforesaid view was reiterated in the case of Sharda v. State of Rajasthan, reported in (2010) 2 SCC 85 . In Sharda (supra), the Hon'ble Apex Court has again held that when a person made a dying declaration, the court must decide whether the deceased was in a fit mental condition to make the dying declaration. Once the court is satisfied that the victim was in a mentally fit condition to make the dying declaration and once the court find such dying declaration truthful and voluntary, such dying declaration can be relied on without further corroboration. The relevant part of the judgment is reproduced below:-- "Para 25. Though a dying declaration is entitled and is still recognized by law to be given greater weight age but it has also to be kept in mind that the accused had no chance of cross examination. Such a right of cross examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration." 42. In the case of Laxman v. State of Maharastra, reported in (2002) 6 SCC 710 , Hon'ble Apex Court held that if the person who records a dying declaration is satisfied that the deceased was fit to make a dying declaration, then such dying declaration can be accepted even if there is no certification of the doctor that the deceased was mentally fit to make such declaration. The relevant part is reproduced below:-- "Para 3............... The relevant part is reproduced below:-- "Para 3............... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to the. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. When it is proved by the testimony of the Magistrate that the declarant was fit to make, the statement even without examination by the doctor the declaration can be act upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." 43. The decision rendered in the case of Paniben v. State of Gujarat, reported in AIR 1992 SC 1817 is equally worth noting. The relevant part is reproduced below:-- "16. The situation in which a man is on death bed is so solemn and serene when he is placed, is the reason in law to accept the veracity of his statement It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 17. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 17. Though a dying declaration is entitled to a great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The court, must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated The rule requiring corroboration is merely a rule of prudence. The court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: "(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Manju Raja V. State of U.P. 1976 Cri.L.J. 1718). (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav 1986 Cri.L.J. 836, Ramavati Devi V. State of Bihar 1983 Cri.L.J. 221). (iii) This Court has to scrutinize the dying declaration carefully and must ensure, that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.(Rama Chandra Reddy V. Public Prosecutor 1976 CriLJ 548). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beb v. State of Madhya Pradesh 1974 Cri.L.J. 361). The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.(Rama Chandra Reddy V. Public Prosecutor 1976 CriLJ 548). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beb v. State of Madhya Pradesh 1974 Cri.L.J. 361). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. Kake Singh V. State of M.P. 1982 CriLJ 1986. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. 1981 SCC 581). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu) (viii) Equally, merely because it is a brief statement it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza 1979 CriLJ 1122). (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State 1988 CriLJ 936). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)." 44. This Court also in the case of Intaz Ali v. State of Assam, reported in 2012 (5) GLT 513 held that when dying declaration is shrouded with suspicion, same cannot be accepted. The relevant part of the judgment is reproduced below"- "Para 21. From the above discussed evidence it is found that PW Nos. 2, 3 and 6 claimed that the deceased made dying declaration before them. Their statements regarding dying declaration is found to be the first statement, made before the court. The informant also, at the time of filing the FIR ext. 2, did not disclose such vital fact, at the earliest possible time. Their failure to disclose such material fact at the initial stage i.e. at the earliest opportunity, raises doubt about the veracity of their evidence". "Para 22. The informant also, at the time of filing the FIR ext. 2, did not disclose such vital fact, at the earliest possible time. Their failure to disclose such material fact at the initial stage i.e. at the earliest opportunity, raises doubt about the veracity of their evidence". "Para 22. A close reading of their evidence indicates that the dying declaration was made to each of them to the exclusion of others. Hence we fail to find sufficient corroboration in their evidence, to believe that the deceased had made the dying declaration. In view of the above, for want of sufficient corroboration, we do not find the evidence, given by PW Nos. 2, 3 and 6, regarding dying declaration, to be reliable and trustworthy. Therefore, the said evidence regarding dying declaration cannot be treated as basis for the conviction. Except the said dying declaration there remains nothing in support of the prosecution case. Therefore, we are inclined to hold that the prosecution failed to prove the charge, brought against the appellant, beyond all reasonable doubt. In our considered opinion, the impugned conviction and sentence cant be maintained." 45. Coming back to our case, we have found that PW1, PW4 and PW5 claim to have heard the victim making a declaration that the accused set her on fire. We have already found that it is one of the fundamental requirements of law that before convicting an accused person on the basis of statement in the nature of dying declaration, the court must be satisfied that the person making the dying declaration was mentally fit to make such statement Reverting back to our case, we have found that the Medical Officer (PW6) who conducted inquest on the body of the deceased found 70% of the body surface being burnt by fire. 46. More importantly, the doctor too opined that he cannot say if a person with 70% burn injuries can remain mentally fit to make a statement in the nature of the dying declaration. These only shows that the allegation that victim made a statement in the nature of the dying declaration implicating the accused as the author of the crime in question cannot be accepted without a large grain of salt. 47. All evidence on record shows that the injuries, sustained by the victim were too serious which required her immediate shifting from hospital to hospital in quick succession. 47. All evidence on record shows that the injuries, sustained by the victim were too serious which required her immediate shifting from hospital to hospital in quick succession. Equally importantly, despite her being provided with therapeutic treatments, she died at a time not far away from the time of her sustain injuries. All these raise some serious questions about the physical ability of the victim to make a statement in the nature of dying declaration. 48. We have found that several persons met the deceased in between the incident in question and her death which includes the doctors in three hospitals. If she was put on fire by the accused person and if she was in a mentally sound state in all those periods or at least in some periods during the aforesaid gap, she must have made statements in the nature of dying declaration before those persons including the doctors in various hospitals. 49. Unfortunately, the prosecution made no attempt, whatsoever, to find out if the victim made any statement in the nature of dying declaration before those persons. Rather it feels satisfied with the dying declaration which victim reportedly made to the persons who were very closed relatives of the deceased and it again raises a serious doubt about the veracity of claim of PW1, PW4 and PW5 that the deceased made declaration implicating the accused person with the crime in question. 50. According to PW1 (Sri Madan Malo), Shri Bimal Malo (PW7) accompanied too accompanied him in shifting his mother from Abhayapuri hospital to Civil hospital, Goalpara meaning thereby along with PW1, PW 4 and PW 5, PW 2 too travelled with the victim to the hospital at Goalpara. However, PW 7, Sri Bimal Malo frankly states that when he arrived at civil hospital, Goalpara, his mother -in-law was no more. The evidence, so rendered by PW7, only serves to show that the claim of PW1, PW4 and PW 5 that the deceased made declaration implicating the accused person with the crime in question is enormously suspicious. 51. We have found that one Mazid came to know about the incident in question even before Madan Malo came to know about such incident. However, such a person was not examined as witness and that too, without assigning any reason whatsoever. 51. We have found that one Mazid came to know about the incident in question even before Madan Malo came to know about such incident. However, such a person was not examined as witness and that too, without assigning any reason whatsoever. Non-examination of such a vital witness, in our opinion, raised a serious doubt about the veracity of entire prosecution case. 52. We have also found that it was the accused who took the victim at hospital. Again, there is evidence on record to show that the accused too sustained burnt injuries in the incident that occurred on the night of 29th November, 2007. Such revelations, in the facts and circumstances of the case, do not augur well to advance the that the present accused set her on fire on the night in question makes enormously doubtful. 53. It may be noted that in the FIR, the informant claims that on the night in question his mother somehow caught fire. Such statement in the FIR coupled with the fact that in his cross examination, PW1 admitted that he did enquire as to how his mother caught fire as well as the fact that in his cross-examination too, PW 2 states that he did not know how his sister caught fire on the night in question makes the claim of PW1, PW4 and PW 5 about the victim's rendering a statement in the nature of dying declaration to those PWs more and more doubtful. 54. It is worth noting that PW1, PW4 and PW 5 claim to have heard the victim making declaration that the accused set her on fire. It is found apparent from the evidence on record that such declaration was made even before lodging the FIR. Very surprisingly, such vital information did not find its place in the FIR which was lodged with police on 30.11.07. Absence of such vital information in the FIR raised a serious doubt about the deceased making a statement in the nature of dying declaration to the aforesaid PWs while she was taken to hospital 55. In view of what we have discussed herein above and what have emerged there from, we are of the opinion that the prosecution could not establish beyond reasonable doubt that the victim before her death made a statement in the nature of dying declaration. 56. In view of what we have discussed herein above and what have emerged there from, we are of the opinion that the prosecution could not establish beyond reasonable doubt that the victim before her death made a statement in the nature of dying declaration. 56. Being so, it cannot be said the prosecution had proved the charge, leveled against the accused person beyond all reasonable doubt and as such, in our opinion that the judgment under challenge cannot be sustained. 57. In the result, the appeal is allowed and me judgment under challenge is quashed and set aside. 58. Consequently, the accused/appellant is acquitted of offence under Section 302 IPC. He is ordered to be released forthwith, if he is not required in connection with any other case. Appeal allowed