JUDGMENT : S.NAGAMUTHU, J. The appellant is the sole accused in S.C.No.57 of 2012 on the file of the learned First Additional District and Sessions Judge, Tuticorin. He stood charged for the offence under Section 294(b) and 302 IPC. The trial Court, by judgment dated 13.07.2012, convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one year. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. 2. The case of the prosecution in brief is as follows; (a) The deceased in this case was one Thanga Eswari. The appellant/accused is her son-in-law. PW11 -Mrs. Mariammal is the brother's wife of the deceased. The deceased had a suspicion that the accused had developed illicit intimacy with PW11. On 01.04.2011, between 9 to 9.30 p.m., the deceased alone was at her house. It is alleged that at that time, the accused came to the house of the deceased, abused her, questioned her propriety to speak ill of him that he had developed illicit intimacy with PW11 and then, poured kerosene from a plastic cane on the body of the deceased and set her on fire with the use of a lighted match stick. In the said process, the accused also sustained injuries. (b) Immediately, the accused and one Subramanian (PW2) a neighbour took the accused to the Government Hospital at Tuticorin. PW13 – Dr. Loordus Albina has admitted the deceased at 11.00 p.m. on 01.04.2011 as inpatient. According to her, the deceased was brought in an ambulance under 108 service by the accused and PW2. They informed PW13 that the deceased had immolated herself. At that time, the deceased was unconscious. She admitted her in the hospital as inpatient. At 11.15 p.m., the deceased regained consciousness and told PW13 that she was set fire by a known person. The same was recorded by PW13 in the medical records. Ex.P17 is the accident register. PW13 gave intimation to the Police. (c) PW16, on receiving the intimation, proceeded to the hospital at 11.30 p.m. on 01.04.2011. PW12 – Dr. Immanuvel Doss was present in the hospital. PW16 found the deceased in conscious state. He recorded the statement of the deceased. The same was recorded by PW13 in the medical records. Ex.P17 is the accident register. PW13 gave intimation to the Police. (c) PW16, on receiving the intimation, proceeded to the hospital at 11.30 p.m. on 01.04.2011. PW12 – Dr. Immanuvel Doss was present in the hospital. PW16 found the deceased in conscious state. He recorded the statement of the deceased. PW12 certified that the deceased was conscious, but she had difficulty in speaking and still she was speaking, while recording the entire statement. Ex.P21 is the said statement of the deceased. On returning to the Police Station, PW16 registered a case in Crime No.275 of 2011 under Sections 294(b), 307 and 323 IPC, and under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. Ex.P22 is the FIR. PW16 forwarded these two documents to the Court and handed over the Case Diary to the Inspector of Police for investigation. (d) PW17 took up the case for investigation at 2.15 a.m. On 02.04.2011. He went to the hospital, examined the deceased and recorded her statement. (The said statement has not been marked). At 6.15 a.m., he went to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of witnesses. He recovered a match box, a match stick and an yellow colour plastic cane from the place of occurrence under a mahazar. He recovered few more material objects from the place of occurrence, including a gunny which was used by the accused to extinguish the fire. On the same day, at 8.30 a.m. the deceased succumbed to the injuries. At 8.45 a.m., PW17, therefore, altered the case into one under Sections 294(b) and 302 IPC. He conducted inquest on the body of the deceased and forwarded the same for postmortem on the same day. (e) PW7 -Dr.Manoharan conducted autopsy on the body of the deceased on 02.04.2011 at 1.45 p.m. He found 80% of the injuries on the body of the deceased. Ex.P8 is the Postmortem certificate. He gave opinion that the deceased would appear to have died of complications of superficial burns between 6 to 12 hours prior to the autopsy. (f) During the course of investigation, PW17 examined few more witnesses. On 03.04.2011 at 6.30 a.m. he arrested the accused in the presence of PW8 and another witness. Ex.P8 is the Postmortem certificate. He gave opinion that the deceased would appear to have died of complications of superficial burns between 6 to 12 hours prior to the autopsy. (f) During the course of investigation, PW17 examined few more witnesses. On 03.04.2011 at 6.30 a.m. he arrested the accused in the presence of PW8 and another witness. On such arrest, he made a voluntary confession, in which he disclosed the place where he had hidden a cell phone and a polyester shirt. In pursuance of the same, the accused produced the same. PW17 recovered the same under a mahazar and forwarded the accused to the Court for judicial remand. The material objects were also sent to the Court. Then, he made a request to the Court to forward the material objects for chemical examination. The report revealed that the kerosene was found in the cane. On completing the investigation, he laid charge sheet against the accused. (g)Based on the above materials, the trial Court framed the charges, as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 17 witnesses were examined and 32 documents and 14 material objects were marked. (h) Out of the said witnesses, PW.1 is the husband of the deceased, who has stated about the illicit relationship between the accused and PW11. He is not an eyewitness to the occurrence and according to him, he came to the place of occurrence, after the deceased was admitted in the hospital. PWs.2 to 6 have turned hostile and they have not supported the case of the prosecution in any manner. PW7 has spoken about the autopsy conducted by him and his final opinion regarding the cause of death. PW8 has spoken about the arrest of the accused, confession made by him and the consequential recovery of his cell phone, shirt and a Hero Honda Motorcycle (MOs.1 to 3). PW9 is the then Head Constable, attached to the Outpost Police Station at the Government Medical College Hospital, Tuticorin, who has stated that he sent intimation to the jurisdictional Police about the admission of the deceased. PW10 is the Constable, who carried the FIR to the Court. He has spoken about the same. PW11 has turned hostile and he has not supported the case of the prosecution in any manner. PW10 is the Constable, who carried the FIR to the Court. He has spoken about the same. PW11 has turned hostile and he has not supported the case of the prosecution in any manner. PW12 has spoken about the fact that while recording Ex.P1 by the Sub Inspector of Police, the deceased was conscious and however, she had difficulty in speaking. PW13 has stated about the admission of the deceased in the hospital. She has stated that at about 11.00 p.m., when she was admitted, she was conscious. But, at 11.15 a.m. she regained consciousness. PW14 is the Head Constable, who has stated that he married the dead body for postmortem. PW15 is yet another constable, who has stated that he carried the inquest report and submitted the same to the Court. PW16 has spoken about recording of Ex.P1, the statement of the deceased and registration of the case. PW17 has spoken about the investigation done. (i) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. However, he did not choose to examine any witness nor to mark any document on his side. The defence of the accused was total denial. (j) Having considered all the above materials, the trial Court has convicted him under Section 302 IPC alone and accordingly, punished him. That is how he is before this Court with this appeal. 3. The learned senior counsel appearing for the appellant would submit that the prosecution in this case relies only on the dying declaration recorded by PW16 under Ex.P21. In the said dying declaration, the deceased had stated that the accused poured kerosene and set fire. There is not other evidence available on record to corroborate the same. The learned senior counsel appearing for the appellant would further submit that the said dying declaration cannot be believed as the deceased would not have been in a fit state of mind to make a dying declaration. 4. The learned Additional Public prosecutor would submit that at 11.00 p.m. when the deceased was admitted, she was unconscious, but, according to PW13, she regained consciousness at 11.15 p.m. The dying declaration was recorded at 11.45 p.m. and at that time also, according to the Doctor, she was conscious. Therefore, the said statement should be accepted and the conviction should be confirmed. 5. We have considered the above submissions. Therefore, the said statement should be accepted and the conviction should be confirmed. 5. We have considered the above submissions. 6. Admittedly, at 11.00 p.m. the deceased was admitted in the hospital. The deceased was brought by the accused and PW2. They told the Doctor that the deceased had self immolated. As rightly pointed out by the learned Additional Public Prosector, we cannot give much weightage for this statement made by the accused. But, the fact remains that the accused also sustained extensive burn injuries on his body while trying to extinguish the fire. The gunny bag which was used by the accused to extinguish the fire has been recovered by the Inspector of Police. Had it been true that the accused set fire, it is too difficult to believe that he would have risked his life to extinguish the fire. This is initial suspicion in the case of the prosecution. 7. Now, turning to Ex.P21, it was recorded at 11.45 p.m. by PW16. According to the Doctor – PW13, at 11.00 p.m., when the deceased was brought to the hospital for admission, the deceased was unconscious. But, he recorded that at 11.30 p.m. the deceased regained consciousness. Then, within 15 minutes on her admission, there was some fluctuation in the consciousness of the deceased. Ex.P1 was recorded at 11.45 p.m. But, the question is as to whether at that time, the deceased would have been in a fit state of mind to make a dying declaration. PW12 has stated that at that time, the deceased was conscious, but she had difficulty in speaking. This creates doubt as to whether the deceased would have been in a fit statement of mind to make dying declaration. 8. In legal parlance, there is a world of difference between a person being medically conscious and a person being in a fit statement of mind in legal parlance to make a statement. This distinction has been well defined and well recognized by the Hon'ble Supreme Court. If the dying declaration has been recorded by a Judicial Magistrate, there is assurance that the statement was truly recorded by the Magistrate. Apart from that, the mental fitness of the deceased is meticulously assessed by the learned Magistrate. This distinction has been well defined and well recognized by the Hon'ble Supreme Court. If the dying declaration has been recorded by a Judicial Magistrate, there is assurance that the statement was truly recorded by the Magistrate. Apart from that, the mental fitness of the deceased is meticulously assessed by the learned Magistrate. The opinion of the Doctor regarding the mental fitness is not always decisive, because, as we have already pointed out, a person may be medically conscious, but legally unfit to make a dying declaration. That is the reason why, when a Judicial Magistrate records a dying declaration he, being the Judge, judges the mental fitness of the deceased by his own assessment and at times, with the help of the Doctor. If only the learned Magistrate is fully satisfied that the deceased is in a fit state of mind to make a dying declaration, he would proceed to record the dying declaration. But, in the dying declaration recorded a Sub Inspector of Police, these two guarantees cannot be presumed. In other words, the sanctity, as we have already stated, cannot be attached to the dying declaration recorded by the Police, because there is no guarantee that the Police Officer would have assessed the mental fitness and that he would have recorded truly as to what was stated. Thus, such a dying declaration recorded by the Police requires close scrutiny. 9. In the instant case, the Police Officer has not assessed the mental fitness of the deceased. He has simply gone by the opinion of the doctor that the deceased was conscious. Though PW12 has stated that the deceased was conscious, he has also stated that the deceased had difficulty in speaking. This would only indicate that the deceased would not have been in a fit state of mind to make a dying declaration. In the absence of any assessment by the recorder about the mental fitness of the deceased, in our considered view, the said declaration cannot be the sole basis for conviction. For a moment, we do not say that a non judicial dying declaration cannot be the foundation for conviction. Even an oral dying declaration can be the foundation for conviction, because a dying declaration is a substantive evidence as dealt with in Section 32 of the Indian Evidence Act. For a moment, we do not say that a non judicial dying declaration cannot be the foundation for conviction. Even an oral dying declaration can be the foundation for conviction, because a dying declaration is a substantive evidence as dealt with in Section 32 of the Indian Evidence Act. But, what we would like to say is that when the dying declaration is shrouded with doubts, then, it cannot be the sole basis for conviction as it would not be a substantive evidence in the legal parlance. In the instant case, in view of the opinion of PW12 that the deceased had difficulty in breathing and in view of the fact that there was fluctuation in the consciousness of the deceased, one at 11.00 p.m., then at 11.15 p.m. and lastly at 11.45 p.m., we find it difficult to sustain the conviction solely on the basis of Ex.P21 -dying declaration. We wish to reiterate that there is no other evidence against the accused. 10. In view of the above, we hold that the prosecution has failed to prove the case beyond reasonable doubts and therefore, the appellant is entitled for acquittal. 11. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed by the trial Court against the accused in S.C.No.57 of 2012 is set aside and he is acquitted. The bail bond, if any, executed by him shall stand cancelled. The fine amount, if any, paid by him shall be refunded.