JUDGMENT : V.M.Deshpande, J. 1. The present appeal is directed against the judgment and order of conviction passed by learned Additional Sessions Judge-I, Amravati in Sessions Trial No.22 of 2013, dated 15th of April, 2014. By the impugned judgment, the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code and was directed to suffer rigorous imprisonment for life and also to pay a fine of Rs.5000/- and in default of payment of fine she was directed to suffer Simple Imprisonment for six months. 2. Following is the prosecution case :- (a) Jagdish Khanve (PW 5) was attached to Morshi Police Station as a Head Constable. On 18th of October, 2012, an information was received from Morshi Sub-District Hospital in respect of sustaining burn injuries of one Pranita Moreshwar Sonare and that she was referred to Amravati Hospital. The said information was reduced as Sana Entry No.37 of 2012. (b) Vijay Patil (PW 10), Police Inspector of Morshi Police Station directed Jagdish Khanve (PW 5) to prepare the spot panchanama. Accordingly, Jagdish Khanve reached to the spot of the incident i.e. the house of the appellant. One lady Police Constable was also accompanying with him. After some time, Police Inspector Shri Patil also came to the spot. Two panchas were called on the spot. The spot panchanama (Exh.23) was drawn as per the existing situation. He also carried seizure of the articles lying on the spot of the incident under Seizure Memo (Exh.24). (c) Shri Vijay Patil (PW 10) also directed Shri Sangale (PW 4), ASI, B.No.993 to go to the Irvin Hospital Amravati to record the statement of the victim. Accordingly, Shri Sangale (PW 4) reached to the Irvin Hospital at Amravati. The victim was indoor patient in the Burn Ward No.4. Shri Sangale thereafter gave a memo to the doctor on duty and requested him to give his opinion as to whether the patient is in a condition to give the statement or not. The requisition given by Shri Sangale to doctor is at Exh.28. After obtaining the opinion of the doctor on the same letter that patient is fit to give statement, her statement was recorded, in which she stated that on 18th of October, 2012 at about 6 p.m. her mother-in-law (appellant), blamed her of theft and the husband of the sister-in-law abused her. After obtaining the opinion of the doctor on the same letter that patient is fit to give statement, her statement was recorded, in which she stated that on 18th of October, 2012 at about 6 p.m. her mother-in-law (appellant), blamed her of theft and the husband of the sister-in-law abused her. Thereafter, the appellant poured kerosene on her and set her ablaze. The statement so recorded by Shri Sangale, ASI, is at Exh.29. (d) Even prior to the recording of the statement by ASI Shri Sangale, Shri Kishor Bagde, Naib Tahsildar, attended the hospital at about 8.45 p.m. on the call from the Irvin Hospital Amravati for recording the statement of patient. He went to the Police Chowky inside the hospital. A Memo (Exh.25) was given to him by the Police to record statement in respect of Pranita Sonare. Thereafter, he sought opinion of the doctor on duty about the fitness of the patient to give the statement. Doctor examined the patient and gave his opinion. Thereafter, Naib Tahsildar Shri Bagde also put some questions to the patient and got himself satisfied that the patient is able to give statement and thereafter he started recording of her statement. According to the statement given to Shri Kishor Bagde, Pranita, the victim, stated that on 18th of October, 2013 when she was at home, her mother-in-law i.e. appellant blamed her of theft and also charged her mother of doing some black magic. That time, the husband of her sister-in-law also abused and thereafter her mother-in-law (appellant) poured kerosene on her person and set her ablaze. The Dying Declaration recorded by Kishor Bagde (PW 3) is at Exh.26B. (e) Shri Subhash Sangale (PW 4) reached to the Police Station Morshi along with the statement recorded by him as well the statement recorded by Shri Bagde. On the basis of the dying declarations, the Crime was registered by Shri Patil, Police Inspector. Subhash Sangale (PW 4) signed the printed FIR as a complainant and it is at Exh.30. The Investigating Officer Shri Patil took the investigation of Crime No.191 of 2012 for the offence punishable under Sections 307, 504 read with Section 34 of the Indian Penal Code. During the treatment, victim Pranita expired. After getting said information, the offence was converted into an offence punishable under Section 302 of the Indian Penal Code. Both the appellants were arrested by the Investigating Officer. During the treatment, victim Pranita expired. After getting said information, the offence was converted into an offence punishable under Section 302 of the Indian Penal Code. Both the appellants were arrested by the Investigating Officer. The Investigating Officer after completing the investigation found that sufficient material is collected against the accused persons and therefore filed a Charge sheet in the Court of law. 3. On committal of the case to the Court of Sessions, which was registered as Sessions Trial No.22 of 2013, the learned Additional Sessions Amravati framed a Charge against the present appellant and Sanjay Shahane for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 4. After a full fledged trial, the learned Trial Judge of the Court below acquitted the accused no.2 - Sanjay Shahane as well the appellant was acquitted of the offence punishable under Section 498A of the Indian Penal Code. However, she was convicted for the offence punishable under Section 302 of the Indian Penal Code. 5. We have heard Shri Piyush Rajurkar, the learned counsel for the appellant and Shri V.A.Thakare, the learned Additional Public Prosecutor for the State. With the assistance of both these Counsel, we have gone through the record and proceedings. According to the learned counsel for the appellant, the case of the prosecution solely rests on two written Dying Declarations and a oral Dying Declaration to Rahul Shahane (PW 7). He submitted that the two Dying Declarations cannot be the basis for the conviction. He also submitted that the oral Dying Declaration as claimed by Rahul Shahane cannot be relied upon since the said witness failed to disclose about the oral Dying Declaration immediately. Per contra, the learned Additional Public Prosecutor would submit that the judgment and order of conviction is required to be maintained in view of the two written Dying Declarations. 6. A conviction can be recorded on the Dying Declaration alone if the Court finds the Dying Declaration to be wholly reliable. It is, therefore, necessary for the Court to examine the evidence in minute details and should place reliance on Dying Declaration only if it is found that the evidence of recording of Dying Declaration is of “Sterling” quality. 7. The Dying Declaration recorded by Shri Subhash Sangale (PW 4) is at Exh.29. He recorded the said Dying Declaration in the Irvin Hospital at Amravati. 7. The Dying Declaration recorded by Shri Subhash Sangale (PW 4) is at Exh.29. He recorded the said Dying Declaration in the Irvin Hospital at Amravati. The reason for recording the Dying Declaration by this witness was the direction from his superior Police Inspector Shri Vijay Patil (PW 10). After reaching to the Irvin Hospital, Subhash Sangale (PW 4) gave a requisition to the Medical Officer by which he requested to the Medical Officer to give his opinion as to whether Pranita is in a fit condition to give her statement. The said requisition is at Exh.28. According to the evidence of Subhash Sangale (PW 4), the doctor examined Pranita and gave his opinion on Exh.28 itself. The Certificate that the patient is able to give statement, is not proved by the prosecution. In view of the verdict of the Constitutional Bench of the Hon'ble Apex Court in the case of Laxman vs. State of Maharashtra, reported in (2002) 6 SCC 710 , the certification of the doctor is not essential before recording of the statement of the victim. However, the Hon'ble Apex Court has ruled that in that case the person or the Scribe, who is taking the statement of the victim, should himself be satisfied about the condition of the victim regarding giving of the statement. The evidence of PW 4 Subhash Sangale is completely silent that he himself was satisfied about the condition of Pranita to give statement. On the contrary, his evidence shows that after doctor gave opinion that she is fit to give statement, he started recording of her statement. Thus, Subhash Sangale (PW 4) relied upon the certification of the doctor about fitness of Pranita. In that view of the matter, it was obligatory on the part of the prosecution to prove the certificate given by him regarding the fitness of Pranita to give statement. Further, the requisition (Exh.28) 8. When Subhash Sangale was in the witness box, in his examination-in-chief itself, it appears that the Court put a question regarding the reason as to why in the letter (Exh.28) it is stated that the patient put herself ablaze due to the abuses given by the mother-in-law, father-in-law and husband of sister-in-law. Further, the requisition (Exh.28) 8. When Subhash Sangale was in the witness box, in his examination-in-chief itself, it appears that the Court put a question regarding the reason as to why in the letter (Exh.28) it is stated that the patient put herself ablaze due to the abuses given by the mother-in-law, father-in-law and husband of sister-in-law. The learned Judge of the Court below observed that the witness has taken a long time to answer this question and he was completely silent to the question posed to him and ultimately he replied that he cannot state as to why these facts are mentioned in Exh.28. The prosecution was under bounden duty to explain as to how in Exh.28 it has been mentioned that due to the abuses given to her by her in-laws she has poured kerosene on herself. The said recitals in Exh.28 clearly show that due to abuses she has poured kerosene on herself. In view of the aforesaid discussion, we are of the considered view that Dying Declaration (Exh.29) of Pranita, though it implicates the appellant as an author of the injuries, cannot be relied upon and consequently we reject the said Dying Declaration. 9. Insofar as Dying Declaration (Exh.26B) is concerned, it is scribed by PW 3 Shri Kishor Bagde, Naib Tahsildar. After getting information that he required to record the statement of Pranita, this prosecution witness reached to the Irvin Hospital. There, he contacted doctor. The said doctor is examined by the prosecution as prosecution witness No.9 and he is Dr. Suresh Thorat. After getting the Memo (Exh.26A), Dr.Thorat examined Pranita and found that Pranita was fit and was able to give statement. Accordingly, he certified her condition by giving certificate (Exh.49). After having armed with the Certification from Dr.Thorat (PW 9), Shri Kishor Bagde proceeded to record the statement of Pranita. Before actually recording the statement of Pranita, Scribe Shri Bagde also got himself satisfied about the condition of patient by putting her some questions and thereafter he recorded the statement. In the statement, Pranita has stated that on the day of the incident the present appellant blamed her of theft and also that her mother indulges in black magic. Thereafter, the acquitted accused gave abuses followed by pouring of the kerosene by the appellant and setting her ablaze. In the statement, Pranita has stated that on the day of the incident the present appellant blamed her of theft and also that her mother indulges in black magic. Thereafter, the acquitted accused gave abuses followed by pouring of the kerosene by the appellant and setting her ablaze. After recording the Dying Declaration (Exh.26B) Dr.Thorat gave Certificate (Exh.50) that during recording of Dying Declaration Pranita was conscious. 10. The Dying Declaration (Exh.26B) cannot be the basis for conviction since Exh.26B is completely silent that after recording of her statement Scribe Shri Bagde read over the statement to Pranita and after having understood the same she admitted the contents. Dying Declaration (Exh.26B) is recorded in a cyclostyle proforma. The cyclostyle proforma does not contain any statement that the Dying Declaration was read over to the patient and the patient had admitted the correctness of the Dying Declaration. 11. The law on this aspect is settled by the Hon'ble Apex Court in Shaikh Bakshu and ors. vs. State of Maharashtra, reported in 2007(11) SCC 269 and in the case of Kantilal vs. State of Rajasthan reported in (2009) 12 SCC 498 . The Hon'ble Apex Court in Shaikh Bakshu's case ruled that in absence of mentioning in the Dying Declaration about the reading over the statement to the declarent, it cannot be presumed that the said was read over and explained to the declarent. In Kantilal vs. State of Maharashtra (cited supra) the Apex Court has observed as under :- 36. The above stated facts and circumstances would prove that the alleged dying declaration, on which much reliance has been placed by the defence, cannot be said to be an admissible and reliable document. The fact that the alleged dying declaration (Exh.D4) did not bear endorsement of DW 2 to the effect that it was read over and explained to the deceased, also created a doubt on its credibility and truthfulness.” 12. Thus, it could be seen that the Apex Court has held that not bearing an endorsement to the effect that the Dying Declaration was read over and explained to the deceased creates a doubt in respect of the credibility and truthfulness of the same. Thus, it could be seen that the Apex Court has held that not bearing an endorsement to the effect that the Dying Declaration was read over and explained to the deceased creates a doubt in respect of the credibility and truthfulness of the same. Further, it is a consistent view of this Court right from Shivaji Tukaram Potdukhe vs. State of Maharashtra, reported in 2004 ALL MR (Cri) 3220 that a Dying Declaration cannot be relied upon if such dying Declaration is not read over to the deceased and there is no endorsement to that effect. In view of the aforesaid lacunae, a Dying Declaration (Exh.26B), in our view, cannot be made a foundation for sustaining the conviction. 13. Mechanical acceptance of the Dying Declaration de hors a meticulous scrutiny of the evidence relating to the recording of Dying Declaration, in our view, is an error in law. The learned Trial Court it appears has lost complete sight of the aforesaid settled principles of law while placing reliance on the Dying Declarations. 14. Insofar as the oral Dying Declaration made to Rahul Shahane (PW 7), as claimed by him, it is to be noted that even according to Rahul Shahane who is brother of the deceased, his statement was recorded after 2-3 days of the death of Pranita. It is established on record that there was a Police Chowky in the Irvin Hospital itself. Nothing prevented this prosecution witness to disclose to the Police at the earliest opportunity regarding the oral Dying Declaration made to him. Further, the relevant portion from the evidence of Rahul Shahane shows as under :- “Her whole body was bandaged from mouth to leg.” In view of the aforesaid, it is really hard to believe that Pranita was in a position to speak with this prosecution witness. In that view of the matter, the Court is not ready to place reliance on the oral Dying Declaration. The reappreciation of the prosecution case by us leads us to pass the following order. ORDER The Criminal appeal is allowed. The appellant Smt. Nirmala Vinayakrao Sonare is acquitted of the charge for which she was convicted. The appellant is directed to be set at liberty if not required in any other case.