JUDGMENT : Ashim Kumar Roy, J. 1. The appellant Suku @ Sukdeb Bagdi husband of the deceased, Sandhya Bagdi along with his parents were placed on trial before the learned Additional Sessions Judge, 1st Court at Bankura to answer charges for the offences punishable under sections 498A and 302 of the Indian Penal Code. 2. In the said trial, finally the appellant was convicted under section 302 IPC and sentenced to suffer imprisonment for life and payment of fine with default clause. 3. The remaining two accuseds while were acquitted of all the charges framed against them, the appellant was acquitted for the offences punishable under section 498A IPC. 4. The aforesaid order of acquittal was never challenged nor any appeal has been preferred against that. 5. The laconic version of the prosecution case goes like this, 6. The appellant Suku @ Sukdeb Bagdi about one and half years back from the date of the incident married Sandhya Bagdi, the daughter of the de facto complainant Gurupada Bagdi (PW/3). After marriage, since she was subjected to torture physically and mentally by her husband and parents-in-law, ultimately she had to take shelter at her parent’s home. Subsequently, on December 6, 1998, Sandhya was left at her matrimonial home by the de facto complainant (PW/3) after some reconciliation. But on the next day December 7, 1998, the de facto complainant (PW/3) was informed that his daughter was set on fire by the appellant and other in-laws and was removed to the hospital and after 7 days of treatment she succumbed to her burn injuries. 7. However, it was the defence case that victim committed suicide because she was not willing to stay at her matrimonial home and the allegation for demand of dowry and torture was false. 8. During trial prosecution examined total 15 witnesses but none from the side of the defence. 9. There was no eye-witness to the occurrence and the case of the prosecution entirely rests on two dying declarations Ext.-4 and 7 series recorded by PW/4 and PW/8, the medical officers, who attended the victim at the hospital. 10. The learned counsel for the appellant vehemently contended none of those dying declarations can at all be acted upon because there was no certificates by the concerned medical officers about the fitness of the victim. 10. The learned counsel for the appellant vehemently contended none of those dying declarations can at all be acted upon because there was no certificates by the concerned medical officers about the fitness of the victim. He further contended that if the cross-examination of both the doctors were taken into consideration, even assuming the victim was conscious it cannot be said that she was in a fit state of mind or in a position to give any statement. He added in none of those two recorded dying declarations her signature or thumb impression was there and although the victim survived for about a week and underwent treatment in the hospital but no attempt was made to get her statement recorded by any Executive Magistrate. He further added that although it was the case of the prosecution that she was set on fire inside their bed room, however, no evidence was collected in support such claim. Then he drew our attention to the evidence of PW/1, a relation of the victim and submitted the said witness found the victim near a pond with burn injuries but it was never claimed that PW/1 was told by the victim anything against the appellant and according to PW/9, a neighbour of the appellant, who arrived at the spot immediately after the occurrence the victim was completely unconscious and gutted and did not respond to their call. 11. The learned Public Prosecutor opposing this appeal vehemently contended that no case has been made out from the side of the appellant why the two doctors, who recorded the dying declaration of the victim on two different occasions, should be disbelieved. According to the learned Public Prosecutor the doctors had no animosity with the appellant and therefore chances of making any false allegation against him can safely be excluded and the dying declarations can always be sole basis of conviction. He further drew our attention to Ext.-4 and submitted that the victim was admitted in the hospital by the appellant, her husband, which would be evident from the note in the injury report. He further drew our attention to Ext.-4 and submitted that the victim was admitted in the hospital by the appellant, her husband, which would be evident from the note in the injury report. He further submitted the non-seizure of any burnt materials from inside the bed room, where victim was set on fire and not making any arrangement for recording her statement by an Executive Magistrate is a clear lapse on the part of the Investigating Officer and for that the prosecution was not supposed to suffer any adverse consequences. He submitted the incident took place inside the house of the appellant. Therefore, he is bound to explain how the victim caught fire and in absence of any explanation, it can safely be held that the charge against him is proved. 12. Heard the learned counsel appearing on behalf of the parties. Considered their respective submissions and perused the materials on record. 13. It was already noted the prosecution case entirely rest on two dying declarations of the victim, Ext.-4 and Ext.-7 recorded by the doctors, one of whom attended her at emergency and another under whose care the victim was admitted in the hospital. 14. It is the general rule of evidence that all oral evidence must be direct. However, 8th Clause of Section 32 is exception to such general rule against hearsay. Clause 1 of Section 32 makes relevant what is generally described as dying declaration. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the causes of that person’s death comes into question. 15. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 16. 15. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 16. In the case of Laxman vs. State of Maharashtra reported in (2002) 6 SCC 710 , a Constitution Bench dealt with the juristic theory against the acceptability of the dying declaration and observed as follows, (a) Such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. (b) Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the death bed is so solemn and serene, 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. (c) Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. (d) The court must always to be on guard to see that the statement of the deceased was not a result of either tutoring or prompting or a product of imagination. (e) The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. (f) The court, is therefore normally, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. (g) 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. (h) 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 die. (i) 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. (j) Consequently, what evidential value or weight is 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. (k) Where 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 acted upon provided the court ultimately holds the same to be voluntary and truthful. (l) 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. 17. Apart from above, the following observations of the Apex Court, in some other cases, are also quite relevant in this regard, 18. Neither rule of law nor of prudence requires no dying declaration can be acted upon without corroboration. If court is satisfied that same was true and voluntary such dying declaration can be the sole basis of conviction. 17. Apart from above, the following observations of the Apex Court, in some other cases, are also quite relevant in this regard, 18. Neither rule of law nor of prudence requires no dying declaration can be acted upon without corroboration. If court is satisfied that same was true and voluntary such dying declaration can be the sole basis of conviction. [Munnu Raja vs. State of M.P. (1976) 3 SCC 104 ; State of U.P. vs. Ram Sagar Yadav (1985) 1 SCC 552 ; Ramawati Devi vs. State of Bihar (1983) 1 SCC 211 ]. 19. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [Rasheed Beg vs. State of M.P. 1974 SCC (Cri) 426] 20. In the touch stone of the above principles, authoritatively laid down by the Apex Court, now in the instant case, we are to examine the question of acceptability of the alleged two dying declarations, which have been relied upon by the prosecution. 21. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that is absolutely safe to act upon. If after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and when such statement was made coherently and the declarant was in a fit mental condition, there is no legal impediment to make the same the basis of conviction without any further corroboration. 22. The first declaration Ext.-4 was recorded in the injury report by PW/4, Doctor Tapas Kumar Roy. We find in his examination-in-chief, the witness disclosed that on December 17, 1998 at around 5.10 am in the morning in emergency, he examined the victim, who was affected with 90% burn and she told him …….“her husband set her on fire by the flame of lamp”. However, the same witness when was cross-examined disclosed that nearly two hours after occurrence, the victim was examined by him and generally, the patient may suffer shock as a result of burn injury and admitted although not always but in some cases the patient having burn injury may make incoherent statement. However, the same witness when was cross-examined disclosed that nearly two hours after occurrence, the victim was examined by him and generally, the patient may suffer shock as a result of burn injury and admitted although not always but in some cases the patient having burn injury may make incoherent statement. The PW/4 when was further cross-examined, he conceded in case of 90% burn, the veins and arteries are affected seriously and due to non-supply of oxygenated blood for 20 minutes in temperate region and 30 minutes in cold region, the function of the brain may be affected. Therefore, PW/4 on his own showing raised a reasonable doubt, whether victim was in a fit state of mind to make a coherent statement, when her such statement (Ext.-4) was recorded. 23. In the above backdrop, the evidence of PW/9 Dulali Rajak assumes great importance. PW/9 was a close door neighbour of the appellant. According to her, hearing hue and cry she rushed to the house of the appellant and found the victim was completely gutted and became unconscious. She further stated in spite of their loud calling, the victim did not respond to their call. However, for the reason best known to the Public Prosecutor, the PW/9 was not declared hostile by the prosecution and as the law stands the defence can always rely upon the same to prove its case and innocence. [Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) 2005 SCC (Cri) 1037; Raja Ram vs. State of Rajasthan 2005 SCC (Cri) 1050]. The learned Public Prosecutor has not disputed the settled legal position that a prosecution witness can be declared hostile even during cross-examination [Dahyabhai Chhagambhai Thakkar vs. State of Gujarat AIR 1964 SC 1563 ]. The position now boils down although the evidence of PW/9 Dulali Rajak, who met the victim soon after the occurrence and stated that she was completely gutted and became unconscious destroyed the case of the prosecution subsequently when her alleged dying declaration was recorded by the doctor PW/4 that she was in a fit state of mind. Therefore, taking into consideration what has transpired from the cross-examination of the PW/4 Dr. Tapas Kumar Roy together with the evidence of PW/9 Dulali Rajak, a neighbour of the appellant, as above we are reasonably hesitant to rely on Ext.-4. 24. Therefore, taking into consideration what has transpired from the cross-examination of the PW/4 Dr. Tapas Kumar Roy together with the evidence of PW/9 Dulali Rajak, a neighbour of the appellant, as above we are reasonably hesitant to rely on Ext.-4. 24. The second dying declaration was recorded by PW/8 Doctor Sushil Ranjan Ghosal, under whom the victim was admitted at Bankura Sammelani Medical College and Hospital. According to the said witness, the victim was admitted under him in female emergency ward. Many house staff were under him and used to scribe the bed head ticket under his supervision. The patient (victim) stated …..“her husband poured kerosene oil on her person and set her on fire (Ext.-7 series) and thereafter, she did not make any further statement being drowsy”. This PW/8 when was confronted by the defence he admitted his inability to identify which house staff scribed the same and there was no signature beneath the statement recorded beside the bed head ticket and there was no note in the history sheet of the patient that he was present at the time, when victim made the statement. He further admitted ……..“in case of admission of patient call book is generally sent to them and thereafter they used to see the patient and note in the bed head ticket. He further admitted in the Ext.-7 series there is no note in his pen to show that he attended the patient during the treatment”. 25. Thus, the presence of PW/8 Dr. Sushil Ranjan Ghosal, at the time of the recording of the second dying declaration, Ext.-7, appears to be not beyond any shadow of doubts and cannot be safely relied upon. 26. Now, on careful scrutiny of his further cross-examination the following facts appear to be quite vital. According to PW/8 Dr. Sushil Ranjan Ghosal ….. “the patient was admitted on December 7, 1998 at about 5.10 a.m. and her bed head ticket was prepared as soon as she took admission and necessary noting was made on the bed head ticket about administration of medicines”. On further cross-examination PW/8 Dr. Sushil Ranjan Ghosal disclosed ……“the injections noted in the bed head ticket were administered as soon as patient Sandhya Bagdi was admitted in the hospital. Injection pethedrin causes drowsiness, campose is being used as sedative, fenorgan also causes drowsiness. The action of the said injections started within half an hour”. Lastly, PW/8 Dr. On further cross-examination PW/8 Dr. Sushil Ranjan Ghosal disclosed ……“the injections noted in the bed head ticket were administered as soon as patient Sandhya Bagdi was admitted in the hospital. Injection pethedrin causes drowsiness, campose is being used as sedative, fenorgan also causes drowsiness. The action of the said injections started within half an hour”. Lastly, PW/8 Dr. Sushil Ranjan Ghosal revealed ……..“the patient was in semi-conscious stage and was not reacting to stimuli unless it is painful. The patient was not responding on ordinary call and even by shaking”. 27. On the face of above, the probative value of the Ext.-7, the second dying declaration, certainly stands shattered. 28. Furthermore, Dr. J.N. Dey (PW/12), who held the post mortem, when testified in court, only opined that the death was due to the burn injuries found on the body and same were ante mortem in nature. However, neither the post mortem report, Ext.-8, nor evidence of the Autopsy Surgeon (PW/12) carry any definite inference that the victim suffered homicidal burns. 29. When with regard to the dying declaration questions were put to the appellant, he claimed those are false and manufactured. 30. Admittedly, the victim survived for 7 days from the date of incident and on the very next day of the incident the FIR was lodged by her father PW/1, where there was specific allegation against the appellant and others for setting her on fire, still no attempt was made by the investigating officer of the case to get her last statement recorded by any Executive Magistrate. We however not ready to ignore this gap in the prosecution case as a mere lapse on the part of the investigating officer. In our opinion this is quite fatal for the prosecution case. 31. Before parting with, it would not be proper for us to bypass the submissions of the learned Public Prosecutor which he made in his usual vehemence. He contended the incident took place inside the matrimonial home of the victim and the appellant is her husband with whom she was residing there, therefore, in terms of provisions of section 106 of the Evidence Act it was within his special knowledge as to how she caught fire and burden shifted on him and was to be discharged by him and none else. 32. 32. The quantum of evidence by which the accused may succeed in discharging the burden of creating a reasonable doubt so as to absolve him from criminal liability, is lower than the burden resting on the prosecution to establish the guilt of an accused beyond reasonable doubt. The standard of proof on the part of the defence is not so high as in the case of prosecution. In this regard, it would be apposite to refer a few passages from the case of Sambhu Nath Mehra vs. State of Ajmer reported in AIR 1956 SC 404 . 11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that- It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, 1936-3 All ER 36 at p. 49 (B). 13. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be “especially” within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. 33. In the case at hand, the prosecution while taking on itself the burden of proving that the victim was killed by the appellant by setting her on fire relying on two dying declarations recorded by the attending doctor and having failed to prove the same beyond all reasonable doubt now cannot take recourse to the provisions of section 106 of the Evidence Act and shift the burden on the accused to prove his innocence, which is not permissible in law. Murlidhar and others vs. State of Rajasthan reported in (2005) 11 SCC 133 . 34. It is well settled the provisions of section 106 of the Evidence Act does not apply, where the facts in question, having regard to its nature is such as is capable of being known not only by the accused but also by the others as they were also present at the scene of occurrence (Ch. Razik Ram vs. Ch. J.S. Chouthan AIR 1975 SC 667 ). 35. The father of the victim Gurupada Bagdi PW/3 in his evidence claimed that her daughter used to reside in a joint mess with her husband, brother-in-law, mother-in-law and others. No evidence was led by the prosecution to show that at the time of occurrence except the victim and the appellant none else was present. 36. It was suggested to the PW/3, it was he and other members of his family who forced the victim to return to her matrimonial home against her will and on the very day she was taken to her matrimonial home by the witnesses she committed suicide. The fact that informant himself took his daughter to her matrimonial home from the village Banshi, where the PW/9 his son-in-law was residing would be evident from the evidence of the said witness. 37. The fact that informant himself took his daughter to her matrimonial home from the village Banshi, where the PW/9 his son-in-law was residing would be evident from the evidence of the said witness. 37. In this case, the defence did not take shelter to any exception in law or a definite plea. Accused need not to produce evidence in support of his defence and can rely upon the admissions made by the prosecution witnesses. R.K. Dey vs. State of Orissa AIR 1977 SC 170 ; Hansa Singh vs. State of Punjab AIR 1977 SC 1801 . 38. In addition to above, it may further be noted in the trial the appellant was also charged under section 498A IPC for subjecting his wife, deceased Sandhya, for demand of dowry since her marriage till her death. However, in the trial the appellant was not found guilty for the offence punishable under section 498A IPC. Therefore, the prosecution case that the victim was regularly subjected to torture at her matrimonial home for demand of dowry and since her parents failed to fulfil their illegal demand, she was killed, stood not proved. The said order was never challenged and has reached its finality. 39. In view of above, we are unable to sustain the order of conviction and sentence and same are set aside. The appeal is allowed. 40. It is directed the appellant, who is in custody, shall at once be released if not detained in connection with any other case. 41. Office is directed to send down the LCR together with the copy of the judgment to the court below at once. Urgent xerox certified copy of this order be given to parties, if applied for, as early as possible.