JUDGMENT : Heard the learned counsel for the petitioner and the State. 2. The appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years for offence under Section 304-B of the Penal Code. 3. The prosecution case, as alleged in the fardbeyan, recorded by Assistant Sub-Inspector of Police, Motai Sawaiya (P.W. 11) of Sitamarhi Police Station given by the victim-informant, Sangeeta Devi, at about 06.40 A.M. on 03.04.2010 at Sadar Hospital, during her treatment in presence of her father, Dasai Thakur (P.W. 10) that her marriage was solemnized last year, in 2009, with Harendra Thakur, son of Rajendra Thakur, resident of Kabara, P.S. Sursand. At the time of marriage her father gave Rs.25,000/-, gold ear-ring, silver pattibhar and buffalo calf, bidai perform on 10.04.2010, for some time the husband and wife remained well, but, after spending some day, her husband, Harendra Thakur, started demanding motorcycle from her parents, then, she disclosed that her father is poor and will not be able to give motorcycle, on which he used to assault her and asked her to go from matrimonial home to her parent’s home. The, further, case is that the father-in-law and mother-in-law also subjected her to cruelty for not bringing the motorcycle. On 02.04.2010 while she was sleeping on her bed, then, her husband sprinkled kerosene oil on her body and her on fire on which she made a hulla to save her, then, the neighbours came from the nearby and set off the fire. Some one of the village informed her parents on telephone, then, her parents came in the village and took her to Sadar Hospital, Sitamarhi, for treatment where she was treated. The said fardbeyan was recorded on 03.04.2010 at Sadar Hospital and forwarded to Station House Officer, Sursand Police Station, by the Station House Officer, Sitamarhi, and on receiving the said fardbeyan at Sursand Police Station, an endorsement was made on that fardbeyan to register Sursand P.S. Case No. 40, dated 04.04.2010 under Sections 323, 324, 307 and 498-A of the Penal Code and 3 and 4 of the Dowry Prohibition Act and the investigation was taken up by Station House Officer, Sursand Police Station. However, subsequently the victim’s death Section 304-B of the Penal Code added. 4. However, subsequently the victim’s death Section 304-B of the Penal Code added. 4. During the investigation, he inspected the place of occurrence and given the description of the place of occurrence, village Kabara, the house of Rajendra Thakur having a tiled roof and tatti having east facing. In the house there is one room and verandah attached with room and there is a court-yard in the middle room. In the western side there was a room and it was disclosed that it was the living place of the victim. In the north there is parti land of Pukar Thakur, in the south there is house of Ramnath Thakur and the east there is house of Baijnath Jha having bamboo club. He recorded the statement of Deepak Rai, Ganga Mukhiya, Sunita Devi, Sirjo Devi and Vinod Kumar Thakur. On 05.04.2010 he came to Sitamarhi and recorded the further statement of the witnesses as well as the statement of the father of the victim. On 07.04.2010 he recorded the statement of Usha Devi. On 02.06.2010 he recorded the fardbeyan of Dasai Thakur and prepared the inquest report (Exhibit 5) of the deceased-informant as she died and, then, filed petition for adding Section 304B of the Penal Code and, thereafter, completing the investigation submitted the charge sheet. On his record he has stated that he has not recorded the statement of Pukar Thakur, resident of the north of the place of occurrence. He has, further, stated that he did not record the statement of Ram Pukar Thakur nor he recorded the statement of Baijnath Jha nor he recorded the statement of the police officer, who has recorded the fardbeyan. He neither recorded the statement of the Doctor, who treated the victim nor he recorded the statement of either the Compounder or the Nurse nor he make any investigation in regard to the treatment of the victim in the Hospital, however, after investigation submitted charge-sheet. 5. After the submission of the charge-sheet, cognizance taken, case committed to the Court of sessions and after framing of the charge the trial commenced. During the trial, twelve witnesses were examined by the prosecution who are P.W. 1 Ganga Mukhiya, P.W. 2 Vijay Kumar Thakur, P.W. 3 Vinod Kumar Thakur, P.W. 4 Sunita Devi, P.W. 5 Srijal Devi, P.W. 6 Dr. During the trial, twelve witnesses were examined by the prosecution who are P.W. 1 Ganga Mukhiya, P.W. 2 Vijay Kumar Thakur, P.W. 3 Vinod Kumar Thakur, P.W. 4 Sunita Devi, P.W. 5 Srijal Devi, P.W. 6 Dr. Chandra Bhushan Prasad, who conducted the autopsy on the person of the deceased and found old infected burn injury over chest, abdomen, back, some portion of upper limb and both thighs partially. He found the internal injury as follows (i) on opening the skull cranium intact, brain matter congested, (ii) on opening of neck nothing abnormal detected, (iii) on opening thorax found both lungs intact and congested. The time elapsed since death within 24 hours and in his opinion the cause of death was due to septicemia and shock leading to C.R. failure due to the above noted infected burn injuries (septicemia). 6. P.W. 7 is Usha Devi, P.W. 8 is Deepak Kumar, P.W. 9 is Chandan Kumar Rai, P.W. 10 is Dasai Thakur, the father of the victim, who deposed that the marriage solemnized about two years back and has given gift at the time of marriage as per his ability. However, he has stated that the daughter had good relation with her husband and sasural people. He has, further, stated that on 03.04.2010 he received information from village Kabara on telephone that his daughter has been burnt. He has, further, stated that how she got burnt and on whose act burn taken place was not disclosed. When he reached village Kabara, then, he found his daughter in burnt state and then he took her to Sadar Hospital, Sitamarhi, where the treatment of his daughter was started and during the treatment Daroga came and recorded her statement. He has, further, stated that before him his daughter signed on the statement, the signature of the daughter has been marked as Exhibit 2 and has stated that he himself has signed on the fardbeyan and he proved his signature, marked as Exhibit 2/1. However, he has, further, stated that his daughter has not given fardbeyan before her death to Daroga and in cross-examination he has stated that after marriage the sasural people used to keep his daughter well and his daughter never reported about any demand by her husband or father-in-law or mother-in-law with regard to motorcycle as dowry. However, he has, further, stated that his daughter has not given fardbeyan before her death to Daroga and in cross-examination he has stated that after marriage the sasural people used to keep his daughter well and his daughter never reported about any demand by her husband or father-in-law or mother-in-law with regard to motorcycle as dowry. He has, further, stated that the paper on which his daughter and he signed was plain paper. P.W. 11 is Motai Sawaiya, the police officer, who recorded the statement of the victim. However, in his statement, he stated that on the said date he received an O.D. slip from Sadar Hospital on the basis of which he reached there where he found Sangeeta Devi, the informant, lying on the bed in a burnt state and was being treated. He recorded her fardbeyan, read it over to Sangeeta Devi and she signed on it before Dasai Thakur, the father of the informant, who also signed on the fardbeyan and has proved the fardbeyan in his writing and signature. However, in cross-examination, the investigating officer stated that he received written information on the O.D. slip and he proceeded from Police Station to Sadar Hospital and he informed about it to the Officer-in-Charge though he stated that the fardbeyan does not mention that he read over the contents of the fardbeyan to Sangeeta Devi. P.W. 12 is the investigating officer, who conducted the investigation and submitted the charge-sheet. 7. The trial Court taking into consideration the evidence of the witnesses convicted the appellant and sentenced as mentioned above on the ground of treating the fardbeyan of the informant as dying declaration. 8. The learned counsel for the appellant has challenged the order of conviction and sentenced, recorded by the trial Court, on the ground that there is no legal evidence for convicting the appellant. It has, further, been contended that the fardbeyan of the victim can not be treated as dying declaration as the statement recorded by the police officer on 03.04.2010 at 06.00 P.M., but, there is no evidence, at all, whether the victim was conscious and was in a state of deposing or making statement. It has, further, been contended that neither the O.D. slip has been proved nor brought on record on the basis of which the investigating officer rushed to Sadar Hospital. It has, further, been contended that neither the O.D. slip has been proved nor brought on record on the basis of which the investigating officer rushed to Sadar Hospital. The information received by P.W. 11, recorded as sanha entry has never been proved nor the Doctor or Nurse, who were examined the victim, were examined to prove that the victim was in conscious state and was able to depose about the occurrence. It has, further, been contended that the father of the victim, who has signed on the first information report, also not supported the prosecution case rather in his evidence in paragraph 14 has stated that his daughter did not give any fardbeyan before him to Daroga. He has, further, stated in paragraph 9 that his daughter and he signed on the paper which was blank and it was written on the paper subsequently and what was written was not read over to him, hence, contended that none of the witnesses has supported the prosecution case and the conviction on the sole basis of the statement of the victim in fardbeyan treating it to be dying declaration is neither proper nor in the interest of justice. 9. The learned counsel for the State, however, contends that a conviction can be recorded on the fardbeyan recorded by the police officer and the dying declaration can be sole basis for recording conviction and has placed reliance upon decision reported in 2012 (3) East Cr C 13 (SC) : 2012 (3) P.L.J.R. 133 (S.C.) (Salim Gulam Pathan Vrs. State of Maharashtra through SHO). 10. On the respective submissions, the question for consideration whether the order for conviction and sentence recorded by the trial Court sustains. However, going through the evidence of the witnesses, it is apparent that out of 12 witnesses, examined by the prosecution of the case, P.Ws. 1, 2, 3, 4, 5, 7, 8 and 9 have been declared hostile as not supported the prosecution case. P.W. 10 is the father of the informant, who is a witness of the fardbeyan and has signed on the fardbeyan. P.W. 11 is Motai Sawaiya, the police officer of Sitamarhi Police Station, who recorded the fardbeyan of the victim, which is treated as dying declaration and P.W. 12 is the investigating officer. 11. Having regard to the fact that except P.W. 6, P.Ws. 1 to 9 have been declared hostile. P.W. 11 is Motai Sawaiya, the police officer of Sitamarhi Police Station, who recorded the fardbeyan of the victim, which is treated as dying declaration and P.W. 12 is the investigating officer. 11. Having regard to the fact that except P.W. 6, P.Ws. 1 to 9 have been declared hostile. P.W. 6 is the Doctor, who conducted the post-mortem examination and has deposed that death of the victim is due to septicemia out of the burn injury leading to C.R. failure. However, P.W. 11 is the police officer, who recorded the statement of the victim, has merely stated the fact that he recorded the statement of the victim at Sadar Hospital, Sitamarhi, while she was being treated there and, thereafter he read over it on which the victim signed and it was further signed by Dasai Thakur, but, there is no mention in the fardbeyan that the contents of the fardbeyan was read over to the victim. 12. The criticism raised that P.W. 11 recorded the statement, but, in his deposition it has not been mentioned that what was stated by the victim and no deposition has been made regarding the contents of the statement of dying person. However, it is well settled that it is not required to repeat the words or to reproduce the contents of the statement of the victim. He is only supposed to bring the statement of the deceased on record and proved the contents thereof and as a matter of fact the dying declaration can be proved by any other person when the person who has recorded the dying declaration is not available. However, to record conviction on the basis of that statement would be a matter of appreciation of evidence. P.W. 11 has stated that he recorded the statement of the victim, but, there is no evidence that whether the victim was in a fit state of mind or conscious or was in a position to depose. However, the fardbeyan recorded by P.W. 11 is said to have been signed by P.W. 10 the father of the victim, but, P.W. 10, the father of the victim, in his statement, in paragraph 4, has specifically stated that the girl has not given the fardbeyan to Daroga before him. In his, further, statement deposed that the paper on which her daughter and he signed was plain paper and was not read over to them. In his, further, statement deposed that the paper on which her daughter and he signed was plain paper and was not read over to them. Hence, the authenticity of the fardbeyan recorded lost its significance. It is pertinent to mention that a suggestion has been made to the investigating officer regarding the signature of the victim on the fardbeyan that the signature is at a space touching the last line of fardbeyan and there is no space as usual between the last paragraph and the signature of the victim and it indicates a suspicion whether the signature was made after recording the fardbeyan or fardbeyan post dated the signature. 13. P.W. 12, the investigating officer, in his evidence, has also stated that he did not record the statement of the Doctor, Compounder or Nurse, who were engaged in the treatment of the victim. He has, further, stated that he did not enquire or investigate with regard to the paper regarding her treatment in the Hospital. 14. It is relevant to quote paragraph 10 of the judgment reported in 2012 (3) East Cr C 13 (SC) : 2012 (3) P.L.J.R. 133 (S.C.) (Salim Gulam Pathan Vrs. State of Maharashtra through SHO) : “10 : In Atbir vs. Government (NCT of Delhi) after an elaborate consideration of several decisions of this Court, the following propositions have been laid down with regard to the admissibility of a dying declaration :-- “22. The analysis of the above decisions clearly shows that :- (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) 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. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (iv) 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. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) 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 if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.” 15. Hence, it has been held that the dying declaration can be the sole basis of the conviction if it inspires the full confidence of the Court. The Court should be satisfied that the deceased was in fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination and when the Court is satisfied that the declaration is true and voluntary, it can pass the conviction without any further corroboration and, further, a dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. 16. Having regard to the facts and circumstances of the case, there is no evidence whether the victim was conscious and was in a position to speak out. The police officer, who recorded the statement of the victim has neither got signature of Doctor, Nurse or Compounder about the victim’s conscious state and whether she was able to speak out or not neither the Doctor who examined her has been examined nor the Compounder nor the Nurse. The police officer, who recorded the statement of the victim has neither got signature of Doctor, Nurse or Compounder about the victim’s conscious state and whether she was able to speak out or not neither the Doctor who examined her has been examined nor the Compounder nor the Nurse. Two persons who have signed the fardbeyan out of whom one Jagdeo Thakur has not been examined and Dasai Thakur has stated that the victim has not given any fardbeyan to Daroga and, further, the fact that the paper on which his daughter and he signed was blank, itself, casts a serious doubt on the fardbeyan stated to be recorded by P.W. 12. Further, P.W. 12 has stated that he proceeded on O.D. slip having been recorded sanha entry and, then, proceeded to hospital where he recorded the fardbeyan, but, neither the O.D. slip nor sanha entry has been produced, hence, having regard to the fact that since the O.D. slip has not been brought on record, sanha entry recorded on the said O.D. slip also not brought on record, the statement recorded by the investigating officer bear the signature of two persons, one not examined and other examined has not supported and, further, the Doctor, Nurse and Compounder having not been examined and, further, P.W. 11, who recorded the statement has not specifically stated about the state of the victim whether she was in a position to speak out or whether the statement was recorded in question-answer series or whether she recorded the text which he recorded in the fardbeyan, so treating the fardbeyan as a dying declaration does not inspire confidence to record a conviction as the fardbeyan recorded does not inspire confidence to have been recorded voluntarily. 17. Hence, I find and hold that the prosecution has not been able to prove the charge beyond reasonable doubt. The trial Court did not go into the question whether the statement recorded inspires confidence and except the contention there is nothing against the petitioner. 18. The order of conviction and sentence, recorded by the trial Court is set aside and the appeal is allowed. 19. Since, the appellant is in jail, he is directed to be released forthwith, if not wanted in any other case. Appeal allowed.