JUDGMENT : Sahidullah Munshi, J. 1. This appeal against the judgment and order of conviction dated 11th September, 2008, passed by the Additional Sessions Judge, 2nd Court, Suri, Birbhum, in Sessions Trial No.1 of 2005, is at the instance of the accused, Sk. Saber Ali @ Sk. Apel, whereby the accused/appellant was found guilty of offence under Sections 498A/302, Indian Penal Code and has been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand) only, in default to pay fine, suffer simple imprisonment for six months for the offence under Section 302 of Indian Penal Code and further sentence to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/- (Rupees One Thousand) only, in default to suffer simple imprisonment for two months more for the offence under Section 498A of the Indian Penal Code. The aforesaid Sessions case arose from a written complaint by Majed Ali (PW 1) on 6th December, 2005 on the basis of which formal FIR (Ext. 11) was registered by Suri Police being FIR No.41/05 dated 30th March, 2005 under Sections 498A/326/307, Indian Penal Code. 2. In course of investigation Section 302 was added by the Investigating Officer subsequently and the case was committed for trial before the Sessions Judge, Suri, District – Birbhum. After the FIR was registered, investigation proceeded and Police examined available witnesses under Section 161 of the Criminal Procedure Code. 3. The de facto complainant, Majed Ali stated in his written complaint that about nine years ago marriage took place between his daughter Ms. Sajema Bibi with Saber Ali, son of Alauddin Sk. of Dhalla according to Muslim rites and customs. After marriage both lived happily and resulting thereby two children were born. On various demands physical and mental tortures were inflicted upon the victim, Sajema Bibi and complaints were made at different levels. On 29th March, 2005, the accused put fire on the body of the complainant’s daughter with kerosene oil which was informed to him over telephone by some miscreants and came to know the truth when he reached Suri Sadar Hospital where the victim was admitted. On 29th March, 2005, the accused put fire on the body of the complainant’s daughter with kerosene oil which was informed to him over telephone by some miscreants and came to know the truth when he reached Suri Sadar Hospital where the victim was admitted. Certain dates in this matter are very relevant, that is to say, the alleged incident of burning took place on 29th March, 2005 at 8:00 p.m. On 30th March, 2005 at 12:25 hours FIR was lodged by the de facto complainant under Sections 498A/326/307 of the Indian Penal Code added with Section 302, IPC subsequently. On 30th March, 2005 in between 3:00 and 3:30 p.m. alleged dying declaration of the victim was recorded by the learned Executive Magistrate, Suri Sadar, Birbhum. On 4th April, 2005, victim died at hospital at about 10:20 p.m. 4. Record reveals that the appellant surrendered before the learned Court below on 4th April, 2005 and thereafter, the case was committed to the Court of learned Sessions Judge wherefrom the same was transferred to the Court of Additional Sessions Judge, 2nd Court, Suri, Birbhum. Time to time, his prayer for bail was rejected. 5. As many as 18 witnesses were produced by the Prosecution and in short, their depositions are noted below: “PW 1, Majed Ali, the de facto complainant deposed that Sajema Bibi, victim, was his daughter and was admitted to hospital after having a burn injury. His daughter died on 22nd Chaitra, 1411 B.S., that is, seven days after her admission at the hospital. He deposed – “My daughter since deceased told me that her husband setting fire by pouring kerosene on her.” He further deposed – “during her life time torture was inflicted on her owing to reason for more dowry which my daughter did convey to me. and as a result of failure to meet their demand she was persecuted. Perhaps four years before of my daughter’s death I lodged a written complaint before Suri P.S. about cruelty of torture which my daughter had to face. and as a result of failure to meet their demand she was persecuted. Perhaps four years before of my daughter’s death I lodged a written complaint before Suri P.S. about cruelty of torture which my daughter had to face. I also informed about to that to the member named Fatik Bayan of Alunda Gram Panchayat, who gave me a written document with an advice to lodge a written complaint before P.S. I also made over that document to the P.S.” He further deposed that – “on the next following day of her admission she gave a Dying Declaration at hospital where the doctor and myself were present. I signed on the statement recorded by the Magistrate. This is my signature identified and marked as Ext. 2. At the time of giving statement before the Magistrate she was capable to speak about the incident what happened before.” In cross-examination this witness deposed that – “It is not a fact that the death of my daughter was the sequence of accidental fire from ‘Chulli’. It is not a fact that the fire wood used, was not dried up properly for that she poured kerosene oil and by accidental inflammation she caught fire.” PW 2, Abul, Kalam, is the scribe of the written complaint which was drafted as per instruction of PW 1. Formal FIR (Ext. 1/1) was registered on the basis of the said complaint. He deposed that – “... In the F.I.R. nothing is endorsed that I wrote the F.I.R. as per instruction of Majed Ali nor even it is nowhere mentioned that the contents of the complaint was read over and explained to Majed Ali. I am a graduate.” PW 3, Tanjela Bibi, is the mother of the victim, Sajema Bibi. Accused is her son-in-law. She deposed that – “My daughter used to visit our house owing to ill-treatment and ‘Mardhore’ (assault). Sometimes we paid certain amount to our daughter for giving a solance after selling our cattle.” She further deposed – “we got information by an anonymous Phone Call at about 8 p.m. and at once I rushed to the hospital at that night but my husband went to the hospital on the next morning. My other relations mostly are male accompanied me to the hospital. My other relations mostly are male accompanied me to the hospital. We got opportunity to see her on the next morning at 7.00 a.m. When I found my daughter her body was almost charred but she was capable to speak. I was present besides that my husband, Doctor, Magistrate and a police were also present before whom she told that her husband set fire on her. In cross-examination this witness deposed – “it is not a fact that my daughter died as a sequence of accidental burning caused by fire wood of its reckless handling while she was cooking. It is not a fact that I was present at the time of giving dying declaration to the Magistrate. Dying declaration was recorded at about 3.00 p.m. at the hospital on the next day of her admission.” PW 4, Md. Sader Ali, is the brother of the victim. He deposed – “during her stay in the hospital she gave statement in presence of Executive Magistrate, Police and Doctor.” In cross-examination this witness deposed – “I am unable to speak about the details what for she was being ill-treated rather my father and mother competent to speak about that. ... I am not an ocular witness to the very moment of setting fire by the accused to my elder sister. ... it is not a fact that her death was accidental when she was trying to ignite the oven by a matches on wet firewood by pouring Kerosene oil on it.” PW 5, Sajed Ali, is the uncle of the victim, Sajema Bibi. This witness deposed – “The accused who is our Jamai oftenly drove her out from his house. As far as I can remember an information of attributing torture on my Bhaiji was given to Aulundi Panchayat.” He further deposed – “My Bhaiji told us during her treatment at hospital that the accused had set fire on her.” In cross-examination this witness deposed – “I met my Bhaiji at hospital on 16th Chaitra at about 8.00 a.m. At that time besides myself my elder brother, Boudi and my sister were present. In reply to my question she told me the background of the incident of burning.” He further deposed that – “It is not a fact that my Bhaiji had no capacity to tell about the cause of her condition either to me or to others including Magistrate and Police. In reply to my question she told me the background of the incident of burning.” He further deposed that – “It is not a fact that my Bhaiji had no capacity to tell about the cause of her condition either to me or to others including Magistrate and Police. It is not a fact that we have introduced this false story for the purpose of this case. It is not a fact that her death was accidental while she was attempting to ignite the oven by pouring Kerosene oil on the wet wood.” PW 6, Abdul Haque, a resident of the village Heruka, deposed – “I came to hospital on the next following date i.e. 16th Chaitra in the morning around 8/8.30 a.m. to see Sajema. Her condition was critical but she was able to speak. On seeing us she was weeping and told us that her husband had set fire on her by pouring Kerosene oil.” In cross-examination this witness deposed – “I met Sajema at hospital when she was capable to speak. I told before the police that Sajema told me that her husband had set fire on her by pouring kerosene oil on her and she was then weeping.” PW 7, Enamul Haque, is the scribe of the Kabil Nama by which marriage was performed between the accused and the victim. PW 8, Dr. Purusottam Some, was the Medical Officer attached to Suri Sadar Hospital since December, 2003. He deposed – “On 29/3/05 at about 8.24 p.m. one Sajema Bibi, wife of Sk. Appel of Dhalla, Kukhudihi P.S. Suri was admitted at Suri hospital under me. The patient had burn injury approx. 80%. I interrogated the patient and she told that the burn was infected by her husband and it was not accidental. ... The patient succumbed to the burn injuries on 04/4/05 at 10.20 p.m. ... On 30/3/05 between 3 p.m. to 3.30 p.m. the ‘Dying Declaration’ of the patient Sajema was recorded by the Executive Magistrate in my presence. Before the dying declaration was recorded, I issued a certificate regarding the consciousness and mental alertness of the patient upon her examination by me. I then found the patient conscious, co-operative and mentally alert to give declaration and gave a certificate accordingly under my hand with my dated signature and time. This is that certificate of mine and bears my signature with date and time. I then found the patient conscious, co-operative and mentally alert to give declaration and gave a certificate accordingly under my hand with my dated signature and time. This is that certificate of mine and bears my signature with date and time. The certificate is marked as Ext. 2a.” In cross-examination this witness deposed – “My certificate in the declaration does not contain any note that I gave such certificate upon examination on the patient. I did not issue any certificate separately and I endorsed the certificate on the dying declaration itself.” He further deposed – “It is not a fact that the patient was unconscious and that she was unable to speak anything when the declaration was recorded.” PW 9, Subhas Chandra Konar, is a member of W.B.C.S. (Executive). He deposed that – “On 30/3/05 I was posted at Suri as Senior Deputy Collector and Executive Magistrate. The A.D.M. (Gen.), Suri, instructed me to proceed to Suri Sadar Hospital for recording a ‘Dying Declaration’ of a patient admitted in the hospital. Accordingly I had been to Suri Sadar Hospital. A relation of the patient and a police present in the hospital identified the patient to me. The doctor in-charge certified the mental fitness and alertness of the patient for making declaration. The doctor in-charge endorsed his certificate regarding fitness of the patient on the declaration format.” He further deposed that – “the patient was identified by Majed Ali and Ajoy Sarkar, S.I. of police. I recorded the declaration during the period from 3 p.m. to 3.30 p.m. in presence of Majed Ali, Ajoy Sarkar and the doctor in-charge. The declaration bears the signature of those persons. This is that declaration. It is marked as Ext. 2b.” This witness deposed in cross-examination that – “My services were requisitioned by an order in writing.” He further deposed that – “I stated to the patient that I was a Magistrate and I recorded it on the declaration. I did not reduce it into question-answer form that I disclosed my identity as Magistrate. I cannot say if the doctor in-charge verified the medical papers of the patient before giving a certificate. I did not go to the patient before arrival of the doctor in-charge. I did not reduce it into question-answer form that I disclosed my identity as Magistrate. I cannot say if the doctor in-charge verified the medical papers of the patient before giving a certificate. I did not go to the patient before arrival of the doctor in-charge. I had been to the patient with the doctor in-charge was present when the patient made the declaration.” PW 10, Ashok Mahanta, a Home Guard being No.1405, who was posted at Suri P.S. He deposed S.I. Habibul Hassan on 23/4/05 seized a Kabilnama and he signed on the seizure list. PW 11, Bisnupada Das, is a Police constable being No.833. On 05/04/05 he was posted at Suri P.S. and accompanied S.I. Habibul Hassan to Suri Sadar Hospital where S.I. Hassan held inquest on the victim. PW 12, Fatik Bayen, is a resident of Dhalla village. This witness has been declared hostile by the Prosecution. In cross by the Prosecution he deposed – “Not a fact that I have sent a letter to the women grievance cell of Suri P.S. Not a fact that I admitted before the I.O. after seeing the letter shown to me by the I.O. that it was written by me and that the said letter bears my seal and signature.” In cross-examination for the accused this witness deposed that – “At the relevant time that accused was in Patharchapri Mela and from there he was called on to be present.” PW 13, Ajoy Kr. Sarkar, is a S.I. of Police. This witness was present at the time when the victim’s dying declaration was recorded. He deposed – “This is my said signature in the “Dying Declaration”. At the relevant time the victim was in a fit state of mind.” In cross-examination this witness deposed – “After the recording was over the doctor had requested me to put my signature and so I put my signature. I signed there at 3 p.m.” PW 14, Rafique Sk., is a resident of Digalgram and is another son-in-law of the de facto complainant. He deposed – “My father-in-law was supposed to give Rs.11,000/- at the time of marriage. Out of that he had paid Rs.8000/- and Rs.3000/- was due. The accused used to put torture upon the victim for that dues. The accused had killed her by setting fire. She died in Suri Sadar Hospital after seven days since setting of fire. He deposed – “My father-in-law was supposed to give Rs.11,000/- at the time of marriage. Out of that he had paid Rs.8000/- and Rs.3000/- was due. The accused used to put torture upon the victim for that dues. The accused had killed her by setting fire. She died in Suri Sadar Hospital after seven days since setting of fire. I told the I.O. everything. The accused is present today (i.d.).” This witness in cross-examination deposed – “I deposed everything as to what I heard.” PW 15, Md. Obed Ali, is a resident of Hemka and known to PW 1. He was a witness to the Kabilnama. PW 16, Laxmi Kanta Mondal, is a Home Guard who was posted at Suri P.S. at the time of incident and is an witness to the seizure list prepared by Habibul Hassan, S.I. of Police. He is a witness to the seizure list (Ext. 9). PW 17, Dr. Nihar Ranjan Banik, the autopsy surgeon, deposed that – “The dead body was identified to me by Bishnupada Das constable No.838. I have gone through the Inquest report supplied by police. I have conducted P.M. in accordance with the medical rules and this is the said P.M. report prepared and signed by me Ext. 10.... In this case of burn injury according to my opinion cause of death is likely toxic shock and the nature of burn is ante mortem.” In cross-examination the witness deposed – “I did not mention the percentage of burn injury in my P.M. report. It was a severe burn injury. I do not think it necessary to send the body for P.M. at F.S.L. Not a fact that I did not perform P.M. as per rules.” PW 18, Sk. Habibul Hassan, the Investigating Officer, deposed – “In course of investigation I have examined available witnesses u/s 161 Cr. P.C. I came to know that the victim was admitted at hospital and so I went to the hospital. Her ‘Dying Declaration’ was recorded by the Ld. Deputy Magistrate Subhas Konar. S.I. Ajoy Sarkar was also present there. The victim’s father, who happens to be the de facto complainant of this case, was also present there. The victim ultimately died. So I prepared inquest report. This is the said Inquest Report in Carbon process Ext. 3/3. Besides that Executive Magistrate had also prepared an Inquest Report, which I have collected. S.I. Ajoy Sarkar was also present there. The victim’s father, who happens to be the de facto complainant of this case, was also present there. The victim ultimately died. So I prepared inquest report. This is the said Inquest Report in Carbon process Ext. 3/3. Besides that Executive Magistrate had also prepared an Inquest Report, which I have collected. This is the said Inquest Report prepared by the Executive Magistrate, collected by me identified Ext. 3/1. I have seized the wearing apparels of the victim, Kerosene Jar etc. from the P.O. This is the said Seizure List prepared and signed by me Ext. 13.” In his cross-examination the witness deposed – “I did not recommend for Dying Declaration but it was recommended by the I.C. On 30/3/05 at or about 5.25 p.m. I came to know that the victim’s Dying Declaration was recorded. I did not record the statement of the concerned nurse. I recorded the statement of the victim u/s 161 Cr. P.C. on 30/3/05 at or about 6.30 p.m. Before that ‘Dying Declaration’ was recorded. In her 161 Cr. P.C. statement she did not tell that she had made ‘Dying Declaration’ before the Magistrate.” The accused was also examined under Section 313 of the Criminal Procedure Code and as many as 54 questions were put to the accused but the accused, in none of the answer, has given any clarification with regard to the occurrence of the incident and the death of his wife. From the evidence led on behalf of the Prosecution it transpires that victim’s marriage was performed with the accused nearly about 9 years back since the date of occurrence. After a few days of the marriage the victim was subjected to torture for dowry. She ventilated her miseries to her parents, but in spite of their best effort could not help the daughter. On 29th March, 2005, a telephone call was received by the victim’s father, PW 1 and came to know that the accused set his daughter on fire and she was fighting tooth and nail with death. The de facto complainant, PW 1, rushed to the hospital and consequently lodged F.I.R. with the Police. 6. On 29th March, 2005, a telephone call was received by the victim’s father, PW 1 and came to know that the accused set his daughter on fire and she was fighting tooth and nail with death. The de facto complainant, PW 1, rushed to the hospital and consequently lodged F.I.R. with the Police. 6. From the trend of the cross-examination as also the examination of the accused under Section 313 of the Code of Criminal Procedure, it transpires that the accused sought to prove his innocence and that all the allegations made against him are false and he has been falsely implicated in the case. 7. In respect of the Defence case the appellant has put forward the following arguments to prove that the appellant is not guilty of the offence alleged to have been committed by him. 8. Mr. Ghosh appearing for the appellant submitted that there was no direct witness to the alleged incident and, therefore, the Prosecution was not right to implicate the accused in the instant case. He submitted that the entire case is based on circumstantial evidence but circumstances are such that it is not sufficient to hold the appellant guilty of the offence complained of. 9. Mr. Ghosh further submits that the Prosecution has relied on the dying declaration of the victim recorded by Executive Magistrate. He submits that dying declaration was not in the question-answer form. Therefore, the same should not be looked into by this Court and no reliance should be placed on such dying declaration. To substantiate his argument Mr. Ghosh has also relied on a decision in the case of Rasheed Beg & Ors. Vs. State of Madhya Pradesh, reported in (1974) 4 SCC 264 . Drawing our attention to paragraph 9 of the said decision Mr. Ghosh argues that the dying declaration should not be believed without some corroborative evidence. However, on a careful scrutiny of the said decision we find that the law as laid down by the Hon’ble Apex Court that in a case where two dying declarations implicating separate persons to be offenders, the Hon’ble Apex Court holds that such a situation should be perfected taking help of corroborative evidence. Therefore, such decision as cited by Mr. Ghosh, has no bearing in the fact situation of the present case where the dying declaration is very clear. Therefore, such decision as cited by Mr. Ghosh, has no bearing in the fact situation of the present case where the dying declaration is very clear. In the present case, the Executive Magistrate, in whose presence dying declaration was recorded, deposed before the Court as PW 9 and in cross-examination he confirmed that the doctor in-charge was present when the victim made the declarations. He further deposed that the victim was mentally fit and alert to make the declaration and thereafter recorded the declaration in question and answer form. He further deposed that the victim was identified by PW 1 and Ajoy Sarkar, S.I. of Police, PW 13 and that in presence of PW 1, PW 13 and doctor in-charge, the declaration was recorded. The declaration (Ext. 2b) bears signature of those three persons. 10. The witness could not be impeached in the cross-examination in any manner as now sought to be mentioned by the learned Counsel to find fault with the dying declaration of the victim recorded at the hospital. 11. To contradict the dying declaration Mr. Ghosh submitted that the original bed head ticket was not an exhibit, however, record reveals that Xerox copy of the bed head ticket was produced. This may create a doubt when the patient is not identified but in the present case, near relation identified the victim and the dying declaration was recorded in their presence. Mr. Ghosh submitted that the dying declaration was not in existence initially but it has been manufactured. However, such contention is not based on any cogent evidence and, therefore, cannot be accepted. 12. Mr. Ghosh next submits that dying declaration recorded by the Executive Magistrate but PW 13, an S.I. of Police, in his examination, stated that dying declaration was recorded by doctor and as per doctor’s direction he put his signature on that. He submitted that since this witness was not declared hostile, his entire deposition is admissible in evidence and Court cannot ignore it. The evidence discloses that Executive Magistrate recorded the dying declaration and the doctor in-charge certified that the patient was in sense and was mentally fit to give declaration. Doctor’s signature is also appearing on the dying declaration. Therefore, the manner in which the declaration has been recorded is of little consequence but fact remains that doctors gave the certificate and Magistrate recorded the dying declaration. Doctor’s signature is also appearing on the dying declaration. Therefore, the manner in which the declaration has been recorded is of little consequence but fact remains that doctors gave the certificate and Magistrate recorded the dying declaration. I do not find any cogent reason to disbelieve the statement of the Magistrate who deposed in box that he recorded the dying declaration in presence of the victim’s relations. Such a strong evidence cannot be discarded simply by harbouring doubts based on mere technicalities and this fact seems to be correct because the patient did not die immediately after the dying declaration was recorded. She survived for a longer period after the dying declaration was recorded. The dying declaration of the victim was recorded by the learned Executive Magistrate, Suri Sadar, Birbhum on 30th March, 2005 at 3:00 p.m. whereas the victim succumbed to her burn injuries on 4th April, 2005. This long span of time after recording of dying declaration cannot be overlooked at all and there is no reason to ignore such a dying declaration on such flimsy grounds based on behalf of the accused, particularly when cross-examinations by the Defence does not give any hint to an alternative plea that these doctors and the Magistrate had any enmity with the accused or that they acted on some extraneous consideration. Therefore, this dying declaration is such a good piece of evidence it may override all other objections and when this dying declaration becomes acceptable in law, it is immaterial whether any other evidence is at all required to hold the accused guilty of the offence complained of. On a close scrutiny of the evidence of the Prosecution witnesses it is evident that there has been a history of previous torture upon the victim and the allegation that the accused himself set the victim on fire, as has been stated by the victim in her dying declaration, cannot be wiped out. Mere presence of the accused in the hospital on the next morning does not prove the accused innocent. Sufficient opportunity was given to the accused to explain the situation in his examination under Section 313 of the Code of Criminal Procedure, but the accused did not whisper about the occurrence of the incident. Mere presence of the accused in the hospital on the next morning does not prove the accused innocent. Sufficient opportunity was given to the accused to explain the situation in his examination under Section 313 of the Code of Criminal Procedure, but the accused did not whisper about the occurrence of the incident. He only avoided answering to the questions put by the Court as if nothing had happened on 30th March, 2005 and everything was a plot against him conspired by his in-laws. 13. Mr. Ghosh has pointed out that Prosecution has failed to produce any independent witness of the locality, although, it is apparent from the dying declaration that the victim, after caught fire, jumped into the nearby pond and local people rescued her and sent to the hospital. He submits that absence of local witnesses shows that the story was made out at the stage of dying declaration. Simply because no local witness came forward to depose before the Court, it does not render the evidence of other independent witnesses invalid. Therefore, such submission has got no basis and is not acceptable in law. 14. In support of the plea that no independent witness was produced by the Prosecution gives rise to a reasonable doubt about the veracity of the incident and the allegations made against the accused person. Mr. Ghosh has cited a decision in the case of State of U.P. Vs. Madan Mohan & Ors., reported in AIR 1989 SC 1519 . Relying on such decision Mr. Ghosh has sought to point out that an unnatural death case has been purportedly initiated by the Prosecution and has failed to prove it. Therefore, learned Court below, instead of convicting the accused, ought to have acquitted him. Mr. Ghosh has relied on paragraph 7 of the Judgment which is set out below:- “7. The locality where the incident occurred was a thickly populated one. There were several residential quarters as well as shops and dispensaries nearby. At the time of the occurrence, there were several persons who had come out to purchase vegetables from the nearby lane. The halwai shop as well as the dispensaries of two medical practitioners near the place of occurrence were open. On hearing the commotion several persons had come out of their houses. At the time of the occurrence, there were several persons who had come out to purchase vegetables from the nearby lane. The halwai shop as well as the dispensaries of two medical practitioners near the place of occurrence were open. On hearing the commotion several persons had come out of their houses. Even though statements of a few including one of the medical practitioners were recorded none was called to the witness box. Both PW 1 and PW 2 cannot be said to be residents of the locality where the crime was committed as their residences were at some distance from the place of occurrence. The High Court was, therefore, of the opinion that their presence at the scene of occurrence at the relevant point of time cannot be said to be natural and was therefore doubtful. In the case of PW 1, the High Court opined that he was an interested witness being the brother of deceased Ram Shanker and his claim that he closed his shop early and was, therefore, at the scene of occurrence when the incident occurred was difficult to accept. The High Court also took note of the fact that while PW 1 and PW 2 stated that the incident occurred at about 7.30 p.m., the deceased Satya Narain in his dying declaration gave the time of the incident as 6. 00 p.m. The version regarding the incident given by PW 1 and PW 2 also materially differs from the version found in the dying declaration. The names' of the accused disclosed in the dying declaration are also different. There is no mention about the participation of respondent Chander Mohan in the incident in the dying declaration. The dying declaration discloses that only respondent Madan Mohan caused knife injuries to deceased Satya Narain whereas deceased Ram Shanker was attacked by Kamla Tiwari, Rama and two others who were never prosecuted. Thus, respondent Chander Mohan and respondent Daya Shanker alias Munna have not been assigned any role by Satya Narain in his dying declaration. There is no mention about PW 1 and PW 2 having witnessed the occurrence even though the names of other witnesses are mentioned in the dying declaration. Thus, respondent Chander Mohan and respondent Daya Shanker alias Munna have not been assigned any role by Satya Narain in his dying declaration. There is no mention about PW 1 and PW 2 having witnessed the occurrence even though the names of other witnesses are mentioned in the dying declaration. The High Court was, therefore, right in coming to the conclusion that the prosecution version regarding the incident as stated by PW 1 and PW 2 materially differs from the version unfolded by the dying declaration. The High Court was also right in observing that not a single witness from the locality was examined even though the statements of some of the residents including Sneh Lata were admittedly recorded. Sneh Lata was not examined on the ground that her whereabouts were not known. For the non-examination of the other prosecution witnesses no explanation is forthcoming. The relations of the deceased Satya Narain who removed the injured from the place of incident have also not been examined. Thus not a single person from the locality has been brought before the Court to unfold the actual occurrence and instead strong reliance is placed on the evidence of PW 1 and PW 2 whose presence is doubtful.” 15. From the said judgment it appears that the Hon’ble Apex Court affirmed the order of acquittal passed by the High Court relying on the dying declaration which mentions two sets of accused persons but the Prosecution proceeded against one set and left the others. On this ground the Court doubted the dying declaration and held that in absence of examination of the other Prosecution witnesses explanation ought to have been forthcoming from the Prosecution side and that having not been done the acquittal was justified. 16. The case is not identical here. The case is distinguishable on fact and, therefore, the said cited decision is of no help for the accused/appellant. 17. In his next limb of argument Mr. Ghosh has strenuously argued that there has been no disclosure of incriminating materials to the accused while recording 313 examination. He submits that so far the dying declaration is concerned, nothing was placed before the accused with regard to the incriminating materials. Relying on the said judgment Mr. Ghosh submits where no specific question has been put by the trial Court on the incriminating materials in the Prosecution evidence it would vitiate the trial. He submits that so far the dying declaration is concerned, nothing was placed before the accused with regard to the incriminating materials. Relying on the said judgment Mr. Ghosh submits where no specific question has been put by the trial Court on the incriminating materials in the Prosecution evidence it would vitiate the trial. The decision cited by Mr. Ghosh apparently attracts the point at issue but how far it is applicable in the present case, is to be decided on the circumstances available from the examination under Section 313 of the Code of Criminal Procedure. The question raised on behalf of the accused, that incriminating circumstances with regard to the dying declaration has not been put forward before the accused, is not correct. The questions which were asked by the trial Court under Section 313 of the Code of Criminal Procedure, are elaborate ones particularly when the accused avoided to answer question no.39 by which trial Court put the question – “PW 9, the Executive Magistrate, stated that being directed by the A.D.M. he went to Suri Sadar Hospital and wrote the dying declaration of Sajema in presence of doctor. What have you say about this?” In answer the accused said “Do Not know.” In question no.40 it was stated – “he also stated that Sajema was in the condition of giving declaration at that time. What have you say about this?” The accused said “False statement.” So also question no.49 where it was put – “He wrote the dying declaration of Sajema and proved. What have you say about this?” In answer, the accused said – “False statement.” All these efforts made by the trial Court shows that specific questions including the incriminating substances available in the dying declaration very much placed before the accused but he avoided to answer the same. He had opportunity to explain but he did not do so. 18. Mr. Ghosh has also relied on a decision in the case of Sujit Biswas Vs. State of Assam, reported in (2013) 12 SCC 406 , on the question of non-disclosure of incriminating materials related to dying declaration. He has relied on paragraph 20 of the said decision. He had opportunity to explain but he did not do so. 18. Mr. Ghosh has also relied on a decision in the case of Sujit Biswas Vs. State of Assam, reported in (2013) 12 SCC 406 , on the question of non-disclosure of incriminating materials related to dying declaration. He has relied on paragraph 20 of the said decision. The decision has no manner of application in the fact situation of the present case where the accused has failed to explain the situation, although, Court placed the entire evidence before the accused, he posed innocence in the matter. 19. Mr. Ghosh has also relied on few other decisions in the case of – H. Siddiqui (Dead) by LRs. Vs. A. Ramalingam, reported in (2011) 4 SCC 240 ; Smt. J. Yashoda Vs. Smt. K. Shobha Rani, reported in AIR 2007 SC 1721 ; 20. The said decisions are based on admission of secondary evidence and have no manner of application in the present case. 21. On the other hand, Mr. Ranabir Roy Chowdhury, learned Counsel appearing for the State, submitted that it is not obligatory that a dying declaration should be recorded in a question-answer form and that there is no format prescribed for recording a dying declaration. He submitted that indeed no such format can be prescribed. In support of his such submission he relies upon a decision in the case of Surinder Kumar Vs. State of Punjab (SC), reported in (2012) 12 SCC 120 . In the given case deceased stated in her dying declaration that her husband was constantly harassing by making demands of scooter and Rs.5,000/- Being frustrated she poured Kerosene oil on her and burnt herself. Such a dying declaration was relied upon on the following considerations: a. The same was not made under pressure - It was recorded by the A.S.I. of Police in presence of two Doctors; b. Details given by the deceased in the dying declaration at the time of her death are indicative of her consciousness and her fitness to make such a statement; c. Deceased did not include any exaggerations and narrated only the basic and important facts – She also did not implicate any other member of the family. 23. Therefore, the said dying declaration was found to be voluntary and was relied on. 24. In order to hold that the arguments made by Mr. 23. Therefore, the said dying declaration was found to be voluntary and was relied on. 24. In order to hold that the arguments made by Mr. Ghosh on behalf of the accused that the dying declaration should not be relied on because the same was not properly recorded, cannot stand in view of the observation made by the Hon’ble Apex Court in the aforesaid decision. As held by the Hon’ble Apex Court in the aforesaid decision that there is no format prescribed for recording of dying declaration and indeed no such format can be prescribed, we are under obligation to express the view that in absence of recording of the dying declaration in question-answer form the same cannot be rendered nugatory. As held by the Hon’ble Apex Court we are also of the considered view that it is not obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. It is enough that there is evidence available to show that the dying declaration is voluntary and truthful, what is exactly available in the present case, moreover, the hospital authority called the Executive Magistrate to record the dying declaration and that has been recorded in presence of persons who could identify the victim in the hospital and on top of it the doctor in-charge gave a certificate that the victim had sufficient mental alertness to give the declaration. 25. Mr. Roy Chowdhury, appearing for the State, has also submitted that principle underlying admissibility of dying declaration is reflected in the well-known legal maxim “Nemo moriturus praesumitur mentire”, that is to say, a man will not meet his Maker with a lie in his mouth. It is not expected that a dying man will tell a lie on his death-bed and such opinion is universally true and accepted by all the Courts that a man on the death-bed cannot lie. In support of such argument Mr. Roy Chowdhury has relied on a decision in the case of Vikas & Ors. Vs. State of Maharashtra, reported in (2008) 2 SCC 516 . Paragraphs 22 and 26 of the said judgment is important in the present aspect. In support of such argument Mr. Roy Chowdhury has relied on a decision in the case of Vikas & Ors. Vs. State of Maharashtra, reported in (2008) 2 SCC 516 . Paragraphs 22 and 26 of the said judgment is important in the present aspect. The Hon’ble Apex Court in the said decision has further held in paragraph 37 that where a dying declaration is recorded by a competent Magistrate, it would stand on a “much higher footing.” Where the Hon’ble Apex Court has held, so we have no authority to think otherwise and, accordingly, we are unable to accept the submission made by Mr. Ghosh that dying declaration cannot be treated to be a good piece of evidence and that it is not sufficient to hold the accused guilty of the offence complained of. The decision squarely covers the issues involved in the present case and, therefore, we have no hesitation to hold that the accused has been rightly convicted by the learned Court below. 26. Mr. Roy Chowdhury argued another vital aspect of this matter and pointed out that if Section 106 of the Evidence Act is taken into consideration, although, burden of proving the guilt of an accused is no doubt on the Prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused. In this connection he has referred to a decision in the case of State of Rajasthan Vs. Thajur Singh, reported in (2014) 12 SCC 211 . The decision, however, relates to interpretation of Section 106 of the Evidence Act and held that Section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused then the accused has got certain responsibility to explain the situation as to how the incident took place and in absence of such explanation given by the accused the Hon’ble Apex Court held that the accused was guilty of the offence. 27. In the present case, the accused avoided the questions put before him under Section 313 of the Code of Criminal Procedure. How the incident took place it was within the special knowledge of the accused but he gave only one reply that – “false statement” and nothing else. 27. In the present case, the accused avoided the questions put before him under Section 313 of the Code of Criminal Procedure. How the incident took place it was within the special knowledge of the accused but he gave only one reply that – “false statement” and nothing else. Therefore, he cannot escape the liability of explaining the situation. 28. Time and again, the Hon’ble Apex Court has held that the practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged and it would be better to have dying declaration recorded by Magistrate, no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of each case. Failure by the investigating agency to satisfy itself that proper identification of the accused is of grave omission but when evidence shows that doctor gave certificate that the victim was mentally alert to give declaration there is no reason to disbelieve the evidence of the doctor and more so, when a Magistrate deposed on box that he has taken the declaration from the victim, no suspicious circumstances can intervene in the matter and there is no reason to disbelieve such dying declaration. 29. The evidence as led by the Prosecution is sufficient to hold the accused guilty of the offence alleged to have been committed by him. We have gone through the judgment of the learned Court below and we find no illegality and/or irregularity on the part of the learned trial Court to appreciate the evidence in its proper perspective and, thus, we uphold the said judgment and order of conviction. 30. The appeal is dismissed. 31. The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court. 32. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities. Debasish Kar Gupta, J. : I agree.