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2018 DIGILAW 1763 (JHR)

Ajaib Singh v. State Of Jharkhand

2018-08-07

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT 1. As both these appeals arise out of the same impugned Judgment, they are heard together, and are being disposed of by this common Judgment. 2. Heard learned counsel for the appellants and learned counsel for the State. 3. The appellants are aggrieved by the impugned Judgment of conviction dated 19.06.2008 and Order of sentence dated 25.06.2008, passed by the learned 4 th Additional Sessions Judge, East Singhbhum at Jamshedpur, in Sessions Trial No. 117 of 1997, whereby, both these appellants have been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life with fine of Rs. 5,000/- each, for the said offence. 4. The prosecution case was instituted on the basis of the fardbeyan of the deceased Sukhdeep Kaur herself, recorded on 17.03.1995, at about 05:35 P.M., while she was alive and undergoing treatment in the Burn Center of T.M.H., Jamshedpur, in which she had allegedly stated that on the same day in the morning at about 06:00 A.M., she asked her Sukhdeep Kaur (but Sukhdeep Kaur is the victim herself), to put electric wires in the bag, whereupon her husband started abusing and assaulting her and the brother of her husband Ajaib Singh poured kerosene oil on her and her husband put her to fire. She has stated that her husband used to assault her and the fire was put off by her sister-in-law (nanad) Nirmala, who is of very good nature. Her mother-in-law at times used to behave badly and at times used to behave properly. After putting off the fire, she was brought to T.M.H. She had also a daughter aged about eight years. In the fardbeyan it is mentioned that after stating these facts, the victim became silent and did not want to speak further. The fardbeyan was read over to her and since her both hands were also burnt, she could not put her signature, but she put her thumb impression. There are signatures of M/s Anjali Lakra, S.I., who had recorded the fardbeyan and of one Dr. Sheela Joseph, the Medical Officer of the Burn Center, on the fardbeyan, but both the signatures are without any endorsement. There are signatures of M/s Anjali Lakra, S.I., who had recorded the fardbeyan and of one Dr. Sheela Joseph, the Medical Officer of the Burn Center, on the fardbeyan, but both the signatures are without any endorsement. The said fardbeyan was sent to Telco Police Station, where Telco P.S. Case No. 45 of 1995, corresponding to G.R. No. 455 of 1995, was instituted for the offences under Sections 498-A, 324, 307 / 34 of the Indian Penal Code, and investigation was taken up. As the informant died during treatment, Section 302 of the Indian Penal Code was also added. After investigation, the police submitted the charge-sheet against the husband of the informant, namely, Charanjeet Singh. 5. After commitment of the case to the Court of Session, charge was framed against the accused Charanjeet Singh for the offence under Section 302 of the Indian Penal Code, to which he pleaded not guilty and claimed to be tried. It appears from the impugned Judgment that after examination of some witnesses, by order dated 04.05.2000, passed under Section 319 of the Cr.P.C., the other accused Ajaib Singh was also directed to face the trial with the original accused, and thereafter trial was started de novo, after framing the charge against the appellant Ajaib Singh also for the offence under Sections 302 / 34 of the Indian Penal Code, to which this accused also pleaded not guilty and claimed to be tried. In course of trial, the prosecution has examined seventeen witnesses, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The Doctor putting her signature on the fardbeyan has not been examined, rather one Dr. R. Bharat has been examined as P.W.-17, who has only proved the signature of Dr. Sheela Joseph, who had put her signature on the fardbeyan, and the same was marked Ext. 2/1. 6. The prosecution case is mainly supported by P.W.-13 Manjeet Kaur and P.W.-14 Charan Singh, the mother and father respectively, of the deceased lady. Both these witnesses have stated that Sukhdeep Kaur was their daughter who was married to Charanjeet Singh. The marriage had taken place on 22.01.1991 and thereafter she was living with her husband. They have stated that on 17.03.1995, which was the day of Holi festival, three boys came on a motorcycle to their house, and informed them that their daughter was burnt. The marriage had taken place on 22.01.1991 and thereafter she was living with her husband. They have stated that on 17.03.1995, which was the day of Holi festival, three boys came on a motorcycle to their house, and informed them that their daughter was burnt. Thereafter, both of them went to the matrimonial home of their daughter, where they were informed that their daughter had been sent to TELCO Hospital, Kharangajhar. Thereafter they went to TELCO Hospital. They have stated that they saw their daughter in the burnt condition and a police officer was present there, who was enquiring about the occurrence from their daughter, to whom their daughter informed that Ajaib Singh poured the kerosene oil on her and Charanjeet Singh put her to fire. They have stated that thereafter, on the same day, she was referred to T.M.H. Hospital, where she died on 21.03.1995. They have identified both the accused in the Court. In her cross-examination, P.W.-13 Manjeet Kaur has stated that her daughter was referred to T.M.H. Hospital at about 03:00 P.M., and the police had recorded the statement of this witness also on the same day. She has denied the suggestion that her statement was recorded by the police on 23.02.1995, i.e., after the death of her daughter. She has also admitted in her cross-examination that she had seen Charanjeet also in the burnt condition, but she has again changed her statement saying that she had not seen him in the burnt condition. She has denied the suggestion to have given the statement before the police that on 17.03.1995, when she went to the TELCO Hospital along with her husband, she saw her daughter Sukhdeep Kaur and her son-in-law Charanjeet Singh in burnt condition and both of them were being treated. She has also denied the suggestion to have given the statement before the police that her daughter was unconscious at that time. She has stated that she had given the statement before the police that Ajaib Singh poured kerosene oil on her daughter and Charanjeet Singh had put her to fire. She has also stated that whatever statement her daughter had given to the police, it was given at Kharangajhar Hospital (TELCO Hospital). She has also stated that she does not know the name of the three boys who had given the information to them. She has also stated that whatever statement her daughter had given to the police, it was given at Kharangajhar Hospital (TELCO Hospital). She has also stated that she does not know the name of the three boys who had given the information to them. Similarly, P.W.-14 Charan Singh has also stated in his cross-examination that he could not name the three boys who had given the information. He has denied the suggestion to have given the statement before police that two boys, namely, Pashupati and Pappu came to his house and informed that his daughter Sukhdeep Kaur was burnt while she was preparing tea and in a bid to save his wife, his son-in-law was also burnt. He has admitted in his cross-examination that he was informed that hand of his son-in-law Charanjeet Singh was also burnt. He has also claimed to have given the statement before the police that in his presence his daughter had informed the police that Ajaib Singh poured kerosene oil on her and Charanjeet Singh put her to fire and he has denied the suggestion not to have given such statement before the police. He has stated that he did not lodge any case in spite of the fact that he got the information about the occurrence on 17.03.1995 itself. At about 02:00 P.M. on 17.03.1995, his daughter was referred to T.M.H. He remained at T.M.H. throughout the day and night till his daughter died on 21.03.1995. He has also stated that he is deposing for the first time in the Court that his daughter had given the statement before the police that the accused persons had put her to fire. Both of these witnesses have denied the suggestion of giving false evidence. 7. P.W.-7 Ninder Kaur and P.W.-8 Tarsen Singh are the sister and brother-in-law of the deceased. Both these witnesses have stated that the occurrence had taken place on 17.03.1995 and upon getting the information about the occurrence, they went to TELCO Hospital. P.W.-7 Ninder Kaur has stated that when she saw her sister in the burnt condition, she could not tolerate the scene and she came out. She has further stated that she has no knowledge as to how she was burnt, whereas P.W.-8 Tarsen Singh has stated that when he asked Sukhdeep Kaur, she informed him that due to mistake she had herself burnt her. She has further stated that she has no knowledge as to how she was burnt, whereas P.W.-8 Tarsen Singh has stated that when he asked Sukhdeep Kaur, she informed him that due to mistake she had herself burnt her. Both these witnesses have stated that her husband had also received burn injuries. These witnesses have also stated that Charanjeet Singh and Ajaib Singh were living in the same house, but on separate floors. In their cross-examinations they have stated that the relationship between the deceased and her husband was quite cordial, and they had learnt that charanjeet was also burnt while saving his wife, and he was admitted in hospital for about 3-4 months. 8. P.W.-1 Chandan Singh, P.W.-2 Vijay Kumar Sarin, and P.W.-3 Yugal Kishore Sarin have only stated that both the deceased and the accused were burnt and they were brought to hospital. They have not supported the prosecution case that the deceased was burnt by these accused persons, rather they have stated that there was cordial relationship between them. They have also stated that Charanjeet Singh was burnt while trying to save his wife. These witnesses have also stated that at the time of occurrence, accused Ajaib Singh was not present in the house, and he was at his khatal, where information was sent to him about the occurrence. 9. P.W.-11 Sukhvinder Kaur is the wife of the accused Ajaib Singh, and P.W.-16 Nirmal Kaur is the sister of both these accused. P.W.-11 Sukhvinder Kaur has stated that she was living in the ground floor and the deceased was living on the upper floor of the house, and upon hearing the alarm she went upstairs and found that her sister-in-law (gotni) was in flames and Charanjeet Singh was trying to extinguish the fire by his hand, due to which he was burnt. She has also stated that they were brought to the hospital and her husband was at his khatal at the time of occurrence, where he was informed about the occurrence. She has also stated that there was very cordial relationship between the deceased and her husband and Charanjeet Singh had also received burn injuries while trying to save his wife and he was undergoing treatment for about four months in TELCO Hospital for his burn injuries. She has also stated that there was very cordial relationship between the deceased and her husband and Charanjeet Singh had also received burn injuries while trying to save his wife and he was undergoing treatment for about four months in TELCO Hospital for his burn injuries. P.W.-16 Nirmal Kaur has also stated that when upon hearing the alarm she went to the upper floor, she saw that her sister-in-law (bhabhi) Sukhdeep Kaur was in flames and his brother Charanjeet Singh was trying to extinguish the fire. Her sister-in-law (bhabhi) informed her that while boiling the milk, she was accidentally burnt and she was brought to hospital. She has also stated that Charanjeet Singh had also received burn injuries on his hand and chest and he was treated for 15 days at TMH, and for about 3-4 months at TELCO Hospital. 10. P.W.-4 Madan Prasad, P.W.-5 Krishna Bhumij and P.W.-12 Avijit Chakravorty have stated that at the time of occurrence the accused Ajaib Singh was at his khatal, when someone came to inform him about the occurrence and he rushed towards his house upon getting the knowledge about the occurrence. P.W.-6 Durga Prasad Sharma is the person who had gone to the khatal of Ajaib Singh and informed him about the occurrence and had brought him to his house. This witness has also stated that he had seen both the wife and husband burnt, and the husband was burnt while trying to save his wife and there was cordial relationship between them. 11. P.W.-9 is Dr. Lalan Choudhary, who had conducted the post-mortem examination on the dead body of the deceased on 21.03.1995 and had found the following : Ante-mortem dermo epidermal burn all over body except perennial region. Wound was infected at places. On dissection :- Chest and abdomen All viscera were congested. Right lung contained pus. Heart was full of blood. Mucosa of trachea was congested. Chest cavity contained about one liter of watery fluid. He has stated that the cause of death was septicemia and toxemia of burn and percentage of burn was about 95%. He has also stated that age of wound was within five days. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.1. Chest cavity contained about one liter of watery fluid. He has stated that the cause of death was septicemia and toxemia of burn and percentage of burn was about 95%. He has also stated that age of wound was within five days. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.1. In his cross-examination, this witness has stated that he did not find any external or internal injury, except the burn injury and in case of 95% burn injury, there must have been bodily pain and normally in such cases, one would not be able to give elaborate statement of a happening, but if under treatment the patient recovers from shock, in that case, he or she may state about the occurrence. He has also stated that in case of 95% burn injury, there is loss of fluid and protein, which may result in hypovolemic shock, i.e., dehydration. He has also stated that in such cases the inhalation of carbon particles is possible, which may result in breathlessness. This witness has stated that he did not find any smell of kerosene oil on the dead body. 12. P.W.-10 is Anajli Lakra, the S.I., who had recorded the statement of the deceased at T.M.H. Hospital. This witness has stated that on 17.05.1975 (should be 17.3.1995), she was posted as S.I. in Bistupur Police Station, and she recorded the fardbeyan of Sukhdeep Kaur at T.M.H. in the Burn Unit. She has proved the fardbeyan to be in her pen and signature and also proved the signature of Dr. Sheela Joseph, and the fardbeyan was marked Ext.2. She has stated that she sent the fardbeyan to Telco Police Station. In her cross-examination, this witness has stated that she had not recorded as to when the deceased was brought to hospital, and there is no mention about the mental and physical condition of the deceased. She had not taken the permission of any Doctor of the Burn Unit before recording the fardbeyan and she has stated that all the fingers of the deceased were burnt and she had given her statement very slowly and in broken voice. 13. P.W.-15 is Md. Sultan, the I.O. of this case. This witness has stated that on 17.03.1995 he was posted as Junior Sub-Inspector in Telco Police Station. 13. P.W.-15 is Md. Sultan, the I.O. of this case. This witness has stated that on 17.03.1995 he was posted as Junior Sub-Inspector in Telco Police Station. The fardbeyan of Sukhdeep Kaur, recorded by S.I. Anjali Lakra, was sent to Telco Police Station, on the basis of which the F.I.R. was lodged. He has proved the F.I.R. which was marked Ext.3. This witness has stated that on 18.03.1995 he visited the place of occurrence and has given the details of the place of occurrence, which is a double storied house. In the ground floor, Ajaib Singh was living and in the upper floor Charanjeet Singh was living with his family. He has stated that in the bed room, the bed-sheet was found in the scattered position and adjacent to the bed room was the kitchen where gas stove etc., were found. There was an open terrace where he found some half burnt blanket, bed-sheet etc., and he was informed that the occurrence had taken place there. This witness has also stated that he did not find any kerosene oil cane at the place of occurrence. He had recorded the statements of the witnesses, but he could not record the re-statement of the victim, as she was not in a position to give her statement. This witness has stated that on 21.03.1995 he received the inquest-report of the dead body, which he has proved and the same was marked Ext.4. He has stated that on the same day he had recorded the statement of Manjeet Kaur, the mother of the deceased, Charan Singh, the father of the deceased, Tarsen Singh and Ninder Kaur, the family members of the deceased. He had arrested Charanjeet Singh on 02.05.1995. In his cross-examination, this witness has stated that Manjeet Kaur stated before him that on 17.03.1995 when she went to the hospital upon getting the information about the occurrence, she found her daughter Sukhdeep Kaur and son-in-law Charanjeet Singh undergoing treatment in burnt condition. She had also stated that Sukhdeep Kaur was in unconscious state. She had not given the statement before him that Sukhdeep Kaur had informed that Ajaib Singh poured kerosene oil on her and Charanjeet Singh put her to fire. She had also stated that Sukhdeep Kaur was in unconscious state. She had not given the statement before him that Sukhdeep Kaur had informed that Ajaib Singh poured kerosene oil on her and Charanjeet Singh put her to fire. This witness has also stated that witness Charan Singh had given the statement before him that two boys Pashupati and Pappu came to his house and informed that his daughter had been burnt while preparing tea and his son-in-law was also burnt while he was trying to save her and both of them were undergoing treatment at TELCO Hospital. He had not given any statement before him that his daughter had informed the police that Ajaib Singh poured kerosene oil on her and Charanjeet Singh put her to fire. This witness has also stated in his cross-examination that he had seen the medical report of the accused Charanjeet Singh also, according to which, he was burnt to the extent of 25%. He has stated that the fardbeyan of Sukhdeep Kaur was not recorded in his presence, and he has no knowledge as to in what condition her fardbeyan was recorded. 14. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. Ajaib Singh has stated that he was not present in his house and he was at his khatal, where he was given the information about the occurrence, whereas Charanjeet Singh has stated that the deceased was burnt accidentally, and in a bid to save her life, he was also burnt and received burn injuries in his hand and chest. He was admitted at T.M.H. Hospital for 15 days and he underwent treatment at TELCO Hospital for three months. 15. The defence has also examined two witnesses, who are D.W.-1 S. Chatterjee and D.W.-2 Dr. Nilanjan Roy, who have proved the entries in the registers of TELCO Hospital and T.M.H., regarding the treatment of the accused Charanjeet Singh and the same were marked Ext. A to D. 16. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, in as much as, the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. A to D. 16. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, in as much as, the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. It is submitted by learned counsel that except the father and the mother of the deceased, all the witnesses, including the sister and brother-in-law of the deceased, have stated about the accidental burn of the deceased and they have also stated that there was very cordial relationship between the wife and husband, and in a bid to save his wife, the husband Charanjeet Singh was also burnt. The witnesses have also stated that at the time of occurrence, accused Ajaib Singh was not present in the house, rather he was at his khatal, and he was informed about the occurrence at his khatal. Indeed, even charge-sheet was not submitted against Ajaib Singh, who had been made to face the trial only under Section 319 of the Cr.P.C. after examination of some witnesses. Learned counsel further submitted that though P.W.-13 Manjeet Kaur and P.W.-14 Charan Singh have supported the prosecution case stating that they had seen the deceased at the TELCO Hospital in the burnt condition, and both of them have stated that the deceased had given the statement before the police at TELCO Hospital that she was burnt to death by both these accused persons, but no such fardbeyan of the deceased recorded at TELCO Hospital, has been proved by the prosecution, and the fardbeyan, if any, recorded at TELCO Hospital, has been concealed by the prosecution. Indeed, the evidence of both these witnesses is totally falsified by the evidence of P.W.-15 Md. Sultan, I.O. of the case, as both the aforesaid witnesses claimed to have given the statement to the police that in their presence their daughter had informed the police that Ajaib Singh poured kerosene oil on her and Charanjeet Singh put her to fire, but the I.O. has stated that no such statement was given to him by both these witnesses, rather the statement as given by them was that they were informed that the deceased received accidental burn injuries and the accused Charanjeet Singh was also injured in a bid to save her. Learned counsel for the appellants has submitted that the bare perusal of the fardbeyan would show that it only bears the signature of one Dr. Sheela Joseph, but there is no endorsement either by the Doctor or Police Officer, recording her statement, that the deceased was in a fit state of mind and was capable of giving such a statement, particularly, in view of the evidence of P.W.-9 Dr. Lalan Choudhary, who has stated that the deceased had suffered 95% burn injuries and unless there was recovery after some treatment, she might not be in a condition to give such a detailed narration of the occurrence. Learned counsel further submitted that even in the evidence of P.W.-13 Manjeet Kaur and P.W.-14 Charanjeet Singh, the parents of the deceased, there is no such motive which would show that the deceased could be killed by the accused by burning. Learned counsel finally submitted that the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts, and it is a fit case in which both the accused ought to have been given at least the benefits of doubt. 17. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case is fully supported by P.W.-13 Manjeet Kaur and P.W.-14 Charan Singh, the parents of the deceased, who have clearly stated that in their presence she had given the statement before the police that the accused Ajaib Singh had poured kerosene oil on her and her husband had put her to fire. Learned counsel submitted that the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-9 Dr. Lalan Choudhary and the post-mortem report proved by him as Ext.1, which shows that the deceased had suffered 95% burn injuries. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against both the accused persons beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 18. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against both the accused persons beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 18. Having heard learned counsels for both the sides and upon going through the record, we find that only the evidence of P.W.-13 Manjeet Kaur and P.W.-14 Charanjeet Singh, the parents of the deceased, need to be discussed, as all the other material witnesses, including the sister and brother-in-law of the deceased, have stated that the deceased had received the burn injuries accidentally, and the husband had also received the burn injuries in a bid to save her. The I.O. has also stated that he had seen the medical reports of the husband who had also suffered 25% burn injuries. The defence has also proved the entries in the registers of TELCO Hospital as well as T.M.H. to show that the accused Charanjeet Singh had also undergone treatment for his burn injuries. The only evidence against both the accused is the evidence of P.W.-13 Manjeet Kaur and P.W.-14 Charan Singh, who have stated that when they went to the TELCO Hospital, they saw their daughter in burnt condition and she was giving the statement before the police that the accused Ajaib Singh poured the kerosene oil on her and her husband put her to fire. This statement recorded by any police officer has not been proved by the prosecution. If this statement has been withheld, it goes against the prosecution as concealment, and if no such statement was recorded by the police, it clearly shows that both these witnesses have falsely deposed in the Court. The evidence of both these witnesses are untrustworthy, also on the ground that both these witnesses have stated that they had given the statement before the police that her daughter was informing the police officer that both the accused had put her to fire, but the I.O., P.W.-15 Md. The evidence of both these witnesses are untrustworthy, also on the ground that both these witnesses have stated that they had given the statement before the police that her daughter was informing the police officer that both the accused had put her to fire, but the I.O., P.W.-15 Md. Sultan has admitted in his cross-examination that no such statement was given by either of these witnesses before him, rather he has stated that Manjeet Kaur had stated before him that when she went to the hospital upon getting the information about the occurrence, she found her daughter Sukhdeep Kaur and son-in-law Charanjeet Singh undergoing treatment in burnt condition and that her daughter was in unconscious state. Charan Singh had given the statement before him that two boys Pashupati and Pappu came to his house and informed that his daughter had been burnt while preparing tea and his son-in-law was also burnt while he was trying to save her and both of them were undergoing treatment at TELCO Hospital. We are of the considered view that the evidence of both these witnesses cannot be relied upon, so as to base the conviction of the accused persons on their evidence. 19. The only other material against these appellants, except the evidence of these two witnesses, is the fardbeyan of the deceased herself recorded at T.M.H., which could be treated as her dying declaration, but in view of the evidence of P.W.-9 Dr. Lalan Choudhary and the post-mortem report proved by him, which shows that the deceased had suffered 95% burn injuries, the fardbeyan of the deceased cannot be taken as her dying declaration, in absence of any endorsement by the Doctor in whose presence the statement was recorded, or by the Police Officer recording the statement, that the deceased was in a fit mental condition and was also physically fit to give such a statement. There is no such endorsement on the fardbeyan. Even Dr. Sheela Joseph, in whose presence the fardbeyan was said to be recorded, has not been examined by the prosecution. There is no evidence on record that in spite of suffering 95% burn injuries, the deceased was, mentally and physically, in a fit condition to give her statement. There is no such endorsement on the fardbeyan. Even Dr. Sheela Joseph, in whose presence the fardbeyan was said to be recorded, has not been examined by the prosecution. There is no evidence on record that in spite of suffering 95% burn injuries, the deceased was, mentally and physically, in a fit condition to give her statement. In the fardbeyan, the deceased had allegedly stated that she asked herself (?) to put electric wires in the bag, whereupon her husband started abusing and assaulting her, but there is no material on record to support this fact either. This apart, though it is stated in the fardbeyan, that the deceased had also a daughter aged about eight years, but this daughter, who could be an important child witness to the occurrence, has not been examined by the prosecution. No witness, including the parents and the sister of the deceased, has stated that the deceased was also having a daughter out of the wedlock. 20. The law relating to the dying declarations is well settled by a Constitution Bench of the Hon''ble Supreme Court of India, in Laxman Vs. State of Maharashtra , (2002) 6 SCC 710 , as follows:- "3. ------------------. 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. 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. 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. Consequently, what evidential value or weight has 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. 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. 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. 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." We are of the considered view that in view of the law laid down as above, in absence of any recording by the Police Officer recording the fardbeyan, or by the Doctor putting her signature thereon, that the victim was in a fit state of mind to give her dying declaration, even the fardbeyan could not be treated as the dying declaration of the deceased. 21. In view of our findings that the evidences of P.W.-13 Manjeet Kaur and P.W.-14 Charan Singh, the parents of the deceased, are not at all trustworthy, and even the fardbeyan of the deceased could not be treated as her dying declaration, we are of the considered view, that the prosecution has miserably failed to bring home the charge against both these accused appellants beyond all reasonable doubts, and in the facts of this case, the appellants were entitled at least to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 22. For the foregoing reasons, the impugned Judgment of conviction dated 19.06.2008 and Order of sentence dated 25.06.2008, passed by the learned 4 th Additional Sessions Judge, East Singhbhum at Jamshedpur, in Sessions Trial No. 117 of 1997, convicting and sentencing both the appellants for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Both the appellants are given the benefits of doubt and they are acquitted of the charge. The appellant Ajaib Singh is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. The appellant Charanjeet Singh is on bail, and he is discharged from the liabilities of his bail bonds. 23. In the result, both these appeals, are hereby, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.