JUDGMENT V.M. Deshpande, J. - This appeal is filed by the State to challenge judgment and order of acquittal dated 5.2.2008 passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No.214/2007. 2. By the impugned judgment, learned Judge of the Court below acquitted the respondent (hereinafter referred to as, "the accused" for the sake of brevity) of offences punishable under Sections 302 and 307 of the Indian Penal Code. 3. We have heard learned Additional Public Prosecutor Mrs. H.N. Jaipurkar for the appellant/State, in extenso. Learned counsel for the accused chose not to remain present before the Court when the appeal was taken up for its final hearing. 4. It is submission of learned Additional Public Prosecutor Mrs. H.N. Jaipurkar for the appellant/State that learned Judge of the Court below erred in acquitting the accused inspite of two dying declarations and an oral dying declaration made by deceased Pratibha. She, therefore, prayed that the appeal be allowed and the accused be convicted for offence punishable under Section 302 of the Indian Penal Code. 5. The prosecution case in a nutshell is that on 21.3.2007 Pratibha, the deceased, when was present at her house, the accused picked up quarrel with her. Thereafter, she was dragged by him to his house. There, he poured kerosene on her body and set her on fire, resulting into burn injuries. Pratibha was taken for medical treatment to hospital. However, she succumbed to her burn injuries. 6. After the case was committed to the Court of Sessions by learned Magistrate, in whose Court after completion of investigation chargesheet was filed, who found that the offence is exclusively triable by the Court of Sessions, therefore, order of committal was passed by the concerned learned Judicial Magistrate. 7. In Sessions Trial No.214/2007, learned Additional Sessions Judge, Nagpur framed a charge against the accused for the offences punishable under Sections 302 and 307 of the Indian Penal Code. The charge was explained to the accused. Thereafter, the accused denied the charge and claimed for his trial. 8. In order to bring home the guilt of the accused, the prosecution examined in all 9 witnesses and also relied upon various documents which were duly proved during course of the Trial. The charge was explained to the accused. Thereafter, the accused denied the charge and claimed for his trial. 8. In order to bring home the guilt of the accused, the prosecution examined in all 9 witnesses and also relied upon various documents which were duly proved during course of the Trial. After completion of recording of evidence of the prosecution witnesses, the accused was examined by learned Judge of the Court below under Section 313 of the Code of Criminal Procedure. He also examined one defence witness. From line of crossexamination and from his plea in statement recorded under Section 313 of the Code of Criminal Procedure, defence of the accused before the Court below was that of total denial and of false implication. Learned Judge of the Court below, after appreciating entire evidence as brought on record, passed the judgment impugned in the appeal. 9. Exhibit 32 is postmortem report. Column No.17 of the said proved document shows that Pratibha suffered total 81% of burn injuries. Doctor, who conducted autopsy over dead body, opined that cause of death was ''Cardiorespiratory Arrest'' due to asphyxia and ''Hypovolemic Shock" due to 81% burns. 10. From the findings recorded in the postmortem report, which was admitted by the accused during the course of the Trial, there cannot be any second opinion that Pratibha died her unnatural death and that due to the burn injuries. 11. A question posed before this Court is that whether the accused could be held responsible for causing burn injuries to deceased Pratibha resulting into her death. 12. It is cardinal principle of the Criminal Law that burden to prove guilt of the accused beyond reasonable doubt firmly rests on the shoulder of the prosecution. 13. In the present case, having scanned entire record, it is clear that the prosecution is relying on Exhibit 22, a dying declaration of deceased Pratibha recorded by Naib Tahsildar Shri Ashok Budharamji Mohadikar (PW5), and Pratibha''s other statement (Exhibit 35) recorded by Police Sub Inspector Shri Vinod Madhaorao Patil (PW8). The prosecution also wished to rely on oral dying declaration that alleged to have been made by her to her mother Fulabai Tukaramji Dhurve (PW2). 14. Though faintly it was submitted by learned Additional Public Prosecutor Mrs. The prosecution also wished to rely on oral dying declaration that alleged to have been made by her to her mother Fulabai Tukaramji Dhurve (PW2). 14. Though faintly it was submitted by learned Additional Public Prosecutor Mrs. Jaipurkar for the appellant/State that Fulabai (PW2) and Prashant (PW4), mother and brother of the deceased were eyewitnesses, after reading their evidence in a depth, learned Additional Public Prosecutor Mrs. Jaipurkar, in our view, rightly did not press the said submission. 15. Exhibit 35, is statement recorded by Police Sub Inspector Shri Vinod Patil (PW8). On 21.2.2007, the said prosecution witness was attached to Narkhed Police Station. Medical Officer informed him on telephone that one patient Pratibha is admitted in hospital in a burned condition. Therefore, he along with Assistant Sub Inspector Shri Kulkarni visited hospital. After noticing the condition of the patient, he issued a letter to Tahsildar for recording of dying declaration of the patient and also gave a letter (Exhibit 29) to doctor as to whether the patient was in a condition to give her dying declaration. 16. On 21.2.2007, Medical Officer Dr. Vijay Santoshrao Bansod (PW7) was attached to Narkhed Rural Hospital. When Pratibha was admitted in the hospital, he gave a communication to Narkhed Police Station (Exhibit 26) intimating the admission of Pratibha for further steps. Evidence of Dr. Vijay Bansod shows that a police sub inspector gave him a letter (Exhibit 27) for medical examination of the patient. When Dr. Vijay Bansod was in the witness box, he was shown Exhibit 29 given by Police Sub Inspector Shri Vinod Patil. Dr. Vijay Bansod, in his evidence stated that he made an endorsement on Exhibit 29 that the patient was in a position to give her statement. 17. According to the prosecution, after getting the endorsement on Exhibit 29, Police Sub Inspector Shri Vinod Patil (PW8) proceeded to record statement of Pratibha in which she stated that initially the accused picked up quarrel and cause of quarrel was that Pratibha made a complaint with wife of the accused that he is having extramarital relations with a woman and, thereafter, he poured kerosene and set her ablaze. Evidence of Shri Vinod Patil (PW8) shows that answers given by Pratibha were taken down by Assistant Sub Inspector Shri Kulkarni. Evidence of Shri Vinod Patil (PW8) shows that answers given by Pratibha were taken down by Assistant Sub Inspector Shri Kulkarni. His evidence further shows that he put questions to Pratibha and replies given by her were dictated by him to Assistant Sub Inspector Shri Kulkarni. After completion of the statement, he obtained a thumb impression of Pratibha. The said statement was read over to Pratibha and she admitted the same. He also signed it and doctor endorsed below the statement in token of recording of the statement by him. The said statement is at Exhibit 35. 18. On the basis of Exhibit 35, a crime was registered vide Crime No.29/2007 for the offence punishable under Section 307 of the Indian Penal Code and after death of Pratibha, Penal Section 302 was added. Printed First Information Report is at Exhibit 36. 19. In our view, Exhibit 35 is not admissible in evidence and it will be very dangerous to put reliance on such document for following reasons: (A) In examinationinchief itself, Police Sub Inspector Shri Vinod Patil (PW8) stated that he put questions to Pratibha and replies given by her were dictated by him to Assistant Sub Inspector Shri Kulkarni. Thus, necessarily Exhibit 35 is in handwriting of Assistant Sub Inspector Shri Kulkarni. For the reasons best known to the prosecution, Assistant Sub Inspector Shri Kulkarni was not examined by the prosecution. Thus, the scribe of the said document, for the reasons best known to the prosecution, was not brought before the Court. Nonexamination of the scribe of the dying declaration (Exh.35) has had a great adverse impact on the reliability of this document. It is settled law that before a dying declaration is accepted as a substantive piece of evidence, it must pass the test of reliability. In order that it is held to be a truthful version as to the circumstances of the death, the dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that a statement has been made in the absence of the accused, who had no opportunity of testing the verasity of the statement by crossexamination. A useful reference in this regard may be made to observations of the Hon''ble Apex Court in the case of Khushal Rao vs. State of Bombay reported in , (1958) AIR SC 22. A useful reference in this regard may be made to observations of the Hon''ble Apex Court in the case of Khushal Rao vs. State of Bombay reported in , (1958) AIR SC 22. In the later case of Kans Raj vs. State of Punjab and others reported in , (2000) AIR SC 2324, considering various cases decided by the Hon''ble Supreme Court, their Lordships of the Three Judge Bench of the Supreme Court reiterated the same principle of law. Speaking about two kinds of dying declarations, written and oral, in paragraph 10, it is held that to make such a statement a substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such a statement as a fact and if it is in writing, the scribe must be produced in the Court and when it is oral, it must be proved by examining the person who heard the deceased make the statement. This law has also been also laid down again by the Hon''ble Apex Court in another case, Sudhakar and another vs. State of Maharashtra reported in , (2000) AllMR(Cri) 1389. (B) As per claim of Police Sub Inspector Shri Vinod Patil (PW8), after completion of recording of dying declaration of Pratibha, it was read over to her and, thereafter, her thumb impression was obtained and, thereafter, he put his signature. What is important to note in his evidence that he made a statement that the doctor made an endorsement below the statement in token of recording of the statement by him. The said particular statement made by him on oath is not supported by contemporary document Exhibit 35. Perusal of Exhibit 35 shows that at the end of the said statement, there is no endorsement by the doctor. Even, Medical Officer Dr. Vijay Bansod (PW7) claims the said in his evidence. However, there is no such endorsement at the end of the said statement. Exhibit 35 shows that on front portion of the page on left hand margin in middle, following endorsement: S/d Dr. Even, Medical Officer Dr. Vijay Bansod (PW7) claims the said in his evidence. However, there is no such endorsement at the end of the said statement. Exhibit 35 shows that on front portion of the page on left hand margin in middle, following endorsement: S/d Dr. V.S. Bansod, Medical Officer, Rural Hospital Narkhed." The prosecution utterly failed to offer any explanation as to how the said endorsement appeared in the left hand column of the front page of Exhibit 35 especially when both the doctor and Police Sub Inspector Shri Vinod Patil (PW8) claim that the endorsement of the doctor obtained at the end of the statement. 20. In view of the aforesaid, it would be dangerous to rely on such document especially when clouds of suspicion are hovering around the said document and the prosecution failed to clear that mystery of suspicion. Hence, on reappreciation of written dying declaration Exhibit 35, we are of the view that the said document cannot be used for convicting the accused. Consequently, the said document is rejected being a suspicious document. 21. Another written dying declaration is at Exhibit 22. The said dying declaration is recorded by Shri Ashok Mohadikar (PW5) who at the relevant time was working as Naib Tahsildar. His evidence shows that he received a requisition (Exhibit 21) at 7:39 p.m. from the police whereby he was requested to record dying declaration of Pratibha. His evidence further shows that thereafter he visited Narkhed Government Hospital and there he asked doctor about name of the patient. The doctor disclosed name of the patient and, thereafter, he enquired in writing as to whether the said patient is in a condition to give her statement. According to evidence of Shri Mohadikar, the doctor gave opinion that the patient is in a condition to give statement. Whereas, if the evidence of Medical Officer Dr. Shri Vijay Bansod (PW7) is perused, it would reveal that the Executive Magistrate gave him a requisition for recording dying declaration and requested as to whether Pratibha is in a condition to give statement. What is important to note from the evidence of Dr. Shri Bansod is that he put signature below it. He does not claim that on his examination he found that the patient was in a fit condition to give her statement. What is important to note from the evidence of Dr. Shri Bansod is that he put signature below it. He does not claim that on his examination he found that the patient was in a fit condition to give her statement. Perusal of Exhibit 22 shows that there is no endorsement whatsoever in nature in writing of a doctor to the extent that before recording of dying declaration he gave opinion that the patient is in a condition to give her statement. 22. It is a trite law that merely because there is no endorsement on the dying declaration by medical officer, that by itself is not sufficient to discard the dying declaration. The law in that respect is well settled by the Honourable Apex Court in the case of Laxman vs. State of Maharashtra reported at , (2002) AIR SC 2973. However, the said authoritative pronouncement ruled that if there is a evidence that the scribe himself was satisfied about condition of patient to give statement, the said statement cannot be discarded for not examining or not having doctor''s opinion on the dying declaration. 23. In the present case, Shri Ashok Mohadikar (PW5) is totally silent in his evidence that before recording of the statement of Pratibha, he himself was satisfied about her physical and mental condition to give her statement. On the contrary, his evidence shows that he relied on the opinion given by the doctor which is not available on the dying declaration. Perusal of dying declaration Exhibit 22 shows that though there is a signature of doctor below of Shri Ashok Mohadikar (PW5), at the end of the statement, no endorsement is found given by the doctor that during course of recording of the dying declaration he was present throughout and the patient was in condition to give her statement. Further, there was no reason for appearing two thumb impressions on Exhibit 22 for which there is no explanation given by the prosecution. Therefore, in our opinion, the said document also failed to clear suspicion and we are, therefore, of the confirmed view that the said document cannot be used for conviction of the accused. 24. The last circumstance or piece of evidence that is relied on by the prosecution is the oral dying declaration alleged to have been made by deceased Pratibha to her mother. 24. The last circumstance or piece of evidence that is relied on by the prosecution is the oral dying declaration alleged to have been made by deceased Pratibha to her mother. We are mindful of position of the law that even the oral dying declaration can be made a good ground or a basis for securing conviction of the accused. However, evidence of person, who claims that oral dying declaration was made to him/her, must inspire confidence. 25. As per the prosecution case, the oral dying declaration was made by deceased Pratibha to her mother Fulabai (PW2). Admittedly, Fulabai was not present on the spot at the time when the incident occurred. That time, she was at the house of her nephew Sanjay and at 5:00 p.m. Prashant (PW4), her son, came to her and gave an information that the accused set Pratibha on fire. Therefore, she rushed to the spot noticing that Pratibha was sitting in a burnt condition. She claims in her evidence that she made enquiries with her and at that time it was revealed to her by Pratibha that the accused poured kerosene and set her ablaze. In our view, for following two reasons it is very difficult to accept her evidence: (i) In crossexamination, Fulabai admitted that her husband was present in the field at the time of the incident. However, Prashant (PW4) states that after the incident, his father came on the spot. The father is not examined by the prosecution. (ii) When Fulabai''s husband was present in the village, there was no reason for Fulabai not to attribute his presence on the spot. In our view, only reason could be after reaching to the spot, the father must have inquired with either Pratibha or Fulabai and they must have disclosed certain facts to him which may be prejudicial for the prosecution and, therefore, he was not examined. 26. In crossexamination, Fulabai admitted that on the day of recording of the evidence, in morning when she came to the Court, the police read over her statement to her. 27. The Division Bench of this Court to which one of us (V.M. Deshpande, J.) was party, has ruled in the case of Suresh s/o Purushottam Ashtankar ..vs.. The State of Maharashtra and anr reported at , (2015) AllMR(Cri) 4243, that memory of witness has to be refreshed in presence of the Court and not stealthily. 27. The Division Bench of this Court to which one of us (V.M. Deshpande, J.) was party, has ruled in the case of Suresh s/o Purushottam Ashtankar ..vs.. The State of Maharashtra and anr reported at , (2015) AllMR(Cri) 4243, that memory of witness has to be refreshed in presence of the Court and not stealthily. The said cannot be done in view of the law laid down by this Court. Hence, we discard the claim of the prosecution that the deceased made the oral dying declaration to her mother Fulabai. 28. By now, the law in respect of scope of the Appellate Court is well defined. Merely because another view is possible, the Appellate Court should not substitute its own view in place of the view taken by the Trial Court if the said view is based on proper appreciation of the prosecution case and perversity is not crept in in the judgment. 29. On reappreciation of the entire prosecution case independently also we are of the firm view that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. Hence, the criminal appeal fails and is dismissed.