JUDGMENT : RAKESH KUMAR, J. 1. The appellants in all the three Appeals were convicted and sentenced in Sessions Trial No. 1371 of 2010/Trial No. 59 of 2012 by Sri Danpal Singh, learned Additional Sessions Judge -VII, Patna (hereinafter referred to as the “trial judge”), and as such, all the three Appeals were taken up together and are being disposed of by this common judgment. All the appellants were convicted on 19.01.2015 for commission of offence under Section 304(B) of the Indian Penal Code, 1860 (hereinafter referred to as the “I.P.C.”) and by order of sentence dated: 22nd January, 2015 they were directed to undergo rigorous imprisonment for life. The appellants were tried together in Session Trial No. 1371 of 2010/Trial No. 59 of 2012 (arising out of Ram Krishna Nagar P.S. Case No. 75 of 2008). 2. Short fact of the prosecution case is that on 04.12.2008 at about 10.45 A.M. fardbeyan of Priti Kumari (deceased) was recorded in the emergency ward of Patna Medical College and Hospital, Patna (hereinafter referred to as the “P.M.C.H.”). The fardbeyan was recorded by Assistant Sub Inspector of Police of Pirbahore Police Station. In the fardbeyan it was disclosed by Priti Kumari that her marriage was solemnized in the month of pSr with Dharmveer Rajak [appellant in CR. APP (DB) No. 297 of 2015], S/o Sri Vijay Rajak [appellant in CR. APP (DB) No. 296 of 2015] resident of Mohalla- Jaganpura, Police Station:- Ram Krishna Nagar, District:- Patna. After marriage she was being threatened by her husband, mother-in-law and father-in-law regarding dowry and they were saying that if same is not fulfilled, she would be done to death. She was often being assaulted. Even thereafter, she was peacefully living with her in-laws members. In the morning at 6.00 A.M. on the same day (4.12.2008) her husband , mother-in-law and father-in-law, all with a view to kill her had poured kerosene oil and ignited it whereby she received serious burn injury. On her crying, residents of nearby arrived there and after lifting her, they had carried to P.M.C.H. where she was under treatment. She stated that the said fardbeyan was read over to her and after finding it correct she anyhow put her thumb impression. The said fardbeyan was also signed by Akhilesh Rajak (P.W. 8). On her crying, residents of nearby arrived there and after lifting her, they had carried to P.M.C.H. where she was under treatment. She stated that the said fardbeyan was read over to her and after finding it correct she anyhow put her thumb impression. The said fardbeyan was also signed by Akhilesh Rajak (P.W. 8). The said fardbeyan was forwarded to the Ram Krishna Nagar Police Station and thereafter on the same day i.e. 04.12.2008 at 19.00 hours (7.00 P.M.) a formal F.I.R. vide Ram Krishna Nagar P.S. Case No. 75 of 2008 was registered for the offence under Sections 341/323/326/307/498(A)/34 of the I.P.C. and Section 3 and 4 of the Dowry Prohibition Act, 1961. Subsequently, after the death of the informant, on 14.01.2009 Section 304(B) of the I.P.C. was added. The F.I.R. was lodged against three accused persons, who are appellants before this Court. 3. After investigation, on 30.09.2009 Police submitted charge- sheet under Section 304(B), 34 of the I.P.C. and on 21.12.2009 learned Chief Judicial Magistrate, Patna took cognizance of the offence and after completing formalities under Section 207 of the Cr.P.C. the case was committed to the court of Sessions on 07.09.2010. Thereafter, the case was numbered as Sessions Trial No. 1371 of 2010. In the case on 24.11.2010 charges were framed jointly against all the appellants for offence under Sections 302/34, 304/34, 304(B)/34 of the I.P.C. 4. To prove the case from the prosecution side altogether ten witnesses were examined. P.W. 1 [Pushpa Devi] was the sister of the deceased. P.W. 2 [Gautam Rajak] is the neighbourer who proved his signature on the seizure list relating to seizure of a jerkin of five liters, one match box, partly burnt shawl and ashes. P.W. 3 [Amirak Paswan] was an another neighbourer, however since he did not support the prosecution case in its entirety, he was declared hostile. P.W. 4 [Manju Devi] is the cousin sister of the deceased. P.W. 5 [Sushil Rajak (father of the deceased)], P.W. 6 [Subodh Kumar Rajak (cousin brother of the deceased)], P.W. 7 [Shobha Devi (mother of the deceased)] and P.W. 8 [Akhilesh Rajak (brother -in- law of the deceased i.e. husband of elder sister of the deceased)]. The doctor who conducted post -mortem examination namely: Dr. Arun Kumar Singh has been examined as P.W. 9, whereas the investigating officer Sri Ramanuj Singh was examined as P.W. 10. The doctor who conducted post -mortem examination namely: Dr. Arun Kumar Singh has been examined as P.W. 9, whereas the investigating officer Sri Ramanuj Singh was examined as P.W. 10. After completion of prosecution evidence, material and evidences collected during investigation was explained to the accused persons and their statement under Section 313 of the Cr.P.C. was recorded on 14.10.2014. Thereafter, to disapprove the case from the defence side also three witnesses were examined, who are: Dilip Rajak [D.W. 1], Vijay Rai [D.W. 2] and Rajendra Rajak [D.W. 3]. All the defence witnesses have in sum and substance stated that at the time of occurrence none of the appellants were present in the house, rather they were washing clothes at Dhobi Ghat. 5. Shri Ravindra Kumar, learned counsel for the appellants after placing entire evidences has argued that the prosecution case prima facie appears to be not believable, rather the case was fabricated from the prosecution’s side. At the very outset, he highlighted that the fardbeyan, which has been treated as the socalled dying declaration, appears to be fabricated. He has taken the court to the fardbeyan and states that it is a peculiar case that on the fardbeyan two L.T.I. of deceased have been obtained. He further submits that it appears that on a blank paper thumb impression was obtained and only thereafter the so-called fardbeyan was written on the said sheet. To highlight his submission he has specifically referred to last but few paragraphs of the fardbeyan to show that fardbeyan was written only after thumb impression was obtained. He further submits that in view of evidence of P.W. 9 [doctor who conducted post -mortem examination on the dead body of the deceased] as well as post -mortem examination report, it is evident that the deceased was having 100% burn injury. According to him, in such a situation it is difficult for the injured person to make any statement. Besides this, by way of referring to the evidence of one of the prosecution witnesses, he has argued that it was the case of the prosecution that while the injured was put on thela her tongue had come out of her mouth. He submits that the nature of such injuries itself reflects that the injured would not have made any statement, what to talk about the dying declaration. He submits that the nature of such injuries itself reflects that the injured would not have made any statement, what to talk about the dying declaration. It has further been argued that the socalled fardbeyan though was written by Assistant Sub Inspector of Police Shri M.A. Rahman of the Pirbahore Police Station, to the reasons best known to the prosecution, the scribe of the said fardbeyan was withhold by the prosecution and he was not examined as a witness. The said fardbeyan or dying declaration was not got exhibited and it was not marked as Exhibit. He submits that in such a situation it would not be appropriate to place any reliance on such fardbeyan or dying declaration. It has further been argued that if fardbeyan of the injured was recorded in the hospital and subsequently the injured died, in absence of any certification by doctor or any authorized person posted in the hospital, reliance may not be placed on such fardbeyan or dying declaration. Learned counsel for the appellants to substantiate his submission that in absence of evidence of scribe of such fardbeyan or dying declaration such evidence may be seen as suspicious, has placed reliance on a judgment of the Hon’ble Supreme Court reported in AIR 1993 SUPREME COURT 2457 (Govind Narain and another v. State of Rajasthan) and he has placed reliance on paragraph no. 14 of the aforesaid judgment. Regarding non-compliance of formalities of certification of such fardbeyan by doctor or any official(s) of the hospital, learned counsel for the appellants has placed reliance on a Division Bench judgment of the Bombay High Court reported in 1994 CRI. L.J. 2035 (Vithal Sadashiv Gaikwad v. State of Maharashtra) and he has referred paragraph no. 6 of the said judgment. Shri Ravindra Kumar, learned counsel for the appellants by way of referring to entire evidence and particularly evidence of the investigating officer has further argued that the investigating officer conducted a complete perfunctory investigation which is evident from paragraph no. 2 of his evidence in which he has discussed about the place of occurrence. 6 of the said judgment. Shri Ravindra Kumar, learned counsel for the appellants by way of referring to entire evidence and particularly evidence of the investigating officer has further argued that the investigating officer conducted a complete perfunctory investigation which is evident from paragraph no. 2 of his evidence in which he has discussed about the place of occurrence. He submits that the investigating officer has not at all indicated as to whether he had noticed any mark of burning on either wall or ceiling, whereas it was a case that inside the house deceased had poured kerosene oil on herself and thereafter set herself ablaze and she had received 100 % burn injury. According to learned counsel for the appellants in case of such burning there was every possibility of mark of burning or smoke on the walls of the room or ceiling but the investigating officer has indicated nothing in his evidence. Besides this, it has been argued that though the investigating officer in his evidence has stated that he had recorded re-statement of the injured, in his evidence he further stated that only after the death of the injured he visited Pirbahore Police Station. Meaning thereby, that before death of injured he had not visited P.M.C.H., and as such, there was no question for recording re-statement of the injured. It has also been argued that during entire evidence the prosecution has miserably failed to establish that just before the occurrence the victim was tortured due to non -fulfillment of demand of dowry. Only a vague plea was taken that the victim was earlier tortured for non- fulfillment of demand of dowry. Learned counsel for the appellants submits that in view of 100% burn injury there was no possibility for the victim to make any statement. Learned counsel for the appellants has placed heavy reliance on the evidence of P.W. 2 [Gautam Rajak] and submits that he was the only independent witness who immediately after the occurrence had reached the place of occurrence and he after scaling the wall entered the house and then opened the door, which was locked from inside. According to learned counsel for the appellants this witness has made categorical statement that while he entered the house and saw the injured burning, with the help of other villagers wet blanket was thrown on her to diffuse the fire. According to learned counsel for the appellants this witness has made categorical statement that while he entered the house and saw the injured burning, with the help of other villagers wet blanket was thrown on her to diffuse the fire. He stated that this witness made specific deposition that at that very time all the three appellants were not present in the house rather they were at Dhobi Ghat. He submits that this witness was examined as prosecution witness and not declared hostile by the prosecution and after examining the evidence of this witness there is no reason to place reliance on evidence of other witnesses who are non else but close relatives of the deceased. So far evidence of P.W. 1 [Pushpa Devi] and P.W. 7 [Shobha Devi] is concerned, it has been argued that on their evidence no reliance can be placed since in their evidence they have stated that they never made any statement before the Police and for the first time they appeared in court and deposed. Learned counsel for the appellants has argued that the prosecution case can be doubted in view of the fact that witnesses particularly P.W. 5 [father of the deceased] had purposely suppressed the fact that he was informed by the accused side and this was the reason that during evidence he made incorrect statement that while he was in his village:- Rasalpur, Chandi in the District of Nalanda and was in field, Bhushan Rajak [his co-villager] had given information to him regarding the occurrence in respect of his daughter (deceased). He submits that at the time of examination of investigating officer [P.W. 10] specifically this question was asked as to whether P.W. 5 had stated in his statement that he was informed by Bhushan Rajak on which the investigating officer replied that in his statement under Section 161 of the Cr.P.C. P.W. 5 had not made such statement. Similarly, P.W. 1, P.W. 4, P.W. 5 and P.W. 7 had purposely withheld the fact regarding the source of information regarding the occurrence. On the aforesaid grounds it has been argued that prosecution has miserably failed to establish its case, and as such, it is necessary to set aside the impugned judgment of conviction. 6. Similarly, P.W. 1, P.W. 4, P.W. 5 and P.W. 7 had purposely withheld the fact regarding the source of information regarding the occurrence. On the aforesaid grounds it has been argued that prosecution has miserably failed to establish its case, and as such, it is necessary to set aside the impugned judgment of conviction. 6. Shri Ajay Mishra, learned Additional Public Prosecutor opposing the Appeal has argued that the entire case is based on dying declaration of the deceased, and as such, there is no reason to raise any suspicion or doubt against the prosecution case. He further submits that dying declaration has been corroborated and established by the evidence of P.W. 1 [Pushpa Devi]; P.W. 4 [Manju Devi], P.W. 5 [Sushil Rajak (father of the deceased)], P.W. 6 [Subodh Kumar Rajak (cousin brother of the deceased)], P.W. 7 [Shobha Devi (mother of the deceased)], P.W. 8 [Akhilesh Rajak (brother -in- law of the deceased)]. He further submits that P.W. 5 [father of the deceased] has made specific deposition that after marriage his daughter was tortured repeatedly, and as such, the submission of learned counsel for the appellants that before the occurrence the prosecution had failed to establish the fact that she was tortured due to non- fulfillment of demand of dowry may not be appreciated. He further submits that though for application of the provision under Section 304(B) of the I.P.C. it is necessary to establish that just prior to the occurrence there must be a case of torture in respect of demand of dowry, but repeatedly it has been highlighted that there is no such straight jacket formula to draw inference against prosecution case on such plea. He further submits that evidence of P.W. 5 [father of the deceased] and evidence of mother [P.W. 7] is sufficient to establish that before the occurrence the deceased was tortured. He further submits that in such a situation it was necessary for the defence also to prove as to how the deceased died in her in- law’s house. 7. Besides hearing learned counsel for the parties, we have minutely examined the entire evidence and after going through the same prima facie we are satisfied that prosecution has not proved its case beyond all reasonable doubt. 8. Before proceeding further, it is necessary to firstly test the veracity of the fardbeyan, of –course, it has not been formally proved or exhibited. 8. Before proceeding further, it is necessary to firstly test the veracity of the fardbeyan, of –course, it has not been formally proved or exhibited. On going through the fardbeyan it is evident that it is only in one page and on this fardbeyan there are two thumb impressions. After minutely examining the fardbeyan it is evident that firstly thumb impression was obtained thereafter the contents were written on the blank sheet. Prima facie on examining the same, we are of the opinion that the so-called fardbeyan is not true. Moreover, there is no certification by the doctor nor the scribe who had prepared the fardbeyan have come forward to depose in favour of the prosecution. The Court is in agreement with the submission of learned counsel for the appellants that this issue has already been set at rest by the Hon’ble Supreme Court in the case reported in AIR 1993 SUPREME COURT 2457 (Govind Narain and another v. State of Rajasthan). It would be appropriate to quote paragraph no. 14 of the aforesaid judgment, which is as follows:- “14. That takes us now to the consideration of the dying declaration alleged to have been reduced into writing, exhibit P-3. The High Court as well as the trial court have disbelieved exhibit P-3 for a variety of reasons. Even if we agree with Mr. Makwana, learned counsel for the complainant that some of the reasons given by the High Court to discard exhibit P 3 were not sound, we find that no reliance can be placed on the document exhibit P -3 for the simple reason that the scribe of the document, Shri Jagdish Narain, constable , for the reasons best known to the prosecution, was not examined at the trial and the defence, therefore, had no opportunity to cross- examine him. Mohammed Ali P.W. 4 has failed to explain the cause for non production of Jagdish Narain. We are, therefore, in agreement both with the trial court and the High Court, that there are sufficient reasons on the record to justify the discarding of the alleged dying declaration contained in exhibit P 3 and we do not place any reliance on the same.” 9. Besides this, in the case on examination of the evidence of P.W. 2 there is no reason to place reliance on evidence of other witnesses. Besides this, in the case on examination of the evidence of P.W. 2 there is no reason to place reliance on evidence of other witnesses. P.W. 2 is the person who was residing near the house of the deceased as well as the appellants. After noticing smoke coming from the house of Dharmveer Rajak he immediately rushed to the house of the appellant [Dharmveer Rajak] and he saw that door was locked from inside. Thereafter, after scaling the wall he entered and thereafter from inside he opened the steel sheet door (fVu dk njoktk) from inside. Subsequently other villagers also arrived and they put wet blanket on the daughter of P.W. 5. Thereafter, she was loaded on a thela and with the help of P.W. 2 and appellants with others the injured was carried to hospital. This witness in clear terms has stated that while the occurrence had taken place all the three appellants were not present in the house rather they were working at Dhobi Ghat and thereafter information was sent to the appellants and then they arrived and subsequently the injured was carried to hospital. On examination of evidence of prosecution witnesses particularly P.W. 5 [Sushil Rajak (father of the deceased)] and P.W. 7 [Shobha Devi (mother of the deceased)] it has come that after the marriage the deceased started living in her parents’ house in village: Rasalpur, P.S.:- Chandi, Distt.- Nalanda. Suggestion was also given that since deceased was married in a poor family whose living standard was much lesser than the husband of her elder sister she was completely unhappy and she was not ready to go to her in-law’s house and this was the reason that Panchayati was held and only thereafter the deceased was sent to her in-law’s house. On examination of such evidence inference can be drawn that in such situation there was possibility that the deceased might had herself poured kerosene oil and set herself ablaze which is corroborated from the evidence of P.W. 2 as well as P.W. 3, though he has been declared hostile. P.W. 3 [Amirak Paswan] who is also neighbourer of the appellants in paragraph no. 1 has stated regarding the occurrence and he stated that while Vijay Rajak [appellant in CR. APP (DB) No. 296 of 2015] and his wife [Mutri Devi @ Gudri Devi @ Mutur Devi { appellant in CR. P.W. 3 [Amirak Paswan] who is also neighbourer of the appellants in paragraph no. 1 has stated regarding the occurrence and he stated that while Vijay Rajak [appellant in CR. APP (DB) No. 296 of 2015] and his wife [Mutri Devi @ Gudri Devi @ Mutur Devi { appellant in CR. APP (DB) No. 229 of 2015}] had gone for washing clothes to the Dhobi Ghat, the door of the house was closed by his daughter –in-law (deceased) and she had set herself on fire. After noticing smoke, he and others assembled there and door was opened and he saw that the daughter- in- law of the appellants had received serious burn injury. Thereafter, Vijay Yadav (not examined) went to Dhobi Ghat for informing Vijay Rajak and only thereafter appellants arrived running and injured- Priti was carried to P.M.C.H. for her treatment however subsequently she died. He further stated that in his presence one container was seized on which Daroga Jee had not taken his thumb impression. Thereafter, he was declared hostile by the prosecution. On being declared hostile, from the defence side also he was asked and thereafter he clarified that at the time of occurrence all the three appellants were washing clothes at Dhobi Ghat and after noticing the occurrence scaling boundary wall Gautam Rajak [P.W. 2] had entered into the house, he opened the door and flame was controlled and she was sent for treatment. Since other witnesses are non else but close relatives of the deceased and considering the evidence of P.W. 2 and P.W. 3 who were neighbourers of the deceased as well as on examination of the so-called fabricated fardbeyan there is no reason to place much reliance on the evidence of other witnesses. However, at the same time it is necessary to examine the evidence of the doctor who conducted post -mortem examination i.e. P.W. 9 [Dr. Arun Kumar Singh] who at the relevant time was posted as Associate Professor, Forensic Medicine Department, P.M.C.H. who had conducted post -mortem on 06.12.2008 at 1.00 P.M. During postmortem examination he noticed the following facts:- “(2) On examination R.M. was present all over the body, there was no decomposition, bandage on truck, limbs were present, venesection on left leg. (3) Antemortem, dermo-epidermal burn injury was found all over the body. Scalp hairs were singed. On dissection in general all viscera were found congested. (3) Antemortem, dermo-epidermal burn injury was found all over the body. Scalp hairs were singed. On dissection in general all viscera were found congested. Stomach contained about 50 gram paste like material and black carbon particles were present in the paste. (4) Uterus was found normal and non pregnant, bladder was empty. opinion (5) (1) Time since death 12 to 24 hours. (2) Cause of death :- Burn and its complication. ” 10. This witness has proved the post -mortem examination report , which was marked as Exhibit -4. In his cross- examination he elaborated that there was 100% burn injury and in paragraph no. 6 he stated as follows:- “6. After post- mortem in room no. 2, daughter of Sushil Rajak and her address was written. Hundred percent burn injury was found on the person of Priti Devi, dead body shows that previous treatment was done. When any injured patient is admitted, then bed head ticket is given. Details of treatment is recorded. I cannot say that on perusal of bed head ticket whether she was unconscious or not. The doctor who is treating can only say. I agree that in case of 100% burn injury, entire body becomes black.” 11. On examination of entire evidence it appears that the conduct of the investigating officer was not in accordance with law. On examination of his evidence in paragraph no. 2 of his evidence he has stated that he had recorded re-statement of the injured, however , in paragraph no. 3 he states that he had gone to Pirbahore Police Station after getting information that the deceased died and he received fardbeyan of Sushil Rajak [father of the deceased]/P.W. 5. Despite the fact that he admits that he had received fardbeyan of the father of the deceased, purposely the said fardbeyan was not brought on record during evidence. In paragraph no. 2 of his evidence he has described regarding the place of occurrence, but on going through the same it appears that only formality was done by him since he had not noted anything as to whether on the wall or roof or ceiling he had noticed any mark of smoke or not. This creates doubt on the conduct of the investigating officer, rather it appears that in perfunctory manner investigation was done by him. This creates doubt on the conduct of the investigating officer, rather it appears that in perfunctory manner investigation was done by him. On going through the entire evidence one thing is established that the fardbeyan which was treated as the so- called dying declaration was not brought on record by getting it marked, the same was not exhibited nor the scribe of the said fardbeyan has come forward to state that he had recorded statement of the deceased, and as such, this fact has not come to the fore as to whether at the time of giving fardbeyan what was her (deceased) mental condition, whereas the medical evidence suggests that the deceased was having 100 % burn injury. 12. After going through the entire evidence, we are of the opinion that the prosecution has not proved its case beyond all reasonable doubt, and as such, by way of extending benefit of doubt, it is necessary to interfere with the impugned judgment of conviction and sentence. Accordingly, all the three Appeals are allowed and the judgment of their conviction and order of sentence dated: 19th January, 2015 and 22nd January, 2015 respectively passed by Shri Danpal Singh, learned Additional Sessions Judge – VII, Patna in Sessions Trial No. 1371 of 2010/Trial No. 59 of 2012 (arising out of Ram Krishna Nagar P.S. Case No. 75 of 2008) is hereby set aside. Since the appellant/Dharmveer Rajak [CR. APP (DB) No. 297 of 2015] is still in custody and judgment of conviction and order of sentence has been set aside, it is necessary to direct for releasing him forthwith, if not required in any other case. Accordingly, it is directed to release him forthwith, if not required in any other case. Since the other two appellants are on bail, they are discharged from the liability of their bail bonds.