JUDGMENT : RAKESH KUMAR, J. 1. The sole appellant was convicted in Sessions Trial No. 72 of 2011/39 of 2012 by Shri Dina Nath Pandey, learned Adhoc Additional Sessions Judge IV, Aurangabad (hereinafter referred to as the “trial judge”). By the judgment dated 28.04.2014 the appellant was convicted for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “I.P.C.”) and by order dated 29.04.2014 he was sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 5,000/-. In default of payment of fine, he was further directed to undergo simple imprisonment for three months. 2. Short fact of the case is that on 31.08.2010 at 11.45 A.M. in Sadar Hospital, Aurangabad one Sub Inspector of Police Sri Kameshwar Singh (not examined), S.H.O. Amba Police Station recorded fardbeyan of Sushma Devi [deceased (wife of the appellant)]. In the fardbeyan the informant disclosed that on the same day i.e. on 31.08.2010 at 11.00 A.M. since her husband had brought a “saree” for her, he was scolded by her father-in-law (Dineshwar Upadhyay), mother-in-law (Nageshwari Devi) and sister of her husband (Urmila Devi). In that context dispute arose with the informant, and thereafter, her husband (appellant), mother –in-law (Nageshwari Devi), father –in-law (Dineshwar Upadhyay) and sister of husband of the informant namely Urmila Devi poured kerosene oil on her and she was set ablaze. She received serious burn injuries and thereafter, her daughter (Rashmi Kumari) poured one bucket of water. Thereafter, fire was extinguished. On alarm, people arrived there and the injured (informant) was carried to Sadar Hospital, Aurangabad where her fardbeyan was recorded. The fardbeyan was read over to her and thereafter, her R.T.I. was obtained on the fardbeyan. The said fardbeyan was also got signed by Sudhir Kumar Pandey (P.W. 4) and Jitendra Kumar Tiwary (P.W. 5). 3. Thereafter, fire was extinguished. On alarm, people arrived there and the injured (informant) was carried to Sadar Hospital, Aurangabad where her fardbeyan was recorded. The fardbeyan was read over to her and thereafter, her R.T.I. was obtained on the fardbeyan. The said fardbeyan was also got signed by Sudhir Kumar Pandey (P.W. 4) and Jitendra Kumar Tiwary (P.W. 5). 3. After recording fardbeyan on the same date i.e. 31.08.2010 at about 1.15 P.M. a formal F.I.R. vide Amba P.S. Case No. 69 of 2010 was registered for the offence under Section 326/307/34 of the I.P.C. and subsequently, after death of the injured (informant), by order dated 01.09.2010 Section 302 of the I.P.C. was added in the F.I.R. The F.I.R. was lodged against : (1) appellant (Indrajeet Upadhyaya) (2) Nageshwari Devi (mother-in-law of the deceased) (3) Dineshwar Upadhyay (father- in- law of the deceased) and (4) Urmila Devi [nanad of the deceased (sister of the appellant)]. After drawing F.I.R. the case was investigated and on 25.11.2010 first charge sheet was submitted against mother and father of the appellant namely: Nageshwari Devi and Dineshwar Upadhyay under Section 302/34 of the I.P.C. and thereafter on 10.12.2010 learned Chief Judicial Magistrate took cognizance of offence. In the case, on 26.03.2011 supplementary charge sheet was submitted against the appellant, however nothing was indicated in respect of one of the F.I.R. named accused namely Urmila Devi. Subsequently, the case was committed to the court of Sessions on 26.04.2011 and on 23.02.2012 joint charge under Section 302/34 of the I.P.C. was framed against all the three charge -sheeted accused including the appellant and three accused persons were put on trial and the case was numbered as Sessions Trial No. 72 of 2011/39 of 2012. 4. During trial, from the prosecution side altogether nineteen witnesses were examined. However, out of nineteen prosecution witnesses, P.W. 2 (Mahesh Datt Pandey), P.W. 3 (Ranjan Pathak), P.W. 6 (Neha Kumari), P.W. 7 (Rukmini Devi @ Rukmini Kumari), P.W. 8 (Sneha Dubey), P.W. 9 (Sweta Dubey @ Sweta Devi), P.W. 10 (Kaushal Upadhyay), P.W. 11 (Ram Ashish Bhuiya), P.W. 12 (Sushil Kumar Sinha) and P.W. 16 [Parsuram Pandey (father of the deceased)] were declared hostile. P.W. 13 (Kamalesh Singh), P.W. 14 [Bhola Prasad (this witness Bhola Prasad was again examined as P.W. 15)], Bhola Prasad, who was also examined as P.W. 15, P.W. 17 (Baikunth Singh) and P.W. 19 (Ram Narain Singh) were examined as formal witnesses, who have proved certain documents. In the case P.W. 1 [Balram Pandey (uncle of the deceased)], P.W. 4 [Sudhir Kumar Pandey {brother – in-law of the deceased (bahnoi)}], P.W. 5 [ Jitendra Kumar Tiwary {maternal brother –in-law of the deceased (bahnoi)}] though were not declared hostile had virtually demolished the entire prosecution case. P.W. 18 [Dr. Anup Kumar Sinha] had conducted the post- mortem on the dead body of the deceased. During trial without any cogent reason the investigating officer was not produced by the prosecution, and as such, the trial concluded in absence of investigating officer and he was never examined. 5. Shri Pratik Mishra, learned counsel, assisted by Shri Birendra Kumar Singh, learned counsel for the appellant after placing entire evidence has argued that despite the fact that there was no iota of evidence to establish the prosecution case, the learned trial judge without any rhyme and reason, has passed the judgment of conviction and order of sentence. He submits that even the father of the deceased, who was examined as P.W. 16 namely Parsuram Pandey has not supported the prosecution case and this was the reason that he was declared hostile. After being declared hostile, he was cross- examined and in his crossexamination in paragraph no. 2 this witness has stated that after getting information regarding the incident he reached the place of occurrence where he noticed that her daughter had already died and her dead body was sent from the place of occurrence for postmortem examination. He submits that it is true that prosecution has initiated its case on the so -called fardbeyan being treated as “dying declaration” however after the evidence of father of deceased it is established that the injured before arrival of her father (P.W. 16) had already died and she was never carried to hospital for treatment, rather her dead body was sent for postmortem examination. He submits that even the evidence of father of the deceased demolishes the entire prosecution case. He submits that even the evidence of father of the deceased demolishes the entire prosecution case. It has also been argued that it is true that in the case fardbeyan of injured [deceased] was got exhibited, but the scribe of the fardbeyan has not come forward to say that he had recorded the fardbeyan of the deceased. During trial the witnesses who were shown to be witness to the fardbeyan have not supported the prosecution case and they have said that on blank paper their signature was obtained by the investigating officer. Learned counsel for the appellant has specifically placed reliance on the evidence of P.W. 1 (Balram Pandey) who was none else but uncle of the deceased. He submits that P.W. 1 in paragraph no. 1 of his evidence has supported the prosecution case to some extent but in his crossexamination he has demolished the entire prosecution case, even then, this witness was not declared as hostile witness. Similarly, P.W. 4 (Sudhir Kumar Pandey) and P.W. 5 (Jitendra Kumar Tiwary) who were also relatives of the deceased though in their examination- in- chief have supported the case of the prosecution to some extent but in their cross- examination they have given true picture of the prosecution case which suggests that before the injured was carried to hospital she was already dead and her dead body was kept on cot near the house of the appellant. He further submits that those witnesses have stated that the accused persons were taking steps for carrying the injured to hospital for treatment. He has further argued that P.W. 4 and P.W. 5 in their crossexamination though deposed that the case was entirely untrue and their deposition was against the so-called prosecution case, they were also not declared hostile, and as such, on the basis of evidence of P.W. 4 and P.W. 5 itself it was a case of accidental death. In sum and substance it has been argued by way of referring to evidences that virtually deceased met with an accident while she was preparing breakfast for her children and suddenly fire took place in gas cylinder and in that accident she received burn injuries and died. In sum and substance it has been argued by way of referring to evidences that virtually deceased met with an accident while she was preparing breakfast for her children and suddenly fire took place in gas cylinder and in that accident she received burn injuries and died. Shri Pratik Mishra, learned counsel for the appellant by way of referring to the post -mortem examination report i.e. Exhibit- 4 has further argued that burn injuries on the person of the deceased was found about 90%. He further submits that the doctor (P.W. 18) has stated that in such case of burning the injured might had been in semi unconscious state of mind, and as such, it can be inferred that injured (deceased) was not in a position to make such detail statement, which has been shown to be incorporated in the fardbeyan and which has been treated to be “dying declaration”. Shri Pratik Mishra, learned counsel for the appellant has further argued that it is a peculiar case that on the same set of evidence though the learned trial judge has passed judgment of acquittal in respect of other two accused persons, the learned trial judge has held the appellant guilty and passed judgment of conviction and order of sentence. Accordingly, it has been argued that impugned judgment is liable to be set aside. 6. Shri Ajay Mishra, learned Additional Public Prosecutor, opposing the Appeal submits that it appears that after the occurrence the prosecution witnesses have connived with the accused persons and this was the reason that those witnesses were either declared hostile or they have given a contrary version during the trial. He further submits that of- course in the evidence this fact has been brought on record that occurrence had taken place in the kitchen but as per case diary it appears that occurrence had taken place in the bathroom and those facts have transpired while attention of witnesses were drawn to their previous statement recorded under Section 161 of the Cr.P.C., however, in absence of evidence of the investigating officer, Shri Ajay Mishra, learned A.P.P. was not in a position to substantiate such facts. 7. Besides hearing learned counsel for the parties, we have minutely examined the evidence on record. 7. Besides hearing learned counsel for the parties, we have minutely examined the evidence on record. On going through the entire evidence the Court is prima facie satisfied that the prosecution has miserably failed to establish its case, rather on close examination of the evidence of prosecution witnesses, the conduct of the prosecution witnesses appears to be suspicious. However, the Court may not travel beyond the evidence on record, and as such, whatever admissible evidence has been brought on record, we are required to proceed on that basis. In the case fardbeyan of injured was shown to be treated as if it was a “dying declaration” however, in absence of scribe of the said fardbeyan that too, due to non- support of two witnesses to the fardbeyan, such fardbeyan may not be termed as a “dying declaration”. Even the witnesses who had put their signature on the fardbeyan have deposed that on blank paper their signatures were obtained. Meaning thereby that prosecution is completely silent to establish the genuineness of the so -called fardbeyan. During trial the investigating officer has not been examined. Apart from that, evidence of P.W.1, P.W. 4 and P.W. 5 also creates serious doubt on the so- called fardbeyan. Though the father of the deceased, who has been examined as P.W. 16 has turned hostile and thereafter in his cross- examination he has again finished the entire prosecution case. In the case most of the witnesses have turned hostile. No plausible evidence was brought on record to substantiate the prosecution case. However, before parting with the judgment, it would be necessary to cursorily discuss the evidence of P.W. 1 (Bal Ram Pandey) as well as evidence of the doctor, who conducted post- mortem on the dead body of the deceased i.e. P.W. 18. 8. P.W. 1 [Balram Pandey (uncle of the deceased)] in his examination- in- chief disclosed that occurrence had taken place on 31.08.2010 on which date he was in village: Murlibelai. On the said date he got information on telephone that his niece - Sushma Devi (deceased) was burnt by sprinkling kerosene oil. Such information was given by one Ranjan Kumar Pathak, who has been examined as P.W. 3. Surprisingly, during evidence Ranjan Pathak has turned hostile. On the said date he got information on telephone that his niece - Sushma Devi (deceased) was burnt by sprinkling kerosene oil. Such information was given by one Ranjan Kumar Pathak, who has been examined as P.W. 3. Surprisingly, during evidence Ranjan Pathak has turned hostile. Meaning thereby, that evidence of hearsay itself is not admissible, whereafter P.W. 1 further deposed that he also got information that villagers had carried injured to Sadar Hospital, Aurangabad. On getting such information he went to Sadar Hospital, Aurangabad and he noticed that her whole body was burnt. At that very time it was 11.45 A.M. In his presence as well as before the Police Sushma Devi disclosed that her husband (appellant- Indrajeet Upadhyaya), mother-in-law (Nageshwari Devi), father-in-law (Dineshwar Upadhyay), sister of her husband (Urmila Devi) all after tieing her hands and feet poured kerosene oil and in the latrine room she was burnt and door was locked from outside. In paragraph no. 3 he further stated that younger daughter of deceased by pouring bucket of water extinguished the fire and villagers carried the injured to Aurangabad Sadar Hospital. He further stated that prior to the said occurrence in the year 2007 the in-law’s members of Sushma Devi had forced the injured to swallow powder of glass, however, in his cross- examination in paragraph no. 6 he stated that his niece was married with Indrajeet Upadhyaya (appellant) in the year 2002 and she was having two children. In paragraph no. 7 he stated that on the date of occurrence in the morning at 9.00 A.M. Indrajeet Upadhyaya [appellant] informed him through mobile phone that Sushma Devi while preparing breakfast for her children sustained burn injury since there was leakage of gas from the cylinder and thereafter she was badly injured. On the basis of said information he along with his brother [ Parsuram Pandey {P.W. 16 (father of the deceased)}] went to the in-law’s house of Sushma i.e. Hardatta village where he noticed that in village on the road dead body of Sushma Devi was kept on a cot and the persons who were present there told that while being carried for treatment Sushma Devi died. In paragraph no. 8 of his cross-examination this witness further stated that when he along with his brother went inside the house of Sushma, he noticed that pipe of gas cylinder was already burnt. In paragraph no. 8 of his cross-examination this witness further stated that when he along with his brother went inside the house of Sushma, he noticed that pipe of gas cylinder was already burnt. Sushma at the time of occurrence was wearing a synthetic “saree” and her entire body had burnt and in the said accident she died. Thereafter, they informed the Police, however Police after arrival did not hand over the dead body on the ground that on the dead body post- mortem examination was to be done. In paragraph no. 12 he further stated that with Sushma Devi earlier no untoward incident had taken place and the deceased was having good relation with her husband, mother-in-law and father–in-law. Though in cross -examination P.W. 1 has given entirely different picture, contrary to the prosecution case, this witness was not declared hostile, nor his attention was drawn to his previous statement recorded under Section 161 of the Cr.P.C. Meaning thereby that whatever he had stated in examination-in-chief was completely altered by his cross-examination and this creates serious doubt regarding the story of recording of fardbeyan of the injured [deceased]. The prosecution case regarding mental condition of the deceased at the time of socalled fardbeyan can be examined vis –a- vis the evidence of P.W. 18 (Dr. Anup Kumar Sinha). Dr. Anup Kumar Sinha on that date at 5.00 P.M. had conducted post -mortem examination on the dead body of the deceased and on post-mortem examination he noticed the following facts:- “(1) About 2”x2” brushed blister patches found on following areas- both hands both sides, both legs both sides, whole abdomen and forehead. Both thigh are redish in colour, lt. chest valves are redish in colour in both sides. Face and neck redish in colour. Hairs of head are singing, eye brow also singing. Whole body are lapped by local antiseptic cream. About 90% burn was found on her body. (2) Rigor mortis present, brain congested, trachea contain carbon particle, lungs congested. Pericardiam congested. Heart -both chambers full of blood and it is in cherry in colour. Stomach – semi digested food present. Large intestine - Fechial matter present. Liver – swell, spleen – enlarge and soft. Kidney- swell, bladder – empty. All above injuries are ante mortem in nature caused by burn. Cause of death – Hypovulemmic shock due to burn. Ultimately C.R. failure and death. Stomach – semi digested food present. Large intestine - Fechial matter present. Liver – swell, spleen – enlarge and soft. Kidney- swell, bladder – empty. All above injuries are ante mortem in nature caused by burn. Cause of death – Hypovulemmic shock due to burn. Ultimately C.R. failure and death. Time elapsed since death to P.M. done – within 12 hours.” He also proved the post-mortem examination report, which was marked as Exhibit – 4. In cross- examination particularly in paragraph no. 6 he stated that in case of 90% burn patient becomes semi unconscious. Considering the burn injuries noticed by P.W. 18 as well as injury to the extent of 90% particularly in view of non- examination of the scribe of the fardbeyan certainly the fardbeyan, which was introduced to be “dying declaration” comes within the cloud of suspicion, and as such, only on the basis of such fardbeyan it would not be safe to come to the conclusion that the appellant was involved in the crime. Moreover, the appellant was charged for offence under Section 302/34 of the I.P.C. and it was not a case under section 304(B) of the I.P.C. Particularly in a case in which the appellant was charged for offence under Section 302/34 of the I.P.C. it was complete onus on the prosecution to prove its case beyond all reasonable doubt. 9. Considering the facts and circumstances particularly the fact that none of the witnesses have seriously supported the prosecution case, rather the witnesses who have stated some thing, have virtually deposed against the prosecution case, and as such, it would not be safe to approve the judgment of conviction and order of sentence of the appellant. Accordingly, the judgment of conviction and order of sentence dated: 28th April, 2014 and 29th April, 2014 respectively passed by Shri Dina Nath Pandey, learned Adhoc Additional Sessions Judge IV, Aurangabad in Sessions Trial No. 72 of 2011/39 of 2012 (arising out of Amba P.S. Case No. 69 of 2010, G.R. Case No. 1724 of 2010) is hereby set aside and the Appeal is allowed. In view of the fact that judgment of conviction and order of sentence has been set aside and the appellant is inside jail, it is hereby directed to release the appellant forthwith, if not required in any other case.