Rakesh Kumar, J. – The sole appellant, who is an unfortunate husband, after being convicted and sentenced for commission of offence under Section 304(B) of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’), has approached this Court by filing the present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’). The appellant, in a case in which fardbeyan was shown to be recorded on 16-11-2012 and without any plausible reason formal F.I.R. was drawn after much delay on 08-12-2012, has been held guilty and convicted on 02-07-2013 for commission of offence under Section 304(B) of the I.P.C. By order dated 04-07-2013, he has been sentenced to undergo imprisonment for life. The judgment of conviction and sentence has been passed by Sri Bajrangi Sharan, learned Additional Sessions Judge 1st, Katihar (hereinafter referred to as the ‘Trial Judge’). 2. The nightmare of the appellant has commenced from 15-11-2012, when his wife, while preparing meal, was caught with fire and she was carried to hospital, but on next date i.e. 16-11-2012, she succumbed to injury. Thereafter, on the same date i.e. 16-11-2012 at 9:45 A.M., fardbeyan of mother of the deceased was recorded. The mother of the deceased namely Bishakha Devi was examined as P.W.6. In the fardbeyan, which was recorded on 16-11-2012 at 9:45 A.M. in the Sadar Hospital, Katihar, the informant Bishakha Devi (P.W.6) disclosed that her daughter namely Sushila Devi was got married with the appellant (Mithun Roy) some time in the year 2007. Her marriage was solemnised with the appellant, who was resident of Azamnagar Gudri Bazar, P.S. Azamnagar, District – Katihar. She disclosed that the husband of the daughter of the informant (appellant) was residing with his maternal grand father (ukuk) namely Balram Rai. The daughter of the informant was having three years old male child and one three months old baby child. On preceding date i.e. 15-11-2012 at about 2:00 P.M., she got telephonic information from neighbour that her daughter had set herself on blaze. After getting the said information, with her son, the informant went to the house of her daughter in Azamnagar Gudri Bazar. She saw that her daughter had received serious burn injury. On preceding date i.e. 15-11-2012 at about 2:00 P.M., she got telephonic information from neighbour that her daughter had set herself on blaze. After getting the said information, with her son, the informant went to the house of her daughter in Azamnagar Gudri Bazar. She saw that her daughter had received serious burn injury. On being asked, her daughter disclosed that the son-in-law of informant had demanded money, which was refused and due to this reason, her son-in-law Mithun (appellant) poured kerosene oil on her daughter and ignited the same. After she was burnt, the injured was carried by her son-inlaw (appellant) to Azamnagar Hospital, from where, she was referred to Sadar Hospital, Katihar, where in course of treatment, she died on 16-11-2012. The informant further stated that in between her daughter and son-in-law, often dispute had taken place in relation to money and her daughter used to return back to her parents house. This time, she got information that in the dispute, her daughter received burn injury and died on 16-11-2012 in course of her treatment. The said fardbeyan was read over to her and after finding it correct, she put her thumb impression on the fardbeyan. On the fardbeyan, her husband Rajendra Rai (P.W.5) also put his L.T.I. (Left Thumb Impression). 3. On the basis of said fardbeyan, on 08-12-2012, a formal F.I.R., vide Azamnagar P.S. Case No. 251 of 2012, was registered for offence under Section 302 of the I.P.C. only against appellant. During investigation, on 10-12-2012, the appellant was arrested and finally, on 31-12-2012 the police submitted chargesheet against the appellant under Section 304(B) of the I.P.C. After submission of chargesheet, on 22-01-2013, the learned Chief Judicial Magistrate, Katihar took cognizance of the offence under Section 304(B) of the I.P.C. and thereafter, on 01-02-2013, the case was committed to the court of sessions. After commitment, the case was numbered as Sessions Trial No. 73 of 2013 and on 26-02-2013, charge against the appellant was framed under Section 304(B) of the I.P.C., which was denied and he claimed to be tried. 4. During the trial, to prove its case on behalf of the prosecution, altogether seven witnesses were examined. After commitment, the case was numbered as Sessions Trial No. 73 of 2013 and on 26-02-2013, charge against the appellant was framed under Section 304(B) of the I.P.C., which was denied and he claimed to be tried. 4. During the trial, to prove its case on behalf of the prosecution, altogether seven witnesses were examined. Though, in the evidence of none of the witnesses, any ingredient had come attracting provision under Section 304(B) of the I.P.C., to the reasons best known to the learned Trial Judge, he has passed the impugned judgment of conviction and sentence, which has been assailed in the present appeal. 5. During evidence, surprisingly, the first witness, who has been examined as P.W.-1, was none else but the investigating officer himself. In normal course, in such cases, care should be taken to examine investigating officer after examination of material witnesses so that in case of taking contradiction in respect of evidence of witnesses, he may be confronted, but in any event, in this case, the investigating officer Sri Nageshwar Prasad Yadav was examined as P.W.1, who simply proved the fardbeyan, which was marked as Ext.1, formal F.I.R. - Ext. 1/1, inquest report – Ext.1/2 and surprisingly, he has also proved the chargesheet, which has been got marked as Ext.2. In the evidence of the investigating officer, it has come that at the place of occurrence, he noticed no mark relating to the occurrence, rather in paragraph – 6 of his cross-examination, it has come that witnesses had stated that deceased was caught with fire while she was preparing meal. Even then, the investigating officer had submitted chargesheet against the appellant. 6. P.W.2 Ratan Rai and P.W.4 Samtolia Devi, both were resident of the village of the appellant, have not supported the case, whereas, P.W.5 Rajendra Rai (father of the deceased), who stood as witness to the fardbeyan, since stated the truth, was declared hostile. P.W.6 Bishakha Devi (mother of the deceased and informant of the case) has not at all stated anything showing implication of the appellant and P.W.3 Dr. Ram Rekha Suman has conducted post-mortem examination on the dead body of the deceased, whereas, P.W.7 Gurdhan Rai was declared hostile. After completion of prosecution evidence, on 15-06-2013, statement of the appellant under Section 313 of the Cr.P.C. was recorded, in which, he claimed to be innocent. 7. Mr. Md. Ram Rekha Suman has conducted post-mortem examination on the dead body of the deceased, whereas, P.W.7 Gurdhan Rai was declared hostile. After completion of prosecution evidence, on 15-06-2013, statement of the appellant under Section 313 of the Cr.P.C. was recorded, in which, he claimed to be innocent. 7. Mr. Md. Helal Ahmad, learned counsel for the appellant, by way of referring to entire evidence, has argued that despite the fact that none of the witnesses have stated any fact showing commission of offence under Section 304(B) of the I.P.C., the learned Trial Judge has incorrectly passed the judgment of conviction and sentence. He submits that though in the fardbeyan, the informant had stated the fact showing application of Section 304(B) of the I.P.C. against the appellant, but during trial, she has not at all whispered about the fact disclosed in the fardbeyan, rather in her evidence, it has come that her daughter died while she was preparing meal and was caught by the fire. He further submits that father of the deceased, who was all along present with the informant, was simply declared hostile by the prosecution. The evidence of other witnesses also supports that deceased died while she was preparing meal. He further submits that in the evidence of the informant, this fact has come that even prior to the occurrence, relation in between the deceased and the appellant was amicable and good and as such, even though the accidental death had occurred, there was no application of Section 113(B) of the Evidence Act, 1872, but the learned Trial Judge has ironically passed the judgment of conviction and sentence, which requires to be interfered with. 8. Sri Ajay Mishra, learned Addl. Public Prosecutor, in view of the evidence on record, was having difficulty to support the prosecution case. 9. Besides hearing, we have examined entire evidence on record and after going through the same, we are of the considered opinion that the learned Trial Judge has passed the judgment of conviction and sentence without any evidence, rather he has committed serious error while relying on the fact disclosed in the fardbeyan as well as case diary, which is reflected from the impugned judgment itself. However, before proceeding, it would be necessary to discuss the evidence of material witnesses. 10. P.W.6 Bishakha Devi is mother of the deceased and informant of the present case. However, before proceeding, it would be necessary to discuss the evidence of material witnesses. 10. P.W.6 Bishakha Devi is mother of the deceased and informant of the present case. In her evidence, she in paragraph – 1 has stated that the deceased was married with the appellant about 5 years back and she died in the house of the appellant. She died six months back, regarding which, she had lodged a case in the police station. She claimed that she had put her Right Thumb Impression on the same, which was marked for identification as ‘X’. She also identified the appellant in court. In cross-examination, she stated that two children of the deceased were residing with their grand father and grand mother. Police had not read over the application of case to her. She reiterated that there was no dispute in between her daughter and son-in-law and it was true that while her daughter was preparing meal she was caught by the fire and burnt. However, she clarified that she was not recollecting as to who had informed that she caught with the fire while preparing meal. 11. On examination of her evidence, it is evident that she had not whispered regarding the fact disclosed in the fardbeyan, rather she stated that she was not explained about the fact mentioned in the fardbeyan, which was recorded by Sub-Inspector of Police Kiran Kumari of Town Police Station, Katihar. The Sub- Inspector of Police, who had recorded fardbeyan, has not been examined in the present case. In her evidence, this fact has come that the appellant had not taken any step for pouring kerosene oil on her daughter or igniting the same, as was disclosed in the fardbeyan. Accordingly, in view of evidence of P.W.6, it would be difficult to agree with the judgment of conviction and sentence under Section 304(B) of the I.P.C. 12. P.W.5 Rajendra Rai (father of the deceased), who had also put signature on the fardbeyan, has not at all supported the prosecution case and this was the reason that he was declared hostile. 13. P.W.2 Ratan Rai is the co-villager of the appellant, who in his evidence stated that he got an information that Sushila (deceased) was burnt and she died while she was being treated. In cross-examination, this witness has stated that “this fact is true that Sushila died while she was preparing meal”. 13. P.W.2 Ratan Rai is the co-villager of the appellant, who in his evidence stated that he got an information that Sushila (deceased) was burnt and she died while she was being treated. In cross-examination, this witness has stated that “this fact is true that Sushila died while she was preparing meal”. P.W.2, further in his cross-examination, had stated that in between deceased and appellant, there was cordial relation. 14. P.W.4 Samtolia Devi, another co-villager of the appellant, in her examination-in-chief has simply stated that Sushila Devi died due to burn injury in her in-laws house and her marriage was solemnised 5 years back. In cross-examination, in paragraph – 2, she stated that it is true that Sushila caught by the fire while she was preparing meal. She further stated that in between appellant and deceased, dispute had never taken place. 15. P.W.3 Dr. Ram Rekha Suman on 16-11-2012 was posted as Medical Officer, Sadar Hospital, Katihar and on the same date, he conducted post-mortem examination on the dead body and noticed following facts: – “Fresh burn wound all over body present. On dissection of head & neck – Brain matter & Meninges are intact & NAD. Thorax – Heart & Lungs – are intact & NAD. All abdominal visceras are intact & NAD. Stomach contused semi-digested food material with non specific smell. External genitalia – intact & NAD. Cause of death – Hypovolumic shock due to above mentioned injuries. Time elapsed since death – within 24 hours.” 16. He further proved the post-mortem report, which was marked as Ext.3. On examination of the evidence of P.W.3 as well as post-mortem report, it is evident that the deceased died due to burn injury. The death by burn injury is not in dispute. 17. P.W.7 Gurdhan Rai was simply declared hostile. 18. On examination of entire prosecution evidence, normally the learned Trial Judge was required to pass judgment of clean acquittal, however; on examination of the impugned judgment, it appears that the learned Trial Judge has placed reliance on the fact disclosed in the case diary as well as the fact disclosed in uncorroborated fardbeyan. Besides lack of any evidence, there is also no explanation by the prosecution regarding lodging of formal F.I.R. at much belated stage. Besides lack of any evidence, there is also no explanation by the prosecution regarding lodging of formal F.I.R. at much belated stage. In the case, fardbeyan was shown to be recorded on 16-11-2012 and the same was sent to the concerned police station forthwith, however; the formal F.I.R. in the case was recorded on 08-12-2012 i.e. almost after 22 days from recording of the fardbeyan. This was not end of the matter, even thereafter, two days was consumed in sending the F.I.R. to the court of learned Chief Judicial Magistrate, Katihar. In such situation, there is no reason to approve the judgment of conviction and sentence and as such, the judgment of conviction dated 02-07-2013 and order of sentence dated 04-07-2013 passed in Sessions Trial No. 73 of 2013 (arising out of Azamnagar P.S. Case No. 251 of 2012) by Sri Bajrangi Sharan, learned Additional Sessions Judge 1st, Katihar is, hereby, set aside and appeal is allowed. 19. The appellant is in custody and since the judgment of conviction and sentence has been set aside, he is directed to be released forthwith, if not wanted in any other case.