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2020 DIGILAW 220 (GAU)

Samiran Bibi v. State of Assam

2020-02-17

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : SUMAN SHYAM, J.: 1. Heard Mr. Bhaskar Baruah, learned amicus curiae, appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the respondent-State. 2. The sole appellant in this case has been convicted under section 302 of the Penal Code, 1860 (‘IPC’) for committing murder of her husband Osir Ali and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 15,000, in default, to undergo rigorous imprisonment for another 6 months. 3. The prosecution case, as unfolded during the course of trial, is that on 24.5.2008, at about 2-45 a.m., the appellant-accused had set her husband Osir Ali ablaze by pouring kerosene oil upon him with the intent to kill him, as a result of which, the victim had sustained bum injuries on different parts of his body resulting to his death. The victim was then rushed to the hospital where he died after two days. 4. On 24.5.2008, an ejahar was lodged before the Officer in-Charge of Bogribari Police station by the informant/victim Osir Ali, based on which, Bogribari Police Station Case No. 79/2008 was registered under section 326/207 of the IPC. Subsequently, section 302 of the IPC was added after the victim had died in the hospital. 5. Sub-Inspector Bhogeswar Bora was entrusted with the job of carrying out investigation in connection with Bogribari P.S. Case No 79/2008. Accordingly, the I/O had recorded the statement of the witnesses, drew up sketch map and had also recorded the statement of the injured victim. However, it was another I.O., i.e., Sri Lakhi Kanta Nath (PW-9), who had submitted the charge sheet against the accused under section 302 of the IPC. The accused has pleaded innocence. Hence, the matter went up for trial. 6. In order to bring home the charge brought against the accused, the prosecution side had examined as many as 9 witnesses. Sri Pronab Kumar Sarma, the Magistrate, who had recorded the dying declaration of the victim was examined as Court Witness (CW-1). After examination of the prosecution witnesses, the statement of the accused was recorded under section 313 of the Cr.PC. The defence side had also examined two witnesses, viz. DWs 1 and 2 who are the mother and the son, respectively, of the deceased. 7. As noticed above, the victim Osir Ali himself is the informant in this case. After examination of the prosecution witnesses, the statement of the accused was recorded under section 313 of the Cr.PC. The defence side had also examined two witnesses, viz. DWs 1 and 2 who are the mother and the son, respectively, of the deceased. 7. As noticed above, the victim Osir Ali himself is the informant in this case. The ejahar was written by one Saiful Islam as per the version narrated by the deceased. Since the ejahar itself is capable of being treated as the first dying declaration of the victim, we deem it appropriate to reproduce the ejahar for ready reference. “Sir, Humble submission is that around 2.45 a.m. today, on 24.5.2008, when I was sleeping, the below mentioned accused-person with an intention to kill me, set me on fire by pouring kerosene oil on my person thereby causing grievous bum injuries in various parts of my person. When I shouted, people came forward and my life was saved. I, therefore, lodge this ejahar with a prayer for taking necessary action in this regard. Yours faithfully, LTI of Osir Ali.” 8. In the ejahar lodged on 24.5.2008, appellant was named as the accused. The ejahar was evidently written as per the version of the victim which was read over to him. What would, however, be significant to note herein that the scribe of the ejahar, viz., Saiful Islam has not been examined as a witness by the prosecution side. On the contrary, the ejahar has been sought to be proved by the I.O. (PW-9) who was not even connected with the investigation of this case at the relevant point of time. Out of the remaining 8 witnesses examined by the prosecution side, as many as five witnesses, viz., PWs-2, 4, 5, 6 and 7 were declared as hostile witnesses. 9. PW-1 Dr. Tapas Mazumdar was the doctor on duty at the Dhubri at the Dhubri Civil Hospital on 26.5.2008 and he had conducted post mortem examination on the dead body of the victim. PW-1 had deposed that the victim had suffered 40% bum injuries over the face, chest and the anterior wall of upper abdomen and both the legs. According to the doctor, the presence of needle pricks in the body indicates that the victim was given medical treatment before he died. PW-1 had deposed that the victim had suffered 40% bum injuries over the face, chest and the anterior wall of upper abdomen and both the legs. According to the doctor, the presence of needle pricks in the body indicates that the victim was given medical treatment before he died. PW-1 has also stated that it was not possible to say how the deceased had sustained bum injuries and he did not examine the brain of the deceased to ascertain his insanity. 10. PW-2 Barek Ali has deposed before the court that he knew the informant and the accused and the incident took place about three years back. On the day of occurrence, he went to Bogribari Police Station only to know about the cause of death. The witness has also stated that he had heard that the deceased had expired due to bum injuries. At that stage, the said witness was declared as a hostile witness. During his cross-examination by the prosecution side, PW-2 has stated that on the day of the incident, he went to the house of the deceased and saw that the deceased Osir Ali had suffered severe bum injuries and then he took him along with other people to the hospital, where he died. In his cross-examination by the defence side, PW-2 has stated that the deceased was having mental disorder; the deceased and the accused are husband and wife and they are having three children; the elder son of the deceased was 15/16 years old at the time of the incident and that the mother of the deceased Basiran Bewa was alive and staying with the family. 11. PW-3 Habibullah Mondal has deposed that on the next day of the incident he came to know that the victim Osir Ali has died in the hospital as a result of severe bum injuries. This witness has proved the Ext. 3 Inquest Report and has stated in his cross-examination that the victim Osir Ali was having mental disorder and he was very much arrogant but he did not know how the victim had caught fire. 12. PW-4 Waheb Ali has deposed that he knew the informant as well as the accused who is his wife and the incident occurred about 7 years ago. He had heard that Osir Ali died as a result of injury. He was taken to the hospital where he died. 12. PW-4 Waheb Ali has deposed that he knew the informant as well as the accused who is his wife and the incident occurred about 7 years ago. He had heard that Osir Ali died as a result of injury. He was taken to the hospital where he died. This witness was declared as a hostile witness. In his cross-examination by the prosecution side, PW-4 had denied of having stated before the Police that the wife of Osir Ali has set him on fire by pouring kerosene oil. PW-4 had also denied having stated before the Police that he along with the village people took Osir Ali to the Police Station by a “Thela”. During his cross-examination by the defence side, PW-4 had stated that Osir Ali had three children and name of the elder son, who was about 15/16 years old, is Sofiqul. According to PW-4, at the time of the occurrence, the mother of Osir Ali was present at home and her name is Basiran. PW-4 had also stated that Osir Ali was suffering from illness. 13. Sahajahan Ali is another witness, who was examined by the prosecution side as PW-5. In his deposition PW-5 has stated that the incident occurred at night at about 3 a.m. At that time, hearing hue and cry from the house of the informant, he had rushed to the place of occurrence. After reaching the place of occurrence, he saw that the body of the informant was burnt and he was lying outside his house. Many people gathered at the place of occurrence and he had asked others as to how the incident occurred. Then he came to know that the informant had set himself on fire. This witness was also declared as a hostile witness. During his cross-examination by the prosecution side, PW-5 had denied of having stated before the Police that on the night of the incident, there was a dispute between the informant and his wife in respect of land and since the informant did not sign the paper, his wife had poured kerosene oil on his body and set him ablazed. 14. What would be significant to note herein that during his cross-examination by the defence side, PW-5 had categorically stated that the informant was a mentally retarded person for long time and that he was unable to speak at the time of the incident. 14. What would be significant to note herein that during his cross-examination by the defence side, PW-5 had categorically stated that the informant was a mentally retarded person for long time and that he was unable to speak at the time of the incident. PW-5 had also stated that the informant/victim had attempted to commit suicide many times by different ways and that he did not have any land in his name. It is also the assertion of PW-5 that he did not hear any dispute existing between the informant and the accused. This witness had deposed that on the day of the occurrence, he went to the place of occurrence and saw the accused also crying after the incident. 15. PW-6 Zakir Hussain is yet another prosecution witness who had been declared as a hostile witness. However, in his deposition, PW-6 had stated that he knew the informant and the accused and that the informant is a mentally retarded person. During his cross-examination by the prosecution side, PW-6 had denied that he had stated before the Police that he went to the house of the informant at the time of the incident and saw him lying on the ground having received bum injuries. This witness had also denied having stated before the Police that there was a dispute between the informant and his wife on the day of occurrence or that the accused was a woman with a bad character, having relationship with other persons. During his cross-examination by the defence side, PW-6 had stated that the informant and the accused had four children and the age of the elder child was about 16 years. PW-6 had also stated that the victim was not having any land. It has also come out from the testimony of PW-6 that the informant used to indulge in untoward incidents in his village due to his madness and that he was unable to speak at the time of the incident. 16. PW-7 Farid Ali is another prosecution witness, who was declared hostile. During his cross-examination by the prosecution side, the witness had denied of having stated before the Police that he had heard the accused had killed her husband by pouring kerosene oil and set him ablaze. 16. PW-7 Farid Ali is another prosecution witness, who was declared hostile. During his cross-examination by the prosecution side, the witness had denied of having stated before the Police that he had heard the accused had killed her husband by pouring kerosene oil and set him ablaze. During his cross-examination by the defence side, PW-7 had stated that the informant was a mentally retarded person and he used to indulge in several untoward incidents in his village due to his mental illness. 17. PW-8 Omar Ali is a resident of the same village where the accused resides and in his cross-examination, the witness has stated that the informant was mentally retarded person. Referring to the victim, PW-8 had also stated that once he had jumped into the well. 18. From the testimony of PWs-2, 3, 4, 5, 6, 7 and 8, it transpires that the informant was a person suffering from mental disorder and he was also seen to have been indulging in various untoward incidents which included attempts to kill himself. 19. PW-9 Lakhi Kanta Nath is the I.O. who had laid the charge sheet against the accused. As noticed above, PW-9 was not involved with the investigation of the case but he came into the picture after the completion of investigation. It is evident from his testimony that the PW-9 had merely submitted the charge sheet against the accused based on the materials available in the case diary. PW-9 has exhibited the FIR (Ext.6) and has also deposed that the investigation was completed before he took over as the I.O. of this case and, therefore, he had submitted the charge sheet under section 302 of the IPC against the accused. PW-9 had also exhibited the charge sheet Ext.5. PW-9 had also deposed that the Executive Magistrate, P.K. Sarma (CW-1) had recorded the dying declaration of the victim on 24.5.2008, where-after, the victim had died on the same day and the said fact had come to his knowledge from the case diary. During his cross-examination by the defence, PW-9 has stated that Ext. 7 sketch map did not disclose the presence of any burning material in the place of occurrence and that the statement of the remaining two children of the victim, viz. Sahidul and Juela Khatun were not recorded as witnesses. The I.O. has also stated that he did not verify the statement of P.K. Sarma (CW-1). 20. 7 sketch map did not disclose the presence of any burning material in the place of occurrence and that the statement of the remaining two children of the victim, viz. Sahidul and Juela Khatun were not recorded as witnesses. The I.O. has also stated that he did not verify the statement of P.K. Sarma (CW-1). 20. Sri P.K. Sarma (CW-1) is the Magistrate who had recorded the dying declaration of the victim on 24.5.2008. CW-1 has deposed before the court that he had recorded the dying declaration of the victim Osir Ali in reference to the Bogribari P.S. G.D. entry No. 550 dated 24.5.2008. The dying declaration was recorded at 7.45 a.m. on 24.5.2008 at the Dhubri Civil Hospital. CW-1 had also stated that the person making the dying declaration had stated that there was a quarrel between him and his wife Samiran Bibi in respect of issue of land. Samiran wanted the land document from him but when he refused to give those documents, his wife had threatened to kill him by dao. Later on, at night at about 2-30 a.m. his wife had set him on fire by pouring kerosene oil on his body. He was admitted to a hospital. According to CW-1, the dying declaration was recorded in front of Dr. K.A. Ahmed, Medical and Health Officer, Dhubri Civil Hospital and there were other witnesses present at the time of recording the dying declaration. CW-1 has also proved the Ext. 4 as the dying declaration recorded by him. 21. A perusal of the Ext. 4 goes to show that the signature of witnesses Md. Bakkar Ali and Rahul Amin were obtained thereon and it was also certified by Dr. K.A. Ahmed that the patient was under his treatment and he was at that time conscious-oriented and could speak properly. The doctor had certified that the victim was in a fit condition to make his statement. 22. From a perusal of the judgment and order passed by the learned Trial Court, we find that the conviction of the accused is entirely based on the dying declaration Ext. 4. However, significantly enough, the prosecution side has not examined the two witnesses, viz., Md. Bakkar Ali and Rahul Amin nor have they examined the doctor, i.e., Dr. K.A. Ahmed. No reason has been cited for not examining the aforesaid vital witnesses. 23. 4. However, significantly enough, the prosecution side has not examined the two witnesses, viz., Md. Bakkar Ali and Rahul Amin nor have they examined the doctor, i.e., Dr. K.A. Ahmed. No reason has been cited for not examining the aforesaid vital witnesses. 23. Law is well settled that a dying declaration, if found to have been made by a victim in a fit state of mind and if found to be voluntary and truthful, it can be the basis of conviction without any further corroboration. However, it would always be the duty of the court to verify and satisfy itself as to the trustworthiness of such dying declaration and also whether the procedural safeguard required to be followed had been observed while ascertaining the mental fitness of the victim. In the case of Paniben v. State of Gujarat, (1992) 2 SCC 474 the Supreme Court has observed that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration and if the court is satisfied that the dying declaration is true and voluntary, it can be the basis of conviction. However, when dying declaration is suspicious, it should not be acted upon without corroborative evidence. 24. In the present case, the ejahar (Ext. 6) itself could have been treated as the first dying declaration of the victim. However, the scribe of the ejahar Saiful Islam has not been examined by the prosecution. As such, the contents of the ejahar has not been proved. The I/O PW-9 had proved the receipt of the ejahar Ext-6 but the said witness is not competent to prove its contents. Therefore, we hold that the contents of Ext-6 have not been proved in this case. 25. By referring to the Case Diary, Ms. Bhuyan, learned APP, Assam has submitted that the I.O. Bhogeswar Bora had recorded the statement of the victim on 24.5.2008 wherein, the victim has stated that his wife, i.e., the accused had set him ablazed by pouring kerosene oil. However, we find from the record that the I.O. Bhogeswar Bora has not been examined by the prosecution side as a witness nor has the said statement recorded by him brought on record. However, we find from the record that the I.O. Bhogeswar Bora has not been examined by the prosecution side as a witness nor has the said statement recorded by him brought on record. As such, the statement of the victim recorded by the I.O. can at best be treated as a statement recorded under section 161 Cr.PC and, hence, the same cannot be treated as evidence to be relied upon by this court. 26. Coming to the dying declaration, i.e., the Ext. 4 recorded by the Magistrate (CW-1), we find that although the allegation of his wife setting the victim ablaze has remained constant, yet, the same is at a clear variance from the version given in the ejahar compared to the statement of the victim recorded by the CW-1. For the sake of ready reference, we deem it appropriate to reproduce the dying declaration (Ext-4) recorded by the Magistrate (CW-1) herein below “On oath, On 23.5.2008 (yesterday), my wife Samiran Bibi and I had a quarrel over the matter of landed property. My wife sought the documents pertaining to my residential plot of land and when I refused, she threatened to cut me with dao. Later on around 2.30 a.m., my wife set me on fire by pouring kerosene oil on my person and then I was admitted to hospital.” 27. In the above context, we deem it appropriate to note herein that while in the ejahar, it has been mentioned that the accused had poured kerosene oil on the victim while he was sleeping, in the dying declaration recorded on 24.5.2008, the victim has not stated that he was set on fire by pouring kerosene oil when he was sleeping. In the dying declaration Ext. 4, the victim had stated that there was a quarrel between him and his wife over landed property. She had sought for the document pertaining to the residential plot of land and when he refused, she had threatened to cut him with a dao. However, no such disclosure had been made in the ejahar dated 24.5.2008. 28. It has been the stand of the victim that his wife had demanded the papers of the residential plot owned by him and on being refused by him, the accused had set him on fire. However, there is no evidence on record to show that the victim had owned any residential plot of land. 28. It has been the stand of the victim that his wife had demanded the papers of the residential plot owned by him and on being refused by him, the accused had set him on fire. However, there is no evidence on record to show that the victim had owned any residential plot of land. Rather, it has come out from the testimony of PW-5 that the deceased did not own any plot of land. If that be so, there cannot be question of the accused asking for the land documents from the victim. 29. We now come to the stand of the accused taken in her defence. In her statement recorded under section 313 of the Cr.P.C, the accused has not only claimed to be innocent but she had stated that at the time of the incident she was not present in the room and her son Safiqul was with his father (deceased). She has also stated that her husband was suffering from mental illness and on several earlier occasions, he had tried to commit suicide by jumping in the water. 30. DW-1 Basiran Bewa is the mother of the victim and the mother-in-law of the accused. She has deposed before the court to the effect that on the day of the incident, she was sleeping with her daughter-in-law in one room and the victim Osir was in the other room staying with his eldest son. At about 2-30 a.m. to 3 a.m., the victim Osir had poured kerosene oil from the kerosene lamp and set him ablazed. Safiqul doused the fire and called them and told that his father had set himself ablazed. According to DW-1, the age of Safiqul at that time was 12 years and he was a student of Class VI. DW-1 has also stated that her son Osir was taken to the hospital for treatment where he had succumbed to his bum injuries. DW-1 has categorically stated that at the time of the incident, Osir was suffering from mental illness and he went to jump into the well river during the day time. DW-1 has also deposed that at the time of the incident, her daughter-in-law, i.e., the accused was with her and that the accused had not set her son Osir on fire. During the cross-examination of DW-1, her testimony could not be shaken. 31. DW-1 has also deposed that at the time of the incident, her daughter-in-law, i.e., the accused was with her and that the accused had not set her son Osir on fire. During the cross-examination of DW-1, her testimony could not be shaken. 31. Likewise, DW-2 Safiqul, who is the son of the accused and the victim, had deposed that his father had died in the year 2008 at 2-30 to 3 a.m. at their house. DW-2 has stated that he and his father had slept in one room and his mother slept in another room with his grandmother. DW-2 has further stated that his father was of unsound mind and he had a quarrel during the day time. According to the DW-2, his father had tried to set himself ablazed when he was sleeping. He woke up sensing fire in the room and thereafter took his father to the hospital. DW-2 has also stated that his mother and the grandmother accompanied him to the hospital but his father did not make a statement that his mother has set him ablazed. During his cross-examination, DW-2 has stated that he did not see how fire caught on the body of his father but had confirmed that his father was sleeping with him and he did not get any hint as to who had entered into their room when he was sleeping. DW-2 has denied the suggestion that while they were sleeping, the accused had come into the room and set the victim ablazed. 32. Besides the accused, the mother and the son of the victim were the other persons present inside the house at the time of the incident. Therefore, DWs 1 and 2 ordinarily ought to have been the prosecution witnesses. But we find from the record that the statement of those two witnesses had not been recorded by the Police. Moreover, from the evidence of DWs 1 and 2, it has become crystal clear that both these witnesses are not supporting the prosecution story. 33. It has also come out from the testimony of the DWs 1 and 2 that on the night of the incident, the accused was sleeping in another room with his son. There is no evidence on record to even remotely suggest that the accused had entered the room where the victim was sleeping and thereafter set him ablazed by pouring kerosene oil. There is no evidence on record to even remotely suggest that the accused had entered the room where the victim was sleeping and thereafter set him ablazed by pouring kerosene oil. The mother of the victim and his son, i.e., DWs 1 and 2, who were present inside the house, have categorically stated that the accused had not set the victim on fire. The testimony of both these defence witnesses appear to be truthful and free from contradiction and, therefore, inspires the confidence of this court. We also fail to understand as to why, a mother would try to shield the killer of her son unless what she had deposed in the court was the truth. 34. It is also to be noted herein that in his dying declaration, the victim has not narrated the circumstances under which the accused had poured kerosene oil over his body. If the version of the victim is to be taken on its face value, even then, we find it completely unbelievable that a lady, who was sleeping in the same room with her mother-in-law, would come to the other room, pour kerosene oil over the body of her husband and thereafter, set him ablazed without there being any resistance or physical scuffle between the two and the other inmates of the house would be unaware of the same. Situated, thus, we are of the considered opinion that the dying declaration Ext-4 does not reveal the whole truth and, therefore, is completely un-reliable. 35. The witnesses examined by the prosecution side, as noted above, have stated that the victim was a person with unsound mind. Despite having being declared as hostile witnesses, the deposition of PWs 2, 4, 5, 6 and 7 is found to relevant for the purpose of establishing the mental illness of the victim. There testimony also find due corroboration from the evidence of PWs 3 and 8. The mental illness of the victim also finds mention in the testimony of his mother who had deposed as DW-1. 36. The accused had also sufficiently explained the mental illness and the resultant conduct of her husband during her examination under section 313 of the Cr.PC. Therefore, based on the evidence available on record, we are inclined to hold that the victim was suffering from mental disorder at the time of the incident and the said fact has been duly established. 37. Therefore, based on the evidence available on record, we are inclined to hold that the victim was suffering from mental disorder at the time of the incident and the said fact has been duly established. 37. It is also to be noted here-in that the prosecution side had failed to examine the witnesses in Ext-4. The Magistrate (CW-1) might have recorded the statement of the victim but his testimony alone would not be sufficient to establish the metal fitness of the victim at the time of recording his statement. Even the CW-1 has not stated that the victim was in a fit mental condition at the time when his statement was recorded. 38. The doctor, who had allegedly certified the “mental fitness” of the victim in the dying declaration (Ext. 4) has not been examined as a witness. Therefore, there is no evidence available on record to establish the mental condition of the victim at the time of recording his statement. The above infirmity, in our opinion, would assume great significance in this case on account of the fact that there is consistent and credible evidence available on record to establish that the victim was not in a sound state of mind at the time of the incident. Viewed from that angle also, we are of the view that the prosecution has failed to establish that the victim was in a proper mental state to make the dying declaration. 39. In the case of Kanchy Komuramma v. State of A.P., 1995 Supp (4) SCC 118, the hon'ble Supreme Court had the occasion to deal with the effect of non-examination of the doctor endorsing the dying declaration reflecting the state of mind of the patient and has held that such failure would impeach the evidentiary value of the dying declaration. The observations made by the Supreme Court in para 10 of the said judgment, which is relevant for this case, is reproduced herein below. “10. The prosecution for reasons best known to it did not examine Dr. H. Rao who is alleged to have made the endorsement on Ex. P-7 that “the patient was in a fit state of mind to depose.” No other witness was examined to prove the certificate of the doctor either. The non-production of Dr. “10. The prosecution for reasons best known to it did not examine Dr. H. Rao who is alleged to have made the endorsement on Ex. P-7 that “the patient was in a fit state of mind to depose.” No other witness was examined to prove the certificate of the doctor either. The non-production of Dr. H. Rao to prove his certificate and subject himself to be cross-examined by the appellants when considered in the light of the testimony of the mother of the deceased, PW 1, who specifically stated that the condition of the patient was not good and that she was not in a fit condition, creates a doubt in our minds as to whether the patient was actually in a proper mental condition to make a consciously truthful statement. This infirmity renders it unsafe to rely on the dying declaration. As a matter of fact, the failure of the prosecution to establish that the deceased before she made the dying declaration, was in proper mental condition to make the dying declaration detracts materially from the reliability of the dying declaration and it would not be safe to rely upon it. That the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the court. There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law. These safeguards have not been observed in the present case. Even PW 8 Dr. Kurthy, the Casualty Officer has not stated that the deceased was in a fit condition to speak.” 40. Again, in the case of K. Ramachandra Reddy v. The Public Prosecutor, (1976) 3 SCC 618 , the Supreme Court had observed that the Magistrate, while recording dying declaration, must put direct question to the injured as to whether he was mentally capable to make the statement. Again, in the case of K. Ramachandra Reddy v. The Public Prosecutor, (1976) 3 SCC 618 , the Supreme Court had observed that the Magistrate, while recording dying declaration, must put direct question to the injured as to whether he was mentally capable to make the statement. Certificate issued by a doctor that the injured was in a fit state of mind to make a statement was not conclusive and, therefore, would not be sufficient to dispel the doubt created by the circumstances of the case. In the instant case, no such question appears to have been put to the victim by the Magistrate. 41. Having regard to the facts and circumstance of this case, we are of the view that the ratio laid down the case of Kanchy Komuramma (supra) and K. Ramachandra Reddy (supra) would be squarely applicable to this case. In the absence of procedural safeguards being followed while recording the dying declaration, the mere fact that the statement had been recorded by a Magistrate cannot be taken to be the guarantee of truthfulness of the same. We are, therefore, of the view that the dying declaration Ext. 4 cannot be treated as an impeccable evidence in the facts and circumstances of this case. Therefore, it would be unsafe for the court the convict the accused solely on such dying declaration of the victim. Since the conviction of the accused is entirely based on the dying declaration (Ext-4), for the reasons stated above, we hold that the prosecution has failed to prove the charge brought against the accused beyond all reasonable doubt. There is serious doubt as regards the circumstances under which the victim had caught fire and the benefit of such doubt must go in favour of the accused. 42. In view of what has been discussed here-in-above we allow the appeal by setting aside and quashing the impugned judgment and order dated 13.7.2018. 43. We are informed that the accused is presently in jail. As such, we direct that the accused be set at liberty forthwith unless her detention is required in connection with any other case. Send back the LCR. Before parting with the record we would like to appreciate the services rendered by Mr. Bhaskar Baruah, amicus curiae and direct that he shall be paid his due remuneration, as per the notified rate, for the services rendered by him.