JUDGMENT : (Suman Shyam, J.) 1. Heard Mr. S.C. Pandit, learned counsel appearing for the appellants. We have also heard Ms. S. Jahan, learned APP, Assam, appearing for the State and Mr. H. Baruah, learned counsel appearing on behalf of the respondent no. 2. 2. This appeal is directed against the judgement dated 10/03/2021 passed by the learned Sessions Judge, Nalbari, in connection with Sessions Case No. 54/2014 convicting both the appellants for committing the murder of deceased Arati Talukdar and sentencing each of them to undergo rigorous imprisonment for life and also to pay fine of Rs. 25,000/- each with default stipulation. 3. The prosecution case, in a nutshell, is to the effect that about a year before the incident, deceased Arati Talukdar got married to the appellant/accused no.1 Dhanjit Talukdar, following a love affair between them. After the marriage, the accused persons used to torture Arati Talukdar in connection with dowry. On 22/01/2013, at about 9-30 p.m., the accused persons had an argument with the victim over dowry and then, they had set her ablaze by pouring ‘Kerosene Oil” on her body. The victim was immediately shifted to the hospital in an unconscious state. She died after 7 (seven) days while receiving treatment in the hospital. 4. On 23/01/2013, the younger brother of the victim, viz. Sri Champak Bora had lodged an ejahar before the Officer-in-Charge of Mukalmua Police Station reporting the incident. In the ejahar, 4 (four) accused persons, viz. Sri Dhanjit Talukdar, (2) Sri Gondho Talukdar, (3) Ms. Anila Talukdar and (4) Ms. Marami Talukdar were shown as the accused persons. On receipt of the ejahar, GD entry No. 421 dated 23/01/2023 was made and Mukalmua PS case No. 19/2013 was registered under sections 498(A)/326/34 of IPC. After the death of the victim, Section 304(B) IPC was added. The matter was then taken up for investigation and on completion of investigation, Police had submitted charge sheet against three accused persons, viz. Sri Dhanjit Talukdar, Sri Gondho Talukdar and Smt. Anila Talukdar under section 304(B)/34 of IPC but accused Marami Talukdar was not sent up for trial. 5. As it was a case triable by the Sessions Court, the matter was committed to the court of Sessions Judge, Nalbari .The learned trial Court had framed charges against all the accused persons under sections 302/304(B)/34 IPC. The charges were read over and explained to the accused persons. 5. As it was a case triable by the Sessions Court, the matter was committed to the court of Sessions Judge, Nalbari .The learned trial Court had framed charges against all the accused persons under sections 302/304(B)/34 IPC. The charges were read over and explained to the accused persons. Since they had pleaded not guilty and claimed to be tried, the matter went up for trial. It appears from the record that during the course of trial, one of the appellants, viz. Gondho Talukdar i.e. the father-in-law had expired and, therefore, the proceeding abated against him. 6. There is no eye witness to the occurrence and the prosecution case is entirely based on circumstantial evidence and dying declarations of the victim. The prosecution had examined as many as 10(ten) witnesses to bring home the charges. We find that the evidence adduced by the PWs – 1, 4, 7 and 10 have been heavily relied upon by the learned trial Court for convicting the appellants. The learned Court below had also relied upon the written “dying declaration” (Ext-2) as well as the oral “dying declaration” of the victim brought on record by the informant (PW-1) to convict the appellants/accused persons. 7. As noted above, Sri Champak Bora (PW-1) i.e. the brother of the victim is the informant in this case. He has deposed before the Court that accused Dhanjit Talukdar is the husband of his deceased elder sister Arati Talukdar and accused Gondho Talukdar and Smt. Anila Talukdar are the father-in-law and mother-in-law respectively of the deceased. The incident took place about two years back. There was love affair between his elder sister Arati and accused Dhanjit Talukdar and their marriage was solemnized about 9-10 months before the incident. On the date of the occurrence, at about 9-30 p.m., the Headman of the village in which the accused persons live in, had informed him that the accused persons had set his elder sister ablaze by pouring “Kerosene Oil” on her body. The village Headman had also informed him that his elder sister has been taken to the Guwahati Medical College and Hospital (GMCH) and he had asked him to go there. On receiving the information, at first, he went to the Mukalmua PS and after lodging the ejahar, he went to the GMCH and found his sister there. His elder sister (victim) was in a position to speak. On receiving the information, at first, he went to the Mukalmua PS and after lodging the ejahar, he went to the GMCH and found his sister there. His elder sister (victim) was in a position to speak. Her face and lower part of the chest were burnt. When he enquired about the incident, his elder sister told him that when her father-in-law had asked for water from the family members, she gave him water but he did not drink. Thereafter, his sister went to sleep. Then, catching hold of her hair, accused Dhanjit Talukdar had dragged her and threw her on the floor after slapping her. Accused Dhanjit Talukdar had caught hold of his sister and the other two accused persons had poured “Kerosene Oil” on her body from a lamp and had set her on fire by saying “die” ! “die” !. Hearing the hue and cry, the village people informed the Police and took the deceased to Mukalmua Hospital and from there, she was referred to the GMCH. PW-1 has also stated that at the time of the incident, his deceased sister was 9(nine) months’ pregnant and 3 (three) days after the incident, she gave birth to a “dead baby”. Later on, the accused had shifted his sister from the GMCH to the “Hayat Hospital”. After her death, the relatives of the accused persons took her body to the village and the last rites were performed the next day. The accused persons were in the jail at the time of performing the last rites. He has proved Ext.-1 as the ejahar lodged by him by identifying his signature Ext. 1(1) therein. 8. During his cross examination, PW-1 has replied that he had lodged the ejahar with the Mukalmua PS at around 10/11 a.m. on 23/01/2013. At the time of lodging the ejahar, his elder brother Ratul Bora and friends Nipan Kalita and Tridip Kalita were with him. On 22/01/2013, nobody from their house went to the house of the accused. He had first lodged the ejahar with the Police Station and then he had gone to the house of the accused. This witness has also stated that he was in the GMCH till his elder sister was shifted to the “Hayat Hospital”. On 22/01/2013, nobody from their house went to the house of the accused. He had first lodged the ejahar with the Police Station and then he had gone to the house of the accused. This witness has also stated that he was in the GMCH till his elder sister was shifted to the “Hayat Hospital”. When he met the Police for the second time, then he told them what his elder sister had told him about the incident when he had met her in the hospital. According to PW1, when his elder sister was telling him about the incident at the GMCH, Tridip, Nipan and his elder brother Ratul Bora (none of whom had been examined as a witness) were present. PW1 has also stated that he had reached GMCH at around 12 noon on 23/01/2013 and at that time, his elder sister was in a position to talk. 9. PW-2 Sri Bidit Talukdar is known to both the accused and the victim but he has neither seen the occurrence nor was he at home on that day since he was busy in a marriage ceremony held in the village. He had heard the people saying that Arati Talukdar had died due to burn injuries. PW-3 Sri Phani Talukdar is also another resident of the same village but he had also not seen the occurrence. On the next morning of the incident, he had noticed Police in the house of the accused and then he immediately came to the house of the accused and could know from the people who had gathered there that the accused persons had set Arati Talukdar on fire. Cross examinations of PWs 2 and 3 were declined. 10. PW-4 Dr. Pallab Kalita was posted as the Medical and Health Officer-I at the Mukalmua Primary Health Centre (PHC) on 22/01/2013 when the victim Arati Talukdar was brought there with approximately 55% burn injury and 9(nine) months’ pregnancy. He was the doctor who had first examined the victim at the Mukalmua PHC. PW-4 has deposed that he had examined the victim at around 10-45 p.m. on 22/01/2013 and recorded her statement. He was the doctor who had first examined the victim at the Mukalmua PHC. PW-4 has deposed that he had examined the victim at around 10-45 p.m. on 22/01/2013 and recorded her statement. According to PW-4, the injured woman had alleged that she had been frequently tortured by her in-laws and quarrel also took place that day and then her husband had put her on fire by pouring ‘Kerosene Oil’ over her body at around 9.00 p.m. PW-4 has further stated that after giving primary treatment to the victim at the Mukalmua PHC, she was immediately referred to the GMCH at around 11 p.m. on 22/01/2013 itself in a serious condition. PW-4 has proved the “dying declaration” of the victim recorded by him as Ext-2 by identifying his signature Ext. 2(1) therein. PW-4 has further deposed that the victim was not in a condition to put her signature in the statement and as such, her signature was not obtained. He had recorded the “dying declaration” of Arati Talukdar on the request of the Local Police Officer. During his cross examination, PW-4 has stated that the victim gave her ‘dying declaration’ in ‘Assamese’ language but he had recorded the same in ‘English’. In the ‘dying declaration’, signature of no other person had been obtained as witness and nothing has been mentioned as regards the presence of any witness while recording the ‘dying declaration’. He has also not mentioned in Ext. 2 that the victim was in a fit state of mind to give her declaration. 11. PW-5 Sri Jayanta Talukdar has stated that on the date of the occurrence, at about 930 p.m. when he was sleeping in his house, his mother woke him up and told that she had heard some noise. Then he and his mother went to the house of the accused and found that Arati was lying in the courtyard of the accused persons in a restless condition and he had noticed that she was wearing only ‘mekhala’. He had also noticed that parents of Dhanjit threw ‘gunny bag’ over her body and also poured water. Then he returned home along with his mother. This witness turned hostile. He had also noticed that parents of Dhanjit threw ‘gunny bag’ over her body and also poured water. Then he returned home along with his mother. This witness turned hostile. During his cross examination by the prosecution, PW5 has denied of having stated to the Police that on arriving at the house of the accused, he had noticed that Arati Talukdar was lying there in a burnt condition and the parents of the accused and Dhanjit himself was standing nearby. During his cross examination by the defense side, PW-5 has stated that he had not witnessed the crime. 12. PW-6 Smt. Malati Talukdar is another witness who had turned hostile. PW-6 has stated that she had noticed that after setting fire on the body of Arati by Dhanjit, he had pushed her to the courtyard and then she went to her house to call her son Jayanta. 13. PW-7 Dr. A.J. Patowary was the Associate Professor on duty in the department of Forensic Science at the GMCH on 31/01/2013 when the dead body of Arati Talukdar was brought there for autopsy. PW-7 has stated that the body was examined at about 3 p.m. on 31/01/2013 on being identified by Constable Hemanta Chetia. According to PW-7, during post-mortem examination, the following injuries were noticed in the dead body of the deceased :- (i) The lower part of the face involving the mandibular area. (ii) The anterior aspect of right upper limb upto wrist joint. (iii) The neck and anterior aspect of the right half of the chest and abdomen. (iv) The anterior aspect of the left abdomen from the middle one third along a transverse area of breath 2.5 cm. (v) The anterior aspect of the whole right lower limb upto knee joint. (vi) Posterior aspect of whole right upper limb. (vii) The posterior aspect of the chest and abdomen i.e. in the back in right two third. (viii) The posterior aspect of the right lower limb in the thigh involving upto posterior-medial part sparing lateral one third of the back of thigh. (ix) The calf region of the left lower limb at place. (x) The anteriomedial aspect of right thigh sparring the lateral one third of right thigh. (xi) The anterio-medial part of the upper and middle one third of the right leg. (xii) Blisters are present in the cubital fossa on the left upper limb and left hypochondriuen. (ix) The calf region of the left lower limb at place. (x) The anteriomedial aspect of right thigh sparring the lateral one third of right thigh. (xi) The anterio-medial part of the upper and middle one third of the right leg. (xii) Blisters are present in the cubital fossa on the left upper limb and left hypochondriuen. Burn areas are covered with unhealthy granulation tissue and greenish coloured foul smelling slough and pus. Burn areas are epidermal and dermo epidermal in depth covering around 50-60 surface areas”. 14. The doctors had opined that the cause of death of the deceased was due to septicemia following burn injuries as described. All the injuries were ante-mortem in nature and epidermal and dermo-epidermal in depth coverings around 50-60% of the total body surface. Approximate time since death was 12-24 hours. PW-7 has also stated that he concurred with the opinion of Dr. D. Chakraborty and Prof. R. Chaliha, who had conducted the post-mortem examination on the dead body. 15. PW-8 Smt. Daibaki Talukdar has merely stated that on the date of the occurrence, at about 10-30 p.m. she had heard hue and cry coming from the house of the accused Dhanjit. She did not visit the place of occurrence on that night but in the next morning, she went to the house of accused Dhanjit and heard that Arati had committed suicide by burning herself. She died in the hospital after about 10 days of the occurrence. 16. PW-10 Sri Putul Deka was the attached Officer at the Mukalmua Police Station on 23/01/2013 when the ejahar lodged by Sri Champak Bora, was received. He is the Investigating Officer (IO) in this case. PW-10 has stated that on receipt of the ejahar, Mukalmua PS case No. 19/2013 was registered under Sections 498(A)/326/34 of IPC and he was entrusted with the responsibility to carry out the investigation. Prior to receipt of the ejahar, on 22/01/2013 at about 10-30 p.m. Dr. Pallab Kalita (PW-4) had informed the Officer-in-Charge, Mukalmua PS over telephone that one female had been brought to the hospital in half burnt condition. The said information had been entered in the Mukalmua PS GD entry No. 409 dated 22/01/2013 and thereafter, he, along with the Officer-in-Charge of Mukalmua PS, had visited the hospital. He had noticed that the patient was in a serious condition. The said information had been entered in the Mukalmua PS GD entry No. 409 dated 22/01/2013 and thereafter, he, along with the Officer-in-Charge of Mukalmua PS, had visited the hospital. He had noticed that the patient was in a serious condition. So a request was made to the doctor to record the dying declaration of the patient. As per their request, Dr. Pallab Kalita (PW-4) had recorded the ‘dying declaration’ of the patient. Ext. 2 is the dying declaration, which bears the signature of Dr. Pallab Kalita. Thereafter, the patient was referred to the GMCH. 17. PW-10 has also deposed as regards the usual steps taken by him so as to carry out investigation in connection with Mukalmua PS case No. 19/2013. He has stated that on 31/01/2013, he got the information that the injured has died and, therefore, he had prayed before the learned Court below for adding section 304(B) IPC, which was accordingly added. On 12/04/2013, he had handed over the Case Diary to the Officer-in-Charge of Mukalmua PS as he was transferred. 18. PW-9 Sri Ranjan Das is the second IO in this case, who had received the Case Diary after the transfer of PW-10. PW-9 has stated that he had carried out a part of the investigation and on completion of the same, he had submitted charge sheet against the accused persons under sections 304(B)/34 IPC. Ext. 4 is the charge sheet submitted by him which bears his signature. 19. After recording of evidence of prosecution side, the statement of the three accused persons were recorded under Section 313 Cr.P.C. While denying all the incriminating circumstances put to them, the appellants herein have stated that the victim had caught fire while cooking in the kitchen. However, no such plea was taken by co-accused Gondho Talukdar who had died during trial. After considering the materials available on record, the learned trial Court had convicted both the accused persons under Section 302 IPC and sentenced them, as aforesaid. 20. Mr. Pandit has argued that there is material contradiction in the testimony of PW-1 who is the informant in this case. According to the learned counsel, the oral ‘dying declaration’ brought on record by the PW-1, is also not reliable. Mr. 20. Mr. Pandit has argued that there is material contradiction in the testimony of PW-1 who is the informant in this case. According to the learned counsel, the oral ‘dying declaration’ brought on record by the PW-1, is also not reliable. Mr. Pandit submits that the ‘dying declaration’ of the victim (Ext-2) was not recorded by the PW-4 by adhering to all the procedural safe guards inasmuch as, no attempt was made to record the ‘dying declaration’ of the victim through a Magistrate. It is also the submission of Mr. Pandit that there is no mention in the ‘dying declaration’ as to whether the victim was in a fit, physical and mental state and, therefore, was able to speak or was she under the influence of any pain-killer/drug. Moreover, neither the signature of the victim nor that of any other witness was taken in the ‘dying declaration’. Under the circumstances, submits Mr. Pandit, both the ‘dying declarations’ were un-reliable and hence, ought to have been discarded by the learned trial Court. Mr. Pandit further submits that save and except the ‘dying declaration’, there is no other material available on record to establish the charges brought against the accused persons under section 302 of IPC. It is also the submission of Mr. Pandit that the learned trial Court has failed to deal with the explanation furnished by the accused persons under section 313 Cr.P.C. and to that extent, the impugned judgement stands vitiated. 21. Ms. S. Jahan, learned APP, Assam, on the other hand, submits that this is a case where there are multiple ‘dying declarations’ which corroborates one another and goes to show that the appellants had set the victim on fire. Contending that the charge brought against the accused/appellant Dhanjit Talukdar has been proved beyond all reasonable doubt, Ms. Jahan submits that there is no scope for this Court to interfere with the conviction of the appellants. In so far as the other appellant Anila Talukdar is concerned, the learned APP submits that the ‘oral dying declaration’ brought on record by PW-1, is the only material available to convict the appellant no. 2 and to that extent, the matter would call for deeper scrutiny by this court. 22. We have considered the arguments advanced by the learned counsel for both the sides and have also carefully gone through the evidence available on record. 23. 2 and to that extent, the matter would call for deeper scrutiny by this court. 22. We have considered the arguments advanced by the learned counsel for both the sides and have also carefully gone through the evidence available on record. 23. Medical evidence adduced on record by the prosecution side establishes beyond doubt that the victim had died due to complicacies arising out of burn injuries suffered by her in various parts of her body including the face, abdomen and limbs. The evidence available on record also goes to show that the incident occurred at around 9 p.m. on 22/01/2013. PW-9, who is the IO in this case, has deposed that on 22/01/2013, at around 10-35 p.m., Dr. Pallab Kalita (PW-4), who was serving as the Medical Officer-in-Charge of Mukalmua PHC had informed over phone that one female had been brought to the hospital in half burnt condition. PW-10 i.e. I.O. has stated that he had noticed that the patient was in a serious condition and so he had requested the doctor to record her dying declaration. PW-4 has stated that as per the request of the Police, PW-4 had recorded the dying declaration of the patient, which is Exhibit-2. 24. From a reading of Ext-2, we find that the dying declaration of the victim, as recorded by the PW-4, is to the following effect-“The injured woman alleged that she has been frequently tortured by in-laws and quarrel also took place today and her husband has put her on fire by pouring Kerosene Oil over her body today at around 9 p.m.” 25. From an analysis of the evidence available on record, we find that the incident occurred on 22/01/2013 at around 9 p.m. and soon thereafter, the victim was taken to the Mukalmua PHC. Within minutes of her arrival at the hospital, her dying declaration (Ext-2) was recorded by the on duty Medical Officer, as per request made by the Police. It is not in dispute that the victim was rushed to the Mukalmua PHC around 9-30 p.m. on 22/01/2013 and that the PW-4 was the Medical officer on duty at the Mukalmua PHC at that point of time. It has also not been disputed that the dying declaration (Ext-2) was, in fact, recorded by the PW-4. It is not in dispute that the victim was rushed to the Mukalmua PHC around 9-30 p.m. on 22/01/2013 and that the PW-4 was the Medical officer on duty at the Mukalmua PHC at that point of time. It has also not been disputed that the dying declaration (Ext-2) was, in fact, recorded by the PW-4. The objection of the appellants’ counsel is only on account of the facts that there are infirmities in Ext-2 for the reasons noted above. 26. PW-1 i.e. the informant in this case had brought on record the oral dying declaration of the victim. According to the PW-1, the dying declaration of the victim was to the effect that not only the appellant no.1 Sri Dhanjit Talukdar, who had dragged her and had thrown her to the floor but even the other accused persons had poured Kerosene on her body while accused Dhanjit was holding her. What is significant to note herein that while Ext-2 dying declaration implicates only the husband of the victim i.e. Dhanjit, whereas the oral dying declaration brought on record by the PW-1 implicates her in-laws as well. However, from a careful reading of the evidence on record, we find that the possibility of PW-1 exaggerating the version cannot be ruled out. That we say so because it is evident from the materials on record that the PW-1 did not go to the house of the accused on 22/01/2013. At around 10/11 a.m. of 23/01/2013, the PW-1 first went to the Mukalmua Police Station and lodged an ejahar only thereafter, he went to the GMCH where his sister was admitted. It was around noon when PW-1 had allegedly seen his sister. Then he heard his sister (victim) making the oral dying declaration. There is nothing on record to indicate the mental and physical condition of the victim at that point of time. Moreover, by that time, the PW-1 had evidently become aware of the dying declaration of the victim recorded by PW-4 in the previous evening. Therefore, the possibility of the PW-1 being influenced by such statement of the victim recorded by the PW-4 in the previous evening also cannot be ruled out. According to PW-1, his brother Ratul Bora and friends Nipan Kalita and Tridip Kalita were with him when the victim had made the dying declaration. However, as indicated above, none of these persons have been examined as witnesses. According to PW-1, his brother Ratul Bora and friends Nipan Kalita and Tridip Kalita were with him when the victim had made the dying declaration. However, as indicated above, none of these persons have been examined as witnesses. 27. While speaking to the doctor (PW-4), the victim did not implicate any other person except her husband. She did not name her in-laws while recording Ext-2. Therefore, we see no reason as to why the victim would implicate her in-laws subsequently. In the absence of any independent witness corroborating the oral dying declaration brought on record by the PW-1, we are of the view that it would be unsafe to rely upon such oral dying declaration where the in-laws of the victim had also been implicated for the first time. The same is, however, not true in case of the written dying declaration (Ext-2) recorded by the PW-4. We find that the dying declaration (Ext-2) was recorded by the doctor on duty and from the content of the same, we are inclined to hold that the same appears to be voluntary and truthful and, therefore, inspires the confidence of the Court. Moreover, it is also settled law that where there are more than one statement in the nature of dying declaration, the one first in point of time, must be preferred [see Sham Shankar Kankaria (supra)]. PW-4 himself being a doctor and an eye witness to the dying declaration and having found the victim fit to record her statement, there cannot be any doubt about the fact that the victim was in fact in a fit mental and physical state at the time of recording of her statement. 28. The principles governing the probative value of ‘dying declaration’ have been discussed and summed up in the case of Paniben(Smt) Vs. State of Gujarat reported in (1992) 2SCC 474, wherein the Hon’ble Supreme Court had culled out the following principles :- “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of M.P. (1976) 2 SCC 104). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416 ; Ramawati Devi v. State of Bihar, AIR 1983 SC 164 ). (Mannu Raja v. State of M.P. (1976) 2 SCC 104). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416 ; Ramawati Devi v. State of Bihar, AIR 1983 SC 164 ). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P., AIR 1982 SC 1021 ). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P., 1981 scc (Crl) 581). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617 ). (viii) Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505 ). (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State, AIR 1988 SC 912 ). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989 SC 1519 ).” 29. Following the decision laid down in the case of Paniben (Supra), the Hon’ble Supreme Court has further held in the case of Sham Shankar Kankaria Vs. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989 SC 1519 ).” 29. Following the decision laid down in the case of Paniben (Supra), the Hon’ble Supreme Court has further held in the case of Sham Shankar Kankaria Vs. State of Maharashtra reported in (2006) 13 SCC 165 that although dying declaration is entitled to great weight, it has to be noted that the accused has no power of cross examination, which power is required for eliciting the truth. Therefore, the Court has to be on guard that the statement of the deceased is not as a result of either tutoring or prompting or a product of imagination. The Court must also be satisfied that the deceased was in a fit state of mind. 30. From an examination of evidence of PW-4, we find that the dying declaration was not recorded in presence of any family members of the victim. Considering the promptness with which the dying declaration was recorded and the fact that the same was recorded by a Doctor, who was on duty, it will be difficult to presume that the statement of the victim would be recorded by a doctor without assessing the physical and mental state of the victim or without satisfying himself as to the voluntariness of the declaration. The Doctor (PW-4) has stated the reason why the signature or thumb impression of the victim would not be obtained in the statement, which is because of the burn injuries suffered by her in her hands. Since the dying declaration was recorded within minutes after the victim was taken to the hospital, the chances of her being under the influence of any sedative medicine or pain-killer, also appears to be practically nil. In view of the above, we are not inclined to accept the argument of learned counsel for the appellants that the dying declaration of the victim was not recorded by following proper procedure. 31. Law is well settled that a ‘dying declaration’ if found to be truthful and voluntary and recorded in accordance with law, can become the basis of conviction. 31. Law is well settled that a ‘dying declaration’ if found to be truthful and voluntary and recorded in accordance with law, can become the basis of conviction. In the case of Jayamma and another Vs, State of Karnataka reported in (2021) 6 SCC 213 , the Supreme Court has observed that presence of a Judicial or Executive Magistrate to record dying declaration is not compulsory. It was only a rule of prudence that the dying declaration preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case, if the facts and circumstances of the case so permits. 32. On a meticulous scanning of the evidence on record, we find that the dying declaration (Ext-2) is both reliable and inspires the confidence of this Court. Ext.-2 clearly implicates the appellant No. 1 Dhanjit Talukdar of having set the victim ablaze. Although, both the appellants have taken a plea in their statement under Section 313 Cr.P.C. that the victim had caught fire while cooking , yet, no such statement was made by the father-in-law of the victim, viz. Gondho Talukdar, against whom the trial Court had also framed charges. Accused Gondho Talukdar was at home when the incident happened. Therefore, the explanation furnished by the accused/appellant does not appear to be plausible and hence, does not merit acceptance by this Court. We, however, hasten to add herein that although there is sufficient basis to sustain the conviction of the appellant No.1 Sri Dhanjit Talukdar, including Ext-2, yet, if the dying declaration brought on record by the PW-1 is discarded, then we do not find anything to sustain the conviction of appellant No. 2 Smt. Anila Talukdar. 33. What is to be noticed herein that both the appellants have been acquitted by the learned trial Court in respect of the charges framed under Section 304 IPC and there is no appeal against the order of acquittal. As such, the consideration of this Court in the present appeal must remain confined only to the charges brought under section 302 IPC. 34. As such, the consideration of this Court in the present appeal must remain confined only to the charges brought under section 302 IPC. 34. From a careful reading of the impugned judgement, we do not find anything to indicate that there is a finding of common intent on the part of both the appellants to set the victim on fire nor is there any finding ascribing specific role to both the appellants in committing an offence under section 302 IPC. 35. Mr. Pandit has relied upon the decision rendered in the case of State of Rajasthan Vs. Teg Bahadur & Ors. reported in (2004) 13 SCC 300 , Surinder Kumar Vs. State of Haryana reported in (2011) 10 SCC 173 and State of UP Vs. Shishupal Singh reported in 1992 Supp (3) SCC 60 in support of his arguments that the dying declaration Ext-2 cannot be the basis of conviction of the appellant no. 1. However, on a reading of those decisions of the Hon’ble Supreme Court, we find that those judgements were rendered in the facts of those cases and, therefore, the same in our considered opinion, would not have any relevant bearing in the facts and circumstances of the present case. 36. For the reasons stated herein above, we affirm the conviction and sentence awarded to the appellant No. 1 Dhanjit Talukdar by the learned trial Court. We, however, set aside the conviction of the appellant No. 2 Smt. Anila Talukdar and give her acquittal on benefit of doubt. 37. We are informed that Smt. Anila Talukdar is presently in jail. She be released forthwith, if her custody is not required in connection with any other case. Send back the LCR.