JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant herein against the impugned judgment dated 28/09/2013 passed by learned 3rd Additional Sessions Judge, Durg in Sessions Trial No. 254/2011 whereby he has been convicted for offence punishable under Section 302 of IPC and he has been sentenced to undergo life imprisonment with fine of Rs. 500/- and in default of payment of fine, additional R.I. for 1 month. 2. Case of the prosecution, in brief, is that in the intervening night of 29-30/07/2011 near Teen-Darshan Temple, Boudh-Vihar, Camp-1, Bhilai, the appellant herein poured kerosene oil over her husband Khemraj Shyamkunwar and set him ablaze and caused his death thereby, committed the aforesaid offence. 3. Further case of the prosecution is that appellant and deceased had entered into a love marriage on account of which family members of the deceased were not happy and they did not even participate in their wedding. On the night of the incident, deceased came home after consuming liqour on account of which some dispute arose between the appellant and his younger brother Dinesh Kumar Shyamkunwar (PW-5) and thereafter, all the family members went to sleep. Late at night, appellant informed Bhoomiraj Shyamkunwar (PW-1), brother of the deceased, that her husband has set himself on fire and he has suffered burn injuries. Thereafter, fire was extinguished and appellant, who had suffered severe burn injuries, was taken to the District Hospital, Durg for treatment. He was examined by Dr. R.K. Naik (PW-15) and as per the MLC report (Ex.P/16) though he had suffered 90-95% burn injuries but he was in a conscious condition and so, Dr. R.K. Naik (PW-15), after certifying that he was physically and mentally fit to give his dying declaration, himself proceeded to record the dying declaration of the deceased vide Ex.P/18 at about 05:10 AM on 30/07/2011 in which the deceased stated that his wife (appellant herein) poured kerosene oil over him and set him ablaze. On the same day, at about 11:45 PM, deceased succumbed to his injuries which was informed to the Police and merg intimation was registered vide Ex.P/9 and P/10. Inquest was conducted vide Ex.P/1 and the dead body was subjected to postmortem which was conducted by Dr. On the same day, at about 11:45 PM, deceased succumbed to his injuries which was informed to the Police and merg intimation was registered vide Ex.P/9 and P/10. Inquest was conducted vide Ex.P/1 and the dead body was subjected to postmortem which was conducted by Dr. A.K. Mishra (PW-11) and as per the postmortem report (Ex.P/8), cause of death is said to be shock on account of 100 % burns. First information report was lodged against the appellant vide Ex.P/12 and after due investigation, appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 16 witnesses and brought on record 20 documents. Statement of the appellant was taken under Section 313 of Cr.P.C. wherein she denied guilt, however, she examined none in her defence and only brought 3 documents on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, proceeded to convict the appellant for offence punishable under Section 302 of IPC relying upon the dying declaration (Ex.P/18) given by him to Dr. R.K. Naik (PW-15) as well as upon the oral dying declaration allegedly given by the deceased to his brothers Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamkunwar (PW-5) and sentenced her as aforesaid. 6. Mr. Manoj Mishra, learned counsel for the appellant, would submit that the dying declaration (Ex.P/18) ought to have been recorded by an Executive Magistrate and no such endeavour was made by the prosecution to get the deceased examined by Executive Magistrate, therefore, Ex.P/18 is not trustworthy and cannot be made basis of conviction of the appellant. 6. Mr. Manoj Mishra, learned counsel for the appellant, would submit that the dying declaration (Ex.P/18) ought to have been recorded by an Executive Magistrate and no such endeavour was made by the prosecution to get the deceased examined by Executive Magistrate, therefore, Ex.P/18 is not trustworthy and cannot be made basis of conviction of the appellant. He would further submit that so far as the oral dying declaration allegedly given by the deceased to Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamkunwar (PW-5) is concerned, both of them have clearly stated that just after the incident, deceased told them that he himself poured kerosene oil and lit fire and moreover, appellant has clearly explained in her statement under Section 313 of Cr.P.C. that Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamkunwar (PW-5), being the brothers of deceased, were not happy because appellant and deceased had performed love marriage and in order to grab her husband's property, they have falsely implicated the appellant in the crime in question. As such, the instant appeal be allowed and she be acquitted of the charge framed against her as she has remained in jail since 03/08/2011. 7. Per contra, Mr. Sameer Uraon, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC, as such, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. So far as nature of death of deceased Khemraj Shyamkunwar is concerned, learned trial Court has not recorded a specific finding, however, considering the nature of burn injuries suffered by the deceased on account of which he died, it would be appropriate to consider the question of nature of death of the deceased as well as the question as to whether the appellant is the author of crime, together. 10. 10. The first and foremost argument raised by learned counsel for the appellant is that appellant had no motive for commission of offence rather there is motive on the part of the prosecution witnesses to falsely implicate the appellant as it is admitted position on record that appellant and deceased had performed love marriage due to which family members of the deceased were not happy and they did not even participate in their wedding. As per the statements of brothers of the deceased namely Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamkunwar (PW-5), they were not happy with the marriage of appellant and deceased and they did not even participate in their wedding rituals. Moreover, it is also established on record that relationship between the appellant and deceased was cordial and nothing has been brought on record to hold that their relationship was bitter or that they had any differences with each other. As such, motive has not been established by the prosecution except that deceased was an addict of liqour and used to consume liqour and quarrelled with the appellant. Even on the date of offence, deceased came home in an intoxicated condition and got into a quarrel with his younger brother Dinesh Kumar Shyamkunwar (PW-5) which has also been stated by Bhumidar Shyamkunwar (PW- 1) and son of the appellant and deceased namely Jairaj Shyamkunwar (PW-2). As such, motive on the part of the appellant to commit the murder of her husband has not been established. On the other hand, it is established that on the date of offence, since deceased came home under the influence of liqour, he got into a dispute with his younger brother Dinesh Kumar Shyamkunwar (PW-5). 11. Now, the trial Court has relied upon dying declaration (Ex.P/18) given by the deceased to Dr. R.K. Naik (PW-15) as well as upon the oral dying declaration allegedly given by the deceased to his brothers Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamkunwar (PW-5). We shall consider both of these circumstances one-by-one. Dying declaration (Ex.P/18): 12. Admittedly, dying declaration (Ex.P/18) has been recorded by Dr. R.K. Naik (PW-15), medical officer at District Hospital, Durg on 30/07/2011 at 05:10 AM. At about 5 AM, the concerned Station House Officer sought opinion from Dr. R.K. Naik (PW-15) vide Ex.P/17 as to whether the deceased was in a physically and mentally fit condition to give his dying declaration and Dr. R.K. Naik (PW-15), medical officer at District Hospital, Durg on 30/07/2011 at 05:10 AM. At about 5 AM, the concerned Station House Officer sought opinion from Dr. R.K. Naik (PW-15) vide Ex.P/17 as to whether the deceased was in a physically and mentally fit condition to give his dying declaration and Dr. R.K. Naik (PW-15) has certified that deceased was physically and mentally fit to give his dying declaration. Thereafter, Dr. R.K. Naik (PW-15) himself proceeded to record the dying declaration of the deceased and there is no such document on record holding that at any point of time, the concerned Station House Officer requested the Executive Magistrate to record dying declaration of the deceased. Further, it has also not been brought on record that there was no time to wait for the Executive Magistrate to record dying declaration and apparently, there was enough time to wait for an Executive Magistrate to record dying declaration as the deceased died on 30/07/2011 at 11:45 AM. 13. In the matter of Ramakant Mishra alias Lalu and Others vs. State of Uttar Pradesh, (2015) 8 SCC 299 . Their Lordshpis of the Supreme Court have laid down the procedure to be followed for recording dying declaration of a person who is admitted in the Hospital in an injured condition, having sustained burn injuries and held in paragraphs 10 and 11 as under: “10. When a person makes a statement while being aware of the prospect that his death is imminent and proximate, such a statement assumes a probative value which is almost unassailable, unlike other statements which he may have made earlier, when death was not lurking around, indicating the cause of his death. That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a dying declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration. In the case before us, the statement, if made by the deceased, would qualify to be treated as a dying declaration because she was admitted in the hospital, having sustained 90-95 per cent burn injuries and because of these grave burn injuries, she would be expecting to shortly breathe her last. 11. In the case before us, the statement, if made by the deceased, would qualify to be treated as a dying declaration because she was admitted in the hospital, having sustained 90-95 per cent burn injuries and because of these grave burn injuries, she would be expecting to shortly breathe her last. 11. The central question, however, remains as to whether the alleged dying declaration attracts authencity. Since the prosecution has succeeded in showing/proving by preponderance of probability that a dowry death has occurred, the burden of proving innocence has shifted to the accused. It appears to us to be unexceptionable that whenever a person is brought to a hospital in an injured state which indicates foul play, the hospital authorities are enjoined to treat it as a medico-legal case and inform the police. If the doctor, who has attended the injured, is of the opinion that death is likely to ensue, it is essential for him to immediately report the case to the police; any delay in doing so will almost never be brooked. The police in turn should be alive to the need to record a declaration/statement of the injured person, by pursuing a procedure which would make the recording of it beyond the pale of doubt. This is why an investigating officer (IO) is expected to alert the jurisdictional Magistrate of the occurrence, who in turn should immediately examine the injured. When this procedure is adopted, conditional on the certification of a doctor that the injured is in a fit state to make a statement, a dying declaration assumes incontrovertible evidentiary value. We cannot conceive of a more important duty cast on the Magistrate, since the life and death of a human being is of paramount importance. We think that only if it is impossible for the Magistrate to personally perform this duty, should he depute another senior official. Non-adherence to this procedure would needlessly and avoidably cast a shadow on the recording of a dying declaration. The prosecution, therefore, would be expected to prove that every step was diligently complied with. The prosecution would have to produce the doctor or the medical authority to establish that on the examination of the injured/deceased, the police had been immediately informed. Non-adherence to this procedure would needlessly and avoidably cast a shadow on the recording of a dying declaration. The prosecution, therefore, would be expected to prove that every step was diligently complied with. The prosecution would have to produce the doctor or the medical authority to establish that on the examination of the injured/deceased, the police had been immediately informed. The IO who was so informed would then have to testify that he alerted the Magistrate, on whose non-availability, some responsible person was deputed for the purpose of recording the dying declaration. We are not in any manner of doubt that where medical opinion is to the effect that a person is facing death as a consequence of unnatural events, the responsibility of the Magistrate to record the statement far outweighs any other responsibility. There may be instances where there was no time to follow this procedure, but that does not seem to be what has transpired in the case in hand. In cases where some other person is stated to be recipient of a dying declaration, doubts may reasonably arise.” 14. Reverting to the facts of the present case in light of the principles of law laid down by the Supreme Court in Ramakant Mishra (supra), it is quite vivid that in the instant case also, Dr. R.K. Naik (PW-15) has certified vide Ex.P/17 that deceased was in a physically and mentally fit state of mind to give her dying declaration, but there is no evidence on record that at any point of time, the Investigating Officer Nanku Singh (PW-14) has requested the Executive Magistate to come and record dying declaration of the deceased and moreover, there is no such evidence that there was lack of time to call the Executive Magistrate and for him to reach and record the dying declaration or that there was imminent danger of death of the deceased and consequently, Dr. R.K. Naik (PW-15) proceeded to record dying declaration vide Ex.P/18 as apparently, the dying declaration (Ex.P/18) was recorded on 30/07/2011 at 05:10 AM whereas the deceased succumbed to his injuries and died at 11:45 AM. As such, prosecution has failed to explain as to why the Investigating Officer failed to approach the Executive Magistrate for recording dying declaration (Ex.P/18) and also failed to establish that there was no time to wait for the Executive Magistrate to record dying declaration and therefore, Dr. As such, prosecution has failed to explain as to why the Investigating Officer failed to approach the Executive Magistrate for recording dying declaration (Ex.P/18) and also failed to establish that there was no time to wait for the Executive Magistrate to record dying declaration and therefore, Dr. R.K. Naik (PW-15) proceeded to record his dying declaration. In that view of the matter, the dying declaration (Ex.P/18) of the deceased recorded by Dr. R.K. Naik (PW-15) is doubtful and does not inspire confidence in absence of corroboration and prosecution has relied upon oral dying declaration as a corroborative piece of evidence which we will discuss in the later paragraphs. Apart from this ground, dying declaration (Ex.P/18) is also not acceptable to us on consideration of oral and circumstantial evidence available on record. Oral dying declaration: 15. In the matter of Darshana Devi vs. State of Punjab, 1995 Supp. (4) SCC 126 with regard to oral dying declaration, their Lordships of the Supreme Court have held that an oral dying declaration can form basis of evidence in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. 16. Similarly, in the matter of Arun Bhanudas Pawar vs. State of Maharashtra, (2008) 11 SCC 232 it has been held by their Lordships of the Supreme Court that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination. 17. Furthermore, the Supreme Court, in the matter of Walkhom Yaima Singh vs. State of Manipur, (2011) 13 SCC 125 has held that there can be no dispute that the dying declaration can be the sole basis for conviction, however, such dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. It has also been held that oral dying declaration is a weak kind of evidence. 18. It has also been held that oral dying declaration is a weak kind of evidence. 18. The principle emerging out from the aforesaid decisions rendered by their Lordships of the Supreme Court is that oral dying declaration is a weak kind of evidence and it can only be made the basis of conviction, if it inspires full confidence of the Court and if the Court is satisfied that the maker of the said oral dying declaration was in a fit state of mind at the time of making it and that it was not an outcome of tutoring, prompting or imagination and where the dying declaration is suspicious and there is no other corroborative piece of evidence on record, it would be unsafe for the Court to record conviction on the solitary evidence of such oral dying declaration. 19. In the instant case, appellant has allegedly given oral dying declaration to his brothers Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamkunwar (PW-5). However, Bhumidar Shyamkunwar (PW-1) has refuted that any such dying declaration was given to him rather in paragraph 12 of his statement, he has clearly stated that when he reached into the room of the deceased and when he asked the deceased as to why he set himself on fire, the deceased replied to let it go as he was drunk and did it in an intoxicated condition. As such, the testimony of Bhumidar Shyamkar (PW-1) is not supportive to the case of the prosecution rather it supports the case of the defence. 20. Dinesh Kumar Shyamkunwar (PW-5), younger brother of the deceased, has clearly stated before the Court that on the date of the offence, deceased came home under the influence of liqour and he was abusing and since guests had come to their home, he asked the deceased not to abuse in the house on account of which, both of them got into a light argument and thereafter, everyone went to their rooms and after eating dinner, they went to sleep. Thereafter, at night, all of them woke up hearing the cries of the deceased and when they went to his room they found that he was burning in fire. They extinguished the fire, informed the police and thereafter, admitted the deceased into District Hospital, Durg. Thereafter, at night, all of them woke up hearing the cries of the deceased and when they went to his room they found that he was burning in fire. They extinguished the fire, informed the police and thereafter, admitted the deceased into District Hospital, Durg. Then, in paragraph 4, he has stated that he had gone to the Hospital and while he was making the deceased drink water, he told him that the appellant herein has poured kerosene oil over him and set him ablaze. However, this part of oral dying declaration does not inspire confidence for the reason that in the early morning, dying declaration (Ex.P/18) was also recorded and also for the reason that prior to some hours of the incident, Dinesh Kumar Shyamkunwar (PW-5) engaged into a quarrel with the deceased. As such, the oral dying declaration allegedly given by the deceased to Bhumidar Shyamkunwar (PW-1) and Dinesh Kumar Shyamkunwar (PW-5) does not appear to be truthful and trustworthy and it is of no use to the prosecution. Moreover, Jairaj Shyamkunwar (PW-2), son of appellant and deceased, has also not supported the case of the prosecution rather he has supported the defence version and has stated that when he asked his father as to how he got burnt then he informed him that he was in a state of intoxication and he suffered injuries. 21. Thus, in view of the aforesaid legal analysis, we are of the considered opinion that prosecution has failed to prove the aforesaid incriminating circumstances against the appellant and as such, the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC. We hereby set aside the impugned judgment of conviction and order of sentence and acquit the appellant by extending her the benefit of doubt. She be released forthwith, if her detention is not required in any other case. 22. Accordingly, this criminal appeal stands allowed. 23. Let a certified copy of this judgment be sent to the concerned trial Court as well as the jail authorities for necessary information and compliance.