JUDGMENT : R.Mukhopadhyay, J. Heard Mr. R.S. Mazumdar, learned senior counsel for the appellant and Mr. Manoj Kr. Mishra, learned A.P.P. 2. This appeal is directed against the judgment of conviction and the order of sentence dated 19.08.2002 passed in Sessions Trial No. 61/ 1998 by Shri Akhileshwar Jha, learned Additional District & Sessions Judge, Fast Track Court No.II, Jamshedpur, East Singhbhum, whereby and whereunder, the appellant has been convicted for the offences under sections 304(B) and 498(A) of the INDIAN PENAL CODE as well as under section 4 of the Dowry Prohibition Act and has been sentenced to undergo imprisonment for life for the offence under section 304(B) of the INDIAN PENAL CODE , SI for three years along with a fine of Rs.10,000/- for the offence under section 498(A) of the INDIAN PENAL CODE and in default in payment of fine to undergo SI for additional two months. The appellant has also been sentenced to undergo imprisonment for a period of two years along with a fine of Rs.10,000/- for the offence under section 4 of the Dowry Prohibition Act and in default in payment of fine to undergo SI for two months. 3. The prosecution case arises out of the fardbeyan of Permila Mishra (deceased) recorded on 27.11.1997 in which it has been stated that the marriage of the informant was solemnized with Vijay Mishra in the month of May, 1997 after which she had come to her matrimonial home. It has been alleged that the mother-in-law of the informant always pressurized her to bring dowry and this fact was informed to the parents of the informant by the informant whenever she visited her parents’ place. It has been alleged that on 26.11.1997 at about 3:30 p.m. while the informant was lighting the hearth she felt her saree having caught fire from the back and when she moved back side she saw her mother-in-law holding a match box in her hand. When the informant had asked her mother-in-law as to why she had set her on fire, mother-in-law of the informant raised an alarm at which persons of the locality assembled and poured water upon the informant in order to douse the fire. 4. Based on the aforesaid allegations, Parsudih PS Case No. 193 of 1997 was instituted under sections 498(A), 307, 326 of the INDIAN PENAL CODE and section 3/4 of the Dowry Prohibition Act. 4. Based on the aforesaid allegations, Parsudih PS Case No. 193 of 1997 was instituted under sections 498(A), 307, 326 of the INDIAN PENAL CODE and section 3/4 of the Dowry Prohibition Act. On completion of investigation charge-sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 61/ 1998. The charge was framed against the appellant and the husband of the informant namely Vijay Mishra under section 498(A)/34, 304(B)/34 of the INDIAN PENAL CODE and sections 3/4 of the Dowry Prohibition Act which was read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried. The husband of the informant namely Vijay Mishra had died after his conviction was recorded. 5. The prosecution has examined as many as nine witnesses in support of its case. 6. PW-1 Birendra Narayan Pandey is the father of the deceased who has stated that the marriage of his daughter was solemnized with Vijay Mishra on 09.05.1997 and at the time of marriage dowry was given as per his capacity. After marriage whenever his daughter came to his home she seemed melancholic. When he asked about the reason his daughter had disclosed that her mother-in-law and her husband regularly used to demand dowry comprising of a fridge, a gold chain and Rs.5,000/-. In spite of his financial condition he had assured the father of his son-in-law that the demands shall be fulfilled. In spite of the same his daughter was continued to be tortured at her matrimonial home. He has stated that on 26.11.1997 at about 06:00 p.m. he was in his house when the mother-in-law of his daughter came on a two- wheeler and informed his younger daughter that her sister has been burnt. The mother-in-law of his daughter did not disclose as to where his daughter has been admitted but subsequently on getting information he had gone to TMH Burn Centre along with his wife. On 27.11.1997 permission was granted to him and his wife to meet his daughter but on account of his illness it was his wife who had met his daughter and she disclosed that his daughter has been burnt. On 27.11.1997 permission was granted to him and his wife to meet his daughter but on account of his illness it was his wife who had met his daughter and she disclosed that his daughter has been burnt. The police had come in the ward and had recorded the statement of his daughter in which she had signed and the signature has been proved and marked as Ext.1. His daughter had disclosed that her mother-in-law had set her ablaze and when she raised alarm the mother-in-law did not come to save her. On 01.12.1997 at about 10:45 p.m. in course of treatment his daughter died at TMH Burn Centre. In cross-examination he has deposed that he had not heard the statement of his daughter when it was recorded since he is hard of hearing but he had read the said statement though not in its entirety. In the said statement it was not mentioned that it was the mother-in-law who had set ablaze his daughter. 7. PW-2 Sunil Kumar Sharma has stated that on hearing a commotion he had gone to the house of Vijay Mishra where he had seen the mother of Vijay Mishra pouring water on her daughter-in-law as the daughter-in-law had suffered burn injuries. Wife of Vijay Mishra had disclosed that she had caught fire when she was cooking food. In cross-examination he has deposed that the deceased had not stated before him as to who had set her ablaze. She had also not made any complaint at the time of going to the hospital. 8. PW-3 Raj Kumari Devi is the mother of the deceased who has stated that on 26.11.1997 at 06:00 p.m. Prafulla Mishra had come to her house and had asked her younger daughter Kiran as to whether Pramila Mishra has come or not. When her younger daughter asked the reason she had disclosed that Pramila had suffered burn injuries. Later on she came to know that her daughter has been admitted in TMH but the Doctor did not permit her to meet her daughter as she was in a critical condition. When her younger daughter asked the reason she had disclosed that Pramila had suffered burn injuries. Later on she came to know that her daughter has been admitted in TMH but the Doctor did not permit her to meet her daughter as she was in a critical condition. However, on the same day at 05:00 p.m. on the permission given by the Doctor she had met her who was in a conscious state and had disclosed about the demand made by her husband and mother-in-law and the torture committed upon her and she had also disclosed that when she was burning the oven her saree was put on fire by her mother-in-law Prafulla Devi after which she had fled away. In cross-examination she has deposed that when her daughter was burning her mother-in-law was trying to douse the fire by pouring water over her. Her daughter had also disclosed that when she was shouting for help after being burnt Prafulla Devi had a nonchalant attitude and had showed her inclination to let her burn. 9. PW-4 Sakaldeo Singh has proved his signature in the inquest report which has been marked as Ext.2. 10. PW-5 Rajesh Kumar Pandey is the brother of the deceased who has stated that his sister Kiran Kumari had disclosed that the mother-in-law of Pramila had come and had stated about Pramila suffering from burn injuries. Later on, due to a search it came to light that his sister has been admitted in the Burn Centre at TMH. When he had seen his sister from behind a glass panel she was unconscious. On the next day, his sister was conscious and she had disclosed to her mother that when she was trying to light up the oven her mother-in-law with a match box had put her on fire and when she started raising an alarm she found her mother-in-law standing without any reaction. He has stated that after marriage for a period of one year his sister was kept properly by the accused persons but later on the demand of dowry surfaced. In cross-examination he has deposed that prior to the death of his sister she was tortured and the demand was also made but no complaint was made anywhere regarding the same. He does not remember as to who had poured water upon his sister. 11. In cross-examination he has deposed that prior to the death of his sister she was tortured and the demand was also made but no complaint was made anywhere regarding the same. He does not remember as to who had poured water upon his sister. 11. PW-6 Kiran Kumari is the sister of the deceased who has stated that on 26.11.1997 she was standing outside her house when Prafulla Devi came and disclosed that her sister has been burnt. She had thereafter left. This disclosure was stated by her to her brother and parents and after much effort she could learn that her sister has been admitted in TMH. She and her parents had seen her sister from the glass panel and she was in an unconscious state. On 27.11.1997 her mother had met her sister who had disclosed that when she was lighting her oven her mother-in-law had put fire on her saree as a result of which she suffered burn injuries. When she had raised an alarm her mother- in-law had left the said place. She has stated that her sister was never happy after her marriage on account of the demand of dowry and torture being committed upon her by her in-laws. On 01.12.1997 her sister died in the hospital in course of treatment. In cross-examination she has deposed that before her death she had not met her sister. Her sister was admitted in the hospital for five days and during these days she had thrice gone to the hospital. She had not stated to the police that her sister had disclosed something to her. She had only stated that on account of non-fulfillment of the demand of dowry her sister was being tortured. 12. PW-7 Parvati Devi has stated that on hearing a commotion she had rushed to the house of Vijay Mishra and had found the wife of Vijay Mishra in a burning state and her mother-in-law was pouring water upon her. In cross-examination she has deposed that the deceased had disclosed that she was wearing a tercotton saree and while she was putting fire on the cow dung her saree caught fire and she got herself burnt. The mother-in-law of the deceased was pouring water and was shouting as a result of which she and the others had reached the place of occurrence. 13. The mother-in-law of the deceased was pouring water and was shouting as a result of which she and the others had reached the place of occurrence. 13. PW-8 Manoj Kumar Poddar has stated that on hearing an alarm he had gone to the house of Vijay Mishra where he found the wife of Vijay Mishra in a burnt condition and the mother of Vijay Mishra pouring water over her. In cross-examination he has deposed that the mother of Vijay Mishra was pouring water in order to save her daughter-in-law. The wife of Vijay Mishra had disclosed that while she was putting fire on the oven her saree caught fire and she got burn injuries. 14. PW-9 Mahendra Pratap Singh was posted as a Sub Inspector of Police in Parsudih PS and on 27.11.1997 investigation of Parsudih PS Case No. 193/97 was handed over to him by the officer-in-charge. He had perused the fardbeyan and he has proved the same which has been marked as Ext.3. The formal FIR has been proved and marked as Ext.4. After taking over investigation he had inspected the place of occurrence and had also recorded the statement of Ashok Kumar Pandey. The place of occurrence is at village Golpahari in the pucca house of Vijay Mishra and adjacent to the courtyard there is an open verandah where an oven was found and near this oven when the deceased was putting fire on the cow dung the accused Prafulla Devi had set the saree of the deceased on fire. He had also recorded the statements of the persons of the locality. He had tried to record the statement of the informant but she was not in a position to give her statement. On 01.12.1997 in course of treatment the informant had died. He had prepared the inquest report and had sent the body to MGM Hospital for post-mortem. He had received the post-mortem report and on completion of investigation had submitted charge-sheet against Vijay Mishra and Prafulla Devi under sections 498(A), 304(B) of the INDIAN PENAL CODE and sections 3/4 of the Dowry Prohibition Act. In cross-examination he has deposed that before her death he had met Pramila Devi but she was not in a position to record her statement. He had tried to record her statement on 29.11.1997, 30.11.1997 and 01.12.1997 but the deceased was in an unconscious state. In cross-examination he has deposed that before her death he had met Pramila Devi but she was not in a position to record her statement. He had tried to record her statement on 29.11.1997, 30.11.1997 and 01.12.1997 but the deceased was in an unconscious state. The witness Rajkumari Devi in her statement had disclosed that her daughter was lighting up the oven when her mother-in-law had put fire on her saree. 15. The statement of the accused was recorded under section 313 of the Code of Criminal Procedure in which she has denied her complicity in the commission of the offence. 16. It has been submitted by Mr. R.S. Mazumdar, the learned senior counsel for the appellant that the entire case of the prosecution is based upon the dying declaration but the said dying declaration does not have any evidentiary value on account of the fact that the scribe of the said dying declaration has not been examined by the prosecution. It has further been submitted that the Doctor who had treated the deceased and the Doctor who had conducted the autopsy have also not been examined by the prosecution and even the post-mortem report has not been exhibited. Mr. Mazumdar, the learned senior counsel for the appellant has referred to the evidence of PW-7 and PW-8 who are the neighbours of the deceased and who have categorically stated that it was the appellant who was making efforts to douse the fire by pouring water upon the deceased. It has therefore been submitted that the deceased had died on account of an accident as unfortunately her saree caught fire while she was engaged in putting fire on the oven and therefore it cannot be said to be a homicidal death but it was an accidental death. The learned senior counsel in support of his contention that the dying declaration in the facts and circumstances of the present case cannot form the basis for conviction has relied upon the case of “ Manjunath and Others versus State of Karnataka ” reported in 2023 SCC OnLine SC 1421 . 17. Mr. Manoj Kr. The learned senior counsel in support of his contention that the dying declaration in the facts and circumstances of the present case cannot form the basis for conviction has relied upon the case of “ Manjunath and Others versus State of Karnataka ” reported in 2023 SCC OnLine SC 1421 . 17. Mr. Manoj Kr. Mishra, the learned A.P.P. has submitted that the evidence of PW-1, PW-3, PW-5 and PW-6 clearly indicates about the role played by the appellant in putting her daughter-in-law on fire and the conduct of the appellant furthermore enhances her involvement in such offence as immediately after informing the matter to PW-6 she had fled away from the scene. 18. We have heard the learned counsel for the respective parties and have also perused the trial Court records. 19. The fardbeyan of the informant which has been treated to be the dying declaration is the fulcrum upon which the case of the prosecution revolves. In her so-called dying declaration it has been mentioned by the informant in details about the demand of dowry which was made by the appellant and the husband of the informant after the marriage and the manner in which she was tortured by the accused persons. The informant has also stated about in what manner the appellant had put her saree on fire while she was trying to light up the oven for the purposes of cooking. The fardbeyan of the informant was recorded by Krishna Prasad, Sub Inspector of Police at Bistupur PS. It has not been mentioned in the fardbeyan as to whether the informant was in a position to record the fardbeyan or as to whether any Doctor was present who had permitted the recording of fardbeyan. Apart from such glaring irregularities the person who had recorded the fardbeyan was not produced by the prosecution as a witness. The fardbeyan therefore cannot be treated to be a dying declaration in view of its inherent disqualification as narrated above. 20. In this context, reference is made to the case of “ Manjunath and Others versus State of Karnataka ” (supra) wherein it has been held as follows: “11.10 Examination of the person who reduced into writ- ing, the dying declaration, is essential. Particularly, in the absence of any explanation forthcoming for the production of evidence is what stands observed in Govind Narain v. State of Rajasthan. Particularly, in the absence of any explanation forthcoming for the production of evidence is what stands observed in Govind Narain v. State of Rajasthan. 11.10.1 In fact, in Kans Raj v. State of Punjab it was held:— “11. …To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.” and; In Sudhakar v. State of Maharashtra, this Court categorically observed:— “5. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by ex- amining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof.” 19. The reason for the non-examination of the scribe, however, does not bear itself. Nowhere has it been stated, either by the trial court or the High Court that scribe could not be examined for which or what particular reason. In Sudhakar (supra) this Court has held that if the original dying declaration is lost and therefore not available, the prosecution could adduce secondary evidence in support thereof. The logical extension of such holding would be that, if the scribe, for reasons beyond control, such as incapacitation or death, would be unavailable, it would be open for the prosecution to take necessary aid of secondary evidence. That not being the case however, such unexplained non-examination would, as a consequence of the holdings in Govind Narain (supra), Kans Raj (supra) and Sudhakar (supra), render the case to be doubtful if not, land a fatal blow to the prosecution case. CONCLUSIONS 29. Our conclusions, therefore, are thus: 29.1 The dying declaration, although undoubtedly a sub- stantive piece of evidence upon which reliance can be placed, in the present facts is rendered nugatory as the person who took down such declaration was not examined, nor did the police officer (PW19) endorse the said docu- ment with details of who took down the declaration. Our conclusions, therefore, are thus: 29.1 The dying declaration, although undoubtedly a sub- stantive piece of evidence upon which reliance can be placed, in the present facts is rendered nugatory as the person who took down such declaration was not examined, nor did the police officer (PW19) endorse the said docu- ment with details of who took down the declaration. It is also not clear as to in front of which of the relatives of deceased was the same taken down.” 21. The other factors which guide the present case is that though the mother of the deceased who has been examined as PW-3 has stated about the deceased disclosing the entire incident as well as the torture which were earlier committed upon her but there is no other witness on record which would be suggestive of the fact that the deceased was in a conscious state to have elaborated the incident as well as the precursor to the incident. In fact, whatever has been stated by PW-1, PW-5 and PW-6 seems to be of what has been fed to them by PW-3. The evidence of PW-6 reveals that during the time when her sister was alive she had frequented the hospital but every time her sister was found in an unconscious state. In such circumstances, therefore, it would not be feasible to rely on the evidence of PW-3 particularly in the background facts and circumstances of the case when the dying declaration itself is under a cloud of suspicion. Some of the neighbours of the appellant have been examined by the prosecution as PW-2, PW-7 and PW-8 and all have stated about the disclosure made by the deceased as to how she caught fire and the efforts made by the appellant to douse the fire by pouring water over her. These witnesses had arrived at the scene immediately on hearing a commotion and the disclosure of the informant to them can be construed to be trustworthy as it seems that after she was taken to the hospital in view of the degree of burns she had suffered she had never regained consciousness. Moreover, the Doctor conducting autopsy as well as the Doctor treating the deceased have not been examined and even the post-mortem report has not been exhibited. Such glaring inadequacies from the very inception of the case have not been properly appreciated by the learned trial Court. Moreover, the Doctor conducting autopsy as well as the Doctor treating the deceased have not been examined and even the post-mortem report has not been exhibited. Such glaring inadequacies from the very inception of the case have not been properly appreciated by the learned trial Court. Consequently, in view of what has been discussed above, we hereby set aside the judgment of conviction and the order of sentence dated 19.08.2002 passed in Sessions Trial No. 61/ 1998 by Shri Akhileshwar Jha, learned Additional District & Sessions Judge, Fast Track Court No.II, Jamshedpur, East Singhbhum. 22. This appeal is allowed. 23. Pending IA, if any, stands closed.