JUDGMENT M.S. Deshpande J. - The accused, who was convicted under Sections 302 and 450 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 500/- and in default to suffer Rigorous Imprisonment for one month, on the first count and to suffer Rigorous Imprisonment for one year and to pay a fine of Rs. 500/- and in default to suffer Rigorous Imprisonment for one month, on the second count, questions both her conviction and sentence. 2. The accused - Shantabai was a' neighbour of Madhukar (P.W. 2) who used to run a dairy. With Madhukar resided his wife Abusayabai and mother Gangubai and daughter Sheela who was, at the time of the incident, about 7 years old. Close to Madhukar's house was the house of his brother Sadashio, which was separated only by a common wall. On 18th April, 1982, there was a quarrel between Sheela and the accused's son Arun heela told her mother about the quarrel. After Madhukar returned to the house at noon, she also told Rajkumar about the quarrel with Arun Madhukar left the house in the evening for delivering milk and returned home at about 8.30 p.m. Anusayabai sustained bums while she was cooking in the kitchen at about 7.00 p.m., and she rushed opt of the kitchen and went near Gangubai who was outside near the cattle. Gangubai' s clothes also caught fire. The neighbours, including Raghunath (P.W. 11) collected at the place and put out the fire and, arranged, to remove Anusayabai and Gangubai to the hospital. Dr. Diware (P.W. 3) examined both the women at about 10.00 p.m., and found that Anusayabai had sustained 90% bum injuries, while Gangubai had bums to the extent of 40% on her person. He informed the police by sending a memo (Exhibit 22). P.S.I.-Shirthate (P.W. 17.) made an entry in the Station Diary and went to the hospital, and after ascertaining from Dr. Diware that the two women were in a position to make statements, recorded their statements. Anusayabai told him, allegedly in the presence of two panchas, Ambika prasad and am Parkash (P.W. Nos. 4 and 5), that the accused, who is the wife of Devidas Chavan, entered her house, poured Kerosene on her person and set fire to her, on account of the earlier quarrel between Sheela and Arun. Anusayabai told him, allegedly in the presence of two panchas, Ambika prasad and am Parkash (P.W. Nos. 4 and 5), that the accused, who is the wife of Devidas Chavan, entered her house, poured Kerosene on her person and set fire to her, on account of the earlier quarrel between Sheela and Arun. He also recorded the dying declaration of Gangubai. Later, Shri Pathak, Tuluka Magistrate, was also called and he recorded identical dying declarations of the two women at 10.35 p.m. (Exh. 69 and 70). Since proper treatment could not be given at Arvi where the incident had occurred, the two women were sent to the Sevagram Hospital, Wardha, where head Constable Wamanrao (P. W. 7) recorded their statements which were produced at Exhibits-42 and 43. Anusayabai died on 19.4.1982, while Gangubai died on 22.4.1982., The post-mortem examination showed that Anusayabai died on account of shock due to extensive bums. 3. It is not necessary for us to refer in detail to the other investigation, as it would not be material for deciding this appeal Suffice it to say that after his return home at about 8.30 p.m., Madhukar took Sheela to the Police Station and her statement came to be recorded by P.S.I. Shirbhate, after he recorded the two dying declarations of Anusayabai and Gangubai. 4. At the trial, the accused, who abjured the guilt, only stated that on the date of the incident, she was seriously ill and as receiving the treatment of one Dr. Pawade, and because her relations with Tufan, who is the Cousin of Madhukar, were strained, she had been falsely implicated. 5. The learned Additional Sessions Judge accepted the account given by Sheela and found the dying-declarations gives by Anusayabai to be acceptable. In the view of the learned Additional Sessions Judge, Gangubai's statement in her dying-declaration, that Anusayabai had sustained burns while she was cooking, could not be accepted because Gangubai, who was outside in the front yard, could not have known what happened in the kitchen which was at the other end of the house. He, therefore, convicted and sentenced the accused as stated above. 6. We shall first consider the evidence of Sheela (P.W. 1), who was at the time of the incident only 7 years old and spoke about the incident about three years latet, in Court. He, therefore, convicted and sentenced the accused as stated above. 6. We shall first consider the evidence of Sheela (P.W. 1), who was at the time of the incident only 7 years old and spoke about the incident about three years latet, in Court. According to her, there was a quarrel between her and Arun in the morning of 18.4.1982 and while her mother was cooking inside in the evening and she and Gangubai were sitting in the court-yard of the, house, the accused came from her house and entered their house. She set file to her mother by pouring Kerosene on her person and using a matchstick and had fled from the place. Upon hearing her mother's cries, she rushed to the spot and found that her mother's clothes had caught fire. She rushed out with the clothes which were in flames and then Gangubai tried to put out the fire and in the process, her clothes also caught fire. People gathered at the place and put out the fire and removed the two women to the hospital at Arvi. It is apparent from Sheela's account that she did not see the incident which occurred in the kitchen because she was outside and went towards the kitchen only after the accused had left, while her mother was rushing outside. She could not, therefore, have known how anusayabai' s clothes caught fire. She attempted to say that the accused had caught hold of the hair of her mother and pressed her to the ground and then poured kerosene from a bottle on her person and set fire by means of a match-stick, but all this was not mentioned in the statement which she made before the police on the day of the incident, and it is obvious that having in their possession the allegation by Anusayabai that the accused had caused the burns, Sheela's statement came to be recorded in a manner which would make the account given by Gangubai in her dying -declarations consistent with that statement. The learned Additional Sessions Judge has entirely overlooked this most material aspect of Sheela's evidence and has, without critically examination her account, accepted every word of what she had stated and seemed to be quite oblivious of the material improvements made by Sheela in her evidence once Sheela's account regarding what occurred in the kitchen is discarded, there is nothing in Sheela's evidence except the reference to the quarrel in the morning between her and Arun, which would require consideration. 7. The learned A.P.P. urged that even if Sheela's version is not accepted, the three dying declarations which Anusayabai made consistently and which appeared at Exhibits 75, 69 and 42 were acceptable, and there is no reason why the account given by her could not be accepted. It is apparent from Sheela's evidence as well as the dying declarations of Gangubai which appeared at Exhibits 75, 70 and 43 that Gangubai was not also is the kitchen and she sustained the burns because, Anusayabai-rushed at her. Though no exception can be taken to the observation of the learned Additional Sessions Judge that Gangubai would not know how Anusayabai sustained the burns, only for that reason, the Court would not be absolved from scrutinising the circumstances in, which Anusayabai made the three statements. It is important to note that the two, witnesses Ambikaprasad and Om prakash (Pws. 4 and 6), in whose presence P.S.I. Shirbhate vouched the dying declaration of Anusayabai (Ex.- 74) come to be recorded, turned hostile and did not support P.S.I. Shirbhate' s version regarding the making of the dying declaration by Anusayabai. The learned Additional Sessions Judge has observed that Dr. Diware, (P.W. 3) has certified that Anusayabai was in a position to make a statement and was fully conscious and the first statement of Anusayabai came to be recorded in his presence and that statement, therefore, cannot be said to have been vitiated, We do not see any reason, to disbelieve the evidence of Dr. Diware that Anusayabai was in a position to make the statement and we find no reason to doubt that Shri Pathak, the then Taluka Magistrate, must have recorded correctly the Statement made before him by Anusayabai. Shri Pathak could not be examined as a witness, because he had died before the trial. Diware that Anusayabai was in a position to make the statement and we find no reason to doubt that Shri Pathak, the then Taluka Magistrate, must have recorded correctly the Statement made before him by Anusayabai. Shri Pathak could not be examined as a witness, because he had died before the trial. However, merely because Anusayabai had made a statement implicating the accused and the Taluka Magistrate had recorded her statement, that cannot be a guarantee for the , truth of the statements which came to be recorded in the three dying-declarations. 8. The most significant circumstance is that Anusayabai did not mention when Raghunath (P.W. 11) rushed to the place, while her clothes were burning that the accused had set her clothes on fire by pouring kerosene on those clothes. Many other person from the locality had also gathered there, including the members of Sadashiv's family, and if the accused were really to have caused the burns, we should expect that Anusayabai would, at the first opportunity, refer to the act of the accused. This was not done. Another notable circumstance is that even after Madhukar - (P.W. 2), on his return home, went to see his wife in the hospital at about 8.30 p.m., no such statement appears to have been made to him. If Anusayabai were really to have sustained the burns because of the accused, the accused would have been named, at least, to Madhukar, but that was also nor done. The allegation against the accused came to be made, for the fine time, after 10.00 p.m., i.e., nearly three hours after the incident of burning. Since Anusayabai was conscious and in a position to make statement and there was nothing to prevent her from implicating the accused at the first possible opportunity, her silence for about three hours would make the complicity of the accused to the incident importable. 9. The learned A.P.P. urged that the silence may have been due to Anusayabai having been in pain; but if that pain did not preclude her from implicating the accused three hours after the incident, we see no plausible reason why it should have prevented her from mentioning the name of the accused as the person who harmed her immediately after the incident 10. Shri M.R. Daga, the learned Counsel for the appellant, urged that there was no motive for the accused to rush inside the kitchen and attempt to commit Gangabai's murder. The motive suggested by the prosecution, that there was a quarrel amongst children which must have infuriated the accused and led her to take this drastic step, appears to us to be very feeble. It could be that there was some verbal exchange in the kitchen and the possibility of burns being caused accidentally when Anusayabai was near the hearth, cannot be ruled out. Her silence for nearly three hours and taking the name of the accused only when P.S.I. Shirbhate appeared on the scene, would show that the thought of naming the accused later, probably because of the quarrel between the children which had brought the accused to her kitchen. In these circumstances, we find the three dying declarations made by Anusayabai to be unacceptable. What is important is that even Gangubai, who had sustained burns immediately after the incident, did not have any suspicion that her-daughter-in-law may have been harmed by the accused and she believed that the burns might have been received by her while she was cooking. In these circumstances, disagreeing with the learned trial Judge, we find that the three dying declarations of Anusayabai cannot be made the basis of conviction, in the present case. 11. In the result, we allow the appeal, set aside the order convicting and sentencing the appellant-.accused and acquit her of both the charges. The bail-bond of the appellant-accused is cancelled. She should be released forthwith, if not required in any other offence. Appeal allowed.