JUDGMENT (ORAL) Ashok Agarwal, J - An order of conviction and sentence recorded on 29th October, 1991 by the Addl. Sessions Judge, Pune, in Sessions Case No. 73 of 1991 for an offence punishable under Section 302, I.P.C. is impugned in the present appeal. 2. The victim of the incident is Lata Suresh who was none else but the wife of the accused. Lata was daughter of P.W. 5, Dattu Dagadu Surve, a resident of Nere. Her marriage with the accused had taken place on 21st March, 1982. The accused is a resident of Uttamnagar. He was serving in the Observatory at Shivajinagar. After marriage Lata started residing with the accused at Uttamnagar. They lived happily for about a year and half. Thereafter the accused started ill treating Lata. The accused was addicted to drinking liquor. He used to return home under the influence of liquor and used to pick up quarrels with Lata and used to beat her. He used to abuse Lata of bearing immoral character. About two years after the marriage Lata had gone to her parents. At that time she gave birth to a female child. The accused thereafter took back Lata and his daughter Vandana to his house at Uttamnagar. Her father Dattu was reluctant to send her back since the accuse was ill treating Lata. However, he was constrained to led her go as the accused gave abuses. Dattu had visited the house of the accused some eight days thereafter. At that time Lata had complained to him that the accused used to harass her by consuming liquor. In the year 1987 Dattu had taken Lata to his house. At that time she stayed with him for about a year. During that period accused used to visit his house and used to ask him to send Lata back to his house. At that time Dattu asked the accused to give him in writing that he would treat her well. The accused had then signed a written undertaking on a stamp paper assuring of good treatment to Lata. Lata was thereafter sent to the house of the accused. 3. The incident in question took place on 9th April, 1990 at about 8.00 p.m. The place of the incident is the house of the accused at Uttamnagar. On that night the accused returned home after having consumed the liquor. Lata was thereafter sent to the house of the accused. 3. The incident in question took place on 9th April, 1990 at about 8.00 p.m. The place of the incident is the house of the accused at Uttamnagar. On that night the accused returned home after having consumed the liquor. He assaulted Lata on her hand with a stone. Despite this Lata started serving meals to the accused. At that time the accused- got up and poured kerosene from a bottle on her person threw a match stick on her and set her ablaze. The accused thereafter tried to extinguished the fire. Lata forced her entry out of the house by kicking the do of the house and thereafter proceeded to Uttamnagar Police Station Lata was thereafter removed to the Sassoon Hospital where she was admitted in bums ward No. 27 by P.W. 7, Dr. Prasad Purshottam Godbole. She was admitted about 11.55 p.m. While being admitted Dr. Godbole recorded the history of the bums as narrated by Lata. The gist of the incident, narrated to by Dr. Godbole, is roughly the same as narrated above, except that as per the said disclosure, the accused had set her ablaze by using a candle. The other variation to be followed in the dying declaration recorded by Dr. Godbole is to the effect that the accused himself put out the fire and left her at the bus stop. 4. On the same night, a little after midnight Head Constable Jadhav attached to Deccan Gymkhana Police Station contacted P.W. 1, Jaywant Haribhau Khomne, a Special Judicial Magistrate, for recording the Dying Declaration of Lata. Shri Khomne proceeded to Ward No. 27 and contacted Dr. Godbole. On being satisfied from Dr. Godbole that Lata was in a fit condition to make a statement Shri Komne proceeded to record a further Dying Declaration of Lata. The Dying Declaration is at Exhibit-11. The same was recorded between 00.50 hours to 01.00 hours on 10th April, 1990. The tenor of the Dying Declaration is similar to the Dying. Declarations which are already referred to. Here the accused is alleged to have ignited the fire by a match stick. Lata has made a reference to her daughter, who is about 8 years old. She has, proceeded to state that nobody also was there in their house at the material time. Declarations which are already referred to. Here the accused is alleged to have ignited the fire by a match stick. Lata has made a reference to her daughter, who is about 8 years old. She has, proceeded to state that nobody also was there in their house at the material time. She has further stated that in burning condition she went to the Police Chowkie and then the Police brought her to the hospital. She has further gone to state that since their marriage the accused was suspecting about her character and he used to harass her under the influence of liquor. In this Dying Declaration Lata has not made any reference to the accused extinguishing the fire. The specific averment to the effect that nobody else was there in the house at the time when the accused had set her on fire has some significance to the appreciation of the evidence of their daughter P.W. 4 Vandana, who, according to the prosecution is an eye - witness to the aforesaid incident. 5. The accused had also sustained burn injuries at the time of the incident. He too was referred to the Sasoon Hospital. D.W. 2, Dr. Vinay Prahlad Kulkarni, at the material time was attached to Ward No. 27 in the Sassoon Hospital. He has deposed that the accused had sustained 28 bum injuries. While in the hospital, on 10th April, 1990 a Dying Declaration of the accused, Exhibit-52, was recorded by P.W. 1 Jaiwant KHumane. On 17th April, 1990 Shri. Ratawade, Sub Judicial magistrate recorded a further Dying Declaration of the accused which is at Exhibit-53. In the Dying Declaration at Exh. 52 the accused has stated that on that night he was sleeping outside the house. His daughter told him that her mother Lata caught fire. Immediately he went inside the house to extinguish the fire and while extinguishing the fire he sustained bum injuries. In the latter Dying Declaration, Ex. 53 the accused has stated that his wife caught fire. He went to extinguish the fire. His clothes caught fire and he sustained bums. 6. The investigation of the case was taken over by P.W. 9 Dayandeo Mesa Bansode, P.S.I. attached to the Deccan Gymkhana Police Station. On learning of the incident he proceeded to the Sassoon hospital and contacted Lata in Ward No. 27 and recorded her complaint, Exhibit-31. He went to extinguish the fire. His clothes caught fire and he sustained bums. 6. The investigation of the case was taken over by P.W. 9 Dayandeo Mesa Bansode, P.S.I. attached to the Deccan Gymkhana Police Station. On learning of the incident he proceeded to the Sassoon hospital and contacted Lata in Ward No. 27 and recorded her complaint, Exhibit-31. In the complaint, she has described the main incident in the following terms: "Yesterday at 7.30 p.m. my husband Suresh returned home after consuming liquor and started abusing me as usual and telling me that you have got some relation with other person and then he beat me. Still I started serving meals to him. At that time in the kitchen he poured kerosene from a bottle on my person and by lighting match stick, he set me on fire. I started shouting. My clothes caught fire and due to it sustained burns. My husband Suresh started extinguishing the fire by his hands. He put quilt on my person. But my wearing clothes were fully burnt, i.e. saree, petticoat blouse were fully burnt and I came outside the house and fell down in burning condition. Then I myself woke up and went to police chowky which ,is near our house. Police brought me here at Sassoon Hospital, Pune, in a van for medical treatment and treatment was going on. Now I am fully conscious and narrating the incident as taken place. On the same day, P.S.I. Bansode, drew up panchnama in respect of the scene of offence, Exhibit-15. The same has been attested by the panch witness, P.W. 3, Mahadeo Appa Undure. On 11th April, 1990 at about 14.20 hours Lata succumbed to her injuries. An inquest Ext. 9 on her corpse was prepared. Thereafter P.W. 6, Dr. Shashikant Shivapad Sabne performed the postmortem. His postmortem notes are at Exhibit-25. P.W. 10, Kondiba Ladappa Dhone took over investigation from P.S.I. Jadhav on 20.5.1990. On completing the investigation he filed charge - sheet against the accused. 8. In support of its case prosecution examined several witnesses who are already referred to. In addition, it examined P.W. 2, Sunil Bhagwandas Dhadiwal, who owns a shop in the vicinity of the house of the accused. He has deposed to the strainoo relations which existed between the accused and Dattu. He has also deposed to the main incident. 8. In support of its case prosecution examined several witnesses who are already referred to. In addition, it examined P.W. 2, Sunil Bhagwandas Dhadiwal, who owns a shop in the vicinity of the house of the accused. He has deposed to the strainoo relations which existed between the accused and Dattu. He has also deposed to the main incident. According to him, at about 8.30 a.m. on 9th April, 1990 he heard the cry of the accused and Lata. Lata came running through the land after having sustained bum injuries. Her clothes were partly burnt. Prosecution also examined P.W. 8, Hamid Habid Khan, apanch witness who has scribed the panchanama in respect of the seizure of the wedding card of the marriage of the accused with Lata as also the, undertaking given by the accused on a stamp paper assuring of good treatment to Lata. This is also the evidence that has been adduced on behalf of the prosecution. 8. The accused pleaded not guilty. His defence is one of total denial. He has feigned ignorance as to how his wife was burnt. He however claims to have tried to extinguish the fire and in the process he himself sustained bum injuries on his person. According to the accused, Lata used to threaten him that she will involve him. According to the accused, he has been falsely implicated. In order to make good his defence the accused examined two witnesses namely D.W.1, Mahadeo Patlu Mane who on 17th April, 1990 submitted a report at Exhibit - 44 in respect of the injuries found on the person of the accused. The accused also examined D.W. 2, Dr. Kulkarni, who, on 10th April, 1990 had recorded the Dying Declaration of the accused Exhibit-52. 9. On an appraisal of the aforesaid evidence the learned Addl. Sessions Judge by the impugned judgment and order convicted the accused under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer further simple imprisonment for two months. The aforesaid order of conviction and sentence is impugned in the present appeal. 10. In the instant case the prosecution has examined P.W. 4, Vandana, the daughter of the accused and Lata. Yandana claims to be an eye - witness of the incident in question. 1000/- in default to suffer further simple imprisonment for two months. The aforesaid order of conviction and sentence is impugned in the present appeal. 10. In the instant case the prosecution has examined P.W. 4, Vandana, the daughter of the accused and Lata. Yandana claims to be an eye - witness of the incident in question. She is a child witness aged about 7/8 years. She was questioned by the learned Judge in order to find out whether she understood the efficacy of oath. After examining her, the learned Judge found that Vandana was not capable of understanding the sanctity of oath. So her deposition was recorded without administering oath. In her evidence Vandana had stated that on the day of the incident she was present in the house. At night time her father came to the house. He had consumed liquor. He picked up quarrel with her mother. Her father poured kerosene on the person of her mother and set her on fire. That time she was sitting in the house. Her mother cried for help saying "save me". Thereafter her mother ran outside the house. Her father followed her. The above evidence, if the same were to be accepted, would have been good evidence in respect of the incident as the presence of Vandana at the material time is natural. However, if one has regard to the answers which are elicited in cross-examination. it would be impossible to place any reliance on the aforesaid version of Vandana. She has admitted that she had come to the Court for giving evidence alongwith her grand father and grand mother i.e. father and mother of her mother. She had similarly come alongwith them to the Court on 5/6 occasions and that her grand father and grand mother had instructed her to give deposition in a proper manner and that they had told her how to depose in Court. When asked whether she had told the incident to anybody before her deposition in Court she has candidly admitted that she has not told the same to anybody. She has further admitted that the Police had instructed her to state in Court that nobody had tutored her. She has admitted that in her daily life she acts according to the instructions of her grand father and grand mother. She has further admitted that she cannot tell how her mother caught fire. She has further admitted that the Police had instructed her to state in Court that nobody had tutored her. She has admitted that in her daily life she acts according to the instructions of her grand father and grand mother. She has further admitted that she cannot tell how her mother caught fire. This is not all. She has gone to state: "It is true to say that my mother always used to give abuses to my father. It is not true to say my mother was always giving threats to my father that she will involve him and teach a lesson. It is true to say that my grand father and grand mother have told me to give evidence against my father otherwise he will not be punished. I am giving evidence as per the instructions of my grand father and grand mother" In view of the above admission, which are elicited in the cross-examination we find that no reliance whatsoever can be placed on the evidence of Vandana. Moreover, it is to be noted that as per the disclosure of Lata in her Dying Declaration, Exhibit-II, Lata has stated that at the material time nobody else was there in the house. This is one more reason why no reliance can be placed on the testimony of Vandana. 11. Once the evidence in respect of the eye - witness account is kept out of consideration the only other evidence which seeks to inculpate the accused is in the form of various Dying Declarations of Lata. We have in the preceding paragraphs given the relevant details in respect of the various Dying Declarations which are said to have been made by Lata. We have also given the gist of various Dying Declarations of accused. We find that the Dying Declarations describe the incident which had immediately preceded the alleged incident of the accused setting Lata on fire. According to the said version Lata was serving meals to the accused. At that time accused assaulted Lata on her hand with a stone. Further the accused poured kerosene on the person of Lata Suresh and set her on fire. Thus as per the version found on the Dying Declarations the incident took place at a time when Lata was serving meals to the accused. At that time accused assaulted Lata on her hand with a stone. Further the accused poured kerosene on the person of Lata Suresh and set her on fire. Thus as per the version found on the Dying Declarations the incident took place at a time when Lata was serving meals to the accused. Now if one has to look at the scene of offence, panchanama, Exhibit-IS, as also in the evidence of Panch witness, P.W. 3, Mahadeo Undure, we have a totally different version in respect of the incident. P.W. 3, Undure has stated that at the time of the panchanama he did not notice any food prepared or the utensils having food. He did not note any mate in which food was kept. There were no utensils having residues of cooked food. There was no stove inside the house. Similarly the panchanama, Exhibit-15, also does not make any reference to any cooked food being found at the spot of the incident. The panchanama in question was prepared in the morning following the incident in question. Both, Lata as also the accused, had been admitted in the Sessoon Hospital after having sustained bum injuries. Hence there was nobody left in the house to clean the remanants of food or for washing utensils after the incident in question. Hence the case which is made out in the Dying Declaration that the incident in question took place when Lata was serving meals to the accused is falsified by the aforesaid evidence found at the scene of offence. In addition to the above contradiction we do not find any corroboration to the assault by the accused on the hand of Lata with a stone as no stone was found at the scene of offence and since Lata had sustained 90% injuries no injury was detected on her hand. The question that now arises for consideration is whether it would still be open to discard the aforesaid case appearing in the dying declaration namely that the incident had occurred while Lata was serving food to the accused and yet accept the other part of the Dying Declaration in respect of the accused setting Lata on fire. 12. The question that now arises for consideration is whether it would still be open to discard the aforesaid case appearing in the dying declaration namely that the incident had occurred while Lata was serving food to the accused and yet accept the other part of the Dying Declaration in respect of the accused setting Lata on fire. 12. The Law on the point has been discussed by the Supreme Court in the case of Godhu and another v. State of Rajasthan1, wherein it has been observed as follows: "We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct. It must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the Court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct." 13. In the aforesaid case the corroboration, which was found, was in the form of the statement of the accused himself wherein the accused admitted having injured the deceased Godhu by firing. In the aforesaid case the corroboration, which was found, was in the form of the statement of the accused himself wherein the accused admitted having injured the deceased Godhu by firing. The Supreme Court found that a part of the Dying Declaration was severable from the other part regarding the deceased having been forcibly taken inside the baithak of Banwari and the truth of the former part did not depend upon the latter part. The Supreme Court therefore found no difficulty in accepting the part of the Dying Declaration of the deceased Godhu that Banwari had shot at him and thus caused him injury. The facts in the instant case, however, are entirely different. In the present case, there is no corroborative piece of evidence whatsoever in respect of the part of the Dying Declarations which relate to the accused pouring kerosene on the person of Lata and setting her on fire. Moreover, the incident of pouring kerosene was preceded by an assault by the accused with a stone on the hand of Lata. This was while the deceased was serving food to the accused. In regard to the assault by stone on the hand of Lata no corroboration is forth coming. As far as the serving of food by Lata at the time of the incident we find that the same is unworthy of belief in view of the evidence of the panch witness, P.W. 3, Undure and the panchanama of the scene of offence Exhibit-15. In view of the above circumstances we find it hazardous to place reliance on the evidence of the Dying Declaration in order to bring home the guilt against the accused. 14. There is one more circumstance which mitigates against the case of the prosecution revealed in the Dying Declarations, the immediate conduct on the part of the accused was to extinguish the fire on the person of Lata. While doing so the accused himself had sustained bum injuries to the extent of 28%. He was admitted in the burns ward in the Sassoon Hospital. In fact, his Dying Declarations were also recorded. The aforesaid immediate conduct of the accused is inconsistent with his earlier act of pouring kerosene on the deceased and selling her on fire. While doing so the accused himself had sustained bum injuries to the extent of 28%. He was admitted in the burns ward in the Sassoon Hospital. In fact, his Dying Declarations were also recorded. The aforesaid immediate conduct of the accused is inconsistent with his earlier act of pouring kerosene on the deceased and selling her on fire. If the accused intended to kill Lata by setting her on fire he would not have immediately taken steps to extinguish the fire even at the risk of himself sustaining bum injuries to the extent of 28%. Hence the possibility of the accused seeing Lata engulfed in fire and thereafter his trying to extinguish the fire cannot be termed at altogether improbable. In the circumstances we arc inclined to hold that the prosecution has failed to prove the guilt against the accused beyond reasonable doubt. In any event, the accused is entitled to a benefit of doubt. 15. In the result, the appeal succeeds. The order dated 29th October, 1991 passed by the learned Addl. Sessions Judge, Pune, in Sessions Case No. 73 bf 1991 convicting the accused of the offence of murder punishable under section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer further simple imprisonment for two months is quashed and set aside and the accused is acquitted. The accused shall be set at liberty forthwith, unless he is required in some other case. Appeal allowed. 1. A.I.R. 1974 S.C. 2188; Distinguished