JUDGMENT P.S. Patankar, J. - This is challenging the conviction recorded by the II Extra Joint Sessions Judge, Thane on 23rd July, 1993 in Sessions Case No, 206 of 1991 by which the appellant came to be convicted under Section 302 of I.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000/- and in default of payment of fine, to undergo R.I. for three months for committing murder of his mistress Tarabai Vishnu and her daughter Chhabu by pouring kerosene on the person of Tarabai and setting her ablaze on 6th January, 1991 in the night at about 10 p.m. 2. The prosecution case in nutshell is as follows: Tarabai was the mistress of the appellant and Chhabu was the daughter of Tarabai from her husband. They were residing at Chakki Naka, Gosavipura, Kalyan in a chawl. On 6th January, 1991, in the night at about 10, the appellant returned from his service in a drunken state. Tarabai gave him food and questioned him about his drinking habit. This was not liked by the appellant and first the appellant assaulted Tarabai, exchange of words took place between the two and thereafter appellant poured kerosene on her body and set her ablaze by means of a burning chimney. Chhabu, aged two years, was sleeping nearby. She elapsed Tarabai on seeing that her mother was ablaze. Tarabai came outside her house along with Chhabu and. shouted for help. The neighbours extinguished the fire. Tarabai and Chhabu fell down. In the meanwhile, the appellant ran away. Some unknown person reported this incident at Netivali Police Outpost t9 Police Head Constable Raghunath Jadhav (P.W.2). Jadhav came to the place of incident in Rickshaw alongwith the said unknown reporter. He found Tarabai and Chhabu in burnt condition. They were first rushed to the Municipal Hospital, Kalyan. However, Dr. advised him to take them to Central Hospital, Ulhasnagar. Accordingly, Tarabai was taken to the Central Hospital, Ulhasnagar. The dying declaration of Tarabai (Ex. 24) was recorded by SDM, Hilda Das (P.W. 1). Thereafter, Jadhav himself lodged the complaint, Ex. 26 against the appellant on reading the said dying declaration. Tarabai suffered 78% burns while Chhabu 96% burns. Chhabu died immediately. Tarabai died on 8th January, 1991 at about 8.15 a.m. 3. The appellant defended himself by contending that he was not concerned with Tarabai. Thereafter, Jadhav himself lodged the complaint, Ex. 26 against the appellant on reading the said dying declaration. Tarabai suffered 78% burns while Chhabu 96% burns. Chhabu died immediately. Tarabai died on 8th January, 1991 at about 8.15 a.m. 3. The appellant defended himself by contending that he was not concerned with Tarabai. She deserted her husband and was leading a debaucherous life. Thus he denied his involvement in the crime. It was also contended that accident had taken place and due to the said accident fire had taken place causing injuries to both. 4. The learned II Extra Joint Sessions Judge. Thane came to the conclusion that the prosecution has proved that appellant has committed murder of Tarabai and her daughter Chhabu by pouring kerosene on the person of Tarabai and setting her ablaze on 6.1.1991 at about 10 p.m. 5. The learned Advocate for the appellant submitted that there is only evidence of dying declaration in this case and the said dying declaration suffers from various infirmities and creates doubt about the happening of the incident as alleged. He submitted that if the dying declaration is excluded then there is no evidence on record to connect the appellant with the crime and, in any case, the appellant can be given benefit of doubt. 6. It is first to be noted that the complaint produced at Ex. 26. It was filed by Police Head Constable Raghunath Jadhav (P.W. 2). Jadhav has deposed that he filed the complaint on 7th January, 1991 in the morning after going through the dying declaration. Therefore, this cannot be treated as complaint at all. Raghunath Jadhav has deposed that some unknown person reported at about 10.45 p.m. on 6th January, 1991 regarding burning of a woman and thereafter he went along with the said reporter to the said place. However, this was not recorded in case diary. Then he stated that with the help of neighbours Tarabai and Chhabu were taken to the Hospital. No neighbour was examined. The statement of the said reporter was not recorded. In fact, the complaint which is at Ex. 26, shows that the said reporter was a person who was a resident of the same chawl in which this incident has taken place. It also shows that Tarabai came out of the room and was shouting that her Sari was caught fire and her body is burnt. In fact, the complaint which is at Ex. 26, shows that the said reporter was a person who was a resident of the same chawl in which this incident has taken place. It also shows that Tarabai came out of the room and was shouting that her Sari was caught fire and her body is burnt. It was not her outburst that somebody poured kerosene on her and hence the Sari has caught fire and that she was burnt. The dying declaration is produced at Ex. 24 and proved by P.W. 1 Hilda Das. She has stated that the said dying declaration was produced, to writing by her. She was putting questions to Tarabai and Tarabai was answering those question. She has further deposed that both the hands of Tarabai were burnt and hence impression of her left first toe was taken on the D.D. However, the Doctor (P.W. 50) Bhagwan Kulkarni stated that he was present at that time. But he has riot stated anything about taking of first left toe impression on D.D. cause her hands were burnt. His deposition further shows that the answers were noted down by some writer though he could not name ti1esaidwriter. He has also stated that the said writer was not known to him. This creates doubt as to who has actually taken down the said dying declaration and manner of recording. The dying declaration at Ex. 24 -mentions that appellant returned after service and was drunk. She gave him food plate for dinner and thereafter she asked him why he was drinking when they were having three children. Thereafter the appellant got enraged and started assaulting her and abusing her. Exchange of words took place and appellant took the Can containing kerosene and poured the same on her and set her ablaze with a burning chimney. However, the Panchanama of the scene of offence (Ex. 12) makes no mention whatsoever regarding the said food plate (Thali). The dying declaration shows that immediately after Tatabai was set a fire, she went out along with the child and fell down and thereafter was taken, to the Hospital. There was no other person in the house. Therefore, there was no possibility of the said food plate being removed by somebody else. In the dying declaration there is mention that appellant poured kerosene from the bottle and set Tarabai on fire by using chimney lamp. There was no other person in the house. Therefore, there was no possibility of the said food plate being removed by somebody else. In the dying declaration there is mention that appellant poured kerosene from the bottle and set Tarabai on fire by using chimney lamp. The panchanama of the scene, of offence makes mention, of kerosene bottle, chimney, etc. It gives the picture that the things were scattered there, But the PSI Salunke (P.W. 7) has deposed that when he visited the spot, he found everything was placed properly. This again creates doubt about the dying declaration. 7. The evidence of P.W. 1 Hilda Das shows that Tarabai was in a serious condition. Further, more than four hours have elapsed after the incident had taken place when the alleged dying declaration was recorded, Dr. Bhagwan Kulkarni (P. W. 5) also admits that Tarabai was in a serious condition and she was under treatment when the dying declaration was recorded. He has admitted that Tarabai was in uncontrollable pains and was having 78% burns. Though he has stated that she was fully conscious and was answering the questions, the details which are mentioned in the dying declaration create doubt whether all of them were told by her and Whether she was able to give such a detailed or lengthy statement. We have seen the original dying declaration, Ex. 24. The said dying declaration, Ex. 24, makes no mention that before recording of dying declaration, Tarabai was conscious and able to make the statement. It is at the end only we find an endorsement to that effect by Dr. Kulkarni. Dr. Kulkarni (P.W.5) has not stated in his evidence that he had ascertained before the statement of Tarabai was recorded that she was conscious and able to make the said statement. He has only slated that he has put the endorsement on the dying declaration that the patient was conscious and able to speak. 8. The learned Advocate for the appellant also pointed out that in Ex. 24, Tarabai has mentioned that she was having two sons and one daughter. However, there is no mention about that has happened to those two sons, whether they were present in the house or not and there is nothing to show that she Was really having three children, The prosecution had made no attempt to ascertain the truth of it. 9. However, there is no mention about that has happened to those two sons, whether they were present in the house or not and there is nothing to show that she Was really having three children, The prosecution had made no attempt to ascertain the truth of it. 9. The learned Advocate for the appellant has also pointed out that, PSI Jagannath Salunke (P.W.7) has deposed that he has recorded the statements of five neighbouring witnesses and presumably of those who have poured water and extinguished the fire, but none was examined in the Court. He is also right in pointing out to us that P.W.2 has not recorded the information given by the unknown person in the Police diary, but even no statement was recorded, PSI Salunke P.W. 7 has admitted that Tarabai's husband by name Jagannath Mali was residing at Phalsangiri, Beed. But he was not examined to prove in what condition and when Tarabai came to Kalyan and whether, she was Slaying with appellant. In fact, Tarabai claimed it D.D. that she was the wife of appellant and having 3 children. But there is nothing to support this claim. In fact PSI admitted that during investigation it transpired that Tarabai ran away to Bombay deserting her husband. But he could not say with whom and whether she was doing liquor business and addicted to liquor. An these features create doubt about the correctness of the dying declaration and the prosecution story. On close scrutiny of the dying declaration, we do not find it to be wholly reliable or free from infirmity for basing the conviction. There is no other corroborative evidence on record. The appellant is entitled for benefit of doubt. 10. Hence the following order: The Appeal is allowed. The conviction and sentence of the appe11ant recorded in Sessions Case No. 206 of 1991 by the II Extra Joint Sessions Judge, Thane, dated 23rd July, 1993, are set aside. Fine, if paid, be refunded. Appellant be set at liberty forthwith, if not required in any other crime. Appeal allowed.