JUDGMENT (ORAL) Chaudhari, J. - This appeal is directed against the judgment and order passed by the learned Additional Sessions Judge Thane in Sessions Case No. 347 of 1990 dated 13.3.1991 convicting the appellant for offence punishable under section 302 I.P.C. and sentencing him to suffer imprisonment for life for that offence. 2. The case of the prosecution was as follows: The deceased Sarajbai was the wife of the appellant in a hut at Gangadharnagar zopadpatti. They belonged to poorer section of the society. The appellant used to do odd jobs as a coolie. Deceased Sorajbai used to collect scrap materials and sell it and from those earnings the family used to make both the ends meet. The appellant was idler by habit. He was also addicted to drinking liquor. The responsibility of maintaining the family thus fell upon Sorajbai. She used to object to the habit of the appellant of getting drunk. On the day of incident i.e. 20.9.1989 at about 12.00 noon Sorajbai returned to her hut after collecting some scrap material. She found the appellants in the hut and he was drunk. She rather scolded him as to why he should have drunk liquor at that time and why he was harassing her meaning thereby as to why he was making her life miserable owing to his habit of every day drinking liquor. The appellant was enraged at such a talk by his wife. He picked up a plastic can containing kerosene which was in the hut, poured the kerosene on the person of Sorajbai, lit a match stick and set fire to her. After doing so he tried to extinguish the fire and in that process got his fingers and palm burnt. Sorajbai engulfed in fire ran out of the hut and shouted for help. The appellant however remained inside the hut. On hearing shouts of Sorajbai, her mother and brother Raghu who were staying nearby rushed towards her and extinguished the fire. Some other persons also had collected. Raghu then took her in the injured condition and got her admitted at Civil Hospital Thane. She was admitted to bum ward but despite treatment being given she expired at about 6.30 p.m. 4. Post mortem examination was done on the same day by Dr. Ramdhani (P.W.2) and the cause of death was opined to be "hock secondary to 92% bums. She was admitted to bum ward but despite treatment being given she expired at about 6.30 p.m. 4. Post mortem examination was done on the same day by Dr. Ramdhani (P.W.2) and the cause of death was opined to be "hock secondary to 92% bums. It appears that although the appellant was available as the police admitted him for his bum injuries in the same hospital, he was put under arrest only on 9.10.1989. The information about the incident was received by P.S.I. Naikare at Wagle Estate Police Station and the offence was registered vide Cr. R. No. 486 of 1989. Usual investigation followed and eventually charge sheet was submitted against the appellant for the offence under section 302 I.P.C. in the Court of Judicial Magistrate First Class, Thane. In due course, the case was committed to the Court of Session. 4. The appellant pleaded not guilty to the charge. In his statement under section 313 Cr. P.C. although he did not dispute that the deceased had caught fire and had suffered bum injuries he feigned ignorance as to how she had caught the fire. According to him at or about noon on that day he was sitting near the office of the Shiv Sena branch when he was informed by two persons who came running to him that a woman was on fire. He therefore ran to his house and saw that his wife was burning. He immediately tried to extinguish the fire and in that process his right hand and left leg suffered bums. His wife fell down. His brother – in - law and mother – in -law came there and took her to the hospital in auto - rickshaw. He was having pain from the burn injuries that he had suffered. Hence he went to his sister and informed him about the occurrence. His sister took him to the hospital. 5. Prosecution examined 5 witnesses and placed strong reliance on two dying declarations that were recorded by the P.S.I. find Special Executive Magistrate respectively made by the deceased in the hospital. 6. The fact that Sorajbai had suffered bum injuries has not been disputed by the appellant. Dr. Ramdhani (P.W. 2) deposed that she was admitted at the Civil Hospital Thane on 20.9.1989 with burn injuries and was admitted to the burn ward. 6. The fact that Sorajbai had suffered bum injuries has not been disputed by the appellant. Dr. Ramdhani (P.W. 2) deposed that she was admitted at the Civil Hospital Thane on 20.9.1989 with burn injuries and was admitted to the burn ward. He had performed the post mortem examination after sorajbai had died at about 6.30 p.m. on that day. He stated that she had 92 % burns on her body. The bum injuries were ante mortem and the cause of death was shock secondary to the bums. He is supported in that respect by the post mortem notes, Ex. 30. The death of the deceased therefore could be either accidental or homicidal. According to the prosecution it was homicidal. 7. P.S.I. Nathu Naikare (P.W. 3) was on duty at Civil Hospital on that day. He learnt that a woman with burn injuries was admitted to burn ward. He therefore proceed to the Ward and after ascertaining from the doctor on duty that the patient was conscious to give statement, recorded her statement. He took the thumb impression of the patient below the statement that was recorded by him as per the version of the patient and obtained, the signature of the doctor. That statement is tendered as the first dying declaration made by deceased Sorajbai. The cross examination of the witness reveals that he had recorded the statement at 2.15 p.m. on that day and he obtained the final certificate of the doctor at 2.20 p.m. which means that he had recorded the statement within the span of five minutes. The statement is produced at Ex. 16. 8. The Wagle Police Station by letter marked 'L' had also requested Sahadeo Bhoir (P.W. 1) who was then acting as Special Executive Magistrate in Thane District to record the statement of injured Sorajbai at the hospital. Bhoir has been examined as P.W. 1. He deposed that he had received a yaadi at 1.45 p.m. and he immediately proceeded to the hospital. He reached there at about 2.00 p.m. After going through the female ward he contacted the doctor on duty and ascertained from him that the woman was in a position to speak and give her statement. Thereafter, the doctor examined the patient and endorsed about the conditions of the woman being fit to make a statement. The endorsement cum certificate has been marked Ex. 'C'. Thereafter, the doctor examined the patient and endorsed about the conditions of the woman being fit to make a statement. The endorsement cum certificate has been marked Ex. 'C'. Then after putting preliminary questions to the injured he recorded her statement. After the recording was completed he again asked the doctor to examine the patient which the doctor did and issued the certificate marked Ex. C' l' that the patient was in a position to have made the statement. He then read over the statement to the injured and took her thumb impression below the statement. He identified his signature and the thumb impression of Sorajbai appearing on the statement tendered as dying declaration at Ex. 8. His cross - examination shows that he was working as Senior Clerk in the District Court Thane at the relevant time and had proceeded to the hospital there from. According to Ex. 8, the recording of the same was completed at 2.30 p.m. 9. P.W. 4 Raghu, Sasane who had taken Sorajbai to the hospital stated that the appellant is his brother and that the appellant and his wife were residing in his neighbourhood. His evidence however was not useful to the prosecution on the point of the manner in which Sorajbai had caught fire as he stated that he did not know how she was burnt. According to him he was informed by one Rokade that Sorajbai was burnt and thereupon he took her firstly to the hospital of Dr. Godbole and then to the Civil Hospital. He stated in the cross - examination that she was in semi – conscious condition when she was taken to Dr. Godbole in rickshaw and that she might have been brought to the hospital around 3.00 p.m. The last witness examined by the prosecution was the Investigating Officer Vilas Chawan (P.W. 5). He deposed to the steps taken during the course of investigation and also deposed that the appellant was hospitalised from 22.9.1989 to 9.10.1989. He however did not state as to in which hospital the appellant was admitted and why he was not arrested immediately after the incident but as late as on 9.10.1989. 10. Apart from the aforesaid evidence the formal evidence consisted of panchanama of the place of occurrence i.e. the hut of the appellant, the inquest panchanama and the Chemical Analyser's report. 11. 10. Apart from the aforesaid evidence the formal evidence consisted of panchanama of the place of occurrence i.e. the hut of the appellant, the inquest panchanama and the Chemical Analyser's report. 11. Thus the only material evidence is in the shape of two dying declarations recorded by P.W. 1 and P.W. 3. The dying declaration Ex. 8 recorded by the Special Executive Magistrate (P.W. 1) has been discarded by the learned trial Judge as a doubtful piece of evidence. We shall however independently consider whether reliance can be placed on that dying declaration. We find that it is not possible to do so. Firstly there are erasures at several places casting a serious doubt as to whether it was recorded at the time and in the manner P.W. 1 has claimed to have recorded it. Firstly while referring to the time at which he had received a police yaadi the time which appears to have been originally put as 14.25 hours it has been over written to read as 13.45 p.m. The time put before the first endorsement of the Medical Officer is 14.00 hours. At the bottom of the statement the time indicating the completion of the statement has also been over written to read as 14.30 in place of some other figure on which the over writing was car out. Against the last endorsement of the doctor appearing at the bottom the doctor has not put any time but the witness has below his signature put - the time as 14.30. The change in the time at various places shows that it was changed purposely so as to give an impression that it was indeed recorded between 2.00 p.m. and 2.30 p.m. Whereas it appears that actually it was not recorded at that time. That assumes importance because in the letter from the police requesting him (SEM) to record the dying declaration there is alteration in the time. Copy of that letter is on record marked as 'L'. On that copy P.W.1 has put up the endorsement that it was received at about 13.45 p.m. However the figures of the time have also been altered and over written. That shows that it was received at some other time and not at 13.45 hours. Copy of that letter is on record marked as 'L'. On that copy P.W.1 has put up the endorsement that it was received at about 13.45 p.m. However the figures of the time have also been altered and over written. That shows that it was received at some other time and not at 13.45 hours. That change appear to have been made for some reason the alterations in the timing appearing Exhibit 8 appears to have been changed in order to bring it in tune with that tie. 12. Secondly the statement that was recorded by P.W. 3 exhibit 16 also suffers from alteration in the time appearing thereon. In the body of the statement while referring to the statement of the deceased as to the timing of occurrence it has been changed to read as 12.00 noon in place of some other time which was originally written and has been scored. That by itself may not have carried much significance. However we find that is the margin even in respect of the crime number there is alteration in the crime number to read as 486 in place of 484. Clearly the figure scored has been changed to 6. Likewise in another endorsement below the above figure reading as 45 shows that figure 4 has been over written on something that was earlier written. The time below the signature of the Medical Officer reads as 14.20. That would mean that statement was also recorded during the same time when the statement Exhibit R was recorded by P.W. 1. That obviously could not be possible. Hence it appears that the timing mentioned III Exh. 8 have been changed so as to create an impression that it was recorded after the earlier statement, Exh. 16 had been recorded by the Police Officer. It is important to note in this connection that first page of Exhibit 8 shows the corrected time when it was commenced as 2.00 p.m. The statement, Exh/16 shows that it was recorded at 2.20 p.m. P.W. 3 Naikare who recorded Exh. 16 has stated that he had commenced the recording of the statement at 2.15 p.m. His evidence also shows that he took only about five minutes to complete the recording of the statement. However, having regard to the version found recorded in Exh. 16 has stated that he had commenced the recording of the statement at 2.15 p.m. His evidence also shows that he took only about five minutes to complete the recording of the statement. However, having regard to the version found recorded in Exh. 16 and the fact that the doctor had to make his endorsement it appears improbable that both the statements could have come to be recorded at the time when they arc said to have been recorded. P.W. 3 also docs not say in his evidence that the doctor had examined the patient in his presence before certifying that the deceased was in a fit condition to make the statement. 13. The second glaring infirmity in both these statements is that the thumb impression purported to be that of the injured has not been attested. 14. The third and very material circumstance is that tile version recorded in these two statements given by the deceased is at great variance. In Exh. 16 recorded by P.W. 3 Sorajbai has stated, as follows: (x) Only the portion in the two statement which are at variance arc being discussed) "...When I came home he was lying drunk. I said to him why every day he drinks and harasses her. Because of that he was angry and he threw kerosene which was in the house on my person and set my person on fire by match - stick and ran in the house itself. He set in the house and I was engulfed in fire. I came out of the house and my neighbours extinguished my fire. My mother Vithabab was also there and my brother–in-Law Raghu Bhimaji sasane etc. were also nearby. All of them took me to the Civil Hospital for treatment." As against this version, the version found stated in Exh 16 was as follows: “He after having consumed liquor poured kerosene on my person and my husband itself threw a burning match stick on my person and thereafter my brother-in-law brought me to the hospita1." Earlier to this portion she has stated: "I came home at 12.00 noon. My husband and myself were in the house. He came drunk. He started a quarrel with me and in the fit of anger he poured the kerosene can on my person and my husband himself ignited a match - stick and threw on my person. I caught fire. My husband and myself were in the house. He came drunk. He started a quarrel with me and in the fit of anger he poured the kerosene can on my person and my husband himself ignited a match - stick and threw on my person. I caught fire. I started shouting. At that time my husband poured water on my person and extinguished the fire. When this incident happened my two sons were present in the house." The variance is very clear. Whereas in exhibit8 she says that appellant had extinguished the fire in the house itself by pouring water, in exhibit 16 it is stated that the neighbours had extinguished the fire after she had come out of the hut. Next, whereas in exhibit 8 she refers to the present of the two children in the house when the incident occurred, in exhibit 16 there is no such mention. Then whereas it is stated in exhibit 8 that afterward i.e. after the fine had been extinguished by the husband in the house itself her brother-in-law had taken her to the hospital, in exhibit 16 she has stated that after the brother-in-law and others extinguished the fire after she had come out of the hut and was shouting they had removed her to the hospital. The prosecution or mother of the deceased has examined neither the sons. 15. The variance in the version of the two statements has also to be understood in the context of evidence of Raghu (P.W. 4) who has been referred to in both the statements as the brother-in-law who had taken Sorajbai to the hospital. His evidence shows that he had not rushed to her on hearing' her shouts but one. Rokade had told him that his sister-in-law was burnt and she should be taken to the hospital. That is at variance with the version of the deceased appearing in the two dying declarations. That apart in neither of the two statements the deceased has referred to the fact that she was first taken to a private hospital of Dr. G9dbole and from there to the Civil Hospital as is deposed by P.W. 4. P.W.4 has even stated that when she was taken to the hospital of Dr. Godbole she was in a semi conscious condition. G9dbole and from there to the Civil Hospital as is deposed by P.W. 4. P.W.4 has even stated that when she was taken to the hospital of Dr. Godbole she was in a semi conscious condition. That apart he has also stated in the cross examination that she was admitted to the hospital at about 3.00 p.m. The prosecution has not chosen to produce any evidence about the injured having been taken to Dr. Godbole's hospital in the first instance. The prosecution as its witness examined P.W. 4. Even after damaging answers were made by him in the cross examination there was no re-examination to test the truthfulness of the answers so made. His evidence thus shows that the deceased was admitted to Civil Hospital around 3.00 p.m. That would mean that both the statements Exh. 8 and Exh. 16 could not have been recorded at the time mentioned on those statements. Coupled with the circumstance that the timing has been changed in that statement it becomes extremely doubtful as to whether they were really recorded as claimed by the witnesses recording them. The prosecution did not produce any extract from the E.P. register at the hospita1. The prosecution has not also produced the medical case papers from the hospital. It has also not produced any evidence to show as to who was informed in the first instance at the hospital on the basis of which Naikare had received the information about the deceased having been admitted at the Hospital. This was a medico - legal case and the very fact that P.S.I. Naikare (P.W. 3) had rushed to the Civil Hospital shows that it was so understood by the police. The evidence in the shape of E.P. register entry and the hospital papers would have helped in determining the time at which the deceased had actually been admitted to hospital. That would have been helpful to understand whether the timings appearing on the two dying declarations Ex. 8 and Ex. 16 were altered or could be the correct timings. The prosecution having not adduced that evidence the doubt in which the statements are shrouded docs not stand rule out. 16. That would have been helpful to understand whether the timings appearing on the two dying declarations Ex. 8 and Ex. 16 were altered or could be the correct timings. The prosecution having not adduced that evidence the doubt in which the statements are shrouded docs not stand rule out. 16. Another circumstance is that if the deceased was in a fit condition to have made the statement at about 2.00 p.m. and thereafter and even though P.W. 4 says that earlier she was merely semi conscious it would have been most natural for the near relations of the deceased who were her mother and brother-in-law to have asked her about the manner in which she caught the fire and whatever statement she would have made would have amounted to oral dying declaration. It is difficult to imagine that she did not have any talk with these witnesses and had she really been set on fire by her husband it would have been most natural to expect her to have so revealed to these witnesses. 17. For the aforesaid infirmities relating to the dying declarations, Exhibits 8 and 16 we are of the opinion that it would not be safe to place sole reliance on them particularly in the absence of any independent corroborative evidence. It would not therefore be safe to base the conviction of the appellant on such evidence. 18. There is yet a.1other circumstance, which assumes importance. The Investigating Officer (P.W. 5) has deposed that the hands of the appellant were burnt and therefore he was hospitalised from 22.9.1989 upto 9.10.1989. There is no medical evidence produced about his injuries. That circumstance stands consistently with exhibit 16 although reference therein is only to his having extinguished the fire by pouring water and not by using his hands. That also goes to show that what is stated in Exh. 8 was not the complete truth. Moreover as already said it is not explained as to why the appellant was not immediately arrested but only on 9.10.1989 i.e. after nearly 20 days. Thus we find that there is no satisfactory evidence on the basis of which the conviction of the appellant can be sustained. 19. 8 was not the complete truth. Moreover as already said it is not explained as to why the appellant was not immediately arrested but only on 9.10.1989 i.e. after nearly 20 days. Thus we find that there is no satisfactory evidence on the basis of which the conviction of the appellant can be sustained. 19. In the result the appeal is allowed, and the conviction of the appellant for the offence under section 302 I.P.C. and the sentence imposed upon him for that offence is set aside and the appellant is acquitted of the said offence. He shall be released forthwith unless required to be in custody in connection with any other case. Appeal allowed. Order of acquittal.