JUDGMENT - GHODESWAR M.B., J.:---This appeal is directed against the judgment and order dated 17-3-1992 passed by 2nd Additional Sessions Judge, Bhandara, in Sessions Trial No. 95 of 1990 convicting the appellant for the offence punishable under section 302 of Indian Penal Code for causing murder of his wife Rekha. 2. The incident in this case took place on 26-8-1990 at about 11.30 a.m. in the house of appellant in Ram Mandir Ward, Bhandara. It is the allegation of the prosecution that Rekha and appellant married on 16-9-1989. It was a love marriage and as the appellant did not receive any dowry, from the parents of Rekha, the appellant used to ill-treat Rekha. The appellant and the deceased were residing in rented premises of PW 3 Madhusudan and appellant by pouring kerosene on the person of Rekha, set her ablaze. She sustained 100% burns. The appellant/accused also sustained 20% burns. Immediately the victim Rekha and appellant were taken to the General Hospital, Bhandara where Dr. Manohar Mulkalwar (PW 8) admitted victim Rekha at about 12.10 p.m. in the Hospital. He gave intimation to Police vide his memo Exh. 42. The Executive Magistrate PW 2 Laxmanrao Thakre received the memo of Police Exh. 33 for recording the dying declaration and also a certificate issued by the doctor that Rekha was fit and conscious to give the dying declaration. He went to General Hospital at about 2.35 p.m. and recorded the dying declaration of Rekha. On the basis of the dying declaration, the offence under section 307 of Indian Penal Code was registered. Rekha succumbed to her injuries at about 5 p.m. on the same day. The appellant was also hospitalised as he received 20% burns. 3. The prosecution has examined in all 10 witnesses. PW 4 Ramchandra and PW 9 Mandakini are father and sister of deceased Rekha respectively. PW 2 Laxmanrao Thakre is the Executive Magistrate. PW 1 Dr. Vijaykumar Wasnik has performed the post mortem examination. It is not in dispute that Rekha died due to burn injuries. The learned trial Judge believed the evidence of prosecution, relied on the dying declaration of Rekha Exh. 34 and the evidence of PW 9 Mandakini about oral dying declaration of Rekha when she has visited Rekha, in the Hospital and recorded finding of conviction. It is not in dispute that Rekha died due to burn injuries. The learned trial Judge believed the evidence of prosecution, relied on the dying declaration of Rekha Exh. 34 and the evidence of PW 9 Mandakini about oral dying declaration of Rekha when she has visited Rekha, in the Hospital and recorded finding of conviction. 4 The learned Counsel for the appellant has submitted that prosecution has not satisfactorily explained that Rekha died of homicidal death and that the possibility of an accidental death of Rekha cannot be ruled out. He further submitted that the evidence of dying declaration as tendered by PW 2 Laxmanrao Thakre, Executive Magistrate, suffers many infirmities and at the time of recording of the dying declaration the Medical Officer was not present and he has not certified about the fitness of the victim that she was fit and conscious to give the dying declaration before recording of the dying declaration Exh. 34. 5. Evidence of PW 1 Dr. Wasnik shows that there were 100% burn injuries on the body and in his opinion the probable cause of death was shock due to burns. The defence is that Rekha sustained burn injuries accidentally. On spot the stove was found. There was kerosene smell and defence has also examined one witness DW 1 Sharda, who was also cited as a prosecution witness but prosecution did not examine her. The evidence of PW 8 Dr. Manohar Mulkalwar shows that he has admitted victim Rekha in the hospital at about 12.10 p.m. and also proved the bed ticket of Rekha Exh. 55. In the history sheet of patient, it is recorded that patient burnt due to stove accident. He has given the memo to police Exh. 42. In that also it is mentioned that Rekha sustained injuries due to stove accident. Perusal of the bed ticket also shows that condition of Rekha was not satisfactory and PW 8 Dr. Manohar Mulkalwar has also admitted that he has mentioned the contents in the memo Exh. 42 only after making inquiries with the said patient Rekha. Further that patient was examined at 2.35 p.m. and at that time her general condition was low and she was semi-conscious and he also admitted that the patient in a semi-conscious condition, may not be in a position to give statement. PW 8 Dr. 42 only after making inquiries with the said patient Rekha. Further that patient was examined at 2.35 p.m. and at that time her general condition was low and she was semi-conscious and he also admitted that the patient in a semi-conscious condition, may not be in a position to give statement. PW 8 Dr. Manohar Mulkalwar also stated that the pulse of the victim was not felt and she was in a semi-conscious state from the time of her admission in the hospital. There is no doubt that the history about the incident recorded by PW 8 Dr. Manohar Mulkalwar is a dying declaration of Rekha and that goes to show that Rekha died of an accidental death. 6. PW 2 Laxman Thakre has deposed that after receipt of Exh. 33 memo from Police for recording the dying declaration and the certificate of doctor Ex. No. 44 of 26-8-1990 time 2.05 p.m. that victim was fit and conscious to give statement, he went to General Hospital, Bhandara and straightway recorded the dying declaration of Rekha at about 2.35 p.m. After recording the dying declaration, he stated that it was read over to Rekha. She admitted the contents as true and correct and she has signed on the statement. In cross-examination, he has admitted that he did not meet the Medical Officer or did not inquire with the Medical Officer about the condition of Rekha. He stated that only one nurse was present when he recorded the statement. This shows that the Medical Officer was not present while recording the dying declaration and he is also definite that he did not ascertain about the fitness of Rekha from the Medical Officer. After recording of the dying declaration also, he did not request the Medical Officer to certify whether Rekha was fit and conscious to give the statement. In case of written dying declaration the most important requirement is the satisfaction of the Officer/authority that the declarant is fit and conscious to give the declaration and when declarant is in hospital, the certificate of the Medical Officer attending that the patient is fit and conscious before recording and throughout the time taken for recording it. There is a long gap of time when PW 2 Laxmanrao Thakre received memo Exh. 33 along with certificate of doctor and when dying declaration is recorded. There is a long gap of time when PW 2 Laxmanrao Thakre received memo Exh. 33 along with certificate of doctor and when dying declaration is recorded. PW 2 being the responsible officer, he ought to have taken proper and necessary care for recording the dying declaration, hence this dying declaration Exh. 34 is not reliable and dependable. Moreover he has stated that he has asked the questions to Rekha but recorded the dying declaration in narrative form. PW 4 Ramchandra, father of deceased, has stated that relations between Rekha and appellant were good and cordial. There was no demand of any dowry as is stated by PW 9 Mandakini, sister of Rekha, and the demand of dowry is also an omission taken out from her police statement recorded under section 161 of Criminal Procedure Code. The evidence of PW 9 Mandakini shows that she was sitting continuously with victim Rekha from 1 p.m. till her death and she has not stated anything about the recording of dying declaration. This all creates doubt and, therefore, in our view the evidence in this case does not inspire confidence of the Court, that cannot be considered to be sufficient and, therefore, the benefit of doubt goes to the appellant. The appellant/accused is, therefore not guilty of the offence charged. 7. The learned trial Judge has based his finding of conviction on the evidence of dying declaration as recorded by PW 2 Laxmanrao Thakre and the evidence of PW 9 Mandakini about oral dying declaration which in our view is incorrect. There is no immediate disclosure statement of victim Rekha even though number of persons have gathered at the spot which appears unnatural. The approach adopted by the trial Judge is erroneous and wrong. It is unsafe to rely on such evidence to base conviction. Therefore, interference is required. 8. In the result, the appeal is allowed. The appellant/accused is acquitted for the offence punishable under section 302 of Indian Penal Code. He be set at liberty forthwith if not required in any other case. Appeal allowed. -----