N. P. SINGH, J, J. ( 1 ) THIS is an appeal preferred against judgment dated 14-9 -1988 in S. T. No. 229/1986 of the III Additional Sessions Judge, Jabalpur Where by the accused/appellant has been convicted u/sec. 302 of the IPC and sentenced to imprisonment for life for committing the murder of his wife Rani Bai, by setting her on fire. ( 2 ) UNDISPUTABLY, the deceased was the wife of the accusedt/appellant and they were living together at Katanga Colony, Jabalpur. On the/night of incident, i. e. , on 23-2-1986 at about 11. 00 p. m. , the accused/appellant and Panchhiram (PW 5) had taken Rani Bai in a burnt state to the Victoria Hospital. Jabalpur, where she was administered treatment by Dr. Anil Dubey (PW 1 ). However, she succumbed to the injuries and died later on that night. ( 3 ) ACCORDING to the prosecution case, the accused/appellant wanted to marry again, which was being protested by the deceased wife Rani Bai. On the night of incident also, the deceased had a quarrel with the accused/ appellant on the above issue, where after the deceased poured kerosene oil on herself and the accused/appellant ignited her by a match-stick. She got extensive burnt and raised an alarm, hearing which Panchhiram (PW 5) and his wife Yeshodabai (PW 3) came to the spot where after Rani Bai was taken to the hospital. Dr. Anil Dubey (PW 1) initially examined her and she was also treated by Dr. Anil Sharma (PW 1 ). The dying declaration (Ex. P14) of the deceased was recorded by Naib-Tahsildar, G. P. Gothia (PW 11) and A. S. I, T. K. Pandey (PW 7) recorded the First Information Report (Ex. Plo) at P. S. Gorakhpur. After the death of deceased, postmortem was conducted by Dr. B. M. Shrivastava (PW 8) who found extensive burn injuries on the person of the deceased as detailed by him in his postmortem report (Ex. P 12 ). In the opinion of the doctor the cause of death was shock on account of extensive burn injuries. ( 4 ) THE learned Trial Court framed charge u/sec. 302 of the IPC. The accused/appellant abjured his guilt. The learned Trial Court after appreciation of evidence available on record mainly consisting of dying declaration (Ex. P 14) recorded by Naib-Tahsildar. In the opinion of the doctor the cause of death was shock on account of extensive burn injuries. ( 4 ) THE learned Trial Court framed charge u/sec. 302 of the IPC. The accused/appellant abjured his guilt. The learned Trial Court after appreciation of evidence available on record mainly consisting of dying declaration (Ex. P 14) recorded by Naib-Tahsildar. G. P. Gothia (PW 11), came to the conclusion that it was the accused/appellant who had set fire on the deceased and accordingly the accused/appellant has been convicted and sentenced as has been mentioned earlier. ( 5 ) THE learned counsel for the accused/appellant has mainly urged that the circumstances of the case do not support the dying declaration (Ex. P14) as recorded by Naib-Tahsildar J. P. Gothia (PW 11) and it has been urged that the dying declaration (Ex. P 14) was rot free from suspicion and was not made voluntarily by the injured in a fit state of mind. In this connection reference has been made to the case of K. Ramachandra Reddy and Anr. v. The Public Prosecutor. It has also been urged that as per the prosecution evidence itself the accused/appellant tried to extinguish the fire and raised alarm which clearly negatives his intention to commit murder. Reliance in this is made on State of Gujarat v. Mohan Bhai Raghbhai Patel and Anr. As against the above arguments the learned Counsel for the respondent/state has supported the judgment and finding recorded by the learned trial court. ( 6 ) THE dying declaration (Ex. P14) was recorded by Naib-Tahsildar. J. P. Gothia (PW 11) at about 2. 55 a. m. on 24-2-1986. According to the said dying declaration (Ex. P 14 ). deceased Rani Bai had stated that on account of altercation which took place between her and the accused/appellant she poured kerosene oil on herself and thereafter the appellant ignited her with match stick. The above conduct of the deceased of pouring the kerosene oil on herself appears to be unnatural and negatives the story that the accused/ appellant wanted to set her on fire. Again the statement of Panchhiram (PW 5) indicates that the accused/appellant was extinguishing the fire of his wife. It also appears that the accused/ appellant himself had raised alarm and had taken her to the hospital. Again the statement of Panchhiram (PW 5) indicates that the accused/appellant was extinguishing the fire of his wife. It also appears that the accused/ appellant himself had raised alarm and had taken her to the hospital. The burnt clothes of the deceased were seized by Investigating Officer, P. C. Sahu (PW 10) vide seizure memo (Ex. P4 ). ( 7 ) THE above conduct of the accused/appellant in trying to extinguish the fire of his wife which is supported by the burnt clothes seized by the Investigating Officer and raising an alarm immediately after the incident and taking her to the hospital for treatment negatives his culpability and intention to set his wife on fire. Moreover the conduct of the deceased in pouring kerosene oil on herself would also cast a serious doubt that the deceased was set on fire by the appellant. In the circumstances, the dying declaration (Ex. P14) is not supported by the above circumstances of the case and cannot form the basis for conviction of the accused/ appellant. It may be noticed that Panchhiram (PW 5) in para 5 of his statement has deposed that the deceased has told him on way to hospital that she herself had set fire which also negatives the fact that the deceased was set on fire by the appellant. ( 8 ) IN view of the above it appears more probable that feeling dissatisfied with the conduct of the accused/appellant in proposing to marry for the second time the deceased herself committed suicide. This is in fact evidenced by the statement of Yashodabai (PW 3) in cross-examination. Where in she has stated that a day prior to the incident the deceased had told her that she would die as she was not feeling happy. In view of above the dying declaration alone cannot form the basis for conviction of the accused/appellant. ( 9 ) THE appeal is accordingly allowed. The conviction and sentence of the accused/appellant u/sec. 302 of the IPC are set-aside. He is acquitted of the said charge. Since the accused/appellant is in jail he is directed to be set at liberty forthwith if not required to be detained in any other offence. Appeal allowed. .