Honble YAMIN, J.–This is an appeal filed by accused appellant Damodar against his conviction and sentence u/S. 302 IPC passed by the learned Sessions Judge, Jaisalmer vide his judgment dated 26.3.1992. He sentenced the appellant to undergo imprisonment for life and a fine of Rs. 2,000/- and in default to undergo imprisonment for one year. (2). Succinctly stated the allegation of the prosecution is that appellant Damodar is the brother-in-law of deceased Rakesh. Smt. Bhuri is the wife of appellant and Radhey Shyam is a friend. There was a dispute between Damodar and Smt. Tulsi about the daughter who was living with her parents. (3). On 29.7.1991, appellant Damodar and his wife went to the house of mother of Rakesh Smt. Saraswati and brother Kishan alias Kalu PW 19. They asked the mother of deceased to settle the dispute. Since there was apprehension of a quarrel, Smt. Saraswati and Kalu went to the house of Rakesh. They found Damodar, Bhanwari and Radhey Shyam outside the house of Rakesh. Smt. Tulsi was also present. Rakesh came out with a stick from his house. Then Damodar caught hold of his neck. Smt. Tulsi snatched the stick. Thereafter Damodar and Smt. Bhurki alias Bhanwari started giving beatings to Rakesh. At this stage, Saraswati and Kalu went to Police Station, Jaisalmer to lodge report of the incident. PW 11 Babulal, brother of deceased, came in their absence. Then accused appellant Damodar brought a jerrican of kerosene oil, poured oil on Rakesh and burnt. Babulal extinguished fire and then went to the Police Station in order to report the matter. Jeev Prakash PW 14 came there and found Rakesh burning. Jeev Prakash covered Rakesh, put him in a jeep and took to hospital. From the hospital the SHO of Jaisalmer was informed and requested that the dying declaration of Rakesh may be Jaisalmer was informed and requested that the dying declaration of Rakesh may be recorded. The SHO con- sequently requested the Sub Divisional Magistrate, Jaisalmer Mahaveer Prasad Sharma, who came to the hospital. He inquired from the duty doctor Jugal Sarraf PW 5 if Rakesh was in a fit condition to give statement and thereafter recorded dying declaration Ex.P/5. In his dying declaration Rakesh stated that Damodar poured kerosene oil on him and burnt with a match stick. Bhanwari and Radhey Shyam had a common intention to do so. He inquired from the duty doctor Jugal Sarraf PW 5 if Rakesh was in a fit condition to give statement and thereafter recorded dying declaration Ex.P/5. In his dying declaration Rakesh stated that Damodar poured kerosene oil on him and burnt with a match stick. Bhanwari and Radhey Shyam had a common intention to do so. This dying declaration Ex.P/5 was sent to Police Station, Jaisalmer where a case u/s. 307/34 IPC was registered. Ultimately Rakesh died. The SHO converted the case u/s. 302 IPC. Damodar was arrested. He made a disclosure statement to get the jerrican recovered and the same was recovered at his instance. Burnt pieces of clothes were also recovered during the investigation. The other two accused persons were also apprehended and ultimately all of them were charge-sheeted before the concerned Magistrate who committed them to face the trial before learned Sessions Judge. (4). Charges u/S. 302 IPC was framed against appellant Damodar on 22.10.1991. He denied it and claimed trial. Radhey Shyam and Bhanwari were charged u/S. 302/34 IPC. They also denied the charge and claimed trial. Prosecution examined as many as 14 witnesses. Then the accused persons were examined u/S. 313 Cr.P.C. They produced as many as six defence witnesses. Learned Sessions Judge after hearing both the parties acquitted Bhanwari and Radhey Shyam but convicted Damodar and sentenced him as stated above. (5). We have heard the learned counsel for the appellant as well as learned Public Prosecutor at length. (6). Learned counsel for the appellant has submitted that the prosecution has not been able to prove its case. He has criticized the dying declaration which is the sole basis of conviction supported by circumstances relied by the learned Sessions Judge. According to him, Rakesh was not in a fit condition to make any statement before Mahaveer Prasad Sharma. The said dying declaration is in the hand writingof one constable whose name is not known to the learned Sub Divisional Magistrate. The dying declaration is not in the form of question and answer and it does not contain any certificate or note in the beginning by any doctor that the patient was in a fit condition to make statement. Learned Sub Divisional Magistrate who recorded the dying declaration did not put any question to Rakesh if he was in a fit condition to make any statement. Learned Sub Divisional Magistrate who recorded the dying declaration did not put any question to Rakesh if he was in a fit condition to make any statement. Treating physician and the constable who scri- bed the dying declaration have not been examined. He has also submitted that the motive suggested by the prosecution is that there was a quarrel regarding the daughter of deceased. This motive is not proved by the evidence on record. According to him on the other hand, from the evidence of defence and the circumstances of the case it is established that the deceased was a man of short tamper and on account of a quarrel with his wife, he committed suicide in a fit of anger. He has also contended that the recovery of five litres container at the instance of the accused is not genuine because there is evidence to the effect that after burning, the accused had run away and at that time he could not have taken the jerrican. He has also contended that the fact of tutoring the deceased cannot be ruled out and hence the dying declaration would be unreliable. He has attacked the dying declaration on other counts as well submitting that it was recorded by a constable and not by the Sub Divisional Magistrate himself and, therefore, it may be possible that the learned Sub Divisional Magistrate put signatures on a statement recorded by constable who had brought him to the bed of Rakesh, making dying declaration. He has also submitted that dying declaration Ex.P/5 is not in question answer form and is not supported by any independent witness. Therefore, it should not be relied upon. For other reasons also he has submitted that they do not lead to the conclusion that the accused appellant burnt Rakesh. Therefore, he has prayed that the appellant should be acquitted. (7). On the other hand, the learned Public Prosecutor has tried to support the judgment of conviction and sentence passed by the learned Sessions Judge. (8). We have considered the rival contentions raised by the learned counsel for the appellant as well as the learned Public Prosecutor. (9). We may state that Rakesh died due to extensive burns as proved by Dr. Jugal Sarraf PW 5 who has stated that Rakesh was brought to hospital on 29.7.1991 in burnt condition. He was admitted. (8). We have considered the rival contentions raised by the learned counsel for the appellant as well as the learned Public Prosecutor. (9). We may state that Rakesh died due to extensive burns as proved by Dr. Jugal Sarraf PW 5 who has stated that Rakesh was brought to hospital on 29.7.1991 in burnt condition. He was admitted. After the death of Rakesh, post-mortem was conducted by this witness and according to him Rakesh died due to extensive burns so the death was caused. The question remains whether he was burnt by the appellant or he committed suicide. (10). Dying declaration alone can be the sole basis of conviction though Courts took for corroboration since the same cannot be tested by cross-examination. It was so held in a recent judgment of the Apex Court reported in State of M.P. vs. Mohanlal & Ors. (1). So we have to examine the dying declaration made by Rakesh before the Sub Divisional Magistrate PW 4 Mahaveer Prasad Sharma as the learned Sessions Judge has convicted the appellant solely on the basis of dying declaration. (11). PW 4 Mahaveer Prasad Sharma has stated that he was called to hospital in order to record the statement of Rakesh. He went there and inquired from the duty doctor if Rakesh was in a fit condition to give statement. Being satisfied to the effect that Rakesh was fit, he decided to record Ex.P/5. After the dying declaration was recorded, he obtained signatures of Dr. Jugal Sarraf who was on duty at the relevant time. He admitted that he dictated it to the police constable as per version given by Rakesh. (12). Learned counsel for the appellant drew our attention to the cross-exami- nation of PW 14 Mahaveer Prasad Sharma who has stated that when he reached near the bed of Rakesh he found that there were two or three persons present with him. There were private persons whom he did not know. There is no doubt that the witness did not certify himself on Ex.P/5 that Rakesh was in a fit condition to give statement but it was not necessary because he has put some preliminary questions and the doctor had told him that Rakesh was in a fit condition then he had started recording dying declaration of Rakesh. There is no doubt that the witness did not certify himself on Ex.P/5 that Rakesh was in a fit condition to give statement but it was not necessary because he has put some preliminary questions and the doctor had told him that Rakesh was in a fit condition then he had started recording dying declaration of Rakesh. He is not in a position to tell the name of constable in whose writing the statement was recorded but it is a fact borne out from his lengthy cross-examination that he was dictating to the constable whatever was being said by Rakesh. The suggestion made to the witness that the constable himself recorded the statement and then the witness put his signatures was refuted by the witness and it was so done rightly because though it would have been better that the learned Sub Divisional Magistrate should have recorded statement in his own hand yet when he got it recorded on his dictation as told by Rakesh, he has not committed any illegality. The Apex Court in Surendra Kumar vs. Delhi Admini- stration (2), has held that even if the dying declaration has not been recorded by the Magistrate in his own hand and if it testifies to other tests, it can be relied. It was not necessary for him to record the statement in question and answer form. In Padma Ben vs. State of Gujarat (3), it has been held that if the dying declaration is not recorded in question and answer form, even then it can be relied. (13). The law relating to the dying declaration can be summarised in the following points:– (1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole of conviction unless it is corroborated; (2) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) That a dying declaration stands on the same, footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. (5) That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers and, as for as practicable, in the words of the maker of the declaration, stands on much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) That in order to test the reliability of dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stted had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he has several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examina- tion. Besides the Court has to see that the dying declaration is not the result of concocting and tutoring and the declarant was in a fit state of mind to make the statement and made the same without any enmity. (14). Tested on the anvil of these principles we find that the dying declaration of Rakesh recorded by PW 4 Mahaveer Prasad Sharma can be relied upon the same was recorded when Rakesh was in a fit state of mind to make the statement but the presence of some other persons immediately before the dying declaration was recorded, is not ruled out. Therefore, there was a chance of tutoring Rakesh. (15). Learned counsel for the appellant cited Krishna Kumar & Anr. vs. State of Rajasthan (4) wherein it has been observed that when possibility of tutoring deceased is not ruled out, conviction cannot be based on such dying declaration. (16). Therefore, there was a chance of tutoring Rakesh. (15). Learned counsel for the appellant cited Krishna Kumar & Anr. vs. State of Rajasthan (4) wherein it has been observed that when possibility of tutoring deceased is not ruled out, conviction cannot be based on such dying declaration. (16). The defence of the appellant u/S. 313 Cr.P.C. is that his sister who was married to Rakesh had a quarrel with regard to their daughter. He has been roped in because of enmity as Babu (elder brother of deceased) had demanded some money from him which he did not give. We find from the statement of Smt. Tulsi DW 6 who is the wife of deceased that she wanted to go to her parents house alongwith her daughter to which Rakesh objected. He threatened that some loss would be caused. On the fateful day both of them quarreled and she went out of the house. At that time Rakesh went into the kitchen and sprinkled kerosene oil over himself and burnt himself. She made a hue and cry and then Leela immediately came. Thereafter she with the help of Leela extinguished the fire. Khetaram also came to their help and other neighbourers did come. She has further stated that her husbands elder brother Babu did not come. She has also stated that her husband Rakesh was taken to hospital by her mother-in-law and brother of Rakesh (Babu) alongwith police after one and half hour of the incident. It was Babu who was taking to Rakesh and had tutored him by saying that he should name Damodar. According to her, Babu and her mother-in-law used to live in a different colony where Kalu also used to live. She has gone to the extent of saying that her deceased husbands brother Babu was so cruel to her that he demanded 5,000/- rupees from her threatening that otherwise she would also be roped in. From her cross-examination it is clear that his daughter is about 2-3 years of age and the deceased did not want that she should be taken to his in-laws. She has maintained that she and Leela extinguished fire by throwing water and Khetaram also did so. From her cross-examination it is clear that his daughter is about 2-3 years of age and the deceased did not want that she should be taken to his in-laws. She has maintained that she and Leela extinguished fire by throwing water and Khetaram also did so. There is no reason why the widow of Rakesh would give a false statement in the facts and cir- cumstances when Babu PW 11 was not present at the site and instead he was present with his brother Rakesh at the hospital where he had an opportunity to tutor him. (17). According to Babu PW 11, he used to live separately from his mother and his brother Rakesh and his mother used to live with Kalu in Gandhi Colony. He has stated that he went to the house of Damodar appellant where Damodars mother and Damodars fathers elder brothers wife were present and they told that Rakesh and Damodar were quarrelling. Then he went near the house of Gazi Fakir and heard a noise coming from the house of Rakesh. He has stated that Damodar burnt Rakesh with a match stick and then ran away. Even in examination in chief he has stated that he did not know if kerosene oil or any other inflammable substance was poured on Rakesh. According to him, Leela Devi had come who tried to extinguish fire and then he went to the Police Station, took some constables with him and reached the spot. So according to his statement Leea Devi DW 4 was present. Leela Devi is, therefore, a very material witness. She has been produced as DW 4 before the trial Court. She has stated that she saw Rakesh burning and went to extinguish fire when she heard the noise of Smt. Tulsi. She inquired from Tulsi who told that her husband had quarreled with her and thereafter burnt himself. She has stated that she and Tulsi extinguished the fire and none else was present. She has stated that at that time Damodar was not present there and Damodar had come much later after Rakesh had burnt himself. She has categorically stated that Babu did not visit the place. So according to her statement, Babu was not present. From the cross-examination of PW 11 Babulal himself, it is borne out that his presence is doubtful, he was suggested that he asked through Bhurki to get Rs. She has categorically stated that Babu did not visit the place. So according to her statement, Babu was not present. From the cross-examination of PW 11 Babulal himself, it is borne out that his presence is doubtful, he was suggested that he asked through Bhurki to get Rs. 5,000/- from Tulsi before his statement was recorded and in case the amount was not paid to him, he would give statement as any eye-witness. The amount was not paid and he gave statement as an eye-witness. It is found that the police recorded his statement after three days of the incident and for this delay there is no explanation. He was present in the hospital when Rakesh was alive and the theory of defence is that Damodar had not given him money on his demand, therefore, he roped in Damodar by tutoring Rakesh. In the circumstances we hold that he is not a reliable witness and it is not safe to rely on his statement. (18). The other defence witness DW 2 Shamshuddin, who is not related to any of the parties, is very important. He has stated that at about 8 p.m. he was coming from his house to a hotel in order to take tea. He found certain persons standing on the road to whom Tulsi DW 4 was saying that her husband has burnt. According to him Damodar was also present. He was 50 paces away from the person who was burnt. He saw Damodar going towards that side. According to him Leela and Kheta were also present and a crowd had gathered. From his statement it is borne out that Damodar had come after Rakesh had burnt himself. So Damodar cannot be held to be a witness of occurrence. According to the prosecution, he is the sole witness who has been produced on behalf of the prosecution alleged to be an eye-witness but as we have already stated he is unreliable. (19).Other circumstance relied upon by the prosecution is recovery of jerrican. Damodar was arrested on 30.7.1991 vide Ex.P/4. On his information a jerrican was recovered vide Ex.P/10 on 2.8.1991. The jerrican was recovered at the instance of accused appellant from the house of Rakesh deceased. This recovery does not connect the accused appellant with the crime as there was no smell of kerosene oil from the jerrican. Such a jerrican can be used for any purpose. On his information a jerrican was recovered vide Ex.P/10 on 2.8.1991. The jerrican was recovered at the instance of accused appellant from the house of Rakesh deceased. This recovery does not connect the accused appellant with the crime as there was no smell of kerosene oil from the jerrican. Such a jerrican can be used for any purpose. Secondly, it has been recovered from the house of Rakesh himself where the accused appellant could not have concealed it in the circumstances of the case. (20). Learned counsel for the appellant submitted that according to the FIR Ex.P/1 (dying declaration) it were Kishan and the mother of Rakesh who extinguished fire. We have gone through the statements of these two witnesses. Mst. Saraswati PW 9 went to the house of Rakesh but was not present at the time of occurrence. She returned from the Police Station and found that Rakesh was lying in burnt condition. She does not say that she extinguished fire. PW 10 Kishan has stated that he and his mother had gone to the Police Station and when he returned he found that Rakesh was lying in burnt condition. He tried to extinguish fire and at that time even the SHO was present. He was taken to hospital. From the statements of these two witnesses it is borne out that Rakesh and his wife used to quarrel on account of the fact that Rakeshs wife wanted the daughter to take to her parents house. Therefore, in the circumstances this possibility cannot be ruled out that Rakesh had himself poured kerosene on him and burnt. (21). According to Kishan, the husband and wife started quarrelling in the lane and no one was present to see the incident. Even the neighbourers did not see the accident as they were inside their houses. He has categorically stated that when the SHO came Rakesh was lying in the lane. The burnt clothes were seized by the SHO and they were sent for chemical examination. We are constrained to say that the report of the FSL has not been made available on record. We are not in a position to say whether kerosene was at all sprinkled on the clothes. The burnt clothes were seized by the SHO and they were sent for chemical examination. We are constrained to say that the report of the FSL has not been made available on record. We are not in a position to say whether kerosene was at all sprinkled on the clothes. However, DW 6 Smt. Tulsi widow of deceased has categorically said that Rakesh went to kitchen and poured kerosene over himself as he was in a fit of anger due to quarrel between he and Mst. Tulsi. It was possible in the facts and circumstances of the case and the theory of defence is probablised as Smt. Tulsi and Rakesh had a serious quarrel. She has become widow and there appears to be no reason to disbelieve her. (22). In view of above discussion we are of the view that the prosecution has not been able to prove its case. The accused appellant deserves acquittal. (23). In the result, the appeal is accepted. The accused appellant is acquitted of charge u/S. 302 IPC. The appellant is in jail and shall be set free forthwith if not required in any other case.