JUDGMENT 1. This appeal is directed against the judgment dated 18.3.94 passed by the learned Special Judge SC/ST (Prevention of Atrocity) and Additional Sessions Judge, Ajmer, by which, he convicted the accused appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs.1,000/-, in default of fine, to further undergo six months' simple imprisonment. 2. The appellant was tried by the learned Additional Sessions Judge for the offence under Section 302 IPC for committing murder of his wife Smt. Kamla. 3. In short, the facts of the case are that Smt. Kamla was married about 20 years back with the appellant before her death. On 4.9.91 at about 1.00 PM., Smt. Kamla was admitted in the J.L.N. Hospital, Ajmer in burnt condition having about 90% to 100% burns, Shri V.D. Kavia, Medical Jurist informed the Krischian Ganj Police Station. On receiving the information Shri Chiranji Lai, SHO rushed to the hospital where Parcha Bayan Ex. p9 of Smt. Kamla was recorded. She. stated that round about 11 or 11.30 in the morning after cooking food when she came out from the kitchen, ace Pd appellant poured petrol on her from a container and pushed her in the kitchen where she caught fire from the burning stove, she cried for help but no one tried to save her. After some time a woman who was residing in the neighbour extinguished the fire by putting quilt on her body, at that time only her husband was in the home. On the basis of the Parcha bayan a case (FIR No. 151/91) under section 307 IPC was registered at the police station, Krischian Ganj. As the condition of Smt. Kamla was critical, her dying declaration was recorded by PW4 Mohd. Arif Modani, Judicial Magistrate. Smt. Kamla expired in the night due to extensive burns. In the next morning Panchayatnama was prepared and post mortem was conducted. After registration of the case, the Investigating Officer inspected the site and prepared the site plan Ex. P2, He seized "Thali", "Stove" and plastic container. Accused was arrested. After completing the investigation a charge sheet was filed against the accused for the offence under section 302 IPC in the court of Judicial Magistrate, who committed the case for trial to the court of sessions Judge Ajmer. P2, He seized "Thali", "Stove" and plastic container. Accused was arrested. After completing the investigation a charge sheet was filed against the accused for the offence under section 302 IPC in the court of Judicial Magistrate, who committed the case for trial to the court of sessions Judge Ajmer. The case was transferred for trial to the Court of Additional Sessions Judge, Ajmer. After hearing both sides, charge under section 302 IPC was framed against the accused, who pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as 8 witnesses statement under section 313 Cr.PC. of the accused was recorded. No witness was examined by the accused in his defence. 5. The learned Additional Sessions Judge, on the basis of the dying declaration Ex.PIO (Parcha Bayan) and Ex.P6 statement recorded by the Judicial Magistrate, held that the accused had committed murder of his wife Kamla and convicted and sentenced as mentioned earlier. 6. We have heard the learned counsel for the appellant and the public prosecutor and perused the record of the trial Court. 7. The learned counsel has challenged the impugned judgment on the following grounds and submitted that it was an accidental fire. 8. The trial Court has considered only two dying declarations : Ex.P9 and Ex.P6, but failed to consider the first dying declaration which was oral as stated by PW1. There are major contradictions in both the dying declarations (Ex.P9 and Ex.R6). Certificate from the Doctor was not obtained before recording the dying declaration about her mental alertness. She was having about 90% burns all over her body when admitted in hospital. She was not fit go give her statement, no reliance can be placed upon both the dying declarations. The fire was accidental, accused was present in the house he tried to extinguish the fire, he himself received burn injuries, even though he remained present throughout in the hospital arranged for the medicines. Once the dying declarations are excluded, there is no other evidence against the accused to prove that the accused committed murder of his wife. Therefore, this appeal be allowed. Once the dying declarations are excluded, there is no other evidence against the accused to prove that the accused committed murder of his wife. Therefore, this appeal be allowed. On the other hand, the learned public prosecutor has supported the judgment of trial court and has submitted that no doubt the case is based upon dying declaration, but both the dying declarations are truthful medical certificate about the mental alertness was obtained before recording the dying declarations, the case has been proved beyond reasonable doubt against the accused appellant by the prosecution evidence. 9. The present case is based upon circumstantial evidence, there is no direct evidence to the occurrence, circumstantial evidence can be the basis of conviction, if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent with the guilt of the accused i.e. the chain of the circumstantial evidence must be complete. It has been held by Hon'ble the Supreme Court in the case Mohan Lai Pangara v. State of Uttar Pradesh, 1974(4) SCC 607 as under "Men are convicted not merely on direct evidence alone but also,, on circumstantial testimony. It is trite law that when the evidence against an accused person particularly when he is charged with a grave offence life murder if it consists of only circumstances and not direct oral evidence it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty, not fantastic, possibilities nor break inference but rational deductions which reasonable minds made from the probative force of facts and circumstances." 10. The Apex Court in the case of Padala Veera Ready v. State of Andhra Pradesh & Others, AIR 1990 SC 79 has held as under "When a case rests upon circumstantial evidence such evidence must satisfy the following tests:- (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. The Apex Court in the case of Padala Veera Ready v. State of Andhra Pradesh & Others, AIR 1990 SC 79 has held as under "When a case rests upon circumstantial evidence such evidence must satisfy the following tests:- (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused : (iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else : and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis then that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with the innocence." 11. It is an admitted position that at the time of incident Smt. Kamla was living with her husband (accused) and he was present in the house at that time. But her son PW6 Narendra was not present as stated by Narendra himself. 12. This incident had taken place round about 11.30-12.00 A.M. on 4.9.91. She was shifted to the hospital immediately after the incident. Information was given by doctor to the Christian Ganj, police station. Shri Chiranji Lal, SHO was deputed to record the Parcha Bayan of Smt. Kamla. At that time she was having 90% to 100% burns on her body. She expired in the night at 11.55 PM. 13. The post mortem was conducted by Medical Board. According to post mortem report Ex.P5, the following condition/injuries were noticed by the doctors "External burns present-superficial to deep burns of face, neck, scalp, chest, abdomen, both upper extremities and both lower limits extremities completely. On back there was patchy burns. There was singeing of scalp hairs, eyebrows, eyelashes, auxiliary and pubic hairs. There is evidence of inflammation. Bunch of hair preserved from scalp for evidence of combustable substance and was sent from chemical analysis to FSI. Ex.A-4 is the FSL report. According to which trace fractions of hydrocarbons in the range of kerosene were detected. 14. There was singeing of scalp hairs, eyebrows, eyelashes, auxiliary and pubic hairs. There is evidence of inflammation. Bunch of hair preserved from scalp for evidence of combustable substance and was sent from chemical analysis to FSI. Ex.A-4 is the FSL report. According to which trace fractions of hydrocarbons in the range of kerosene were detected. 14. In the present case the trial Court has relied upon the dying declaration Ex.P9 recorded by SHO, Chiranji Lal in the form of Parcha Bayan of Smt. Kamla, Ex.P6, statement recorded by PW4 Shri Arif Mohd. Madani Judicial Magistrate & recovery of Thali, Stove, plastic can having smell of petrol. 15. The learned counsel has submitted that before the alleged dying declarations were recorded, Smt. Kamla made an oral dying declaration before the neighbours assembled, as stated by PW1 Sikander. According to him Smt. Kamla on being asked about the incident stated that "it was an accidental fire1. This witness has not been declared hostile, but the trial Court has not taken into consideration the statement of this witness. No reliance can be placed upon Ex.P9 and Ex.P6 because Medical Certificate was not obtained from the doctor whether she was in a fit condition to give statement. Moreover, both these statements differ on the material point as to How she caught fire". 16. The law on dying declaration is well settled by now. Dying declaration may be oral or written. What evidentiary value or weight has to be attached to such a statement depends on the facts and circumstances of each particular case. In the present case the evidence against the accused is only dying declarations Ex.P9 and Ex.P6. A Court is entitled to convict on the basis of a dying declaration if it such that in the circumstances of the case it can be regarded as truthful. On the other hand, if on account of an infirmity it cannot be held to be entirely reliable, corroboration would be required. If there are more than one dying declarations then the Court has also to scrutinise all the dying declarations to find out if each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon them. 17. If there are more than one dying declarations then the Court has also to scrutinise all the dying declarations to find out if each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon them. 17. We have examined the statements of PW1 Sikandar, PW4 Arif Mohd Madani, Judicial Magistrate and Chiranji Lal SHO in the light of the arguments advanced before us. 18. PW1 sikandar has stated that" vkSjrsa vkil esa dg jgh Fkh fd dSls tyhA rks izgykn th dh vkSjr us dgk fd og VkUM ij lkeku ys jgh Fkh LVkso uhps iM+k gqvk Fkk [kkuk id jgk Fkk rks eSDlh us vkx idM+ yh rFkk os ;g Hkh dg jgh Fkh fd izgykn th us cpkus dh dksf'k'k dh fQj ge izgykn th tks Hkh tys gq, Fks vkSj mudh iRuh dks Hkh vLirky ys x;s FksA "18-A. This witness has not been declared hostile. 19. Ex.P9 is the Parcha Bayan recorded by Shri Chiranji Lal SHO in female surgical ward of the hospital on 4.9.91. He has stated that before recording it, he obtained the certificate from the doctor about the fitness of Smt. Kamla and Ex.P9 was recorded in the presence of doctor, his signatures were also obtained on Ex.P9. But the letter written by Chiranji Lal to the doctor, and the certificate issued by the doctor have not been produced. The doctor has not been examined, it is true that Ex.P9 bears the signatures of the doctor, but there is no endorsement about the mental condition of Smt. Kamla. Therefore, there is nothing on the record to prove that when Parcha Bayan was recorded she was in fit condition to give statement. 20. Ex.P6 is the dying declaration recorded by Shri Modani, Judicial Magistrate on 4.9.91 at 3.35 PM. in female surgical ward of the hospital. He has stated that before recording the statement he obtained the certificate from the doctor about her condition and he himself found her in fit condition to give statement. Bu4t neither the medical certificate has been produced nor there is endorsement to the effect that Smt. Kamla is in fit condition to give statement. 21. He has stated that before recording the statement he obtained the certificate from the doctor about her condition and he himself found her in fit condition to give statement. Bu4t neither the medical certificate has been produced nor there is endorsement to the effect that Smt. Kamla is in fit condition to give statement. 21. According to Ex.P9 (Parcha Bayan) Smt. Kamla gave the following " esjk ifr esjs ls ikWap&N% fnu ls >xM+k dj jgk Fkk] dgrk Fkk fd rqe bruk iSlk dekrh gks dgkWa tkrk gSA eSa ftlls Hkh ckr djrh dgrk rsjk ;kj gSA rhu fnu ifgys esjs ls lkjh jkr 'kjkc ihdj yM+k&esjs ls ekjihV dh] esjs cPps us NqM+k;k &mldk uke ujsUnz gS] pkj fnu ls ?kj esa cSBk gS] VsDlh pykrk gSA edku ds dkxtkr ikl j[k fy, tsoj vius ikl j[k fy,A " 22. According to Ex.P6 (dying declaration). She stated as under : " iz'u%& ;g gky dSls gqvk\ mRrj %& eSaus iSls ds ckjs esa dgk fd iSls rks ?kj esa [kpZ gks x;sA og pkdw ysdj c<+k&esjs cPps us NqM+k;kA " 23. But PW6 Narendra has not supported the above version of Smt. Kamla. 24. About the incident Smt. Kamla further state (according to Ex.P9) that " vkt lqcg eSaus dgk vyx&vyx gks tkrs gSa] mlus gkWa Hkjyh] vkt lqcg 11&1@2&12 cts eSa [kkuk cukdj ckgj fudyh rks esjs ifr us esjs mij crZu ls isV~ksy Mky fn;k] jlksbZ esa LVkso ty jgk Fkk] lks esjs vkx yx xbZA esjs ifr us esjs isV~ksy Mkydj 'kk;n jlksbZ esa /kdsy fn;k] eSa tyrh gqbZ Nr ij xbZ] fpYykbZ fdlh us vkx ugha cq>kbZA ,d iM+kslu ftldks eSa uke ls ugha tkurh us esjs mij jtkbZ Mkydj vkx cq>kbZA 25. According to Ex.P6 Smt. Kamla stated as under iz'u %& vkt D;k gqvk\ mRrj %& og vkt ehV yk;kA eSaus ehV cukdj f[kyk;k o eSaus dgk /kU/ks ij tkvksA iz'u %& fQj D;k gqvk\ mRrj %& esjs ifr us esjs cPps ls iwNk fd lfj;k dgka gSA fQj esjs ifr us tks M~kboj gS viuh xkM+h esa ls cM+s crZu esa isV~ksy fudkyk vkSj tSls gh eSa jksVh cukdj fudy jgh Fkh rks isV~ksy esjs ij Mky fn;k o lfj;s ij diM+k yisVdj mlus LVkso ls vkx yxkdj tyk fn;kA ;g ckr vkt fnu ds djhc 12 cts dh ckr gSA ?kj esas dksbZ ugha FkkA nksuksa rjQ ls njoktk cUn dj fn;kA " 26. Therefore, there is material difference in both the dying declaration about the act "How she caught fire". Accused was a taxi driver. Taxi was out of order for the last 4-5 days. Accused was not feeling well as stated by Narendra. Shri Narendra has also not supported the statement of Smt. Kamla about the alleged quarrel which took place before three or four days. The woman who extinguished the fire by putting quilt has not been examined, even she was not interrogated during investigation otherwise the first version would have come on the record. The fact of cooking meet was not stated by Kamla at the time of recording of Parcha Bayan. 27. Thali, Stove and plastic can were recovered from the open chowk. No sign of fire were noticed by Investigating Officer at the time of site inspection. 28. Therefore, after careful scrutiny of the statement of Sikandar, Narendra and dying declarations. Ex.P9 and Ex.P6, we are of the opinion that it is not safe to place reliance on Ex.P6 and Ex.P9 for convicting the accused for committing murder of Smt. Kamla because the dying declarations does not appear to be truthful version of the occurrence. 29. Therefore, this appeal is allowed. The appellant is acquitted for the offence under section 302 IPC. He is in jail. If he is not wanted in some other case, he be released forthwith.> Appeal allowed. *******