Judgment BHAGWATI PRASAD, J. ( 1 ) THE present appeal arises out of the judgment of the learned Additional Sessions Judge No. 1, Chittorgarh dated 22-7-1997 passed in Sessions Case No. 81/96 whereby the accused appellants was convicted under Sections 302, I. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 500/- and in default to further undergo one months R. I. ( 2 ) THE accused appellants are brother in-laws of the deceased Smt. Badam Bai. They were tried by the learned Additional Sessions Judge for committing the murder of Smt. Badam Bai. ( 3 ) THE learned Additional Sessions Judge examined 23 prosecution witnesses. P. W. 1 Anita, daughter of the deceased, P. W. 2 Basanti Bai and P. W. 3 Sohani Bai neighbours who were the alleged eye-witnesses of the occurrence turned hostile and have not supported the prosecution. Not only these witnesses but also almost all the prosecution witnesses, who could depose anything against the appellants, have not deposed against the appellants. The learned Additional Sessions Judge has not taken any support from the testimony of any of these witnesses to base conviction of the accused appellants. He has recorded the conviction of the appellants on the basis of a dying declaration Ex. P. 6. This dying declaration Ex. P. 6 was recorded by the learned Magistrate. After placing reliance on this dying declaration the learned Additional Sessions Judge has convicted and sentenced the accused appellants as aforesaid. ( 4 ) BEING aggrieved by their conviction and sentence, the accused appellants preferred the present appeal. ( 5 ) ACCORDING to the prosecution, after the incident of burning the deceased was taken to the hospital and there looking the condition of the deceased a statement Ex. P. 7 of the deceased was recorded by P. W. 13 Satya Narain a police official. In this statement Smt. Badam Bai has statedthat she was given beating by her Jeth Narain, her husband, Sovni, Tara and Kanchani and then Narain poured kerosene oil and Basantiya lit the match stick. Her husband did not prohibit them from doing it. She has been married 8 years before the occurrence and she had three children. She has stated that she was subjected to beating regularly. This incident had occurred while she was sleeping in her house. Her husband did not prohibit them from doing it. She has been married 8 years before the occurrence and she had three children. She has stated that she was subjected to beating regularly. This incident had occurred while she was sleeping in her house. She was brought out in the chowk by these persons and she was burnt by pouring kerosene. The prosecution has not made this document as the basis for prosecuting the accused because Narain, Sovni, Kanchani and the husband of the deceased Ratan Lal have not even been charge-sheeted by the police for being prosecuted. This statement was recorded on 9-7-1996 at 12. 55 a. m. ( 6 ) THE basis of prosecution of the accused appellants was the dying declaration Ex. P. 6 a statement recorded by the learned Magistrate. This statement was recorded on 9-7-1996 at 2. 32 a. m. according to the endorsement made on it by the Duty Doctor. In this statement the deceased has stated that she was burnt by accused Basantiya and Tara. When she was asked at to what is the name of her husband, she replied that she does not know the name of her husband but later she corrected herself and said that the name of her husband is Ratan Lal. On being asked whether her husband was associated with those persons who committed the burning then she stated that she had come later on. For possible motive she stated that she had no quarrel with the accused Basantiya and Tara. They are her Jeths. She further stated that Basantiya gave her kicks and then Basantiya and Tara poured the oil and burnt her. The learned Magistrate put a note at the end of this dying declaration that the deceased is not in a position to speak clearly and her pronounciation is blurred. ( 7 ) LEARNED counsel for the appellants has criticised the recording of the conviction of the accused appellants by the learned Additional Sessions Judge on the basis of dying declaration Ex. P. 6. The case of the accused appellants is that in her initial version the deceased has given out the names of six persons as to be her assailant and the persons responsible for her burning. P. 6. The case of the accused appellants is that in her initial version the deceased has given out the names of six persons as to be her assailant and the persons responsible for her burning. Four persons out of these six persons were not even challaned by the investigating agency as the investigating agency has not been able to collect any evidence to support the allegations of the deceased against those four persons. The dying declaration recorded by the police has not been believed even by the police itself. Thus, the sanctity which is generally attached to a dying declaration that a dying man speaks truth has been subjected to serious doubt deven by the investigating agency itself and the prosecuting agency has not believed the version of the deceased qua the four persons. If this is the treatment given by the investigating agency to the statment of the deceased then what is the guarantee that the statement of the deceased in which she named the two accused appellants, she has given a correct statement, and she has not falsely implicated the accused appellants is a big question? ( 8 ) LEARNED counsel for the appellant further criticised the evidentiary value of the dying declaration Ex. P. 6 recorded by the learned Magistrate on the ground that the learned Magistrate has recorded that she was not speaking clearly and her speech was not clear. This clearly means that she had no control over her faculties. If she could not speak properly then her mental faculties were not functioning normally and it cannot be presumed that whever she said she had said consciously. To lay stress on this aspect of the matter, the learned counsel for the appellants has pointed out that part of the dying declaration Ex. P. 6 wherein she was asked about the name of her husband and she replied that she does not know the name of her husband. If she has that kind of understanding at the time of recording of this statement that she even did not tell the name of her husband at the time of recording the statement and replied that she does not know the name of her husband then obviously her mental state was not as normal as is stated by the prosecution. ( 9 ) LEARNED counsel further criticised the dying declaration Ex. ( 9 ) LEARNED counsel further criticised the dying declaration Ex. P. 6 on the ground that the deceased has given out six names in her earlier statement Ex. P. 7. Subsequently filtered four names and given out only two names. Not only that she filtered four names but when she was asked about her husband, whether he was present and participated in the occurrence? She said that he had come after the burning. This is a serious contradiction in her statement. Both the statements are not in conformity with each other. They do not conform even to the manner ofoccurrence. In Ex. P. 7 she has stated that Narain poured the kerosene oil and Basantiya lit the match stick but in her later statement Ex. P. 6 she said that Basantia and Tara poured the kerosene and fired. She does not put the sole responsibility for pouring the kerosene oil and lighting the match stick on any particular person, whereas in Ex. P. 7, the earlier dying declaration, she said that Narain poured the kerosene and Basantiya let the match stick. ( 10 ) LEARNED counsel for the appellants has further pointed out that the name of Tara Chand accused has not been written in Ex. P. 7 at the initial stage and has been added subsequently. The scribe of Ex. P. 7 has admitted that due to paucity of space he has written the name of Tara in small letters between the names of Sohani and Kanchan and such insertion of name of Tara in such manner creates a doubt on the prosecution case. Thus, it is not safe to make Ex. P. 6 as the sole basis of conviction. ( 11 ) LEARNED counsel for the appellants has drawn the attention of the Court towards the post mortem report Ex. P. 8 a document prepared by the Medical Jurist, General Hospital, Chittorgarh. In this document it has been recorded that the deceased was admitted in F. S. W. Chittorgarh at 12. 30 a. m. on 9-7-1996 and expired at 2. 30 a. m. on 9-7-1996. Learned counsel for the appellants has pointed out that if the deceased was admitted at 12. 30 a. m. on 9-7-1996 and expired at 2. 30 a. m. on the same day then it runs contrary to Ex. P. 6 which states that the dying declaration Ex. 30 a. m. on 9-7-1996. Learned counsel for the appellants has pointed out that if the deceased was admitted at 12. 30 a. m. on 9-7-1996 and expired at 2. 30 a. m. on the same day then it runs contrary to Ex. P. 6 which states that the dying declaration Ex. P. 6 has been recorded at 2. 32 a. m. on 9-7-1996. The prosecution has given no explanation for recording the time of death of the deceased as 2. 30 a. m. and the recording of the dying declaration is 2. 32 a. m. on 9-7-1996. This puts a big question on the eventuality of recording of the dying declaration Ex. P. 6. Therefore, the dying declaration Ex. P. 6 cannot be made the sole basis of conviction of the accused appellants. ( 12 ) LEARNED counsel for the accused appellants has further urged that the statements of the deceased Ex. P. 6 and Ex. P. 7 are not statements given by her on her own accord. These statements were the possible result of tutoring by the prosecution witnesses by whom she was surrounded at that time. These witnesses had a deep enmity towards the appellants. One of the accused has appeared as a defence witness and has stated that there was a long standing enmity between the witnesses and the appellants and there was a possibility of tutoring of the deceased by these witnesses before the statement was recorded. ( 13 ) LEARNED Public Prosecutor replying to the arguments of the learned counsel for the appellants has urged that since Ex. P. 7 is a dying declaration recorded by the police official no credence was given to it in preference to a statement recorded by the learned Magistrate. The statement recorded by the learned Magistrate was made the basis for prosecuting the two accused appellants as clear allegations have been levelled against these accused appellants that they are responsible for causing the death of the deceased. ( 14 ) LEARNED Public Prosecutor has further tried to explain that the time of death has been recorded by some official of the Hospital on the post mortem report from the record and may be that there was some mistake in recording the correct time of death. There is no reason why not to believe the endorsement made by the Duty Doctor recorded on Ex. There is no reason why not to believe the endorsement made by the Duty Doctor recorded on Ex. P. 6 that the statement was started at 2. 32 a. m. and continued up to 2. 45 a. m. Ex. P. 6 has rightly been made the basis of conviction by the learned Additional Sessions Judge. ( 15 ) WE have heard the learned counsel for the appellant as well as the learned Public Prosecutor and have also perused the record. LEARNED Additional Sessions Judge is right in discarding the prosecution evidence and not finding it of any worth for sustaining the charge against the accused appellants because the evidence is of no consequence. None of the witnesses have given any such evidence which can bring home the charge against the accused persons. Learned Additional Sessions Judge thereafter has relied upon Ex. P. 6 a dying declaration recorded by the learned Magistrate. ( 16 ) WE have to consider as to what worth dying declaration Ex. P. 6 has, to sustain the conviction. ( 17 ) THERE are two dying declarations on record Ex. P. 7 a dying declaration recorded by a police official and Ex. P. 6 another dying declaration recorded by the learned Magistrate. There is a complete variance in these two statements. Inex. P. 7 as many as six accused have been named whereas in Ex. P. 6 the number of accused has been reduced to two. That puts us on caution about the truthfulness of Ex. P. 6. ( 18 ) IN Ex. P. 7 the act of pouring the kerosene has been assigned to Narain. This accused has not even been named in Ex. P. 6. This omission does not find any explanation from the prosecution evidence. This omission in Ex. P. 6 puts us on guard to decide as to whether the statement recorded by the learned Magistrate can be made the basis of recording the conviction of the accused appellant. When the deceased had given two kinds of version one in Ex. P. 7 and other in Ex. P. 6 then the rule of prudence calls for some caution while adjudging the veracity of Ex. P. 6. ( 19 ) THERE is no evidence available on record to check whether the version given by the deceased in Ex. P. 6 is true or not. The manner in which Ex. P. 7 and other in Ex. P. 6 then the rule of prudence calls for some caution while adjudging the veracity of Ex. P. 6. ( 19 ) THERE is no evidence available on record to check whether the version given by the deceased in Ex. P. 6 is true or not. The manner in which Ex. P. 6 has been recorded shows that the deceased was incoherent in speaking the material facts. She had even stated at one point of time that she does not even know the name of her husband which she corrected later on and stated the name of her husband. That too shows as to in what kind of mental state she has. ( 20 ) THE learned Magistrate recorded that she was speaking in a voice which was not clear and, therefore, her infirmity is obvious from Ex. P. 6. ( 21 ) A doubt is created in our mind as to at what point of time the statement of the deceased Ex. P. 6 was recorded. According to the post mortem report Ex. P. 8 the death had occurred at 2. 30 a. m. If this time is correctly recorded then the statement Ex. P. 6 could not be recorded at 2. 32 a. m. Why there is this inconsistency has not been explained by the prosecution. This lapse goes a long way to create doubt on the statements made by the deceased Ex. P. 6 and Ex. P. 7. The part of throwing kerosene on the deceased has also been varied by the deceased in the two dying declarations and, therefore, this also creates a inconsistent stand of the prosecution. In this connection we are fortified by the decision of the Honble Supreme Court delivered in the case of Shakuntala v. State of Punjab, 1994 SCC (Cri) 1781 : (1994 Cri LJ 246) wherein it has been observed as under :-"to base a conviction on the basis of dying declaration, the Court must satisfy that it is wholly reliable and it should not suffer from any major infirmity. If there are some infirmities then the Court should examine whether they are fatal or whether there is any corroborating evidence which supports the prosecution case and renders the dying declaration acceptable. In the present case there are inconsistencies in the dying declaration. If there are some infirmities then the Court should examine whether they are fatal or whether there is any corroborating evidence which supports the prosecution case and renders the dying declaration acceptable. In the present case there are inconsistencies in the dying declaration. It also becomes doubtful whether the deceased was in a proper mental condition or not while making such a statement. All the documents also go to show that the deceased was not in a fit condition to make a statement. Under these circumstances it is highly unsafe to base the conviction entirely on this kind of dying declaration. " ( 22 ) IN this back-ground, it would not be safe to base the conviction of the accused appellants only on Ex. P. 6. Apart from this evidence, there is nothing on the record which can be looked into for examining the prosecution case and, therefore, we are constrained to observe that the finding of the learned Additional Sessions Judge for recording the conviction and sentence of the accused appellants are not liable to be sustained. ( 23 ) CONSEQUENTLY, the appeal succeeds and the same is allowed, the conviction and sentence recorded against the accused appellants under Section 302, I. P. C. are quashed. The appellants are behind the bars. Their appeal having been accepted they should be released from Jail forthwith if not required in any other case.