JUDGMENT - V.K. BARDE, J.:---The appellants are convicted for offence punishable under section 302 read with section 34 of Indian Penal Code, in Sessions Case No. 128/1993, by the Additional Sessions Judge, Aurangabad, and both of them are sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/-, each, in default of payment of fine, further rigorous imprisonment for three months. 2.The appellant No. 2, Kadubai, died during the pendency of this appeal. 3.The case of the prosecution, in brief, is as follows : (a) On 1-12-1992, at about 8 p.m., Sarjerao Tulsiram Mhaske, Sarpanch of village Akhatwada, and one teacher from that village, Laxman, made a report at the Police Station, Paithan, that one lady had sustained burn injuries in their village. Entry regarding that information was entered into station diary and thereafter P.S.I. Shaikh Feroz proceeded to the village in Police van along with Police Constables. Kantabai, the lady who had received burn injuries, was taken to hospital at Paithan for treatment. (b) P.S.I. then recorded statement of Kantabai in the hospital at Paithan. She informed, that on that day, at about 8 p.m., her husband Madhukar poured kerosene on her person and her mother-in-law, Kadubai, applied lighted match-stick to her and set her on fire, and she further stated, that her father-in-law was asking them to set her on fire. When she caught fire, they left the house and closed the door. She raised hue and cry. Then her husband opened the door and put off the fire by pouring water on her person. She informed that she and her husband were not on cordial terms. So also, her parents-in-law were not on cordial terms with her. She was deserted by her husband for one and half months. She went for cohabitation again. But on the day of incident, as she had gone for work in the field of Sarpanch, the accused got angry because of that and they set her on fire. She informed that the marriage had taken place 3- 4 years prior to the incident and she had no issue. On the basis of this report, Crime No. I-128/92 was registered for offence punishable under section 307 read with section 34 of Indian Penal Code. (c) The P.S.I. asked Taluka Executive Magistrate, Paithan, to record dying declaration of Kantabai. She informed that the marriage had taken place 3- 4 years prior to the incident and she had no issue. On the basis of this report, Crime No. I-128/92 was registered for offence punishable under section 307 read with section 34 of Indian Penal Code. (c) The P.S.I. asked Taluka Executive Magistrate, Paithan, to record dying declaration of Kantabai. So, on the same night, Taluka Executive Magistrate, Paithan, recorded dying declaration of Kantabai. Kantabai had received very serious burn injuries. So, she was transferred to Government Medical College Hospital at Aurangabad. (d) The Police carried out further investigation. The panchanama of the place of incident was prepared. The statement of witnesses were recorded. Accused No. 1 Madhukar was arrested on 1-12-1992. While accused Nos. 2 and 3 were arrested on 2-12-1992. The clothes i.e. pieces of burnt saree and other things found at the place of incident were seized by the Police. On 6-12-1992, Kantabai died in the hospital at Aurangabad due to burn injuries. The inquest panchanama was prepared and the post mortem examination was carried. The Doctor reported that the cause of death was septicemia shock due to 100% burns. Therefore, offence punishable under section 302 was applied instead of section 307 of Indian Penal Code. After completion of the investigation, Police submitted charge sheet against the present appellants and Shrimantrao, father of accused No. 1, before Judicial Magistrate (F.C.), Paithan. 4.As the offence punishable under section 302 of Indian Penal Code is exclusively triable by the Court of Sessions, Judicial Magistrate (F.C.), Paithan, committed the case to the Court of Sessions at Aurangabad. 5.The learned Additional Sessions Judge framed charge against the three accused, for offence punishable under section 304 read with section 34, and, section 302 of Indian Penal Code, simpliciter. 6.After recording evidence of the prosecution, statement of the accused under section 313 of Cr.P.C., and after hearing the arguments, the learned Additional Sessions Judge came to the conclusion that the prosecution has proved the case against accused No. 1, Madhukar, and accused No. 3, Kadubai, for offence punishable under section 302 read with section 34 of Indian Penal Code, and convicted and sentenced them, as stated above. However, accused No. 2, Shrimantrao, was acquitted by the learned Additional Sessions Judge, of offence punishable under section 302 read with section 34 of Indian Penal Code. 7.Heard Mr. However, accused No. 2, Shrimantrao, was acquitted by the learned Additional Sessions Judge, of offence punishable under section 302 read with section 34 of Indian Penal Code. 7.Heard Mr. S.R. Ghanekar, learned Counsel for the appellants, and Mrs. J.P. Akolkar, learned Additional Public Prosecutor, for the respondent -State. 8.The accused have not disputed that Kantabai, wife of accused Madhukar, had received burn injuries on the evening of 1-12-1992, and that, she died due to the burn injuries, on 6-12-1992. On going through the prosecution evidence of Sarjerao (P.W. 1), Laxman (P.W. 2) and Mohan (P.W. 3), it is amply brought on record that Kantabai, when was at her house on 1-12-1992 at about 8 p.m. had caught fire and she had received very serious burn injuries. The matter was first reported to the police and then she was taken to hospital at Paithan. Dr. Killarikar (P.W. 6), in his deposition at Exhibit 20, has stated that Kantabai was admitted in the hospital at about 9.55 p.m. on 1-12-1992 and she had received 91% burn injuries. He found that her condition was serious and, therefore, he advised to take her to Government Medical College Hospital at Aurangabad. The post mortem examination report, Exhibit 22, also supports the prosecution case, that Kantabai died due to the burn injuries. So, it is proved by the prosecution, that death of Kantabai was due to burn injuries. 9.Sarjerao (P.W. 1), in his depositon at Exhibit 6, has stated that on the day of incident, Kantabai had come to his field to work as labourer. In the evening, she went home and at about 8 p.m., he received information from his nephew Mohan, that Kantabai had caught fire. Therefore, he went to house of Kantabai and he saw that Kantabai was lying inside the house in burnt condition. He has further stated that she was crying, she was saying that she be saved and she was saying, that she was set on fire. Then, he and Laxman together went to Police Station and gave information to the police. 10.It is also in the evidence of Sarjerao, that since about 4 -5 months prior to the incident, Kantabai had left the house of her husband Madhukar and she was staying with her mother and only 9-10 days prior to the incident, she had returned back to the house of her husband. 10.It is also in the evidence of Sarjerao, that since about 4 -5 months prior to the incident, Kantabai had left the house of her husband Madhukar and she was staying with her mother and only 9-10 days prior to the incident, she had returned back to the house of her husband. He has stated that the accused were illtreating Kantabai. They used to beat her and they were keeping her without food and Kantabai was telling him about all this. He has also stated that accused used to ask Kantabai to bring money from her mother and she was being illtreated because she was issue less. 11.Witness Sarjerao has further stated, that Kantabai was taken to hospital at Paithan and there she told the police and Doctor, that her husband poured kerosene on her person, her mother-in-law lighted match and set her on fire and her father-in-law was saying that she should be killed. He has stated that he was present when this statement was made. 12.In the cross-examination, Sarjerao has admitted that he was not visiting house of Madhukar and Madhukar was not coming in his field as labourer. He has no concern with the accused and they were talking with each other only occasionally. Kantabai used to come for work on his field on some occasions. If all these admissions are taken into consideration, it means that Sarjerao was not a close friend of her family. He was also not close friend of Kantabai. Then how is it that Kantabai was telling family matters especially the illtreatment given by her husband and parents-in-law. It is rather difficult to believe that Sarjerao was having all this knowledge. 13.The peculiar situation here has arisen because of one suggestion given in the cross-examination to Sarjerao. It was suggested to him that he was having illicit relations with Kantabai and Madhukar did not like the same and he has denied that suggestion. If the prosecution had the case that Kantabai was having illicit relations with Sarjerao and, therefore, she was disclosing everything to him, it would have been another circumstance. But prosecution has not made any such attempt to show that Kantabai and Sarjerao were in intimate terms and, therefore, Sarjerao was having full information of the family matters of Kantabai. If the prosecution had the case that Kantabai was having illicit relations with Sarjerao and, therefore, she was disclosing everything to him, it would have been another circumstance. But prosecution has not made any such attempt to show that Kantabai and Sarjerao were in intimate terms and, therefore, Sarjerao was having full information of the family matters of Kantabai. Now, taking into account above suggestion made in the cross-examination, the prosecution cannot contend that because of intimacy between Sarjerao and Kantabai, Sarjerao was having full information about how Kantabai was treated by her husband and parents-in-law. 14.It appears that Sarjerao is having more interest in the matter and there is no proper disclosure from the prosecution as to why he should have so much interest in the matter and so much enthusiastic about making case against the accused. 15.In this respect, it is worthy to read deposition of P.S.I. Shaikh Feroz. He has stated in his deposition at Exhibit 13, that Sarjerao made a report at the Police Station, that one lady had sustained burn injuries. He is not stating that Sarjerao made a report that Kantabai had received burn injuries. In the deposition, Sarjerao states that Kantabai was crying, she was asking to save her and she was saying that she was set on fire. If Sarjerao had heard Kantabai saying so, what prevented him from stating before the Police, that Kantabai had stated that she was set on fire. If that would have been statement before the Police, then police would have taken entry in the station diary or would have recorded statement of Sarjerao and would have treated as F.I.R. However, the prosecution has not brought on record, the entry taken in the station diary by the P.S.I. on receiving information from Sarjerao. On the contrary, deposition of P.S.I. Shaikh Feroz indicates that only information given to the police was that one lady had caught fire. So, definitely, Sarjerao is improving his story while giving deposition before the Court. 16.Sarjerao has stated that he was present in the hospital when Kantabai made statement before the Doctor and P.S.I. But Mr. Feroz Khan, P.S.I., in this deposition, has stated that Sarpanch i.e. Sarjerao has not come to the hospital when they reached at the hospital and he further stated that Sarjerao was present at the Police Station when he returned to the Police Station. Feroz Khan, P.S.I., in this deposition, has stated that Sarpanch i.e. Sarjerao has not come to the hospital when they reached at the hospital and he further stated that Sarjerao was present at the Police Station when he returned to the Police Station. That means, during the period when P.S.I. was at hospital, Sarjerao was not there. So, the P.S.I., has falsified the evidence of Sarjerao when he says that he was present when Kantabai made statement before the Police and Doctor. This is another instance from his deposition which indicates that he is very much interested in prosecuting the accused. 17.In the cross-examination of Sarjerao, it was suggested to him that he had stated before the Police, when his statement was recorded during the course of investigation, that Madhukar, husband of Kantabai, sprinkled water on the body of Kantabai. But he has denied that he had made any such statement before the Police. This contradiction from his deposition before the Court and statement before the Police is duly proved by the accused through the cross-examination of P.S.I. Shaikh Feroz. This also indicates that for reasons best known to Sarjerao himself, he is improving his story at every stage to see that the accused are convicted. The evidence of Sarjerao is falsified by other evidence and circumstances brought on record and, therefore, it is very clear that he is not reliable witness. No part of his deposition can be relied upon. 18.Laxman (P.W. 2) is the person who had gone along with Sarjerao to the Police Station to make a report, that Kantabai had caught fire. He has not supported the prosecution case and, therefore, the prosecution cannot take advantage of his deposition. 19.Mohan (P.W. 3) is the nephew of Sarjerao (P.W. 1). He has stated in his deposition at Exhibit 8, that Kantabai was daughter of his mother's sister. That means, he is a close relative of Kantabai. Even then, he states in his examination-in-chief, that he was not visiting house of accused. But Kantabai used to come to his house whenever she was beaten and Kantabai used to tell his grandmother, that accused were asking her to bring money from her mother and he used to hear this talk by sitting by the side of his grandmother. Even then, he states in his examination-in-chief, that he was not visiting house of accused. But Kantabai used to come to his house whenever she was beaten and Kantabai used to tell his grandmother, that accused were asking her to bring money from her mother and he used to hear this talk by sitting by the side of his grandmother. 20.If the prosecution wanted to prove that Kantabai was being illtreated by the three accused, and that, Kantabai was telling grandmother of Mohan about illtreatment, then grandmother of Mohan would be the best witness to tell about illtreatment to Kantabai. She is not examined by the prosecution. Mother of Kantabai is also not examined by the prosecution. But a young boy hardly of 18 years of age is examined who could have been very much impressed by his uncle Sarjerao to give such a statement. 21.Mohan (P.W. 3) has stated that on hearing the commotion, he went to the house of Kantabai, 50-70 persons had gathered there. He was standing near the door of the room and Kantabai was telling that her husband poured kerosene on her person and her mother-in-law set her on fire by lighting a match. She was also saying that her father-in-law was asking her husband to kill her. He went home and told his mother about the incident. While going to his house, Sarjerao met him on the way and he told Sarjerao also about what had happened. 22.If Mohan had heard what Kantabai was saying, then 50-70 persons who were there, just near the house of Kantabai and who had gathered to see what had happened, they must have also heard what Kantabai was saying. Nobody from those persons is examined by the prosecution. Not only that, Sarjerao himself is not saying that Mohan told him that Kantabai was saying so. It clearly means that Mohan also cannot be relied upon to come to the conclusion that Kantabai had made the statement that the three accused were responsible for causing burn injuries to her. 23.Prosecution witness No. 4 is Mr. Rathod, Naib-Tahsildar and the Taluka Executive Magistrate, Paithan. His deposition is at Exhibit 11. He has stated that on 1-12-1992 at 10 p.m., when he was present at his house, P.S.I. Shaikh Feroz visited him and submitted a report in writing for recording dying declaration of one lady patient at Paithan hospital. 23.Prosecution witness No. 4 is Mr. Rathod, Naib-Tahsildar and the Taluka Executive Magistrate, Paithan. His deposition is at Exhibit 11. He has stated that on 1-12-1992 at 10 p.m., when he was present at his house, P.S.I. Shaikh Feroz visited him and submitted a report in writing for recording dying declaration of one lady patient at Paithan hospital. He then went to rural hospital at Paithan with P.S.I. He contacted Dr. Killarikar, Medical Officer, and enquired with him, whether the lady was conscious to record her statement. The Doctor told that Kantabai was conscious. The Doctor accompanied him in the ward where Kantabai was kept. 24.Mr. Rathod (P.W. 4) has further stated that he made enquiry with the lady about the name and address. She gave her name and address and then he enquired with her, as to how the incident took place and she told about the same. Then he asked her, whether she was suspecting anybody and she told that her husband Madhukar poured kerosene on her person and her mother-in-law Kadubai lighted a match and set her on fire. He has stated that he recorded all these answers of Kantabai in his own handwriting and obtained thumb impression of Kantabai. He signed it and the Medical Officer also signed it. The statement is at Exhibit 12. 25.The learned Counsel for the appellants has strongly disputed the genuineness of this dying declaration. He has pointed out that on the dying declaration, the time is mentioned, 10.30 p.m. While the P.S.I. Mr. Shaikh Feroz has produced the office copy of the report given to the Taluka Executive Magistrate. The same is at Exhibit 17 and there is the endorsement by the Taluka Executive Magistrate indicating that he had received that report on 1-12-1992 at 11.20 p.m. The prosecution has failed to explain how the report was given at 11.20 p.m. and dying declaration was recorded at 10.30 p.m., more than 50 minutes earlier than the requisition made for recording the dying declaration. 26.The learned Counsel for the appellants has also pointed out that the Taluka Executive Magistrate has nowhere stated that he read over the dying declaration to Kantabai, she admitted to be correct and then she affixed her thumb impression. On the contrary, in the cross-examination, he has admitted that he had recorded 3-4 dying declarations and those dying declarations were not read over to the concerned persons. On the contrary, in the cross-examination, he has admitted that he had recorded 3-4 dying declarations and those dying declarations were not read over to the concerned persons. It means, that this particular dying declaration, Exhibit 12, was also not read over to Kantabai and it was not asked to her, whether it was correct. 27.There is one more suspicious circumstance about this dying declaration. The Taluka Executive Magistrate has signed the dying declaration just below the answer to question No. 3. On left hand side of the signature of the Naib-Tahsildar, there is the signature of the Doctor and then at the bottom of this paper, there appears some ink spot which, according to the Taluka Executive Magistrate, is the thumb impression of Kantabai. In ordinary course, thumb impression of Kantabai ought to have been taken just below the last line of the dying declaration. It should not be at the bottom of the paper, that too, below the signature of the Doctor and the Taluka Executive Magistrate. Under that thumb impression, it is not mentioned that it is thumb impression of Kantabai. The so called thumb impression is such that it cannot be called as thumb impression because it is very faint, no lines are visible. If the Naib Tahsildar had taken with him an ink pad, it is not expected that the person who has worked as Revenue Officer for so many years and who is Naib Tahsildar must have obtained such thumb impression. Why there should be such thumb impression on Exhibit 12. 28.One more circumstance has to be noted, that Kantabai had received extensive burn injuries. As per the evidence of Doctor, the total burn injuries were 91%. The right upper extremities and left upper extremities were having 9% burn injuries. Then, how is it that the skin over the thumb was not burnt. No explanation is coming, either from the Taluka Executive Magistrate or from Dr. Killarikar or from P.S.I. Shaikh Feroz. 29.On reading this dying declaration Exhibit 12, it does not appear that it is in the language of an illiterate woman. The words used clearly appear to be the words of the Taluka Executive Magistrate. Here, it also has to be noted that the Taluka Executive Magistrate has not stated in clear terms that he had recorded statement of Kantabai in her own words. The words used clearly appear to be the words of the Taluka Executive Magistrate. Here, it also has to be noted that the Taluka Executive Magistrate has not stated in clear terms that he had recorded statement of Kantabai in her own words. 30.The dying declaration Exhibit 12 does not bear endorsement of the Doctor, that Kantabai was conscious, and that, she was in a position to give a statement. He has simply signed that statement and nothing more. The learned Additional Public Prosecutor has argued that Dr. Killarikar is examined by the prosecution. His deposition is at Exhibit 20 and he has stated that the patient was conscious when the Taluka Executive Magistrate recorded her statement. 31.The statement was recorded on 1-12-1992. The deposition of the Doctor is recorded on 7-9-1993, nine months after the incident. The Doctor was working in rural hospital at Paithan. How is it that he could remember after nine months about the condition of the patient when he had not made any endorsement anywhere on the dying declaration. It appears that just to oblige the Police and also to come out of difficulties for his own sake, he is now stating before the Court, that the patient was conscious when her statement was recorded. What prevented him from giving any such certificate on the dying declaration Exhibit 12 itself. A dying declaration without proper certificate from the Doctor, that the person was conscious and was in a position to give statement, is of no use to say that the prosecution has made out a case on the basis of such dying declaration. When all these circumstances which are mentioned above are taken into consideration, it has to be held that the prosecution has failed to prove so called dying declaration recorded by the Naib Tahsildar and Taluka Executive Magistrate. 32.P.S.I. Shaikh Feroz, in his deposition at Exhibit 13, has stated that after admitting Kantabai in the hospital, he made an application to the Medical Officer to certify whether she was conscious to record her statement and thereafter he recorded her statement. The same is at Exhibit 14 and it is treated as F.I.R. He has stated that the statement is recorded in the handwriting of writer Constable. It was recorded on his dictation by the writer. The Medical Officer was present when it was recorded. The same is at Exhibit 14 and it is treated as F.I.R. He has stated that the statement is recorded in the handwriting of writer Constable. It was recorded on his dictation by the writer. The Medical Officer was present when it was recorded. He himself signed it and Kantabai affixed her thumb impression on the statement. Exhibit 14 is that statement. 33.Kantabai had received 91% burn injuries. She was really suffering from pain. She might be conscious when she was admitted in the hospital. But was she in a position to make any statement and, that too, the long statement as recorded at Exhibit 14. The prosecution has not properly explained these circumstances. Here again, there is the endorsement of the Doctor, "Statement recorded before me", and he has signed it. But he has not given certificate, that Kantabai was conscious and was in a position to make the statement. P.S.I. Shaikh Feroz states that he made an application to Medical Officer to certify whether the lady was conscious for recording her statement. But that application is not produced on record. No certificate issued by the Doctor, to that effect, is produced on record. The prosecution has no explanation for these circumstances. 34.Exhibit 14 is treated as F.I.R. But here again, P.S.I. Shaikh Feroz is not stating that he read over the statement to Kantabai, she admitted to be correct and then her thumb impression was obtained. So, it was not verified from Kantabai, that whatever was written in Exhibit 14 was correct as per her say. On reading statement Exhibit 14, again the same problem arises, that it does not appear to be in the language of Kantabai. One cannot forget that she was illiterate woman and definitely, the spoken language of such a woman is quite different than language used by educated person. The language of Exhibit 14 is not that of an uneducated village woman. So, it becomes doubtful whether entire statement Exhibit 14 was made by Kantabai. 35.The learned Additional Public Prosecutor, Mrs. J.P. Akolkar, argued that Exhibit 14 is a statement made by Kantabai and it discloses the cause of death of deceased Kantabai. So, this also be treated as dying declaration. In ordinary course, if it had been proved strictly, that it was a statement made by Kantabai, then it would have been treated as dying declaration. J.P. Akolkar, argued that Exhibit 14 is a statement made by Kantabai and it discloses the cause of death of deceased Kantabai. So, this also be treated as dying declaration. In ordinary course, if it had been proved strictly, that it was a statement made by Kantabai, then it would have been treated as dying declaration. But here, we would like to mention two more circumstances with respect to Exhibit 14. 36.P.S.I. Shaikh Feroz has stated that writer Constable was the scribe of this statement. The writer Constable recorded statement as per dictation of P.S.I. Shaikh Feroz. That means, it was not recorded as per statements of Kantabai. The prosecution has not examined the scribe who has recorded statement Exhibit 14. The scribe of statement Exhibit 14 ought to have been examined to prove the dying declaration. The deposition of P.S.I. Shaikh Feroz is not sufficient to treat this statement as dying declaration. 37.We have already passed our comments regarding the thumb impression on Exhibit 12, the statement recorded by the Taluka Executive Magistrate. Now, the thumb impression on Exhibit 14 is also in the same ink. It is very faint. It is not disclosing any lines on the thumb. At the same time, it is perfectly in oval shape. How is it that the P.S.I. could obtain perfect oval shape thumb impression and the Taluka Executive Magistrate could not obtain. One way, these are minor circumstances. But when entire prosecution evidence is taken into consideration, as a whole, then this minor circumstance also create doubt as to whether thumb impression on Exhibit 12 was really of Kantabai and as to whether thumb impression on Exhibit 14 was really of Kantabai. Here again, below the thumb impression, it is not mentioned, that it is of Kantabai. The person who had obtained thumb impression below these statements has not signed that he had obtained the thumb impression. So, the F.I.R. Exhibit 14 cannot be treated as dying declaration. Otherwise also, it is not worth relying. 38.The next important witness on whose deposition prosecution is relying is Dr. Killarikar (P.W. 6). He has stated in his deposition at Exhibit 20, that on 1-12-1992, Kantabai was admitted in the hospital at about 9.55 p.m. He recorded history of injuries on the person of Kantabai on making enquiry with Kantabai herself. She told that her husband. 38.The next important witness on whose deposition prosecution is relying is Dr. Killarikar (P.W. 6). He has stated in his deposition at Exhibit 20, that on 1-12-1992, Kantabai was admitted in the hospital at about 9.55 p.m. He recorded history of injuries on the person of Kantabai on making enquiry with Kantabai herself. She told that her husband. mother-in-law and father-in-law, poured kerosene on her person and set her on fire. He, therefore, took an entry to that effect in medico legal case register. The xerox copy of the medico legal case register is produced on record at Exhibit 21 and we do find that there is entry to that effect on Exhibit 21. The learned Additional Public Prosecutor, Mrs. J.P. Akolkar, has argued that the Doctor had no personal interest in the matter. He is an independent witness. In ordinary course of his duty, he made enquiries with Kantabai regarding history of injuries and when he received history of injuries, recorded the same, therefore, it should be believed. 39.No doubt, Dr. Killarikar states that he made enquiries with Kantabai regarding history of injuries and she told the history. But here again, he nowhere states in his deposition at Exhibit 20, that when Kantabai made that statement, she was conscious and she was in a position to make that statement. On the medico legal case register. Exhibit 21, he has not made an endorsement, that Kantabai was conscious and was in a position to make statement and, therefore, her statement was recorded. 40.Dr. Killarikar has stated that the P.S.I. recorded statement of Kantabai and about 45 minutes thereafter, the Naib Tahsildar recorded statement of Kantabai, and he has further stated in the cross-examination, that he gave injection of Pethidine to Kantabai after her statement was recorded by Taluka Executive Magistrate. However, on Exhibit 21, there is specific endorsement, that injection Pethidine was given after the Police had recorded statement. Doctor was knowing that if Pethidine had been administered to the patient, then she would not be much alert to give answers to the questions put to her. But he had to state that the patient was sufficiently conscious when her statement was recorded by the P.S.I. and the Taluka Executive Magistrate. So, to save the investigation from any objection, in the cross-examination, he stated that the Pethidine was administered after the statement was recorded by the Taluka Executive Magistrate. But he had to state that the patient was sufficiently conscious when her statement was recorded by the P.S.I. and the Taluka Executive Magistrate. So, to save the investigation from any objection, in the cross-examination, he stated that the Pethidine was administered after the statement was recorded by the Taluka Executive Magistrate. But his own record falsifies the statement and shows that the Doctor has taken personal interest in the matter than his official duty. So, he is not an independent witness. He may not be closely connected with the accused. But for his own reasons, he has to show that he had acted properly and, therefore, he is making such statements which create doubt about his evidence. 41.In ordinary course, when patient who had suffered 91% burn injuries is brought in the hospital, the Doctor first try to reduce pain and suffering and would give injection of Pethidine or Morphine. But here is a Doctor who waits for more than one hour to give proper treatment to the patient and that is not believable. Even endorsement on Exhibit 21, that Pethidine was given after statement was recorded by the Police, cannot be believed. It is not necessary to repeat again but at the cost of repetition, we say that the Doctor has nowhere certified, that the patient was conscious and was in a position to make statement and in cross-examination, he makes that statement on the basis of his memory. Such evidence is not admissible especially where accused are being tried in murder case. 42.So, on considering all this evidence, it is very clear that though at three places, the prosecution has tried to show that Kantabai had made statement involving the accused, the prosecution has failed to make out that case. It is also worthy to note that in Exhibit 14, it is mentioned that her husband poured kerosene on her person, her mother-in-law applied lighted match-stick and set her on fire and her father-in-law was saying that she be burnt. While in Exhibit 21, the history recorded by the Doctor, it is mentioned that she was burnt by husband, father-in-law and mother-in-law by pouring kerosene and setting her on fire. So, this history recorded by the Doctor in Exhibit 21, does not tally with the statement in Exhibit 14. While in Exhibit 21, the history recorded by the Doctor, it is mentioned that she was burnt by husband, father-in-law and mother-in-law by pouring kerosene and setting her on fire. So, this history recorded by the Doctor in Exhibit 21, does not tally with the statement in Exhibit 14. 43.As against these statements alleged to have been made by Kantabai, the statement in Exhibit 12 which was recorded by the Taluka Executive Magistrate, it is mentioned that the husband Madhukar poured kerosene on her person and mother-in-law Kadubai applied lighted match-stick and set her on fire. There is no reference to father-in-law in the statement at Exhibit 12. It cannot be said that as Kantabai was in very much pains and sufferings, she could not give full statement because case of the prosecution is that Kantabai was very much conscious and was in a position to make a statement. Then how the statement recorded at Exhibit 12 does not tally with the statement recorded at Exhibits 14 and 21. 44.The learned Additional Sessions Judge has come across with this difficulty and he has acquitted accused No. 2, Shrimantrao, father-in-law of Kantabai and relying on Exhibit 12, he has convicted the husband Madhukar and mother-in-law Kadubai. When the prosecution has come before the Court with three dying declarations, then all three must be read together and those cannot be believed in part and disbelieved in part. It cannot be said that in one dying declaration there is no mention of one of the accused and in another dying declaration, there is mention of that accused, and so, that particular accused be acquitted holding that the case is proved against remaining two accused. Such type of logic is not permissible when the murder trial is held mainly on the basis of dying declaration. 45.If all these circumstances are taken into consideration, then it is very clear that the prosecution has no eye witness to prove that the accused committed the offence and the evidence brought on record by the prosecution evidence, on the basis of dying declaration, is not reliable to hold that the prosecution has made out the case. 46.Hence, we allow the appeal. Appellant No. 1, Madhukar s/o. Shrimant Mhaske, is acquitted of offence punishable under section 302 read with section 34 of Indian Penal Code. 46.Hence, we allow the appeal. Appellant No. 1, Madhukar s/o. Shrimant Mhaske, is acquitted of offence punishable under section 302 read with section 34 of Indian Penal Code. Appellant No. 2, Kadubai w/o. Shrimant Mhaske, is also acquitted, posthumously, of offence punishable under section 302 read with section 34 of Indian Penal Code. The order of conviction and sentence passed by the Additional Sessions Judge, Aurangabad, in Sessions Case No. 128/1993, on 24-9-1993, is set aside. Appellant No. 1, Madhukar s/o. Shrimant Mhaske, be released forthwith, if not required in any other case, Fine, if paid, be refunded. Appeal allowed. *****