A. R. TIWARI, J. ( 1 ) THE appellant, aged 95 years, now and suffering from actue ill-health, has questioned the validity of her conviction under Sections 498-A and 302 of the Indian Penal Code and sentences of one yearts rigorous imprisonment and of life imprisonment respectively there under as recorded by the First Addi. Sessions Judge, Dhar in Sessions Trial No. 263/88 on 26th June, 1991. ( 2 ) BRIEFLY stated the case of the prosecution is that the deceased Gyarsibai was cooking food at 9. 00 A. M. on 15. 04. 1988 in matrimonial home when the appellant, grandmother-in-law poured kerosene oil on her body from behind and lit fire. The deceased fleed from home to GALl when witnesses extinguished the fire and brought her to the Hospital at Dharmpuri. Written report was recorded in Roznamcha No. 447. The case was registered at Police Station Dharampuri at Crime No. 58/88 under Section 307/34 of the Indian Penal Code. Gyarsibai succumbed to the burn injuries. The case was converted to Section 302/34 of the Indian Penal Code which was initially registered under Section 307/34 of the Indian Penal Code against the appellant, Ratansingh and Lal Singh Investigation was completed and challan was filed. The case was committed for trial to the Court of Session. The Sessions Court framed charges under Section 498-A and 302/34 of the Indian Penal Code in which the appellant and the two co-accusedt pleaded not guilty. The evidence was then recorded. On evaluation of the evidence, the Session Court committed two co-accused but convicted and sentenced the appellant as noted above. Dissatisfied, the appellant has filed this appeal under Section 374 of the Code of Criminal Procedure ( 3 ) BY order dated 4. 7. 1991, this Court had directed that the execution of sentences shall remain suspended and that the appellant shall be released on furnishing bail-bonds and surety of the specified amount. The appellant is, thus, on bail. ( 4 ) WE have heard Shri P. S. Hada, learned counsel for the appellant and Shri G. Desai, learned Government Advocate for the Respondent-State. ( 5 ) THE counsel for the appellant submitted that the Sessions Court did not properly evaluated the evidential material and erred in recording the finding of guilt. He submitted that the one set of evidence was condemned by the other set of evidence. ( 5 ) THE counsel for the appellant submitted that the Sessions Court did not properly evaluated the evidential material and erred in recording the finding of guilt. He submitted that the one set of evidence was condemned by the other set of evidence. He further submitted that the entire prosecution story was meretricious. ( 6 ) SHRI Desai on the other hand has dubbed the aforesaid contentions as non-meritorious and has thus, supported the judgment of conviction. ( 7 ) WE proceed to examine the worth of rival contentions. ( 8 ) EX. P/9 is the alleged dying declaration of the deceased recorded by Rajendra Singh Thakur Tehsildar (PW-13) on 15. 4. 1988. ( 9 ) THE principle of which dying-declaration is admitted is Nemo moriturus proesumitur mentirit (a men will not meet his Maker with a life in his mouth ). However, this dying declaration has three dents, arrest beyond repair as noted below: a. The alleged Maker admits that she and the appellant were not on cordial terms. b. The allegation about Ratan is not found proved. c. Some of the witnesses examined in the case, have given story destroying the assertion recorded in Ex. P/9. ( 10 ) EX. P 19 is not in the form of questions and answers. In K. Ramchandra Reddy and Anr. v. The Public Prosecutor, it is held as under: 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 far as practicable in the words of the maker of the declaration, stands on a 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. In order to test the reliability of a 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 stated had not been impaired at the time he was making the statement by circumstances beyond his control the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. ( 11 ) PW-1 Bharatsingh, PW-2 Ayodhyabai, PW-4 Amarsingh PW-7 Narendra Singh and PW-8 Anand Singh have deposed about oral dying declaration, made to them by the deceased, PW-7 Narendra Singh and PW-8 Anand Singh, have however, not stated about the name of the appellant. PW-3 Jagdish his deposed as under: AAesusa X;kjth ckbz is iwnk Fkk fd og dsis tyh mi ie; ghjk yky vksj i[kkjke Hkh ogha ij Fksa] mius crk;k Fkk fd risyh mrkjus esa mids iyyksa esa vkx yx x;h ftiis og ty xbza This witness is not declared hostile by the prosecution. PW-5 Heeralal has also deposed on the lines of PW-3-although this witness was declared hostile by the prosecution. ( 12 ) GYARSIBAI had the burns to the extent of 54%. ( 13 ) EX. P110 is the injury report Ex. P/4 is the postmortem report. ( 14 ) IN Harchand Singh and Anr. v. State of Haryana, it is held as under: Held, it was a case wherein one set of evidence condemned and other set leaving the Court with no reliable and trustworthy evidence upon which the conviction of the accused might be based. ( 15 ) APART from contradictory set of evidence, it is significant to notice that Roznamcha No. 447, the first narration of the story (Ex. P 18-C) does not contain any allegation against the appellant or the acquitted two co-accused persons. ( 16 ) IN Ramkumar Pande v. The State of Madhya Pradesh, it is held as under: No doubt, an F. I. R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. P 18-C) does not contain any allegation against the appellant or the acquitted two co-accused persons. ( 16 ) IN Ramkumar Pande v. The State of Madhya Pradesh, it is held as under: No doubt, an F. I. R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence so far as they were known to up to 9. 15 p. m. on 23. 3. 1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, father would certainly have mentioned it in the F. LK We think that omissions of such important facts, flue ://d :\program Fiies\crimes\database\aa\aa\cmo 1998-1 (266 of 91 ). htm 8/10/2006 affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case TI ( 17 ) IT is, thus, clear that the story is manifestly meretricious and prosecution evidence falls show of indicating the veracity of the prosecution case against the appellant. ( 18 ) INDISPUTABLY the prosecution has led two sets of evidence which are mutually destructive. The case thus, discloses two sets of evidence and as such, there is no trustworthy evidence to sustain the conviction. Hostility is an additional factor to spell the doubt. The earliest version does not show any allegation against the appellant. In these circumstances, the case is doubtful and the benefit of doubt should belong to the appellant. ( 19 ) THE Sessions Court has not properly considered the impact of mutually destructive evidence. This feature diminishes the value of Ex. p 19 as well. The evidence of the witnesses implicating the appellant through oral dying declaration is rendered undependable in view of the contradictory set of evidence and the hostility between the deceased and the appellant. ( 20 ) THERE is no dependable evidence about cruelty. No presumption can be drawn. There was no charge of Section 302 simpliciter. Conviction is not on firm foundation. ( 21 ) THE prosecution is required to prove the guilt beyond reasonable doubt. Such is not the case here. ( 22 ) IN the circumstances, we allow this appeal and vacate the judgment of conviction and sentence. No presumption can be drawn. There was no charge of Section 302 simpliciter. Conviction is not on firm foundation. ( 21 ) THE prosecution is required to prove the guilt beyond reasonable doubt. Such is not the case here. ( 22 ) IN the circumstances, we allow this appeal and vacate the judgment of conviction and sentence. The appellant is accordingly acquitted of both the charges She is on bail. Her bail-bonds shall stand discharged. Appeal allowed .