Honble PRASAD, J.–The present appeal has been filed by Chimana Ram and Kishana Ram. These two accused appellants were convicted by the learned Sessions Judge, Merta vide its judgment dt. 26.7.79 in sessions case no.29/78. (2). Briefly stated the prosecution case was that in the night of 18th March, 1978 while Harji deceased was irrigating his field from the well known as `Akasia Bera, at that relevant time, accused Chimana Ram and Kishana Ram came there. They alleged that Harji had illicit relation with the wife of accused Kishana Ram. Harji refuted the charges. On his refuting, these accused persons levelled another charge that he has committed theft. The deceased had lived with the accused persons and passed about 10 years for assisting in agriculture operation. Harji de- nied the charge of theft. On his denial, the accused charged to assault Harji. He got scared and started running. He kept on running upto the river bank. He got himself concealed in the high rising of bushes of `Munj. The accused came at that place and they ignited the bushes. The place where Harji was concealing, there bushes were so denced that Harji could not get. The lower portion of his body sustained extensive burns. In that condition, he reached to his house and narrated the story to P.W.10 Mangu. P.W.10 Mangu lodged first information (Ex.P/3) at Police Station, Degana next day. On this report, formal F.I.R. (Ex.P/14) was recorded. At the initial stage, the case was registered under Sec.307 IPC. Looking to the condition of Harji, his dying declaration was recorded by the doctor (Ex.P/7). On 23.3.78, Harji expired in the hospital. On the expiry of Harji, the case was converted from 307 to 302 IPC. The accused were charge-sheeted. Charges were framed against these two accused persons under Sec. 302 IPC and another accused Revat Ram was charged under Sec. 302 read with Sec.34 IPC. The accused denied the charges and claimed for trial. After conclusion of the trial, learned trial Court acquitted the accused Revat Ram and convicted the accused appellant under Sec.302 IPC and sentenced to undergo life imprisonment. In basing conviction of the accused-appellants, the trial court placed reliance on dying delcaration recorded by P.W.13 Dr. Mathur (Ex.P/7) and oral dying declarations. (3). After conclusion of the trial, learned trial Court acquitted the accused Revat Ram and convicted the accused appellant under Sec.302 IPC and sentenced to undergo life imprisonment. In basing conviction of the accused-appellants, the trial court placed reliance on dying delcaration recorded by P.W.13 Dr. Mathur (Ex.P/7) and oral dying declarations. (3). Learned counsel for the appellants has assailed the conviction of the acc- used-appellants and has urged that both the accused appellants have been charged under Sec. 302 IPC simplicitor. The accused appellants have not been charged under Sec. 302/34 IPC. Appellants could not be convicted under Sec. 302 simplicitor because there was no evidence on record, as to who had ignited the fire. Actual lighting of the fire is not deposed by any of the witnesses of the prosecution. Only deceased in his dying declaration, could indicate the person who lit the fire. He was not in a position to see as to who actually caused fire because he was hiding. Therefore, the principal act of fire have not been deposed by the prosecution witnesses, the conviction is bad under Section 302 IPC. (4). Learned counsel further urged that oral dying declaration in substance varies from the written dying declaration recorded by the doctor. The witness of the oral dying declaration, P.W.1 Chanduri has stated that at about 10 or 11 in the night, when they were sleeping, Harji came. He was stark naked and lower portion of his body was burnt. She asked as to how, he was burnt, them he replied that he has been burnt by the accused Kishana and Chimana. He said that he was taken to the river and then burnt in `Munj. Another witness of the oral dying declaration is P.W.2 Radha. She has stated that Harji informed them that accused took him to the river and they have burnt him in `Munj. An interesting answer has been given by this witness in the cross- examination that before the report was lodged, the accused Chimana had come to the house of Mangu where Harji was there, he asked Harji as to who has burnt him. Then Harji did not reply and he covered his face. At the time when accused Chimana asked this question to the deceased at that time, Mangu, Jeevan, Sugani and various other persons were there. (5). Another witness of the oral dying declaration is P.W.3 Sugani. Then Harji did not reply and he covered his face. At the time when accused Chimana asked this question to the deceased at that time, Mangu, Jeevan, Sugani and various other persons were there. (5). Another witness of the oral dying declaration is P.W.3 Sugani. She also says that deceased has informed her that accused has called him and after calling, took him to river, there he was burnt in Munj. Another witness of oral dying declaration is P.W.4 Jeevan. Another witness of oral dying declaration was P.W.6 Asha Ram who has stated that on being asked, deceased Harji informed that he was burnt in river. Another witness of oral dying declaration is P.W.7 Jetha Ram. He informs that Harjis lower portion of the body was burnt and he informed him that he has been burnt by Chimana and Kishana. P.W.8 Ganpat Dan also deposes the same. P.W.9 Banshilal also deposes the same. P.W.10 Mangu also says that Harji informed that accused persons burnt him and took him to the river and there he was burnt in `Munj bushes. (6). From the above referred prosecution witnesses, the nature of oral dying declaration comes out that accused had called the deceased. They took him to the river and they burnt him in `Munj bushes. (7). Another dying declaration which has been brought on record as Ex.P/7 is a written dying declaration recorded by P.W.15 Dr. Mathur. According this written dying declaration, the accused came to him while he was performing irrigation op- eration in his field. Both the accused persons came and Kishana alleged that he has illicit relation with his wife. The deceased denied and asserted that they may ask Bidami. On being said so, they went and gave beating to Bidami. Then they came running to him and alleged that he has committed theft. From their gesture, he apprehended that they will indulge in quarrelling. He ran and got himself conce- aled in the `Munj bushes. They followed him and lit the `Munj bushes and ran away from there. The `Munj bushes were dense and therefore he could not get out of it and sustained burn. (8). Learned counsel for the appellant urged that tanner of both the dying declarations, the written dying declaration Ex.P/7 and another oral dying declara- tion is entirely different. According to the oral dying declaration, the accused had asked the deceased to accompany them. The `Munj bushes were dense and therefore he could not get out of it and sustained burn. (8). Learned counsel for the appellant urged that tanner of both the dying declarations, the written dying declaration Ex.P/7 and another oral dying declara- tion is entirely different. According to the oral dying declaration, the accused had asked the deceased to accompany them. They took him to the river and there burnt him in the `Munj. But this is not the story given in the written dying declaration. In the written dying declaration, the story is that the accused had first made allegation of infidelity against the wife of Kishana and alleged involvement of deceased. Then accused gave beating to the wife of accused Kishana and then threated deceased. Apprehending danager, the deceased ran away and concealed himself in the bush- es where he sustained burn injuries because accused had lighted these bushes. (9). In oral dying declaration, the going of the deceased with the accused was voluntary act on their invitation, whereas in the written dying declaration, he ran away under threat. In oral dying declaration, the allegation was that he was burnt with the bushes whereas in the written dying declaration, the allegation is that accused concealed himself in the bushes and the accused lighted `Munj, then he sustained injuries because he could not get out of it. In this fashion, learned counsel urges that prosecution has not given true version in its case and thereby the tanner of both the dying declarations differ materially. (10). Learned counsel for the appellant has further asserted that it has come in evidence of P.W.2 Radha that after the deceased sustained burn injuries, the accused asked him at his house, who has burnt him and he instead of replying anything covered his face. The accused had the guts of facing the deceased after he has sustained burns and ask him to name the person responsible for burns. Non-responding to the question of the accused before a large number of people goes to suggest that the version given in the dying declaration is not true. (11). Another circumstances which the learned counsel asserts is that deceased had sustain burns only on the lower portion of the body. Non-responding to the question of the accused before a large number of people goes to suggest that the version given in the dying declaration is not true. (11). Another circumstances which the learned counsel asserts is that deceased had sustain burns only on the lower portion of the body. If he was encircled in the bushes which was burning, then it is not possible that only lower part of the body will get burn and upper part will sustain no injury. The accused had returned home stark naked whereas on the seen of the occurrence, his cloths were lying. Even a primitive man tries to cover himself with the available cloths. The accused would not have missed this elementary thing and while having returned to his family members, he would have definitely covered himself with whatever the cloths were available. The occurrence has not taken place as has been deposed by the deceased and true facts have not been narrated by the prosecution and there- fore, the accused deserves to be acquitted. (12). Learned Public Prosecutor asserts that learned trial Court has rightly believed the case of the prosecution, the deceased would name his actual assailant. He sustained injuries at the hands of the accused. It is not a case where someone else was to give evidence. Here the injured himself has given evidence and there is no likelihood of his sparing his real assailants. (13). We have heard learned counsel for the parties and perused the record. (14). A comparison of two dying declarations suggests that in oral dying declaration, the deceased had stated that he was called by the accused and taken to the river and burnt there. The written dying declaration has been given by him to the doctor and has been recorded as Ex.P/7 is not what he gave out immediately after the occurrence to the witnesses. In the written dying declaration, he stated that allegations were levelled against him for having relation with the wife of accu- sed Kishana. The wife of accused Kishana was given beating. The fact of beating of Kishanas wife was not deposed by any of the witnesses of the oral dying decla- ration. In the written dying declaration, he stated that allegations were levelled against him for having relation with the wife of accu- sed Kishana. The wife of accused Kishana was given beating. The fact of beating of Kishanas wife was not deposed by any of the witnesses of the oral dying decla- ration. This fact that Kishanas wife was given beating by the accused persons gave another turn to the prosecution story and in this back ground, the oral dying declara- tion and written dying declaration are in conflict with each other. Further in the written dying declaration, the deceased has stated that he himself concealed him- self in `Munj bushes, whereas in the oral dying declaration, he has stated that he was burnt at the river in `Munj. In one, his act was voluntary in going to the river but he had not voluntarily gone in the `Munj bushes. But in the written dying decla- ration, he has stated that they had not called him and he had not gone with them on their invitation but he made himself scarce because he apprehended threat and on this he concealed himself. This was not on doing of the accused persons. (15). The accused had lighted `Munj bushes according to the written dying declaration. But he could not have seen the act of lighting as he was in hiding. It was his placing himself in those bushes, that has caused extensive burns. Who ignited and how ignition took place is neither deposed nor could be known to the deceased as he claims that he was hiding behind the bushes and therefore it cannot be said with certainty that it was these accused alone who had ignited the `Munj bushes. (16). The case of the prosecution can be judged from another angle. The accused had sustained burn injury only below the chest. If `Munj bushes were burning and he was lodged in them, then he could made his escape good very con- veniently because the standing bushes would not burn instantaneously from all sides and time will be taken in spread of the fire. It is also important that when the fire is in the bushes and some one is concealing in them, then it cannot be said that he would sustain injury on the lower part of his body only. His entire body is likely to suffer injury in that event. It is also important that when the fire is in the bushes and some one is concealing in them, then it cannot be said that he would sustain injury on the lower part of his body only. His entire body is likely to suffer injury in that event. Thus, the manner of occurrence is highly improbable. (17). The startling fact which has come in the prosecution evidence is that witness Radha has stated that accused Chimana was bold enough to come to their house and ask the deceased as to who had caused burns to him. The deceased had not dared to name him and say that it was `you.. On the contrary, the deceased had concealed his face. This shows that manner of occurrence was something different. How the deceased sustained injury was not, as given in two different dying declarations. In these circumstances, it would not be safe to convict the accused persons for the offence under Sec. 302 IPC simplicitor. When the basic evidence as to who and in what manner, lighted the `Munj bashes is not coming forth, then conviction of the appellants under Sec. 302 IPC simplicitor cannot be sustained. They deserve to be granted benefit of doubt. (18). Consequently, conviction of the appellants under Sec.302 IPC is set aside. The appeal is accepted. They are on bail. They need not to surrender. Their bail bonds are cancelled.