JUDGMENT 1. This appeal is directed against the judgment dated 19.8.1988 passed by Addl. Sessions Judge, Harda (Hoshangabad) in Sessions Trial No. 36/1988 convicting the appellant for the offence of murder of his wife Laxmi by burning, punishable u/s 302 IPC and sent sentencing the appellant to R.I. for life. 2. The trial Court has found it established that the appellant on 2nd Jan. 1988 at about 8.30 p.m. in his house at Khedipur (Harda), sprinkled Kerosene over her and torched her to fire. She was taken to Government Hospital where she expired on 10.1.1988 as a result of her burn injuries. 3. The conclusion of the trial Court is based only on dying declaration Ex.P.5 of the deceased, made to Dr.M.C. Garg (P.W.3) on the night of incident itself at 8.40 p.m. while she was conscious. In this dying declaration, she narrated that her husband was addicted to excessive drinking and used to beat her and that he poured Kerosene oil on her and set her to fire. This was stated in reply to the question as to how she got burnt. She had narrated that out of her 9 children, the elder one had gone to Bhopal and-in the house, there were small children only. The Doctor has certified that she was able to speak at that time. This dying declaration given by her, was sent to Police through P.W.1, Ward Boy of the Hospital, and on that basis, the F.I.R., Ex.P.2 was recorded by Police at Police Station, Harda at 9.10 p.m. 4. The post-mortem examination of the deceased had revealed deep burns to the following extent: face -9% right upper limb 9%, Left upper limb 9%, Chest and abdomen 18%, Right leg 6%, left leg and thigh 10% and in all 61%. There was no mark of other external injury. 5. Before the trial Court, there was one more contending dying declaration, Ex.D.1, recorded by Naib Tahsildar Chandra Mohan Soni (D.W.1) on 03.01.1988 at 11.05 a.m. The doctor on duty had opined that she was able to make statement in a fit mental condition. In this statement, Ex.D. 1, she narrated that at about 8 p.m. she was preparing 'Rotis' on the hearth (Chulha). Then, the 'Pallu' of her caught fire and her Sari stuck to her body while burning. She also stated that her husband came from outside and poured water over her. In this statement, Ex.D. 1, she narrated that at about 8 p.m. she was preparing 'Rotis' on the hearth (Chulha). Then, the 'Pallu' of her caught fire and her Sari stuck to her body while burning. She also stated that her husband came from outside and poured water over her. In the statement, the Naib Tehisldar asked her if her husband used to beat her. She denied it. Regarding the previous day's statement, she was questioned and she replied and further that she got burnt from a lamp (Diya) which she wanted to light. She was asked to explain whether she got burnt from the Hearth or the Lamp. She asserted that it was from the lamp which she wanted to light as it got extinguished while she was cooking 'Rotis' on hearth. She denied that she was prompted by anybody to make this statement on 03.01.1988. This statement is certified by Naib Tahisldar. Of course, it does not bear any signature or thumb mark of the deceased, whereas in the statement recorded by the Doctor on 02.1.88 there is some thumb mark of the deceased. 6. The trial Court has relied upon the evidence of Dr. M.C. Garg (P.W.3) and supporting witnesses P.W.4 Ram Sewak who was compounder in the Hospital and P.W.5 Sheikh Aslam, who was a sweeper in the Hospital. They claimed to have been present when the deceased made a statement to Dr. M.C. Garg on 02.01.1988, that is Ex.P.5 and they signed Ex.P.5. The trial Court found support to this dying declaration from the fact that it was immediately taken by P.W.1 Likhoram ward boy at the instance of the Doctor, to Police Station where it was converted into F.I.R. and the investigation started on this basis. 7. The trial Court rejected the dying declaration Ex.D.1, recorded by Naib Tahisldar with an observation that it was possible somebody had tutored her in between the 1st dying declaration and 2nd dying declaration, that is the main ground of preferring first dying declaration to second dying declaration. 8. The question before us is whether the trial Court was justified in giving preference to the 1 st dying declaration merely on an assumption that somebody might have intervened in between, to tutor her before Ex.D.1 was recorded. 8. The question before us is whether the trial Court was justified in giving preference to the 1 st dying declaration merely on an assumption that somebody might have intervened in between, to tutor her before Ex.D.1 was recorded. We have gone through the statement of Naib Tahsildar who is an independent person and also the statement of prosecution witnesses, particularly, Dr. M.C. Garg (P.W.3), Ram Sewak (P.W.4) and Sheikh Aslam (P.W.5). Dr. M.C. Garg narrated that the deceased was fit to make statement at 8.30 p.m. and her statement was completed by 8.40 p.m. on 2nd Jan. 1988. He certified about her fitness to make the statement and her being conscious during dying declaration also. It is pertinent to note that at 10 p.m. on the same day, the Tahsildar had called on her in hospital to record her statement, again, but at that time the Doctor opined that she was not conscious and not fit to make the statement. It was only on the next morning at 11.05 a.m. when the Naib Tahsildar was called again, the then Doctor on duty opined that she was conscious and mentally fit to give the statement. Thereafter, the Naib Tahsildar recorded the Statement Ex.D.1, but there is no thumb mark of the lady in this Exhibit. However, the Naib Tahsildar was not questioned about her signature of thumb mark on the 2nd dying declaration. Naib Tahsildar signed it. 9. On perusal of these statements of the witnesses, it appears clear to us that the 2nd dying declaration was made by the deceased while she was still conscious and the Naib Tahsildar recorded it truly according to her statement. She was even asked if she was tutored and she denied this. A particular question was asked by the Naib Tahsildar if her husband used to love her and she asserted in affirmity. She did say that some times there used to exchange of hot words between 'husband and wife'. This she narrated by saying but thereafter she was not being beaten by the husband as already noticed. She was asked about the earlier statement and she explained that at that time which would show that she was not fully conscious as per her own statement. 10. This she narrated by saying but thereafter she was not being beaten by the husband as already noticed. She was asked about the earlier statement and she explained that at that time which would show that she was not fully conscious as per her own statement. 10. The medical evidence in this case reveals that dying declarations Ex.P.5 and Ex.D.1 would clearly suggest that she was alternating between consciousness and unconsciousness on 2nd January 1988. According to the Doctor, she was conscious between 8.30 p.m. to 8.40 p.m. when she was brought to the hospital and immediate statement was recorded, but soon by 10 p.m. she lapsed into unconsciousness. Then she regained consciousness on 3rd Jan. 1988 and at 10.05 a.m. she was fit to make the deliberate statement. These factors have a bearing on the fact whether the 2nd dying declaration should be totally ingorned and if not, what is the effect ? 11. It is apparent that in this case there is no other circumstance brought on record as to why the 1 st dying declaration should be given preference to the 2nd and why the 2nd dying declaration should be taken as deliberately false or tutored. If there was pouring of Kerosene over her, then the spot of burning might have some indicators on it like presence of Kerosene on the floor or presence of bottle. These could be detected if the Police had rushed to the spot on the day of incident itself, soon after receiving the 1 st report. They did not go there. They went there only on 3rd January. The investigating officer, Babulal Gaur (P.W.9) does not give particular time when he reached the spot of incident. Although one bottle of Kerosene was there, but that is all, no other factors have been stated by him. It appears that no investigation was made regarding presence of hearth in the house and whether lighting was provided by lamp or electricity. So, circumstantially, it is difficult to say that 2nd statement of the deceased was a deliberately false one, or a tutored false one. 12. The dying declaration u/s 32 (1) of Evidence Act is accepted as a weighty evidence, because, at the time when the statement is made, it is expected that the deceased is not having any motives to falsely implicate certain specific accused persons. 12. The dying declaration u/s 32 (1) of Evidence Act is accepted as a weighty evidence, because, at the time when the statement is made, it is expected that the deceased is not having any motives to falsely implicate certain specific accused persons. It is also expected that being in a condition of approaching death, he or she would generally narrate the truth. An accused is always under a disability in cases of dying declarations, because the person who has made statement i.e. the deceased, is not available for cross-examination to check the veracity of his or her statement. Therefore, the criteria which the Courts have to follow to assess the weight of such dying declarations are that there should be no circumstances to doubt its truthfulness. It should be immediate. Further, in cases of more than one dying declarations, when there are differences between them, the Court has to proceed with extreme caution in reaching conclusion of guilt of the accused. If there is definite circumstantial or other evidence to show that one of the dying declarations was falsely extracted from the deceased as the behest of the accused to protect him, then there is nothing in law, to stop the Court from rejecting that dying declaration's outright and placing reliance on that dying declaration which implicates the accused, Vice versa is also true. 13. In the present case, where two dying declarations were recorded by independent persons who had no motive against the accused persons, it cannot be said that 2nd one is delayed. Of course, the former one implicating the accused is in terms of time, earlier. The latter one is also voluntary statement and she denies that anybody tutored her. There is no suggestion on behalf of the prosecution, either to the Doctor, to the compounder or to the sweeper or to the Naib Tahsildar that husband or his relatives were present or had been talking to the deceased before the Naib Tahsildar recorded her statement at 11.05 a.m. on 3rd January 1988. 14. Circumstantially, therefore, it is difficult to prefer one statement over the other, when she is explaining that she has no knowledge about her first statement by using the words Another aspect in this case, is that the hair of the deceased was sent to the laboratory for expert examination, but no report about them has been proved. 14. Circumstantially, therefore, it is difficult to prefer one statement over the other, when she is explaining that she has no knowledge about her first statement by using the words Another aspect in this case, is that the hair of the deceased was sent to the laboratory for expert examination, but no report about them has been proved. It is not known what was the result of chemical examination on the hair and whether Kerosene was on the hair. It is pertinent to note that in the post-mortem report, the body has been found to be burnt on the portions of legs, arms and abdomen and not on upper portions. The doctor has not been able to give specific opinion (sic) what would be the effect if the Kerosene had been poured on a person from (sic)-downwards when he or she was put to fire. So it cannot be said that it was certainly a case of pouring kerosene and then putting her to fire, when we go by the parts of the body burnt. The mere fact that the doctor noticed Kerosene smell from the body will not establish definitely that Kerosene had been poured on her. 15. In criminal trials, it is well established principle that the burden of proof is on the prosecution to establish the guilt of the accused, beyond reasonable doubt. The benefit of reasonable doubt goes to the accused. The circumstances in the present case are that there are two contending dying declarations, any of which could be true. Atleast the latter one could also be true. There is no other circumstance to establish with definitness that the husband poured Kerosene over her. She has narrated that the husband used to love her although initially she stated that the husband used to beat her, under the influence of liquor. So, she narrated opposing factors in two statements within a span of 15 hours with a night intervening in between. In these circumstances, the reason given by the trial Court to prefer the first dying declaration and to discard the second one, do not appear convincing or even just and proper and we are of the clear opinion that the possibility of the husband being innocent and the burning being accidental, as stated in 2nd dying declaration, is as much as possible truth of the 1st dying declaration. So the principle of 'benefit of doubt' clearly applies to the accused/appellant, in this case. Therefore, the accused is entitled to benefit of doubt and we acquit him of charges. The impugned judgment of conviction and sentence against appellant, passed by A.S.J., Harda, is set aside. The appeal is accordingly accepted. It is directed that he be set at liberty forthwith. Appeal allowed