JUDGMENT A.B. Palkar. J. - The appellant having been convicted - of offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer further rigorous imprisonment for one month by the learned Additional Sessions Judge, Nagpur on 30,3.1994 in Sessions Trial 'No. 743 of 1990 has challenged the said order of conviction and sentence in this appeal. The case of prosecution in brief is as below. 2. The appellant was married to Usha daughter of Govinda Atkari, resident of Usargondi, District Bhandara. The marriage was performed about 2-3 years prior to the incident which took place on 18-7-1990 at about 7.00 a.m. After marriage. Usha was residing at Sirsoli with the accused and had given birth to a child about two months prior to the incident. After initial marital life there used to be quarrels between Usha and the accused on petty matters and he was ill-treating her. There is, however no allegation that at any time there was any demand for non satisfaction of which quarrels took place. 3. On 18-7-1990 at about 7.00 a.m. accused asked Usha as to why she did not go to the field in order to work there It appears that the accused as well as his mother were agricultural labourers and so when Usha was asked as to why she had not gone to work in field, it is not known, whether it was with reference to his own field or somebody else's field. Usha replied that she had some domestic work and she would not go. Usha refused to go to the field and work there and, therefore there was some quarrel. Accused was annoyed and so he poured kerosene on her person and lifted a burning fire wood from the hearth and set her on fire as a result of which she sustained 80 per cent bum injuries. After there was screaming and shouting the accused poured - water and extinguished fire. In the meantime neigbourers and relations gathered there including Usha's sister. Parvati, who resides at some distance from her house. Said Parvati is also given in marriage to a resident of village Sirsoli and their marriage was also performed on the same date. Mahadeo Mate (PW- 5). husband of P.W. 4 Parvatibai sister of Usha also reached there. In the meantime neigbourers and relations gathered there including Usha's sister. Parvati, who resides at some distance from her house. Said Parvati is also given in marriage to a resident of village Sirsoli and their marriage was also performed on the same date. Mahadeo Mate (PW- 5). husband of P.W. 4 Parvatibai sister of Usha also reached there. She was taken to hospital by Mahadeo (PW 5). However at this stage itself, it is material to point out that there are two versions in this regard as according to Usha her two maternal uncles had come there and they brought her to the hospital. Usha was admitted in hospital as Bhandara and information was sent by Constable OR duty at Bhandara (City) Police Station after which P.S.I. Narkhede (PW 10) left for the General Hospital. In the information given on telephone by Constable Barewar, B/No. 24 it was stated that Usha wife of Madhukar Sapate was set on fire by her husband and was admitted in ward No. 17. Therefore, on coming to the hospital and contacting the Constable. PSI Narkhede went to ward No. 17. There he recorded statement of Usha in presence of doctor after getting certified from the doctor whether she was in a condition fit to give statement and doctor certifying to that effect. In the said statement also Usha stated that there was quarrel between her and her husband and she was asked to go to the field and bring grass. Her husband got annoyed because of her' refusal and poured kerosene on her and set her on fire with the burning fire wood. When she was set on fire her, her mother-in-law was also inside the house. but as soon as she was set on fire mother-in-law went out of the house. Thereafter accused poured water and extinguished the fire and after about 2 hours her maternal uncles viz. Karuji and Akhaduji Panchabuddhe brought her in a vehicle to the Government Hospital. Bhandara and admitted her After recording this statement of Usha in hospital offence was registered at Police Station. Bhandara under Section 307 of the Indian Penal Code vide Crime No. 0/90. Karuji and Akhaduji Panchabuddhe brought her in a vehicle to the Government Hospital. Bhandara and admitted her After recording this statement of Usha in hospital offence was registered at Police Station. Bhandara under Section 307 of the Indian Penal Code vide Crime No. 0/90. As the incident has taken place within the jurisdiction of Ramtek Police Station the matter was afterwards referred to Ramtek Police' Station through Head Constable Sonwane for further investigation and Head Constable Mohammad Idrish who was on duty at Ramtek Police Station received the papers from Head Constable Sonwane and he registered the offence as Crime No. 178/90 under Section 307. IPC at, Ramtek Police Station after obtaining necessary endorsement of Constable Sonwane on F.I.R. that the papers are handed over by him to Head Constable Mohammad Idrish. After recording the statement of Usha and registering the offence. PSI Narkhede sent requisition (Exhibit 41) to the Taluqa Magistrate. Bhandara for recording dying declaration. On receipt of the same Executive Magistrate Sudhakar Ingulwar (PW 9) came to the hospital and met the Medical Officer on duty. He asked the Medical Officer regarding condition of the patient and after it was certified by the Medical Officer that the patient was in a condition fit to give statement he, recorded dying-declaration of Usha in which also she repeated in substance the same story which was earlier narrated by her. After completing the statement, the Magistrate again requested the Doctor to certify that Usha was still in a condition fit to give statement and certificate to that effect was also obtained. 4. After the papers were forwarded to Ramtek Police Station and offence was registered there further investigation was conducted by PSI Namdeo Atkar (PW 12). He visited the scene of offence and drew panchanama thereof. Articles found on the scene of offence viz wooden stick in half burnt condition. one bottle of kerosene match-box etc. were seized. The clothes of deceased in half-burnt condition were also seized and samples of earth were collected. He recorded statements of Parvatibai w/o Mahadeo Mate (PW 4). Manadeo Mate (PW 5) father of deceased - Govinda Natkari his wife Jamunabai, Fakira (PW 3) and some other, witnesses. During the course of treatment Usha expired on 25.7.1990. were seized. The clothes of deceased in half-burnt condition were also seized and samples of earth were collected. He recorded statements of Parvatibai w/o Mahadeo Mate (PW 4). Manadeo Mate (PW 5) father of deceased - Govinda Natkari his wife Jamunabai, Fakira (PW 3) and some other, witnesses. During the course of treatment Usha expired on 25.7.1990. After message about her death was received entry was taken in the station diary and offence under Section 302 of the Indian Penal Code was registered that is to say the earlier registration of offence of Section 307, IPC was converted to the offence punishable under Section 302 IPC. Inquest Panchanama was drawn on 25.7.1990 and the body was sent for post-mortem. Post-mortem examination was conducted by Dr. Vaishali Khedikar (PW 8) and she found 80% third degree bums and opined that death was due to shock and absorption of toxic products from bum areas. After getting post-mortem notes and chemical analyser's report regarding articles which were sent earlier for examination, accused was charge-sheeted. 5. On committal of the case the learned Additional Sessions Judge framed charge under Section 302 of the Indian Penal Code. Denying the charge the accused stated in his defence in a statement under Section 313. Cr. P.C. that since he was outside the house and was brushing the teeth on the platform (Otta) situated in front of temple he saw his wife coming out of house in burning condition and immediately he poured water in order to extinguish fire. However he has been falsely implicated. 6. The prosecution examined as many as 12 witnesses and produced the documents including the two dying-declarations of deceased. Relying on the prosecution evidence mainly the dying declarations and other attending circumstances, the learned Additional Sessions Judge passed impugned order of conviction and sentence. 7. Having heard the arguments of the learned Counsel for appellant and learned Additional Public Prosecutor and having gone through the entire material on record,' we are convinced that the learned Additional Sessions Judge has not properly appreciated the evidence. He was failed to take into consideration the discrepancies and lacunae in investigation which we would in the following paragraphs of this judgment, indicate to have the effect of falsifying the entire investigation and so also the dying-declarations. He was failed to take into consideration the discrepancies and lacunae in investigation which we would in the following paragraphs of this judgment, indicate to have the effect of falsifying the entire investigation and so also the dying-declarations. Apart from the dying-declarations by P.S.I and Executive Magistrate the prosecution has relied on the evidence of oral dying declarations narrated to by the relatives of deceased Usha and since we are unable to agree with the appreciation of said evidence by learned Additional Sessions Judge, it is necessary to refer to the said evidence at length. 8. P.W.1 Govinda is father of deceased and his evidence is that first wife of accused had already taken divorce from him, because he was ill-treating her. However, from beginning of the marriage, accused was giving good treatment to his daughter and subsequently ill-treatment was started. Accused used to beat her and he tried to prevail on the accused to change and to give proper treatment to Usha. However it is not in his evidence that there was any demand and the ill-treatment, according to him, was due to some domestic quarrel. He has further admitted that when Usha was pregnant she was sent for delivery to the house of accused and after delivery, although he claims to have brought Usha to his house before this incident when the child was just two months' old he stated that Usha stayed at the parental house for about 8-10 days only. 9. As regards the incident according to him, resident of Sirsoli came to his house and told him that accused had poured kerosene on the person of Usha and set fire to her and Usha was admitted to the Government Hospital at Bhandara. He, therefore, went to the said hospital with his wife and his son Dnyaneshwar and other members of the family. In hospital, he noticed that Usha was completely burnt and Usha told him that a day prior to the incident, she was beaten by the accused and on the very next morning (the fateful day of the incident) when she got up from bed and prepared food, accused came from outside and started scolding her as to why she did not go to the field. She told him that it was not possible for her to go to the field in the morning which annoyed the accused and he started beating her. She told him that it was not possible for her to go to the field in the morning which annoyed the accused and he started beating her. Thereafter the accused poured kerosene on her person and set fire by means of fire-wood of hearth. Mter about 7 days Usha expired in the hospital and after her death he was summoned by the police for identifying the dead-body and for the purpose of inquest panchanama. In cross-examination he stated that a resident of Sir soli had come with his elder daughter and they jointly gave this information of the incident to him and as already pointed out the information itself was to the effect that Usha had been burnt by the accused by setting fire. He however admitted that he did not enquire about the name of the person from Sirsoli who had come and his further evidence would show that he and his elder daughter nowhere disclosed the name of person who had accompanied her although he was from village Sirsoli and the Investigating Officer never bothered to find out as to whether any person from village Sirsoli had come and if so who he was and who had given him the information that the accused had set fire to the -deceased. In his statement recorded by the police he has not stated that the man from Sirsoli had given information that Usha was set on fire by the accused and he did not offer any explanation why this material fact was not found in his statement. Similarly he did not even remember as to whether he had stated before the police the fact that he enquired from Usha regarding incident after he went to the hospital when she was admitted. He even did not state before the police that in the morning the accused came and asked Usha why she did not go to field and thereupon when Usha told him that she would not go to the field the quarrel st3rted and the incident took place. He even did not state before the police that in the morning the accused came and asked Usha why she did not go to field and thereupon when Usha told him that she would not go to the field the quarrel st3rted and the incident took place. He did not even remember whether he had stated to the police that the man from village Sirsoli told him that the accused had poured kerosene on the person of deceased Usha and she was set on fire, Similar is the evidence, of Kacharabai @ Yamunabai (P.W.2) Even though she had accompanied P.W.1 Govinda to the hospital she had a different story to tell. According to her after setting fire the Usha the accused closed the door from outside and thereafter having gone out he again opened the door and poured water on the person of Usha. It must be borne in mind that whatever she has narrated is on the basis of what she was told by Usha and if this witness and her husband had gone together to hospital and Usha had narrated the incident then there should not have been such a material contradiction in their statement. Moreover this evidence shows that what the witness is stating is unnatural and defies all logic. If the accused had intention to kill 'his wife and with that intention he had poured kerosene and set her on fire and having achieved If he was successful in closing door from outside. then it would be with the intention that Usha should not come out and should not get anybody's help and this would enable him to make good his escape. It is not only improbable but in our view impossible that after having achieved such an object enabling him to make good his escape the accused would again come open the door pour water to extinguish fire and see that Usha remains alive to disclose his name to neighbors and relatives and this shows how artificial the evidence is. In cross-examination she stated that when Usha was in 7th month of pregnancy she was brought to matrimonial house and after the ceremony of saree/choli, she was again taken by her husband to his house. She also admitted not to have enquired the name of person who came from Sirsoli to give information which was categorically to the effect that the accused was the culprit. She also admitted not to have enquired the name of person who came from Sirsoli to give information which was categorically to the effect that the accused was the culprit. Her evidence and evidence of her husband that accused was not providing sufficient food and also used to beat Usha, has to be considered on the background of the fact that in the 7th month of pregnancy having brought .Usha for function to their house, they again sent her to her husband's place. If the parents of any girl are aware that their daughter is being subjected to physical ill-treatment, then in such state of developed pregnancy, they would not send their daughter to husband's house and in any case, would at least make some attempt to see that she continues to live with them and the delivery is performed at their house. Their conduct of quietly sending their daughter with her husband shows that this evidence of ill-treatment is nothing but an after-thought story to butress all further evidence of accused having set fire and burnt Usha, resulting in her death. P.W.2 Kacharabai could not explain why this part of the story that accused had closed door; went out of the house; again opened the door and poured water, has not been stated by her in her statement under Section 161. Cr. P.C. It has come in her evidence that her elder son-in-law Mahadeo (P.W.5) had gone to Police Station for lodging complaint of this incident from their house. However, no such complaint lodged by Mahadeo is brought on record and even Mahadeo does not state to which a reference would be made while discussing his evidence. A very material admission in the cross-examination of P.W.2 Kacharabai is that in the hospital, the police recorded statement of her daughter Usha. Usha was alive for seven days and the witness stated- that seven statements, one each day, were recorded by police. She also stated that her statements and other witnesses' statements were recorded on the very day when she reached the hospital and that recording of statements was in the hospital. P.W.3 Fakira is the Pancha witness and he has stated that water was scattered on the scene of offence and his further evidence shows that when he asked Usha what happened, she told him that accidentally she got burnt and nobody set her on fire. P.W.3 Fakira is the Pancha witness and he has stated that water was scattered on the scene of offence and his further evidence shows that when he asked Usha what happened, she told him that accidentally she got burnt and nobody set her on fire. He was, no doubt declared hostile and it was suggested to him that he is making a false statement, because Usha was unconscious and could not have made any statement. This suggestion has come from prosecution and if Usha was unconscious, then equally, she could not have narrated the incident as deposed to by her relatives which was told to them by the person from Sirsoli who came with the information. All this evidence is regarding oral dying-declaration and it would be worthwhile to refer to the evidence of P.WA Parvatibai who is elder sister of Usha. She stated that she and Usna were married in the same pendol. Their houses were in close proximity in that small village. Her husband was comparatively a rich person having 20 acres of land and good residential house whereas Usha and her husband were living in a hut and all the family members of Usha were working as manual labourers. On the day of incident she heard from people who had gathered that Usha was burnt and so she went to her house and noticed Usha lying in burnt condition on the cot. Entire body of Usha was burnt and she was unconscious and thereafter her husband Mahadeo (P.W.5) informed civil hospital, Bhandara on telephone and ambulance was called. Her maternal uncle Akhadu Panchabuddhe had also come to village Sirsoli. She, no doubt, stated that Usha was taken to Civil Hospital, but did not explain as to who took her to the hospital and in consonance with her earlier statement that Usha was unconscious. she stated that after 2-3 hours of treatment. Usha regained consciousness in hospital and at that time she told her about the incident of pouring kerosene and setting fire by the accused. Regarding ill-treatment she had a different story to tell as in cross-examination she stated that it was mother-in-law who used to quarrel and she also had conveyed this to her parents. Usha regained consciousness in hospital and at that time she told her about the incident of pouring kerosene and setting fire by the accused. Regarding ill-treatment she had a different story to tell as in cross-examination she stated that it was mother-in-law who used to quarrel and she also had conveyed this to her parents. Although she is elder sister of Usha and is residing in neighbourhood she did not state that at any time, Usha had complained her about ill-treatment muchless about any beating by her husband. On the backdrop of this statement that Usha was unconscious as stated by her and as suggested to P.W.3 Fakira by the A.P.P. it is really difficult to know as to how the villager from Sirsoli who had gone to Usargondi to inform about the incident could narrate story of accused having set Usha on fire and in such situation the conduct of the Investigating Officer of not making any attempt to find out as to who the person was must be considered as a serious lacunae and although her story is that people gathered there told her that Usha was burnt in cross-examination she has stated that she did not remember to have stated to police to this effect. Her husband Mahadeo Mate (P.W.5) gave a version quite different from that of his wife. According to him after having seen Usha lying in burnt condition he went to village Khat to telephone to Civil Hospital. Bhandara for calling ambulance. His maternal uncle resides at village Deomundri and as Deomundri is on way to Khat he told Parasram about the incident and after telephone call he returned to village Sirsoli. He catried Usha on Rengi (small bullock cart which can carry at the most 2-3 persons) upto Tanda and from Tanda he took her to Bhandara and in the hospital. Usha told him about the incident. However he nowhere stated that any time Usha was unconscious and after sometime she regained consciousness. The statement that it was he who took Usha on Rengi upto Tanda and from there to Bhandara by some other vehicle is contrary to what Usha has stated in her first dying declaration to which reference would be made at an appropriate stage. Prosecution has examined one of the neighbouring witnesses viz. Bhalchand Bhute (P.W.6). The statement that it was he who took Usha on Rengi upto Tanda and from there to Bhandara by some other vehicle is contrary to what Usha has stated in her first dying declaration to which reference would be made at an appropriate stage. Prosecution has examined one of the neighbouring witnesses viz. Bhalchand Bhute (P.W.6). He however does not know exactly about the incident and claims to know about quarrels between Usha and accused and having heard people saying that Usha is burnt. His evidence is not therefore of much assistance to the prosecution but the fact that being a neighbourer he is not making any statement as to whether Usha, was conscious whether she made statement to anybody in village or anybody having seen Usha being set on fire is required to be considered on the background of fact that some villager are alleged to have gone to the parents of deceased to state in categorical terms that accused had set Usha on fire. The above discussion is sufficient to indicate that entire evidence of oral dying declaration is totally unreliable as the close relatives of Usha have given contrary versions and there is a clear attempt of improvement and therefore the material evidence that is required to be considered is, of written dying declarations one recorded by the police and the other by the Executive Magistrate". 10. The first dying-declaration is recorded by PSI Narkhede (PW 10). His evidence is that when at Police Station. Bhandara on 18.7.1990 he got information on telephone through a constable that a woman was burnt and was admitted to hospital and so he immediately rushed to the hospital in a jeep and on reaching there the Constable giving him information showed him memo on the basis of which he visited Ward No.17 and there he recorded the statement of Usha after getting certificate from the doctor that she was in a position to give statement. On the basis of the said dying-declaration (Exhibit 41), he registered offence under Section 307 of the Indian Penal Code being Crime No. 0/90. On the basis of the said dying-declaration (Exhibit 41), he registered offence under Section 307 of the Indian Penal Code being Crime No. 0/90. However his examination-in-chief does not help us to understand as to how he registered offence when he was in the hospital because for that purpose it is necessary for him either to take the dying-declaration with him and register the offence of send it to Police Station with somebody with a direction to register the offence to enable him to conduct further investigation in the said offence. The incident having taken place within the jurisdiction of Ramtek Police Station. offence under Section 307 of the Indian Penal Code was registered at "0" number and it was necessary later on to transfer it to the appropriate police station. This Police Officer has given some material admissions in the cross-examination which indicate that the entire investigation is not only faulty but makes the entire prosecution story unreliable. He has admitted that he does not remember to have taken any entry in the Station Diary when he received information at about 12.00 noon of 18.7.1990. He also does not know whether before leaving Police Station for the purpose of making further enquiry regarding the incident. Which was narrated on telephone by Police Constable to him any entry was taken in the station diary although he was aware that before leaving Police Station it is necessary to take entry in the Station Diary. He does not even remember whether entry was taken to the effect that he was proceeding towards hospital for recording statement of a burnt woman. The First Information Report (Exhibit 45) shows that before recording statement this witness had in clear terms informed the officer on duty that he had received information from Constable Barewar. B/No. 24 who was on hospital duty that Usha wife of Madhukar Sapate resident of Sirsoli was set on fire by her husband and was admitted in Ward No. 17. In fact this information should have been recorded in station diary and even on the basis of this earliest information opportunity to register offence was there but he admittedly did not register any offence nor any entry was taken in the station diary and as already pointed out his evidence that after recording statement of Usha. In fact this information should have been recorded in station diary and even on the basis of this earliest information opportunity to register offence was there but he admittedly did not register any offence nor any entry was taken in the station diary and as already pointed out his evidence that after recording statement of Usha. he recorded offence in vague inasmuch as it is not possible to know as to how offence was in fact registered and whether it was registered by him or through some other police staff available in the Police Station by sending the statement to him through any subordinate. Inthe statement that he has recorded. Usha has stated that her husband poured kerosene on her saree and with the help of burning stick from hearth he set her on fire. Her mother-in-law Radhikabai was present in the house and as soon as her husband set her on fire she went out of house. Thereafter her husband extinguished fire by pouring water on her person and after about two hours her maternal uncles Karuji Panchabuddhe and Akhaduji Panchabuddhe brought her in a vehicle to the Government Hospital Bhandara. This statement clearly falsifies evidence of P.W.5 Mahadeo Mate who claims to have taken Usha in Rengi upto Tanda and from there to Bhandara by some other vehicle. Apart from this, the two maternal uncles of Usha, v. Karuji and Akhaduji Panchabuddhe have not been examined. If P.W. 5 Mahadeo had taken them with him in the same vehicle upto Tanda and then to the hospital, such contradictory versions would not have come on record. On the contrary, P.W.5 Mahadeo has stated that when going to nearby Village Khat, on way he went to the house of his maternal uncle at Deomundri. Unfortunately, entire evidence of oral dying-declaration has not at all been scrutinised by the learned Additional Sessions Judge and he was satisfied by stating merely that there is nothing in the cross-examination of the witnesses to falsify them and, therefore, he is inclined to rely on the said evidence. It is for this reason that we have made reference to the said evidence at length. 11. It is for this reason that we have made reference to the said evidence at length. 11. PSI Narkhede, Investigating Officer has in categorical terms admitted that when the investigation was transferred to another Police Station, it is a part of investigation and even then entry was not taken in station diary when the matter was transferred to Ramtek Police Station through Constable Sonwane. He had the audacity to state that he has not brought the case diary to the Court when he was coming for evidence, which obviously means that he had not referred to case diary at any time before giving evidence and the case diary was never produced before the Trial Court and it is not sent to this Court with record by the learned Additional Sessions Judge. It is obvious from these admissions of the Investigating Officer (PSI Narkhede) that in respect of any event that was reported to the Police Station either on telephone or in the course of further investigation, entry whatsoever appears to have been taken in the section diary at any time and it is even doubtful as to whether there was a case diary properly maintained in respect of part of investigation conducted. He recorded dying-declaration on 18.7.1990 at about 1.40 pm. whereas the Executive Magistrate, Sudhakar Ingulwar (P.W.9) has recorded dying-declaration at 2.30 pm. Crime number 0/90 was also registered at 2.30pm. Sudhakar Ingulwar (PW 9) has also stated that on receiving requisition from Police Station, Bhandara (Exhibit 41), he went to the hospital and asked the doctor to examine Usha and after getting certificate from the doctor that she was in a condition fit to give statement, he recorded the dying-declaration which was read over to her and her thumb mark was obtained. Although the Executive Magistrate, Sudhakar Ingulwar has deposed on material aspects of the dying-declaration, it appears that inadvertantly the dying-declaration was exhibited in the evidence of Medical Officer, Dr Ramteke (PW 7) when he stated about certificate issued by him about fitness at the beginning of the dying declaration and at the end thereof. From the documents it appears that the requisition by the Magistrate to the doctor was given at 1.55pm (Exhibit 35) and thereafter by 2.15pm he completed recording of the dying-declaration. From the documents it appears that the requisition by the Magistrate to the doctor was given at 1.55pm (Exhibit 35) and thereafter by 2.15pm he completed recording of the dying-declaration. In the said dying-declaration, Usha has stated that at that time herself, her husband as well as her two months' old baby were in the house. Baby was in her hand. As soon as she was set on fire, immediately she kept the baby on the wooden cot and therefore, baby did not sustain any injury. She further stated that after she caught fire her husband poured water and extinguished fire. In this dying-declaration, there is no reference to the presence of her mother in-law Radhikabai in her house and reference is made to the two months' old baby which, according of her, was in her hand. Although she claims to have kept baby on the cot, the Investigating Officer never tried to find out as to what happened to the baby thereafter who lifted her from there ami whether in fact the baby was in her hand at that time, because it is highly improbable that when baby was in her hand, the accused would pour kerosene on her and would set her on fire. The argument of the learned Additional Public Prosecutor that before accused could bring burning fuel from the hearth she- must have kept the child on cot, deserves to be rejected, because had she got that much of opportunity, she would have run away and would not only keep the baby aside giving accused opportunity to do the further act of setting fire to her. Even the Executive Magistrate should have considered this aspect and should have put some more questions regarding child when, admittedly, according to Usha, the child did not receive any injury and, therefore, the prosecution evidence that when the child was in her hand, accused poured kerosene and set her on fire, appears extremely improbable. 12. Dr. Laxman Ramteke, Medical Officer (PW 7) has, no doubt, certified on both occasions i.e. at the time of recording dying-declaration by the PSI Narkhede and by the Executive Magistrate Ingulwar that deceased was in a condition fit to give statement. 12. Dr. Laxman Ramteke, Medical Officer (PW 7) has, no doubt, certified on both occasions i.e. at the time of recording dying-declaration by the PSI Narkhede and by the Executive Magistrate Ingulwar that deceased was in a condition fit to give statement. However, if we consider evidence of elder sister Parvatibai (P.W.4) that Usha became was unconscious on the spot and she regained consciousness after three hours or so, it was necessary for the Investigating Officer to find out from the case papers as to what was her condition when she was brought to hospital and when she regained consciousness. The case papers of the hospital are not produced. The deceased had sustained 80 third degree per cent bums which are most likely to send her into a shock and if she had become unconscious immediately on spot, then it is really important of find out as to when in fact she gained consciousness and evidence regarding the same should have been brought on record and mere certificate of the doctor that she was in a condition fit to give statement in the absence of any data disclosing the basis on which he has come to this conclusion is not sufficient to accept the evidence or-the two dying-declarations. 12. We are conscious of the legal aspect that dying-declaration, if satisfies the conscious of the court, Is by itself a piece of evidence on which conviction can solely rest, but the pre-condition is that it must appear to the court to be fully trustworthy sufficient to satisfy the conscious of the court. In this case, it does not appear to be so from the above stated circumstances and the fact that there was an attempt to create evidence, also goes a long way to suspect the disinterestness of the Investigating Officer and the Medical Officer and their impartiality. That evidence clearly appears to be biased. The approach of the Investigating Officer in not taking any entry during investigation in the station diary; in not bringing the case diary to the Court and the time period that was available before and after recording dying-declaration which is indicated in the above discussion, clearly leaves it to imagination as to when the Investigating Officer. PSI Narkhede recorded the dying declaration and' how he registered the offence and with whom he sent requisition to the Executive Magistrate and the Executive Magistrate could come to the. PSI Narkhede recorded the dying declaration and' how he registered the offence and with whom he sent requisition to the Executive Magistrate and the Executive Magistrate could come to the. Hospital for recording dying-declaration of the deceased. From the above discussed evidence, it appears that this happened within an hour or so and in the circumstances clear evidence regarding his movements should have been given by PSI Narkhede to show as to what he did after recording dying-declaration in respect of registering the offence and - further steps to send requisition to the Magistrate. The witnesses which are examined on the point of oral dying-declaration, are all close relatives of the deceased. When the deceased stated that the accused had poured kerosene, no attempt was made by the Investigating Officer to find out as to where the accused was and here he had gone after the incident. It is also doubtful as to who in fact brought Usha to the hospital. The entry of telephone message given by P. W.5 Mahadeo to the hospital, is also not seized from the hospital record and since the case papers are not produced, it is not known as to who had taken Usha to hospital and two versions in that respect have come, as indicated in the earlier discussion. In the circumstances, either of the maternal uncles who according to Usha, had taken her to hospital should have been examined in order to find out whether he had seen Usha in conscious condition and whether she told him anything. 14. Now, as already indicated, offence was registered at Bhandara Police Station at “O” number and the said papers were forwarded to the Ramtek Police Station by Bhandara Police through constable Sonwane. These papers were received at Ramtek Police Station by H.C. Mohammad Idris (PW-11) after which he registered offence under Section 307 of the Indian Penal Code at number 178/90 of Ramtek Police Station. There was no investigation pending with Bhandara Police Station thereafter. Inspite of this, after death of Usha when inquest report was sent and inquest panchanama was drawn on 25.7.90 at Bhandara by ASI P.B. Somkuwar of Bhandara Police Station he has referred to Crime Number as MO/90" of Bhandara Police Station only. There was no investigation pending with Bhandara Police Station thereafter. Inspite of this, after death of Usha when inquest report was sent and inquest panchanama was drawn on 25.7.90 at Bhandara by ASI P.B. Somkuwar of Bhandara Police Station he has referred to Crime Number as MO/90" of Bhandara Police Station only. If the papers had already been despatched to Ramtek Police Station from Bhandara on 19.7.90 through Constable Sonwane, then Bhandara Police would have naturally become aware of the crime registered at Ramtek Police Station and the inquest panchanama must be drawn at the instance of person who by that time had taken over investigation i.e., PSI Namdeo Atkar (PW 12). Even if drawn by some officer of Bhandara Police Station, the fact that the offence had then been transferred at Ramtek Police Station ought to have found place in the said panchcmama. The absence of all this, creates doubt regarding the fact as to whether till the death of Usha there was any offence registered in Ramtek Police Station or not and it that is so, then the entire evidence of dying-declaration becomes extremely suspicious and appears to have been created after the death of Usha. 15. In addition to this the admission of mother of Usha that on each and every day dying-declaration of deceased was recorded and in such manner, seven statements of the deceased were recorded, also shows that there was consistent attempt to find, out whether any favourable statement can be secured and therefore also the above suspicion that dying-declaration may have been prepared afterwards and may have been anti-dated, is fortified and that also appears to be reason why no Station Diary entry was ever taken or produced in the Court and why the case diary was not brought by the Investigating Officer to the Court while giving evidence and why it is suppressed all along. 16. The conduct of the accused is also material. Normally if the accused had set his wife on fire with intention to do away with her life specially when there was no outsider present there to see, he had no reason to extinguish the fire. 16. The conduct of the accused is also material. Normally if the accused had set his wife on fire with intention to do away with her life specially when there was no outsider present there to see, he had no reason to extinguish the fire. The fact that at the time of spot panchanama water was found spread on the scene of offence, shows that the fact that accused poured water and extinguished fire, appears true and it is improbable that the accused would make attempt to see that his wife survives and thereby allow the evidence against himself to be available to the police. PSI Atkar (PW 12) has also stated in his evidence that he also recorded one dying-declaration of Usha although he denied that for all the seven days dying-declarations were being recorded on every day. This dying-declaration recorded by PSI Atkar has not been produced on record. Even assuming for the sake of argument that it was similar to the two dying-declarations which are on record, there was absolutely no reason for the police to not to bring it on record and provide copy of it to the accused and the possibility of the same being contrary to what the prosecution case has been made out is more and that is why the production of case diary was absolutely necessary. In any case, these circumstances create doubt regarding reliability of the two dying-declarations on which the entire thrust is placed by the prosecution. PSI Atkar of Ramtek Police Station stated that entry in respect of death of Usha was taken in the Station Diary. That Station Diary is not on record, but the conduct of the Investigating Officer from Bhandara Police Station, PSI Narkhede in not taking any entry in the Station Diary of Bhandara Police Station, creates doubtin the entire investigation that he conducted till the matter was handed over to Ramtak Police Station. 17. The F.I.R. in printed form registered at Ramtek Police Station is at Exhibit 47. When exactly Constable Sonwane handed over the F.I.R. registered at Bhandara Police Station also creates suspicion if one looks carefully at the original document. The offence was initially registered under Section 307 of the Indian Penal Code. 17. The F.I.R. in printed form registered at Ramtek Police Station is at Exhibit 47. When exactly Constable Sonwane handed over the F.I.R. registered at Bhandara Police Station also creates suspicion if one looks carefully at the original document. The offence was initially registered under Section 307 of the Indian Penal Code. The printed First Information Report is signed by Head Constable, Mohammed Idrish has he has used a peculiar type of pen of which ink is in other colour than the written portion of the F.I.R. The said hand-writing of Head Constable Idrish is also seen at the top portion where the offence under Section 307 is mentioned. As after that Section, Head Constable Idrish has mentioned in the same ink the words in the vernacular as meaning thereby IPC. However, admittedly, the offence was converted to one under Section 302 of the Indian Penal Code on 25- 7-1990 after the death of Usha. The endorsement of Police Constable Sonwane of Bhandara Police Station on this document made on 19-7-1990 is in black ink and only the other portion in black ink on this document is of Section 302, IPC below Section 307, IPC which is not signed by anybody. If on the entire document the only endorsement of Police Constable Sonwane, B/No. 599 of Bhandara Police Station made on 19.7.1990 then the mention of Section 302 which could be only on 25.7.1990 could not be in the hand-writing and in the same ink as used by Constable who has signed on 19-7-1990 at two places on this F.I.R. and it also creates a doubt as to whether the offence under Section 307 of IPC was in fact registered at Ramtek Police Station on 19.07 or 25.07 because if it was in fact registered on 19-7-1990 the mention of Section 302 would not have been in the same black ink in which the endorsement and signatures are made by Constable Sonwane on 19-7-1990 on this document. Inasmuch as after having handed over the documents of his Police Station to, Ramtek Police Station. Constable Sonwane has no reason to go to Ramtek Police Station or to make any endorsement on the said F.I.R. If at all the prosecution had any explanation for this it should have come on record through the Investigating Officer or Head Constable Idris. Inasmuch as after having handed over the documents of his Police Station to, Ramtek Police Station. Constable Sonwane has no reason to go to Ramtek Police Station or to make any endorsement on the said F.I.R. If at all the prosecution had any explanation for this it should have come on record through the Investigating Officer or Head Constable Idris. But in the absence of any explanation a serious doubt arises in view of the earlier stated circumstances and the conduct of the Investigating Officer specially. P.S.I. Narkhede of not taking any body in the Station Diary anywhere and in not producing the case diary in the Court. This also gives us a clue as to why on the inquest report and inquest panchanama Exhibit 19, there is a mention of crime number of Bhandara Police Station and not the crime number of Ramtek Police Station which was according to the inquest report was on 2.7.1990 after the death of Usha. After transferring case papers to Ramtek Police Station nothing remained with Bhandara Police Station and there was no question of mentioning crime number of Bhandara Police Station on 25.7.1990. The entire investigation thus appears to be partison conducted with a specific idea of involving the appellant and with no attempt whatsoever to find out the truth. 18. The fact that the two dying-declarations were recorded when only the relatives of Usha were in hospital and. further suspicion of her being fit to give, statement created by non-production of the case papers makes the said dying declarations suspicious and to repel this suspicion no attempt is made during the course of investigation and even during the evidence of prosecution witnesses. If the accused has extinguished fire then the probability of his setting Usha on fire is less and what is more probable is that she had caught fire accidentally and on noticing the same accused poured water to extinguish fire and attempted to save her life which conduct militates against the prosecution case that the accused poured kerosene and set Usha on fire. In such circumstances, suppression of matedal facts by the witnesses suppression of case papers by prosecution. Non-production of Station Diary entry and not taking entry in the Station Diary at any stage by the police officials are further circumstances as indicated above raising suspicion in the truthfulness of the dying-declarations. 19. In such circumstances, suppression of matedal facts by the witnesses suppression of case papers by prosecution. Non-production of Station Diary entry and not taking entry in the Station Diary at any stage by the police officials are further circumstances as indicated above raising suspicion in the truthfulness of the dying-declarations. 19. As against this conduct of the appellant/accused appears to be natural. He tried to extinguish the fire and if it was he who set Usha on fire then he would not have attempted to extinguish the fire as nobody had noticed him while setting fire. There was never any demand by the accused from his parents-in-law. The accused had taken the responsibility of performing delivery of Usha at his house. He had also sent Usha to Saree-Choli function two months prior to delivery and thus there was no reason for him to suddenly finish his wife when the child was of two months and his relations with wife were good. In the circumstances we are confirmed that the evidence of the two dying-declarations is not sufficient to clear the above suspicious circumstances and when the, Investigating Officer was so interested in involving the accused! appellant and suppressing the truth and material facts, the dying-declarations recorded by the Police Officer and. the Magistrate do not inspire confidence and, therefore, in our considered view, the learned Judge was not at all justified in relying on that piece of evidence and neglecting the above discussed material factors which have material bearing on the entire prosecuting evidence. The conviction recorded by the learned Judge cannot, therefore, be upheld and will have to be set aside. 20. The appeal, therefore, succeeds and is allowed. The order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Nagpur is set aside and the appellant is acquitted of the charges levelled against him and be set at liberty forthwith, if not required in any other case. Fine, if any paid, be refunded. Appeal allowed.