JUDGMENT - BARDE V.K., J.:---In Sessions Case No. 56/93, Additional Sessions Judge, Ambajogai, has convicted the accused for offence punishable under section 302 of Indian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default, further rigorous imprisonment for 6 months. Being aggrieved by this conviction and sentence, appeal is filed through jail by the appellant, and Shri P.M. Shah is appointed as Counsel for the appellant. 2. Heard Shri P.M. Shah, Counsel appointed for the appellant, and Shri K.M. Babhulgaonkar, Additional Public Prosecutor, for the respondent State. 3. The facts giving rise to this prosecution case are as follows : (a) Savita, wife of accused Manohar, got married with him in the year 1989. She had a son of two and half years age at the time of incident. Both of them were residing in hut at Phulenagar at Kaij (District : Beed). On 3-6-1993, at about 9 p.m., Savita received burn injuries. Her husband Manohar and the neighbours put off the fire. The prosecution has alleged that, at that time, Savita was saying to Manohar, that he had set her on fire and she had asked him, at least, to give water. Manohar, after putting off the fire, took her to hospital at Kaij. There the Doctor started to give treatment to her. She had received 100% burn injuries. The Doctor reported the matter at Police Station, Kaij. (b) Then, Head Constable, Sambhaji Gajakosh (P.W. 9) went to the hospital, recorded statement of Savita. She informed that her husband set her on fire. As condition of Savita was very serious, the Head Constable called Executive Magistrate to record dying declaration. The Tahsildar, Kaij, went to the Hospital, ascertained from the Doctor, whether Savita was in a position to make the statement and recorded her dying declaration. As condition of Savita was critical, she was then referred to Medical College hospital at Ambajogai. When she was receiving treatment in the hospital at Ambajogai, she expired. (c) Meanwhile, on the basis of statement of Savita, recorded by Head Constable, Sambhaji Gajakosh (P.W. 9), Crime No. 101/93 was registered for offence punishable under section 307 of Indian Penal Code. Later on, when the information had received that Savita had died, Section 302 of Indian Penal Code was added. A.P.I. Shri Bhale (P.W. 11), took up the investigation. (c) Meanwhile, on the basis of statement of Savita, recorded by Head Constable, Sambhaji Gajakosh (P.W. 9), Crime No. 101/93 was registered for offence punishable under section 307 of Indian Penal Code. Later on, when the information had received that Savita had died, Section 302 of Indian Penal Code was added. A.P.I. Shri Bhale (P.W. 11), took up the investigation. He prepared the panchanama of the place of the offence. He recorded statements of witnesses. (d) Accused was arrested on 4th June, 1993. The clothes from the person of the accused were seized by the Police. At Ambajogai, inquest panchanama of the dead body of Savita was prepared and then the post-mortem examination was carried out in the hospital at Ambajogai. The Investigating Officer sent the articles recovered from the house of the accused as well as clothes of the accused to Chemical Analyser, Aurangabad, for examination and report and after completing the investigation, submitted charge-sheet in the Court of Judicial Magistrate (F.C.), Kaij. The learned Judicial Magistrate (F.C.) Kaij, committed the case to the Court of Additional Sessions Judge, Ambajogai. 4. The learned Additional Sessions Judge framed charge against the accused, for offence punishable under section 302 of Indian Penal Code, recorded evidence of the prosecution witnesses, statement of the accused under section 313 of Criminal Procedure Code and after hearing the arguments of both sides, came to the conclusion that the prosecution has proved the case against the accused and sentenced him, as above. 5. The prosecution evidence can be divided in three parts. First is with respect to the relations between husband and wife and evidence to that effect is brought on record through Goroba (P.W .5), father of Savita. The second part of the case is the statements of Savita recorded by Head Constable, Sambhaji Gajakosh (P.W. 9), and the Tahsildar, Kaij. The third part of the prosecution evidence is the evidence of neighbours who state that Savita was saying that her husband set her on fire, and it is to be seen how far the prosecution has become successful in establishing the case against the accused on the basis of this evidence. 6. It is not in dispute that Savita caught fire on 3rd June, 1993 at about 9 p.m. while she was in the house of the accused. She received 100% burn injuries. She was taken to hospital at Kaij. 6. It is not in dispute that Savita caught fire on 3rd June, 1993 at about 9 p.m. while she was in the house of the accused. She received 100% burn injuries. She was taken to hospital at Kaij. It is also not in dispute that she was then transferred to hospital at Ambajogai and then she died due to burn injuries. The prosecution has examined Dr. Goli (P.W. 8) who had performed post-mortem examination on the dead body of Savita. His deposition is at Exhibit 25 and the post-mortem examination report is at Exhibit 26. The inquest panchanama is at Exhibit 9. 7. Besides this evidence, there is also evidence of Dr. Tandale (P.W. 7). His deposition is at Exhibit 21 and he also states that on 3rd June 1993, Savita was brought to Primary Health Centre at Kaij at about 11 p.m. and she had received 99% burn injuries. He gave her treatment and then referred her to hospital at Ambajogai. So, from this evidence, the prosecution has established that Savita died due to the burn injuries. 8. We will first consider the evidence of Goroba (P.W. 5), father of Savita. He has stated in his deposition at Exhibit 18, that Savita was married with accused Manohar in the year 1989. She was cohabiting with the accused. About 2 years after the marriage, Savita gave birth to a son, and he has stated, that at the time of giving deposition, the son was of about two and half years of age. 9. Goroba (P.W. 5) has further stated that Savita had been to his house when she was pregnant of 5 months. At that time, she was telling him that her husband was ill-treating her and was saying that he would either set her on fire or he would stab her. He was saying that he would kill her as he had done with respect to his first wife. So, even after delivery of Savita, he had not sent Savita to her husband's house. Manohar had been to his house to take back Savita but he had refused. Lastly, on third time, when Manohar and his brother had been to his house, to take back Savita, he sent back Savita with the accused. 10. So, even after delivery of Savita, he had not sent Savita to her husband's house. Manohar had been to his house to take back Savita but he had refused. Lastly, on third time, when Manohar and his brother had been to his house, to take back Savita, he sent back Savita with the accused. 10. The learned Additional Public Prosecutor has argued that this evidence of Goroba (P.W. 5) is quite natural and it clearly indicates that the accused was ill-treating Savita. Goroba avoided to send back Savita to the house of accused because of that ill-treatment. The learned Counsel for the appellant has argued that if there was such ill-treatment, why there is no action either on the part of Savita or on the part of Goroba to see that the accused was stopped from giving ill-treatment to Savita. All these statements of Goroba are coming only after death of Savita and there is no proper corroboration to them. 11. However, it has to be noted that generally, only because there are such complaints by the wife, the wife or the parents of wife do not rush to Police to make complaint against the husband. Always attempts are being made to settle the matter without recourse to legal action. Goroba (P.W. 5) had no previous occasion to make any statement with regard to ill-treatment being given to Savita by accused Manohar. So, naturally he made those statements, only when Savita died and his statement was recorded by the police and his evidence was recorded in the Court. 12. It also has to be noted that the statement made by Goroba (P.W. 5), that Savita was residing at his house when she was pregnant of five months and even after delivery she was residing in his house for more than a year, are not challenged in the cross-examination. So, from the evidence of Goroba, it can be said that the relations between the husband and wife were not that cordial. But the fact remains that the settlement had arisen and Savita had returned to the house of accused and she was cohabiting with him at Kaij. 13. The prosecution has not brought on record, any specific reason as to why the accused committed murder of Savita on the fateful night. But the fact remains that the settlement had arisen and Savita had returned to the house of accused and she was cohabiting with him at Kaij. 13. The prosecution has not brought on record, any specific reason as to why the accused committed murder of Savita on the fateful night. The only basis on which the prosecution is relying are the statements of Savita wherein she has stated that she had gone to her father's house more than one month prior to the incident and she had returned to her husband's house one month prior to the incident and because of that accused picked up quarrel and committed murder of Savita. 14. The learned Counsel for the appellant has argued that if the wife had returned home of husband one month prior to the incident and if there were no quarrels on that count within that period, why accused would suddenly set her on fire because she had gone to house of her father prior to one month. The reason being put forth by the prosecution is not worth considering. We will consider this aspect of the case while considering the dying declaration of Savita. But at this stage, we will say that the reason for setting Savita on fire, given by the prosecution, that there was quarrel on account of Savita's visit to her father's house one month back, is not sufficient ground or motive for the accused to commit murder of Savita. 15. The learned Additional Public Prosecutor has also relied on evidence of neighbours who state that there were quarrels between husband and wife, that means, Manohar and Savita. But the statements made by these witnesses are very general statements. The quarrels between husband and wife is not a very strange circumstance. These witnesses, the neighbours, have not stated why the quarrels were there. They also do not state in deposition that the quarrels were of very serious nature. We must take into consideration the social status of Manohar, Savita and the people from the locality where they were staying. So, the quarrels, in such circumstances, between husband and wife is not an exceptional circumstance. It appears that these witnesses also did not pay much attention to these quarrels. 16. Witnesses have stated that there were quarrels between husband and wife. It cannot be said on the basis of this evidence, that Savita was ill-treated by Manohar. So, the quarrels, in such circumstances, between husband and wife is not an exceptional circumstance. It appears that these witnesses also did not pay much attention to these quarrels. 16. Witnesses have stated that there were quarrels between husband and wife. It cannot be said on the basis of this evidence, that Savita was ill-treated by Manohar. These statements of the witnesses cannot be used as corroboration to the evidence of Goroba (P.W. 5). It will be, thus, seen that the prosecution is not able to make a strong case to show that the accused had a particular reason to commit murder of his wife. Neither during the period of cohabitation nor on the night of 3rd June 1993, there was such a circumstance which would drive the accused to commit murder of his wife. 17. Much reliance is placed by the prosecution on the two statements of Savita, one recorded by Head Constable, Sambhaji Gajakosh (P.W. 9), and another recorded by the Executive Magistrate, Bhagwatrao Gulve (P.W. 10). Head Constable Gajakosh, in his deposition at Exhibit 27, has stated that on 3-6-1993, when he was at the Police Station, Kaij, Medical Officer at Kaij had sent information to the Police Station, that a burnt case had been admitted in the hospital and a statement has to be recorded. The Police Station Officer directed Head Constable Gajakosh (P.W. 9) to go to the hospital and to make necessary enquiries. Head Constable, Gajakosh, then went to the hospital. 18. Head Constable, Gajakosh, then enquired with the Doctor about the condition of the patient. The Doctor told that the woman was conscious and he could record statement. Head Constable, Gajakosh (P.W. 9) has stated that, he then recorded statement and obtained her thumb mark under the statement. That statement is at Exhibit 28. He has also stated that he then brought the Executive Magistrate to hospital for recording dying declaration of Savita. After recording her dying declaration, she was shifted to Medical College Hospital at Ambajogai. Exhibit 28, statement of Savita, is treated as F.I.R. 19. In the whole of his deposition, Head Constable, Gajakosh (P.W. 9) has not stated at what time, he received information, and at what time, he visited the hospital to record statement of Savita. After recording her dying declaration, she was shifted to Medical College Hospital at Ambajogai. Exhibit 28, statement of Savita, is treated as F.I.R. 19. In the whole of his deposition, Head Constable, Gajakosh (P.W. 9) has not stated at what time, he received information, and at what time, he visited the hospital to record statement of Savita. But from Exhibit 22, a letter written by the Medical Officer, Primary Health Centre, Kaij, to the P.S.I., Kaij, it can be ascertained that the message was received at the Police Station at about 11.15 p.m. on 3-6-1993. It further appears that as per Exhibit 23, Medical Officer, Primary Health Centre, Kaij, wrote a second report to the P.S.I. Kaij, that the condition of Savita was very critical and she was to be removed to Ambajogai, so arrangement be made for recording her dying declaration, and this letter was received in the Police Station at about 11.30 p.m. 20. So, whatever steps Head Constable, Gajakosh (P.W. 9) took, he must have taken those after 11.15 p.m. He had been to the hospital. He recorded statement of Savita. Then he called the Executive Magistrate. Then her dying declaration was recorded and then she was sent to Ambajogai. This time factor is very much important and we will consider it at later stage. 21. The deposition of Head Constable, Gajakosh (P.W. 9) indicates that he recorded statement of Savita after ascertaining from the Doctor, as to whether she was in a position to give the statement. However, there is no certificate of the Doctor indicating that Savita was conscious and was in fit mental and physical condition to make the statement. The prosecution has not explained, as to why such certificate of the Doctor was not obtained on the statement of Savita recorded by Head Constable, Gajakosh. 22. Dr. Tandale (P.W. 7), in his deposition at Exhibit 21, merely states that the police recorded one statement of Savita and thereafter the Tahsildar, Kaij, came there to record dying declaration of Savita. So, the doctor is not stating that he had examined Savita before recording of statement by Head Constable Gajakosh, and then he found her in fit condition to make the statement. He is not even stating that the police made any enquiry with him, as to whether Savita was in fit mental and physical condition to give the statement. So, the doctor is not stating that he had examined Savita before recording of statement by Head Constable Gajakosh, and then he found her in fit condition to make the statement. He is not even stating that the police made any enquiry with him, as to whether Savita was in fit mental and physical condition to give the statement. In such circumstances, statement of Head Constable Gajakosh (P.W. 9), that the Doctor told him that Savita was conscious and he could record her statement, is without any corroboration and not at believable. 23. One important circumstance also has to be noted. Head Constable, Gajakosh (P.W. 9), has stated that he recorded statement of Savita and obtained her thumb impression below that statement. He is not stating that he read over the statement to Savita, she accepted it to be correct and then he obtained thumb impression below the statement. So, whatever she stated, whether that was confirmed afterwards by her, is not coming on record. It was necessary for Head Constable, Gajakosh, to read over the statement to Savita and to ascertain from her that whatever was written was true and correct. He failed to do it. In such circumstances, the statement, that whatever Savita stated he recorded and then he obtained thumb impression, is not sufficient to hold that whatever he had written was accepted to be correct by Savita. 24. It is in medical evidence that Savita had received 100% burn injuries. There were 9% burn injuries on both of her upper limbs, that means, both palms of Savita had burnt. Then how Head Constable, Gajakosh (P.W. 9) could obtain thumb impression of Savita under the statement. No explanation is forthcoming from Head Constable, Gajakosh, or the prosecution. We would like to refer to the dying declaration recorded by the Tahsildar and there it is specifically mentioned that the Tahsildar obtained impression of right big toe below the statement. That means, it was not possible for the Tahsildar to obtain her thumb impression. Then how Head Constable, Gajakosh, obtained her thumb impression. This aspect also creates doubt about the statement recorded by Head Constable, Gajakosh (P.W. 9). The learned Additional Sessions Judge ought to have scanned the evidence from this point of view before relying on the statement recorded by the Tahsildar and the statement recorded by Head Constable, Gajakosh. 25. Then how Head Constable, Gajakosh, obtained her thumb impression. This aspect also creates doubt about the statement recorded by Head Constable, Gajakosh (P.W. 9). The learned Additional Sessions Judge ought to have scanned the evidence from this point of view before relying on the statement recorded by the Tahsildar and the statement recorded by Head Constable, Gajakosh. 25. From the evidence of Head Constable, Gajakosh (P.W. 9) and Dr. Tandale (P.W. 7), it appears that Savita was sent to Ambajogai sometime after 12.30 midnight. We can presume that Head Constable, Gajakosh, was in hospital till then. But the F.I.R. which is recorded at the Police Station, on the basis of statement recorded by Head Constable, Gajakosh, is registered at 3 a.m. in the morning on 4th June, 1993. Why the Police should take such a long time to register the F.I.R. Police Station, Kaij, is very near to the Primary Health Centre, Kaij. Within half an hour after recording the statement, the crime could have been registered at the Police Station. But undue delay is caused in registering the F.I.R. and numbering the crime. The prosecution has no explanation on this aspect of the case also. 26. Prosecution witness No. 10. Shri Gulve, was working as Tahsildar and Executive Magistrate, Kaij, at the relevant period. He has stated in his deposition at Exhibit 56, that on 3rd June, 1993, at about 11.45 p.m. Head Constable, Gajakosh, had been to his residence and he told that a woman who had received burn injuries was admitted in the hospital and her dying declaration was to be recorded. 27. The Executive Magistrate has further stated that he then went to hospital at about 00.10 hours in the midnight and then recorded statement of Savita from 00.10 hours at 00.35 hours. He has stated that on reaching at the hospital, he contacted the Medical Officer on duty. The doctor took him to the lady. He put some casual questions to the woman and found that she was able to make the statement. He has stated that after recording of the statement, Medical Officer issued medical certificate, that the woman was in mentally sound condition and conscious during her statement. The statement recorded by him is at Exhibit 31. 28. The learned Additional Public Prosecutor has argued that the Tahsildar is an independent witness. It was part of his duty to record the dying declaration. The statement recorded by him is at Exhibit 31. 28. The learned Additional Public Prosecutor has argued that the Tahsildar is an independent witness. It was part of his duty to record the dying declaration. As soon as he received the information, he went to the hospital, first made enquiries with the doctor, then put certain questions to Savita and then recorded her statement. The doctor has issued a certificate about mental and physical condition of Savita and, therefore, this dying declaration is the most reliable evidence. 29. Dr. Tandale (P.W. 7) also has stated that when Tahsildar recorded statement of Savita, she was in a position to make the statement. She was in sound mental condition and he was near her when her statement was being recorded by the Executive Magistrate. The certificate issued by the doctor is at Exhibit 24. 30. The learned Counsel for the appellant has argued that the certificate ought to have been on the dying declaration itself. The doctor ought to have issued the certificate in the beginning, after examining the patient and he ought to have issued the certificate indicating that not only Savita was conscious but she was physically and mentally fit to make the statement and similar certificate ought to have been there at the end of the dying declaration. However, the certificate Exhibit 24, is on a separate paper and not on the dying declaration itself. The certificate only mentions that the doctor was present when the dying declaration was being recorded and he has further stated that Savita was mentally sound and conscious during her statement. But it is not mentioning whether she was physically fit to give the statement. There is no explanation from the prosecution, as to why the relevant certificate is not on the dying declaration itself. 31. We have already pointed out that on the dying declaration Exhibit 31, the Executive Magistrate has mentioned that he obtained the impression of right big toe of Savita. However, in the deposition, Executive Magistrate says that he obtained thumb impression of Savita. It cannot be said that the witness might have committed some mistake because the witness being Tahsildar, a Gazetted Officer, definitely knows difference between thumb and toe. A further confusion is, therefore, created by this witness about genuineness of this statement. Here again, the Tahsildar does not say that he read over the statement to Savita. It cannot be said that the witness might have committed some mistake because the witness being Tahsildar, a Gazetted Officer, definitely knows difference between thumb and toe. A further confusion is, therefore, created by this witness about genuineness of this statement. Here again, the Tahsildar does not say that he read over the statement to Savita. She admitted it to be correct and then he obtained thumb impression or toe impression on the statement. The witnesses take it for granted that whatever they had written would be accepted by the person who had made that statement. 32. The prosecution ought to have specifically brought on record that Savita had heard the statement recorded by the Executive Magistrate and she admitted it to be true and correct. This is not mere formality but an essential part while recording the dying declaration. Because the person who cannot be examined afterwards, must at least, at that time, should have confirmed correctness of the statement. But that has not happened in this case. Mere formality of recording the statement might have been done by the Executive Magistrate. But that by itself is not sufficient to hold that this is a dying declaration on which conviction can be based. 33. Now, we will come to the point regarding time factor. Dr. Tandale (P.W. 7) has stated that Savita was admitted in the hospital at about 11 p.m. and immediately he sent a letter to the Police Station, Kaij. The first letter was sent to Police Station at 11.15 p.m. The second letter asking the police to make arrangement for recording dying declaration was received at the Police Station at 11.30 p.m. Head Constable, Gajakosh (P.W. 9), states that the Police Station Officer directed him to go to the hospital to record statement of Savita. So, he must have left the Police Station after 11.20 p.m. He must have taken some time to reach at the hospital, then to make enquiries with the doctor, to find out the patient, and then he must have taken sufficiently long time to record statement of Savita. 34. From the evidence of Executive Magistrate, Gulve (P.W. 10), it appears that for recording a very short statement of 4 to 5 lines, he took time from 00.10 hours to 00.35 hours in the midnight, that means, nearly 25 minutes. 34. From the evidence of Executive Magistrate, Gulve (P.W. 10), it appears that for recording a very short statement of 4 to 5 lines, he took time from 00.10 hours to 00.35 hours in the midnight, that means, nearly 25 minutes. The statement recorded by Head Constable, Gajakosh (P.W. 9), is more lengthy than the statement recorded by the Executive Magistrate. The condition of Savita was definitely serious. So, it would not have been possible for her to make statement without any stop. She must be speaking slowly intermittently and, in such circumstances, the Head Constable must have taken at least half an hour to record that statement. Thereafter, he must have taken at least five minutes to reach the house of Tahsildar. However, Tahsildar states that the Head Constable had been to his house at about 11.45 p.m. 35. The learned Additional Public Prosecutor has argued that this calculation of time should not be in arithmetic manner and it should be considered as general time given by the witness. We do agree that the arithmetical calculation in this respect would not be a proper way. But if we take into consideration all the circumstances, how was it possible to Head Constable, Gajakosh (P.W. 9), to reach at the house of Tahsildar, after recording statement of Savita by about 11.45 p.m. That means, Head Constable, Gajakosh, is not giving correct story regarding when and how he recorded statement of Savita. Here, we cannot forget that the crime was registered at 3 a.m., that means, more than 3 hours after recording statement of Savita, as per the contention of Head Constable, Gajakosh. 36. So, if all discrepancies in the statement recorded by Head Constable, Gajakosh, which are stated above, are taken into consideration with reference to this time margin, we find that the evidence of Head Constable, Gajakosh (P.W. 9), and the statement recorded by him cannot be relied upon. 37. The discrepancy about mentioning the time is further made complicated. The prosecution case is that Savita was removed from Kaij to Ambajogai and while she was receiving treatment at Ambajogai, she died in the hospital at Ambajogai. The A.P.I. who investigated the crime, in his deposition at Exhibit 32 states that he cannot state at what time Savita died. If she had left Kaij hospital after 12.35 hours, then she must have died sometime after 12.35 hours. The A.P.I. who investigated the crime, in his deposition at Exhibit 32 states that he cannot state at what time Savita died. If she had left Kaij hospital after 12.35 hours, then she must have died sometime after 12.35 hours. The evidence of A.P.I., Bhale (P.W. 11), on this aspect of the case, is really surprising. He was investigating the crime of murder. But he cannot state at what time the death took place. He had not even cared to find out whether it was death after reaching at Ambajogai or on the way to Ambajogai. 38. In this respect, we would like to refer to Exhibit 37, the remand report, submitted by the police to Judicial Magistrate (F.C.), Ambajogai, on 5th of June, 1993. In this report, it is mentioned that Savita died on 4th June, 1993 at Ambajogai hospital while taking treatment at 01.00 hours on 4-6-1993. The police had sent a report to the Medical Officer, Ambajogai, for the purpose of carrying out post-mortem examination on the body of Savita. In that report, the time of death is mentioned 12.00 midnight on 4-6-1993. The body was handed over to the doctor at about 3.15 p.m. on 4-6-1993. So here again, time of death is mentioned 12.00 midnight in between 3rd and 4th June, 1993. 39. How is it that when her dying declaration was recorded between 12.10 midnight to 12.35 midnight, in the night between 3rd and 4th June, 1993, she had died at 12.00 midnight at Ambajogai? Apparently no care was taken by the Investigating Officer to bring before the Court, the true facts of the case. If as per the prosecution case, Savita died at midnight between 3rd and 4th June, 1993 at Ambajogai, then definitely her dying declaration could not have been recorded at Kaij between 00.10 hours to 00.35 hours during the same night. 40. The evidence with respect to the dying declaration recorded by the Executive Magistrate, thus, becomes doubtful. The learned Counsel for the appellant has also argued that the prosecution has not brought on record, the case papers of hospital at Kaij to show to the Court, that the physical condition of Savita was sufficiently good to make the statement. Only the certificate given by the doctor on his subjective satisfaction is not sufficient. The learned Counsel for the appellant has also argued that the prosecution has not brought on record, the case papers of hospital at Kaij to show to the Court, that the physical condition of Savita was sufficiently good to make the statement. Only the certificate given by the doctor on his subjective satisfaction is not sufficient. The prosecution ought to have produced on record, the other data recorded by the doctor on her case papers with respect to her pulse, blood pressure, general physical condition and nature of treatment given to her, for the Court to come to the conclusion, whether she was physically and mentally fit to make the statement. 41. It is contended by the learned Counsel for the appellant, that purposefully this data is not produced before the Court and adverse inference be drawn against the prosecution. He has also relied on the post-mortem examination report which indicates that meninges congested, brain matter was congested, and in Larynx, Trachea and Bronchi, black carbon soot were seen. Both lungs were congested, Savita caught fire at about 9 p.m. She had received 100% burn injuries. So, she was in sinking condition by 12.00 midnight. She died within a very short time after receiving the burn injuries. So, if her brain was affected because of the burn injuries and shortage of oxygen, then was she really in a position to understand what was being asked to her and what she was saying? To get correct picture of this, the case papers in the hospital at Kaij would have been of great help to the Court. 42. We find much substance in the argument advanced by the learned Counsel for the appellant. The person who has received burn injuries, even 100% burn injuries, may not become unconscious. But that does not mean that all the while he would be in a position to talk. That will all depend on nature of the burn injuries, seriousness of the burn injuries and his general physical condition. The doctor must state about the general physical condition of the patient before stating whether patient was physically and mentally fit to give the statement, and that evidence can be brought on record by producing the relevant case papers. In this case, the prosecution has failed to do so and, therefore, both the so called dying declarations cannot be relied upon to base the conviction. 43. In this case, the prosecution has failed to do so and, therefore, both the so called dying declarations cannot be relied upon to base the conviction. 43. There remains then, the prosecution evidence through the mouth of neighbours. Nathaji (P.W. 2), in his deposition at Exhibit 14, has stated that he resides in the Housing Colony at Kaij. The house of the accused Manohar is on the southern side of his house and there is only one way in between his house and the house of the accused. He states that on 9th June, 1993, at about 9 to 10 p.m., he heard cry from the house of Manohar. He went to the house of Manohar. Then he saw that Savita was on fire. Bhagwan and Shankar were extinguishing the fire. Savita was shouting loudly. She was asking for water. She was saying to her husband, that he set her on fire, at least, give water. She also abused him. He has stated that the accused Manohar put some clothes on her person and brought her out of the house and then she was taken to hospital by rickshaw. 44. In the cross-examination, Nathaji (P.W. 2) has stated that he was at a distance of 10 to 15 feet from the door of the house of the accused. Many other persons had gathered there. He has stated that the distance between his house and the house of the accused is about 100 to 150 feet. So, definitely he was not the first person to reach the house of the accused when Savita caught fire. He had not tried to extinguish the fire. He was an onlooker from a distance. 45. Mahananda (P.W. 3), in her deposition at Exhibit 15, has stated that the house of accused is to the south of her house. There were two houses in between her house and the house of the accused. The incident took place on 3rd June, 1993 at about 9 to 10 p.m. She has stated that she was taking meals. She heard hue and cry from the house of the accused. She rushed there. She saw Savita was burning. Accused Manohar, Bhagwan and Vaijinath were extinguishing the fire. She was shouting loudly. She was saying to her husband that he had burnt her and now, at least, give water. 46. She heard hue and cry from the house of the accused. She rushed there. She saw Savita was burning. Accused Manohar, Bhagwan and Vaijinath were extinguishing the fire. She was shouting loudly. She was saying to her husband that he had burnt her and now, at least, give water. 46. In the cross-examination, Mahananda (P.W. 3), has admitted that her father Nivrutti works as a sweeper and Kotwal at the Police Station, Kaij. She has stated that she was at a distance of 10 feet from the house of accused and many other people had gathered there. However, she had not gone ahead to put off the fire. So, she was also an onlooker from a distance. In the cross-examination, it was suggested that she was on cross terms with the accused because accused had made complaint against her husband and husband's brother, that they were dealing in illicit liquor. She denied those suggestions. 47. Manik (P.W. 4), in his deposition at Exhibit 17, has stated that the house of accused Manohar is to the north of his house. There is one road in between his house and the house of Manohar. On the night of incident, he was returning home after day's work. The time was 9 p.m. to 10 p.m. He heard hue and cry from the house of the accused. So, he went there. He saw that wife of the accused was on fire. Accused Manohar and Vaijinath were putting off the fire. He has stated that clothes were wrapped around the body of Savita to put off the fire. Savita was shouting at Manohar and was saying that he had burnt her. He has further stated that 2-3 days thereafter. Savita died in the hospital. 48. In the cross-examination, Manik (P.W. 4) has admitted that he works as Home Guard. He also had not gone ahead to put off the fire. He says that persons had gather there and they were saying that Manohar set on fire his wife. 49. The last witness on this point is Rajubai (P.W. 6). Her deposition is at Exhibit 19. She has that her house is by the side of the house of the accused. Then she corrected herself and says that there is house of one Kisan Landge in between her house and house of the accused. 49. The last witness on this point is Rajubai (P.W. 6). Her deposition is at Exhibit 19. She has that her house is by the side of the house of the accused. Then she corrected herself and says that there is house of one Kisan Landge in between her house and house of the accused. On the night of the incident, she was sitting in the courtyard of her house. At about 9.30 p.m. to 10.00 p.m., she heard hue and cry from the house of accused Manohar. So she rushed there. Savita was shouting loudly and was saying to her husband that he set her on fire and now, at least, give water. She has stated that Savita was brought out from the room. She was covered with clothes and then accused Manohar took her to the hospital. 50. In the cross-examination, Rajubai (P.W. 6) has admitted that she was sitting in the courtyard with her daughter-in-law. But she alone went to the house of the accused. Her daughter-in-law did not come there. She had admitted that Bhagwan had also tried to put off the fire. She has stated in the cross-examination, that Savita was calling her husband 'Dushmana' (Enemy). But she has admitted that while giving statement before the police, she had not stated that Savita was calling her husband 'Dushmana'. 51. The learned Additional Public Prosecutor has argued that all these persons are close neighbours of the accused and they had no reason to give false evidence against the accused. No specific allegations are made against any of the witnesses to show that he had grudge against the accused. They are corroborating each other and, therefore, their evidence can be believed. As per their say, Savita was saying that the accused set her on fire. This is oral dying declaration worth relying. 52. The learned Counsel for the appellant has argued that the prosecution case is that Bhagwan, Shankar and Vaijinath put off the fire. But the prosecution has not examined Bhagwan, Shankar or Vaijinath. They were three persons who had gone to the house of the accused immediately after Savita caught fire. So, they would have stated what Savita was saying to accused at the time of incident. The possibility, that the accused rushed to the place of incident on hearing shouts of Savita, cannot be ruled out. They were three persons who had gone to the house of the accused immediately after Savita caught fire. So, they would have stated what Savita was saying to accused at the time of incident. The possibility, that the accused rushed to the place of incident on hearing shouts of Savita, cannot be ruled out. The material witnesses are not examined by the prosecution and the witnesses who are examined had reached after sometime. Their evidence cannot be believed. We find much force in the argument advanced by the learned Counsel for the appellant, that Bhagwan, Shankar and Vaijinath who were there and putting off the fire, are not examined by the prosecution. 53. Savita had received severe burn injuries. The medical evidence indicates that those were 100% burn injuries. Definitely, in such circumstances, Savita was not in a position to shout loudly after she had received burn injuries of serious nature. She might have raised hue and cry or shouts when she caught fire. But all these witnesses had reached to the spot when fire was put off. She was brought outside the house covering her body with clothes. It would not be possible for her to shout loudly at her husband and abuse him in loud tone, that he had set her on fire. 54. Many persons had gathered there. These witnesses were 10 to 15 feet away from the house of accused. The persons gathered might be making noise. They must be talking in between them. They must be giving suggestions and, in such circumstances, unless Savita was shouting in a loud tone, it would not be possible for this witness to hear what she was saying. But considering physical condition of Savita, we do not think that she was in a position to shout loudly before the persons who were seeing her at a distance of 10 to 15 feet from her and when there was a melee at the place of incident. 55. The cross-examination of each of these witnesses does indicate that they were not on very cordial terms with the accused. Some disputes were there and, in such circumstances, though there are four witnesses stating somewhat same story, their evidence is not fully reliable. 56. The learned Additional Public Prosecutor has argued that the accused and his wife Savita were residing together. They were in the house when the incident took place. Some disputes were there and, in such circumstances, though there are four witnesses stating somewhat same story, their evidence is not fully reliable. 56. The learned Additional Public Prosecutor has argued that the accused and his wife Savita were residing together. They were in the house when the incident took place. Accused ought to have explained how his wife caught fire. But he is not giving any explanation on this aspect. The matter was within his special knowledge and he had avoided to disclose what had happened in his house between him and his wife. If Savita had caught fire accidentally, there was child of two and half years of age. Then how is it that the child did not receive any burn injuries? So, definitely, accused is hiding material circumstances from the Court and on the basis of evidence adduced by the prosecution, it can be held that the accused committed murder of his wife. 57. However, when the so called dying declarations of Savita are not worth relying, the prosecution itself cannot state what could have happened between husband and wife at the time of incident, whether it was accident, suicide or murder. The prosecution witnesses are not stating anything about the child of Savita and accused. The child must be there somewhere. But in the hurry of giving evidence only against the accused, they are silent with respect to the presence of child and this circumstance by itself create doubt about their evidence. 58. Here, unless all the circumstances are well established to indicate that the accused could have committed the offence, the Court cannot expect any explanation from the accused with respect to what had happened when the incident of fire took place. The prosecution is not able to prove that the accused was in the house when Savita caught fire. All the witnesses state that they had reached there after sometime and Savita was saying that the accused had put her on fire and, now at least, give water. That does not mean that the accused was there from the beginning. Accused is not expected to explain what had happened during the fateful night and whether it was within his special knowledge. The learned Counsel for the appellant has rightly argued that the accused might have gone there after Savita caught fire. That does not mean that the accused was there from the beginning. Accused is not expected to explain what had happened during the fateful night and whether it was within his special knowledge. The learned Counsel for the appellant has rightly argued that the accused might have gone there after Savita caught fire. That possibility cannot be ruled out especially in the given circumstances and the shortcomings in the prosecution evidence. 59. Considering all these circumstances, we allow the appeal. The order of conviction and sentence passed by the Additional Sessions Judge, Ambajogai, in Sessions Case No. 56/93, on 11-3-1994, is set aside. The accused is acquitted of offence punishable under section 302 of Indian Penal Code. He be released from jail forthwith, if not required in any other case fine amount, if paid, be refunded to the appellant. 60. We quantify the fees of Shri P.M. Shah, Counsel appointed for the appellant, at Rs. 800/- (rupees eight hundred only). Appeal allowed. -----