JUDGMENT - S.D. GUNDEWAR, J.:---This appeal has been preferred by the appellant/original accused No. 1 being aggrieved by the order dated 18-5-1999, passed by the learned Additional Sessions Judge, Washim, in Sessions Trial No. 20 of 1999, whereby the appellant/original accused No. 1 has been convicted under section 304 Part II of Indian Penal Code and sentenced to suffer rigorous imprisonment for five years with a fine of Rs. 1,500/-, and in default to suffer rigorous imprisonment for two months. He was, however, acquitted of the offences punishable under section 498-A and 302 of Indian Penal Code. The original accused No. 2 and 3 were also acquitted of the offence punishable under sections 498-A and 302 read with section 34 of Indian Penal Code with which they were charged. 2. The prosecution case, as unfolded during trial, is as follows : The deceased Sonu alias Sonali was married to Sanjay (appellant) on 19-4-1998. After the marriage Sonali went to her matrimonial home at Risod, district Washim, and lived with her husband. It appears that since beginning her husband started ill-treating Sonali saying that he did not like her. He also used to beat her. It is alleged by the prosecution that Sonali was also being ill-treated by her mother-in-law (original accused No. 2) and sister-in-law (original accused No. 3). Sonali used to inform her parents about the said ill-treatment whenever she used to go to her parental home. 3. On 13-11-1998, in the early morning, Sanjay poured kerosene on the person of Sonali and set her on fire due to which she sustained 55% burns. She was, therefore, removed to District General Hospital, Akola, for treatment, where she succumbed to her burn injuries on 28-11-1998. 4. According to prosecution, during the aforesaid period, Sonali gave three dying declarations, i.e. Exs. 28, 29 and 36. The first dying declaration is Ex. 36. This was recorded by the Executive Magistrate, Risod, on 19-11-1998 at 11.00 a.m. The second dying declaration is Ex. 29. This was recorded by the Executive Magistrate, Akola, on 19-11-1998 at 3.5 p.m. The third dying declaration is Ex. 28. This was recorded by the Executive Magistrate, Akola, on 27-11-1998 at 6.40 p.m. 5. As indicated earlier, Sonali died in the District General Hospital, Akola, on 28-11-1998. The post mortem of her dead body was performed on 19-11-1998 in the District General Hospital, Akola. 28. This was recorded by the Executive Magistrate, Akola, on 27-11-1998 at 6.40 p.m. 5. As indicated earlier, Sonali died in the District General Hospital, Akola, on 28-11-1998. The post mortem of her dead body was performed on 19-11-1998 in the District General Hospital, Akola. According to the doctor, who performed the said post mortem, Sonali died due to shock owing to septicemia due to 55% burn injuries and bed sore which were infected. During the investigation which was started on the basis of the F.I.R. (Ex. 14) lodged by P.S.I. Parmeshwar Rai (P.W.2) the accused persons came to be arrested, spot panchanama (Ex. 16) was drawn, statements of the witnesses were recorded, seized articles were sent to chemical analyser for analysis and after completion of the investigation, a charge sheet came to be presented in the Court of J.M.F.C. Risod, who committed the case to the Court of Sessions, Washim. On committal, the learned Addl. Sessions Judge, Washim, framed the charge against all the accused under sections 302 and 498-A read with section 34 of Indian Penal Code, which was read over the explained to them, to which they pleaded not guilty and claimed to be tried. Their defence was one of total denial. 6. The learned trial Judge after considering the evidence on record and hearing both the sides convicted and sentenced the appellant/original accused No. 1 and acquitted original accused Nos. 2 and 3, as stated above. Hence this appeal by original accused No. 1. 7. Shri Hardas, learned Counsel for the appellant, strenuously urged before me that the prosecution has not proved beyond reasonable doubt that the appellant poured kerosene and set fire to the deceased and that the prosecution case rests entirely an the dying declarations, which are highly inconsistent with each other and in such a situation it is highly unsafe to place reliance on any these dying declarations and convict the appellant/original accused No. 1 The learned Counsel also submitted that in earlier two dying declarations it is mentioned that the death was accidental and the clothes of the deceased caught fire while she was cooking the food and, therefore, the plea of the defence that it was a case of accident finds corroboration. 8. Shri Paranjape, learned Addl. 8. Shri Paranjape, learned Addl. Public Prosecutor, while supporting the judgment of the trial Court submitted that the learned trial Judge has correctly relied upon the third dying declaration which indicates the involvement of accused No. 1 regarding the alleged offence. 9. To appreciate the rival contentions raised at the bar, I have carefully perused the judgment and scrutinised all the three dying declarations minutely. 10. It is well settled that the conviction can be based on the dying declaration itself provided it is satisfactory and reliable and if there are any infirmities of such nature warrating further assurance, then the Court look for further corroboration. It is also well settled that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declarations and if some inconsistencies are noticed between one and the other, the Court has to examine the nature of the inconsistancies, namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances. Similar view has been taken by the Apex Court in a case in (Smt. Kamla v. State of Punjab)1, A.I.R. 1993 S.C. 374. In the said case, the Apex Court held that a dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration, they should be consistent particularly in material particulars and where the dying declarations are inconsistent then it is not possible to pick out one statement wherein the accused is implicated and base the conviction on the sole basis of such dying declaration. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. On course, if the plurality of dying declarations could be held to be trustworthy and reliable, they have to be accepted. See : (Paniben v. State of Gujarat)2, A.I.R. 1992 S.C. 1817. 11. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. On course, if the plurality of dying declarations could be held to be trustworthy and reliable, they have to be accepted. See : (Paniben v. State of Gujarat)2, A.I.R. 1992 S.C. 1817. 11. In the light of the above principles, we will consider the dying declarations in the instant case and will ascertain the truth with reference to all the dying declarations made by deceased Sonali. There is no dispute that when the deceased Sonali made these dying declarations she was in a fit mental condition. Ex. 36 is the first dying declaration made before the Executive Magistrate, Risod, on 19-11-1998 at 11-10 a.m. Ex. 29 is the second dying declaration made by the deceased Sonali before the Executive Magistrate, Akola, on 19-11-1998 at 03-05 p.m. Ex. 28 is the third dying declaration made by the deceased Sonali before the Executive Magistrate, Akola, on 27-11-1998 at 06.40 p.m. The trial Court has relied on the third dying declaration (Ex. 28) ignoring the inconsistencies when compared to other two dying declarations. If we examine all these dying declarations one by one, we notice glaring inconsistencies as to how exactly the deceased Sonali caught fire. Whether she caught fire accidentally or the accused poured kerosene on her person and set her on fire. 12. In the first dying declaration (Ex. 36) the deceased Sonali stated that while she was cooking food, due to sudden blaze of flame her clothes caught fire and she sustained burns. In the said statement she had candidly stated that nobody set her on fire. In the second dying declaration (Ex. 29) she stated that while cooking food on a stove she got up for taking up some article and at that time a part of her saree fell on the burning stove and her clothes caught fire. In the said statement she had specifically stated that at that time none else was present in the house. In the third dying declaration (Ex. 28), which was admittedly recorded after the arrival of her parents, she did state that on 19-11-1988 in the morning her husband Sanjay poured two litres of kerosene on her person and set her on fire as he did not like her. In the third dying declaration (Ex. 28), which was admittedly recorded after the arrival of her parents, she did state that on 19-11-1988 in the morning her husband Sanjay poured two litres of kerosene on her person and set her on fire as he did not like her. At that time she also stated that her two earlier statements are false as they were made by her at the instance of her mother-in-law, who pressurised her for the same. Thus, it can he seen that there are glaring inconsistencies in these dying declarations. 13. The third dying declarations (Ex. 28) was admittedly recorded after the arrival of the parents and relatives of deceased Sonali and, therefore, the possibility of tutoring cannot be ruled out. Further, the version given by Sonali in her third dying declaration (Ex. 28) does not appear to be probable. She would have cried and shouted for help soon after kerosene was poured by her husband on her person, but it seems that there is nothing on record to show that she raised any hue and cry at that time. There is also nothing on record to show that after the kerosene was poured on her person she tried to rescue herself. 14. As indicated above, a dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration, they should be consistent particularly in material particulars. In the instant case, there is no consistency in all the three dying declarations given by the deceased. Under these circumstances, the irresistable conclusion is that the dying declarations are inconsistent and in such situation one cannot just pick up one dying declaration i.e. Ex. 28 in this case, and base the conviction on the sole basis of the said dying declaration. It is well settled that the maker of the dying declaration cannot be cross-examined and, therefore, such statements should be carefully scrutinised by the Court. In the instant case, having given my earnest consideration, I feel that under the aforesaid circumstances, it is highly unsafe to convict the appellant/original accused No. 1 on the sole basis of dying declaration (Ex. 28) recorded by the Executive Magistrate, Akola, on 27-11-1998. I, therefore, find considerable force in the aforesaid submission made by the learned Counsel for the appellant. 15. 28) recorded by the Executive Magistrate, Akola, on 27-11-1998. I, therefore, find considerable force in the aforesaid submission made by the learned Counsel for the appellant. 15. For the foregoing reasons, I find that the conviction recorded by the learned trial Judge on basis of dying declarations (Ex. 28), which is inconsistent with the earlier two dying declarations (Exs. 36 29) cannot be sustained. 16. In the result, the present criminal appeal is allowed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Washim, against the appellant/original accused No. 1 is quashed and set aside. The appellant is acquitted of the offence punishable under section 304 Part II of Indian Penal Code. The fine amount, if paid, be refunded to the appellant. It is reported that the appellant is in jail. He be set at liberty forthwith, if not required in any other case. Criminal appeal allowed. -----