JUDGMENT 1. - Being aggrieved by the judgment of conviction under section 326 I.P.C. and sentence of 21/2 years rigorous imprisonment and fine of Rs. 5,000/- in default to undergo six months rigorous imprisonment, the appellant Smt. Kali has filed this filed Against the judgment dated 28.9.92 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 10/82. 2. The prosecution case is that the deceased Radha had performed nata marriage with Shyam Lal, Harijan PW/5 who was already married with the appellant. The deceased Radha and the appellant Smt. Kali were living in the same house with their mother-in-law PW/3 Mst. Patasi. Smt. Kali did not like the nata marriage and wanted to oust deceased Radha. The brother of the deceased PW/8 Madan was informed on 27.8.81 by a child Pappu age 5 years, that his sister had received burn injuries. Madan informed this fact at to P.S. Mahamandir which is Ex.P 7. S.H.O. Mahamandir, Jafar All PW/9 went to hospital and recorded the statement of Smt. Radha Ex.P.9 wherein she stated that while she was sleeping on the bed, at about 5.00 A.M., the appellant Smt. Kali poured kerosene oil upon her and set fire by a matchstick. Smt. Kali was quarrelling with her for the last 3-4 days and asking her husband Shyam Lal to turn her out from the house but Shyam Lal refused. She was brought to the hospital by her husband Shyam Lal. Kailash and one brother of Meerki tried to extinguish the fire. The case was registered under section 307 and 324 I.P.C. but it was converted under section 302 I.P.C on the death of Smt. Radha on 24.10.81. Her dying declaration Ex.D. 1 was also recorded on 28.8.81 by Judicial Magistrate, No. 1 Jodhpur. The charge-sheet was submitted against the appellant under section 302 I.P.C. She was tried for the charges under section 302 I.P.C. and after trial, the Impugned judgment and sentence was passed. 3. I have heard the learned counsel for the appellant and the learned Public Prosecutor. I have also carefully perused the statements of the witnesses and the dying declarations as stated above. 3. I have heard the learned counsel for the appellant and the learned Public Prosecutor. I have also carefully perused the statements of the witnesses and the dying declarations as stated above. It is vehemently contended that there are glaring contradictions, in respect of material particulars of the alleged occurrence given in the two dying declarations i.e. one recorded by the Police Officer as Parcha Bayan on the same day on the basis of which the offence was registered and investigated by him and Ex.D. 1 recorded by the Judicial Magistrate No. 1, Jodhpur. The dying declarations cannot be safely acted upon to hold the accused guilty of the alleged offence, Moreso, the statements the other prosecution witnesses clearly indicate the innocence of the appellant. Thus, it is submitted that the learned trial court has erred in acting upon the dying declaration recorded by the as Judicial Magistrate. The statements of other prosecution witnesses cannot be lightly brushed aside, merely because they are husband or relative of the husband. The learned Public Prosecutor has supported the impugned judgment and contended that so far as the appellant is concerned, Smt. Radha, the deceased has clearly stated in both the dying declarations that 4o Smt. Kali set fire to her. 4. I have given my thoughtful consideration to the rival contentions. At the very outset, it is noteworthy that when the brother of the deceased Madan gave information at the police station Ex.P. 7 entered in the Roznamacha, he did not know that who had caused burn injuries to her sister. He was informed by a boy Pappu Bhima Ram that her sister has been put to fire but Ex.R 7 shows that even Pappu perhaps was not knowing the person who committed the ghostly act. 5. The perusal of two dying declarations one recorded by Police Officer Ex.P.9 on 28.8.81 at 7.20 A.M. and ExD. 1 recorded by the Judicial Magistrate so No. 1, Jodhpur clearly suffer from glaring and material contradictions and it is not possible to reconcile both the statements or to shift the grain from the Chaff. The contradictions go to the root of the prosecution case and shatters the very prosecution version against the appellant. 1 recorded by the Judicial Magistrate so No. 1, Jodhpur clearly suffer from glaring and material contradictions and it is not possible to reconcile both the statements or to shift the grain from the Chaff. The contradictions go to the root of the prosecution case and shatters the very prosecution version against the appellant. In Ex.P. 9, Smt. Radha stated, the relevant portion is reproduced here -: " eSa chLrj ij lksbZ gqbZ Fkh fd djhc ikWap cts esjs chLrj ij lksrs gq, ds gh mij ?kkl rsy lkSr dkydh us NhM+d dj rqyh tyk dj vkx yxk nh oks eq> ls rhu pkj fnu ls yM+kbZ & >xM+k dj jgh FkhA fd bldks fudky ns ij esjk chUn ';keyky uV x;kA eq>s esjs chUn us ugha tykbZ gS esjh lkSr dkydh us gh tykbZ gSA " 6. Whereas, in Ex.D. 1 which has been recorded by the judicial Magistrate after obtaining report from the attending doctor, Smt. Radha, gives the different version which is as under: " lqcg ikWap cts eq>s esjh lklq irklh us mBk;k o esjs nks FkIiM+ esjh lkSr dkydh us ekjs esjh lklq us eq>s idM+k o dkydh esjh lkSr us dsjkslhu esjs mij MkykA esjh lkSr dkydh us rqyh yxkdj esjs dks tyk fn;kA " 7. It is evident from the above two dying declarations that in Ex.P. 9 at the time when the kerosene oil was poured, she was sleeping on the bed and in that position it is alleged that Smt. Kali poured kerosene oil and lit the matchstick. There is no role assigned to Mst. Patasi the mother-in-law. It is not also stated that before setting fire Kali slapped her twice. It is not stated that Patasi caught her while Kali was pouring the kerosene oil, and it the matchstick. In Ex.D. 1 the deceased Smt. Radha has implicated her mother-in-law Mst. Patasi that she did beating through out the night and also she was made to get up by Smt. Patasi and slapped her twice. In Ex.D. 1, it is not mentioned that the kerosene was poured when she was sleeping on the bed but she was got up by her mother-in-law and then Smt. Kali poured the oil and set fire to her. Mst. Patasi is a witness in this case and according to the prosecution, obviously she is not an accused. In Ex.D. 1, it is not mentioned that the kerosene was poured when she was sleeping on the bed but she was got up by her mother-in-law and then Smt. Kali poured the oil and set fire to her. Mst. Patasi is a witness in this case and according to the prosecution, obviously she is not an accused. In my considered view, I find the above inconsistencies and contradictions in relation to the material particulars of the prosecution story and the manner in which the offence is alleged to have been committed by the appellant. I entirely agree with the learned counsel for the appellant that it is highly unsafe to act upon such divergent dying declarations without any cogent and reasonable explanation by the prosecution. 8. Apart from above, Hari Bhajan an independent witness living adjacent to the house states that on hearing cries of Smt. Radha he rushed to the spot and saw that Smt. Radha was lying in a `nullah' crying `Balu re, Balu re'. Shyam Lal i.e. her husband and Kali i.e. the appellant were trying to put out the fire. Radha was taken to the hospital by Shyam Lal and Maine, her husband's elder brother's wife (Jethani). There is no plausible reason on the record to disbelieve this prosecution witness who has not been disowned by the prosecution by declaring him hostile or by doing cross-examination. PW/2 Maine (Jethani) says that when she asked deceased Radha as to how she was burnt, then she said " og gkFk gh ty xbZ] mldh xyrh gks x;hA " meaning thereby, that she herself got burn injuries. This witness has been declared hostile. Of course, this fact is not deposed by PW/1 Hari Bhajan but it is quite reasonable and probable that he did not go so close as to Smt. Radha that he could hear the conversation between Smt. Radha and Smt. Maine, Mst. Patasi, mother-in-law. PW/3 has also said that Shyam Lal tried to extinguish the fire. Smt. Radha was brought to the hospital by her husband Shyam Lal, Maine and Kali. There is no cross-examination from this witness on behalf of the prosecution to challenge this version. Shyam Lal, the husband of the deceased has not supported the prosecution. Patasi, mother-in-law. PW/3 has also said that Shyam Lal tried to extinguish the fire. Smt. Radha was brought to the hospital by her husband Shyam Lal, Maine and Kali. There is no cross-examination from this witness on behalf of the prosecution to challenge this version. Shyam Lal, the husband of the deceased has not supported the prosecution. He simply stated that when he came on the spot, he found bum injuries on the person of Smt. Radha, Kali as well as he himself tried to put out the fire by throwing water on her. Though, this witness has been declared hostile but nothing substantial reason has come out to discard this witness. Kailash also reached at the spot where the deceased Radha was lying in the nullah. This witness also does not state any fact against the appellant. Madan PW/8 is brother of the deceased who has proved the information given by him Ex.P. 7 but does not state anything more as to who caused burns to his sister. Jafar Ali is the Investigating Officer who has proved the Parcha Bayan Ex.P. 7 being used as first dying declaration. He categorically admits in the cross-examination that deceased Smt. Radha did not elaborate in her statement Ex.P. 9 as to how she was burnt and who were the persons to cause burn injuries to her. 9. In view of the evidence discussed above, I am unable to agree with is the findings of the learned trial court and do not find credible the statements Ex.P. 9 and Ex.D.1. It is highly unsafe to convict the appellant on the basis of the above contradictory dying declarations which also contain very different version of the incident from the story given out in oral testimony. I come to the conclusion that the prosecution has failed to prove that Smt. Kali inflicted the burns on the person of Smt. Radha. Therefore, she cannot be held guilty even for the offence under section 326 I.P.C. 10. In the result, this appeal is allowed and the impugned judgment and the sentence dated 28.9.82 is set aside. The appellant Kali @ Kalki is hereby acquitted of the offence under Section 326 I.P.C. The bail bonds are cancelled.Appeal allowed. *******