JUDGMENT - RANJANA DESAI, J.:---The appellant alongwith five others was charged for the offence punishable under sections 147, 149 and under section 302 read with section 149 of the Indian Penal Code and in the alternative under section 302 read with section 34 of the I.P.C. By his judgment and order dated 29th February, 1992, the learned Sessions Judge acquitted accused Nos. 1, 3, 4, 5 and 6 of the charges levelled against them. The appellant who is original accused No. 2 was convicted of the offence punishable under section 304 Part II of the I.P.C. He was sentenced to suffer R.I. for a period of five years and to pay a fine of Rs. 2,000/-. In default of the payment of fine he was to undergo R.I. for a period of six months. He was acquitted of the remaining charges levelled against him. It is the said judgment and order, which is impugned in the present appeal by the appellant. For the sake of convenience appellant is hereinafter referred to as accused No. 2 2.At the trial the case of the prosecution was as under. Deceased Ratnabai Baliram Shinde was married to accused No. 1 Baliram who is serving in the military. About a month prior to the incident in question he had come to the village on leave. Accused No. 1 and the deceased were residing with their children. Accused No. 2 used to reside in a neighbouring house. 3.On 30-4-1990, at about 5 p.m. the deceased, her daughter Usha and son Dattu went to sleep. In the early morning of 1-5-1990, she heard the noise of roof tiles. One of the tiles fell down on the earth. Accused No. 2 came through the roof and opened the latch of the door from inside. Accused No. 3 and accused No. 6 came in the house. They took the children to the house of accused No. 2. Accused No. 2 told her that her conduct was not proper and that she had illicit relations with one Dashrath Pol residing nearby. He poured kerosene from a bottle on her person and set her on fire with the matchstick. The remaining accused caught hold of her. She shouted and, therefore, the other villagers came there. They poured water on her person. He poured kerosene from a bottle on her person and set her on fire with the matchstick. The remaining accused caught hold of her. She shouted and, therefore, the other villagers came there. They poured water on her person. Time was about 5 a.m. Her mother and sister Sulochana came from Diwale-Bhor at 8 a.m. She narrated the incident to them. Thereafter she was taken in the jeep of accused No. 1 to Sassoon Hospital, Pune, where she was admitted. Dr. Raghunath Sonawane working as a Casulty Medical Officer in Ward No. 27, examined her and recorded the history. She had received 82% burns. However, she was fully conscious. Police Head Constable Gokul Wani was on duty on that day at Sassoon Hospital Police Chowky. After receiving the information through Police Constable Sawant, who was on duty at Sassoon Hospital Police Booth to the effect that deceased was admitted in Ward No. 27 as a burn case, he arranged for Special Judicial Magistrate for the purpose of recording her dying declaration. 4.Mr. Adhav, Special Judicial Magistrate came to Ward No. 27. After getting confirmation from Dr. Sonawane that the deceased was in a position to give her statement Mr. Adhav recorded her dying declaration and handed over the original to the Police Head Constable Wani. In the dying declaration she initially stated that accused No. 2 poured kerosene on her and set her on fire and the other accused helped him in that. The statement of the deceased was also recorded in the Sassoon Hospital by Assistant Sub-Inspector Ghare from Welha Police Station, after getting certificate from the incharge doctor that the deceased was conscious to give statement. He forwarded the complaint to the police station concerned alongwith his report. The offence was registered at Welha Police Station vide Crime No. 9 of 1990, initially under section 307 read with section 34 of the I.P.C. The deceased expired on 5-5-1990 at 7 p.m. and the offence came to be converted to one under section 302, I.P.C Post-mortem examination on the dead body was conducted on 6th May, 1990. After completion of the investigation the charge-sheet came to be filed. 5.In support of its case the prosecution examined as many as eight witnesses. The defence of the accused No. 2 was of denial. He submitted his written say. After completion of the investigation the charge-sheet came to be filed. 5.In support of its case the prosecution examined as many as eight witnesses. The defence of the accused No. 2 was of denial. He submitted his written say. In the written say he has stated that deceased Ratnabai was having illicit relation with one Dashrath Pol. When her father met him he had told him to persuade her to behave properly. The deceased had filed complaint against him and other people from village with Welha Police Station but the said complaint was settled. A written mutual agreement was entered into. On 1-5-1990 at about 3.30 a.m. he woke up due to some noise. Something was going on in front of Baliram's house. He went there. About 20 to 25 villagers had gathered in front of his door. He came to know from people who had gathered that the deceased was apprehended with Dashrath Pol. The people who had gathered there decided to contact the police. All of them squatted on Pune Welha Road i.e. in front of the door of the deceased. Deceased Ratnabai was sitting inside the room. They were all waiting for a bus to go to Welha in the morning at about 7.30 a.m. They heard noise of S.T. going from Pune to Welha. That time deceased closed the door and latched it from inside. They tried to open the door. Smoke came out from the house. As the doors were new they could not open the doors by giving dash against them, or by throwing big stones on them. Hence accused No. 5 climbed on the roof of the house. Some other persons climbed on the roof. They took water from the neighbouring housed and threw it on the person of the deceased from the opening of the roof, which was created by removing the tiles by Dashrath Pol, while running away. They extinguished the fire. The deceased was sent to hospital at Pune. Thereafter he came to know that Ratnabai had expired on 5-5-1998 at Sassoon. 6.In support of his case the accused examined defence witnessed D.W. 1 Tulsiram Shinde, D.W. 2 Harbhau Shinde. 7.After perusing the evidence, the learned Sessions Judge discarded the evidence led by accused No. 2. He accepted the prosecution story so far as it related to accused. No. 2. 6.In support of his case the accused examined defence witnessed D.W. 1 Tulsiram Shinde, D.W. 2 Harbhau Shinde. 7.After perusing the evidence, the learned Sessions Judge discarded the evidence led by accused No. 2. He accepted the prosecution story so far as it related to accused. No. 2. He, however, discarded it so far as it related to the other accused. He convicted accused No. 2 as aforesaid and acquitted the rest of them. It is the said judgment and order which are impugned in the present appeal. 8.I have heard at some length Mr. Pashave, learned Counsel appearing for the appellant-accused No. 2 and Ms. Rohini Dandekar, learned A.P.P. With the assistance of the learned Counsels I have gone through the entire evidence and also the record of the case. 9.Mr. Pashave, the learned Counsel appearing for the appellant has assailed the order of conviction and sentence on several counts. His first submission was that the learned Sessions Judge has while acquitting the rest of the accused discarded the evidence so far as it related to them. It was not open for the learned Judge to convict accused No. 2 on the basis of the same evidence once having found it to be tainted or insufficient evidence. Secondly, he contended that the prosecution story is inherently improbable. Accused No. 2 is the uncle-in-law of the deceased. Admittedly at the relevant time he was about 60 years old. The story of the prosecution is that he climbed on the roof, removed tiles and jumped inside. He opened the door, called the other accused inside and with their help he completed the job of setting the deceased on fire. The learned Counsel urged that it is highly improbable that a 60 year old man would climb a roof, remove the tiles and jump inside. Besides, if any one had grievance about the conduct of the deceased, in the nature of the things it would be her husband and not accused No. 2. Therefore, it was the husband who was expected to take such a drastic course. The learned Counsel urged that this inherently improbable prosecution story deserves to be rejected. There is yet another reason on the basis of which he submits that the prosecution story deserves to be discarded. The Panchnama indicated that both the doors of the house were broken. Therefore, it was the husband who was expected to take such a drastic course. The learned Counsel urged that this inherently improbable prosecution story deserves to be rejected. There is yet another reason on the basis of which he submits that the prosecution story deserves to be discarded. The Panchnama indicated that both the doors of the house were broken. There were stones lying outside the door indicating that efforts were made to break open the doors. If the prosecution story is to be believed then there was no reason for any one to try to break open the doors. Accused No. 2 is said to have jumped inside from the roof and opened the door and allowed other accused to come in. Mr. Pashave urged that the fact that the doors were in a damaged condition is more consistent with the defence version of suicide. He also urged that, if all the four dying declarations are compared, it is evident that they are discrepant in material particulars, and such dying declarations, therefore, ought not to be relied upon. Besides police has recorded statements of as many as 28 witnesses. However, the prosecution did not choose to examine any one from those witnesses and, therefore, an adverse inference needs to be drawn against the prosecution. Even otherwise he submitted that the evidence led by the prosecution does not have ring of truth. In view of this the order of conviction and sentence deserves to be set aside. 10.As against this Miss Dandekar, learned A.P.P strenuously contended that the order of conviction and sentence deserves to be maintained. She submitted that the discrepancies in the dying declaration are minor in nature. There was no reason for the police to falsely implicate accused No. 2. The Special Judicial Magistrate and the doctor are independent witnesses. They had no enmity with the accused and, therefore, chances of false implication must be ruled out. Miss Dandekar also drew my attention to the statement of the deceased dated 22nd March, 1990, which is at Exhibit 30. The said statement indicates that there was some dispute between the deceased and her husband's family. It was amicably settled. Miss Dandekar wants the Court to read in this letter some long-standing enmity between the deceased and accused No. 2. She submitted that there was, therefore, enough reason for accused No. 2 to set the deceased on fire. The said statement indicates that there was some dispute between the deceased and her husband's family. It was amicably settled. Miss Dandekar wants the Court to read in this letter some long-standing enmity between the deceased and accused No. 2. She submitted that there was, therefore, enough reason for accused No. 2 to set the deceased on fire. Miss Dandekar also urged that the evidence adduced by the prosecution is cogent, consistent and inspires confidence. She submitted that the prosecution witnesses have stood the test of cross-examination well and, therefore, the order of conviction and sentence should be confirmed. 11.The learned Sessions Judge has acquitted all the other accused of all the charges. However, on the same evidence he has convicted accused No. 2. The only reason ascribed for acquitting the other accused is that there is no sufficient evidence to prove that they formed unlawful assembly and being members of such assembly in prosecution of their common object they committed riot or house trespass. He has stated that mere presence of the accused is not sufficient. Offence of murder requires means rea and preplanned object to commit murder intentionally and knowingly. According to him the evidence on record does not attract the ingredients of section 302 of the I.P.C. He has further observed that the prosecution could not prove the formation of unlawful assembly and, therefore, it cannot be concluded that accused Nos. 1 and 3 to 6 in prosecution of their common object committed any offence as there is no direct evidence against either of them, beyond reasonable doubt to prove their guilt. 12.If on the basis of the evidence on record a conclusion can be drawn that there is no evidence to prove formation of unlawful assembly or that in prosecution of the common object the accused committed an offence then considering the nature of the offence and other attendant circumstances it is difficult to comprehend how on the same set of evidence accused No. 2 can be convicted. The learned Sessions Judge has not at all discussed the evidence in detail. He has not given any reason which prompted him to come to this conclusion about the rest of the accused. If there is no evidence against the other accused, then merely on the basis of the dying declarations which, in my opinion, are discrepant in material particulars, accused No. 2 could not have been convicted. He has not given any reason which prompted him to come to this conclusion about the rest of the accused. If there is no evidence against the other accused, then merely on the basis of the dying declarations which, in my opinion, are discrepant in material particulars, accused No. 2 could not have been convicted. If according to the learned Sessions Judge the dying declaration made to the Special Judicial Magistrate can be believed to convict accused No. 2 only but not to the rest, then undoubtedly it has become an unreliable and weak piece of evidence. 13.I may now turn to the evidence adduced by the prosecution. The prosecution has examined P.W. 1 Kamlakar Adhav, Special Judicial Magistrate who has recorded the dying declaration. He has stated that on 1-5-1990 he was called to record doing declaration of the deceased at the Sassoon Hospital. He went to Ward No. 27 where the deceased was admitted. He met ward incharge Dr. Sonawane. Dr. Sonawane accompanied him. He examined the deceased and certified that she was fully conscious and is in a position to make a statement. He saw the deceased and noticed burn injuries on her person. According to him she was conscious and was well oriented. He disclosed his identity and asked whether she understood what he was talking. She replied in the affirmative. He then asked her as to how she had sustained burn injuries. He then recorded her statement. He read over the contents of the statement to her and asked her whether her statement was correctly recorded. She replied in the affirmative. Then he obtained her thumb impression on the statement and he countersigned it. Dr. Sonawane was present all the while till he completed the recording of the dying declaration. When dying declaration, Exhibit 21 was shown to him, he identified his signature. I had a look at Exhibit 21. It is in question and answer form. The thumb impression of the deceased is found on the same. It is counter signed by the Special Judicial Magistrate. There is an endorsement to the effect that "Patient is fully conscious and her statement is recorded throughout my presence". The Medical Officer Dr. Sonawane has signed underneath the said endorsement. It is in question and answer form. The thumb impression of the deceased is found on the same. It is counter signed by the Special Judicial Magistrate. There is an endorsement to the effect that "Patient is fully conscious and her statement is recorded throughout my presence". The Medical Officer Dr. Sonawane has signed underneath the said endorsement. This dying declaration seems to have been recorded on 1-5-1991 at 1.25 p.m. The material portion of this dying declaration may be reproduced now: "Today at about 7 a.m. in my residential house my father-in-law, mother-in-law and brother-in-law Gulab Quarrelled with me. My husband also joined them. Thereafter my father-in-law, brother-in-law Gulab caught hold and father-in-law poured kerosene on me and set on fire. Mother-in-law also caught hold and my husband was witnessing all this. They were always doubtful about my character. Today all with their common intention set on fire me and I burnt and injured. Action may be taken against them." 14.At this stage it will be proper to read the evidence of P.W. 7 Dr. Sonawane. He has stated that on 1st May, 1990, he was working as C.M.O. at Sassoon Hospital in Ward No. 27. The deceased was admitted in the ward at about 12.45 p.m. She had sustained burn injuries. She was brought by her husband. He asked history to the patient. She gave the history of homicidal burns. According to Dr. Sonawane the deceased told him that her husband and father-in-law had set her on fire. She further stated that the father-in-law had taken kerosene from a tin and thrown it over her body and set her nylon saree on fire and that is how she got burnt. He recorded the history in the case papers. The deceased had 82% burn injuries. When she gave the history she was fully conscious. This witness then speaks about dying declaration recorded by the Special Judicial Magistrate. He states that when the Special Judicial Magistrate asked him whether the deceased was conscious, he examined her and certified that she was fully conscious and was in a position to give statement. The Magistrate recorded the statement in his presence. He identified the signature on the dying declaration. He has also stated that at about 10 p.m. P.H.C. Ghare approached him and took his permission to record the statement of the deceased. The Magistrate recorded the statement in his presence. He identified the signature on the dying declaration. He has also stated that at about 10 p.m. P.H.C. Ghare approached him and took his permission to record the statement of the deceased. He examined the deceased and found her conscious and in a position to give statement. P.H.C. Ghare then recorded her statement in his presence. The deceased expired on 5-5-1990 at 7 p.m. In the cross-examination he has stated that even a patient having 90 per cent burn injuries may remain conscious. It depends on the health condition of a person. 15.P.W. 6 Raghunath Dhondiba Ghare was at the relevant time on duty at Welha Police Station as Police Head Constable. He has stated that he received message from the control room that the deceased had received burn injuries and was admitted in Ward No. 27 at Sassoon Hospital. He went to Sassoon Hospital. The doctor who was attending on the deceased certified that she was conscious and in a position to talk. He then recorded the statement of the deceased. P.H.C. Ghare has given the other details about the investigation conducted by him. Exhibit 33 is the statement recorded by P.H.C. Ghare. In that statement the deceased has stated that on 30th April, 1990, she was sleeping in the house. Her daughter and son were also with her. On 1-5-1990 in the morning she heard noise of the tiles. One tile fell down on the floor. She woke up. Accused No. 2 entered the house by removing tiles. He opened the latch of the door. Her husband, brother-in-law Balu Shinde and wife of accused No. 2 came inside. Her children were taken outside the house. Accused No. 2 told her that her behaviour was not good and she was having illicit relations with one Dashrath Pol. He poured kerosene on her person. Kerosene was in a bottle. He then set her on fire. Her husband, brothers-in-law Balu Shinde and Popat Shinde and Bablubal Shinde caught hold of her. She started shouting. Other villagers came running. They poured water on her person and extinguished the fire. According to her incident took place at 5.30 a.m. 16.The prosecution has also examined the sister of the deceased, P.W. 4 Sulochana. Sulochana stated that on the day of the incident she was at the house of her parents. She started shouting. Other villagers came running. They poured water on her person and extinguished the fire. According to her incident took place at 5.30 a.m. 16.The prosecution has also examined the sister of the deceased, P.W. 4 Sulochana. Sulochana stated that on the day of the incident she was at the house of her parents. At about 7 a.m. accused No. 3 came to their house. He reported that the deceased was sick. She was taken to the hospital. Upon receiving this information Sulochana and her mother went to Karanjawane at about 8 a.m. The deceased had sustained burn injuries. She was crying. When they enquired of her, she stated that while she was in the house accused No. 2 entered in the house by removing the roof tiles. He opened the door and then rest of the accused entered inside the house. Her children were taken away. Accused No. 2 poured kerosene on her and set her on fire. Sulochana then accompanied the deceased in a jeep to the hospital. The evidence of these four witnesses forms the basis of the prosecution story. The prosecution basically relies on dying declarations. 17.The law as to dying declaration is well settled. The leading case on the point is (Kushal Rao v. State of Bombay)1, A.I.R. 1958 S.C. 22. While, discussing the evidentiary value of dying declaration the Supreme Court has stated that it cannot be laid down as an absolute rule of law that the dying declaration cannot form sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. The Supreme Court has further stated that it cannot be laid down as a general proposition that the dying declaration is a weaker kind of evidence than other pieces of evidence. The dying declaration which has been recorded by a competent Magistrate in the proper manner i.e. in the form of question and answer and as far as practicable in the words of the maker of the declaration stands on much higher footing than the dying declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character. The Supreme Court has laid down certain test. The Supreme Court has laid down certain test. Whether the dying declaration is reliable or not, can be ascertained by keeping in view the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control, that the statement has been consistent throughout, if he had several opportunities of making a dying declaration apart from the official record of it and that the statement had been made at the earliest opportunity and was not result of tutoring by interested parties. A dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross examination. Keeping these guidelines in mind the dying declarations in this case be examined. 18.In my opinion if all these four dying declarations are compared one finds that they are discrepant. P.W. 4 Sulochana the sister of the deceased is the first person before whom allegedly the deceased made a dying declaration. It is significant to note that the statement of Sulochana came to be recorded on 3-5-1990 i.e. after about two days from the date of the incident which is on 1-5-1990. Sulochana has stated that the deceased told her that accused No. 2 entered the house by removing the roof tiles, he opened the door of the house and then rest of the accused entered the house. Accused No. 2 poured kerosene on her person and set her on fire. The accused has suspicion about her character. Apart from accused No. 2 the deceased does not name any one in the dying declaration to Sulochana. How, if the deceased made such a statement to Sulochana on 1-5-1990, at about 8 a.m. nothing prevented Sulochana from immediately reporting this fact to the police. Being her sister, her anxiety should have been to immediately report this fact. However, she keeps quiet till 3-5-1990. In my opinion, this delay makes her evidence suspect. As to why this dying declaration is not worthy of credence can be more appreciated when it is compared with the other dying declarations. Being her sister, her anxiety should have been to immediately report this fact. However, she keeps quiet till 3-5-1990. In my opinion, this delay makes her evidence suspect. As to why this dying declaration is not worthy of credence can be more appreciated when it is compared with the other dying declarations. It is also important to note that Sulochana was with the deceased at the earliest point of time and for a considerable period and chances of her tutoring the deceased cannot be ruled out. 19.Dr. Sonawane is the second witness who talks of dying declaration of the deceased. When the deceased was brought to the Sassoon Hospital he was working as C.M.O. When he asked the history, the accused No. 2 had set her on fire. She stated that accused No. 2 had set her on fire. She stated that accused No. 2 had taken kerosene from a tin and thrown it on her body. He set her nylon saree on fire. He recorded this history in the case papers. Dr. Sonawane stated that the deceased was conscious when she gave this statement. It is significant to note that to Dr. Sonawane the deceased did not tell the fact that accused No. 2 entered from the roof, he opened the door and allowed the other accused to come in and the other accused helped him in the ghastly act of setting her on fire. 20.That takes me to the evidence of the Special Judicial Magistrate who has recorded dying declaration Exhibit 21 at 1.30 p.m. It appears from the dying declaration recorded by this witness that the deceased had involved accused No. 2 as well as rest of the accused. She has stated that at about 7 a.m. accused No. 2, her mother-in-law and brother-in-law Gulab Shinde had a quarrel with her. Her husband joined them. Thereafter accused No. 2, brother-in-law Gulab Shinde, caught hold of her and accused No. 2 put kerosene on her and set her on fire. Mother-in-law had caught hold of her and her husband was witnessing all this. They were always doubtful about her character. All of them with their common intention set her on fire and action be taken against them. In this dying declaration the story that accused No. 2 entered by removing tiles of the roof is absent. Mother-in-law had caught hold of her and her husband was witnessing all this. They were always doubtful about her character. All of them with their common intention set her on fire and action be taken against them. In this dying declaration the story that accused No. 2 entered by removing tiles of the roof is absent. 21.The last alleged dying declaration is found in the statement recorded by P.H.C. Ghare (P.W. 6). He has stated that on the day of incident he was on duty at Welha Police Station. When he received message from the control room he went to the Sassoon Hospital. After confirming from the doctor that the deceased was conscious, he recorded her statement. This statement is at Exhibit 33. In this statement the deceased has stated on 1st May, 1990 in the morning he heard noise of the tiles of her house. One the file down on the floor. She woke up. Accused No. 2 entered the house by removing tiles. He opened the door and called the other accused. Accused No. 2 told her that her conduct was bad. She was having illicit relation with Dashrath Pol. He poured kerosene which was in a bottle on her person and set her on fire. Her husband, her brother-in-law Balu Shinde, Popat Shinde and mother-in-law Bablubai Shinde caught hold of her. She has stated that the incident took place at about 5.30 a.m. Therefore, in this statement the deceased has given names of all the accused and ascribed role to them. 22.The deceased had admittedly received 82% burns. There was no serious debate over the capacity of the deceased to make statement. The doctor as well as the Special Judicial Magistrate are clear on this aspect and there is no reason to disbelieve them, they being independent witnesses. But in my opinion the discrepancies in the alleged dying declaration make them highly vulnerable pieces of evidence. Firstly the deceased is not consistent in her statement as to the manner in which the incident took place. While to Sulochana and to P.H.C. Ghare, she gives the story that accused No. 2 came from the roof, to Dr. Sonawane and to the Special Judicial Magistrate she does not say so. In the statement made before Sulochana she does not say that apart from accused No. 2 other accused played any active role. While to Sulochana and to P.H.C. Ghare, she gives the story that accused No. 2 came from the roof, to Dr. Sonawane and to the Special Judicial Magistrate she does not say so. In the statement made before Sulochana she does not say that apart from accused No. 2 other accused played any active role. However, in her statement made before P.H.C. Ghare, she states that her mother-in-law, Balu Shinde and Popat Shinde caught hold of her. In her statement recorded by the Special Judicial Magistrate, she states that accused No. 2, her brother-in-law Gulab and her mother-in-law caught hold of her and accused No. 2 poured kerosene on her. She does not take the name of Popat Shinde. To Dr. Sonawane she states that accused No. 2 poured kerosene on her and her husband and accused No. 2 set her on fire. She does not take the name of other accused. Apart from this even the timings of the incident given by her vary. To the Special Judicial Magistrate the time of incident is given as 7 a.m. while to P.H.C. Ghare she says that the incident took place at 5.30 a.m. In my opinion, therefore, dying declarations are at variance with each other and as such do not inspire confidence. 23.In this connection Mr. Pashave has rightly placed reliance on the judgment of the Supreme Court in (Kamala v. State of Punjab)2, A.I.R. 1993 S.C. 374, where the Supreme Court has observed that a dying declaration should satisfy all the necessary tests and one such important test is that, if there are more than one dying declarations, they should be consistent particularly in material particulars. 24.Mr. Pashave has also drawn by my attention to a judgment of this Court in (Balasaheb Absaheb Farate v. State of Maharashtra)3, 1999(5) Bom.C.R. 170 : 1999(1) Mh.L.J. 342 . While dealing with the evidentiary value of the dying declaration this Court has held that "the possibility of tutoring has to be eliminated before a dying declaration can be accepted. If there are more than one dying declarations, they should be consistent. In the case on hand, in my opinion, considering the fact that Sulochana, the sister was with the deceased for a considerable time in the house of the deceased, at the earliest point of time possibility of Sulochana tutoring her cannot be ruled out. If there are more than one dying declarations, they should be consistent. In the case on hand, in my opinion, considering the fact that Sulochana, the sister was with the deceased for a considerable time in the house of the deceased, at the earliest point of time possibility of Sulochana tutoring her cannot be ruled out. 25.Apart from this, in my opinion, the prosecution story is inherently improbable and the defence version is rendered probable. The prosecution has come out with a case that accused No. 2 climbed the roof, removed the tiles and entered the house. He then opened the door and allowed other accused to come in. As rightly pointed out by the learned Counsel for the appellant that at the relevant time accused No. 2 was 60 years of age. It if highly improbable for a 60 years old man to climb up the roof and remove tiles and jump inside the house. The case of the prosecution is that the deceased was having illicit relation with Dashrath Pol. Accused No. 1, the husband ought to be the real aggrieved person. He is an able bodied man from military. If such a ghastly plan was to be carried out accused No. 1 could have climbed on the roof and removed the tiles. In the absence of corroborative evidence I find it extremely difficult to accept prosecution story. There is yet another reason why I am not inclined to accept it. The Panchanama of the scene of offence makes a very interesting reading. It is at Exhibit 13. The panchanama shows that both the doors were in a damaged condition and there were broken stones lying outside the doors. I may quote the relevant sentence from the panchanama. "Hence she was called and she handed over the key. While opening the door before panchas found that the said door was double pented of military green colour. Six inches below the staple of steel which is on the middle portion of the door near a middle cranny of the door broken small piece due to blow with hard object and below that fresh marks of small pieces of hard object like stones. They are about 7 to 8 and colour on them is disappeared." "There is double pented door. They are about 7 to 8 and colour on them is disappeared." "There is double pented door. On inspection of the said door from outside found that new latch and staple are affixed on the door and frame. On the middle and lower portion of the said door there are fresh marks and small pieces broken by blow by hard object like stone at 7-8 places. To the said door inside one wooden button strip of about six inches long broken between double pented door and lying in right side corner. It was kept on broken place and found same. So also outside the door clymsy stones (Kapari) of small, big size found lying". 26.If accused No. 2 has entered the house by removing tiles, there was no reason for the doors to be in a damaged condition. This is more consistent with the defence version that Dashrath Pol and the deceased were together in the house when the accused and other villagers came. Dashrath Pol removed the tiles and he ran away. The deceased came out. The accused decided to lodge a complaint with the police. When the bus came the deceased ran inside. She closed the door, poured kerosene on herself and set herself on fire. In order to extinguish the fire and save her probably the villagers tried to break open the door. 27.Mr. Pashave has rightly urged that the police has recorded the statement of as many as 28 villagers. However, none of them was examined. This also creates a doubt about the authenticity of the prosecution story. As regards the alleged motive, the prosecution has relied upon Exhibit 30 the statement of the deceased dated 22-3-1990 which indicates that there was some compromise between her and her father-in-law and mother-in-law and in view thereof she had not pressed her complaint. Motive is double edged weapon. Besides in the absence of other cogent and clinching evidence, conviction cannot rest solely on motive assuming it is proved. In my opinion, therefore, the prosecution has miserably failed to prove its case beyond reasonable doubt. 28.The defence has examined two witnesses. The learned Judge has discarded their evidence. In my opinion the reasons given by the learned Sessions Judge to discard their evidence do not appear to be sound. In my opinion, therefore, the prosecution has miserably failed to prove its case beyond reasonable doubt. 28.The defence has examined two witnesses. The learned Judge has discarded their evidence. In my opinion the reasons given by the learned Sessions Judge to discard their evidence do not appear to be sound. In any event it is well settled that the prosecution must depend on the inherent strength of its own case and not draw support from any weakness in the defence version . Since the prosecution evidence falls short of the requirement, the inevitable consequences must follow. 29.In the result, the appeal is allowed. The judgment and order dated 29th February, 1992, passed by the Additional Sessions Judge, Pune to the extent to which it convicts the appellant accused No. 2 for the offence punishable under section 304, Part II of the I.P.C. and sentences him to suffer R.I. for a period of five years and pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo, R.I. for a period of six months is hereby quashed and set aside. The bail bond of the appellant is discharged. Appeal allowed. -----