JUDGMENT - D.S. ZOTING, J.:---This appeal is directed against the judgment and order of conviction, dated 30-4-1996, passed by the II Additional Sessions Judge, Ahmednagar, in Sessions Case No. 135 of 1995, whereby the appellant has been convicted for offence punishable under section 302 of Indian Penal Code and is sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer R.I. for two months. 2. Prosecution case, in brief, is that, deceased Vijaya was the wife of the appellant and the daughter of Yeshwant (P.W. 1). Her marriage was performed before 5 or 6 years prior to the incident. Since the time of her marriage, she was living with the appellant in the house, situated at village Rastapur. She was having two children from the appellant and both the children were living with deceased Vijaya and the appellant. Yeshwant (P.W. 1) the father of deceased is resident of village Kautha. He was residing in his house which is at a distance of about 2 fields away from the hut of the appellant. The incident occurred on 9-2-1995 at about 6.00 p.m. On that day, deceased Vijaya had kept “Dal' on the hearth for the purpose of cooking. There was no flour to prepare the bread. The appellant came to the hut in the evening and told Vijaya to serve him food. Vijaya told the appellant to bring flour and then she would prepare bread. Having seen that bread was not ready, the appellant got annoyed at the deceased. It is alleged that he had picked up a tin containing about 1 to 1 and half litres kerosene oil and poured the same on the person of Vijaya, took out a burning wood from the hearth which was burning and set his wife Vijaya on fire. As soon as Vijaya caught fire, she was engulfed in the flames. She came out of the house and jumped into a pond situated near the hut to extinguish the fire. She started crying, which attracted the neighbours, namely Vatsalabai (P.W. 2) and Punja (P.W. 3) to rush towards her. It is said that she had disclosed before them that her husband poured kerosene oil on her person and set her on fire. She started crying, which attracted the neighbours, namely Vatsalabai (P.W. 2) and Punja (P.W. 3) to rush towards her. It is said that she had disclosed before them that her husband poured kerosene oil on her person and set her on fire. After some time, in that state, she was shifted to Wadala, by a vehicle passing by that road and she was then admitted in the Mission Hospital at Wadala at about 7.30 p.m. She had received 85 per cent burn injuries on her person. 3. Dr. Prabhakar (P.W. 6) gave her medical treatment. At the time of treatment, Vijaya made a disclosure before the doctor that her husband poured kerosene oil on her person and set her on fire. The Medical Officer Dr. Prabhakar (P.W. 6) informed about the admission of Vijaya with burns all over her body to the Police Station Officer of Sonal Police Station by issuing letter Exhibit 24. After receipt of the said letter, Police Station Officer directed Head Constable Machhindra Tawle (P.W. 5) to go to the hospital and to do the needful. On 10-2-1995, Machhindra Tawle (P.W. 5) issued letter of requisition Exh. 25 to the Honorary Magistrate Mote (P.W. 4) requesting him to record dying declaration of Vijaya and thereafter he visited the hospital. He met with the injured Vijaya and recorded her statement Exh. 26. Head Constable Machhindra Tawle (P.W. 5) came to the Police Station on the same day i.e. on 10-2-1995 and submitted his report Ex. 27 along with the statement of Vijaya Exh. 26 recorded by him. P.S.I. Kurumkar (P.W. 7) was working as Police Station Officer at Wadala. On the basis of the statement Exh. 26 recorded by Head Constable Machhindra Tawle (P.W. 5), offence was registered under section 498-A and section 307 of Indian Penal Code. P.S.I. Kurumkar (P.W. 7) took up the investigation. He visited the spot and drew panchanama of the scene of offence. It is at Exh. 18. He recorded statement of some persons. On 11-2-1995, Honorary Magistrate Mote (P.W. 4) visited hospital for the purpose of recording dying declaration. On getting the information from the Medical Officer as regards the condition of deceased Vijaya, he recorded the dying declaration Exh. 20. Vijaya succumbed to the burn injuries on 12-3-1995. The Medical Officer informed the said Police Station as regards the death of Vijaya. On 11-2-1995, Honorary Magistrate Mote (P.W. 4) visited hospital for the purpose of recording dying declaration. On getting the information from the Medical Officer as regards the condition of deceased Vijaya, he recorded the dying declaration Exh. 20. Vijaya succumbed to the burn injuries on 12-3-1995. The Medical Officer informed the said Police Station as regards the death of Vijaya. P.S.I. Kurumkar (P.W. 7) visited the hospital and held inquest on the dead body of Vijaya in presence of two panchas and prepared inquest panchanama Exh. 14. The accused was arrested on 10-2-1995. After death of Vijaya, offence under section 307 of Indian Penal Code was converted into offence under section 302 of Indian Penal Code. 4. After completion of investigation, the accused was charge-sheeted for the offence punishable under sections 302 and 498-A of Indian Penal Code in the Court of learned Judicial Magistrate, First Class, Newasa. Offence under section 302 of Indian Penal Code is exclusively triable by the Court of Sessions, therefore, the learned Judicial Magistrate, First Class, Newasa committed the case to the Court of Sessions for trial according to law. 5. The accused was produced before the II Additional Sessions Judge, Ahmednagar. The learned Judge framed charge under sections 302 and 498-A of Indian Penal Code against the appellant vide Exh. 3. It was read over and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. His defence is one of total denial. He has submitted his written say Exh. 47 and raised a plea of alibi. According to him, on the fateful day of the incident, he was not present in his house but he had gone to Ahmednagar for his private work and when he returned back to his village on the next day, he came to know about the incident. According to him, his wife Vijaya caught fire while she was cooking food. Thus, according to him, Vijaya had accidentally caught fire and as such he is not at all responsible for her death. He has not adduced any evidence in his defence. 6. After hearing arguments advanced by both the parties and on going through the evidence of prosecution witnesses, mainly consisting of dying declarations, the learned II Additional Sessions Judge, Ahmednagar, found that prosecution has failed to establish offence punishable under section 498-A of Indian Penal Code against the appellant. He has not adduced any evidence in his defence. 6. After hearing arguments advanced by both the parties and on going through the evidence of prosecution witnesses, mainly consisting of dying declarations, the learned II Additional Sessions Judge, Ahmednagar, found that prosecution has failed to establish offence punishable under section 498-A of Indian Penal Code against the appellant. Accordingly, he acquitted the appellant of the offence punishable under section 498-A of Indian Penal Code. However, he found the appellant guilty of offence punishable under section 302 of Indian Penal Code. Therefore, he convicted the appellant for having committed offence punishable under section 302 of Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer R.I. for two months. 7. Being aggrieved by the said judgment and order of conviction, passed by the learned II Additional Sessions Judge, Ahmednagar, the appellant has preferred this appeal challenging the said order of conviction and sentence passed against him before this Court. 8. We have heard the arguments advanced by Shri R.N. Dhorde, learned Counsel for the appellant and Shri N.N. Jadhav, learned Additional Public Prosecutor for the respondent/State. We have gone through the entire evidence of the prosecution witnesses mainly consisting of dying declarations and we find that the evidence on dying declaration produced by the prosecution is not trustworthy to sustain the conviction. 9. The fact that deceased Vijaya died unnatural death as a result of the burn injuries received by her has not come to be disputed in any manner by or on behalf of the appellant. On 9-2-1995 at about 7.30 p.m. Vijaya was admitted in the hospital at Wadala in injured condition. Dr. Prabhakar (P.W. 6) has stated that deceased Vijaya was having burn injuries on her person when she was admitted in the hospital. Vijaya succumbed to the said burn injuries on 12-3-1995. P.S.I. Kurumkar (P.W. 7) held inquest on the dead body of deceased Vijaya. He drew inquest panchanama Exh. 14 in presence of two panchas. He has described the nature of burn injuries in the inquest panchanama. Dr. Prabhakar (P.W. 6) opined that the cause of death of Vijaya was burn injuries leading to septicaemia. Having regard to all this evidence of incontrovertible nature, there cannot be any doubt that deceased Vijaya died unnatural death. 10. 14 in presence of two panchas. He has described the nature of burn injuries in the inquest panchanama. Dr. Prabhakar (P.W. 6) opined that the cause of death of Vijaya was burn injuries leading to septicaemia. Having regard to all this evidence of incontrovertible nature, there cannot be any doubt that deceased Vijaya died unnatural death. 10. However, the vital question that arises for our consideration is whether the prosecution has succeeded in proving that deceased Vijaya died homicidal death and appellant is responsible for the said homicidal death. In support of its case, prosecution has examined 7 witnesses, as under. DYING DECLARATION : P.W. 1 Yeshwant P.W. 2 Vatsalabal P.W. 3 Punja P.W. 4 Mote MEDICAL OFFICER : P.W. 6 Dr. Prabhakar POLICE OFFICERS : P.W. 5 Head Constable Machhindra Tawle P.W. 7 P.S.I. Kurumkar 11. After going through the entire evidence and the judgment passed by the II Additional Sessions Judge, Ahmednagar, it is noticed that there is no direct evidence against the appellant to show his involvement, but there are various dying declarations oral as well as written on record. 12. As the conviction is based on only dying declarations, before appreciating the evidence of dying declaration, we think that it would be useful to note the importance of dying declaration and also to note the factors, which should be seen while relying on the dying declaration. 1) Section 32(1) of Indian Evidence Act speaks about it. Dying declaration is an exception to the general rule of evidence, that hearsay evidence is not admissible. Now, it has been accepted by the legislature that a dying declaration may be admitted, in evidence, even though it is hearsay evidence, on firm footing, namely, the first reason is that, that is the best evidence available from the person who has been aggrieved by whatever injury has been caused to him and the second reason is that the occasion is very solemn, and the dying man is face to face with his maker (God). It is the belief that the injured person on the death bed would not tell a lie. On this footing, this hearsay evidence has been accepted as admissible. 2) Now, this dying declaration may be made to any person; he may be a prince or a pauper, may be a police man or a Magistrate. It is the belief that the injured person on the death bed would not tell a lie. On this footing, this hearsay evidence has been accepted as admissible. 2) Now, this dying declaration may be made to any person; he may be a prince or a pauper, may be a police man or a Magistrate. Dying declaration is made, if the person who is expecting to die, gives out the cause of injury on him, before any person. All these statements are equally admissible. But we may say that if that is reproduced in writing in his own words, then it is very helpful, because human memory fails as the time passes and it will be very difficult to recollect what the dying person was telling exactly in his own words, after say lapse of year or two, when that person is asked in a Court of law as to what he heard. 3) As regards appreciation of a dying declaration as a piece of evidence, the Apex Court reiterated the well settled principle in the case of (Smt. Laxmi v. Om Prakash)1, reported in A.I.R. 2001 S.C. 2383 as under : “The law is well settled; dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction a Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.” 12-A. Ultimate test is whether dying declaration can be held to be truthful one and voluntarily given. If the Court is satisfied that dying declaration is true and voluntary, it can base conviction on it without corroboration. Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, promoting or imagination. Where dying declaration is suspicious, it should not be accepted without corroborative evidence. A dying declaration which suffers from infirmity cannot form the basis of conviction. For testing the case in hand on the principles referred to above, let us examine the evidence as regards dying declaration on record. 13. In view of the rival submissions made at the Bar, the question for our consideration is whether the dying declaration can be held to be cogent, reliable and trustworthy and can be relied upon or can be excluded from consideration on infirmities pointed out by the learned Counsel appearing for the appellant. 13. In view of the rival submissions made at the Bar, the question for our consideration is whether the dying declaration can be held to be cogent, reliable and trustworthy and can be relied upon or can be excluded from consideration on infirmities pointed out by the learned Counsel appearing for the appellant. The answer to the same would depend upon the correctness of the submission of the learned Counsel appearing for the appellant so as to ascertain whether the dying declaration loses its value and cannot be accepted. 14. According to the prosecution, the first dying declaration immediately after the incident was made by deceased Vijaya before Vatsalabai (P.W. 2) and Punja (P.W. 3). Both the witnesses have categorically denied that deceased Vijaya made any dying declaration before them. It has come in evidence of Vatsalabai (P.W. 2) that her house is situated at a distance of about 2 to 4 fields away from the house of deceased Vijaya. Yeshwant (P.W. 1) father of deceased Vijaya has stated that the distance between the house of Vatsalabai (P.W. 2) and the house of deceased Vijaya was about 1,000 feet. The house of Punja (P.W. 3) is about 2 fields away from the house of deceased Vijaya. Whatever these two witnesses might have stated before the Investigating Officer when their statements came to be recorded under section 161(3) of Criminal Procedure Code, when they came in witness box to depose on oath, they have not supported the prosecution case as regards the disclosure alleged to have been made by deceased Vijaya before them regarding authorship of the burn injuries on her person. Both these witnesses have not stated about the presence of the accused at or near the house which was destroyed in the fire. They have also not stated about the presence of Yeshwant (P.W. 1). 15. Yeshwant (P.W. 1) the father of deceased Vijaya stated that on that day at about 5.30 p.m. to 6.00 p.m. he was in the hut situated in the field and it is at a distance of two fields away from the hut of deceased. They have also not stated about the presence of Yeshwant (P.W. 1). 15. Yeshwant (P.W. 1) the father of deceased Vijaya stated that on that day at about 5.30 p.m. to 6.00 p.m. he was in the hut situated in the field and it is at a distance of two fields away from the hut of deceased. He stated that he heard shouts from the hut of deceased and, therefore, he and his wife came out of their hut and they went towards the hut of their daughter and at that time they noticed that their daughter Vijaya was coming towards the road and she was having burn injuries. He stated that when he asked her about her burn injuries, she told him that accused poured kerosene oil on her person and set her on fire. He further stated that he took Vijaya to village Chanda and thereafter he went to the house of her father-in-law and then they all took her to the hospital at Wadala. 16. On scrutiny of the detailed dying declaration made before the Honorary Magistrate Shri Mote (P.W. 4), it is to be seen whether the statement made by this witness inspires confidence. Shri Mote (P.W. 4), who was working as Honorary Magistrate at Wadala gave evidence that on 10-2-1995 at about 11.00 a.m. he received a letter from Sonal Police Station for recording dying declaration of Vijaya. On that day he was not felling well, therefore, he could not go to the hospital for recording the dying declaration on that day. Therefore, on the next day i.e. on 11-2-1995, at 11.00 a.m. he went to the hospital for recording dying declaration of Vijaya and after seeking advice of the Dr. Prabhakar (P.W. 6), he recorded the dying declaration of Vijaya Exh. 20. 17. In her dying declaration Exh. 20, Vijaya stated that on Thursday in the evening between 6.00 p.m. to 7.00 p.m., her husband (appellant) came to the house and asked her to serve him food. He was under influence of liquor and he was not in a position to walk properly. She told him that there was no flour for preparing bread (Bhakar) and requesting him to bring the flour and thereafter she would prepare the bread. But the appellant insisted her to serve him food immediately. He was under influence of liquor and he was not in a position to walk properly. She told him that there was no flour for preparing bread (Bhakar) and requesting him to bring the flour and thereafter she would prepare the bread. But the appellant insisted her to serve him food immediately. He got annoyed and poured kerosene oil on her person and set her on fire with the burning wood which he picked up from the burning hearth. She stated that at that time, her two children and the appellant were the only persons present in the house. She further stated that she was engulfed with the flames and she came out of the house and jumped into the pond near the hut to extinguish the fire and thereafter she started going towards the road and at that time she was crying and on hearing her shouts neighbouring persons came towards her and she was taken in a vehicle passing by the road. She further stated that the driver of the vehicle took her to the house of her in-laws situated at Chanda and from the said house, she was shifted to the hospital. 18. The learned Counsel for the appellant has assailed this statement Exh. 20 on various grounds. He contended that there is no cogent evidence on record to show that the Medical Officer examined deceased Vijaya before the Honorary Magistrate started recording the statement so as to show that she was conscious and mentally fit to make the statement till completion of her statement. The learned Counsel for the appellant has drawn our attention to the endorsement made by the Medical Officer in this regard on the dying declaration Exh. 20. 19. On perusal of said dying declaration Exh. 2, we notice that the Medical Officer had made endorsement in the margin of the said document to the effect that the patient is fully conscious to give statement. He put his signature below the endorsement and also put date and time. As per this endorsement, the time of making endorsement is 12.00 noon. Dr. Prabhakar (P.W. 6) gave evidence that on 11-2-1995 at 11.00 a.m. the Magistrate Shri Mote (P.W. 4) came in the hospital and informed him that he wanted to record the statement of injured Vijaya. He put his signature below the endorsement and also put date and time. As per this endorsement, the time of making endorsement is 12.00 noon. Dr. Prabhakar (P.W. 6) gave evidence that on 11-2-1995 at 11.00 a.m. the Magistrate Shri Mote (P.W. 4) came in the hospital and informed him that he wanted to record the statement of injured Vijaya. He further stated that doctor told him to go to the place where Vijaya was kept and record the statement as he wanted to go to operation theatre. He stated that Dr. Prarbhakar (P.W. 6) told him that while taking round he had already examined Vijaya and at that time she was conscious and she was in a position to give statement, therefore, he told Shri Mote (P.W. 4) to go and record her statement. Dr. Prabhakar (P.W. 6) has not made it clear as to at what time he had taken the round. Shri Mote (P.W. 4) has also made a statement to the effect that Medical Officer had not examined the patient in his presence on the ground that he had already examined her. 20. Shri Dhorde, learned Counsel for the appellant has drawn our attention to the case papers Exh. 31 produced by the prosecution. He contended that there is nothing in the case papers dated 11-2-1995 to show that the Medical Officer or any doctor did examine deceased Vijaya in between 11.00 a.m. and 12.00 noon. 21. On going through the case papers Exh. 31, we notice that there is endorsement as regards the Medical Officer's visit at 2.00 a.m. and 2.00 p.m. on that day and no record is available to show that Vijaya had been examined in between 11.00 a.m. and 12.00 noon. As regards this endorsement, Honorary Magistrate Shri Mote (P.W. 4) stated that the said endorsement was made by the Medical Officer in his office, which is about 100 to 150 feet away from the room in which Vijaya was kept. Though he stated that after completing dying declaration Dr. Prabhakar (P.W. 6) examined her, but Dr. Prabhakar (P.W. 6) in his deposition does not state so. Dr. Prabhakar (P.W. 6) stated that after recording the statement of Vijaya, Shri Mote (P.W. 4) came to him, showed the statement and he made endorsement on the statement to the effect that patient was fully conscious to give statement. Prabhakar (P.W. 6) examined her, but Dr. Prabhakar (P.W. 6) in his deposition does not state so. Dr. Prabhakar (P.W. 6) stated that after recording the statement of Vijaya, Shri Mote (P.W. 4) came to him, showed the statement and he made endorsement on the statement to the effect that patient was fully conscious to give statement. Shri Mote (P.W. 4) stated that he started recording statement of Vijaya at 11.00 a.m. and finished the same within half an hour, which shows that Shri Mote (P.W. 4) must have finished recording dying declaration at about 11.30 a.m., whereas the endorsement of Medical Officer is at 12.00 noon. 22. Thus after going through the evidence of Shri Mote (P.W. 4) and Dr. Prabhakar (P.W. 6), it is not clear that the Medical Officer examined Vijaya before Honorary Magistrate Mote (P.W. 4) started recording the statement and after finishing the statement. Thus, prosecution has not proved beyond reasonable doubt that at the time of recording the dying declaration, Vijaya was conscious and was mentally fit to make statement. It is to be noted that when she was admitted in the hospital, she was in very serious condition and the relatives of deceased Vijaya were informed as regards the serious condition of the patient. There is endorsement to that effect on the case papers. Under such circumstances and especially when it is doubtful as to whether Medical Officer examined Vijaya before Honorary Magistrate started recording the statement of Vijaya, it is very unsafe to rely on the general statement that she was conscious and was in a position to make statement. 23. Shri Dhorde, learned Counsel for the appellant has further contended that the allegations are made in the dying declaration that the appellant poured kerosene oil on the person of deceased Vijaya and set her on fire, but there is no evidence on record to show that any residues of kerosene oil were found on the person of deceased Vijaya or on her clothes. He pointed out that though it is alleged that the appellant picked up the tin containing kerosene oil and poured it on the person of Vijaya, however, the said tin was not found. 24. After going through the spot panchanama Exh. 18, it appears that the hut of the appellant was burnt and only small piece of nylon sari and the burnt house hold articles were found. 24. After going through the spot panchanama Exh. 18, it appears that the hut of the appellant was burnt and only small piece of nylon sari and the burnt house hold articles were found. The said piece of sari was not sent to the Chemical Analyser for chemical analysis. Inquest panchanama is at Exh. 14. There is no reference in the inquest panchanama that the skin of deceased was smelling of kerosene oil. It is also pertinent to note that the prosecution has not placed on record the post mortem report. The Investigating Officer Shri Kurumkar (P.W. 7) does not say that he referred the dead body for post mortem examination, nor the Medical Officer Dr. Prabhakar (P.W. 6) made any statement that he conducted post mortem examination of the deceased. 25. The learned Counsel for the appellant Shri Dhorde has drawn our attention to the case papers Exh. 31 in support of his contention that there is no reference in the case papers about the smell of kerosene oil on the clothes of deceased or on her person. The case papers, which comprise of as many as about 20 pages do not refer to the smell of kerosene oil at any point of time. Dr. Prarbhakar (P.W. 6) in his cross-examination has fairly admitted that it is the practice of their hospital to mention the smell of kerosene in the case papers of patient, if injuries have smell of kerosene. He further admits that it is not mentioned in the case papers of deceased Vijaya that there was smell of kerosene from burn injuries. He has further stated that if the burn injuries are caused by pouring kerosene on body and setting on fire, then such injuries use to be black in colour and sooty and also with odour. He has also admitted that after burning the cloth which was soaked with kerosene, there remains alkylnaphtathalenes in such a cloth. He has further admitted that after pouring the kerosene on the body and after burning layer of the skin there remains alkynaphtathalenes in the burnt layer of skin. In view of these admissions, it is crystal clear that the Medical Officer would have definitely mentioned the smell of kerosene of burn injuries if he had noticed such a smell. He has further admitted that after pouring the kerosene on the body and after burning layer of the skin there remains alkynaphtathalenes in the burnt layer of skin. In view of these admissions, it is crystal clear that the Medical Officer would have definitely mentioned the smell of kerosene of burn injuries if he had noticed such a smell. Thus there is absolutely no evidence on record to show the residues of kerosene oil either on the clothes on the person of deceased or on the injuries on her person. Therefore, there is absolutely no evidence in this regard to lend assurance to the statement of deceased that kerosene was poured on her person. 26. It may also be noted that in the dying declaration, deceased Vijaya stated that at the time of occurrence, her two children were present in the house. There is nothing on record to show as to what happened to those children. Yeshwant (P.W. 1) the father of deceased stated that the elder son of deceased was 4 to 5 years old and the younger son was about 1 to 1 and half years. Yeshwant (P.W. 1), who claims to have rushed to the spot on hearing shouts, also does not say about these two children. This circumstance also goes against the prosecution. It may also be noted that in her dying declaration, Vijaya does not speak about the presence of her father Yeshwant (P.W. 1). As per her statement, the driver of one vehicle brought her to village Chanda and left her at the residence of her father-in-law, whereas Yeshwant (P.W. 1) claims that he rushed towards deceased on hearing her shouts and brought her in the vehicle to the house of her father-in-law. If it was so, Vijaya definitely would have stated this fact in her dying declaration. Absence of this fact in her dying declaration creates doubt about the presence of Yeshwant (P.W. 1) and consequently, what Yeshwant (P.W. 1) says about alleged dying declaration made by deceased before him is also not free from doubt and creates doubt and uncertainty sufficient to give benefit to the accused in this regard. 27. The prosecution has further placed reliance on the statement of Vijaya before Head Constable Machhindra Tawle (P.W. 5). The statement recorded by him is at Exh. 26. 27. The prosecution has further placed reliance on the statement of Vijaya before Head Constable Machhindra Tawle (P.W. 5). The statement recorded by him is at Exh. 26. The Investigating Officer treated this statement as first information report and registered the offence and thereafter as deceased Vijaya succumbed to the burn injuries, the said statement is treated as dying declaration. He stated that on 9-2-1995, Sonal Police Station received memo from Mission hospital at about 10.45 a.m. informing the said Police Station about admission of Vijaya with burn injuries. He stated that the Police Station Officer directed him on the next day morning to visit the hospital and to do the needful. In pursuance of the said direction, he went to Wadala and issued letter to the Honorary Magistrate Shri Mote (P.W. 4) requesting him to record dying declaration and then went to the hospital. He further stated that after reaching the hospital, he went to the room in which Vijaya was kept and recorded her statement. According to him, she was conscious and fit to make statement, but he did not take pains to approach the Medical Officer available in the hospital to seek his opinion as regards the condition of deceased Vijaya. He fairly admitted that he has not asked any doctor to examine Vijaya, to ascertain whether she was conscious and was in a position to make statement. According to him, he directly approached the injured patient Vijaya and recorded her statement. In this regard, it is to be noted that though this statement came to be recorded in the hospital when doctors were available, no endorsement of the doctor was obtained as regards physical and mental condition of Vijaya to make statement. This creates doubt as regards this document. It is to be noted that though the Police Station received memo from the hospital on 9-2-1995, no step is taken by the police till 11.00 a.m. on the next day for recording her statement. Exh. 26 does not bear the endorsement of any of the doctors. Time of recording the statement is also not put thereon. The learned Counsel for the appellant submitted that Exh. 26 is the out come of after thought story at his instance. Exh. 26 does not bear the endorsement of any of the doctors. Time of recording the statement is also not put thereon. The learned Counsel for the appellant submitted that Exh. 26 is the out come of after thought story at his instance. In this statement, the story as regards presence of father and mother of deceased after the incident appears to have been concocted and it is stated that they brought her to the hospital and admitted deceased Vijaya in the hospital. This is contrary to the statement made before the Honorary Magistrate Shri Mote (P.W. 4). This statement does not disclose the presence of children of deceased. There appears no consistency between the said statement made before the Honorary Magistrate Shri Mote (P.W. 4) and the statement before the Head Constable Machhindra Tawle (P.W. 5). They differ on some material aspects and, therefore, these statements cannot be safely accepted. 28. Prosecution has also placed much reliance on history given by the patient as recorded in the case papers Exh. 31. The said history is to the effect that, “Patient came with history of burns. Patient gave history that her husband burnt her by pouring kerosene on her person and setting her on fire and her father, mother and father-in-law admitted her in the hospital at 7.30 p.m.”. The time of admission is shown as 7.30 p.m. Dr. Prabhakar (P.W. 6) has also admitted that she was admitted at 7.30 p.m. in the hospital, however, he made it clear that Junior doctor got Vijaya admitted in the hospital. She categorically stated that though he recorded the history in his hand writing, he had not taken the history at 7.30 p.m. but recorded it at 9.30 p.m. while he was treating her. Thus, it is clear that the first column pertaining history of patient was kept blank at the time of admission. However, the same was filled up after two hours i.e. at 9.30 p.m. It is also pertinent to note that the learned Judge has also placed much reliance on this history together with the statement Exh. 32 recorded by one nurse namely Smt. Jadhav on the case papers. Dr. Prabhakar (P.W. 6) has also stated that Smt. Jadhav recorded the statement. He stated that Smt. Jadhav recorded the statement of Vijaya in his presence and in presence of her relatives. 32 recorded by one nurse namely Smt. Jadhav on the case papers. Dr. Prabhakar (P.W. 6) has also stated that Smt. Jadhav recorded the statement. He stated that Smt. Jadhav recorded the statement of Vijaya in his presence and in presence of her relatives. It is pertinent to note that the Nurse who recorded the statement is not examined by the prosecution. On going through the statement, it seems that the said statement appears to have been made by the father-in-law of deceased as the statement starts with the words, “our daughter-in-law Vijayabai w/o Praveenkumar Chandekar”. In the statement allegations are also made that husband of Vijaya set her on fire. From the tenor of the statement, it appears that it must have been stated by father-in-law of deceased. It cannot be said to be a dying declaration of deceased. It is also pertinent to note that his statement appears to have been recorded at 9.30 p.m. Same time is mentioned while filling the Column No. 1 pertaining to history of patient by the Medical Officer Dr. Prabhakar (P.W. 6). Therefore, the endorsement Exh. 31 made by Dr. Prabhakar (P.W. 6) at 9.30 a.m. loses its significance. Had the history been taken immediately at the time of admission at 7.30 p.m., it would have carried much importance. For the reasons already stated together with the factor that by that time much water had flown, the endorsement Exh. 31 regarding history cannot be accepted as true and correct. 29. Thus on over all consideration of the facts and circumstances of the case, the evidence on record and the important features which have been noted by us as above led us to the conclusion that the evidence produced by the prosecution in the form of dying declarations fails to inspire confidence and at any rate, the evidence discussed above creates doubt and uncertainty sufficient to give benefit of doubt to the accused-appellant, especially in the circumstances that admittedly deceased Vijaya was cooking at the time of occurrence and no residues of kerosene oil were found on the injuries of the deceased, on her person or on her clothes. Consequently, possibility of accidental death cannot be overruled. Thus, the order of conviction and sentence passed by the learned II Additional Sessions Judge, Ahmednagar against the appellant/accused deserves to be quashed and set aside. 30. In the result, the appeal is allowed. Consequently, possibility of accidental death cannot be overruled. Thus, the order of conviction and sentence passed by the learned II Additional Sessions Judge, Ahmednagar against the appellant/accused deserves to be quashed and set aside. 30. In the result, the appeal is allowed. The order of conviction and sentence, dated 30-4-1996, passed against the appellant/accused under section 302 of Indian Penal Code, by the learned II Additional Sessions Judge, Ahmednagar, in Sessions Case No. 135 of 1995 is hereby quashed and set aside and the appellant/accused is acquitted of the offence charged under section 302 of Indian Penal Code. The appellant be released forthwith, if not required in any other case. The amount of fine, if any paid by the appellant, be refunded to him. Appeal allowed. -----