BILAL NAZKI, J. ( 1 ) THIS is an appeal filed against the conviction and sentence passed against the accused in Sessions Case No. 761 of 1997 on the file of the Sessions Judge, Ananthapur. The accused has been convicted of the offence a/s. 302 IPC and sentenced to undergo life imprisonment. ( 2 ) THE accused was charged with an offence under Section 302 IPC on the basis of the allegations that on the intervening night of 3/4-3-1997 at about 3. 30 a. m. in her house at Kalavagadda street, Tadpatri she committed the murder of her daughter-in- law Shaik Vaheeda Bee by pouring kerosene over her and set fire to her. The accused leaded not guilty and claimed to be tried, prosecution examined 12 witnesses and exhibited 18 documents. ( 3 ) P. W. 1 is the mother of the deceased. The stated that the deceased was married to one Shailk Baba Vali and the accused is his onother. Her daughter died three years before. At the time of marriage she had given six rulas of gold to her daughter and a cash of rs. 5,000 /-, gold ring and watch to her son- in-law. The deceased did not have a child, the relationship between the deceased and he accused who is her mother-in-law was cordial and amicable. The house of the witness and the house of the accused are situated in the same locality. On the night of occurrence around 3. 00 a. m. some one came find informed the witness that her daughter /aheeda Bee sustained burn injuries. She ilong with her husband Khader Ali and her ister Sarabee went to the house of the accused where they were informed that her daughter was unable to bear the stomach pain and therefore she committed suicide by pouring cerosene over herself and setting herself on wire. She was examined by the police. Her on-in-law Shaik Baba Vali was present in the house of the accused and he had also eceived burn injuries on his fore head while extinguishing the flames. This witness was leclared hostile. She denied having made a tatement to police under Section 161 Cr. P. C. which is Ex. P-1. She also denied that she had become hostile and resiled from her earlier tatement because she had compromised the matter with the accused. This witness was leclared hostile. She denied having made a tatement to police under Section 161 Cr. P. C. which is Ex. P-1. She also denied that she had become hostile and resiled from her earlier tatement because she had compromised the matter with the accused. In her cross- examination by defence she stated that by the time of occurrence her daughter and her son-in-law were living in a separate house and the accused and her husband were living in another house. In the early hours her daughter had sustained burn injuries. She also stated that while going to hospital along with the deceased, her husband had asked her daughter to say that her mother-in-law had poured kerosene over her and had set fire to her. She and her younger sister had tutored the deceased on the same lines on which she was tutored by her father. On recross-examination by the Public Prosecutor she stated, "it is not true to suggest that we have not tutored our deceased daughter to tell against her mother-in-law as now deposed by me, but for the purpose of accommodating the accused I am now intentionally obliging the defence by saying as we tutored the deceased to give false statement against her mother-in-law (accused)". ( 4 ) P. W. 2 is the sister of P. W. 1. She also turned hostile and stated that the deceased committed suicide by self-immolation by pouring kerosene and litting fire to herself in the night at about 3. 00 a. m. as she was unable to bear the stomach pain. ( 5 ) P. W. 3 is the husband of the deceased and son of the accused. He stated that he married the deceased Vadheeda Bee about five years before. His wife had died three years earlier. She had not begotten any child. The relationship between the deceased and the accused was cordial. His wife committed suicide by pouring kerosene over herself and setting fire to herself as she was unable to bear the stomach pain with which she suffered often. At the time of occurrence his mother was not present in the house, he and his wife were only present in the house. This witness was also declared hostile. His wife committed suicide by pouring kerosene over herself and setting fire to herself as she was unable to bear the stomach pain with which she suffered often. At the time of occurrence his mother was not present in the house, he and his wife were only present in the house. This witness was also declared hostile. The witness, in his cross-examination by defence, stated that on the night of occurrence he slept out side the room and his wife slept inside the room as she was having stomach pain. On hearing cries, he woke up and found the doors closed from inside. He broke open the doors and found his wife in flames. He covered her with a rug to extinguish the flames. He asked her how did it happen. She told him that unable to bear the stomach, pain she herself poured kerosene and set fire to herself. He had also sustained burn injuries on hands and neck while extinguishing the flames. ( 6 ) P. W. 4 is the doctor who conducted post-mortem examination over the dead body of the deceased on 5-3-1997. He found burns over face, neck, thorax, upper limbs partly, over abdomen, both lower limbs and back. He also found smell of kerosene from the body. He also found that scalp hair bordering fore head, eye brows, eye lashes, public hair were burnt. Burns were to the extent of 90%. All these burns were ante- mortem in nature. His opinion was that the deceased died due to shock as a result of extensive burns. In his cross-examination he stated that since the burns were to the extent of 90% there was a possibility of immediate death. The duration of life in extensive burnt cases would depend upon the mental, psychological and physical capacities of the patient. Congestion of brain is not sufficient to make a person go into coma. ( 7 ) P. WS. 5 and 6 are witnesses to the inquest held over the dead body of the deceased. Both of them turned hostile. ( 8 ) P. W. 7 is a Civil Assistant Surgeon. He stated that on 4-3-1997 female Vaheeda Bee was brought to the hospital by her husband and others with burn injuries. He admitted her at 5. 00 a. m. and sent intimation to the police and the Magistrate, Tadpatri. Exs. Both of them turned hostile. ( 8 ) P. W. 7 is a Civil Assistant Surgeon. He stated that on 4-3-1997 female Vaheeda Bee was brought to the hospital by her husband and others with burn injuries. He admitted her at 5. 00 a. m. and sent intimation to the police and the Magistrate, Tadpatri. Exs. P-7 and P-8 are the intimations sent by him. The deceased died at 10. 00 a. m. on the same day while undergoing treatment. He sent death intimation also to the police. Ex. P-9 is the death intimation. The doctor stated that HC 1406 recorded the statement of the victim vaheeda Bee at 5. 40 a. m. He was present at that time. He endorsed the statement that, "the patient is conscious and sound and physical mental condition to give statement" on her own. Ex. P-10 is the endorsement on the statement recorded by HC 1406. Both hands of the victim were burnt, therefore her left great toe of the left leg impression was taken on the statement. He was present throughout recording of the statement by HC 1406. Later at 6. 30 a. m. on the same day Magistrate, tadpatri visited the hospital and recorded the dying declaration of the victim which was completed by 7. 10 a. m. He made an endorsement about the condition of the deceased, "patient conscious, Physical and mental condition to give statement" and it was recorded in his presence. Ex. P-11 is the endorsement made by him on the statement recorded by the Magistrate. As both hands of the victim were burnt, the impression of the left leg great toe of the deceased was taken on the dying declaration. The doctor also stated that on 4-3-1997 at 7. 30 a. m. he examined p. W. 3 and found the following injuries. (1) Five blisters at the fore head; (2) Second degree burns on left and right; (3) Third degree burns on left ring finger and dorsal side of middle and left finger. "they were simple injuries and were about 4 to 6 hours prior to his examination. Ex. P-12 is the wound certificate issued by him. In his cross-examination he stated that HC 1406 who recorded the statement of the deceased did not make note of the time of commencement and closing of recording the statement. On Ex. "they were simple injuries and were about 4 to 6 hours prior to his examination. Ex. P-12 is the wound certificate issued by him. In his cross-examination he stated that HC 1406 who recorded the statement of the deceased did not make note of the time of commencement and closing of recording the statement. On Ex. P-10 he had not put the time, he had only mentioned the date. He could not accept or deny that two pens had been used while recording the statement and the endorsement on the statement. He made his endorsement-Ex. P-10 after completion of recording of the statement. Ex. P-8 shows that the Magistrate had received the intimation at 6. 00 p. m. and he had reached the hospital at 6. 30 p. m. It was true that the magistrate had given the time as 7. 10 p. m. Then the trial Court, while recording the statement of the doctor, noted, "in the body of the endorsement madeby the Magistrate it clearly mentioned as 7. 10 a. m. , but at the end after his signature the letter appears as 7. 10 p. m. ". But the witness was categorical that the magistrate had visited the hospital only in the morning. ( 9 ) P. W. 8 is a witness who was present when the police visited the scene of occurrence. He stated that in his presence the police had seized half burnt burka, half burnt gunny bag, a plastic can containing small quantity of kerosene, half burnt polyster shirt and burnt cloth pieces and tobacco dust. He had also seen the walls in that room which had blackened due to burning smoke. Almyrahs were also having signs of smoke on the front side. There was smell of kerosene in the room. ( 10 ) P. W. 9 is the Head Constable who received Ex. P-7 on 4-3-1997. He stated that he entered the same in General Diary and rushed to the hospital where the injured vaheeda Bee was being treated. He recorded her statement in presence of duty Medical officer. After reading over the statement and admitted by the injured, he obtained her left leg toe impression on the statement as her both hands were burnt. The duty Medical officer endorsed about the condition of the patient on the statement. Ex. P-14 is the statement recorded by him. He recorded her statement in presence of duty Medical officer. After reading over the statement and admitted by the injured, he obtained her left leg toe impression on the statement as her both hands were burnt. The duty Medical officer endorsed about the condition of the patient on the statement. Ex. P-14 is the statement recorded by him. Thereafter he issued first information report Ex. P-15. Again he visited the hospital at 7. 30 a. m. and examined the victim Vaheeda Bee. He came to know that Magistrate, Tadpatri also came and recorded dying declaration of the victim. ( 11 ) P. W. 10 is the Magistrate who recorded the dying declaration of the deceased. He stated that on 4-3-1997 he received intimation from the Medical Officer, Government hospital, Tadipatri at 6. 00 a. m. Ex. P-8 is the intimation. He visited the hospital by 6. 30 a. m. He recorded the statement of the deceased in presence of doctor. He| commenced recording of statement at 6. 30 a. m and closed it by 7. 10 a. m. He read over the statement to the victim in Telugu and after she admitted the contents, he obtained her left foot big toe thumb impression on the statement as her both hands were burnt ex. P-17 is the dying declaration. Medical officer made an endorsement certifying the condition of the victim. Ex. P-11 is the said endorsement. The duty doctor was present throughout while he was recording the statement. Nobody else was present. He clarified that he made an endorsement on the intimation Ex. P-8 that he had received it at 6. 30 p. m. , instead of "a" he had put "p"by mistake, but it was true that he had received the intimation at 6. 00 a. m. The hospital is2 kms. from his residence. He had reached the hospital and started recording of statement of the deceased at 6. 30 a. m. He denied the suggestion that the victim was unable to speak coherently. By the time he reached the hospital at the bed of the patient there were some men and women around her. He did not remember their number nor knew them. ( 12 ) P. W. 11 conducted inquest over the dead body of the deceased. P. W. 12 is the inspector of Police who conducted investigations. By the time he reached the hospital at the bed of the patient there were some men and women around her. He did not remember their number nor knew them. ( 12 ) P. W. 11 conducted inquest over the dead body of the deceased. P. W. 12 is the inspector of Police who conducted investigations. ( 13 ) THE material witnesses have turned hostile in this case. P. W. 1 had not even stuck to the statement she made before the Court. She has changed veision after version. In the first instance she stated that she had tutored her deceased daughter to make a statement against her mother-in-law. Then she again resiled from this statement and then in cross- examination by the Public Prosecutor she stated that the statement she was making before the Court was at the instance ofthe accused because they had arrived at some arrangement. Therefore, this witness cannot at all be trusted. All other witnesses whoare material witnesses have also turned hostile therefore the fate of this case rests on the dying declarations alone. However, before going to the dying declarations alone it must be kept in mind that the deceased died in her own house. P. W. 3 who was her husband was present in the house. He has admitted this in his statement and he had also suffered burn injuries for which he was treated by the doctor and there is a medical certificate to that effect and even the doctor testified that the husband of the deceased had received bum injuries on the same day. Therefore, the prosecution has been able to establish that the deceased and her husband were present in the house. On the other hand, the husband of the deceased and also P. W. 1 stated that the deceased and her husband were living separately from the accused. Therefore there is no evidence on record that the accused was present in the house in which the occurrence took place during the night, but if the dying declarations are believed, then that fact may go into insignificance. There are two dying declarations, one was recorded by the Head Constable and another was recorded by the Magistrate. Before discussing both the dying declarations, it may be pertinent to note also that Ex. P-7 is the medical intimation which was sent by doctor to police. There are two dying declarations, one was recorded by the Head Constable and another was recorded by the Magistrate. Before discussing both the dying declarations, it may be pertinent to note also that Ex. P-7 is the medical intimation which was sent by doctor to police. It reads as under,"alleged to have burnt by pouring kerosene at about 3. 30 a. m. on 4-3-1997. Brought by husband and others. Admitted to shed. "ex. P-8 is the intimation sent to the Magistrate. It reads as under;"alleged to have burnt by pouring kerosene at about 3. 30 a. m. on 4-3-1997. Admitted to shed. Brought by husband and others. Dying declaration. Registered. "ex. P-14 is the dying declaration of the deceased recorded by HC1406 in which she stated that her husband was working as an auto driver. Her mother-in-law Masthan Bee and her father-in-law Madarvali also live adjacent to their house separated by a common wall. Her mother-in-law Masthan bee now and then used to abuse her in filthy language that her character was not good and she was frequently sitting at the door steps and looking to others. Then the deceased stated,"today i. e. , on the night of 3-3-1997 as I could not get sleep, I was rolling beedies sitting in my house. At about 3. 30 a. m. in the night my mother-in-law came to me and said "are you still awake", saying thus she picked up quarrel with me and took kerosene tin, which is available in the house and poured kerosene on me while I was rolling beedies and set fire with a match stick. All of a sudden my saree caught fire and was engulfed in flames and my face, all my body and back was totally burnt. Then my husband shaik Babavali woke up on hearing my cries and covered a blanket on me and put off fire. Meanwhile knowing about the incident my mother Masood Bee and my aunt Sarabee came and enquired me and I told to them about the incident. Then my husband with the assistance of my mother shifted me to the Govt. Hospital, Tadpatri and admitted me. Doctor gave me treatment. All this has been done by my mother-in-law to kill me and perform second marriage to my husband. " ( 14 ) EX. P-17 is the dying declaration recorded by the Magistrate at 6. Then my husband with the assistance of my mother shifted me to the Govt. Hospital, Tadpatri and admitted me. Doctor gave me treatment. All this has been done by my mother-in-law to kill me and perform second marriage to my husband. " ( 14 ) EX. P-17 is the dying declaration recorded by the Magistrate at 6. 30 a. m. Although it has been stated in the dying declaration that it was recorded at 6. 30 p. m. , but the Magistrate had clarified that it was a mistake and it was recorded at 6. 30 a. m. The relevant question are reproduced below,"q. When was your body burnt? ans: Today early morning between 3. 00 and 4. 00 a. m. Q. What were you doing at that time? ans: I was rolling beedies. Q. Where was your husband? ans: He went to Ananthapur. Q. Who was in the house then? ans: My mother-in-law was in the house. Q. How do you receive this burns? ans: My mother-in-law poured kerosene than lighted match stick, while I was rolling beedies. Q. Why she has done like that? ans: She used to abuse me as I could not beget children, though married 2 years back and hence burnt me. Q. Who brought you here? ans: Neighbours. Q. How about your husband? ans: He is good and he never abused me. Q. Whether your husband have any habits like drinking? ans: No. Q. Whether your husband or mother-in- law have suspicion on you? ans: No. As I could not beget children my mother-in-law has burnt me like this. Since one year she was abusing me. "on the face of it, these two dying declarations do not reconcile to each other. There were material differences in the two dying declarations which cannot be reconciled. In the first dying declaration recorded by the head Constable the deceased stated that the accused was suspecting her character, whereas in the second dying declaration recorded by the Magistrate she was emphatic that her character was never suspected, but her mother-in-law was not happy with her because she was not able to beget a child. In the first dying declaration recorded by the head Constable the deceased stated that the accused was suspecting her character, whereas in the second dying declaration recorded by the Magistrate she was emphatic that her character was never suspected, but her mother-in-law was not happy with her because she was not able to beget a child. In the first dying declaration the deceased stated that when she was burnt by her mother-in- law, she raised cries hearing which her husband woke up who was sleeping in the same room, put a blanket over her and took her to the hospital, whereas in the second dying declaration she stated that her husband was not at all at home and he had gone to ananthapur. That was factually incorrect because the doctor had stated that her husband had accompanied the lady to hospital and got her admitted in the hospital and the husband himself had received burn injuries. Since these dying declarations cannot be reconciled with each other, therefore it would be hazardous to accept either of them, more so when other material witnesses have turned hostile. ( 15 ) FOR the reasons given hereinabove, we allow the appeal, set aside the conviction and sentence and acquit the appellant/ accused. She shall be released from custody, if not involved in any other case.