JUDGMENT 1. - The appellant was indicted before the learned Additional Sessions Judge, Dholpur in Sessions case No. 53/97 for having committed murder of Smt. Sudesh. He was found guilty, convicted and sentenced vide judgment dated 5.9.1998 u/s. 302 of the Indian Penal Code to suffer imprisonment for life and a fine of Rs. 2,000/-, in default to further undergo two months' simple imprisonment. 2. The prosecution case as unfolded during trial is that Sudesh (now deceased) on 5.3.1997 was admitted to the hospital in badly burnt condition. Shyam Lal, ASI around 2.30 p.m. recorded her Parcha-Bayan Ex.P/4. In the Parcha-bayan it was inter alia stated by Sudesh that on the fateful day around 11.30 a.m. the appellant who was her distantly related brother-in-law, came to her house, caught hold of her, took her to the room telling her that he would not spare her alive, poured kerosine oil on her, ignited match stick and set her ablaze. Hearing her shreeks her mother-in-law and sister Suman rushed and took her to the hospital. On the basis of Parcha-Bayan a case u/s. 307 of the Indian Penal Code was initially registered and investigation commenced. Injuries of Smt. Sudesh got examined. Statements of witnesses u/s. 161 Cr.P.C. were recorded. Site was inspected. In the course of investigation Sudesh was taken for treatment to J.A. Group of Hospitals, Gwalior (M.P.) where Dr. Rajeev Gurmukhi PW-11 got her statement recorded on 8.3.1997 at 1.00 p.m. wherein Sudesh deposed that some four days ago while she was preparing food the appellant had a quarrel with her and he poured kerosine oil on her and set her a flamed. On 10.3.1997 Sudesh died and case was converted into one u/s. 302 of the Indian Penal Code. Autopsy on the dead body of Sudesh was conducted and on completion of investigation, charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Dholpur. Charge u/s. 302 of the Indian Penal Code was framed against the appellant who denied the charge and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation u/s. 313 Cr.P.C. the appellant claimed innocence. The appellant examined as many as 5 witnesses in support of his defence. On hearing final submissions the learned trial Judge convicted and sentenced the appellant as indicated here-in-above. 3. The prosecution in support of its case examined as many as 12 witnesses. In the explanation u/s. 313 Cr.P.C. the appellant claimed innocence. The appellant examined as many as 5 witnesses in support of his defence. On hearing final submissions the learned trial Judge convicted and sentenced the appellant as indicated here-in-above. 3. The prosecution case rests on the dying declaration of Sudesh (Ex.P/10) and her Parcha-Bayan (Ex.P/4). This evidence is further supported by the testimony of Pinki PW-2, Shyamo PW-3 and Suman PW-8. Then comes the testimony of Dr. Rajeev Gurmukhi PW-11, who allegedly recorded the dying declaration of Sudesh and Dr. J.N. Soni PW-10, who conducted autopsy on the dead body of Sudesh. 4. Mr. Satyendra Kumar Gupta, learned counsel appearing for the appellant canvassed that from the material on record no case u/s. 302 IPC is proved against the appellant beyond reasonable doubt. Learned counsel urged that from the statement of Dr. R.C. Goyal PW-4, who examined the injuries sustained by Sudesh on 5.3.1997, it is established that Sudesh herself set her a flamed. Taking us through the statement of Dr. R.C. Goyal and the Injury Report Ex.P/3, learned counsel contended that it was the case of suicide. It was next urged that Site Plan does nut, support the prosecution story. Learned counsel placed reliance pr, Laxmi (Smt.) v. Om Prakash & Ors., (2001) 6 SCC 118 . Per contra Mr. S.S. Rathore, learned Public Prosecutor on the other hand supported the impugned judgment and canvassed that the testimony of Pinki PW-2, Shyamo PW-3 and Suman PW-8 was rightly relied on by the learned trial Judge. 5. Delving deep into the facts and circumstances of the case we find that Sudesh was admitted to the hospital on 5.3.1997 and her injuries were initially examined by Dr. Goyal vide Ex.P/3. A look at the Injury Report Ex.P/3 demonstrates that Dr. Goyal initially made an endorsement that Sudesh herself got burns with kerosine oil but word 'herself was subsequently erased and this fact was admitted by Dr. Goyal in the cross-examination that he made remarks that the patient herself got burnt but subsequently he erased the word `herself and put his initials. Dr. Goyal also admitted that on being enquired as to how she was burnt, Sudesh told him that she herself set her a flamed. 6. Goyal in the cross-examination that he made remarks that the patient herself got burnt but subsequently he erased the word `herself and put his initials. Dr. Goyal also admitted that on being enquired as to how she was burnt, Sudesh told him that she herself set her a flamed. 6. Coming to the testimony of Pinki PW'V-2, we find that she is Nanad (sister-in-law) of the deceased. In her deposition she stated that when her Bhabhi (Sudesh) was washing the clothes in the bathroom, the appellant sprinkled water on her and teased her. On being protested the appellant caught hold of her and took her to `Khaprail" (small hut covered by bricks). As door of `Khaprail' was bolted from inside, she got it opened with difficulty and found Sudesh badly burnt. The appellant who was inside immediately fled away. In the cross-examination she however deposed that some 15 days ago the appellant and Sudesh together went to Delhi and remained there for twenty days. Thereafter Sudesh was asked by her in laws not to meet with the appellant. According to her the measurement of `Khaprail' was 6'x 7'. 7. Shyamo PW-3 and Suman PW-8 corroborated the version of Pinki. 8. The defence of the appellant before the learned trial Judge was that he was not involved in the crime and it was Sudesh who herself set her ablazed. In support of defence the appellant examined Ashok Sharma DW-1, who on the date of the incident was residing in the neighbourhood of the deceased. Ashok Sharma stated that around 12.30 noon on 5.3.1997 hearing hue and cry in his Mohalla that Sudesh set herself aflamed, when he reached near the corner of the street he found Sudesh lying having burns on her body. Then he and other Mohallewalas' took Sudesh to the hospital. Kalpana Tiwari DW-2 who was the next door neighbour of Sudesh stated that around 12.30 noon she heard the mother-in-law of Sudesh raising cry that her daughter-in-law set herself a flamed. Seema DW-4 Nanad of Sudesh, stated that around 12.30 noon Sudesh and her mother-in-law had a quarrel and then Sudesh herself poured kerosine oil on her and set herself a flamed. Compounder Mahendra Kumar DW-3 and Shree Bhagwan DW-5 stated that in their presence Doctor Goyal asked Sudesh as to what had happened, then Sudesh told the Doctor that she herself set her a flamed. 9. Compounder Mahendra Kumar DW-3 and Shree Bhagwan DW-5 stated that in their presence Doctor Goyal asked Sudesh as to what had happened, then Sudesh told the Doctor that she herself set her a flamed. 9. The fact situation as discussed here-in-above may be summarised thus: (i) From the statements of Pinki, Shyamo and Suman it appears that Sudesh and Santosh had illicit relationship. (ii) When Sudesh was initially examined by Dr. Goyal she told him that she herself set her a flamed. (iii) Sudesh died after five days of the incident but no attempt was made by the Investigating Officer to get her statement recorded by any Magistrate. (iv) In Parcha-Bayan Ex.P/4 Sudesh deposed that Santosh straight- way caught hold of her, took her to the room, poured kerosine and set her ablazed. But in her declaration Ex.P/10 she stated that when she was preparing food, appellant came and started quarreling with her and in the course of quarrel, appellant poured kerosine and set her a flamed. Whereas as per statements of Pinki, Shyamo and Suman at the time of incident Sudesh was in the bathroom and washing clothes. (v) Ashok Sharma DW-1 and Kalpana Tiwari DW-2 who were residing in the neighbourhood stated that mother-in-law of Sudesh told mohallawalas' that Sudesh set herself a flamed. Com- pounder Mahendra Kumar DW-3 and Shree Bhagwan DW-5 deposed that in their presence Sudesh told Dr. Goyal that she herself set her a flamed. Seema DW-4 Nanad of Sudesh stated that Sudesh herself poured kerosine on her and set her ablazed. 10. As already noticed by us, there are inconsistencies in the Parcha-Bayan and alleged dying declaration of Sudesh. It is well settled that under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. 11. In Laxmi (Smt.) v. Om Prakash & Ors. (supra), the Lordships of the Supreme Court indicated that 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. (supra), the Lordships of the Supreme Court indicated that 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 containing 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. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances. 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 took 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 a safe basis for conviction. 12. In the instant case as already noticed by us, we find many infirmities in the alleged dying declaration of Sudesh. Therefore, when we look towards the other evidence for the corroboration of the alleged dying declaration we find that the prosecution has not been able to establish that it was the appellant who poured kerosine and set Sudesh ablazed. We see no reason to disbelieve the testimony of Dr. R.C. Goyal who examined Sudesh immediately after she was admitted to the hospital. In the Injury Report Ex.P/3 there was a remark "History of burn with kerosine oil by herself". At the trial also Dr. R.C. Goyal categorically deposed that Sudesh told him that she herself set her a flamed. Statement of Dr. Goyal is corroborated by other independent witness Mahendra Kumar DW-3 and Shree Bhagwan DW-5. Neighbours of the locality of Sudesh and Nanad of Sudesh also stated that it was Sudesh who set herself a flamed. Conjoint reading of the statements of Pinki, Shyamo and Suman demonstrates that they had not seen the appellant poured kerosine oil on Sudesh. Goyal is corroborated by other independent witness Mahendra Kumar DW-3 and Shree Bhagwan DW-5. Neighbours of the locality of Sudesh and Nanad of Sudesh also stated that it was Sudesh who set herself a flamed. Conjoint reading of the statements of Pinki, Shyamo and Suman demonstrates that they had not seen the appellant poured kerosine oil on Sudesh. They only stated that appellant caught hold of Sudesh, took her inside the `Khaprail' and bolted it from inside. The testimony of Pinki, Shyamo and Suman is polluted and we find ourselves unable to place any reliance on it. It is difficult to believe that appellant was also in the `Khaprail' with Sudesh who engulfed in flames. It was possible for the appellant to remain in small hut size (sic 6 x 7') without sustaining any injury. No signs of (sic deceased) burns in the site plan also create doubt in the prosecution story. 13. In view of the above discussions we find that the learned trial Judge has committed illegality in convicting and sentencing the appellant. In our opinion the evidence adduced before it was not properly appreciated by the learned trial Court. 14. In the result we allow the appeal of the appellant and set aside the impugned order dated 5.9.1998 of the learned Additional Sessions Judge, Dholpur. We acquit the appellant of the charge u/s. 302 IPC. The appellant is in jail. He hall be set at liberty forthwith, if not required in any other case.Appeal allowed. *******