S. R. K. PRASAD, J. ( 1 ) THIS appeal is directed against the judgment rendered by the learned Sessions judge, Cuddapah in S. C. No. 61 of 1998, dated 17-02-1999 convicting A-l to undergo R. I. for five years and also to pay a fine of Rs. 1,000/-, in default, to suffer R. I. for three months for the offence under Section 306 IPC. ( 2 ) THE facts that arise for consideration and briefly be stated as follows: the appellant herein is the 1st accused in s. C. No, 61 of 1998. The deceased-Shaik mallika, is the wife of the appellant. Their marriage took place about 12 years prior to the incident. At the time of marriage the parents of the deceased presented 8 tulas of gold and cash of Rs. 8,000/- towards dowry to the accused. Five years after the marriage a male child was born to the deceased. As the deceased did not be got children till the birth of a male child, the accused were harassing her. A-l expressed his intention to marry another woman. When the deceased refused for the 2nd marriage, A-l bea,t the deceased and drove her out of the house. Thereupon, the deceased went to her parents house. The parents of the deceased took the deceased to the house of A-l and left, the deceased there. A-l to A-3 harassed the deceased mentally and physically. On 23-08-1997 at about 5. 30 p. m. , while the deceased was preparing tea by litting the stove, A-l came and picked up a quarrel with the deceased, abused her and told her that he would marry again, if she died. So, with art "intention to kill the deceased A-l picked up the kerosene oil tin and poured it over the deceased and drenched her clothes while the deceased was litting the stove, and, flames surrounded the deceased and her clothes caught fire. A-l closed the doors and bolted from out side. After some time, on hearing the cries of the deceased, A-l and A-2 opened the door. Hearing the cries of the deceased, one mumthaz-P. W. 2 and one Syed Parveen rushed to the scene of offence and found burn injuries all over thebody of the deceased without clothing. The said Mumthaz and parveen dressed the deceased. On coming to know about the incident, P. W. 3 sk. Niyamathullah, P. W. 5 Sk. Hearing the cries of the deceased, one mumthaz-P. W. 2 and one Syed Parveen rushed to the scene of offence and found burn injuries all over thebody of the deceased without clothing. The said Mumthaz and parveen dressed the deceased. On coming to know about the incident, P. W. 3 sk. Niyamathullah, P. W. 5 Sk. Gudaba-P. W. 5, and P. W. 6 Shaik Mubarak rushed to the scene of offence. Then A-l and A-2 took the deceased to the Government Hospital, cuddapah where the deceased gave a statement to the police and basing on which a case in Crime No. 20 of 1997 was registered. The I Additional Munsif Magistrate, cuddapah recorded a dying declaration of the deceased. The deceased while undergoing treatment, died in the hospital on 29-08-1997 at 6. 30 p. m. , by succumbing to the burn injuries. On receipt of the death information, the said offence was altered into Secs. 498-A, 506, 302 and 316 IPC, and after completing the investigation, the Inspector of Police filed the charge-sheet. The plea of the accused for the charges under Sections 498-A, 506, 302 and 316 IPC is one of denial. ( 3 ) THE prosecution in all examined 16 witnesses i. e. , P. Ws. 1 to 16, and marked exs. P-1 to P-20. Ex. P-4 is the hospital intimation; Ex. P-5 is the dying declaration; ex. P-6 is the endorsement of the duty doctor; ex. P-10 is the inquest report; Ex. P-12 is the post-mortem certificate; Ex. P-13 is the original FIR; Ex. P-17 is the altered FIR; ex. P-18 is the endorsement of the Doctor; ex. P-19 is the intimation received by Head constable and Ex. P-20 is the statement recorded by P. W. 15-Head Constable. P. W. 1-Shaik Anwar Basha is the brother of the deceased-Mallika, who deposed that five years after the marriage the deceased begot one male child. The deceased and A-l were living happily at Chaki Banda. At about 9. 00 or 9. 30 p. m. A-l and A-2 came to his house in a jeep along with the deceased with burn injuries and they stated that the deceased received burn injuries due to explosion of stove. He took the deceased to the Hospital and admitted her into government Hospital. This witness is treated as hostile and cross-examined by the prosecution. 30 p. m. A-l and A-2 came to his house in a jeep along with the deceased with burn injuries and they stated that the deceased received burn injuries due to explosion of stove. He took the deceased to the Hospital and admitted her into government Hospital. This witness is treated as hostile and cross-examined by the prosecution. It was elicited during his cross- examination that A-l admitted the deceased in Government Hospital, Cuddapah, and he was present when the Police recorded the statement of the deceased, and his relations were also present. Half-an-hour later before the registration, Magistrate came to the hospital, and all his relations were present at the bed side of the deceased when the magistrate came to the Hospital. It is also in his evidence that his deceased sister, never complained against his brother-in-law (A-l) for all the 12 years since her marriage. P. W. 2-Shaik Mumtaz, who is the neighbour, deposes that her house is situated 3 houses away from the house of A-l and while she was working in her house, a boy came and informed that the deceased caught fire. On that, she went inside the house of the deceased and the deceased informed her that she received burn injuries due to fall on stove. This witness is also treated as hostile by the prosecution. P. W. 3-Shaik Niyamathulla, who claims that the deceased is his sister-in- law. He states that on the date of the offence he was in his house and after hearing the cries of the deceased he went and saw the deceased with burn injuries and he enquired the deceased how she received injuries. She stated that she received burn injuries due to stove. This witness is also treated as hostile. P. W. 4-Smt. G. Swarnalatha, who is working as Additional. Judicial Magistrate of First class, speaks about recording the dying declaration of the deceased on 23-08-1997 at about 10. 45 p. m. According to her she received requisition from Government head Quarters Hospital, Cuddapah. P. W. 5- sk. Gudaba, expressed his ignorance about the incident. P. W. 6-Shaik Mubarak also expressed his ignorance and categorically denied about himself rushing to the scene of offence and hearing cries. P. W. 7-Sk. Kareem sab, denied about holding of any mediation inbetween the deceased and the 1st accused. This witness is also treated as hostile. P. W. 5- sk. Gudaba, expressed his ignorance about the incident. P. W. 6-Shaik Mubarak also expressed his ignorance and categorically denied about himself rushing to the scene of offence and hearing cries. P. W. 7-Sk. Kareem sab, denied about holding of any mediation inbetween the deceased and the 1st accused. This witness is also treated as hostile. P. W. 8- v. Sankar Reddy, speaks about signing on the inquest report. P. W. 9-S. Md. Hidayathullah, is also treated as hostile. He deposed that he was not present when the police held inquest over the dead body of the deceased. This witness also did not speak anything about the incident. P. W. 10-Shaik kahaja Meah deposed that he was present when the inquest was held over the dead body of the deceased on 30-08-1997 from 12. 00 Noon to 2. 00 p. m. He also deposed about signing on the inquest report-Ex. P-10. P. W. 11-Shaik Azimunnisa expressed her ignorance about the incident. P. W. 12- dr. B. Ramachandraiah, who conducted postmortem on the dead body of the deceased- mallika on 30-08-1997 at 3. 30 p. m. , noticed the following:"a female body lying on its back, moderately built, nourished, Rigor mortis present all over the body. Eyes, mouth opened, head, hair dressed stage and not burned, burns skin deep over face, chest, back, Adbodem and all upper and lower limbs, Post-Mortem lividity could not find. On Internal Examination, he noticed the following: head and Neck - N. A. D. , Chest: Heart, nad, Lungs are Congested, Blood stained fluid collected in thorax about 500 ml. present. Abdomen Stomach, bladder are empty, Liver, Spleen and kidneys are congested. Uterus-30-32 weeks size, on cut section a Female Foetus 46 Cms. length, 1200 gms. weight, placetia intact, Brain liquified and leaked out into cavity and packed separately. The deceased would appear to have died of anti-mortem burns due to burns, shock, dehydration and sepsis. Time of death f. S. Ward, District Hospital, Cuddapah on 29-8-97 at 6. 30 p. m. Ex. P-12 is the post-Mortem Certificate issued by him. He has opined that these burn injuries are sufficient to cause death of the deceased in normal course of nature. "according to him, the deceased appear to have died of anti-mortem burns, due to burns, shock, dehydration and sepsis. He has given the time of death as 29-8-1997 at 6. P-12 is the post-Mortem Certificate issued by him. He has opined that these burn injuries are sufficient to cause death of the deceased in normal course of nature. "according to him, the deceased appear to have died of anti-mortem burns, due to burns, shock, dehydration and sepsis. He has given the time of death as 29-8-1997 at 6. 30 p. m. According to him, he issued Ex. P-12-Post- mortem certificate and opined that the burns are sufficient to cause death of the deceased in the normal course of nature. It is elicited during his cross-examination that "it is not necessary, because the face was burnt the voice of the patient impaired". It is also stated that "because the lips were burnt the deceased will feel difficulty in pronouncing certain words and with some strain she can spell those words. Some words uttered by the deceased can be understood only by gestures and sequences. He mentioned in his post-mortem report that the "death was due to spectimesia". P. W. 13-T. Venkatapathi, a. S. I. , Pendlimarry, deposed about visiting the scene of offence and preparation of observation report. He found one stove; one plastic kerosene tin; one Sholapur Bed sheet. He seized stove-M. 0. 1, Kerosene tin-M. 0. 2, burnt pavada pieces-M. 0. 3, burnt pieces of jacket-M. O. 4, burnt saree-M. O. 5 and sholapur bed sheet-M. O. 6. He seized them under the cover of panchanama under ex. P-14. He also deposed about searching for the accused and found them absconding. According to him, he altered the FIR on receipt of death intimation, and on 30-8-1997 he held inquest over the dead body of the deceased from 12:00 noon to 2:00 p. m. He further deposed that he examined P. W. 1 and others, and after completion of inquest, the dead body was handed over to the P. C. for post-mortem examination. P. W. 14- dr. Jayarami Reddy, who is the Civil assistant Surgeon, Government Hospital, cuddapah, deposed that the dying declaration was recorded by the Magistrate in his presence and that he made an endorsement in the dying declaration to the effect that the patient was conscious as per endorsement-Ex. P-6. Ex. P-6-endorsement contains his signature. According to him, he was also present when Head Constable of out-patient post recorded the statement of the deceased in the hospital. P-6. Ex. P-6-endorsement contains his signature. According to him, he was also present when Head Constable of out-patient post recorded the statement of the deceased in the hospital. On that statement also he made an endorsement that the patient was conscious. Ex. P-18 is the endorsement on the statement recorded by the Head Constable. P. W. 15-M. S. Raju, Police head Constable, deposed that on 23-08-1997 he received intimation at 10:00 p. m. and he proceeded to the hospital and recorded the statement of the deceased in the presence of the Duty Medical Doctor-P. W. 14 and obtained the endorsement of the Doctor as per Ex. P-18. According to him, he obtained toe mark of the deceased. P. W. 16-B. Rama naik, C. I. of Police, deposed about examination of witnesses and laying the charge-sheet. ( 4 ) AFTER trial, the Court below gave a finding that it is not a homicidal death, but it is suicidal death and acquitted the accused for the charges under Section 498-A, 506 part-II, 302 and 316 IPC. However, it found a-l guilty for the offence under Section 306 ipc and convicted and sentenced him to undergo R. I. for five years and also to pay a fine of Rs. 1,000/-, in default, to suffer R. I. for three months. However, the other accused were acquitted. Aggrieved by the same, the 1st accused preferred this appeal. ( 5 ) THE point that arises for consideration in this appeal is whether the prosecution has established the guilt of the offence under section 306 IPC beyond all reasonable doubt? ( 6 ) I state at the out set that no charge has been framed under Section 306 IPC. The approach of the learned Sessions Judge, is very defective in this case. The prosecution has come with a specific case of homicidal death. In a case of homicidal death, Court cannot find a suicidal death. When homicidal death is not proved, the question of finding suicidal death does not arise. The entire thing depends upon appreciation of the inquest report. The Court has got a right to look into the inquest report and decide as to whether the death is homicidal or suicidal. The prosecution has come with a specific case of homicidal death and not suicidal death. The entire thing depends upon appreciation of the inquest report. The Court has got a right to look into the inquest report and decide as to whether the death is homicidal or suicidal. The prosecution has come with a specific case of homicidal death and not suicidal death. Can a court find a different case to be proved when the prosecution has come with a specific case of homicidal death? That is the reason why this Court is observing that the very approach of the learned Sessions Judge is defective and he has not properly looked into the matter. This is a case of acquittal given for all the charges, while finding guilty under suicidal death. In the instant case, the prosecution is not complaining about the finding of acquittal given for homicidal death, it is only supporting the finding arrived at regarding the suicidal death. This Court while deciding the appeals against acquittal and also conviction, has to judge the entire case and arrive at a conclusion whether the lower court is justified to give a finding of acquittal or conviction. It has to make reappraisal of the entire evidence placed before it. There is no evidence placed before the Court to show about pouring of kerosene over the deceased-Mallika. The brother has not supported the version. None of the witnesses, who have seen the deceased at the scene of offence, have supported the version of the prosecution. The only material available on rerord is the dying declaration, which is said to have been recorded by the head Constable-P. W. 15 and also by the magistrate-P. W. 4. The learned counsel appearing for the accused-appellant contends that the endorsement made by the Doctor regarding the conscious state, cannot lead to show that the deceased is capable of giving a dying declaration. He has placed reliance on a decision reported in Paparambaka Rosamma v. State of Andhra Pradesh1. It is also further contended by the learned counsel for the appellant that P. W. 12 being doctor, has opined that it is very difficult to utter the words when her mouth is burnt; and some words may not be heard, and it can be gathered only by gestures and sequence. He mainly placed reliance on the evidence of p. W. 12-Dr. He mainly placed reliance on the evidence of p. W. 12-Dr. B. Ramachandraiah, who deposed that the lips of the deceased were burnt and the deceased will feel difficulty in pronouncing certain words and that with some strain she can spell those words. It is also further contended that it was a tutored version, as the relatives were found before the Magistrate. It is further contended by the appellant counsel that the deceased does not know Telugu. The Head Constable has categorically stated that the deceased gave statement in Urdu, and he has been translating the same, and that fact also will clearly show that reliance cannot be placed on this dying declaration. It is now to be judged whether the dying declaration is truthful and reliable. It is also to be seen whether it is suffered with any infirmity. The learned Public Prosecutor, on the other hand, contends that even without endorsement made by the Doctor, reliance can be placed on the dying declaration. He placed reliance on the judgment in shanmugam v. State of Tamil Nadu wherein the Supreme Court observed that mere non- examination of Doctor in whose presence dying declaration was recorded, does not affect its evidentiary value. The learned public Prosecutor, in support of his case, placed reliance on the evidence of P. W. 14- dr. Jayarami Reddy, Civil Assistant Surgeon. Before proceeding further, it is necessary to have a look at the guidelines provided, for judging the dying declaration. Section 32 (1) of the Evidence Act reads as under: (1) When it relates to cause of death:- when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. "value of dying declaration.- Under Sec. 32 (l) of the Evidence Act statements made by a person since dead as to the cause of his death or the circumstances of the transaction which resulted in his death are admissible in evidence. "value of dying declaration.- Under Sec. 32 (l) of the Evidence Act statements made by a person since dead as to the cause of his death or the circumstances of the transaction which resulted in his death are admissible in evidence. Their admissibility rests on the principle that a sense of impending death produces in a man s mind the same feeling as that of a conscientious and virtuous man under oath - nemomoriturus prasumitur mentire . The general principle on which these species of evidence are admitted is that they are declarations made in extremity, when the maker is at a point of death and when every hope of this world is gone and when even motive to falsehood is silenced, and the iitind induced by the most powerful consideration^, to speak the truth a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a Court. (Madhuri Kishan v. State, 1966 Crl. L. J. 4017 (Ori. ). In Ram nath madhoprasad v. State ofm. P. , A 1953 SC 420: 1953 Cri. L. J. 772 it was observed:"it is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. "the aforesaid decision was taken note of and considered in Khushal Rao v. State of Bombay, a 1958 SC 22 : (1958 Cri. L. J. 106) where the court held that the observation quoted above is in the nature of obiter dicta. "the aforesaid decision was taken note of and considered in Khushal Rao v. State of Bombay, a 1958 SC 22 : (1958 Cri. L. J. 106) where the court held that the observation quoted above is in the nature of obiter dicta. In the facts and circumstances of the case, the Court though found the dying declaration to be not true, but their Lordships, on consideration of the relevant pro visions of the Evidence Act, laid down the law as under:-" (1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstanced 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 earlier opportunity and was not the result of tutoring by interested parties. "the ratio laid down in Khushal Rao s case (supra) has been followed in a catena of later decisions. Padmaben Shamalbhai Patel v. State of gujarat, 1991 (1) JT (SC) 205 and State of orissa v. Bansidhar Singh, (1996) 2 SCC 194 . A dying declaration is not a deposition in court. It is neither made on oath, nor in the presence of the accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses of a dying declaration would not justify any initial presumption to be drawn that the declaration contains only the truth. Dandu Lakshmi Reddy v. State of a. P. , AIR 1999 SC 3255 : (1999) 7 SCC 69 . Where a conviction is based solely on a dying declaration, the court has to carefully consider the statements of the witnesses supporting it, viz. , the Magistrate who recorded the statement and the medical officer who examined the injured person. Paparambaka Rosamma v. State ofa. P. ( 1999 (6) JT 585 : (1999) 7 SCC 69 5. A dying declaration was recorded by the magistrate in the presence of the doctor who certified that the injured person was in a fit condition to make the statement. The High court was held to be not right in excluding the declaration from evidence. The statements of eye-witnesses were corroborating the declaration. Chandra Narain Yadav v. Shibjee yadav, 1999 (9) JT 365 : (1999) 6 SCC 63 . The Supreme Court as long back in khushal Rao v. State of Bombay* has laid down the principles for guidance to judge the truthfulness of the dying declaration and judge the reliability. They are as follows:" (1) It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. (2) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. (3) It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. (4) A dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. (4) A dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. (5) A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. (6) In order to test the reliability of a dying declaration, the Court has to keep 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 to it. The statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. "their Lordships of the Supreme Court in the said judgment were approving the principles laid down in In re Guruswami Tevar and others. The Court has to now judge whether the dying declaration relied on, is truthful and reliable? the endorsement found on the dying declaration-Ex. P-5, is in Ex. P-6. The Doctor has endorsed that "patient is conscious while statement is recorded". The value to be attached to those words has been clearly mentioned in the Supreme Court decision. The Supreme Court has categorically stated that certification should employ that he/she was in fit state of mind at the time of making the declaration. The type of words that have to be used also indicated by the Supreme court. Time has come for this Court to bring it to the notice of the medical authorities and all the Doctors about the observation made by the Supreme Court and they have to make necessary endorsements, namely, incorporating the state of mind at the time of making declaration and not the routine words to be used that "patient is conscious while recording the statement". Hence, I direct the principal Secretary to Government, Medical, health and Family Welfare Department, government of A. P. , to inform all the Doctors not to endorse on the dying declaration the words that "patient is conscious while recording the statement", but the "state of mind" at the time of making declaration, i. e. , by mentioning fit state of mind. The attempt made by the learned Public prosecutor to show that there is coherent speech, whereas the attempt made by the appellant s counsel is to show that it is very difficult for the deceased to utter the words due to burn of lips and the face. It is clear from the principles laid down by the Supreme court that each case has to be decided on its own facts. By keeping in view the guidelines provided for by the Supreme Court it is not a case of non-examination of a Doctor, but it is a case of examination of a Doctor. The doctor, who conducted the postmortem examination, namely, P. W. 12- dr. B. Ramachandraiah, states that as the lips were burnt, the deceased will feel difficulty in pronouncing certain words and that too with some strain she can spell those words and some words ultered by the deceased can be understood only by gestures and sequence. P. W. 12 is an Assistant Civil Surgeon, working in Government Hospital, Cuddapah. The doctor who made the endorsement has been examined as P. W. 14. P. W. 14 admits that if the patient is said to be conscious it does not mean that she can also speak coherently and fluently and when he made the endorsement that patient is conscious, it does not mean that patient is coherent in giving the statement. Is it possible for this declarant to give statements in different languages, i. e. , telugu and Urdu, one for the head constable and another to the Magistrate. P. W. 15 states that he asked the relations to understand the words uttered by the deceased in Urdu as he does not know Urdu. It appears that he has asked one to say, as he does not know Urdu. That means dying declaration Ex. P-20 recorded by the Head Constable-P. W. 15, suffers from infirmity, namely not recording the words in the words of the declarant. It appears that he has asked one to say, as he does not know Urdu. That means dying declaration Ex. P-20 recorded by the Head Constable-P. W. 15, suffers from infirmity, namely not recording the words in the words of the declarant. His version shows that he is the first person to arrive at the hospital. He recorded the statement. At that time she was giving out urdu words and he got them translated and incorporated in the dying declaration. Hence the Ex. P-20 dying declaration recorded by p. W. 15isnottrulyrecorded and much weight cannot be placed on the said dying declaration. More over, the endorsement, which is made, is against the principles laid down by the Supreme Court. Hence, the value attached to the dying declaration looses its importance. No doubt the Court has to look at the truth. It has to be culled out within the admissible portions and evidence placed by the prosecution and cannot act on other considerations, namely, knowledge of the judges etc. , or some other-factors. I have already stated, when the deceased gave the statement uttering Urdu words to the Head constable, it is not possible her to give statement in Telugu only to the Magistrate namely P. W. 4. It is a doubtful one. No doubt the Magistrate has no motive to fabricate or falsely record the dying declaration. More over, the dying declaration recorded by the magistrate is not in question and answer form. The Doctor s evidence clearly show that she cannot utter certain words due to the burning of the lips. More over she could not have given at a stretch the said dying declaration to the Magistrate. The Magistrai has failed to record true state of affairs i. Ex. P-5 which he noticed, namely whethei the declarant is giving her declaration feeling pain. That aspect is not noted. Even the Doctor said that the lips are burnt and with great difficulty the words will be uttered. Even the head Constable said that relatives were found around the deceased. The possibility of their presence and tutoring cannot be ruled out. Even the brother of the deceased turned hostile in this case. It must be impossible for any person with burning lips to give out a statement at stretch. In that view of the matter, much reliance cannot be placed on the dying declaration for the reasons mentioned supra. The possibility of their presence and tutoring cannot be ruled out. Even the brother of the deceased turned hostile in this case. It must be impossible for any person with burning lips to give out a statement at stretch. In that view of the matter, much reliance cannot be placed on the dying declaration for the reasons mentioned supra. When Head Constable while recording the statement took assistance of a female, is it possible to the Magistrate without undertaking the assistance record the statement. In that view of the matter, it cannot be said that dying declaration was given without any tutoring. The improbability of uttering those words is amply probablised by the admissions made by the Head Constable and by the post- mortem Doctor. The post-mortem report, does not contain the degree of burns. In this case, the Doctor has failed to furnish the degree of bums in his post-mortem certificate. Hence, I agree with the contention of the accused-appellant counsel that it is not safe to rely on the said dying declaration as there is a possibility of tutoring, and the coherence of the patient is also doubtful. In view of the said circumstances placed by the appellant counsel, the dying declaration cannot be relied on in this case, as the sole basis for conviction is, unless there is corroboration. There is no corroboration forthcoming in this case, since the brother and the neighbours turned hostile. I have already stated that the approach of the Court is wrong in this case. In case of homicidal death the Court gives a finding of suicidal death. It is not the case of the prosecution that it is a suicidal death. The court cannot find a person guilty for an offence, which is not the case of the prosecution, or the accused version, the 3rd case cannot be made out by the court. This is one such case where a 3rd case has been made out by the Court disbelieving the version of the accused and also disbelieving the version of the prosecution. In view of the different versions given out, and as there is no positive evidence regarding throwing of kerosene on her with an intention to kill her, the learned Sessions Judge has rightly come to the conclusion though not with proper reasons that accused is liable to be acquitted. In view of the different versions given out, and as there is no positive evidence regarding throwing of kerosene on her with an intention to kill her, the learned Sessions Judge has rightly come to the conclusion though not with proper reasons that accused is liable to be acquitted. On re-appraisal of the entire matter, I also find that the prosecution has miserably failed to prove its own case, namely, homicidal death. It also failed to prove the suicidal death, since none of the witnesses speak about suicidal death. There is no indication about the same. When there is no suicidal death, the question of abetment does not arise. Hence, the conviction and sentence awarded under Section 306ipc is liable to be set aside. In the result, the appeal is allowed and the conviction and sentence passed by the learned Sessions Judge, Cuddapah in S. C. No. 61 of 1998, dated 17-02-1999 is set aside and the accused is acquitted of the offence under Section 306 IPC after giving benefit of doubt. He is entitled for refund of the fine amount, if any paid.