JUDGMENT 1. - This appeal is directed against the judgment dated April 16. 1998 passed by learned Sessions Judge, Jhunjhunu whereby appellant Ramesh @ Mahesh has been convicted and sentenced to undergo imprisonment for life and a fine of Rs. 1,000, in default of payment of fine to further suffer rigorous imprisonment, for one year under Section 302 IPC and to undergo rigorous imprisonment for three years and a fine of Rs. 1,000/- in default of payment of fine to further suffer rigorous imprisonment for six months under Section 363 IPC.Both the substantive sentences were........... concurrently. 2. The brief facts of prosecution case and that on receiving written information Ex.P20 from Medical Officer Incharge, Govt. Hospital, Nawalgarh at 5.30 a.m. on May 31, 1996 to the effect that Smt. Kamli @ Kamlesh W/o Malaram, aged 30 years, by caste-Swami, R/o Nawalgarh has been admitted in the hospital in burnt condition at 4.30 a.m., PW14 Moolchand, ASI, RS. Nawalgarh reached the hospital and recorded 'Parcha-Bayan' Ex.P9 of Smt. Kamli at 6.00 a.m. wherein she stated that in the night (intervening night of 30th and 31st May, 1996) at 2.00 a.m. her neighbour Ramesh came at her house and lifted her son aged 12 months. When she chased Ramesh he poured kerosine on her back and set her on fire. Thereafter she ran out of her house. Her Jethani Parma extinguished the fire and took her into the house. Her clothes and entire body were burnt and her condition is serious. It was also stated by Kamli in Ex.P9 that she had advanced loan to Ramesh. On account of demand made by her to make payment of loan, Ramesh had come to her house. On the basis of 'Parcha-Bayan' Ex.R9, a case under Section 307 IPC was registered at PS. Nawalgarh at 8.30 a.m. on 31.5.96. The formal FIR is Ex.P16. As per the prosecution story, at the request of SHO, P.S. Nawalgarh, the dying declaration Ex.P4 was also recorded by PW8 Bhuraram, Sub Tehsiidar and Executive Magistrate, Nawalgarh in Govt. Hospital, Nawalgarh at 7.00 a.m. on 31.5.96 wherein the same facts were narrated by Smt. Kamli. At about 8.30 a.m. Smt. Kamli succumbed to her injuries. Thereafter at 11.30 a.m. post-mortem examination on the dead body of the deceased was conducted by PW 13 Dr. Devendra Singh Chaudhary and he prepared post-mortem report Ex.P.12. Dr. Hospital, Nawalgarh at 7.00 a.m. on 31.5.96 wherein the same facts were narrated by Smt. Kamli. At about 8.30 a.m. Smt. Kamli succumbed to her injuries. Thereafter at 11.30 a.m. post-mortem examination on the dead body of the deceased was conducted by PW 13 Dr. Devendra Singh Chaudhary and he prepared post-mortem report Ex.P.12. Dr. Chaudhary found that 95-100% of the body of the deceased was burnt which resulted in her death Thereafter the SHO, P.S. Nawalgarh converted the case under Section 302 IPC and investigation commenced. He reached on the spot and prepared Site Plan Ex.P1. Panchnama Ex.P10 of the dead body was prepared. Clothes of the deceased were seized and the Investigating Officer prepared Seizure Memo Ex.P2. The witnesses were examined under Section 161 Cr.P.C. Appellant Ramesh @ Mahesh was arrested on June 5, 1996 vide Arrest Memo Ex.P6. He was medically examined by PW15 Dr. Girish Chand Gupta, Medical Officer, Govt. Hospital, Nawalgarh on the same day and he prepared Injury Report Ex.P13. Six injuries were found on the person of the appellant. After completing the investigation, the chargesheet was laid against the appellant in the Court of Additional Chief Judicial Magistrate, Nawalgarh, who committed the case to the Court of learned Sessions Judge, Jhunjhunu for trial. Learned Sessions Judge framed charges under Sections 302 and 363 of the Indian Penal Code against the appellant, who denied the charges and claimed trial. To prove these charges, the prosecution examined as many as 18 witnesses. In his explanation under Section 313 Cr.P.C. the appellant pleaded innocence. In defence DW1 Smt. Laxmi and DW2 Fateh Mohammad were examined. 3. Learned Sessions Judge after hearing the final submissions, convicted and sentenced the appellant as indicated here-in-above. 4. We have heard learned counsel for the appellant, learned Public Prosecutor and have also scanned the material on record. 5. Mr. Sanjay Mehla, learned counsel appearing for the appellant contended that the dying declarations alleged to have been made by the deceased, do not satisfy the test of reliability and truthfulness and, therefore, the trial Court had committed serious error in convicting the appellant relying upon such declarations. Learned counsel also contended that the prosecution has failed to prove that the deceased was in a fit state of mind at the time of making alleged dying declarations. Learned counsel also contended that the prosecution has failed to prove that the deceased was in a fit state of mind at the time of making alleged dying declarations. As the deceased had sustained 95-100% burn injuries on her person and succumbed to these injuries after only 3 to 4 hours, she could not have made these declarations. Learned counsel further contended that the alleged dying declarations suffer from so many infirmities and, therefore, reliance cannot be placed upon them. Hence, the impugned judgment be set aside. Learned Public Prosecutor has supported the impugned judgment. 6. There is no dispute that the case of death of the deceased Kamli @ Kamlesh was burn injuries. PW13 Dr. Devendra Singh Chaudhary stated that on 31.5.96 he was posted as Senior Medical Officer in Govt. Hospital, Nawalgarh. On that day at 11.30 a.m. he conducted post-mortem examination on the dead body of Smt. Kamli @ Kamlesh, W./o Malaram, aged 30 years, by casie-Swami, R/o Nawalgarh and prepared Post-mortem Report Ex.P12. Dr. Chaudhary also stated that 95-100% part of the body of the deceased was burnt. There were extensive superficial and deep burns all over body except both feet and soles skin peeled off mostly on back, buttocks, both upper arms. The cause of death was shock due to extensive superficial and deep burns of various degrees. 7. Learned counsel for the appellant did not challenge the veracity of the statement of Dr. Chaudhary. There are no other reasons to disbelieve his testimony. Therefore, It has been established beyond reasonable shadow of doubt by the prosecution that the cause of death of Smt. Kamli was burn injuries. 8. The case of the prosecution rests solely on the written and oral dying declaration of the deceased. There is no direct evidence against the appellant. In regard to evidentiary value of dying declaration, Hon'ble the Supreme Court, In RV. Radhakrishana v. State of Karnataka- (2003) 6 SCC 443 , has observed as under: "The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "nemo moriturus praesumitur mentiria man will not meet his Maker with a lie in his mouth." This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, in the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration, is merely a rule of prudence. This court has laid down in several judgments the principles governing in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (1992) 2 SCC 474 : (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. (1976) 3 SCC 104 ) (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552 ) and Ramawati Devi v. State of Bihar (1983) 1 SCC 211 ) ). (See Munnu Raja v. State of M.P. (1976) 3 SCC 104 ) (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552 ) and Ramawati Devi v. State of Bihar (1983) 1 SCC 211 ) ). (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramchandra Reddy v. Public Prosecutor (1976) 3 SCC 618 ). (iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence (See Rasheed Beg v. State of M.P. (1974) 4 SCC 264 ) . (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. (1981 Supp SCC 25 ). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of UP (1981) 2 SCC 654 ) . (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu (1980 Supp. SCC 455) . (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar (1980 Supp. SCC 769 ). (ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. (1988 Supp. SCC 152 )). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan (1989) 3 SCC 390 ). (See Nanhau Ram v. State of M.P. (1988 Supp. SCC 152 )). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan (1989) 3 SCC 390 ). (xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra (1982) 1 SCC 700 ). In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P (1993 Supp. (1) SCC 327) , Goverdhan Raoji Ghyare v. State of Maharashtra (1993 Supp. (4) SCC 316) , Meesala Ramakrishan v. State of A.P. (1994) 4 SCC 182 ) and State of Rajasthan v. Kishore (1996) 8 SCC 217 ) . 9. Keeping in view the aforesaid principles, we will now examine the dying declarations allegedly made by the deceased. There are two written dying declarations Ex.P9 and Ex.P4 allegedly to have been made by deceased Kamli @ Kamlesh to PW14 Moolchand, ASI at 6.00 a.m. on 31.5.96 and PW8 Bhura Ram, Executive Magistrate at 7.00 a.m. on the same day respectively. In both the declarations Smt. Kamli had stated that on the night of the incident at 2.00 a.m. appellant Ramesh (Rameshiya) came in her house and lifted her son aged 12 months. When she chased Ramesh, he poured kerosine on her person and set her on fire. Thereafter, she ran out of her house. Her Jethani Parma extinguished the fire. Her entire body has been burnt. When she chased Ramesh, he poured kerosine on her person and set her on fire. Thereafter, she ran out of her house. Her Jethani Parma extinguished the fire. Her entire body has been burnt. In Ex.P9 it was also stated by her that she had advanced a loan to Ramesh and on demand to make payment of loan, Ramesh came at her house and did this act. In Ex.P4 it was further stated by Smt. Kamli that she had advanced a loan of Rs. 10,000/- to Ramesh. On the previous day she had gone to Ramesh for making demand to repay the loan and at that time quarrel took place between her and Ramesh. 10. First of all we will scrutinise the written report Ex.P4 which was recorded by Executive Magistrate. As per both the written dying declarations Ex.P4 and Ex.P9, the incident took place at 2.00 a.m. whereas PW1 Malaram, who is the husband of the deceased, stated that his wife was burnt at 3.00 a.m. PW 11 Dr. Satyendra Singh deposed that at about 4.30 a.m. in the night he had received a call and thereafter he attended a lady patient who had sustained 100% burn injuries. The incident took place in Nawalgarh City (District Jhunjhunu) and as per the prosecution evidence the deceased was immediately taken to the hospital situated in the same city in a 'tempo' after the incident and, therefore, we are of the opinion that the incident took place around 3.30 a.m. As per the post-mortem report Ex.P12, death of Smt. Kamli occurred at 8.30 a.m. on the same day within five hours of the incident. PW1 Malaram, who is husband of the deceased, stated that he also was sleeping on the floor in his house at the distance of 2-3 feet from his wife. As per the prosecution story the deceased was sleeping in the 'chowk' of her house. Malaram further stated that when he awoke he found his wife shouting that Maheshiya (@ Rameshiya @ Ramesh) had burnt her. He did not see the appellant. In his statement Malaram admitted that his wife became unconscious immediately after burning and thereafter he took her to the hospital, it was not stated by Malaram in his deposition that on the way to the hospital or in the hospital till her death, his wife had regained consciousness. He did not see the appellant. In his statement Malaram admitted that his wife became unconscious immediately after burning and thereafter he took her to the hospital, it was not stated by Malaram in his deposition that on the way to the hospital or in the hospital till her death, his wife had regained consciousness. PW 8 Bhuraram, the then Nayab Tehsiidar and Executive Magistrate stated that on 31.5.96 in the morning, on receiving requisition he went to the hospital with Thanedar (S.l. or A.S.I.) where he found Smt. Kamli admitted. He recorded the statement of Smt. Kamli which is Ex.P4 on which Kamli put her thumb impression and he also put his signature at place 'A to B Bhuraram also stated that before recording the statement he did not get medical certificate that the injured was fit to give statement but he was satisfied that she was fit to give her statement. Briuraram admitted that the entire body of Kamli was burnt. He further stated that lie does not remember whether doctor was available or not at that time. It was stated by Bhuraram that he had received the requisition which was brought by the police constable before 7.00 a.m. In Ex.P4 it was mentioned by Bhuraram that on receiving information from SHO, Nawalgarh at 7.00 a.m. on 31.5.96, statement of Kamli was recorded in Govt, hospital, Nawalgarh. In his deposition PW8 Bhuraram stated that Ex.P4 was recorded at about 7.00 a.m. 11. Now the question which arises for consideration is whether deceased Kamli was in a fit state of mind at the time of making dying declaration Ex.P4. In Paparambaka Rosamma & Ors. v. State of Andhra Pradesh-1999 Cr.L.R. (SC) 658 , the Apex Court observed as under: "The main question is as to whether she was conscious and was in a fit mental condition to make a voluntary disclosure of the incident. Dr. K. Vishnupriya Devi (PW 10) who was attached to Tenali Government Hospital examined Smt. Venkata Ramana on 4.3.1S94 at 1.30 p.m. She then sent a requisition (Ex. P/9) to the Magistrate Shri K. Lakshamana Rao (PW13) to record the dying declaration of the injured. All that Dr. K. Vishnupriya Devi has stated is that injured was conscious but she has not deposed that the injured was in a fit state of mind to make a statement. P/9) to the Magistrate Shri K. Lakshamana Rao (PW13) to record the dying declaration of the injured. All that Dr. K. Vishnupriya Devi has stated is that injured was conscious but she has not deposed that the injured was in a fit state of mind to make a statement. It has come on record that Smt. Venkata Ramana had sustained 90% burn injuries. K. Lakshmana Rao (PW 13) who recorded the dying declaration has made a note in Ex. P/14 the dying declaration after putting some preliminary questions to the injured and it reads as under: "On the basis of answers elicited from the declarant to the above questions I am satisfied that she is in a fit disposing state of mind to make a declaration. Thereafter the learned Magistrate proceeded to record the dying declaration. At the end, Dr. K, Vishnupriya Devi (PW 10) has appended a certificate saying "patient is conscious while recording the statement. The question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration. In our opinion, in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. It is a case of circumstantial evidence and only circumstance relied upon by the prosecution is dying declaration. It is true that the medical officer Dr K. Vishnupriya Devi (PW 10) at the end of the dying declaration had certified "patient is conscious while recording the state." It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P. Koteswara Rao (PW 9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. Dr. P. Koteswara Rao (PW 9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free form ali doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K. Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has. failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the statement." In view of these material omissions, it would not be safe to accept the dying declaration (Ex.P/14) as true and genuine and was made when the injured was in a fit state Of mind." 12. The aforesaid decision is fully applicable to the facts of the instant case. As per the statement of PW I I Di. Satyendra Singh when the Executive Magistrate PW8 Bhuraram came in the hospital alongwith police, he was also available there. When doctor was available in the hospital then why the certificate to the effect that injured Smt. Kamli was in a fit mental condition to make statement or not, was not obtained by Bhuraram before proceeding to record the dying declaration Ex.P4. PW 11 Dr. Satyendra Singh also stated that Smt. Kamli had sustained 100% burn injuries. In post-mortem report Ex.P12 it was mentioned by PW13 Dr. Devendra Sihgh Chaudhary, who had conducted post-mortem examination, that 95-100% area of the body was burnt. Smt. Kamli succumbed to injuries within five hours of the incident of burning. As stated above, her husband Malaram has admitted that immediately after the incident his wife became unconscious. In view of these facts, we are of the opinion that the deceased could not have made dying declaration Ex,P4 to pW8 Bhuraram and it was not made when she was in a fit state of mind. The dying declaration Ex.P4 also suffers from other infirmities. There appears interpolation in time mentioned in first line of the declaration. In view of these facts, we are of the opinion that the deceased could not have made dying declaration Ex,P4 to pW8 Bhuraram and it was not made when she was in a fit state of mind. The dying declaration Ex.P4 also suffers from other infirmities. There appears interpolation in time mentioned in first line of the declaration. It is not clear that at what time the dying declaration was recorded by PW8 Bhuraram. In last two has been mentioned that deyh dk iwjk 'kjhj tyk gqvk] flj ds cy iwjs ugha tys gSaA psgjk tyk gqvk vk[kksa ds cky cps gq, gSaA .In view of this, the dying declaration appears to be suspicious. As stated by PW8 Bhuraram, Smt. Kamli had put her thumb impression on Ex.P4. When her entire body was burnt then now could she put her thumb impression on Ex.P4. This fact also proves that the dying declaration, Ex.P4 is not genuine, therefore, no reliance can be placed on it. 13. As regards the dying declaration Ex.P9, PW14 Moolchand, ASI, Nawalgarh stated that on receiving information in regard to admission of Kamlesh in burnt condition in the hospital, he reached the hospital and after having obtained certificate from the doctor regarding fit condition for making statement, he recorded the statement of Smt. Kamlesh which is Ex.P9. Smt. Kamli put her thumb impression at place 'X' and he also put his signature and get the statement attested from Dr. Satyendra Singh. The statement Ex.P9 was allegedly recorded at 6.00 a.m. on 31.5.96. PW 11 Dr. Satyendra Singh also stated that police had asked him as to whether the deceased was fit to make her statement or not and thereafter he issued his certificate which is 'A to B' on Ex.P8. On close and careful scrutiny we come to the conclusion that this certificate from doctor Satyendra Singh was not obtained by PW14 Moolchand, ASI before the statement was recorded. The time of issue of the certificate regarding condition of the deceased for making statement was not mentioned by Dr. Satyendra Singh. It was also not mentioned by him that he had examined Smt. Kamli before issue of the certificate. As per the statement Ex.P9 "dying declaration", it was recorded at 6.00 a.m. but in his cross examination PW 1 Dr. Satyendra Singh. It was also not mentioned by him that he had examined Smt. Kamli before issue of the certificate. As per the statement Ex.P9 "dying declaration", it was recorded at 6.00 a.m. but in his cross examination PW 1 Dr. Satyendra Singh stated that police and Magistrate had reached the hospital together at around 7.00 a.m. and certificate Ex.P8 was issued by him in presence of the Magistrate whereas PW8 Bhuraram stated that he does not remember as to whether doctor was available or not at the time of his arrival at the hospital. In the aforesaid premises the conclusion is inescapable that the certificate regarding condition of Smt. Kamlesh for making statement on Ex.P8 was not obtained by ASI Moolchand before recording of the statement Ex.P9. Apart from that, the deceased was not in a position to put her thumb impression on it because she had sustained 95-100% burn injuries. 14. The aforesaid two written dying declarations also suffer from other infirmities. It was also stated by Smt. Kamli in Ex.P4 and Ex.P9 that a loan was advanced by her to the appellant and on account of demand having been made by her to repay the loan, the appellant came in her house in the night. He lifted her son aged 12 months and when she chased him the appellant poured kerosine oil on her and set her ablaze. It was stated in Ex.P4 that a loan of Rs. 10,000/- was given to the appellant. PW1 Malaram stated that a loan of Rs. 10,000/- and silver weighing 40 tolas' were given by his wife to the appellant but he was not present at that time. In his cross examination Malaram admitted that he used to earn his livelihood by begging and his total monthly income was around 1,000/- rupees and his family consisted of atleast 20 members. A lady who was having 20 members in her family and whose husband was earning only 1,000/- rupees in a month, how could she have advanced a loan of Rs. 10,000/- to the appellant. A lady who was having 20 members in her family and whose husband was earning only 1,000/- rupees in a month, how could she have advanced a loan of Rs. 10,000/- to the appellant. Apart from that it is not believable that on account of demand made by the deceased to repay the loan to the appellant, he had entered into the house of the deceased with the intention to kidnap her son and to set her on fire at the time when the husband of the deceased and other members of the family were also sleeping in the house. Besides this PW1 Malaram also deposed that after having closed the door he went to sleep. In Ex.P9 allegedly made by the deceased to Moolchand, ASI, it was also stated by Smt. Kamli that the appellant had left her son at the place of occurrence whereas PW1 Malaram deposed that the appellant had taken his son with him. As per the prosecution evidence when the dying declaration Ex.P4 and Ex.P9 were recorded, family members of the deceased were present in the hospital. In view of these facts, we are of the opinion that these dying declarations are not true and they are the result of tutoring of the deceased by her family members. 15. Now we come to the oral dying declaration. An oral dying declaration, no doubt, can form basis of conviction though courts seek for corroboration as a rule of prudence but before the said declaration can be acted upon, the court must be satisfied to the truthfulness of the same and the said declaration was made by the deceased while she was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. In the instant case, oral dying declaration is said to have been made by the deceased to PW1 Malaram, PW2 Purshottam, PW3 Parmeshwari, PW4 Banwari, PW5 Gyarsi and PW7 Indra @ Indu who are husband, brother-in-law, Jethani, Jeth, sister-in-law and daughter of the deceased respectively. Having scanned the testimony of all these witnesses thoroughly, we come to the conclusion that they are not reliable so far as the alleged dying declaration is concerned. Having scanned the testimony of all these witnesses thoroughly, we come to the conclusion that they are not reliable so far as the alleged dying declaration is concerned. PW 1 Malaram stated that esjh vkSjr fpYyk jgh Fkh fd egs'kh;k ty x;kA PW2 Purshottam stated that when he reached on the spot Kamli was telling " ty xbZ ty xbZA ge lc yksxksa us deyh ls iwNk fd D;k gks x;k rks mlus dgk fd jes'k ty x;kA ". Parmeshwari stated that deyh tksj ls fpYykbZ rc ge uhps vkSj ns[kk fd deyh tyh gqbZ FkhA eSaus deyh ls iwNk fd dSls tyh rks mlus jes'k dk uke crk;k " PW4 Banwari, who is husband of PW3 Smt. Parmeshwari stated that ge lks;s gq;s Fks vkSj mBs rd deyk dg jgh Fkh fd esjs dks jes'k us tyk fn;k cpkvks cpkvks " PW5 Smt. Gyarsi stated that " deys'k dg jgh Fkh fd esjs dks jes'k us tyk fn;k " PW7 Indra @ Indu stated that " esjh ekrk ckj ?kky jgh Fkh vkSj dg jgh Fkh fd cpkvks cpkvksA esjh ekrk dg jgh Fkh fd egs'k us tyk fn;kA " 16. In our view, there are material contradictions in the statements of these witnesses and, therefore, no reliance can be placed upon them. Apart form that as stated above PW1 Malaram also stated that his wife became unconscious immediately after the incident of burning. In such a situation the deceased could not make the alleged dying declaration to the aforesaid witnesses. As per the prosecution evidence so many persons had also collected on the spot just after the incident. They were the independent witnesses but the prosecution did not examine any of them. No explanation has been offered by the prosecution as to why none of these witnesses was not examined. As per the testimony of PW1 Malaram, PW2 Purshottam and PW3 Parmeshwari, Smt. Kamli @ Kamlesh was burnt because she was making demand to the appellant for repayment of loan but the prosecution has failed to prove the alleged motive of the appellant. As per the statement of PW4 Banwari, and PW 6 Kum. Raja, the deceased was of loose character. Banwari also admitted that relations between the deceased and his wife PW3 Parmeshwari were not cordial. Prior to the alleged incident they had asked the deceased to mend her ways and, therefore, the deceased got them beaten. As per the statement of PW4 Banwari, and PW 6 Kum. Raja, the deceased was of loose character. Banwari also admitted that relations between the deceased and his wife PW3 Parmeshwari were not cordial. Prior to the alleged incident they had asked the deceased to mend her ways and, therefore, the deceased got them beaten. PW18 Kashiram who has investigated the case, has admitted in his cross examination that he had recovered the clothes of the deceased which were burnt in the incident and one plastic bottle at the instance of Parmeshwari. It has also come in the testimony of PW4 Banwari that his wife and the deceased were used to quarrel each other. In these circumstances, the possibility that the deceased might have been burnt by Parmeshwari, cannot be ruled out. It is also possible that the deceased might have committed suicide when she was found with some other person under suspicious circumstances in her house in the night. 17. For the aforesaid reasons, we are of the considered view that the deceased did not make the alleged oral dying declaration to the aforesaid witnesses. PW1 Malaram, PW2 Purshottam PW 3 Parmeshwari, PW4 Banwari, PW5 Smt. Gyarsi, PW6 Kum. Raja and PW7 Indra @ Indu have also deposed that at the time of the alleged incident they did not see appellant Ramesh. The conviction of the appellant is solely based on the written and oral dying declarations allegedly made by the deceased but in our opinion, no reliance can be placed on written as well as oral dying declarations. If these dying declarations are excluded from consideration then there is no evidence on which the prosecution can be said to have established the charge beyond reasonable doubt against the appellant. Hence the appeal deserves to be allowed. 18. For these reasons, we allow the appeal and set aside the impugned judgment dated April 16, 1998 rendered by learned Sessions Judge, Jhunjhunu. We acquit the appellant Ramesh @ Mahesh of the charges under Sections 302 and 363 of the Indian Penal Code. The appellant, who is in custody, shall be set at liberty forthwith, if not required to be detained in an/ other case.Appeal allowed. *******