G. BIKSHAPATHY, J. ( 1 ) THIS Criminal Appeal is directed against the Judgment of the learned Additional sessions Judge, Hindupur in S. C. No. 344 of 2000 by the appellant-accused No. 1. The appellant-accused No. 1 and three others were charged for the offences punishable under Sections 302 and 450 r/w Section 34 of Indian Penal Code. Accused 2 to 4 were acquitted by the learned Additional Sessions judge; however, the appellant-accused no. 1 was found guilty of the offences under secs. 302 and 450 IPC and was sentenced to undergo imprisonment for life and also to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for six months for the offence under Section 302 IPC. He was also sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/-, in default, to undergo simple imprisonment for three months for the offence under Sec. 450 IPC. ( 2 ) THE case of the prosecution can be traced out succinctly as follows: The appellant-accused No. 1 and the deceased were closely related to each other. The appellant is the husband of the deceased s maternal aunt. On 30-07-1999 from about 9. 00 a. m. to 3. 00 p. m. the deceased attended to the white washing of the appellant s house. On 02-08-1999 the appellant along with his brother A-2, his wife a-3 and his son-in-law A-4 went to the deceased s house and enquired about the missing cash or Rs. 3,000/- alleging that the deceased has stolen it while she was white washing his house on 30-7-1999. The deceased denied the allegation and there was some altercation. Again, on 04-8-1999 the appellant along with other accused went to the deceased s house and questioned the deceased about the missing cash. The deceased reiterated her denial. Finally on 05-08-1999 the appellant and other accused trespassed into the house of the deceased in the absence of her husband and demanded return of the missing cash. When the deceased denied the same, A-2 and A-3 dragged the deceased and the appellant poured kerosene on her and set her on fire and then all the accused left the house. The deceased not in a position to bear the flames, ran to her neighbours house, who put off flames. When the deceased denied the same, A-2 and A-3 dragged the deceased and the appellant poured kerosene on her and set her on fire and then all the accused left the house. The deceased not in a position to bear the flames, ran to her neighbours house, who put off flames. The Village Administrative officer on hearing the said incident, proceeded to the deceased house and recorded the statement Ex. P-1 dying declaration and he lodged a complaint with station House Officer, Parigi Police Station. P. W. 12, the A. S. I, registered a case in crime No. 35 of 1999 under Section 448 and. 307 r/w 34 IPC. He took up investigation and proceeded to the scene of occurrence and recorded the statement of the deceased and p. Ws. 1 to 6 under Section 161 Cr. P. C. He also examined the scene of occurrence, seized the kerosene tin and burnt pieces of nylex saree in the presence of P. Ws. 1 and 2. In the meanwhile, the deceased was sent to Government hospital, Hindupur, where the dying declaration was recorded by p. W. 14, Judicial First Class Magistrate of hindupur vide Ex. 21. On receipt of the death intimation, the provision of law was altered to that of Section 302 IPC. After the investigation, charge-sheet was laid in the court of the learned Judicial First Class magistrate, Hindupur. Thereafter, the matter was taken up by the learned Additional sessions Judge in S. C. No. 344 of 2000. The learned Additional Sessions Judge framed charges under Section 302 and 450 r/w section 34 IPC. The accused pleaded not guilty and therefore, the trial was taken. Prosecution examined as many as 15 witnesses and marked documents Exs. P-1 to P-24. M. Os. 1 and 2 were also marked, which are plastic can and burnt saree pieces. ( 3 ) AFTER considering the evidence adduced by the prosecution and also the material available on record, the learned sessions Judge acquitted accused 2 to 4 and convicted and sentenced A-1 the appellant herein as referred to above. Against the said conviction and sentence, the present appeal has been preferred by the accused No. 1 appellant. ( 4 ) WHEN the matter was heard by the division Bench of this Court consisting of justice J. Chalemeswar and Justice B. Seshasayana Reddy, the following issue was referred to the Full Bench. Against the said conviction and sentence, the present appeal has been preferred by the accused No. 1 appellant. ( 4 ) WHEN the matter was heard by the division Bench of this Court consisting of justice J. Chalemeswar and Justice B. Seshasayana Reddy, the following issue was referred to the Full Bench. "whether the defence could rely upon any statement made by a witness, who is declared hostile by the prosecution in the absence of any specific definite line of defence. "the Full Bench, of which one of us (GB, J.) was a party, after referring to various decisions of the Supreme Court held that the evidence given by the hostile witnesses need not be totally rejected, but at the same time, corroboration from the other evidence could be considered before coming to a conclusion, whether the accused is entitled for the benefit of doubt. The Full Bench observed as follows in paras 32, 33 and 34:"32. To mention some examples, if an accused pleads that he exercised the right of Private Defence, it must be proved either through a definite plea or through the totality of the circumstances of the case. If an accused pleads alibi, he must place definite material to establish that he was not present at the scene of offence at the time of occurrence. If the accused pleads impotency in a rape case, he has to prove through medical evidence, that he is incapable of committing rape. If the accused pleads that the deceased had the tendency of committing suicide, he has to place definite material to prove the earlier instances and establish that the offence alleged is not a homicidal one. If the benefit of doubt is given for whatever little material the accused elicits from the prosecution witnesses through suggestions, no accused could be convicted an no offence could be made out. The information elicited from the prosecution witnesses must change the course of prosecution story and affect the prosecution version in material particulars. If there is any independent evidence either oral or documentary through the witnesses, whose truthfulness is not doubtful, if there are surrounding circumstances to probabalise the defence version and if there is any information from the hostile witnesses supporting the said version, under those circumstances only the evidence of the hostile witness can be taken into consideration. If there is any independent evidence either oral or documentary through the witnesses, whose truthfulness is not doubtful, if there are surrounding circumstances to probabalise the defence version and if there is any information from the hostile witnesses supporting the said version, under those circumstances only the evidence of the hostile witness can be taken into consideration. Since the hostile witness is not a reliable person, who resorts to change the version from time to time, the answers given by him in favour of the accused have to be scrutinized carefully to come to a conclusion whether any reliance can be placed on the information given by the hostile witness. The evidence given by a hostile witness need not be totally rejected, but at the same time such portion of the evidence, which is getting corroboration from other evidence could only be considered before coming to a conclusion whether the accused is entitled for the benefit of doubt. 33. The accused must introduce a definite version of defence and in order to establish the said defence he must show that the preponderance of probabilities are in favour of such plea on the basis of the material available on record. Without there being sufficient material in support of such defence, the accused cannot rely on it. 34. If there is independent evidence, other than the evidence of the hostile witnesses, which is sufficient to prove the guilt of the accused beyond all reasonable doubt, the version of the defence, which is shaky in nature, can be ignored and no weight need be given to it. The information gathered by the accused from the hostile witnesses will be helpful to him, only when there is no sufficient independent evidence leading to a definite conclusion that the guilt of the accused is proved beyond all reasonable doubt and in such circumstances only the accused can fall back on such answers, which were given by the hostile witnesses favourable to the accused, otherwise such answers assume no importance and they are of no effect on the result of the case. The reference is accordingly answered. " ( 5 ) SRI A. Hanumantha Reddy, learned counsel appearing for the appellant submits that (he evidence of the hostile witnesses even it taken into concideration in the light of? The reference is accordingly answered. " ( 5 ) SRI A. Hanumantha Reddy, learned counsel appearing for the appellant submits that (he evidence of the hostile witnesses even it taken into concideration in the light of? the observation of the Full Bench, the same cannot be relied on to find the appellant guilty of the charge. Secondly, he submits that the dying declarations, Exs. P-1 and p-21 which are also relied on by the prosecution independently to establish the guilt of the accused cannot be relied on as they are shrouded with any amount of suspicion and therefore, the lower Court ought not to have relied on these documents also for convicting and sentencing the appellant-accused. He relied on number of judgments, which will be referred to in the course of discussion by us. ( 6 ) ON the other hand, learned Public prosecutor defending the case of the appellant-accused, submits that there is sufficient corroboration by the prosecution witnesses, and therefore, to the extent of corroboration, the prosecution witnesses have to be relied on and if that principle laid down by the Full Bench is to be followed, the prosecution has been able to establish the guilt of the accused-appellant. Secondly, the learned Public Prosecutor also submits that the dying declarations in Exs. P-1 and P-21 are consistent in all material particulars and even if there is any slight omission that should not be a ground to totally reject the case of the prosecution on the ground of suspicion. Therefore, the learned Public prosecutor would submit that the Judgment of the learned Sessions Judge is quite legal and the same is sustainable. ( 7 ) WE have heard the learned counsel for the appellant and also learned Public prosecutor at length. ( 8 ) TWO points will arise in this appeal; firstly, whether the prosecution can rely on the evidence of the hostile witness and if so, to the extent of reliance placed on the prosecution evidence, can it be said that the prosecution has established the commission of offence under Sections 302 and 450 r/w sec. 34 of IPC, by the appellant. Secondly, ate hors the evidence o f hostile witnesses, can it be said that the prosecution established the guilt of the accused basing on the two dying declarations Exs. P-1 and p-21. 34 of IPC, by the appellant. Secondly, ate hors the evidence o f hostile witnesses, can it be said that the prosecution established the guilt of the accused basing on the two dying declarations Exs. P-1 and p-21. ( 9 ) SO far as the first point is concerned, it is not in dispute that all the prosecution witnesses P. Ws. 1 to 10 were declared hostile, but however, as per the observations and also the decision of the Supreme Court, their evidence cannot be totally eliminated if it is corroborated in material particulars. We have scanned through the entire evidence of the prosecution witnesses and we find that the corroboration is missing at all levels. Under those circumstances, we cannot rely on the prosecution witnesses and we have to only consider the next point whether de hors hostility of the prosecution evidence, can the prosecution be said to have established that the offences have been made out on the basis of the dying declarations Exs. P-1 and P-21 made by the victim. ( 10 ) THE reliability on the dying declarations has been now well settled by a catena of decisions of Supreme Court and we need not labour ourselves to refer to the decisions. Suffice it to refer to the latest judgment of the Supreme Court in p. V. Radhakrishna v. State of Kamataka #1 In the said decision, the Supreme Court has referred to various decisions on this subject and also taking into consideration the principles laid down in several decisions, summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. (iii) The Court has to scrutinize 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. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (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. (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustwothy and reliable, it has to be accepted. (Para 12) 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 basis of conviction, even if there is no corroboration. (Para 13)" ( 11 ) THERE is also yet another decision of the Supreme Court of the coordinate Bench, which was not referred to in this decision. The said decision is referred to in Panchdeo singh v. State of Bihar #2 consisting of justice Umesh C. Banerjee and Justice k. G. Balakrishnan. (Para 13)" ( 11 ) THERE is also yet another decision of the Supreme Court of the coordinate Bench, which was not referred to in this decision. The said decision is referred to in Panchdeo singh v. State of Bihar #2 consisting of justice Umesh C. Banerjee and Justice k. G. Balakrishnan. Their Lordships also referred to the earlier decisions and observed as under:"dying declaration itself can be treated as a substantive piece of evidence and can be the basis of an order of conviction and sentence without there being any corroboration, provided, however, the same brings forth a sense of confidence and trustworthiness in the mind of the court. The issue thus becomes as to whether the dying declaration has been able to bring about a confidence thereon to not - is it trustworthy or is it a mere attempt to cover up the laches of investigation: it must allure to the satisfaction of the court that reliance ought to be placed thereon rather than a distrust: the confidence of the court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelief or distrust would not arise. In the event however of there being some infirmity, howsoever negligible it be, the court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise; dying declaration alluring confidence of the court would be a sufficient piece of evidence to sustain conviction. There is no format as such of dying declaration, neither the declaration need be any longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the court since dying declarations need not be drawn with mathematical precision the declarant should be able to recollect the situation resulting in the available state of affairs. "this Court also has been consistently following the principles laid down by the supreme Court with regard to the reliability and acceptability of dying declarations for the purpose of convicting and sentencing the accused. Basing on the principle laid down by the Supreme Court, the issue now arises for consideration is whether the dying declarations Exs. P-1 and P-21 can be relied on. Basing on the principle laid down by the Supreme Court, the issue now arises for consideration is whether the dying declarations Exs. P-1 and P-21 can be relied on. Learned counsel for the appellant seriously disputes the genuineness of the dying declarations and submits that there are many suspicious circumstances and the dying declarations have to be disbelieved. Firstly, he submits that the dying declaration did not conform to the medical evidence. Though it is the case of the prosecution that the accused poured kerosene on account of which, the deceased received 100 percent burnt injuries, but in such an event, the control earth was not seized by the prosecution and even the M. Os. 1 and 2 namely the kerosene the and the burnt pieces of nylex saree were not sent to the opinion of the Forensic Science Laboratory authorities. Even commenting on the evidence of the medical officer, the learned counsel for the appellant referred to the book on forensic Medicine and toxicology by Dr. K. S. Narayan Reddy, wherein the text in cases of burnings by petrol or kerosene or any other inflammable articles reads thus:" (3) Burns caused by kerosene oil, petrol, etc. are usually severe and produce sooty blackening of the parts and have characteristic odour. "then referring to the text of Medical jurisprudence And Toxicology by N. J. Modi, the learned counsel submits that in case of burning by kerosene, it would have a characteristic smell of kerosene and he refers to the following passage from the said book:"post-MORTEM Appearances-External The articles of clothing, if any, on the body, should be removed very carefully and examined for the presence of characteristic smell of kerosene petrol, or some other combustible substance. They should be returned to the police in a sealed packet especially in murder cases. "it is also observed in the book that burns caused by kerosene oil are usually very severe, and are known from their characteristic odour and the sooty blackening of the parts. The learned counsel further takes us to the evidence of the doctor, who conducted post-mortem examination. In the cross-examination the said Doctor has categorically stated that he did not feel the smell of kerosene. He also admits that in case of burns by kerosene, black sooty deposits would be present and such deposits were not present on the deceased body. The learned counsel further takes us to the evidence of the doctor, who conducted post-mortem examination. In the cross-examination the said Doctor has categorically stated that he did not feel the smell of kerosene. He also admits that in case of burns by kerosene, black sooty deposits would be present and such deposits were not present on the deceased body. For proper appreciation, we extract the cross-examination of the Doctor (P. W. 13) which reads thus:"i did not feel the smell of kerosene. If the kerosene poured the burns will be severe. It is also true that thick black sooty deposits would be present. We have not found such deposits. Even internally I did not find any smoke or burns in the lungs or no strils. "?the learned counsel for the appellant further submits that P. W. 12, the A. S. I, of Guntakal police Station, in his chief examination has categorically stated that he has recorded the statement of the deceased under Sec. 161 of Cr. P. C. , but that statement is not to be found either in the records or was marked before the trial court. Therefore, taking cumulative effect of all these things, the learned counsel submits that the dying declarations (Exs. P-1 and P-21) cannot be relied on for holding the accused-appellant guilty of the offences under Sections referred to above, while, the learned Public prosecutor tried to defend the case on the ground that when there is ample evidence on this aspect, the same can be looked into. ( 12 ) ANOTHER important contention sought to be raised by the learned counsel for the appellant is that there are inconsistencies in the dying declarations. He tried to distinguish the inconsistencies stating that in Ex. P-1 though the name of A-3 was mentioned, the same was not mentioned in Ex. P-21 and therefore, as per the judgment of the supreme Court in Panchdeo Singh s case (2 supra) even if any negligible infirmity is found, the dying declarations should not be relied on as they are not subjected to cross- examination. So taking due from that judgment, learned counsel submits that on this ground also reliance cannot be placed on the dying declarations, Exs. P-1 and P-21. So taking due from that judgment, learned counsel submits that on this ground also reliance cannot be placed on the dying declarations, Exs. P-1 and P-21. ( 13 ) THE principles laid down by the supreme Court with regard to the admissibility of the dying declarations, and basing solely on the dying declarations convicting the accused cannot be reiterated once again. It is now permissible for the court, de hors the evidence, to rely solely on the dying declarations and convict the accused. Such conviction was also upheld by the Supreme Court in a catena of decisions. The question for consideration is whether dying declarations can be said to be reliable and inspire confidence. We have noticed that the are many inconsistencies and irreconcilable omissions, which loom large on the dying declarations which will be noticed hereinafter. Firstly, we note that in ex. P-21 there is an omission to mention the name of A-3. While her name was mentioned in Ex. P-1, the same did not find place in Ex. P-21. Secondly, the dying declaration is also not in conformity with the medical evidence. As referred to above, when a burning by kerosene takes place, sooty deposits will appear on the body and the Doctor (P. W. . 13) in his cross- examination has clearly stated that such deposits were not found on the deceased. Moreover, the smell of kerosene was also not felt by the Doctor who conducted the post-mortem. Further, the smoke of kerosene was not seen in the lungs or the nostrils of the deceased. Added to this, we also find that the deceased was not mentally fit. P. W. 1, Village Administrative Officer and p. W. 3, the husband of the deceased have categorically stated that she was not mentally fit. Even the mother of the deceased atso stated that her mental condition was not proper. Further, P. W. 3 had also stated that his grand mother has been tutoring the deceased for implicating the accused. Under these circumstances can it be said that the dying declarations can be relied on as having been made voluntarily. Apart from this crucial aspect, the prosecution has also not conducted the investigation in a proper manner. Its perfunctory investigation also added fuel to the fire. Under these circumstances can it be said that the dying declarations can be relied on as having been made voluntarily. Apart from this crucial aspect, the prosecution has also not conducted the investigation in a proper manner. Its perfunctory investigation also added fuel to the fire. The investigating officer did not collect the control earth nor did send the kerosene tin and the alleged burnt nylex saree pieces to chemical examination for opinion. The reasons are not forthcoming. In order to solely rely on the dying declarations, supreme Court has prescribed strict test in the cases referred to above. If there is any slight deviation or omission it was observed that such dying declarations cannot be relied upon. In the case on hand, the dying declarations suffer with many infirmities as referred to above. Under those circumstances, we find that convicting the accused soley on the basis of the suspicious dying declarations cannot be sustained. ( 14 ) ACCORDINGLY, we set aside the judgment of the learned Additional Sessions judge, Hindupur and acquit the appellant- accused No. 1 of the offences under sections 302,450 r/w Section 34 of IPC. The accused shall be set at liberty forthwith unless he is required in any other case. ( 15 ) THE Criminal Appeal is allowed.