P. S. NARAYANA, J. ( 1 ) HEARD Ms. Rajani representing mr. Damodar Reddy, learned counsel for the appellant and the learned Additional Public prosecutor. ( 2 ) THE sole accused Bommagani Chandra mohan preferred this Criminal Appeal as against the Judgment in Sessions Case No. 38 of 1995 dated 26-6-1997 made by the learned ii Additional Sessions Judge, Warangal. ( 3 ) THE learned counsel for the appellant would submit that the learned II Additional sessions Judge, Warangal had totally erred in convicting the appellant-accused under section 498-A of the Indian Penal Code while recording an acquittal under Section 302 of the Indian Penal Code. The learned counsel also pointed out that none of the witnesses had supported the prosecution version and p. Ws. 1 to 9 were declared hostile. The learned counsel also would submit that the learned judge had totally erred in placing reliance on highly defective two Dying Declarations exs. P-13 and P-18 dated 7-3-1994 and 8-3-1994 respectively. The learned counsel also pointed out that the evidence of P. W. 1, who had stated that oral Dying Declaration was made by the deceased, is contrary to exs. P-13 and P-18. The learned counsel would submit that P. Ws. 1 to 3 clearly deposed that the deceased never complained of any ill- treatment or harassment for any additional dowry or the like cause and hence the conviction and sentence imposed by the learned Judge cannot be sustained. ( 4 ) ON the contrary, the learned Additional public Prosecutor would submit that ex. P-13 is the earlier Dying Declaration where she made a clear statement and Ex. P-18 yet another Dying Declaration and reason for giving such a version also explained. The learned Public Prosecutor would contend that it is a case where acquittal was recorded under Section 302 of the Indian Penal Code butin view of the material available on record on the strength of the Dying Declarations, since harassment was established, which resulted in the incident, the learned Judge had arrived at the correct conclusion and imposed a sentence of two years Rigorous imprisonment. ( 5 ) HEARD both the counsel. ( 6 ) THE case of the prosecution is that appellant-accused is a resident of Choulapalli village of Athmakur Mandal and the deceased-Nirmala was given in marriage to the accused about six years prior to the date of offence. ( 5 ) HEARD both the counsel. ( 6 ) THE case of the prosecution is that appellant-accused is a resident of Choulapalli village of Athmakur Mandal and the deceased-Nirmala was given in marriage to the accused about six years prior to the date of offence. At the time of marriage, the accused was also given Rs. 30,000/- in cash and thereafter the deceased was sent to choulapalli to lead family life with the accused. The accused is a kalal by profession and he has been irregular in his profession and used to visit Hanmakonda frequently and spend money lavishly along with his friends and lost interest in the household affairs. While so, the deceased was advancing some dowry amount for interest to pull on the family affairs and the accused was not satisfied with the given dowry amount and was harassing the deceased for more amount of dowry. On 7-3-1994, the wife of the accused, the deceased-Nirmala, asked the accused to pay the price of rice bag which she purchased from a Kamaram merchant and thereupon at about 8. 30 p. m. , the accused had altercation with his wife, abused and hear (beat) her, and poured kerosene on her and set fire to her with an intention to kill her. It is also the case of prosecution that the neighbours, who gathered at the place, immediately shifted the injured-Nirmala to M. G. M. Hospital, warangal and admitted there for treatment. While undergoing treatment, the learned IV additional Judicial First Class Magistrate, warangal recorded the Dying Declaration of the injured-Nirmala wherein she told that the accused poured kerosene on her and lit fire to kill her. On 8-3-1994, on the report given by one Yakaiah, maternal uncle of the injured-Nirmala, Crime No. 22 of 1994 was registered by Athakamur Police Station on 10-3-1994. The injured-Nirmala died at 5. 00 a. m. on 10-3-1994 due to burn injuries caused by the accused and hence the section of law was altered into Section 302 of the indian Penal Code. The investigation had disclosed that the accused had committed the offence under Sections 498-A and 302 of the Indian Penal Code. The injured-Nirmala died at 5. 00 a. m. on 10-3-1994 due to burn injuries caused by the accused and hence the section of law was altered into Section 302 of the indian Penal Code. The investigation had disclosed that the accused had committed the offence under Sections 498-A and 302 of the Indian Penal Code. ( 7 ) THE learned III Additional Judicial First class Magistrate, Warangal before whom the report was filed had taken cognizance of the offences and as the matter is exclusively triable by the Court of Session, PRC No. 51 of 1994 was committed to the Court of Session and the same was made over to the II additional Sessions Judge, Warangal, who had recorded the evidence of P. Ws. 1 to 14 and marked Exs. P-1 to P-19 and ultimately recorded an acquittal so far as Section 302 of the Indian Penal Code, but convicted and sentenced the accused to undergo Rigorous imprisonment for Two years for an offence under Section 498-A of the Indian Penal Code. Hence the present Appeal. ( 8 ) P. W. 1 is the maternal uncle of the deceased Nirmala. P. W. 1 was no doubt declared hostile. P. W. 1 clearly deposed that there were no disputes between the accused and his wife Nirmala and they were always amicable till Nirmala died. P. W. 1 also deposed that the accused never ill-treated or beat Nirmala for any additional dowry or gold and Nirmala died about three years back with burn injuries and after Nirmala was admitted in M. G. M. Hospital with burn injuries this witness along with his sister and other relations went to see her. It is clearly stated by P. W. 1 that she told that she caught fire accidentally and sustained burn injuries. P. W. 1 further deposed that Nirmala was alive for two days and thereafter died at m. G. M. Hospital and he never gave any report to the police, but the brother of Nirmala obtained his signature on a paper and also dictated him a paper, which he wrote and signed, and the same is Ex. P-1, but he had denied the contents of Ex. P-1. ( 9 ) P. W. 2 is the mother-in-law of the accused and the mother of the deceased. She was also declared hostile. P. W. 3 is the sister of the deceased, who was declared hostile. P-1, but he had denied the contents of Ex. P-1. ( 9 ) P. W. 2 is the mother-in-law of the accused and the mother of the deceased. She was also declared hostile. P. W. 3 is the sister of the deceased, who was declared hostile. P. W. 4 is the Sarpanch of the village was also declared hostile. P. Ws. 5 to 9, the residents of choullapally village and the neighbours of the accused were also declared hostile. ( 10 ) P. W. 10, the IV Additional Judicial magistrate of First Class, Warangal is the most crucial witness, who had recorded exs. P-13 and P-18 on the requisitions exs. P-11 and P-12. P. W. 11 is the inquest panchayatdar and Ex. P-14 is the inquest report. ( 11 ) P. W. 12 is the Head Constable, who deposed that on 08-03-1994 at 10. 00 a. m. , on receipt of Ex. P-1 report from P. W. 1, he registered a case in Crime No. 22 of 1994. Original F. I. R. is Ex. P-15. Then he visited the m. G. M. Hospital, Warangal and recorded the statement of deceased as Ex. P-16 and thereafter, he also examined P. Ws. 2 and 3 and three others and recorded their statements and when the victim changed her version, he gave another requisition to the magistrate and got recorded second dying declaration and on 10-3-1994 a death intimation was received from the M. G. M. Hospital, and therefore, the Section of law was altered and the investigation was taken up by the Inspector of Police, Hasanparthy. ( 12 ) P. W. 13 the Inspector of Police, eturunagaram deposed that on 10-03-1994 on receipt of information of death and a copy of Ex. P-19 Section of law alteration memo, he had taken up the investigation and proceeded to M. G. M. Hospital where he conducted inquest over the dead body of the deceased and also examined P. Ws. 4, 7 to 9 and others and recorded their statements and arrested the accused and sent him for remand and subsequently, he filed charge sheet. P-19 Section of law alteration memo, he had taken up the investigation and proceeded to M. G. M. Hospital where he conducted inquest over the dead body of the deceased and also examined P. Ws. 4, 7 to 9 and others and recorded their statements and arrested the accused and sent him for remand and subsequently, he filed charge sheet. ( 13 ) P. W. 14 is a Civil Assistant Surgeon, m. G. M. Hospital, Warangal, who deposed that on 10-03-1994 he conducted autopsy over the dead body of the deceased Nirmala, wife of the accused and there are 95% superficial burn injuries on the anterior 2/3 of scalp, face, front, back of chest and abdomen including external genitalia and both upper and lower limbs completely and that the deceased died due to septicaemia and other sequalae as a result of 95% superficial burn injuries and Ex. P-20 is the post-mortem examination report. ( 14 ) THE learned Judge on appreciation of the oral and documentary evidence had arrived at a conclusion that the charge under section 302 IPC, was not established and recorded an acquittal. But, however, on the strength of Exs. P-13 and P-18, the learned judge came to a conclusion that Sec. 498-A ipc is attracted and convicted the accused and sentenced him to undergo Rigorous imprisonment of two years. It is pertinent to have a look at both the dying declarations. Ex. P-13 is the dying declaration recorded by p. W. 10. No doubt, the learned Magistrate had taken certain precautions by putting some preliminary questions. The relevant portion of the dying declaration is as herein under:"q. I am a Magistrate, tell me how you got all these burnt wounds? I will write? ans: Out of my dowry amount my husband gave loan of Rs. 10,000/- to sudanna my husband gave Rs. 2,000/- as a loan to Poojaritha and Rs. 2000/- to thirupathi Reddy, Rs. 2000/- to sambaiah and Rs. 2000/- to Kanthakka all of them. They have not paid interest nor the principal amount. One Satyam has to give Rs. 1500/- my husband usually going to Warangal as a Rambler. I took a bag of rice on credit basis. I told that money will be given on Wednesday i gave my studs to kavitha. Today there is occasion of flowers and fruits for this girl (Kavitha ). For rice Rs. One Satyam has to give Rs. 1500/- my husband usually going to Warangal as a Rambler. I took a bag of rice on credit basis. I told that money will be given on Wednesday i gave my studs to kavitha. Today there is occasion of flowers and fruits for this girl (Kavitha ). For rice Rs. 600/- it is late why are you going to Warangal this matter as a rambler and returning back thus, I told to my husband he came by consuming more liquor and beat me severally he tried to beat my son also. Then, I asked as why you are beating son, trouble some lady he told. His friend sreenu gave money when he asked for he scolded. He asked me to cook rice for sreenu, Raju and Ravi for dinner My father died when I was a child. My brothers are very younger, my first son died because he beat this manner only, again he is beating me. Kill me but do not beat me I told if you die my father will brought up me the same told my husband beat me by twisting matted hair, immediately llitout by pouring kerosene and fire myself. Q. Is there is anything to say? ans: My mother-in-law and father-in-law told that to die or else become begger. I am going to die what shall I say 3 pattu sarees are in the box. Recover the loaned amount and keep my son in the hostels my husband gave Rs. 2000/- to me kamaram Malliah 8 years back my parents gave Rs. 30,000/- as dowry, my husband gave all the amounts to others and he consumes brandy and beer. I mortgaged my ear studs and released them". ( 15 ) IT is pertinent to note that in this dying declaration, relating to the happening she explained, "immediately I lit out by pouring kerosene and fire myself". This was recorded on 07-03-1994 on written requisition received at 11. 20 p. m. and the same was recorded at 11. 30 p. m. P. W. 10 had recorded Ex. P-18 on receipt of requisition at 5. 30 p. m. on 08-03-1994 and commenced recording the second dying declaration at 5. This was recorded on 07-03-1994 on written requisition received at 11. 20 p. m. and the same was recorded at 11. 30 p. m. P. W. 10 had recorded Ex. P-18 on receipt of requisition at 5. 30 p. m. on 08-03-1994 and commenced recording the second dying declaration at 5. 54 p. m. After putting preliminary questions and after being satisfied that the patient was in sound state mind and in fit condition to make statement proceeded to record and the relevant portion as herein under;"q. I am Magistrate tell me how you have been burning wounded to? ans: My husband only beat severally and poured kerosene on me and lightened in a drunken condition and weeping saying that as he went dabba. Q. Anything more to say? ans: My husband gave to Thirupati reddy Rs. 2,000/- to Goundla Venkata sarika Rs. 2000/ -. He threatened not to tell his name if so he will kill her. Hence, yesterday, I poured kerosene myself and lightened. Rs. 2000/- belongs to one kanthakka which was given by mother-in-law and father-in-law". 16. The answer given in Ex. P-18 is that"my husband only beat severely and poured kerosene on me and lightened in a drunken condition". It has to be noted that this material portion relating to how the incident happened recorded in Ex. P-18 is different from Ex. P-13. No doubt, the prosecution made an attempt to give an explanation in this regard. The other evidence, which may be relevant in this context is the oral dying declaration made by the deceased to P. W. 1. P. W. 1 specifically deposed that she told that she caught fire accidentally and sustained burn injuries and in the light of the material discrepancy in between Exs. P-13, Ex. P-18 and also the oral dying declaration made to p. W. 1, it is highly unsafe to rely upon such evidence even in regard to the dowry harassment. The Apex Court in Dandu lakshrni Reddy v. State of A. P. held as under:"when the sphere of scrutiny of Dying declaration is a restricted area, the Court cannot afford to sideline such a material divergence relating to the very occasion of the crime. Either the context spoken to in one was wrong or that in the other was wrong. The Apex Court in Dandu lakshrni Reddy v. State of A. P. held as under:"when the sphere of scrutiny of Dying declaration is a restricted area, the Court cannot afford to sideline such a material divergence relating to the very occasion of the crime. Either the context spoken to in one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course. Thus the Court cannot sideline the difference in the version of the deceased as to what she was doing at the relevant point of time was not proper. " ( 16 ) IN the light of the discrepancy pointed above, this Court is of the considered opinion that the learned Judge had totally erred in convicting the appellant/accused under section 498-A IPC and sentencing him to rigorous Imprisonment of two years. Placing reliance on such discrepant evidence, this court has no hesitation in holding that the said conviction and sentence cannot be sustained and accordingly, the same hereby set aside and the appeal is hereby allowed. The bail bonds shall stand cancelled.