R.C. CHAVAN, J.:- The State has preferred this appeal to take exception to the acquittal of respondent Kisan Dudhe, of the offence punishable under Section 302 of the Penal Code, recorded by the learned Additional Sessions Judge, Pusad. 2. Facts which led to prosecution of the respondent are as under: Victim Baby Sakharam Jamkar was having an illicit relationship with Kisan. Kisan had got married to another woman. This led to a quarrel on 14-10-1993. According to the prosecution version, after the quarrel Kisan took victim Baby to his own house, poured kerosene on her person and set her on fire. Her, cries attracted the neighbours. She was taken to hospital and a report was made to police. Her dying declaration was recorded by a Magistrate. She succumbed to her injuries on 15-10-1993. The post mortem examination revealed that she has died of 94% burns. 3. In the course of investigation, police recorded statements of witnesses, seized incriminating articles, caused them to be sent to the Forensic Science Laboratory, secured report from the Laboratory and on completion of investigation, sent charge-sheet to the learned Judicial Magistrate First Class, Digras, who committed the case to the Court of Sessions at Pusad. 4. The learned Additional Sessions Judge, Pusad charged the respondent/accused Kisan of the offence punishable under Section 302 of the Penal Code. The accused pleaded not guilty and was put on trial. The prosecution examined in all nine witnesses in its attempt to bring home the guilt of the accused and the accused examined one witness in his defence. After considering the prosecution evidence, in the light of defence of absence of complicity of the respondent in the incident, the learned Additional Sessions Judge acquitted the respondent. Aggrieved thereby the State has preferred this appeal. 5. We have heard Adv. Yengal, learned Addl. Public Prosecutor for the State. None was present for the respondent, who had been duly served. With the help of learned Addl. Public Prosecutor, we have gone through the entire record to examine the correctness of the order passed by the learned Additional Sessions Judge. 6. There is no eye-witness who saw the respondent setting the victim on fire. P. W.I Rajendra Kothari is an Advocate, who resides in the same lane where incident took place. He stated that on 14-10-1993 at about 8.45 to 9.00 p.m. he heard a woman shouting as "Kanhaiya". 6. There is no eye-witness who saw the respondent setting the victim on fire. P. W.I Rajendra Kothari is an Advocate, who resides in the same lane where incident took place. He stated that on 14-10-1993 at about 8.45 to 9.00 p.m. he heard a woman shouting as "Kanhaiya". He went out side and saw a woman in burns at a distance of about 30 to 35 feet from his house. He went to the Police Station and informed the Police. The Police then carried the woman in the jeep. He stated that he had seen the house of accused. The House of one Yatin Gadda is also adjacent. Shri. Yatin Gadda had also come alongwith others around the woman who was burning. 7. On behalf of the defence this Yatin Gadda was examined as D.W.1 he stated that about 8.30 to 9.00 p.m. when he was in the gallery of his house, he saw a unknown woman standing in the lane and sprinkling something on her person. He asked her as to who she was. She set herself on fire with a match stick. He stated that he was afraid. Thus, Yatinkumar's evidence would show that the victim had set herself on fire in the lane. 8. P.W.2 Baby Dinkar Mahajan was the landlady at whose house victim Baby was residing. She had turned hostile. P.W.3 Noorkhan is panch at spot panchnama Exh.31 which shows that the spot is in the lane. He had stated that match sticks and match box was lying inside the house, and that burnt pieces of clothes, kerosene plastic can was seized on the spot. In cross-examination, he stated that the match sticks were lying near the door. The spot panchnama at Exh.31 shows that the spot was in front of the entrance door of accused Kisan Tukaram Dudhe's house. There were three steps to the door leading to the house of Kisan with the smallest step near the lane and two biggest steps towards the door. The burnt pieces of clothes were found at the step near the lane. A plastic container was also found 4 feet away from the smallest step, containing 100 to 150 ml. of kerosene. A Pink brand match box was also found in broken condition. The burnt pieces of clothes were found at the step near the lane. A plastic container was also found 4 feet away from the smallest step, containing 100 to 150 ml. of kerosene. A Pink brand match box was also found in broken condition. It is not necessary to go through other recitals of the panchanama, since this panchanama clearly shows that the incident took place in the lane and not inside the house of the accused. 9. P.W.5 Dr. Khadse had attended to the victim in the hospital and in his presence various statements and dying declarations of the victim were recorded. Dr. Khadse had examined the victim and certified vide Exh.42 that the victim had superficial burns over the entire body to the extent of about 100%, According to Dr. Khadse he had requested the P.S.O, to arrange for recording Dying Declaration of the victim. One constable had recorded a statement of the victim when the victim was conscious. Dr. Khadse had proved his certificate at Exh.35 on the statement. It, however, seems to have been recorded by P.W.9 P.S.I. Sugandhi and not by the constable. In this statement the victim stated that she had love affair with Kisan but he married another girl without thinking of her. A quarrel took place between them on 14-10-1993, thereafter she stated that at about 8 to 9 p.m. the accused took her to his house, poured kerosene on her person and set her on fire. She stated that she fell on road and was shouting that she should be saved. She stated that out of affection she used to call accused Kisan as "Kanhaiya". Dr. Khadse had certified that the patient was conscious throughout the recording of her statement. 10. In the course of cross-examination Dr. Khadse admitted that the pulse of the patient was not "failed" (sic felt ?). Her general condition was poor and Blood Pressure was not recordable. The B.P. had gone at a very low level. The patient was violent, irritable but conscious. There was intense pain due to 100% burns, the patient was under shock. He admitted that being in sound state of mind requires recordable B.P. and absence of irritation and violence. He admitted that though the patient was conscious to give a statement she might not be of a sound mind and one may speak irrelevantly in such a state. There was intense pain due to 100% burns, the patient was under shock. He admitted that being in sound state of mind requires recordable B.P. and absence of irritation and violence. He admitted that though the patient was conscious to give a statement she might not be of a sound mind and one may speak irrelevantly in such a state. This rider put by Dr. Khadse on the statement recorded in his presence would virtually deprive the statement of all its probative value. 11. The Police had requisitioned services of P.W. 7 Naib Tahsildar cum Executive Magistrate Shri. Rathod to record victim's dying declaration. He recorded the Dying Declaration vide Exh.46, again after obtaining necessary endorsements of Dr. Khadse at Exhs.37 and 38. This statement recorded at 9.30 p.m. would show that Baby had reported to Shri. Rathod that Kisan poured kerosene on her person and threw match-stick and set her on fire. She stated that Kisan was her lover. Kisan had taken her to his house and set her on fire in front of his wife. When she shouted, he himself extinguished fire. She stated that out of affection she used to call Kisan as "Kanhaiya". Her claim that Kisan himself had extinguished the fire or that Kisan was present when she was burning is negatived by P.W.1 Adv. Kothari who had not only seen her burning but had also informed and called the police to the spot. Her statement is also falsified by D.W.1 Yatinkumar. As already observed, Dr. Khadse's opinion about the condition of the patient would rule out her being in sound state of mind to make a reliable statement. 12. Victim's mother Parvatabai was examined as P.W.8. Even she claimed that when she met her daughter in the hospital her daughter had told her that the accused set her on fire. It is however; worthy of note that Parvatabai asked the victim as to "why she had done this thing" indicating that she too believed that it was the victim who had taken the precipitate step. The evidence of Parvatabai shows that the victim was first married Babarao Shedmake, resident of Bhojla, who had deserted her after she gave birth to a son. It seem from the cross-examination that victim's son was about 8 to 10 years old at the time of Parvatabai's deposition. The evidence of Parvatabai shows that the victim was first married Babarao Shedmake, resident of Bhojla, who had deserted her after she gave birth to a son. It seem from the cross-examination that victim's son was about 8 to 10 years old at the time of Parvatabai's deposition. The victim also had a daughter by name Sunita who may be 7 years old. Sunita was daughter of Babarao Waghmare. There was one daughter by name Sangeeta who was living with Babarao Waghmare. Babarao Waghmare was resident of Zopadpatti in Moti Nagar at Digras itself. 13. Parvatabai states that thereafter Baby started staying at-her house and relations with Babarao Waghmare had ceased. Since accommodation in her house was not adequate Baby occupied a room in Mahajan Lane, owned by P.W.2 Baby Mahajan, the landlady. Here the accused seems to have been her lover Parvatabai had stated that the victim told her that, since the marriage the accused was not visiting her frequently and used to avoid to talk to her. The entire incident has to be examined in this context. It may be seen that the accused had absolutely no reason to set the victim on fire, or to take the victim to his residence and then set her on fire, as the victim claims. On the other hand having been jilted by the accused the victim would have a grievance and therefore, it is probable that she went in front of the house of the accused had set herself on fire. Therefore, the incident as seen by D.W.1 Yatinkumar is more likely to have happened than the one described by the victim Baby in her Dying Declaration. Her Dying Declarations have to be discarded because of the evidence of Dr. Khadse and also because of her claim that the accused had extinguished fire, falsified by evidence of P.W.1 Rajendra as well as D.W.1 Yatinkumar. 14. According to police, accused was arrested at Digras Bus Station at 9.35 to 9.45 p.m. on 14-10-1993. Panch Tanaji was examined as P.W.4. He proved the Panchnama, but denied that clothes of the accused were smelling of kerosene. P.W.6 H.C. Rajkumar, however, claimed to have arrested the accused in presence of panchas with clothes smelling of kerosene on the S.T. Stand of Digras vide Exh.33. Panch Tanaji was examined as P.W.4. He proved the Panchnama, but denied that clothes of the accused were smelling of kerosene. P.W.6 H.C. Rajkumar, however, claimed to have arrested the accused in presence of panchas with clothes smelling of kerosene on the S.T. Stand of Digras vide Exh.33. The report of Forensic Science Laboratory at Exh.25 would show that the clothes which were seized and sent to the Laboratory tested positive for detection of kerosene residues. However, this may not be material, considering the possibility of the appellant being falsely roped in the above incident at the instance of the victim Baby. There is no other evidence. 15. In view of this evidence, the learned trial Judge rightly concluded that the guilt of the accused was not established. We see no reason to come to a different conclusion and therefore, dismiss the appeal and direct that bail bonds, if any, furnished by the respondent accused shall stand cancelled.