BILAL NAZKI, CJ. ( 1 ) BOTH the accused in Sessions Case No. 251 of 2002 before III Additional District and Sessions judge, Ranga Reddy District, are the appellants. They have been convicted for the offence under Section 302 of I. P. C. and have been sentenced to imprisonment for life and have been fined Rs. 500/- each. In default of payment of fine, they have to undergo simple imprisonment for six months. ( 2 ) THE substance of the charge against the accused was that on 10. 6. 2001 at about 5. 30 p. m. , accused No. 1 caught hold of her husband Sri Mohd. Pasha and accused No. 2 poured kerosene on him and then accused no. 1 set fire to him, as a result of which, he died on 13. 6. 2001. On the basis of these allegations, charge was framed. Both the accused pleaded not guilty and claimed to be tried. Prosecution examined 10 witnesses and exhibited 12 documents. ( 3 ) THE prosecution story is that the marriage of deceased was solemnized with accused No. 1 nine months prior to the occurrence. Accused No. 1, after sometime, told the deceased that she was not interested in continuing her conjugal life with him and she intended to go for another marriage with some other person. Originally they were living in Saidabad, but accused No. 1 forced the deceased to shift his family to vanasthalipuram. Deceased shifted his residence to Dwarakamainagar. But accused no. 1 continued to say that she was not interested in the marriage. While accused no. 1 and deceased were living at the new place of residence, accused No. 2 came to the house and picked up a quarrel with the deceased. She demanded a divorce from the deceased, of her daughter. On 10. 6. 2001 at about 5. 30 p. m. , accused No. 1 caught the deceased, accused No. 2 her mother poured kerosene on him and accused No. 1 set him ablaze. The deceased sustained burn injuries and died on 13. 6. 2001. ( 4 ) PW-1 is the father of the deceased. He stated that deceased was his youngest son. The incident occurred on 10. 6. 2001 and on 13. 6. 2001 his son died while undergoing treatment for burn injuries. The deceased sustained burn injuries and died on 13. 6. 2001. ( 4 ) PW-1 is the father of the deceased. He stated that deceased was his youngest son. The incident occurred on 10. 6. 2001 and on 13. 6. 2001 his son died while undergoing treatment for burn injuries. Accused No. 1 is the wife of the deceased, accused No. 2 is the mother of accused No. 1. Accused No. 1 was married to deceased eight months prior to the death of the deceased. After the marriage, the deceased and accused no. 1 lived in the house of the witness for about four months. They were quarrelling during this period and were not living amicably. The accused No. 1 went away from the house without informing them. His deceased son went and brought her back in an Auto Rickshaw. Accused No. 1 stayed in the house for about four days and insisted that she and her husband would live separately at Vanasthalipuram. Accused No. 1 and deceased went to Vanasthalipuram and started separate living. His son used to come to his house now and then. He used to inform them that accused No. 1 was quarrelling and was not living happily with him. His son was employed in a chicken shop. On 7. 6. 2001, his son came to his house along with accused No. 1 and demanded that the witness should give her the T. V. set which was in his house. The witness told her that the said T. V. set was an old one. Then the deceased told accused no. 1 that he would purchase a new T. V. On 10. 6. 2001 at about 5. 30 p. m. , accused no. 1 phoned him and told that his son had burnt himself. He rushed to the house of his deceased son. His son was not there. He saw the police present at the house. The police told him that his son was admitted in osmania General Hospital. He, his wife and his eldest son went to the Osmania General hospital. They saw the deceased undergoing treatment. When they met him, he was conscious and talking. When he asked him as to how he had received injuries, he told him that accused Nos. 1 and 2 had burnt him. Though in the cross-examination suggestions were put to him, he denied those suggestions. They saw the deceased undergoing treatment. When they met him, he was conscious and talking. When he asked him as to how he had received injuries, he told him that accused Nos. 1 and 2 had burnt him. Though in the cross-examination suggestions were put to him, he denied those suggestions. ( 5 ) PW-2 is the wife of PW-1 and mother of the deceased. She also spoke about strained relations between accused No. 1 and deceased. She also went to the house of the deceased when she was informed that he had burnt himself. She also talked to the deceased, who told her that there was a dispute with regard to purchase of a television, then accused No. 2 poured kerosene on him and accused No. 1 lit fire to him with a matchstick. She also denied the suggestion put in cross-examination that she had not talked to the deceased. In both these statements, it is apparent that according to these Witnesses, the deceased made a statement before them and in both these statements, it was stated that the dispute was triggered because of a demand for a television set by accused No. 1. ( 6 ) PW-3 is a neighbour, whose house is in front of the house of the deceased. He stated that at about 5 or 5. 30 p. m. , the deceased came out from his house with flames and cries. He and some neighbours gathered there. By the time he went to the place, number of people had gathered there. Deceased had fallen on ground, flames were put out. A. S. I. of Police, Vanasthalipuram police Station came, recorded the statement of Pasha and Pasha told A. S. I. that inside the house, accused No. 1 caught hold of him and accused No. 2 poured kerosene on him and thereafter accused No. 1 set him on fire with a matchstick. A. S. I. of Police obtained the right toe impression of Pasha, as his both hand fingers were burnt. In the cross- examination he however stated, he did not know Urdu or Hindi and he could not understand those languages, but maintained that deceased had made his statement in telugu to the A. S. I. The deceased had also said some words in Urdu. He did not remember the language the A. S. I. had spoken. In the cross- examination he however stated, he did not know Urdu or Hindi and he could not understand those languages, but maintained that deceased had made his statement in telugu to the A. S. I. The deceased had also said some words in Urdu. He did not remember the language the A. S. I. had spoken. ( 7 ) PW-4 stated that he knew deceased pasha. Police had called him to the scene of offence. He was witness to the observation report and to the sketch of scene of offence. He exhibited Ex. P-1 as the observation report and Ex. P-2 as the sketch prepared by the Sub-Inspector of Police. The Sub-Inspector of Police had also seized one matchbox and half burnt two matchsticks M. O. I. He had also seized kerosene tin M. O. 2 under the cover of Ex. P-1. ( 8 ) PW-5 also knew the deceased. He was a witness to the inquest. PW-6 is the police Sub-Inspector. He stated that on 10. 6. 2001 at about 6. 15 p. m. , he received a telephone call from Dwarakamainagar colony, informing him that one person sustained burn injuries. He made a G. D. entry of the telephone message and deputed a. S. I. Satyanarayana to the spot for enquiry. At about 7. 15 p. m. , the A. S. I, returned and stated that he had recorded the statement of mohd. Pasha, the injured in this case and had already sent the injured to the Osmania general Hospital for treatment. The A. S. I, handed over the statement of injured to him. Said statement recorded by A. S. I, is Ex. P-4. He registered Ex. P-4 as F. I. R. in Crime no. 274 of 2001 at 19. 15 hours on 10. 6. 2001 under Section 307 of I. P. C. The F. I. R. registered by him was Ex. P5. He submitted the copies of F. I. R. to all concerned. He also sent the F. I. R. along with Ex. P-4 to j. F. C. M. , East and North Kothapet, R. R. District. After registering the case, he also visited the place of occurrence, examined pw-3 and another witness. He conducted the scene of offence panchanama and prepared a sketch. He also sent the F. I. R. along with Ex. P-4 to j. F. C. M. , East and North Kothapet, R. R. District. After registering the case, he also visited the place of occurrence, examined pw-3 and another witness. He conducted the scene of offence panchanama and prepared a sketch. He also seized black colour plastic kerosene Can M. O. 2, four burnt matchsticks and matchbox M. O. I. He also sent requisition to the Metropolitan magistrate to record the dying declaration of the injured person. VIII Metropolitan magistrate recorded the dying declaration of the injured in Osmania General Hospital. He also examined injured in Bums Ward of osmania General Hospital. He also examined PWs. 1 and 2. On 13. 6. 2001 at about 10. 30 am, he received a message from the hospital that the injured had died. He changed the Section of Law from 307 of I. P. C. to 302 of I. P. C. and submitted a memo to Judicial Magistrate. Thereafter, the Inspector of Police took up the investigation of the case and he assisted him. Before that, he had arrested both the accused at the house of accused No. 1 in Dwarakamainagar colony at 9 a. m. He had brought them to the Police Station, then produced them before the Magistrate. Ex. P-7 was the statement of the deceased recorded by him. ( 9 ) PW-7 is the Doctor, who conducted the post-mortem. He found the following anti-mortem injuries: "dermo epidermal burns present over lower half of face, neck, chest, abdomen, pubis and perineum, both upper extremities, both thighs and back of trunk amounting to 77% of total body surface area. Skin peeled off here and there over burnt area and peeled off areas are red in colour. Part of the bums are infected. All the internal organs are conjested. " he was of the opinion that the death was caused due to burns. He denied the suggestion in the cross-examination that if a person had received 77% of bums, he would not be able to talk. ( 10 ) PW-8 is the person who went to the scene of occurrence after the S. I. of police received the telephonic message. When he reached the scene of occurrence, he saw the deceased lying in front of the house. He was speaking and he asked him as to how the incident happened. ( 10 ) PW-8 is the person who went to the scene of occurrence after the S. I. of police received the telephonic message. When he reached the scene of occurrence, he saw the deceased lying in front of the house. He was speaking and he asked him as to how the incident happened. He gave a statement and he recorded the same. He read over it to the deceased, obtained his left leg toe impression. The injured was not in a position to sign as his fingers were burnt. Ex. P-4 was the statement recorded by him. In the cross-examination he stated that he reached the scene of offence by 5. 55 p. m. He had not however, recorded the time in Ex. P-4. It took him half an hour to record the statement. ( 11 ) PW-9 is the Junior Civil Judge, karimnagar, who recorded the dying declaration in the Osmania General Hospital. He stated that he received intimation on 10. 6. 2001 at 9. 15 p. m. He proceeded to the hospital. The patient was identified by the duty Medical Officer. The Medical Officer certified that the patient was conscious and coherent and mentally fit to give the statement. He put preliminary questions to the patient and satisfied himself that the patient was conscious, coherent and mentally fit. He obtained certificate of fitness from the Doctor before the statement and also after the statement. The patient gave the statement in Urdu. He recorded his statement in Hindi translating truly by himself and after completing the recording of statement given by Mohd. Pasha, he read over and explained to Mohd. Pasha, who admitted it to be correct. He obtained the right toe impression of the patient on the statement. Ex. P-11 was the dying declaration. The recording of dying declaration was completed at about 10. 40 p. m. In the cross-examination he stated that Mohd. Pasha told him that he woke up from sleep just before the incident. He also told him that since morning, his wife was quarrelling with him. But he did not give any reason of the quarrel. The injured had also told him that it was the wish of his mother-in-law that her daughter should get separated from her husband so that her daughter could be sent to Saudi arabia. He also told him that since morning, his wife was quarrelling with him. But he did not give any reason of the quarrel. The injured had also told him that it was the wish of his mother-in-law that her daughter should get separated from her husband so that her daughter could be sent to Saudi arabia. He put preliminary questions in hindi and the patient gave answers in Hindi and he noted the answers in English. The injured did not answer Question No. 1, so he put a dash in the answer column. For question No. 8, the injured told him that he was brought by the police to the hospital. He did not note that answer as he was already in the hospital. He and patient were alone when the patient made his statement. The dying declaration was recorded by the witness in Hindi language therefore, the court directed the witness to translate it into english language. The witness translated the dying declaration recorded in Hindi into english and submitted the said translation to the Court, which is Ex. P-12. ( 12 ) PW-10 is the Inspector of Police, who conducted the investigation. His investigation did not disclose that the father- in-law of the deceased was also present and responsible for the occurrence. He visited the scene of offence on 13. 6. 2001 at about 2. 00 p. m. , enquired from the neighbours of the scene of offence about the commission of offence, but none of them gave any useful information therefore, he did not record their statements. He did not investigate whether the deceased had insured his life or not. His investigation did not disclose that the motive for commission of offence was related to demand of a television set or wish of the accused No. 2 to send accused No. 1 to Saudi arabia. He did not mention in the charge- sheet about the recording of dying declaration by PW-9. Later he filed a Memo in Court to examine VIII Metropolitan Magistrate in this case. He completed the investigation in this case on 4. 9. 2001. Immediately thereafter, he filed the charge-sheet. ( 13 ) THERE are several dying declarations and the case is based on dying declarations. Later he filed a Memo in Court to examine VIII Metropolitan Magistrate in this case. He completed the investigation in this case on 4. 9. 2001. Immediately thereafter, he filed the charge-sheet. ( 13 ) THERE are several dying declarations and the case is based on dying declarations. The learned Counsel for the appellants submit that there are inconsistencies between the dying declarations with regard to the mode of occurrence and with regard to the motive therefore, because of these inconsistencies, the dying declarations cannot be believed. PWs. 1 and 2 stated that the deceased made oral dying declarations before them and according to them, there was a dispute with regard to demand for a television set. On the other hand the dying declarations recorded by Police Officer and the Magistrate do not speak of such a motive. Ex. P-4 is the first one. It states:"i am a resident of Dwarakamainagar working in chicken center near Rythu Bazar. About 9 months back my marriage was performed with one Malekha with the consent of elders. Recently my wife expressed her desire to contact another marriage and to desert me for which my wife Malekha, mother-in-law Mahaboob Bee of gandhinagar, Badangpet, Saroornagar mandal with connivance with each other, my wife caught hold me and my mother-in- law poured kerosene on my body. Thereafter my wife set-fire with match box. The reason for the same is my wife is not interested on me and she intended to marry again for which, they poured kerosene on me and set ablaze on 10. 6. 2001 at 5. 30 a. m. which is true. "in this dying declaration, it is stated that the wife of the deceased had a desire to contract another marriage and to desert the deceased and the deceased was categoric in stating that the reason for burning him was that his wife was not interested in him and was interested to marry again. ( 14 ) EX. P-7 is another dying declaration recorded by PW-6 Sub-Inspector of Police. The relevant portion of this dying declaration is reproduced herein:"since then though my wife has no interest and liking on me my in-laws are keeping her with me forcibly. ( 14 ) EX. P-7 is another dying declaration recorded by PW-6 Sub-Inspector of Police. The relevant portion of this dying declaration is reproduced herein:"since then though my wife has no interest and liking on me my in-laws are keeping her with me forcibly. My wife used to quarrel with me now and then stating that she has no interest and liking on me stating that her marriage was performed with me without her consent or liking and she is not happy with me. Since the marriage she expressed her desire to remarry with the another person. At that time my in-laws were also present in the house. My wife and mother-in-law mahaboob Bee picked up quarrel with me and at about 5-30 p. m. , with an intention to kill me and to perform second marriage to my wife, my wife caught me and my mother- in-law Mahaboob Bee poured kerosene on me and my wife lit match sticks and set fire and fired to kill me due to which I sustained extensive burns over my body. Thereafter the police admitted me in OGH. S. I. recorded my statement which is true. " ( 15 ) THEN comes the dying declaration recorded by the Magistrate i. e. , Ex. P-11. In this dying declaration he stated:"today evening at 5. 30 p. m. when I woke up my mother-in-law (Mahaboob Bee) came into the room and poured kerosene on my body and my wife lit match stick and set ablaze due to which I sustained extensive burns all over my body. Since morning my wife was quarrelling with me. She wanted to desert me. It was the desire of my mother-in-law also and she wanted to send my wife for Saudi. " ( 16 ) THE learned Counsel for appellants submit that since there are two reasons for the offence one relating to the demand for a television set and another relating to the disliking of the deceased by accused no. 1, therefore it is highly dangerous to rely on such dying declarations. In all dying declarations except the dying declaration recorded by the Magistrate (Ex. P-11), there was no mention that the accused No. 1 was fighting with the deceased throughout the day and in dying declarations other than ex. 1, therefore it is highly dangerous to rely on such dying declarations. In all dying declarations except the dying declaration recorded by the Magistrate (Ex. P-11), there was no mention that the accused No. 1 was fighting with the deceased throughout the day and in dying declarations other than ex. P-11, the deceased had stated that his wife picked up a quarrel with him and then accused caught hold of him and burnt him, whereas in the dying declaration before the magistrate (Ex. P-11), he stated that he was sleeping. It is also contended by the learned counsel for appellants that the inquest report shows that even the father-in-law of the deceased was tried to be implicated. Eyewitnesses along with PWs. 1 and 2 were present at the time of inquest and in Para 15 of the inquest report, it was stated:"15. As per the statement of parents of deceased and the bums over the body it could reveal that his wife Malekha has no interest and wish to lead married life with deceased and she intended to contact second marriage with another person. Hence she called her parents on 10-6-2001 to her house and quarrelled with the deceased. At about 5-30 a. m. , they Malekha and her parents Mahboob Bee and Ibrahim poured kerosene on the deceased and set ablaze. This is our opinion. "even the Circle Inspector, who conducted the investigation (PW-10), had stated in his statement that his investigations did not reveal that the father-in-law of the deceased was also responsible for the crime. The learned Counsel further submits that there is no evidence at all on the record to show that the mother-in-law of the deceased i. e. , accused No. 2 was present in the house of the accused and deceased at the time of occurrence. He submits that the dying declaration recorded by the Magistrate was not put before the Court along with the charge-sheet and recording of this dying declaration was not even mentioned in the charge-sheet and later a Memo was filed in court to examine VIII Metropolitan magistrate in this case. This according to him creates reasonable doubts about genuineness of this dying declaration. ( 17 ) THE learned Counsel also submits that the contents of the declarations were not put to the accused when they were examined under Section 313 Cr. This according to him creates reasonable doubts about genuineness of this dying declaration. ( 17 ) THE learned Counsel also submits that the contents of the declarations were not put to the accused when they were examined under Section 313 Cr. P. C. We have discussed the evidence in detail and also the nature of dying declarations recorded, which were made to different people. The two main contentions of the learned counsel for the appellants are that the contents of the dying declarations were not put to the accused when they were examined under Section 313 Cr. P. C. Secondly, that the dying declarations are not consistent. We have gone through the statement recorded under Section 313 Cr. P. C. and the dying declarations. The contents of the dying declarations have not been put to the accused when they were examined under section 313 Cr. P. C. In this connection, the learned Counsel for appellants relies on a judgment of the Supreme Court reported in sharad Birdhichand Sarda v. State of maharashtra, AIR 1984 SC 1622 . This judgment was delivered by a Three-Judge- bench of the Supreme Court and in Para 142, the Supreme Court held:"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz. , circumstances nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 , this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu balu Chaugule v. State of Maharashtra, (1976) 1 SCC 438 = AIR 1976 SC 557 , this court held thus: "the fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him. "this judgment was followed by this Court in B. Gopal Naik v. State of A. P. , 2002 (1) alt (Crl.) 352 (DB ). ( 18 ) HOWEVER, the learned Public Prosecutor has relied on a judgment of Supreme Court reported in State of Punjab v. Naib Din, 2001 Cri. LJ 4656. In Paras 11 and 12 of this judgment, the Supreme Court held:"11. Added to the above, learned Single judge observed that the contents of the said affidavit were not put to the accused during the examination under Section 313 of the code. Learned Single Judge, on that score also, over-looked the formal nature of the evidence. The substantive evidence relating to the sample is the result of the chemical examination. There is no grievance for the accused that the Trial Court did not put that aspect to the accused when he was questioned under Section 313 of the Code. If so it was too pedantic an insistence that every item of evidence, even of a formal nature, should also form part of the questions under Section 313 of the Code. 12. That apart, respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the Code. No objection was raised in the Trial Court on the ground of such omission. No ground was taken up in the appellate Court on such ground. If any appellate Court or revisional court comes across that the Trial Court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. No ground was taken up in the appellate Court on such ground. If any appellate Court or revisional court comes across that the Trial Court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the Court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional Court can endeavour to see whether it could be rectified. " ( 19 ) THOUGH the earlier judgment to which a reference has been made hereinabove in Sharad Bridhichand Sarda case (supra) was not brought to the notice of the Supreme court while deciding this case, but even then, we do not find much of conflict between the two judgments. Para 12 of the judgment has to be read in the context of para 11 therefore, both the paras are reproduced by us. The Supreme Court in para 11 quoted hereinabove, stated: "if so it was too pedantic an insistence that every item of evidence, even of a formal nature, should also form part of the questions under section 313 of the Code. " The whole case rests on dying declarations and if the contents of those dying declarations are not put to the accused, that would certainly prejudice the defence and questions related to contents of dying declaration in a case which is solely based on dying declaration, would not be questions of formal nature. Therefore, in the present case, we feel that failure of putting the contents of dying declarations to the accused was fatal for the prosecution. Added to this defect, there is the defect of not having mentioned the recording of dying declaration by the Magistrate in the charge- sheet. Therefore, in the present case, we feel that failure of putting the contents of dying declarations to the accused was fatal for the prosecution. Added to this defect, there is the defect of not having mentioned the recording of dying declaration by the Magistrate in the charge- sheet. ( 20 ) NOW coming to the second question of inconsistencies of dying declarations which have been pointed out by us hereinabove, we rely on a judgment of the Supreme court, reported in Dandu Laxmi Reddy v. State of A. P. , AIR 1999 SC 3255 . The only difference between the two dying declarations in this case was that the deceased in one declaration was alleged to have stated that when she was lighting the stove in kitchen and preparing coffee, her mother-in-law and husband came from behind, caught hold of her, sprinkled kerosene on her body and set her on fire. In another dying declaration, she was alleged to have stated that when she was sweeping, her mother-in-law and husband came, poured kerosene and lit fire on her. So, the only difference between the two dying declarations was that in one she had stated that the occurrence took place when she was preparing coffee and in another she had stated that the occurrence took place when she was sweeping. This difference was termed by the Supreme Court as material divergence and it did not approve the approach of High Court in neglecting to note down this divergence and in Para 15 it stated: "the above material divergence between two dying declarations pertaining to the occasion for launching the murderous attack on the deceased did not create any impression in the minds of the learned Judges of the High court, as they have observed this:"though there is a difference in the version of the deceased as to what she was doing at the relevant point of time the fact remains that A-1 and A-2 poured kerosene and lit fire to her. These aspects are mentioned in exs. P-11, P-14. Therefore, we are unable to agree with the contention of the learned counsel for the accused-appellants. " ( 21 ) FOR these reasons, we find that the conviction and sentence cannot be sustained. Appeal allowed.