BILAL NAZKI, C. J. ( 1 ) SOLE accused in Sessions Case No. 101 of 1998 before I Additional District and sessions Judge, Krishna, is the appellant. He was tried by the learned Sessions Judge for the offence under Section 302 of IPC. He was convicted for the said offence and sentenced to suffer imprisonment for life. He was also fined with Rs. 200/-, in default, he has to undergo simple imprisonment for two weeks. ( 2 ) THE allegations against the appellant were that on 21st May 1997 at about 5 p. m. he caused the death of his wife namely orikella Susheela by burning her with a matchstick after pouring kerosene over her. On the basis of these allegations, charge was framed under Section 302 of IPC, to which the accused pleaded not guilty and claimed to be tried. Prosecution examined 12 witnesses and exhibited 15 documents. ( 3 ) P. W. 1 is the brother of the deceased. He stated that seven years before, the deceased was married to the accused. On the day of death of the deceased, the witness was living at Malkapuram in a brick manufacturing unit. As all of them including the accused and the deceased were working as coolies, all of them were living in small huts in the same manufacturing unit. Accused used to consume arrack and used to harass the deceased. On the day of occurrence at about 5 p. m. , the accused came to his house after consuming liquor, beat the deceased and her children. The two children of the deceased went away and slept in another hut, whereas the deceased along with one child, slept in the hut of the witness. At about 12 midnight or 1 a. m. , he heard noises from the hut of the accused. His brothers were also living in a neighbouring hut. All of them rushed to the hut of the accused. The daughter of the deceased extinguished fire on the body of the deceased by covering her with a blanket. He also made attempt to extinguish the fire. When he questioned his sister, she told him that the accused tied her hands with a sari and poured kerosene on her body and set her on fire with a matchstick. They took the injured to the hospital in a Tractor. Deceased was admitted in the Government hospital, Jaggaiahpet. He also made attempt to extinguish the fire. When he questioned his sister, she told him that the accused tied her hands with a sari and poured kerosene on her body and set her on fire with a matchstick. They took the injured to the hospital in a Tractor. Deceased was admitted in the Government hospital, Jaggaiahpet. Police recorded his statement. The deceased remained in the hospital for about two months. All these two months he used to attend his sister at jaggaiahpet. He further submitted that since they found it difficult to continue at jaggaiahpet due to financial constrains, they requested the doctor to discharge the deceased and she was discharged. The hospital authorities gave requisite medicines and after going to their house, they used to administer medicines to her. After 20 days of shifting the deceased to her house, she died. In his cross-examination, he stated, he has no idea of dates. Ex. P-1 was not in his handwriting, he did not know who wrote ex. P-1, the dates put on Ex. P-1 were not put by him, however, Ex. P-1 was written in his presence. He denied that he had signed a white paper, which was later on filled up by the Police. Ex. P-1 is a report, dated 1-8-1997 given by P. W. 1. In this report, p. W. 1 stated,". . . . . I have admitted her in Jaggaiahpet government Hospital for treatment on 22-5-97. On my request on 26-6-97 the hospital authorities discharged my sister. We went to our house. They advised us to use medicines. They have prescribed medicines, accordingly I am giving medicines to my sister at my house regularly. My sister was died at 4. 00 a. m. , on 1-8-97 with burning injuries. The cause of her death is due to burning injuries, caused by pouring kerosene and lid match by my brother-in-law. Therefore, i request you to take action after enquiry in this regard. " ( 4 ) P. W. 2 is the child of the deceased and the accused. She was 17 years old according to her on the date of examination, which took place on 20th March 2001. She stated that they were two brothers and a sister. At the time of death of her mother, her parents used to work at Malkhapuram in a brick-manufacturing unit. She was 17 years old according to her on the date of examination, which took place on 20th March 2001. She stated that they were two brothers and a sister. At the time of death of her mother, her parents used to work at Malkhapuram in a brick-manufacturing unit. She along with other brother and sister, used to stay with parents. P. W. 1 also used to work at Malkhapuram. Her father used to consume liquor and after consuming liquor, he used to abuse. Her mother died three years back and on the day of occurrence herfatherhadconsumed arrack and quarreled with her mother. They got scared and she and her younger brother and sister went to their uncle s hut. At about 11 p. m. , they heard shouts of her mother from the hut. She rushed to the spot. Her mother s sari had caught fire. She and her father extinguished the fire by covering the injured with a blanket. After they extinguished the fire, P. W. 1 and others came. Her mother was taken to Government Hospital, jaggaiahpet. She was admitted in the hospital and remained in the hospital for about three months. She was examined by the Police. Two months after the incident, P. W. 1 brought her mother back to the house. P. W. 1 used to administer medicines to her mother at gandrai. One month thereafter, she died. In hercross-examination, she stated, hermother also used to go along with her father to work. When the occurrence took place, she was studying in the school. She had studied up to 6th class, her elder brother had studied up to 7th class, her younger brother had not gone to the school. The entire family depended on the income derived from coolie work done by her parents. Her father used to look after her mother and the entire family well. They were living cordially. They had come to malkhapuram two months prior to the date of occurrence. Prior to the date when the occurrence took place, there was no quarrel between her mother and father. On the day of occurrence she did not sleep in the house. She did not know how her mother had caught fire. After the incident, her mother fell unconscious. She did not talk to anybody. She did not see her mother and did not go to the hospital. On the day of occurrence she did not sleep in the house. She did not know how her mother had caught fire. After the incident, her mother fell unconscious. She did not talk to anybody. She did not see her mother and did not go to the hospital. She saw her mother when she was brought by P. W. 1 back to home from the hospital. She was not examined by the police after the death of her mother. ( 5 ) P. W. 3 stated that he along with P. W. 1, the deceased and the accused had gone to malkhapuram to work in brick-manufacturing unit. The accused was habitual drunkard and he used to beat his wife. On the day of occurrence at 5 p. m. , the accused came from bazaar after consuming liquor. At about 11 p. m. , they heard shouting of P. W. 2. Then they rushed to the place. By that time P. W. 2 had extinguished the fire by covering the deceased with a blanket. When he asked p. W. 2, she told him that the accused had poured kerosene on the deceased and set her on fire. The accused ran away from the place. The wife of accused was taken to government Hospital, Jaggaiahpet. She was there for a period of two months. Thereafter p. W. 1 brought her backto Gandrai. She died 20 days thereafter. ( 6 ) P. W. 4 is a Photographer who took photographs of the deceased. P. W. 5 was a mediator to the observation of scene of occurrence. He stated that Police seized in his presence, a burnt sari, blouse, kerosene tin, burnt ribbon, matchsticks. He attested observation memo Ex. P-3. P. W. 6 was also a panch witness to the observation of scene of occurrence. He was also witness to the inquest in Ex. P-5. ( 7 ) P. W. 7 was a Civil Assistant Surgeon. He was present when Police recorded the statement of deceased at Government headquarters hospital, Jaggaiahpet between 11. 00 and 11. 30 hours on 22-5-1997. He certified that the patient was conscious and an endorsement to that effect was made as in Ex. P-6. He had also examined the patient and was of the opinion that burns were of grievous nature and the percentage was 70 to 80%. 00 and 11. 30 hours on 22-5-1997. He certified that the patient was conscious and an endorsement to that effect was made as in Ex. P-6. He had also examined the patient and was of the opinion that burns were of grievous nature and the percentage was 70 to 80%. Patient was brought to the hospital by Ravalpati Prakasam (P. W. 1 ). Ex. P-8 was the hospital intimation. In his cross- examination he had stated that he had not sent any statement made by the deceased, along with Ex. P-8. He was duty doctor from 8. 00 a. m. , on 22-5-1997 till 8 a. m. on 23-5-1997. Dr. Krishna Rao was also the duty doctor. Patient was brought to the hospital on 22-5-1997 at 10. 40 a. m. He denied that the patient had been brought to the hospital on 21-5-1997. ( 8 ) P. W. 8 was a Deputy Civil Surgeon, government Hospital, Jaggaiahpet, who conducted post-mortem examination on the dead body on 1-8-1997. He found the following injuries:"rigor mortis in all over limps. Whole body except scalp,, upper part of face, front of abdomen lower part on left side, lower part of left thigh and both soles are burnt. The burnt area is healed with some parts, partially healed in some parts and granulation tissues present in some parts of the body i. e. , the burnt area according to the depth of the burn healed in some areas and partially healed in some and not healed in other areas could be caused by dry heat. Brain congested, stomach congested, undigested food. "in his cross-examination he stated that it was possible that the death had occurred for want of proper medical treatment. ( 9 ) P. W. 9 was the Judicial First Class magistrate, who recorded the dying declaration. On 22-5-1997 at 11 a. m. , he received requisition Ex. P-10 from the duty doctor. He rushed to the hospital. The doctor identified the patient and also gave a certificate that the patient was conscious to make a statement. The deponent stated,"her husband came to the house at 5. 00 p. m. , yesterday in a drunken condition and at which time she questioned her husband why he is spending all the amounts on drinking and how to manage the house at which time the husband beat her black and blue. The deponent stated,"her husband came to the house at 5. 00 p. m. , yesterday in a drunken condition and at which time she questioned her husband why he is spending all the amounts on drinking and how to manage the house at which time the husband beat her black and blue. At the time when the husband beating her, her children were crying. And after sometime again her husband beat her and at that time, her children intervened and questioned her husband why he is beating her. Then her husband also beat his children. Then the children went to the person s house teluguvadu . At about 11. 00 p. m. , her husband stated that he will beat the children when he objected stating that they will come on the next-day morning. Then her husband called her into the house and poured kerosene on her and when she tried to escape from him. At that time she was already doused with kerosene. When she was trying to escape from her husband, her husband lit a matchstick. She again stated that she sat in the house under the impression that he will not lit the matchstick. But he lit the matchstick and threw on her and she caught fire and when she was trying to ran out of the house, her children who are staying in the neighbours house came running and put off the fire i. e. , her daughter saved her by putting a blanket. Afterwards, her husband was present in the house and her brother brought her to the hospital. "he also stated that he recorded the dying declaration in English, but it was true translation of the statement of the injured. After completion, he had read over the statement and explained to her in Telugu. He obtained thumb impression of the patient. ( 10 ) P. W. 10 is the S. I. of Police chandarlapadu. He stated that on 21 -5-1997 at midnight when he was at the Police Station, he received intimation in Ex. P-8 from the government Hospital, Jaggaiahpet. The intimation was to the effect that a lady by name Susheela was burnt by her husband and was admitted in the hospital. He rushed to the hospital immediately and saw the woman with burn injuries. He recorded her statement between 11 and 11. P-8 from the government Hospital, Jaggaiahpet. The intimation was to the effect that a lady by name Susheela was burnt by her husband and was admitted in the hospital. He rushed to the hospital immediately and saw the woman with burn injuries. He recorded her statement between 11 and 11. 30 p. m. He read over the matter to the injured. After it was found correct, he obtained her thumb impression and same is Ex. P-12. At the time of examining the injured, the doctor was present and endorsed on Ex. P-12 that the victim was in a position to state about the incident and she was conscious. Then he returned to the Police Station, registered the crime on the basis of statement of the victim, then he submitted the F. I. R. to the Court and copies of F. I. R. were sent to all concerned officers. He again went to the hospital and recorded the statements of some of the witnesses. He also recorded the statement of Susheela under Section 161 Cr. P. C. In the cross-examination he stated that the distance between Police Station and Jaggaiahpet was about 5 kilometres. It took 15 minutes for him to go to the hospital on a Scooter. He received the message from the hospital at about 10. 45 p. m. He admitted it to be true that he mentioned in the F. I. R. Ex. P-13 that he received intimation from the hospital at 12 in the midnight. He reached the hospital at 11. 30 p. m. after receiving the intimation from the hospital. In the hospital, the victim, her daughter and two more male members were present. The victim was in a position to speak. By the time he went she was not talking to anybody. He was the first person to record the statement of the deceased. He stated that as far as he remembers, the hands and fingers of the victim were not burnt. He stated that in Ex. P-12 the victim stated;"i am originally belongs to Tellaballi village of Kodad Mandalam, Nalgonda district. Myself and my husband came to my brother two months back, for the brick work of Ravulapenta Narsaiah. My husband used to beat me whenever he consumed drink. On 21 -5-97 at about 11 p. m. my husband came in a drunken state. I questioned for him drinking. Myself and my husband came to my brother two months back, for the brick work of Ravulapenta Narsaiah. My husband used to beat me whenever he consumed drink. On 21 -5-97 at about 11 p. m. my husband came in a drunken state. I questioned for him drinking. Then my husband pored kerosene on my body and lit a match on me. The fire coming out. I cried. My body was burning from face to knee. On hearing my cries my neighbours Pasupuleti venkataratnam, Muthyala Mangaiah, pasupuleti Venkaiah and others came to me. My daughter covered my body with a blanket. My brother Ravulapenta prakasam took me to the Government hospital, Jaggaiahpeta on a tractor and admitted in the hospital. I have two male children and one daughter. My husband due to drinking he acted like this. I have narrated what was happened when the police recorded my statement. The statement is read over to me and correct. " ( 11 ) P. W. 11 was the concerned Circle inspector of Police at the relevant time, who investigated the case after the death of the deceased, made an observation report of the scene of occurrence, got conducted inquest and sent the body for post-mortem, examined the witnesses and filed charge-sheet. ( 12 ) P. W. 12 was the Sub-Inspector of police, who arrested the accused on 16-6-97 at 3 p. m. He brought him to the Police Station, searched him and sent him for remand. No mediator s report was written at the time of arrest. On 1-8-97 at 10 a. m. , he received death report of Susheela from her brother. Then he altered the Section of law from 307 of I. P. C. to Section 302 of I. P. C. under the instructions of Circle Inspector of Police. ( 13 ) THE learned Counsel appearing for the appellant submits that on the basis of dying declarations alone it is not safe to convict a person when the deceased died after three months of the occurrence. She also contends that according to the investigating Officer, a statement was recorded under Section 161 of Cr. P. C. also, but it was not marked. The Investigating officer P. W. 10 stated that on 21-5-97 he received an intimation from the Government hospital, Jaggaiahpet vide Ex. P-8. Ex. She also contends that according to the investigating Officer, a statement was recorded under Section 161 of Cr. P. C. also, but it was not marked. The Investigating officer P. W. 10 stated that on 21-5-97 he received an intimation from the Government hospital, Jaggaiahpet vide Ex. P-8. Ex. P-8 does not bear any time, but according to him, he recorded the statement of the victim in ex. P-12 between 11 p. m. and 11. 30 p. m. Obviously he had received the message in ex. P-8 priorto this. Because of this message, he came to the hospital, but surprisingly on the basis of that message, he did not register any case and he registered the case in Crime no. 89 of 1997 under Section 307 of I. P. C. at 12midnight. F. I. R. Ex. P-13gives the contents of the complaint under column 12 as under:"on 21-5-97 at about 11. 00 p. m. husband of complainant drunk came to me and beat and on 21-5-97 he fully drunk and came and then I asked him "why you have drunk" my husband poured kerosene on me and lit matchstick and thrown on me. For that my body from face to legs upto knees burnt. Then my elder brother ravulapenta Prakasam got admitted in government Hospital, Jaggaiahpet. It appears that the case has been registered on the basis of Ex. P-12. In Ex. P-11, another incident was introduced, allegedly by the deceased. In Ex. P-12 she did not speak of any incident having occurred at 5 p. m. In ex. P-12 the deceased supposed to have said that her husband came to the house in a drunken state on 21-5-97 at 11 p. m. , but in ex. P-11 she stated that her husband had come home at 5 p. m. , then there was a quarrel, then he had beat her and also the children and later he poured kerosene on her and set her on fire. Learned Counsel for the appellant submits that these dying declarations cannot be trusted as even the child P. W. 2 who was present in the room when the occurrence took place, has not supported the case of the prosecution therefore, benefit of doubt should have gone to the accused. He also submits that the death of the deceased was caused after 20 days of her discharge from the hospital. He also submits that the death of the deceased was caused after 20 days of her discharge from the hospital. No doctor was examined by the prosecution to show as to what was the state of health of the deceased when she was discharged. The cause of death according to the doctor who conducted the post-mortem was, "the cause of death to the best of my knowledge is due to delayed shock due to bums. "the learned counsel for the appellant submits that even the medical science would not support the theory that the deceased had died due to burns because of delayed shock because, there was no evidence that the deceased had any symptoms of delayed shock. Even p. W. 1, who claimed that he was looking after the deceased when she was discharged from the hospital, did not speak of any symptoms which would led to death by a delayed shock. She refers to the 21 st Edition of Modi s Medical Jurisprudence page at 234, wherein under the heading "immediate causes of death", we find";"1. Shock - Severe pain and marked protein rich fluid loss from extensive burns which result in increased capillary permeability cause shock and produce a feeble pulse, pale and cold skin, hypotension and collapse, resulting in death instantaneously or within 24 to 48 hours. In children it may lead to stupor and insensibility deepening into coma and death due to primary shock within 48 hours. Shock may also occur from fright before the individual is affected by burns, if his heart is weak or diseased. If death does not occur from shock, it may subsequently occur from toxcemia due to the absorption of toxic products from the injured tissues in the burned area. In this condition the temperature rises perhaps to 104 F, the pulse rate increases in frequency, and restlessness supervenes and passes into unconsciousness and death due to delayed shock. "she contends that obviously the patient did not die of shock and in the case of delayed shock, the pulse rate increases in frequency, restlessness supervenes, temperature runs up to 104 F, patient passes into unconsciousness and death. There is no evidence that this had happened. ( 14 ) SINCE we have not been able to believe the dying declarations pressed into service, we allow this appeal. The conviction and sentence passed by the trial Court is set aside. There is no evidence that this had happened. ( 14 ) SINCE we have not been able to believe the dying declarations pressed into service, we allow this appeal. The conviction and sentence passed by the trial Court is set aside. The appellant shall be released forthwith if not required in any other case. The appellant is entitled for refund of fine amount paid if any.