A. GOPAL REDDY, J. ( 1 ) APPELLANT- Smt. Fatima (A1) w/o. late Mohd. Dastagiri (deceased) calls in question the legality of the judgment rendered by the Special Judge for the trial of offences under Scheduled Castes and Scheduled tribes (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, secunderabad in S. C. No. 471 of 2004 dated 16-5-2005, convicting the appellant for the offence under Section 302 IPC and sentencing her to life imprisonment and to pay fine of Rs. 100/-, in default to suffer simple imprisonment for six months. ( 2 ) THE accusation which led to the trial of the appellant (A1) and her elder sister-Smt. Doulat Bee (A2) was that on 7-10-2003 due to petty quarrel between the appellant and her husband (deceased), A2 doused kerosene on the deceased and a1 lit the match stick, due to which he received burn injuries and while undergoing treatment he succumbed to injuries. ( 3 ) THE prosecution story briefly stated as under : Appellant, deceased and the material witnesses are residents of secunderabad. The deceased, who was working as auto driver married A1 one and half years prior to the date of incident. A2 is the sister of A1 and sister-in-law of the deceased. The deceased along with A1 was residing in a rented house at New boiguda, Secunderabad and since the marriage both of them were fighting on petty issues. On 7-10-2003 at 12 noon deceased picked up a quarrel with his wife (A1) in the presence of A2; A2 abused him and doused kerosene; for which the deceased put his wife and child in the bedroom and bolted out side and went to attend calls of nature. Later, A1 threw a litted matchstick through a window from the bedroom on his body; as a result of which his body caught in flames. He shouted for help, came out of his house and fell down on the road. Neighbours poured water on him and informed to his in laws. Immediately his brother-in-law Moin Bhai (P. W. 2) came to the spot and shifted the deceased to gandhi Hospital. P. W. 8, the Head Constable, who received the telephone message from the Gandhi Hospital, recorded the statement of the injured covered by Ex. P2 and handed over the said statement to P. W. 6-Sub-Inspector of Police at 5. Immediately his brother-in-law Moin Bhai (P. W. 2) came to the spot and shifted the deceased to gandhi Hospital. P. W. 8, the Head Constable, who received the telephone message from the Gandhi Hospital, recorded the statement of the injured covered by Ex. P2 and handed over the said statement to P. W. 6-Sub-Inspector of Police at 5. 30 p. m. On which basis P. W. 6 registered a case in Cr. No. 373 of 2003 under Section 307 IPC and handed over the case for investigation to PW. 7 who in turn sent a requisition-Ex. P4 to p. W. 1-Magistrate for recording the dying declaration of the victim. P. W. 9-Inspector of police on receiving the death intimation message from the Hospital authorities altered the section of law from Sections 307 to 302 ipc and issued altered FIR covered under ex. P12, visited the scene of offence, held inquest over the dead body of the deceased and sent the dead body to post-mortem examination. P. W. 11 who conducted autopsy over the dead body of the deceased opined that cause of death was shock due to burns. The police after completion of investigation, and after receiving relevant reports and documents laid the charge-sheet for the offence under Section 302 read with section 34 IPC against the appellant (A1)and her sister-Doulath Bee (A2 ). ( 4 ) THE accused denied the charge and claimed for trial. ( 5 ) IN order to prove the accusation made against the accused, prosecution examined eleven witnesses-P. Ws. l to 11 and marked fourteen documents-Exs. P1 to P14. On behalf of defense, statements of the witnesses under Section 161 Cr. P. C. are marked as Exs. Dl to D3 but no oral evidence was adduced. ( 6 ) ON completion of the trial and on analyzing the oral and documentary evidence the learned Sessions Judge found A1 guilty of the offence under Section 302 IPC and sentenced her to imprisonment for life; A2 was found not guilty and accordingly she was acquitted of the charge. Dl to D3 but no oral evidence was adduced. ( 6 ) ON completion of the trial and on analyzing the oral and documentary evidence the learned Sessions Judge found A1 guilty of the offence under Section 302 IPC and sentenced her to imprisonment for life; A2 was found not guilty and accordingly she was acquitted of the charge. ( 7 ) SRI C. Padmanabha Reddy, learned Senior Counsel appearing for the appellant submitted that there is no direct witness to the occurrence and the entire case rests only on circumstantial evidence and dying declarations made by the deceased is contradicting from oral declaration made to the doctor were he declared that it is accidental burns when stove burst at the house. The medical record was suppressed and the doctor, who recorded the statement, was not examined by the Investigating officer-P. W. 9. Apart from the statement recorded by P. W. 8-Head Constable on which basis crime was registered the statement recorded by P. W. 7 was not made available to the prosecution. The material divergences in the four dying declarations and the independent evidence of P. W. 3 do suggest that the genesis of prosecution is suppressed. Therefore, the accused is entitled to benefit of doubt. ( 8 ) LEARNED Additional Public Prosecutor while sustaining the judgment contended that both the dying declarations made to PWs. 8 and 10 disclose that it is the accused lit the matchstick and throw on the deceased through the window, knowing fully the said act would result in burns, as deceased was doused with kerosene. Once the said dying declaration inspires confidence, lower Court rightly convicted the accused, which needs no interference. ( 9 ) IN view of rival submissions, the point that arises for consideration is : "whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and dying declarations, can be relied on to convict the accused in the absence of any other corroboration. " ( 10 ) IT is settled law that dying declaration must inspire full confidence in its truthfulness and correctness and dying declaration can be sole basis for conviction if it inspires confidence. nemo moriturus praesumitur mentire a man will not meet his maker with a lie in his mouth. The statement made before the police by the deceased can be treated as dying declaration. nemo moriturus praesumitur mentire a man will not meet his maker with a lie in his mouth. The statement made before the police by the deceased can be treated as dying declaration. In the case on hand, there are no direct witnesses to the occurrence and the entire case rests only on circumstantial evidence and dying declarations. ( 11 ) IT is settled principle that circumstantial evidence must be complete and incapable of explanation on any other hypothesis except that of the guilt of the accused and such evidence shall not only be consistent with the guilt of the accused but should be in consistence with his innocence. (See Reddy Sampath Kumar v. State of A. P. , AIR 2005 SC 3478 ). ( 12 ) IN the light of the same, we shall now examine the prosecution evidence. ( 13 ) P. W. 1 who is the brother of the deceased stated that deceased used to live in Bholakopur, Secunderabad; on receiving telephone message that deceased received injuries he went to the Gandhi Hospital and enquired the deceased what happened; deceased informed him that when he reached his house A1 was not present in the house and subsequently when she came he slapped for her non-availability in the house; then she went out of the house and called A2; A2 came and questioned the deceased as to why he beat A1; then the deceased informed that he beat her since she was not present in the house by the time he return; then A2 poured kerosene and A1 set fire. He raised cries to save him. P. W. 2 put off flames and admitted in gandhi Hospital. He admitted by the time he reached to the Hospital at 6. 30 p. m. , police personnel were present there. During the said period the Magistrate also visited the deceased at 12. 00 mid night and asked him to stay there, and questioned the deceased in Telugu and the person behind the Magistrate translated the questions in Urdu, deceased replied in Urdu. The said translator translated the same in telugu to the Magistrate. Within 15 to 20 minutes of his arrival to the Hospital, the head Constable-P. W. 8 recorded the statement of the deceased and he did not remember whether any other police official recorded the statement of the deceased. The said translator translated the same in telugu to the Magistrate. Within 15 to 20 minutes of his arrival to the Hospital, the head Constable-P. W. 8 recorded the statement of the deceased and he did not remember whether any other police official recorded the statement of the deceased. ( 14 ) P. W. 2 who took the deceased to the hospital stated that the deceased informed that he himself set fire but declared hostile, as he did not support prosecution version. ( 15 ) P. W. 3 who is the neighbour of Al and deceased stated that A1 and deceased used to live amicably; on 7-10-2003 there was a quarrel between A1 and her husband (deceased), he pacified the same and went to his house; thereafter, he found the deceased going out with a can and while leaving the house he wrote a phone number on the wall and asked him to intimate his brother-P. W. 1 if anything happens. Later, he heard commotion, came out of the house and found the deceased with burns, by then flames were put off. He does not know how the deceased received the burn injuries. In the cross-examination he deposed that he threatened the deceased not to set fire himself and if there was any need, he could go to his maternal house. He also admitted that he stated to the police they all peeped into the house of the deceased and found an inside room was locked from outside; when A1 was inside the said room she cried to save and pulled the door forcibly and on account of the same, the door fell down and then A1 along with her child ran out. Immediately he informed the same to P. W. 2 and brought him and his mother. He admitted that he stated to the police that deceased himself might have poured kerosene and set fire, having put his wife in a room and locked it from the outside. ( 16 ) P. W. 4 who is the mediator to the scene of observation report stated that in his presence police need not secure any photographs. ( 17 ) P. W. 5 is the mediator to the inquest report-Ex. P2 along with Jaffar. ( 18 ) P. W. 6, the Sub-Inspector of Police who registered the case in Cr. No. 373 of 2003 stated that on 7-10-2003 at about 5. ( 17 ) P. W. 5 is the mediator to the inquest report-Ex. P2 along with Jaffar. ( 18 ) P. W. 6, the Sub-Inspector of Police who registered the case in Cr. No. 373 of 2003 stated that on 7-10-2003 at about 5. 20 p. m. , the statement of the deceased was recorded by the Head Constable-P. W. 8 and handed over to P. W. 7. ( 19 ) P. W. 7, the Sub-Inspector of Police stated that on receipt of case file he sent a requisition to the Magistrate to record dying declaration of the injured and proceeded to scene of offence; posted one police constable to guard the scene; proceeded to the Gandhi Hospital, examined the injured and recorded his statement. He also recorded the statements of p. Ws. 1,2, 3 and others, got photographed the scene of offence. Exs. P5 to P9 are the photographs. On receipt of death intimation, he altered the section of law from sections 307 to 302 IPC and handed over the case to Inspector of Police-P. W. 9. He admitted that he did not mention in Ex. P4 requisition that the victim stated that the accused set fire to him. He admitted that p. Ws. 2 and 3 and other neighbours stated in their statements that the victim was proclaimed to set fire to himself and on hearing commotion, went into the house of the deceased who was present outside with burns and A1 was inside a room that was latched from outside and after their reach A1 came out by pushing the door forcibly. After recording the statement by p. W. 8, he was the first police officer who visited the Hospital. ( 20 ) P. W. 8, the Head Constable who received the message deposed that he informed to the Sub-Inspector of Police and proceeded to Gandhi Hospital and approached the deceased who is in male burns ward and recorded his statement covered under Ex. P2 (a ). ( 21 ) P. W. 9, Inspector of Police conducted inquest over the dead body of the deceased and during the course of enquiry he recorded the statement of P. W. 2 and mediators who opined that the injured died due to burn injuries. P2 (a ). ( 21 ) P. W. 9, Inspector of Police conducted inquest over the dead body of the deceased and during the course of enquiry he recorded the statement of P. W. 2 and mediators who opined that the injured died due to burn injuries. ( 22 ) P. W. 10, the Magistrate on receipt of requisition from the police went to the gandhi Hospital and recorded the dying declaration of the injured on satisfying that he was in fit state of mind to make declaration. ( 23 ) THE above evidence clearly discloses that the prosecution mainly relied upon dying declarations recorded by P. Ws. 8 and 10. ( 24 ) P. W. 8-HEAD Constable recorded the dying declaration of the deceased covered by Ex. P2 (a), which reads thus : ". . . . . . . Today i. e. on 7-10-2003 at 12. 00 a. m. I had a little disputed i. e. quarrel with my wife. My sister-in-laws name is Doulath w/ o Irfan age 35 years. She rebuked me with filthy words. Immediately my sister-in-law brought kerosene oil and poured on my body and has gone. My wife immediately rebuked me with filthy words. Having stayed in angry mood took my wife and daughter and locked them in bedroom and have gone out to meet the calls of nature. Soon I have come from outside, my wife has lit the matchstick and thrown it on my body through the window of the bedroom. I immediately came out from the house and cried loudly. Then my neighbours brought cool water in pots and poured on me. Then immediately my brother-in-law Main Bhai came to me and took me to Gandhi Hospital and admitted me in burns ward. . . . . . " ( 25 ) IN the dying declaration recorded by the Magistrate-P. W. 10 the deceased stated as under : "today my auto is not in working condition and I am getting it repaired. As about 12 noon I came to my house. I asked my wife to arrange water. She did not do so. So i have beaten my wife, for which she along with her younger sister Doulat rebuked me and beaten me and she poured kerosene on me. I came out and passed urine. As about 12 noon I came to my house. I asked my wife to arrange water. She did not do so. So i have beaten my wife, for which she along with her younger sister Doulat rebuked me and beaten me and she poured kerosene on me. I came out and passed urine. Afterwards, my wife has fired the fire stick and thrown on me and it has set fire my body. Then my elder brother-in-law Moin came and put off the fire. He brought me to this hospital. " ( 26 ) IN the earliest statement recorded by P. W. 8 the deceased admitted that A2 poured kerosene on his body and gone, his wife-A1 rebuked in filthy words and having stood in angry mood took A1 (wife) and daughter and locked them in bed room and went to attend the calls of nature. Soon after he came outside, his wife-A1 lit the matchstick and thrown on his body. He immediately came out of the house and cried loudly. The said fact has not been stated in the dying declaration recorded by the Magistrate. Further, the evidence of p. W. 1 before whom the deceased disclosed the incident proper has not stated about his locking the wife and daughter in the bedroom. Whereas P. W. 3 admitted that when they went to the house of the deceased they found inside room was locked, A1 was inside the room and she was crying to save her and pulling the door forcibly and on account of the same the door fell down and she ran out from the house. P. W. 7 also admitted that P. Ws. 2 and 3 and other neighbours stated in their statements that the victim was proclaiming to set fire himself and present outside the house with burns and A1 was inside the room and after their arrival A1 came out by breaking the door. ( 27 ) IN view of the above, it is obvious that the Investigating Officer should have drawn the sketch proper about the possibility of A1 throwing the lit matchstick through the window when she was locked inside the room. Further, the scene of observation report-Ex. P1 discloses that the house is facing on northern direction and having two rooms. The first room is used as kitchen. Further, the scene of observation report-Ex. P1 discloses that the house is facing on northern direction and having two rooms. The first room is used as kitchen. There is bathroom in the first room to the north-western walls with southern side opening. The northern wall is having 2 small ventilators on either side of the main door. On entering into the second room they observed that it is used as bed room. A broken door of room lying on the floor on the second room. The southern wall of the second room is having a window with 2x2 measurements, which is found closed. Therefore, there is no possibility of throwing the matchstick from the window, which is on the backside of the house on southeast side whereas bathroom is on the front side of the house on north-western side. The burnt matchbox and another chappal was found in front of second room door, which is facing northern direction. So accused litting the matchstick and threw from the window is doubtful, admittedly, she was locked in the bedroom. ( 28 ) HAVING carefully gone through the entire evidence, we are of the view that the prosecution, miserably failed to explain the possibility of Al lit the matchstick and threw through the window. The dying declaration recorded by the Magistrate has not been corroborated with the dying declaration recorded at the earliest point of time by P. W. 8 in all respects. Further, though P. W. 2 declared hostile, deposed that the deceased stated that he himself set fire. So also, P. W. 7 admitted that P. Ws. 2 and 3 and other neighbours stated in their statements that the deceased was proclaiming to set fire to himself. In view of the same, prosecution failed to prove the circumstances to connect the accused with the offence proper. Since the dying declarations do not inspire full confidence in its truthfulness and correctness, it is unsafe to convict the accused for the offence solely basing upon them. Therefore, we are inclined to give benefit of doubt to the accused. ( 29 ) IN the result, appeal is allowed. The conviction of A1 for the offence under section 302 IPC and the sentence of imprisonment for life and fine imposed on her are set aside and she is acquitted of the said offence. Therefore, we are inclined to give benefit of doubt to the accused. ( 29 ) IN the result, appeal is allowed. The conviction of A1 for the offence under section 302 IPC and the sentence of imprisonment for life and fine imposed on her are set aside and she is acquitted of the said offence. She shall be set at liberty forthwith, if she is not required in any other crime.