JUDGMENT T. Meena Kumari, J. The present appeal is preferred by the appellant-sole accused against the conviction and the sentence imposed for the offence under Section 302 IPC by the learned Special Judge-cum VI Additional Metropolitan Sessions Judge, Secunderabad, in Sessions case No. 446 of 2003 on 19-02-2004. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: 3. 'One Mahamooda alias Krishnu (for short 'the deceased') deserted her husband and was living with the accused, who was already married, as his wife for the last 12 years priorto her death and begot two children through the accused. The accused had disputes with his first wife and abstained from going to the house of his wife for the last two months prior to the incident. 4. While so, on 23-2-2003 at about 13.30 hours, the accused went to the house of the deceased in drunken state and caused nuisance. When the deceased objected, he poured kerosene on her and set fire to her. On hearing cries, the neighbours came there and put off the flames and shifted her to the hospital. On the basis of the statement of the deceased, a case in crime No. 69 of 2003 was registered and investigated into. On 27-2-2003 at bout 6.50 a.m., the deceased succumbed to burns while undergoing treatment. 5. During the course of the investigation, inquest and postmortem examination were held over the dead body of the deceased. After completion of the investigation, a charge sheet has been filed. 6. After filing the charge sheet, the learned X Metropolitan Magistrate, Secunderabad committed the same to the Court of Sessions. The learned Sessions Judge took the case on file as Sessions Case and made over the same to the learned VI Additional Metropolitan Sessions Judge, Secunderabad, for disposal. 7. The charge leveled against the appellant-accused is as follows: "On or about 23rd day of February, 2003 at about 12.00 hours at house bearing No.11-1-624/E 61/8, Chintabavi, Chilakalaguda, Secunderabad, the accused did commit murder by intentionally causing the death of Krishna Bai alias Mahamoodaa, by pouring kerosene on her and setting fire to her, as a result of which, she succumbed to burn injuries on 27-2-2003 at about 6.50 a.m., in Gandhi Hospital, Secunderabad while undergoing treatment and thereby committed an offence punishable under Section 302 IPC." 8. When the charge was read over and explained to the accused, he pleaded not guilty. 9. In order to substantiate its case, the prosecution examined P.Ws 1 to 12 and got, marked Exs.P-1 to P-14 besides M.Os 1 to 3. After the closure of the prosecution evidence, the accused was subjected to examination under Section 313 Cr. P.C., by putting incriminating evidence brought on record against him. The plea of the accused is of total denial. The daughter of the deceased was examined as D.W.1 and no documents were marked on behalf of the accused. 10. On appreciation of the oral and documentary evidence, the learned Judge having found the accused guilty of he charge under Section 302 IPC, convicted and sentenced him to undergo life imprisonment and to pay a fine of Rs.100/- in default, to suffer simple imprisonment for one month. Having aggrieved by the same, the appellant-accused preferred the present appeal. 11. Heard Sri B.V. Ram Naresh Kumar, learned Advocate, who has been appointed as State Brief and also the learned Public Prosecutor appearing for the State. 12. The learned Counsel for the appellant vehemently contended that the dying declarations in question are not consistent and hence, much significance cannot be attached to them. It is further contended that the judgment under appeal is only on surmises adconjectures. It is further contended that except the dying declarations, which are inconsistent, there is no iota of evidence either oral or circumstantial to incriminate the accused and therefore, the conviction and the sentence, which are based on mere surmises and conjectures do not sustain and are liable to be set aside. 13. On the other hand, the learned Public Prosecutor contends that the dying declarations are consistent and therefore, the trial Court is justified in convicting and sentencing the appellant accused and hence, the judgment under appeal does not warrant any interference of this Court. 14. In the instant case, the prosecution relied upon the circumstances Viz., (i) Nature of death and (ii) dying declarations. 15. Insofar as the nature of the death of the deceased is concerned, the evidence of P.W. 3 Medical Officer, who conducted autopsy over the dead body of the deceased and who issued Ex.P-2 post mortem report, and inquest mediator viz., P.W. 5 and Ex.P-5 inquest report, is relevant for consideration. 16. 15. Insofar as the nature of the death of the deceased is concerned, the evidence of P.W. 3 Medical Officer, who conducted autopsy over the dead body of the deceased and who issued Ex.P-2 post mortem report, and inquest mediator viz., P.W. 5 and Ex.P-5 inquest report, is relevant for consideration. 16. The testimony of P.W.3 Medical Officer goes to show that the deceased sustained 65% burns and the cause of the death of the deceased was due to burns. Nothing has been elicited from his cross-examination so as to disbelieve his evidence and the recitals in Ex. P-2 P.M. report. Therefore the evidence of P.W.3 and Ex.P-2 P.M. report remained unchallenged. 17. The testimony of P.W.5 coupled with Exs.P-5 inquest report and the medical evidence, makes it clear that the death of the deceased was due to burns sustained by her. 18. From the above evidence, it is clear that the deceased died of burns sustained by her. 19. Coming to the question as to whether the appellant-accused is responsible for the death of the deceased, the evidence of P.Ws. 1, 2 and 5 and the dying declarations is relevant for consideration. 20. Before going to deal with the merits of the case, it is pertinent to note that the accused was admittedly a married person. But, according to the prosecution, he was a paramour and the deceased was his concubine. Therefore, the incident in question is nothing but an out come of an extra marital life. 21. P.W.1, who is a neighbour to the deceased, deposed that the deceased deserted her husband and used to reside with the accused as his kept mistress. According to her the accused and the deceased used to quarrel with each other. About 9 months ago, on one Sunday, the accused was available in the house. While P.W.1 was sitting in his house, the deceased came out with flames and on enquiry, she revealed that the accused poured kerosene on her and set fire. In her cross-examination, she deposed that the deceased married the accused. According to her. She alone was present at that time. 22. P.W.2 who is also a neighbour to the deceased, deposed that the deceased having deserted her husband, started living with the accused as kept mistress and begot two children. According to her, both the accused and the deceased used to consume alcohol. According to her. She alone was present at that time. 22. P.W.2 who is also a neighbour to the deceased, deposed that the deceased having deserted her husband, started living with the accused as kept mistress and begot two children. According to her, both the accused and the deceased used to consume alcohol. On the date of incident, when the deceased came out with flames, she enquired and then, the deceased informed her that the accused poured kerosene and set fire. 23. The evidence of P.Ws. 1 and 2 is not consistent in material particulars. According to P.W.1 she alone was present at that time. P.W. 2 also did not speak about the presence of P.W. 1 at that time. Both P.Ws.1 and 2 deposed that the accused and his daughter took the deceased to the hospital. 24. P.W. 5, who is also resident of the locality in which the deceased resided, deposed that he went to the hospital to see the dead body of the deceased. Except that, he did not say anything. 25. In view of the inconsistency in the evidence of P.Ws.1 and 2 as to the presence of each other at the relevant time of incident and in view of their evidence that both the accused and his daughter brought the deceased to the hospital, We feel that their evidence does not lend any support to the case of the prosecution. 26. Now, there remains the dying declarations Viz. Ex. P-8 recorded by P.W. 8 Head Constable, Ex.P-9 recorded by P.W.9 Sub-Inspector of Police and Ex. P-14 recorded by P.W.12 the learned Magistrate, for consideration. 27. Ex. P-8 recorded by P.W. 8, Head constable at 15.30 hours on 23-2-2003 at about 15.30 hours goes to show that on the date of incident, the accused came to the house in a drunken condition and started to create nuisance in the house, for which the deceased objected on that, he became angry and beat her mercilessly, picked up a kerosene bottle from the corner and poured on her and set fire. On hearing her cries, the neighbours came for her rescue and shifted her to the hospital. According to Ex.P-8 after the incident, the accused ran away from the scene. 28. On hearing her cries, the neighbours came for her rescue and shifted her to the hospital. According to Ex.P-8 after the incident, the accused ran away from the scene. 28. Ex.P-9 recorded by P.W.9, S. 1 of Police on 23-2-2003, goes to show that on the date of incident, the accused came to the house in a drunken condition and started to create nuisance in the house, for which the deceased objected. On that, he became angry and beat her mercilessly, picked up a kerosene bottle from the corner and poured on her and set fire. On hearing her cries, the neighbours came for her rescue and shifted her to the hospital. According to Ex/.P-9 also after the incident, the accused ran away from the scene. 29. Ex. P-14 recorded by P.W.12 the learned Magistrate on 23-2-2003 at 4.30 p.m., goes to show that on the date of incident at about 12 noon, the accused poured kerosene on her at her residence and lit fire. He did the same after beating her. 30. According to P.Ws. 1 and 2, the incident took place at about 3.00 or 4 p.m., on that day whereas the dying declarations go to show that it took place at 12 noon. According to these witnesses, the accused and his daughter shifted the deceased to the hospital whereas according to the dying declarations the accused filed away after setting fire to the deceased. 31. Thus, a perusal of the evidence of the eye witnesses and the dying declarations, makes it clear that there is inconsistency as to the actual time of the incident and presence of each witness as well as the accused. 32. As a matter of law. If there is no consistency in all the dying declarations it is not safe to base a conviction. On careful scrutiny, it is crystal clear that the dying declarations are not supported by any corroborative evidence on material particulars. Therefore, much significance cannot be attached to them. 33. The evidence of D.W.1, who is no other than the daughter of the deceased and the accused, goes to show that on the date of incident, while she was playing outside, she found her mother coming out with flames. According to her, the accused and herself took the deceased to the hospital. The testimony of D.W. 1 is corroborated by that of P.Ws. 1 and 2. 34. According to her, the accused and herself took the deceased to the hospital. The testimony of D.W. 1 is corroborated by that of P.Ws. 1 and 2. 34. In view of the evidence of P.Ws. 1 and 2 coupled with that of D.W.1 who is no other than the daughter of the deceased born through the accused and in view of the inconsistency in the dying declarations as to the material particulars and the time of incident, we feel that much sanctity cannot be attached to the dying declarations. Apart from that, admittedly, the oral evidence adduced by the prosecution does not lend any support to the case on hand. 35. In the above facts and circumstances of the case, We have no hesitation to hold that the Court below has failed to consider all these aspects. Therefore the conviction and the sentence imposed by the Court below. Are liable to be set aside. 36. In the result, the conviction and the sentence imposed by the learned Special Judge for the Trial of offences under the SCs & STs (Prevention of Atrocities) Act-cum VI Additional Metropolitan Sessions Judge, Secunderabad against the appellant accused for the offence under Section 302 IPC vide Calendar and Judgment dated 19-2-2004 in Sessions case No. 446 of 2003 are set aside, and he is acquitted of the charge leveled against him under Section 235(1) Cr. P.C. 37. Appellant-accused shall be set at liberty forthwith, if he is no longer required in any crime. 38. Fine amount, if any paid by the appellant-accused, shall be refunded after expiry of statutory period. 39. M.Os 1 to 3 and unmarked property, if any, shall be destroyed after expiry of appeal time. 40. Accordingly, the Criminal Appeal is allowed.