Judgment M. G. GAIKWAD, J. ( 1 ) THE appellant stands convictred for an offence punishable under section 302 of the I. P. C. on the ground that on 20. 11. 2004 at 7. 00 a. m. the appellant had poured kerosene on Neeta and had set her ablaze. For the aforesaid offence, the appellant has been sentenced to be hanged till death by the II Additional Sessions Judge, Jalna, by judgment dated 25. 4. 2005 in Sessions Case No. 1 of 2005. Trial Court has accordingly made a reference to this Court for confirmation of the sentence of death passed on the appellant. The appellant has filed Criminal Appeal No. 306 of 2005 challenging his conviction and sentence and praying for acquittal. Since both these matters arise from the same judgment of the trial Court, the Confirmation Case and the appeal filed by the appellant are being decided by this common judgment. ( 2 ) AS stated by us earlier, the appellant stands convicted for an offence punishable under section 302 of the I. P. C. and is sentenced to be hanged till death. The appellant is alleged to have committed murder on 20. 11. 2004 at 11. 00 a. m. of his mistress by name Neeta with whom the appellant was residing. The facts which emerge from the prosecution evidence and which according to us are essential for the decision of this case are stated thus: ( 3 ) P. W. 9 Shriram Pandit, Police Constable attached to Police Station kadim Jalna, was on duty at the Police Chowky of the Civil Hospital, jalna on 20. 11. 2004. One Neeta Prabhakar Salve, aged 24 years, was admitted by her relatives with burn injuries. He accordingly received the m. L. C. from the Medical Officer on duty. The said M. L. C. is at Exh. 25. P. W. 9 Head Constable Shriram Pandit accordingly informed on telephone to Police Station Kadim, Jalna, about the receipt of M. L. C. at Exh. 25 and submitted his report to the Police Station, Kadim, Jalna by visiting the police Station along with the dying declaration recorded by P. S. I. Shaikh and M. L. C. at Exh. 25. P. W. 10 Mithu Gawali, Head Constable attached to police Station Taluka Jalna, was also on duty at the Police Chowky in civil Hospital, Jalna. 25 and submitted his report to the Police Station, Kadim, Jalna by visiting the police Station along with the dying declaration recorded by P. S. I. Shaikh and M. L. C. at Exh. 25. P. W. 10 Mithu Gawali, Head Constable attached to police Station Taluka Jalna, was also on duty at the Police Chowky in civil Hospital, Jalna. He took a requisition addressed to the Executive magistrate for recording the dying declaration of injured Neeta. The said requisition is at Exh. 21. Naib Tahsildar, P. W. 5 Mrs. Sangeeta Warade, received the said requisition for recording the dying declaration at 10. 55 a. m. P. W. 11 P. S. I. Shaikh Sattar, who was attached to Police Station, Kadim jalna, as P. S. I, was apprised of the receipt of M. L. C. at Exh. 25 when the investigation was handed over and entrusted to him. He immediately proceeded to Civil Hospital, Jalna, along with the M. L. C. and the report at Exh. 31 and reached the Civil Hospital in between 10. 30 to 10. 45 a. m. As per the vernacular deposition, the timing which is given is in between 10. 30 to 10. 45 a. m. According to him, he noticed the Executive Magistrate p. W. 5 Mrs. Sangeeta Warade recording the statement of injured Neeta and then at 11. 00 a. m. he had proceeded to burns ward to record the statement of injured Neeta and had obtained the endorsement of the medical Officer, P. W. 4 Dr. Rameshchandra Sharma. The dying declaration recorded by P. W. 11 Sk. Sattar is at Exh. 34 while the dying declaration recorded by P. W. 5 Mrs. Sangeeta Warade, Naib Tahsildar, is at Exh. 23. Dying declaration at Exh. 23 was recorded in between 11. 00 a. m. to 11. 25 a. m. while on the dying declaration at Exh. 34, no time is stated but from the evidence of P. W. 11 Sk. Sattar, the said statement was recorded between 10. 50 a. m. to 11. 00 a. m. On both the dying declarations the Medical Officer, p. W. 4 Dr. Rameshchandra Sharma has given his endorsement that injured neeta was conscious and the time which is stated beneath the endorsement is 11. 00 a. m. On the basis of Exh. 34 an offence came to be registered against the appellant at 11. 00 a. m. On both the dying declarations the Medical Officer, p. W. 4 Dr. Rameshchandra Sharma has given his endorsement that injured neeta was conscious and the time which is stated beneath the endorsement is 11. 00 a. m. On the basis of Exh. 34 an offence came to be registered against the appellant at 11. 45 a. m. for offence punishable under section 307 of the i. P. C. Injured Neeta who had sustained more than 90 per cent burn injuries was initially examined by P. W. 6 Dr. Rajendra Ambhore, on her admission to the Civil Hospital, Jalna. Dr. Ambhore had recorded the history as narrated by injured Neeta as "history of burns by stove. " The copy of the m. L. C. register is at Exh. A. ( 4 ) DURING the pendency of this appeal, the appellant had submitted criminal Application No. 35 of 2006 seeking for recalling of P. W. 6 dr. Ambhore for further cross-examination with a further request for directing P. W. 6 Dr. Ambhore to keep the original M. L. C. register present before this Court. On filing of the said Criminal Application, the learned a. P. P. today, when the Confirmation Case in the appeal was called out for hearing, has tendered the Xerox copy of the extract of the M. L. C. register pertaining to deceased Neeta and has also produced before us for our perusal the original M. L. C. register. The learned A. P. P. also informed us that Dr. Ambhore, from whose custody this register was produced, was present in the Court. The learned Counsel appearing for the accused had no objection for the production of this register and accordingly the prosecution was permitted to produce the copy of the register. The learned counsel for the accused then tendered a notice to the prosecution under section 294 of Cr. P. C. calling upon the prosecution to either admit or deny the genuineness of the aforesaid documents. The learned A. P. P. submitted his reply and admitted the genuineness of the document i. e. copy of the entries in the M. L. C. register pertaining to deceased Neeta. This Court therefore marked as Exh. 1 the application for additional evidence and marked the application of the prosecution for production of the copy of the original register as Exh. 2. This Court therefore marked as Exh. 1 the application for additional evidence and marked the application of the prosecution for production of the copy of the original register as Exh. 2. We marked the notice under section 294 as Exh. 3. On comparison, when we found that the Xerox copy of the register tallied with the entries in the register, and since the prosecution had admitted the genuineness of the document, the said xerox copy was marked as Exh. A. The learned Counsel for respective parties, therefore, urged before us that Exh. A may be read in evidence in this appeal. ( 5 ) AS per Exh. A, P. W. 6 Dr. Ambhore found that injured Neeta had sustained about 90 per cent burn injuries. Thereafter she was referred to the burns ward where she was being treated and attended to by P. W. 4 dr. Sharma. Injured Neeta succumbed to her injuries on the same day i. e. on 20. 11. 2004 at 3. 30 p. m. On her death, the offence which was initially registered under section 307 of the I. P. C came to be altered to section 302 of the I. P. C. and accordingly an inquest panchanama at Exh. 38 came to be recorded. The scene of the offence panchanama at Exh. 16 had been already recorded in pursuance to the registration of the offence under section 307 of the I. P. C. in the presence of P. W. 3 Damodhar. Accused came to be arrested vide arrest panchanama at Exh. 43. Thus, further to the completion of the investigation a charge sheet against the present accused came to be filed. ( 6 ) ON committal of the case to Court of Sessions, Trial Court vide exh. 8 framed charge against the accused for offence punishable under section 302 and 504 of the I. P. C. The accused abjured his guilt and claimed to be tried. Prosecution in support of its case examined as many as 12 witnesses. From out of the 12 witnesses, P. W. I Kamlabai (landlady of accused), P. W. 2 Babulal (a neighbour of accused) did not support the prosecution fully and were declared hostile and were cross-examined by the prosecution. Prosecution in support of its case examined as many as 12 witnesses. From out of the 12 witnesses, P. W. I Kamlabai (landlady of accused), P. W. 2 Babulal (a neighbour of accused) did not support the prosecution fully and were declared hostile and were cross-examined by the prosecution. Prosecution had examined P. W. 7 Hema (sister of deceased neeta) and P. W. 8 Suvarna (mother ot deceased Neeta), both of whom deposed about the oral dying declaration being made to them at different points of time by deceased Neeta. Prosecution had examined P. W. 9 Shriram, p. W,10 Mitthu, P. W. ll Shaikh Sattar and P. W. 2 Sainath Avhad who are police Officers. Prosecution has examined P. W. 4 Dr,sharma and P. W. 6 dr. Ambhore, who are Medical Officers and P. W. 5 Sangeeta Warade, Naib tahsildar, who had recorded the dying declaration. Prosecution examined the lone panch P. W. 3 Damodhar for proving the scene of the offence panchanama at Exh. 16. Trial Court on appreciating the evidence of the prosecution witnesses found the accused not guilty for an offence punishable under section 504 of the I. P. C. but found the accused guilty for an offence punishable under section 302 of the I. P. C. and convicted and sentenced the accused as aforestated. ( 7 ) BEFORE we advert to the rival submissions advanced before us by mr. Joydeep Chatterji, learned Counsel appearing on behalf of the accused and Mr. K. G. Patil, learned A. P. P. for State, according to us, it would be essential to refer to the evidence of prosecution witnesses. ( 8 ) P. W. I Kamalbai, landlady of the accused, states that she owns a house at Ambedkar Nagar, Jalna and the accused was residing in her house as a tenant with wife Neeta. According to her, on the day of the incident at about 7. 00 a. m. , when she was sleeping in her house, another tenant named Babulal raised a hue and cry and on hearing the said hue and cry she came out of the house and had seen flames in the house of the accused. She therefore proceeded to the house of mother of Neeta i. e. P. W. 8 suvarna who was residing about 5 to 6 houses away from her house, and informed her about the incident. She therefore proceeded to the house of mother of Neeta i. e. P. W. 8 suvarna who was residing about 5 to 6 houses away from her house, and informed her about the incident. She states that she had seen Neeta covered by quilt and sister of Neeta, P. W. 7 Hema, who had come to the scene of the offence had taken Neeta to Civil Hospital, Jalna. She has denied portion marked "a" in her statement recorded during investigation that injured neeta had made disclosure to her about how Neeta had sustained the burn injuries. P. W. 2 Babulal, another tenant of P. W. I Kamalbai, states that on the day of the incident at about 7. 00 a. m. he had heard some noise and on hearing the noise he came out of his house. At that time he had seen flames coming from the house of the accused. The accused had extinguished the flames on the person of Neeta by wrapping a Quit around her. He states that P. W. 1 Kamalbai had gone to call sister of Neeta and after arrival of sister of Neeta (P. W. 7 Hema) injured Neeta was taken to the hospital at Jalna. He too was confronted with portion marked "a" from his statement recorded during investigation relating to the alleged disclosure made by Neeta to him and he has denied to have stated so. In cross-examination on behalf of the accused, he has stated that he had seen flames coming from the house of accused and thereafter accused had come there and put a quilt on the person of deceased Neeta. He has stated that he had not heard any quarrel between accused and Neeta at any time. Thus, both these witnesses of the prosecution do not support the prosecution. However, from the evidence of P. W. I Kamalbai, it is clear that the accused was present in the house on the day of the incident at 7. 00 a. m. ( 9 ) PROSECUTION has examined P. W. 3 Panch Damodhar Dhotre, a panch witness to the scene of the offence panchanama at Exh. 16. The scene of the offence is a room which been taken on rent by the accused admeasuring 9 Ft. x 12 Ft. Inside the room, there was an iron cot and other articles were kept on an iron rack. 16. The scene of the offence is a room which been taken on rent by the accused admeasuring 9 Ft. x 12 Ft. Inside the room, there was an iron cot and other articles were kept on an iron rack. Near the rack a burnt quilt was noticed and some burnt pieces of clothes were also seen. An iron stove containing some kerosene oil as well as half burnt match box was also found. All these articles came to be seized by the scene of the offence panchanama at exh. 16. ( 10 ) P. W. 7 Hema Shashikant Ghule, sister of deceased Neeta states that P. W. I Kamalbai had come to her house and had informed P. W. 7 Hema that husband of Neeta had set her ablaze. On hearing this, she had rushed to the scene of the incident and had noticed that Neeta had received severe burn injuries and was covered by a guilt. She had seen the accused standing near Neeta. Accused thereatter fled from the house when P. W. 7 Hema was taking Neeta to the Civil Hospital, Jalna for treatment. Sue further states that she and her brother-in-law by name Vishal had admitted Neeta in civil Hospital, Jalna. On way to the hospital at Jalna, P. W. 7 Hema had questioned Neeta as to how she had sustained burn injuries and Neeta had replied that her husband had set her on fire. Neeta had also stated that the accused had fulfilled his desire. She states that Neeta was thereafter admitted in the hospital and had talked with her mother P. W. 8 Suvarna and her brother-in-law about the incident. Neeta is alleged to have also informed her brother about the incident. P. W. 7 Hema further states that neeta succumbed to her injuries at about 3. 30 p. m. and the dead body of neeta was then taken to the house of P. W. 8 Suvarna where the last rites were performed. P. W. 7 Hema further states that Neeta and the accused were residing together as husband and wife though Neeta was not married to the accused. Accused had promised to marry her. 30 p. m. and the dead body of neeta was then taken to the house of P. W. 8 Suvarna where the last rites were performed. P. W. 7 Hema further states that Neeta and the accused were residing together as husband and wife though Neeta was not married to the accused. Accused had promised to marry her. According to Hema there used to be frequent quarrels between accused and Neeta on the ground that the accused was insisting Neeta not to work as a Nurse and neeta used to tell the accused not to visit the house of his wife. Wife of accused was residing at T. V. Center, Jalna. In cross-examination on behalf of the accused, P. W. 7 Hema has admitted as true that Dr. had inquired from Neeta when she was admitted in the hospital, Hema has also admitted as true that on query made by the Doctor, Neeta had given answers about the incident. She has further admitted as true that on admission of Neeta in the hospital, mother, brother and sister-in-law visited the hospital within 10 to 15 minutes. According to her one Rajendra Bharati who is a leader and runs an Institute has also visited the Civil Hospital, Jalna. She has further admitted that she had met the police and the Doctor when she had gone to the hospital to meet Neeta. According to her she had informed the Doctor and the Police what was narrated to her by Neeta. She has admitted that the following statements do not appear in her statement recorded during investigation. (i) That theaccused ran away from the scene of the incident when hema was taking Neeta to the hospital for treatment. (ii) That Neeta informed her that accused had set her (Neeta) on fire and that the accused had fulfilled his desire. (iii) That the accused had promised to marry Neeta. P. W. 7 Hema was unable to ascribe any reason as to why the aforesaid statements did not find place in the statement recorded during investigation. 10. P. W. 8 Suvarna Nirmal, mother of deceased Neeta and of P. W. 7 hema, states that marriage of deceased Neeta had been solemnized with one Moses Patole about 5 to 7 years prior to the incident. Neeta had begotten two children from the said wedlock with Moses Patole. 10. P. W. 8 Suvarna Nirmal, mother of deceased Neeta and of P. W. 7 hema, states that marriage of deceased Neeta had been solemnized with one Moses Patole about 5 to 7 years prior to the incident. Neeta had begotten two children from the said wedlock with Moses Patole. On account of dispute between Neeta and her husband Moses Patole, Neeta began to reside with P. W. 8 Suvarna. At the relevant time, Neeta was working as a Nurse with one Dr. Bhadre. Accused had promised to maintain children of Neeta. Accordingly, Neeta and accused started residing in the rented premises of P. W. I Kamalbai. Accused was insisting that Neeta should not work as a Nurse and the accused used to quarrel with Neeta. Neeta was also insisting that accused should not frequently visit his wife. Neeta was insisting that as the accused frequently visits his wife, Neeta should be allowed to work as a Nurse in order to maintain her children. According to P. W. 1 Kamalbai, Neeta used to visit her house and narrate the incidents of beating. On the day of the incident, at about 6. 30 a. m. P. W. I Kamalbai had visited her house and had stated to her that accused had set Neeta ablaze. She states that she had narrated this incident to her son-in-iaw Vishal. P. W. 7 Hema and her son-in-law Vishal had admitted neeta in Civil Hospital, Jalna, along with the other relatives and had inquired from Neeta about the incident. Neeta had informed her that the accused had quarreled with her during the whole night on the point of neeta working as a Nurse and in the morning at about 6. 00 a. m. had poured kerosene oil on her person and had set her ablaze. In cross- examination, she has stated that Neeta was educated up to 8th Standard and was serving as a Nurse since last three years. Neeta could read and write also. She has admitted that she and her relatives reached the Civil hospital, Jalna within 10 to 15 minutes of admission of Neeta. Her relative, one Rajendra Bharati, also followed them to the hospital. she states that she had met her daughter Hema in the hospital on that day. She has admitted that the following statements do not find place in her statement recorded by police during investigation. Her relative, one Rajendra Bharati, also followed them to the hospital. she states that she had met her daughter Hema in the hospital on that day. She has admitted that the following statements do not find place in her statement recorded by police during investigation. (i) that the accused had promised to marry Neeta and to maintain her children. (ii) accused was insisting that Neeta should not work as a Nurse and quarreled with her for that reason. iii) Neeta was insisting by saying that the accused should allow her to work as a Nurse in order to maintain her children since the accused was frequently visiting his wife. (iv) Neeta had informed P. W. 8 Suvarna Nirmal that accused used to beat her. (v) Neeta had informed her in the hospital that the accused was insisting her not to work as a Nurse and on that ground a quarrel had taken place between them which lasted for the entire night and that at 6. 30 a. m. accused had poured kerosene on Neeta and had set her ablaze. P. W. 8 Suvarna could not ascribe any reason as to why the aforesaid facts were not appearing in her statement. ( 11 ) FROM the cross-examination of both these witnesses, the accused has been successful in eliciting omissions on vital aspects of the prosecution case, particularly, the oral dying declaration alleged to have been made by deceased Neeta to P. W. 7 Hema. This has been elicited and brought on record as an omission. This is a material omission amounting to contradiction. Similar is the situation in respect of P. W. 8 Suvarna. Suvarna too claims that Neeta had orally informed that it was the accused who had set her ablaze. Yet this important and vital piece of evidence is not found in her statement under section 161 of Cr. P. C. and therefore, this vital omission amounts to contradiction. Not only is there omission regarding oral dying declaration, there are also omissions which have been duly proved in respect of the accused promising to marry Neeta and promising to maintain her children. Apart from this, P. W. 8 Suvarna claims that she had met Hema in the hospital. If P. W. 7. Not only is there omission regarding oral dying declaration, there are also omissions which have been duly proved in respect of the accused promising to marry Neeta and promising to maintain her children. Apart from this, P. W. 8 Suvarna claims that she had met Hema in the hospital. If P. W. 7. Hema had been informed by deceased Neeta that it was the appellant who had set her ablaze, we find it inexplicable as to why P. W. 7 Hema did not inform her mother p. W. 8 Suvarna regarding the disclosure made by deceased Neeta that she had been set ablaze by the accused. No attempt was to lodge a report with the police. Apart from these two ladies, there were other members of the family who were present in the hospital and who could have been sent to the concerned Police Station for lodging a report. P. W. 7 Hema claims to have informed the police about the disclosure made by deceased Neeta to her. However, this fact is not deposed to by any of the police officers who have been examined. This conduct on the part of the witnesses and the omissions on vital aspects of the prosecution case renders their evidence extremely doubtful. At the close of the cross-examination these two witnesses, namely, P. W. 7 Hema and P. W. 8 Suvarna have not emerged as reliable and truthful witnesses. We do not find that any reliance at all can be placed on the testimonies of P. W. 7 Hema and P. W. 8 Suvarna. ( 12 ) IN respect of the dying declarations at Exh. 23 and Exh. 34, prosecution has examined the two scribes and the Medical Officer. P. W. 4 dr. Rameshchandra Sharma states that Neeta had been brought to the hospital by her brother Manoj. On the same day at about 11. 00 a. m. he had examined Neeta and had put his endorsement on the statement to the effect that patient is conscious and able to talk. According to him, the police and the Executive Magistrate both had recorded the statements of neeta and he has also put his endorsement on those statements that the patient was conscious and able to talk. According to him, the police and the Executive Magistrate both had recorded the statements of neeta and he has also put his endorsement on those statements that the patient was conscious and able to talk. In cross-examination on behalf of the accused on this point, he has admitted that he had put the endorsement on the statement recorded by the police and the statement recorded by the executive Magistrate at one and the same time. Perusalof the original dying declarations at Exh. 23 and Exh. 34 indicates that this endorsement was put by P. W. 4 Dr. Sharma at 11. 00 a. m. ( 13 ) IN the background of these facts, it would be useful to test the evidence of Naib Tahsiidar and the Police Officer who has recorded the statements at Exh. 23 and Exh. 34. Prosecution has examined P. W. 5 mrs. Sangeeta Warade, Naib Tahsiidar, who had recorded the statement of neeta at Exh. 23. P. W. 6 Mrs. Sangeeta Warade states that on 20. 11. 2004 she had received the requisition from Police Station, Kadim Jalna at Exh. 21 for recording the dying declaration of injured Neeta. She states that accordingly she visited Civil Hospital, Jalna and met the Duty Medical officer. She inquired from the Medical Officer whether the patient was conscious. Medical Officer informed her that the patient was conscious and accordingly put his endorsement to that effect on the statement of patient recorded by her. (Emphasis supplied ). ( 14 ) DURING the course of her evidence she produced on record the original dying declaration at Exh. 23. In the dying declaration at Exh. 23, according to P. W. 5 Mrs. Sangeeta Warade, Neeta had stated that she had been married about 11 years prior and has two children. She was deserted by her husband about a year back. Neeta further stated that she had developed relations with the accused. Though she was not married to the accused, she was residing with him. Neeta had also stated that wife of accused was residing at Jalna near T. V. Center. In respect of the incident, neeta had stated that on 19. 11. 2004 at about 8. 00 p. m. accused had come to her room and during the night there was hot exchange of words and a quarrel had taken place between them. Quarrel lasted for the entire night. In respect of the incident, neeta had stated that on 19. 11. 2004 at about 8. 00 p. m. accused had come to her room and during the night there was hot exchange of words and a quarrel had taken place between them. Quarrel lasted for the entire night. In the morning at about 7. 00 a. m. accused had poured kerosene on Neeta from a stove and had set her ablaze with the aid of a match stick. The nightgown which was worn by Neeta caught fire. Accused had attempted to extinguish the flames by wrapping Neeta with a quilt. Neeta further stated that her sister-in-law had taken her to Civil Hospital, Jalna, for treatment. The said statement was read over to Neeta and a thumb impression of Neeta came to be obtained. In cross-examination on behalf of the accused, P. W. 5 Mrs. Sangeeta Warade has stated that she was present at the residence when she received the requisition at Exh. 21. She has admitted to have put her signature along with the time of receipt of Exh. 21. Incidentally, we may state that as per the evidence of P. W. 10 Mithu Gawali, p. W. 5 Mrs. Sangeeta Warade had received the requisition at Exh. 21 at 10. 55 a. m. She states that she proceeded to the Civil Hospital, Jalna within 10 to 15 minutes thereafter from her house and met the Medical Officer in the room of Duty Medical Officer. She ascertained from the Medical Officer the condition of the patient and this took about 5 minutes. According to her, doctor examined the patient and then put his endorsement on Exh. 23. She has admitted that she on her own had not ascertained the mental fitness of Neeta to give the statement. According to her the original dying declaration at Exh. 23 was sealed and kept in the cupboard in her office. ( 15 ) THUS, from the evidence of this witness, it would be apparent that she had received the requisition at Exh. 21 at Exh. 10. 55 a. m. and according to her it took about 10 to 15 minutes for her to reach to the hospital. She made preliminary inquiries with the Medical Officer for ascertaining the condition of injured Neeta and according to this witness it took about 5 minutes. 21 at Exh. 10. 55 a. m. and according to her it took about 10 to 15 minutes for her to reach to the hospital. She made preliminary inquiries with the Medical Officer for ascertaining the condition of injured Neeta and according to this witness it took about 5 minutes. Thus, according to this witness she reached the hospital and was ready for recording the dying declaration of Neeta within about 20 minutes of the receipt of the requisition at Exh. 21. Undisputedly, Exh. 21 was received by her at 10. 55 a. m. and as per the timing set out in the dying declaration at Exh. 23, the recording of dying declaration commenced at 11. 00 a. m. and concluded at 11. 25 a. m. On the face of evidence of this witness, the recording of dying declaration could not have commenced at 11. 00 am. and therefore, could not have concluded at 11. 25 a. m. ( 16 ) IN respect of the dying declaration at Exh. 34, prosecution has examined P. W. ll P. S. I. Sk. Sattar. P. W. 11 Sk. Sattar states that on receipt of the report at Exh. 31, he immediately visited Civil Hospital, Jalna, along with the report at Exh. 31 at about 10. 30 to 11. 45 a. m. In the vernacular deposition of this witness the timing regarding the arrival at the Civil hospital stated is 10. 30 a. m. to 10. 45 a. m. The English recording particularly that of time which is written as 11. 45 a. m. appears to be incorrect and this witness may have reached the hospital in between 10. 30 to 10. 45 a. m. as is evident from the vernacular recording of deposition of this witness. He further states that:"it was noticed by me that the Executive Magistrate Mrs. Warade is recording statement of injured Neeta. Then at 11. 00 a. m. I had gone to burns ward to record the statement of injured Neeta, wife of Prabhakar Salve, aged 25 years, resident of Nutan Vasahat, jalna. " (Emphasis supplied ). ( 17 ) IN cross-examination on behalf of the accused particularly in respect of the timing of the recording of the dying declaration, he states that he visiteed the Civil Hospital, Jalna, between 10. 15 a. m. to 10. 30 a. m. on 20. 11. 2004. " (Emphasis supplied ). ( 17 ) IN cross-examination on behalf of the accused particularly in respect of the timing of the recording of the dying declaration, he states that he visiteed the Civil Hospital, Jalna, between 10. 15 a. m. to 10. 30 a. m. on 20. 11. 2004. He reaffirms that the Executive Magistrate was already recording the statement of Neeta when he reached the Civil Hospital, Jalna. He further states as under :"i have started recording statement of Neeta at about 10. 50 a. m. of dated 20. 11. 2004, and, it was completed at 11. 00 a. m. It is true that in dying declaration at Exh. 34 timing is not written. I met doctor at 11. 00 a. m. in burns ward and I have obtained his endorsement and then started recording statement of Neeta. " (Emphasis supplied ). ( 18 ) FROM the above evidence, it is apparent that this witness has made an erroneous statement. He claims to have reached the hospital in between 10. 30 to 10. 45 a. m. and claims to have seen the Executive Magistrate recording the dying declaration of Neeta. Undisputedly, P. W. 5 mrs. Sangeeta Warade had received the requisition at Exh. 21 at 10. 55 a. m. and could not have been physically present in the hospital recording the dying declaration of deceased Neeta either at 10. 30 or at 10. 45 a. m. He further states that he then recorded the dying declaration of Neeta, obviously after the dying declaration had been recorded by the Executive magistrate, at 10. 50 a. m. and concluded the same at 11. 00 a. m. He states that thereafter he went to burns ward and obtained the endorsement of the Doctor. If this evidence is accepted at its face value, it would indicate that the Doctor had put his endorsement at 11. 00 a. m. after the statement at Exh. 34 had been recorded without examining Neeta. From the evidence of this witness, it would appear that the endorsement was put by P. W. 4 dr. Rameshchandra Sharma in the burns ward. To us, this does not appear to be correct. Medical Officer P. W. 4 Dr. Sharma has stated that he had given the endorsement that Neeta was conscious to give the statement on the two dying declarations at Exh. 23 and Exh. 34 at 11. Rameshchandra Sharma in the burns ward. To us, this does not appear to be correct. Medical Officer P. W. 4 Dr. Sharma has stated that he had given the endorsement that Neeta was conscious to give the statement on the two dying declarations at Exh. 23 and Exh. 34 at 11. 45 a. m. He has further stated that the endorsements were made by him on both the dying declarations at one and the same time. This bit of evidence really tasks the credulity of human mind for its acceptance. This evidence would therefore indicate that the two dying declarations at Exh. 23 and Exh. 34 were being recorded simultaneously one by P. W. 5 Mrs. Sangeeta Warade, Naib tahsildar and another by P. M. 11 P. S. I. Sk. Sattar. P. W. 5 Mrs. Sangeeta waradedoes not- state anything about the recording of the dying declaration at Exh. 34 by P. W. 11 P. S. I. Sk. Sattar. Yet, the endorsement on both the dying declarations were put at one and the same time i. e. at 11. 00 a. m. Thus, by no stretch of imagination, the dying declarations at Exh. 23 and Exh. 34 could have been recorded prior to 11. 00 a. m. If P. W. ll P. S. I. Shaikh Sattar claims to have recorded dying declaration at Exh. 34 prior to 11. 00 a. m. , it would only indicate that the endorsement was put by the medical Officer in a mechanical manner after the dying declaration had been recorded. It is extremely difficult to reconcile the incongruous statement which had been made by the three witnesses in respect of recording of the dying declaration. We find it extremely difficult to believe that P. W. 5 Mrs. Sangeeta Warade could have reached the hospital prior to 11. 00 a. m. so as to obtain endorsement on the dying declaration from p. W. 4 Dr. Sharma. She was in receipt of the requisition at Exh. 21 at 10. 55 a. m. and by her own admissions she had reached the hospital about 10 to 15 minutes thereafter. Thus, the dying declarations at EXh. 23 and Exh. 34 do not pass the test of reliability and do not inspire the confidence of the court about the recording of the said statements. 21 at 10. 55 a. m. and by her own admissions she had reached the hospital about 10 to 15 minutes thereafter. Thus, the dying declarations at EXh. 23 and Exh. 34 do not pass the test of reliability and do not inspire the confidence of the court about the recording of the said statements. ( 19 ) THERE is another infirmity which casts a serious doubt about the recording of the dying declarations at Exh. 23 and Exh. 34. P. W. 9 Police constable Shriram Pandit who was attached to Police Station Kadim Jalna states about the admission of injured Neeta in the Civil Hospital at Jalna and about receipt of M. L. C. from the Duty Medical Officer of the Civil hospital. He states that he had informed Police Station Kadim Jalna on telephone about the receipt of M. L. C. at Exh. 25. He states that then he has lodged a report to the Police Station Kadim Jalna by visiting the Police station along with "d. D. recorded by P. S. I. Shaikh and M. L. C. Exh. 25" He states that his report is at Exh. 31. In cross-examination he has admitted that on 20. 11. 2004 he had informed about the said M. L. C. to P. S. I. Shaikh at about 8. 15 to 8. 30 p. m. There is an error in the recording as the time ought to read 8. 15 to 8. 30 a. m. He further states that P. S. I. Shaikh had come to Civil Hospital, Jalna, at about 8. 30 a. m. and P. S. I. Shaikh had recorded statement of injured Neeta and then handed over to him. It was 10. 00 to 10. 15 p. m. of 20,11. 2004 when he had sent the M. L. C. report exh. 25. Again there is an error in the recording and it should read as between 10. 00 to 10. 15 a. m. He further states that his report at Exh. 31 was received in the Police Station, Kadim Jalna at 10. 05 p. m. In fact, it should read as 10. 05 a. m. In the report at Exh. 25. Again there is an error in the recording and it should read as between 10. 00 to 10. 15 a. m. He further states that his report at Exh. 31 was received in the Police Station, Kadim Jalna at 10. 05 p. m. In fact, it should read as 10. 05 a. m. In the report at Exh. 31 it is stated that what was being handed over to Police Inspector of Police Station, Kadim Jalna is the M. L. C. issued by the Medical Officer and a statement of injured and a letter issued by the Taluka Magistrate. The endorsement which appears on Exh. 31 is that it was received in the Police station at "10. 05" and further investigation was handed over to P. S. I. Shaikh. Thus, before 10. 05 a. m. a statement of Neeta had been recorded and as per the evidence of P. W. 9 head Constable Shriram Pandit, the said statement had been recorded by p. S. I. Shaikh, who had been to the Civil Hospital in response to the telephonic message. The said statement alleged to have been recorded prior to the recording of the dying declarations at Exh. 23 and Exh. 34 has been suppressed by the prosecution. We are fortified in our finding that the timing in respect of giving of the report at Exh. 31 by P. W. 9 Police head Constable Shriram Pandit has been incorrectly recorded as 10. 00 to 10. 15 a. m. as the perusal of the report at Exh. 31 shows that it was received at 10. 05 and thereafter the investigation was handed over to P. W. 11 P. S. I. Sk. Sattar. Even according to P. S. I. Sk. Sattar, the report at Exh. 31 was received by him in the morning and he had proceeded to the hospital in the morning along with the report at Exh. 31. According to the evidence of P. W. 9 Shriram Pandit, P. S. I. Shaikh Sattar had come to the hospital at about 8. 30 a. m. and had recorded the statement of Nitin which had been handed over to P. W. 9 Police Head Constable Shriram Pandit who had sent that statement alongwith the report at Exh. 31. P. M. 11 P. S. I. Shaikh sattar in his crosse-examination has stated that the entry in respect of the report at Exh. 30 a. m. and had recorded the statement of Nitin which had been handed over to P. W. 9 Police Head Constable Shriram Pandit who had sent that statement alongwith the report at Exh. 31. P. M. 11 P. S. I. Shaikh sattar in his crosse-examination has stated that the entry in respect of the report at Exh. 31 was taken in the station diary at 10. 05 a. m. and investigation was entrusted to him. He has stated that he has not visited the Civil Hospital prior to 10. 00 a. m. and has also not recorded the statement of Neeta prior to 10. 00 a. m. The report at Exh. 31 clearly states about the recording of a statement of Neeta which was being forwarded. If that be the case, we are further fortified in our observations that statement of neeta had been recorded prior to the recording of Exh. 23 and Exh. 34 and that statement has been suppressed by the prosecution. Prosecution would have got away with the suppression had not Exh. 31 clearly stated about enclosing of a statement along with the M. L. C. P. W. 9 Head Constable shriram Pandit is categorical in his assertion that P. S. I. Shaikh Sattar had come to Civil Hospital at 8. 30 a. m. and had recorded the statement of injured Neeta and then it was handed over to him. According to us, suppression of a vital piece of evidence casts a serious doubt about the genuineness and truthfulness of the dying declarations at Exh. 23 and exh. 34. It is not the duty of the Investigating Officer to bolster the prosecution case by suppressing the evidence but he should present before the Court an unalloyed truth. ( 20 ) DYING declaration is a denouncement or indictment which is made by the deceased from the grave. The dying declaration at Exh. 23 and Exh. 34 indict the accused as a perpetrator of the crime having set Neeta ablaze after pouring kerosene on her. Before the statement can be accepted and made the foundation or the basis for conviction, it is incumbent on the prosecution to establish that there are no clouds of suspicion hovering over the recording of the dying declaration. 23 and Exh. 34 indict the accused as a perpetrator of the crime having set Neeta ablaze after pouring kerosene on her. Before the statement can be accepted and made the foundation or the basis for conviction, it is incumbent on the prosecution to establish that there are no clouds of suspicion hovering over the recording of the dying declaration. It is equally incumbent on the prosecution to establish that the dying declarations are voluntary and truthful statements made by the declarent before they can be accepted and acted upon by the Court for convicting the accused. The Supreme court in Laxman v. State of Maharashtra has held as under :"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point or death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oathand cross-exanunation are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. ( 21 ) APPLYING the tests, according to us these dying declarations at exh. 23 and 34 do not cross the hurdle and as a result of which we do not find these dying declarations to be pieces of evidence which would inspire the confidence of the Court for their acceptance. There is another aspect of the case to which we shall advert shortly. On admission of injured Neeta in the hospital, a disclosure statement had been recorded by P. W. 6 dr. There is another aspect of the case to which we shall advert shortly. On admission of injured Neeta in the hospital, a disclosure statement had been recorded by P. W. 6 dr. Ambhore this disclosure statement is found reflected in the M. L. C. register. Admission of P. W. 6 Dr. Ambhore in this regard is relevant. P. W. 6 dr. Ambhore admits in the cross-examination it is true that after admission of patient Neeta in the hospital I have inquired from her about history and patient has stated history that sue caught fire due to stove. Accordingly, i have taken an entry in M. L. C. register about the history given by the patient. In case papers also there is mention about history being given by the patient. " Perusal of the evidence of P. W. 4 Dr. Sharma, particularly the cross-examination, would indicate that even P. W. 4 Dr. Sharma had admitted that in case papers there is mention about the history of the case narrated by injured about burns by stove at 7. 00 a. m. In the M. L. C. at Exh. 25, the medical Officer had stated that injured Neeta had sustained 91 per cent burn injuries on 20. 11. 2004 at about 7. 30 a. m. on account of bursting or stove. On 25. 4. 2005 before the judgment could be pronounced, the accused had submitted an application before the Trial Court at Exh. 48 seeking to recall P. W. 6 Dr. Ambhore for further cross-examination. Trial Court by its order of even date rejected the said application on the ground of delay in submitting this application as the M. L. C. at Exh. 25 had already been proved by P. W. 6 Dr. Ambhore on 21. 4. 2005. Trial Court, however, repelled the contention of the accused that the history recorded by P. W. 6 Ambhore clearly indicated that Neeta had sustained accidental burns on account of stove. According to the trial Court in the absence of original M. L. C. register and in the absence of narration of deceased Neeta being brought on record, the evidence of P. W. 6 Dr. Ambhore to the effect that he had recorded the history, was insufficient for concluding that Neeta had disclosed to P. W. 6 dr. Ambhore that she had sustained burns on account or stove. Ambhore to the effect that he had recorded the history, was insufficient for concluding that Neeta had disclosed to P. W. 6 dr. Ambhore that she had sustained burns on account or stove. According to us, such a reason is palpably wrong. Prosecution had examined P. W. 6 dr. Ambhore, who had admitted Neeta in the hospital. Case papers had been brought by Dr. Sharma. No efforts were made either by the prosecution or by the Court in insisting that the case papers be kept on record. When an application was moved for summoning Dr. Ambhore for cross-examination, the same was turned down on account of delay. No doubt, the application had been filed on the day on which the case was fixed for hearing the accused on the point of sentence as the judgment was pronounced on 21. 4. 2005. We do not propose to dilate on this aspect any further as the original M. L. C. register was produced before us for our perusal and a copy has now been tendered in evidence and marked as exh. A. Perusal of Exh. A clearly shows that Neeta had disclosed to P. W. 6 dr. Ambhore that she had sustained burns by stove at 7. 00 a. m. She does not ascribe the burns to any overtact of the accused. This disclosure had been made first in the point of time without any one having any opportunity whatsoever to tutor injured Neeta in making any tainted disclosure. We have already held that oral dying declaration alleged to have been made to P. W. 7 Hema is wholly unreliable as well as the oral dying declaration made to P. W. 8 Suvarna. ( 22 ) IN view of the findings recorded by us above, we find that the dying declarations at Exh. 23 and Exh. 34 are wholly unreliable and cannot be made the foundation for basing the edifice of conviction. We particularly find that the disclosure made by deceased Neeta to P. W. 6 Dr. Ambhore at exh. A would indicate that deceased Neeta had sustained accidental burns. 23 and Exh. 34 are wholly unreliable and cannot be made the foundation for basing the edifice of conviction. We particularly find that the disclosure made by deceased Neeta to P. W. 6 Dr. Ambhore at exh. A would indicate that deceased Neeta had sustained accidental burns. We thus find that the prosecution has not been able to establish the offence against the accused beyond reasonable doubt to warrant the conviction of the accused for offence punishable under section 302 of the I. P. C. According to us, therefore, the conviction of the accused for the aforestated offence is wholly unmerited and unjustifiable and deserves to be quashed and set aside. ( 23 ) IN the result, therefore, Criminal Appeal No. 306 of 2005 filed by the accused is allowed and the conviction of the appellant for offence for which he was charged is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Since the accused is in jail, he be set at liberty forthwith if not wanted in any other case. Reference made to this Court by the trial Court and registered as Confirmation case No. 2 of 2005 is accordingly answered in the negative by acquitting the accused and quashing and setting aside the conviction and sentence. Appeal allowed