JUDGMENT : S.L. Kochar. J. - The appellants have preferred this appeal challenging the impugned judgment dated 28.8.2004 passed in S.T No. 1/2004 by learned V Additional Sessions Judge, Ujjain, District Ujjain (M.P.), whereby convicted the appellants under Section 302/34 of the Indian Penal Code (for short "the IPC') and sen­tenced to RI for life with fine of Rs. 5,000/-to each. In default of payment of fine, they shall suffer additional RI for one year. 2. According to the prosecution case, de­ceased Gita Bai alias Vidya Bai, wife of ap­pellant No. 2 Ashok, died on 24.10.2003 in Govt. Hospital Ujjain because of burn inju­ries. Dr Anil Kumar Dube (PW-16) sent inti­mation to concerned police on the same day at 8.40 a.m. That deceased was brought by the appellants in the morning at 7.50 a.m. in burnt condition. After receiving this informa­tion police started inquiry. The first Dying Dec­laration of deceased (Ex.D/4) was recorded by DW-1 Naib Tehsildar Shri Prakash. In this Dying Declaration deceased has stated that in the morning she was preparing tea on stove and kerosene can was lying near her, at that moment she caught fire and she was not know­ing as to how she caught fire. On receiving information by father of deceased and her cousin brother, both P W-11 Badrilal and PW-12 Prakash reached in the hospital and be­fore them she disclosed that her mother-in law Ramkanya Bai appellant No. 1, poured kero­sene oil on her and appellant No.2- husband Ashok lit fire by match-stick. After this dis­closure, Badrilal submitted written application to S.P. and on the same day at 3.34 p.m. sec­ond Dying Declaration (Ex.P/18) was re­corded by Naib Tehsildar (P W-10) Nityanand Pandey. In the same night on 24.10.2003 de­ceased died in the hospital and on receiving information of death, the First Information Report (Ex.P/21) was registered on 25.10.2003 at 1.00 a.m. After completion of inquest inquiry (Ex.P/28) by PW-17 SDM Ujjain, the dead body was sent for postmor­tem examination and it was conducted by PW-2 Dr. G.S. Dhawan. Postmortem Report is Ex.P/3. Police recorded statements of the wit­nesses acquainted with the facts of the case and on completion of investigation, filed the charge sheet against the appellants for com­mission of murder of deceased Gite Bai alias Vidya Bai. 3. Appellants denied the prosecution alle­gations and examined DW-1 Naib Tehsildar Shri Prakash to prove first Dying Declaraction (Ex. D/4). Postmortem Report is Ex.P/3. Police recorded statements of the wit­nesses acquainted with the facts of the case and on completion of investigation, filed the charge sheet against the appellants for com­mission of murder of deceased Gite Bai alias Vidya Bai. 3. Appellants denied the prosecution alle­gations and examined DW-1 Naib Tehsildar Shri Prakash to prove first Dying Declaraction (Ex. D/4). Learned Trial Court after examin­ing the prosecution and defence witnessed and hearing both the parties found the prosecution case proved, convicted and sentenced the appellants as indicated herein-above. 4. We have heard the learned counsel for the parties also perused the entire record care­fully. It is clear from impugned judgment that conviction of the appellants is mainly based on second Dying Declaration (Ex.P/18) and evidence of oral Dying Declaration given by P W-11 Badrilal and P W-12 Prakash, father and cousin brother of deceased. 5. The core question of us to decide, whether second Dying Declaration and evi­dence of oral Dying Declaration is worth for placing reliance? 6. It is clear from the statement of PW-'16 Dr. Anil Kumar Dube, who proved MLC re­port (Ex.P/26), that deceased was brought into the hospital by the appellants and they gave history that deceased sustained burn injuries while preparing tea. PW-1 Dr. Ajay Sharma had also examined the deceased and issued MLC report (Ex.P/1 &P/2). Both the doctors have stated that deceased was conscious but did not disclose anything about the incident. They have also stated that smell of kerosene oil was not coming from the body of the deceased. If second Dying Declaration (Ex.P/18) of the deceased is correct, then smell of kerosene oil would have present and could have also felt by both the doctors. There is no reason or material available in the record to say that both the doctors were, in any way, interested in favour of the appellants. 7. In the Forensic Science Laboratory re­port (Ex.P/32), presence of kerosene oil was not found by the expert on half burnt pieces of cloth of deceased. 8. Investigating Officer had not collected and seized the earth or any other article from the spot to establish the presence of kerosene oil. If kerosene oil was poured by appellant No. 1, mother-in-law, on the person of deceased, its smell would have been found by the doc­tors as well as also in Forensic Science Labo­ratory report. 9. 8. Investigating Officer had not collected and seized the earth or any other article from the spot to establish the presence of kerosene oil. If kerosene oil was poured by appellant No. 1, mother-in-law, on the person of deceased, its smell would have been found by the doc­tors as well as also in Forensic Science Labo­ratory report. 9. In inquest report prepared by SDO PW-17 Narendra Kumar Trivedi, there is no men­tion of presence or smell of kerosene. 10. In the Postmortem Report as well as statement of Dr. Dhawan (PW-2), also there is no mention of presence of smell of kero­sene oil from the dead body of deceased. 11. Learned Trial Court, in paragraph-26, has given finding that normally for the purposes of postmortem doctors are depending upon compounder and sweeper, therefore, they might have not taken care about presence of kerosene oil. This reasoning of learned Trial Court is uncalled for because there is abso­lutely no such material available in the record and no such questions were put to doctors by the prosecution or Court istself. All the three doctors have specifically stated that they themselves attended the deceased and after proper examination, prepare Medico Legal Certificate as well as Postmortem Report. 12. There is no cogent and reliable evidence available in the record about motive. It is not a case of demand of dowry and ill-treatment. Father of the deceased PW-11 Badrilal and cousin brother P W-12 Prakash have nowhere stated about demand of dowry and ill-treatment by the appellants with the deceased, when their demand was not fulfilled. Father of the deceased PW-11 Badrilal has stated that one day prior to the date of incident he went along with the deceased at the house of the appellants to attend Shraddh and again he wanted to take back the deceased to his house, but on request by mother-in law, ap­pellant No. 1 Ramkanya Bai, he left the de­ceased for celebrating Deepawali festival. Badrilal, Prakash and witness Kailash have stated that deceased was complaining against the appellants that they were picking quarrel with her without any reason. This version of these witneses is not sufficient to establish motive for commission of murder of deceased by the appellants. 13. Badrilal, Prakash and witness Kailash have stated that deceased was complaining against the appellants that they were picking quarrel with her without any reason. This version of these witneses is not sufficient to establish motive for commission of murder of deceased by the appellants. 13. In the first Dying Declaration (Ex.D/4), recorded by Naib Tehsildar DW- 1 Shri Prakash, called by Investigating Office after receiving information about admission of deceased in the hospital, sent by doctor, noth­ing has been stated by deceased against the appellants. In this Dying Declaration deceased has also not stated that she caught fire acci­dentally while preparing tea. If this Dying Dec­laration was given by deceased under pres­sure of the appellants, then there was every possibility of saying that she caught fire acci­dentally by flame of stove while preparing tea, but no such facts are mentioned in this Dying Declaration and deceased has just stated about her ignorance regarding catching fire. 14. In second Dying Declaration (Ex.P/18), which has been relied upon by the learned Trial Court, deceased has nowhere given any ex­planation as to how she kept silent when her first Dying Declaration was recored by Ex­ecutive Magistrate. If first Dying Declaration was given by the deceased under pressure by the appellants, she could have stated this fact at the time of recording of second Dying Dec­laration. Under all these facts and circum­stances, possibility of tutoring to deceased by father and cousin brother Prakash form mak­ing allegation against the appellants, cannot be ruled out. The allegation by the father and cousin brother Prakash can be levelled be­cause of annoyance since their daughter and sister died in the house of the appellant. They could also level this allegation of suspicion. 15. In view of the aforesaid discussion, this appeal allowed. Conviction and sentence of the appellants are here set aside. Appellant No. 1 Ramkanya Bai is on bail, her bail bond and surety bond stand discharged. Appellant No.2 Ashok is in jail, the learned Trial Court is directed to release him forthwith, if not wanted in any other criminal case.