JUDGMENT :- The appeal has been preferred by the accused-appellants aggrieved by judgment dated 19-3-1993 passed by the IInd Additional Judge to the Court of Sessions Judge, Rehli, District Sagar in S. T. 8 No. 196/87 whereby convicting the appellants for commission of offence u/S. 302 r/w Section 34 of the I. P. C. and sentenced them to undergo rigorous life imprisonment. They have also been convicted for commission of offence u/S. 498-A r/w 34 of the I. P. C. and sentenced to undergo 3 years rigorous imprisonment and fine of Rs. 1000/-each and in default of payment of fine to undergo rigorous imprisonment for 3 months. 2. As per the prosecution case marriage of deceased Kusum Rani was performed with Balram prior to 18 years. The parental house of the deceased was situated at village Damoh. After four years of marriage relationship of deceased and her husband Balram became strained. She was turned out of the house. Thereafter she started living in the parental house at Damoh and filed application u/S. 125 of the Cr. P. C. which was compromised prior to 3 years. Accused Balram brought back deceased Kusum Rani to his house situated at Garha Kota. Thereafter again her husband Balaram, husbands brother Khemchand, brothers wife Rajrani and husband's sister Munni started treating the deceased with cruelty. She used to be beaten. They wanted to get vacated the room in which deceased was residing along with her daughter Vaijanti (PW-1). A day prior to the date of incident on 17-2-1987 deceased wrote a letter (Ex. P/1) to his brother Balram Prasad. 3. On 18-2-1987 accused Balaram lodged a report at Police Station Garha Kota that the deceased was preparing tea on the stove, due to burst of stove deceased caught fire. Information was recorded at marg intimation No. 781/87. Deceased was referred for treatment to the Hospital at Garha Kota. As her condition was precarious her dying declaration was recorded by Dr. M. L. Choudha (PW-16). She was referred to District Hospital, Sagar. Burn injuries were to the extent of 90%. Kusum Rani succumbed to the burn injuries next day in the morning at 8.10 hours of which intimation was given to Police Station Gopalganj, in turn, intimation was sent to Police Station Garha Kota. Investigation was done. M. L. Choudha (PW-16). She was referred to District Hospital, Sagar. Burn injuries were to the extent of 90%. Kusum Rani succumbed to the burn injuries next day in the morning at 8.10 hours of which intimation was given to Police Station Gopalganj, in turn, intimation was sent to Police Station Garha Kota. Investigation was done. On 21-2-1987 Ashok Kumar submitted a complaint to the Superintendent of Police that murder of Kusum Rani his sister was committed by accused persons. Thereafter statements of Vaijanti, Ashok Kumar, Balram and Mahendra Kumar etc. were recorded. It was found that the deceased used to be treated with cruelty by the accused persons. She was not given food. Accused wanted to get vacated the accommodation in occupation of the deceased. There was yet another daughter in the lap of the deceased of six months. Accused-Khemchand used to give 250 ml. milk and sometime used not to give it. Deceased and her daughter Vaijanti used to prepare Bidi. Milk was not given on the date of incident also by Khemchand and there was a quarrel between family members as they wanted to obtain vacant possession of the room in occupation of the deceased. Accused-Balram also gave beating to the deceased. The incident of morning was witnessed by Vaijanti (PW-1). She went to school at about 11.30 hours and came back at 2.30 p.m. Food was not cooked by her mother. She was told by her mother that accused persons threatened in case room was not vacated today they would set her to fire. Thereafter without eating food Vaijanti went back to the school and came back at about 5 p.m. When she was coming back she was informed on the gate of the school that her mother had caught fire. Deceased made oral dying declaration that the accused had set her ablaze. Thereafter Vaijanti was threatened by accused persons not to disclose the fact to anyone else. Next day when brother of the deceased Ashok and Balram came from Damoh Vaijanti narrated the aforesaid fact to them. 4. Autopsy of Kusum Rani was performed. Offence was registered u/Ss. 302, 498-A of the I. P. C. Spot map was prepared by the police as well as by the Patwari. From the spot stove filled with kerosene oil, match box, burnt cot and clothes were seized articles were sent to Forensic Science Laboratory. 4. Autopsy of Kusum Rani was performed. Offence was registered u/Ss. 302, 498-A of the I. P. C. Spot map was prepared by the police as well as by the Patwari. From the spot stove filled with kerosene oil, match box, burnt cot and clothes were seized articles were sent to Forensic Science Laboratory. Statements of neighbour were recorded, they stated that there used to be quarrel between accused and the deceased. It was found to be case of homicidal death. Accused were arrested and thereafter they were charge-sheeted. 5. Accused abjured their guilt and contended that they have been falsely implicated in the case. Deceased was preparing the tea when she caught fire accidentally. In defence Santosh Kumar and Narayan have been examined. Accused also took the plea that Balram and Khemchand were not in the house, they were at the field. 6. The trial Court has convicted the appellants u/Ss. 302/34, 498-A r/w 34 of the I. P. C., they were sentenced in the afore- said manner. Aggrieved thereby the appeal has been preferred by the appellants. 7. Shri Surendra Singh, learned Sr. Counsel appearing with Shri Manish Mishra on behalf of the appellants has submitted that in the instant case there were two dying declarations (Ex. D/1 and D/2) of the deceased in which she has clearly mentioned to the Doctor as well as to the Head Constable that she caught fire accidentally while preparing the tea. Statement of child witness Vaijanti (PW-1) was recorded after 3 days of the incident whereas statement of Vidyawati (PW-9) was recorded on 3rd April, 1987. There was inordinate delay in recording the statement of Vidyawati (PW-9). Exact words uttered by the deceased have not been stated by the witness. Kerosene oil was not found either on the cloth or on the body of the deceased. Thus, oral dying declaration is not supported by the medical evidence. There is nothing to disbelieve the dying declarations (Ex. D/2 and D/2), thus, accused appellants ought to have been acquitted for commission of offence u/S. 302 r/w 34, I. P. C. He has also submitted that the accused have also undergone the sentence u/S. 498-A, I. P. C. they have remained in jail for about 8 years, they were released on bail on 6-9-2001 whereas they were convicted on 19-3-1993. Before conviction they remained in jail for about 10 days. Before conviction they remained in jail for about 10 days. Thus, the counsel has not pressed the conviction u/S. 498-A of the I. P. C. 8. Shri S.K. Rai, GA appearing on behalf of the State has supported the conviction u/S. 302/34 of the I. P. C. also u/S. 498-A r/w 34 of the I. P. C. He has submitted that there is nothing to disbelieve the statement of child witness (PW-1) Vaijanti daughter of the deceased aged 14 years and Vidayawati (PW-9). The overall circumstances projected in the case point out that the deceased was done away by the accused persons. Cot was found burnt including the cloths, whereas the deceased was found at a different place. Circumstances point out that she met homicidal death. Thus, no case of interference in the appeal is made out. The dying declarations (Ex. D/1 and D/2) are of doubtful origin, they have been rightly discarded by the trial Court. 9. First we come to the question of cruel treatment being meted out to the deceased. It appears that there used to quarrel between the deceased and her husband Balram. Letter (Ex. P/1) was written prior to day of incident by the deceased Kusum Rani to her brother Balram complaining that accused persons wanted to get the room vacated from her, she had called her brother to village where she was residing at Garhakota, but, before brother could reach she died of burn injuries. There is also evidence on record furnished by Vaijanti (PW-1) that there was quarrel in the morning between the accused persons as well as the deceased on the question of vacating the room. Deceased had sent Vaijanti (PW-1) to school and it appears that on that day food was not cooked by the deceased as Vaijanti came in recess time and found that her mother did not cook food, obviously there was quarrel in the house, food was not cooked. There is also evidence on record pointing out that after 3-4 years of the marriage deceased was turned out of the house and thereafter she brought back only two years of the date of incident, though marriage was performed 18 years before, but, for substantial period for more than 14 years there was dispute between the husband and the wife. After she was brought back she gave birth to a female child. After she was brought back she gave birth to a female child. It appears that even after deceased was brought back to the house the dispute did not settle and deceased used to be harassed over milk etc. and the accused wanted that she should vacate the room which was occupied by her along with her two daughters, thus, it is apparent that the deceased was treated with cruelty as contemplated under S. 498-A of the I. P. C. Thus, the conviction under S. 498-A of the I. P. C. has not been rightly assailed by the counsel. We hereby affirm the conviction and sentence imposed under S. 498-A of the I. P. C. 10. Coming to question whether it is a case of homicidal death and accused has set the deceased ablaze. We find on record the dying declaration (Ex. D/2) of deceased Kusum Rani. Dr. M. K. Choudha (PW-16) has proved the aforesaid dying declaration (Ex. D/2). He has also prepared medico legal report (P/16). In the report (P/16) it has been mentioned that there was 90% burn, general condition was precarious, pulse was not traceable, blood Pressure was not recordable, she was in a position to give dying declaration, as such her dying declaration had been recorded, thereafter she was referred to Sagar. On Ex. P/16 we also found an endorsement that Kusum Rani reached Sagar at 11.05 p.m. There is nothing to doubt the dying declaration, the factum of dying declaration recorded by Dr. M. L. Choudha (PW-16) at Garhakota, he was holding the post of Assistant Surgeon. There is nothing on record indicating that any pressure was adopted by Doctor M. L. Choudha (PW-16) or to suggest that the dying declaration was not recorded by him on 18-2-1987. We also find on record (Ex. D/1) police statement recorded by Head Constable that has been signed by Kamta Prasad (PW-6) proved by Kampta Prasad (PW-6). He has stated that in his presence statement of deceased was recorded by the constable when statement (Ex. D/1) was read over he has stated that said statement was given by the deceased. 11. Juxtaposed to the aforesaid written dying declaration we find on record two witnesses of oral dying declaration made by the deceased. One is that of Vaijanti (PW-1) daughter of the deceased aged 14 years. D/1) was read over he has stated that said statement was given by the deceased. 11. Juxtaposed to the aforesaid written dying declaration we find on record two witnesses of oral dying declaration made by the deceased. One is that of Vaijanti (PW-1) daughter of the deceased aged 14 years. She has stated that there was quarrel in the morning between deceased and accused, she went to school, she came back at 5.30 p.m. and found that her mother has been set ablaze, her mother was lying in burnt condition. She enquired from her mother how it has happened, she was told that the accused set her ablaze. Thereafter Munni and Rajrani took her to room and told her not to disclose the fact to anybody. Thereafter neighbour took her mother to hospital, later on was taken to Sagar District Hospital. She was not permitted to go Sagar by accused Balram. Next day when her maternal uncle came she disclosed the aforesaid fact, while she was going in the bus to Sagar by that time post-mortem of the deceased had been performed. In cross-examination she has stated that she could not say who had informed her in the school that deceased had caught fire. She was not aware at what time deceased caught fire. Deceased was unable to disclose the entire incident when she was taken away by the accused persons in a different room, she did not disclose the fact to the neighbour. She did not make any enquiry from the neighbour as her mother had disclosed the fact to her. We also find on record yet another statement of Vidyawati (PW-9) with respect to oral dying declaration made by the deceased in the hospital at Gadakota. She has stated that the deceased was in a position to speak though she was badly burnt, she was informed by the deceased that in the morning there was quarrel with the accused persons. She and her daughter both did not eat food, she also told that the accused persons had set her ablaze. In the cross-examination Vidyawati (PW-9) has stated that at about 7 p.m. the aforesaid fact was disclosed to her. She reached to the hospital within 15 minutes and after remaining for 10 minutes with the deceased, she came back to her house. In the cross-examination Vidyawati (PW-9) has stated that at about 7 p.m. the aforesaid fact was disclosed to her. She reached to the hospital within 15 minutes and after remaining for 10 minutes with the deceased, she came back to her house. As Doctor was not on duty treatment had not been started by that time." Deceased did not inform to (PW-9) that who poured kerosene oil and who was the person to set her ablaze. Her police statement (Ex. D/3) was recorded by the police after 15-16 days as per her version, however her police statement (Ex. D/3) indicates that it was recorded on 3-4-1987 after 45 days of the incident. When we consider the evidentiary value of the oral dying declaration made Vaijanti (PW-1), Vidyawati (PW-9), we find several infirmities. Firstly the details who set fire and in what manner and the place has not been stated by the aforesaid witnesses. When there are two dying declaration in the writing of the deceased it appears necessary that before the oral dying declaration is accepted sufficient particulars are ascertained as observed by the Apex Court in Ram Nath Madhoprasad and others v. State of Madhya Pradesh, AIR 1953 SC 420 : (1953 Cri LJ 1772) and also in the case of Darshna Devi, 1966 SCC (Cri) 35, though it may not be possible to state the 'exact words' uttered by the deceased, but, the oral dying declaration made by the aforesaid witnesses is quite vague. In the instant case exact words are not coming forth, even ignoring the fact that exact words are not coming forth, there was no sufficient particulars stated by aforesaid witness as to the role played by each of the accused persons who set her ablaze, who poured kerosene oil on her. As per prosecution it was a case of setting ablaze after pouring kerosene oil, but, presence of kerosene oil has not been found on the body or on the cloth of deceased. In the MLC it was not mentioned that there was smell of kerosene oil. There was absence of the fact that kerosene oil was found in the post-mortem report also. Vidyawati (PW-9) was unable to give details of the dying declaration made by the deceased, she stated baldly that the accused persons set the deceased ablaze was stated to her by Kumsum Rani. When we consider statement of Ku. There was absence of the fact that kerosene oil was found in the post-mortem report also. Vidyawati (PW-9) was unable to give details of the dying declaration made by the deceased, she stated baldly that the accused persons set the deceased ablaze was stated to her by Kumsum Rani. When we consider statement of Ku. Vaijanti (PW-1) with respect to factum of oral dying declaration she has also not given details of the oral dying declaration made. She also did not disclose the fact to anybody till her maternal uncle came to village next day, she did not ascertain the fact from the neighbour that how her mother caught fire as at the relevant time when Kashiram caught fire the witness was in the school. Her statement was also recorded after 3 days of the incident and statement of Vidyawati was recorded after 45 days of the incident. In view of the aforesaid two written dying declarations in the shape of Ex. D/2 recorded by the Doctor, we discard the oral dying declaration made by deceased Kusum Rani as two views are possible in the instant case, it is settled law that one to benefit of the accused has to be adopted. The Trial Court has unnecessarily discarded the dying declaration (Ex. D/2) recorded by Dr. M. L. Choudha (PW-16). Though there was some altercation on the date in question, but, in view of the dying declaration it cannot be said that the deceased was set ablaze by the accused persons. We find on record the statement of Balram (PW-2). Ashok (PW-3) and Mahendra (PW-4) with respect to witness Vaijanti (PW-1) informing as to oral dying declaration made by the deceased, as statement of Vaijanti has not been found to be reliable in view of the written dying declaration of the deceased recorded by the Doctor. Relationship was strained, between husband and wife and Vaijanti was residing along with maternal uncle after the incident she left the house next very day, thus, the possibility of her being tutored being a child witness cannot be ruled out with respect to harassment fact of which has been disclosed by the witness. Accused have been convicted for offence under S. 498-A, I. P. C., other witnesses have not supported the prosecution case. They have also undergone the sentence imposed under S. 498-A of the I. P. C. of 3 years. Accused have been convicted for offence under S. 498-A, I. P. C., other witnesses have not supported the prosecution case. They have also undergone the sentence imposed under S. 498-A of the I. P. C. of 3 years. They have remained in jail for about 8 years. 12. In the facts and circumstances of the case we deem it appropriate to extend the benefit of doubt to the appellants for commission of offence under S. 302/34 of the I. P. C. Thus, we allow the appeal in part, set aside the conviction of the appellants under S. 302/34 of the I. P. C. and affirm the conviction and sentence under S. 498-A r/w. 34 of the I. P. C. on the accused appellants, as they have already served the sentence imposed under S. 498-A of the I. P. C. their bail bonds are discharged. Order accordingly.