JUDGMENT B.K. PATEL, J. - The appellant has been convicted and sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code (for short 'the I.P.C.') by the learned 1st Additional Sessions Judge, Berhampur in Sessions Case No.3 of 2000/Sessions Case No.51 of 2000 GDC for having committed murder of his wife deceased Manjula Sahu. Appellant also has been convicted under Section 498-A of the I.P.C., but no separate sentence has been imposed thereunder. 2. Marriage between appellant and deceased was solemnized on 25.2.1994. Informant P.W.14 is deceased's brother. P.W.10 is deceased's sister's husband, P.W. 12 is deceased's elder mother. P.W.15 is deceased's maternal uncle's son. Appellant and deceased had a son. Occurrence took place in the night of 9/10.9.1999. 3. Prosecution case is that about two years after the marriage the appellant subjected the deceased to cruelty and forced her to procure money from P.W.14. He used to return home being drunk late in the night and used to assault the deceased. In the night of occurrence the appellant came home in an intoxicated state and assaulted his son. A quarrel ensued between the appellant and the deceased. Appellant assaulted' her and, thereafter, poured kerosene and set fire on her. The deceased was admitted into M.K.C.G. Medical College and Hospital, Berhampur. On the basis of written report Ext.8 submitted by P.W.14 before P.W.16, the I.I.C. of Mahila Police Station, Berhampur at 10.30 A.M. on 10.9.1999, case was registered under Sections 498-A/307 of the I.P.C. and Section 4 of the Dowry Prohibition Act and investigation was taken up. In course of investigation, P.W.16 examined the witnesses. He also examined the deceased and recorded her statement Ext.10. It is alleged that deceased also made dying declaration before P.Ws.10, 12, 14 and 15 implicating the appellant. Deceased expired in the hospital on 11.9.1999. Her dead body was subjected to post-mortem examination by P.W.7. On completion of investigation, charge-sheet was submitted against the appellant under Sections 498-A/302/304-B of the I.P.C. 4. Appellant took the plea of denial. In course of his examination under Section 313 of the Cr.P.C. the appellant stated that when he was in the toilet, he heard the deceased's screaming. He came and found that the deceased was burning. When he made an attempt to save her, he also sustained burn injuries and became unconscious. 5. Appellant took the plea of denial. In course of his examination under Section 313 of the Cr.P.C. the appellant stated that when he was in the toilet, he heard the deceased's screaming. He came and found that the deceased was burning. When he made an attempt to save her, he also sustained burn injuries and became unconscious. 5. In order to substantiate the charge, prosecution examined sixteen witnesses in all. P.WS.7, 10, 12, 14, 15 and 16 have already been introduced. P.Ws.1 and 2 are Police Constables who assisted in investigation. P.Ws.5, 6, 8 and 13 are seizure witnesses. Of them P.W.5 did not state to have witnessed any seizure and P.W.6 was declared to be hostile witness. P.W.9 is a doctor who assisted P.W.7 in conducting post-mortem examination. P.W.11 is the priest who solemnized the marriage between the appellant and the deceased. Prosecution also relied upon documents marked Exts.1 to 15 and material objects M.Os.I and II. No oral evidence was adduced by the defence. However, document marked Ext.A, the medical requisition and injury report of the appellant, was relied upon by the defence. Placing reliance on the evidence of P.Ws.10, 12, 14 and 15 regarding oral dying declaration and of P.W.16 regarding written dying declaration, stated to have been corroborated by medical evidence of P.W.7, the trial Court held the appellant to be guilty of charge under Sections 302 and 498-A of the I.P.C. However, the appellant was acquitted of the charge under Section 304-B of the I.P.C. 6. In assailing the impugned judgment it was contended by Smt. Mohanty, learned counsel appearing for the appellant that evidence of P.Ws.10, 12, 14, 15 and 16 relating to alleged dying declaration made by the deceased in the hospital suffers from contradictions and inconsistencies. Prosecution has not adduced any evidence to suggest that the deceased was in a fit state of mind to make any statement during her treatment in the hospital. Evidence of said witnesses is not supported by medical evidence which does not indicate that the deceased died of burn injuries. It was further contended that prosecution has deliberately withheld the doctors and other staff who were associated with the treatment of the deceased as well as the bed-head ticket of the deceased. Suppression of material witnesses and documents from the scrutiny of the Court would lead to adverse presumption that the prosecution case is far from true. It was further contended that prosecution has deliberately withheld the doctors and other staff who were associated with the treatment of the deceased as well as the bed-head ticket of the deceased. Suppression of material witnesses and documents from the scrutiny of the Court would lead to adverse presumption that the prosecution case is far from true. 7. Mr. Das, learned counsel for the State relied upon the dying declaration and medical evidence to support the impugned judgment. 8. Having scrutinized the materials on record upon reference to contentions raised on behalf of the appellant it is obvious that prosecution case is based on oral dying declaration as deposed by P.Ws.10, 12 14 and 15, and dying declaration recorded by P.W.16. P.Ws.10, 12, 14 and 15 are close relations of the deceased whereas P.W.16 is the investigating officer. 8.1. Informant P.W.14 is deceased's brother. He testified that marriage between the deceased and the appellant was solemnized on 25.2.1994. The appellant was having a betel shop. Two to three years after the marriage the appellant started beating the deceased and forcing her to fetch money from her brother. After being beaten she used to come to her maternal home and take money. Four to five days before her death the deceased had come to their house and told that the appellant was beating her after taking liquor and was forcing her to get money from them. Thereafter the deceased left their house. Two days thereafter appellant's father came to their house and informed that the deceased was serious. P.W.14 alongwith his brother Murali went to appellant's house and found that the deceased had sustained burns on her person. P.W.14 further testified that the burns on her person were about 90 percent. She was able to talk. The appellant also had sustained burns. But he was in a state of intoxication. They took the deceased and the appellant to M.K.C.G. Medical College and Hospital, Berhampur. Next day morning the deceased told him that the appellant came to house in the night in a state of intoxication and asked their two years son to get up. Deceased told him not to awaken him. The appellant assaulted her and her son. The appellant also assaulted the deceased again and again. Thinking that the appellant would not assault further, the deceased brought the kerosene barrel which was nearby and poured on her body. Deceased told him not to awaken him. The appellant assaulted her and her son. The appellant also assaulted the deceased again and again. Thinking that the appellant would not assault further, the deceased brought the kerosene barrel which was nearby and poured on her body. The appellant was by then smoking cigarette and was under intoxication. He threw the burning cigarette on the body of the deceased who was wearing a polyster saree. The saree got fire and deceased cried aloud. P.W.14 also deposed to have lodged the F.I.R. Ext.8 scribed by P.W.15 in the police station, and also to have witnessed the inquest and certain seizure. In his cross-examination P.W.14 deposed that except him deceased was not telling about demand of money or about beating on her to anybody in their house. With regard to dying declaration made by the deceased, P.W.14 stated that apart from the deceased and himself, the doctor who was treating the deceased, deceased's uncle and his wife as well as hospital staff were present when the deceased told him about the cause of her death. P.W.14 further testified in his cross.-examination that one or two days after her admission in the hospital, the deceased died and thereafter he lodged FI.R. in the police station. 8.1.1. F.I.R. Ext.8 is a very short report in which it has been alleged by P.W.14 that after the marriage the appellant used to send the deceased to his house for bringing further dowry on different occasions and for that he was torturing the deceased physically and mentally. With regard to the death of the deceased it has been alleged in the F.I.R. that on 9.9.1999 at about mid night the appellant came to his house and asked for food to the deceased and after taking food he started assaulting the deceased and their son in a drunken condition mercilessly. When the deceased protested, the appellant brought the kerosene stored inside the house and forcibly poured the kerosene oil over the body of the deceased and threw a matchstick on to her which totally burnt her body. Thereafter, the informant was called by appellant's father and on his query the deceased disclosed about the incident before P.W.14 and doctor. 8.1.2. Thus P.W.14's version with regard to the nature of dying declaration made in Court is not consistent with the F.I.R. version. Thereafter, the informant was called by appellant's father and on his query the deceased disclosed about the incident before P.W.14 and doctor. 8.1.2. Thus P.W.14's version with regard to the nature of dying declaration made in Court is not consistent with the F.I.R. version. In Court P.W.14 deposed that it was the deceased who herself brought the kerosene barrel and poured over her body. He also testified that the appellant, who was by then smoking cigarette, threw the burning cigarette on the deceased's body. In the F.I.R. it has been alleged that it was the appellant who brought and poured kerosene over the deceased. It is also alleged that the appellant threw matchstick on deceased's body and not the burning cigarette as testified in Court. That apart in the F.I.R. it has been alleged by P.W.14 that the appellant was not satisfied with dowry given at the time of marriage and after the marriage on different occasions he used to subject the deceased to physical and mental torture and send her to bring money from his house. Therefore, P. W.14 cannot be held to be a wholly reliable witness. 8.2. P.W.15 deposed that after the marriage for some time deceased and appellant were leading happy conjugal life. After some days the appellant started drinking liquor and under influence of liquor he used to beat the deceased several times. The appellant was compelling the deceased to get money from her brother. Three to four days before her death the deceased had come to her brother's house. She told him regarding the ill-treatment done by the-appellant on her. With regard to dying declaration P.W.15 testified that after deceased was hospitalized, he got information and came to the hospital and talked to deceased. Deceased told him that appellant returned to house late in the night of occurrence under influence of liquor. After taking meal, he started abusing the deceased in filthy words. The appellant then started beating his son. The deceased opposed and told that he was coming to the house in a drunken condition very often and she would end her life in order to keep the appellant disciplined. She brought kerosene and poured on her body. At this time the appellant lighted a cigarette and 'threw the lighted matchstick on the body of the deceased. The deceased opposed and told that he was coming to the house in a drunken condition very often and she would end her life in order to keep the appellant disciplined. She brought kerosene and poured on her body. At this time the appellant lighted a cigarette and 'threw the lighted matchstick on the body of the deceased. P.W.15 stated that he heard regarding the incident from deceased on the day following night of occurrence at about 10 A.M. In his cross-examination P.W.15 stated that doctor was not present when the deceased told him about the occurrence. However, after sometime the doctor who was treating the deceased and the Magistrate came for recording dying declaration and recorded whatever the deceased told before them. Thus, P.W.15 contradicts P.W.14 by deposing that the deceased told that the appellant threw lighted matchstick on her, and not burning cigarette, as deposed to by P.W.14. P.W.15 also did not testify that the deceased alleged that she was assaulted by the appellant. 8.3. P.W.10 testified that he saw in the hospital that the deceased had been admitted with about 70 per cent burn injuries. He asked the deceased as to how she was burnt. In reply, the deceased told that due to a quarrel her husband pouring kerosene on her and set fire to her body. Thus, P.WS.10's version that the deceased alleged the appellant to have poured kerosene on her is inconsistent with the testimonies of P.Ws.14 and 15. 8.4. P.W.12 stated in her evidence that two years after her marriage, deceased frequently came to her father's house and asked for money telling that she was being pressurized to bring money. She did not allege that the deceased complained of physical or mental torture inflicted by the appellant. As regards deceased's dying declaration she stated that in the hospital when she asked the deceased as to how she was burnt, deceased told her that the appellant in a drunken state assaulted his 'children', but the deceased protested and in a state of anger threatened to commit suicide. Appellant poured kerosene oil on his body. So there was tussle and mutual push and pull between the deceased and the appellant in course of which deceased's body was also soaked with kerosene oil. Appellant, who was smoking cigarette, put the burnt cigarette end on her body and she caught fire. Appellant poured kerosene oil on his body. So there was tussle and mutual push and pull between the deceased and the appellant in course of which deceased's body was also soaked with kerosene oil. Appellant, who was smoking cigarette, put the burnt cigarette end on her body and she caught fire. Thus, nature of deceased's dying declaration as deposed by P. W.12 is at variance not only with the evidence of P.Ws.10, 14 and 15 but also with the prosecution case as narrated in the F.I.R. P.W.12 did not state that the deceased alleged assault on her or her son by the appellant. According to P.W.12, deceased did not allege that either she herself or the appellant poured kerosene on her. On the contrary, deceased stated that the appellant poured kerosene over himself and in course of tussle and mutual push and pull, her body was soaked with kerosene. 8.5. P.W.16 the investigating officer stated that after registration of the case she went to the hospital. No doctor was present in the ward in which the deceased was admitted. Deceased was conscious. She examined the deceased and recorded the statement Ext.10. It appears from the statement of the deceased recorded under Section 162 of the Cr.P.C. that the deceased stated before the investigating officer that the appellant used to return home every day-in an intoxicated state and pick up quarrel. In the night of occurrence also he returned home in an intoxicated state and assaulted the child. When the deceased opposed him, the appellant threatened to commit suicide. The deceased told that why he would commit suicide instead of her. In order to create fear in the appellant deceased poured kerosene on herself. The appellant lighted a cigarette and threw the burning matchstick on the deceased. As a result, the deceased as well as the appellant were burnt. It appears from the evidence of P.W.16 that she gave requisition to the doctor as well as the Magistrate for recording deceased's dying declaration. Ext.11 is stated to be the deceased's statement recorded by the doctor from which it appears that the deceased did not answer any question put to her except to the question regarding the nature of material with which she was burnt. She simply uttered the word 'kerosene'. An endorsement has been made in Ext.11 to have been prepared at about 12 noon in the hospital. She simply uttered the word 'kerosene'. An endorsement has been made in Ext.11 to have been prepared at about 12 noon in the hospital. Exhibit 13 is stated to be the report of the Magistrate upon making an effort to record dying declaration of the deceased on 11.9.1999. It has been reported in Ext.13 that the deceased could not answer any of the questions and gave only incomprehensible muttering sound. As no doctor was present in the ward, the Magistrate could not obtain a certificate regarding the level of deceased's consciousness. He found it impossible to record deceased's dying declaration. 9. Thus evidence of informant P.W.14 in Court is inconsistent with and contradicted by contents of the F.I.R. Evidence of the witnesses before whom the deceased is stated to have made dying declaration, portrays different versions of the occurrence to have been narrated by the deceased. 10. It is well settled that though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court must be satisfied that the deceased was in a fit state of mind. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. A dying declaration which suffers from infirmity cannot form the basis of conviction. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. In this connection, decisions of the Hon'ble Supreme Court in State of U.P. - v. Madan Mohan : AIR 1989 S.C. 1519 and Surinder Kumar v. State of Haryana : 2011 (12) Scale 172 may be readily referred to. 11. Prosecution case is that deceased died of burn injuries. From the medical evidence of P.W.7 who conducted post-mortem examination over the dead body of the deceased it appears that he found the following injuries : "External injuries : 1. 11. Prosecution case is that deceased died of burn injuries. From the medical evidence of P.W.7 who conducted post-mortem examination over the dead body of the deceased it appears that he found the following injuries : "External injuries : 1. Superficial burn injury involving almost the whole of body including face and perineum except both soles were the cuticles has been peeled of except the outer aspect of both thigh and perunum. The intact cuticle layer looks black because of deposition of carbon particles with burnt and un-burnt area specially at the soles shows line of redness. Burnt areas are covered by white medicaments with eye brow, eye laces, pubic hairs and auxiliary hairs burnt and signed. Scalp hairs burnt, signed and emits kerosene like smell. Internal injuries : 1. All the organs intact, congested, jaryns and trachea in tact, congest and contains carbon shoots. 2. Subscalpal contusion of size 6 cm x 4 c.m. and 4 c.m. x 4 c.m., respectively over frontal eminence and right parietal eminence. 3. Uterus enlarged, looks congested including endenexa measures 16 c.m. x 11c.m. x 3 c.m. On dissection, it contains a male fetus measuring 8 c.m. by length with development of placenta and cord," P.W.7 opined that all the injuries were ante mortem in nature. The external burn injury was caused by application of dry heat while the internal injuries were caused by hard and blunt force impact. Cause of death was due to shock. Thus, deceased was found to have sustained superficial burn injuries, and not 70 per cent burn injuries as deposed by P.W.10 or 90 per cent burn injury as deposed by P.W.14. Cause of death was stated to be due to shock. She had internal head injury caused by hard and blunt force impact. Evidence with regard to dying declaration including Ext. 10 recorded by P.W.16 does not indicate the circumstance under which deceased sustained head injury. In Ext.10 there is no indication that the deceased alleged that the appellant assaulted her. Hence, evidence on record with regard to deceased's dying declaration is not corroborated by medical evidence also. . 11. Evidence with regard to dying declaration including Ext. 10 recorded by P.W.16 does not indicate the circumstance under which deceased sustained head injury. In Ext.10 there is no indication that the deceased alleged that the appellant assaulted her. Hence, evidence on record with regard to deceased's dying declaration is not corroborated by medical evidence also. . 11. To make the situation worse prosecution has not examined any of the doctors who was associated with deceased's treatment 'in the hospital, there is no evidence on record to support the finding that the deceased was in a fit state of mind while under treatment in order to make any declaration. In Ext.10 also there is no indication regarding the mental condition of the deceased. That apart, P.W.16 was constrained to admit that he did not seize the bed-head ticket of the deceased. Non-examination of any of the doctors who were associated with deceased's treatment and non-production of bed-head ticket and documents relating to deceased's treatment in hospital has rightly been assailed to be material suppression of evidence. Investigation in the case appears to have been conducted in a most perfunctory manner. 12. In view of the above, there is absolutely no scope to hold that evidence of deceased's dying declaration adduced by the prosecution inspires confidence to constitute a firm basis to record conviction. The impugned judgment is liable to be set aside. Accordingly, the appeal is allowed. The judgment dated 17.1.2003 passed by learned 1st Additional Sessions Judge, Berhampur in Sessions Case No.3 of 2000/- Sessions Case No.61 of 2000 GDC is set aside. The appellant is acquitted of the charge. I agree. Appeal allowed.