Judgment Rakesh Saksena, J.:-- 1. Appellant has filed this appeal against the judgment dated 22.10.2002 passed by I Additional Sessions Judge. Katni in Sessions Trial No. 105/2001 convicting the appellant under section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1,000/-. In default of payment of fine, further rigorous imprisonment for three months. 2. In short, the prosecution case is that appellant was married to Laxmi Bai in the year 1991. After marriage appellant used to harass Laxmi Bai for not meeting the demand of a motorcycle. Whenever she went to her parents house, she made complaint in this regard. Since 1997 till 1999 she lived at her parents’ house. Though a Luna moped was given to appellant by the father of Laxmi Bai, but he was not satisfied. He, however, took Laxmi Bai with him. It is said that on 28.12.2000 at about 2:00 p.m. he poured kerosene over Laxmi Bai and set fire to her. He thereafter carried Laxmi Bai to Government Hospital, Katni where her injuries were examined by Dr. T.N. Khare (P.W.4), who vide his MLC report Ex. P/4 found 36% of burn injuries. 3. Dr. T.N. Khare (P.W.4) sent an intimation to police station, Katni about bringing of Laxmi Bai in bum condition. On the requisition of police, Naib Tehsildar/Executive Magistrate RR Pandey (P.W.5) went to hospital and after obtaining certificate from the doctor about the fitness of injured, recorded dying declaration Ex. P/5 of Laxmi Bai wherein she disclosed that her husband i.e., Appellant set fire to her. Her parents and brother also met her in the hospital, to whom also she informed the same thing. On the basis of aforesaid dying declaration, police Madhav Nagar registered a case against the appellant under section 307 I.P.C. vide First Information Report Ex. P/13. 4. On 3.1.2001, because of burn injuries, Laxmi Bai expired. A merg intimation was recorded at police station, Katni. On the said information being referred to Police Station, Madhav Nagar, Marg 1/2001 was registered and the case against appellant was converted into one under section 302 I.P.C. After requisite investigation and arrest of appellant on 5.1.2001 charge-sheet against him was filed in the Court of Magistrate. The case was thereafter committed to the Court of Sessions. 5. On the said information being referred to Police Station, Madhav Nagar, Marg 1/2001 was registered and the case against appellant was converted into one under section 302 I.P.C. After requisite investigation and arrest of appellant on 5.1.2001 charge-sheet against him was filed in the Court of Magistrate. The case was thereafter committed to the Court of Sessions. 5. Learned Trial Judge framed charges against the appellant under section 302 I.P.C. and in alternative under sections 306 and 498-A, I.P.C., however, finding the evidence insufficient for making out the charge under sections 306 and 498-A. I.P.C., acquitted him of the said charges. 6. During trial, appellant abjured his guilt and pleaded false implication. According to him, deceased was an obstinate and ill-tempered woman. She suffered burn injuries by stove and she made false dying declarations against him. He also examined his son Shiva (D.W.1) as defence witness. 7. Learned Trial Judge upon trial and after appreciation of evidence held the appellant guilty and convicted and sentenced him under section 302 I.P.C. Aggrieved by his conviction, appellant has filed this appeal. 8. Learned Counsel for the appellant submitted that the learned Trial Judge misappreciated the evidence on record. Disbelieving the prosecution evidence in respect to the allegations of cruelty and abetment to commit suicide; it acquitted the appellant of those charges. However, relying on the evidence of dying declaration Ex. P/5 convicted the appellant. Dying declaration was inconsistent with other evidence adduced by the prosecution and was, therefore, unreliable. Out of annoyance and infuriation deceased gave untruthful version in the dying declaration on the prompting of her father, brother and Bhabi. Learned Trial Judge committed error in holding the appellant guilty on the basis of the evidence of the said dying declaration. On the other hand, learned Panel Lawyer for the State submitted that the dying declaration made by deceased was correctly recorded and was wholly reliable. There was no reason for deceased to have made false accusation against her husband. He submitted that the evidence of dying declaration Ex. P/5 stood supported by the evidence of Munshi (P.W.1), Suresh Gontia (P.W.2), Mamta (P.W.3) and Kallu Bai. (P.W.11) to whom also deceased made oral dying declaration. He supported the impugned judgment and finding of conviction recorded by the Trial Court. 9. We have heard the learned Counsel for the parties, perused the impugned judgment and the evidence on record carefully. 10. (P.W.11) to whom also deceased made oral dying declaration. He supported the impugned judgment and finding of conviction recorded by the Trial Court. 9. We have heard the learned Counsel for the parties, perused the impugned judgment and the evidence on record carefully. 10. It has not been disputed that Laxmi Bai died of burn injuries. Her father Munshi (P.W.1), brother Suresh Gontia (P.W.2), Bhabi Mamta (P.W.3) and mother Kallu Bai (P.W.11) categorically stated that Laxmi Bai suffered burn injuries on 28.12.2000 and died in the hospital on 3.1.2001. Dr. T.N. Khare (P.W.4) on 28.12.2000 examined injuries of Laxmi Bai and found superficial and deep burns on her face, chest, abdomen and arms. Her hair and palms were healthy. There was smell of kerosene in her hair. The burns were about 36% on her body. After examination he gave medico legal examination report Ex. P/4. According to him, deceased Laxmi Bai was burnt by dry flame. After the death of Laxmi Bai, Dr. B.B.S. Dikhit (P.W.6) conducted post-mortem examination of the body of deceased on 4.1.2001. He also found burn injuries on her, body. In his opinion, the cause of death of deceased was septicemia shock due to old burns. The cause of her death, in his opinion, could be given on the basis of circumstantial evidence only. Thus, from the above evidence, it is established that deceased died of burn injuries. 11. The next question before us is whether deceased died a homicidal death and that appellant caused burn injuries to her. In this regard, prosecution mainly relied on the evidence of dying declarations. Executive Magistrate R.R. Pandey (P.W.5) who was posted in Katni, on the requisition by police Katni, went to hospital to record the dying declaration of Laxmi Bai. After obtaining the certificate from Dr. Khare that Laxmi Bai was fit and capable to give her statement, he recorded her dying declaration Ex. P/5. In the said dying declaration. Laxmi Bai stated that at about 2:00 p.m. her husband Ravi Gontia poured kerosene on her and ignited her. On being asked why her husband ignited her, she disclosed that he deserted her in the past, but kept her again. He used to tell that he has to marry again. Dr. T.N. Khare (P.W.4) who was the treating doctor of deceased, stated that when Executive Magistrate Mr. On being asked why her husband ignited her, she disclosed that he deserted her in the past, but kept her again. He used to tell that he has to marry again. Dr. T.N. Khare (P.W.4) who was the treating doctor of deceased, stated that when Executive Magistrate Mr. Pandey came to record the dying declaration he examined the condition of deceased and certified that she was in a fit condition to give her statement and that he also endorsed his certificate about her fitness on Ex. P/5. 12. Learned Counsel for the appellant though not challenged seriously the recording of the dying declaration by the Executive Magistrate, but she submitted that the version given by the deceased in dying declaration implicating the appellant was not truthful. Merely out of annoyance she had made false statement against him. He pointed out that Dr. T.N. Khare (P.W.4) in his cross-examination, stated that deceased had suffered burn injuries by dry flame and these burns could have been the result of accidental burning since there were no marks of injuries, which ought to have been, there on the body of deceased while resisting the aggression. He also pointed out that Dr. Khare (P.W.4) did not find smell of kerosene on the body of Laxmi Bai when she was examined by him. 13. Learned Counsel for the appellant argued that the evidence of family members of deceased about the oral dying declaration made by her to them was inconsistent with the dying declaration Ex. P/5 recorded by Executive Magistrate. On perusal of the evidence of Munshi (P.W.1), Suresh (P.W.2), Mamta (P.W.3) and Kallu Bai (P.W.11), it is revealed that deceased told to them that accused set fire to her because they did not give him a Hero Honda motorcycle whereas in dying declaration Ex. P/5, deceased gave the reason for causing burn injuries by her husband that he wished to marry again. None of the aforesaid witnesses stated that appellant expressed his desire to marry again. Apart from it, it is also important to note that though the family members of deceased came to know from deceased that appellant had caused burn injuries to her, yet they did not lodge any report with the police. Even the police registered first information report Ex. P/13 under section 307 I.P.C. on 5.1.2001 i.e.; after the death of deceased on 3.1.2001. 14. Even the police registered first information report Ex. P/13 under section 307 I.P.C. on 5.1.2001 i.e.; after the death of deceased on 3.1.2001. 14. It appears that initially the Investigating Officer was not confident that it was a case under section 302 I.P.C., as such he registered the case under sections 306 and 498-A. I.P.C. in alternative. Even the charge-sheet was filed under both the offences. Learned Trial-Judge also framed the charges in alternative. Though Munshi (P.W.1), Suresh (P.W.2) and Mamta (P.W.3) respectively the father, brother and Bhabi of deceased stated that appellant used to make demand of a motorcycle and on not meeting the same harassed the deceased, but their evidence in this regard was disbelieved by the Trial Court and appellant was acquitted of the charges under sections 306 and 498-A of the Indian Penal Code. 15. Munshi (P.W.1), the father of deceased, stated that deceased was married to appellant about 15-16 years ago. There is also a 7-8 years old son of deceased. The quarrel between deceased and appellant was continuing since last 10-12 years, but it was only as generally occurs in other families. 16. Suresh (P.W.2), the brother, stated that he went to hospital to see the deceased all alone. He remained there for whole of the day. Though deceased told to him that appellant burnt her because motorcycle was not given to him, but appellant remained sitting by the side of deceased all the time. He stated that deceased did not tell him that appellant wished to marry again. It is strange that all the aforesaid witnesses though stated that they got infuriated by knowing that appellant caused burn injuries to deceased, but they did not make any report to police. Kallu Bai (P.W.M), the mother, stated that though deceased told to her that her husband ignited her, but she did not tell as to why he ignited her. Rather P.W.11 disclosed that the behaviour of appellant was cordial. Once they assured him for giving a bigger vehicle he never repeated its demand. When she asked appellant as to why he caused burn injuries to her daughter, he replied that he did not do it. 17. Learned Trial Judge, in view of the fact that for about 2 years deceased remained with her parents and that no stove was seized by the police from the spot, inferred that appellant was guilty. When she asked appellant as to why he caused burn injuries to her daughter, he replied that he did not do it. 17. Learned Trial Judge, in view of the fact that for about 2 years deceased remained with her parents and that no stove was seized by the police from the spot, inferred that appellant was guilty. In our opinion, merely because deceased did not live with appellant for’ a long time it cannot be held that appellant set her on fire. It is also important to note that seizure memo Ex. P/8 of articles from the spot was drawn on 3.1.2001 i.e., after the death of deceased. The incident had occurred on 28.12.2000. It is quite probable that the scene of occurrence might have been changed by the time the seizure memo was drawn. 18. The fact that after deceased suffered burn injuries appellant himself carried her to hospital for treatment and remained present there throughout, until she expired, militates against the idea of his culpability. The inconsistency between the evidence of witnesses speaking about the oral dying declaration and the evidence of dying declaration Ex. P/5 recorded by Executive Magistrate about the cause and the circumstances under which the incident occurred also creates suspicion about the truthfulness of the dying declarations. According to oral dying declaration, deceased disclosed that appellant ignited her because of not meeting the demand of motorcycle whereas according to Ex. P/5 appellant set fire to her because he wished to marry again. In these circumstances, it appears doubtful that appellant caused burn injuries to deceased, especially in view of the fact that appellant remained present and looked after the deceased upto her last, and further that none of the family members of deceased made any report against him with the police. 19. In Mehiboobsab Abbasabi Nadaf v. State of Karnataka, AIR 2007 SCW 4820 , Apex Court opined: “6. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.” 20. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.” 20. Similarly; these findings were once again approved by the Apex Court in case of Samadhan Dhudaka Koli v. State of Maharashtra, AIR 2009 SC 1059 . 21. In the light of aforesaid proposition of law, on examining critically and scanning the evidence adduced by the prosecution, we find that because of the inconsistency between the oral dying declaration made by deceased to her family members and the dying declaration Ex. P/5 recorded by Executive Magistrate, the truthfulness of the evidence of dying declarations has become doubtful. Since the maker of the dying declarations cannot be subjected to cross-examination for testing the veracity of her version, it shall be risky to accept the same. 22. The result is that we are unable to hold that prosecution has been successful in establishing the charge under section 302 I.P.C. against the appellant beyond a reasonable doubt. Accordingly, the conviction of appellant recorded by the Trial Court under-section 302 I.P.C. and the sentence awarded to him is set aside. He is acquitted. Appellant, who is reported to be in jail since 5.1.2001, be set at liberty forthwith, if not required in any other case. 23. Appeal allowed.