JUDGMENT K.U. CHANDIWAL, J. :- The appellants question judgment and order dated 21st July, 2011 recorded by the learned Additional Sessions Judge, Parbhani in Sessions Trial No.17/2010, thereby convicting them for offence under Section 302 read with Section 34 of Indian Penal Code, directing to undergo rigorous imprisonment for life and fine of Rs.500/- each, in default to undergo, simple imprisonment for two months. The appellants are acquitted for the offence under Section 498-A read with Section 34 of IPC. 2. Rukhminibai (deceased) was married to appellant No.1 - Pandharinath prior to seven years of the incident. Appellant No.2 - Sumanbai is mother-in-law of Rukhminibai. The couple was blessed with a son. Rukhminibai and appellants were residing separately from other family members. 3. On 13.3.2009, incident of Rukhminibai suffering burn injuries at around noon, has taken place, and she was taken to Civil Hospital, Parbhani by appellant No.2 Sumanbai and Smt. Gangasagar with others. At the time of admission, her physical condition was critical, the risk and blink chances of her survival were conveyed by attending Medical Officer to Sumanbai. While at hospital, her dying declaration (Exhibit-19) (admitted) was recorded. Her second dying declaration (Exhibit-17) was recorded on 14.3.2009 before the Head Constable - PW No.2 - Sk.Nasir Ahmed. This gave rise to registration of the F.I.R. (Exhibit-27), vide Crime No.13/2009 by Bori police station. Her third dying declaration was recorded on 15th March, 2009 at Exhibit-34. 4. Rukhminibai died on 18th March, 2009 during medical treatment at Government Hospital at Parbhani. Her inquest (Exhibit-38) was admitted by the Appellants. Post-mortem (Exhibit-15) was carried on the dead body of Rukhminibai by PW No.1 - Dr. Bashir Ahmed Khan Nasir Khan. He has proved the same. Reason, according to him, was septicemic shock due to burn thermal mixed type. 5. Spot panchanama was drawn (Exhibit-18) on 15th March, 2009 between 9.30 to 10.15 a.m. PW No.3 - Sheshrao Bhaoji Korde was the panch, however, did not support the prosecution. 6. The incriminating articles, i.e. Match-stick, kerosene can were sent to the office of Chemical Analyzer, Aurangabad. 7. After completion of investigation, final report was filed before the learned Judicial Magistrate, First Class, Manwat, vide RCC No. 51/2009. It was committed to the Court of Sessions, Parbhani. 8. Charge below Exhibit-8 for offence punishable under Sections 498-A, 302 read with Section 34 of IPC was explained to the accused/appellants in Marathi. 7. After completion of investigation, final report was filed before the learned Judicial Magistrate, First Class, Manwat, vide RCC No. 51/2009. It was committed to the Court of Sessions, Parbhani. 8. Charge below Exhibit-8 for offence punishable under Sections 498-A, 302 read with Section 34 of IPC was explained to the accused/appellants in Marathi. The accused/appellants did not plead guilty to the charge and claimed to be tried. WITNESSES: 9. In order to bring home guilt against the appellants/accused, the prosecution put in following eight witnesses, - (a) PW No.1 - Dr. Bashir Ahmed Khan Nasir Khan, who carried post mortem notes; (b) PW No.2 - Shaikh Nasir Khan Police Head Constable, then attached to police station, Bori. He has recorded the dying declarations of deceased - Rukhminibai; (c) PW No.3 - Sheshrao Bhaoji Korde, did not support. (d) PW No.4 - Mohd. Khaja Hashmi Mohd. Yousuf was the Special Executive Magistrate and based on requisition from Nanalpeth police Station, Parbhani, to record dying declaration of Smt. Rukhminibai at Government Hospital, Parbhani, he visited the hospital on 15.3.2009 at 2.45 p.m. and recorded dying declaration in presence of medical officer Dr. Mrs. Bhisewad. He has also recorded third dying declaration on 15th March, 2009, having specifically called by police to do so. (e) PW No.5 - Kailas Khandoji Chopade (at Exhibit-39), is uncle of deceased Rukhminibai. He has been examined to prove demand ofRs.30,000/- extended by appellants, three months prior to the incident, as allegedly conveyed by Rukhminibai. (f) PW No.6 - Dr. Sandhyarani Narayan Doni was working as medical Officer on 14th March, 2009, endorsed the dying declaration to the effect that patient is conscious to give statement On 14.3.2009 at 5.00 p.m. (Exhibit-47). She remained present throughout the process of statement of Rukhminibai and made even subsequent endorsement (Exhibit-48). (g) PW No.7 -Sunil Ramrao Nagargoje PSI recorded statement of witnesses, he had arrested the appellants/accused on 16th March, 2009 (arrest panchanama, Exh.57 and 58). (h) PW No.8 Dr. Archana d/o Vithalrao Bhusewad, was Chief Medical Officer in Civil Hospital, Parbhani on 15.3.2009 and had endorsed the dying declaration about certifying fitness of Rukhminibai to give dying declaration (Exh.33, endorsement at Exh.35). She has produced medical case papers at Exhibit-74. 10. It is evident, the medical papers produced by PW No.8 - Dr. Archana was pursuant to order dated 14.2.2011. She has produced medical case papers at Exhibit-74. 10. It is evident, the medical papers produced by PW No.8 - Dr. Archana was pursuant to order dated 14.2.2011. It was not part of charge sheet nor procedure, as contemplated under Section 173(8) Cr.P.C., was followed. Evidence closure pursis is at Exh.77. 11. In the statement under Section 313 of Cr.P.C. (Exhibits-62, 63, 78 and 79), the accused denied the prosecution case. The appellant - Pandharinath stated, at the time of incident, he was not at home and there was no demand made at any time. He had substantial means to pull on life, having three acres of agriculture land and he was working as a Cleaner on a jeep with his brother owned by family. SUBMISSIONS : 12. Submissions from Mr. Mahajan, learned Counsel for the appellants and learned APP, were taken note of. According to the defence, three dying declarations should be looked into with circumspection. They do not inspire confidence to accept. There is no direct evidence against the appellants. Appellant No.1, from available material, was not present when the unfortunate event has taken place. The prosecution has failed to prove ill-treatment contemplated under Section 498-A IPC and the appellants are acquitted. This being the condition, there remain no motive for the appellants to cause death of Rukhminibai. The case more projects accidental burns, suffered by Rukhminibai, which is even supported by post mortem notes, particularly the burn injuries suffered 63%, without any injury to skull and brain. 13. Learned APP says, deceased was admitted by appellant No.2. History of accidental burn was recorded in Casualty ward. History given by relative was “accident burns while cooking”. It was not by patient. In the first dying declaration, deceased stated that while she was cooking, she suffered burn injuries. She does not hold the appellants responsible. However, first dying declaration was associated in the background of presence of in-laws and she mustered courage on arrival of PW No.5 - Kailas Chopade, her uncle to whom also, she orally conveyed that she suffered burns being set on fire by the appellants. DISCUSSION: 14. Catalogue of events and documents, emerging from evidence of above referred witnesses, lead to an admitted position that Rukhminibai, while she was at her matrimonial home, on 13.3.2009, at 12.00 noon, suffered burn injuries and while undergoing treatment expired at the hospital. DISCUSSION: 14. Catalogue of events and documents, emerging from evidence of above referred witnesses, lead to an admitted position that Rukhminibai, while she was at her matrimonial home, on 13.3.2009, at 12.00 noon, suffered burn injuries and while undergoing treatment expired at the hospital. Inquest on her is admitted by defence. 15. So far as first dying declaration is concerned, there is no allegation against either mother-in-law or husband. The declarant while in fit mental condition, having endorsed so by medical officer, Dr Mardikar at 5.30 p.m. recorded in "question and answer form", illustrate the situation. Deceased Rukhminibai claimed, in the afternoon on 13.3.2009, while she was preparing tea for herself, her saree came in contact with fire and due to flames of fire, she suffered injuries. She crawled to nearby earthen pot (Ranjan) and extinguished. She was yelling, screaming, which attracted attention of her in laws Sumanbai and Radhabai. They all along, with Balaram, carried her to hospital. 16. In answer to 2nd question whether she has to say anything more, she stated, she has nothing to add. Her husband was not present at the time of incidence. He had gone to attend as cleaner at jeep. She confirmed that her statement was read over to her and it was correct as was narrated by her. It was then endorsed by the Special Executive Magistrate and the Medical Officer Dr. Mardikar (Exhibits-37, 19, 36 and 37). 17. It is also curious that while admitting in the hospital, brief endorsement shows of suffering bum injuries due to cooking. Subsequent spices are added to the dying declarations, implicating the appellants as to the appellants have controlled the deceased, lied her and stated, since the demand was not complied by her uncle, they do not need her and doused kerosene from the can and both lit match-stick and claimed let her die. She left the room. She moved to nearby water-pot and extinguished fire. Thereafter, her in-laws - Sumanbai, Balaram, Pandurang, Gangadhar, Pandharinath, Gangasagarbai, her father-in-law Atmaram, took her in a jeep, brought her at Government hospital, Parbhani. She has explained, earlier dying declaration dated 13.3.2009 was given as she was threatened with dire consequences to remain unattended at hospital and to eliminate her son. Hence, according to her, first dying declaration was tutored. She regained strength to make true disclosure owing to presence of her parental relations. 18. She has explained, earlier dying declaration dated 13.3.2009 was given as she was threatened with dire consequences to remain unattended at hospital and to eliminate her son. Hence, according to her, first dying declaration was tutored. She regained strength to make true disclosure owing to presence of her parental relations. 18. The third dying declaration dated 15.3.2009 recorded at 3.15 p.m. also certifies about her consciousness, well orientation and able condition to give a statement. She narrates, it was Friday at around 12 noon, and the incident has taken place at her house. She was residing separately with her husband in area of plot; she was ill-treated since three months by her husband and mother-in-law to fetch Rs.30,000/- from her uncle to enable her husband to open a Grocery (Kirana) shop. 19. PW No.6 - Dr. Sandhyarani clarifies, while recording 2nd dying declaration she was unable to say whether Rukhminibai was conscious throughout the statement as endorsed below Exhibits-47 and 48. The learned Judge has indeed discarded her evidence, but relied on shaky evidence of PW No.2 -Shaikh Nasir Ahmed, who had recorded 2nd dying declaration (Exh. 17), which was forming part of the FIR. Even language in 2nd dying declaration (FIR) does not match to a rustic lady. It was more leaning to a refine version of police staff like PW No.2 - Shaikh Nasir Khan. One cannot expect that language to be of PW No.2, but the substance too should be of deceased Rukhminibai. 20. The question before this court is, how far these three inconsistent dying declarations would accelerate prosecution case against the appellants. It is well-settled that dying declaration can form a sole basis for conviction provided• it is free from infirmities and satisfies the tests of its truthfulness (Khushalrao Vs. State of Bombay - AIR 1958 SC 22 : [2008 ALL SCR (O.C.C.) 41]). In a case, where there are more than one dying declaration and if some inconsistencies are noticed between one and the other, it is expected of the Court to examine nature of the inconsistencies, including whether they are going to root of the matter as also surrounding circumstances. 21. On analytical study of three dying declarations, we find, learned Additional Sessions Judge side-lined noticeable discrepancies looming large between three dying declarations made by the deceased Rukhminibai. 21. On analytical study of three dying declarations, we find, learned Additional Sessions Judge side-lined noticeable discrepancies looming large between three dying declarations made by the deceased Rukhminibai. One should not be oblivious to sphere of scrutiny of dying declaration, as in the instant case, is a very restricted area and consequently court cannot afford to sideline such material divergence relating to commission of offence or involvement of the appellants. 22. In the first dying declaration, deceased Rukhminibai unhesitatingly, while she was in a mental fit state, says, her husband was away at the time of incident. This is supported from narration of her husband that he was in the field and having learnt of the incident, he rushed to hospital at Parbhani. The Hospital record and the travel details given by the informant in 2nd or 3rd dying declaration, indeed substantiate that her husband did not accompany her. The natural phenomena of accidental death surfacing in the matter are, no sooner deceased Rukhminibai suffered flames, she crawled to extinguish fire. Her yelling attracted appellant No.2 and other relations. Other relations are not examined by the prosecution. This is a very fatal discrepancy and a vacuum created. The colours added and sprinkled to the 2nd dying declaration are obvious; they are effects of influence exerted by her uncle and other parental relations. This is more clearly spelt out in the dying declaration of her mustering courage to say so. It is again improbable considering nature of injuries suffered by deceased Rukhminibai, indicated in medical papers (Exh.74) and post mortem notes illustrate, they were from frontal area or dousing of kerosene by third party is not emerging from attending circumstances. 23. The post mortem notes describe nature and extent of thermal burns, as under: "1) HNF(Head, nose face) - 9% 2) Anteriortrunk - - 18% 3) post trunk - 18% 4) RUE (Right upper extremity - 9% 5) LUV(Lower upper extremity - 63% TOTAL 63% mixed type Her palm remained intact. 24. The medical papers at Exhibit74 illustrate, there was no improvement, progress was poor and it was informed to her relations. On 15.3.2009, her general condition was poor though she was conscious and well oriented. 24. The medical papers at Exhibit74 illustrate, there was no improvement, progress was poor and it was informed to her relations. On 15.3.2009, her general condition was poor though she was conscious and well oriented. Her statement was recorded in the situations itself, which was completed at 3.50 p.m. On 17.3.2009, her general condition was not satisfactory and on 18.3.2009 at 6.30 p.m., she was gasping, feeble, her blood-pressure could not be recorded. At 6.35 p.m. her respiration stopped; pupils dilated and fixed corneal reflex absent and she was declared dead. Her dead body was handed over to her uncle - Kailas Khandoji Chopade on 18.3.2009. 25. Doubt in respect of two dying declarations recorded by PW No.2 - Shaikh Nasir Ahmed is again multiplied as PW No.7 – Sunil Ramrao Nagargoje (Exh. 56) accepted that there were no directions to PW No.2 for recording the dying declaration of deceased Rukhminibai. PW No.4 Mohd. Khaja Hashmi Mohd. Yousuf has recorded 1st dying declaration (Exh.19) and 3rd dying declaration (Exh.34). He indeed asked deceased as to why she was side-lining the 1st dying declaration to 3rd dying declaration, to which, explanation was offered by deceased Rukhminibai that on 13.3.2009, accused/appellants were present at the hospital and they extended threats and warned her that statement of accidental burn should be given. Presence of appellant No.2 at the hospital even recorded in medical papers (Exh.74) will not diminish her case and stand. It will not indicate of rampant tutoring or ravishing mind-structure of Rukhminibai to divest her from truth. 26. Taking these situations and the circumstances, we have no hesitation to hold that the subsequent dying declarations cannot be accepted. They indeed tend to render former dying declaration as false. The situation is, even in the dying declaration the truthfulness of narration itself is rendered doubtful, no reliance of whatsoever caliber can be placed on such blurred, shaky dying declaration. The overt act attributed to the police in subsequent dying declarations bypassing the first dying declaration, is even rebelling factual scenario as her husband was absent at the time of event. One thing is common, that deceased Rukhminibai herself extinguished fire. If it was so, there was no inhibition for deceased Rukhminibai to make a disclosure, while she was removed to hospital, to the persons, who interacted with her or at the hospital to police staff or hospital staff. One thing is common, that deceased Rukhminibai herself extinguished fire. If it was so, there was no inhibition for deceased Rukhminibai to make a disclosure, while she was removed to hospital, to the persons, who interacted with her or at the hospital to police staff or hospital staff. No investigation on this line was carried nor the statements of such persons put-forward to analytically evaluate the material. It is well-settled; the dying declaration has to pass a test of reliability as the declarant is not subjected to cross-examination. Acceptance of one of the dying declarations falsifies the other. The evidence naturally suggests that the dying declaration was manipulated with tutoring by her uncle. The versions discussed in subsequent dying declarations are quite different and even the threat perceptions in 2nd and 3rd dying declarations, is again mis-matching. 27. The overall evaluation of the three dying declarations, coupled with evidence of her uncle, indeed do not inspire confidence to its correctness. It is result of prompting, tutoring and product of imagination. Even if the deceased was in a fit state of mind, as is certified by Medical officer at respective dying declarations, however, the declaration of Rukhminibai cannot be stated to be voluntary to base conviction, without further corroboration. It is pertinent; there is no eyewitness or any other circumstances against the appellants. 28. The spot panchanama does not accelerate prosecution case to point out any adverse circumstance against the accused/appellants. In fact, the gravity and significance of recording spot panchanama has been fractured and frustrated, as it was recorded after three days of the incident and without any traces of kerosene, barring kerosene can. The topography given in the spot panchanama about presence of hearth and traces of burn pieces of saree of Rukhminibai also support the first dying declaration than the subsequent two dying declarations. CA report (Exh.60); plastic can, even if pointing detection of kerosene residues to be positive, will not be a pointer for involvement of the accused/appellants. 29. The learned Additional Sessions Judge, on analysis of evidence, disbelieved allegation of demand of money by the appellants to the tune of Rs. 30,000/-, as except the bare words, there was no other convincing evidence. There were general allegations of demand of money, which are not sufficient. The learned Judge acquitted the accused/appellants for the offence under Section 498-A r/w 34 of Indian Penal Code. 30,000/-, as except the bare words, there was no other convincing evidence. There were general allegations of demand of money, which are not sufficient. The learned Judge acquitted the accused/appellants for the offence under Section 498-A r/w 34 of Indian Penal Code. The learned Judge has noticed that there was no ill-treatment or torturing to deceased Rukhminibai or cruelty. There was no such willful conduct demonstrated to cause grave injury or danger to life. The evidence in respect of harassment to deceased Rukhminibai was also not satisfactory and convincing. Since there was no material for ill-treatment, harassment or cruelty in terms of Section 498-A Indian Penal Code then there was no motive for the appellants to deal with deceased Rukhminibai when the couple was residing separate and appellant No.2 was residing with other son. 30. In the result, we hold, the prosecution has failed to prove charge for offence under Section 302 r/w 34 of Indian Penal Code against the appellants/accused beyond reasonable doubt. Criminal Appeal No.419/2011 is allowed. The accused/appellants are acquitted of the charge under Section 302 r/w 34 of Indian Penal Code. They are set at liberty, if not required in any other offence/crime. Fine amount, if any; be refunded to the appellants accused. Appeal allowed.