Oral Judgment A.S. Gadkari, J. 1. The Appellant / original accused has questioned the correctness of the judgment and order dated 28 November 2006 passed by the Learned Additional Sessions Judge, Gadhinglaj, District Kolhapur, thereby convicting him for offence punishable under Sections 302 and 506 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo further rigorous imprisonment for six months. The Learned Trial Court has further convicted the Appellant for an offence under Section 506 of the Indian Penal Code, thereby sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs.500/- , in default of which to further undergo rigorous imprisonment for three months. 2. The facts in brief which emerged from the record and which are necessary for deciding the present Appeal can be summarized thus: i) P.W.8 -Assistant Sub-Inspector Vilas Dongare was then attached to Juna Rajwada Police Station, Kolhapur. On 6 and 7 June 2004, he was deployed on duty at C.P.R. Hospital from 8.00 a.m. to 8.00 p.m. On 7 June 2004, he was on duty when victim Laxmi Appasaheb Gurav, a lady from Gadhinglaj Taluka was admitted in C.P.R. Hospital in burnt condition. P.W.8 – ASI Vilas Dongare thereafter on 7 June 2004 recorded her dying declaration. Before and after recording the dying declaration on 7 June 2004, P.W.10 – Dr. Mahendra Phalke put his endorsement that the patient was in a fit state of mind to give statement. ii) P.W.8 – ASI Vilas Dongare initially effected an entry in respect of the said incident in MLC register at C.P.R. Hospital. The dying declaration recorded by P.W.8 ASI Vilas Dongare is at Exhibit 45. After recording the dying declaration P.W.8 – ASI Vilas Dongare prepared a report in the name of Police Inspector, Gadhinglaj, as the incident in question had taken place within the jurisdiction of Gadhinglaj Police Station and along with the said report he submitted the dying declaration before Laxmipuri Police Station as C.P.R. Hospital was situated within the jurisdiction of Laxmipuri Police Station. The report submitted by P.W.8 – ASI Vilas Dongare is at Exhibit 46. iii) P.W.9 – Police Sub-Inspector Shivaji Bhosale, was then attached to Gadhinglaj Police Station. The report submitted by P.W.8 – ASI Vilas Dongare is at Exhibit 46. iii) P.W.9 – Police Sub-Inspector Shivaji Bhosale, was then attached to Gadhinglaj Police Station. On 7 June 2004 he received the dying declaration recorded at C.P.R. Hospital by P.W.8 - A.S.I. Vilas Dongare of Juna Rajwada Police Station along with his report and papers pertaining to the treatment given to the Appellant Appasaheb Gurav. On the basis of the dying declaration recorded by P.W.8 – A.S.I. Dongare, initially an offence bearing Crime No.0 of 2004 under Section 307 of the Indian Penal Code was registered against the Appellant at Laxmipuri Police Station, Kolhapur. However, as the place of offence was within the jurisdiction of Gadhinglaj Police Station, the relevant documents were sent to Gadhinglaj Police Station. On the basis of the documents which were received by the Gadhinglaj Police Station, Police Head Constable Shewale registered Crime No.67 of 2004 against the Appellant. After registration of crime at the Gadhinglaj Police Station, the investigation of the said crime was entrusted to P.W.9 – P.S.I. Shivaji Bhosale. iv) On 7 June 2004 itself P.W.9 – P.S.I. Shivaji Bhosale visited the place of occurrence and prepared the spot Panchanama in the presence of pancha witnesses. He seized the necessary and required articles for the purpose of investigation. The spot Panchanama i.e. the scene of occurrence Panchanama is at Exhibit 55. P.W.9 – P.S.I. Bhosale thereafter recorded the statements of necessary and relevant witnesses. On 7 June 2004 itself P.W.9 – P.S.I. Bhosale arrested the Appellant in connection with the crime. The arrest Panchanama of the Appellant is at Exhibit 60. He thereafter referred the Appellant for medical examination. The victim Laxmi Appasaheb Gurav i.e. the wife of the Appellant expired on 10 June 2004 while taking treatment at the C.P.R. Hospital. P.W.9 – P.S.I. Bhosale thereafter conducted the inquest Panchanama. He collected the necessary and required documents such as cause of death certificate and report of postmortem examination from the concerned authority and added Section 302 to the original CR No.67 of 2004 of Gadhinglaj Police Station. v) During the course of investigation, P.W.9 – P.S.I. Bhosale recorded the statements of relatives of the deceased Laxmi. He also sent the necessary articles seized in the crime for the opinion to the Forensic Science Laboratory, Pune. The Chemical Analyzer's report was received by him and is at Exhibit 62. v) During the course of investigation, P.W.9 – P.S.I. Bhosale recorded the statements of relatives of the deceased Laxmi. He also sent the necessary articles seized in the crime for the opinion to the Forensic Science Laboratory, Pune. The Chemical Analyzer's report was received by him and is at Exhibit 62. After completion of investigation, P.W.9 – P.S.I. Bhosale submitted a charge-sheet under Sections 302 and 506 of the Indian Penal Code before the competent Court having jurisdiction. 3. P.W.11 – Dr. Pravin Naik was then the Medical Officer attached to C.P.R. Hospital, Kolhapur and on 10 June 204 he along with Dr. Sangita Chunkikar conducted the postmortem examination on the dead body of Laxmi Appasaheb Gurav. During the postmortem examination, he noticed 60% superficial to deep burn injuries as per the diagram mentioned in column No.17 of the postmortem notes and it was associated with scattered pus all over and had a foul smell. During the internal examination he noticed as under: “Oedima and congestion of - 1. Brain 2. Both lungs 3. Desophagus 4. Stomach 5. Intestine 6. Liver 7. Pancreas 8. Spleen 9. Kidneys” 4. In his opinion the cause of death or probable cause of death of victim Laxmi was shock due to 60% burns superficial to deep burns. 5. After committal of the case to the Court of Sessions, the Trial Court framed charge below Exhibit 11. The said charge was read over to the Appellant to which he denied and claimed to be tried. The defence of the Appellant was that, the victim Laxmi was pouring kerosene from the bottle into the lamp and during the said transaction, all of a sudden a fire took place and Laxmi got burn injuries. He further claimed that while extinguishing the fire on the person of Laxmi, he also sustained injuries on his person. 6. The Learned Trial Court after recording the evidence of the witnesses and after hearing the parties to the said case was pleased to convict the Appellant under Sections 302 and 506 of the Indian Penal Code by its impugned judgment and order dated 28 November 2006 as stated aforesaid. 7. Mr. Arfan Sait, learned advocate appointed for the Appellant has submitted before us that the dying declaration recorded by P.W.8 – A.S.I. Vilas Dongare which is at Exhibit 45 suffers from serious legal infirmities. 7. Mr. Arfan Sait, learned advocate appointed for the Appellant has submitted before us that the dying declaration recorded by P.W.8 – A.S.I. Vilas Dongare which is at Exhibit 45 suffers from serious legal infirmities. He submitted that at the time of recording of the said dying declaration P.W.3 – Sugandha Gurav i.e. mother of the victim was present. He has further submitted that P.W.8 – A.S.I. Vilas Dongare in his evidence has nowhere stated that the said dying declaration was read over to the deponent and the deponent had admitted the same to be correct and recorded according to her say, though Exhibit 45 depicts that the said dying declaration was recorded as per her say and the same was read over to her. In support of his contention, learned counsel for the Appellant has relied upon a judgment reported in 2012 ALL MR (Cri) 2188 in the case of Abdul Riyaz Abdul Bashir v. State of Maharashtra. Learned counsel for the Appellant has further urged before us that the oral dying declaration given by the victim Laxmi to P.W.3 – Sugandha Gurav, the mother of the deceased, and P.W.4 – Rajendra Gurav, the uncle of the deceased also do not stand on the legal touchstone, on the ground that firstly, there is a vast variance in the said two oral dying declarations and the dying declaration recorded by P.W.8 - A.S.I. Vilas Dongare which is at Exhibit 45. Learned counsel for the Appellant therefore urged that as there is no other evidence than the aforesaid dying declarations, and as the dying declarations suffer from clear infirmity, the Appellant may be acquitted. Per contra, the learned APP has supported the impugned judgment and order and prayed that the Appeal may be dismissed. 8. In order to effectively deal with the submissions advanced before us by Mr. Arfan Sait, learned counsel appointed for and on behalf of the Appellant and the learned APP Mrs. Shinde, it would be useful to refer to the evidence of the prosecution witnesses in brief. 9. P.W.1 Maruti Gurav and P.W.2 – Bhimgonda Patil are the pancha witnesses to the scene of offence Panchanama i.e. the spot Panchanama. These two witnesses did not support the prosecution case and have been declared as hostile. P.W.9 – P.S.I. Shivaji Bhosale has proved the spot Panchanama which is at Exhibit 55. 9. P.W.1 Maruti Gurav and P.W.2 – Bhimgonda Patil are the pancha witnesses to the scene of offence Panchanama i.e. the spot Panchanama. These two witnesses did not support the prosecution case and have been declared as hostile. P.W.9 – P.S.I. Shivaji Bhosale has proved the spot Panchanama which is at Exhibit 55. Likewise P.W.5 - Sushila Gurav, the aunt of deceased Laxmi, P.W.6 – Amina, neighbour of the Appellant have also turned hostile as they did not support the prosecution case. It is pertinent to note here that in the cross examination P.W.1, P.W.2, P.W.5 and P.W.6 no fruitful material which could come to the help of the Appellant has been elicited by the prosecution. 10. P.W.8 – A.S.I. Vilas Dongare in his testimony has stated that on the date of incident he was attached to Juna Rajwada Police Station, Kolhapur as Assistant Sub-Inspector and was deputed on duty at C.P.R. Hospital. During the said period on 7 June 2004 Laxmi Gurav, a lady from Gadhinglaj Taluka was admitted to the hospital in burnt condition. He therefore contacted P.W.10 – Dr. Mahendra Phalke who was on duty as Medical Officer to the said hospital and enquired with him about the mental condition of the victim Laxmi with a view to record her dying declaration. He thereafter made an entry in the MLC Register. He thereafter went along with Dr. Phalke at the burn ward to record the dying declaration. He has stated that P.W.10 -Dr. Phalke ascertained the physical stability and mental condition of Laxmi and certified that the patient was in a position to give statement. That he thereafter recorded the dying declaration of Laxmi. He has further stated that Laxmi told him that her husband i.e. the Appellant for no reason used to abuse and beat her and was insisting her that she should not live with him and should go back to her paternal house. She had stated to him that there was nobody at her paternal house and she never used to go to her paternal house. In the dying declaration Laxmi stated to him that on 6 June 2004 at about 9.30 p.m., her husband poured kerosene from the bottle on the person and ignited her by lamp. She had stated to him that there was nobody at her paternal house and she never used to go to her paternal house. In the dying declaration Laxmi stated to him that on 6 June 2004 at about 9.30 p.m., her husband poured kerosene from the bottle on the person and ignited her by lamp. Laxmi also told him that after hearing her shouts her neighbours rushed there and at that time her husband also made an attempt to extinguish the fire on her person. Laxmi stated him that while taking her to the hospital for treatment, her husband had threatened her that she should make a statement that while taking rokel bottle from the rack, she was burnt due to the lamp, otherwise he would not allow her to reside with him and would kill her. P.W.8 A.S.I. Vilas Dongare stated that he recorded the dying declaration of Laxmi as per her dictate and while recording the dying declaration Dr. Phalke was present with him. 11. P.W.8 – A.S.I. Vilas Dongare has further stated that as both the hands of Laxmi were burnt and there were blisters on her palms, he obtained the impression of thumb of the left leg on the dying declaration and thereafter he obtained the identification from one Mahadev Gurav for the same. He has admitted the contents of the dying declaration which is at Exhibit 45. 12. It is important to note here that in his testimony, i.e. in the examination in chief P.W.8 – A.S.I. Vilas Dongare has nowhere stated that after recording of the dying declaration which is at Exhibit 45, it was read over to the deponent and the deponent admitted that the said dying declaration is recorded as per her own version. Learned counsel for the Appellant has urged before us that though the dying declaration dated 7 June 2004 which is at Exhibit 45 recorded by P.W.8 – A.S.I. Dongare at its end states that the said dying declaration was read over to the victim and the same was recorded by the police as per the say of the victim, in view of the legal infirmity that P.W.8 – A.S.I. Vilas Dongare has nowhere stated in his evidence that Exhibit 45 after its recording was read over to the victim and the victim has admitted that it is as per her own say. Learned counsel for the Appellant has relied upon a decision of this Court to which one of us, (Shri. P.V. Hardas, J.) is a member, reported in 2012 ALL MR (Cri) 2188 in the case of Abdul Riyaz Abdul Bashir v. State of Maharashtra. The Division Bench of this Court in the case of Abdul Riyaz (supra) after relying on a decision of the Supreme Court reported in 2007 AIR SCW 4120 in the case of Shaikh Bakshu v. State of Maharashtra has held that it is the material inherent infirmity when the declaration was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a declaration cannot be a foundation for sustaining the conviction. It has been further held that merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the statement and getting it endorsed to be correct, was actually followed. In the present case, we find that the contention of the advocate for the Appellant is correct. After perusal of the testimony of P.W.8 A.S.I. Vilas Dongare, we find that in his testimony he has nowhere stated that after recording of the said dying declaration which is at Exhibit 45, the same was read over to the victim Laxmi and she admitted it to be recorded as per her own version. Thus, in our view there is a material legal inherent infirmity in the dying declaration which can be seen from the deposition of P.W.8 – A.S.I. Vilas Dongare and in our opinion the said dying declaration at Exhibit 45 does not stand the test of legality and the same cannot be relied upon at all. 13. The evidence of P.W.7 - Police Constable Shivaji Tardekar and P.W.9 – P.S.I. Shivaji Bhosale, the carrier of muddemal articles to Chemical Analyzer and the Investigating Officer respectively is of formal in nature. Therefore it is not necessary to discuss about the same at length. 14. P.W.3 – Sugandha Gurav is the mother of deceased Laxmi. P.W.3 – Sugandha in her testimony has stated that deceased Laxmi was her daughter and was given in marriage to the Appellant. At the time of incident her daughter was residing at village Hitani. Therefore it is not necessary to discuss about the same at length. 14. P.W.3 – Sugandha Gurav is the mother of deceased Laxmi. P.W.3 – Sugandha in her testimony has stated that deceased Laxmi was her daughter and was given in marriage to the Appellant. At the time of incident her daughter was residing at village Hitani. After the marriage her daughter intermittently used to come to her village at Nandani and during her visits Laxmi used to complain that the Appellant used to harass and starved her. She has stated that she tried to convince the Appellant on two or three occasions, but the Appellant did not pay any heed to the same. P.W.3 – Sugandha has stated that after she learnt that her daughter is burnt and is admitted in Hospital at Kolhapur, she went to meet her. When P.W.3 – Sugandha enquired with Laxmi about the incident, Laxmi told her that her husband poured kerosene on her person and set her on fire by igniting a matchstick. She has further stated that her daughter survived for three days after the said incident and died in the said government hospital. This is the oral dying declaration to P.W.3 – Sugandha given by deceased Laxmi in hospital. 15. P.W.3 – Sugandha in her cross-examination has admitted that it is true that she came to know that her daughter was burnt while she was taking kerosene bottle which was kept on the wall and at that time the lamp which was in her hand got exploded and therefore Laxmi was burnt. She has further admitted that she received the information that the Appellant had attempted to extinguish the fire on the person of Laxmi and in that process the Appellant also got burnt injuries. P.W.3 – Sugandha in her cross examination has clearly admitted that she was present when the dying declaration of Laxmi was recorded by the police. She has also admitted in the cross-examination that her daughter was in burnt condition and was not in a position to talk properly. She has further admitted in the cross-examination that it is true that she and other relatives were present in the Hospital and they discussed together regarding the statement to be given to the police in the event of an enquiry being made by the police. She has further admitted in the cross-examination that it is true that she and other relatives were present in the Hospital and they discussed together regarding the statement to be given to the police in the event of an enquiry being made by the police. She has further in unequivocal terms admitted that she had instructed her daughter i.e. victim Laxmi that she should make a statement that the Appellant set her on fire. 16. In view of the admissions given by P.W.3 – Sugandha, the mother of deceased Laxmi, we are of the firm opinion that the oral dying declaration alleged to have been given by deceased Laxmi to P.W.3 – Sugandha is clearly an afterthought and it does not inspire confidence and fails to pass the test of reliability. It is also to be noted here that in view of the admission given by P.W.3 – Sugandha, the dying declaration recorded by P.W.8 - A.S.I. Vilas Dongare which is at Exhibit 45 is also hit on the ground of tutoring at the hands of P.W.3 – Sugandha. 17. P.W.4 – Rajendra Gurav is the uncle of deceased Laxmi. P.W.4 – Rajendra in his testimony has stated that after he came to know about the fact that Laxmi has been admitted to the Hospital at Kolhapur, in burnt condition for treatment, he visited the said Hospital. He made enquiry with Laxmi, when Laxmi told him that the accused poured kerosene on her person and set her ablaze with the help of a lamp. P.W.3 – Sugandha in her testimony has stated that when she visited the Hospital, victim Laxmi told her that her husband i.e. the Appellant poured kerosene on person and set her on fire by igniting a matchstick. We have noted that there is a variance in these two dying declarations given to P.W.3 – Sugandha and P.W.4 – Rajendra by Laxmi, the victim. P.W.4 – Rajendra Gurav in his testimony has admitted that he came to know about the fact of admission of Laxmi in government hospital at Kolhapur from P.W.3 – Sugandha, his sister. As we have observed above, the oral dying declaration alleged to have been given by Laxmi to P.W.3 – Sugandha is an afterthought at the hands of P.W.3. P.W.4 – Rajendra Gurav in his testimony has admitted that he came to know about the fact of admission of Laxmi in government hospital at Kolhapur from P.W.3 – Sugandha, his sister. As we have observed above, the oral dying declaration alleged to have been given by Laxmi to P.W.3 – Sugandha is an afterthought at the hands of P.W.3. We further observe that there is every probability of P.W.3 – Sugandha directing P.W.4 – Rajendra to make a similar statement with a view to roping the Appellant for the crime. As there is no consistency in the said two oral dying declarations and as we have come to the conclusion that the oral dying declarations alleged to have been made by the victim Laxmi to P.W.3 – Sugandha and P.W.4 - Rajendra is an afterthought at the behest of the witness i.e. P.W.3, we refrain ourselves from relying on the said two oral dying declarations. We are of the further opinion that P.W.3 – Sugandha must have also prompted P.W4 – Rajendra to make a similar statement before the police about the alleged dying declaration of the victim Laxmi. We therefore find that the oral dying declaration given to P.W.4 – Rajendra by Laxmi is not reliable and trustworthy and we refrain ourselves from relying on the same as a substantive piece of evidence. 18. The Appellant in his statement recorded under Section 313 of the Criminal Procedure Code, in his defence to the answer at question 47 has specifically stated that Laxmi was having a lamp in her left hand and she was taking kerosene bottle by her right hand and at that time kerosene spilled on the person of Laxmi and due to the said lamp Laxmi was burnt. He tried to extinguish the fire due to which he had also sustained burnt injuries on his hands and legs. We find substance in the defence of the Appellant, particularly in view of the findings recorded by us about the tutoring of P.W.3 – Sugandha to victim Laxmi to give the statement, as told by P.W.3. We are therefore of the firm opinion that the Appellant is entitled for benefit of doubt. 19. We find substance in the defence of the Appellant, particularly in view of the findings recorded by us about the tutoring of P.W.3 – Sugandha to victim Laxmi to give the statement, as told by P.W.3. We are therefore of the firm opinion that the Appellant is entitled for benefit of doubt. 19. The cumulative effect of the evidence adduced by the prosecution in support of its case is that the dying declaration at Exhibit 45 and the oral dying declarations given to P.W.3 – Sugandha and P.W.4 - Rajendra suffer from major legal infirmity and the said pieces of evidence are not reliable and trustworthy. We therefore give the benefit of doubt to the Appellant. 20. In the result, the Appeal is allowed and the conviction and sentence of the Appellant by the impugned judgment and order dated 28 November 2006 passed by the learned Additional Sessions Judge, Gadhingliaj is hereby quashed and set aside and the Appellant is acquitted of the charges levelled against him. Fine, if paid, by the Appellant be refunded to him. 21. Since we have acquitted the Appellant from all charges, the Jail Authority to release the Appellant forthwith if not required in any other case. Fees payable to Mr. Arfan Sait, learned Counsel appointed for the Appellant are quantified at Rs.5,000/-. A copy of this order be sent to the Jail Authority.