Judgment : L. Narasimha Reddy, J. 1. This is an unfortunate case, where an innocent person was made to suffer imprisonment for years together on account of gross negligence on the part of the Additional District & Sessions Judge, Nellore. 2. The appellant is Accused No.1 in S.C.No.437 of 2003 on the file of Additional District & Sessions Judge, Nellore. Himself and his mother (Accused No.2) were tried for the offence punishable under Sec.302, read with Sec.34 IPC for allegedly causing the death of wife of A-1, by name Kavitha. Through its judgment dt.25.01.2010, the trial Court acquitted A-2, but convicted A-1 for the offence punishable under Sec.302 I.P.C., and sentenced him to imprisonment for life and imposed fine of Rs.1,000/-, in default to suffer rigorous imprisonment for six months. 3. The wife of A-1 (Kavitha) suffered serious burn injuries and was admitted in Government Hospital, Nellore at about 3.30 p.m. on 18.05.2002. There is a police outpost in the Hospital and the on-duty Head Constable, PW-12 recorded the statement of the injured-Kavitha at about 4.00 p.m. He forwarded the same to the jurisdictional Police Station, based on which, the Station House Officer, Butchireddypalem Police Station, Nellore registered Crime No.74 of 2002, and made a requisition to the jurisdictional Magistrate – PW.15. At about 5.00 p.m., the statement of the injured - Kavitha was recorded by PW.15. Another statement was recorded from her by a Police Official on 19.05.2002. While undergoing treatment, the injured died on 26.05.2002. The Inspector of Police took up further investigation, and filed charge sheet mentioning that the deceased has stated, as in Ex.P.12, dying declaration, that the burn injuries were caused to her by her husband and mother-in-law, A-1 and A-2. 4. The trial Court framed necessary charges referable to the relevant provisions of law. Since the accused pleaded not guilty, trial was conducted, wherein PWs.1 to 16 were examined, Exs.P.1 to P.14 were filed, and M.O.No.1 was taken on record. The nature of disposal given by the trial Court, has already been indicated, at the threshold. 5. Sri O. Kailashnath Reddy, learned counsel for the appellant submits that serious miscarriage of justice has taken place in this case on account of the fact that the dying declaration recorded by Magistrate - PW.15 was not made as part of the record. The nature of disposal given by the trial Court, has already been indicated, at the threshold. 5. Sri O. Kailashnath Reddy, learned counsel for the appellant submits that serious miscarriage of justice has taken place in this case on account of the fact that the dying declaration recorded by Magistrate - PW.15 was not made as part of the record. He contends that a certified copy thereof was taken by the accused well in advance and though it was placed before the trial Court, no effort was taken to make it part of record. He contends that both in Ex.P.9, statement recorded by the Head Constable and in the dying declaration recorded by PW.15, the deceased categorically stated that she suffered burn injuries when she was lightening the kerosene stove and no allegation whatever was made against the accused, but, the trial Court treated the so called statement recorded under sec.161 Cr.P.C., as the sole basis for convicting A-1. He further submits that Ex.P.12 was not supported by any witness and therefore, A-1 deserves to be acquitted. 6. The learned Additional Public Prosecutor, on the other hand, submits that on finding that the dying declaration recorded by the Judicial First Class Magistrate (PW-15) was missing, several steps were taken at various stages, and ultimately, it could not be traced. She contends that though in Ex.P.9, the deceased is said to have mentioned that she suffered burn injuries when she was lightening the stove, on the next day itself, a different version came out in the form of Ex.P.12. According to the learned Public Prosecutor, even a statement recorded under Sec.161 Cr.P.C., would acquire the characteristics of a dying declaration, once the person from whom it is recorded, is no more. 7. The incident leading to the burn injuries to the deceased is said to have taken place at around 3.30 p.m. on 18.05.2002. Since the accused and the deceased are residents of sub-urban area of Nellore town, the deceased was admitted in the hospital, without loss of any time. Admittedly, within half-an-hour, PW.12 –Head Constable recorded the statement–Ex.P.9 from the deceased. It reads as under : “I am resident of Jonnawada village. Five years back, my marriage was performed. I got two children - 1.Girl 2.Boy. My native place is Gudur, Nellore District. Since my marriage, we the wife and husband do not have any disputes and leading amicably. Admittedly, within half-an-hour, PW.12 –Head Constable recorded the statement–Ex.P.9 from the deceased. It reads as under : “I am resident of Jonnawada village. Five years back, my marriage was performed. I got two children - 1.Girl 2.Boy. My native place is Gudur, Nellore District. Since my marriage, we the wife and husband do not have any disputes and leading amicably. Today i.e. 18.5.02 in the afternoon at 2 pm, in order to prepare coffee, I lit gas-stove. Meanwhile, kerosene fell on my sary from the stove, touched with fire and sustained burn injuries on my face and all my front portion of my body. Then my husband brought me in a jeep to the Govt. Hospital, Nellore and admitted me in it. Then Police came and on enquiry, I stated the happened things, reduced into writing and read over to me. Reduced into writing as it is what I stated. Found correct.” 8. This statement, which was forwarded to the police station, constituted basis for registration of Crime No.74 of 2002. Once the F.I.R., was registered, the Station House Officer gave a requisition to the jurisdictional Magistrate – PW.15. In the chief-examination itself, PW.15 stated that she went to the Government Hospital, Nellore on 19.05.2002 and recorded the statement of the injured - Kavitha. However, she expressed her inability to depose further without going through the dying declaration recorded by her. Obviously, the dying declaration recorded by PW-15 was not available on record. We have perused the docket sheet of the trial Court. Elaborative steps were taken to trace out the dying declaration recorded by PW.15. For one reason or the other it did not form part of the record. 9. The learned counsel for the appellant has placed before us, the certified copy of the dying declaration recorded by PW.15, which was furnished in June, 2009. It is in vernacular language. A perusal of the same discloses that the deceased reiterated, whatever she has stated in her statement, Ex.P.9. In a way, the statement made before PW.15 was brief in its content. No further efforts appear to have been made to make the statement recorded by PW.15, as part of record. The record discloses that it is A-1 that took the deceased to the hospital and got her treated, throughout. 10. PW-1 is the father of the deceased, and PW-2 is her step-mother. No further efforts appear to have been made to make the statement recorded by PW.15, as part of record. The record discloses that it is A-1 that took the deceased to the hospital and got her treated, throughout. 10. PW-1 is the father of the deceased, and PW-2 is her step-mother. These witnesses, however, made certain allegations against the accused to the effect that the accused used to harass the deceased, to bring additional dowry. Left to himself, PW.1 did not submit any complaint. The statement of the deceased was recorded by the police in the Government Hospital. When PW.1 did not submit any complaint, not only soon after the occurrence but also for the entire period during which the deceased-Kavitha, his daughter, was undergoing treatment, not much importance can be given to his evidence. PW.2 was cross-examined extensively and it was suggested to her that her first husband – Maddela Thirupalu of Lingalapadu village committed suicide and thereafter she married PW.1. It was also alleged that she did not properly look after the children of PW.1 through his first wife. PW.3 is sister’s husband of the deceased. He did not support the case of the prosecution. PW.4 is said to be a person acquainted with the accused and the deceased. This witness also did not support the case of the prosecution and accordingly he was declared as hostile. PW.5 is a neighbour of the accused and the deceased. She stated that on the date of incident she heard the cries of the deceased and when she went there, the deceased was found in flames. She further stated that A-1 poured kerosene and set her ablaze. In the cross-examination, she admitted that she has not seen the accused killing the deceased but she only heard the cries of the deceased. Several contradictions and omissions vis-a-vis her statement recorded under Sec.161 Cr.P.C. were elicited. PWs.6 and 7, who are said to be acquainted with the family of the accused and the deceased, did not support the case of the prosecution and they were declared hostile. PWs.8 and 9 are the panch-witnesses for the inquest. They too did not support the case of the prosecution. 11. The dying declarations of the deceased have relatively higher evidentiary value, compared to other evidence. If there exists a semblance of corroboration from other evidence, they can constitute the basis for convicting an accused. PWs.8 and 9 are the panch-witnesses for the inquest. They too did not support the case of the prosecution. 11. The dying declarations of the deceased have relatively higher evidentiary value, compared to other evidence. If there exists a semblance of corroboration from other evidence, they can constitute the basis for convicting an accused. This is, however, subject to a rider that there must not be any evidence, which makes the contents of dying declaration, highly improbable. 12. This is a rare case in which, in the first statement recorded within half-an-hour after admission into Government Hospital, the deceased stated that the incident occurred on account of mishap in the course of lighting the kerosene stove to prepare coffee. This was followed by recording of a dying declaration by PW.15 – Judicial Magistrate of First Class, within another half-an-hour. Though the statement recorded by the Magistrate was not given any mark of exhibit, a certified copy thereof is filed before us. It completely accords with the version contained in Ex.P.9. If these two documents are taken into account, it clearly emerges that the deceased herself did not complain of any harassment or attempt by the accused to cause harm to her. 13. The trial Court, unfortunately, has ignored these two documents and has chosen to place reliance upon Ex.P.12, statement recorded by the police under sec. 161 Cr.P.C. It is no doubt true that in a given case, a statement recorded under Sec.161 Cr.P.C., can acquire the characteristics of a dying declaration. That, however, would be possible if only a statement of that nature does not conflict with the other formal dying declarations. In the event of any conflict, the one which is recorded after following the prescribed procedure, needs to be given importance. 14. The evidence of PWs.1 and 2, making allegations against the accused could have been taken into account, if only they submitted a complaint either immediately after the occurrence or during the course of treatment of the injured. It has already been mentioned that the deceased was undergoing treatment for more than a weak after the incident, and she did not complain anything about the accused. Added to that, it is A-1, who brought the deceased to the Hospital and was there with her throughout. PWs.1 and 2 did not dispute this fact, much less did they say that they got the deceased treated. Added to that, it is A-1, who brought the deceased to the Hospital and was there with her throughout. PWs.1 and 2 did not dispute this fact, much less did they say that they got the deceased treated. Therefore, we hold that the conviction and sentence ordered by the trial Court against A-1 cannot be sustained in law. 15. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.437 of 2003 on the file of the Family Court-cum-Additional District and Sessions Judge, Nellore, dated 25-01-2010, against the appellant – accused No.1 are set aside. The appellant accused No.1 shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant - accused No.1 shall be refunded to him. The material objects, if any, shall be destroyed after the appeal time is over.