Judgment : 1. This Criminal Appeal is filed against the judgement dated 31.07.2006 made in SC.No.58/2005 by the learned District and Sessions Judge, Tiruvannamalai, thereby convicting and sentencing the Appellant for the offence under Section 307 of IPC to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.5000/-, in default to undergo Rigorous Imprisonment for six months. 2. The case of the Prosecution is as follows:- a. The deceased Saradha married on Selvam 12 years back and Selvam died 6 years back from the date of occurrence. The deceased came to her mother's house at Vasoor Village. PW.1 is the brother of the deceased and PW.2 is her paternal uncle of the deceased. The deceased had illegal intimacy with the Appellant/ accused. The Appellant scolded the deceased two months prior to the occurrence for talking with one Kumar. Thereafter, the Appellant used to scold Saradha whenever she went out to bring water. In addition to that, she had enmity with the Appellant due to financial transaction between them. On 19.06.2004 at about 17.30 hours, while the deceased was going to take water at water tank near Modern Rice Mill at Vasoor Village, the Appellant pulled the deceased and accused poured kerosene on her and set fire. b. PW.1 and PW.2, who were in their house, witnessed the occurrence and they came to the spot after they herd the screaming noise of the deceased and saw the deceased burning. PW.1 and PW.2 took the deceased to Polur Government Hospital. PW.3 Doctor admitted her and gave Ex.P2 accident register. The deceased told the Doctor that three persons poured kerosene over her and set fire. On the same day, she was referred to the Vellore Government Hospital and also Ex.P3 intimation was sent to the PW.8, Inspector of Police attached to the Polur Police Station. On receipt of the intimation from the Polur Government Hospital, on 20.6.2004, PW.8 went to the Polur Government Hospital, where he was informed that the deceased was taken to the Vellore Government Hospital. On receipt of the intimation from the Polur Government Hospital, on 20.6.2004, PW.8 went to the Polur Government Hospital, where he was informed that the deceased was taken to the Vellore Government Hospital. Then, PW.8 went to the Vellore Government Hospital at 10.00 a.m. At 2.00 p.m. PW.8 recorded a statement from the deceasedEx.P1 and came to the Police Station and registered a case in Cr.No.535/2004 under Sections 342 and 307 of IPC and prepared the First Information Report Ex.P12 at 4.00 p.m. Then, PW.8 prepared observation mahazar Ex.P9 and sketch Ex.P13 at 4.30 p.m. on 20.6.2004 and examined the witnesses and recorded their statements. On 22.6.2004 at 7.00 a.m. PW.8 arrested the accused and recorded his confession Ex.P10 and recovered MO.2 under Ex.P11 seizure mahazar and also other material objects. Due to the burn injuries sustained by her, the deceased died on 2.7.2004 at 9.15 a.m. In the Government Hospital, Polur. On receipt of death intimation Ex.P4 from the Vellore Government Hospital on 2.7.2004, PW.8 altered the case into one under Section 302 of IPC and prepared express report Ex.P14. c. In the mean time, on receipt of intimation, PW.4, Judicial Magistrate IV, Vellore came to the said Hospital and recorded her dying declaration at 4.00 p.m. under Ex.P8. Then, PW.8 conducted inquest on the body of the deceased and prepared Ex.P15 inquest report on 2.7.2004 at 12.30 p.m. thereafter, PW.3 Doctor conducted post mortem at 2.00 p.m. on 2.7.2004 and opined in the post mortem report Ex.P2 that the deceased would appear to have died of septicaemic shock due to burns 6 to 8 hours prior to autopsy. Thereafter, PW.8 examined some more witnesses and recorded their statements. After completing investigation, PW.8 filed a final report against the Appellant/ accused for the offence under Section 302 of IPC on 31.8.2004. 3. The case was taken on file in SC.No.58/2005 by the learned District and Sessions Judge, Tiruvannamalai and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined as many as 8 witnesses (PW.1 to PW.8) and also marked Exs.P1 to P15 and six material objects (Mos.1 to 6). 3. The case was taken on file in SC.No.58/2005 by the learned District and Sessions Judge, Tiruvannamalai and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined as many as 8 witnesses (PW.1 to PW.8) and also marked Exs.P1 to P15 and six material objects (Mos.1 to 6). On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused has come with the version of total denial and stated that he has been falsely implicated in this case. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 4. Mr. C.R.Malarvannan, the learned counsel for the Appellant has assailed the impugned judgement of conviction rendered by the Trial Court on the ground that the presence of PW.1 and PW.2 in the place of occurrence at the time of incident is highly doubtful and their evidence clearly indicated that they were in their respective houses and came out only on hering the screaming noise of the deceased. Therefore, the learned counsel would submit that they would not have seen as to how the deceased got fired and who were the perpetrators of the crime. It is also pointed out b the learned counsel for the Appellant that even as per the case of the Prosecution, it is the parents of the accused and the accused himself, who doused the fire on the victim and if PW.1 and PW.2 have actually seen the occurrence, they would not have kept quiet and only attempted to put off the fire. Incidentally, it was also pointed out that even in the statement allegedly given by the deceased to PW.8 Inspector of Police and to PW.4, the Judicial Magistrate IV, it is not stated that PW.1 and PW.2 have witnessed the incident. 5. The learned counsel for the Appellant also assailed the dying declaration recorded by the Inspector of Police and Ex.P8 recorded by the Judicial Magistrate. The learned counsel argued that there are grave infirmities in the dying declarations. 5. The learned counsel for the Appellant also assailed the dying declaration recorded by the Inspector of Police and Ex.P8 recorded by the Judicial Magistrate. The learned counsel argued that there are grave infirmities in the dying declarations. The learned counsel submitted that in the earliest statement made by the deceased to PW.3 Doctor, who admitted the deceased with burn injuries, it is stated that she was set fire by three persons. The learned counsel also argued that the earliest complaint given by PW.1 to the Police had been suppressed by the Prosecution and after due deliberation, the statements Ex.P1 and Ex.P8 had been brought into existence. That apart, the learned counsel pointed out that the dying declaration made to Judicial Magistrate PW.4 in Ex.P8 runs contradictory to Ex.P1 statement recorded by PW.8. The evidence of PW.1 indicated that PW.1, the brother of the deceased and PW.8, the Inspector of Police were present at the time of recording of dying declaration by the Judicial Magistrate and therefore, the possibility of the deceased being tutored cannot be ruled out. 6. On the other hand, Mr. VMR.Rajendran, the learned Additional Public Prosecutor for the State argued that the dying declaration Ex.P1 made by the deceased to PW.8 Inspector of Police is a truthful statement. He recorded the statement after getting certified by the Doctor that the deceased was in a fit state of mind to make a statement. The learned Additional Public Prosecutor also argued that there are no material in consistency in the dying declarations Ex.P1 and Ex.P8 except there are certain omissions in Ex.P8 which cannot render the dying declaration doubtful. The testimony of PW.4, the Judicial Magistrate, could not be demolished even after cross examination. Therefore, the learned Additional Public Prosecutor supported the impugned judgement and conviction of the court below. 7. I have heard the submissions of the learned counsel on either side and also perused the material records placed. 8. PW.1 is the brother of the deceased and PW.2 is her junior paternal uncle of the deceased. The accused had illicit intimacy with the deceased and when she was found talking to some one, she was chided by the accused. I have heard the submissions of the learned counsel on either side and also perused the material records placed. 8. PW.1 is the brother of the deceased and PW.2 is her junior paternal uncle of the deceased. The accused had illicit intimacy with the deceased and when she was found talking to some one, she was chided by the accused. According to the Prosecution, on the date of occurrence i.e. On 196.2004 at 7.30 p.m. when the deceased went to the water tank which lie near the house of the deceased, the accused scolded her for being friendly with other male member and poured kerosene and set fire to the deceased n front of the water tank. According to the Prosecution, PW.1 and PW.2 had witnessed the occurrence. On a careful scrutiny of the said evidence of the witnesses, it clearly indicated that they were inside their house and only on hearing the cries of the deceased, they came out of their house and saw the deceased in flames. Their evidence indicated that they did not make any attempt to put off the fire. In fact, strangely, neither PW.1 nor PW.2 tried to extinguish the fire and they were only watching her burning. Both PW.1 and PW.2 admit that the parents of the accused put off the fire by pouring water on her body. The conduct of PW.1 and PW.2 in not attempting to extinguish the fire coupled with the fact that they had come to the spot only after hearing the cries of the deceased makes the testimony of the said witnesses highly doubtful and there is no possibility of them to have seen the incident. 9. That apart, even in the statement of the deceased Ex.P1 recorded by PW.8, the Inspector of Police, and Ex.P9 recorded by PW.4, the Judicial Magistrate, thee is no mention about the presence of PW.1 and PW.2 at the time of the incident and having witnessed the occurrence. In fact, in Ex.P1, it is stated that she saw PW.1 and PW.2 only in the Hospital after she regained consciousness indicating their absence at the time of the incident. Hence, the testimony of PW.1 and PW.2 that they had seen the occurrence is unreliable. 10. In fact, in Ex.P1, it is stated that she saw PW.1 and PW.2 only in the Hospital after she regained consciousness indicating their absence at the time of the incident. Hence, the testimony of PW.1 and PW.2 that they had seen the occurrence is unreliable. 10. The main ground of attack of the learned counsel for the Appellant is that if the incident as alleged by the Prosecution had taken place, why either PW.1 or PW.2 have not lodged the report immediately to the Police and why PW.8 the Inspector of Police should wait to record statement of the deceased till she regained consciousness. The said contention merits acceptance. The occurrence had taken place on 19.6.2004 at 7.30 p.m. Intimation was given to the Police even on the same day. In the intimation Ex.P3, it stated that it was alleged that she was set fire by three persons. However, PW.8 has not recorded statement either from PW.1 or PW.2 who according the Prosecution had seen the occurrence. The statement of the deceased had been recorded at 2.00 p.m. on the next day i.e. On 20.6.2004. the First Information Report had reached the court only on 22.6.2004. Though it is stated that PW.8 the Inspector of Police was waiting for the deceased to regain consciousness, but that does not appear to be a plausible explanation for the delay in lodging the report to the Police. The delay in making report gives rise to the suspicion that the entire case is concocted and an after thought. 11. In the earliest statement made by the deceased to PW.3 Doctor, it is stated that three persons set fire to her. According to wp3 Doctor, the deceased was conscious and the history as narrated by the deceased was noted by him. In Ex.P1 statement recorded by PW.8 the Inspector of Police, it is alleged that the accused set fire, but nothing is stated about snatching of money by the deceased from the deceased on the prior occasions and also about money being taken from the deceased on the previous day. It is pertinent to point that the Doctor, who testified regarding the consciousness and fit state of mind of the deceased to make a statement, was not examined before court. It is pertinent to point that the Doctor, who testified regarding the consciousness and fit state of mind of the deceased to make a statement, was not examined before court. In Ex.P8, dying declaration lot of improvements have been made and a new story is put forward as though the accused dragged the deceased to her house, pulled the saree, poured kerosene and set fire. It is further stated that he forcibly took away Rs.12000/- from the deceased. Then he tried to put off the fire, which was seen by the neighbours who arrived at the spot. It is further stated that he set fire to the remaining clothes. Only thereafter, her brother PW.1 and PW.2 paternal uncle and others came to the spot and took her to the Hospital. The above said statement of the deceased shows material improvements regarding the manner of occurrence. 12. At this juncture, it is relevant to note that PW.8, who recorded statement Ex.P1 from the deceased, on the basis of which, the First Information Report ws registered is the Investigating Officer in this case. In Munna Raja Vs. State of MP (1976-3-SCC-104) the Honourable Supreme Court has struck a note of caution that the Investigating Officer, who are naturally interested in the success of the investigation ought to be discouraged in recording the dying declaration during the course of investigation. In the present case, there are three dying declarations. In the first dying declaration, that in the form of oral statement made to PW.3 Doctor, the deceased has stated that three persons set fire to her. In the second dying declaration made to PW.8 registered as First Information Report, it stated that the accused set fire to her. On the same day, i.e. On 20.6.2004 at 4.00 p.m. in the statement recorded by the Judicial Magistrate lot of improvements have been made. In Ex.P8, the place of occurrence is also shifted to the house of the deceased whereas in Ex.P1, it is stated that the incident occurred near the water tank nearer to the house of the accused. Where there are more than one statement in the nature of dying declaration, the one first in point of time must be preferred, as held in the case of Mohanlal Gangaram Gehani Vs. State of Maharashtra (1982-1-SCC-700). The Honourable Supreme Court has laid down in 1989-3-SCC-390 (State of UP Vs. Where there are more than one statement in the nature of dying declaration, the one first in point of time must be preferred, as held in the case of Mohanlal Gangaram Gehani Vs. State of Maharashtra (1982-1-SCC-700). The Honourable Supreme Court has laid down in 1989-3-SCC-390 (State of UP Vs. Madan Mohan) that where the Prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. 13. Even though great solemnity and sanctity is to be attached to the words of a dying man because a dying man/woman on the verge of death is not expected to tell lies, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, promoting or a produce of his/her imagination. In this case, in the statement made to PW.3, Doctor who is a disinterested witness, she had stated that three persons set fire to her. That being so, her alleged dying declaration before PW.8 the Investigating Officer and PW.4 Judicial Magistrate one day after the incident could not be relied upon, as the possibility of tutoring by her close relatives cannot be ruled out. I fact, it is admitted by PW.1 that PW.1 the brother of the deceased was standing by the side of the Investigating Officer who was standing near the bed of the deceased, while the dying declaration was recorded by the Judicial Magistrate. Another material discrepancy is that Ex.P1 contains the signature of the deceased whereas Ex.P8 recorded on the same day at 4.00 p.m. contains only her thumb impression. PW.4 Judicial Magistrate has not given any reason for not obtaining her signature. 14. The evidence brought on record suggests that such dying declaration does not reveal the entire truth. The discrepancies and inconsistencies in Ex.P1 and Ex.P8 dying declarations create a doubt as to the truthfulness of the contents of the dying declaration and the possibility of she being influenced by her brother and father in making the dying declaration could not be ruled out. There is no explanation either from the deceased or from the Investigating Officer as to the reason why the deceased stated that three persons set fire to her. PW.1 has stated in his cross examination that he never gave any statement to the Police implicating the accused. 15. There is no explanation either from the deceased or from the Investigating Officer as to the reason why the deceased stated that three persons set fire to her. PW.1 has stated in his cross examination that he never gave any statement to the Police implicating the accused. 15. At this juncture, it is also relevant to point that the accused also sustained injury and he has been treated by PW.3 on the date of occurrence. PW.3 Doctor has stated that one Bala who accompanied the accused also came to be treated by him. But, the said Bala has not been examined. PW.8, the Investigating Officer has st even on the date of occurrence, the accused was caught hold of by PW.1, but there is no explanation as to why he was not handed over to the Police. 16. The contradictions in the two dying declarations coupled with the high degree of improbability of the manner of occurrence as depicted by the Prosecution case, in view of serious infirmities pointed above, leaves the court with no option but to attach little weight to these dying declarations. When there are serious discrepancies in the account given by the witnesses, it is unsafe to rely on the said evidence and the inconsistent dying declarations brought on record by the Prosecution. I a.m. Also unable to countenance the judgement of conviction of the accused under Section 307 of IPC by the Trial Court. Under these circumstances, it is highly unsafe to convict the Appellant and I am of the considered view that the impugned judgement and order of conviction passed by the court below is unsustainable both on facts and law. 17. In the result, this criminal appeal is allowed. The impugned judgement of conviction and sentence are set aside. The Appellant is acquitted of the charges levelled against him. The bail bond if any executed by the Appellant shall stand cancelled and the fine amount if any paid by the Appellant shall be refunded to him.