Order : MOHAMMAD RAFIQ, J. 1. These two appeals are directed against two different judgements dated 23.12.2011 and 10.10.2013, respectively passed by the Additional Sessions Judge No.2, Bundi, whereby the accused-appellant Madan has been convicted for offence u/s.302 IPC and accused-appellant-appellant Banna Bai has been convicted for offence u/s.302/34 IPC and each of them were sentenced to life imprisonment with fine of Rs.10,000 each and in default of payment of fine, they were to further undergo six months additional imprisonment. 2. The appeals arise out of the same FIR No. 109/2010 dated 1.6.2010 registered with Police Station Dabi for offence u/s.307 read with Section 34 IPC, which on death of the victim Kailashi Bai on 16.6.2010, was converted into offence u/s.302/34 IPC. The FIR was registered on the basis of dying declaration of deceased Kailashi Bai recorded by Judicial Magistrate on 14.5.2010. In the dying declaration/FIR, the victim Kailashi Bai alleged that on that date her husband and mother-in-law were quarreling with her on the issue of work. While she was sitting, her husband and mother-in-law Banna Bai poured kerosene oil over her body and ignited fire. Her brothers-in-laws :- ‘Devar’ Prakash and ‘Jeth’ Jagdish, on hearing the sound of her cry, came there and poured water over her body. In the meantime, she caught hold of her husband, as a result of which, his hands were burnt. He did not save her. Her aunt (sister of her mother), who was residing in the adjoining house had invited her mother for lunch. After some time, when her mother came there, only then she was taken to the hospital. Her husband and mother-in-law used to often quarrel with her and subject her to beating. She did not divulge all this to her parents before apprehending that this might annoy her in-laws and also because she did not want to disturb her parents. 3. The police on conclusion of investigation initially filed charge sheet against accused-appellant Madan and kept the investigation pending against Banna Bai under Section 173(8) of Cr.P.C. Subsequently, charge sheet was filed against her too. Both of them faced separate trials. On filing of the charge sheet against Madan, the case was committed to the Court of Sessions, Bundi. The prosecution produced 22 witnesses and exhibited 24 documents. Defence did not produce any evidence or exhibits. Both of them faced separate trials. On filing of the charge sheet against Madan, the case was committed to the Court of Sessions, Bundi. The prosecution produced 22 witnesses and exhibited 24 documents. Defence did not produce any evidence or exhibits. The trial court convicted accused-appellant Madan for offence u/s.302 IPC and sentenced him to life imprisonment with fine of Rs.10,000, in default of which, he was to undergo further imprisonment of six moths. Hence this appeal. 4. Shri Kamlakar Sharma, learned senior counsel for the appellant has argued that deceased attempted suicide on 14.5.2010 and ultimately succeeded in her endeavour when she died on 16.6.2010. But unfortunately, she made allegation against the accused-appellant Madan that he along with her mother Banna Bai put deceased to fire after pouring kerosene oil over her body, which is patently false. The deceased, on her own, set herself ablaze on a day when her mother and father had come for having lunch in the house of her aunt Meera Bai (PW10), which is adjacent to the house of the accused-appellant. It is argued that on hearing the sound of hue and cry, Sabu (PW1), mother of the deceased and Chittar (PW3) her father and Meera Bai (PW10), all came to the house of the appellant. In fact, the parents of the deceased accompanied the appellant, when the accused took the deceased in seriously injured condition to MDS Hospital, Kota and thereafter shifted her to Modi Fortis Hospital, Kota for specialized treatment. The evidence has amply proved that the entire expenses, about 6 to 7 lacs rupees, incurred in the treatment of the deceased, were spent by the accused-party. When the deceased was taken to the MDS Hospital, Kota, the police personnel Satya Narain (PW16), the Investigating Officer of the Police Station concerned, being informed by the police personnel posted in the chowki of the hospital, reached the emergency ward and recorded parcha bayan of the deceased. In that parcha bayan, the deceased categorically stated that at about 5.00-5.30 pm when her husband was also present in the house, she was cooking food on a kachcha hearth. In that parcha bayan, the deceased categorically stated that at about 5.00-5.30 pm when her husband was also present in the house, she was cooking food on a kachcha hearth. While she attempted to ignite fire by match box on the woods by pouring kerosene over it, it resulted in sudden spurt of the flame, as a result of which, her ‘lugari’ (cloth which she was using to cover her head) came in contact with the fire and started burning. When she cried for help, her husband came to her rescue and in that process, he also got his hands burnt. He extinguished the fire by pouring the water over her. She sustained burns upto 90%. Other persons also came there. She was brought to the Government Hospital in a jeep and thereafter shifted to private hospital. 5. Learned senior counsel argued that the deceased had given the above statement on her own free will and a certificate of fitness was given by Dr. Bhupendra Rathore (PW20) about her evidence. Bhupendra Rathore (PW20) has categorically proved that on enquiry, the deceased Kailashi Bai told him that her clothes accidentally caught fire and that no one has put her to fire. He has admitted his signatures on parcha bayan (Ex.P15) and that deceased gave statement of her free will and there was no pressure on her. She had stated that when she was trying to ignite the woods by pouring kerosene oil in the kachcha hearth by match box, there was sudden spurt of flames, as a result of which, her clothes caught fire. 6. Shri Kamlakar Sharma, learned senior counsel submitted that though the incident had taken place on 13.5.2010 and the deceased was brought to the hospital on that very day and her parcha bayan was also recorded by Satya Narain (PW16) on that very day, neither the deceased, nor any of her family members made any complaint against the accused-appellant or any other person to the police or any hospital staff. Satya Narain (PW16) has stated that the FIR was lodged when they received written requisition by post on 1.6.2010 from the Court of Judicial Magistrate. Satya Narain (PW16) has stated that the FIR was lodged when they received written requisition by post on 1.6.2010 from the Court of Judicial Magistrate. It is on that basis that FIR (Ex.P24) was lodged for offence u/s.307/34 IPC, whereas the police had already inspected the place of incident and prepared the site plan (Ex.P16) on 15.5.2010 itself and even then they did not lodge any FIR till 1.6.2010 because neither victim, nor her parents disclosed it to be a case of deliberate fire. Satya Narain Singh (PW16), the Assistant Sub-Inspector of Police has also stated that they did not initially lodge the FIR because they were treating it to be a case of accidental fire as disclosed by the victim on her parcha bayan. Learned senior counsel argued that statement of Sabu Bai (PW1) does not prove anything against accused-appellants because in earlier part of her statement, she has stated that on her enquiry, deceased told her that there was a quarrel amongst the family members. This witness has stated that how was the deceased Kailashi Bai burnt, was not known to her because she was not present there. Then in next sentence, she says that her daughter told that her husband Madan and mother-in-law Banna poured kerosene oil on her and then ignited fire. In cross examination, she did not deny the suggestion and rather positively stated that it was quite possible that husband of the deceased Madan tried to save her and also admitted that the expenses of the hiring of jeep/tempo to take the deceased to hospital and the entire expenses of her treatment were borne by her husband Madan. Chittar (PW3), father of deceased, has not supported the prosecution case and stated that Kailashi Bai did not tell him anything about the incident. In cross examination, he admitted that there was a police chowki situated in Government Hospital itself and that in-laws of the deceased had shifted her from Government Hospital to the private hospital and that they had spent entire money on her treatment. Kailashi Bai did not tell anything to his wife Sabu in his presence. 7. Learned senior counsel argued that Dr. Gaurav (PW6) was not at all competent to give fitness certificate to the Magistrate Rajni Brijesh (PW9) when she went to record the dying declaration of deceased. Dr. Kailashi Bai did not tell anything to his wife Sabu in his presence. 7. Learned senior counsel argued that Dr. Gaurav (PW6) was not at all competent to give fitness certificate to the Magistrate Rajni Brijesh (PW9) when she went to record the dying declaration of deceased. Dr. Gaurav has stated that he was a Resident Doctor in the hospital, being student of post graduation but formal appointment order as Resident Doctor was not issued in his favour. At that time, he was doing the internship in MDS Hospital, Kota and in that process had gone to Fortis Hospital. Meera Bai (PW10), aunt (sister of her mother) of the deceased, has categorically stated that when they heard the sound of deceased cry, they came rushing to her house. Her husband saved her and then took her to hospital at Kota. In cross examination, she has stated that in answer to query by Sabu Bai and this witness, Kailashi Bai told that her cloth got fire while she was trying to ignite hearth by kerosene. Raju (PW14) has also made similar statement. In fact, he has stated that at that time Madan was not present in the home and had gone to answer the call of nature. Madan came back when they were trying to extinguish the fire and he himself tried to extinguish the fire and in that process, burnt his hands. This shows positive conduct of the accused-appellant, which was quite natural and that he made all the efforts to save his wife. 8. Learned senior counsel argued that the delay in lodging the FIR is on the part of the complainant party inasmuch second dying declaration of the deceased was nothing, but was, in fact, tutored by them. The complainant did not lodge any FIR when the deceased in the first place was taken to the MDS Hospital, Kota and thereafter, shifted to Fortis Hospital, Kota and when Investigating Officer Satya Narain (PW16) recorded the parcha bayan of deceased and thereafter the Judicial Magistrate came to record the second dying declaration on the next day. It is argued that attesting witness of all the memos turned hostile and did not support the case of the prosecution. 9. Assailing the judgement dated 10.10.2013 passed in the case of mother-in-law of deceased Banna Devi in appeal no. It is argued that attesting witness of all the memos turned hostile and did not support the case of the prosecution. 9. Assailing the judgement dated 10.10.2013 passed in the case of mother-in-law of deceased Banna Devi in appeal no. 849/2013 filed by Banna Bai, learned senior counsel argued that though her trial was conducted separately, but evidence in both the cases is substantially the same. In that case also, Sabu Bai, mother of the deceased has appeared as PW1. She has stated that when they were taking lunch with her sister in the adjoining house, accused-appellant Banna was also with them. She was not aware as to how Kailashi Bai died because she (this witness) was at that time with her sister. This witness was declared hostile. In cross examination, she has denied having given any statement to police (Ex.P1) and that she did not tell the police that accused put the deceased to fire by pouring kerosene oil over her. Jagdish (PW2) has also not supported the case of prosecution and has rather stated that clothes of the deceased caught fire when she was trying to lit the hearth. Even though, this prosecution witness has not supported the prosecution case, yet the learned Public Prosecutor did not get him declared hostile. 10. Similarly, Meera Bai (PW3), sister of Sabu Bai (PW1), has also stated that she was not aware as to how Kailashi Bai died. At that time, her sister Sabu was with her at the residence of Kailashi. She has stated that Banna Bai was also with them in her house since 2 to 3 hours prior to the incident. Chittar (PW4), father of the deceased has in the opening statement stated that Kailashi Bai had committed suicide, but in the next sentence, he stated that her husband Madan had put her to fire. Satya Narain Singh (PW5), the Investigating Officer had admitted that after recording the parcha bayan and dying declaration of the deceased, he inspected the site and did not find any marks of struggle or any such evidence on spot, which could indicate it to be a case of homicidal death. Rajni Brijesh (PW6), the Judicial Magistrate, who recorded the dying declaration of the deceased, has stated that she (deceased) knew hindi and she talked to deceased in hindi. She was not aware whether deceased was literate. Rajni Brijesh (PW6), the Judicial Magistrate, who recorded the dying declaration of the deceased, has stated that she (deceased) knew hindi and she talked to deceased in hindi. She was not aware whether deceased was literate. Learned senior counsel for the accused-appellants submitted that deceased was a tribal woman and knew only tribal language and there is no evidence that she also knew hindi. 11. Learned senior counsel argued that Dr. Arun Sharma (PW7) in the subsequent trial has stated that deceased died due to septicemia. Thus, the primary cause of death was septicemia and not the burn injuries, argued the learned senior counsel. Banwari Lal (PW8), the Sub-Inspector of the Police admitted that they from the very beginning were treating this case to be an accidental fire and accordingly conducted enquiry/investigation. 12. Learned senior counsel argued that law is well settled that when there are multiple number of dying declarations, the one which inspires confidence and is found trustworthy, being consistent with other attending circumstances, ought to be relied and the other dying declaration be ignored. Learned senior counsel in support of his arguments has relied on judgments of the Supreme Court in Umakant & Anr. vs. State of Chhattisgarh- (2014) 7 SCC 405 , Bhadragiri Venkata Ravi vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad- (2013) 14 SCC 145 , Sharda vs. State of Rajasthan- (2010) 2 SCC 85 and Vallabhaneni Venkateshwara Rao vs. State of Andhra Pradesh- (2009) 6 SCC 484 . 13. Smt. Sonia Shandilya, learned Public Prosecutor submitted that on the request of the Investigating Officer Satya Narain himself, dying declaration of the deceased was recorded by Judicial Magistrate Rajni Brijesh, in which she has categorically alleged that it was the appellants, who poured kerosene oil on her body and put her to fire. Even if the FIR was lodged with delay, the fact that the police became aware of the incident on the very same day, is undeniable. If the FIR was lodged belatedly, it was inaction on the part of the police and complainant cannot be blamed for that. Minor contradictions in statements of the prosecution witnesses ought to be overlooked. It is therefore prayed that no interference may be called for in the impugned judgements and the appeals be dismissed. 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. Minor contradictions in statements of the prosecution witnesses ought to be overlooked. It is therefore prayed that no interference may be called for in the impugned judgements and the appeals be dismissed. 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. In Sharda, supra, the Supreme Court was dealing with a case where two dying declarations of the deceased were recorded on the day of incident itself in the presence of Doctor (PW31). He stated that deceased was mentally alert and in fit condition to give her statement. In both dying declarations, she had stated that she received burn injuries accidentally while cooking food. But in third dying declaration, that was recorded on third day of incident, deceased stated that her mother-in-law had poured kerosene on her and set her on fire. The Supreme Court held that in view of overwriting and manipulations, a doubt was created regarding its veracity and correctness. And third dying declaration was also signed by the father of the deceased. This dying declaration was fully corroborated from evidence of other witnesses. It was held that earlier dying declarations were tutored by the complainant party. The Supreme Court held that since the last dying declaration was inspiring confidence and was getting corroboration from the other evidence, it is that dying declaration which has to be accepted. In that case, the Supreme Court also observed that there is another factor, which would completely discredit the other dying declaration. The incident in that case had taken place on 16.8.1999 and for the first time, the written report was sent by the cousin of the deceased to the Deputy Superintendent of Police on 19.8.1999. It was held that their silence during this period is indicative of the fact that they were also under the impression that the deceased had caught fire only by accident and it was not her mother-in-law, who was the perpetrator of the crime. 16. The Supreme Court in Vallabhaneni Venkateshwara Rao, supra was dealing with a case where there were three dying declaration, each one was giving a different version of prosecution story. It was held that conviction of the appellants was unsafe on such evidence. The Supreme Court in Bhadragiri Venkata Ravi, supra was dealing with a case where there were multiple dying declarations inconsistent with each other. It was held that conviction of the appellants was unsafe on such evidence. The Supreme Court in Bhadragiri Venkata Ravi, supra was dealing with a case where there were multiple dying declarations inconsistent with each other. In paras 22 to 24, it was held as under: "22. It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. (Vide: Sanjay v. State of Maharashtra, (2007) 9 SCC 148 ; and Heeralal v. State of Madhya Pradesh, (2009) 12 SCC 671 ). 23. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely 13 Page 14 upon the same. In fact it is not the plurality of the dying declarations but the reliability thereof that adds weigh to the prosecution case. If the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But the statements should be consistent throughout. 24. In case of inconsistencies, the court has to examine the nature of the same, i.e. whether they are material or not and while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances. In case of dying declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailants. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailants. (Vide: Smt. Kamla v. State of Punjab, AIR 1993 SC 374 ; Kishan Lal v. State of Rajasthan, AIR 1999 SC 3062 ; Lella Srinivasa Rao 14 Page 15 v. State of A.P., AIR 2004 SC 1720 ; Amol Singh v. State of Madhya Pradesh, (2008) 5 SCC 468 ; State of Andhra Pradesh v. P. Khaja Hussain, (2009) 15 SCC 120 ; and Sharda v. State of Rajasthan, AIR 2010 SC 408 ).” 17. The Supreme Court in Amol Singh, supra in para 13 of the report has held as under: “Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See: Kundula Bala Subrahmanyam v. State of A.P. [ (1993) 2 SCC 684 ]. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scruitinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.” 18. The Supreme Court in Umakant & Anr., supra was dealing with a case where dying declaration of deceased was recorded on 6.8.2003 stating that she was set ablaze by her husband and in laws for dowry demand. However, in consent letter dated 2.8.2003 recorded by Doctor on day of her admission to hospital and signed by sister of deceased it was stated that deceased was burnt accidentally and nobody was responsible for that. However, sister of deceased resiled therefrom and stated that she was forced to sign that letter or else deceased would not have been treated. However, in consent letter dated 2.8.2003 recorded by Doctor on day of her admission to hospital and signed by sister of deceased it was stated that deceased was burnt accidentally and nobody was responsible for that. However, sister of deceased resiled therefrom and stated that she was forced to sign that letter or else deceased would not have been treated. But, deceased in her dying declaration stated that she had informed her parents about alleged occurrence only on 6.8.2003 for first time when they came to see her and had not informed her sister or anybody about it. Besides, in case what was stated in dying declaration was true, parents of deceased would have immediately informed police or for that matter deceased during her stay in hospital for about 11 days would have confided in doctor or other staff members. Moreover, PW7 had specifically deposed that they had tutored deceased to state that she was burnt by appellant. In those facts, the Supreme Court held that normally the dying declaration has to be accorded lot of credence and importance, deviating from rule of evidence since such declaration is made by victim on verge of death. But it was further held that dying declaration requires no corroboration as long as it inspires confidence and is free from tutoring. However, on facts, it was held that dying declaration in that case does not inspire confidence and it was held to be a product of tutoring by family members. The accused-appellants were therefore acquitted. 19. In the present case, second dying declaration of the deceased does not find any corroboration. It is trite that when there are conflicting or contradictory dying declarations, while considering the dying declaration in a case, the Court has to weigh all the attending circumstances and come to the independent finding whether the dying declaration is properly recorded and whether it is voluntary and truthful and if on careful scrutiny, the Court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there should be no legal impediment to make it a basis of conviction, even if there is no corroboration. Where, however, there are multiple number of dying declarations, which are contradicting each other, the Court has to find corroboration to record conviction on such dying declaration. Where, however, there are multiple number of dying declarations, which are contradicting each other, the Court has to find corroboration to record conviction on such dying declaration. Whichever of the two dying declarations finds corroboration and is proved by attending circumstances, should be preferred over the one, which does not find corroboration. 20. In the present case, the statement of Sabu Bai, mother of deceased, her father Chittar and aunt Meera and the conduct of the complainant party has delivered serious dent to the prosecution case. Moreover, even though the parents of the deceased were with her since the very beginning, the police had recorded the parcha bayan of the victim on the very same day and the Magistrate came to record her statement on the very or any next day at the instance of police, yet no regular First Information Report was lodged. Besides, many of the prosecution witnesses have not supported the case of the prosecution, rather they have supported the case of the defence. Even then, they have not been declared hostile. The prosecution would therefore be bound by their testimony. Reference in this connection is made to judgement of the Supreme Court in Raja Ram Vs. State of Rajasthan, (2005) 5 SCC 272 wherein it was held that if the evidence of prosecution witness does not support the prosecution case and the witness has not been declared hostile, the defence can rely upon evidence of such witness and it would be binding on the prosecution. Reference may also be made to judgment of the Supreme Court in Rajendra & Another Vs. State of Uttar Pradesh, (2009) 13 SCC 480 wherein it was held that testimony of hostile witness may not be totally rejected and subject to close scrutiny, a portion thereof which is consistent with case of prosecution or defence may be accepted to find out whether the accused was guilty or not. Therefore, this circumstance cannot be held to have been proved by clinching evidence. 21. Even as per the Investigating Officer Shri Satya Narain Singh, the police also initially acted under the impression that it was an accidental fire. Even Meera Bai, aunt of the deceased, has been declared hostile and her father Chittar and mother Sabu Bai were also declared hostile in one of the trials. 22. In the circumstances, the dying declaration recorded on 14.5.2010 appears to be a tutored statement. Even Meera Bai, aunt of the deceased, has been declared hostile and her father Chittar and mother Sabu Bai were also declared hostile in one of the trials. 22. In the circumstances, the dying declaration recorded on 14.5.2010 appears to be a tutored statement. Aside of this, evidence has also proved that the accused immediately took the deceased to the hospital and when they were not satisfied with the treatment in government hospital, they shifted her to a costlier private hospital i.e. Modi Fortis Hospital, Kota where they spent nearly six to seven lacs on her treatment and as per own admission of the mother and father of the deceased, all this expense was borne by the accused party. In fact, evidence also proves that Madan, husband of the deceased also suffered burn injuries in both hands while saving the deceased. We are therefore not persuaded to uphold the conviction of the accused-appellants, rather persuaded to reverse the conviction of the accused-appellants by setting aside the impugned judgements. 23. In view of above discussion, present appeals deserve to succeed and are allowed. Impugned judgments dated 10.10.2013 and 23.12.2011 passed by the trial court are set aside. The accused-appellant Banna Bai is acquitted of the charge under Section 302 read with Section 34 IPC. The accused-appellant Madan is acquitted of the charge under Section 302 IPC. The accused-appellants are in jail and be set at liberty forthwith if not required to be detained in any other case. 24. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely, Banna Bai and Madan are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, they, on receipt of notice thereof, shall appear before the Supreme Court. 25. Office to place a copy of this judgement in connected appeal.