JUDGMENT : 1. By means of filing this Appeal under Section 374 of the Code of Criminal Procedure, 1973 [“CrPC” for brevity], the appellants have challenged the judgment and order dated 05.09.2001 passed by learned Second Joint District Judge and Additional Sessions Judge, Nadiad in Sessions Case No. 258 of 2000, whereby, the appellants-original accused No. 1 and 2 have been ordered to undergo rigorous imprisonment of seven years and to pay fine of Rs. 1000/-; and in default thereof, to undergo three months simple imprisonment for an offence punishable under Section 304 Part II and Section 34 of the Indian Penal Code. All the sentences are ordered to run concurrently. 2. The facts, as emerging from the record are that, on 26th May 2000 at about 20.30 hours, when the deceased complainant-Gomtiben, wife of Jashbhai Manibhai Parmar, resident of village Palaj was present in her field located in the sim of village Jaspura, at that time, the accused persons; including deceased accused-Punjiben, wife of Ishvarbhai Parmar, resident of Parjanapar entered into the field on a tractor with a view to take away the wooden logs of fallen tree. When the said act of removing the wood from her field was resisted by the complainant-Gomtiben, out of the accused persons, who came on a tractor, accused No.2-Prakashbhai @ Arvindbhai Ishvarbhai Parmar took out a gallon of kerosene from the tractor and poured it over the body of the complainant and with the help of a matchstick set her ablaze, resulting into her death due to burn injuries and thereby, all the accused persons in connivance with each other formed an unlawful assembly and thereby have committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 3. Based on this charge, the accused persons came to be arraigned for an offence afore-stated and came to be booked by the Police. All the requisite procedure for their arrest came to be complied with in accordance with case. 4. In the Sessions Case, upon production of the accused and ascertaining from them as to whether they had received copy of the case papers, they replied in the affirmative and thereafter, charge was framed against the accused persons which was read over and explained to them, wherein they did not plead guilty and claimed to be tried. Accordingly, the prosecution laid evidence. 5. Accordingly, the prosecution laid evidence. 5. In the trial held, below mentioned witnesses were examined by the prosecution, enlisted hereunder : Sr.No. Name Exhibit 1. Dr. Dattatray Radhakrishna Khadayate 17 2. Dr. Ramanbhai Ishvarbhai Patel 20 3. Kantibhai Ambalal Patel, Executive Magistrate, who has recorded dying declaration. 23 4. Witness Naynaben Jashbhai 27 5. Witness Jashbhai Manibhai 28 6. Panch witness-Bhikhabhai Talshibhai Patel 30 7. Panch witness-Mahammad Mustakali Mirsabali Saiyed 32 8. Panch witness-Faridmiya Mustakmiya Malek 34 9. Panch witness-Lilaben Rajubhai Parmar 37 10. Dr. Yogeshbhai Nathubhai Thakkar 51 11. Aiyubbhai Satarbbai-police witness 57 12. Kantibhai Vaghjibhai-Investigating Officer 59 13. Ahmedbhai Babubhai Kureshi, Investigating Officer 61 14. Madhavsinh Pahadsinh Vasava, Investigating Officer 63 15. Fatesinh Sahebsinh Khant, Investigating Officer 66 16. Tersingbhai Punabhai Chandana, Investigating Officer 69 6. Moreover, the learned trial Judge has considered the below mentioned documentary evidence at the time of arriving at conclusion. Sr.No. Description Exhibit 1. Abstract of janva jog entry no. 21/2000 with Petlad Town Police Station 58 2. Statement of deceased Gomtiben Manibhai 60 3. Statement of deceased Gomtiben dated 30.05.2000 64 4. Xerox copy of the panchnama of place of offence 31 5. Inquest Panchnama of the dead body of deceased Gomtiben 38 6. Panchnama of clothes of the deceased Gomtiben 41 7. Panchnama of muddamal used in the offence. 65 8. Panchnama of the tractor trolly used in the offence 35 9. PM report of the dead body of deceased Gomtiben 22 10. Forwarding note of sending muddamal to FSL 42 11. Forwarding note of sending muddamal to FSL 43 12. Receipt of receiving muddamal in FSL 44 13. Letter of FSL 45 14. Report of FSL regarding analysis of the muddamal 46 15. Letter of FSL 47 16. Report of FSL regarding analysis of the muddamal 48 17. Transfer memo stating transfer of deceased Gomtiben from petlad 52 18. Injury certificate issued by Karamsad Hospital regarding deceased 53 19. Transfer memo of injured Punjiben 54 20. Medical certificate of injured Punjiben 55 7. On completion of the said evidence in Sessions Case, further statements of the accused persons were recorded under Section 313 CrPC, wherein, they denied allegations and claimed to be tried by the Court below, which resulted into their conviction; as aforestated. Aggrieved appellants are before this Court in Appeal preferred under Section 374 CrPC. 8. Heard Mr. On completion of the said evidence in Sessions Case, further statements of the accused persons were recorded under Section 313 CrPC, wherein, they denied allegations and claimed to be tried by the Court below, which resulted into their conviction; as aforestated. Aggrieved appellants are before this Court in Appeal preferred under Section 374 CrPC. 8. Heard Mr. D.C. Sejpal, learned advocate for the appellants in Criminal Appeal No. 810 of 2001 and learned APP Mr. Rutvij Oza for the respondent no.1-State. Mr. D.C. Sejpal, learned advocate for the appellants in Criminal Appeal No. 810 of 2001 submitted that the learned trial Judge ought to have appreciated that the entire incident was an accidental act and no criminal conspiracy was involved on the part of the appellants. The learned trial Judge has erred in ignoring the statement of deceased at Ex. 60, which clearly states that the incident occurred as an accident and not by any criminal act of the appellants. Upon reading all the three statements of the deceased, it can be clearly found that all the three were in contradictory to each other. A clear attempt of improvisation can be found in each of the statements with the time gap. That, the impugned judgment is solely based upon the statement of daughter of deceased namely Naynaben, who is said to be an eye witness. That, in the first statement of the deceased, it is clearly mentioned that the person, who was present at the place of incident was only Narsinhbhai-her son, Naynaben is not mentioned in her statement. Police has recorded the statement of Naynaben. Her statement is totally ignored by the court below, while deciding the case. Naynaben has clearly stated that the deceased was holding a kerosene lamp in her hands and she was pushed by deceased Punjiben and as a resultant thereof, lamp fell down and her saree ablazed accidentally. Naynaben has further stated that in fact, Punjiben tried to save deceased Gomtiben and as a result, fire caught Punjiben also. Thus, in view of such clear statement, her deposition before the court was not of inspiring any confidence to the prosecution case. It is further submitted by learned advocate for the appellant that Mr. Kantibhai Vagjibhai has recorded the statement of deceased Gomtiben, prior to recording her dying declaration wherein she has clearly developed a theory of accidental case. Thus, in view of such clear statement, her deposition before the court was not of inspiring any confidence to the prosecution case. It is further submitted by learned advocate for the appellant that Mr. Kantibhai Vagjibhai has recorded the statement of deceased Gomtiben, prior to recording her dying declaration wherein she has clearly developed a theory of accidental case. That, in a complaint, later on given by deceased Gomtiben on 30th May 2000, she had never stated about any alleged role of the accused Vinubhai in the commission of an offence. After recording her statement by Police Constable Kantibhai and lodging a complaint by deceased herself, a third statement in the form of dying declaration was recorded by the Executive Magistrate, wherein, name of the accused persons were disclosed which ought not to have been relied upon at all by the court below. That, on consistency in the dying declaration is very important factor which cannot be ignored by the Court. That, the trial Court has committed grave error in relying upon dying declaration of the deceased, which came to be recorded by the Executive Magistrate. Learned counsel submitted that the said dying declaration is completely contradictory and inconsistent stand taken by the deceased herself in different statements and they ought not to have been accepted on their face value. It is further submitted that where three dying declarations were recorded, two by the Police Officer and another by Executive Magistrate, without endorsement of the Doctor about the fitness of the victim to give her statement and when three dying declarations were inconsistent with each other and found not supported by the prosecution evidence, they should have been discarded. 9. In support of his arguments, learned advocate for the appellant has placed reliance on the following authorities, 1. Puran Chand v. State of Haryana, reported in (2010) 6 SCC 566 2. Amol Singh v. State of Madhya Pradesh, reported in (2008) 5 SCC 468 3. Mehiboobsab Abbasabi Nadaf v. State of Karnataka, reported in (2007) 13 SCC 112 4. Rajput Naranbhai Jethabhai & Anr. v. State of Gujarat, reported in 2014 (1) GCD 18 . 5. Karamsibhai @ Babo Virabhai Patel v. State of Gujarat & Anr., reported in 2013 (4) GLR 3121 6. Prakash Wati (Smt.) and Ors. v. R.L. Kapur, reported in 1995 Supp (3) SCC 709 10. Rajput Naranbhai Jethabhai & Anr. v. State of Gujarat, reported in 2014 (1) GCD 18 . 5. Karamsibhai @ Babo Virabhai Patel v. State of Gujarat & Anr., reported in 2013 (4) GLR 3121 6. Prakash Wati (Smt.) and Ors. v. R.L. Kapur, reported in 1995 Supp (3) SCC 709 10. Ultimately, learned counsel has argued that substantial time has passed after incident, as it was occurred in the year 2000. That, accused Vinubhai has responsibility towards his family and dispute of his land has been amicably settled between the parties, as possession of the land has been handed over to the complainant and this aspect may be considered by this Court. Hence, it was requested by learned advocate for the appellant to quash and set aside the judgment and order dated 05.09.2001 passed by learned Second Joint District Judge and Additional Sessions Judge, Nadiad in Sessions Case No. 258 of 2000. 11. Learned APP appearing for the State submitted that there is ample evidence on the record to show that the death of the complainant-deceased occurred due to pouring of kerosene and setting her on fire at the hands of the accused. Learned APP has further submitted that the deceased was very much conscious and able to give dying declaration before the Executive Magistrate. Learned APP further contended that at the time when FIR was recorded and even at the time when Executive Magistrate recorded dying declaration, the deceased-complainant was conscious and in the fit state of mind, and therefore, her dying declaration is inspiring confidence and the learned trial judge has rightly considered it in evidence alongwith other corroborative evidences for convicting the accused. That, in a cross case ie., Sessions Case No. 259 of 2000, deceased was Punjiben Ishvarbhai, who had also received burn injuries and reportedly died on 30th May 2000. That, in the present case, deceased Gomtiben in the same incident, got burn injuries and passed away on the very same day ie., on 30th May 2000. That, the place of incident, as per the prosecution case, was behind the residence of Jashubhai in his field, as was in a cross case. The statement of Gomtiben-deceased recorded by the prosecution witness Kantibhai Vaghjibhai was not taken in evidence, as she was not in fit state of mind. PW-3 Kantibhai Ambalal Patel, Executive Magistrate has recoded dying declaration of the deceased Gomtiben. The statement of Gomtiben-deceased recorded by the prosecution witness Kantibhai Vaghjibhai was not taken in evidence, as she was not in fit state of mind. PW-3 Kantibhai Ambalal Patel, Executive Magistrate has recoded dying declaration of the deceased Gomtiben. As per his opinion, the patient was fully conscious and was in fit state of mind on 27th May 2000 at 17.30 hours and the dying declaration was completed at about 17.45 hours. That, after medical treatment to the deceased by Dr. Yogeshbhai Nathubhai Thakkar, dying declaration was recorded in complete conscious condition of the deceased. Dr. Yogeshbhai Thakkar had given treatment to the deceased Gomtiben so also to the deceased in a cross case, namely, Punjiben. That, learned trial judge has rightly relied upon dying declaration of the deceased Gomtiben recorded by the Executive Magistrate Mr. Kantilal A. Patel. That, the gallon of kerosene was seized by the Investigating Agency while preparing the panchnama, which was produced vide ex. 63. That, new report from the FSL certifies presence of petroleum Hydro Carbon (Kerosene). That, presence of kerosene was also found from the clothes of the deceased as per the report of FSL (Ex. 48). The certain articles were sent to FSL ie., saree and chaniya of the deceased. While lodging the complaint Ex. 64 by the deceased herself on 30th May 2000, after four days of the incident, she was completely conscious. Learned APP has further submitted that the dying declaration is the sole basis for conviction. The prosecution, by adducing cogent and reliable evidence, has proved the guilt of the accused beyond reasonable doubt, and hence, the order under appeal needs no interference from this Court. 12. Having given thoughtful consideration to the submissions made by the learned counsel on either side and going by the material on record, it appears that the Court below has come to a correct conclusion only after meticulous consideration of the dying declaration of the deceased which was recorded by the Executive Magistrate and was certified by the Doctor. It is evident from the record that on previous night ie., on the date of incident, both the parties had a quarrel for the land in dispute and as to their ownership. As per the prosecution case, appellant has poured kerosene and set on fire the deceased with matchstick. It is evident from the record that on previous night ie., on the date of incident, both the parties had a quarrel for the land in dispute and as to their ownership. As per the prosecution case, appellant has poured kerosene and set on fire the deceased with matchstick. The Apex Court in number of cases has clearly laid down that the dying declaration can form basis of conviction. If dying declaration creates any suspicion in the mind of the Court, as to its correctness and genuineness, it should not be acted upon without corroborative evidence. 13. Applying settled legal position to the factual matrix of the case, the dying declaration of deceased (Ex. 25) with other statements of the deceased would require consideration. On a dying declaration which was recorded on 27th May 2000, at about 17.35 p.m., an endorsed was made by doctor that the patient was fully conscious. After inquiring the patient by the Executive Magistrate, while coming to the main issue of incident, it was replied by the deceased that on 26th May 2000 at about 18.30 p.m. the alleged incident took place in her house. Cut wooden logs lying in the field were tried to be taken away by Ishvarbhai Dahyabhai Parmar by loading it in his tractor, and therefore, she requested not to take away the wooden logs in the tractor, despite which they were taken away. Again, at the night, some 20 to 25 persons came in the tractor at her house along with gallon of kerosene and poured it on her body and set her on fire. Six persons, namely (2) Chandubhai Nathabhai (3) Vinubhai Ishvarbhai Parmar (4) Manjiben Vinubhai (5) Sushilaben Pakabhai (6) Prakashbhai Ishvarbhai etc., were sitting in the tractor, as they were related to her. The other persons sitting in the tractor were not known to her. They also are alleged to have threatened to kill her husband. The persons whose names were given by her, have poured kerosene on her body and set her on fire. It is further submitted that the dispute arose due to trees as well as wooden lying in the field. The accused intended to get possession of the field, and therefore, quarrel took place. She has further stated that at the time of incident, she was alone in the house and her husband was in the village for some domestic work. It is further submitted that the dispute arose due to trees as well as wooden lying in the field. The accused intended to get possession of the field, and therefore, quarrel took place. She has further stated that at the time of incident, she was alone in the house and her husband was in the village for some domestic work. She, on receiving burn injuries, was shifted to a hospital. Her brother-in-law Parshottambhai Manibhai has tried to save her. Thereafter, family members reached at the place of offence and shifted her to a hospital at Nadiad. She reiterated her statement that the persons poured kerosene on her body and set her on fire. After completion of the dying declaration, right hand thumb impression of the deceased was affixed below the document, which was read over to her @ 17.55 hours in the Civil Hospital at Nadiad. The Executive Magistrate has also endorsed recording of dying declaration in his presence. 14. Prosecution has examined Executive Magistrate Mr. Kantibhai Ambalal Patel vide Ex. 33. He has supported statement of the deceased in a form of dying declaration (Ex.25) confirming that before recording dying declaration, he approached Dr. Patel who confirmed that the patient was in a fit and conscious condition. Doctor has also endorsed about her consciousness on the first portion of the dying declaration, and thereafter, this witness entered into the Burns Ward of the Civil Hospital at Nadiad. Relatives were removed from the ward by this witness and he started to record her dying declaration. Statement given by the deceased was reiterated by this witness in his chief examination. It appears from the cross-examination of this witness that some portion was later on added by this witness in the dying declaration (Ex. 25) and there was no signature of this witness in the added portion. He has also admitted that the patient had declared two different incident in her dying declaration. In the first incident, in the morning wooden was loaded in the tractor and in the second incident, 20 to 25 persons came at her house in night. In the first incident of morning, only one name of Ishvarbhai Dahyabhai came to be disclosed as an accused. He has also admitted that in the added portion, there was no signature affixed by this witness. In the first incident of morning, only one name of Ishvarbhai Dahyabhai came to be disclosed as an accused. He has also admitted that in the added portion, there was no signature affixed by this witness. Prima facie, it appears that the dying declaration was endorsed by Doctor of Civil Hospital, Naidad confirming conscious set of mind of the victim Gomtiben permitting the witness to record her dying declaration. It can be gathered from this document (Ex. 25) that the deceased was in a conscious condition to record her dying declaration before the Executive Magistrate. From this dying declaration, it appears that there were two different incidents which had taken place. In the mornin, Ishvarbhai Dahyabhai came at the field of the deceased Gomtiben for taking away the wooden. He was prevented by the deceased, nevertheless, wooden logs were taken away by him in the tractor. Thereafter, again 20 to 25 persons came at the house of deceased on a tractor with gallon of kerosene and out of them, six persons have been named in the dying declaration (Ex. 25) alleging to have poured kerosene on her and putting her on fire. It appears from the deposition of Dr. Ramanbhai Ishvarbhai Patel [P.W.-2] that when he was serving as a Medical Officer in Civil Hospital at Nadiad on 27th May 2000, Gomtiben Jashbhai Parmar was shifted to his hospital for further medical treatment and she was under his observation. During her treatment, on 30th May 2000 at about 11.50 hours, she expired due to burn injuries. She had received first and second degree burn injuries on her left hand, chest, abdomen and legs. The total burn injuries were 60% on her body as a whole. On her death, this witness had informed local Police and received a yadi (Ex. 21) for performing post mortem of the deceased. Thereafter, in a company of Dr. Minaxi, post mortem was performed by them. As per column no. 17 of the said post mortem note, victim is shown to have received burn injuries and suffered cardio respiratory failure due to extensive burns, and this is shown as the cause of her death. 15. Prosecution has examined P.W. No.12-Kantibhai Vaghjibhai vide Ex. 59. He was serving as ASI in Mahudha Police Station. As per column no. 17 of the said post mortem note, victim is shown to have received burn injuries and suffered cardio respiratory failure due to extensive burns, and this is shown as the cause of her death. 15. Prosecution has examined P.W. No.12-Kantibhai Vaghjibhai vide Ex. 59. He was serving as ASI in Mahudha Police Station. On 27th May 2000, he was performing his duty at Civil Hospital, Nadiad from morning to next day at 11.00 a.m. He received vardhi from Civil Hospital, Nadiad that one patient, namely, Gomtiben Jashbhai was brought to the hospital due to burn injuries, and therefore, he was directed to proceed in accordance with the letter. He forwarded ‘yadi’ to the Executive Magistrate to record dying declaration of the patient and informed Petlad Town Police Station by a telephone call. He went to the patient and found her in conscious condition. She was inquired by this witness and he recorded her statement as per her instructions under her thumb impression. The statement was produced by the prosecution vide Ex.60. In his cross examination, he has admitted that while recording statement of the patient, namely Gomtiben, no family members were present, except one sister and ward boy of the hospital. Gomtiben had stated before him that though she had been refusing loading of the wood, however, wooden logs were loaded. As it was night and there was darkness, she was standing with a latten (kerosene lamp). At that time, there was scuffle between them. Punjiben Ishvarbhai pushed her and therefore, the lamp fell down from her hand, and it caught fire on her clothes and she started burning and received burn injuries to her hands, chest, legs etc. On hearing screams, her younger son-Narsinh came at her rescue to save her. As per deposition of this witness, thumb impression of the victim was taken and statement was forwarded along with the report to Nadiad Town Police Station. Ex. 60 produced on the record by prosecution specifies completely two different incidents. First portion describes taking away of wooden logs by the persons, whose names are given in the dying declaration (Ex. 25) which appears to be common. Ex. 60 produced on the record by prosecution specifies completely two different incidents. First portion describes taking away of wooden logs by the persons, whose names are given in the dying declaration (Ex. 25) which appears to be common. The other portion describes that the victim was standing at the place of offence with a lamp of kerosene (ie., lalten) in her hands and scuffle took place, where Punjiben pushed her and therefore lamp fell down on the ground resulting catching of fire. On her clothes which is completely out of her statement before the Executive Magistrate. This statement was recorded by this witness before recording her dying declaration (Ex. 25). The prosecution can not ignore this statement (Ex. 60) while relying upon her dying declaration (Ex. 25). Here, this Court would like to refer the complaint lodged by deceased herself before the police on 30th May 2000 (Ex. 64). In her complaint, she has stated that before five days ie., on Friday, at about 8.30 to 9.00 o’clock in the night, her husband when was in village for domestic work, she herself, her daughter Naynaben and son Narsinhbhai were present at home. At that time, her relatives, who were staying nearby Palaj Sugar Factory had demanded their share in the land wrongly. They also demanded their share in the cut wood of trees lying in the field, and therefore, when they refused to give their alleged share, at about 8.30 hours in the night, accused-Vinubhai Ishvarbhai; Prakashbhai Ishvarbhai; Harmanbhai Ishvarbhai; Punjiben Ishvarbhai; Sushilaben Prakashbhai and Manjulaben Vinubhai came on a tractor into the field for loading of the wooden. They were prevented by the complainant stating that she was an owner of the wooden, and therefore, Punjiben, Manjulaben, Sushiben and Maniben Harmanbhai came down from the tractor. One lighting lamp, which was in her hands, fell down due to intervention of Punjiben. She caught fire by three family members and Prakashbhai Ishvarbhai Parmar came down from the tractor with a gallon of kerosene and stated to have burnt the house. Harmanbhai Ishvarbhai, Chandubhai Nagarbhai and Jenabhai Nathabhai were uttering that instead of burning the house, victim Gomtiben should be set on fire, and therefore, Prakashbhai poured kerosene to her body and Maniben Harmanbhai ablazed her with matchstick and her clothes started burning and resultantly she received burn injuries on her body. Harmanbhai Ishvarbhai, Chandubhai Nagarbhai and Jenabhai Nathabhai were uttering that instead of burning the house, victim Gomtiben should be set on fire, and therefore, Prakashbhai poured kerosene to her body and Maniben Harmanbhai ablazed her with matchstick and her clothes started burning and resultantly she received burn injuries on her body. The clothes of Punjiben, who caught hold the victim-Gomtiben also started to burn. Hearing the scream shouts, son of the complainant-Gomtiben, named Narsinhbhai, came to her and poured water to save her. She was shifted to Petlad Government Hospital and thereafter for her further treatment she was shifted to Karamsad Hospital. It appears that she has stated complete new story in her complaint dated 30th May 2000 contrary to her first statement (Ex. 60) as well as dying declaration (Ex. 25) recorded by the Executive Magistrate. 16. For the first time, in her complaint at Ex. 64, three persons came at her place. The story of burning the house of complainant as stated by Prakashbhai Ishvarbhai and refusal by Harmanbhai Ishvarbhai, Chandubhai Nagarbhai and Jenabhai Nathabhai, who were never disclosed in her dying declaration Ex. 25 recorded just on the very same day. appears to be came on record in her complaint. 17. P.W. No.14-Madhavsinh Pahadsinh Vasava has stated in his deposition Ex. 63 that in connection with CR No. I-49 of 2000 registered with Petlad Town Police Station for an offence punishable under Section 302 IPC, investigation was handed over to him. Panchnama of the place of offence was prepared by him. Muddamal was seized during the investigation. In the said offence, one of the accused was Gomtiben, and therefore, her statement was recorded by him in the Civil Hospital at Nadiad during her medical treatment. From her statement, it was found that there was cognizable offence committed by the accused and the said statement was treated as a complaint. Statement of Gomtiben (Ex. 64) was recorded by this witness and she had affixed her right hand thumb impression below it as well as signature of this witness. There is complete inconsistency in the statement of Gomtiben (Ex. 60), her dying declaration (Ex. 25) and her complaint (Ex. 64) before three different officers as well as Executive Magistrate also. The learned trial Judge has relied on the dying declaration of the deceased which was recorded by the Executive Magistrate vide Ex. 25. 18. There is complete inconsistency in the statement of Gomtiben (Ex. 60), her dying declaration (Ex. 25) and her complaint (Ex. 64) before three different officers as well as Executive Magistrate also. The learned trial Judge has relied on the dying declaration of the deceased which was recorded by the Executive Magistrate vide Ex. 25. 18. Naynaben is the daughter of deceased as she was present at the time of offence, as stated by the deceased in one of her statements. She was examined as PW-4 vide Ex. 27. She has also stated of dispute in respect of loading of wooden logs in the tractor. In the first part of her chief-examination, she has further stated that Vinubhai and Prakashbhai alighted from the tractor and caught her mother. Punjiben, Manjulaben and Shushilaben again caught her mother and thereafter Vinubhai and Prakashbhai poured kerosene on her mother and set her ablaze. Due to fire on her mother, water was spread over her body by her brother and thereafter, she was shifted to Civil Hospital. These persons ran away in the tractor. She, of course, identified the accused persons before the Court. From the cross-examination of this witness, it appears that for eight to nine times, she was inquired by the police and at every point of time, written note was made by the police. Only at one point of time, she admitted that tractor was stopped by her mother Gomtiben and there was a lighting kerosene lamp in the hands of her mother. She has, of course, denied that in her statement before the police on 27th November 2000, it was declared by her that “her mother was pushed by Punjiben, at that time, the lighting lamp fell down from her hands and the clothes of her mother caught fire and started to burn. 19. P.W.14-Madhavsinh Pahadsinh Vasava in his crossexamination has admitted that he has recorded statement of Naynaben Jashbhai during the course of investigation. 20. P.W.-16 Tersingbhai Punabhai Chandana, who is one of the Investigating Officers, has also admitted in his cross examination that he recorded statement of Naynaben Jashbhai Parmar, Narsinhbhai Jashbhai Parmar and Dabhaibhai Shanabhai Parmar during the course of investigation and from their statements, it was found that this incident was a result of an accident. From the deposition of this witness-Mr. Tersingbhai Punabhai Chandana Ex. From the deposition of this witness-Mr. Tersingbhai Punabhai Chandana Ex. 69, it appears that he also confirmed the theory of accidental case, as supported by daughter of the deceased Naynaben Jashbhai and son of the deceased Narsinhbhai Jashbhai in their statements before the Police. 21. At one point of time, Naynaben has also admitted in her cross-examination that her mother Gomtiben stopped the tractor, at that time, there was a burning (lighting) lamp of kerosene in her hands, which also supports theory of accident, as per her statement recorded by Investigating Officer Mr. Chandana. Statements of deceased Gomtiben are completely contrary and inconsistent. She has, at one point of time, developed a theory of accidental injury and in the second dying declaration, she had developed another theory by giving names of six accused persons. She has stated that 20 to 25 persons came at her house in night in a tractor from whom some of them poured kerosene on her body. She was unable to identify remaining persons sitting in the tractor. In her statement before another Investigating Officer, which is treated as a complaint, some different names of the accused persons were disclosed by her as well as different role allegedly is attributed to them. 22. Considering totality of the facts as culled out from the available evidence so also on conjoint reading recording of the dying declarations, this Court is of the view that where there is prima facie inconsistency in three alleged dying declarations made by the deceased, conviction based on one of the dying declaration is liable to be set aside. Inconsistence in dying declarations cannot be accepted in absence of any corroboration. The Court cannot sideline material diversion relating to very accused of crime in three dying declarations. In the instant case, the deceased gave different conversation in three dying declarations/statements as well as of role played by each of the accused at the relevant point of time. There is complete inconsistency in the dying declarations regarding entry of the accused at the place of incident and the role played by them to cause death of the victim, and therefore, this Court is of the view that accused are entitled to be given benefit of doubt. 23. There is complete inconsistency in the dying declarations regarding entry of the accused at the place of incident and the role played by them to cause death of the victim, and therefore, this Court is of the view that accused are entitled to be given benefit of doubt. 23. In the cited authorities relied upon by the learned advocate for the appellants, it is observed that when there is multiple inconsistency and different, then dying declarations cannot be accepted on their face value. In the instant case, if we consider factual aspects; as discussed hereinabove, three different dying declarations are available on record, and therefore, version given in each one of them need not be discussed. 24. In view of the foregoing discussion, no case is made out by the prosecution on the strength of declaration made by the deceased and the manner of burn injuries caused by the accused without there being any other corroborative evidence, and therefore, the present Appeal deserves to be allowed. Accordingly, this Appeal is allowed. The impugned judgment and order dated 05.09.2001 passed by learned Second Joint District Judge and Additional Sessions Judge, Nadiad in Sessions Case No. 258 of 2000 convicting the appellants for the offence punishable under Section 304 Part II and 34 of the Indian Penal Code is hereby quashed and set aside. The appellants are acquitted of the charge for which they have been arraigned. Notice; if any stands discharged. Bailable warrants stand cancelled. Appeal allowed.