JUDGMENT : The appellant has assailed the judgment of conviction awarded by learned Adhoc Additional Sessions Judge, Achalpur in Sessions Trial No. 61/2002 dated 4-42-006 by which appellant came to be convicted for the offence punishable under Section 304(II) of the Indian Penal Code. 2. The case of the prosecution against appellant in short is as under. (i) On 22-2-2002, deceased Suraj Jaideorao Kumbhalwar, aged about 14 years was returning from school. Appellant/accused was quarreling with his wife. Accused called him and directed him to bring rope to kill his wife. Deceased went to his house and told him that rope was not available. Appellant got annoyed and threw burning stove on the person of deceased. Clothes of deceased caught fire. Deceased sustained burn injuries. Appellant himself extinguished the fire and thereafter taken him to Irwin Hospital at Amravati. (ii) Dying declaration of deceased was recorded by Naib Tahsildar. On the basis of dying declaration, crime was registered for the offence punishable under Section 307 of the Indian Penal Code. During the treatment, deceased died, therefore, offence punishable under Section 302 of the Indian Penal Code came to be added. PSI Shri Berad investigated the crime. He went to the spot of incident, prepared spot panchanama, seized burn pieces of clothes, stove etc. from the spot of incident. Thereafter, he obtained postmortem report, recorded statements of witnesses and after complete investigation, filed charge-sheet before the Court of Judicial Magistrate First Class, Achalpur, who in turn, committed the same to the Court of Sessions, Achalpur for trial. (iii) Trial Court framed charge at Exhibit 15 for the offence punishable under Section 302 of the Indian Penal Code. The prosecution has examined 15 witnesses. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. He has denied material incriminating evidence against him. After hearing the prosecution and defence, learned trial Court came to the conclusion that appellant/ accused had no any intention to kill deceased and therefore, he is convicted for the offence punishable under Section 304(II) of the Indian Penal Code. 3. Heard learned counsel Shri A. C. Dharmadhikari for the appellant. He has pointed out evidence on record and submitted that none of the witnesses supported to the case of prosecution. Except the dying declaration, there is no other evidence. Dying declaration appears to be doubtful and hence, prayed to allow the appeal. 4. 3. Heard learned counsel Shri A. C. Dharmadhikari for the appellant. He has pointed out evidence on record and submitted that none of the witnesses supported to the case of prosecution. Except the dying declaration, there is no other evidence. Dying declaration appears to be doubtful and hence, prayed to allow the appeal. 4. Heard learned Additional Public Prosecutor Ms. Jaipurkar for the State/respondent. She has strongly supported the impugned judgment. 5. From the perusal of evidence, it is clear that all the material witnesses have not supported the case of prosecution except P.W. 5. P.W. 5 Pramila Kumbhalkar is the mother of deceased. She has stated that at the time of incident, she was not present. On returning home, she came to know that accused burnt his son and his son was admitted in Irwin Hospital, Amravati. Thereafter, she went to Irwin Hospital. She enquired from her son, he disclosed that accused was quarreling with his wife. Accused directed him to bring rope to kill his wife. He went to the house, returned back and told that rope was not available at his house. Accused in a fit of anger kicked burning stove on his person, therefore, he sustained burn injuries. 6. Except the evidence of P.W. 5 and dying declaration recorded by P.W. 14 Naib Tahsildar Shri Joshi, there is no other evidence by the side of prosecution. 7. There is no dispute about the death of deceased. Deceased died due to 98% burn injuries. P.W. 5 in her evidence has stated that condition of deceased was critical. When she went to hospital, her son was covered with bandage. Except his face, nothing was visible. She has stated that her statement was not recorded by police and for the first time, she deposed before the Court. 8. From the evidence of P.W. 5, it is clear that deceased was in critical condition and hence, question arise as to whether deceased was mentally fit to give statement before Naib Tahsildar. P.W. 14 Shri Joshi stated that on the request of police, he went to Irwin Hospital and recorded statement of deceased, Exhibit 80. He has not stated in his evidence that he personally satisfied about the physical and mental condition of deceased. There is no such endorsement on Exhibit 80 about his satisfaction in respect of condition of deceased. P.W. 14 Shri Joshi stated that on the request of police, he went to Irwin Hospital and recorded statement of deceased, Exhibit 80. He has not stated in his evidence that he personally satisfied about the physical and mental condition of deceased. There is no such endorsement on Exhibit 80 about his satisfaction in respect of condition of deceased. Evidence of P.W. 5 itself shows that whole body of deceased was covered except the face. In such condition, it is doubtful as to whether deceased was mentally fit to give statement. Dying declaration, Exhibit 80 reads as under : “The incident occurred on 22/2/2002. I was returning home from the school. At 2.30 p.m., Namdeo Meshram called me at (his) house, beat me and kicked towards me stove on which he prepared tea. The stove fell on my person. I sustained burn injuries and thereafter, Meshram extinguished the fire caught on my person.” 9. P.W. 5 has stated in her evidence in respect of the oral dying declaration stated by deceased. She has stated in her evidence that she returned back from the forest at about 2.00 p.m., she came to know about the incident. She came to know that her son was admitted to Irwin Hospital, Amravati. She went to hospital and enquired from deceased, deceased told her that Namdeo teacher called him in his house and asked him to remove the bamboos of his house. Thereafter, he returned home and when he was eating food, the accused again came to her house and told him to bring rope. Thereafter, her son went to the house of accused to tell that rope is not available. The accused got annoyed and threw burning stove on her son, hence, her son's clothes caught fire and burnt. Accused himself extinguished the fire by pouring water on her son. Accused dragged her son to Balwadi and beat him there. This dying declaration appears to be contradictory to the dying declaration, Exhibit 80 recorded by Naib Tahsildar because deceased had not stated that he was again beaten near Balwadi etc. 10. Now, it is well settled law that conviction can be awarded only on the basis of dying declaration, provided it should inspire the confidence of the Court. The dead person cannot be called for cross-examination and, therefore, extreme care is required to convict the accused only on the basis of dying declaration. 11. 10. Now, it is well settled law that conviction can be awarded only on the basis of dying declaration, provided it should inspire the confidence of the Court. The dead person cannot be called for cross-examination and, therefore, extreme care is required to convict the accused only on the basis of dying declaration. 11. Hon'ble Supreme Court in the case of Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22 , has observed as under : “In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.” 12. In the present case, evidence of P.W. 5, mother of deceased shows that deceased was in a critical condition. He had sustained 98% burn injuries. Her evidence shows that when she visited the hospital, whole body of her son was covered with bandage except his face. Except the dying declaration, there is no evidence to connect the accused with the alleged offence. Dying declaration, Exhibit 80 and the oral dying declaration stated by P.W. 5 are contradictory. Those dying declarations are doubtful because deceased had sustained 98% burn. His condition was critical. Therefore, only on the basis of contradictory and unreliable dying declarations, conviction cannot be awarded. Dying declaration, Exhibit 80 and the oral dying declaration stated by P.W. 5 are contradictory. Those dying declarations are doubtful because deceased had sustained 98% burn. His condition was critical. Therefore, only on the basis of contradictory and unreliable dying declarations, conviction cannot be awarded. All the eye witnesses turned hostile. There is no cogent evidence by the side of prosecution to prove the guilt of accused. Hence, I am of the view that the appellant is entitled for acquittal. In the result, I proceed to pass the following order. ORDER (i) The appeal is allowed. (ii) Impugned judgment is hereby quashed and set aside. Appellant is acquitted of the offence charged against him. (iii) Fine amount, if paid, be refunded. (iv) Appellant/accused is on bail. His bail bond stands cancelled. (v) R & P be sent back to the trial Court.