JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal is directed against the judgment dated 13/10/2011 passed by the Additional Sessions Judge, Aklera, District Jhalawar in Sessions Case No. 60/2011, whereby the accused-appellant has been convicted for offence u/s. 302 IPC and sentenced to life imprisonment with a fine of Rs.2,000/- and in default thereof, to further undergo rigorous imprisonment of one year. 2. Brief facts giving rise to the present appeal are that First Information Report (Ex. P12) was lodged with Police Station Bhalta District Jhalawar at 7.30 P.M. on 20.05.2011, on the basis of Parcha Bayan of deceased Prem Bai @ Nani Bai w/o Devi Singh Tanwar. In the Parcha Bayan, she stated that in the morning i.e. on 19.05.2011 at about 9-10 AM, while she was cooking food, she told her husband Dev Singh to return her silver bracelets which he had taken about 8 days ago on the pretext that he would get the same remodelled and thereafter return. On this, accused Dev Singh became infuriated and threatened to teach her a lesson. He did not stop at that and lifted the five litre Jeriken lying nearby. It contained kerosene. He poured the same her body (Prem Bai @ Nani Bai) and lit fire with match box. She made hue and cry upon which Nanda Tanwer (PW4), Kallu Tanwer (PW11), Nanu Tanwer (PW6) and many other villagers came to rescue her. She was taken to Government Dispensary of Bakani in a Maruti of Gabba Tanwar (PW10) by Devi Singh, Kallu, Nanda Tanwar and thereafter she was taken to Government Hospital, Jhalawar, for treatment. It was further alleged by her that on previous Deepawali, quarrel had taken place between her and her husband and her husband caused injuries to her but at that time, the matter was sorted out with the intervention of the village panchayat and they again started living together peacefully. But thereafter the accused again started scolding her. It was also alleged that her husband poured kerosene on her body with the intention to kill her. 3. On 30.05.2011, Prem Bai died due to burn injuries and the police therefore added Section 302 IPC in the case pending investigation. After completion of the investigation, police submitted challan against the accused appellant under Section 302 IPC before the trial Court. 3. On 30.05.2011, Prem Bai died due to burn injuries and the police therefore added Section 302 IPC in the case pending investigation. After completion of the investigation, police submitted challan against the accused appellant under Section 302 IPC before the trial Court. After hearing learned counsel for the parties, charge under Section 302 IPC was framed against the accused-appellant. Appellant pleaded not guilty and claimed trial. The prosecution produced as many as 17 witnesses and exhibited 32 documents. Defence produced only one witness Heeralal (DW1) and did not exhibit any document. Learned trial court after conclusion of the trial, convicted and sentenced the accused appellant as stated above. Hence this appeal: 4. Mr. Mayank Kumar Choudhary, learned counsel for the appellant argued that there are discrepancies and variations in the allegations against the appellant made in Parcha Bayan (Ex. P11), recorded at 7.00 P.M. on 19.05.2011, as also in dying declaration recorded by the Judicial Magistrate (Ex. P31) on 20.05.2011 at 7.00 P.M. and again her statement under Section 161 Cr.P.C. recorded by the Investigating Officer on 24.05.2011. Incident had taken place at 8.00 AM, which is evident from Roznamcha (Ex. P10) entered at 1.15 P.M. dated 19.05.2011, Parcha Bayan was recorded belatedly and thereafter FIR has been lodged with still more delay at 7.30 P.M. on 20.05.2011. In the meantime, mother and father of the deceased had come to the hospital. It is on their instigation, especially the mother, that deceased made allegation against accused. Learned counsel argued that the deceased in her statement under Section 161 Cr.P.C. (Ex. P14) recorded by the Investigation Officer on 24.05.2011, categorically stated that when she poured kerosene in clay hearth to ignite the same, this gave sudden spurt to the fire, as a result of which her clothes caught fire. She cried for help. Two girls namely Krishna Bai (PW 7) and Malika Bai (PW 8) who were cousins of her husband were also sitting with her. Nanu Ram (PW6), Kallu Tanwar(PW11) and Sharda Bai (PW5) and many other villagers came there to save her. It is argued that at the time of incident, her husband Dev Singh had gone to village, on hearing this, without loosing any time, immediately came there and thereafter her husband along with Nanu Ram (PW6) and Kallu(PW11) took the deceased to the Government Dispensary at Bakani, where doctor asked her about the cause of death. It is argued that at the time of incident, her husband Dev Singh had gone to village, on hearing this, without loosing any time, immediately came there and thereafter her husband along with Nanu Ram (PW6) and Kallu(PW11) took the deceased to the Government Dispensary at Bakani, where doctor asked her about the cause of death. She told him that it was due to accidental fire. 5. Father of the deceased Ratanlal (PW1) stated that he came to Government Hospital, Jhalawar, when the deceased was under treatment. Since the deceased was perturbed, her mother, who was sitting nearby, tutored her to give false statement against her husband Dev Singh. In such condition she gave statement against her husband. She also stated that on being misled by her mother, she gave statement of pouring kerosene and putting her on fire by her husband and gave similar statement to the Magistrate, whereas her husband had not burnt her. 6. In the present case, there is not only one dying declaration but there are three different dying declarations which have been recorded (i) Parcha Bayan of Prem Bai deceased (Ex. P11), (ii) statement recorded by the Magistrate (Ex. P31) and (iii) statement recorded under Section 161 Cr.P.C. (Ex. P14). Burn injuries caused to her while she was cooking food is of accidental in nature. She was taken to Government Dispensary, Bakani but no investigation was made in this regard by the Investigating Officer. Learned counsel argued that even though there was no charge under Section 304B IPC even then the trial Court has erred in law in recording the finding that the accused ought to have given an explanation as to why and in what circumstances, the deceased died and since there was no explanation, presumption of Section 113B of Indian Evidence Act would not come against the appellant. 7. Learned counsel argued that in the present case, the charge against the accused appellant was for under Section 302 IPC and not under Section 304 part II IPC, presumption of Section 113B of Indian Evidence Act, could not be raised against the accused appellant. He further argued that the learned trial Court failed to appreciate that Ratan Lal (PW1) father of the deceased and Kanchan Bai (PW2) mother of the deceased have only supported the prosecution case and Moti Lal (PW3) and Nanda Lal (PW4) have turned hostile. He further argued that the learned trial Court failed to appreciate that Ratan Lal (PW1) father of the deceased and Kanchan Bai (PW2) mother of the deceased have only supported the prosecution case and Moti Lal (PW3) and Nanda Lal (PW4) have turned hostile. Sharda Bai (PW5), Nanu Ram (PW6) were neighbours of the accused, have also not supported the prosecution case. Krishan Bai (PW7) and Malika Bai (PW8) are the girls who were present at the time of incident with deceased, have also turned hostile and not supported the prosecution case. Jagdish @ Gabba (PW10), Kallu (PW11) and Rai Singh (PW14) are neighbours of the deceased who have although not supported the case of the prosecution in as much as they have stated in the manner as alleged by the prosecution. Learned counsel argued that the trial Court has committed serious error of law in not believing the statement of Heera Lal (DW1) who rather provide corroboration to the statement of deceased under Section 161 Cr.P.C. (Ex. P14). He stated that on 25.05.2011, he happened to have gone to Government Hospital Jhalawar where his maternal uncle Raghunath was admitted in hospital and where also the deceased Prem Bai was also admitted. On his inquiry Prem Bai told him that she accidentally caught fire. 8. On the other hand, learned Public Prosecutor has opposed the appeal and argued that charge against the appellant, in view of the earliest statement made in the parcha bayan as also statement recorded before the Magistrate as dying declaration cannot be said to be not proved beyond reasonable doubt. Accidental fire could not be substantiated because blouse of the deceased having smell of kerosene has been recovered and her cloths accidentally caught incidental fire while cooking food. No such version is coming forth even from the statements. Learned Public Prosecutor supported the findings recorded and reasonings given by the trial Court in convicting the accused appellant for the offence under Section 302 IPC. 9. Heard learned counsel for the appellant, learned Public Prosecutor appearing on behalf of the State and perused the relevant material placed before us. 10. In Sharda Vs. State of Rajasthan reported in (2010) 2 SCC 85 7, 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). 10. In Sharda Vs. State of Rajasthan reported in (2010) 2 SCC 85 7, 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. 11. The Supreme Court in Vallabhaneni Venkateshwara Rao, Vs. State of Andhra Pradesh (2010) 2 SCC 85 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. 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. 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 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 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 ).” 12. The Supreme Court in Amol Singh Vs. State of MP reported in (2008) 5 SCC 468 in para 13 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.” 13. The Supreme Court in Umakant & Anr. Vs. State of Chattisgarh reported in 2014(7) SCC 405 , 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 inlaws 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 there from and stated that she was forced to sign that letter or else deceased would not have been treated. However, sister of deceased resiled there from 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. 14. No doubt, the Parcha Bayan of deceased Prem Bai, (Ex. P11) given to the Investigating Officer at the earliest point of time at 7:00 PM on 19.05.2011, has been recorded after 10 hours of the incident and her statement before the Magistrate was recorded on 20.5.2011 and statement under section 161 Cr.P.C was recorded on 24/5/2011 after five days. In the meantime, she was accompanied by her parents, especially mother, who had full opportunity to tutor her and on being tutored by her an allegation of pouring kerosene was leveled against the accused appellant. This has created doubt about the correctness of what she had alleged in Parcha Bayan. And it also creates doubt about what she stated in her statement recorded under Section 164 Cr.P.C, by the Judicial Magistrate. In fact, five days thereafter on 24.5.2011, when her statement under Section 161 Cr.P.C. was recorded by the Investigating Officer, she has stated that it was because of her mother who tutored her to make an allegation against accused appellant that she made such allegation. In fact, five days thereafter on 24.5.2011, when her statement under Section 161 Cr.P.C. was recorded by the Investigating Officer, she has stated that it was because of her mother who tutored her to make an allegation against accused appellant that she made such allegation. She also similarly stated in statement recorded before Judicial Magistrate on 20.05.2011. 15. Several witnesses, who have been examined, have not proved the presence of the accused appellant at the place of occurrence. They being neighbours have supported the defence version that an accidental fire took place and the accused appellant immediately arrived at the seen of occurrence and tried to save the life of deceased by immediately taking her to hospital. Statement could as well be treated as dying declaration. There are thus discrepancies in three different dying declarations. Third statement contradicts with the first two statements which makes initial version doubtful. There being thus two possibilities which may be believed or disbelieved, therefore in a situation like this, law commends us to prefer the version which favours the accused than the prosecution. It is trite that when there are conflicting or contradictory dying declarations and if the prosecution fails to discharge the burden of proof beyond reasonable doubt, there is no reason why the benefit of doubt should not be extended to the accused. 16. We may also notice that not only in the statement given to the police under section 161 Cr.P.C. but also in the Parcha Bayan given to the police, the deceased had alleged that immediately after she caught fire she raised hue and cry. After that, Nand Lal (PW4), Kallu (PW11) and Nanu (PW6) and so many neighbours came for her rescue. Then her husband along with Devi Singh, Kallu Tanwar and Nanda Tanwar took her to the Government Dispensary, Bakani in a Maruti Car of Jagdish @ Gabba (PW10). While father Ratan Lal (PW1) and mother Kanchan Bai (PW2), admitted that they directly reached the Hospital at Jhalawar, where Parcha Bayan and statement before the Magistrate were recorded. These persons accompanied deceased since inception. Nandlal (PW4), an attesting witness of (Ex. P3) in his cross-examination categorically stated that on the fateful day, the accused appellant Dev Singh was with him in temple. Dev Singh always treated his wife pleasantly and he had not poured the kerosene on the body of the deceased. These persons accompanied deceased since inception. Nandlal (PW4), an attesting witness of (Ex. P3) in his cross-examination categorically stated that on the fateful day, the accused appellant Dev Singh was with him in temple. Dev Singh always treated his wife pleasantly and he had not poured the kerosene on the body of the deceased. Sharda Bai (PW5) has stated that accused appellant-Dev Singh happens to be her cousin and at the time of incident, deceased came in inflamed condition rushing towards her and she was in the house and accused appellant Dev Singh was not there at the time of incident. On making hue and cry by her, her uncle Nanu came there. In cross examination she stated that Dev Singh had not poured kerosene on Prem Bai and for treatment, he arranged maruti car of Jagdish @ Gabba and along with Madan, Kallu, Jagdish, Mangilal and Ratan etc. they had gone to hospital. 17. Nanu Ram @ Maganlal (PW6) in his cross examination has rather stated that Prem Bai had accidentally caught fire and accused appellant Dev Singh took her to hospital in the vehicle of Gabba. Krishna Bai (PW7) who is child witness aged 7 years has denied allegation that accused Dev Sigh had put the deceased to fire and stated that in fact accused appellant was not present in the house and came after hearing hue and cry of the deceased. Malika Bai (PW8) is also a child witness aged 13 years who stated that at the time of incident she herself, Krishna Bai and Sharda Bai were there with the deceased. Dev Singh had gone to temple. She denied the allegation regarding as to who poured the Kerosene on the deceased and lit the fire. On coming to know they came rushing there, where the deceased was crying uncontrollably. Then she was taken to hospital in a maruti car of Jagdish @ Gabba (PW10) and thereafter she was taken to Government Hospital at Jhalawar. In his presence, Doctor in Government Dispensary Bakani asked her as to what was the reason for burn. Then the deceased told the doctor that she herself poured the kerosene over her body and her body caught the fire accidentally. Accused appellant was living with his wife happily and never tortured her and it was not true that accused Dev Singh poured kerosene on the body of deceased. 18. Then the deceased told the doctor that she herself poured the kerosene over her body and her body caught the fire accidentally. Accused appellant was living with his wife happily and never tortured her and it was not true that accused Dev Singh poured kerosene on the body of deceased. 18. At this stage, we may take note of the statement of Jagdish @ Gabba (PW10) who has stated that when deceased was first taken to Government Dispensary Bakani, on being enquired by the duty doctor, she (deceased) admitted that she accidentally got herself burnt and similar statement has been made by the deceased herself in Ex. P14, statement recorded under Section 161 Cr.P.C. but no investigation was made by the Investigating Officer from the Government Dispensary Bakani. Kallu (PW11) whose name also figured as witness of dying declaration and parcha bayan has stated that when he reached the place of occurrence, the deceased was crying and then she was taken to hospital at Bakani in maruti car of Gabba. Rai Singh (PW13) s/o Ram Lal, and Ray Singh (PW14) Champa Lal have also given similar statements. Mr. Bhanwar Lal (PW15) ASI who recorded the Parcha Bayan to prove the statement of Parcha Bayan has been produced. Prahabat Agarwal (PW17), the Judicial Magistrate, has been produced to prove the dying declaration. In a case where there are multiple number of dying declarations which are contradicting each other, which one has to be believed or which one has to be disbelieved, the court in such a situation may decide according to law and the precedent available on this subject. 19. This court in Madan vs State of Rajasthan, DB Criminal Appeal No. 89/2012 decided on 19/7/2017, dealing with a case where there were multiple number of dying declarations observed thus: “In the present case, second dying declaration of the deceased does not find any corroboration. 19. This court in Madan vs State of Rajasthan, DB Criminal Appeal No. 89/2012 decided on 19/7/2017, dealing with a case where there were multiple number of dying declarations observed thus: “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. 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 view of above discussion, present appeal deserves to succeed and is allowed. Impugned judgment dated 13.10.2011 passed by the trial court is set aside and the accused-appellant is acquitted of the charges under Section 302 IPC. Accused-appellant is in jail and be set at liberty forthwith if not required to be detained in any other case. 21. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, Accused-appellant, namely, Dev Singh son of Amarlal is 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, he, on receipt of notice thereof, shall appear before the Supreme Court.