JUDGMENT : M.G. Giratkar, J. 1. Appellant has assailed the judgment of conviction awarded by learned Additional Sessions Judge, Achalpur in Sessions Trial No. 72/2015 by which he is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs. 5,000/- in default to suffer simple imprisonment for six months. He is also convicted for the offence punishable under Section 498A of the Indian Penal Code and sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 1,000/- in default to suffer simple imprisonment for one month. He is also convicted for the offence punishable under Section 504 of the Indian Penal Code and sentenced to suffer simple imprisonment for six months and to pay fine of Rs. 500/- in default to suffer simple imprisonment for 15 days. 2. The case of the prosecution against the appellant in short is as under. (i) Deceased Kunda was married with appellant 34 years before the incident. Kunda used to visit her parents house and used to disclose ill-treatment of her husband saying that her husband used to beat her and abused her under the influence of liquor. On the day of incident i.e. on 2-5-2015 at about 7.00 p.m., brother of deceased namely, Santosh (P.W. 1) came to know that his sister Kunda had sustained burn injuries. P.W. 1 Santosh along with his wife went to the house of appellant. People who were gathered there told him that Kunda had gone to Police Station. Thereafter they went to Government Hospital, Pathrot. Kunda was not found in the hospital, therefore, on the way to Police Station, they met her while going to the hospital. He saw burn injuries on the person of Kunda. They took her to Irwin Hospital, Amravati. Kunda told him in the hospital that her husband came to house under the influence of liquor and he abused her. She told him that he poured kerosene and set fire on her person. (ii) Thereafter P.W. 1 lodged report, Exhibit 12 alleging that appellant and his parents ill-treated the deceased and father of appellant instigated him to set her on fire. Crime was registered against the accused. Police Sub-Inspector Shri Neware went to the hospital and recorded statement of Kunda. She told him that he poured kerosene and set fire on her person. (ii) Thereafter P.W. 1 lodged report, Exhibit 12 alleging that appellant and his parents ill-treated the deceased and father of appellant instigated him to set her on fire. Crime was registered against the accused. Police Sub-Inspector Shri Neware went to the hospital and recorded statement of Kunda. He went to the spot of incident, prepared spot panchanama and recorded statements of witnesses. On 26-5-2015, Kunda died in the hospital. Inquest panchanama was prepared. Dead body was sent for postmortem. Postmortem was conducted. After complete investigation, he filed chargesheet before the Judicial Magistrate First Class, Court No. 2, Achalpur who in turn committed the case for trial to the Court of Sessions. (iii) Charge was framed at Exhibit 3 for the offences punishable under Sections 302, 498A, 504 read with Section 34 of the Indian Penal Code against the appellant, his brother and parents. Same was readover and explained to them. They pleaded not guilty and claimed to be tried. Defence appears to be of total denial. Learned trial Court examined in all 9 witnesses. (iv) Statement of accused were recorded under Section 313 of the Code of Criminal Procedure. After hearing the prosecution and defence, learned trial Court convicted the appellant as stated above and acquitted accused nos. 2 to 4 for all the offences charged against them. 3. Heard learned counsel Mrs. S. P. Kulkarni for the appellant. She has pointed out evidence on record and submitted that statement of deceased was recorded by Investigating Officer, P.W. 9. Deceased was admitted on 3-5-2005. She died on 26-5-2005. During this period, no effort was made by the Investigating Officer to record the statement of deceased by Executive Magistrate. No explanation is given by the prosecution. Evidence of P.W. 1 and P.W. 4 are not reliable. They are interested witnesses. Dying declaration stated by deceased before P.W. 9 vide Exhibit 40 is not reliable. Oral dying declaration stated by P.W. 1 and P.W. 4 also not reliable. They are interested witnesses. In support of her submissions, learned counsel has pointed decision in the case of Surinder Kumar Vs. State of Haryana reported in 2012 AllMR(Cri) 696 (S.C.). 4. Heard learned Additional Public Prosecutor Mrs. S.V. Kolhe for the State/respondent. Oral dying declaration stated by P.W. 1 and P.W. 4 also not reliable. They are interested witnesses. In support of her submissions, learned counsel has pointed decision in the case of Surinder Kumar Vs. State of Haryana reported in 2012 AllMR(Cri) 696 (S.C.). 4. Heard learned Additional Public Prosecutor Mrs. S.V. Kolhe for the State/respondent. She has submitted that learned trial Court relied on the oral dying declaration stated by P.W. 1 and P.W. 4 and written dying declaration, Exhibit 40. Findings of learned trial Court are correct, hence, appeal is liable to be dismissed. 5. Now, it is well settled law that conviction can be awarded only on the basis of dying declaration provided it should be truthful and should inspire confidence of the Court. Hon'ble Supreme Court in the landmark decision in the case of Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22 , has observed that: “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 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.” In the present case, evidence of P.W. 1 shows that he came to know about the incident at about 7.30 p.m. He came to know that Kunda had gone to Police Station. They went to Government Hospital, Pathrot but Kunda was not found. On the way, they met her while going to the hospital. He saw burn injuries on the person of his sister Kunda. Thereafter they took her to Irwin Hospital, Amravati. Kunda told him that her husband had come to house under the influence of liquor and he abused her. She further told him that he poured kerosene and set fire on her person. Except this, nothing more was stated by his sister Kunda. 6. P.W. 4 Chanda Uke has stated in her evidence that when they had gone to hospital, they met to deceased Kunda. Kunda had sustained burn injuries all over the body except eyes and forehead. In the hospital, her sister told that her husband set her on fire. Her husband was demanding money from her parents. Her sister told her that her husband poured kerosene on her person and set her on fire. She did not tell her anything about her in-laws and brother-in-law. 7. Except the evidence of P.W. 1 and P.W. 4 and written dying declaration, Exhibit 40, there is no other evidence to support the case of prosecution. P.W. 1 and P.W. 4 are interested witness. P.W. 1 and P.W. 4 both have not stated anything against father-in-law, mother-in-law and brother-in-law of deceased even though P.W. 1 lodged report, Exhibit 12 making allegations against appellant, his parents and brother. 8. P.W. 1 stated in his evidence that his sister Kunda told him that appellant came to house under the influence of liquor, abused her, poured kerosene and set her on fire. Except this, nothing more was stated by his sister Kunda. Evidence of P.W. 1 and P.W. 4 not reliable because P.W. 1 stated in his report that on 2-5-2015 at about 6.30 to 7.00 p.m., he came to know about the incident. He went to the house of appellant. He came to know that Kunda was taken to the hospital. He along with his wife P.W. 4 went to the hospital. Then she told him that at about 7.00 p.m., her husband came under the influence of liquor and quarreled with her. Her husband was telling her to bring money from her parents. He taken kerosene can, that time, her father-in-law instigated him. Her husband poured kerosene and set her on fire. Then she told him that at about 7.00 p.m., her husband came under the influence of liquor and quarreled with her. Her husband was telling her to bring money from her parents. He taken kerosene can, that time, her father-in-law instigated him. Her husband poured kerosene and set her on fire. P.W. 1 has stated in the report that since last many years, appellant, his parents and his brother were ill-treating, abusing and beating her. 9. Though P. W. 1 made allegations against the appellant, his parents and brother in the report but in his evidence before the Court only stated against the appellant and not against his parents and brother. He is interested witness. In the cross-examination of his wife (P.W. 4), she has stated that when they had been to the hospital, they saw burn injuries on the person of Kunda. They suspected that her husband was behind the injuries. Her husband went to Police Station and lodged the report. According to their suspicion, her husband gave report. From this particular admission of wife of P.W. 1 (P.W. 4), it is clear that report was lodged only on suspicion and, therefore, whatever oral dying declaration stated by P.W. 1 is not reliable. 10. P.W. 4 has stated in her evidence that they went to hospital. They have seen burn injuries all over the body of Kunda except eyes and forehead. In the hospital, deceased told her that her husband was demanding money from her parents. Her husband poured kerosene on her person and set her on fire. She has not stated anything about her in-laws and brother-in-law. This particular evidence of P.W. 4 is not reliable because of her evidence in the cross-examination. Her cross-examination show that she suspected the appellant and, therefore, they lodged report. 11. Both oral dying declarations are not reliable. P.W. 9 recorded the dying declaration, Exhibit 40. It is pertinent to note that written dying declaration, Exhibit 40 was recorded by P.W. 9 in presence of Doctor. Certificate of Doctor, Exhibit 34 does not show that he examined the patient and found fit to give statement. Exhibit 34 does not show that certificate was given before recording or after recording the statement of deceased. It only shows that she was able to give her statement and she gave statement in his presence (Doctor). 12. Admittedly, incident took place on 2-5-2015. Exhibit 34 does not show that certificate was given before recording or after recording the statement of deceased. It only shows that she was able to give her statement and she gave statement in his presence (Doctor). 12. Admittedly, incident took place on 2-5-2015. Deceased died on 26-5-2015. During this period, Investigating Officer, P.W. 9 not made any efforts to record the statement of deceased by Executive Magistrate. 13. As per the evidence of Dr. Sachin Gole (P.W. 7), right forearm of deceased was completely burn. Written dying declaration (Exhibit 40) shows that thumb impression was of right hand. Evidence of P.W. 4 also shows that Kunda was completely burnt except eyes and forehead. Therefore, in such situation, it was not feasible to obtain thumb impression of deceased. 14. Learned counsel for the appellant placed reliance on the case of Surinder Kumar Vs. State of Haryana (cited supra). Hon'ble Supreme Court has held that dying declaration when suspicious, cannot be acted upon without corroborative evidence. In the present case, dying declaration, Exhibit 40 is not reliable because in this dying declaration, it is stated as under : “Today, on 2-5-2015 at about 6.30 to 7.00 p.m. she was present at her house. Her father-in-law, mother-in-law and brother-in-law were present. Her husband came under the influence of liquor. He quarreled with her. He asked her to bring money from her parents. He abused her. He lifted kerosene can. Her father-in-law, mother-in-law and brother-in-law instigated him to burn her. Thereafter her husband poured kerosene on her person, ignited match stick and set her on fire. Her saree caught fire. She cried. Neighbours rushed there. They extinguished the fire. She had sustained burn injuries on her chest, neck and both hands. Thereafter she removed saree, wore another saree and came to police station. Thereafter police admitted her in the Government Hospital, Pathrot.” The above written dying declaration not in consonance with the oral dying declaration stated by P.W. 1 and P.W. 4. They have stated that deceased only stated to them that her husband poured kerosene and set her on fire. Nothing more stated to them. It is pertinent to note that they were present in the hospital immediately after the incident. Possibility cannot be ruled out that P.W. 9 recorded written dying declaration, Exhibit 40 on the say of P.W. 1 and P.W. 4. Nothing more stated to them. It is pertinent to note that they were present in the hospital immediately after the incident. Possibility cannot be ruled out that P.W. 9 recorded written dying declaration, Exhibit 40 on the say of P.W. 1 and P.W. 4. It appears from the cross-examination of P.W. 9 that when he reached in the hospital, at that time, patient was talking about the incident. This itself shows that relatives of deceased i.e. P.W. 1 and P.W. 4 were present when dying declaration, Exhibit 40 was recorded by P.W. 9. As per the admission of Investigating Officer, it is clear that during investigation, it was transpired to him that people in the vicinity extinguished fire by pouring water, but he did not record statements of those persons who extinguished the fire. Therefore, it is clear that prosecution has suppressed the genesis of the crime. 15. The evidence of P.W. 3 Aminabee Hasan shows that appellant along with his wife were residing happily. Kunda caught fire in the house and she shouted. Her husband was sitting outside the house, had gone inside the house and he tried to extinguish the fire in which he received burn injuries to his hand. It is clear from the evidence of P.W. 3 that at the time of incident, appellant was sitting outside the house. Deceased Kunda burnt inside the house. Appellant tried to extinguish the fire and during that time, he sustained burn injuries. Evidence of P.W. 1 and P.W. 4 about the dying declaration is not reliable in view of the specific admissions in the cross-examination of P.W. 4. Evidence of P.W. 9 Investigating Officer in respect of Exhibit 40 is also not reliable, more particularly, Investigating Officer, P.W. 9 himself has admitted that during investigation, it was transpired that neighbours extinguished fire but he did not record their statements. 16. P.W. 3 was the neighbour of deceased. Her evidence shows that appellant along with his wife were residing peacefully and happily. Deceased Kunda caught fire inside the house, that time, appellant was sitting outside the house. Appellant entered in the house and tried to extinguish the fire. This itself shows that evidence adduced by the prosecution about the dying declaration not sufficient to convict the appellant. There is no evidence of cruelty etc. Deceased Kunda caught fire inside the house, that time, appellant was sitting outside the house. Appellant entered in the house and tried to extinguish the fire. This itself shows that evidence adduced by the prosecution about the dying declaration not sufficient to convict the appellant. There is no evidence of cruelty etc. Learned trial Court wrongly convicted the appellant for the offences punishable under Sections 302, 498A and 504 of the Indian Penal Code. Hence, we proceed to pass the following order. ORDER (i) The appeal is allowed. (ii) The impugned judgment is hereby quashed and set aside. Appellant is acquitted of the offences punishable under Sections 302, 498A and 504 of the Indian Penal Code. (iii) The appellant is in jail. He be released forthwith, if not required in any other crime or case. (iv) R & P be sent back to the trial Court. (v) Fees payable to the learned Counsel appointed for appellant is quantified as rupees five thousand.