JUDGMENT : B.P. Dharmadhikari, J. 1. The appellant has been found guilty under section 302 of IPC and sentenced to suffer life imprisonment and to pay fine of Rs. 5,000/- or in default further RI for 2 years by judgment and order dated 20.6.2011 delivered by Addl. Senior Judge, Malegoan. 2. Deceased Tai @ Lahanubai was wife of the appellant and it is claimed that on 8.3.2010 when she was cooking food for family accused blamed her for having illicit relations with his brother Kishore. He poured kerosene on her person and ignited her. Sari on her person caught fire. She rolled on ground and extinguished herself. People then admitted her initially to local hospital at Manmad and from there she was shifted to Civil Hospital at Nashik. Two Dying declarations have been recorded on 9.3.2010 and thereafter on 10.3.2010. FIR under section 307 of IPC was registered. She expired on 13.3.2010 and thereafter it was converted into offence punishable under section 302 of IPC. Accused was arrested on 10.3.2010 itself. Prosecution has relied upon evidence of 9 witnesses while accused examined one witness in his defence. Thereafter, the impugned judgment has been delivered. 3. Arguments of Advocate Lad for the appellant are prosecution has not completely investigated into the matter. There is no material to show that accused was present at his residence at the time of incident and deposition of witnesses about it are inconsistent with dying declarations. The prosecution has not examined the mother-in-law or the brother-in-law of deceased and has also not examined the child who was present with deceased in the house at the time of alleged incident. She contends that stove exploded and flames engulfed victim Lahanubai. 4. It is submitted that spot was shown by appellant to police on 9.3.2010 and the appellant was never absconding and was also always available to police. The clothes which caught fire are found in the room and this position has not been explained by prosecution. Learned Advocate argues that those clothes should have been on the body of victim and could have been taken into possession by police either in hospital at Manmad or hospital at Nashik. 5. The alleged dying declarations do not inspire confidence since fingers of both hands were burnt and dying declarations carry thumb impression which shows trenches and curves clearly. 6. 5. The alleged dying declarations do not inspire confidence since fingers of both hands were burnt and dying declarations carry thumb impression which shows trenches and curves clearly. 6. Endorsements upon it by Doctor is doubtful since the evidence of Doctor does not inspire confidence. 7. It is submitted that the dying declaration first in point of time is recorded by Special Executive Magistrate at 6.20 p.m. while the other dying declaration is recorded by Police Head-constable at 6.45 p.m. Those dying declarations vary with each other. Despite this, FIR has been registered on 10.3.2010 at about 13.10 hours and its copy sent is received in Court on next date i.e. 11.3.2010 at 1.15 hours in the afternoon. This delay has not been explained. 8. Number of dying declarations recorded is also not clear. Our attention is invited to the statement of victim/deceased to show that according to prosecution it is signed by her. It is submitted that at some place trial Court has referred to it as Exhibit 10. It is further pointed out that Special Executive Magistrate himself has recorded two dying declarations. Though he claims it to be carbon copy, comparison of two dying declarations show that carbon copy is not identical with original Submission is dying declarations also therefore are not acceptable. 9. Learned APP on the other hand submits that PW-4 police constable Subhash has first got dying declaration recorded through Special Executive Magistrate and thereafter for the purpose of FIR, he recorded bare statement. He submits that this later statement does not militate with dying declaration in any manner. The prosecution has examined Dr. Shewale (Exhibit 29) who has proved condition of victim and supported dying declarations. The Special Executive Magistrate has simultaneously prepared the carbon copy but while obtaining thumb impression, he has obtained thumb impression of victim in original on oath and also placed his signatures. Thus, placing of impression or signatures in original, the carbon copy may not tally exactly with original, but it does not mean that dying declarations cannot be relied upon. 10. Our attention is drawn to evidence of Dr. Shewale to show that patient has suffered 60% injuries. It is claimed that evidence of Dr. Shewale or evidence of Dr. Mangala who conducted autopsy does not show that thumb was also burnt. Hence thumb impression is rightly obtained on all documents. 11. 10. Our attention is drawn to evidence of Dr. Shewale to show that patient has suffered 60% injuries. It is claimed that evidence of Dr. Shewale or evidence of Dr. Mangala who conducted autopsy does not show that thumb was also burnt. Hence thumb impression is rightly obtained on all documents. 11. Deceased has given oral dying declaration to her brother PW-2 Bhaurao Pawar. She submits that the trial Court has rightly appreciated the position and there is no reason to interfere with conviction. 12. In brief reply, learned counsel for the appellant states that victim who ran away after she was allegedly ignited, could have run away immediately after kerosene was poured, before her husband could have use match stick to ignite her. She submits that her story is unbelievable. She further pointed out that Learned APP has not brought to notice of this Court, any witness who has seen accused in the house or outside the house at the time of incident. It is submitted that even PW-2 who lives in the vicinity and claims to have rushed to house of his sister (victim), has not seen accused. 13. Homicidal nature of death of deceased Lahanubai is apparently undisputed and as such we do not labour more on it. 14. Before proceeding to deal with dying declarations it will be appropriate to refer to evidence of PW-5 Dr. Mangala Tungar, who performed post mortem. Her cross- examination shows that fingers of palm were also burnt. Evidence of PW-7 Dr. Vandana Shewale shows that fingers were also burnt and therefore victim was not in position to impress her thumb. 15. In the light of this clear evidence on record we now proceed to consider two dying declarations. First dying declaration at Exhibit 32 is obtained on printed proforma by Special Judicial Magistrate Prakash Pawar. It shows that in printed proforma there is requirement of obtaining opinion of Doctor about condition of patient. This condition is certified by PW-7 Dr. Shewale vide endorsement at Exhibit 30. She has mentioned that the patient is in condition to give statement. After this Prakash Pawar has recorded in question answer form, the statement of victim. At the end of statement there is thumb impression of left hand of victim. This condition is certified by PW-7 Dr. Shewale vide endorsement at Exhibit 30. She has mentioned that the patient is in condition to give statement. After this Prakash Pawar has recorded in question answer form, the statement of victim. At the end of statement there is thumb impression of left hand of victim. On left hand Special Judicial Magistrate Shri Pawar has placed his signature and mentioned time as 6.20 p.m. Thereafter again he has mentioned that work of recording dying declaration commenced at 6.00 p.m. and it was over at 6.20 p.m. Medical officer in attendance was then asked to examine patient and give report. That report is an endorsement at the end vide identical remark as mentioned supra. This remark is also given Exhibit 30. While putting earlier signature, PW-7 has mentioned time of 6.00 p.m. while in her later signature there is time of 6.20 p.m. It may be mentioned that copy of this dying declaration is identical in all respects except comparative placement of signatures of Shri Pawar, Special Judicial Magistrate and of thumb impression of victim. Except for this difference Exhibit 13 and its carbon copy are identical. 16. In Exhibit 32 victim has stated that she was residing with her husband and small child. There was quarrel between two and he poured kerosene on her person and ignited match stick and lit her. We have to point out that here "he" in the context means her husband i.e. accused. She rolled on and extinguished herself. People gathered and she came to hospital. Incident occurred at about 7.00 p.m. in the evening and at that time she herself, husband and child were present. When she was asked whether she has any complaint, she has stated that because of her husband and mother-in-law problems arise. She stated that she has nothing more to say. 17. PW-8 has then recorded that dying declaration was read over to her and she accepted that she has understood it and it was written as per her say. Thereafter signatures, thumb impression as mentioned supra appear. 18. The other statement treated as dying declaration (Exhibit 18) has been recorded by police Hawaldar Subhash examined as PW-4. He has also drawn Panchanama Exhibit 10 and got dying declaration recorded through Special Executive Magistrate. He states that he also got recorded statement of victim. That statement is at Exhibit 18. 19. 18. The other statement treated as dying declaration (Exhibit 18) has been recorded by police Hawaldar Subhash examined as PW-4. He has also drawn Panchanama Exhibit 10 and got dying declaration recorded through Special Executive Magistrate. He states that he also got recorded statement of victim. That statement is at Exhibit 18. 19. In this statement at Exhibit 18 victim Lahanubai has mentioned that she was residing with her husband and daughter. She got married about 8 years back. She and her husband were doing labour work. She has then pointed out what happened when she was cooking food as mentioned supra. In the same manner, she has mentioned that she came out of house and rolled on ground and extinguished herself. Her brother-in-law and mother-in-law then took her to Government hospital at Manmad and then to Civil Hospital at Nashik and her thumb impression has been obtained. On this statement PW-7 Doctor has put similar remark with time 6.40 p.m. In the margin of statement, there is reference to section 307 and station diary entry made at 13.10 hours on 10.3.2010. 20. Apart from this, effort was made by accused to show that there is one more statement of victim. However, we find that said statement is nothing but reproduction of what PW-4 has recorded in hospital vide Exhibit 18. It has been added after FIR as part of FIR. Thus, FIR has been registered on the strength of said document. 21. Though there are no inconsistencies in statements, it is to be noted that Exhibit 18 was recorded by PW-4 Hawaldar after Prakash Pawar recorded dying declaration at Exhibit 32. Dr. Vandana Shewale has deposed that she made endorsement on the paper of dying declaration given by Special Executive Magistrate. She identified both her endorsements at Exhibit 30. Similarly, she singed endorsement made on statement recorded by Police Hawaldar at Exhibit 18. 22. Her cross-examination shows that patient was 60% burnt. Her evidence also shows that patient could not have given thumb impression. She has stated that thumb impression of victim was not obtained in her presence. This evidence given by PW-7 Dr. Shewala raises serious concern. If fingers were burnt, thumb impression could not have been obtained. Why Special Executive Magistrate (PW-8) or Police Hawaldar (PW-4) did not take assistance of Doctor for obtaining mark or impression is not clear. She has stated that thumb impression of victim was not obtained in her presence. This evidence given by PW-7 Dr. Shewala raises serious concern. If fingers were burnt, thumb impression could not have been obtained. Why Special Executive Magistrate (PW-8) or Police Hawaldar (PW-4) did not take assistance of Doctor for obtaining mark or impression is not clear. Similarly, why PW-8 prepared carbon copy is also not clear. 23. It appears that the statement of victim with thumb impression was with PW-4 at about 6.45 p.m. on 9.3.2010. It appears that PW-8 had also given copy of statement recorded by him to PW-4. Despite this, no FIR was registered till 13.10 hours on 10.3.2010. Thus, FIR under section 307 of IPC in relation to incident dated 8.3.2010 has been recorded by police almost after 42 hours. This delay has not been explained by the prosecution. 24. Dying declarations show that people gathered and the brother-in-law and the mother-in-law of victim helped her. Victim nowhere states that clothes worn by her were changed. Prosecution has examined her brother Bhaurao Pawar as PW-2. He states that after hearing commotion he and his wife rushed to house of his sister which is nearby. Nearby persons extinguished fire of victim and she was taken to hospital. He visited in hospital and there he claimed that deceased told him that her husband Sanjay poured kerosene and burnt her. This person therefore does not go to help his sister immediately. He does not even inquire or help for carrying her to hospital. On the contrary, he goes to visit her in hospital. He does not state that the mother-in-law and the brother-in-law of victim were present. He does not speak anything about presence or absence of accused. Spot panchanama Exhibit 10 shows that sari worn by deceased and her peticoat were found at the spot. Those were in burnt condition and smelling of kerosene. Police had seized clothes, plastic can smelling of kerosene with small quantity of rockel and match box. Thus, there is no explanation how clothes worn by victim were found at spot on 9.3.2010 i.e. on next day. 25. Thus panchanama Exhibit 10 was recorded between 9.30 hours to 10.30 hours by PW-4 only. It is witnessed by PW-1 Gulab Pawar. Post mortem report Exhibit 23 shows that victim died of septicemia due to 60% burns. Thus, there is no explanation how clothes worn by victim were found at spot on 9.3.2010 i.e. on next day. 25. Thus panchanama Exhibit 10 was recorded between 9.30 hours to 10.30 hours by PW-4 only. It is witnessed by PW-1 Gulab Pawar. Post mortem report Exhibit 23 shows that victim died of septicemia due to 60% burns. In addition, prosecution has also examined PW-3 Balasaheb Aher who happens to be kerosene dealer selling kerosene to accused persons an hour before the incident. PW-6 Police Constable Madhukar Somase has carried the samples/seized material to laboratory. PW-9 Pardeshi is the Investigating Officer. 26. Thus, thumb impressions on dying declaration of victim, deposition of PW-7 Dr. Vandana Shewale that victim could not have given thumb impression and same were not obtained in her presence, deposition of Doctor conducting post mortem Mangala Tungar (PW-5) that fingers were burnt, huge delay in recording FIR, finding of clothes of victim at the spot of incident all create doubt about the story of prosecution. Prosecution could not bring on record any material to show that accused was present in the house at the time of incident or immediately thereafter. Accused was not absconding and on 9.3.2010 he has shown the spot to police. He has been arrested on 10.3.2010. There is no arrest panchanama showing the place from which he was arrested to show that he had absconded. 27. Defence witness Ramabai Wagh Exhibit 39 has stated that she saw a lady burning and the mother-in-law and the brother-in-law of that lady took her to hospital. 28. In this situation, we grant benefit of doubt to the appellant accused and proceed to pass following order: (i) The appeal is allowed. (ii) Judgment and order dated 20.6.2011 holding appellant guilty of offence punishable under section 302 of IPC is quashed and set aside. The appellant is given benefit of doubt and acquitted in the matter. (iii) He be set free if his custody is not required by the State in any other matter. (iv) Muddemal property be dealt with as directed by the trial Court after the appeal period is over.