JUDGMENT : K.Suresh Reddy, J. Sole Accused in Sessions Case No. 103 of 2012 on the file of the Court of Sessions Judge, Mahila Court, Vijayawada, is the appellant in the present Criminal Appeal. He was tried by the learned Sessions Judge under Section 302 IPC. 2. Substance of the charge is that on 07.05.2011 at about 02.30 P.M, the Accused committed murder of one Battula @ Islavat Malleswari (hereinafter referred to as “the deceased”) by pouring kerosene on her and setting fire to her, causing her death, thereby committed offence punishable under Section 302 IPC. 3. After completion of trial, the learned Sessions Judge, convicted the appellant/Accused under Section 302 IPC and sentenced him to suffer imprisonment for "LIFE" and also to pay a fine of Rs. 25,000/- , in default to suffer imprisonment for a period of three (03) months. 4. Case of the prosecution, as per the evidence of prosecution witnesses, is as follows:- The accused is a resident of Vambay colony, Singh Nagar, Vijayawada. The deceased is a resident of New Raja Rajeswari pet, Vijayawada. Pws-1 to 3 are the neighbours of the deceased. Pw-4 is the niece of the deceased. Pw-5 is the father of the deceased. Pw-6 is the brother of the deceased. The marriage of the deceased was performed with one Durga Rao and they were blessed with two children. Due to some ill-feelings between the husband and the deceased, the deceased left her matrimonial home and living separately. Thereafter, the deceased developed extra marital relationship with the accused, who is a married person. The deceased and the accused started living at New Raja Rajeswarpet, Vijayawada. The accused treated her well for some time and thereafter he used to altercate with the deceased by suspecting her fidelity. On 07.05.2011, at about 02.30 P.M, the accused visited the house of the deceased. The deceased arranged meals and while taking lunch, the accused picked up a quarrel with the deceased. Thereafter, the accused poured kerosene on her and set fire to her. On hearing the cries of the deceased, the neighbours i.e., Pws-1 to 3 rushed to the house of the deceased and put off the flames. Thereafter, the deceased was shifted to the Government General Hospital, Vijayawada in 108 ambulance. On 07.05.2011, the hospital authorities sent a requisition to Pw-12 i.e., I Additional Chief Metropolitan Magistrate, Vijayawada-Ex.P-16. On hearing the cries of the deceased, the neighbours i.e., Pws-1 to 3 rushed to the house of the deceased and put off the flames. Thereafter, the deceased was shifted to the Government General Hospital, Vijayawada in 108 ambulance. On 07.05.2011, the hospital authorities sent a requisition to Pw-12 i.e., I Additional Chief Metropolitan Magistrate, Vijayawada-Ex.P-16. After receiving Ex.P-16, Pw-12 went to the Government General Hospital and recorded statement of the deceased, which was marked as Ex.P-17. After receiving the hospital intimation, LW-17-Head Constable, Nunna Police Station, went to the Government General Hospital, Vijayawada and recorded statement of the deceased. The statement of the deceased recorded by Lw-17 was marked as Ex.P-19. Thereafter, Lw-17 returned to the police station. On the basis of Ex.P-19, he registered a case in Cr. No.314 of 2011 under Section 307 IPC and issued copies of FIRs to all the concerned. Ex.P-20 is the copy of FIR. He also examined Pw-5-father of the deceased and recorded his statement. On 08.05.2011, Lw-17 visited the scene of offence and prepared observation report-Ex.P- 13 in the presence of mediators. He also prepared rough sketch- Ex.P-21 at the scene of offence. He seized M.Os-1 to 4 from the scene of offence in the presence of mediators. He also secured the presence of Pws-1 to 2 and Lw-3, who are the neighbours of the deceased and who have witnessed the occurrence, examined them and recorded their statements. Of course, Lw-17 was not examined by the prosecution. The further investigation was taken over by Pw-13-Inspector of Police, Nunna Police Station. 5. On 11.05.2011, Pw-13- Inspector of Police, Nunna Police Station, received death intimation of the deceased from the Government General Hospital, Vijayawada, which was marked as Ex.P-22. On the basis of Ex.P-22, he altered the Section of law from Section 307 to 302 IPC and issued altered copy of FIR to all the concerned. Ex.P-23 is the altered copy of FIR. He verified the investigation already done by the previous Head Constable-Lw-17. He secured the presence of Pws-1 to 3 and Lw-3 at the scene of offence and recorded their statements. Thereafter, he went to the Government General Hospital, Vijayawada and conducted inquest over the dead body in the presence of mediators and blood relatives. Inquest report was marked as Ex.P-12. He also got the scene photographed through Pw-7. After completion of inquest, he sent the dead body for Post-Mortem examination. Thereafter, he went to the Government General Hospital, Vijayawada and conducted inquest over the dead body in the presence of mediators and blood relatives. Inquest report was marked as Ex.P-12. He also got the scene photographed through Pw-7. After completion of inquest, he sent the dead body for Post-Mortem examination. 6. Pw-10- Professor, Department of Forensic Medicine, Sidhartha Medical College, Vijayawada, conducted autopsy over the dead body. He found 98% burns on the dead body of the deceased. He opined the cause of death was due to “burns and its complications”. He issued Post-Mortem Certificate-Ex.P-15. On 13.05.2011, Pw-13 arrested the accused in the presence of mediators. Thereafter, the accused was remanded to judicial custody. After completion of investigation and after receipt of Post- Mortem Certificate, Pw-13 filed charge sheet. 7. In support of its case, the prosecution examined PWs-1 to 13 and marked Exs.P-1 to 23 and exhibited M.Os.1 to 4. 8. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating material found against him. 9. Accepting the evidence of the prosecution witnesses and Ex.P-19, the learned Sessions Judge convicted the appellant/Accused as aforesaid. 10. We have heard the learned counsel for the appellant and the learned Assistant Public Prosecutor for the State. 11. As seen from the material available on record, all the material prosecution witnesses i.e., Pws-1 to 4 turned hostile. They did not support the case of the prosecution including Pw-5- father of the deceased and Pw-6-brother of the deceased. The only evidence available on record to connect the accused with the incident is two dying declarations-Exs.P-17 & 19. Ex.P-17 was recorded by the learned I Additional Chief Metropolitan Magistrate-Pw-12; whereas Ex.P-19 was recorded by Lw-17- Head Constable, Nunna Police Station. 12. It is pertinent to note that in the first dying declaration-Ex.P-17, which was recorded by the learned I Additional Chief Metropolitan Magistrate-Pw-12, the deceased has stated as follows:- "Today at about 03.00 P.M my husband came to the house and asked me to prepare curry and slept. Then, I cut the vegetables in the kitchen and in order to prepare food, I poured oil for frying curry and when I was removing the rice porridge, tempering flames fell on my saree, resulting which, fire was caught to my saree. There is a kerosene tin near by it and accidentally it was also fell on me. Then, I cut the vegetables in the kitchen and in order to prepare food, I poured oil for frying curry and when I was removing the rice porridge, tempering flames fell on my saree, resulting which, fire was caught to my saree. There is a kerosene tin near by it and accidentally it was also fell on me. Then I called my husband as Bava. Upon hearing, he came and took the water from the pot and poured on me ". 13. Whereas, in the second dying declaration-Ex.P-19, which was recorded by the Head Constable, Nunna Police Station-Lw-17, the deceased has stated as follows:- "On 07.05.2011 afternoon between 2.30 to 3.00 P.M the Islavath Sakkinaidu came to my house. I arranged lunch. He tasted the food and scolded and altercated suspected her fidelity and poured kerosene and set her ablaze. Then I went out of the house with flames and the surrounding persons extinguished the fire. Then 108 ambulance came and my husband admitted me in the Government Hospital and went away". 14. We have carefully analysed both these dying declarations. Though, it is the case of the prosecution that initially the accused poured kerosene on the deceased and set her to fire but, the same was not stated by the deceased in the first dying declaration- Ex.P-17, which was recorded by the Magistrate. Further, according to the second dying declaration-Ex.P-19, the deceased has stated that the accused while suspecting her fidelity, poured kerosene on her and set fire to her. In the first dying declaration-Ex.P-17 recorded by the learned Magistrate-Pw-12, the deceased has stated that the incident took place accidentally while she was preparing food. As such, without any hesitation, it can safely be presumed that the deceased has given two divergent versions in two dying declarations. Except the two dying declarations, there is no other material available on record to connect the accused with the alleged offence. As both the dying declarations are inconsistent and as there are so many variations, they do not inspire the confidence of this Court to convict the accused. As already pointed Lw-17, who recorded the second dying declaration-Ex.P-19 was not examined by the prosecution. The learned Sessions Judge ought not to have relied on the second dying declaration Ex.P-19. Moreover, in the very first dying declaration, which was recorded by the learned Magistrate, the deceased categorically stated that the incident happened accidentally. As already pointed Lw-17, who recorded the second dying declaration-Ex.P-19 was not examined by the prosecution. The learned Sessions Judge ought not to have relied on the second dying declaration Ex.P-19. Moreover, in the very first dying declaration, which was recorded by the learned Magistrate, the deceased categorically stated that the incident happened accidentally. 15. In view of the above facts and circumstances, we are inclined to allow the Criminal Appeal by setting aside the conviction and sentence recorded by the learned Sessions Judge. 16. In the result, the Criminal Appeal is allowed by setting aside the conviction and sentence recorded against the appellant/Accused by the learned Sessions Judge, Mahila Court, Vijayawada, vide S.C.No.103 of 2012, dated 16.02.2016. 17. The appellant/Accused shall be set at liberty forthwith, if he is not required to be detained in any other case or crime. Fine amount, if any paid by him, shall be refunded to him. Consequently, miscellaneous petitions, if any, pending shall stand closed.