JUDGMENT
A.P. Shah, J.
1. The appellant who has been convicted by the learned IVth Additional Sessions Judge, Solapur in Sessions Case No. 106 of 1994 for the offence punishable under Section 302 of IPC and sentenced to life imprisonment for causing the death of his wife Anita by burning her, has preferred this appeal before us.
2. Facts set up by the prosecution, in brief, are these. Anita and her husband Kalyan (accused) and their little child were living together with the appellant’s parents at village Nagobachi Wadi. The first informant Bhagwat (PW 2) is the father of Anita and is residing at Umerga. It is alleged by the prosecution that the accused was ill-treating Anita. He used to beat her under the influence of liquor. On 10th March, 1994 Anita suffered burn injuries at about 2.30 p.m. She was immediately removed to Jugdale Mama Hospital at Barshi. There she was treated by Dr. Nimkar (PW 6) who found that she had suffered extensive burns over her chest, hands and right side back. Anita was shifted to General Hospital, Solapur on 1lth March, 1994. She was hovering between life and death from 10th to 13th of March, 1994 and finally succumbed to her injuries at 6.45 p.m. on 13th March, 1994.
3. According to the prosecution, Anita gave three dying declarations during this period viz., Ex. 23, Ex. 18-B and Ex. 40. The first dying declaration is Ex. 23. This is recorded by Special Executive Magistrate Basappa Mallappa Kingi (PW 7) immediately after the incident. He has stated that on 10th March, 1994 at 7.30 p.m. he received the requisition from the police. He immediately rushed to the hospital. He ascertained from the doctor whether Anita was conscious. The doctor examined her and found her to be conscious. Thereafter he recorded the dying declaration in question and anwer form. The questions and answers were read over to Anita and then her thumb impression was obtained. This was completed by 8.35 p.m. The Special Executive Magistrate put his signature with date and time. Dr. Nimkar has endorsed the dying declaration with his signature. The version recorded in Ex. 23 is the following:
4. On the date of the incident at about 3 O’clock her husband went for milking the cattle and in the house she lit the stove for preparing tea when it suddenly blazed and the saree and petticoat on her person caught fire and in the process she received burns from thigh portion to neck and on the back on right side and both the hands. As she raised cries loudly, her husband, who was milking, came running and dropped a gunny bag on her and put out the fire. Thereafter her mother-in-law and husband rushed her to Jugdale Mama Hospital by a bullock-cart for treatment.
5. It appears that Bhagwat, father of Anita, learnt about the incident on the same day and he came to Barshi in the night at about 1.30 a.m. On the next day morning at about 11.30 he filed FIR (Ex. 11) complaining that the accused was ill- treating Anita and on the date of the incident, he poured kerosene on her body and set her on fire. Bhagwat alleged in the FIR that Anita gave the earlier dying declaration due to threats given by her husband. It seems that the Special Executive Magistrate was again summoned as Anita expressed her desire to give her dying declaration. In the second dying declaration i.e. Ex. 18-B the accused was implicated by Anita. Anita stated that her husband sprinkled kerosene over her body and set her on fire.
6. Since the prosecution has rested its case mainly on the aforesaid dying declaration Ex. 18-B, it will be useful to reproduce the same in its entirety and the same reads as follows:
“Q. What is your name, age and place of residence ?
Ans. My name is Anita Kalyan Barangule, aged 20 and I reside at Nagobachi Wadi, Tal. Barshi.
Q. Yesterday night, you had given statement. Then what is the reason for you to give statement today ?
Ans. My husband had threatened me: Give a statement as I say and if you do not give a statement accordingly I shall kill you by strangling you. Hence I had given a statement yesterday, due to his threat.
Q. Are you fully conscious ?
Ans. Yes, I am conscious.
Q. How did you receive burns ? What is the reason ?
Ans. Yesterday afternoon at around 2.30 p.m. when I had gone to Barshi (he said): You do not behave properly. You are mean-minded. And saying this he gave me a jerk and beat me; I was asked to remove kerosene from the stove. I removed it in a “Pawari” (a metal or wooden bucket for drawing water). He snatched the Pawari containing kerosene from my hands and poured (the kerosene) on the clothes of my person. And then lighted a match stick with the intention of setting me afire. I extinguished the match stick and broke the match-box. Thereafter he handed over money to a boy name Bapu Suresh Chaube and asked him to get betelnut and a match-box. The boy brought betelnut and match-box and handed it over to my husband and my husband lighted a match stick and threw it over, my person. Therefore, I have sustained burn injuries from my thigh portion upto the neck, on both the hands and on the right back side.
Q. Who extinguished the fire on your person and by what ?
Ans My husband extinguished the fire on my person by covering me with a gunny bag.
Q. Who was present when the said incident occurred ?
Ans. I myself and my husband, we both were present.
Q. At what time you were set afire ?
Ans. Yesterday afternoon at 3 O’clock.
Q. Who took you to the hospital, at what time and how ?
Ans. My mother-in-law, husband and ‘Gaadiwan” (cartman)AmbarishiBarangude carried me in a bullock-cart and have admitted me in Jugdale Mama Hospital at 5.30 in the afternoon and my husband has left.
Q. Have any of your relatives come to the hospital at present ?
Ans. My parents and two brothers have come.
Q. Have you given statement at the instance of your parents and brothers ?
Ans. I have not given statement at their instance.
Further statement : Further dying declaration of Anita Kalyan Barangule, aged 20 years, r/o Nagobachi Wadi, dated 11.3.94.
Q. Have you any complaint about the said incident ?
Ans. I have a complaint against my husband Kalyan Babasaheb Barangude in the said matter.
Q. Are you educated ?
Ans. I have studied upto 7th (Seventh) Standard.
My said statement recorded is read over to me and the same is recorded as stated by me. As I have sustained burn injuries on my fingers, I am unable to sign and hence, I have impressed by left hand thumb.”
7. We have noted that Anita was shifted to General Hospital, Solapur on 1lth March, 1994. There the third dying declaration was recorded by Police Head Constable Salunke vide Ex. 40. The material portion of Ex. 40 reads as follows :
“Yesterday at around 3.00 p.m. my husband Kalyan Babasaheb Barangule came (home) drunk and hit me with his hands. He poured the kerosene from the ….in the ‘pohra’ (metal or wooden bucket for drawing water) and then poured the kerosene from the ‘pohra’ on me, and after striking the match he put my saree on fire, because of which the saree I was wearing got ablazed and I received burn injuries, and I screamed and cried. At that time, Bapu Chobe, the son of the brother of my mother-in-law, went running to the farm and brought my mother-in-law Laxmibai. I myself put out the fire on me by rolling on the ground. Thereafter my mother-in-law and brother-in-law admitted me in Jagdale Mama Hospital, Barshi, for treatment.”
8. As indicated earlier, Anita died in the General Hospital on 13th March, 1994 at about 6.45 p.m. The post-mortem of the dead body was carried by the doctor in the General Hospital. According to the doctor, she died due to shock and toxemia due to burn injuries. The investigation of the case was carried by PSI Latake (PW 11) who arrested the accused on 11th March, 1994 pursuant to the FIR filed by Anita’s father Bhagwat. On the same day he visited the spot of the incident and drew spot panchnama where kitchen stove, mug, match-box, whip and some pieces of burnt clothes were found in the courtyard and they were seized. He interrogated the witnesses including the neighbours of Anita. After completion of the investigation, he submitted the charge-sheet.
9. The case was committed to the Court of Sessions in the usual manner and charge was framed against the accused under Section 302 of IPC. The accused pleaded not guilty and claimed to be tried. A specific defence was raised that Anita’s death was accidental.
10. Upon perusal of the evidence led by the prosecution, the learned Judge convicted the accused under Section 302 of IPC and sentenced him in the manner indicated above.
11. Mr. Mane, learned Counsel for appellant-accused strenuously submitted that the prosecution has not proved beyond reasonable doubt that the accused sprinkled kerosene and set fire to the deceased and that the case rests entirely on the dying declarations which are highly inconsistent with each other and in such a situation it is highly unsafe to place reliance on any of these dying declarations and convict the accused. Learned Counsel also submitted that in one of the dying declarations it is mentioned that the death was accidental and her clothes caught fire while working in the kitchen and that the plea of the defence that it was a case of accident, is probabilised.
12. It is well settled that the conviction can be based on the dying declaration itself provided it is satisfactory and reliable and if there are any infirmities of such nature warranting further assurance, then the Courts look for further corroboration. It is also well settled that 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. If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declarations and if some inconsistencies are noticed between one and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances (see: Kamla v. State of Punjab, . Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable they have to be accepted (see : Paniben v. State of Gujarat, ).
13. In the light of the above principles, we will consider the dying declarations in the instant case and will ascertain the truth with reference to all dying declarations made by deceased Anita. There is no dispute that when the deceased made these dying declarations, she was in a fit mental condition. Ex. 23 is the earliest statement made before the Special Executive Magistrate Kingi (PW 7) and which was reduced into writing. Apart from this, the deceased made two more statements on 11th March, 1994. The second one is said to have been made before the Special Executive Magistrate Kingi. This statement is marked as Ex. 18-B. The third statement Ex. 40 made by her on the same day was recorded by Police Head Constable Salunke. The Trial Court has relied on the dying declaration Ex. 18-B ignoring the inconsistencies when compared to the other dying declarations. If we examine all these dying declarations one by one, we notice glaring inconsistencies as to how exactly the accused poured kerosene and set fire or whether she caught fire accidentally. Suicide, however, is ruled out. In Ex. 23 Anita has stated that her clothes caught fire while she was preparing tea. Her husband heard the shrieks raised by her and came running. He extinguished the fire with a gunny bag. Thereafter her mother-in-law and husband removed her to the hospital in a bullock- cart for treatment. On the next day she gave her statement vide Ex. 18-B giving totally different and inconsistent version. She stated that he husband picked up quarrel and beat her. He asked her to remove kerosene from the stove. She removed it in a ‘pawari’ (bucket). Then he snatched the “pawari’ from her hands and poured the kerosene on her. He then lighted the match stick with the intention of setting her on fire but she extinguished the matchstick and broke the match-box. Thereafter he handed over money to a boy by name Bapu and asked him to get betelnut and a match-box. The boy brought betelnut and a match-box and ‘handed it over to her husband and then he lighted the match stick and threw it on her person. In the process, she received burn injuries. Thereafter, he extinguished the fire with a gunny bag and removed her to the hospital. It has come in the evidence that her father had come to Barshi late night on the date of the incident. The dying declaration Ex. 18-B was given on the next day morning. Under these circum- stances, the possibility of tutoring cannot be ruled out. Further the version given by her in Ex. 18-B does not at all appear to be probable. It is highly improbable that she would remain at the spot even though kerosene was poured on her person and Bapu was sent to bring a match-box. There is nothing on record to show that she raised hue and cry for help or she tried to rescue herself. So far as the third dying declaration namely, Ex. 40 is concerned, it is seen that she has made some material improvements. Exhibit 40 is totally silent about the husband asking Bapu to fetch a match-box. Further, in Ex. 40 she has claimed that she herself extinguished the fire by rolling on the floor whereas in the earlier statements she categorically stated that her husband extinguished the fire with a gunny bag. In Ex. 40 she has stated that her mother-in-law and brother-in law admitted her in the hospital. But in her earlier statements she has stated that it was her husband and mother-in-law who took her to the hospital. Thus it can be seen that there are glaring inconsistencies in these dying declarations. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration, they should be consistent particularly in material particulars. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation one just cannot pick out one statement, namely, Ex. 18-B and base the conviction of the appellant on the sole basis of such dying declaration. The Courts have cautioned that in view of the fact that the maker of the statement cannot be cross-examined, the dying declaration should be carefully scrutinised. In the instant case the deceased was wavering for the reasons best known to her. The inconsistencies between Ex. 23 and Ex. 18-B is enough to manifest the same. Having given our earnest consideration, we feel that under these circumstances, it is highly unsafe to convict the appellant on the sole basis of the dying declaration Ex. “18-B recorded by the Special Executive Magistrate.
14. In the result, appeal succeeds. The impugned order passed by the learned Addl. Sessions Judge, Solapur in Sessions Case No. 106 of 1994, convicting and sentencing the appellant-accused under Section 302 of IPC is set aside. The appellant is acquitted. The appellant be released from custody forthwith if not required in any other case.