JUDGMENT
R.A. Jahagirdar, J.
1. The appellant in this appeal has been convicted for an offence punishable under section 302 of the Indian Penal Code for having committed the murder of one Madabai alias Kaushalyabai wife of Karbhari Karate on the afternoon of 22nd May, 1977 by pouring kerosene over her body and setting fire to her. The entire prosecution case depended upon the dying declarations, which were not less than five in number, and the learned Additional Sessions Judge of Nasik who heard this case was sufficiently impressed by these dying declarations to convict the accused for the offence punishable under section 302 of the Indian Penal Code. In the appeal before us, which is supported by the learned Advocate Mr. U.G. Kerkar, we have gone through the entire evidence on record with his assistance and we are constrained to say that none of those five dying declarations is persuasive enough to bring home the guilt to the accused. With these remarks by way of preface, we must now set out the prosecution case as pleaded in the Court below.
2. Deceased Mandabai is the wife of one Karbhari Karate who is working as a labourer in some transport Company at Nasik. The husband and wife lived in room No. 2 in a chawl bearing the name Nana Patil Chawl situated at Panchavati, Nasik. The appellant, who will be hereinafter be referred to as “the accused”, is also the occupant of another room in the same chawl. It is the prosecution case, and it has also come in evidence, that the family of the deceased Mandabai was financially in a strained condition partly at least because her husband being given to the vice of drinking was unable to provide her with the wherewithal to run the house. Realising her acute economic situation, the accused is alleged to have suggested to Mandabai that she should indulge in prostitution in which profession the accused is said to have a helping hand. This suggestion was resented by Mandabai who also complained to her husband against the accused. Her husband Karbhari is alleged to have reprimanded the accused for having made such a preposterous suggestion to his wife. Indeed there is evidence to show that on 22nd of May, 1977, one day before the date of the incident leading to this prosecution, the accused had lodged a complaint against Karbhari for having assaulted her. That complaint is at Exhibit 24 in the record.
3. The incident in question took place on Monday, the 23rd of May, 1977, at about 3.30 p.m. or 4.00 p.m. By this time, according to the prosecution, Mandabai’s husband Karbhari had come for his mid-day meal after taking which he left the house around 3.00 p.m. Thereafter a quarrel ensued between Mandabai and the accused at about 3.30 p.m. during which the accused is said to have thrown nearly two litres of kerosene on the body of Mandabai and set fire to her clothes by throwing a burning match-stick upon her. Mandabai ran outside her room with her clothes burning whereupon a neighbour called Hirabai and some others rushed and tried to extinguish the fire by throwing wet quilts on her body. Thereafter one Sushilabai, who is the aunt of Mandabai, came on the scene along with one Shridhar, who is Sushilabai’s cousin. They lived in an adjacent chawl bearing the name of Sampat Sheth Chawl. They took Mandabai in a rickshaw, to the Civil Hospital at Nasik where she was admitted around 5 p.m. and was attended to immediately on admission by Dr. Deshpande. But before this happened, says the prosecution, to queries made by Sushilabai and Shridhar, independent of each other, Mandabai disclosed that the accused threw Kerosene on her body and set fire to her clothes. These are the two initial dying declarations which have been sought to be pressed into service by the prosecution.
4. After Dr. Deshpande attended to her on her being admitted into the hospital, Police Constable Sangale, who was on duty at the hospital, got information about a burn case having been admitted. He informed the Panchvati Police Station on telephone about the admission of Mandabai in the hospital with burns. He also added in this message what according to him was told by Mandabai whom he contacted in the Burns Ward. The case papers relating to Mandabai disclose that Dr. Deshpande had made an endorsement that the police should be informed. Presumably pursuant to this instruction Police Constable Sangale had sent the message to the Police Station at Panchavati. He also says in his deposition that the doctor told him to inform the Police Station. At this stage it may only incidentally be noted that he was not asked by Dr. Deshpande to contact the patient. Despite this he himself on his own is said to have contacted Mandabai who disclosed to him the name of the offender. Police Constable Bhagwat who was working as Head Constable in Panchavati Police Station on the day in question received instructions from Head Constable Gurhale who was presumably in charge of the Police Station to go to the Civil Hospital to make inquiry about the case of burning. He mentioned that he went to the Honorary Magistrate and then went to the Civil Hospital with the Magistrate. There a dying declaration was allegedly recorded by Special Executive Magistrate Laxman Khetade. This dying declaration is at Exhibit 8. So this is the fourth dying declaration which is said to have been made by Mandabai. At night Karbhari, the husband of Mandabai, having returned from his work and having come to know of the incident, went to the hospital around 8 p.m. It is said that Mandabai made a dying declaration in response to a query from her husband. Thus the prosecution has relied upon five dying declarations.
5. A panchanama of the scene of offence was made in the morning of 24th of May, 1977 and under that panchanama some articles, which included the clothes of the husband of Mandabai, were seized. Mandabai expired on 27th of May, 1977 whereupon the offence was registered as one under section 302 of the Indian Penal Code. An inquest panchanama was also made. On these facts the accused was put up for trail in Sessions Case No. 99 of 1977. Her defence was one of total denial. She, however, admitted that she was the neighbour of deceased Mandabai who had come to her on a previous day to pawn a Kalshi (bras pot) and to raise money on the same. She denied having suggested to Mandabai that she should take to prostitution in order to earn money if she were short of monies. In her examination under section 313 of the Code of Criminal Procedure the accused in fact admitted having seen Mandabai in flames when she came out of her room. She has, however, denied that she had anything to do with the burning of Mandabai.
6. The prosecution examined all the five persons to whom Mandabai is said to have made dying declarations. Besides, the prosecution has also examined the panch in support of the panchanama dated 24th of May, 1977 of the scene of offence which is at Exhibit 11. Other formal evidence such as the inquest report along with the deposition of the panch in support of that report was also placed on record. Dr. Deshpande who attended upon Mandabai on her being admitted to the Civil Hospital was examined as P.W. 8 whereas Dr. Kale who conducted the post mortem examination on the body of Mandabai on 28th of May, 1977, was examined as P.W. 9 The memorandum of his post mortem examination is at Exhibit 20. We will not refer to the same or to the deposition of Dr. Kale in the course of this judgment because it was never in dispute in the Court below and it is not in dispute before us that Mandabai died of burn injuries. Mr. Kerkar appearing for the accused has, however, invited us to only look at a part of his deposition wherein it has been mentioned that Mandabai’s fingers had also been burnt. This has some relevance when we examine the veracity of the dying declaration alleged to have been recorded by Executive Magistrate Khetade.
7. As already mentioned above, the learned trial Judge was sufficiently impressed by these dying declarations and convicted the accused of the offence punishable under section 302 of the Indian Penal Code and sentenced her to imprisonment for life. The said conviction and sentence have been challenged in this appeal.
8. Mr. Kerkar has, with considerable justification, criticised the approach of the learned trial Judge as one showing a line of least resistance to the prosecution evidence. He has assailed the judgment of the learned trail Judge by contending that it does not disclose proper analysis of the evidence produced by the prosecution. The learned trial Judge, says Mr. Kerkar, has not appreciated the improbabilities which were inherent in the prosecution evidence. With the object of substantiating his submissions, Mr. Kerkar has taken through the entire evidence on record. After hearing him and after hearing the learned Public Prosecutor M. S.B. Patil, we are compelled to accept the submissions of Mr. Kerkar and to hold that the conviction of the accused is not sustainable on the evidence which is on record.
9. Before we examine the witnesses such as Sushilabai, Shridhar and Karbhari, it would be appropriate to turn to the evidence of Dr. Deshpande examined as P.W. 8 who has attended upon Mandabai on her admission in the hospital. In his examination in-chief Dr. Deshpande has mentioned that Mandabai was admitted on 23rd of May, 1977 at 5.30 p.m. and at the time of her admission some persons had accompanied her. He has mentioned that the persons accompanying her gave him the history of burns. Accordingly he has made an endorsement on the case papers at Exhibit 8 that the case was one of “stove fire catching”. In this deposition before the Court he has in unmistakable terms mentioned that the burns were on account of stove fire catching. The subsequent entries on 24th of May, 1977 onwards have, however, been made by one Dr. Ashtaputra who treated Mandabai from that day onwards. Dr. Ashtaputra has not been examined. Though in the case papers an entry is made on 24th of May, 1977 that there was a history of burn by somebody and a direction that police should arrange dying declaration very urgently, it is not explained by the prosecution as to who gave this information to Dr. Ashtaputra who himself, as mentioned above, has not been examined. It is, therefore, not possible to appreciate the significance of these entries which are made on 24th of May, 1977. If anything, it may be noted at this stage that these entries suggest that no dying declaration had in fact been made till 24th of May, 1977. Again it should be noted that after this entry was made allegedly in the hands of Dr. Ashtaputra, there is an entry again in Marathi, under whose signature it is not possible to infer that on 23rd of May, 1977 itself a statement of the lady had been recorded. No light has been thrown by the prosecution on these entries which are made on 24th of May, 1977.
10. Returning to the evidence of Dr. Deshpande, we note that he has mentioned in paragraph 3 of his deposition that on 23rd of May, 1977 at about 8.00 p.m. Executive Magistrate Khetade made enquiry with him regarding the condition of the woman and that he gave his opinion that the patient was in a fit condition to make a statement. In the examination-in-chief he insists that he had examined the woman when he gave that opinion and after this opinion was given the Executive Magistrate recorded her dying declaration. From this it is not unreasonable to infer that the opinion of the doctor should be mentioned at the top of the document on which ultimately the dying declaration was to be recorded. If one looks at Exhibit 8 one sees that this endorsement has been made after the text of the dying declaration was allegedly recorded by the Execution Magistrate. If we now examine the answer given by Dr. Deshpande in the cross-examination it is crystal clear to us that he had not examined Mandabai before making the endorsement that she was in a condition to give the dying declaration. In paragraph 5 of his deposition the doctor has in unmistakable terms admitted that he did not meet the Magistrate on that day on which the dying declaration was recorded. Though hesitantly in the beginning he insists that it was not that Exhibit 8 was brought to him by the police later, under the stress of the cross-examination he had to admit that the paper on which the endorsement was made by him was given to him by the Constable in the Burns ward. He was then told that the endorsement was required for recording the dying declaration. He feigns ignorance as to whether the dying declaration was already scribed when he made the endorsement. This is rather surprising because he could not have, as a Resident Medical Officer, made an endorsement that the patient was in a position to give a dying declaration after the dying declaration has already been given. Interestingly again, the name of the patient who was, according to him, in a fit condition to make the dying declaration has also not been mentioned by him in his endorsement. One must presume, therefore, that he must not have been told which that patient is. This he could have come to know from the context of the dying declaration which was already there on the document at Exhibit 8. From this the inference is irresistible that the doctor made that endorsement not when the dying declaration was or was being recorded, but after it was recorded. We are unable to accept his assertion that he examined the patient before making that endorsement which, as we found was made after the dying declaration was recorded in circumstances which we will show presently are highly suspicious.
11. Another curious omission may be noted. Dr. Deshpande admits that when a dying declaration is recorded and whenever the doctor certifies the patient to be in a fit condition to make a statement an entry is made in the case paper of the fact that the dying declaration is recorded. In the case papers of Mandabai, no such entry has been made on 23rd of May, 1977. He attributes this omission to an oversight.
12. We now turn to Police Constable Bhagwat who has been examined as P.W. 12. This witness has taken the leading patient in getting this dying declaration recorded. He has mentioned that on receiving instructions from Head Constable Gurhale he went to the Civil Hospital to make enquiries bout the case of burning. He then went to the Honorary Magistrate and went to the Civil Hospital with him. We are not referring to the minor details mentioned by him in the deposition because on a broad analysis of his deposition both in the examination-in-chief and in the cross-examination, we find that his testimony is unacceptable. He has mentioned that after going to the hospital he saw Mandabai and asserts that she was in a condition to make a statement. How he is qualified to form his opinion is beyond one’s imagination. He says that he questioned her and ascertained whether she was able to speak. Thereafter he gave a memo to Dr. Deshpande and the doctor came and examined Mandabai. We have already seen on a proper analysis of Dr. Deshpande’s deposition that he had not examined Mandabai before he certified about her capacity to make the dying declaration at Exhibit 8. Police Constable Bhagwat then proceeds to mention that after the doctor had certified that Mandabai was in a fit condition to make a statement, he took the Honorary Magistrate to the Burns Ward and that he waited in the verandah. According to him, Khetade recorded the dying declaration and brought it to him and thereafter he went to the Police Station and lodged his own complaint, which is at Exhibit 26 and which has been treated by the Investigating Officers as the first information report. In the cross-examination he was shown Exhibit 8 and asked whether the handwriting on Exhibit 8 was his. He denied the suggestion. He was forced to admit that the endorsement and the signature of the doctor was taken soon after the dying declaration was completed. It is an elementary principle to be followed in recording dying declarations that the condition of the person making the dying declaration must be sob examined before the dying is to be made and must be certified. The process has been reversed in the instant case for reasons which have not been explained at all. It has been brought out in the cross-examination that in the complaint which he has filed at Ex. 26 it has not been mentioned that he had taken Shri Khetade with him while going to the Civil Hospital. He is unable to explain why this omission is to be found in his complaint. We have already noted the denial made by this witness about the handwriting on Exhibit 8 being his. At this stage it may only be noted that Sushilabai, who accompanied Mandabai to the hospital in the rickshaw and who was in the hospital when the dying declaration was recorded, has specifically mentioned that the police ascribed a report on one paper which was signed by the Magistrate and on which Kaushalyabai’s thumb impression was not taken. It has not been explained by the prosecution what this report was. Sushilabai, according to her deposition, was present when the policeman accompanied by the Magistrate came to the place where mandabai was lying; she was present when the police ascribed a report on a paper on which the Magistrate put his signature. It must, therefore, be the dying declaration which is to be found at Exhibit 8. Sushilabai must be telling the truth when she says that Mandabai’s thumb impression was not taken on that paper because, as Mr. Kerkar has rightly pointed out, there is sufficient evidence to show that mandabai’s fingers and thumb were bunt and that she could not have given he thumb impression.
13. We must now return again to the examination of Exhibit 8 which is the most important dying declaration on which the prosecution rests its case. Laxman Khetade examined as P.W. 1 has mentioned that on 23rd of May, 1977 in the evening he was requested by the police to go to the Civil Hospital for recording the dying declaration of one Kaushalybai (which name is, as already mentioned above, and alias for Mandabai). He mentions that it was an oral request. Accordingly he went to the hospital at 7.30 p.m. and straightway went to her and after taking with her ascertained that she was in a condition to make a statement. We are somewhat surprised that every witness is eager to go to Mandabai first for ascertaining that she was in a fit condition to make a statement without obtaining the permission of the doctor who was in charge of the Burns Ward. This is a practice which cannot be approved at all. It is only after he was satisfied that Mandabai was in a condition to make a statement that Khetade contacted Dr. Kale who was on duty. According to him, Dr. Kale told him that Khetade may record the dying declaration because Mandabai was in a fit condition to made such a statement. Khetade who is working as a Special Executive Magistrate Executive Magistrate since 1960 does not even know the name of the doctor whom he says he had contacted. We have already noticed while reviewing the testimony given by Dr. Deshpande that the Special Executive Magistrate who recorded the statement never met Dr. Deshpande on that day. It is, therefore, patent that Khetade is making a grievous mistake when he is asserting that he met some doctor who certified that Mandabai was in a condition to make the dying declaration. Indeed, a little later in his cross-examination Khetade was fair to admit that he did not know the name of the doctor and it was its thought that the name might be Kale. When we are rejecting his asserting that he contacted the doctor when he reached the hospital, it is not necessary to make further comment on the credibility of this witness regarding what the doctor told him and what endorsement the doctor made upon the paper. In his examination-in-chief he has mentioned that he recorded the statement in his own hand as told by Mandabai. He further asserts that after the statement was scribed it was read over to Mandabai who according to him, admitted it to be correct. Thereafter, according to this witness, her thumb impression was obtained below the writing. He has also signed the statement as having recorded by him. Khetade then proceeds to state that after the statement was completed, he took an endorsement on it of the doctor stating that the patient was in a fit condition to make the statement. He has made himself bold to say that the doctor had signed this endorsement in his presence. We have no hesitation in rejecting this assertion as being incorrect because there is convincing evidence, including the admission of Dr. Deshpande himself, that this endorsement was not made by him in the presence of the Magistrate. As we will show a little later, it is highly doubtful whether the thumb impression appearing on Exhibit 8 is in fact of Mandabai alias Kaushalyabai.
14. In the cross-examination Laxman Khetade has admitted that Kaushalybai was in a semi-dazed condition. If this is so how he talked to her and how he came to be satisfied that she was in a fit condition to make a statement has not been explained by him. Mechanically, however, he has denied the suggestion that Mandabai was not in a position to make any statement. If we notice his inability to remember the name of the doctor whom he says he had contacted, if we also notice the haste with which he went and contacted Mandabai before meeting the doctor and his patently incorrect statement that the doctor had signed the endorsement in his presence, it is not difficult for us to reject the entire testimony given by this witness. Considering, as we have done above, the testimonies of Dr. Deshpande, Khetade and Sushilabai (to whom we will return in moment) in juxtaposition, we are satisfied that the dying declaration alleged to have been recorded by Khetade is not a genuine dying declaration made by Mandabai at all and no reliance can be placed upon the same.
15. Sushila Shankar Zole (P.W. 2), who is the aunt (Mavashi) of Mandabai, mentions that on the day in question at about 3 p.m. Shridhar, her cousin, came to inform her that Mandabai was burnt and that she should go there immediately. She, therefore, left her room in Sampat Sheth’s Chawl to go to Nana Patil’s Chawl. By the time she reached there, Mandabai had already been placed in a rickshaw which was standing on the road. She then boarded the rickshaw and was joined by Shridhar. All three of them proceeded to the Civil Hospital. As she sat in the rickshaw she queried Mandabai as to what had happened, whereupon Mandabai told her that Tulsabai, the accused, had poured kerosene oil on her person and had set fire to her. She mentioned that thereafter they reached the Civil Hospital where Mandabai was admitted and half an hour thereafter Khetade came there along with the police to record the statement of Mandabai. Part of the cross-examination was directed at eliciting information relating to the impecunious circumstance of Mandabai and her family. Some minor contradictions have also been brought out in the cross-examination. It is unnecessary to examine them under microscope for the purpose of disbelieving this witness who is even otherwise found to be unreliable. It must be remembered that when Mandabai was being taken to the hospital she had burns to the extent of 80 per cent. One Hirabai had already attended to her before Mandabai was placed in the rickshaw. The prosecution has not examined the said Hirabai. It appears difficult to us that Mandabai made a statement implicating the accused when she was being taken in a rickshaw in a serous condition. We have already made a reference to what this witness had said about the recording of the dying declaration by the Magistrate in the hospital. Before we decide to reject her testimony it would be necessary to refer to the testimony of her cousin Shridhar examined as P.W. 5. It may only be noted at this stage that according to her it was Shridhar who came to inform her that Mandabai was burnt and that this witness should go to her immediately.
16. If we now turn to the testimony of Shridhar, we notice that he has mentioned that he was in his room is Sampat Sheth’s chawl at about 4 p.m. and that he heard some cry from outside. He ran out to find out Mandabai lying in burnt condition outside her room. Mandabai, according to this witness, told him that he should take her to the hospital. By that time one rickshaw came there on the road and he called Sushilabai from her room. Thereafter Mandabai was put in the rickshaw and he and Sushilabai travelled with her in the same rickshaw. He asked Mandabai as to how she was burnt whereupon again Mandabai made a statement implicating the accused in the offence. In the cross-examination, however, he has mentioned that himself and Sushilabai were in one room when he addressed as “Mavashi”, that Mandabai was burnt. He admits in the cross-examination that he did not hear what had happened earlier to it. After the receipt of this message from the mouth of Prabhakar, both himself and Prabhakar went together to the place where Mandabai was lying. In the cross-examination he has mentioned that he did not go to call Sushilabai as Sushilabai herself has mentioned and as he himself has mentioned in the examination-in-chief. There is thus some doubt as to the circumstance under which these two witnesses arrived on the scene. The improbability of both these witnesses asking the same question to Mandabai should also be underlined. Looking to the condition in which Mandabai was admitted in the hospital and looking to the opinion given by Dr. Deshpande of the condition of Mandabai when she was admitted in the hospital, it is difficult to accept the statement of these two witnesses that Mandabai was in position to speak when she was being transported in a rickshaw to the hospital. In any case, it is hazardous to put any reliance upon the memory of these two witnesses because they are unable even to mention precisely how they arrived on the scene.
17. Turning to the testimony of Police Constable Sangale, we notice again the unwarranted zeal exhibited by him in approaching the patient who was in a serious condition, to find out whether she was in a position to make a dying declaration. Sangale was on duty in the hospital on the day of the incident and he asserts that she gave him not only the name of the offender but also the circumstances which prompted the offender to commit this offence. We are not prepared to accept this bold statement made by this witness in his examination-in-chief that Mandabai told him that the accused who was residing near her house came to her at 5 p.m. to persuade her to follow the profession of prostitution in which the accused promised assistance. This Constable has proceeded to mention that Mandabai told him that immediately when she refused the suggestion made by the accused, the accused threw kerosene on her person and set fire to her by means of a match stick. This is an account which cannot be accepted, because it is not even the prosecution case that it was on the day of the incident that the accused had made the proposal for prostitution. Some garbled version of the previous history has been picked up by this Constable from somewhere and incorporated in the message which he sent on the phone to the Police Station. We have already commented upon the procedure followed by the various witnesses in this case of approaching the person lying injured to find out whether that person is in a position to make a dying declaration without obtaining the prior permission of the doctor. Immediately on admission, Mandabai had been given medicines and injections by Dr. Deshpande. These medicines as Dr. Deshpande himself has mentioned, were sedatives the administration of which would put the patient in a half sleeping condition for about one hour. If this is so, it defines our imagination as to how Mandabai responded eagerly to the queries made by Police Constable Sangale. The assertion of Police Constable Sangale that Mandabai made a dying declaration to him must, therefore, be rejected.
18. The last of the dying declarations is the one allegedly made by Mandabai to her husband Karbhari, examined as P.W. 7. It is unnecessary to refer to that pat of the deposition which deals with the strained relationship between himself and the accused. It is enough if we refer to the time when he arrived at the hospital and what transpired thereafter. He has mentioned that he returned home at about 8 p.m. on the day in question after his duty was over and he was told by Hirabai that his wife was burnt and that he should go to the hospital. At this stage he was not told by anyone that the accused was responsible for the burning of his wife. He, thereafter, went to the hospital and found his wife lying on the cot in severely burnt condition. According to his, she was conscious and started crying when she saw him. To a query which he then made to her, his wife told him that Tulsabai, the accused, had thrown kerosene on her. The learned trial Judge has noted that the witness had first only stated that Sutarinbai had thrown kerosene on her without anything more, but when the question was repeated Karbhari answered that his wife told him that Tulsabai had also thrown a burning match stick and had set her on fire. The hesitatant manner in which Karbhari has deposed to the dying declaration itself must put us on guard in accepting that there was an unequivocable dying declaration made by his wife to him. The suggestions made to him in the cross-examination that his wife was in dazed condition when he went to the hospital has been denied by him. It does not, however, require much imagination to note that a patient who is burnt to the extent of 80 per cent and who is under medication would necessarily be in a somewhat dazed condition. It must be noted that by the time when Karbhari had appeared in the hospital a stage has been set for a story that the accused had set fire to Mandabai not only by the so-called dying declaration made to Police Constable Sangale, but also by the dying declaration which was recorded by Executive Magistrate Khetade.
19. It is in the evidence of Karbhari himself that Sushilabai was standing near Mandabai when he reached the hospital. It is, therefore, not difficult to infer that his mind could have been prepared for the alleged dying declaration of Mandabai. Indeed, as the learned trial Judge has himself mentioned there was some hesitancy in the answers which he gave touching upon the dying declaration of Mandabai. Considering all these facts and circumstances, it is impossible to hold that Mandabai made a dying declaration to any of these witnesses implicating the accused for the burning. Added to this are three facts which also must be noted. One is the endorsement made immediately on Mandabai being admitted in the hospital that it was a case of stove burning. Dr. Deshpande has mentioned that this history was given to him by somebody who had accompanied Mandabai. We have already noticed, and there is sufficient evidence of the prosecution itself, that Mandabai was accompanied by Sushilabai and Shridhar. If a dying declaration had been made by Mandabai to Sushilabai or Shridhar implicating the accused in the offence, it would be inconceivable that the doctor would have mentioned the history of burning by stove fire. The history of burning by stove fire must have been necessarily given either by Sushilabai or Shridhar. It is only some time after Mandabai was admitted that the story of burning by the accused seems to have taken shape. This must have happened round about 6.00 p.m. or 6.15 p.m. when the enthusiastic Police Constable Sangale sent a telephonic message to the police station. The second fact which ought to be noted is the finding given by Dr. Kale that the arms including the fingers and thumbs of Mandabai had been burnt. Corroboration to this has also to be found in the evidence of the panch Vasant (P.W. 4) to the inquest. If the fingers and thumbs of Mandabai had been completely burnt, one does not know how Khetade could obtain her thumb impression on the dying declaration recorded by him. One also is struck by surprise by the assertion of Khetade that the palms of Mandabai wee not burnt. In fact, Sushilabai who was present at the time of the recording of the dying declaration has specifically mentioned that the thumb impression of Mandabai was to taken on that document. This leads us to the suspicion that the thumb impression which is now to be found on Exhibit 8 was not only not that of Mandabai but of somebody else taken sometime after the document at Exhibit 8 was ascribed.
20. The third circumstance which also ought to be noticed is the fact that several clothes of Karbhari which were in the house of Karbhari are found to be burnt. The prosecution has not explained as to how the clothes of Karbhari could be burnt if the accused threw kerosene on the body of Mandabai who immediately rushed out of the room. There has also been a failure on the part of the prosecution to make the panchanama of the scene of offence immediately on the same day on which the incident took place. Instead nearly sixteen hours were allowed to lapse before police found it necessary to make the panchanama of the scene of offence.
21. In the result this appeal must succeed and is accordingly allowed. The conviction and sentence recorded by the learned Additional Sessions Judge of Nasik in Sessions Case No. 99 of 1977 are hereby set aside. The accused shall be set at liberty forthwith.
22. Writ shall be sent by the office immediately.
