IMPORTANT POINT
If there are more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not.

JUDGMENT

Dr. Arijit Pasayat, J.—

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of the Madhya who ultimately kept her as mistress. At the relevant point of time, she was residing in Tapariya (hut) at village Bichhua.

On 17th March, 1992 at about 8.00 p.m. hearing screams of Saraswati Bai, persons residing in the neighbourhood viz. Rajesh Gupta (PW6), Santosh Gudda (PW2), Mukundi Lal (PW4), Kaliram (PW5), Chhindami Lal (PW3), and Chandra Bhushan rushed towards her hut. In the transit, some of them had seen A1 running away. They found Saraswati Bai lying in a severely burnt condition in the courtyard of the hut. On being enquired, she revealed that both the appellants had sprinkled kerosene over her body and set her ablaze. According to her, A2 was enraged by her act of taking land belonging to his adversary Raju Seth for cultivation as Bataidar (crop-sharer). It was upon the report (Ex. P-1) lodged by Kotwar Prahlad Singh (PW1) and ASI Balram (PW8) registered a case under Section 307 read with Section 34 IPC against the appellants. He along with Prahlad proceeded to the spot and recorded Saraswati’s dying declaration (Ex.P-3) in the presence of Chhidami Lal (PW3), Kaliram (PW5), Babulal and Chandra Bhushan. Saraswati Bai was immediately taken to the Government Hospital at Gadarwara. Observing that her condition was serious, Dr. B.P. Gupta (PW11) not only admitted her for treatment but also sent a memo (Ex.P-13) to the SHO requiring him to take necessary action to get dying declaration recorded. Naib Tahsildar and Executive Magistrate R.K. Dimole (PW9), after obtaining necessary certificate as to fit state of her mind, recorded Saraswati Bai’s dying declaration between 4.35 a.m. and 4.50 a.m. thereafter, at 9.10 a.m., Saraswati Bai breathed her last in the hospital. Accordingly, the case was altered to one under Section 302 IPC. After inquest proceedings, dead body of Saraswati Bai was sent for post-mortem, Dr. D.S. Choudhary (PW7) found that body of Saraswati Bai, who was carrying more than 3 months pregnancy, had burnt to the extent of 89%. According to him, the cause of Saraswati Bai’s death was shock due to extensive burns. However, he preserved the remaining pieces of burnt saree and blouse, earrings, nathni, Bangles and bunch of scalp hair for forensic examination. During investigation, burnt pieces of saree and blouse, one kupiya (Container) of kerosene, a matchbox, one pair of shoes belonging to A2, a lathi and a broken mala (necklace) were seized from the spot; the appellants were apprehended and a burn injury was also found by Dr. R.K Patel (PW10) on the right forearm of A2.

4. Two accused persons faced trial for offence punishable under Section 302 IPC and in alternative under Section 302 read with Section 34 IPC, as they abjured the guilt. To prove the accusations prosecution examined 11 witnesses. On consideration of the evidence, the trial court found the accused persons guilty of death of the deceased in furtherance of their common intention. Accordingly, they were convicted and sentenced as aforestated. Both of them preferred separate appeals before the High Court.

5. Before the High Court primary stand was to the acceptability of the dying declaration. The High Court rejected the plea and held that though there were more than one dying declaration, the extent of variance between the two was insignificant. It was noted that the dying declarations were consistent in substance as to the complexity of the accused persons causing burn injury to the person of the deceased and, therefore, there was no infirmity in the judgment of the trial court to warrant interference. Accordingly the appeals were dismissed.

6. In support of the appeal learned counsel for the appellant submitted that there was great variance in the so called dying declarations, which affected credibility of the evidence.

7. Learned counsel for the respondent-State on the other hand submitte