A dying declaration is admissible in evidence only if it is proved that the declarant was in a fit condition to give the statement. Circumstantial evidence must be of such a character that it is wholly inconsistent with the innocence of the accused and is consistent with the guilt of the accused.

1. This appeal is directed against the judgment dated 18.3.94 passed by the learned Special Judge SC/ST (Prevention of Atrocity) and Additional Sessions Judge, Ajmer, by which, he convicted the accused appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs.1,000/-, in default of fine, to further undergo six months' simple imprisonment.

2. The appellant was tried by the learned Additional Sessions Judge for the offence under Section 302 IPC for committing murder of his wife Smt. Kamla.

3. In short, the facts of the case are that Smt. Kamla was married about 20 years back with the appellant before her death. On 4.9.91 at about 1.00 PM., Smt. Kamla was admitted in the J.L.N. Hospital, Ajmer in burnt condition having about 90% to 100% burns, Shri V.D. Kavia, Medical Jurist informed the Krischian Ganj Police Station. On receiving the information Shri Chiranji Lai, SHO rushed to the hospital where Parcha Bayan Ex. p9 of Smt. Kamla was recorded. She. stated that round about 11 or 11.30 in the morning after cooking food when she came out from the kitchen, ace Pd appellant poured petrol on her from a container and pushed her in the kitchen where she caught fire from the burning stove, she cried for help but no one tried to save her. After some time a woman who was residing in the neighbour extinguished the fire by putting quilt on her body, at that time only her husband was in the home. On the basis of the Parcha bayan a case (FIR No. 151/91) under section 307 IPC was registered at the police station, Krischian Ganj. As the condition of Smt. Kamla was critical, her dying declaration was recorded by PW4 Mohd. Arif Modani, Judicial Magistrate. Smt. Kamla expired in the night due to extensive burns. In the next morning Panchayatnama was prepared and post mortem was conducted. After registration of the case, the Investigating Officer inspected the site and prepared the site plan Ex. P2, He seized "Thali", "Stove" and plastic container. Accused was arrested. After completing the investigation a charge sheet was filed against the accused for the offence under section 302 IPC in the court of Judicial Magistrate, who committed the case for trial to the court of sessions Judge Ajmer. The case was transferred for trial to the Court of Additional Sessions Judge, Ajmer. After hearing both sides, charge under section 302 IPC was framed against the accused, who pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as 8 witnesses statement under section 313 Cr.PC. of the accused was recorded. No witness was examined by the accused in his defence.

5. The learned Additional Sessions Judge, on the basis of the dying declaration Ex.PIO (Parcha Bayan) and Ex.P6 statement recorded by the Judicial Magistrate, held that the accused had committed murder of his wife Kamla and convicted and sentenced as mentioned earlier.

6. We have heard the learned counsel for the appellant and the public prosecutor and perused the record of the trial Court.

7. The learned counsel has challenged the impugned judgment on the following grounds and submitted that it was an accidental fire.

8. The trial Court has considered only two dying declarations : Ex.P9 and Ex.P6, but failed to consider the first dying declaration which was oral as stated by PW1. There are major contradictions in both the dying declarations (Ex.P9 and Ex.R6). Certificate from the Doctor was not obtained before recording the dying declaration about her mental alertness. She was having about 90% burns all over her body when admitted in hospital. She was not fit go give her statement, no reliance can be placed upon both the dying declarations. The fire was accidental, accused was present in the house he tried to extinguish the fire, he himself received burn injuries, even though he remained present throughout in the hospital arranged for the medicines. Once the dying declarations are excluded, there is no other evidenc