R.S. Chauhan, J.

Having allegedly committed the dowry death of his wife, Shahida, having been convicted and sentenced for offence under Sections 498A and 304B IPC, the appellant, Mohammad Rafiq, has approached this court. By judgment dated 1.4.2006 passed by the learned Special Judge, Woman Atrocities & Dowry Cases, Jaipur District, Jaipur for the offence under Section 498A IPC, the appellant was sentenced to three years of rigorous imprisonment, imposed with a fine of Rs.100/-, and further directed to undergo three months of rigorous imprisonment for default thereof. For offence under Section 304-B IPC, the appellant was sentenced to life imprisonment, imposed with a fine of Rs.500/-, and further directed to undergo three months of rigorous imprisonment in default thereof. The sentences were directed to run concurrently.

2. Briefly, the facts of the case are that Shahidullah (P.W.5) submitted a written report (Ex.P.5) at Police Station Galta Gate, Jaipur wherein he claimed that "I live in Saiyad colony along with my family. My sister, Shahida, was married to Mohammad Rafiq r/o. Idgah Kachhi Basti about five to seven years ago. They have a four years old child, Azim. Mohammad Rafiq is in the habit of drinking liquor and gambling. Daily he demands money from my sister, Shahida. Our sister has told us about his habits and demands. Since we are poor people, we could not fulfil his monitory demands. Rafiq used to assault my sister. Since she was tired of his cruelties, most of the time she would come and live with us. One week ago, Rafiq came to our house, and promised us that he will no longer beat up our sister. He took my sister with him. Yesterday, on 15.3.2004, in the evening we came to know, at our house, that Shahida is admitted in the Burns Ward at SMS Hospital. When we reached there, Shahid was not in a position to speak. Today, on 16.3.2004, when I, my brother Rashidullah, my mother, and other relatives were with her, she became conscious. When we asked her as to what had happened, she told us that on 14.3.2004, Rafiq had fought with her, and around 12 O'clock in the night he poured kerosene on her and put her on fire. Her condition is critical. Rafiq used to demand money from my sister, Shahida. When she would not give him money, he would beat her up. Now, with the intention of killing her, he has burned her. I am filing this report so that legal proceedings can be carried out."

3. On the basis of this written report, a formal FIR (Ex.P.6), FIR No.81/2004, was chalked out for offences under Sections 498A, 307 IPC. However, with the death of Shahida on 19.3.2004, an offence under Section 304B IPC was added and the investigation began. The appellant was put on trial and was charged for offences under Sections 498A and 304B IPC. In order to support its case, the prosecution examined twenty witnesses, and submitted twenty-eight documents. The defence examined three witnesses, and submitted three documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellant, as aforementioned. Hence, this appeal before this court.

4. Mr. Anshuman Saxena, the learned counsel for the appellant, has raised the following contentions before this court: firstly, there are two dying declarations in the present case. The first is a statement given by Shahida under Section 161 Cr.P.C. (Ex.P.20). The said statement was given to Rajpal Godara (P.W.19) SHO, P.S. Galta Gate, Jaipur; the dying declaration (Ex.P.22) was recorded by Sunil Kumar Yadav (P.W.18) the Additional Civil Judge (JD) & Judicial Magistrate No.21, Jaipur City. But there are inherent contradictions between the two dying declarations. Therefore, neither of these two dying declarations is reliable. Hence, the learned Judge has erred in relying upon these dying declarations for convicting the appellant.

5. Secondly, according to the dying declaration itself the appellant had tried to save his wife, and had rushed her to the h