JUDGMENT - Smt. DESAI RANJANA, J.:---Appellant (original accused) was charged for the offences punishable under sections 302, 307, 323, 504, 506 and 510 of the Indian Penal Code in the Court of Additional Sessions Judge, Satara at Satara in Sessions Case No. 154 of 1994. 2. By the judgment and order dated 24th March, 1995, the learned Sessions Judge acquitted the accused of the offences punishable under sections 307, 504 and 506 of the Indian Penal Code. He, however, convicted the accused under section 302, Indian Penal Code and sentenced him to suffer R.I. for life and to pay a fine of Rs. 500/-. In default he was to suffer R.I. for 6 months. The appellant was convicted for the offence punishable under section 323 of the Indian Penal Code and was sentenced to suffer R.I. for three months and to pay a fine of Rs. 100/-. In default he was to suffer further R.I. for 15 days. The appellant was convicted for the offence punishable under section 510 of the Indian Penal Code and was sentenced to suffer R.I. till rising of the Court. The substantive sentences were ordered to run concurrently. 3. Being aggrieved by the said judgment and order of conviction and sentence the appellant has preferred the present appeal. For the sake of convenience the appellant is hereafter referred to as the accused. 4. At the trial the case of the prosecution was as under : The accused along with his deceased wife, his mother-in-law (P.W. 2) Hausabai and other members of the family was residing in Devghar Wadi at Khatav, District Satara. The accused used to return home under the influence of alcohol. He used to beat his wife and his mother-in-law Hausabai. The incident in question took place on 15th March, 1994. The accused came home drunk at about 6 p.m. He quarrelled with his wife, deceased Bhikabai and then went to sleep without taking dinner. At about 1.30 a.m. the accused woke up his wife deceased Bhikabai and asked for meals. The accused did not like the quality of the food prepared by his wife and on this count he started abusing her. His mother-in-law (P.W. 2) Hausabai tried to intervene but the accused beat both of them. Then he brought kerosene can from the house poured kerosene over the person of Bhikabai and her mother (P.W. 2) Hausabai. The accused did not like the quality of the food prepared by his wife and on this count he started abusing her. His mother-in-law (P.W. 2) Hausabai tried to intervene but the accused beat both of them. Then he brought kerosene can from the house poured kerosene over the person of Bhikabai and her mother (P.W. 2) Hausabai. The accused then set Bhikabai on fire with the help of a match stick. People collected there on hearing cries of Bhikabai. The accused put a quilt on Bhikabai in order to extinguish the fire. Hausabai then took the deceased to the Government Dispensary at Khatav, from where she was removed to Civil Hospital Satara for further treatment. Police Head Constable P.W. 7 Dnyandev Shelar recorded the first dying declaration of the deceased in the Civil Hospital at Satara at 4.25 a.m. Offence came to be registered at Satara Police Station. Thereafter P.W. 6 Shri Shivaji Nalavade, Special Judicial Magistrate, Satara was called and the dying declaration of deceased Bhikabai came to be recorded by him at 5.42 a.m. on 16-3-1994 (Exhibit 26). The papers were then sent to Pusegaon Police Station in whose jurisdiction the incident in question had taken place. An offence was registered by Pusegaon Police Station being Crime No. 14/94. The investigation was carried out by Police Sub-Inspector Shri Jagtap. The accused was arrested on 16th March, 1994 at 17.45 hours. Bhikabai succumbed to the injuries on 18-3-1994 in the Civil Hospital Satara. The offence was then converted into one of murder. Inquest panchanama was drawn. Spot panchanama was also drawn. After completion of the investigation, the accused came to be charged as aforesaid. 5. In support of its case the prosecution in all examined 13 witnesses. P.W. 1 Laxman Pathole is a panch to the spot panchanama (Exhibit 16). P.W. 2 Hausabai is the mother of deceased Bhikabai. P.W. 3 Gautam Jawale is the nephew of the accused, who has turned hostile. P.W. 4. Arun Suryavanshi is neighbour of the accused. He has also turned hostile. P.W. 6 Shivaji Nalavade is the Special Judicial Magistrate, who had recorded the dying declaration of the deceased. P.W. 7 Dnyandeo Shelar is the Police Head Constable who was on duty at Civil Hospital Satara on 16-3-1994, during night time. He has deposed about the dying declaration of the deceased recorded at the Civil Hospital, Satara by Special Judicial Magistrate. P.W. 6 Shivaji Nalavade is the Special Judicial Magistrate, who had recorded the dying declaration of the deceased. P.W. 7 Dnyandeo Shelar is the Police Head Constable who was on duty at Civil Hospital Satara on 16-3-1994, during night time. He has deposed about the dying declaration of the deceased recorded at the Civil Hospital, Satara by Special Judicial Magistrate. P.W. 8 Dr. Sudhakar Lavand has deposed about the postmortem conducted on the deceased P.W. 9 Dr. Shankar Dubale had attended to the deceased at the Primary Health Centre at Khatav on 16-3-1994. P.W. 10 Sau. Malan Patole is the neighbour of the accused. She has turned hostile. P.W. 11 P.H.C. Hanmant Kulkarni was attached to Pusegaon Police Station on 16-3-1994. He had registered the offence being Crime No. 14 of 1994. P.W. 12 Police Sub-Inspector Vishnu Baburao Jagtap was at the relevant time attached to Pusegaon Police Station. He has given the details of the investigation carried out by him and P.W. 13 Dr. (Mrs.) Vaishali Sapre had examined P.W. 2 Hausabai on 17-3-1994. She has deposed about the injuries on the person of Hausabai. 6. The defence of the accused was one of denial. The accused contended that he had returned to his house in drunken condition. He went to sleep without taking meals in front of the house of his neighbour Shri Rama Jathar. At 1.00 O'clock in the midnight his daughter Manisha woke up for milk. Deceased wanted to prepare milk for her daughter. While she was preparing milk a burning lamp fell on her. On account of the same the deceased caught fire accidentally. On hearing her cries the accused woke up and tried to put off the fire by putting quilt on her person. The accused stated that he was not guilty. 7. After perusing the evidence on record the learned Sessions Judge convicted the accused as aforesaid and hence the appeal. 8. We have heard at some length Shri Yelkar, learned Advocate (appointed) for the appellant and Shri I.S. Thakur, learned Additional Public Prosecutor for the State. We have been taken through the evidence recorded by the learned Sessions Judge and also the relevant documents. 9. The medical evidence adduced by the prosecution in the form of the evidence of P.W. 8 Dr. Sudhakar Lavand and P.W. 9 Dr. Shankar Dubale establishes beyond doubt that the deceased succumbed to burn injuries. Dr. We have been taken through the evidence recorded by the learned Sessions Judge and also the relevant documents. 9. The medical evidence adduced by the prosecution in the form of the evidence of P.W. 8 Dr. Sudhakar Lavand and P.W. 9 Dr. Shankar Dubale establishes beyond doubt that the deceased succumbed to burn injuries. Dr. Shankar Dubale (P.W. 9) was working as Medical Officer in Primary Health Centre at Khatav. On 16-3-1994, at 2.45 a.m. the deceased was brought to his dispensary with burn injuries. He found that she had sustained more than 50% burn injuries. He gave her first Aid and referred her to the Civil Hospital at Satara. 10. Dr. Sudhakar Lavand (P.W. 8) Medical Officer in Civil Hospital at Satara, treated the deceased in the hospital. He found that the deceased had burn injuries. She gave history to Dr. Lavand that her husband had poured kerosene on her person and set her on fire. On examination he found that she had sustained 56% burns superficial to deep. He conducted postmortem on the deceased and produced postmortem notes at Exhibit 12. Dr. Lavand (P.W. 8) has given cause of death as death due to septicaemia shock due to burns 56%. 11. The star witness of the prosecution is Hausabai (P.W. 2), the mother of the deceased. At this stage it may be mentioned that the two neighbours and the nephew of the accused examined by the prosecution have turned hostile and, therefore, their testimony is not useful for the prosecution. P.W. 2 Hausabai has stated that accused used to return home under the influence of alcohol and he used to beat his wife. On 15-3-1994, the accused returned home after consuming liquor. In the midnight he woke up the deceased and asked her to give him dinner. At that time Hausabai, was sitting outside the room. The accused started beating the deceased. The accused then poured kerosene on the person of the deceased. He also poured kerosene on Hausabai. Accused set the deceased on fire by a match stick. He then tried to extinguish the fire by putting a quilt on the person of the deceased. The accused also beat Hausabai. Hausabai took the deceased to the Government dispensary at Khatav. She had also sustain some injuries. The deceased was removed to Civil Hospital Satara for treatment where she succumbed to the injuries. 12. He then tried to extinguish the fire by putting a quilt on the person of the deceased. The accused also beat Hausabai. Hausabai took the deceased to the Government dispensary at Khatav. She had also sustain some injuries. The deceased was removed to Civil Hospital Satara for treatment where she succumbed to the injuries. 12. P.W. 7 Dnyandev Shelar P.H.C. who was on duty at Civil Hospital Satara on 16-3-1994 stated that on 16-3-1994 at about 4.15 a.m. the Medical Officer on duty informed him about the admission of the deceased in burnt condition. He informed the police station to make arrangement for the Magistrate to record the statement of injured. The Medical Officer certified that the deceased was in a condition to make a statement. He therefore, recorded her dying declaration Ex. 28. The deceased stated that her husband poured kerosene over her and set her on fire. 13. P.W. 8 Dr. Sudhakar Lavand, Medical Officer attached to Civil Hospital has stated that on 16-3-1994 at about 4.30 a.m. deceased Bhikabai was admitted in the hospital. She had burn injuries and she gave history that her husband had poured kerosene on her person and set her on fire. Dr. Lavand has also stated that he informed the police about admission of the deceased in the hospital. Accordingly the police came there. The police recorded her statement. While her statement was being recorded Dr. Lavand was present. He put an endorsement on the statement that the deceased was conscious and oriented. He produced the said statement (Exhibit 28) and identified his signature thereon. 14. Dr. Sudhakar Lavand has also deposed about the dying declaration of the deceased recorded by Special Judicial Magistrate (Ex. 26). He has stated that at the time when the dying declaration was recorded by the Special Judicial Magistrate, he examined the deceased and found her to be conscious and in a position to give statement. She was well oriented. He made an endorsement to that effect. He proved the said endorsement and his signature thereon in the Court. As per the said dying declaration it was the accused who poured kerosene on the deceased and set her on fire. Dr. Lavand has stated that Dr. Dubale (P.W. 9) of Khatav had referred this case to him. He made an endorsement to that effect. He proved the said endorsement and his signature thereon in the Court. As per the said dying declaration it was the accused who poured kerosene on the deceased and set her on fire. Dr. Lavand has stated that Dr. Dubale (P.W. 9) of Khatav had referred this case to him. The history given by the deceased was recorded on the case papers and it was in the handwriting of the doctor. He stated that the said history was dictated by him and was written as per his dictation. He has denied the suggestion that when her statement were recorded the deceased was not conscious. He has also denied the suggestion that the deceased did not give the history of burns. 15. The Special Judicial Magistrate (P.W. 6) has deposed about the dying declaration of the deceased recorded by him. Ordinarily the dying declaration recorded by the Special Executive Magistrate in a proper format after ascertaining that the deponent is in a physical condition to make the statement deserves to be accepted. A conviction can rest on such a dying declaration, if it inspires confidence. In the instant case also, we would have relied upon the said dying declaration. However, according to Hausabai, statement of the deceased recorded by the police as well as that recorded by the Special Judicial Magistrate was as per her dictates. It is elementary that the dying declaration should be recorded as far as practicable in the words of the maker. In the face of categorical statement made by the Hausabai that it is she who gave the statement, we find it difficult to rely on these two dying declarations. 16. The learned Additional Public Prosecutor has strenuously contended that Hausabai is an old lady of 75 years. Inadvertently she has made the said statement in the cross-examination and the same deserves to be ignored. He contended that this Court should rely on the evidence of the Special Judicial Magistrate and that of (P.W. 7) Police Head Constable Shelar and the police Sub-Inspector. We are not inclined to accept this submission of the learned Counsel. Once doubt is created about the recording of dying declaration, it would be hazardous to place reliance on it. We, therefore, leave these declarations out of our consideration. 17. We are not inclined to accept this submission of the learned Counsel. Once doubt is created about the recording of dying declaration, it would be hazardous to place reliance on it. We, therefore, leave these declarations out of our consideration. 17. In our opinion, even if these statements are left out of our consideration and obliterated the prosecution can prove its case on the residual evidence namely the ocular testimony of P.W. 2 Hausabai; the history given by the deceased to Dr. Lavand upon her admission in the hospital and the finding of kerosene on the clothes of P.W. 2 Hausabai. 18. We have already referred to the history given by the deceased to Dr. Lavand. He has also stated that the deceased was conscious when she gave the history. We find the doctor's evidence cogent. In the cross-examination nothing has been elicitated by the defence to make us discard the testimony of the doctor. The doctor is an independent witness and there is no reason for him to concoct the story. We, therefore, accept the history given by the deceased that it was the accused who brought the kerosene and poured it on the deceased and set her on fire. This circumstance is further corroborated by the ocular testimony of Hausabai (P.W. 2). Hausabai has clearly stated that the accused poured kerosene on the person of the deceased and set her on fire. She has stood the test of cross-examination very well. In our opinion her evidence inspires confidence. 19. It is contended by Shri Yelkar, the learned Counsel appearing for the appellant that she is an interested witness and her testimony should be discarded, she being the mother of the deceased. We are not impressed by this submission. Merely because the witness is interested his evidence need not be discarded, if it is otherwise found to be truthful. It is argued by the learned Counsel for the appellant and it is also suggested to the witness that the relations between Hausabai and the accused were strained and, therefore, she must have deposed against him. We are also not impressed by this submission. The tenor of her evidence persuades us to hold that she is a very truthful witness. Besides the conduct of the accused militates against his innocence. We are also not impressed by this submission. The tenor of her evidence persuades us to hold that she is a very truthful witness. Besides the conduct of the accused militates against his innocence. Though he tried to put a quilt on the deceased to extinguish fire when people gathered there, he did not accompany Hausabai to the hospital, when Hausabai took the deceased for treatment. If he was really innocent he would have rushed to the hospital to get his wife admitted. This conduct in our opinion, goes against the accused. It is also significant to note that the accused has not received any injuries on his hands or person, therefore, the accused has made no effort to save his wife. He put the quilt on the deceased just to save himself from the adverse reaction of the people gathered there. 20. The Chemical Analyser's report shows that kerosene was found on the clothes of Hausabai (P.W. 2). Therefore, Hausabai's story that the accused poured kerosene on her is also proved. This also lends support to the prosecution case that Hausabai was present and she has witnessed the incident. She was examined by Dr. Vaishali (P.W. 13) in Civil Hospital Satara on 17-3 1994 at about 11.15 a.m. The injuries found on the person of Hausabai are as under :— 1. Abrasion over right frontal area. Size 2 cm x 1 cm. 2. Abrasion on left side of upper lip. Size 1 cm 1/2 cm. Tenderness present; 3. Contusion over left hip. Size 2 cm x 1 cm Tenderness present. This supports Hausabai's evidence that she was beaten up by the accused. 21. All these circumstances leave no manner of doubt that it was accused alone who was responsible for the burn injuries on the deceased which resulted in her death. He poured kerosene on her and set her on fire. The prosecution has proved its case beyond reasonable doubt. We find no reason to interfere with the impugned judgment and order of conviction and sentence. 22. In the result the appeal is dismissed. The order of conviction and sentence passed by the Additional Sessions Judge, Satara on 24th March, 1995, in Sessions Case No. 154/94 against the accused Pandurang Ananda Jawale is hereby confirmed. Appeal dismissed. -----