JUDGMENT - D.S. ZOTING, J.:---This is an appeal preferred by the original accused persons against the conviction and sentence dated 22-11-1994, passed by the II Additional Sessions Judge, Jalgaon, in Sessions Case No. 65 of 1990, whereby the appellants have been convicted and sentenced for the offence punishable under sections 302 r/w 34 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs. one thousand each, in default to suffer R.I. for six months. They are also further convicted and sentenced for an offence punishable under sections 498-A r/w 34 of the Indian Penal Code to undergo R.I. for three years and to pay a fine of Rs. 500/-, in default to suffer R.I. for three months. Both the sentences are directed to run concurrently. 2. These three appellants have been prosecuted for offence punishable under sections 302 r/w 34 of Indian Penal Code, on the allegations that on 6-9-1989 at 18.00 hours at their residential house at Samatanagar, Bhusawal, District, Jalgaon, these accused persons in furtherance of their common intention committed murder of Anita w/o Sharad Narwade. They were further prosecuted for offence punishable under sections 498-A r/w 34 of the Indian Penal Code, on the allegations that, being relatives of the husband of deceased Anita, they all in furtherance of their common intention, ill-treated Anita physically and mentally for demanding wrist watch and gold nose ring since the time of her marriage till her death. 3. The prosecution case, in brief, may be stated as under. Deceased Anita was the wife of Sharad Rajaram Narwade (P.W. 4), resident of Bhusawal. Appellant No. 1 Chhayabai is the mother of appellant Nos. 2 and 3. Appellant No. 2 Pramod and appellant No. 3 Ajay are the brothers of Sharad (P.W. 4). Deceased Anita was living with her husband and appellants. The incident occurred on 6-9-1989. On that day, deceased Anita and appellants were at the house. Sharad (P.W. 4) was not present in the house as he had gone for work. The parents of deceased Anita came to know from her that the appellant No. 1 Chhayabai asked her to bring gold nose ring from her mother. Whenever Anita visited her mother's place, she told her mother about the said demand. However, mother could not fulfil the demand. On 6-9-1989, there was 'Bhadi festival'. The parents of deceased Anita came to know from her that the appellant No. 1 Chhayabai asked her to bring gold nose ring from her mother. Whenever Anita visited her mother's place, she told her mother about the said demand. However, mother could not fulfil the demand. On 6-9-1989, there was 'Bhadi festival'. On that day, mother of Anita named Sayabai (P.W. 1) came to the house of her daughter with a tiffin. It was alleged that appellant No. 1 insulted mother of Anita as she had not brought the gold nose ring on that auspicious day. The appellant No. 1 asked Anita as to why her mother brought tiffin box only and why she talked to her mother. Anita's mother left the house. Thereafter it is alleged that at about 6.00 p.m. the appellant No. 1 Chhayabai picked up can containing kerosene and poured kerosene on the person of Anita, appellant No. 2 Pramod caught hold of Anita and appellant No. 3 Ajay lighted match stick and set her on fire. Anita shouted for help. Her hue and cry attracted the neighbours to rush to the house of the appellants. In the mean time, Sharad (P.W. 4) the husband of Anita also came there. They all extinguished the fire. Anita sustained burns on her face, chest and all over body. Her husband and the neighbours took her to the Municipal Hospital, Bhusawal for medical treatment. 4. Dr. Kavita Sontakke (P.W. 9) Medical Officer was on duty in the hospital. She recorded the history of injuries from Anita and admitted her in the hospital. Anita had sustained 100 per cent burns. Dr. Sontakke informed the City Police Station, Bhusawal about the said burns. Thereafter Madhukar (P.W. 7) Assistant P.S.I. came to the Municipal Hospital and recorded statement of deceased Anita. The said statement has been treated as first information report and offence came to be registered on the basis of it at C.R. No. 106 of 1989 under sections 302 r/w 34 of the Indian Penal Code. In the mean while, according to the prosecution, Vinayak (P.W. 6) informed the mother of Anita regarding the incident. Mother Sayabai (P.W. 1), her daughter Sunita (P.W. 2) and son Dadarao (P.W. 3) came to the hospital. In the mean while, according to the prosecution, Vinayak (P.W. 6) informed the mother of Anita regarding the incident. Mother Sayabai (P.W. 1), her daughter Sunita (P.W. 2) and son Dadarao (P.W. 3) came to the hospital. It was alleged by the prosecution that Sunita (P.W. 2) and Dadarao (P.W. 3) enquired with Anita regarding the incident and she stated before them that she was set on fire by the appellants. P.S.I. Kautik Patil (P.W. 10) took up the investigation. The appellants were arrested. He visited the place of incident, drew panchanama of place of offence and attached tin of kerosene, wrist watch and match box from the scene of occurrence. After few hours from the time of her admission in hospital, Anita expired. Hence offence under section 307 of Indian Penal Code was converted into offence under section 302 of the Indian Penal Code. Dead body was referred to the Medical Officer for postmortem examination. Dr. Sontakke (P.W. 9) conducted autopsy on the dead body. Clothes of deceased were attached. Statements of witnesses have been recorded. Muddemal property was sent to the Chemical Analyser. After completion of investigation, all the appellants were charge-sheeted for the aforesaid offence in the Court of Judicial Magistrate, First Class, Bhusawal. 5. The offence under section 302 of Indian Penal Code is exclusively triable by the Court of Sessions and hence the learned Magistrate at Bhusawal committed the case to the Court of Sessions for trial according to law. 6. All the accused appeared before the Sessions Court. The learned II Additional Sessions Judge, Jalgaon framed charge under sections 302 r/w 34 of Indian Penal Code and under sections 498-A r/w 34 of Indian Penal Code. The charge was read over and explained to all the appellants. They pleaded not guilty and claimed to be tried. Their defence is one of total denial. According to them, Anita sustained burns while cooking food on stove, but the accused are falsely implicated in this case at the instance of Anita's relatives. They have not adduced any evidence in their defence. 7. They pleaded not guilty and claimed to be tried. Their defence is one of total denial. According to them, Anita sustained burns while cooking food on stove, but the accused are falsely implicated in this case at the instance of Anita's relatives. They have not adduced any evidence in their defence. 7. After hearing the arguments advanced by the learned A.P.P. and learned Defence Counsel and after considering the entire evidence on record and examination of accused under section 313 of Criminal Procedure Code, the learned Additional Sessions Judge found that the prosecution has proved its case beyond reasonable doubt and, therefore, he convicted and sentenced all the accused in the manner as aforesaid. 8. Being aggrieved by the judgment and order of conviction and sentence, passed by the learned II Additional Sessions Judge against the accused, they have preferred the present appeal challenging the correctness of the said judgment contending that there is no direct evidence and the conviction is based only on dying declaration, which cannot be relied upon as the same is suspicious and thus, according to the appellants, the learned Additional Sessions Judge was in error to have come to his finding holding them guilty of the aforesaid offences. As against this, the learned A.P.P. has fully supported the impugned judgment. 9. In support of its case, the prosecution examined as many as 11 witnesses, as under : DYING DECLARATION 1. Madhukar, Asstt. P.S.I. (P.W. 7) 2. Sayabai (P.W. 1) 3. Dadarao (P.W. 3) 4. Sharad (P.W. 4) 5. Vinayak (P.W. 6) MEDICAL EVIDENCE 6. Dr. Kavita Sontakke (P.W. 9) FORMAL WITNESSES 7. Sunita (P.W. 2) 8. Tulsabai (P.W. 5) POLICE OFFICERS 9. Sambhaji, Police Constable (P.W. 8) 10. Kautik Patil, P.S.I. (P.W. 10) 11. Ahirrao, P.S.I. (P.W. 11) 10. After going through the entire evidence on record and the judgment passed by the learned Additional Sessions Judge, we notice that there is no direct evidence as regards the actual occurrence of incident, but there are various dying declarations, oral as well as written. Madhukar, Assistant P.S.I. (P.W. 7) recorded the First Information Report/dying declaration vide Exh. 25, whereas the Medical Officer Dr. Kavita Sontakke (P.W. 9) recorded the history as stated by the deceased while admitting her in the hospital. Madhukar, Assistant P.S.I. (P.W. 7) recorded the First Information Report/dying declaration vide Exh. 25, whereas the Medical Officer Dr. Kavita Sontakke (P.W. 9) recorded the history as stated by the deceased while admitting her in the hospital. Besides this piece of evidence, there are oral dying declarations before four witnesses, namely, Sayabai (P.W. 1), Dadarao (P.W. 3), Sharad (P.W. 4) and Vinayak (P.W. 6). However, Sharad (P.W. 4) and Vinayak (P.W. 6) have kept mum as regards the dying declarations alleged to have been made before them. They were declared hostile by the prosecution and thereby the evidence in the form of oral dying declaration is available through the statements of Sayabai (P.W. 1) and Dadarao (P.W. 3), in addition to the dying declarations before Madhukar (P.W. 7) and Dr. Sontakke (P.W. 9). 11. It is pertinent to note that the fact that deceased Anita was living with her husband Sharad (P.W. 4) and the appellants who are mother and brothers of the husband of the deceased has not come to be disputed. Similarly, the fact that she died within three months of her marriage is also not disputed. The fact that when deceased Anita was living with the appellants she sustained burn injuries on 6-9-1989 at 6.00 p.m. has also not come to be disputed in any manner on behalf of the appellants. It has come in evidence of Vinayak (P.W. 6), who is the neighbour of appellants that in the evening of the fateful day of the incident, he had witnessed smoke coming out from the house of Anita, hence he rushed to that place and saw Anita lying on the floor of her house with burns all over her body. He stated that he along with the husband of Anita shifted her to the hospital. The fact that she as having 100 per cent burn injuries all over her body and she succumbed to the said injuries after few hours i.e. within nine hours from the time of incident is also fairly established from the evidence of Dr. Sontakke (P.W. 9). Inquest of dead body was held by A.S.I. Shri Patil (P.W. 10) on 7-9-1989. It is at Exh. 13. He noticed burns all over her body as described in the inquest panchanama. Burnt pieces of sari of Anita were sent to chemical analysis. Chemical Analyser's report is at Exh. 39. Sontakke (P.W. 9). Inquest of dead body was held by A.S.I. Shri Patil (P.W. 10) on 7-9-1989. It is at Exh. 13. He noticed burns all over her body as described in the inquest panchanama. Burnt pieces of sari of Anita were sent to chemical analysis. Chemical Analyser's report is at Exh. 39. Chemical Analyser detected kerosene residues on these pieces. Dr. Kavita Sontakke (P.W. 9) who conducted autopsy on dead body of deceased deposed that cause of death of Anita was shock due to extensive burns. Thus it is fairly established by prosecution that Anita died unnatural death when she was living with the appellants in their house at Bhusawal. In order to establish that deceased Anita died homicidal death and that the appellants are responsible for her homicidal death, prosecution has relied on the evidence of dying declarations. 12. As the conviction is based on only dying declarations, before appreciating the evidence of dying declaration, we think that it would be useful to note the importance of dying declaration and also to note the factors, which should be seen while relying on the dying declaration. "Section 32(1), Indian Evidence Act, speaks about it. Dying declaration is an exception to the general rule of evidence, that hearsay evidence is not admissible. Now, it has been accepted by the legislature that a dying declaration may be admitted, in evidence, even though it is hearsay evidence, on firm footing, namely, the first reason is that, that is the best evidence available from the person who has been aggrieved by whatever injury has been caused to him and the second reason is that the occasion is very solemn, and the dying man is face to face with his/her maker (God), it is the belief that the injured person on the death bed would not tell a lie. On this footing, this hearsay evidence has been accepted as admissible. Now, this dying declaration may be made to any person; he may be a prince or a pauper, may be a police man or a Magistrate. Dying declaration is made, if the person who is expecting to die, gives out the cause of injury on him, before any person. All these statements, are equally admissible. Now, this dying declaration may be made to any person; he may be a prince or a pauper, may be a police man or a Magistrate. Dying declaration is made, if the person who is expecting to die, gives out the cause of injury on him, before any person. All these statements, are equally admissible. But we may say that if that is reproduced in writing in his own words, then it is very helpful, because human memory fails as the time passes and it will be very difficult to recollect what the dying person was telling exactly in his own words after, say lapse of year or two, when that person is asked in a Court of law as to what he heard. The question that always arises is whether dying declaration is a weaker type of evidence. It is settled law that dying declaration is not a weaker type of evidence. On the basis of the dying declaration alone the accused can be convicted without insisting any corroboration from any other source. Therefore, what the Judge has to see while relying on the dying declaration, is at what time the dying declaration was made; what were the chances of that person of observing the assailant; whether it was day time, or whether it was night time; whether the assailants were known to him previously; whether he had occasion to be on the scene for quite some time. So that he has a clear impression about the assailant. Again when the dying declaration is made, what were the earlier opportunities to him to make the dying declaration. Whether there were many earlier occasions when it could have been made. Then the Judge has to find out the cause of not making the statement earlier. If he finds that there are good reasons not to make a statement earlier, because the dying man was groaning in pain or was more concerned with his health and such other causes, the Judge may find whether the dying declaration made late should be accepted. Therefore, the emphasis should be that earlier the statement more reliable it is. The earlier statement has greater weight. Therefore, the emphasis should be that earlier the statement more reliable it is. The earlier statement has greater weight. If the dying man has several next occasions and he makes the statement and repeats the same several times and they are available to the Court for scrutiny, it should be found out whether there is any consistency in all the statements. Consistency does not mean omissions. Sometimes in some other statement or the next statement or the third statement, such type of lacuna is found and if they are minor contradictions, they should be ignored and it would not reduce the weight of the dying declaration. If the statement made by the injured is all throughout consistent, in saying that a particular assailant or particular number of assailants were identified by him and he has a clear impression that these were the assailants, then it could be accepted." 13. The Apex Court has laid down in several judgments the principle governing dying declaration which could be summed up as under :- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P.)1, reported in 1976 S.C.C.(Cri.) 376. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav)2, 1985 S.C.C.(Cri.) 127; (Ramavati Devi v. State of Bihar)3, reported in 1983 S.C.C. (Cri.) 169 respectively. (iii) Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra Reddy v. Public Prosecutor)4, reported in 1976 S.C.C. (Cri.) 473. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.)5, reported in 1974(4) S.C.C. 264 . (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.)6, reported in 1981 S.C.C. (Cri.) 645. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.)7, reported in 1981 S.C.C. (Cri.) 581. (Kake Singh v. State of M.P.)6, reported in 1981 S.C.C. (Cri.) 645. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.)7, reported in 1981 S.C.C. (Cri.) 581. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu)8, reported in 1981 S.C.C. (Cri.) 364. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar)9, reported in 1979 S.C.C.(Cri.) 519. (ix) Normally the courts in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.),10 reported in 1988 S.C.C.(Cri.) 342. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)11, reported in 1989 S.C.C.(Cri.) 585. 14. For testing the case in hand on the principles referred to above, let us examine the evidence as regards dying declaration on record. Dr. Kavita Sontakke (P.W. 9) stated that on 6-9-1989, Anita was admitted in Bhusawal municipal hospital at 7.30 p.m. with 100 per cent burns all over her body and it being a burn case, she gave intimation to that effect to the Police Station vide memo Exh. 24. On receipt of the said memo, Assistant Police Sub-Inspector Madhukar (P.W. 7) was directed by the Police Station Officer to visit the hospital and to record the statement of Anita. Madhukar (P.W. 7) stated that he visited the hospital at about 8.00 p.m. and met with the Medical Officer Dr. Sontakke (P.W. 9) and asked her whether Anita was in a fit condition to make a statement. Madhukar (P.W. 7) stated that he visited the hospital at about 8.00 p.m. and met with the Medical Officer Dr. Sontakke (P.W. 9) and asked her whether Anita was in a fit condition to make a statement. He further stated that Medical Officer told him that she was in a condition to give statement and as regards the fitness of Anita to make a statement, the Medical Officer made an endorsement and put her signature below the endorsement made in the margin and thereafter A.S.I. Madhukar (P.W. 7) recorded the statement of Anita vide Exh. 25 as per her version in presence of the Medical Officer Dr. Sontakke (P.W. 9). He further stated that he obtained thumb impression of deceased Anita. He has categorically stated that the Medical Officer was present since beginning till completion of recording of the statement. In this regard, his statement finds full corroboration in the testimony of Dr. Sontakke (P.W. 9), who categorically stated on oath that Anita was in a fit condition to give the statement and she gave the statement to said Police Officer in her presence. She categorically stated that she was present since beginning till completion of the said statement. She has also admitted that she certified the fitness of Anita to make a statement and made endorsement to that effect in her own handwriting and under her signature. Dr. Sontakke (P.W. 9) has made it clear in her deposition during cross-examination that the endorsement certifying the fitness of Anita was made because she was conscious and in a position to speak. Thus, it is fairly established that deceased Anita was fully conscious and was in a fit mental state to make a statement when her statement was being recorded by Madhukar (P.W. 7) in presence of the Medical Officer. Her statement is at Exh. 25. On perusal of this dying declaration, it clearly appears that deceased Anita had stated that on the evening of the incident her mother-in-law Chhayabai poured kerosene on her person, her brother-in-law Pramod caught hold of her and another brother-in-law Ajay set her on fire by lighting match stick, as a result of which her clothes caught fire and she sustained burns on her face, hands, chest and all over body upto the feet. 15. 15. This evidence of dying declaration came to be attacked on behalf of the appellants on the ground that A.S.I. Madhukar (P.W. 7) being Police Officer is interested in conviction of the accused as reveals from record as no step was taken by the Investigating Officer to get the dying declaration of Anita recorded through Magistrate though many Special Executive Magistrates were available in Bhusawal City. In this regard, it is to be noted that Madhukar (P.W. 7) is not the Investigating Officer. He had gone to the hospital for recording statement of injured, as the Police Station received memo Exh. 24 from the Medical Officer and he recorded the statement of injured Anita, which is said to be the first information report, on the basis of which crime came to be recorded against the accused persons initially under section 307 of the Indian Penal Code. However, as the deceased succumbed to the injuries after few hours, it would be treated as dying declaration. Thus the conduct of Madhukar (P.W. 7) in recording the statement is consistent with the circumstances and as such his evidence which finds corroboration in the testimony of the Medical Officer Dr. Kavita Sontakke (P.W. 9) appears natural, cogent and reliable. 16. It is to be noted that it is always desirable to get the dying declaration recorded through the Executive Magistrate, but this is expected if injured person is alive for reasonably sufficient period and inspite of such condition, Investigating Officer does not take step in this regard, then there may be reason depending upon the circumstances to doubt the dying declaration recorded by the Police Officer. In this case, as already pointed out, it appears that the first information report of Anita has been recorded in between 8 and 9 a.m. and thereafter Anita died in the same night within 5-6 hours and as she succumbed to the injuries, the first information report would be treated as dying declaration. No question was asked to the Investigating Officers P.S.I. Kautik Patil (P.W. 10) and P.S.I. Ahirrao (P.W. 11) about the reason for not getting the dying declaration recorded through the Executive Magistrate. No question was asked to the Investigating Officers P.S.I. Kautik Patil (P.W. 10) and P.S.I. Ahirrao (P.W. 11) about the reason for not getting the dying declaration recorded through the Executive Magistrate. Such a question was asked to Madhukar (P.W. 7), but, as pointed out, he is not the Investigating Officer and as this question is put to a person who is not competent to answer, putting up such a question to such person is of no avail to the accused persons. No question was asked to the Medicial Officer as to how long the patient was conscious after her statement Exh. 25 came to be recorded by Madhukar (P.W. 7). Deposition of Dr. Sontakke (P.W. 9) shows that at about 10.30 p.m. she had given compose injection to the patient which clearly indicates that after 10.30 p.m. the patient would not remain conscious and in a fit condition to make a statement due to the effect of the said injection. Apparently the period during which Anita was alive and conscious and in a fit condition to make statement appears to be very short. Hence there appears no good reason to doubt the bona fides of the investigation in not getting the dying declaration recorded through the Executive Magistrate. Under such circumstances, it cannot be said to be a lapse on the part of the prosecution to get the dying declaration recorded through a Magistrate. For the sake of arguments, assuming that it is a lapse, however, considering the duration of life after the incident and the fact that at about 10.30 p.m. the injection of compose given to the patient, it cannot in any way affect the truth of the statement of deceased or face value to be given to it. 17. The said dying declaration is further corroborated by the circumstantial evidence disclosing residues of kerosene on burnt pieces of sari of Anita and burn injuries on her person. In addition to such dying declaration Exh. 25, there are oral dying declarations of Anita before her mother Sayabai (P.W. 1) and brother Dadarao (P.W. 3). 17. The said dying declaration is further corroborated by the circumstantial evidence disclosing residues of kerosene on burnt pieces of sari of Anita and burn injuries on her person. In addition to such dying declaration Exh. 25, there are oral dying declarations of Anita before her mother Sayabai (P.W. 1) and brother Dadarao (P.W. 3). They gave evidence that on receipt of message that Anita had been admitted in municipal hospital at Bhusawal for having received the burns, they had gone to the hospital and saw burn injuries on all over her body and, therefore, Sayabai (P.W. 1) questioned Anita as to what happened and Anita told that her mother-in-law Chhayabai poured kerosene on her person and her brother-in-law Pramod caught hold of her hands and Ajay set her on fire by lighting match stick. 18. On careful perusal of the evidence of Madhukar (P.W. 7), Sayabai (P.W. 1) and Dadarao (P.W. 3), there appears consistency in all these statements as regards the authors of the injuries on the person of deceased Anita, so also as regards the role played by each accused. Sayabai (P.W. 1) and Dadarao (P.W. 3) being mother and brother respectively of deceased visited the hospital to see Anita and seeing the injuries on her person, their conduct in asking her as to how she sustained injuries and disclosure on the part of deceased Anita before them as regards the authors of the injuries and the role played by each other appears quite natural. It is not the case of the appellants that these witnesses have not met Anita when she was alive. The statements given by these witnesses on oath inspire full confidence. 19. It is important to note that in addition to the dying declaration Exh. 25, recorded by Madhukar (P.W. 7) and the oral dying declaration before Sayabai (P.W. 1) and Dadarao (P.W. 3), there is one more dying declaration in the form of history of the injuries given by deceased Anita to the Medical Officer Dr. Kavita Sontakke (P.W. 9). She stated that the relatives of Anita had brought her to the hospital on that day when she was working as Medical Officer and Anita was admitted in the hospital at about 7.30 p.m. She stated that Anita was conscious and she was speaking. Kavita Sontakke (P.W. 9). She stated that the relatives of Anita had brought her to the hospital on that day when she was working as Medical Officer and Anita was admitted in the hospital at about 7.30 p.m. She stated that Anita was conscious and she was speaking. She further stated that Anita narrated the history about the incident before her and she had written the history on the case paper in her own hand writing bearing her signature. The case paper is at Exh. 31. The perusal of the case papers shows that this witness has examined her and noted that she was conscious and speaking and recorded the history of being burnt by her mother-in-law and brother-in-laws at about 6.00 p.m. on that day. It is to be noted that this witness is neither related to the accused nor to the deceased. It is also pertinent to note that she recorded the history when there was neither Police Officer nor mother or brother of the deceased. It is also pertinent to note that there is specific mention in the case papers Exh. 31 that the patient was brought by relatives without police memo. It is pertinent to note that she was brought by her husband and as such the fact is mentioned that she was brought by her relatives. As no relative from her parents' side was available, no question of tutoring or prompting the maker of the statement arises in this case. She was in a fit state to make the declaration and the declaration does not suffer from any infirmity. What she stated before the Medical Officer while giving history of the injuries also amounts to her dying declaration, which is admissible in evidence under section 32(1) of the Indian Evidence Act. This statement being earlier, more reliable it is, and the earlier statement has greater weight. The dying woman has several occasions and she makes the statement and repeats the same several times as already discussed above and there is consistency in all the statements. 20. The learned Counsel for the appellants contended that when the deceased Anita was having 100 per cent burns, it is not possible for her to speak or to put thumb impression and as such entire evidence regarding dying declaration is suspicious. 20. The learned Counsel for the appellants contended that when the deceased Anita was having 100 per cent burns, it is not possible for her to speak or to put thumb impression and as such entire evidence regarding dying declaration is suspicious. In this regard, it is to be noted that 100 per cent burns does not mean that the body is completely charred. The percentage is to be calculated as per the criteria of assessment of the burns. It is to be noted that deceased Anita was alive for about 9 hours since the time of the incident. There is statements of as many as four witnesses as discussed above that she made dying declaration before them and the evidence given by all these persons including the Medical Officer, who is expert in that field cannot be ignored merely on the ground of the academic probabilities that person having 100 per cent burns would not be in a position of speaking. There appears nothing on record to come to that conclusion. On the contrary, what the witnesses referred to above, stated on oath is natural, cogent, reliable and there appears no reason to disbelieve in their evidence. It is also difficult to believe that they will tell lie. Their evidence has a ring of truth and there appears no reason for them to speak ill of the appellants. Therefore, there appears no substance in the contention raised by the learned Counsel for the respondent. 21. Thus having considered the dying declaration, written as well as oral, as discussed above, we are of the firm opinion that the evidence led by the prosecution as regards dying declaration is cogent, reliable and acceptable and this evidence is sufficient to prove that deceased Anita died homicidal death and the appellants are responsible for her homicidal death. 22. Now, it is to be considered, what offence is proved to have been committed by the accused persons. It is pertinent to note that the accused persons are charged with having committed offence under section 302 r/w 34 of the Indian Penal Code. 23. Therefore, this brings us to consider that whether the accused persons committed the above act with common intention. It is pertinent to note that the accused persons are charged with having committed offence under section 302 r/w 34 of the Indian Penal Code. 23. Therefore, this brings us to consider that whether the accused persons committed the above act with common intention. Before appreciating the evidence on record, I think, it would be useful to note the importance of section 34 of the Indian Penal Code as the accused are charged for having committed the offence in furtherance of their common intention. Section 34 of Indian Penal Code reads as follows :- "Acts done by several persons in furtherance of common intention.---When criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone." This section embodies the common sense principle that if 2 or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. From the plain reading of section 34 of the Indian Penal Code, it will be seen that the section embodies the principle of joint liability in doing of criminal Act, the essence of that liability being the existence of common intention. Participation in the commission of the offence in furtherance of common intention invite application of section 34 of the Indian Penal Code. 24. To invoke the aid of section successfully, it must be shown that the criminal act complained of was done by one of the accused persons in furtherance of common intention of all. If this is shown, then, the liability for the crime may be imposed on any one of the persons in the same manner as if the act was done by him alone. If 2 or more persons combine in injuring another in such a manner that each person engaged in causing the injuries must know that the result of such injury may be the death of the injured person, it is no answer on the part of any one of them to lodge, and perhaps prove that his individual Act did not cause a death and that by his individual act he cannot be held to have intended death. 25. 25. The evidence of dying declaration discloses that appellant No. 1 Chhayabai poured kerosene on the person of Anita, appellant No. 2 Pramod caught hold of her at that time and appellant No. 3 Ajay lighted match stick and set her on fire. Thus all the appellants have participated and engaged in causing the injuries to deceased Anita, and as such they all have shared common intention in causing the death of deceased Anita. 26. The act of the appellants i.e. pouring kerosene on the person of deceased Anita, catching hold of her and setting her on fire by lighting match stick, without making any attempt to extinguish the fire, and absence of any repentance on the part of the appellants as regards their act, clearly show that the intention on part of the appellants was to commit murder of deceased Anita, therefore, the case falls under Clause (1) of section 300 of Indian Penal Code. After going through the evidence on record, we are constrained to observe that we do not find any merit in this appeal so far as conviction and sentence passed against appellants under sections 302 r/w 34 of the Indian Penal Code is concerned. In our view, conviction of appellants is based on credible evidence of various dying declarations of deceased viz. (a) first information report Exh. 25, lodged by deceased which is dying declaration under section 32 of Indian Evidence Act (b) history of injuries given by deceased to Dr. Kavita Sontakke (P.W. 9) which is also a dying declaration under section 32 of the Indian Evidence Act and the oral dying declaration made by deceased before her mother Sayabai (P.W. 1) and brother Dadarao (P.W. 3) which is admissible under section 32 of the Indian Evidence Act. Consequently, we find that the learned Additional Sessions Judge has not committed any error in convicting the accused persons for an offence under section 302 of the Indian Penal Code and sentencing them to undergo life imprisonment. 27. This brings us to consider the charge under section 498-A r/w 34 of the Indian Penal Code. In Clause (2) of section 498 of the Indian Penal Code, it is contemplated that cruelty means harassment for illegal demand of money or things. 27. This brings us to consider the charge under section 498-A r/w 34 of the Indian Penal Code. In Clause (2) of section 498 of the Indian Penal Code, it is contemplated that cruelty means harassment for illegal demand of money or things. There is no evidence in the present case that appellant No. 1 Chhayabai illtreated Anita for any illegal demand or for demand of gold nose ring, except the final act of setting her on fire, which constitutes offence under section 302 of the Indian Penal Code, as discussed above. Similarly, there is no evidence that the appellant Nos. 2 and 3 demanded anything from Anita and for that purpose, they abused her. There is no evidence regarding actual abuses by appellant Nos. 2 and 3. Thus none of the ingredients of section 498-A of the Indian Penal Code is satisfied by the evidence led by the prosecution. Therefore, in our opinion, the conviction under section 498-A of the Indian Penal Code is not proper and it deserves to be quashed and set aside. 28. In the result, the appeal preferred by the appellants is partly allowed. The order of conviction and sentence, passed by the II Additional Sessions Judge, Jalgaon, against the appellants, on 22-11-1994 in Session Case No. 65 of 1990, for an offence under sections 302 r/w 34 of the Indian Penal Code, stands confirmed. The order of conviction and sentence passed against the appellants for offence under sections 498-A r/w 34 of the Indian Penal Code, is hereby quashed and set aside. All the accused are acquitted of offence charged under sections 498-A r/w 34 of the Indian Penal Code. 29. Before parting with the judgment, it is necessary to observe that while admitting the appeal all the appellants were undergoing sentence of imprisonment. However, during the pendency of this appeal, the appellant No. 3 Ajay Rajaram Narwade was granted temporary bail on 2-2-1996 for a period of one month from the date of his release and he was to surrender to the Jail Authorities on expiry of one month's period of temporary bail. On expiry of the said period of temporary bail, the said accused did not surrender to the Jail Authorities. However, there was no difficulty in hearing the appeal as he had already engaged Shri M.S. Phatak, learned Counsel on his behalf in this appeal. On expiry of the said period of temporary bail, the said accused did not surrender to the Jail Authorities. However, there was no difficulty in hearing the appeal as he had already engaged Shri M.S. Phatak, learned Counsel on his behalf in this appeal. During pendency of appeal, warrant of arrest was issued against him from time to time, but the police could not arrest him. Under such circumstances, we direct the trial Court to issue non-bailable warrant against the appellant No. 3 Ajay Rajaram Narwade from time to time till his arrest and to commit him to the Jail Authorities to undergo the sentence of imprisonment imposed against him for an offence under sections 302 r/w 34 of the Indian Penal Code. The trial Court shall submit quarterly report to the Additional Registrar of this Court as regards action taken by it in this regard till arrest of the appellant No. 3. Appeal partly allowed. -----