JUDGMENT - BATTA R.K., J.:---The appellant alongwith three others was tried for the murder of Kasturabai under section 302 read with section 34 of Indian Penal Code. The prosecution had in all examined 9 witnesses in support of the said charge. The trial Court relying upon the testimony of P.W. 2 Bajrang, history given by the deceased to doctor at the time of admission, the First Information Report lodged by Kasturabai which was later on treated as dying declaration, written dying declaration recorded by Executive Magistrate P.W. 5, oral dying declaration of Kasturabai to her husband, medical and other evidence on record, found the appellant guilty of the charge of murder under section 302 and he has been sentenced to suffer imprisonment for life. The appellant was sentenced to pay fine of Rs. 500/- and in default to suffer rigorous imprisonment for one year. The period of detention during trial was set off in terms of section 428 of Criminal Procedure Code. 2. The prosecution case, in brief, is that deceased Kasturabai was not on good terms with her sister-in-law Narmadabai. On the fateful day the deceased-Kasturabai had gone to her mother's house and from there she was going to fetch water. At that time Narmadabai came and caught hold the hands of Kasturabai. She was telling Kasturabai not to visit the house of her mother-Jaivantabai due to which there was quarrel and Narmadabai abused Kasturabai. Thereafter, Narmadabai told the other two co-accused, who have since been acquitted, to catch hold the hands of Kasturabai. Then accused-appellant Namdeorao poured kerosene on the person of Kasturabai and set her on fire. Kasturabai went to the house of Tulsabai Kakde and from there she jumped into the water tank which was there at the house of one Bagde. This incident was seen by Bajrang P.W. 2 who is son of Kasturabai who informed of this incident to his father. His father came and took Kasturabai from the water tank and later she was taken to the hospital. In the hospital doctor P.W. 6 recorded the history as told by Kasturabai and she told that on 27-7-1997 at 2.00 p.m. Namdeo poured kerosene on her person and burnt her on account of quarrel. His father came and took Kasturabai from the water tank and later she was taken to the hospital. In the hospital doctor P.W. 6 recorded the history as told by Kasturabai and she told that on 27-7-1997 at 2.00 p.m. Namdeo poured kerosene on her person and burnt her on account of quarrel. The doctor informed the police, Police Officer asked the doctor as to whether Kasturabai was able to give statement and upon doctor-P.W. 6 stating that she was competent to give statement, the Police Officer recorded the statement of Kasturabai, wherein also she had stated that it was Namdeo who had poured kerosene on her and burnt her. On the same day at about 5.00 p.m. the Executive Magistrate recorded the dying declaration of the deceased wherein also the deceased stated that Namdeo had poured kerosene on her and set her on fire. While deceased was being taken to the hospital she is said to have made oral dying declaration to her husband to the effect that Namdeo had poured kerosene on her and set her on fire. 3. The defence case is that initially some quarrel had taken place between Kasturabai and Narmadabai at about 2.30 p.m. but the same was pacified and everybody had gone home and it was at 3.30 p.m. that deceased on her own poured kerosene on her and set herself on fire. In fact, the accused in the statement under section 313 of Criminal Procedure Code had not said a word about his defence though he stated that he would be examining one defence witness. Plea of alibi was also suggested in cross-examination of Bajrang (P.W. 2), but no evidence was led in support of the same. 4. In fact, the accused in the statement under section 313 of Criminal Procedure Code had not said a word about his defence though he stated that he would be examining one defence witness. Plea of alibi was also suggested in cross-examination of Bajrang (P.W. 2), but no evidence was led in support of the same. 4. Learned Advocate for the appellant took us through the evidence of prosecution witnesses and his main argument which has been put forth is that according to the prosecution case the incident took place between 2.00 to 2.30 p.m. and as per medical record the deceased was brought to the hospital only at 4.30 p.m. and that there is unexplained gap of about 2 hours between the incident and the factum of deceased being brought to the hospital which is explained by the defence version that in fact the initial quarrel between the appellant and Narmadabai was over at about 2.30 p.m. with the intervention of some persons and everybody had gone home and it is only at 3.30 p.m. that deceased herself poured kerosene and set herself on fire. It is next contended by the learned Advocate for the appellant that the prosecution case mainly rests upon the evidence of Bajrang-P.W. 2 who is a child witness and the testimony of the child witness is required to be cautiously scrutinized and in this respect the reliance has been placed on (Zafar v. State of U.P.)1, 2003(1) SCALE 299 . There can be no doubt that the testimony of child witness requires close scrutiny for placing reliance on the same. The next submission made by the learned Advocate for the appellant is that the story of the prosecution that the pouring of kerosene on the deceased in broad day light on the road in presence of many persons who are present is highly improbable story. Learned Advocate for the appellant has further urged that the prosecution had tried to implicate as many as five persons in the crime which shows that there was false implication of some of the co-accused who have been acquitted, which itself causes doubt on the prosecution case as against the appellant. In this respect reliance is placed on (Balaka Singh and others v. The State of Punjab)2, 1975 Supreme Court Cases (Cri.) 601. 5. In this respect reliance is placed on (Balaka Singh and others v. The State of Punjab)2, 1975 Supreme Court Cases (Cri.) 601. 5. The next submission made by learned Advocate for the appellant is that prosecution has failed to prove any motive and in the absence of proof of motive the prosecution has failed to establish the complicity of appellant in crime. He placed reliance on (State of U.P. v. Baburam)3, 2000(3) SCALE 215 and according to him on this count alone the prosecution case must fail. Lastly, it is submitted by learned Advocate for the appellant that some of the material witnesses were not examined by the prosecution, as a result of which not only adverse inference should be drawn against the prosecution, but the statements of those witnesses before the police, who were not examined by the prosecution should be read in evidence and in this respect reliance is placed on (Jalba Santuka Kamble v. State of Maharashtra)4, 1995(2) Bom.C.R. 575 as also on the judgment of the Apex Court and in (Abdul Latif and others v. State of Uttar Pradesh)5, 1978 Cri.L.J. 639. Alternatively, it is urged that the defence at this stage be allowed to examine the said witnesses in this Court. According to the learned Advocate for the appellant, the prosecution has miserably failed in proving guilt of the appellant and the appellant deserves to be acquitted. 6. On the other hand learned A.P.P. submitted before us that the prosecution had duly proved the case against the appellant by evidence of Bajrang-P.W. 2, history given by the patient to doctor-P.W. 6, statement of Kasturabai deceased recorded by the Police Officer after doctor certified that she was fit to give statement which was initially registered as First Information Report and has to be treated as dying declaration, written dying declaration recorded by the Executive Magistrate-P.W. 5, oral dying declaration of the deceased before the husband-P.W. 7, medical evidence as also the other evidence on record. On motive the learned A.P.P. relied upon (Shamsher Singh @ Shera v. State of Haryana)6, 2002(7) S.C.C. 536 ; (Sardul Singh v. State of Haryana)7, 2002(8) S.C.C. 372 . On motive the learned A.P.P. relied upon (Shamsher Singh @ Shera v. State of Haryana)6, 2002(7) S.C.C. 536 ; (Sardul Singh v. State of Haryana)7, 2002(8) S.C.C. 372 . In respect of the submission of learned Advocate for the appellant relating to false implication, learned A.P.P. relying upon (Gangadhar Behera and others v. State of Orissa)8, 2002(8) S.C.C. 381 has pointed out that falsity of particular material witness or material particular would not ruin the prosecution case from beginning to end and the maxim "faisus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. It is further pointed out that it is merely a rule of caution and even if major portion of the evidence of witness is found unreliable, if the remaining part of the evidence inspires confidence and is sufficient to prove the guilt of the accused, conviction can be based thereon, since it is the duty of the Court to separate chaff from grain and to find out in each case as to what extent the evidence is acceptable. In respect of the argument of the learned Advocate for the appellant that material witnesses have not been examined, it is urged that the witnesses who have not been examined are not material and in case the defence felt that the said witnesses were material, the said witnesses could be examined by the defence. In this respect reliance is placed by the learned A.P.P. on (Hukum Singh and others v. State of Rajasthan)9, 2000(7) S.C.C. 490 . On the argument of the learned Advocate for the appellant that due to non-examination of the said witnesses their statements before the police recorded under section 161 of the Code of Criminal Procedure should be read in evidence, reliance is placed on the judgment of the Apex Court in (Tahsildar Singh and another v. State of U.P.)10, A.I.R. 1959 Supreme Court 1012 and (Vijender v. State of Delhi)11, 1997(6) Supreme Court Cases 171 and it is urged that the said statements cannot be used for any purpose beyond section 162 of Criminal Procedure Code except when the same attracts the provisions of sections 27 and 32(1) of Evidence Act. Learned A.P.P., therefore, contended that the conviction is well founded and it does not call for any interference. 7. Learned A.P.P., therefore, contended that the conviction is well founded and it does not call for any interference. 7. There is no dispute that the deceased died on account of pouring of kerosene and burning resulting in 94% burns. The question to be determined is as to who had poured kerosene and set her on fire. The prosecution case is that it was the appellant who had poured kerosene on the deceased and set her on fire and the defence case is that it is the deceased her self who had poured kerosene on her and herself set on fire. Before dealing with the merits of the case, we consider it appropriate that we should first examine the argument advanced by the learned Advocate for the appellant that some of the material witnesses have not been examined on account of which adverse inference should be drawn against the prosecution and on account of non-examination of the said material witnesses, their statements before the police recorded under section 161 of the Code of Criminal Procedure be read in evidence. 8. It is now well settled that the prosecution should examine material witnesses in order to unfold the prosecution case and it is not necessary that there should be duplication of evidence. In this respect learned A.P.P. has placed before us the judgment of (Harpal Singh another v. Devinder Singh another)12, 1997(6) S.C.C. 660 wherein it is laid down that merely because a material witness was not examined by the prosecution a criminal Court is not to lean to draw the adverse inference that if he was examined he would have given a contrary version. The Illustration (g) in section 114 of the Evidence Act is only a permissible inference and not a necessary inference and that unless there are other circumstances also to facilitate the drawing of an inference it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness. In this ruling it is further laid down that if the accused thought that the evidence of a witness would help defence, it was open to the accused to examine him as a defence witness. In this ruling it is further laid down that if the accused thought that the evidence of a witness would help defence, it was open to the accused to examine him as a defence witness. Likewise in Hukum Singh others v. State of Rajasthan, 2000(7) S.C.C. 490 it has been laid down that if a witness is not examined by the prosecution, it is open to the defence to site him and examine him as a defence witness. 9. The learned Advocate for the appellant argued that the material witnesses like Tulsabai, Rajesh Bagde, Nagorao Kakade, Dashrath Dawande, Shriram Tayde, Suryabhan Pinjarkar whose statements were recorded by the police have not been examined which not only could unfold the prosecution case, but would have been helpful in bringing the truth on record. It appears that according to the Public Prosecutor they were not material witnesses and as such, the same were not examined. It was open to the defence to examine the said witnesses, but except Rajesh Bagde, no other witness was examined in defence. In our opinion the said witnesses cannot be said to be material witnesses necessary for unfolding the prosecution case and as such it is not possible to draw adverse inference against the prosecution on account of non-examination of the said witnesses. 10. Learned Advocate for the appellant then urged that the statements of the said witnesses before the police recorded under section 161 Cri.P.C. should be read in evidence and in this respect reliance was placed on Jalba Santuka Kamble v. State of Maharashtra, 1995(1) Bombay Criminal Cases 168. In this case it was found that one Gajbhare was not examined by the prosecution as witness, though it appeared at least from his statement in panchanama that he had witnessed some part of the incident. It was noticed that the statement of the neighbours were recorded, but the said neighbours were not examined by the prosecution. Relying upon the judgment of Apex Court in Abdul Latif others v. State of Uttar Pradesh, 1978 Cri.L.J. 639 it has been observed that the Supreme Court in that case perused the statement of alleged eye-witnesses whose evidence was not adduced in sessions trial in the interest of justice. It has been further observed that on facts of that case the Supreme Court found that they were not very material witnesses. It has been further observed that on facts of that case the Supreme Court found that they were not very material witnesses. The further observations are that the position of law as it boiled down from the judgment of the Apex Court was to the effect that it was open to the Appellate Court to peruse the police statement in the interest of justice to ascertain whether or not material witnesses were not examined by the prosecution and whether or not, any adverse inference can be drawn against the prosecution on that count. Learned Advocate for the appellant, who has placed reliance on this judgment, has himself conceded that in fact no proposition of law was laid down by the Apex Court in the said judgment as has been observed in Jalba Santuka Kamble v. State of Maharashtra, 1995(1) Bombay Criminal Case 168. In Abdul Latif another v. State of U.P., A.I.R. 1978 S.C. 472 one of the main grievances which was put forth before the High Court was that P.W. Dhannu, the brother of the deceased and Zinat Sister of Jamila though very material witnesses were not examined by the Sessions Judge. The Apex Court found that evidence of the said witnesses was not very material and would not have helped the prosecution case. However, the Apex Court in the interest of justice perused the statement of Dhanu and Zinat recorded by the Police on 1-8-1967. The judgment of the Apex Court would go to show that no proposition of law was either canvassed before the Apex Court nor any proposition of law has been laid down by the Apex Court and as such the very premise on which the observations were made in Jalba Santuka Kamble v. State of Maharashtra, 1995(1) Bombay Criminal Cases 168 is itself incorrect. Besides it was alleged that the said witnesses were eye-witnesses, but in the case under consideration before us, it is nobody's case that the witnesses which have not been examined by the prosecution were eye-witnesses. Even the Investigating Officer who was cross-examined at length has not stated that the witnesses who were not examined are eye-witnesses. 11. Besides it was alleged that the said witnesses were eye-witnesses, but in the case under consideration before us, it is nobody's case that the witnesses which have not been examined by the prosecution were eye-witnesses. Even the Investigating Officer who was cross-examined at length has not stated that the witnesses who were not examined are eye-witnesses. 11. Section 162(1) lays down: "Statements to police not to be signed; Use of statements in evidence: 1) No statement made by any person to a Police Officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made; Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred of in his cross-examination." In nutshell, section 162(1) of the Code of Criminal Procedure lays down that no statement made by any person to Police Officer in the course of investigation under this Chapter can be used at trial for any purpose whatsoever except for the purposes mentioned therein and proviso to section 162. 12. The Apex Court in (Baldeo Singh v. State of Punjab)13, 1990 Cri.L.J. 2604 has laid down that the statement of witnesses recorded under section 161 of the Code of Criminal Procedure is not substantive piece of evidence. In that case the witness P.W. 10 was examined in the Court. The High Court was inclined to place reliance on his evidence on the ground that the said witness in his statement before the police during the investigation as well as in the F.I.R. had narrated all the relevant facts. In that case the witness P.W. 10 was examined in the Court. The High Court was inclined to place reliance on his evidence on the ground that the said witness in his statement before the police during the investigation as well as in the F.I.R. had narrated all the relevant facts. The Apex Court found that the reasoning of the High Court was erroneous and it was needless to stress that the statement recorded under section 161 of Criminal Procedure Code shall not be used for any purpose except to contradict the witness in the manner prescribed in the proviso to section 162(1) and the First Information Report is not a substantial piece of evidence. It was held that the High Court had misled itself in relying upon these two statements and thereby had fallen into serious error. The Apex Court in Vijender v. State of Delhi, 1997(6) S.C.C. 171 has deprecated admitting statement of the witnesses recorded under section 161 in evidence and has held that it was inadmissible and cannot be used for any purpose except to contradict the prosecution witnesses or when it attracts the provisions of section 27 or 32(1) and 145 of the Evidence Act. In this case the trial Court permitted the prosecution to let in the statement made by Bajrang P.W. 2 to the Police Officer in utter disregard of provisions of section 162 of Criminal Procedure Code, which lays down an elementary but fundamental principle to be followed in criminal law that the statement made before the Police Officer during investigation cannot be used for any purpose whatsoever except when it attracts provisions of section 27 or section 32 of the Evidence Act. If, however, such a statement is made by a witness examined by the prosecution, it may be used by the accused to contradict such a witness under section 145 of the Evidence Act. In the light of section 162 of Criminal Procedure Code and the judgments of the Apex Court referred to above the proposition laid down in Jalba Santuka Kamble v. State of Maharashtra, 1995(1) Bombay Criminal Cases 168 cannot be regarded as good law. In the light of section 162 of Criminal Procedure Code and the judgments of the Apex Court referred to above the proposition laid down in Jalba Santuka Kamble v. State of Maharashtra, 1995(1) Bombay Criminal Cases 168 cannot be regarded as good law. The statement of witnesses recorded before the Police without examining the said witnesses in Court and without following proper procedure under section 162 of Cri.P.C. read with section 145 of the Evidence Act, therefore, cannot be read in evidence as urged by the learned Advocate for the appellant. The learned Advocate for the appellant had urged before us that the matter be referred to larger Bench but we do not find any justification for the said submission since the position in our opinion is crystal clear as stated above. We may also point out that defence was free to examine the witnesses which it felt were material, but having chosen not to do so, defence cannot at this stage be permitted to fill lacunas by permitting it to examine the said witnesses after the trial is over especially when the defence had examined one of the said witnesses as D.W. 1. 13. At this stage, we shall also refer to the submission made by learned Advocate for the appellant that on account of the false implication of some of the co-accused who have since been acquitted, the entire case becomes suspect on account of which the prosecution case should be totally disbelieved. It has been time and again observed by the Apex Court that there has been growing tendency of the informations to implicate as many persons as possible of the family and it is a duty of the Court to separate chaff from the grain in order to determine the veracity of the prosecution case. Only on the ground that there has been false implication of some of the co-accused, the other accused against whom there is evidence, cannot be ordered to be acquitted on that count alone. Learned Advocate for the appellant had relied upon Balka Singh others v. State of Punjab, 1975 S.C.C.(Cri.) 601. In that case it was found on perusal of the evidence of the prosecution witnesses that the prosecution case against the appellant and the four accused was so inextricably mixed up that it was not possible to sever one from the other. Learned Advocate for the appellant had relied upon Balka Singh others v. State of Punjab, 1975 S.C.C.(Cri.) 601. In that case it was found on perusal of the evidence of the prosecution witnesses that the prosecution case against the appellant and the four accused was so inextricably mixed up that it was not possible to sever one from the other. It was further pointed out that where the grain can not be separated from the chaff because the grain and chaff are so inexplicably mixed up, then in such case the entire evidence have to be rejected. In this respect reliance is placed by the learned A.P.P. on Gangadhar Behera others v. State of Orissa, 2002(8) S.C.C. 381 wherein it was pointed out that the maxim "Falsus in uno, falsus in omnibus" has no application in India and the same has not received general acceptance nor has this maxim come to occupy the status of rules of law. It is merely a rule of caution. It is further observed by the Apex Court that the witnesses just cannot help in giving embroidary to a story, however, true to main. Therefore, it has to be appraised in each case as to what extent it is worthy of acceptance and merely because in some respects the Court considers the same to be insufficient for placing eliance on the testimony of witnesses, it does not necessarily follow as a matter of law that it must be discarded in all respects as well. It was further observed that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused, notwithstanding acquittal of a number of other co-accused, his conviction can be maintained. It is the duty of the Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict the accused notwithstanding the fact that evidence has been found to be deficient to bring the guilt of the other accused persons. 14. The learned Advocate for the appellant has also urged before us that the prosecution has failed to establish the motive in this case and in this regard reliance is placed on State of U.P. v. Baburam, 2000(3) SCALE 215 . 14. The learned Advocate for the appellant has also urged before us that the prosecution has failed to establish the motive in this case and in this regard reliance is placed on State of U.P. v. Baburam, 2000(3) SCALE 215 . In this case the Apex Court did not concur with the legal proposition adumbrated by the High Court that the motive may not be very much material in cases dependent on direct evidence, whereas motive is material only in cases which depend on circumstantial evidence. The Apex Court pointed out that motive is relevant factor in all criminal cases whether based on testimony of eyewitnesses or circumstantial evidence. The Apex Court reiterated what was said in (Nathuni Yadav v. State of Bihar)14, 1998(9) S.C.C. 238 and (State of H.P. v. Jeet Singh)15, 1999(4) S.C.C. 370 and quoted following passage from the latter decision : "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended." In this respect the learned A.P.P. has placed reliance on Shamsher Singh @ Shera v. State of Haryana, 2002(7) S.C.C. 536 and Sardulsingh v. State of Haryana, 2002(8) S.C.C. 372 . In Sardulsing v. State of Haryana, 2002(VII) S.C.C. 539, it has been held that absence of proof of motive which is not always capable of precise proof, if proved may only lend additional support to strengthen the probability of commission of the offence by the person accused, but the absence of motive does not ipso facto warrant an acquittal. 15. Coming to the case under consideration we find that the prosecution has been able to establish the motive against the appellant. 15. Coming to the case under consideration we find that the prosecution has been able to establish the motive against the appellant. The prosecution case is that Kasturabai was not on good terms with her sister-in-law Narmadabai and that the appellant always used to side Narmadabai. According to the prosection case it is on account of this motive that the appellant had committed crime in question. Therefore, it cannot be said that in the case under consideration the prosecution has not proved the motive or that there is absence of motive. 16. We shall now take up the case on merits. The prosecution has examined P.W. 2 Bajrang who is the son of deceased Kasturabai. He is no doubt a child witness and the trial Court was aware of this fact and had put question to determine the competency of this witness. It is only after the trial Court was satisfied that the child witness was competent witness that oath was administered to him and his evidence was recorded. P.W. 2 Bajrang has stated that on the fateful day he alongwith his mother had gone to the house of his grandmother and his mother was going to fetch water. At that stage there was initial quarrel between his mother Kasturabai and her sister-in-law Narmadabai and subsequently Namdeo poured kerosene on her person and set her on fire. Her mother went to the house of Tulsabai Kakde and from there she jumped into water tank which was there at the house of Bagde. He also informed his father about the incident. Though this witness was cross-examined at length, yet the testimony of this witness as against the appellant Namdeo could not at all be shaken during the cross-examination. It was suggested to him that he was present in the school at the time of the incident and his attendance was marked in the attendance register which was denied by him. The appellant did not produce any evidence to substantiate this defence. It was also suggested to this witness that the appellant Namdeo was not on the spot which means that plea of alibi was taken, but no evidence in relation to the plea of alibi was putforth by the accused. The appellant did not produce any evidence to substantiate this defence. It was also suggested to this witness that the appellant Namdeo was not on the spot which means that plea of alibi was taken, but no evidence in relation to the plea of alibi was putforth by the accused. Though this witness has stated that many people had gathered on the spot, yet from the record it is clear that the incident in question was not witnessed by any person except Bajrang P.W. 2, P.W. 7 father of Bajrang has spoken of strained relations between Narmadabai and Jaiwantabai mother of Kasturabai. He has further stated that the appellant Namdeo used to help Narmadabai. Much is tried to be made out of timing stated by this witness. We have to bear in mind that this witness has admitted that he was not having wrist watch. He states that Bajrang came to home between 2.00 to 2.30 p.m. On reaching the spot he found that his wife was in the water tank belonging to Bagde and from there he took her to the hospital. He also speaks of oral dying declaration being made by Kasturabai to him while she was being taken to the hospital and the dying declaration was to the effect that the appellant-Namdeo poured kerosene on her person and set her on fire. There is no reason whatsoever to disbelieve the statement of Bajrang P.W. 2 as also his father P.W. 7. This evidence is further supported by consistent version of the deceased before the Doctor who recorded the history, before the police who recorded First Information Report and before the Executive Magistrate who recorded the dying declaration. 17. P.W. 6 Dr. Jaiswal has stated that the deceased was brought to the hospital at about 4.30 p.m. and she was having 94% burn injuries. He recorded the history as stated by the patient Kasturabai and she told him that on 12-7-1997 the incident occurred at about 14 hours and Namdeo poured kerosene on her person and burnt her due to quarrel. This part of the deposition of the witnesses could not be shaken during the cross-examination except for suggestion that the history was not given by the patient but it was given by her relatives. There is absolutely no reason as to why the evidence of P.W. 6 who as independent witness should be discarded. This part of the deposition of the witnesses could not be shaken during the cross-examination except for suggestion that the history was not given by the patient but it was given by her relatives. There is absolutely no reason as to why the evidence of P.W. 6 who as independent witness should be discarded. P.W. 6 has further stated that he had seen letter of P.S.O. who came to the hospital and the Police Officer asked him whether the patient was able to give statement and he told the police that patient Kasturabai was competent, to give statement. Thereafter the police asked Kasturabai in his presence and recorded her statement before him. This statement was signed by P.W. 6. In cross-examination he admitted that on the report of Kasturabai Exhibit 46 to the Police, there is no certificate recorded by him, but he stated that he had examined Kasturabai and she was conscious. He denied the suggestion that at that time he had given pain killers and sedatives to the patient. He also denied that Kasturabai was unconscious till she was shifted to Akola. This statement of Doctor P.W. 6 in respect of recording of the First Information Report by Police is fully corroborated by A.P.I. Rajkumar Shukla P.W. 9 who stated that he received telephonic message that Kasturabai was admitted in the hospital for having sustained burn injuries. He made note of the same in the station diary at about 4.30 p.m. and went to the hospital. He contacted the doctor and asked doctor whether patient Kasturabai was fit to give statement. Doctor opined that Kasturabai was fit to give statement and as such he recorded the statement. It was read over to the patient who admitted the same to be correct. Thumb impression of Kasturabai was taken and during the recording of the statement. He admitted that there is no remark on the said statement Exhibit 46 of the Doctor, but Doctor examined patient and certified that the patient was fit to give statement. There is no reason whatsoever to discard the categorical statement of Doctor P.W. 6 and A.P.I. Rajkumar P.W. 9 on this aspect before whom also Kasturabai consistently reported that it was the appellant who had poured kerosene and set her on fire. 18. There is no reason whatsoever to discard the categorical statement of Doctor P.W. 6 and A.P.I. Rajkumar P.W. 9 on this aspect before whom also Kasturabai consistently reported that it was the appellant who had poured kerosene and set her on fire. 18. The written dying declaration of Kasturabai was also recorded by the Naib Tahsildar P.W. 5 who has stated that he received the requisition at about 4.45 p.m. and he went to the hospital at 5.00 p.m. Dr. Jaiswal was incharge and he was there. He asked the Doctor whether Kasturabai was conscious. Dr. Jaiswal examined Kasturabai and certified that she was conscious at that time. He asked all the relatives to go outside and when he and the Doctor Jaiswal were present, he put question to the patient Kasturabai to ascertain as to whether she was conscious to which she answered and from these answers he was satisfied that she was able to give statement. Before, him, Kasturabai stated that incident took place on 12-7-1997 in the afternoon at 2.00 p.m. and it was appellant-Namdeo Dhanbhar who had poured kerosene on her person and lit her with matchstick and ran away. Learned Advocate for the appellant has tried to raise the issue that deceased had given the name as Namdeo Dhanbhar, but the appellant in fact is Namdeo Dhangar. There is evidence on record that there is no person in the village by name Namdeo Dhanbhar. On account of this minor lapse in recording the Dhanbhar against Dhangar, the evidence cannot be disbelieved. After recording the statement he read over the question and answer to Kasturabai. She admitted the same to be correct, after which he obtained her thumb impression. He further stated that he start of recording of dying declaration till the dying declaration was over, the Doctor was present and after recording the dying declaration Doctor certified. He identified the thumb impression of patient-Kasturabai. He admitted during cross-examination that he has not recorded that contents were read over and she admitted it to be correct. He also admitted that thumb impression was not attested, but he categorically stated that he obtained her thumb impression and has proved that thumb impression and has identified the thumb impression of patient Kasturabai. There is no reason whatsoever to discard testimony of the independent witness Naib Tahsildar P.W. 5 who had absolutely no axe to grind against the appellant. He also admitted that thumb impression was not attested, but he categorically stated that he obtained her thumb impression and has proved that thumb impression and has identified the thumb impression of patient Kasturabai. There is no reason whatsoever to discard testimony of the independent witness Naib Tahsildar P.W. 5 who had absolutely no axe to grind against the appellant. Dr. Jaiswal (P.W. 6) has confirmed that he examined the patient and found that she was fit to give statement. He was present throughout recording of the statement and he had certified fitness of the patient after recording of the statement. 19. From the above discussion it is clear that the case of the prosecution right from the beginning is consistent that it was Namdeo who poured kerosene on Kasturabai and set her on fire. In order to dislodge the prosecution case the appellant examined one witness in his defence namely D.W. 1 Rajesh Lagde. This witness has stated that the incident took place on 12-7-1997 at about 2.00 to 2.30 p.m. when there was quarrel between the accused Namdeo and Kasturabai. People intervened and then everybody went to home. Kasturabai then brought kerosene from the house of mother and poured the same on her person and lit the match stick and set herself on fire. Thereafter Kasturabai started running and she went to the house of Nagorao Kakde, as a result of which shed of Tulsabai caught fire. He poured water and extinguished that fire after which Kasturabai went in his garden and was sitting in the water tank. This witness admitted that he was panch of one of the panchnama but he had not disclosed to the police that the deceased poured kerosene on her person and set herself on fire. This vital and major omission in his testimony goes to the root of his testimony and as such his testimony on this aspect cannot be believed on account of major omission amounting to contradiction. He admitted that his elder brother Sanjay knows Narmadabai. He also admitted that his brother Sanjay told him to give evidence in this case. He admitted that on the day on which incident took place he was mentally sick and was taking medicines prescribed by Dr. Deepak Kelkar. He also stated that on account of mental sickness he left the school and even till today he was under treatment of Dr. Kelkar. He admitted that on the day on which incident took place he was mentally sick and was taking medicines prescribed by Dr. Deepak Kelkar. He also stated that on account of mental sickness he left the school and even till today he was under treatment of Dr. Kelkar. In view of this evidence of D.W. 1 as also categorical evidence of prosecution which we have already referred, we find it extremely difficult to place any reliance on the testimony of this witness. 20. For the reasons stated above we do not find any merit in this appeal. We have noticed that the trial Court had imposed fine of Rs. 500/- and in default ordered Rigorous Imprisonment for one year. Sentence in default of payment of fine is rather very harsh and as such we are of the opinion that the sentence in default of payment of fine of Rs. 500/- is required to be reduced from one year to one month. Except for this modification in the sentence in default of payment of fine, the appeal is liable to be dismissed and is hereby dismissed. Appeal dismissed. -----