Judgment R. S. MOHITE, J. ( 1 ) BY this appeal the appellants Riyasbegum w/o. Mohd. Ismail (hereinafter referred to as "accused No. 1") and Mohd. Altamas s/o mohd. Ismail (hereinafter referred to as "accused No. 3") impugn a judgment and order dated 7-6-2000 passed by the Sessions Judge, Aurangabad, in Sessions case No. 257 of 1999. By the impugned judgment and order, while acquitting original accused No. 2 Mohd. Imran s/o Mohd. Ismail of all the charges, the present appellants i. e. original accused Nos. 1 and 3 were held guilty of the offence punishable under section 302 read with section 34 of the Indian Penal code and were sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/- each, in default to undergo further imprisonment for a period of one month. ( 2 ) THE brief facts of the prosecution case were as follows : (a) Accused No. 2 Mohd. Imran Mohd. Ismail was a resident of Azim colony in Aurangabad city. He had earlier married three women by name rahiyabegum, Nafisabegum and PW 4 Rakshandabegum. He had divorced all these three wives. Insofar as his third wife PW 4 Rakshandabegum was concerned, he used to beat her and demand money. Rakshandabegum had once brought Rs. 50,000/- from her parents and paid the said amount to original accused No. 2 Mohd. Imran. Notwithstanding this fact he continued to harass her for money and in November, 1998 he had asked her to bring Rs. 25,000/- failing which he had threatened to kill her. Rakshanda fearing for her life had fled to malegaon. Accused No. 2 had two children from his third wife PW 4 rakshandabegum by name Arman (PW 5) and Faizal. When Rakshanda had fled to Malegaon she had taken her children with her. However, in January, 1999, when the children were playing accused No. 2 kidnapped them and according to rakshandabegum, she had filed a case in Malegaon Court seeking custody of her children. On the date of the incident which occurred on 20-5-1999 the two children of Rakshanda were still residing in the house of original accused No. 2 mohd. Imran. (b) Deceased Sairabegum, the fourth wife of accused No. 2 was married to him about four months prior to the incident. After her marriage, she went to reside at her husbands house. On the date of the incident which occurred on 20-5-1999 the two children of Rakshanda were still residing in the house of original accused No. 2 mohd. Imran. (b) Deceased Sairabegum, the fourth wife of accused No. 2 was married to him about four months prior to the incident. After her marriage, she went to reside at her husbands house. She found out that three accused in this case used to raise quarrels with her over petty matters. She had reported about the quarrelsome attitude of the accused persons to her mother Saherabegum (PW7 ). (c) Four days prior to the incident i. e. on 16-5-1999 deceased Saira had been to her parental house for a family function. The accused persons had also come there and left on the same day. On 20-5-1999 PW 7 Saherabegum came to leave her daughter at her husbands house. At that time, all the three accused quarrelled with PW 7 Saherabegum and asked her as to why she had brought saira back. They suggested that she should have kept Saira in her own house. After being insulted in such a manner PW 7 Saherabegum left Saira at her husbands house and returned back to her home which was situated at Silk Mill colony at Aurangabad. (d) On 20-5-1999 at about 11. 30 p. m. an incident occurred in the house of original accused No. 2 Mohd. Imran in which deceased Saira suffered 95% burns. The burnt body of Saira was carried by her husband accused No. 2 Imran and her mother-in-law Riyazbegum to Ghati hospital in Aurangabad city. The record indicates that the burnt body of Saira reached the hospital at 1 pm. on 21- 5-1999. At the time of admission Saira herself gave the history of her homicidal burns in the following words : "my mother-in-law, brother-in-law and husband poured kerosene and set me on fire. I was asleep and awoke when kerosene was put on me. " it is the prosecution case that this history was recorded by PW 9 Dr. Nivrutti Limbabrao Wanole. After recording her history, Saira was transferred to the burns ward at about 1. 45 p. m. under the care of PW 12 Dr. Anil Degaonkar. While the process of admitting Saira to Ghati hospital was on and after the history was recorded by Dr. Nivrutti Limbabrao Wanole. After recording her history, Saira was transferred to the burns ward at about 1. 45 p. m. under the care of PW 12 Dr. Anil Degaonkar. While the process of admitting Saira to Ghati hospital was on and after the history was recorded by Dr. Wanole he informed about the contents of history given by Saira to the Police Chowki situated in the hospital premises. This communication was made by Dr. Wanole to one Police Constable Pankade. Police Constable Pankade in turn telephonically informed about the information given to him to Police Head Constable PW 6 Parmeshrao Wamanrao Jawle who was attached to the City Chowk Police Station. The Police Head Constable Jawle recorded the information received by him in a station diary (relevant entry being exhibit 27 ). He then handed over the inquiry to Police Sub-Inspector PW 11 murlidhar Bapurao Bahule. (e) PW 11 PSI Bahule immediately sent a requisition to the Special executive Magistrate Shashikant Bombale (PW3) requesting him to record the dying declaration of Saira. This requisition (Exhibit 20) was received by the special Executive Magistrate at 2. 30 a. m. on 20-5-1999. The said requisition was personally, handed over by PSI Bahule and hence. PW 3 Shashikant and PSI bahule both came together in the jeep of PSI Bahule to Ghati Hospital and went to Ward Nos. 22/23 where Saira was admitted. Both PW 3 Shashikant PSI bahule gave separate written requisitions to the Incharge Medical Officer Dr. Anil Deogaonkar (PW 12 ). Both the requisitions were relating to the fitness of the state of mind of Saira to give a dying declaration. The requisition given by the Special Executive Magistrate Shashikant Bombale was produced by the prosecution at Exhibit 54 and the requisition given by PSI Bahule was also produced, proved and exhibited at Exhibit 45. At 3 a. m. , after examining Saira dr. Anil Deogaonkar (PW12) gave an identical endorsement below Exhibit 45 as well as below Exhibit 54 to the effect that Saira was conscious oriented and may give a statement. After receiving such an endorsement from the Medical Officer on his requisition, the Special Executive Magistrate Bombale went to Sairas bed side which was pointed out to him by the Medical Officer. He found some persons near her bed and he requested them to go out of the ward. After receiving such an endorsement from the Medical Officer on his requisition, the Special Executive Magistrate Bombale went to Sairas bed side which was pointed out to him by the Medical Officer. He found some persons near her bed and he requested them to go out of the ward. Then he proceeded to ask Saira her name and age in order to establish her identity. He thereafter asked her as to how the incident had occurred and recorded the reply which she gave to him. In her dying declaration, Saira stated to Special Executive magistrate Shashikant Bombale that on 20-5-1999 at about 11. 30 p. m. , she had a quarrel with her mother-in-law and her brother-in-law. While the quarrel was going on, her husband arrived at home. Her mother-in-law and brother-in-law used to fight regularly with her over trivial matters. Her brother-in-law poured kerosene on her person and her mother-in-law lit a match-stick and set her on fire. All the three accused then caught her. She started screaming and at that time her husband put a quilt on her person and extinguished the fire. Later on, her husband brought her to Ghati Hospital for treatment. It was further mentioned in the dying declaration that the three accused had been harassing and troubling her since her marriage. That her statement had been translated and read to her in hindi and was in accordance with her say. After recording the said statement between 3 to 3. 20 a. m. on 21-5-1999, PW 3 Bombale obtained her thumb impression on the same. He also obtained an impression of another finger of saira in addition to the thumb impression. He put his seal and signature on the said document and handed over one copy to PSI PW 11 Bahule. (f) It appears that after her dying declaration was recorded by PW 3 bombale, PW 11 PSI Bahule also recorded a separate statement in the nature of dying declaration of Saira. He obtained her right thumb mark on this dying declaration (Exhibit 46) and put his signature on the said document. (g) Thereafter, PSI Bahule recorded the statement of PW 1 Abdul Rahisbrother of Saira - and on the basis of the said statement which he treated as the first information report (Exhibit 16) he registered the crime at 3. 45 p. m. . (g) Thereafter, PSI Bahule recorded the statement of PW 1 Abdul Rahisbrother of Saira - and on the basis of the said statement which he treated as the first information report (Exhibit 16) he registered the crime at 3. 45 p. m. . The offence was registered under Crime No. 117 of 1999 under section 307 of the indian Penal Code. After registering the offence PSI Bahule commenced the investigation and he first went to the spot of incident and prepared the spot panchanama (Exhibit 47) from 9 a. m. to 9. 45 a. m. on 21-5-1999. (h) While conducting the spot panchanama it was noticed that the house of the accused consisted of four rooms including a bed-room, kitchen and living room. There was a fencing around the house. In the bed-room an iron cot was found having a mattress, quilt and a bed-sheet thereon. The bed-sheet and the mattress were partly burnt. One plastic can containing 100 gms of kerosene was found in this room, so also a match box having live and burnt match sticks therein and smelling of kerosene was also found in the said room. Pieces of halfburnt nylon clothes belonging to the deceased and ash were also found in the bed-room. These half-burnt clothes were smelling of kerosene. In the living room, a half-burnt quilt was found. Outside this room, another iron cot was found and this cot also had a half-burnt mattress and quilt lying thereon. Two pillows, a mattress and another quilt were also found lying at the spot. Some of these articles, being the can of kerosene, match box, half-burnt pieces of salwar and nylon clothes belonging to the deceased were seized and sealed by the investigating Officer from the scene of offence under panchanama (Exhibit 47 ). (i) At 9. 50 a. m. on 21-5-1999 Saira expired at Ghati Hospital. The investigating Officer then performed an inquest panchanama (Exhibit 14) and sent the dead-body of Saira for post-mortem examination under a requisition (Exhibit 48 ). The Investigating Officer then recorded the statements of some witnesses. After the post-mortem examination was over, he handed over the dead-body of Saira to her brother and mother. He sent the seized property to the forensic Science Laboratory at Aurangabad under his requisition (Exhibit 49 ). The Investigating Officer then recorded the statements of some witnesses. After the post-mortem examination was over, he handed over the dead-body of Saira to her brother and mother. He sent the seized property to the forensic Science Laboratory at Aurangabad under his requisition (Exhibit 49 ). He arrested accused No. 1 Riyazbegum, sent her and her two grand children to the hospital since they had suffered burn injuries. On 22-5-1999 he recorded the statements of some more witnesses and directed Police Head Constable Ismail to proceed to Malegaon and record the statements of child witnesses and their mothers. Such statements were recorded by the police constable Ismail on 24-6-1999 at Malegaon and these were handed over to the Investigating Officer. On 6-6-1999 the Investigating Officer arrested the original accused No. 2 Mohd. Imran when he was discharged from the hospital where he was admitted on 21-5-1999 with 7% burns. He found that accused No. 3 Mohd. Altamash was absconding but he issued orders that he should be searched for. Altamash was traced and arrested on 1-7-1999. On 5-7-1999 the Investigating Officer recorded the statements of neighbours and after completion of the investigation he filed the charge-sheet in the Court of Judicial Magistrate, First Class, on 17-7-1999. Subsequently he received the reports of the Chemical Analyser at Exhibit 51 which were also sent by him to the Court. ( 3 ) AFTER committal of the case to the Sessions Court, a charge was framed and trial against the accused commenced. In support of its case the prosecution examined child eye-witness PW 5 Mohd. Arman. To prove the first dying declaration made by Saira and reduced to writing at the stage when the medical case history was being recorded the prosecution examined PW 9 Dr. Wanole. The said doctor produced true extracts from the medical admission register which contained the history as given by Saira and the same was thus duly proved and exhibited at Exhibit 38. The prosecution examined PW 1 Abdul Rahis - brother of deceased Saira - to prove her ill-treatment and also an oral dying declaration said to have been made by Saira to him at or about 3 a. m. on 21-5-1999. The prosecution examined PW 1 Abdul Rahis - brother of deceased Saira - to prove her ill-treatment and also an oral dying declaration said to have been made by Saira to him at or about 3 a. m. on 21-5-1999. PW 7 saherabee - mother of the deceased was examined to prove the ill-treatment meted out to Saira as well as to prove an oral dying declaration said to have been made by Saira to her at about 2. 40 a. m. on 21-5-1999. PW 3 Shashikant Bombale was examined to prove the first written dying declaration (Exhibit 21) said to have been made by Saira to PW 3 Bombale between 3 to 3. 20 p. m. on 21-5-1999. PW 12 Dr. Anil Deogaonkar was examined to prove the endorsement which he had made on the requisition (Exhibit 54) said to have been made by PW 3 bombale, PW 11 PSI Bahule was examined to prove the second written dying declaration said to have been made by Saira to him. Dr. Anil Deogaonkar (PW 12) was also examined to prove the endorsement on the requisition (Exhibit 45) made by PSI Bahule regarding mental state and fitness of Saira at the time of making of the endorsement. PW 11 Bahule also spoke about the investigation carried out by him. The prosecution examined other witnesses like PW 4 rakshandabegum, first wife of original accused No. 2 Mohd. Imran, PW 10 mushir - a panch to prove the spot panchanama who turned hostile and two further police witnesses being PW 6 Jawle who had received first telephonic call at 1. 45 a. m. from the Police Chowki in the hospital and PW 8 Mohd. Ismail who had been sent by the Investigating Officer to record the statement of PW 5 arman at Malegaon. ( 4 ) ON its part, the defence did not lead any evidence. In their section 313 statements the accused took a stand of total denial and false involvement. Accused No. 1 Riyazbegum came out with a case that she did not know how the incident occurred because she was sleeping. No positive case disclosing as to how exactly Saira came to suffer burn injuries was made by any of the accused persons in their section 313 statements. Accused No. 1 Riyazbegum came out with a case that she did not know how the incident occurred because she was sleeping. No positive case disclosing as to how exactly Saira came to suffer burn injuries was made by any of the accused persons in their section 313 statements. Based on such material before the trial court and after appreciating the same the trial Court passed the impugned judgment and order and this is how the appeal has come to be filed before us. ( 5 ) ON behalf of the accused it was vehemently contended that the dying declarations of Saira were not worthy of belief and ought to have been discarded by the trial Court. It was contended that there was material variance in the three dying declarations. In the first dying declaration of Saira and reduced to writing in the medical admission register, she stated that the accused had poured kerosene on her and had set her on fire. That she was asleep and had woken up when kerosene was poured on her body. In the second dying declaration recorded by PW 3 Bombale at Exhibit 22, firstly no endorsement of the doctor had been obtained thereon. In this declaration, the version given by Saira was materially different. She had talked about a quarrel with her mother-in-law and brother-in- law at 11. 30 p. m. and arrival of her husband while the said quarrel was going on. She had further stated that her brother-in-law had poured kerosene on her person and her mother-in-law had lit a match stick. All three accused persons had held her. She started screaming. At that time, her husband put a quilt on her body and had extinguished the fire. The contention was that the details contained in this dying declaration were at variance with the version recorded in the medical admission register particularly as the history in the said register indicated that saira had earlier stated that all the three accused had poured kerosene on her body. It was then contended that the third dying declaration recorded by PW 11 psi Bombale was also at variance with the story given by Saira. In this dying declaration, Saira was said to have stated that when she was asleep on 21-5-1989 at 11. 30 p. m. , her mother-in-law, brother-in-law and husband came near her and without any reason started a fight with her. In this dying declaration, Saira was said to have stated that when she was asleep on 21-5-1989 at 11. 30 p. m. , her mother-in-law, brother-in-law and husband came near her and without any reason started a fight with her. She was caught by two of them and her mother-in-law and brother-in-law poured kerosene on her, lit the match stick and threw the same on her clothes. When the clothes on her body caught fire, she tried to run out of the house and at that time all these three persons caught her and took her into the house. Her husband then the extinguished the fire by putting a quilt on her person. Later on, her husband and brother-in-law brought her to the hospital for medical treatment. It was contended that the versions given in three dying declarations contained substantial differences and in the circumstances the same should be disbelieved. Reliance was also placed on two judgments of the apex Court and one judgment of Division Bench of this Court to which we shall make a reference at a later stage. It was contended that the three dying declarations had been prepared subsequently by the police to falsely involve the accused. That the version of child eye-witness PW 5 Arman was not worthy of belief as this witnesses was under the care of the first wife of original accused no. 2 Imran i. e. PW 4 Rakshanda. The evidence of PW 4 Rakshanda indicated that she was inimical to her husband. Further it was clear that at the time of giving evidence PW 5 Arman was under the care of his mother Rakshanda and therefore, the possibility of tutoring this child witness could not be ruled out. It was thus contended that the prosecution had not proved its case beyond reasonable doubt and therefore, this was a case where the appeal filed by the accused persons should be allowed. ( 6 ) ON behalf of the prosecution, the learned Additional Prosecutor supported the reasoning and findings of the trial Court. It was contended that this was a case where there were three written dying declarations and an oral dying declaration made to her mother and brother. Even at the time of admission of saira to the hospital, she had implicated all the accused persons in the act of her burning. It was contended that this was a case where there were three written dying declarations and an oral dying declaration made to her mother and brother. Even at the time of admission of saira to the hospital, she had implicated all the accused persons in the act of her burning. The three written dying declarations and the oral dying declaration were consistent with each other and there was no major discrepancy. It could not be lost sight of that Saira must have been under great pain in the hospital and one could not expect her to give absolutely identical versions. It would suffice if none of the versions would falsify what was stated in the other and that very minor variations in the dying declarations would not result in the discarding the same. It was contended that the evidence of eye-witness PW 5 Arman was found acceptable by the trial Court as there was no major contradiction in his evidence. That the presence of Arman at the scene of offence had been admitted by accused no. 2 Mohd. Imran in his section 313 statement and in fact, Arman was an injured witness who suffered burn injures, which fact was also admitted by the accused in their section 313 statements. It was contended that the trial Court had correctly believed the evidence of the child eye-witness particularly when he was an injured witness whose version was corroborated by several other circumstances such as the finding of burnt quilts and mattresses at the scene of offence. It was pointed out that the accused had not given any explanation whatsoever as to how Saira had suffered burns. Accused No. 1 Riyasbegum had in fact came out with a false story that she did not know as to how Saira was burnt and she was sleeping. The incident had not occurred in the kitchen and therefore, the question of the burns being accidental was ruled out. That there was no suggestion that the death could have been suicidal. It was, therefore, urged that there was no substance in the appeal and that the same should be dismissed. ( 7 ) WE have heard both the sides at length and perused the entire record before us. After considering the entire matter, in our view, there is no substance in the appeal and same deserves to be dismissed for the reasons which are mentioned hereinbelow. ( 7 ) WE have heard both the sides at length and perused the entire record before us. After considering the entire matter, in our view, there is no substance in the appeal and same deserves to be dismissed for the reasons which are mentioned hereinbelow. 7 (A ). We are inclined to believe the evidence of child eye-witness PW 5 arman. This witness must have been six years old at the time of incident. When he entered the witness box he was a student of Mahatma Gandhi English School at Malegaon. His mother PW 4 Rakshanda appears to be an educated woman who had completed her B. Ed. course. The trial Court recorded a note at the time of evidence that the child witness understood the questions put to him in Hindi and answered most of the questions in cross-examination by a "yes" or "no" in english promptly. Arman stated that on the date of incident he and his brother were sleeping outside the house. He got up and went inside the house to drink water. Saira was inside the house. He saw his father and uncle setting Saira on fire and also saw his grand-mother lighting a match stick. Saira was sleeping. On these acts being committed. Saira shouted, his father closed her mouth and in this incident his leg was burnt due to a burning quilt falling on it. Same quilt also caused burn injuries on leg and back of his younger brother Faizal. His father took both the children to the hospital. Not a single contradiction or omission was brought out in the cross-examination of this child eye-witness. It was argued that the witness had admitted that on the date of the incident he and his brother were sleeping. That does not mean, however, that the version of this witness that he got up and went inside the house to drink water must be disbelieved particularly because there is no cross-examination on this version of the child eye-witness. We note that in their section 313 statements the accused admitted the presence of arman and his younger brother in the house. The fact that Arman and his brother suffered burn injuries is also admitted by accused No. 2 Imran. Once the presence of this witness at the spot of incident is established, his being an eyewitness to the incident becomes more natural. The fact that Arman and his brother suffered burn injuries is also admitted by accused No. 2 Imran. Once the presence of this witness at the spot of incident is established, his being an eyewitness to the incident becomes more natural. It may be that he may be initially sleeping but it is not impossible to believe that the child may have got up and gone inside the house to drink water. There is also sufficient corroboration to the evidence of this child witness on record. A match box containing live and burnt sticks was found at the place of incident. His version that he suffered burn injures is admitted. Burnt quilts were found at the scene of offence while same were inspected by the Investigating Officer immediately in the evening at 5 pm. Thus, we find no reason to discard the evidence of said child eye-witness. ( 8 ) THE first dying declaration given by Saira to Dr. Wanole (PW 9) was reduced to writing immediately after she was brought to Ghati hospital. The dying declaration was reduced to writing in the medical admission register (extract at Exh. 38) and the translated endorsement in Marathi is as follows : my mother-in-law, brother-in-law and husband poured kerosene and set me on fire. I was asleep and awoke when the kerosene was put on me. It was contended that the said dying declaration was vague and omnibus in nature. No specific overt acts against the accused were mentioned in the same, In our view, the non-recording of the details in the medical admission register does not detract from the fact that it was inculpatory of all the accused. The recording of the history when the patient was brought to the hospital was not part of the police investigation. At that stage, the doctor is more concerned with facilitating early treatment rather than the medico-legal aspects of the case. A doctor does not necessarily have to be an expert on the regarding of the dying declarations. Suffice to say that if the gist of what he has recorded inculpates the accused, the mere non-recording of each and every overt act by itself cannot be made a ground to assail the veracity or genuineness of the same. (a) The record indicates that at about 1. 30 to 2. 30 am accused No. 3 Mohd. Suffice to say that if the gist of what he has recorded inculpates the accused, the mere non-recording of each and every overt act by itself cannot be made a ground to assail the veracity or genuineness of the same. (a) The record indicates that at about 1. 30 to 2. 30 am accused No. 3 Mohd. Altamash came to the house of PW 7 Saberabee which was situated in aurangabad city itself and informed the inmates that Saira had suffered burns and had been admitted in the hospital. Saberabee and her elder son PW 1 Abdul rahis immediately went to Ghati Hospital and reached Ghati hospital at about 2. 30 am. The police made them to wait outside for ten minutes and thereafter allowed to them to meet Saira. On making inquiries between 2. 40 am and 3 am, saira told them that her brother-in-law poured kerosene on her and mother-in-law lit a match stick and set her on fire. When she was running the three accused persons had caught her and her husband Imran had held her throat. There is no contradiction in the evidence given by this witness. It does appear from the endorsement made in the medical admission register that Saira was duly conscious at 1 am on 21-5-1999. The doctor has further admitted that only an analgetic but no sedative was given to her. There was thus no reason for Saira to lapse into unconsciousness particularly when there was a further endorsement in the medical case papers that she was found conscious by the doctor at 3 am on the same night. This oral dying declaration is also consistent with the inculpatory statement made by Saira while giving history of burn injuries suffered by her. In our view, the trial Court rightly placed reliance on oral dying declaration said to have been made between 2. 40 and 3 am on 21-5-1999. ( 9 ) THE second written dying declaration was recorded by PW 3 Shashikant bombale, Special Executive Magistrate between 3 to 3. 20 am on 21-5-1999. This witness has stated that at about 2. 30 am PW 11 PSI Bahule came to him and gave him a requisition (Exhibit 20) requesting him to record the dying declaration of a woman who had sustained burns. 20 am on 21-5-1999. This witness has stated that at about 2. 30 am PW 11 PSI Bahule came to him and gave him a requisition (Exhibit 20) requesting him to record the dying declaration of a woman who had sustained burns. He signed the letter in acknowledgment of its receipt and went along with PSI Bahule in his jeep to Ghati Hospital. He went to ward No. 22/23 and inquired from the Medical Officer on duty about Saira. He gave a requisition (Exhibit 54) to the Medical Officer requesting him to state whether Saira was conscious or not. The doctor, after examining Saira, certified that she was in a position to speak. He then went to Sairas bed and asked the persons who were present near her bed to go out. He then asked her name and age to ascertain her identity and then asked her as to how the incident occurred. He recorded the information which was given by Saira, read over the statement to her and took her thumb impression mark below her statement. In his cross- examination he stated that he also took an impression of another finger in addition to the thumb impression of Saira on the dying declaration. He then put his own signature and seal on the document and handed over a copy of the same to PSI Bahule who was present in the hospital. In this dying declaration at exhibit 21, Saira stated that at about 11. 30 pm on 20-5-1999 there was quarrel with her mother-in-law and brother-in-law. At that time, her husband arrived. Her brother-in-law poured kerosene on her person and her mother-in-law set her ablaze with a matchstick. All three accused persons held her. She started screaming and at that time her husband put a quilt on her person and put out the fire. Thereafter her husband had brought her to Ghati hospital for treatment. It was argued that firstly the version given in this dying declaration was falsified by the information given by Saira in the medical admission register. It was contended that whereas in the medical admission register the act of pouring kerosene was attributed to all the three accused, in this dying declaration it was attributed to brother-in-law. It was argued that firstly the version given in this dying declaration was falsified by the information given by Saira in the medical admission register. It was contended that whereas in the medical admission register the act of pouring kerosene was attributed to all the three accused, in this dying declaration it was attributed to brother-in-law. As stated hereinabove, the entry in the medical admission register did not contain any detail and such details could not be expected to be recorded by the doctor at that stage. The said statement was not recorded in the course of any police investigation and was clearly a gist of what saira stated to the doctor who was then not concerned with the medico-legal aspects of the case. It was then argued that the inquest panchanama as well as the doctors evidence indicated that the fingers of Saira were burnt. In his cross- examination PW 12 Dr. Anil Deogaokar admitted that Saira had sustained burns on her toes and fingers. No further question had been asked in the cross- examination as to whether the burns were of such nature that no thumb impression or impression of any finger was possible. It is noted that the burns on upper two extremities were to the extent of 9%. Be that as it may, we find that since the thumb impression was not clear. Special Executive Magistrate Bombale had taken the impression of another finger of Saira on the dying declaration recorded by him. ( 10 ) RELIANCE was placed on an admission of PW 12 Dr. Anil Deogaonkar in his cross-examination to the effect that in the history he had made a mention of accidental burns in the medical case papers (Exhibit 55 ). This entry in Exhibit 55 made at 1. 50 am on 21-5-1999 is in the following terms : history narrated by the patient and attending relative. " h/o Accidental Burn of the body part at about 1 AM today on 21-5-1999. It is not specifically recorded in this entry as to exactly who had given this history. Obviously, this entry is incorrect as burns were not caused at 1 a. m. on 21-5-1999. This is clear from the endorsement in the medical admission register that the patient was already in the hospital at 1 am. In fact, it is an admitted position that the burns were caused at about 11. Obviously, this entry is incorrect as burns were not caused at 1 a. m. on 21-5-1999. This is clear from the endorsement in the medical admission register that the patient was already in the hospital at 1 am. In fact, it is an admitted position that the burns were caused at about 11. 30 pm on 20-5-1999. We have also in mind the fact that at 1. 15 pm on 21-5-1999 the only relatives of deceased saira present in the hospital were two of the accused and two minor children. Moreover, the cross-examination was not carried out to its logical conclusion and it was not asked to this doctor as to exactly who had given this history. The doctor vaguely stated that the history recorded by him was stated by Saira and her relatives. The possibility that such history of accidental burns given by one of the accused persons was therefore not ruled out and was left open. We thus do not place much reliance on this admission given by the doctor. In any case, the recording of any such history in a separate document cannot be a ground to assail a subsequent document like a dying declaration which made no mention of the injuries being accidental. In our view, the second written dying declaration made by Saira to PW 3 Bombale was rightly accepted as genuine by the trial Court and we have no hesitation in placing reliance on and accepting the same. ( 11 ) THE third dying declaration is said to have been given by Saira to pw 11 Bahule. It was pointed out that PW 11 Bahule was in the hospital when bombale recorded the second dying declaration between 3 to 3. 20 pm. According to PSI Bahule, he recorded the statement of Saira thereafter. But PSI Bahule had not specifically mentioned any time on the statement or given the time of recording in his evidence. It was argued that once the dying declaration of Saira had been recorded by PW 3 Bombale and a copy thereof was given to PSI Bahule there was no need for PSI PW 11 Bahule to record a third dying declaration. It was further contended that if at all PSI PW11 Bahule wanted to record a dying declaration after 3. 20 pm he should have taken a fresh endorsement of mental fitness of Saira from PW 12 Dr. It was further contended that if at all PSI PW11 Bahule wanted to record a dying declaration after 3. 20 pm he should have taken a fresh endorsement of mental fitness of Saira from PW 12 Dr. Deogaonkar just prior to the actual recording of a third written dying declaration. It was contended that this third written dying declaration reads as if it is a police statement and it was unnatural for the lady with 95% burns to give such a detailed statement beginning with the details of her personal life. It was lastly contended that if at all PSI Bahule had recorded this third dying declaration then he should have treated it as the first information report and should not have treated the statement of PW 1 Abdul as the first information report for registering the offence at 3. 45 pm on 21-5-1999. There is some substance in the contents of the learned Advocate for the accused and therefore, we do not propose to rely on the third dying declaration said to have been made by Saira to PSI Bahule. It appears that PSI Bahule already had in his hand a copy of the statement of Saira recorded by PW 3 Bombale and given to him. We only note that there is no major discrepancy in the third written dying declaration recorded by PSI Bahule and the second written dying declaration recorded by PW 3 Bombale. ( 12 ) IN the circumstances, the eye-witness account given by child eyewitness PW 5 Arman and corroborated by the circumstances, the oral dying declaration given by Saira to PW 1 Abdul and PW 7 Saberabee - brother and mother of the deceased and the two written dying declarations recorded in the medical admission register and by the Special Executive Magistrate PW 3 bombale are acceptable. In our view the same can be made the basis of conviction. The prosecution version is further supported by the finding of kerosene on the burnt pieces of clothes belonging to deceased and recovered from the spot and the finding of kerosene in the kerosene can which was also seized from the spot. There is also a complete lack of explanation on the part of the accused Nos. 1 and 2 to explain as to how Saira caught fire though they were admittedly in the house. This is another circumstance against them. There is also a complete lack of explanation on the part of the accused Nos. 1 and 2 to explain as to how Saira caught fire though they were admittedly in the house. This is another circumstance against them. The incident took place in the late hours of 20-5-1999. Admittedly accused Nos. 1 and 2 were present in the house at the time of the incident which occurred at 11. 30 pm. Accused No. 3 claims to have gone to see a movie. We would have expected some explanation about the manner in which Saira suffered burn injuries coming forth from these two accused Nos. 1 and 2 who were admittedly present in the house. We find that no explanation has been given by accused Nos. 1 and 2. On the contrary, accused No. 3 Mohd. Altamash was absconding for a month and ten days after the incident. ( 13 ) THE learned Advocate for the appellants - accused Nos. 1 and 3 referred to three authorities in support of his contentions. The first authority referred to by him was the case of Pachdeo Singh vs. State of Bihar, 2002 cri. LJ. 973. Reliance was placed on the following observations of the Apex court :"there is no format as such of dying declaration neither the declaration need be of any longish nature and neatly structured. As a matter of fact, perfect working and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the Court since dying declarations need not be drawn with mathematical precision - the declarant should be able to recollect the situation resulting in the available state of affairs. "this case was cited in relation to neatly structured dying declaration recorded by PSI PW 11 Bahule. We have not placed any reliance on the said dying declaration and hence, the above authority is of no avail to the learned advocate for the appellants. ( 14 ) SECOND authority relied upon was the judgment of the Apex Court in the case of State of Punjab vs. Parveen Kumar, 2004 AIR SCW 6897. In that case death was by burns and the allegations in the first dying declaration recorded by the Magistrate were solely against the husband. In the second dying declaration, the allegations were against the husband and other co-accused persons. In that case death was by burns and the allegations in the first dying declaration recorded by the Magistrate were solely against the husband. In the second dying declaration, the allegations were against the husband and other co-accused persons. The versions in both the dying declarations were quite different and not consistent with each other. No other corroborative evidence was available. In the circumstances, the Apex Court held that mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting named person. In our view, the facts of the aforesaid case are completely different from the facts of the present case. In the present case, the dying declarations upon which we have placed reliance have been found by us consistent and all the accused persons including accused No. 2 to whom benefit of doubt was given, were named therein. ( 15 ) THE third authority relied on was the judgment delivered by the division Bench of this Court (to which one of us S. B. Deshmukh, J. was a party) in the case of Suresh s/o Arjun Dodorkar (Sonar) vs. State of Maharashtra, 2005 all MR (Cri) 1599. In this judgment also, in paragraph 9 the Division Bench noted that a perusal of both the dying declarations revealed that there were inter se variance. In the first dying declaration Vimal stated that the appellant under the influence of liquor used to beat her as he was of suspicious nature. When she had asked him to take his dinner the appellant had quarrelled with her and therefore, in anger she had gone to sleep. While she was asleep, the appellant had poured kerosene on her and had set her ablaze. In the second dying declaration vimal had stated that in the evening she had sent the daughter of her neighbour for purchasing wheat, but as the said girl had not gone she had herself gone and purchased wheat. According to her, the appellant, on his return, asked her as to why she had gone for purchasing wheat and what was the relationship between her and the shopkeeper. Then the appellant went out of the house and returned back at about 7. 00 or 7. 30 p. m. carrying a small plastic can of kerosene. According to her, the appellant, on his return, asked her as to why she had gone for purchasing wheat and what was the relationship between her and the shopkeeper. Then the appellant went out of the house and returned back at about 7. 00 or 7. 30 p. m. carrying a small plastic can of kerosene. Vimal has asked her husband to take his dinner but her husband had said that he would not eat anything prepared by her as she was of loose character. On so saying her husband poured kerosene on her and set her ablaze. In the aforesaid circumstances, the Division Bench made the following observations :"all dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself. In these two dying declarations there is consistency in respect of the name and the number of accused. However, in respect of the prelude to the incident there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declarations and can be discerned from the perusal of the same. Therefore, according to us, no reliance can be placed on the two written dying declarations at Exhs. 24 and 27, as acceptance of any one dying declaration necessarily renders the other as false. If in the dying declaration the truthfulness of the narration itself is rendered doubtful no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent in both the dying declarations would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In case where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. In our opinion, therefore, no reliance can be placed on the dying declarations at Exhs. 24 and 27. "we find that the facts of the present case are different. In the dying declarations on which we have placed reliance, we find that there is no material variance. In our opinion, therefore, no reliance can be placed on the dying declarations at Exhs. 24 and 27. "we find that the facts of the present case are different. In the dying declarations on which we have placed reliance, we find that there is no material variance. ( 16 ) IN the result and for the reasons mentioned hereinabove, the appeal is dismissed. The appellants shall surrender to serve their sentence on or before 30-11-2005. Their bail-bonds stand extended till the date of their surrender or till 30-11-2005 whichever is earlier and shall stand cancelled thereafter. In case the appellants do not surrender to their bail on or before 30-11-2005, the Sessions judge, Aurangabad, shall issue a non-bailable warrant to arrest them and on their arrest send them to jail for serving out their sentences. Appeal dismissed.