Judgment PRASANNA B. VARALE,J.:- Being aggrieved by the judgment and order dated 06th February, 2004 passed by the 4th Additional Sessions Judge, Nagpur in Sessions Trial No.319 of 2002 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine ofRs.500/- and in default of payment of fine to undergo rigorous imprisonment for three months, the appellant has preferred the present appeal. 2. The case of the prosecution in brief is as under :- The appellant (original accused) was married to Shalu (deceased) about three years prior to the incident which took place on 25.02.2002. The couple had a daughter aged about nine months from the said wedlock. They were residing at village Sonegaon. The appellant was insisting his wife Shalu to bring Rs.20,000/- from her parents. At the time of the marriage, the parents of Shalu gave Rs.10,000/- to the appellant/accused for ornaments and utensils. The appellant was making demand of Rs.20,000/- on and of and was ill treating Shalu for non payment of the amount. It is further the case of the prosecution that the appellant was raising doubts about the character of Shalu. Whether Shalu used to visit her parents, she used to tell the agony faced by her. Bhaurao, father of Shalu and her brothers tried to convince the appellant/accused and requested him to treat Shalu properly. 3. On the unfortunate day i.e. on 25.02.2002, the appellant/accused made a demand of Rs.20,000/- to Shalu and when inability was shown by Shalu, he poured kerosene on the person of Shalu and set her on fire. The appellant/accused himself admitted Shalu in Mayo Hospital, Nagpur for treatment. The information about the incident was received by the father of Shalu who immediately rushed to Mayo Hospital along with his relatives. Bhaurao visited Shalu in the hospital and on asking Shalu, she told that the appellant/accused set her on fire on the ground of raising suspicion about the chastity and non payment of Rs.20,000/-. Bhaurao lodged the report and on the basis of the report, an offence came to be registered by the police under Sections 307 and 498-A of the Indian Penal code as well Sections 3 and 4 of the Dowry Prohibition Act at Police Station, Kalmeshwar. Bhaurao lodged the report and on the basis of the report, an offence came to be registered by the police under Sections 307 and 498-A of the Indian Penal code as well Sections 3 and 4 of the Dowry Prohibition Act at Police Station, Kalmeshwar. A requisition was sent to Special Judicial Magistrate for recording the dying declaration of Shalu and accordingly the Special Judicial Magistrate recorded the dying declaration in the hospital. Shalu, who was under treatment, succumbed to the injuries on 02.03.2002. Pursuant to the investigating agency was set in motion and the Investigating Officer took up various steps in the investigation, such as recording the dying declaration, drawing various panchanamas such as inquest panchanama, the spot panchanama, the seizure panchanama of the articles which were seized from the spot of the incident, seeking opinion of the Medical Officer who performed the autopsy on the body of Shalu, receiving the Chemical Analyser's Report of the articles which were forwarded to the Chemical Analyser. After completion of the investigation, the charge sheet was filed before the learned Judicial Magistrate under Section 302 of the Indian Penal Code. The offence being exclusively triable by the Court of Session, the case was committed to the Court of Session. The defence of the accused was of total denial. It was further defence of the accused that Shalu died in an accident while she was cooking and in an attempt to save her, the accused himself also got burn injuries. The learned Sessions Judge, on appreciation of evidence, found that the evidence brought by the prosecution was sufficient to hold the accused guilty and the accused was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment with fine of Rs.500/-, in default, to suffer rigorous imprisonment for three months. The judgment of the learned trial Court is under challenge. 4. Shri. R. R. Shrivastava, the learned Counsel appearing on behalf of the appellant submitted that there is no direct evidence against the accused and the prosecution case rests only on the circumstances such as the dying declaration and the C.A. Report. He further submitted that these pieces of the evidence are weak pieces and as such learned trial Judge ought not to have relied on such weak pieces of evidence. He further submitted that these pieces of the evidence are weak pieces and as such learned trial Judge ought not to have relied on such weak pieces of evidence. The learned Counsel further submitted that the death of Shalu was accidental which occurred while Shalu was cooking and the appellant who tried to save Shalu also received injuries which is a circumstance to show the innocence of the appellant/accused. 5. Per contra, Shri. T.A. Mirza, the learned Additional Public Prosecutor appearing on behalf of the respondent/State supported the impugned judgment passed by the trial Court. 6. With the assistance of the learned Counsel appearing on behalf of the appellant and the learned Additional Public Prosecutor appearing on behalf of the respondent/State, we have gone through the evidence on record. 7. It is not in dispute that the case before us rests on the circumstantial evidence. The circumstances which are relied upon by the prosecution are, the death of the deceased Shalu being homicidal, the dying declarations i.e. written dying declaration recorded by Special Judicial Magistrate and oral dying declaration made to the mother and father by deceased Shalu in the hospital, the documentary evidence in the form of CA Report, PM Report, inquest panchanama, requisition forwarded to Special Judicial Magistrate etc.. 8. The first and foremost question before us is about the death of deceased Shalu. The prosecution in support of its case that the deceased Shalu died homicidal death, heavily relied on the PM Report which is at Exh.24. The PM Report is admitted by the defence. The Medical Officer, who had issued the PM Report, was not examined by the prosecution, but as mentioned above, the PM Report is admitted by the defence. Perusal of Column No.17 of the Postmortem Report discloses that the deceased had the following external injuries :- Infected burn injuries with sloughing and tissues at places Mercury chrome pointed over the body: Head neck face 07% Trunk – Anterior 16% Posterior - 18% Upper limbs – Right 09% Left 09% Lower Limbs - Right 14% Left - 16% Perineum - 00% Total 89% Column No.20 discloses the position of thorax, as under :- (a) Wall, ribs, cartilages .. Intact. (b) Pleura .. Congested. (c) Larynx, Trachea .. Congested, and Bronchi secretion percent (d) Right Lung .. Congested, edematous bilated purging consolidated rear in a stage of red hapatization suggestive of. (e) Left Lung .. Intact. (b) Pleura .. Congested. (c) Larynx, Trachea .. Congested, and Bronchi secretion percent (d) Right Lung .. Congested, edematous bilated purging consolidated rear in a stage of red hapatization suggestive of. (e) Left Lung .. Broncho. (f) Pericardium .. Intact. (g) Heart with weight .. NAD, blood and cloth (h) Large vessels (i) Additional remarks .. Nil. The cause of death as opined by the Medical Officer in the Post-mortem Report is "Septicaemica due to burn injuries". 9. The inquest panchanama (Exh.25) is proved through the Investigating Officer (PW-8 Dwarkaprasad Mishra). The inquest panchnama shows that the mouth and whole body were burnt. There were burn injuries from right side waist to elbow and the bristles had resulted there. Front and back side portions were burnt as a result of which the bails were appearing there and it was observed that the body was burnt to the extent of 95%. In view of the Post-mortem Report which is corroborated by the inquest panchanama, we have no hesitation to hold that deceased Shalu died homicidal death. 10. The next question which falls for our consideration is about the complicity of the appellant in commission of the crime. The prosecution to connect the appellant with the crime in question, heavily relies on the dying declaration (Exh.47). The dying declaration (Exh.47) is recorded through PW-7 Prakash Kanchankar. PW -7, in his testimony, deposed that on receiving the requisition from the police authorities of Kalmeshwar Police Station, he had been to Mayo Hospital. He further deposed that on verification from the Medical Officer, he recorded the dying declaration of Shalu which was in the form of questions and answers. Prakash further deposed that he himself ascertained about the fitness of Shalu and at the conclusion of the dying declaration, he obtained the thumb impression. 11. Shri. R. R. Shrivastava, the learned Counsel for the appellant submitted that the prosecution has not examined the Medical Officer who has certified the fitness of Shalu and as such there is nothing on record to show that Shalu was in a fit condition to make statement and this assumes an importance in view of the fact that Shalu had extensive burns and as such it was difficult for her in such a state to make a detailed declaration. The learned Counsel further contended that the perusal of dying declaration discloses that the dying declaration gives the reason of non fulfillment of demand of Rs.20,000/-. But, there is no suspicion raised by the appellant about the character of Shalu and as such, the prosecution has not come before the Court with true fact. We find merit in the submissions of the learned Counsel for the appellant. He further submitted that as PW -7 has not deposed as to the contents of the dying declaration, the dying declaration is unsustainable in the eyes of law and to support the submissions, the learned Counsel relies on the judgment of this Court in the case of Deorao Sonbaji Bhalerao and another V s. State of Maharashtra(reported in 2008ALL MR (Cri) 1921), to which one of us (A.P. Lavande, J.) was party. In view of the above mentioned facts, we are in agreement with the learned Counsel for the appellant that the dying declaration (Exh.47) cannot be relied upon. 12. In our considered opinion, even though the dying declaration (Exh.47) is kept out of consideration, there is oral dying declaration made by Shalu to Bhaurao (PW-1) and Bebi (PW -4) as well as Ramkrishna (PW5). Bhaurao (PW-1) deposed that after the marriage of Shalu with the appellant Ramdas, whenever she used to visit her parents, she informed that Ramdas was ill treating her raising suspicion over the character of Shalu. Bhaurao further deposed that though he thought that the behaviour of appellant would improve, there was no change in his behaviour and as such he was not ready to send Shalu to her matrimonial house. But, at the intervention of Raju and MurIidhar (cousin brothers of appellant), he sent Shalu to her matrimonial house. He further deposed that on information that Shalu was admitted in the Mayo Hospital because of the bums, he along with his brother Narayan and son Ramkrishna, went to the hospital. He further deposed that on enquiry with Shalu, she told him that the appellant was harassing her for amount of Rs.20,000/- and, therefore, he set herself on fire. Bhaurao was subjected to the cross-examination and omission in respect of demand of Rs.20,000/- was brought. It was also brought in the cross-examination that the appellant Ramdas admitted Shalu in the hospital. The report (Exh.44) lodged by Bhaurao is on record. Bhaurao was subjected to the cross-examination and omission in respect of demand of Rs.20,000/- was brought. It was also brought in the cross-examination that the appellant Ramdas admitted Shalu in the hospital. The report (Exh.44) lodged by Bhaurao is on record. Perusal of report shows that in the report Bhaurao mentioned that Shalu disclosed to him that the appellant Ramdas was suspecting her chastity and asked her to bring an amount of Rs.20,000/- and on saying so he poured kerosene on her person and set her on fire. 13. Bebi (PW -4) who is the mother of Shalu, deposed that it was not possible to accede to the demand of the appellant because of their financial position. She further deposed that the information was received from one friend of Ramdas and also from the brother of Ramdas (appellant) that Shalu was admitted in the Mayo Hospital because of the bum injuries and on receiving the information, she, along with her son, went to the Mayo Hospital. Bebi further deposed that when she went to the hospital and visited Shalu, Shalu told her that the appellant poured kerosene on her body and set her on fire by lighting a match stick. She further deposed that it was stated by Shalu that the appellant after setting Shalu on fire, he went out of the house. Though the witness was subjected to the cross-examination, nothing tangible was brought to discredit the version of this witness. This witness was unshaken. Though the suggestion was given to the witness that Shalu got accidental bums while cooking tea, the same was denied by the witness. In our opinion, PW -4 Bebi, the mother of Shalu is a reliable witness and she has given the truthful account. PW-5 Ramkrishna is the brother of Shalu and he corroborates the version of PW-4 Bebi. PW -5 Ramkrishna also not shaken during cross-examination. PW-l Manohar and PW-2 Surekha are the neighbours of the appellant and their evidence with respect to shows that the appellant was in the habit of picking up quarrels with Shalu and was raising suspicion about the chastity of Shalu. These witnesses deposed that Shalu was the second wife of appellant Ramdas and his first wife took divorce from the appellant as he was suspecting her chastity. 14. These witnesses deposed that Shalu was the second wife of appellant Ramdas and his first wife took divorce from the appellant as he was suspecting her chastity. 14. The oral dying declarations made to PW-4 Bebi, and PW-5 Ramkrishna, inspires confidence for the reason that Bebi is the mother of deceased Shalu and Ramkrishna is the brother of Shalu and as such it was natural that when the mother and brother visited Shalu in the hospital, she would kill them about the incident and the person who set her on fire. We find no infirmity in the version of these witnesses. The relation of these witnesses i.e. being mother and brother, is no ground to reject their testimony which is trustworthy and inspires confidence. 15. Shri. R. R. Shrivastava, the learned Counsel for the appellant, by referring to Exh.12 and information forwarded from police booth at Mayo Hospital, submitted that as per the information, it was informed that the patient ignited a stove for preparing tea and the same abruptly got flared up, as a result of which the patient sustained bums to the extent of 79%. The information further mentions that when patient No.2 (Ramdas/appellant) went to extinguish Shalu, he sustained bums to his both palms. The learned Counsel further submitted that in view of the said information and in view of the injuries caused to the appellant, the appellant cannot be held responsible for the death of Shalu. We are not in agreement with the submission of the learned Counsel for the appellant for the reason that the said information (Exh.12) was forwarded on the basis of the information given by the appellant himself. In view of these facts, we are not in agreement with the learned Counsel for the appellant that Shalu received the bum injuries as a result of accident. The articles which were recovered from the spot of incident such as burnt pieces of saree and petticoat of deceased Shalu, the soil mixed with kerosene, the match box and match stick, pieces of broken bangles were forwarded to the Chemical Analyser and the residues of kerosene were found on these articles. The clothes i.e. shirt and trousers worn by the appellant which were seized were also forwarded to the Chemical Analyser and the CA Report discloses the residues of kerosene on the clothes of the appellant. The clothes i.e. shirt and trousers worn by the appellant which were seized were also forwarded to the Chemical Analyser and the CA Report discloses the residues of kerosene on the clothes of the appellant. The crime details form (Exh.26) which include the details of the spot and which is proved by the Investigating Officer, discloses that the burnt pieces of cloth and bangles were lying near the iron cot. The match box and burnt match stick were also found nearby. The incident took place near the iron cot and no stove or any cooking material was found in the room. In the absence of any cooking material such as stove or utensils, the defence of the appellant that deceased Shalu got accidental bums while she was cooking is not at all sustainable. 16. The above mentioned circumstances, which are proved by the prosecution, certainly connect the appellant with the commission of crime. Therefore, the conviction of the appellant for the offence punishable under Section 302, I.P.C. And sentence imposed on him cannot be faulted. 17. In the result thereof, the appeal is dismissed. Appeal dismissed.