JUDGMENT : L. Mohapatra, J. - Convicted u/s 302 of the Indian Penal Code (in short 'I.P.C.') and sentenced to imprisonment for life in Sessions Case No. 64 of 1997, Appellant has preferred this appeal against the judgment of the learned Additional Sessions Judge, Rayagada in the aforesaid case. 2. The case of the prosecution is that the informant-P.W.1 is a resident of village Debodala and is a driver by profession. He lodged the F.I.R. on 17.6.1997 alleging therein that his wife P. Padma (the deceased) had purchased certain clothes on credit from the Appellant who is otherwise known as Senapati for a sum of Rs. 2,000/-. The deceased had promised to pay the amount in monthly instalments of Rs. 200/-. She could not pay the instalments for the months of May and June 1996 for which the Appellant came to her house at 2 P.M. on 16.6.1996 and demanded payment of money. When the deceased expressed the difficulties for which she could not pay the amount, there was hot exchange of words and the Appellant left the place saying that he would come again at 8 P.M. to collect the money. The informant had to leave for Rayagada for his personal work and in his absence the Appellant came to his house, picked up quarrel again with the deceased and poured kerosene and set the deceased to fire as a result of which the deceased died. The villagers sent information to the Fire Brigade which extinguished the fire and took the deceased in a half burnt condition to Rayagada Hospital. The Doctor at the hospital recorded the dying declaration of the deceased while undergoing treatment but she succumbed to the injuries at 3 A.M. at night. The occurrence having taken place within Chandili P.S., the F.I.R. was transmitted to the said Police Station and investigation was taken up. On completion of investigation, charge-sheet was submitted against the Appellant for commission of offence u/s 302 of the I.P.C. 3. The prosecution in order to establish the charge examined 13 witnesses whereas none was examined on behalf of the Appellant. From the statement of the Appellant recorded u/s 313 Code of Criminal Procedure. it appears that he denied the prosecution case and took a plea that his name is not Senapati and he does not know the deceased P. Padma. The prosecution in order to establish the charge examined 13 witnesses whereas none was examined on behalf of the Appellant. From the statement of the Appellant recorded u/s 313 Code of Criminal Procedure. it appears that he denied the prosecution case and took a plea that his name is not Senapati and he does not know the deceased P. Padma. He also denied to have any such cloth business or to have given any cloth to the deceased or her husband worth of Rs. 2,000/- on credit and also stated that he had no knowledge as to how the deceased died. On the basis of the case of the prosecution as well as the defence, the trial court formulated three points for determination. The first one is as to whether the Appellant is known as Senapati in the area where the occurrence took place and as to whether he was having any cloth business by selling the same from door to door. The second point formulated was as to whether the Appellant was the author of the crime and the third point formulated was with regard to the reliability of the dying declaration. 4. Out of 13 witnesses examined by the prosecution, P.W.1 is the informant and husband of the deceased.P. Ws.2, 3 and 4 are neighbours of the deceased. P.W.5 is the sister of the deceased and P.W.6 is a witness who knows the Appellant to be a cloth dealer. P.W.7 found the house of P.W.3 burning and also found the deceased lying being burnt by fire. He along with others extinguished the fire when the Fire Brigade vehicle arrived. P.W. 8 is another witness who knew the Appellant and had also seen the deceased coming out of her house in a burning condition and entering into the house of P.W.3. P.W.9 is the Doctor who was in emergency duty on the date of occurrence and this witness has also recorded the dying declaration. P.W. 10 is another Doctor who is senior to P.W.9 and was present at the time of recording of the dying declaration. P.W.9 is the Doctor who was in emergency duty on the date of occurrence and this witness has also recorded the dying declaration. P.W. 10 is another Doctor who is senior to P.W.9 and was present at the time of recording of the dying declaration. P.W.11 is the scribe of the F.I.R. and P.W.12 is a witness who speaks about the dying declaration and P.W.13 is the I.O. The trial court on the basis of the evidence adduced before it held that the Appellant is otherwise known as Senapati and on the basis of the dying declaration found the Appellant guilty of the charge and convicted him thereunder. 5. The learned Counsel for the Appellant assailed the impugned judgment on the ground that neither the oral dying declaration nor the recorded dying declaration can be accepted in a court of law. If the court does not accept the dying declaration, there is no other material on the basis of which the judgment of the trial court can be sustained. It was also vehemently contended by the learned Counsel that the Appellant and Senapati who is alleged to have committed the offence are two different persons and the Appellant has been wrongly entangled in the case. learned Counsel for the State referring to the evidence submitted that there is no reason for the court to either discard the recorded dying declaration or the oral dying declaration and therefore, there is also no reason for this Court to interfere with the impugned judgment. 6. On consideration of the submissions of the learned Counsel appearing for the Appellant as well as the State, this Court is called upon to decide as to whether the Appellant is otherwise known as Senapati or not. The Court is also called upon to examine the oral and recorded dying declaration and come to a conclusion as to whether both or either can be accepted in order to sustain the order of the trial court. P.W.1 is the husband of the deceased and is also the informant in this case. In his deposition he stated that he knows the Appellant who is a dealer in cloth and the Appellant stays at J.K. Pur. It is further stated that the Appellant was selling cloth by moving in different villages but he has also a shop at his own residence. In his deposition he stated that he knows the Appellant who is a dealer in cloth and the Appellant stays at J.K. Pur. It is further stated that the Appellant was selling cloth by moving in different villages but he has also a shop at his own residence. His wife the deceased had purchased some clothes from the Appellant worth of Rs. 2,000/- and she was required to clear the dues in monthly instalments of Rs. 200/-. Four instalments had already been paid and the Appellant was to come to collect the rest of the instalments from them. On 16.6.1996 when he was in his house, the Appellant came at about 3 P.M. to collect money and he requested him to collect the amount on the next day due to shortage of cash. The Appellant abused him and left the place saying that he would come in the evening to collect the money. Thereafter this witness left for Rayagada at 5 P.M. and returned home at about 10 P.M. When he returned home, he did not find any one in the house and came to know from the neighbour that the Appellant had come to his house at about 8 P.M. and picked a quarrel with his wife and set her ablaze by pouring kerosene on her. He thereafter went to Rayagada hospital to see her. He has further stated that at 11 P.M. when he saw his wife, she was capable of talking and to his query she stated that the Appellant had come to the house and demanded money and when she refused to pay, the Appellant poured kerosene and set fire to her body. She also stated that the Appellant fled away after setting fire on her body. This witness has also stated that the Appellant is also known as Senapati though his name is China Rao. Therefore, this witness states about the identity of the Appellant as well as the oral dying declaration. P.W.2 is a neighbour of the deceased. She also stated that the Appellant fled away after setting fire on her body. This witness has also stated that the Appellant is also known as Senapati though his name is China Rao. Therefore, this witness states about the identity of the Appellant as well as the oral dying declaration. P.W.2 is a neighbour of the deceased. This witness was examined by the prosecution to say that she had seen the Appellant twice on the date of occurrence quarrelling with the deceased, once at 2 P.M. and again at 5 P.M. However, this witness in her deposition has stated that on the date of occurrence, hearing a noise she came out of the house and found the house of Dalimba Naik-P.W.3 burning and she also saw the deceased burning. In cross-examination, she has specifically stated that she had not stated to the I.O. that on the date of occurrence she had seen the Appellant twice quarrelling with the deceased. Therefore, this witness can only be treated as a post occurrence witness. Her evidence only proves that the deceased was burning when she came out of the house. P.W.3 has only stated that after the deceased caught fire, she came into her house as a result of which her house also caught fire. P.W.4 has only stated that the deceased died for burn injuries but in cross-examination he has stated that the Appellant is also known as Senapati. P.W.5 is a witness to the oral dying declaration and is the sister of the deceased. She in her deposition has stated that on her query, the deceased replied that she was not able to pay the dues of the Appellant for which the Appellant set her to fire by pouring kerosene on her body. P.W.6 is a witness to Ext.6 and P.W.7 in his deposition has stated that while returning from J.K. Pur he found the house of P.W.3 burning and when he went near the spot he also found the deceased lying on the ground with burn injuries and thereafter he along with others extinguished the fire in the house of P.W.3. P.W.8 has been declared hostile and he appears to have said something before the police and a different story in the court. P.W.9 is the Doctor who received the deceased in the hospital with 90% burn injuries. P.W.8 has been declared hostile and he appears to have said something before the police and a different story in the court. P.W.9 is the Doctor who received the deceased in the hospital with 90% burn injuries. He has stated that anticipating death and looking at the serious condition of the deceased he thought it proper to record her dying declaration and accordingly in presence of P.W.10, another Doctor, he recorded the dying declaration. He has also specifically stated that the deceased was in a conscious state of mind to give answers to the questions. He has further stated that he recorded the dying declaration in presence of witnesses and obtained the signature of the witnesses also in the recorded dying declaration. The signature/thumb impression of the deceased could not be taken as her palm, fingers and the body was affected by burn injuries. He has also stated that the deceased was admitted on 16.6.1997 at 8.40 P.M. and her treatment started from that time. She was conscious at the time of admission and the treatment continued up to 2.30 A.M. when she succumbed to the injuries. He has also stated to have recorded the dying declaration at about 9.45 P.M. but he admits in cross-examination that he has not certified in the recorded dying declaration that the deceased was in a fit state of mind to answer the questions. However, he has denied the suggestion that the deceased was not mentally fit to give answer to his question. P.W.10 is the Surgery Specialist who conducted the postmortem examination. He has stated that the deceased had 99% 2nd degree burnt injuries and died due to the burn injuries. P.W.11 is the scribe of the F.I.R. and P.W.12 is another witness who has stated that the deceased declared to have been set fire by the Appellant with use of kerosene before P.W.1 and when such statement was made he was present. P.W.13 is the I.O. 7. Coming to the question of identity, it is established beyond any doubt from the evidence of P. Ws.1 and 4 that the Appellant is otherwise known as Senapati and was staying in J.K. Pur and was also selling cloth from door to door in different villages. P.W.13 is the I.O. 7. Coming to the question of identity, it is established beyond any doubt from the evidence of P. Ws.1 and 4 that the Appellant is otherwise known as Senapati and was staying in J.K. Pur and was also selling cloth from door to door in different villages. We have carefully examined the cross-examination of these two witnesses and did not find anything to disbelieve the claim of these two witnesses that the Appellant is otherwise known as Senapati or that he was dealing with business of selling clothes from door to door in different villages. 8. So far as the oral dying declaration is concerned, prosecution relies upon the evidence of P. Ws.1, 5 and 12. P.W.1 is the husband of the deceased. P.W.5 is the sister of the deceased and P.W. 12 is an independent witness. The I.O., P.W. 13 has stated that P.W.1 never stated before him that he had met the deceased after occurrence at the hospital and on enquiry the deceased told him that Senapati poured kerosene and set fire on her body when payment was not made to him. He had also not stated before the police that the deceased was in sense when he arrived at the hospital. Similarly P.W.5 had also not stated before the police that she had asked the deceased 4 to 5 times regarding the cause of death. Therefore, the evidence of P. Ws.1 and 5 so far it relates to oral dying declaration is not free from doubt. P.W.12 claims to be present when the oral dying declaration was made before P.W.1. If the claim of P.W.1 regarding oral dying declaration is not accepted, it may not be possible on the part of the court to rely upon P.W.12 so far as oral dying declaration is concerned. Apart from the above, it appears from the evidence of P.W.1 that for the first time he met the deceased in the hospital at about 11 P.M. and there is nothing on record to show that the deceased was in sense or was in a position to talk at 11 P.M. For the reasons stated above, we discard the case of prosecution so far as oral dying declaration is concerned. 9. Now coming to the recorded dying declaration, the only evidence is that of P.W.9 and the bed head ticket maintained in the hospital. 9. Now coming to the recorded dying declaration, the only evidence is that of P.W.9 and the bed head ticket maintained in the hospital. It is true that by the time the deceased was admitted to the hospital she had suffered more than 90% burn injuries. The learned Counsel for the Appellant relied upon a decision of this Court in the case of Niru Nanhar Beck v. State of Orissa 1995 Cri LJ 2412, to say that when death occurs due to burn injuries, failure to take signature or thumb impression of the deceased makes the dying declaration unreliable. From the facts of the said case it appears that for not obtaining the thumb impression or signature of the deceased, the Doctor explained that due to extensive burn injuries, the thumb impression could not be taken. Since the statement of the Doctor was not attested either by the I.O. or by any medical staff or by relation of the deceased, the court discarded such dying declaration. The learned Counsel also relied upon a decision of the apex Court in the case of Kamalakar Nandram Bhavsar and Ors. v. State of Maharashtra AIR 2004 SC 503 , to say that when the deceased had 95% burn injuries and was on oxygen from moment he was admitted in hospital, till death he could not be in a position to make a dying declaration. Relying on these two decisions, it was contended by the learned Counsel that the deceased having received more than 90% injuries, she could not have made a statement and therefore, the evidence of P.W.9 cannot be accepted. P.W.9 has specifically stated in his evidence that at the time of admission of the deceased, he noticed more than 90% burn injuries throughout her body and anticipating that the deceased might die, he thought it proper to record her dying declaration. At that time, the deceased was conscious and was in a fit state of mind to answer the questions. He has also stated that smell of kerosene was coming from the deceased and he recorded the dying declaration in presence of witnesses as well as the Specialist P.W.10. He has also stated that the signature/thumb impression of the deceased could not be taken as her palm, fingers and the body were affected by burn injuries. He has also stated that smell of kerosene was coming from the deceased and he recorded the dying declaration in presence of witnesses as well as the Specialist P.W.10. He has also stated that the signature/thumb impression of the deceased could not be taken as her palm, fingers and the body were affected by burn injuries. Ext.6 is the dying declaration which bears the signature of P. Ws.9 and 10 and also several witnesses. The exact dying declaration is reproduced below: I Mrs. Padma Patnaik, W/o Madhusudan Rao. Am fully conscious and I am giving the statement of my own willingness not under instigation nor out of misguidance. My name is Padma Patnaik (1) who has done this Ans: Mr. Sanyasi Senapati has came to my residence for money which I am in debt to him, when I could not repay the amount, he fell angry with me and poured kerosene on me and set fire. During our discussion she has gone to shock (Hypovolumic). After the pt is received I got very little time before going to shock, I could record dying declaration but no important public are present inside. Ext.7 is the bed head ticket which also shows that dying declaration was recorded at 9.45 P.M. in a conscious state on 16.6.1997. Witnesses present have also signed the recorded dying declaration. Therefore, the decisions cited at the Bar have no application on facts. We, therefore, do not find any infirmity in the recorded dying declaration. The recorded dying declaration also gets support from the evidence of P.W.10 who conducted the postmortem examination. 10. Having not found any infirmity in the recorded dying declaration which is corroborated by the evidence of P.W.10, who conducted the postmortem examination, we are of the view that conviction of the Appellant for commission of offence u/s 302 of the I.P.C. is justified. 11. We, accordingly do not find any merit in the appeal and dismiss the same. Final Result : Dismissed