JUDGMENT : L. Mohapatra, J. - The Appellant has been convicted by the learned Sessions Judge, Ganjam-Gajapati, Berhampur in Sessions Case No. 3 of 2001 for commission of offence u/s 302 of the Indian Penal Code (in short 'I.P.C.') as well as u/s 498-A of the said Code. He has been sentenced to imprisonment for life for his conviction u/s 302 I.P.C. but no separate sentence has been awarded for his conviction u/s 498-A of the said Code. Hence this appeal. 2. The case of the prosecution is that the Appellant married the deceased on 02.05.1999 as per caste custom. At the initial stage, they led a happy conjugal life. It alleged that after some time the Appellant started ill-treating the deceased. When P.W.1 (informant) who is the mother of the deceased came to know about such ill-treatment, brought the deceased to her house four months after the marriage. About 20 days prior to the date of occurrence the Appellant and his mother came to the house of P.W.1 to take back the deceased. On the assurance of the Appellant that the deceased would not be subjected to ill treatment, the deceased was allowed to go to her matrimonial house. On 05.07.2000 P.W.1 receiving information about the occurrence rushed to the house of the Appellant and found the deceased lying with burn injuries. The deceased was admitted into M.K.C.G. Medical College & Hospital for treatment. The deceased while under treatment disclosed before P.W.4 and Ors. that the Appellant poured Kerosene on her and set her on fire by a match stick. P.W.11, the I.O., receiving information came to the hospital and the oral report made by P.W.1 was reduced into writing and the case was registered for commission of offence under Sections 498-A/307 I.P.C. The deceased succumbed to the burn injuries on 16.07.2000. Whereafter charge-sheet was submitted for commission of offence under Sections 498-A and 302 I.P.C. 3. The prosecution in order to prove both the charges, examined 12 witnesses. Out of 12 witnesses, P.W.1 is the mother of the deceased and the informant. P.w.2 is brother of deceased and P.W.4 is a witness to the oral dying declaration made by the deceased. P.Ws. 1 and 2 also stated about the oral dying declaration. The prosecution in order to prove both the charges, examined 12 witnesses. Out of 12 witnesses, P.W.1 is the mother of the deceased and the informant. P.w.2 is brother of deceased and P.W.4 is a witness to the oral dying declaration made by the deceased. P.Ws. 1 and 2 also stated about the oral dying declaration. P.W.5 had initially examined the deceased in hospital and recorded her dying declaration whereas P.W.12 is the Executive Magistrate who also recorded the dying declaration of the deceased. P.W.6 is the doctor, who conducted the post-mortem examination. P.Ws. 3, 8 and 10 are seizure witnesses and P.Ws. 9 and 11 are the Investigating Officers. 4. The plea of the defence as revealed from the statement recorded u/s 313 Code of Criminal Procedure is that the deceased committed suicide. The trial Court on the basis of the evidence of the witnesses not only found the Appellant guilty for commission of offence u/s 498-A of the I.P.C. but also relying on the dying declaration found the Appellant guilty u/s 302 I.P.C. and convicted him thereunder. 5. The learned Counsel for the Appellant assailed the impugned judgment on the ground that the evidence relating to demand of dowry is of such nature, the offence u/s 498-A I.P.C. is not made out. So far as dying declarations are concerned, it was contended by the learned Counsel that both the dying declarations having not been recorded in accordance with law and the deceased having sustained 85% burn injuries also could not have made any dying declaration. The learned Counsel for the State referred to the evidence of P.Ws. 1, 2 and 4 and submitted that the deceased having survived for about 10 days and there being no material to show that she was not in a position to make any statement, the oral as well as recorded dying declarations were rightly acted upon by the learned Sessions Judge. 6. The Appellant has been charged on two heads. The first charge is u/s 498-A I.P.C. and the second charge is u/s 302 of the said Code. So far as offence u/s 498-A is concerned, P.W.1, who is mother of the deceased and informant in the case, has stated that at the time of marriage cash of Rs. 10, 000/-, utensils, gold ornaments and other articles were given as dowry. So far as offence u/s 498-A is concerned, P.W.1, who is mother of the deceased and informant in the case, has stated that at the time of marriage cash of Rs. 10, 000/-, utensils, gold ornaments and other articles were given as dowry. She has further stated that four months after the marriage, her son P.W.2 had gone to the house of the Appellant and the deceased disclosed before him that the Appellant was subjecting her to physical assault and torture under the influence of liquor. P.W. 1 has no where alleged that after marriage the Appellant had made any demand. Similar is the evidence of P.W.2, who has also stated about giving of dowry at the time of marriage, but he has not stated anything regarding demand of dowry after marriage. These two witnesses being the best two witnesses to say about any demand of dowry and having not stated anything about any such demand of dowry after marriage, we are of the considered view that the offence u/s 498-A has not been made out. So far as the offence u/s 302 I.P.C. is concerned, the prosecution relies not only on oral dying declaration but also recorded dying declaration. P.Ws. 1, 2 and 4 are the witnesses to the oral dying declaration. P.W.1, who is mother of the deceased, has stated in her deposition that in the hospital when she asked the deceased as to how she sustained burn injuries, the deceased disclosed before her that the Appellant severely assaulted her and when she wanted to come to her house, the Appellant chased to kill her with a kitchen knife. Thereafter the Appellant caught hold of her, poured Kerosene on her and set her on fire. Nothing has been brought out in the cross-examination to disbelieve this part of her evidence. Similarly, P.W.2, who is brother of the deceased, has stated about such dying declaration having been made before P.W.1 and him. The learned Counsel for the Appellant referred to one statement of P.W.2 in cross-examination where he has stated that the deceased was unable to follow Oriya. Much emphasis was put on this statement in order to discard the recorded dying declarations. The other witness to the said dying declaration is P.W.4, who has also corroborated the evidence of P.Ws. 1 and 2 in this regard. As it appears from the evidence of P.Ws. Much emphasis was put on this statement in order to discard the recorded dying declarations. The other witness to the said dying declaration is P.W.4, who has also corroborated the evidence of P.Ws. 1 and 2 in this regard. As it appears from the evidence of P.Ws. 1, 2 and 4, the deceased made such disclosure while in the hospital on being asked by P.W.1 when both the P.Ws. 2 and 4 were present. This finding gets support from the evidence of P.W. 1 that at the time of such disclosure, her son and Ors. were present. On analysis of the evidence of these three witnesses, we find nothing in the cross-examination to discard the evidence of these witnesses which relates to oral dying declaration. The learned Counsel for the Appellant in this regard submitted that with 85% burn injuries the deceased could not have made such declaration. The bed-head-ticket has been exhibited as Ext. 3. The bed-head-ticket shows that the deceased at the time of admission in the hospital was conscious. The entries made in the bed-head-ticket at different times on 05.7.2000 show that the deceased was conscious through out on 5.7.2000 and was in a position to answer questions normally. Therefore, the contention of the learned Counsel for the Appellant that with 85% burn injuries the deceased could not have made a declaration has no legs to stand. So far as the recorded dying declaration is concerned, P.W.5 is the doctor, who had recorded the dying declaration under Ext. 3. P.W.12 is the Executive Magistrate, who also recorded the dying declaration under Ext. 18 P.W.5 in relation to Ext. 3 has stated that on admission the deceased was found to have 85% burn injuries and all possible treatment had been given to her. On 5.7.2000 she made a statement before him regarding the manner in which she sustained the burn injuries and it was recorded by him which has been exhibited as Ext. 3. During cross-examination this witness admitted that he had not himself recorded the dying declaration and only made an endorsement on the first page of Ext. 3 that the deceased was in grave condition. Even if the evidence of P.W.5 and the dying declaration under Ext. 3 are discarded, the evidence of P.W.12 in this regard is free from any legal infirmity. 3 that the deceased was in grave condition. Even if the evidence of P.W.5 and the dying declaration under Ext. 3 are discarded, the evidence of P.W.12 in this regard is free from any legal infirmity. P.W.12 is the Executive Magistrate, who under the direction of the Sub-Collector went to the hospital and recorded the statement of the deceased who was under going treatment after taking permission of the Doctor-in-charge. She in her deposition has stated that the deceased was fully conscious and was capable of understanding the nature of things. The Medical Officer in charge of the Ward also gave a certificate in writing to that effect whereafter the statement was recorded. The deceased disclosed before P.W.12 that on the date of the occurrence when she wanted to visit her parents house, the Appellant quarrelled with her and threw a Lota and glass on her and threatened to kill her by means of a kitchen knife. Thereafter the Appellant drenched her with Kerosene Oil and after setting her on fire left the place. We have examined carefully the evidence of this witness as well as the dying declaration of the deceased. We do not find any infirmity in recording such declaration. However, relying on the statement of P.W.2 that the deceased did not know Oriya, it was contended by the learned Counsel for the Appellant that the dying declaration under Ext. 18 nowhere shows that the deceased made a statement in her own language and it was translation to Oriya. There is also nothing in the dying declarations, Exts. 3 and 18, that any questions were put to the deceased in her own language. On the other hand. Exts. 3 and 18 shows that questions were put in Oriya language and answers have been written in Oriya. Even if we accept such contention for a moment, the learned Counsel for the Appellant has not been able to over come the oral dying declaration made by the deceased before her mother and brother as well as an outsider P.W.4. There is evidence on record to show that the deceased was brought up in the district of Ganjam and it is expected that she would be knowing Oriya language. However since the brother of the deceased has stated in cross-examination that the deceased was not aware of Oriya language, we discard the recorded dying declaration under Exts. 3 and 18. There is evidence on record to show that the deceased was brought up in the district of Ganjam and it is expected that she would be knowing Oriya language. However since the brother of the deceased has stated in cross-examination that the deceased was not aware of Oriya language, we discard the recorded dying declaration under Exts. 3 and 18. However, the oral dying declaration made by the deceased before P.Ws. 1, 2 and 4 is consistent and trustworthy and we find no reasons to disturb the judgment impugned before us convicting the Appellant for commission of offence u/s 302 I.P.C. relying on such oral dying declaration also. 7. Accordingly the appeal is allowed in part. The impugned judgment convicting the Appellant for commission of offence u/s 498-A I.P.C.is set aside and the said judgment convicting the Appellant u/s 302 I.P.C. is confirmed. The sentence imposed for commission of offence u/s 302 I.P.C. by the learned Sessions Judge is also confirmed. B.N. Mahapatra, J. 8. I agree. Final Result : Allowed