JUDGMENT : J.C. Upadhyaya, J. Both the appellants, who were original accused persons in Sessions Case No.191 of 2002 came to be convicted by learned Addl. Sessions Judge, Court No.18, Ahmedabad on 19.9.2003 for the offences punishable under Sections 302 and 498A of the Indian Penal Code ('IPC', for short) and each of them was awarded sentence of imprisonment for life and fine of Rs. 5000/- and in default of payment of fine, R.I for one year for the offence punishable under Section 302 of the IPC and R.I for one year and fine of Rs. 1000/- and in default of payment of fine, R.I for one month for the offence punishable under Section 498A of the IPC. They have challenged their conviction and sentence by preferring this appeal in this Court. 2. The prosecution case in brief is that the appellant – accused No.1 happened to be the husband of deceased Naynaben and the appellant – accused No.2 Lilaben happened to be her mother-in-law. The appellant – accused No.1 Purshottam married Naynaben on dated 27.2.2002. It is alleged that from the day one of the married life of Naynaben, she was subjected to physical and mental torture and cruelty by the appellants. On petty household matters, she was subjected to cruel treatment. It is alleged that on dated 2.5.2002, at about 9.45 p.m., the appellant poured kerosene on Naynaben and set her on fire. Naynaben sustained serious burn injuries and was shifted to Civil Hospital, Ahmedabad. During her treatement, at 11.25 p.m., on the same day, she expired. Jayantbhai Devjibhai, the uncle of deceased Naynaben lodged FIR in connection with this incident in 'G' division police station, Ahmedabad. Police commenced investigation and statements of material witnesses were recorded, required panchnamas were drawn in presence of panchas, and after collecting required material for the purpose of lodgment of charge sheet, charge sheet came to be filed in the Court of learned Metropolitan Magistrate, Ahmedabad. Since the offence was exclusively triable by the Court of Sessions, the ld. Metropolitan Magistrate, Ahmedabad, committed the case to the City Sessions Court, Ahmedabad, which came to be registered as Sessions Case No.191 of 2002. 3. The learned trial Judge framed charge against both the appellants at Exh.3 for the offences punishable under Sections 498A, 302 read with Section 114 of the IPC, to which they did not plead guilty and claimed to be tried. 3. The learned trial Judge framed charge against both the appellants at Exh.3 for the offences punishable under Sections 498A, 302 read with Section 114 of the IPC, to which they did not plead guilty and claimed to be tried. The prosecution thereupon adduced oral and documentary evidence. After the prosecution concluded its evidence, the ld. trial Judge recorded further statements of the appellants under Section 313 of the Cr.P.C., and the appellants generally denied all the allegations levelled against them by the prosecution and stated that at the time of the incident, they were not available in their home and they came to know that Naynaben sustained burn injuries, subsequently through the neighbours. After appreciating the evidence on record and the submissions made on behalf of both the sides, ld. trial Judge came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt against both the appellants – accused persons, regarding the offence of murder of Naynaben and causing cruelty to her, and recorded their conviction for the offences punishable under Sections 302 and 498A of the IPC and awarded the sentence as herein above referred to in this judgment. Ld. advocate Ms. Mita Panchal for Ms. K.D.Parmar for the appellants submitted that the ld. trial Judge erred in recording the conviction of the appellants for the offences charged against them. It was submitted that the trial Court based the conviction solely on so-called oral dying-declaration made by deceased Naynaben before Doctor in form of history of injury and before the witnesses. It is submitted that the alleged oral dying-declaration is not in conformity with the panchnama of the scene of incident. It is submitted that considering the panchnama of the scene of incident and the evidence of neighbours, it clearly transpires that the incident took place in a latrine, admeasuring 3ft x 3ft in area, and the door of the latrine was bolted from inside, and the neighbours had to break-open the door and rescued Naynaben in burnt condition from the latrine. That, thus, the evidence adduced by the prosecution itself clearly reveals that the deceased committed suicide and she was not ignited by any of the accused persons, by pouring kerosene on her. 4. That, thus, the evidence adduced by the prosecution itself clearly reveals that the deceased committed suicide and she was not ignited by any of the accused persons, by pouring kerosene on her. 4. It is submitted that even the evidence adduced by the prosecution, regarding the exact time of the incident, the same is contradictory, raising gross suspicion about the case of the prosecution. As per so-called oral dying-declaration, allegedly made by the deceased before Medical Officer, it is stated that the incident took place at 7 p.m., whereas the alleged oral dying-declaration made before the first informant Jayantibhai Devjibhai, the incident occurred at 9.45 p.m. As per the medical evidence on record, Naynaben was brought to the hospital at 10.55 p.m. 5. It is further submitted that considering the evidence of neighbours, adduced by the prosecution as well as examined by the defence as defence witnesses, it would further reveal that at the time when neighbours took out Naynaben in burnt condition from the latrine, by breaking-open the door of the latrine, at that time, none of the appellants were present in the house. Therefore, it is submitted that the appeal may be allowed and the impugned judgment and order rendered by the trial Court, recording conviction of the appellants, be set-aside and they be acquitted. Ld. advocate Ms. Panchal for the appellants further submitted that despite such ambiguity and doubt, if the case of the prosecution is accepted, and the oral dying-declaration allegedly made by the deceased is considered to be proved, yet, so far as the appellant – accused No.1, Purshottam Karsanbhai is concerned, even in oral dying-declaration, no allegation is levelled by the deceased against the appellant – accused No.1 to the effect that he poured kerosene on her body and set her on fire. The allegation is levelled only qua the appellant – accused No.2 Lilaben Karsanbhai. 6. Therefore, it is submitted that the appeal may be allowed and both the appellants be acquitted or in the alternatively, the appellant No.1 – Purshottan Karsanbhai be acquitted by partly allowing the appeal. Per contra, the learned Additional Public Prosecutor Mr. Shah for the State vehemently opposed this appeal and submitted that the prosecution has adduced clear, cogent, trustworthy and reliable evidence to prove its case beyond any reasonable doubt against both the appellants. Per contra, the learned Additional Public Prosecutor Mr. Shah for the State vehemently opposed this appeal and submitted that the prosecution has adduced clear, cogent, trustworthy and reliable evidence to prove its case beyond any reasonable doubt against both the appellants. The trial Court rightly appreciating the evidence on record, recorded the conviction of both the appellants. That the case is based upon circumstantial evidence and the prosecution successfully established the chain of circumstantial evidence. There is no reason to discard the oral dying-declaration made by deceased Naynaben. The minor discrepancy regarding the time of the incident, would definitely pale into insignificance, once the oral dying-declaration as it is, is considered. The incident happened within three months from the date of marriage of Naynaben with appellant No.1. The incident occurred in her matrimonial home itself. the defence of alibi raised by the appellants, is not even prima-facie emerging from the evidence on record. Therefore, it is submitted that the appeal may be dismissed. 7. We have examined the record and proceedings in context with the submissions made by the rival sides. 8. We have examined the evidence of first informant Jayantibhai Devjibhai PW-2, Exh.13 and uncle of deceased Naynaben. We have also examined the evidence of father of the deceased Vasudev Devjibhai PW-4, Exh.25 and Lilaben Vasudevbhai PW-7, Exh.30. There is no dispute that the appellant No.1 married the deceased Naynaben on dated 27.2.2002. The sad incident occurred on dated 2.5.2002. Thus, within the marriage span of three months, Naynaben died. The medical evidence adduced by the prosecution and especially considering the evidence of Dr. Satapara, Exh.10 and the P.M. report, Exh.12, it clearly transpires that the deceased had sustained extensive burn injuries on her body and the cause of death is shock due to burn injuries on her body. 8.1 Considering the evidence of first informant, the uncle of the deceased as well as of her parents, we are of the considered opinion that the prosecution successfully proved that deceased Naynaben was subjected to physical and mental torture and cruelty. Considering the evidence, it further transpires that on petty household matters, she was subjected to cruel treatment. Their evidence reveals that from the day one, she went to reside with her husband at her matrimonial home, she was subjected to physical and mental torture. Considering the evidence, it further transpires that on petty household matters, she was subjected to cruel treatment. Their evidence reveals that from the day one, she went to reside with her husband at her matrimonial home, she was subjected to physical and mental torture. Even considering the evidence regarding the oral dying-declaration, the offence punishable under Section 498A of the IPC is clearly made out. Under such circumstances, we are of the considered opinion that the prosecution successfully proved its case regarding the offence having been committed by both the appellants punishable under Section 498A of the IPC. 9. Considering the evidence on record, it transpires that on behalf of the accused it was contented before the trial Court that prosecution failed to establish a basic fact regarding homicidal death of deceased Naynaben. In the impugned judgment, by assigning cogent and convincing reasons, the learned trial Judge came to the conclusion that death of deceased Naynaben is homicidal death and not a suicidal death. Considering the evidence of Dr. Dhatri Jadav PW-9, examined at Exh.32 and the case paper, Exh.33, it transpires that on 2.5.2002, at 10.55 p.m., when Naynaben was brought to Civil Hospital, Ahmedabad, she had sustained second and third decree burn injuries, almost on her entire body. It further transpires that during the treatment, on the same day, she expired at 11.25 p.m. Considering the evidence of Dr. Satapara PW-1, Exh.10 and the P.M. report Exh.12, it clearly transpires that the deceased had sustained second and third degree burn over face, chest, neck, abdomen, back, both upper limbs and both lower limbs and the cause of death is shock due to burns over body. 10. The defence raised by the accused is that the deceased committed suicide. Satapara PW-1, Exh.10 and the P.M. report Exh.12, it clearly transpires that the deceased had sustained second and third degree burn over face, chest, neck, abdomen, back, both upper limbs and both lower limbs and the cause of death is shock due to burns over body. 10. The defence raised by the accused is that the deceased committed suicide. On behalf of the appellants, it was submitted that considering the evidence of neighbour Ushaben Goswami PW-5, Exh.26 and neighbour Rajrani Chawla, examined by defence at Exh.50 as well as considering the evidence of Panch Dilip Dhumrani PW-6, Exh.28 and the scene of offence panchnama, Exh.29, together with the evidence of PSI Chavda, PW-12, examined at Exh.37, it becomes clear that the incident occurred in a small latrine, admeasuring 3ft x 3ft and it is further revealed that hearing shouts and screams of Naynaben, neighbours rushed to the house of Naynaben and they found that smoke was coming out from the latrine and the door was closed and was bolted from inside and the iron-sheet on the door was required to be broke-open and Naynaben was taken out from latrine in burn condition. It is further submitted that considering the evidence of neighbours, it is established that at the time of the incident, none of the family members of Naynaben, including the accused No.2 her mother-in-law and the accused No.1 her husband were present in the house. 11. We have given out thoughtful consideration to such defence raised by the accused not only before the trial Court, but even before this Court in this appeal. We are of the considered opinion that in the impugned judgment the trial Court elaborately and at length dealt with this submission made on behalf of the accused, evaluating the entire evidence on record, including the panchnama of scene of offence. The trial Court came to the conclusion that the contents of scene of offence panchnama run contrary to the defence of suicide raised by the accused. It is contended on behalf of the accused that deceased herself bolted the door of the latrine and ignited herself and sustained the burn injuries. The case of the prosecution is that kerosene was sprinkled on her body and was ignited by matchstick. It is contended on behalf of the accused that deceased herself bolted the door of the latrine and ignited herself and sustained the burn injuries. The case of the prosecution is that kerosene was sprinkled on her body and was ignited by matchstick. In this connection, considering the panchnama of scene of offence, heavily relied upon by the accused, nothing was found out in the latrine, which would substantiate their defence. No vessel containing any kerosene or having any smell of kerosene or even the matchbox came to be found out from the latrine. Considering the panchnama, it further transpires that on the walls of the latrine, no soot-marks or any flame marks were found. It is further pertinent to note that a bucket containing water was there in the latrine. The trial Court rightly observed that if at all the incident has happened in the latrine, then a victim, with extensive burn injury, would definitely try to extinguish fire by pouring water on his/her body, easily available in latrine itself in a bucket. Nothing whatsoever was done. Further considering the panchnama of scene of occurrence and especially considering the condition of door of the latrine, nothing revealed that the iron-sheets on the door were broken from outside. Neighbours tried to suggest that the door was required to be broken-open to rescue Naynaben from the latrine. The panchnama does not support such evidence. Furthermore, in the impugned judgment, evaluating the evidence on record, the trial Judge relying upon the oral dying-declaration of Naynaben, rightly observed that the theory of suicide is outright rule out, if the oral dying-declaration is accepted. Under such circumstances, we are of the considered opinion that the trial Court rightly did not accept the theory of suicide advanced by the accused in this case. The trial Court, therefore, rightly held that evaluating the entire oral and documentary evidence on record, the prosecution successfully proved the death of Naynaben as a homicidal death. 12. The trial Court recorded the conviction of both the accused persons solely relying upon the oral dying-declaration made by Naynaben before her uncle, first informant Jayantibhai Devjibhai PW- 2, Exh.13, as well as the oral dying-declaration before Dr. Dhatri Jadav PW-9, Exh.32 in form of history of injury. We have taken into consideration the evidence of first informant Jayatibhai Devjibhai PW-2, Exh.13 and the evidence of Dr. Dhatri Jadav PW-9, Exh.32 in form of history of injury. We have taken into consideration the evidence of first informant Jayatibhai Devjibhai PW-2, Exh.13 and the evidence of Dr. Dhatri Jadav PW-9, Exh.32 coupled with the FIR, Exh.42 and the MLC case-paper, Exh.33. According to the evidence of first informant Jayantibhai Devjibhai, when he inquired to Nayanaben as to what has happened and Naynaben replied that she was earlier beaten by her husband (appellant – accused No.1 Purshottam Karsanbhai) and her mother-in-law (appellant – accused No.2 Lilaben Karsanbhai) poured kerosene on her body and set her to fire by matchstick. In his FIR, almost identical facts are narrated by him regarding the oral dying-declaration. However, in the FIR, it is elaborately stated that during morning hours, she was beaten by her husband, accused No.1 regarding the issue of preparing tiffin, and at 9.45 p.m., when she was in her home, she was beaten by her husband – accused No.1 and her mother-in-law, the accused No.2, poured kerosene on her body and she set her to fire by a matchstick. 13. Considering the evidence of Dr. Dhatri Jadav PW- 9, Exh.32 along with MLC case-paper, Exh.33, it transpires that on 2.5.2002, at 10.55 p.m., when Naynaben was brought to Civil Hospital, Ahmedabad, Dr. Jadav inquired about the injury and Naynaben told that her husband quarreled with her and she was beaten by her husband and her mother-in-law poured kerosene and set her to fire by a matchstick. Medical evidence further reveals that Naynaben was conscious. She herself gave the history of burn injury to the Doctor. The defence examined Dr. Roy at Exh.56 as a defence witness and even according to his deposition, when he administered treatment to Naynaben in the Civil Hospital, she was conscious. In his cross-examination, he further admitted that in such cases, patient can speak. 14. However, before the trial Court as well as in the appeal, on behalf of the appellants, a defence is raised that at the time of the incident, the accused were not present in their house. The trial Court, appreciating the evidence on record did not accept said contention. It is true that the neighbours deposed that when they went to the house of Naynaben, hearing her shout, the accused were not there in the house. However, the neighbours are not the eye-witnesses to the incident. The trial Court, appreciating the evidence on record did not accept said contention. It is true that the neighbours deposed that when they went to the house of Naynaben, hearing her shout, the accused were not there in the house. However, the neighbours are not the eye-witnesses to the incident. They went to the house of Naynaben, subsequent to the happening of the incident. Under such circumstances, it cannot be conclusively said that according to the evidence of neighbours "at the time of the incident" the accused were not there in the house. Under such circumstances and considering the evidence regarding the oral dyingdeclaration before uncle Jayantibhai and Dr. Dhatri Jadav, so far as the appellant – accused No.2 Lilaben Karsanbhai is concerned, the trial Court rightly recorded her conviction for the offence of murder punishable under Section 302 of the IPC. However, considering the oral dying-declaration as it is, it clearly transpires that so far as appellant – original accused No.1 Purshottam Karsanbhai is concerned, no role is attributed to him by deceased Naynaben in her oral dyingdeclaration regarding her burn injuries. Nothing reveals that the appellant – accused No.1 Purshottam Karsanbhai either poured kerosene on her body or set her on fire by matchstick. Only role attributed to the accused No.1 is that she was beaten by her husband – accused No.1. Considering the evidence of first informant, uncle Jayantibhai Devjibhai, Exh.13, in his deposition, about the oral dying-declaration, he stated that upon the inquiry Naynaben told him that she was earlier beaten by her husband and her mother-inlaw poured kerosene and set her to fire. Considering the FIR, it is stated that Naynaben replied that during morning, she was beaten by her husband and at 9.45 p.m., she was beaten by her husband. In the dying declaration, recorded by Dr. Jadav, in the form of history of injury, nothing reveals that Naynaben was beaten by her husband – the accused No.1, twice during the course of the day of the incident. Under such circumstances, considering the evidence adduced by the prosecution regarding the oral dying declaration, nothing emerges as to how and in what manner, at the time of the incident, the appellant - accused No.1 Purshottam Karsanbhai aided, abetted or helped his mother, the appellant – accused No.2 Lilaben Karsanbhai in commission of murder of Naynaben. Under such circumstances, considering the evidence adduced by the prosecution regarding the oral dying declaration, nothing emerges as to how and in what manner, at the time of the incident, the appellant - accused No.1 Purshottam Karsanbhai aided, abetted or helped his mother, the appellant – accused No.2 Lilaben Karsanbhai in commission of murder of Naynaben. The appellant – accused No.1 Purshottam is facing charge of offence punishable under Section 302 r/w. Section 114 of the IPC. 15. In light of the entire above discussions, we are of the considered opinion that the learned trial Judge rightly recorded conviction of appellant – accused No.2 Lilaben Karsanbhai for the offences punishable under Sections 302 and 498A of the IPC. So far as the appellant - accused No.1 Purshottam Karsanbhai is concerned, ld.trial Judge rightly recorded his conviction for the offence punishable under Section 498A of the IPC. However, his conviction for the offence punishable under Section 302 r/w. Section 114 of the IPC deserves to be set-aside. It is submitted that the appellant – accused No.1 Purshottam Karsanbhai is in jail since considerably long time. Under such circumstances, the period undergone by him in jail would be the adequate sentence for the offence punishable under Section 498A of the IPC. 16. For the foregoing reasons, the appeal is partly allowed. The conviction recorded by ld. Addl. Sessions Judge, Court No.18, Ahmedabad, on 19.9.2003 in Sessions Case No.191 of 2002 of the appellant – accused No.1 Purshottam Karsanbhai for the offence punishable under Section 302 of the IPC, and the sentence awarded there under, is set-aside. However, the conviction recorded by the learned trial Judge for the offence punishable under Section 498A of the IPC, is maintained. Since the appellant – accused No.1 Purshottam Karsanbhai is in custody for considerable long time, the period undergone by him in jail shall be his sentence for the offence punishable under Section 498A of the IPC. He shall be released forthwith from jail, if no longer required in any other case. 17. The appeal qua the appellant - original accused No.2 Lilaben Karsanbhai, stands dismissed, and order of conviction and sentence passed by the learned trial Judge is confirmed. Appeal partly allowed.