JUDGMENT (Per P.V. Hardas, J.) 1.The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life by the 2nd Ad hoc Additional Sessions Judge, Wardha by judgment dated 05.08.2005 in Sessions Trial No. 137 of 2004, by this appeal, questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :PW11 Police Head Constable Prabhakar Wairagade, who was incharge of the Outpost of Sewagram Police Station, on 27/07/2004 was informed that one Asha had been admitted in the Sewagram Hospital with burns. He, accordingly, proceeded to Sewagram Hospital at 10:30 a.m. On going near the bed of injured Asha, he found that she was in a fit condition to give her statement and accordingly recorded her statement. Asha, in her statement, had stated that on 26/07/2004, at about 06:00 p.m., she had returned from the hospital after treatment of her child. She was assaulted by the accused and thereafter accused poured kerosene on her and set her ablaze. The appellant did not attempt to extinguish the fire. The statement of Asha is at Exh.60. He, therefore, forwarded the MLC as well as the statement of Asha to the Hinganghat Police Station. PW10 Anandrao Sontakke, PSI, who was attached to the Hinganghat Police Station, was on duty as a Night Officer. On 30/07/2004, Police Constable Anna, Buckle No. 975 had brought the statement of Asha as well as her injury report. On the basis of the statement of Asha, PW 10 Anandrao registered an offence vide Crime No. 243/2004 under Section 307 of the Indian Penal Code. The printed FIR is at Exh.53. On the next day i.e. on 31/07/2004, PW10 Anandrao Sontakke, PSI seized the clothes of deceased in the Sewagram Hospital under a seizure memo. On the same day, he again recorded the statement of Asha as a supplementary statement at Exh.54. He then arrested the accused on 02/08/2004 in the morning. Meanwhile, Asha had succumbed to her injuries on 01/08/2004 and accordingly Section 302 of the Indian Penal Code was added. He thereafter rushed to Sewagram Hospital and recorded the inquest panchnama of deceased Asha at Exh.21. The dead body of deceased Asha was referred for postmortem examination. 3. He then arrested the accused on 02/08/2004 in the morning. Meanwhile, Asha had succumbed to her injuries on 01/08/2004 and accordingly Section 302 of the Indian Penal Code was added. He thereafter rushed to Sewagram Hospital and recorded the inquest panchnama of deceased Asha at Exh.21. The dead body of deceased Asha was referred for postmortem examination. 3. On 02/08/2004, during custodial interrogation, the appellant/ accused expressed his willingness to point out the place where the kerosene can and a match box had been concealed. Accordingly, a memorandum came to be drawn at Exh.46. The appellant led the police and the panch to his house and produced a can of kerosene and a match box which came to be seized under seizure memo at Exh.47. Sample of hair of deceased Asha also came to be seized. A report lodged by Asha against the appellant also came to be seized as well as the compromise deed. The compromise deed is at Exh.50. The seized property was referred to Chemical Analyser along with the requisition at Exh.27. A sketch map of the scene of the incident was drawn at Exh.30. Further to the completion of investigation, a charge sheet was filed against the appellant. 4. On committal of the case to the Court of Session, the trial Court vide Exh.7 framed charge against the appellant for the offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. The prosecution, in support of its case, examined 11 witnesses while the accused in his defence examined himself as DW1. The trial Court, upon appreciation of the evidence, convicted and sentenced the appellant as aforestated. 5. In order to effectively deal with the submissions advanced before us by Shri J.B. Kasat, the learned Counsel appearing on behalf of the appellant and Shri T.A. Mirza, the learned Additional Public Prosecutor appearing on behalf of the respondent/State, it would be useful to refer to the evidence of the prosecution witnesses. 6. PW1 Janardhan Wadekar, Uncle of deceased Asha, states that Asha was married to the appellant about nine years prior to the incident. Asha had given birth to a son. The appellant used to sell and consume illicit liquor. Under the influence of liquor, the appellant used to assault Asha. 6. PW1 Janardhan Wadekar, Uncle of deceased Asha, states that Asha was married to the appellant about nine years prior to the incident. Asha had given birth to a son. The appellant used to sell and consume illicit liquor. Under the influence of liquor, the appellant used to assault Asha. On account of ill treatment given to Asha, Asha used to frequently go to the house of her sister at Goji. Asha had once lodged a report at the Hinganghat Police Station. Asha agreed to reside with the appellant on the assurance of the appellant that he would not ill treat Asha. Thereafter, Asha was treated well for about a month but the ill treatment continued thereafter. On 26/07/2004, Asha had taken her son to the hospital at Hinganghat. After her return, there was a quarrel between the appellant and Asha and the appellant had assaulted her. Asha fled to the house of one Bhanudas Bhadakkar. The appellant followed Asha and dragged her to his house by her hair. PW1 Janardhan states that he attempted to intervene, but the appellant informed him that Asha was his wife, he would do as he pleases. Thereafter, he had noticed fire in the house of the appellant. The fire was extinguished and Asha was carried to the hospital in an auto rickshaw. In cross-examination, he has admitted that the house of Asha was four houses away from his house. He has admitted that the parents of the appellant were residing in the same house, but separately. He has denied the suggestion that the appellant was neither selling illicit liquor nor consuming it. He has admitted that his eye sight is weak as well as his hearing capacity is impaired. He has admitted that an auto rickshaw of his nephew was called within five minutes after Asha sustaining burns. From the cross-examination of this witness, it would be apparent that there is virtually no cross-examination in respect of the appellant dragging Asha to his house and thereafter Asha sustaining the burn injuries. 7. PW2 Ramrao Mendhe, brotherinlaw of deceased Asha, states that, elder sister of Asha was married to him. Asha used to come to his house and she used to always complain that the appellant consumes liquor and after consumption of liquor, used to assault her. 7. PW2 Ramrao Mendhe, brotherinlaw of deceased Asha, states that, elder sister of Asha was married to him. Asha used to come to his house and she used to always complain that the appellant consumes liquor and after consumption of liquor, used to assault her. In the month of May, 2004, Asha had alone come to his house and narrated that her husband assaulted her. Asha was advised to lodge the report and accordingly Asha lodged her report on 15/05/2004. Since the appellant had given assurance not to ill treat Asha, Asha agreed to reside with the appellant. On 26/07/2004, PW2 Ramrao received a message that Asha had been set ablaze. He immediately rushed to the hospital at Sewagram and noticed Asha in the Burn Ward. On his enuqiry, Asha disclosed to him that she had carried her son for treatment to the Medical Officer in the evening. The appellant after consuming liquor had assaulted Asha. Asha had, therefore, fled to the house of her neighbour, but the accused had dragged her to his house by her hair. The appellant had directed Asha to cook food and while Asha was busy in cooking food, the appellant came from behind, poured kerosene on her and set her ablaze. The appellant thereafter fled from the scene of the incident. In cross-examination, he has admitted that he, along with his wife, maternal aunt of deceased and cousin of Asha, had gone to Sewagram Hospital. He has admitted that police had come to the hospital. He states that on 27/07/2004, he was present in the Sewagram Hospital for the entire day. He does not know if the statement of Asha was recorded by the police. He states that Asha succumbed to her injuries on 01/08/2004. He had denied the suggestion that till the death of Asha, he was present in the hospital. He was confronted with the portion markA from his statement to the contrary. He states that on 27/07/2004, Asha had disclosed to him at about 09:00 a.m. regarding the reason for her burn. He has admitted that the other relatives were also present at that time. Asha was in a condition to speak. He has admitted that his wife and aunt of Asha and others were present. 8. He states that on 27/07/2004, Asha had disclosed to him at about 09:00 a.m. regarding the reason for her burn. He has admitted that the other relatives were also present at that time. Asha was in a condition to speak. He has admitted that his wife and aunt of Asha and others were present. 8. PW3 Shevantabai Mendhe, wife of PW2 Ramrao Mendhe, states that Asha was her younger sister and since she had no parents, she had brought Asha to her house for celebrating her first diwali after marriage of Asha. The appellant was also invited. However, due to financial constraints, PW3 Shevantabai had purchased a saree for Asha but had not given any present to the appellant. The appellant, being annoyed, started assaulting the deceased. Asha had lodged a report at the Police Station but the dispute between them was settled. She has further admitted that Asha used to narrate her about her ill treatment. According to PW3 Shevantabai, Asha had disclosed that the appellant was suspecting character of Asha. The appellant was also suspecting that Asha had illicit relationship with PW2 Ramrao. She states that in the month of May, 2004, Asha had alone come to her house as Asha had been assaulted by the appellant. A report in that behalf had been lodged. But, thereafter on account of compromise, Asha began to reside with the appellant. On 27/07/2004, a message was received about the incident and Shevantabai along with her husband had rushed to the Sewagram Hospital. Asha had disclosed to them that she had taken her son to the hospital and after her return, the appellant had consumed liquor and had assaulted Asha. Asha, therefore, fled to the house of Bhanudas Bhadakkar. From there, she was dragged by the accused and was directed to cook the food. While Asha was cooking the food, the appellant came from behind, poured kerosene on Asha and set her ablaze. The appellant thereafter fled from the scene of the incident. In cross-examination, omission has been duly proved that she had not stated in her previous statement on account her poverty, she could not purchase clothes for the appellant on his first diwali. Omission has been proved that she has not stated that she had purchased saree for Asha. The appellant thereafter fled from the scene of the incident. In cross-examination, omission has been duly proved that she had not stated in her previous statement on account her poverty, she could not purchase clothes for the appellant on his first diwali. Omission has been proved that she has not stated that she had purchased saree for Asha. Omission has been duly proved that she stated in her previous statement that Asha was ill treated because no present was given to the appellant. Omission has been duly proved that Asha informed her that she had fled to the house of Bhanudas from where she was dragged by the appellant. She had then admitted that she reached to the hospital at about 11:00 to 12:00 noon on 27.07.2004. She has admitted that on account of burns, Asha was restless. She admitted that the police arrived thereafter. She has admitted that about five years prior to the incident, the appellant had lodged a report that Asha had been abducted by PW2 Ramrao. This witness has volunteered that the deceased on her own had come to her house as she had been assaulted by the appellant. Asha had stayed with them for about five to six days and thereafter Asha went back to the house of her husband. 9. PW6 Sanjay Pawar, a Naib Tahsildar, states that he had received a requisition from Police Station, Sewagram for recording the dying declaration of Asha. He accordingly along with the police had gone to Sewagram Hospital and had enquired from the nurse and the nurse had shown the bed of Asha. He thereafter enquired about the Medical Officer but was informed that the Medical Officer was not available. He waited for the Medical Officer for about 10 to 15 minutes and thereafter enquired from Asha, her name and accordingly, came to the conclusion that Asha was mentally fit to give her statement. Accordingly, Asha had informed him that on 26/07/2004 at about 04:00 p.m., she had returned from the market and was ordered to cook the food by the appellant. The appellant had consumed liquor and while Asha was cooking the food, the appellant poured kerosene on her and set her ablaze. Asha had further informed him that her father-in-law, who was present in the house, had attempted to intervene. The appellant had consumed liquor and while Asha was cooking the food, the appellant poured kerosene on her and set her ablaze. Asha had further informed him that her father-in-law, who was present in the house, had attempted to intervene. But, on account of his frail health, her father-in-law could not prevent the appellant from setting Asha ablaze. In cross-examination, he has admitted that the Police Constable was not present while recording the statement of Asha. The relatives of Asha were also not present in the ward. The dying declaration unfortunately was not exhibited while the evidence of this witness was being recorded. However, since he has proved the contents and also proved the recording of the dying declaration, not exhibiting the document, would not prevent the Court from considering the dying declaration. The said dying declaration unfortunately does not bear either the thumb impression or the toe impression of Asha. There is nothing to indicate that this is the statement of injured Asha. The other dying declarations recorded by PW10 Anandrao Sontakke and PW11 Prabhakar Wairagade bear the thumb/toe impression of Asha. We are, therefore, not inclined to place any reliance on this dying declaration for the reasons stated above. Apart from the fact that there is no endorsement of the Medical Officer that Asha was in a fit condition to give her statement, there is no endorsement on the dying declaration made by this witness that he had noticed that Asha was in a fit condition to give her statement. 10. Unfortunately, the dying declarations recorded by PW10 Anandrao at Exhs.35 and 54 were not put to the appellant/accused in his statement under Section 313 of the Code of criminal Procedure. The aforesaid dying declarations, therefore, will have to be left out of consideration. The only dying declaration, on which reliance is placed by the prosecution, is the dying declaration at Exh.60 recorded by PW11 Police Constable Prabhakar Wairagade. In the said dying declaration (Exh.60), Asha states about taking her son to the hospital and thereafter the appellant assaulting her and the appellant thereafter pouring kerosene and setting Asha ablaze. This is the dying declaration which was recorded on 27/07/2004 which is first in point of time. We have already found that the dying declaration recorded on 30/07/2004 by PW6 Sanjay Pawar, Naib Tahsildar cannot be relied upon. This is the dying declaration which was recorded on 27/07/2004 which is first in point of time. We have already found that the dying declaration recorded on 30/07/2004 by PW6 Sanjay Pawar, Naib Tahsildar cannot be relied upon. Similarly, we have also held that the dying declarations recorded by PW10 Anandrao also cannot be relied upon in the light of the fact that the said dying declarations were not put to the accused in his statement under Section 313 of the Code of Criminal Procedure. 11. The appellant examined himself as DW1 and the appellant has deposed that Asha was married to him and there were disputes between them. Asha had lodged a report against him and the matter was thereafter compromised. He states that both of them had undertaken to behave well. The said undertakings are at Exhs.68 and 69. DW1 Anil, the appellant, makes no reference as to how Asha had sustained the burn injuries. No specific defence has been taken by him. He also does not state that he was not present on the day of the incident. The evidence of PW1 Janardhan certainly establishes the presence of the appellant in the house on the day of the incident. The dying declaration at Exh.60 and the two oral dying declarations made to PW2 Ramrao and PW3 Shevantabai also establish not only the presence of the appellant but his complicity in the crime. The appellant has offered absolutely no explanation regarding the burns sustained by Asha. 12. The postmortem on the dead body of deceased Asha was performed by PW4 Dr. Khandekar. PW4 Dr. Khandekar noticed that Asha had sustained 61 per cent epidermal burns. He has opined that the cause of death of Asha was Septicemia as a result of burn injuries of 61 per cent. The postmortem report is at Exh.32. There is no cross-examination of this witness. 13. Shri J.B. Kasat, the learned Counsel for the appellant has urged before us that no reliance can be placed on the testimony of PW2 Ramrao and PW3 Shevantabai as PW3 Shevantabai had admitted that the appellant had lodged a report against PW2 Ramrao. It is true that the appellant had lodged a report against PW2 Ramrao that Ramrao had abducted deceased Asha. It is true that the appellant had lodged a report against PW2 Ramrao that Ramrao had abducted deceased Asha. Merely because the aforesaid report was lodged would not be a factor which would probabilis the case of false implication of the appellant by these two witnesses. The oral dying declarations made by deceased Asha to these witnesses are fully corroborated by the dying declaration of Asha at Exh.60. Coupled with this, we find that the appellant had offered no explanation whatsoever as to how deceased Asha had sustained the burns. In such circumstances, therefore, according to us, false implication of the appellant at the behest of PW2 Ramrao and PW3 Shevantabai is completely ruled out. PW1 Janardhan independently establishes the presence of the appellant in his own house. PW2 Ramrao and PW3 Shevantabai also cannot be disbelieved on the ground of discrepancy in the time stated by them at which they reached the hospital. The time is always stated by approximation and never accurately. 14. We have anxiously considered the evidence led by the prosecution as well as the evidence of the appellant and upon such consideration, we find that the prosecution has proved the offence against the appellant beyond reasonable doubt. There being no merit in the present appeal, the appeal is dismissed confirming the conviction and sentence of the appellant. Appeal dismissed.