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2011 DIGILAW 354 (CHH)

Ramkumar Harbansh v. State of C. G.

2011-11-15

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT Hon'ble Shri T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 303.2005 passed by the Additional Sessions Judge, Sakti, in Sessions Trial No. 435/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Anitakumari in sharing common intention convicted them under Sections 302/34 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 1000/-, in default of payment of fine to further undergo R.I. for three months. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 2. As per case of the prosecution, appellant Ramkumar, husband of co-appellant Fulbai, is brother of Ramnarayan Satnami i.e. father of unfortunate deceased Anitakumari. Their houses are adjoining to each other. On account of property dispute, terms between the parties were strained. On 6.7.2004 at about 5.30 p.m. unfortunate deceased Anitakumari, aged about 17 years, was sowing vegetable in kitchen garden; probably kitchen garden was also subject matter of dispute. Appellant Ramkumar assaulted Anitakumari by stick over her buttock, he called his wife appellant Fulbai with kerosene, she came with kerosene oil, appellant Ramkumar poured Kerosene oil over Anitakumari (since deceased) and caught hold her hands, appellant Fulbai ignited match box and set her ablaze, she shouted for help. One girl informed the father of the deceased Ramanarayan Satnami (PW-2) and Sonkunwar Satnami (PW-3), father & mother, they rushed towards the spot, other persons also rushed towards the spot, she made dying declaration before Ramanarayan Satnami (PW-2) and Sonkunwar Satnami (PW-3) that appellant Ramkumar has called Fulbai with kerosene and has poured kerosene oil over her and thereafter, he was holding her and Fulbai has set her ablaze. They immediately took her for treatment to Community Health Centre, Jaijaipur. Ramnarayan Satnami (PW-2) has lodged the F.I.R. vide Ex.P/3. Anitakumari (since deceased) was examined by Dr. S.L. Banjare (PW-9) vide Ex.P/11 and found bum injuries over both lower limbs and both upper limbs, pulse feable, B.P. not recordable, chest, face. Burn injuries were 80% to 90%. Case was of acute emergency. She was in semiconscious. Smell of kerosene was coming out. She was immediately referred to CIMS, Bilaspur vide Ex.P/15. S.L. Banjare (PW-9) vide Ex.P/11 and found bum injuries over both lower limbs and both upper limbs, pulse feable, B.P. not recordable, chest, face. Burn injuries were 80% to 90%. Case was of acute emergency. She was in semiconscious. Smell of kerosene was coming out. She was immediately referred to CIMS, Bilaspur vide Ex.P/15. Police requested for recording her dying declaration vide Ex.P/12 which was opined by Dr. S.L. Banjare vide Ex.P/12 that patient was not in a fit state of mind to give statement. They were bringing her to CIMS, Bilaspur, but during the course of journey, Anitakumari died. Constable Jogi Singh was accompanying the injured Anitakumari to CIMS, Bilaspur who lodged Merg vide Ex.P/19. After summoning the witnesses vide Ex.P/1 inquest over the body of deceased Anitakumari was prepared vide Ex.P/2. Bum piece of cloth and burn hairs with kerosene smell were seized from the body of the deceased vide Ex.P/4. Plastic jerry can containing kerosene oil, match box, burn piece of chappal and burn piece of cloth were seized from the spot vide Ex.P/16. One bamboo stick lying near the place of incident was seized from appellant Ramkumar vide Ex.P/17. Spot map was prepared by investigating officer vide Ex.P/18. Dead body was sent for autopsy to Community Health Centre, Jaijaipur vide Ex.P/13, where Dr. S.L. Banjare (PW-9) conducted autopsy vide Ex.P/14 and found following symptoms and injuries:-- (i) Mouth was opened, tongue inside the mouth, pupil diluted and red, eyebrow burnt, hairs of the head burnt and kerosene smell present on hairs, clothes and body. (ii) Superficial bum over both upper limbs & both lower limbs, chest, front & back and face. Private part not burnt, palm and sole not burnt. (iii) Contusion of 6" x 2" over left scapular region. (iv) Contusion of 4" x 2" over left arm. (v) Contusion of 4" x 3" over left scapular region. All injuries were ante-mortem. Rigor mortis present on the body. Soat present in neck and trachea. Hairs were fully of cheery red blood. Mode of death was shock due to excessive loss of body fluid. Patwari also prepared spot map vide Ex.P/8. Seized articles were sent for chemical examination vide Ex.P/23. 3. All injuries were ante-mortem. Rigor mortis present on the body. Soat present in neck and trachea. Hairs were fully of cheery red blood. Mode of death was shock due to excessive loss of body fluid. Patwari also prepared spot map vide Ex.P/8. Seized articles were sent for chemical examination vide Ex.P/23. 3. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'Code') and after completion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Sakti, who in turn committed the case to the Court of Sessions, Bilaspur, from where the learned Additional Sessions Judge, Sakti, received the case on transfer for trial. 4. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 16 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. They have examined defence witness Neelkanth Soni (DW-1), who has deposed that before him no incident took place and he came to know in the village that daughter of brother of appellant Ramkumar has burnt whom they were taking hospital. In his cross-examination he has specifically deposed that he does not know whether daughter was burnt. He has specifically admitted that he was not having any knowledge about the incident. 5. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, Sakti convicted & sentenced the appellants as aforementioned. 6. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 7. Learned counsel for the appellants vehemently argued that case is based on dying declaration made before Sonkunwar Satnami (PW-3), mother of the deceased which does not inspire confidence and trustworthy. Other witnesses have not corroborated the factum of dying declaration. As per initial case of the prosecution, one girl has witnessed the incident, but reason best known to the prosecution the prosecution has not examined her to unfold the real story. In these circumstances, evidence of interested, inimical and relatives witnesses do not inspire confidence and trustworthy and same is not safe to rely. There are material contradictions, omissions and exaggerations in the evidence of Smt. Panbai (PW-1), Ramanarayan Satnami (PW-2) and Sonkuwar Satnami (PW-3). In these circumstances, evidence of interested, inimical and relatives witnesses do not inspire confidence and trustworthy and same is not safe to rely. There are material contradictions, omissions and exaggerations in the evidence of Smt. Panbai (PW-1), Ramanarayan Satnami (PW-2) and Sonkuwar Satnami (PW-3). As per evidence of prosecution witnesses, the injured has made dying declaration before the Police Officer, but the Police Officer has not corroborated the aforesaid factum of dying declaration. Evidence adduced on behalf of the prosecution may be sufficient for drawing inference that the appellants may have committed the offence but same is not sufficient for drawing inference that the appellants have committed the offence. 8. Learned counsel placed reliance in the matter of State of U.P. Vs. Shiv Kumar and others (2005) 11 SCC 212 in which the Supreme Court has held that testimony of one of the alleged eyewitnesses inconsistent with medial evidence which apparently indicating that he had not seen the actual occurrence and presence of the other alleged eyewitness at the scene of occurrence also doubtful, failure to examine deceased's wife, who was alleged to be with him at the time of occurrence, is fatal to the prosecution and accused is entitled for benefit of doubt. Learned counsel further placed reliance in the matter of Narasappa Vs. State of Karnataka (2007) 10 SCC 770 in which the Supreme Court has held that evidence of eyewitness who was not eyewitness to the occurrence and evidence that accused was carrying the dead body, may at the highest raise strong suspicion against the appellant to show his complicity with the crime, but suspicion, howsoever strong it may be, cannot take the place of proof. Therefore, in absence of other witness to connect the appellant with crime in question, conviction of the appellant is unsustainable. Learned counsel also placed reliance in the matter of Sharad Birdhichand Sharda Vs. State of Maharashtra AIR 1984 SC 1622 the Supreme Court has held that in case two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him. Learned counsel relied upon the matter of Sheikh Meheboob alias Hetak and others Vs. Learned counsel relied upon the matter of Sheikh Meheboob alias Hetak and others Vs. State of Maharashtra (2005) 10 SCC 387 in which the Supreme Court has held that in case of homicidal death the prosecution is required to prove that death was homicidal in nature and not suicidal or accidental in nature and if there is suspicion that whether burn injuries, accidental or homicidal, then the accused is entitled for acquittal. Leaned counsel further placed reliance in the matter of Arun Bhanudas Pawar Vs. State of Maharashtra (2008) 11 SCC 232 in which the Supreme Court has held that in absence of proof that injured was in conscious and fit mental condition to make dying declaration, dying declaration cannot be relied upon. 9. On the other hand, learned Government Advocate for the State/respondent opposed the appeal and argued that conviction is substantially based on the evidence of Ramanarayan Satnami (PW-2) and Sonkunwar Satnami (PW-3) whom the deceased has made dying declaration. Prosecution witnesses have also deposed that the injured has made dying declaration to the police, although the police has directly not admitted the factum of dying declaration. Ex.P/10 request for medical examination clearly reveals that it has been informed to Police Officer that appellant Ramkumar has poured kerosene oil over her and set her ablaze which finds place in Ex.P/10. Learned counsel further argued that dying declaration is also a kind of evidence and once it is proved to be true, then same may be sufficient for conviction of the accused. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11. In the present case, death of Anitakumari as a result of ante-mortem burn injuries has not been substantially disputed on behalf the appellants, on the other hand, it is established by the evidence of Dr. S.L. Banjare (PW-9), initial medical examination report Ex.P/11, reference letter Ex.P/15 and autopsy report Ex.P/14 that death of Anitakumari was as a result of burn injuries. 12. As regards the complicity of the appellants in the crime in question, as per F.I.R. Ex.P/3 lodged by Ramnarayan (PW-2), he was informed by one girl about the incident. In para 1 of his evidence he has admitted that one small girl informed him and shouted that Anitabai has bunt, but prosecution has not examined such girl. 12. As regards the complicity of the appellants in the crime in question, as per F.I.R. Ex.P/3 lodged by Ramnarayan (PW-2), he was informed by one girl about the incident. In para 1 of his evidence he has admitted that one small girl informed him and shouted that Anitabai has bunt, but prosecution has not examined such girl. As held by the Supreme Court in the matter of Shiv Kumar1 (supra), in case of inconsistency between medical evidence and evidence of eyewitnesses and doubt about the persons of such eyewitness, non-examination of other witness who was alleged to be present on the spot is fatal to the prosecution and in these circumstances, the accused is entitled for benefit of doubt, although the prosecution has not examined that girl, but any of the parties have not adduced any evidence that girl has seen the incident and was witnessed to the incident. Even otherwise, conviction of the appellants is not based on the evidence of eyewitness, but is based on dying declaration, in these circumstances; non-examination of alleged girl is not fatal to the prosecution. Evidence relating to dying declaration cannot be doubted on the ground of non-examination of alleged child witness. Facts of the case of Shiv Kumar1 (supra) are distinguishable to that of the present case. 13. As regards the fact that conviction is based on dying declaration of deceased Anitakumari made before Smt. Panbai (PW-1), Ramanrayan Satnami (PW-2), father of the deceased, Sonkunwar Satnami (PW-3), mother of the deceased, Surendra Kumar Satnami (PW-7) and Gopal Bhardwaj (PW-8). As per evidence of Sonkunwar Satnami (PW-3) mother of deceased Anitakumari, relations between them and the appellants were not cordial. At the time of incidence on account of sowing vegetable, appellant Ramkumar assaulted Ku. Anitakumari (since deceased), thereafter both the appellants poured kerosene oil over her and set her ablaze. As per para 4 of her evidence, Anita made dying declaration before her that appellant Fulbai poured kerosene oil over her and appellant Ramkumar has set her ablaze. In her detailed cross-examination, she has deposed that she has also stated to police that she has seen the incident, however, such fact does not find place in her statement Ex.D/2 recorded under Section 161 of the Code. In her detailed cross-examination, she has deposed that she has also stated to police that she has seen the incident, however, such fact does not find place in her statement Ex.D/2 recorded under Section 161 of the Code. As per Ex.D/2, her daughter was lying in bum position and appellant Fulbai was keeping kerosene oil and standing near Anita, appellant Ramkumar was keeping match box and also standing near Anita, her daughter was burning and fell down during the course of burning. As per Ex.D/2 Anita made dying declaration that Fulbai has poured kerosene and Ramkumar has set her ablaze, but as per her evidence before the Court she has deposed that she has witnessed the incident. 14. Definitely part of evidence of this witness that she has seen the incident is exaggerated, but if we minutely considered her evidence in the light of Ex.D/2, her statement recorded by the police, then only inference would be possible that considering the circumstances what she has seen at the first instance i.e. burning of body of her daughter, presence of appellant Fulbai with kerosene oil near her daughter, presence of appellant Ramkumar with match box near her daughter even one can safely presume and state that these two persons have caused the aforesaid burn injuries without witnessing the actual incident. Therefore, only on the ground that in Court statement she has claimed herself as eyewitness is not sufficient to discredit her evidence. She has very specifically deposed that her daughter has made dying declaration that appellant Fhulbai has poured kerosene oil and appellant Ramkumar has set her ablaze. 15. Smt. Panbai (PW-1), maternal grandmother of deceased Anitakumari, has deposed in her evidence that deceased has made dying declaration. In para 8 of her cross-examination she has specifically deposed that the deceased has made dying declaration before her and police. Surendra Kumar Satnami (PW-7) and Gopal Bhardwaj (PW-8) have also corroborated the same thing. As per Ex.P/19 merg intimation, constable Jogi Singh was accompanying injured Anita to CIMS, Bilaspur. As per para 12 of evidence of Sub-Inspector Arjun Kumar Singh (PW-12), Jogi Singh has not stated that Anita has made dying declaration before him, although the aforesaid witnesses have deposed the aforesaid fact that the deceased has made dying declaration before police. As per Ex.P/19 merg intimation, constable Jogi Singh was accompanying injured Anita to CIMS, Bilaspur. As per para 12 of evidence of Sub-Inspector Arjun Kumar Singh (PW-12), Jogi Singh has not stated that Anita has made dying declaration before him, although the aforesaid witnesses have deposed the aforesaid fact that the deceased has made dying declaration before police. As per Ex.P/11 first medical examination report, Anita was serious, there was acute emergency, but she was not unconscious, inter alia, she was semiconscious. 16. The deceased has made dying declaration before Smt. Panbai (PW-1) Sonkunwar Satnami (PW-3), Surendra Kumar Satnami (PW-7) and Gopal Bhardwaj (PW-8) and police which they have also categorically deposed in their cross-examinations. This evidence cannot be abrushed on the ground that the prosecution has not examined constable Jogi Singh before whom the deceased has made dying declaration. The prosecution has also examined Ramnarayan Satnami (PW-2), father of the deceased, brother of appellant Ramkumar and brother-in-law of appellant Fulbai. As per para 1 of his evidence, he was sitting with his wife Sonkunwar, brother-in-law Surendra, Gopal, Hari and mother-in-law Panbai. One small child shouted that Anita has burnt, then they rushed, Anita was lying in common courtyard of the appellants and him, then they took Anita to hospital and Police Station. His wife Sonkunwar, his mother-in-law Panbai and father-in-law Mahettar were taken Anita and they were accompanying her. As per para 3 of his evidence he does not know whether his daughter was examining by the doctor at Jatjaipur hospital or not because he was at Police Station. The prosecution has declared him hostile. In paras 11 and 12 of his cross-examination he has denied the factum of dying declaration. In para 13 he has deposed that his and appellants' kitchen are separate. Empty jerry can was lying in his kitchen, kerosene oil was also found in his kitchen and Anita has made dying declaration to him that she herself has poured kerosene oil and set her ablaze. In para 14 of his cross-examination he has further deposed that his daughter was lying unconscious on the spot and she was not in a position to talk or state anything. In para 14 of his cross-examination he has further deposed that his daughter was lying unconscious on the spot and she was not in a position to talk or state anything. He has further deposed that police was not accompanying his daughter at the time of taking her daughter to hospital, but this fact has been controverted by Smt. Panbai (PW-1) who was mother-in-law of Ramnarayan (PW-2), Sonkunwar Satnami (PW-3), his wife, Surendra (PW-7) and Gopal (PW-8) his bother-in-laws. Prosecution has declared this witness hostile, although he is father of the deceased but also brother of appellant Ramkumar and brother-in-law of appellant Fulbai. This is not the fact that this witness i.e. father of the deceased is not supported the case of the prosecution but as per his evidence he alone has gone to Police Station for lodging the report and Police was not accompanying his daughter while she was taking to hospital for treatment at Jaijaipur. His aforesaid deposition is contradicted by his another document Ex.P/3 F.I.R., another document Ex.P/10 requisition for medical and medical examination report Ex.P/11 which dearly reflect that the deceased was talking at the time of incident, she made dying declaration to this witness which he has informed to police in F.I.R. Ex.P/3, Ex.P/10 her medical examination prepared by police and evidence of Dr. S.L. Banjare (PW-9) that Anita was not unconscious, but she was semiconscious. 17. These documentary evidence and evidence of Dr. S.L. Banjare (PW-9)/public servant clearly reveal that Ramnarayan Satnami (PW-2) is telling lie. It appears that alter death of his daughter with a view to save his brother and sister-in-law from prosecution and conviction. It is unfortunate for him with a view to save his brother and sister-in-law he has recycled from his document and statement and has not deposed true fact relating to the incident of his real daughter. 18. Evidence of Sonkunwar Satnami (PW-3) relating to dying declaration made by her daughter before her and police finds corroboration from the evidence of Smt. Panbai (PW-1), her mother, Surendra Kumar Satnami (PW-7) and Gopal Bhardwaj (PW-8), her brothers whose presence has been admitted by hostile witness Ramnarayan Satnami (PW-2). 19. 18. Evidence of Sonkunwar Satnami (PW-3) relating to dying declaration made by her daughter before her and police finds corroboration from the evidence of Smt. Panbai (PW-1), her mother, Surendra Kumar Satnami (PW-7) and Gopal Bhardwaj (PW-8), her brothers whose presence has been admitted by hostile witness Ramnarayan Satnami (PW-2). 19. As per medical evidence, even at the time of initial treatment/medical examination at Jaijaipur at 7.35 p.m. after two hours of the incident Anitakumari (since deceased) was not unconscious but was semiconscious corroborates the evidence of other witnesses that at the time of incident and during the course of journey Anita was in a position to talk and state. As per Ex.P/3, she had made dying declaration that both the appellants have committed the offence. Smt. Panbai (PW-1), Sonkunwar Satnami (PW-3), Surendra Kumar Satnsmi (PW-7) and Gopal Bhardwaj (PW-8) are relatives of deceased Anitakumari, they are also relatives of the appellants. Strained relation between both the parties has not been disputed. Their presence near the place of incident was not unnatural, but only on the ground of relationship or enmity their evidence cannot be discarded. It requires minute scrutiny before accepting it. 20. While dealing with the question of evidentiary value of relatives, interested and inimical witnesses, the Supreme Court in the matter of Dalip Singh Vs. State of Punjab (1954) 1 SCR 145 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under :-- "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth" 21. As held by the Apex Court in the matter of Mohabbat and Ors. Vs. As held by the Apex Court in the matter of Mohabbat and Ors. Vs. State of M.P. 2009 AIR SCW 1486, relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads as under : "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible." 22. While dealing with the same question, the Supreme Court in the matter of Guli Chand and others Vs. State of Rajasthan (1974) 3 SCC 698 has held that mere fact that relative witness or his relations is not sufficient to discard his testimony. 23. While dealing with the same question, the Supreme Court in the matter of Sharad Birdhichand Sarda3 (supra) held that in view of the close relationship and affection any person related to the deceased would have, such a witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Para 48 of the said judgment reads as under :-- "48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. Para 48 of the said judgment reads as under :-- "48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." 24. The deceased was not unconscious at the time of incident or till her medical examination, in these circumstances, it was natural and proper to inform the cause of incident by her to her close relatives in the shape of dying declaration. Dying declaration is also a kind of witness and once it is proved to be true then same may be based for conviction. 25. The principle of dying declaration is based on legal maxim "nemo moriturus proesumitur mentiri" a man will not meet his maker with a lie in his mouth. 26. Lord Chief Justice Baron Eyre {See. Dying declaration is also a kind of witness and once it is proved to be true then same may be based for conviction. 25. The principle of dying declaration is based on legal maxim "nemo moriturus proesumitur mentiri" a man will not meet his maker with a lie in his mouth. 26. Lord Chief Justice Baron Eyre {See. R.V. Woodcock, (1789) 1 Lea 502} expressed his view relating to dying declaration as follows :-- "........That such declarations are made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that which is imposed by a positive oath in a court of justice........." 27. As held by the Supreme Court in the matter of Sharad Birdhichand Sarda3 (supra), in case of two views favourable to accused was accepted, but in the present case there are no two views and one favouring to accused but this is the case of one view and proved facts, therefore, facts of the case of Sharad Birdhichand Sarda3 (supra) are distinguishable to that of the present case. 28. As held by the Supreme Court in the matter of Narasappa2 (supra), conviction is not based on the evidence of eyewitness but on dying declaration made before relatives which finds corroboration from independent sources. Evidence relating to dying declaration is credible and clinching in nature. Facts of the case of Narasappa2 (supra) are distinguishable to that of the present case. 29. As held by the Supreme Court in the matter of Sheikh Meheboob alias Hetak and others4 (supra), this is not the case of contradictory dying declaration relating to accidental burn or self inflicting burn or homicidal burn but this is clear case of burn injuries for causing homicidal death. Facts of the case of Sheikh Meheboob alias Hetak and others4 (supra) are distinguishable to that of the present case. 30. As held by the Supreme Court in the matter of Arun Bhanudas Pawar5 (supra), the prosecution is required to prove that injured was in a position to give statement or was in a fit state of mind to give statement. 30. As held by the Supreme Court in the matter of Arun Bhanudas Pawar5 (supra), the prosecution is required to prove that injured was in a position to give statement or was in a fit state of mind to give statement. Evidence of the aforesaid witnesses are sufficient to prove the aforesaid facts. 31. Evidence of Smt. Panbai (PW-1), Sonkunwar Satnami (PW-2), Surendra Kumar Satnami (PW-7) and Gopal Bhardwaj (PW-8) corroborated by medical evidence, evidence of Dr. S.L. Banjare (PW-9), medical examination report Ex.P/11 and autopsy report Ex.P/14 are sufficient to give only conclusive finding that both the appellants in sharing common intention have set Anitakumari ablaze and she died as a result of such burn injuries. 32. After appreciating the evidence available or record, the trial Court has convicted the appellants under Section 302/34 of the I.P.C. Conviction of the appellants is based on credible and clinching evidence sustainable under the law. 33. On close scrutiny, we do not find any illegality or infirmity in the judgment of conviction and order of sentence or any other ground for disagreement on the finding. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed.