Judgment : [A.R. Joshi, J.] Heard the rival arguments in this criminal Appeal preferred by both the Appellants-Accused challenging their conviction for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 2. Both the Appellants-Accused were convicted in Sessions Case No.105 of 2003, vide Judgment and order dated 13th November, 2005, passed by the V Additional Sessions Judge, Solapur. Both the Appellants-Accused were convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (IPC) and were sentenced to suffer imprisonment for life and to pay fine of Rs.1000/-each and in default to suffer S.I. for three months each. Both the Appellants were acquitted of the offence punishable under Section 504 of the Indian Penal Code. 3. The case of the prosecution, in nutshell, is as under: The victim is a young girl of 18 years by name Manisha Popat Kale and was staying along with her sister Surekha (P.W.1) and their mother at Bhambure Wasti, Kurduwadi, Taluka Madha, District Solapur. In the near vicinity of the house of the victim there was residence of both the Appellants-Accused. Both the Appellants-Accused are husband and wife and they were staying jointly with one Banya Kale, brother of Appellant Accused No.1. 4. According to the case of the prosecution, though the Appellants were married to each other, Appellant No.2 Tolabai Kale was having illicit relation with Banya Kale. About ten days prior to the fateful incident, the said Banya Kale married to one another girl and probably it was not liked by the Appellant Accused No.2. On that count, there was quarrel between both the Appellants on one side and said Banya Kale on the other side. Said quarrel occurred in the evening of 10th November, 2002 i.e. one day prior to the fateful incident. During that quarrel on 10th November, 2002, both the Appellants assaulted said Banya Kale. Victim girl Manisha intervened the quarrel and tried to rescue Banya Kale from the clutches of the Appellants. Due to this intervention and assistance rendered by the victim girl, Banya Kale escaped the assault and ran away from the spot. This action of the victim girl infuriated both the Appellants and apparently they taught a lesson to the victim girl as it happened on the next day evening i.e. on the fateful day. 5. Due to this intervention and assistance rendered by the victim girl, Banya Kale escaped the assault and ran away from the spot. This action of the victim girl infuriated both the Appellants and apparently they taught a lesson to the victim girl as it happened on the next day evening i.e. on the fateful day. 5. It is also the case of the prosecution that on the day of incident i.e. on 11th November, 2002, in the evening between 6.00 p.m. to 7.00 p.m. or there about the victim Manisha and her sister P.W.1 Surekha were at home. That time both the Appellants entered the house and started quarreling with victim Manisha. They started beating her. That time, Appellant-Accused No.1 took out one plastic can containing kerosene from the house of the victim and poured the kerosene on the person of victim Manisha. Appellant-Accused No.2 set on fire the said Manisha by igniting match stick and thrown it on the person of the victim. Witnessing this incident of setting her sister on fire by the Appellants, P.W.1 Surekha tried tointervene, however, she was also manhandled by the Appellants and both of them ran away from the spot. With the help of other neighbours P.W.1 Surekha manged to get her sister Manisha immediate medical help. Victim Manisha was initially taken to Kurduwadi Rural Hospital. However, prior to that on witnessing the incident of setting Manisha on fire, P.W.1 Surekha immediately rushed to Kurduwadi Police Station and narrated the incident to the police. Thereafter, victim was taken to Rural Hospital. At the Rural Hospital, after giving immediate treatment, after noticing the gravity of the burn injuries, the patient was advised to be taken to the Civil Hospital, Solapur. Accordingly, on the same night, victim Manisha was taken to the Civil Hospital at Solapur. 6. According to the case of the prosecution at Civil Hospital, Solapur, a history was given at the time of the admission as to both the Appellants indulging in the act of pouring kerosene and setting the victim Manisha on fire. According to the medical officer P.W.6 Dr. Dodamani, said history was given by the victim herself, however, according to substantive evidence of P.W.1 Surekha Kale, she gave the history to the doctor at Civil Hospital Solapur. While the victim Manisha was under treatment, two dying declarations were recorded. According to the medical officer P.W.6 Dr. Dodamani, said history was given by the victim herself, however, according to substantive evidence of P.W.1 Surekha Kale, she gave the history to the doctor at Civil Hospital Solapur. While the victim Manisha was under treatment, two dying declarations were recorded. First one being Exhibit19 recorded by P.W.4 Police Head Constable Maruti Bujale and second one was recorded being Exhibit16 by P.W.2 Special Judicial Magistrate Mohammad Shafee. At this stage, it must be mentioned that though according to the case of the prosecution, Exhibit19 was the dying declaration given by the victim Manisha to the Police Constable and which indicate the role given to both the Appellants-Accused and mentioning regarding commission of cognizable offence, still apparently no First Information Report (FIR) was lodged. But still according to the case of prosecution, it is a factual position that on that night itself, after recording of Exhibit19, intimation was given to the Special Executive Magistrate Mohammad Shafee, P.W.2 by some police person and on such intimation and request said P.W.2 attended Solapur Civil Hospital and recorded the dying declaration Exhibit16. 7. According to the case of the prosecution that even after recording of both the dying declarations, still there was no registration of the offence and it was registered only on 14th November, 2002, for the offences punishable under Section 307, 504 read with Section 34 of the Indian Penal Code. On the same day of registration of the offence, spot panchanama Exhibit23 was conducted in which P.W.5 one panch Hanmant Munghhi took part. During investigation, statements of witnesses were recorded. While under treatment, victim Manisha scummed to the burn injuries on 15th November, 2002. Hence, offence punishable under Section 302 of Indian Penal Code was inserted in the charge instead of offence punishable under Section 307 of the Indian Penal Code. Inquest panchanama was prepared. The dead body of the victim was sent for postmortem. Various muddemal properties were sent for C.A. and after completion of investigation, chargesheet was filed. The matter was committed to the Court of Sessions and it was finally heard and disposed of by the impugned Judgment and order dated 13th November, 2005, which is challenged in the present Appeal. 8. The entire case of the prosecution mainly rest on the dying declarations given by the victim Manisha. The matter was committed to the Court of Sessions and it was finally heard and disposed of by the impugned Judgment and order dated 13th November, 2005, which is challenged in the present Appeal. 8. The entire case of the prosecution mainly rest on the dying declarations given by the victim Manisha. Initially, on the admission in Civil Hospital Solapur, history was given by the victim as to Appellant-Accused No.2 poured kerosene on her person and Appellant-Accused No.1 set her on fire by using ignited match stick. On this aspect, as to the specific role assigned to each of the Appellants-Accused, much is argued on behalf of the Appellants and it was emphasized that there is rather variance in the contents of the said history allegedly given by the victim and the contents of the dying declarations Exhibits19 and 16, respectively recorded by the Police Head Constable P.W.4 and Special Judicial Magistrate, P.W.2. This argument shall be dealt in detail at the appropriate place herein when we will deal with points of the defence raised on behalf of the Appellants. 9. The case of the prosecution also based on the oral dying declaration given before P.W.3 Sanatan Kale, brother of the victim girl. According to the case of the prosecution, when P.W.3 Sanatan Kale knew regarding the incident of setting his sister on fire, he visited Civil Hospital at Solapur and met his sister, victim Manisha. He made inquiries with her and that time Manisha disclosed him regarding quarrel between the Appellants-Accused on one side and Banya Kale on the other side and as to her intervention in the quarrel and thereafter on the next day both the Appellants-Accused entering in the house of the victim and pouring kerosene on her person and setting her on fire. The case of the prosecution also rest on the substantive evidence of PW.1 Surekha, sister of the victim. 10. Now bearing in mind the substantive evidence of above referred prosecution witnesses and mainly the evidence of dying declarations, the arguments advanced on behalf of both the Appellants can be narrated as under. The arguments were many fold and various infirmities in the collection of evidence by the investigating agency, have been brought to our notice. 10. Now bearing in mind the substantive evidence of above referred prosecution witnesses and mainly the evidence of dying declarations, the arguments advanced on behalf of both the Appellants can be narrated as under. The arguments were many fold and various infirmities in the collection of evidence by the investigating agency, have been brought to our notice. The defence on behalf of the Appellants is mainly on the following points: (i) The First Information Report (FIR) is recorded much belatedly i.e. on 14th November, 2002 when the actual incident of burning occurred on the evening of 11th November, 2002. (ii) No independent witnesses from the neighbourhood of the residence of the victim were examined and the witnesses examined being P.W.1 and P.W.3 are the sister and brother and hence interested witnesses. (iii) Both the dying declarations Exhibits19 and 16, respectively, cannot be accepted as worth of reliance and hence they are required to be discarded due to variance in the contents. 11. Now, considering the first argument as to delayed recording of the FIR, we have carefully gone through the substantive evidence of P.W.1 Surekha. She had narrated the entire story as to the events which took place on the day of the incident and also on the earlier day. He has also stated that immediately after witnessing the incident of pouring kerosene over her sister Manisha and setting her on fire by both these Appellants-Accused, she tried to intervene, but she was manhandled. As per the said witnesses both the Appellants ran away from the spot after setting the victim on fire, and then she rushed to the Kurduwadi police station and reported the matter. Thereafter, the victim Manisha was taken for medical treatment as mentioned above. On this aspect of P.W.1 Surekha going to Kurduwadi police station, immediately for reporting the matter to the police there is no cross-examination. In other words, it must be stated that this evidence of P.W.1 Surekha, as to reporting the matter to the police immediately on the same night, has gone uncontroverted. Inspite of this factual position, it is argued on behalf of the Appellants that there was no registration of the offence till 14th November, 2002, as according to the investigating officer the formal registration of the First Information Report was done on that day. Inspite of this factual position, it is argued on behalf of the Appellants that there was no registration of the offence till 14th November, 2002, as according to the investigating officer the formal registration of the First Information Report was done on that day. In our considered view, the substantive evidence of P.W.1 Surekha which is unchallenged as to giving immediate intimation of the offence, is of much significant. Though, there is nothing brought on record as to what had prevented the investigating officer not to take cognizance of the matter immediately after such reporting by P.W.1 Surekha, still it cannot be said that non-action on the part of the police machinery for causing delay in registering the FIR is of such a magnitude to throw away the entire case of the prosecution. This is more so when according to the case of the prosecution itself on 11th November, 2002, on that night two dying declarations came to be recorded being Exhibits19 and 16, respectively, through P.W.4 Maruti Bujale and P.W.2 Mohammad Shafee. Even at that juncture probably there were no steps taken by the investigating machinery to register the offence and to take over the investigation. However, this lacuna cannot be considered as a circumstance in favour of the Appellants-Accused. Otherwise also there is substantive evidence of P.W.4 Maruti Bujale mentioning that he received the intimation from the Civil Hospital Solapur regarding admission of one patient for burn injuries. Accordingly, he visited the hospital and after enquiry with the attending doctor medical officer P.W.6 Dr. Dodamani and after obtaining his endorsement vouching the consciousness and orientation of the patient, recorded the statement Exhibit19. Thereafter also according to P.W.4 Maruti, he though that the condition of the patient was serious and accordingly P.W.2 Mohammad Shafee was summoned on request made over telephone. P.W.2 Mohammad Shafee, the Special Judicial Magistrate attended on that night at about 11.00 p.m. or so at Civil Hospital, Solapur and met the attending doctor Mr. Dodamani and after ascertaining the medical condition of the patient, he recorded the dying declaration Exhibit16. P.W.2 Mohammad Shafee, the Special Judicial Magistrate attended on that night at about 11.00 p.m. or so at Civil Hospital, Solapur and met the attending doctor Mr. Dodamani and after ascertaining the medical condition of the patient, he recorded the dying declaration Exhibit16. Considering the above circumstances and considering that in fact the stages of the investigation were already started by way of calling the Special Judicial Magistrate and asking him to take the statement of the victim Manisha, it will not be of much significant and also it will not be to the help of the Appellants-Accused that the formal registration of the FIR was belated. 12. So far as the non-examination of any independent witness is concerned, though it is a factual position that P.W. 1 and P.W. 3 who have been examined are close relatives, i.e. sister and brother of the victim Manisha, this fact in itself cannot be considered as a mitigating circumstance to the case of the prosecution, if otherwise the case of the prosecution is trustworthy of placing reliance. In other words, it must be stated that though the examination of the independent witnesses would have strengthened the case of the prosecution, the non-examination of the said witnesses is not a circumstance mitigating state case. It is to be ascertained whether the substantive evidence of P.W. 1 Surekha and P.W. 3 Sanatan Kale inspire confidence or not. 13. Now coming to the main defence and main objection on the contents of the dying declarations. It is argued on behalf of the Appellants that there is rather variance in the contents of both the dying declarations Exhibits19 and 16, respectively, in as much as, in the first one there is a mention of the motive by way of alleged illicit relations between the Appellant-Accused No.2 and one Banya Kale, brother of Appellant-Accused No.1. Whereas, in dying declaration Exhibit16, there is no such motive or any mention regarding such illicit relations between the concerned persons. On this aspect, we have carefully gone through the contents of said dying declarations. It is a matter of evidence on record by way of substantive evidence of P.W.6 medical officer Mr.Dodamani, that he has examined the patient prior to and also after recording of these dying declarations and he gave his endorsement on it, vouching the condition of the victim being able to give statement. It is a matter of evidence on record by way of substantive evidence of P.W.6 medical officer Mr.Dodamani, that he has examined the patient prior to and also after recording of these dying declarations and he gave his endorsement on it, vouching the condition of the victim being able to give statement. The main gist of the prosecution case is lying in the circumstance that both the Appellants entered in the house of the victim and set the victim Manisha on fire by pouring kerosene on her person. In fact, this is the main thread of the case of the prosecution. This factual position is clearly mentioned in both the dying declarations and there is no variance on this aspect though the dying declaration at Exhibit16 do not mention regarding the illicit relationship between Appellant-Accused No.2 and Banya Kale. In our considered view, only because of this variation on the aspect not connected with the main incidence as to establishing the actual involvement of the Appellants, cannot be taken to doubt both the dying declarations. 14. Again on the aspect of dying declarations, it is strongly argued that in both the dying declarations Exhibits16 and 19, respectively, role is assigned to Appellant Accused No.1 as that of pouring kerosene and role assigned to Appellant-Accused No.2 is that of setting the victim on fire by using ignited match stick. As against this, it is brought to our notice from the substantive evidence of medical officer P.W.6 Dr. Dodamani that the history given by the victim mentions that the Appellant-Accused No.2 poured kerosene on her person and Appellant-Accused No.1 set her on fire by using match stick. Again on this aspect, our attention is drawn towards the substantive evidence of defence witness D.W.1 medical officer Dr. Anil Nehtarao from Kurduwadi Rural Hospital. According to Dr. Nehtarao, there was no specific history given at the time of admission of the patient as to in what manner the burn injuries were sustained by the victim. The only history mentioned in the case papers according to Doctor D.W.1 Dr. Nehtarao is regarding burn injuries. Much emphasis was placed on the absence of any specific history at the immediate available opportunity and it is further argued that the history specifically given to PW.6 Dr. Dodamani at Civil Hospital, Solapur, is in fact a concoction. The only history mentioned in the case papers according to Doctor D.W.1 Dr. Nehtarao is regarding burn injuries. Much emphasis was placed on the absence of any specific history at the immediate available opportunity and it is further argued that the history specifically given to PW.6 Dr. Dodamani at Civil Hospital, Solapur, is in fact a concoction. On this aspect, substantive evidence of this witness is carefully gone through by us. During his cross-examination, said witness had admitted that in cases of burn patients initially the patient may not be in a position to give statement but subsequently on administration of medical treatment the patient may be in a position to depose. In other words, considering this substantive evidence in our considered view, not giving the specific role to any of the Appellants while giving the history at Kurduwadi Rural hospital, is not of much importance. Otherwise also if the suggestion as to concoction of the entire case and concoction of giving of the history and dying declarations at the Civil Hospital, Solapur, is accepted then in that event, there is nothing to accept on preponderance of probability brought on record on behalf of the Appellants, to disbelieve P.W. Nos. 2, 4 and 6. It is significant to note that P.W 6 Dr. Dodamani, Medical Officer is attached to Civil Hospital, Solapur and apparently there is nothing for him to concoct the story with the help of the police officer P.W.4 Maruti to falsely implicate the Appellants. Moreover, it is significant to note that P.W.2 Mohammad Shafee is a Special Judicial Magistrate who had recorded the statement of the victim Exhibit16. If the bare suggestion as to concoction of the story is to be accepted, again the evidence of P.W.2 Mohammad Shafee has to be disbelieved, however, it must be stated that in the absence of any material even to accept on preponderance of probability, such defence/suggestion has no weight so as to further defence of the Appellants. 15. It is also argued that the alleged motive of illicit relations is not probable. Further, it is argued before us that there was in fact no cause for the Appellant-Accused No.1 to beat his own brother Banya Kale so also there was no cause for the Appellant-Accused No.2 to beat Banya Kale. 15. It is also argued that the alleged motive of illicit relations is not probable. Further, it is argued before us that there was in fact no cause for the Appellant-Accused No.1 to beat his own brother Banya Kale so also there was no cause for the Appellant-Accused No.2 to beat Banya Kale. On this aspect, the case of the prosecution and furthered by substantive evidence of P.W.1 Surekha and also substantiated by the dying declaration Exhibit19, cannot be overlooked. In fact, whatever the cause for the fight/quarrel between the Appellants on one side and Banya Kale on the other side was due to marriage of Banya Kale with some other girl, performed about a week prior to the incident. It is quite apparent that considering the case of the prosecution as to Banya Kale having illicit relations with the wife of his own brother, there was every reason for the Appellant-Accused No.1 to fight with his own brother. So also, apparently, there was a reason for Appellant-Accused No.2 to quarrel with Banya Kale when he had married with some other girl and this has infuriated the Appellant-Accused No.2. In any event, whether or not the motive is proper or not, is not of much importance when the case of the prosecution is based on the substantive evidence of P.W. 1 and P.W. 3 and also based on the dying declarations, as detailed above. In that event, there is nothing to interfere with the impugned Judgment and order of conviction passed against both the Appellants as there is no merit in the present Appeal and hence the same is, accordingly, disposed of with following order : ORDER i. Criminal Appeal No.546 of 2005, is dismissed. ii. The present Judgment and order be communicated to both the Appellants-original accused through the concerned jail authorities where they are presently lodged.