Judgment: Hardas, J. 1. The appellant, who stands convicted for an offence punishable under section 498-A, 342 and 302 of the Indian Penal Code and sentenced to R.I. for three years and to pay fine of Rs.2,000/-, in default of which to undergo further R.I. for six months; R.I. for one year and to pay fine of Rs.1,000/-, in default of which to undergo further R.I. for six months and imprisonment for life and to pay fine of Rs.2,000/-, in default of which to undergo further R.I. for six months, with a direction that the substantive sentences shall run concurrently, by the Additional Sessions Judge, Ahmednagar, by judgment dated 7.2.2011, in Sessions Case No.171 of 2009, by this appeal questions the correctness of his conviction and sentence. 2. Facts in brief, as are necessary for the decision of this appeal, may briefly be stated thus:- P.W.1 Gorakshanath Ghugarkar, who was working as a Special Judicial Magistrate, received a communication at Exh.10 on 7.5.2009, at about 10.30 a.m. requesting him to record the dying declaration of Bashira, wife of the appellant. He accordingly proceeded to the Civil Hospital and contacted P.W.9 Dr. Suvarnamala Bangar and requested her to ascertain the condition of Bashira to give her statement. Accordingly, P.W.9 Dr. Bangar examined injured Bashira and opined that she was in a fit condition to give her statement. An endorsement was accordingly made on the paper on which the dying declaration was to be scribed. P.W.1 Gorakshanath thereafter introduced himself to Bashira and ascertained for himself that Bashira was in a fit condition to give her statement and accordingly recorded the statement of Bashira at Exh. 11. As per Exh.11 Bashira had stated that the appellant, who was suspecting her fidelity, poured kerosene on her and set her ablaze. The said dying declaration was thereafter forwarded by P.W.1 Gorakshanath to the police station. P.W.6 Police Head Constable Abdul Raje, who was attached to the Pathardi police station, received a sealed envelope from the Police Officers of the Tophkhana police station and on the basis of the dying declaration of Bashira, recorded by P.W.1 Gorakshanath, registered an offence vide Crime No.102 of 2009, under section 498-A, 307, 323, 504 and 506 of the Indian Penal Code. After registration of the offence, the investigation was handed over to P.W.8 Budhiraj Sukale. 3. After registration of the offence, the investigation was handed over to P.W.8 Budhiraj Sukale. 3. P.W.8 P.S.I. Sukale, who was attached to the Pathardi police station, was entrusted with the investigation of Crime No.102 of 2009. He accordingly proceeded to the scene of the incident and drew the scene of the incident panchnama in the presence of panch witnesses at Exh.16. From the scene of the offence half burnt clothes of injured, one plastic drum smelling of kerosene, one match box, five match-sticks and one burnt match-stick were seized. Statements of witnesses were recorded and search for the accused was commenced. On 9.5.2009, the appellant/accused was arrested in the presence of panchas under arrest panchnama at Exh.28. Meanwhile, it appears that injured Bashira succumbed to her injuries, i. e. on 11.5.2009 and accordingly the inquest panchnama of the dead body of Bashira was drawn in the presence of panchas at Exh. 18. With the permission of Judicial Magistrate section 302 of the Indian Penal Code was added. Statements of other witnesses were recorded and the dead body of deceased Bashira was referred for post mortem examination. The seized articles were thereafter sent to the Chemical Analyzer under requisition at Exh.30. The report of the Chemical Analyzer is at Exh.31. Further to the completion of investigation a charge-sheet against the appellant was submitted. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.4 framed charge against the appellant for offence punishable under section 498-A, 302 and 342 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined nine witnesses. The defence of the appellant is of denial and has pleaded alibi. 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 Joydeep Chatterji, learned Counsel for the appellant and the learned Additional Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. 6. Court witness no.1 Dr. Pralhad Nagargoje states that he was attached to the Sub-District Hospital at Pathardi and on 6.5.2009 was on duty. On that day, at about 11.45 a.m., one Bashira was brought to the hospital by her mother-in-law. C.W.1 Dr. Nagargoje examined her and inquired from Bashira about the injuries. 6. Court witness no.1 Dr. Pralhad Nagargoje states that he was attached to the Sub-District Hospital at Pathardi and on 6.5.2009 was on duty. On that day, at about 11.45 a.m., one Bashira was brought to the hospital by her mother-in-law. C.W.1 Dr. Nagargoje examined her and inquired from Bashira about the injuries. Bashira had informed him that she had sustained burns due to the explosion of the stove at 10.00 a.m. A referal letter was then given by C.W.1 Dr. Nagargoje for treatment of Bashira at the Civil Hospital, Ahmednagar. It further appears that the extract of the M.L.C. register, in which the history narrated by Bashira was recorded, is at Exh.44, while the case paper is at Exh.46. In cross-examination on behalf of the A.P.P., Dr. Nagargoje has admitted that in Exh.45 the words "given by patient" appear to have been recorded not in continuation of the sentence. Dr. Nagargoje has further admitted that mother-in-law of Bashira was along with the patient. In cross-examination on behalf of the appellant, Dr. Nagargoje has admitted that in Exh.45 there is a reference regarding the history given by the patient. He has admitted that he had asked the patient the history and the patient was conscious at that time but was restless. He has admitted that the patient as well as her relatives were not acquainted with him. 7. The dying declaration at Exh.11 was recorded by P.W.1 Gorakshanath. P.W.1 Gorakshanath has been cross-examined and he has admitted that the words "Arvachya and Ashlil", which are mentioned in the dying declaration, are the words uttered by the patient. He has also admitted that when he had gone to the hospital, the relatives of the patient were near her bed. He has admitted that he had not made any inquiry with any other person in the hospital about the patient. From the perusal of the cross-examination, it appears that no dent has been made to the evidence of P.W.1 Gorakshanath in respect of the narration of the recitals of the dying declaration by Bashira and his recording of the aforesaid narration. It further appears that since the hands of Bashira had sustained burns, the toe impression was obtained on the dying declaration. It further appears that since the hands of Bashira had sustained burns, the toe impression was obtained on the dying declaration. The dying declaration at Exh.11 contains the endorsement of the Medical Officer before the commencement of the recording of the dying declaration as well as contains the endorsement of the Medical Officer on conclusion of the recording of the dying declaration. 8. P.W.9 Dr. Bangar had examined Bashira and had opined that she was in a fit condition to give her statement. P.W.9 Dr. Bangar states that on 7.5.2009 she was on duty as the Casualty Medical Officer and was present in the O.P.D. P.W.1 Gorakshanath requested her to ascertain the condition of the patient, whether she was in a position to give the statement. She states that she along with P.W.1 Gorakshanath had gone to the Burn Ward. The relatives were asked to withdraw themselves from the ward. Thereafter she had questioned the patient, in order to ascertain if she was well oriented and checked her medically and found that she was conscious and oriented. She accordingly made an endorsement on the dying declaration to that effect. She has proved the endorsement at Exh.36. She further states that the Magistrate thereafter recorded the dying declaration of Bashira and upon its conclusion she again examined the patient and found that the patient was conscious and oriented throughout the recording of the statement. P.W.9 Dr. Bangar thereafter made an endorsement to that effect at Exh.37. She has admitted that Bashira was admitted in the Civil Hospital at Ahmednagar by one Shabbir Shaikh, i.e. maternal uncle. She has admitted that the case papers mention history of burns on 6.5.2009, at about 10.00 a.m. She has further stated that the patient was conscious and oriented. She has further admitted as correct that the general condition of Bashira on 7.5.2009, at the time of the round of the Medical Officer was "low" and she was semi-conscious. She has admitted that pain killer had been administered to Bashira. She has also admitted that the injection of Diclfenac does not cause drowsiness. She has admitted that when she had gone to the Burn Ward, the relatives of the patient were present near the patient. She has admitted that she was not asked to go out by the Magistrate. She has admitted that pain killer had been administered to Bashira. She has also admitted that the injection of Diclfenac does not cause drowsiness. She has admitted that when she had gone to the Burn Ward, the relatives of the patient were present near the patient. She has admitted that she was not asked to go out by the Magistrate. She has stated that the Magistrate had obtained the left hand thumb impression of the patient on her statement. 9. Shri Joydeep Chatterji, learned Counsel for the appellant has urged before us that the dying declaration at Exh.11 is the outcome of tutoring by the relatives of the deceased since the relatives were present near deceased Bashira when the Magistrate had gone for recording her statement. The learned Additional Public Prosecutor has supported the findings arrived at by the Trial Court. 10. The relatives of Bashira were informed about Bashira sustaining the burns and consequently they had rushed to the hospital. Mere presence of the relatives, which is natural, would not lead to an inference that the relatives had tutored Bashira to give a statement adverse to the appellant. Mere presence of the relatives by itself is not enough to lead to an inference about tutoring. There has to be something more in the evidence to indicate the possibility of the victim being tutored by the relatives. The appellant has not been able to establish that the relatives were so inimically disposed towards him that they would to go an extent of tutoring Bashira, who had sustained more than 90% burns. We are, therefore, not in agreement with the submission advanced before us by the learned Counsel for the appellant that Exh.11 is the outcome of tutoring of Bashira by the relatives. The learned Counsel for the appellant faintly suggested that the Medical Officer had stated that the thumb impression of the left hand was obtained, while in reality the toe impression had been obtained. P.W.9 Dr. Bangar had deposed on the basis of memory and, therefore, this stray admission by itself would not materially affect the recording or the genuineness of the dying declaration at Exh.11. 11. Prosecution has examined P.W.5 Shamshoddin Maniyar, father of deceased Bashira. P.W.5 Shamshoddin states that Bashira was married to the appellant on 21.12.2008. The appellant was residing at Ambika Nagar. After the marriage Bashira went to reside with the appellant. 11. Prosecution has examined P.W.5 Shamshoddin Maniyar, father of deceased Bashira. P.W.5 Shamshoddin states that Bashira was married to the appellant on 21.12.2008. The appellant was residing at Ambika Nagar. After the marriage Bashira went to reside with the appellant. Mother-in-law and brother-in-law of Bashira were also residing with Bashira at that time. Bashira was treated well initially for some time, but thereafter the appellant used to beat Bashira as he was suspecting the character of Bashira. Bashira had informed P.W.5 Shamshoddin about the illtreatment given to her by the appellant. Shamshoddin further states that Bashira used to inform his nephew P.W.7 Kalindar and P.W.7 used to telephone him and inform about what Bashira had narrated to him. Bashira had resided with Shamshoddin for fifteen days and on the assurance of the accused that he would not assault Bashira, Bashira was sent with the appellant. In respect of the incident, he states that on 6.5.2009 he had received a telephone from one Kaurabai that Bashira had sustained burns and there was no possibility of Bashira surviving. He had accordingly gone to the hospital at 6.30 p.m. and had seen Bashira. He had questioned Bashira as to how she had sustained the burns and Bashira had informed him that when she was cooking,the appellant had come to the house and had abused her filthily. The accused had suspected her character and had also alleged that she was not performing the marital obligation. The appellant had thereafter assaulted her by a stick and then poured kerosene on her and had set her ablaze. The appellant thereafter fled from the house and had latched the door from outside. Bashira succumbed to her injuries on 11.5.2009 and thereafter the funeral of Bashira was performed. In cross-examination he has admitted that Bashira was residing at Bombay along with him prior to her marriage. He has admitted that Bashira was illiterate. He has denied the suggestion that Bashira was married to the appellant against her wish. He has admitted that sister of the accused is married to his son Ramjan. He has denied the suggestion that the appellant resides in a hut and that he is not economically sound. He has denied the suggestion that Bashira was required to work as a labour while staying with the appellant. He has admitted that sister of the accused is married to his son Ramjan. He has denied the suggestion that the appellant resides in a hut and that he is not economically sound. He has denied the suggestion that Bashira was required to work as a labour while staying with the appellant. He has admitted as true that the appellant and his mother had come to Bombay and had requested him to send Bashira back assuring him that they would not send Bashira to work as a labour. He has admitted that he did not inform about the illtreatment to his other daughter. He has immediately admitted that his other daughter had telephoned him and had informed him about the illtreatment to Bashira by the appellant. An admission is then elicited in the cross-examination that "my daughter had told me that she was compelled to say at the time when she was admitted in the hospital at Pathardi that she received burns while cooking. I say that I had gone to lodge complaint in that respect but it was not accepted. I did not give written complaint to Superintendent of Police. " 12. He has further admitted that his statement was recorded by the police after two days of the incident. It would thus be seen that an admission is elicited in the cross-examination of P.W.5 Shamshoddin that Bashira had informed him that she was compelled to give a statement that she had sustained burns when the Medical Officer at Pathardi had questioned her. The aforesaid statement, which is elicited in the cross-examination, has virtually gone unchallenged as there is no further cross-examination in respect of that statement, which would affect the credibility of what this witness had stated. Since this statement was elicited in the cross-examination, it cannot be proved by way of omission. It would have amounted to an omission if this witness had made that statement in his examinationin-chief. Since this admission was obtained in the cross-examination, the appellant cannot take the benefit of attempting to prove it as an omission. 13. Prosecution has also examined P.W.7 Kalindar Shaikh, cousin of deceased Bashira. Kalindar states that Bashira had informed him about the illtreatment which was given to her by the appellant. He states that he had informed the father of Bashira about the illtreatment. 13. Prosecution has also examined P.W.7 Kalindar Shaikh, cousin of deceased Bashira. Kalindar states that Bashira had informed him about the illtreatment which was given to her by the appellant. He states that he had informed the father of Bashira about the illtreatment. In respect of the incident he states that one Rajjak had informed him about Bashira being set ablaze by the appellant. Since Rajjak has not been examined, the aforesaid statement would be hear-say and inadmissible in evidence. Kalindar further states that he had gone to the house of Bashira and had noticed that Bashira had sustained burn injuries and her entire body was wet. He had inquired from Bashira and Bashira had informed him that the appellant had abused her filthily and had assaulted her and then poured kerosene on her and had set her ablaze. Bashira had also informed him that the appellant then fled away by latching the door from outside. Bashira had also informed him that the appellant was assaulting her for the entire night and had abused her filthily saying that she did not share his bed and she had illicit relations with others. He further states that he was not allowed to accompany Bashira to the hospital. In cross-examination, omission has been elicited that he had not stated in his previous statement about going to the police station for giving the statement. Omission has also been elicited that he was not allowed to accompany Bashira to the hospital. Omission has been elicited that he had not stated in his previous statement that Bashira had informed him that the appellant had abused her filthily. Omission has also been elicited that Bashira was wet on account of pouring of water. Omission has also been elicited that he had not stated in his previous statement about the accused fleeing away and latching the door from outside. He has admitted as true that Bashira had lived at Bombay till her marriage and Ambika Nagar is a village of persons who are below poverty line. He has denied the suggestion that Bashira disliked to work and reside in the village. 14. Prosecution has examined P.W.3 Baban, a panch to the scene of the incident panchnama. P.W.3 Baban had stated about drawing of the spot panchnama and about finding of a stove in the kitchen. He has denied the suggestion that Bashira disliked to work and reside in the village. 14. Prosecution has examined P.W.3 Baban, a panch to the scene of the incident panchnama. P.W.3 Baban had stated about drawing of the spot panchnama and about finding of a stove in the kitchen. In the cross-examination, however, he has admitted that the contents of the panchnama that the stove was inside the room, were incorrect. 15. Mr Joydeep Chatterji, learned Counsel for the appellant has urged before us that in the light of the conflicting dying declarations, the appellant/accused is entitled to be given the benefit of doubt. According to the learned Counsel for the appellant, the history recorded at Exhs.45 and 46 indicates that Bashira had sustained the burns accidentally, while the dying declaration at Exh.11 indicates that Bashira had sustained homicidal burns. It is urged before us that both the dying declarations are conflicting and acceptance of one would falsify the other and the appellant, therefore, would be entitled to be given the benefit of doubt. 16. It is true that the history narrated by Bashira at Exh.45 and at Exh.46 indicates that Bashira had sustained the burns due to the bursting of the stove. However, the spot panchnama at Exh.16 shows that a stove was found in the kitchen along with the other utensils used for cooking food. The condition of the stove was not such as would lead to an inference that the stove had burst. Apart from this, an admission has been elicited in the cross-examination of P.W.5 Shamshoddin that Bashira had informed him that she was compelled to give such a statement to the Medical Officer at Pathardi. The aforesaid statement has virtually gone unchallenged in the further cross-examination. The statement, therefore, clearly indicates that Bashira had been compelled to give the statement to the Medical Officer that she had accidentally sustained the burns. In such circumstances, we are not inclined to place any reliance on the history recorded at Exhs.45 and 46. 17. The dying declaration at Exh.11 coupled with the oral dying declarations, which are made to P.W.5 Shamshoddin and P.W.7 Kalindar Shaikh, clearly implicate the present appellant beyond reasonable doubt. We have no hesitation whatsoever in placing implicit reliance on the dying declaration at Exh.11. 17. The dying declaration at Exh.11 coupled with the oral dying declarations, which are made to P.W.5 Shamshoddin and P.W.7 Kalindar Shaikh, clearly implicate the present appellant beyond reasonable doubt. We have no hesitation whatsoever in placing implicit reliance on the dying declaration at Exh.11. We, therefore, find that no fault can be found with the judgment of the Trial Court in implicitly accepting the dying declaration at Exh.11. The appellant, therefore, is not entitled to be given the benefit of doubt. 18. The appeal, therefore, being without merit is dismissed confirming the conviction and sentence.