JUDGMENT V.K. TAHILRAMANI, J. 1. The Appellant/original Accused Nos. 1 and 2 have directed this Appeal against Judgment and Order dated 13.9.2007 passed by the learned I Ad-hoc Sessions Judge, Solapur in Sessions Case No. 6 of 2007. By the said Judgment and Order, the learned Sessions Judge convicted both the appellants under Section 302 r/w 34 of Indian Penal Code. For the said offence each of the appellant was sentenced to life imprisonment and fine of Rs. 1,000/- i.e. S.I. for 3 months. 2. The prosecution case briefly stated is as under: P.W. 2 Ashok Mane was the brother of Arvind Mane. Deceased Manisha was the daughter of Arvind Mane. P.W. 5 Shailaja is the wife of P.W. 2 Ashok Mane. Arvind was married to Geetabai. Geetabai expired 10 to 12 years before the incident. Thereafter, Ashok Mane and his wife used to look after Manisha and maintained her. Marriage of Manisha took place on 24.12.2004 with the appellant No.1. Appellant No.2 is the mother of appellant no.1. After the marriage, Manisha went to house of the appellants for cohabitation. One month after the marriage, she came to the house of P.W.2 Ashok Mane. Manisha informed P.W. 5 Shailaja, P.W. 2 Ashok Mane and others that while having sexual intercourse, appellant No.1 used to harass her. She stated that the appellant was working in a chemist shop and used to get some tablet from the chemist shop and consume them and used to have excessive sexual intercourse with her. Manisha further disclosed that while having sexual intercourse her internal part of vagina was torn. Therefore, P.W. 2 Ashok Mane took Manisha to hospital and she was treated by doctor. Manisha was sent back to the house of the appellants. Thereafter, Manisha begot a daughter from the marriage with the appellant No.1. 3. At the time of the incident, the appellants were residing in Shastri Nagar, Kumbhargalli, Solapur. At the time Rangpanchami festival, P.W. 2 Ashok Mane had brought Manisha to his house and thereafter, Manisha did not go to the house of the appellant for cohabitation. In the month of August, 2006, appellant No.1 met P.W. 2 Ashok Mane and told him that he will not ill-treat or harass Manisha and he should send Manisha to his house for cohabitation. P.W. 2 Ashok Mane told him that he will arrange meeting and they will settle the dispute. In the month of August, 2006, appellant No.1 met P.W. 2 Ashok Mane and told him that he will not ill-treat or harass Manisha and he should send Manisha to his house for cohabitation. P.W. 2 Ashok Mane told him that he will arrange meeting and they will settle the dispute. On 17.9.2006, a meeting was held at the village of appellant No.1. P.W. 2 Ashok Mane, P.W. 5 Shailaja Mane wife of Ashok Mane, P.W. 4 Waghmare, Sarpanch of the village Miraj were present in the meeting. In the meeting, they convinced the appellant Nos. 1 and 2 that they should not ill-treat and harass Manisha in future. After meeting Manisha went to the house of the appellants. 4. On 18.9.2006 i.e. the very next day after the meeting, P.W. 2 Ashok Mane received telephonic message that Manisha had sustained burn injuries. Hence, he went to the Civil Hospital, Solapur, where Manisha was admitted. He saw that Manisha had sustained burn injuries. He made enquiry with Manisha how she sustained burn injuries. She told him that she had been to the bathroom for urinating, at that time, appellant Nos. 1 and 2 poured kerosene on her and set her on fire. Manisha also disclosed that both the appellants had got angry on the ground that conciliation meeting was called. In the hospital dying declaration (Exh. 42) of Manisha came to be recorded by P.W. 8 PSI Devkate. The said dying declaration was treated as FIR and thereafter investigation commenced. Requisition was sent to P.W. 3 Special Judicial Magistrate, Solapur Dayanand Mane. He came to the hospital and recorded dying declaration (Exh. 22). In the dying declaration Manisha stated that the appellants poured kerosene and set her on tire. In the night of 20.9.2006 Manisha expired. Hence, offence was converted from 307 of Indian Penal Code to 302 of Indian Penal Code. The dead body of Manisha was sent for post mortem. Post mortem notes shows that Manisha has sustained 87 per cent burns and the cause of death was septicaemia due to burns. After completion of investigation charge-sheet came to be filed. 5. Charge came to be framed against the appellants under Section 302 r/w 34 of Indian Penal Code. Both the appellants pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. After completion of investigation charge-sheet came to be filed. 5. Charge came to be framed against the appellants under Section 302 r/w 34 of Indian Penal Code. Both the appellants pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. The case of appellants is that Manisha sustained burn injuries on account of her trying to commit suicide. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants, as stated in paragraph 1 above. Hence, this Appeal. 6. We have heard Shri Yadav, learned Advocate for the appellants and Shri P.S. Hingorani, APP for the State. After carefully considering the arguments of both the sides, the Judgment and Order passed by the learned Sessions Judge and the evidence adduced in this case, we are of the opinion that the burn injuries of Manisha which led to her death were caused by the appellants. 7. The conviction is based on the two dying declarations, Exh. 22 recorded by P.W. 3 Special Judicial Magistrate Shri Mane and the dying declaration Exh. 42 recorded by P.W. 8 PSI Devkate. The conviction is also based on the oral dying declarations made to P.W. 2 Ashok Mane, P.W. 5 Shailaja Mane and P.W. 4 Krishna Waghmare who is the sarpanch of the village. 8. P.W. 2 Ashok Mane has stated that on 18.9.2006 on receiving telephonic message that Manisha had sustained burn injuries, he went to the Civil Hospital, Solapur, where Manisha was admitted. He saw that Manisha had sustained burn injuries. He made enquiry with Manisha how she sustained burn injuries. She told him that she had been to the bathroom for urinating, at that time, appellant Nos. 1 and 2 poured kerosene on her and set her on fire. Manisha also disclosed that both the appellants had got angry on the ground that conciliation meeting was called. The evidence of P.W.5 Shailaja is on the same lines as that of P.W.2 Ashok Mane. 9. Prosecution has also relied on the oral dying declaration made by Manisha to P.W. 4 Krishna Waghmare, who is the sarpanch of the village. P.W. 4 Krishna has stated that on 17.9.2006 Govind and Ashok Mane had been to his house and they told him that husband and mother-in-law of their niece Manisha ill-treat her. 9. Prosecution has also relied on the oral dying declaration made by Manisha to P.W. 4 Krishna Waghmare, who is the sarpanch of the village. P.W. 4 Krishna has stated that on 17.9.2006 Govind and Ashok Mane had been to his house and they told him that husband and mother-in-law of their niece Manisha ill-treat her. Therefore, they had arranged one meeting at Belati and they asked him to attend the meeting. Thereafter he attended the meeting. In the meeting Manisha was there. He made enquiry with Manisha. She replied that her husband i.e. appellant No.1 used to harass her while having sexual intercourse with her. She further told him that her husband is working in medical shop and her husband used to consume tablet and have excessive sexual intercourse with her, whereby she was severely harassed. Manisha also disclosed that her mother-in-law law used to ill-treat her and beat her. Thereafter, this witness gave warning to the husband and mother-in-law of Manisha that they should not i1l-treat Manisha. Thereafter, he returned to his house. On the next day i.e. on 19.9.2006, this witness came to know that Manisha had sustained burn injuries and has been admitted in Civil Hospital. He then went to the Civil Hospital Solapur to see Manisha. He saw that Manisha has sustained burn injuries all over her body. He made enquiry with Manisha whereupon Manisha told that in the morning when she was sitting for urinating in front of her house, that time her husband and mother-in-law came from backside and poured kerosene and set her on fire. 10. Besides these 3 oral dying declarations the prosecution has also relied on the two dying declarations Exh. 22 and 42. As stated earlier, Exh. 42 is recorded by P.W. 8 P.S.I. Devkate. The said dying declaration was treated as FIR. PSI Devkate has stated that he was informed that Manisha had sustained burn injuries and she was admitted in Civil Hospital, Solapur. Hence, he went to Civil Hospital. He asked lady doctor Shinde (P.W.6) to check the patient and tell him whether the patient is conscious and oriented to give her statement. Dr. Shinde then medically examined Manisha and also asked her some questions. Manisha replied to the questions. Doctor then told PSI that Manisha is conscious and oriented to give statement. She made endorsement to that effect. Then PSI started recording statement of Manisha. Dr. Shinde then medically examined Manisha and also asked her some questions. Manisha replied to the questions. Doctor then told PSI that Manisha is conscious and oriented to give statement. She made endorsement to that effect. Then PSI started recording statement of Manisha. He asked Manisha as to how she sustained burn injuries. Manisha told that her husband used to have sexual intercourse excessively. He used to consume tablet and had sexual intercourse. Therefore, she was suffering from pains. She also told him that mother-in-law used to ill-treat her. She had informed this fact to her family member when she went to her parental home. Manisha told him that on 17.9.2006 a meeting was held at village Belati. In that meeting, family members of Manisha tried to convince her husband and her mother-in-law not to ill-treat Manisha. Thereafter Manisha went to the house of husband and mother-in-law. On the next day morning when she went to bathroom for urinating, that time her husband and mother-in-law poured kerosene on her person from behind. When she turned back, she saw her husband and mother-in-law standing there. Then she was set on fire. 11. Thereafter, P.W.3 SEM Mane recorded dying declaration (Exh. 22) of Manisha. He also asked the doctor to examine Manisha and obtained an endorsement that she was in fit condition to give statement. Thereafter, he recorded statement of Manisha. Manisha told him that her husband had sexual intercourse with her against her will and her mother-in-law overlooked her complaints. Manisha further disclosed that on the day of incident at about 8 a.m. she went to the bathroom for urinating, that time her husband and her mother-in-law poured kerosene on her and set her on fire. She disclosed that her father-in-law extinguished fire on her person. After recording the dying declaration, P.W. 3 Shri Mane got Manisha examined again and the doctor declared that Manisha was conscious and oriented throughout while giving statement. 12. The learned Advocate for the appellants submitted that both the dying declarations Exh. 22 and Exh. 42 given by Manisha were on account of tutoring by her relatives. As far as this aspect is concerned it is noticed that none of the witnesses have stated that they reached the hospital prior to her dying declarations Exh. 22 and Exh. 42 being recorded. The maternal relatives of Manisha were residing in another village. 22 and Exh. 42 given by Manisha were on account of tutoring by her relatives. As far as this aspect is concerned it is noticed that none of the witnesses have stated that they reached the hospital prior to her dying declarations Exh. 22 and Exh. 42 being recorded. The maternal relatives of Manisha were residing in another village. Only after message was given to them, they came to Solapur Civil Hospital and met Manisha and made enquiries with her. Thus in such case, it cannot be said that two dying declarations Exh. 22 and Exh. 42 are result of tutoring. 13. Thereafter, Mr. Yadav, learned Advocate for the Appellant argued that the prosecution case is entirely false case and the appellants have been falsely implicated in this case. In this connection he has pointed out that what is sent to the CA is a plastic can, whereas in the dying declaration Exh. 22 Manisha states that kerosene was poured on her from plastic bottle and then bottle was thrown. If one witness had referred to the article as a plastic can and another had referred to it as a glass bottle, then in such case there may have been some scope to create a doubt. The fact remains that the article was not made of glass bottle but it was made of plastic. The article is such that it can be referred to as bottle or can. Thus this discrepancy in our opinion does not affect the prosecution case. 14. Thereafter, Mr. Yadav, learned Advocate for the appellants submitted that as per the prosecution case, father-in-law of Manisha had extinguished the fire, which shows that he was on the spot at the time of incident. However, father-in-law has not been examined. He further submitted that rickshaw driver in whose auto rickshaw Manisha was taken to the hospital has also not been examined. He submitted that non-examination of these two witnesses would fatally affect the prosecution case. The prosecution has already examined the witnesses who have stated about the oral dying declaration made by Manisha to them. In such case examination of the rickshaw driver would not have taken the prosecution case any further. Thus, non-examination of auto rickshaw driver would not affect the prosecution case. As far as non-examination of father-in-law of Manisha is concerned, he is father of appellant No.1 and husband of appellant No.2. In such case examination of the rickshaw driver would not have taken the prosecution case any further. Thus, non-examination of auto rickshaw driver would not affect the prosecution case. As far as non-examination of father-in-law of Manisha is concerned, he is father of appellant No.1 and husband of appellant No.2. In such case, it is not expected that he would support the prosecution case. Hence, the prosecution has not examined him as witness in the case. If at all the appellants desired that these witnesses should have been examined they could have examined them as defence witnesses. Thus, non-examination of these two witnesses would not affect the prosecution case. 15. Mr. Yadav the learned Advocate for the appellants thereafter submitted that dying declaration Exh. 42 is given in detail, whereas dying declaration Exh. 22 is brief. He submitted that this creates doubt about the genuineness of the dying declarations. As far as this aspect is concerned, it is to be noted that the basic substratum in both the dying declarations is identical in nature. The argument would have been that they are made up statements if both the dying declarations were exactly identical in nature. But the tact that the two dying declarations are different in fact inspires confidence. The fact remains that essence of the two dying declarations is the same i.e. the appellants poured kerosene on Manisha and set her on fire. 16. Mr. Yadav submitted that in the dying declaration Exh. 22 Manisha has made no reference to the meeting held on the previous day, whereas she has made reference to the meeting held on 17.9.2006 in the dying declaration Exh. 42. This aspect would not affect the veracity of both the dying declarations. In the second dying declaration Manisha has briefly stated what has happened on the date of incident. Hence, she has not gone into any other details. Even if Manisha had not mentioned about the conciliation meeting held on the earlier day, this would not affect veracity of the two dying declarations because the basic substratum in relation to the incident is same in both the dying declarations. 17. Mr. Yadav thereafter submitted that entire prosecution case is false because the scene of incident has been shifted. Even if Manisha had not mentioned about the conciliation meeting held on the earlier day, this would not affect veracity of the two dying declarations because the basic substratum in relation to the incident is same in both the dying declarations. 17. Mr. Yadav thereafter submitted that entire prosecution case is false because the scene of incident has been shifted. He pointed out that P.W. 4 Krishna who is sarpanch of the village has stated that the incident took place in front of her house, whereas in the dying declaration it is stated that it took place in the bathroom when Manisha had sat down for urinating. In his evidence P.W. 4 Krishna stated that Manisha told him that in the morning when she was sitting for urinating in front of her house, the incident had occurred. On going through the evidence on record it is clear that bathroom is situated in front of the house. The fact remains that though Manisha told P.W. 4 Krishna that she had sat down for urinating in front of her house, obviously she will not sit openly for urinating in front of her house and the fact remains that bathroom was situated in front of the house. Thus, we see no discrepancy in the spot of the incident. 18. Thereafter, Mr. Yadav submitted that in the dying declaration made to the P.W. 2, P.W.3, P.W.4 and P.W.5, Manisha has stated that when she had gone to the bathroom her husband and mother-in-law poured kerosene on her and set her on fire. However, in the dying declaration Exh. 42 Manisha has stated that somebody poured kerosene on her and set her on fire. We have carefully perused the dying declaration Exh. 42. In the said dying declaration Manisha had stated that when she went to the bathroom for urinating, at that time from behind someone poured kerosene on her. She immediately turned back and she saw her husband and mother-in-law standing behind. Within few seconds one of them set her on fire. It is pertinent to note that Manisha had made allegation only against her husband and her mother-in-law. She has not made any allegation against her father-in-law. She immediately turned back and she saw her husband and mother-in-law standing behind. Within few seconds one of them set her on fire. It is pertinent to note that Manisha had made allegation only against her husband and her mother-in-law. She has not made any allegation against her father-in-law. This in fact inspires confidence as it shows that Manisha was not interested in involving all the persons in the matrimonial house but she has stated the truth and implicated only those persons who were involved in the incident of burning her. In the dying declaration Exh. 42 Manisha has stated that after she caught fire, her father-in-law put quilt on her and extinguished fire. Her husband and her mother-in-law did not extinguish the fire. This conduct on the part of the appellants also speaks volumes. Thus it is seen that both of them shared the common intention and wanted to do away with Manisha. Once we come to the conclusion that both the appellants shared the common intention, it is immaterial who actually set Manisha on fire. The conduct of both the appellants as revealed from the evidence on record shows that both of them shared the common intention to pour kerosene on Manisha and set Manisha on fire. Thus we find no merit in this submission. 19. On carefully going through the evidence on record we find that there is no merit in the Appeal. The appeal is dismissed. Appeal dismissed.