JUDGMENT : P.N. Deshmukh, J. This appeal takes exception to the judgment and order dated 29th of April 1999 passed in Session Trial No. 162 of 1995 by the Additional Sessions Judge, Akola. whereby appellant came to be convicted for the offence punishable under Section 498-A of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 300/- in default to suffer R.I. for six months. Appellant is further convicted for the offence punishable under Section 306 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for six years and to pay fine of Rs. 500/- in default to suffer R.I. for one year. 2. Prosecution case can briefly be stated as follows :- Deceased Rajkanya was wife of appellant/accused. Their marriage took place about five years prior to incident which occurred on 25th of July, 1995 at village Sanglud at the residential house of appellant. Out of their wed lock, deceased had one son and one daughter. The parents of Rajkanya are residing at village Parad. According to prosecution, appellant was addicted to liquor and was assaulting his wife which fact was known by his neighbours. They attempted to convince the appellant but his routine continued and as such there used to have frequent quarrells between appellant and deceased and for this reason Rajkanya committed suicide by setting herself on fire. It is the case of prosecution that prior to incident deceased was in her parental house for about 2 months, however, again she came back to appellant. Thereafter also ill-treatment continued due to which she committed suicide. 3. On sustaining bum injuries, Tanya was admitted to Civil Hospital, Akola of which intimation was received by P.S.O. Borgaon Manju on the same day. Accordingly, PW 2 ASI Khandare issued requisition vide Exh.33 to PW 9 Mohd. Sidduqui, Special Judicial Magistrate, for recording dying declaration. Dying declaration was recorded on the same day on 25th of July, 1995 by PW 9 Mohd. Abdul Siddiqui, vide Exh.44 in the presence of P.W. 10 Dr. Bhalchandra Deshmukli who, prior to recording and after recording the dying declaration, had issued medical endorsement at Exh.44-C and 44-D, respectively. In her dying declaration Rajkanya stated about ill-treatment provided to her by the appellant due to which she committed suicide. 4. Abdul Siddiqui, vide Exh.44 in the presence of P.W. 10 Dr. Bhalchandra Deshmukli who, prior to recording and after recording the dying declaration, had issued medical endorsement at Exh.44-C and 44-D, respectively. In her dying declaration Rajkanya stated about ill-treatment provided to her by the appellant due to which she committed suicide. 4. On the basis of dying declaration, offence vide Crime No. 0 of 1995 was registered by P.S.O. City Kotwali, Akola for the offence punishable under Section 498-A of the Indian Penal Code. Papers of investigation of the said crime came to be forwarded to Borgaon Manju Police Station where PW 13 Ganesh Wakode registered Crime No. 150 of 1995 vide FIR Exh.49. Further investigation was carried out by PW 12 Manikrao Gawande, API, during course of which he visited spot of incident and drew spot panchanama (Exh. 19) which was house of the appellant. On 26th of July, 1995 Rajkanya died while she was under medical treatment of which intimation was received by PW 2 Motiram, A.S.I., vide Exh.31. Accordingly, offence punishable under section 306 of the Indian Penal Code came to be added in this Crime. During the course of further investigation, statements of witnesses came to be recorded. On death of Rajkanya, PW 6 Dhanraj - brother of deceased lodged his report (Exh.40) which was recorded by PW 7 Namdeo Tayde, H.C.B. No. 1633 against the appellant who was accordingly arrested. On completion of investigation, charge-sheet came to be filed against the appellant before the Court of Judicial Magistrate (F.C.), Akola. In the course of time, case came to be committed to the Court of Sessions for its trial. Charge was framed against the appellant for above offence vide Exh. 11 to which he pleaded not guilty and claimed to be tried. Plea of appellant is at Exh. 12. The defence of appellant is of denial and in alternative of deceased sustaining injuries accidentally. 5. The learned Sessions Judge on considering the evidence and documents on record convicted appellant as stated aforesaid. Hence, this appeal. 6. Admittedly, case of prosecution is based on dying declaration (Exh.44) recorded by PW 9 Mohd. Siddiqui, Special Judicial Magistrate, in the presence of PW 10 Dr. 5. The learned Sessions Judge on considering the evidence and documents on record convicted appellant as stated aforesaid. Hence, this appeal. 6. Admittedly, case of prosecution is based on dying declaration (Exh.44) recorded by PW 9 Mohd. Siddiqui, Special Judicial Magistrate, in the presence of PW 10 Dr. Bhalchandra Deshmukh, contents of which are corroborated by the evidence of PW 1 Yuvraj Rangari and PW 8 Dinesh Jaiswal, Police Patil, independent witnesses, while PW 3 Vinod, PW 6 Dhanraj and PW 4 Chhaya, brothers and sister of deceased and PW 5 Shantabai did not support the case of prospection. 7. PW 9 Moh. Siddiqui, Special Judicial Magistrate has stated that on 25th of July, 1995 he was working as Special Judicial Magistrate at Akola. On that day, he received requisition memo (Exh.33) for recording dying declaration of Rajkanya and accordingly visited Civil Hospital, Akola and requested the Medical Officer to examine the patient and to inform if she was in a position to make her statement. He has further stated that patient was identified by nurse in the Ward and he requested relatives, who were present near Rajkanya, to leave the Ward. Thereafter, PW 10 Dr. Bhalchandra Deshmukh examined the patient and issued certificate that she was in a position to make a statement. PW 9 further stated that for his satisfaction, he put preliminary questions to the patient (Rajkanya) by asking her name, age and address which were replied by her and he was thus satisfied that patient was in a position to give statement. He thereafter informed the patient that he intended to record her statement and again asked similar questions to her which she replied and has thus recorded her statement. Rajkanya in her statement stated that on the day of incident she went in Bazar at Akola and returned her home at Sanglud at about 2.00 p.m. when appellant had gone to house of one Venubai Sirsat for consuming liquor. Rajkanya, therefore, went to the house of Venubai to bring her husband back, upon which appellant abused her asking her to end her life by setting her on fire by using kerosene. Rajkanya further stated that she was severely ill-treated at the hands of appellant and therefore, on her own poured kerosene on her person and set herself on fire with the match-stick. She has further stated that appellant is responsible for said act. Rajkanya further stated that she was severely ill-treated at the hands of appellant and therefore, on her own poured kerosene on her person and set herself on fire with the match-stick. She has further stated that appellant is responsible for said act. The dying declaration is accordingly proved by PW 9 Mohd. Siddiqui at Exh.44. 8. PW 9 - Mohd. Siddiqui has further stated that after recording the dying declaration he read over its contents to Rajkanya which she agreed to be correctly recorded as stated by her and has thereafter obtained her thumb impression upon the same and he also signed the same. He has further stated that Medical Officer again examined Rajkanya and certified about her physical condition as per Medical endorsement below Exh.44, which was thereafter forwarded to the police in the Police Chowky situated in the premises of Civil Hospital, Akola. 9. In the cross-examination, PW 9 Mohd. Siddiqui stated that he received requisition for recording dying declaration (Exh. 33). He further stated that he required 15 to 20 minutes to reach to the hospital and within 5 to 6 minutes thereafter contacted the Medical Officer. It has come in his evidence that he received requisition (Exh.33) at 8.30 p.m. and started recording dying declaration at around 8.45 p.m. He has admitted that since patient had sustained bum injuries, she was in pains. He has further admitted to have not mentioned questions put by him to Rajkanya but has recorded answers given by her and has also admitted that he has not mentioned about the preliminary questions as stated by him to have put to patient before recording dying declaration. It is further admitted that he has not put any endorsement about his reading over contents of dying declaration to the patient who admitted the same to be correctly recorded and about his attesting the thumb impression of patient. It is denied that he is deposing false and that he has not obtained thumb impression of Rajkanya on Exh.44 as he was unable to obtain the same. It has come in his evidence that the patient was not giving irrelevant answers though she was talking in a loud voice and has lastly denied that contents of Exh.44 are written by him on the say of relatives of deceased. 10. Evidence of this witness finds materially corroborated from the contents of Exh.44, the dying declaration. It has come in his evidence that the patient was not giving irrelevant answers though she was talking in a loud voice and has lastly denied that contents of Exh.44 are written by him on the say of relatives of deceased. 10. Evidence of this witness finds materially corroborated from the contents of Exh.44, the dying declaration. Though he admitted to have not stated in this document the preliminary questions put by him to the deceased, this fact is no way fatal to the prosecution in view of evidence of PW 9 Mohd. Siddiqui that he had put these questions just to satisfy himself if patient was in a fit condition to make her statement, is spite of the patient having been duly examined by PW 10 Dr. Bhalchandra prior to recording her statement and issuing medical endorsement at Exh. 44-C that patient was conscious and able to give her statement. 11. In the background of above evidence, evidence of PW 10 Dr. Bhalchandra when perused reveals that on 25th of July, 1995 he was attached to Civil Hospital, Akola. On that day, PW 9 Moohd. Siddique, Special Judicial Magistrate, informed him at about 8.30 p.m. that he wanted to record dying declaration of Rajkanya who was admitted in the burn-ward and has accordingly accompanied him in the said Ward where on die request of Special Judicial Magistrate he examined patient Rajkanya who had sustained tarn injuries and found her to be conscious and able to give statement. He has accordingly issued medical endorsement at Exh.44-C. Dr. Bhalchandra further stated that PW 9 asked the patient her name, address and age to which she replied and thereafter her dying declaration is recorded. It is further stated by PW 10 Dr. Bhalchandra that Rajkanya had stated that she was fed-up due to the conduct of the appellant and therefore, she poured kerosene on her person and set herself on fire. According to the Medical Officer, apart from this Rajkanya had stated other details to PW 9 who had recorded the dying declaration. It is further stated that after recording dying declaration its contents were read over to the patient by PW 9 Mohd. Siddique and the contents were admitted by her to be correctly recorded. 12. PW 10 Dr. According to the Medical Officer, apart from this Rajkanya had stated other details to PW 9 who had recorded the dying declaration. It is further stated that after recording dying declaration its contents were read over to the patient by PW 9 Mohd. Siddique and the contents were admitted by her to be correctly recorded. 12. PW 10 Dr. Bhalchandra further stated that after recording dying declaration he again examined Rajkanya and found that she was conscious during recording of dying declaration and has accordingly issued medical endorsement Exh.44-D, below dying declaration. It is specifically stated that dying declaration was recorded in his presence and throughout Rajkanya was conscious. In his cross-examination PW 10 Dr. Bhalchandra stated that "mentally fit' means that person is in a position to give answers being conscious, alert to give statement and able to give statement. Though Dr. Bhalchandra admitted that in burning case there is a stage of hallucination when in that stage patient is in a confuse state of mind, has voluntarily deposed that patient in this case was not in a state of hallucination. Though Medical Officer admitted that in cases of bum pain-killers and sedatives are administered, he has voluntarily deposed that such drugs were not administrated to the patient till her dying declaration was recorded. Though this witness further admitted that in the bedhead ticket of patient all such details are recorded and in this case patient was admitted by Dr. Mankar who was in charge of bum ward, no steps are taken on behalf of appellant for bringing on record by summoning Dr. Mankar bed-head ticket of Rajkanya. In that view of the matter and considering the evidence as above, there is nothing to disbelieve evidence of Dr. Bhalchandra on the aspect of Rajkanya making statement as deposed by him in his presence in conscious state of mind and patient Rajkanya having not been administered with sedatives or pain killers before her dying declaration came to be recorded. 13. Though by confronting with medical endorsement (Exh. 44-D) PW 10 Dr. Bhalchandra on the aspect of Rajkanya making statement as deposed by him in his presence in conscious state of mind and patient Rajkanya having not been administered with sedatives or pain killers before her dying declaration came to be recorded. 13. Though by confronting with medical endorsement (Exh. 44-D) PW 10 Dr. Bhalchandra had admitted that by this endorsement he has stated that "the statement of patient was recorded in my presence, I myself was present there", and has not specifically mentioned that patient was mentally fit and conscious while recording the dying declaration, said admission cannot be said to be fatal to prosecution in view of the specific evidence on this aspect, as stated above, when PW 10 has stated that the dying declaration was recorded in his presence and after recording of dying declaration on his examining Rajkanya, he found her to be conscious. Dr. Bhalchandra has denied that the patient has not stated anything involving appellant in her dying declaration as she was unconscious. It is further denied that he had issued Exhs.44-C and 44-D even without examining the patient. It is also denied that dying declaration is not recorded in his presence. 14. Learned counsel for the appellant with reference to evidence of PW 9 Mohd. Siddiqui, who has recorded the dying declaration, has submitted that since it is stated by this witness that contents thereof were not read over to its maker, has referred to the decision in the case of Shaikh Bakshu and ors. v. State of Mah. reported in (2008) 1 SCC (Cri) 679 : 2007 ALL SCR 2407 wherein it is held that whether in fact dying declaration was read over and explained to its maker cannot be presumed and this fact must be clearly mentioned in the dying declaration. In the appeal in hand, there is a specific evidence of PW 9 Mohd. Siddiqui, Special Judicial Magistrate, who has recorded the dying declaration that after recording of dying declaration its contents were read over to its maker which she admitted to be correctly recorded. Similar is the evidence of PW 10 Dr. Bhalchandra that the contents of dying declaration were read over by PW 9 to Rajkanya who accepted the same to be truly recorded. Similar is the evidence of PW 10 Dr. Bhalchandra that the contents of dying declaration were read over by PW 9 to Rajkanya who accepted the same to be truly recorded. In that view of the matter, there is nothing to presume that in the absence of endorsement to that effect on Dying Declaration Exh.44, its contents were not read over to the deceased. In that view of the mater, I find nothing to disbelieve Exh.44, contents of which are fully corroborated by PW 9 Mohd. Siddiqui and are materially corroborated by PW 10 Dr. Bhalchandra. Learned counsel for the appellant has also relied upon the authority in the case of Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh, reported in 2002 Cri. L.J. 2796. However, the said authority cannot be made applicable in the appeal in hand as in that case, deceased committed suicide two days after the quarrel during which words "to go and die" were uttered by the appellant while in the appeal in hand, from the contents of Exh.44, it is established by the prosecution that deceased committed suicide immediately after she being instigated to commit the same by the appellant. 15. Even otherwise contents of Exh.44, the dying declaration are also corroborated by the evidence of PW 1 Yuvraj, an independent witness, who was residing as the neighbour of deceased as well as of appellant. He has stated that he was knowing appellant as well as deceased as his neighbours and that the relations between the appellant and deceased were not cordial as there used to be frequent quarrel between them. According to his evidence, prior to incident Rajkanya had stayed with her parents house for about two months. After she returned, he was informed by one Ravi Rant that Rajkanya sustained bum injuries and has admitted in Civil Hospital at Akola and accordingly he visited the hospital and found father in-law of Rajkanya and sister in-law of appellant present sitting near her. He further stated that he enquired from her as to how incident took place, upon which Rajkanya told him that it was a Bazar day at Akola where she had visited along with appellant and returned back when quarrel took place between them in which appellant told her to ad her life as he was not in need of her. He further stated that he enquired from her as to how incident took place, upon which Rajkanya told him that it was a Bazar day at Akola where she had visited along with appellant and returned back when quarrel took place between them in which appellant told her to ad her life as he was not in need of her. According to this witness, Rajkanya further informed him that she therefore, poured kerosene on her person and set herself on fire as on that day appellant had demanded money to her for consuming liquor and as she refused to part away with the same, she was subjected to abuses and beatings by the appellant who asked her to end her life. In the cross-examination, PW 1 Yuvraj has denied that as he used to contact Chhaya, sister-in-law of appellant which was Ejected by appellant, and thus he is deposing false against the appellant as for this reason ley were on rival terms. He has also denied tat on his visiting Rajkanya in the Hospital, she was not in a position to speak and that she was provided medicines or that Rajkanya was sleeping when he visited her and therefore no conversation took place between them. In that view of the matter, nothing material has been elicited in the cross-examination to doubt evidence of PW 1 Yuvraj. 16. Similarly evidence of PW 8 Dinesh Jaiswal, Police Patil, further substantiates the case of prosecution when lie has stated that appellant was in the habit of consuming liquor and that Rajkanya committed suicide by pouring kerosene on her person and setting herself on fire. He has slated that prior to the incident Rajkanya has complained him against appellant Devanand she used to consume liquor. In the pointed question put to this witness as to for what season Rajkanya complained him, he has replied that Rajkanya was ill-treated by the appellant and therefore, she has complained him that she was fed up. He has denied that Rajkanya had never complained him against the appellant. Evidence of this witness also established ill-treatment being provided to deceased at the hands of appellant. 17. In the background of above facts, evidence of PW 11 Dr. He has denied that Rajkanya had never complained him against the appellant. Evidence of this witness also established ill-treatment being provided to deceased at the hands of appellant. 17. In the background of above facts, evidence of PW 11 Dr. Hemantkumar Gandhi reveals that on 26th of July, 1995 he had performed post mortem on the dead body of deceased Rajkanya who had sustained 60% burn injuries which were on both of her thies, upper extremities, chest, abdomen and back. The cause of death is stated to be shock due to extensive burns and has accordingly issued post mortem notes which is an admitted document at Exh.24. It is specifically deposed that bum injuries mentioned in Exh.24 are possible if a person pours kerosene on his/her person and set ablaze. The Medical Officer has stated that in this case the injuries were on front and back side of deceased and since there were no injuries on the palms, Rajkanya had not sustained bum injuries accidentally. In the cross-examination, PW 11 Dr. Gandhi has admitted that upper extremities are from shoulder up to the nails, however, has voluntarily deposed that in the instant case there were no injuries to the palms. It is admitted that in bum cases it is not possible to give a definite opinion that whether those burns were accidental, suicidal or homicidal. 18. Considering the case of prosecution which is based on Dying declaration, it is to be noted that the basis requirements of a valid dying declaration are: (1) Examination of the patient by the doctor before recording of his statement and a certificate by the doctor that the person (patient) is in a sound mental state to give a statement. (2) Presence of the doctor near the patient during the recording of the statement. (3) Relations of the patient should not be in the vicinity and should be removed from the room wherein the statement of the patient is being recorded, so that a voluntary statement free from any influence or tutoring could be obtained. (4) Last, but not the least, after recording of the statement, the same must be read over to the person (patient) and a confirmation by the person that the statement is correctly recorded and the statement is true. (4) Last, but not the least, after recording of the statement, the same must be read over to the person (patient) and a confirmation by the person that the statement is correctly recorded and the statement is true. On considering the above discussed evidence it is found that above requirements are duly satisfied and as such Exh.44 can be acted upon. 19. Though prosecution had examined PW 3 Vinod Dhoke, PW 4 Chhaya, PW 6 Dhanraj both brothers and sister of Rajkanya, respectively and PW 5 Shantabai, her mother, neither of these witnesses have supported the case of prosecution. The learned APP in cross-examination of these witnesses has marked portion 'A' from the evidence of PW 3 Vinod and got the same proved from PW 12 Manikrao, API, who has recorded his statement at Exh.50-A. Similarly, portions from the statement of PW 4 Chhaya marked at Exhs. A and B are proved by PW 12 Manikrao at Exhs.49-A and 49-B. Portions from the evidence of PW 5 Shantabai marked at Exh. A to E are got proved by PW 12, I.O. at Exhs.48-A to E and lastly portions from statement of P.W. 6 Dhanraj marked as A, B and C are proved by prosecution from the evidence of PW 7 Namdeo, H.C.B. No. 1633 at Exh.40 - A, B, and C. On considering the contents of said proved portions from the statements of above witnesses prosecution can be said to have established fact of appellant's providing ill-treatment and beatings to Rajkanya since his marriage for which reason she used to stay with her parents at Parad due to which she committed suicide by setting her person on fire and died thereof, 20. In view of evidence of above witness, it is further noted that by now, it is settled legal proposition that the evidence of a prosecution witness cannot be rejected in to to merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. 21. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. 21. In the circumstances, I find it useful to refer to the decision in the case of Bhajju @ Karamsingh v. State of Madhya Pradesh, reported in 2012 (4) SCC 327 : 2012 ALL SCR 1063 wherein considering the version of hostile witness, it is expressed by the Apex Court thus - "Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 Cr.P.C., the prosecutor, with the permission of the court, can pray the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution." 22. In view of above discussed evidence and the proposition of law, prosecution can be said to have established involvement of appellant in commission of present crime beyond reasonable doubt. Moreover, according to spot panchanama (Exh. 19) which is an admitted document, Rajkanya committed suicide in the house of the appellant. In that view of the matter, revisions of Section 106 of the Indian Evidence Act would come into play. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge any person, the burden of proving that fact is upon him. In several recent decisions, Supreme Court has held that the principles which underlie Section 106 of the Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In several recent decisions, Supreme Court has held that the principles which underlie Section 106 of the Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan v. Kashi Ram, 2007 ALL MR (Cri) 525 S.C. : 2007 ALL MR (Cri) 286 (S.C.) the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain. In the appeal in hand no explanation is put forth by the appellant. In that view of the matter, appellant can certainly be attributed with the requisite mens rea so as to hold him guilty as abettor. 23. In that view of the matter, I find no substance in the appeal. Learned counsel for the appellant at this stage prays for showing leniency to the appellant. He submits that appellant was 35 years old at the time of incident which has occurred in the year 1995. It is also submitted that he was only earning member in his family. Learned APP opposed for any leniency contending that the learned Trial Court has already taken a lenient view while awarding sentence of imprisonment for the offence under Section 306 of the Indian Penal Code. 24. Having considering the submission advanced by the learned counsel for the appellant and learned APP, to meet the ends of justice, following order is passed. Criminal Appeal is partly allowed. The conviction and sentence imposed upon the appellant for the offence punishable under Section 498-A of Indian Penal Code by the learned Trial Court is confirmed. 24. Having considering the submission advanced by the learned counsel for the appellant and learned APP, to meet the ends of justice, following order is passed. Criminal Appeal is partly allowed. The conviction and sentence imposed upon the appellant for the offence punishable under Section 498-A of Indian Penal Code by the learned Trial Court is confirmed. The conviction of the appellant for the offence punishable under Section 306 of Indian Penal Code as recorded by the learned Trial Court is confirmed. However, the sentence of rigorous imprisonment for six years as imposed by the learned trial Court for the said offence is alerted and the appellant is directed to suffer rigorous imprisonment for three years for the said offence. Rest of the order of the learned Trial Court in respect of payment of fine is maintained. The appellant to surrender on or before 27th of October, 2014.