JUDGMENT : B.P. Dharmadhikari, J. Appellant No. 1 is son of appellant no. 2. Additional Sessions Judge-12, Nagpur has found both of them guilty of offence punishable under Sections 302 and 304-B read with Section 34 of Indian Penal Code and sentenced them to suffer life imprisonment as also to pay fine of Rs. 2000/- each or in default to suffer simple imprisonment for three months. They are also punished under Section 498-A read with Section 34 of the Indian Penal Code with rigorous imprisonment for one year and to pay fine of Rs. 500/- each, and in default to suffer simple imprisonment for a period of three months. Both these sentences are ordered to run concurrently. 2. Case of prosecution in brief is – deceased Mangala got married with appellant no.1 Diwakar three years back prior to the date of incident dated 21.03.2010. Instead of giving dowry, Mangala was given Gold and Silver ornaments by her parents. Accused persons were creating problems for Mangala for not bringing dowry in cash. They used to beat her and ask to get money from her parents. On 20.03.2010 at about 11.30 P.M. both the accused quarreled with Mangala and both poured kerosene upon her and then set her ablaze. She suffered 98% burn injuries. She was initially taken to Public Health Centre at Katol and officer there informed incident to Katol Police Station. Mangala was thereafter referred to Government Medical College, Nagpur. 3. P.W. 11- Head Constable Sanjay Mute, recorded her first dying declaration. P.W.5 – Special Judicial Magistrate Prakash Somkuwar, thereafter visited Mangala and recorded her second dying declaration. Minutes thereafter P.W.6 – A.S.I. Jitendersingh Thakur recorded her third dying declaration. After these three dying declarations, on 21.03.2010 at about 11 O'clock in the night Mangala expired. On the basis of these dying declarations, F.I.R. was registered on 22.03.2010. After completing investigation, charge sheet was filed before the Judicial Magistrate First class, Katol who in turn committed the case for trial to the Court of Session. 4. We have heard Shri A.K. Bhangde, learned Counsel for the appellants and Shri S.S. Doifode, learned A.P.P. on behalf of the respondent State. 5. Shri Bhangde, learned Counsel at the outset submits that the conviction is on the basis of circumstantial evidence i.e. dying declarations only. 4. We have heard Shri A.K. Bhangde, learned Counsel for the appellants and Shri S.S. Doifode, learned A.P.P. on behalf of the respondent State. 5. Shri Bhangde, learned Counsel at the outset submits that the conviction is on the basis of circumstantial evidence i.e. dying declarations only. According to him, three dying declarations are inconsistent with each other and as such could not have been used at all. He has taken us through the evidence of respective persons recording it and also through the evidence of Doctor to point out how fitness of Mangala to give those dying declarations was never recorded. Doctor was not present throughout the recording and he did not conduct proper test to ascertain mental fitness of Mangala. Her blood pressure or pulse rate was also not examined. In this situation, as proper care and precaution has not been taken while recording dying declarations, the same need to be discarded. 6. He has invited our attention to evidence of father of Mangala namely P.W.1 – Dnyaneshwar and her brother P.W.2 – Someshwar. He submits that the story of demand of money or its fulfilment by them has been accepted to be not disclosed to the police authorities and the investigating Officer P.W.12 Police Inspector Kishore Gawai, also accepted that these facts were never disclosed by P.W.1 or P.W.2 when their police statement was recorded. According to him, therefore, finding of guilt under Section 304 Part-B or then under Section 498-A of Indian Penal Code is, wrong. 7. Shri Bhangde, learned counsel states that Dnyaneshwar and Someshwar also speak of a oral dying declaration by Mangala. If their version about it is accepted as it is, it is apparent that they were speaking a lie. Deceased Mangala in none of her dying declarations has stated that her hands and legs were tied by string before alleged burning while her father and brother have put those words in the mouth of Mangala. Learned counsel submits that the trial court has ignored only this being part as an exaggeration. He invites attention to answer given by P.W.2 Someshwar in his cross examination to contend that Someshwar has admitted that Mangala did not tell anything to him. In this situation, the entire story of oral dying declaration gets vitiated and could not have been accepted. He invites attention to answer given by P.W.2 Someshwar in his cross examination to contend that Someshwar has admitted that Mangala did not tell anything to him. In this situation, the entire story of oral dying declaration gets vitiated and could not have been accepted. As a consequence, the narration of events in the subsequent dying declarations by Mangala also needs to be discarded. He invites attention to stand of appellant no.1 that in the night he found his wife burning, extinguished her fire and then brought her to the hospital. For this purpose he has also taken us through the evidence of defence witnesses. He submits that the defence witness no.3 is a Doctor who has treated the appellant no.1 for burn injuries. He further states that surprisingly, respondent prosecution has avoided to mention those injuries on the arrest panchnama. 8. He submits that statement of Mangala was recorded first in the morning of 21.03.2010 by P.W.11- Sanjay and Katol Police got copy thereof along with copy of statement recorded by Special Judicial Magistrate (P.W.5) in the evening on 21.03.2010 itself, still no offence was registered till evening of 22.03.2010. He also invites attention to deposition of P.W.4 – Yeshwant Chauhan and P.W.7 – Dilip Kawale to point out how these witnesses have deposed and how police authorities recorded something which was never stated by them. According to him the dying declaration recorded by P.W.5 – Prakash (Special Judicial Magistrate) is, without any substance as it was never read over and accepted to be correct by Mangala. Our attention is also drawn to spot panchnama to show that though intimation was received by Katol Police Station in the morning of 21.03.2010 itself, the spot panchnama was not carried out immediately. At spot, a can having two liters of rockel (kerosene) was found and seized. According to him, this itself militates with the story of pouring of kerosene on the person of deceased by some third person. The police authorities never seized clothes of either appellant no.1 or appellant no.2, and the same were never forwarded to chemical analyzer to find out kerosene residue. According to him, in this situation, the conviction is unsustainable. 9. He has relied upon a judgment of Hon'ble Supreme Court reported at 1992 Supp (3) SCC 87 (State of Gujarat Vs. The police authorities never seized clothes of either appellant no.1 or appellant no.2, and the same were never forwarded to chemical analyzer to find out kerosene residue. According to him, in this situation, the conviction is unsustainable. 9. He has relied upon a judgment of Hon'ble Supreme Court reported at 1992 Supp (3) SCC 87 (State of Gujarat Vs. Mohan Bhai Raghbhai Patel and another), to point out that conduct of appellant no.1 in attempting to extinguish fire on Mangala clearly shows that he was not party to said mission. 1998 SCC (Cri) 942 (State of Punjab Vs. Gain Kaur and another), is relied upon to show that where the deceased had suffered 100% burn injuries and both thumbs were burnt, the contention that her thumb impression which had clear ridges and curves was obtained has not been relied upon by the Hon'ble Apex Court. Hon'ble Apex Court, therefore, gave benefit of doubt to the accused persons. Judgment reported at 2008 (2) SCC (Cri) 637 (Amol Singh Vs. State of Madhya Pradesh) is also relied upon to submit that when there are inconsistent multiple dying declarations, Court has to examine inconsistencies in relation to surrounding facts and circumstances. 2011 (1) B.C.R. (Cri) 815 (Pandurang @ Ajab Deoman Gawai and others Vs. State of Maharashtra) is also relied upon by him to point out that how the Division Bench of this Court appreciates the stance that the victim had difficulty in speaking and the Magistrate recording the dying declaration had not put any questions to her to judge her capacity to depose, nor read over and confirmed contents thereof from her. The dying declaration was therefore, not relied upon. 2000 (2) Mh. L.J. 3 (Manohar Dadarao Landge Vs. State of Maharashtra) is the other Division Bench judgment of this Court where the Division Bench has stated that the Doctor must state about general physical condition of patient before stating that patient was physically and mentally fit to give statement. Evidence about general condition of patient can be brought on record by producing relevant case papers. 2011 All MR (Cri) 3334 (Waman Gulab Kadam and others Vs. Evidence about general condition of patient can be brought on record by producing relevant case papers. 2011 All MR (Cri) 3334 (Waman Gulab Kadam and others Vs. State of Maharashtra) is again a Division Bench judgment of this court where the Division Bench finds that the second dying declaration was recorded after a gap of 20 minutes, when victim was unable to speak, Division Bench found it unsafe to rely upon the said dying declaration. 2011 All MR (Cri) 151 (Ravi @ Rahul Dinesh Dangore and another Vs. State of Maharashtra) is also relied upon by him to show that when case papers reveal that pulse rate was palpable and respiratory rate was 18, it was not prudent to act upon the dying declaration without corroboration. 2010 (3) B Cr. C. 386 (Gulshanbi Ayubsha Vs. State of Maharashtra) is again relied upon to urge that Doctor must give a certificate about fitness of mind of the person giving dying declaration. 2012 All. M.R. (Cri) 2188 (Abdul Riyaz Abdul Bashir Vs. State of Maharashtra) is relied upon to buttress importance of fact of reading over of dying declaration to person making it and getting it endorsed to be correct. Lastly, 2012 All MR (Cri) 696 (SC) (Surinder Singh Vs. State of Haryana) is pressed into service to urge that when dying declaration does not carry certificate of Executive Magistrate that it was a voluntary statement, and the said declaration was not attested by a Doctor, it cannot be relied upon as deceased was under constant sedatives and was not supposed to be having normal alertness. 10. Shri Doifode, learned A.P.P. appearing on behalf of the respondent State points out that death has taken place within three years of the marriage and Mangala has left behind her two year old son and was pregnant of about 2 months at the time of her death. In this situation, as there is no material, theory of committing suicide by her cannot be accepted. He further submits that the accused did not point out any reason for suicide. As the incidence has taken place within four corners of the house occupied by the deceased and her husband, in the light of provisions of Section 106 of the Indian Evidence Act, burden was upon the appellant no.1 and appellant no.2 to disclose the circumstances in which death had occurred. 11. As the incidence has taken place within four corners of the house occupied by the deceased and her husband, in the light of provisions of Section 106 of the Indian Evidence Act, burden was upon the appellant no.1 and appellant no.2 to disclose the circumstances in which death had occurred. 11. He points out that all three dying declarations of Mangala are recorded by responsible officers and are in no way inconsistent or at variance with each other. The same therefore, need to be relied upon. Judgment of Hon'ble Apex Court reported at (2013) 2 SCC 224 (Ashabai and another Vs. State of Maharashtra) is pressed into service by him to canvass approach to be adopted when there are multiple dying declarations. He further submits that here very same Doctor was present when all the three dying declarations came to be made by the deceased and the certification by him shows that the deceased was all the while in a fit condition to make statement. (2012) 7 SCC 569 (Sudhakar Vs. State of Madhya Pradesh) is relied upon again to indicate how the Hon'ble Apex Court has approached multiple dying declarations and found corroboration thereto by other prosecution witness including the medical evidence. He submits that two oral dying declarations made by Mangala to her father and other relative have been rightly evaluated by the learned trial Court. 12. Lastly, he states that the demand made by the accused persons finds mention in the statement of Dnyaneshwar, as also Someshwar to police authorities. Without reading out those statements in the cross examination they were told that they had not made any such statement before the police authorities and they accepted it and they could not assign any reason for its alleged non mention. Judgment of Hon'ble Apex Court reported at (2000) 4 SCC 298 (Rajender Singh and others Vs. State of Bihar) is relied upon by him to show how in such circumstances witness can be contradicted. According to him attention of these witnesses should have been drawn to their police statement and to the fact that demand by the accused persons was not informed by them to police. If any such demand is not appearing in the police statement, then only the reason for such omission or improvement could have been asked for. He states that same faulty procedure has been adopted while putting question to the investigating officer. If any such demand is not appearing in the police statement, then only the reason for such omission or improvement could have been asked for. He states that same faulty procedure has been adopted while putting question to the investigating officer. 13. The Hon'ble Apex Court in case of Rajender Singh and others Vs. State of Bihar (supra) has explained how a witness is to be contradicted during trial with his previous statement made or reduced into writing. The Hon'ble Apex Court has observed that attention of such witness must be drawn to those part of his earlier statement intended to be used for the purpose of contradicting him. In present matter P.W.1 Dnyaneshwar has in chief deposed that after 1½ year of marriage, Diwakar had sent his daughter for bringing money and at that time he paid Rs. 20,000/- to her. Diwakar used to quarrel with Mangala for bringing money. At the time of marriage, Diwakar was residing with his mother, but, 3-4 months thereafter, he started residing separately with Mangala in the same house. He used to drink liquor. His mother used to harass Mangala. After drinking liquor, Diwakar used to quarrel with Mangala and beat her. He has further deposed that 15 days prior to her death, Mangala came to his house with Diwakar. No incidence took place at that time and Mangala told nothing to him. Diwakar also did not ask for anything, and after 8 days they went back. In his cross-examination in paragraph no.7, he has stated that he informed police about Mangala being sent back to him 1½ years after marriage. He could not assign any reason as to why the said fact did not find mention in his police statement. His police statement shows that after marriage Mangala came to his house on several occasions. He has stated that on each occasion Mangala was harassed by Diwakar and his mother told to coerce her get money from her parents. She was being beaten. On each occasion they used to pacify Mangala and gave her amounts like Rs. 1000/- Rs. 2000/-, Rs. 5000/- and sent her back. He has further stated that on account of Holi festival, Mangala and Diwakar came to their house and demanded Rs. 20,000/- as they wanted to construct the house. He told Diwakar about his inability and accepted to give Rs. 4000/- to Rs. 5000/- after some days. 1000/- Rs. 2000/-, Rs. 5000/- and sent her back. He has further stated that on account of Holi festival, Mangala and Diwakar came to their house and demanded Rs. 20,000/- as they wanted to construct the house. He told Diwakar about his inability and accepted to give Rs. 4000/- to Rs. 5000/- after some days. Diwakar then had a quarrel with them and immediately on next day took Mangala and his son to Katol. Then he speaks about the incidence dated 20.03.2010. Thus, fact that he paid Rs. 20,000/- to Mangala on that occasion does not find mention in his police statement. He has accordingly answered the question in cross examination in paragraph no.7. However, his statement also shows that fact that Mangala was sent back after 1½ years of marriage to bring money, again does not figure in that statement. His statement about visit to hospital on 20.03.2010 shows that as he did not pay Rs. 20,000/-, Diwakar used to consume liquor and beat Mangala, her mother-in-law and husband quarreled with her on account of money on previous night and beat her. Her mother-in-law poured kerosene on her person and her husband lit her with match box. In chief he has stated that Mangala told him in hospital that her husband was sending her to her matrimonial home for getting money and as she refused, he consumer liquor, tied her legs and hands by string with the help of his mother, poured kerosene on her person and burnt her. In paragraph no.7, this fact has been put to him and no such statement appears in his police statement. However, in opening sentence of paragraph no.8 of his cross examination he has admitted that Mangala was hot tampered. Omissions mentioned in paragraph no.7 have been put to the investigating officer P.W.12- Kishore and have been proved through him. We therefore, find no substance in the contention of learned A.P.P. that proper procedure has been followed in the matter. 14. Police statement of brother of deceased namely Someshwar (P.W.2) is on same lines, as of his father. Both the statements are recorded on same day by the police. The said omissions in his statement have been put to him in paragraph no.4 of the cross examination and have been proved through the investigating officer. 14. Police statement of brother of deceased namely Someshwar (P.W.2) is on same lines, as of his father. Both the statements are recorded on same day by the police. The said omissions in his statement have been put to him in paragraph no.4 of the cross examination and have been proved through the investigating officer. Hence, again arguments of learned A.P.P. about procedure to be followed in the procedure of proving such omission or support taken by him of Judgment in case of Rajender Singh and others Vs. State of Bihar (supra), are misconceived in this matter. 15. P.W.1 Dnyaneshwar and P.W 2 Someshwar are the only witnesses on demand of dowry by the appellants. Variance between their depositions in court and police statements is already noted by us supra. Thus, alleged demand of Rs. 20,000/- or its fulfilment has not been established. No other demand or its fulfilment is deposed by these persons. On the contrary Dnyaneshwar has deposed that 15 days before her death, Mangala and Diwakar were to his house and no untoward incident took place at that time. Both stayed there for about 8 days and they went back. Holi festival in year 2010 was on 28.02.2010 while the Rangpanchami was 01.03.2010 i.e. during the period of stay of Mangala and Diwakar with Dnyaneshwar. Deceased Mangala did not disclose the fact that her mother in law Sushila had taken or removed her ornaments to her parents when she and Diwakar stayed with them for about 8 days just few days prior to her death. 16. The other evidence of ill-treatment or harassment is in the shape of dying declaration of Mangala. Incident took place in the night between 20th March and 21st March, 2010. Dnyaneshwar and Someshwar met Mangala at Medical College and Hospital at Nagpur on 21.03.2010 in the morning hours. Dnyaneshwar has stated that Mangala told him that as she refused to go to her maternal home to bring money, Diwakar consumed liquor, tied her hands and legs by string with the help of his mother, poured kerosene on her person and burnt her. P.W.2 Someshwar in chief has stated that Diwakar had asked her to bring amount of Rs. 10,000/- by going to her maternal house and as she refused to bring it, Diwakar and his mother tied her legs and hands and set her on fire. 17. P.W.2 Someshwar in chief has stated that Diwakar had asked her to bring amount of Rs. 10,000/- by going to her maternal house and as she refused to bring it, Diwakar and his mother tied her legs and hands and set her on fire. 17. This story of tying of hands and legs of Mangala is not accepted by the trial Court and it has ignored it as natural exaggeration of blood relatives of Mangala. 18. Without prejudice to the contentions of appellants about validity of the dying declarations, we will like to briefly refer to the same to find out what is the reason given by Mangala in these dying declarations. Her first dying declaration in point of time is recorded at about 9.45 a.m. on 21.03.2010. In it she has pointed out consuming of alcohol by her husband and his quarreling with her and quarrel by her mother-in-law with her. She has further mentioned that on 20.03.2010 her husband came in intoxicated condition at 11.30 p.m. and quarreled with her on domestic count. Then she points out burning. Her second dying declaration is recorded by Special Judicial Magistrate – Prakash Somkuwar (P.W.5) between 2.30 p.m. to 3.20 p.m. In that dying declaration she has deposed that in marriage instead of dowry her father gave her ornaments of gold and silver. As she had not brought dowry in cash, her mother-in-law and husband used to scold her. Her mother-in-law used to address her as person who forcefully entered the house; as daughter of a beggar and used to ask her to bring money from her parents. She was being beaten. On 20.03.2010 in the night at about 11.30 p.m. her mother-in-law quarreled with her and poured kerosene on her person. Her husband also beat her and ignited her with match stick. Thus in the opening part she has pointed out harassment in general and has not pointed out any specific instance as such. She has not uttered a word about mother-in-law or husband asking her to go to her parents to bring money or her refusal thereto, and quarrel ensuing due to it, on 20.03.2010. 19. Her last dying declaration is recorded by A.S.I. Jitendersingh (P.W.6) immediately thereafter. In that dying declaration Mangala has stated almost the same story. She has not uttered a word about mother-in-law or husband asking her to go to her parents to bring money or her refusal thereto, and quarrel ensuing due to it, on 20.03.2010. 19. Her last dying declaration is recorded by A.S.I. Jitendersingh (P.W.6) immediately thereafter. In that dying declaration Mangala has stated almost the same story. However, she has added that her mother-in-law Sushila had removed all her ornaments and told her that she had demanded dowry in cash of Rs. 1 lakh. She has further stated that, as dowry was not paid in cash, she was being harassed physically and mentally. She has further stated that on 20.03.2010 at about 11.30 p.m. her husband Diwakar returned in intoxicated condition and started quarreling with her on some domestic count. Her mother-in-law Sushila also came there in the meanwhile and also started quarreling. Her husband and mother-in-law together poured kerosene on her person and then ignited her by match stick. Then she has further stated that her husband and mother-in-law have for dowry, after quarrel, burnt her. 20. Thus, all her three dying declarations do not show any demand on 20.03.2010 or her refusal to go to her parents place and, therefore, quarrel between Mangala and her husband or her mother-in-law. On the contrary, in first and third dying declaration she has stated that her husband picked up quarrel on some domestic ground/count, but in second dying declaration she has not given any reason whatsoever. 21. Apart from this material on record, there is no further material or evidence to prove any demand of dowry or its non fulfilment or then any ill-treatment or harassment to force deceased Mangala or her parents to fulfil that demand. In the light of this discussion, we find it difficult to hold the appellants guilty beyond reasonable doubt of offence punishable under Section 498-A of Indian Penal Code or then Section 304-B of Indian Penal Code. 22. The incidence dated 20.03.2010 has taken place in the house of appellant no.1 Diwakar. Appellant no.2 Sushila used to stay in the same house, but, separately. In her Section 313 statement Sushila has stated that false police report has been lodged against her. Appellant no.1 Diwakar has pointed out that he wanted to examine witness in defence. He has further stated that his wife Mangala was hot tampered woman and slow witted. Appellant no.2 Sushila used to stay in the same house, but, separately. In her Section 313 statement Sushila has stated that false police report has been lodged against her. Appellant no.1 Diwakar has pointed out that he wanted to examine witness in defence. He has further stated that his wife Mangala was hot tampered woman and slow witted. She shouted at about 2 O'clock in the morning on 21.03.2010, he heard it and therefore, woke up. She was burning. He put a quilt on her and tried to extinguish the fire. In the process his left hand and hair got burnt. He brought her to rural hospital at Katol and after primary treatment she was taken to Government Medical College and Hospital at Nagpur. 23. Oral dying declaration allegedly made by Mangala to P.W.1 Dnyaneshwar and P.W.2 Someshwar are already mentioned by us supra. P.W.2 Someshwar has in paragraph no.4 of his cross examination accepted the suggestion that Mangala did not tell him anything. However, this does not help the appellants. He came to Nagpur along with his father and uncle. All of them saw Mangala together. They got news at 4 o'clock in the morning of 21.03.2010 that Mangala was burnt and was at Government Medical College at Nagpur. Dnyaneshwar, Someshwar, brother of Dnyaneshwar by name Dhanraj, his relative Chaitrao came to hospital. Thus, oral dying declaration by Mangala is to all these persons together and it is prior to recording of her first dying declaration by P.W.11 Sanjay. In spite of said oral dying declaration and assertion therein against her husband and mother-in-law, these persons have not taken any steps to lodge any complaint with the police till 22.03.2010. Dnyaneshwar has lodged report on 22.03.2010 at about 13.45 hours. In that report (Exh.22), he has only pointed out that Mangala had stated to him that she was burnt by her mother-in-law, husband, brother in law Rajesh, father in law Ganpat and brother in law of Diwakar by name Chatrapati. After burning they ran away. Then he has mentioned that his daughter was being harassed for bringing money from her parents. He has stated that Mangala had told him before death that her ornaments were removed by her mother-in-law. Thus in this report Exh.22, he does not state that Mangala was burnt for not paying dowry amount. 24. After burning they ran away. Then he has mentioned that his daughter was being harassed for bringing money from her parents. He has stated that Mangala had told him before death that her ornaments were removed by her mother-in-law. Thus in this report Exh.22, he does not state that Mangala was burnt for not paying dowry amount. 24. We have already noted supra that in first dying declaration (Exh.59), Mangala does not refer to any dowry demand and states that quarrel was started by her husband on domestic ground. In her third dying declaration at Exh.43, again she has mentioned the domestic dispute as ground for quarrel. Only in dying declaration at Exh.38 recorded by P.W.5 Special Judicial Magistrate, she has given previous history. But, then again she does not disputes that quarrel on 20.03.2010 was on account of dowry demand. 25. In her first dying declaration at Exh.59, Dr. Harish (P.W.9) has stated that she was fit to give statement. This certificate is issued by him on dying declaration itself in the margin at 9.45 a.m. He has also given similar certificate in the margin of Exh.42 i.e. requisition given to him by P.W.6 – ASI Jitendersingh. Very same Doctor has again given similar certificate at 2.30 p.m. on Exh.37. Thus, all these three certificates are given by him at different time but on very same date. Perusal of first dying declaration (Exh.59) and last dying declaration (Exh.43) show that the same were read over to Mangala after recording and she has accepted the same to be correct. Thereafter her thumb impression has been obtained. Same endorsement appears in English and in Marathi even on the dying declaration at Exh.38. Contention of Shri Bhangde, learned counsel that the dying declaration was not read over to Mangala and she never accepted it to be true and correct is, therefore, unacceptable. 26. At this stage it would be appropriate to refer to the deposition of P.W.9- Dr. Harish. He has deposed that Mangala was admitted in burn ward no.4 at about 6 a.m. on 21.03.2010 and it was a case of 100% burn injuries. He informed about it to police. At about 9.45 a.m. a constable from police booth at Nagpur Medical College and Hospital came to ward. He gave a letter and enquired whether patient was in fit condition to give statement. He informed about it to police. At about 9.45 a.m. a constable from police booth at Nagpur Medical College and Hospital came to ward. He gave a letter and enquired whether patient was in fit condition to give statement. Accordingly he gave a certificate that patient was fit for giving statement. Said constable then recorded statement of Mangala in his presence. Before giving certificate of fitness, he had observed general condition of patient. She was well oriented about time, place and person. 27. At about 2.30 p.m. Special Judicial Magistrate came to said ward and he gave him requisition for giving opinion on condition of Mangala. He examined Mangala and found her conscious and well oriented about time, place and person. Accordingly he gave endorsement on letter at Exh.37. At the same time police constable from Katol Police Station also arrived and gave similar requisition and he gave similar endorsement at Exh.42. Special Judicial Magistrate recorded statement of Mangala in his presence. Mangala was in a position to understand and reply the question during the whole period taken for recording of her statement. Thereafter police constable who came from Police Station, Katol recorded statement of Mangala in his presence. During that period also she was conscious and able to understand the questions and give answers. He has stated that Mangala expired on 21.03.2010 at 11.50 p.m. 28. His cross examination reveals that he gave endorsement on Exh.59 before P.W.11 Sanjay started recording statement of Mangala. After completion of that recording, he did not give any other certificate of fitness. He denied that in his certificate he did not mention that patient was mentally and physically fit. He accepted that in certificates or endorsements he has not mentioned that patient was well oriented as to time, place and time or then her general condition was good. He also stated that he has not mentioned that he examined the patient or noted her pulse rate or blood pressure. He also accepted that in Exh.37 given to Special Judicial Magistrate he has not mentioned that he examined patient and found her physically and mentally fit. He has not given any endorsement about condition of patient on her statement at Exh.38. Answers given by him in relation to Exh.59 supra, are repeated by him in paragraph no.8 of his cross examination. He has not given any endorsement about condition of patient on her statement at Exh.38. Answers given by him in relation to Exh.59 supra, are repeated by him in paragraph no.8 of his cross examination. He accepted that Special Judicial Magistrate did not ask him to sign on statement at Exh.38. He also accepted that Special Judicial Magistrate did not ask for his help for obtaining thumb impression of patient on statement at Exh.38. 29. He accepted that patient with such burns continuously demands water and face breathing problem. Such patient remains critical till death. As plasma is lost, patient becomes weak. He accepted that Mangala was kept on oxygen. He denied that she was given morphin or pethydine. He accepted that she was given pain killer injection Benzyl. As that injection was not available in the hospital, her relatives purchased it from open market. He accepted that said injection was equivalent to morphin and pethydine. He also accepted that after such pain killer, her process of talking had become slow. He accepted that due to breathing the patient had inhaled much carbon dioxide and carbon monoxide. He denied that patient was suffering from hallucinations. His cross-examination in relation to third dying declaration at Exh.43 or endorsement about fitness on Exh.42 is on same lines. 30. He has accepted that some time before arrival of Special Judicial Magistrate, some of the relatives of patients were near her bed. He denied that he was not present with patient between 2.30 to 3.30 p.m. He denied that patient did not give statement in his presence. 31. The contents of first dying declaration at Exh.59 have been mentioned by us above. There Mangala has stated that her husband quarreled with her on domestic issue and her mother-in-law also had quarrel with her. Both of them i.e. husband and mother-in-law then poured kerosene kept in house on her person and then her husband and mother-in-law Sushila together ignited her with match stick. She has further stated that she shouted and then her husband put a quilt on her person and extinguished the fire. Then her husband got her admitted to hospital. Thus, here she claims that both jointly poured kerosene on her and then both together set her ablaze. Dying declaration at Exh.38 is recorded by P.W.5 Special Judicial Magistrate after 5 hours of first dying declaration. Then her husband got her admitted to hospital. Thus, here she claims that both jointly poured kerosene on her and then both together set her ablaze. Dying declaration at Exh.38 is recorded by P.W.5 Special Judicial Magistrate after 5 hours of first dying declaration. His evidence at Exh.35 is consistent with recording of dying declaration at Exh.38 or requisition at Exh.37. He has stated that he reached burn ward, searched for patient Mangala, got acquainted with herself. He also accepted that he no where mentioned that he disclosed his identity to Mangala. He did not remember whether medical officer has checked her pulse rate or note it down. After obtaining his endorsement about fitness of patient, he did not enquired with the Doctor about mental and physical condition of said patient. He stated that he did not inquire from Mangala where her mother-in-law was residing or then who extinguished the fire. 32. Exh.36 is the requisition which he received on 21.03.2010 at about 2 O'clock in the afternoon. Thereafter he has given requisition to Doctor at Exh.37 and at 2.30 p.m. Dr. Harish (P.W.9) has given his endorsement about fitness of patient on it. Then he has started recording statement of Mangala. He has put in about 8 questions like her name, her age, occupation, address, education, marriage. She has stated that she has a son aged about 2 years and she was carrying since three months. She has also stated that her maternal house is at Telgaon, Kamptee, Taluq Saoner. At the beginning the Magistrate has put a note that persons standing near bed of patient were directed to leave the ward and patient was informed accordingly. After primary questions and answers mentioned supra, Special Judicial Magistrate has put note that patient has given proper answers to his questions. He was therefore, satisfied that patient was fit to give statement, and therefore, he proceeded to record the statement. At the end of the statement in Marathi on right hand side, he has mentioned that statement was read over to Mangala and she has accepted that it was written as per her say and it was correct. Then her thumb impression was obtained. On left hand side he has put endorsement in English that statement was read over and admitted to be correct. After that endorsement he has placed his signature, date and time. Then her thumb impression was obtained. On left hand side he has put endorsement in English that statement was read over and admitted to be correct. After that endorsement he has placed his signature, date and time. Time mentioned is 3.20 p.m. As already mentioned supra, after pointing the previous treatment to her Mangala has spoken of incidence dated 20.03.2010. She has stated that her mother-in-law Sushila quarreled with her and poured kerosene on her person. Her husband beat her and then ignited match stick and threw it at her. She got burnt completely. Thereafter her husband took her to the Government Hospital at Katol and then at Government Medical College and Hospital, Nagpur. Thus, in this statement she does not say that her husband started quarreling with her after he came back in intoxicated condition. She does not state that quarrel was on any domestic issue. She mentions that her mother-in-law Sushila started quarrel and poured kerosene on her person. Her husband beat hear and her husband ignited her. She does not mention shouting or then her husband extinguishing her by putting quilt on her person. 33. The last statement is recorded immediately after Special Judicial Magistrate left. This last statement is at Exh.43. Perusal of evidence of Jitendersingh Thakur, A.S.I. who recorded that statement shows that he was aware of presence of P.W.5 and of fact that P.W.5 has recorded dying declaration of Mangala. He states that he delivered requisition at 2 p.m. to the Special Judicial Magistrate P.W.5. That requisition is at Exh.36. Then he called the Doctor, as after going to ward with Special Judicial Magistrate he found that Doctor was not present there. Thereafter he points out endorsement given by Doctor to him about fitness of patient at Exh.42. Then Special Judicial Magistrate sent him out of the ward and proceeded to record statement of Mangala Thote. This deposition is, therefore consistent to the deposition of P.W.9 – Dr. Harish, who states that he first gave fitness certificate at Exh.37 to the Special Judicial Magistrate and thereafter to P.W.6. P.W. 6 states that after Special Judicial Magistrate came out of ward, after recording statement of Mangala, he went inside the ward and recorded statement of Mangala. He has also deposed about statement made by Mangala. Dying declaration recorded by him is at Exh.43. We have also briefly mentioned the material contents of this dying declaration. P.W. 6 states that after Special Judicial Magistrate came out of ward, after recording statement of Mangala, he went inside the ward and recorded statement of Mangala. He has also deposed about statement made by Mangala. Dying declaration recorded by him is at Exh.43. We have also briefly mentioned the material contents of this dying declaration. Exh.43 shows that P.W.6 has also asked the some preliminary questions about name, address, date of marriage etc. and then Mangala has stated about removal of her ornaments by her mother-in-law as dowry in cash of Rs. 1 lakh was not paid and her harassment. She has stated that she has a son aged about 2 years and was pregnant of two months. Then she has stated that her husband came under influence of alcohol at 11.30 p.m. and started quarreling with her on domestic count. Her mother-in-law also came there in the meanwhile and joined the quarrel. Her husband and mother-in-law together poured kerosene on her person and ignited her with match stick. She shouted and her husband put quilt on her person and extinguished the fire. She has also stated that as she is burnt by her husband and mother-in-law on account of dowry, action should be taken against them. 34. This witness has stated that after he finished recording of statement of Mangala, he met P.W.5 Special Judicial Magistrate to procure dying declaration from him. P.W.5 called him in the court at 5.30 p.m. and there delivered a sealed envelope of said dying declaration of Mangala to him. He delivered it to P.I. Shri Gawai at Katol Police Station along with statement recorded by him and other papers. 35. The mode and manner in which incidence is narrated by Mangala shows that she was in a position to understand the questions put to her and to give rational answers to them. Doctor has found her fit in the morning at about 9.45 a.m. and thereafter in the afternoon at about 2.30 p.m. Procedure followed by P.W.5 Special Judicial Magistrate again appears to be free from any defect. Apart from certificate of Doctor, he got himself satisfied about the mental condition of Mangala and thereafter has proceeded to record her dying declaration. Document prepared by him shows his careful approach and all precautions taken by him. We find nothing to doubt this dying declaration. 36. Apart from certificate of Doctor, he got himself satisfied about the mental condition of Mangala and thereafter has proceeded to record her dying declaration. Document prepared by him shows his careful approach and all precautions taken by him. We find nothing to doubt this dying declaration. 36. In this situation, we are not satisfied with the arguments advanced on behalf of learned counsel for the appellants that the Doctor or persons recording dying declaration did not examine Mangala or then that Mangala was not in a physical and mental condition to give any dying declaration. 37. Here we may mention that the Special Judicial Magistrate in cross examination has stated that for obtaining thumb impression of Mangala,, bandage on her thumb was removed and her thumb nail was in proper condition. He obtained assistance of ward nurse for removing that bandage and then obtained thumb impression. He accepted that this fact was not mentioned in the statement of Mangala. This evidence negates the argument of Shri Bhangde, that thumb impression of Mangala was not obtained. The answer given by P.W.10 Govindrao who has proved inquest panchnama that he did not find any marks of ink on the thumb of the corpse is, therefore, not decisive. 38. P.W.12 Kishore Gawai has deposed that at Katol Public Health Centre at about 1.20 hours Mangala was brought and head constable Mehre went to P.H.C. He gave letter to Doctor inquiring whether Mangala was in a position to give statement and Doctor there gave endorsement that she was not in a condition to give it. He has further stated that on 22.03.2010, A.S.I. Jitendra Singh brought dying declarations of Mangala to Katol Police Station. According to appellants Shri Thakur has deposed that he has handed over dying declaration at Katol Police Station on 21.03.2010 itself in the evening. Shri Bhangde, learned Counsel has also urged that 21.03.2010 was a holiday as such there was no reason for Special Judicial Magistrate to ask Shri Thakur to come to Court to collect dying declaration. The fact on record shows that Jitendersingh collected A.D. from Special Judicial Magistrate in Court premises at Nagpur and then handed it over to the investigating officer P.W.9. We do not see any material inconsistencies in this respect. 39. The fact on record shows that Jitendersingh collected A.D. from Special Judicial Magistrate in Court premises at Nagpur and then handed it over to the investigating officer P.W.9. We do not see any material inconsistencies in this respect. 39. Material part of dying declarations mentioned supra show that both the appellants quarreled with Mangala and then kerosene was poured on her and she was set ablaze. None of the persons who recorded dying declarations could have put and have put any leading questions to her in this respect. What ever she has voluntarily stated appears to have been recorded. As both of them quarreled and acted in collusion, she has stated accordingly. 40. In this respect, there are two hostile witnesses on record. Exh.33 is deposition of P.W.4 Yeshwant Chauhan. He has stated that on 22.03.2010 at about 2 to 3 in the morning, he heard noise of shouting and therefore, got up. When he came out of his house, he found that Mangala was burning and Diwakar was trying to extinguish fire on her body. Thereafter, she was taken to rural hospital. He was declared hostile and A.P.P. cross examined him. He denied that Mangala was shouting that her husband Diwakar and mother-in-law Sushila set her on fire. He stated that he did not make any such statement before the police and he could not assign any reason why such statement appeared in his police statement. He denied that in the night there was quarrel between Diwakar and his wife, and he had gone to their house to pacify it. He again denied to have made any such statement to police and could not explain why portion marked "B" on these lines appear therein. Other witness is P.W 7 – Dilip Kawale at Exh.44. He has deposed on same lines. He woke up at about 2 or 2.30 a.m. due to shouts and saw appellant no.1 Diwakar extinguishing fire on his wife. He did not see Diwakar's mother. His cross-examination by A.P.P. shows that he did not state to police that on earlier night Diwakar came back to house after consuming liquor and quarreled with Mangala. He accepted that he informed police that he had gone to Diwakar's house to pacify Diwakar and his wife. He further stated that he did not state to police that when Diwakar was extinguishing fire, his mother was standing near him. He accepted that he informed police that he had gone to Diwakar's house to pacify Diwakar and his wife. He further stated that he did not state to police that when Diwakar was extinguishing fire, his mother was standing near him. He could not explain why such statement appear at portion marked "B". He also stated that he did not tell police that Mangala was telling that her husband Diwakar and mother-in-law Sushila poured kerosene on her and set her on fire. He could not explain why such statement appear in his police statement. 41. The accused persons have examined four persons in defence. D.W.1 – Himmar Gadve, was in fact a prosecution witness not examined by it. He has deposed that on 21.03.2010 at about 3 a.m. he and his wife woke up due to shouts and went running towards house of Diwakar. He saw Diwakar extinguishing fire on his wife. He extinguished fire on her person by bed-sheet. He also stated that Diwakar was extinguishing fire with hands. He accepted that police had recorded his statement. He denied that he was present at 10 p.m. in front of house of Diwakar and at that time Diwakar was quarreling with his wife under influence of liquor. He denied that he saw Diwakar and his mother setting Mangala on fire. D.W.2 Nathu Nehar has stated that he was on patrol duty and at 1.20 a.m. Dr. Ramteke from Katol P.H.C. telephoned Katol Police Station. He accordingly went to the Government Hospital at Katol. He further stated that he prepared spot panchnama, as directed by P.S.O. Gawai. He made inquiries from persons present on the spot and nobody told as to how the incident occurred. He has further stated that at the time of preparation of spot panchnama, a crime was already registered. However, this appears to be an incorrect assertion, as pot panchnama was recorded between 7 a.m. to 8 am on 21.03.2010, while FIR has been registered on 22.03.2010, as mentioned supra. 42. D.W.4 Arjun Deshmukh was working as police head constable on 20.03.2010. He has spoken about report given by Dnyaneshwar on that date against Diwakar, Sushila, father in law of Mangala and Diwakar's sister. D.W.3 Dr. Pankaj Karande is a Medical Officer who examined Diwakar on 22.03.2010. He has stated that Diwakar was having a burn injury on left palm and injury on both feet. He has spoken about report given by Dnyaneshwar on that date against Diwakar, Sushila, father in law of Mangala and Diwakar's sister. D.W.3 Dr. Pankaj Karande is a Medical Officer who examined Diwakar on 22.03.2010. He has stated that Diwakar was having a burn injury on left palm and injury on both feet. He states that the injuries were simple, caused within 72 hours and would have healed normally in 10 to 12 days. It is important to note that he did not find hair of Diwakar burnt. 43. Thus, even as per the defence witnesses, the incidence of burning occurred on 21.03.2010 at about 2 a.m. to 3 a.m. Quarrel which is spoken of by Mangala between her mother-in-law and herself or beating by Diwakar or quarrel by Diwakar is about 11.30 in the night between 20.03.2010 and 21.03.2010. From records it appears that the neighbours attempted to pacify it. Time of incidence given by them is not very correct as Mangala was at Katol Hospital by 1.00 AM and police received intimation about the burning at 1.20 AM itself. Hence, narration of pouring of kerosene or of igniting herself as a part of said quarrel by Mangala appears to be correct. 44. In Sudhakar Vs. State of Madhya Pradesh, (2012 LL MR (Cri) 2682 (S.C.)(supra), the Hon'ble Supreme Court has indicated approach when there are multiple dying declarations which are either contradictory or at variance with each other to large extent. The discussion therein shows that in such circumstances prudence demands effort to ascertain whether such declaration is corroborated by other prosecution evidence, and condition of the deceased at its making, medical evidence, voluntariness and genuineness have come on record. The Hon'ble Apex Court found that in facts and circumstances before it, first dying declaration absolving the appellant was voluntary and was not made by free will. Here Mangala has not made any dying declaration absolving the appellants. 45. In Ashabai and another Vs. State of Maharashtra, (2013) All SCR 654(supra) the Hon'ble Apex Court considers four dying declarations and found that there was complete consistency on major aspects of the incidence and role played by the accused. Amol Singh Vs. State of Madhya Pradesh, (2008) AllMR (Cri) 2323 (S.C.)(supra) is again a judgment of Hon'ble Apex Court on same subject. In present facts, these judgments have no bearing. 46. State of Punjab Vs. Amol Singh Vs. State of Madhya Pradesh, (2008) AllMR (Cri) 2323 (S.C.)(supra) is again a judgment of Hon'ble Apex Court on same subject. In present facts, these judgments have no bearing. 46. State of Punjab Vs. Gain Kaur and another (supra), is a judgment where the Hon'ble Apex Court finds presence of well marked ridges and curves of a thumb impression where victim was 100% burnt, a suspicious circumstance. In this case thumb impression of deceased Mangala no where shows such ridges and curves. State of Gujarat Vs. Mohan Bhai Raghbhai Patel and another (supra), is a judgment whee the Hon'ble Apex Court considers the conduct of the appellant in extinguishing fire. Here the dying declaration show that fire was ignited by the appellants and then appellant no.1 Diwakar extinguished it by putting a quilt. Diwakar has brought on record a defence witness who speaks that he extinguished fire by putting quilt while Diwakar was attempting to extinguish the fire by using hands. There is no evidence of any serious or major injury suffered by Diwakar. His left palm appears to be burnt. 47. In so far as the precedents cited on reading over of dying declaration to its maker are concerned, in present facts each dying declaration has been read over to the deceased and she accepted the same to be correct. Thereafter, her thumb impression has been obtained. This is more apparent from the dying declaration recorded by the Special Judicial Magistrate and P.W.6 Jitendersingh. Judgments in case of Manohar Dadarao Landge Vs. State of Maharashtra (supra) or Abdul Riyaz Abdul Bashir Vs. State of Maharashtra (supra) have therefore no application here. The Doctor has found patient in fit condition on all three occasions and has stated that he was present throughout the process of recording of dying declarations. Therefore, also we find it not necessary to delve more into said judgments. The judgment upon administration of sedatives delivered by the Hon'ble Apex Court in case of Surinder Singh Vs. State of Haryana (supra) or about Doctor not recording pulse rate in case of Ravi @ Rahul Dinesh Dangore and another Vs. State of Maharashtra (supra) also need not be looked into here in view of the evidence to the contrary available in the present matter. We are therefore, not in a position to find any fault with the certificates issued by the Doctor in this case. 48. State of Maharashtra (supra) also need not be looked into here in view of the evidence to the contrary available in the present matter. We are therefore, not in a position to find any fault with the certificates issued by the Doctor in this case. 48. We, therefore, find nothing wrong with Trial Court accepting the dying declaration of Mangala and proceeding to punish the deceased. Accused were in house with deceased when incident occurred and hence, Section 106 of the Evidence Act is squarely attracted. Deceased was lastly seen in the house with them during quarrel. Post mortem report Ex. 48 shows 12 Cms. male fetus weighing 26 grams in uterus of Mangala and hence, denial of her pregnancy by the accused appears to be wrong. Both the accused have also suppressed the quarrel in the house. If the neighbours had intervened and pacified the quarrel, why they could not disclose that quarrel in Court and take suitable stand about it is the moot question. Mangala was carrying for about 2 to 3 months and has left behind a son aged 2 years at the time of her death. Accused persons have not brought on record any material to show that her death was not a suicide. We find that she had no apparent reason to commit suicide. Burn injury to palm sustained by Diwakar does not show any serious effort to extinguish his wife and defence witness produced by Diwakar states that said witness put quilt to cover burning Mangala to douse the fire. Fact that all the neighbours go hostile at the time of recording of their deposition in Court and otherwise their police statements are consistent with the dying declarations also becomes material. This being a case of a custodial death, law casts duty on accused to make clean breast of matter. It was obligatory for them to explain not only the quarrel but, to take a stand on the ornaments of deceased Mangala. Even if the ornaments were not removed by them from person of Mangala, the ornaments ought to be in their house and custody. They also should have thrown light on quarrel in the night of 20.3.2010 without suppressing anything and left it to authorities to evaluate its impact. 49. Even if the ornaments were not removed by them from person of Mangala, the ornaments ought to be in their house and custody. They also should have thrown light on quarrel in the night of 20.3.2010 without suppressing anything and left it to authorities to evaluate its impact. 49. As a result of this discussion, following order is passed :- (i) The appellants (1) Diwakar Ganpat Thote and (2) Sushila Ganpat Thote are acquitted of offences punishable under Section 498-A and Section 304- B Indian Penal Code by giving them the benefit of doubt. (ii) Conviction of appellants under Section 302 of Indian Penal Code is maintained and they are sentenced to suffer life imprisonment and also to pay fine of Rs. 2000/- each. In default of payment of fine, they shall undergo simple imprisonment for three months. (iii) Appellant no.2 – Sushila Ganpat Thote, to surrender to her bail bond. (iii) Rest of the operative part of the judgment and order of Trial Court is maintained as it is. (iv) Criminal Appeal is, thus, partly allowed.