JUDGMENT : M.G. Giratkar, J. The State of Maharashtra taken exception to the decision of acquittal of accused persons in Session Case No. 61/2008 passed by Adhoc Additional Sessions Judge, Yavatmal dated 29-11-2008. 2. The case of the prosecution (State/appellant) against the accused/respondents is as under. (i) Deceased Manisha married with son of accused nos. 1 and 2 before 5 years of the incident. After the marriage, she was residing with her husband in joint family consisting of father-in-law, mother-in-law and brother-in-law. Deceased was having one son Shubham from her husband. One and half years before the incident, deceased along with her husband was living in separate room of same house because of strained relations with her father-in-law and mother-in-law. Her husband was mason by profession. (ii) On 25-11-2007 at about 10.00 a.m., she told her father-in-law to ask tenant Shri Waghmare to keep the door of first floor open because she wanted to keep some articles on the upper floor. Her father-in-law (accused no. 1) quarreled with her. He told her as to why she was talking with him. Her husband had gone to Mumbai. Thereafter her mother-in-law and father-in-law, both came into room. They abused her. Her mother-in-law caught hold her hands, father-in-law poured kerosene on her person and set her on fire by igniting matchstick. Deceased started burning. Both accused closed door from inside and went in another room. Her son started crying loudly being affected with heat. Therefore, her mother-in-law and father-in-law again came back to her room and took her son with them. They extinguished fire by pouring water. She was taken to the hospital by her father-in-law, mother-in-law and the persons from the locality who had gathered. (iii) Medical Officer informed the duty constable about the condition of patient. Requisition was issued to Naib Tahsildar Shri Rajgadkar to record the dying declaration. Shri Rajgadkar requested Medical Officer Shri Bhuyar to examine the patient. After getting certificate of fitness, Shri Rajgadkar has recorded the dying declaration of deceased (Exhibit 33). (iv) After receipt of dying declaration recorded by Shri Rajgadkar, PSI Rathod registered the crime vide FIR, Exhibit 50. Thereafter PSI Rathod himself went to the Government Hospital, Yavatmal on 26-11-2007 at about 10.00 p.m. and recorded statement of deceased Manisha vide Exhibit 51. (v) Deceased Manisha died on 2-12-2007. Her dead body was sent for postmortem. (iv) After receipt of dying declaration recorded by Shri Rajgadkar, PSI Rathod registered the crime vide FIR, Exhibit 50. Thereafter PSI Rathod himself went to the Government Hospital, Yavatmal on 26-11-2007 at about 10.00 p.m. and recorded statement of deceased Manisha vide Exhibit 51. (v) Deceased Manisha died on 2-12-2007. Her dead body was sent for postmortem. As per the postmortem report, opinion as to the cause of death was given as “shock due to infected burn”. Statements of witnesses were recorded. Spot panchanama, seizure panchanamas were drawn by PSI Rathod. After complete investigation, chargesheet was filed before the Chief Judicial Magistrate, Yavatmal who in turn committed the case to the Court of Sessions for trial. (vi) Trial Court framed charge at Exhibit 8 against both the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Prosecution has examined 6 witnesses. At the conclusion of trial, both the accused came to be acquitted, hence, the present appeal by the State. 3. Heard learned Additional Public Prosecutor Shri S. J. Kadu for the State/appellant. He has submitted that evidence of parents of deceased is well corroborated by dying declaration, Exhibit Nos. 33 and 51. Learned trial Court not considered evidence properly and wrongly acquitted both the accused, at last, prayed to allow the appeal and convict the accused for the offence charged against them. 4. Heard learned counsel Shri Bhise for the respondents/accused. He has submitted that dying declarations, Exhibit Nos. 33 and 51 are doubtful. Oral dying declarations stated by P.W. 1, P.W. 2, P.W. 3 and P.W. 4 are not reliable. There are material omissions and contradictions in the evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 4. They are nearest relatives of deceased. 5. Learned counsel has submitted that deceased had sustained 99% burn injuries. It was a deep and superficial burn. She was unconscious. It is clear from Exhibit 49 that Medical Officer Dr. Deshpande made remark as “patient not fit for dying declaration. She is disoriented – sd/Dr. Deshpande 25-11-2007. 2.00 p.m.” 6. Learned counsel for the respondents/accused has submitted that there is no evidence to show that deceased was physically and mentally fit. Her statement was recorded by Shri Rajgadkar, Naib Tahsildar and PSI Rathod. Deshpande made remark as “patient not fit for dying declaration. She is disoriented – sd/Dr. Deshpande 25-11-2007. 2.00 p.m.” 6. Learned counsel for the respondents/accused has submitted that there is no evidence to show that deceased was physically and mentally fit. Her statement was recorded by Shri Rajgadkar, Naib Tahsildar and PSI Rathod. Learned trial Court rightly recorded its findings that written dying declarations and oral dying declarations are doubtful and acquitted both the accused. There is no merit in the appeal and, hence, liable to be dismissed. 7. P.W. 1 Vanmala Meshram (mother of deceased) has stated about the ill-treatment etc. She has stated that on the day of incident, she had come to Yavatmal. She was informed by the son of her sister that Manisha was admitted in the hospital due to burning, therefore, she along with wife of her brother and son of her sister went to Government Hospital, Yavatmal. She saw Manisha. She was in a condition to speak. She asked her what happened. She told her that both the accused burnt her due to previous quarrel. She further told her that both the accused tied her hands, poured kerosene and burnt her. 8. P.W. 2 Namdeo Meshram (father of deceased) has stated in his evidence that he came to know that Manisha was admitted in the hospital, therefore, he went to Government Hospital. Manisha told him that dispute took place in between her and accused on the count of gram. She further told that accused no. 2 caught hold her hands and accused no. 1 set her on fire by pouring kerosene. 9. P.W. 3 Vithoba has stated that he went to the Government Hospital. He asked her how she burnt. She told that accused burnt her. Thereafter she died. 10. P.W. 4 Bhimdas has stated in his evidence that on 25-11-2007 at about 9.00 p.m., he went to the hospital. Police asked Manisha as to how the incident took place. Then she told that quarrel took place between her and accused. She went in her room. Thereafter both accused entered in the room. Accused no. 2 caught hold her hands and accused no. 1 poured kerosene on her and set her on fire. 11. Material omissions and contradictions are brought on record in the cross-examination of P.W. 1, P.W. 2, P.W. 3 and P.W. 4. She went in her room. Thereafter both accused entered in the room. Accused no. 2 caught hold her hands and accused no. 1 poured kerosene on her and set her on fire. 11. Material omissions and contradictions are brought on record in the cross-examination of P.W. 1, P.W. 2, P.W. 3 and P.W. 4. P.W. 1 has stated in her evidence that Manisha told her that accused no. 2 caught hold her hands and accused no. 1 set her on fire. Manisha told that both accused tied her hands, poured kerosene and burnt her. This is a material omission brought on record in her cross-examination. There is also contradiction in respect of well treatment given by the accused persons to deceased for about one year after marriage. 12. P.W. 2 Namdeo has stated in his evidence that Manisha told him that accused no. 2 caught hold her hands and accused no. 1 set her on fire by pouring kerosene. Material omission is brought on record in his cross-examination. He has stated in his cross-examination as under : “I had stated before police that my daughter told me that dispute took place in between her and accused on the count of gram. I cannot assign any reason as to why the above facts are missing in my statement. I did not tell before police that, accd no. 2 caught hold the hands of Manisha or accd no.1 set her on fire by pouring kerosene, or Manisha told us at the time of Diwali that both the accused are subjecting her to cruelty.” 13. P.W. 3 has stated in his evidence that both accused were ill-treating Manisha saying that she was from financially poor family and her husband was not doing any work. This is a material omission brought on record in his cross-examination. 14. P.W. 4 stated in his evidence that on 25-11-2007, he went to the hospital. Police enquired from Manisha in his presence. She disclosed that accused quarreled with her, poured kerosene and set her on fire. If it was so, then police could have recorded statement of deceased on 25-11-2007 itself but Exhibit 51, statement of deceased was recorded on 26-11-2007. Moreover, this witness has denied portion marked 'A' of his statement. He has stated in portion marked 'A', Exhibit 27 that “on 26-11-2007, he was at Yavatmal. If it was so, then police could have recorded statement of deceased on 25-11-2007 itself but Exhibit 51, statement of deceased was recorded on 26-11-2007. Moreover, this witness has denied portion marked 'A' of his statement. He has stated in portion marked 'A', Exhibit 27 that “on 26-11-2007, he was at Yavatmal. He came to know that daughter of Namdeo Meshram, namely, Manisha was burnt on 25-11-2007 and she was admitted in the hospital. Therefore, he went to Government Hospital. He saw Manisha. She was completely burn. Her relatives were present near her.” This contradiction is duly proved by the Investigating Officer. This witness has denied about his relation with P.W. 1 and P.W. 2. But PSI Rathod has stated in his evidence that P.W. 4 Bhimdas is relative of P.W. 1 and P.W. 2. 15. Looking to the material omissions and contradictions duly proved by the Investigating Officer, evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 4 are not reliable. Moreover, it is clear from Exhibit 49 that deceased was not in a position to speak anything. Deceased was admitted on 25-11-2007 in the hospital at about 11.45. She had sustained 99% burn injuries. As per the postmortem report (admitted by defence), it is clear that deceased died due to 99% burn injuries. On 25-11-2007 at about 2.00 p.m., request was made to the Medical Officer to issue fitness certificate for recording dying declaration. On Exhibit 49, Medical Officer Dr. Deshpande given his endorsement stating that patient not fit for dying declaration, patient is disoriented. 16. Endorsement on Exhibit 49 by Dr. Deshpande clearly shows that deceased was not in a position to talk. Therefore, evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 4 that Manisha told them that both accused burnt her is not reliable. 17. P.W. 5 Medical Officer Dr. Bhuyar has stated in his evidence that Executive Magistrate Shri Rajgadkar came to the hospital for recording dying declaration on 26-11-2007. He requested him to issue certificate about the fitness of Manisha for dying declaration. Accordingly, he examined the patient and asked her certain questions. He found her fit to give statement and made such endorsement vide Exhibit 32. Thereafter Shri Rajgadkar recorded statement of Manisha in his presence. He has identified dying declaration recorded by Naib Tahsildar vide Exhibit 33. He requested him to issue certificate about the fitness of Manisha for dying declaration. Accordingly, he examined the patient and asked her certain questions. He found her fit to give statement and made such endorsement vide Exhibit 32. Thereafter Shri Rajgadkar recorded statement of Manisha in his presence. He has identified dying declaration recorded by Naib Tahsildar vide Exhibit 33. Thereafter this witness again issued certificate, Exhibit 34 that patient was fully conscious while recording the statement. 18. Naib Tahsildar Shri Rajgadkar could not be examined because he was dead. Therefore, prosecution has proved Exhibit 33 (dying declaration) by the evidence of P.W. 5 Dr. Bhuyar. In the cross-examination, Dr. Bhuyar has admitted as under : “Whenever I used to examine the patient, then I used to make endorsement that I examined him and found fit to give statement. There is no endorsement such as I examined the patient and found that she is fit to give statement in Exh. 32 or 34. It is not true to say that I did not examine the patient or I did not attend her or therefore there is no such endorsement. Only after examination, it is to be certified that the patient is fit to give statement. There is no mention in exhs. 32 or 34 that the said patient was mentally or physically fit to give the statement.” 19. Evidence of Medical Officer, P.W. 5 shows that his evidence creates doubt about the fitness of deceased at the time of recording dying declaration. It appears that he has casually given certificate, Exhibit 32 and Exhibit 34. 20. There is no dispute that deceased had sustained 99% burns. There is no dispute about the death of deceased. Postmortem report, Exhibit 42 admitted by accused. As per column no. 17 of postmortem report, deceased had sustained 94% burns. Those burns were superficial to deep burns. Looking to the condition of patient, it appears that she was not conscious after her admission in the hospital. This fact is clear from the endorsement of Medical Officer Dr. Deshpande on Exhibit 49. 21. Now, it is well settled law that conviction can be awarded only on the basis of dying declaration. If it is doubtful, then corroboration is necessary. In the present case, oral dying declaration stated by P.W. 1, P.W. 2, P.W. 3 and P.W. 4 are doubtful. Deshpande on Exhibit 49. 21. Now, it is well settled law that conviction can be awarded only on the basis of dying declaration. If it is doubtful, then corroboration is necessary. In the present case, oral dying declaration stated by P.W. 1, P.W. 2, P.W. 3 and P.W. 4 are doubtful. Written dying declaration, Exhibit 33 is also doubtful in view of the admission of Medical Officer Dr. Bhuyar. Exhibt 51, statement (dying declaration) was recorded by P.W. 6. He has specifically stated in his cross-examination that relatives were present when he has recorded the statement of deceased on 26-11-2007. This itself shows that possibility cannot be ruled out about the information of contents of Exhibit 51 were given by the nearest relatives of deceased. Condition of deceased was serious. She was having 99% burns. As per the certificate of Dr. Deshpande on Exhibit 49, she was not in a position to give statement. P.W. 6 PSI Rathod not obtained any certificate of any of the Medical Officer before recording dying declaration, Exhibit 51. Therefore, Exhibit 51 is also not reliable. 22. Oral dying declarations stated by P.W. 1, P.W. 2, P.W. 3 and P.W. 4 and written dying declaration, Exhibt Nos. 33 and 51 create doubt about the incident. Material omissions and contradictions are brought on record in the evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 4. Those are duly proved by P.W. 6. Admission of P.W. 5 Dr. Bhuyar in the cross-examination shows that he has casually given certificate, Exhibit 32 and Exhibit 34 on dying declaration, Exhibit 33, therefore, it creates doubt about mental fitness of deceased at the time of recording dying declaration, Exhibit 33. P.W. 6 PSI Rathod not obtained any certificate from the Doctor. As per admissions, relatives were present at the time of recording statement. All this evidence create doubt about the statement made by deceased saying that accused persons caught hold her, poured kerosene and set her on fire. Learned trial Court rightly appreciated all the evidence. There is no infirmity or illegality in the impugned judgment, hence, we are not inclined to allow the appeal and proceed to pass the following order. ORDER (i) The appeal is dismissed. (ii) R & P be sent back to the trial Court.