Baburao S/O Gangaram Nimkar (In ... vs The State Of Maharashtra Through ...
2005 Latest Caselaw 202 Bom

JUDGMENT

P.B. Gaikwad, J.

1. Accused Baburao Nimkar being dissatisfied with the order of conviction and sentence passed by the Additional Sessions Judge, Bhandara in Sessions Case No. 139 of 1998 dated 6.1.2001 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and directing him to suffer imprisonment for life and to pay a fine of Rs. 500/- in default R.I. for six months filed present appeal.

2. The facts, in brief, leading to the present appeal are as follows :-

The appellant along with his wife Kalabai and two children namely Jitendra and Mahendra reside in Gautamnagar locality at Tumsar, District Bhandara. In the said house, the Nimkar family resides in three parts. In one part PW 8 Fulchand elder brother of the appellant resides along with his family, in middle portion the present appellant along with his family used to reside while in another part younger brother of the present appellant used to reside. The part of the house is in possession of the present appellant consists of Kitchen room, bed-room and varanda. The door faces towards the south. Marriage of deceased Kalabai was performed with appellant about 18 years' back and the appellant having two sons namely Jitendra, aged about 15 years and Mahendra, aged about 10 years.

The alleged incident took place on 24.10.1998 at about 4.00 p.m. deceased Kalabai was at her house while the present appellant came to the house at about noon time. He was working at the relevant time as meson. Since 2-3 days' prior to the alleged incident, there was quarrel between deceased and the present appellant on account of payment of some electricity bill and on the day of incident when he returned to the house at noon time, it is alleged that there was quarrel between the appellant and deceased Kalabai on account of payment of electricity bill. The accused at that time took a pot of tin containing kerosene and thrown on the person of Kalabai and thereafter set her on fire and due to which she sustained burn injuries. She made hue and cry for the help. PW 8 Fulchand Gangaram Nimkar the brother of the present appellant was at the relevant time in another part of the said house immediately came there. Mahendra the younger son of the appellant also came there. Some other neighbours including Antaram, Yashoda, Ashok Rokde also came there and tried to extinguish the flames. Jitendra the elder son of the present appellant immediately came there, who called auto-rickshaw and took Kalabai in the Government hospital at Tumsar. Dr. Ramteke (PW12) who was on duty at the relevant time immediately gave information as regards burn injuries sustained by Kalabai to the Police Station, Tumsar. A letter was sent along with PW 1 Hansraj, which is proved at Ex.20. Kalabai was thereafter referred to the Civil Hospital, Bhandara for further treatment. When Kalabai was in the hospital for treatment, she disclosed about the incident and cause of injury to mother Sarswatibai and son Jitendra (PW 3). She accordingly disclosed that the accused poured kerosene on her person and set her on fire. PW 8 Fulchand the brother of the accused immediately made a report to the police station in respect of the said incident and on the basis of said report Crime No. 230/98 was registered against the present appellant for the offence punishable under Section 307 of the Indian Penal Code. A requisition letter was given for recording a dying declaration and the dying declaration of Kalabai was accordingly recorded by PW 14 Deonath Meshrain, which is proved at Ex. 47. Kalabai while she was under treatment at Bhandara succumbed to the bum injuries and Section 302 of the Indian Penal Code was accordingly added. PW 13 Ashok Sonwane after completing the investigation submitted charge-sheet against the accused for the offence punishable under Section 302 of the Indian Penal Code. As the offence under Section 302 of the Indian Penal Code being exclusively triable by the Court of Sessions, the case was accordingly committed to the Court of Sessions at Bhandara. The same was made over to the Additional Sessions Judge, Bhandara who accordingly framed charge against the accused as per Ex.7 on 20.11.1999 for the offence punishable Section 302 of the Indian Penal Code, which was read over and explained to the accused, however, he pleaded not guilty to the charge and claimed to be tried. His defence is of total denial.

3. The prosecution, to connect the accused with the above said Crime, examined near about 16 witnesses. PW 1 is Hansraj Parasram (sic)pate, a Ward Boy attached to the Government Hospital, Tumsar, who had been to the Police Station, along with a letter given by the Doctor informing about the burn injuries sustained by Kalabai on 24.10.1998, which is proved at Ex.20. Evidence of this witness is at Ex. 19. PW 2 is Sarswatibai Rajaramji Bhajipale, the mother of the deceased Kalabai. Her evidence is at Ex.21. She visited the hospital where Kalabai was admitted due to burn injuries to her and Kalabai accordingly disclosed that the present appellant poured kerosene on her person on fire. PW 3 is Jitendra Baburao Nimkar son of the appellant who took Kalabai to the hospital in auto-rickshaw after she sustained burn injuries and before whom there is a oral dying declaration about the cause of burn injuries. Evidence of this witness is at Ex. 22. PW 4 is one Antaram Vithoba; PW. 5 is Yashoda Antaram Thakre; and PW 7 is Ashok Kisanji Rokde and all these witnesses are neighbours residing by the side of the house of present appellant and on the day of incident they tried to extinguish the fire, however, these three witnesses turned hostile. PW 6 is panch witness on the spot panchanama, attachment of clothes from the place of incident and the arrest panchanama. Evidence of this witness is at Ex.26. Panchanama as regards the seizure of certain articles and arrest panchanama and the attachment of clothes on the person of the accused at Ex.27, 28 and 29 are accordingly got proved. PW 8 Fulchand is the brother of present appellant who made a report to the Police Station, Tumsar and on the basis of it Crime was registered, however, this witness is turned hostile. PW 9 Dr. Milind Deshkar is the Medical Officer attached to the General Hospital, Bhandara who gave intimation to the police station about the death of Kalabai when she was taking treatment in the hospital on 29.10.1998. The said intimation is at Ex. 34. Evidence of this witness is at Ex.33. PW 10 Vimal Ramchandra Desai police Constable, a formal witness who deputed for carrying papers of accidental death No. 0/98 to police station, Tumsar and she accordingly took papers to Police Station, Tumsar. Evidence of this witness is at Ex.35. PW 11 is Kachru Nathuji Lunde, ASI attached to police station Tumsar and on 24.10.1998 he made a request to the Doctor to examine Kalabai. Doctor accordingly examined and given certificate about burn injuries sustained by Kalabai to the extent of 70%. Letter given by this witness is at Ex. 37 while the certificate given by the Doctor is at Ex.39. PW 12 is Dr. Padmakar Sukhram Ramteke, who was on duty at the Government Hospital, Tumsar. On 24.10.1998 when Kalabai was admitted in the hospital at about 4.15 p.m. he noticed near about 70% burn injuries over neck, upper limb thorax and abdominal wail up to public symphysis and other pans of the body. PW 13 is Ashok Sonwane PSI attached to Police Station, Tumsar, who investigated the above said crime referred the attached property from Crime to C.A. along with requisition letter (Ex. 41).C.A. report is at (Ex.42). PW 14 is Deonath Marisaram Meshram, Naib Tahsildar attached to Tahsil office, Tumsar, who was on duty on 24.10.98 and recorded dying declaration of Kalabai. The evidence of this witness is at Ex. 43. The requisition letter received to this witness is proved at Ex. 45. He thereafter ascertained the condition of Kalabai and thereafter recorded dying declaration, which is proved at Ex. 46. PW 15 is PSI Mohd. Iqbal Mohd. Hussain who initially investigated the above crime and recorded the statement of PW 8 Fulchand Nimkar and accordingly registered the crime, which is at Ex. 51. The printed FIR. is at Ex.52. He then visited the place of incident and prepared spot panchanarna, attached certain articles, arrested the accused and the clothes which were on die person of the accused were also attached. This witness also recorded the statement of Kalabai when she was admitted in the hospital and the said statement is proved at Ex. 54. PW 16 is Banwarilal Netlal Lilhare a police constable with whom the attached property of Crime No. 230/98 is referred to C.A. that is with the requisition letter (Ex. 41). Evidence of this witness is at Ex. 62.

4. Along with above oral evidence, the prosecution has also relied upon certain other documents, which is not disputed by the defence i.e. Ex. 11 requisition letter issued by PSI to the Medical Officer for performing post mortem. P.M. report is at Ex.15.

5. The Additional Sessions Judge after considering the above oral as well as documentary evidence on record, concluded that deceased Kalabai met homicidal death and the present appellant being the author of bum injuries sustained by Kalabai and accordingly, convicted the accused-appellant for the offence punishable under Section 302 of the Indian Penal Code. The said order of conviction and sentence in Sessions Trial No. 139/98 dated 6.1.2001 is challenged by filing the present appeal.

6. In appeal, we heard Mr. Daga, the learned Advocate for the appellant-accused and Mr. Jichkar, the learned Additional Public Prosecutor for the State at length. It is submitted by Mr. Daga, Advocate for the appellant that the order of conviction and sentence passed by the Additional Sessions Judge, Bhandara dated 6.1.2001 in Sessions Case No. 139/98 for the offence punishable under Section 302 of the Indian Penal Code is not proper and justified. Firstly, according to him, the material witnesses examined by the witnesses i.e. PW3 Jitendra, PW 4 Antaram, PW 5 Yashoda, PW 7 Ashok and PW8 Fulchand turned hostile and have not supported the prosecution case. Inspite of this, the Court below wrongly convicted the appellant. He further submits that PW 8 Fulchand brother of the complainant who made a report and on the basis of which crime was registered turned hostile and, therefore, FIR remained to be proved. Inspite of this, the Court has wrongly relied upon the dying declarations made by deceased Kalabai. Thirdly, according to him, the evidence of PW 2 Sarswatibai and PW 3 Jitendra about oral dying declarations and evidence of PW 14 Deonath Meshram and PW 15 Mohd Iqbai about the dying declarations (Ex. 46) and (Ex.54) being inconsistent on material particulars about the mental condition of the deceased, about the cause of burn injuries as disclosed by Kalabai to them and even though the Court below has wrongly relied upon that the said dying declarations which suffer from basic infirmities. According to him, the Court below has not properly scanned the evidence on record and misdirected himself in concluding that the said dying declarations being truthful and acceptable. He, therefore, submits to set aside the order of conviction and sentence. Lastly, in the alternative he prays that in case if this Court comes to the conclusion that the dying declarations on record are truthful and acceptable, according to him the alleged incident took place at the spur of moment without meditation and that too after 18 years' of the marriage of deceased with the appellant. The requisite intention to spell out the offence under Section 302 of the Indian Penal Code cannot be gathered safely, as according to him, the alleged incident took place on 24.10.1998; the injured Kalabai died on 29.10.1998; the Medical Officer who performed post-mortem has not been examined, however, the cause of death is given by the Medical Officer has not been disputed by the defence and the cause of death is Septicemia and, therefore, according to him the offence at the most will be under Section 304 part 11 of the Indian Penal Code as the Doctor has not given any opinion as regards the cause of both burn injuries but the case of death is Septicemia. He, therefore, submits that the appeal needs to be allowed and in case if the evidence adduced by the prosecution is relied upon at least the order of conviction needs to be modified as the appellant having two sons i.e. Jitendra and Mahendra hardly aged about 15 years and 10 years respectively and there is nobody to look after to them. In support of his contention, Shri Daga learned counsel for the appellant has placed reliance upon the Authority repotted in 2001 ALL MR (Cri) 69 Sadashiv Dhondiram Pandit v. The State of Maharashtra.

7. Considering the submissions made on behalf of the parties to the appeal, it is now necessary to scan the evidence on record so as to consider whether the conclusion arrived at by the Court below is in conformity with the evidence on record; whether the dying declaration of Kalabai being truthful version and whether the Court below has rightly relied the same. Firstly, it is necessary to see whether Kalabai met homicidal death and for which a reference to Ex. 49 i.e. inquest (Ex.15) post mortem report. Evidence of PW 12 Dr. Padmakar Ramteke and Ex. 20 and 39 is necessary.

8. On the other hand, it is submitted by Mr. Jichkar, the learned Additional Public Prosecutor for the State that the order of conviction and sentence is proper and justified. The Court below has properly scanned the evidence on record. The dying declarations are truthful further and the Court below has rightly relied upon the same as there is no possibility of tutoring and prompting, it is thus submitted that the order of conviction and sentence is proper and justified. He, therefore, requests to dismiss the appeal, as the same being without merit.

9. On perusal of evidence of PW 3 Jitendra son of the present appellant. According to him, his younger brother Mahendra had been to him informing about the burn injuries sustained by his mother. He therefore, returned to the house. He thereafter brought one auto-rickshaw and took his mother to the hospital on 24.10.1998 at about 4-15 p.m. Evidence of PW 1 Hansraj further makes it clear that on 24.10.1998 he was attached to the Civil Hospital, Tumsar as a Ward boy. Dr. Ramteke was on duty. The injured was admitted in the hospital. Dr. Ramteke gave information accordingly in that respect to the Police and the letter was written, which is at Ex. 20 and this witness has handed over the said letter to PSO, Tumsar. Evidence of PW 12 Dr. Ramteke further makes it clear that he was on duty as Medical Officer at Tumsar and at about 4-15 p.m. on 24.10.1998 Kalabai was brought to the hospital for treatment on account of burn injuries sustained by her. He informed to the police to that effect gave treatment to Kalabai. On examination Kalabai, he noticed 70% burn injuries arid smelling kerosene. He further makes it clear that the requisition letter (Ex. 37) received by him from the Police Station, Tumsar to examine Kalabai and on her examination, he noticed the following injuries: -

1. Burn over neck and face including bom ears.

2. Burn over both upper limb thorax and abdominal wall upto public symphysis.

3. Complete back up to upper glueal area.

4. Both thighs anterior or posterior.

10. He also gave opinion that the bum injuries were fresh within three hours prior to his examination and also caused due to direct flame burns. He accordingly issued certificate (.Ex. 39). Evidence of this witness further makes it clear that Kalabai was thereafter referred to the Civil Hospital, Bhandara for further treatment on 27.10.1998 and till 29.10.1998 she was an indoor patient, and she succumbed to bum injuries. The cause of death given by Medical Officer in the post mortem at Ex. 15 is Septicemia. If the above evidence on record if read together with the evidence Ex. 15, Ex. 39 and Ex. 49, we find that the finding given by the Court below that Kalabai the wife of the present appellant met homicidal death on 29.10.1998 is proper and justified.

11. The another aspect is prosecution case solely rests on dying declarations and therefore, it is necessary to see whether the reliance placed by the Court below on the said dying declarations is proper and justified. Before scanning the evidence on record and reasonings given by the Court for accepting the dying declarations of Kalabai, it is necessary to give a reference to one Authority i.e. Khushal Rao v. State of Bombay. It is observed in the said Authority to the following effect :-

"In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration, as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities."

12. It is further observed in the said Authority to the following effect :-

"It cannot be laid down as absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other kind of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

13. A reference is also necessary to one another Authority Koli Chunilal Savji and Anr. v. State of Gujarat wherein it is observed to the following effect: -

"It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. But in the absence of doctor while recording the dying declaration, the said declaration does not lose its value and can be accepted, with regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness."

14. A reference is also necessary to one another Authority i.e. Ravi Chander and Ors. v. State of Punjab wherein it is observed to the following effect:-

"for non-examination of Doctor dying declaration recorded by the Executive Magistrate need not be doubted. The Executive Magistrate is a disinterested witness and is a responsible officer. There is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or was any way interested in fabricating the dying declaration and, therefore, the question of genuineness of dying declaration recorded by the Executive Magistrate to be doubted does not arise."

15. A reference is also necessary to one Authority Laxman v. State of Maharashtra wherein it is observed to the following effect :-

"Normally, me Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it-is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

16. It is further observed in the said Authority to the following effect :-

"It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration."

17. A reference is also necessary to another Authority reported in 2003 CRI.L.J. 1469 Sohan Lal alias Sohan Singh and Ors. v. State of Punjab. It is observed to the following effect :-

"Dying declaration found otherwise reliable - cannot be rejected - once ... dying declaration is creditworthy, the Courts below were justified in relying upon and convicting the accused"

18. A reference is also necessary to one another Authority 2003 (3) Crimes 180 (SC) P.V. Radhakrishna v. State of Karnataka Wherein it is observed to the following effect :-

"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The principles governing dying declaration, which could be summed up:-

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration;

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration;

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration;

(iv)Where dying declaration is suspicious, it should not be acted upon without corroborative evidence;

(v)Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected;

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction;

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected;

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth;

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot be prevailed;

(x)Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon; and

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of Course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted."

19. Lastly, a reference is also necessary to one another Authority reported in 2004 (1) Crimes 356 (SC) B. Shashikala v. State of Andhra Praesh wherein it is observed to the following effect :-

"The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction even if there is no corroboration."

20. Considering the above guidelines on record, it is now necessary to scan the evidence on record adduced by the prosecution so as to find out whether the dying declaration of Kalabai is trustworthy and acceptable. The first dying declaration is at Ex. 54 i.e. on 24.10.1998 when Kalabai was admitted in the Civil Hospital at Tumsar for treatment on account of burn injuries sustained by her. The said dying declaration is recorded by PW 15 Mohd. Iqbal Mohd. Hussain PSI attached to Police Station, Tumsar. On perusal of evidence of PW 15 on 24.10.1998 at about 4.15 p.m. he was in the police station. Fulchand PW 8 the brother of the present appellant had been to the police station and lodged report. PW 15 accordingly reduced the report in writing, which is at Ex. 51 and on the basis of said report, he registered crime No. 230/98 for the offence under Section 307 of the Indian Penal Code. He immediately then visited to the spot and thereafter prepared spot panchanama and some articles were seized. Thereafter he proceeded to the Government Hospital at Tumsar and recorded the statement of Kalabai. In his statement he has stated that Kalabai was in a position to give statement. He further made clear that the contents of the statement of Kalabai being true and correct. Kalabai has also put her thumb mark on the said statement which is at Ex. 54. On perusal of said statement, it is further seen so far as regards the cause of burn injuries and she disclosed in the said statement that the accused who is her husband poured kerosene on her person set her on fire; she then raised shouts; Fulchand PW 8 came there; Fulchand along with some neighbours then tried to extinguish the flames and thereafter she was taken to the hospital.

21. Evidence of PW 14 Deonath Meshram, Naib Tahsildar attached to Turnsar sufficiently makes it clear that on 24.10.1998 he received a letter from PSI Tumsar about recording dying declaration of Kalabai Baburao Nimkar. The requisition letter is at Ex. 45. His evidence further makes it clear that he accordingly proceeded to the hospital at about 8.25 p.m. The Doctor who was on duty examined Kalabai and the Doctor accordingly informed that she is in fit condition to give statement and even the Doctor has put the endorsement to that effect on the said dying declaration. He then recorded the statement of Kalabai in questions and answer forms which is proved at Ex. 46. In the said statement, she made clear that her husband poured kerosene on her person and set her on fire on 24.10.1998 at about 4.30 p.m. approximately. The said statement (Ex.46) also bears endorsement at the top before recording the statement about her condition at about 8.30 p.m. being satisfactory and she being fit to give statement and also bears endorsement of the Doctor at the end of the said statement at about 9.00 p.m. that she was in fit condition. Evidence of PW 12 Dr. Ramteke sufficiently makes it clear that Naib Tahsildar, who had been to the hospital for recording dying declaration asked him the condition of the patient. He accordingly examined Kalabai and found that she was in fit condition to give statement and accordingly he made endorsement on the statement on the top and after recording at the end of the said statement. Evidence of these witnesses PW12 Dr. Padmakar and PW 14 Deonath if read together with dying declaration (Ex. 46) we find that the said dying declaration is truthful version. Even evidence of these two witnesses do not suffer from any infirmity and the said dying declaration cannot be said to be out-come of tutoring, prompting or product of imagination. On the other hand the said statement being trustworthy, as regards the cause of burn injuries sustained by her on 24.10.1998.

22. The above two dying declarations Ex. 54 and Ex.46 and evidence of PW 14 Deonath Meshram is again sufficiently corroborated by the evidence of PW 2 Sarswatibai and PW 3 Jitendra. PW 2 Sarswatibai is the mother of deceased Kalabai. She also resides at Tumsar at a distance of some half kilometre from the house of the present appellant and after knowing that Kalabai sustained burn injuries; and taken to hospital she accordingly visited the hospital. It is further from her evidence that she made inquires with Kalabai about the cause of burn injuries and as to how she sustained burn injuries and in reply Kalabai discloses that her husband poured kerosene on her person and set her on fire. Even she discloses about the cause of said incident as quarrel on account of payment of electricity bill. Evidence of PW 3 Jitendra, who is equally related to the present appellant and deceased as he being the son of appellant and deceased. Though this witness has not supported to the prosecution, however, his evidence cannot be discarded as a whole. As from his , evidence which is consistent with the prosecution case can safely be relied and in that respect from the evidence of this witness according to him, Mahendra had been to him informing that his mother sustained burn injuries, he returned to the home; took the mother in auto-rickshaw and in his evidence he has also made clear that since 2-3 days' prior to the incident quarrel used to take place between his father and mother and the same is on account of electricity bill. Even the deceased disclosed to this witness about the cause of burn injuries sustained by her on his inquiry and in cross-examination on behalf of the State he specifically admitted to the following effect :-

"It is true that my brother told me that Dada set mother on fire. 1 used to call my father as ' Dada'. When I came to house at that time my father was holding Temba in his hand and it was not burning. It is true that my mother told me that father set her on fire."

23. Thus, the above two dying declarations Ex. 54 and Ex.46, one recorded by PSI and another recorded by 'Naib Tahsildar are consistent with the oral dying declarations made by the deceased before PW 2 Sarswatibai and PW 3 Jitendra. So far as regards the condition of Kalabai at the time of recording of dying declaration,, it is clear from the evidence of Naib Tahsildar, Dr. Raniteke and PSI that she was in fit condition to give statement. Even this aspect also can be sufficiently accepted as deceased died on 29.10.1993 while the above statement being recorded on 24.10.1998. Even the cause of death is septicemia as clear from the post-mortem report (Ex.15) and thus on close scrutiny of the evidence on record referred above, we find that the Court below is justified in relying the dying declaration.

24. There are some other circumstances on record in respect of which a reference is necessary. PW 6 Bhaurao Bawane in this respect is material. He is panch witness on the spot panchanama (Ex. 26). As referred above in detailed about the place of incident which consists of one part of the house including kitchen one room and varanda. From the place of incident certain articles were attached that is one plastic can containing kerosene, one kerosene lamp, one stick wrapped with clothes which is being used to set on fire Kalabai, a match-box, burn pieces of gunny bags. The present appellant was arrested on 24.10.1998 and the arrest panchanama was prepared (Ex. 28) and one full-pant, one shirt which was on the person of the accused was accordingly attached. The burn pieces of clothes which were on the person of the deceased were also attached under panchanama (Ex.29). Those articles were sent to the C.A. along with requisition letter (Ex.41) and the C.A. report is on record (Ex.42) and on perusal of the said report Articles 7 and 8 i.e. full-pant and shirt which were on the person of the accused found kerosene residues. This aspect is again give additional link to connect the accused with the said crime. Thus, we find that the Court below has rightly relied upon the dying declaration as the same inspires confidence as it being truthful and correct version about the cause of burn injuries sustained by Kalabai and it is not outcome of tutoring or prompting or product of imagination. Even we also find that there is satisfactory evidence that the deceased was in a fit state of mind when her statement was recorded physically and mentally and all those four dying declarations; one recorded by PW 15 Mohd. Iqbal Mohd. Hussain and another recorded by PW14 Deonath Meshram and two oral dying declarations before PW 2 Sarswatibai and PW 3 Jitendra being consistent with the material particulars, the Court below is definitely justified in convicting the accused relying upon the said dying declarations.

25. The last aspect will be about the offence. As it is submitted by Mr. Daga, learned counsel for the appellant that no requisite intention can be safely gathered on the part of the accused does not fall under clause "Thirdly" of Section 300 of the Indian Penal Code. After considering the evidence on record, we find that submissions made by Mr. Daga in that respect in this particular case seems to be justified. Firstly, for the reason that the prosecution has not examined the Medical Officer, who performed post-mortem on the ground that correctness of post-mortem is not disputed. On perusal of post-mortem report (Ex.15), it is seen that the Medical Officer attached to General Hospital, Bhandara has performed post mortem. The Doctor while performing the post mortem has not referred the percentage of burn injuries and in a casual manner only shown diagram about burn injuries without referring details. Even column No. 18 is also kept blank and the Doctor does not feel it necessary whether those injuries are ante-mortem and post-mortem. As in fact in the present case, the evidence to that effect is clear as the burn injuries sustained by Kalabai on 24.10.1998. Even the Doctor has also not given other particulars nor referred the cause of death in proper manner and only referred as cause of death as "septicemia". The second aspect as it will be seen that the burn injuries sustained on 24.10.1998 while the death is on 29.10.1993 and that of "septicemia". The third aspect as it will be seen from the evidence on record that the act on the part of the accused cannot said to be calculated, predetermined and the alleged incident being at a spur of moment on account of electricity bill and, therefore, analyzing the evidence on record, the conduct of the accused, manner in which the incident took place, reason behind the said incident, we find that the intention on the part of the accused that those burn injuries likely to case death of deceased can sufficiently be gathered and, therefore, the act on the part of the accused is fall under clause (B) of Section 299 of the Indian Penal Code. We thus find that the order of conviction and sentence needs to be modified and the appellant-accused is convicted for the offence punishable under Section 304 Part 1 instead of 302 of the Indian Penal Code. In the result, the appeal is partly allowed. The order of conviction and sentence for the offence punishable under Section 302 of the Indian Penal Code is set aside. The appellant is convicted for the offence punishable under Section 304 Part 1 of the Indian Penal Code, and he is directed to suffer R.I. for seven years and to pay a fine of Rs. 5000/- in default R.I. for six months. The accused is entitled to set off under Section 428 of Code of Criminal Procedure, The order as regards the disposal of the property passed by the Additional Sessions Judge, Bhandara, is maintained.

With the above modification in the order of conviction and sentence, the appeal is accordingly disposed of.