Though said Bapurao used to demand partition of the residential house, yet appellant No. 2 - Laxman was not effecting the same.There used to be frequent quarrels between the two families on account of such demand for partition.The prosecution case is that in the relevantevening, said Bapurao had gone to attend recitation of a religious book (Pothi) at Maroti temple whereas, his two sons had gone to a nearby house of one Ashroba.The deceased was, therefore, alone in the house at about 7.30 p.m. The appellant No. 2 - Laxman then came in front of house of the deceased.He was in drunken condition.He addressed obscenities to her, saying that she had kept illicit relations with all the inhabitants of village Hatkarwadi.She was engulfed by flames of fire and started shouting.The appellants fled away from the house when she started shouting.Her son - Namdeo rushed there on hearing the shouts.He extinguished the fire.Lateron her husband and the son took her to Civil Hospital at Parbhani.In the same night, her dying declarations and Police statement were recorded at the hospital.She narrated to her son as to how she was set ablaze by the appellants.The Police carried out certain investigation into the crime registered on basis of dying declaration given by Muktabai.The dead body was subjected to post mortem examination.The topographical account of the house in question can be gathered from recitals of the spot panchnama (Exh. 29).The residential house is of six feet height.There were eight corrugated zinc sheets on the roof.The spot panchnama (Exh.29) reveals that two corrugated zinc sheets of front side and two of rear side were pushed aside.The surface of the zinc sheets was blackened.A plastic canister containing small quantity of kerosene and a match stick were found in the house.His version reveals that he obtained medical opinion to the effect that Sou.Muktabai was fit to give her statement.He further noticed that she had suffered 86% burn injuries and was unable to sign the statement.He claims that her statement was reduced into writing as per her narration.Muktabai, it may be mentioned that it was recorded by PW7-P.S.I. Babu Pitale.His version reveals that he was attached to Police outpost at Civil Hospital, Parbhani, in the relevant night.He received information at about 23.50 Hrs on 19.2.2004 to the effect that Sou.Muktabai had received 83% burn injuries.He states that he obtained medical opinion regarding physical and mental condition of injured Sou.Muktabai after visiting the Burns Ward.The first dying declaration (Exh. 45) reveals that deceased Muktabai narrated as to how appellant No. 2 -Laxman used to trouble her family members.Her narration shows that appellant No. 2 - Laxman used to regularly trouble herself and used to beat her sons under inebriated condition.His version reveals that in the relevant evening, he and his brother had gone to a neighbouring house whereas, his father had gone to attend recitation of a book (Pothi).His version reveals that he heard voice of his mother and went to the house.Moreover, she immediately gave oral information to him implicating the appellants as authors of the crime.The testimony of PW-4 Munjaji reveals that spot panchnama (Exh. 29) was drawn by the Police at house of the deceased.According to PW-8 Madhav, Muktabai gave oral dying declaration to him when he met her at the Civil Hospital.He is brother of deceased Muktabai.JUDGMENT V.R. Kingaonkar, J.By the impugned Judgment, appellants are convicted for offences punishable under Section 304II read with 34 of the I.P.C. and under Section 457 read with 34 of the I.P.C. They have been sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 2,000/ (Rs. Two thousand) each in default, to suffer rigorous imprisonment for 6 (six) months and to suffer rigorous imprisonment for 3 (three) years and to pay fine of Rs. 1,000/- (Rs. One thousand) each in default, to suffer rigorous imprisonment for 3 (three) months, respectively, for the above offences.Both the substantive sentences have been directed to run concurrently.The incident giving rise to the prosecution occurred in the evening of 19th February 2004 at residential house of deceased Muktabai.Her husband -Bapurao and appellant No. 2 - Laxman are brothers inter se.Appellant No. 1 is the wife of appellant No. 2 and appellant No. 3 is their son.Said Bapurao and appellant No. 2 were residing separately but there were disputes on account of demand for complete partition of the residential house.So, Muktabai closed the door of her house.The appellants thereafter entered the house by removing corrugated zinc sheets of the roof.The appellant No. 2 -Laxman poured kerosene on her person, appellant No. 1 - Sarubai instigated the other two appellants to do away with her life saying " remove this thorn !".Immediately appellant No. 3 Dnyaneshwar set her ablaze by lighting a match stick.The post mortem examination revealed that Muktabai died as a result of cardio respiratory failure due to septicemia, which was result of 100% burn injuries sustained by her.On basis of material gathered during investigation, the appellants were charge-sheeted for the offences punishable under Sections 302 and 457 read with 34 of the I.P.C.The appellants denied truth into the accusations.They pleaded not guilty to the charge (Exh. 14).They did not raise any specific defence.It is suggested that they have been falsely implicated due to the dispute over demand of partition of the house property.At the trial, the prosecution examined in all 9 (nine) witnesses in support of its case.The defence examined DW-1 Laxman, the village Police Patil, in order to disprove oral dying declaration given by deceased Muktabai to her son.The learned Sessions Judge accepted the prosecution case on basis of the two written dying declarations as well as oral dying declaration of the deceased.The learned Sessions Judge held that the appellants, in furtherance of their common intention, committed house trespass in the residential house of deceased Muktabai in the relevant night in order to commit cognizable offence and they set fire to her person in furtherance of their common intention.Hence, they were convicted and sentenced as mentioned at the outset.Mr. Chatterji, learned Advocate, would submit that dying declarations of deceased Muktabai cannot be safely relied upon.He argued that recording of the dying declarations is not free from doubt.He further argued that versions of the deceased in the two dying declarations are different from one another.He contended that the appellants could not be convicted when the dying declarations are inconsistent with each other and are unreliable.As against this, learned A.P.P. Mr. Adhav supports the impugned Judgment.The prosecution case hinges upon the two written dying declarations of Sou.So also, oral dying declaration given by her to the son and also certain attending circumstances.A half burnt quilt was also found there.The spot panchnama was drawn on 20.2.2004, i.e. next day of the incident.House of the appellants is situated in Northern side of the residential premises of deceased Muktabai.The testimony of PW-1 Vaijnath Jadhav reveals that he was working as Naib Tahsildar at Parbhani and was assigned duty, being Executive Magistrate, of recording the dying declarations.His version purports to show that in the night between 19th and 20th February 2004, around 12.20 Hrs., he received a request letter from Nanalpeth Police Station for recording dying declaration of injured Muktabai.He visited Civil Hospital, Parbhani at about 12.30 a.m. and contacted the Medical Officer.He corroborates the dying declaration (Exh. 27).He took her thumb impression at bottom of the statement.The cross-examination of PW-Vaijnath shows that he had not received any training for appropriate recording of dying declaration.He did not endorse the dying declaration to show that it was read over to injured Sou.Muktabai and that she admitted the contents as correct one.He also did not affix any official seal on the dying declaration.His evidence reveals that some of the relatives of injured Sou.Muktabai were in her proximity but he further adds that they were asked to go outside.His version reveals that while recording the dying declaration (Exh. 27), except himself and injured patient (Sou.Muktabai), no other person was present at the place.He admits that he did not mention the time of completing the recording of dying declaration (Exh. 27) but says that he had forgotten to mention it.He further admits that the thumb impression on the dying declaration is not complete impression of the thumb of Sou.Her dying declaration reveals that at about 9.00 p.m., she had locked the house from inside and was sleeping.The appellants knocked the door but she did not open it.They removed the zinc sheets of the roof and thereafter appellant Nos.2 and 3 entered the house and opened the door.Thereafter, appellant No. 1 -Sarubai entered the house.She narrated to the Executive Magistrate that appellant No. 2 - Laxman doused her with kerosene stored in her house and appellant No. 3 - Dnyaneshwar set fire by means of a burning match stick.She raised hue and cry.She further narrated that her sons came there from outside and extinguished the fire by pouring water on her person.The dying declaration shows that since many days appellant No. 2 - Laxman used to pick up quarrels with herself and her husband.The dying declaration also shows that many a times, the appellant No. 2 - Laxman used to come to house in inebriated condition and used to quarrel with her.Coming to another written dying declaration of Sou.He recorded the statement of injured Sou.Muktabai as per her narration.He corroborates recitals of the dying declaration (Exh. 45).He obtained thumb mark of her right hand and endorsed the dying declaration.The recitals of the dying declaration (Exh. 45) would show that deceased Muktabai narrated to the Police Officer, the genesis of the ghastly incident.The endorsement on the dying declaration shows that Crime No. 17/2004 was registered for offences, punishable under Section 307 and 448 read with 34 of the I.P.C. in the same night at about 12.15 Hrs. by the Police.Obviously, that is the first dying declaration recorded after Sou.Muktabai was admitted in the Civil Hospital.She gave details of genesis of the incident.Her dying declaration shows that in the relevant evening, at about 9.00 p.m., the appellant No. 2 -Laxman came under inebriated condition and started giving abuses to her.He gave abuses saying that she was of loose character and had sexual relations with inhabitants of village Hatkarwadi.She further narrated that she got closed the door of her house.She further narrated that the appellants entered the house by pushing aside the corrugated zinc sheets of the roof.Her dying declaration shows that appellant No. 2 - Laxman poured kerosene on her person, appellant No. 1 -Sarubai instigated the other appellants to kill her, saying that her thorn shall be removed ( ).The appellant No. 3 - Dnyaneshwar thereafter lighted a match stick and set her ablaze.She narrated before the Police Officer that she raised cry and her sons came from outside and extinguished the fire.The dying declaration bears partial thumb mark of right hand of deceased Muktabai.It also bears the endorsements made by the Medical Officer (Exh. 34 and 35) at the beginning and at the bottom thereof.Credibility of the written dying declarations must be examined from the core of the recitals and the manner, in which the recording was done.The dying declaration recorded by PW-7 P.S.I. Pitale is at the first available opportunity.According to him, the Medical Officer examined the patient and opined that she would be able to give her statement.After taking such endorsement on top of the paper, he commenced recording of the statement of injured Muktabai.His version categorically shows that after the statement was written down, it was read over to injured Muktabai.Thereafter, thumb impression of her right hand was obtained at the bottom.The version of PW-P.S.I. Pitale reveals that on 24.2.2004, said Muktabai died.He prepared inquest panchnama in presence of two panchas.The inquest panchnama (Exh.24) is corroborated by him.True, there is inconsistency between the dying declaration (Exh. 45) and the dying declaration (Exh. 27) in so far as manner, in which the appellants entered the house.In the first dying declaration (Exh.45), Muktabai narrated that after pushing aside the corrugated zinc sheets of the roof, all the three appellants made entry to the house.She also narrated that the appellant No. 1 - Sarubai instigated the other two appellants to eliminate her.The second dying declaration shows that the appellant Nos.2 and 3 entered the house by pushing aside the corrugated zinc sheets of the roof and thereafter they opened the door.It was thereafter that appellant No. 1 - Sarubai entered the house.She narrated to PW-P.S.I. Pitale that the appellant No. 2 -Laxman poured kerosene on her person and appellant No. 3 - Dnyeshwar lighted a match stick and set her ablaze.Same is her version in the subsequent written dying declaration (Exh. 27).The Apex Court came across two dying declarations, which were inconsistent with each other.It may be true that the court while considering the credibility of such dying declarations may seek corroboration.PW-8 in her evidence categorically stated that the deceased had stated that it was the appellant who had poured kerosene.The deceased was seen in flames by her.Accused was seen running away from this place.Considering the tenor of the two written dying declarations available in the present case, I am of the opinion that the only inconsistency appearing in both these dying declarations is regarding role played by the appellant No. 1 - Sarubai.Otherwise, both the dying declarations are consistent and would reveal that the appellant No. 2 -Laxman poured kerosene on Muktabai and appellant No. 3 - Dnyandeo @ Dnyaneshwar lighted a match stick and set her ablaze.He saw the mother-Muktabai in burning condition.He extinguished the fire after pouring water on her person, covered her person with a gunny bag and called his father.His version purports to show that the appellants were standing outside the house.The injured told him that the appellant No. 2 - Laxman had poured kerosene on her person, appellant No. 1 Sarubai instigated and, therefore, the appellant No. 3 -Dnyaneshwar set fire to her person by a match stick.It is admitted by PW-Namdeo that when injured was rushed to hospital in an auto rickshaw, his father and Police Patil - Laxman Jorwar had also accompanied them.His evidence reveals that he did not disclose the incident to the Medical Officer at the Civil Hospital.Though PW-Namdeo is not eye witness to the incident, yet his version shows presence of the appellants outside house immediately after his mother was found in burning condition.His version shows that Muktabai was in serious condition at the relevant time.His version shows that Muktabai narrated to him that appellant No. 2 - Laxman poured kerosene and appellant No. 3 -Dnyaneshwar set fire to her person whereas, appellant No. 1 -Sarubai was saying that she be killed.The version of PW-9 A.P.I. Anwarkhan would show the steps taken during the course of investigation.He admits that the Police statement of DW-1 Laxman Jorwar, Police Patil, revealed that deceased Muktabai was not able to talk in the hospital.DW-1 Laxman Jorwar is the Police Patil of the village.His version reveals that he accompanied injured Muktabai and her husband during the journey to Civil Hospital.They went to Civil Hospital in an auto rickshaw.His version only shows that Muktabai had no talk with him.That does not, however, mean her inability to speak at the relevant time.It only shows that she did not confide in him and did not narrate to him as to how she received the burn injuries.Considering the material placed on record, it must be said that medical endorsements on both the dying declarations are duly corroborated by PW-Dr.Narendra Warma.The deceased was conscious and fit to give her statement when the dying declarations (Exh. 45 and Exh. 27) were recorded.Having regard to inconsistency about alleged instigation by the appellant No. 1 - Sarubai, the inconsistency about her entry in the house and also about her immediate presence outside the house with other two accused, she deserves benefit of doubt.Still, however, the appellant Nos.2 and 3 cannot get any benefit out of the minor inconsistency or discrepancy appearing in the two dying declarations.Both the dying declarations are quite truth bearing and acceptable.I am of the opinion that conviction of the appellant Nos.2 and 3 for the offences punishable under Section 304II read with Section 34 of the I.P.C. and Section 457 read with Section 34 of the I.P.C. is, therefore, legal and proper.In the result, the appeal is partly allowed.The impugned order of conviction and sentence against the appellant No. 1 - Sarubai is set aside.The amount of fine, if deposited, be refunded to her.The appeal to the extent it relates to the appellant Nos.2 and 3, is dismissed.The impugned order of conviction and sentence recorded against the appellant Nos. 2 and 3 is maintained.

Sections cited: Section 457 in The Indian Penal Code, Section 34 in The Indian Penal Code, Section 307 in The Indian Penal Code, Section 448 in The Indian Penal Code, Section 302 in The Indian Penal Code